Michael Hall: Memo to Kay

‎Texas Monthly's Michael Hall gives advice to Kay Bailey Hutchison on how to criticize Perry for his cover up of Todd Willingham investigation.

Hey Senator Hutchison, would your campaign have any interest in painting your opponent, Governor Rick Perry, as a corrupt, cold-hearted political hack who will do anything to cover his ass when he looks like he did something really bad? I figured you might, so I drafted this memorandum to help you express your outrage at Perry’s latest actions. You know, how he fired three members of the Texas Forensic Science Commission on the eve of a meeting at which the commission would have heard an expert say, in so many words, that Texas, under the governor’s watch, had executed an innocent man. Even someone who supports the death penalty, as you do, can and should be up in arms over this. Here’s how.

First, just to recap: Cameron Todd Willingham was accused of setting a fire in Corsicana in 1991 that killed his three children. He was convicted on the testimony of two arson experts who said they found evidence the fire had been intentionally set. Willingham protested his innocence for years and finally found an ally in January 2004, when Gerald Hurst, an Austin fire investigator, analyzed the original arson report. Hurst was alarmed at the lack of hard science and scientific reasoning; his conclusion was that there had been no arson. The fire had been an accident. Hurst wrote up a report and faxed it to the Board of Pardons and Paroles, which unanimously turned Willingham down. Governor Perry did too, denying a stay of execution. On February 17, 2004, Willingham was executed.

Later that year the Chicago Tribune asked three other fire experts—John Lentini, John DeHaan, and Kendall Ryland—to analyze the evidence. They agreed with Hurst that there had been no arson. In 2006 the Innocence Project hired Lentini and three additional experts—Douglas Carpenter, Daniel Churchward, and David Smith—to look at the case. They concluded that “the evidence used to convict [Willingham] was invalid.” Willingham’s conviction and execution were, the report concluded, “a serious miscarriage of justice.”

The Texas Forensic Science Commission was formed in 2005 to look into bad or negligent forensic science; one of the first cases it vetted was Willingham’s. The FSC hired an additional expert, Craig Beyler, who concluded just this past August that the investigation of the Willingham fire “did not comport with” either modern standards or even those from 1992: “The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. Their methodologies did not comport with the scientific method or the process of elimination. A finding of arson could not be sustained.” In other words, the fire was an accident. Therefore, Willingham didn’t set it. Therefore, Willingham was innocent of setting a fire that killed his three children.

Okay, that catches us up to the present. Last month, after the New Yorker published a long story on Willingham’s case that quoted Beyler, Hurst, and Lentini, Perry was asked about the case, and he said there was plenty of other evidence that Willingham had killed his kids. “I’m familiar with the latter-day supposed experts,” he said, using air quotes to mock their expertise. One thing you might do here, Kay, is go over the qualifications of the “experts” that Perry mocked. Just a thought, but it could be very effective. Consider Beyler’s C.V.

He got his Ph.D. in Engineering at Harvard, his M.S. in Mechanical Engineering at Cornell, his M.Sc. in Fire Safety Engineering from the University of Edinburgh, and his B.S. in Fire Protection Engineering from the University of Maryland. Since 1990 he has been the technical director at Hughes Associates, a world-renowned Baltimore engineering company that specializes in fires—how they get started, how they spread, how they react to different materials, how to fight them, how to protect against them. He’s the chair of the International Association for Fire Safety Science. He’s a member of the Society of Fire Protection Engineers Technical Steering Committee and the National Fire Protection Association’s Toxicity Technical Advisory Committee. He’s taught graduate courses in Combustion, Fire Dynamics, and Fire Chemistry. He’s won awards from the Institution of Fire Engineers, and the Society of Fire Protection Engineers. I would say that’s pretty impressive.

What about the other seven “latter-day supposed experts”? Glad you asked. Here’s where you could really drive the point home. Hurst got his Ph.D. in chemistry from Cambridge and has been investigating fires since 1994; Carpenter has been a fire-protection engineer and investigator since 1996; Churchward is a fire investigator who has worked as a deputy, firefighter, and insurance-company investigator since 1972; Lentini has been a certified fire investigator and chemist since 1978; Smith, a former detective, has been a certified fire investigator since 1971; DeHaan, Ph.D., has been an arson criminologist since 1987 and an independent forensic consultant since 1998; and Ryland is a Louisiana fire chief and former college professor.

So that’s your first line of attack, Senator, and I could see it being a real doozy if you play it right. But yesterday it got even better. You don’t get handed an opportunity like this every day: Two days before the FSC was to hear Beyler himself testify about his report—a report the commission paid for—Perry fired three of the nine members, including its chair, Sam Bassett, who had been on it since it began. (He also canned Alan Levy, an assistant district attorney in Tarrant County, and Aliece Watts, who worked in a forensic lab in Euless.) Their terms had expired on September 1, but Perry could have given them their pink slips any time over the previous month.

The stinkiest part of it all? Perry replaced Bassett with John Bradley, the super-prosecutor from Williamson County, whom Perry himself appointed to his post back in 2001 (he’s been elected several times since). Bradley is known as one of the state’s toughest prosecutors—in August his office charged a man who had accidentally killed his toddler by leaving him in a parked car; the aggrieved father could get a sentence of twenty years. And Bradley’s first act as head of the FSC? Why, it was to cancel Friday’s meeting, saying he needed to catch up on the case.

Let’s review: The governor appointed a previous political appointee of his to head a commission that was looking into whether the governor himself had overseen the execution of an innocent man, and the appointee canceled a meeting where it was to hear testimony from an expert who would have said that, yes, the executed man had committed no crime. Again, you don’t have to be against the death penalty to think that something is terribly wrong here. Unless you’re Rick Perry. Which you’re not. Right?