Landmark case that goes to the heart of a state's right to kill

Archie Bland
Saturday 19 September 2009 00:00 BST

When Cameron Todd Willingham was executed five years ago for the murder by arson of his two infant children, it seemed like an open and shut case.

Witnesses to the 1991 fire at his home in Northeast Texas said that he had acted suspiciously. Another witness said he had confessed. A fridge had been placed to block an exit from the house. And a forensic analysis of the charred remains of the building concluded that the cause was arson, and that Willingham was the man responsible.

But five years on, it has been all but proven that an innocent man was executed – in a case that could provide a crucial new rallying point for American opponents of the death penalty determined to see it removed from the statute book.

The case against Willingham, who protested his innocence until the day he died, has fallen apart. The eyewitness testimony has been shown to be faulty, while the man who heard his confession had turned out to be an entirely unreliable jailhouse informant who believed that giving evidence against Willingham would expedite his own release. And the fridge, it seems, was never moved at all.

Most damningly of all, a new investigation has shown that not a single shred of the evidence that seemed to support the arson theory was based on scientifically proven methods. The investigator, Craig Beyler, a noted expert on the subject, said that the original investigator’s approach denied “rational reasoning” and was more “characteristic of mystics or psychics.”

The new evidence, much of which was gathered by the journalist David Grann for an article in the New Yorker magazine, has drawn fresh attention to a case that had long slipped from the public eye. In two weeks time, a government commission in Texas will review Craig Beyler’s detailed demolition of the original evidence. If they accept his findings, it is possible that for the first time in modern history, the US could formally acknowledge that it executed an innocent man.

It is not clear that the commission will give itself a broad enough remit to conclude that Willingham was innocent, and no conclusion is expected until Spring of next year. But if it did come to the verdict that an innocent man was killed, it would be a hugely significant moment.

“It’s never happened before,” said Sally Rowen, legal director of the prison human rights organisation Reprieve’s death penalty team. “When somebody dies the money to investigate goes away. But capital defence lawyers would immediately start to include this case in their filings as conclusive evidence that mistakes do get made.” And former Supreme Court justice Sandra Day O’Connor has said that the proven execution of an innocent person would be “a constitutionally intolerable event”.

John Jackson, the original prosecutor in the case, has maintained that Willingham was guilty, pointing to his history of wife-beating and another witness who claimed to have heard him make an incriminating remark.

But even he does not dispute that the forensic evidence was fundamentally flawed. And the case has also highlighted the severe disadvantages faced by death row inmates reliant on legal aid, who do not have the resources to commission an investigation like Beyler’s independently, and who may be represented by lawyers whose skills are hopelessly inadequate to the demands of a capital case. “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent,” Willingham once wrote. “Some day, somehow,” he said, in a letter written to his wife shortly before his death, “the truth will be known and my name cleared.”

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