Sunday, January 2, 2011


" 1. Todd Willingham, the Texas Forensic Science Commission and Charlie Baird's Last Hurrah: An appellate court shut down Judge Charlie Baird's court of inquiry in the Todd Willingham case and Chairman John Bradley successfully delayed consideration of flawed science in Willingham's case by the Forensic Science Commission until after the election. Regrettably, so far honest discussions of flaws in old arson science have been shouted down by culture war debates over the death penalty."


("Grits for Breakfast" says it looks at the Texas criminal justice system, with a little politics and whatever else suits the author's (Jeff Blackburn) fancy thrown in. All opinions are my own. The facts belong to everybody." Its motto: "Welcome to Texas justice: You might beat the rap, but you won't beat the ride.")


BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:

"It's difficult to designate a group of "top" Texas criminal justice stories for 2010, in what overall felt like a transitional year," the list published on January 01, 2011 begins, under the heading, "Top Texas Criminal Justice Stories of 2010."

"Cities, counties and the state began for the first time to recognize the magnitude of the fiscal crisis facing government budgets at all levels,"
the list continues.

"If budgets dip with tax revenues for a sustained period, the system will be forced to re-assess priorities at all levels in a way that decision makers now are only vaguely beginning to consider. In the meantime, the biggest criminal justice stories I see on from the past year were:

1. Todd Willingham, the Texas Forensic Science Commission and Charlie Baird's Last Hurrah: An appellate court shut down Judge Charlie Baird's court of inquiry in the Todd Willingham case and Chairman John Bradley successfully delayed consideration of flawed science in Willingham's case by the Forensic Science Commission until after the election. Regrettably, so far honest discussions of flaws in old arson science have been shouted down by culture war debates over the death penalty.
2. GOP Election Sweep: The elections were a mixed bag on criminal justice topics. Texas Congressman Lamar Smith's ascension to chair of the US House Judiciary Committee may be the biggest criminal justice news out of the cycle. Nothing changed statewide. The ouster of House Corrections Chair Jim McReynolds was a loss for reform-minded folk, but most people think he'll be replaced by Jerry Madden, who is author of numerous recent, widely praised probation and parole reforms. Many other Dems who left were reliable filers of multiple enhancement bills each session and/or firmly in thrall to their local law enforcement unions and other special interests. Replacing them with budget cutters may not necessarily be a bad thing, particularly given the nascent Right on Crime initiative authored by movement conservatives at the Texas Public Policy Foundation. While I'm sure the folks at TARAL are freaked out, for criminal justice reform this development may not be a bad thing. The repeal of red-light cameras in Houston was also a big deal.
3. The Exonerations of Anthony Graves, Stephen Brodie and Michael Green. Graves was convicted thanks to prosecutorial misconduct and exonerated thanks to doggedness and hustle by students and innocence project lawyers. (Pam Colloff's story on Graves in Texas Monthly was perhaps the state's journalistic event of the year.) Brodie was a deaf man who gave a false confession after interrogations than frequently included no interpreters. Green's false conviction hinged on flawed eyewitness testimony, and his exoneration resulted in large part from work by Harris County DA Pat Lykos' post-conviction review unit.
4. Sharon Keller's Expensive Acquittal: Without addressing the merits of the findings of fact against her, a three-judge panel appointed by the Texas Supreme Court ruled the state Commission on Judicial Conduct was unlawfully lenient in punishing the presiding judge of the state's highest criminal court, giving her a "warning" when the minimum allowable sanction under the state constitution was "censure." They denied the commission an opportunity for resentencing. Meanwhile, she had to pay on of the top lawyers in the state out of her own pocket and was fined $100,000 for erroneous filings with the Ethics Commission - the largest fine ever given by the agency. Much more important than this circus will be coming decisions by Gov. Rick Perry who to appoint to replace two moderates on the court - Judges Charles Holcomb has already surpassed the maximum age limit and Judge Cathy Cochran is approaching it. Perry chooses their successors.
5. Amnesty, Indigence programs created for Driver Responsibility surcharge: I'm biased, since this blog (along with Amanda Marzullo and the good folks at the Texas Fair Defense Project) helped initiate the rulemaking process with a formal citizen's petition in 2009, but to me the creation of Amnesty and Indigence programs for the Driver Responsibility surcharge - particularly given that 1.9 million drivers have lost their licenses, 1.2 million of which haven't been reinstated - is big news for many drivers who've become entangled in the justice system's financial tentacles. Kudos to Perry's five Public Safety Commission appointees, who took the bull by the horns and forced staff to include an Amnesty program when they balked over budget concerns and presented rules without one. Legislation has been filed to abolish the surcharge.
6. Creation of a Harris County Public Defender Office: Harris County includes the nation's 4th largest city and more people than 20+ US states, so the creation of a public defender office there marks a major expansion in the number of indigent defendants with access to public defender services. The agency was created in part in hopes of moving defendants through the process more quickly to help with the county's ongoing jail overcrowding problem. Also notable was expansion of the capital public defender office in West Texas.
7. Prison healthcare up in the air: Facing $61 million in unpaid bills and an aging, more expensive prison population, the UT Medical Branch at Galveston has fired unit medical staff and wants to get out of the contract altogether. Whether the Legislature will let them and what happens then are major subjects to be resolved in the 82nd session.
8. Rethinking Forensics: The Court of Criminal Appeals overturned a conviction based on unproven dog-scent lineup techniques, and DNA proved hair evidence used to convict an executed offender really belonged to someone else. Meanwhile, the CCA's Criminal Justice Integrity Unit held a statewide seminar on ways to improve forensic science, signaling the court's increasing openness to rethinking forensic evidence in the wake of questions raised in 2009 by the National Academy of Sciences.
9. Crime, Arrests Down, Incarceration Steady: What can you say? The decade-long decline in crime, particularly violent crimes, continues at a remarkable pace in most Texas jurisdictions, both for juveniles and adults. Even so, the overall incarceration rate remains high as a result of laws and policies in place since the '90s: About one in 22 adults in Texas are in prison, in jail, on probation or on parole.
10. Calm Before the Budget Storm: TDCJ continues to pretend it can absorb massive budget cuts solely through layoffs without closing any prison units, while at TYC they've acquiesced to the inevitability of unit closures. Instead TDCJ wants to cut prison staff and diversion programming that the LBB says is responsible for curbing prison growth. For my new year's prediction, I think TDCJ's failure of leadership regarding designating budget cuts won't prevent nine-figure budget reductions or prison closures, it will just mean the Legislature will make those decisions for them, and almost certainly not in the way the agency would prefer.

What'd I miss that should have been included? What's on the list that's not really a big deal? Let me know what you think were the biggest 2010 stories in the comments, and what you foresee as the most important developments to come in 2011."

The list can be found at:

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

Harold Levy: Publisher; The Charles Smith Blog;;