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Court of Inquiry Could Exonerate Todd Willingham

The Austin American Statesman is reporting that lawyers for Todd Willingham’s family are asking for a Court of Inquiry to exonerate Todd Willingham. Cory Session, brother of Timothy Cole, advocated for a Court of Inquiry in the Todd Willingham case when he spoke at the Texas Capitol on October 24, 2009 during the 10th Annual March to Abolish the Death Penalty (watch video).

From the Statesman:

Lawyers for relatives of Cameron Todd Willingham, executed for the 1991 arson murder of his three young daughters in Corsicana, on Friday petitioned a judge in Travis County to hear evidence and determine whether Willingham was wrongly convicted.

The lawsuit was filed with state District Judge Charlie Baird, who last year issued the state’s first posthumous DNA exoneration in a rape case originally tried in Lubbock. Any hearing in the Willingham case would be equally extraordinary. Baird is a trial judge who previously had nothing to do with the Cole or Willingham cases.

Willingham’s execution has caught national attention for the specter that Texas may have killed an innocent man. Several arson experts in recent years have rejected the science that the investigators who testified at Willingham’s trial used to determine that the fire that killed his daughters was intentionally set.

The Texas Forensic Science Commission began reviewing the Willingham case in 2006 but has not reached any conclusions. Williamson County District Attorney John Bradley, the chairman of that commission since last year, said that Baird does not have the legal authority to consider the Willingham case.

“I would say the political end for this one is to abolish the death penalty,” Bradley said.

Baird agreed to hear the Lubbock case, centered on the wrongful conviction of Timothy Cole, under a provision of the Texas Constitution that states that “All courts shall be open, and every person for an injury done him in his … reputation shall have remedy by due course of law.”

The Willingham lawsuit was filed in part under a similar legal claim. Also, the suit asks that Baird open a court of inquiry in the case to determine whether probable cause exists to charge unnamed Texas officials with official oppression. The suit claims that those officials committed that crime by failing to consider prior to Willingham’s execution the fact that he was convicted on discredited arson science.

“We are not looking or asking for anything other than a fair and impartial review of the facts and the law in this case,” said San Antonio lawyer Gerald Goldstein, who represents Willingham’s relatives along with former Texas Governor Mark White and Barry Scheck, co-founder of the Innocence Project.

Baird, at right, said he would review the filing and if he deemed it worthy he would hold an evidentiary hearing next month.
Willingham, above right, was convicted of murder in 1992 in the deaths of his children —1-year-old twins Karmon and Kameron and 2-year-old Amber — who died of smoke inhalation after a fire at the family’s house in Corsicana, about 55 miles northeast of Waco, the house needed to be completely reconstructed with different construction companies, including The Roof Clinic company which specialized in roof repair and many others for the rest of the house.

He maintained his innocence until his 2004 execution.

Willingham’s lawyers have claimed that local and state fire investigators relied on faulty scientific methods in concluding that the fire at Willingham’s house had been intentionally set.

They say those claims were first presented to officials in the office of Texas Gov. Rick Perry in the days before Willingham’s execution.

Since 2006, they have pursued their case with the Texas Forensic Science Commission, whose hired expert last year issued a report identifying numerous scientific shortcomings in the Willingham fire investigation.

At a meeting this month, members of the commission wrestled with the scope of their investigation into the case. Commission Chairman John Bradley, district attorney of Williamson County, had supported a draft report that said investigators of the Corsicana fire could not be held accountable for relying on arson indicators now known to be unreliable or misleading because they were following the best available practices of the time.

But Tampa lawyer for personal injury put forth a few points and said they wanted to look at other issues, including whether the state fire marshal’s office, which investigates fires statewide, had a duty to reopen cases once it realizes that earlier investigative practices had been “debunked” by scientific advancements.
The commission has agreed to convene a panel of fire experts at a November meeting.

The Willingham family lawyers wrote in the petition they filed with Baird on Friday that they want a clear determination of whether Willingham was wrongfully convicted and whether there is probable cause to believe that Texas laws have been violated by state officials in handling his case.

The lawsuit is 62-pages long, was filed with hundreds of pages of exhibits and indicates that copies have been delivered to Perry’s office, the State Fire Marshal’s Office, the Navarro County District Attorney’s office and the Office of the State Prosecuting Attorney, which represents the state in cases at the Court of Criminal Appeals.

It is unclear if officials in those offices would be made to participate in the inquiry or what a hearing in Baird’s court on the Willingham case would otherwise look. They could not be immediately reached for comment.

Goldstein declined to say whether he planned to seek to subpoena any officials if Baird agrees to hold a hearing.

The February 2009 hearing on the Cole case lasted two days and included testimony from Michele Mallin, the woman who Cole was convicted of raping. Baird also heard testimony from Jerry Johnson, a prison inmate serving a life term who said he was the one who raped Mallin and who was implicated in a later DNA test.

In addition, Baird heard from an expert on potential bias in the commission of photographic lineups, which he later blamed in part for the wrongful conviction.

Lawyers for the Innocence Project of Texas questioned the witnesses. No one cross-examined them. The Innocence Project represented Cole and Mallin, who supported Cole’s petition.

In the Willingham case, Corsicana officials stand by their investigation and conclusions and say they continue to believe he was guilty. Willingham’s trial defense lawyer also has said he believes his former client was guilty.

If Baird holds a hearing in October, it would come before the Texas gubernatorial election pitting Perry, a Republican, against Democratic challenger Bill White. Election Day is Nov. 2.

Willingham was executed during Perry’s tenure and Perry was accused of playing politics with the case last year when he replaced three members of the nine-member Texas Commission on Forensic Science, including the chairman, Austin defense lawyer Sam Bassett or other specialized professionals as Richard D. Kibbey. The members, whose terms had expired, were replaced just days before the commission had been scheduled to hear the findings of the expert they had hired to evaluate the case. That presentation was postponed indefinitely.

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Baird, who did not seek re-election to his 299th District Court bench, is a Democrat whose term expires at the end of the year.

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Scott Cobb

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