CAMERON TODD WILLINGHAM CASE: DALLAS MORNING NEWS ASKS IF TEXAS ARSONS ARE A CASE OF BAD SCIENCE: ANSWER? SOME EXPERTS THINK SO; FIVE CASES DETAILED;

The Dallas Morning News has run a major take on the Cameron Todd Willingham execution under the heading, "Are Texas arsons a case of bad science? Some experts think so."

Wikipedia tells us that: "The Dallas Morning News is the major daily newspaper serving the Dallas, Texas (USA) area, with a circulation of around a half-million subscribers.

"AUSTIN – Arson investigators in Texas have relied on old wives' tales and junk science to send men to prison, and perhaps even the death chamber, top experts on fire behavior say," the September 13, 2009 story by reporter Christy Hoppe, begins.

"Their refrain was magnified last month when Dr. Craig Beyler, a nationally respected fire engineer hired by the state to review evidence in two death row cases, issued a withering report that found no scientific basis to classify either fire as an arson," the story continues.

"What's more, he methodically outlined about a dozen instances of improper analysis and mistaken conclusions by investigators, saying they relied on folklore about fire and ignored evidence that contradicted their theories.

His was the second critical report by scientists examining the capital murder cases of Ernest Willis, convicted of setting a 1986 fatal fire in Iraan, and Cameron Todd Willingham, sentenced for killing his three children in a 1991 Corsicana fire. After 17 years, Willis walked free when a new district attorney concluded that the fire was accidental, probably caused by faulty wiring or a bad ceiling fan.

Willingham, though, was executed in 2004, and his case – outlined in a recent extensive article in The New Yorker –has launched a new round of questions and speculation about the death penalty.

Opponents, buoyed by the recent release of dozens of Texas inmates under new DNA evidence, have long searched for a case of a provably innocent person having been executed. The Willingham case isn't it, at least not yet. But it raises the specter of arson becoming the next great frontier for questionable convictions.

Science, scrutiny

Willingham's prosecutors acknowledge that some of the investigative techniques used back then have become outmoded, but they maintain that the trial testimony points to "overwhelming evidence of guilt."

Investigators in the Willingham fire protest the armchair analysis done by scientists who were never on the scene. And they have pointed out that those scientists still can't find a different probable cause for the fire.

Scrutiny of arson cases highlights a tangle between science and supposition. And in Texas, the stakes are big. As of last month, 742 offenders were in state prisons for arson, and on average, 275 more are convicted of the crime each year.

Those numbers make the Beyler report all the more troubling, said state Sen. Rodney Ellis, D-Houston, who has pushed to create a commission in Texas to explore questionable convictions.

"As scientific methods improve," he said, "it's a distinct possibility that we're going to find more problems in the criminal justice system."

Ernest Willis, with his wife, Verilyn, was released after spending 17 years on death row for a 1986 arson in Iraan, Texas. A new district attorney concluded that the fire was accidental, probably caused by faulty wiring or a bad ceiling fan.

In addition to Willis and Willingham, fire experts point to at least three other Texas cases that relied on questionable theories to win convictions.

"Accidental fires being turned into arsons is going on all the time," said Gerald Hurst, a Cambridge-educated chemist who was the chief scientist for the nation's largest explosive manufacturer.

He has turned to investigating fires and has testified on behalf of some of the arson defendants. Hurst sees a fundamental problem: investigators – most of whom began as police officers and firefighters – have no science background.

Most investigators are practicing "a discipline that happens to be the most complicated of the forensic sciences," he said.

"I find fires mind-boggling complex, and I understand fire dynamics pretty well," Hurst said.

John Lentini, an author of the definitive guideline to fire investigation, said that honest investigators will walk away from about one in five fires unable to determine a cause because the heat destroys evidence, oil-based materials leave patterns that can be misleading, and firefighting water contaminates the scene.

"But you turn up enough 'undetermined' and you'll lose your job," Lentini said. "If there wasn't a crime and if the guy who makes the call gets it wrong, then he sets in motion a chain of events that will run over an innocent person."

In addition, lore about how fires react becomes ingrained, and it takes a long time for debunked science to become accepted.

Turning point

The keystone is the document known as "National Fire Protection Association 921" – a guide to investigations first published in 1992 that became a turning point in fire science. It was published after the Willis and Willingham fires.

Before 921, investigators were taught that fire burns upward, not down; that normal fires burn more slowly and not as hot as those fueled by accelerants; and that burn holes in the floor, cracked "crazed" glass and blisters in floors were signs of arson.

But 921 stated a fire sends heat and gas to the ceiling, and once they reach a critical temperature, a "flashover" occurs and everything in the room will be on fire. A flashover can happen quickly – within three minutes – and can leave all the signs that investigators once saw as arson evidence.

"If you debunk something in fire investigations, the first reaction of investigators is, 'You're wrong. You're just making it up. That's something you did in a laboratory,' " said Lentini, one of four noted scientists who wrote the first critical report of the Willingham investigation. The scientists donated their time at the behest of the Texas Innocence Project.

Lentini said it took years before the 921 findings became widely accepted.

Walter Reaves, a Waco attorney who has handled several arson appeals, said he still sees the kind of lore that was used to convict Willis and Willingham.

"In arson investigations, it's a system that has perpetuated itself," Reaves said. "The people who learned it that way are now teaching it. ... The scientists and arson investigators don't really meet."

'Subjective analysis'

Ed Salazar, director of the State Fire Marshal office, said 921 is taught "as the accepted Bible." Texas investigators, who must be certified peace officers, undergo a 150-hour training course before they can sit for tests and become fire investigators.

But any fire review, "is always going to have a subjective analysis. At some point in time with experts, one is going to be arguing one thing and one is going to be arguing another," he said.

His office has teams that critique field reports and analysis of investigators around the state, and all investigators must take 20 hours of continuing education courses each year. Scientists might not find it sufficient, because fire investigators – who technically need only a high school education – will almost never have advanced college degrees.

"There's a natural tension between the scientist folks and everyone else," Salazar said.

Salazar declined to comment on the Willis and Willingham reviews, as the Fire Marshal's office is preparing a detailed response for the Texas Forensic Science Commission about the Beyler report.

More outspoken is former Corsicana assistant fire chief Douglas Fogg, who helped investigate the Willingham fire.

"My personal belief is the bleeding hearts that are against the death penalty are trying to stir everything up again," he said. "They finally got someone who would say what they wanted to hear."

Fogg is convinced that the blaze was arson, and he had concluded that it was begun with accelerants – most likely lighter fluid because a container was found in front of the house, along with several empty containers that also could have been lighter fluid.

He pointed out that he witnessed Willingham's behavior. He talked to others who also witnessed how Willingham acted during the battle to extinguish the fire.

"You never go in saying this is an arson fire," Fogg said. "You go in looking for a cause. We went in on our hands and knees picking up evidence until midnight looking for the cause of the fire."

He said if the experts can second-guess those who spent days sorting through the house, they should have at least produced one theory on how else the fire might have started.

Beyler's report said that one of the main investigators, Manuel Vasquez, now deceased, "was indifferent to the contents of the rooms before the fire." For instance, Beyler noted, that there was a charcoal grill on the porch, which would explain the presence of the lighter fluid.

Beyler found that too much was removed from the house haphazardly to know what evidence of the fire was lost.

AT A GLANCE: FIVE TEXAS ARSON CASES UNDER FIRE
Ernest Willis

Circumstances: On the day preceding a house fire on June 11, 1986, in Iraan, Willis and others in the house had been drinking heavily. Police arrested the two tenants on charges of unruly behavior about 10:30 p.m. Four visitors stayed behind, including Willis, who reported waking up because of smoke around 4:30 a.m. He tried to alert the others, and managed to escape and phone the fire department. Willis and his cousin Billy Don escaped, but two women died.

Evidence: Billy Don passed a polygraph, but Ernest led police to believe he started the fire. Investigators cited numerous origin points for the fire and concluded, because of the heat and burn marks, that flammable material was used.

Problems: Lack of documentation, failure of forensics to find accelerants. The burn marks, "pour patterns," and rapid spread that were attributed to arson are now widely understood to occur in accidental fires.

Outcome: Courts reversed the conviction because Willis was too heavily drugged during his trial to offer defense counsel help. A new district attorney determined arson was unlikely and dropped the charges. Willis was released from death row in 2004.

Ed Graf

Circumstances: The Hewitt resident was convicted of setting fire to a backyard shed where his two stepsons – Joby, 8, and Jason, 9 – were playing in 1986. Investigators testified that it appeared gasoline had been poured on the shed floor. Graf was sentenced to life in prison.

Evidence: Two months before the blaze, Graf had taken out $50,000 insurance policies on each boy. He'd insisted on leaving price tags on their back-to-school purchases, which he returned for a refund after the fire. At the time of the fire, he told his wife both boys were dead even though the fire department had only found one body.

Problems: The entire crime scene was bulldozed. Neighbors substantiated that the boys had frequently been in trouble for playing with fire. Highly flammable furniture was stored in the shed. The burn patterns identified by investigators as proof of a gasoline pattern are no longer considered credible evidence of arson.

Outcome: Graf remains in prison with his appeals all but exhausted.

Cameron Todd Willingham

Circumstances: On Dec. 23, 1991, Willingham was awakened by his 2-year-old daughter, Amber, and told of a fire. He couldn't find 1-year-old twins Karmon and Kameron and ran outside and broke open their bedroom window, but flames shot out. All three children died in the blaze in Corsicana.

Evidence: Suspicious burn patterns were found on the floor. Willingham's own burns were superficial from having run through an engulfed house, and he showed no evidence of smoke inhalation. At least one lighter fluid container, and possibly as many as four, were on or near the front porch. Willingham had a history of spousal abuse and a criminal record. A jailhouse snitch said Willingham "confessed" to him.

Problems: Burn patterns were consistent with "flashovers" that occur in accidental fires. Myriad experts say the determination of arson was based on debunked science. A charcoal grill had been at the front door but was moved by firefighters. Willingham had to be physically restrained from running back into the house. The informant was highly unreliable.

Outcome: Willingham, protesting his innocence, was executed in 2004.

Garland Leon "Butch" Martin

Circumstances: On Feb. 25, 1998, Martin's wife, Marcia Pool; their daughter, Kristen, 1; and her son, Michael, 3, were killed in a house fire. Martin had been abusive to Pool, and she told her mother he had threatened to kill her that day. Martin left with a friend, and when they returned 30 minutes later, found the house ablaze. He was restrained by police.

Evidence: Paramedics testified that they smelled charcoal lighter fluid on Martin when they took him to a hospital. Doctors reported evidence of blunt trauma to Pool and her son, probably before the fire was set. Investigators detected a pour pattern of flammable liquids on the floor and trace amounts of what was probably lamp oil found near a bedroom wall, where they said the fire started.

Problems: Other witnesses reported no unusual smells. The injuries to Pool and her son are common results of carbon monoxide poisoning. The "pour patterns" can occur in accidental patterns. The trace amounts of liquid also could have come from numerous household products. Other experts suspected the fire started on a back porch, where an extension cord connected to a refrigerator.

Outcome: Martin is serving a life term on three counts of capital murder.

Curtis Severns

Circumstances: Early on Aug. 1, 2004, Severns was called by a security company and told his Plano gun shop was on fire. He arrived to find the shop gutted. Federal agents began an investigation of arson, based on burn patterns.

Evidence: The fire was started in three places. It set off an alarm only 23 minutes after Severns left the shop, which had been struggling financially. Leading experts on fire behavior squared off, but the jury believed those who saw it as arson.

Problems: Several experts believe the fire began from a frayed cord from a fan. The multiple origins could have occurred from aerosol cans that bounced around and spewed from the heat of the fire. Also, ceiling tiles might have ignited and fallen in those spots. Severns had recently reduced insurance coverage on the shop. He and his wife earned good money and had healthy savings.

Outcome: He is serving a 25-year sentence in federal prison."

This story can be found at:

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/091309dntexarson.3fec5f4.html

Harold Levy...hlevy15@gmail.com;