“I ain’t gonna plead to something I didn’t do,” he insisted, “especially killing my own kids.”
There are several reasons for maintaining your innocence. The most obvious one is that you’re innocent. But as demonstrated in the Hauptmann and Coleman cases, that is not a sure thing, even in the face of a waiting execution. So while one would certainly have given some weight to Willingham’s insistence, it could also be chalked up to pride, concern for his reputation or a simple gamble with the criminal justice process, which, in practice, doesn’t execute that many convicted murderers—even in Texas, a state that takes its death penalty seriously.
Cameron Todd Willingham’s trial began on August 18, 1992, and lasted only three days. Prosecutor John Jackson brought in a witness named Johnny Webb, a convicted felon, who claimed that during a casual jail conversation as he was passing by Willingham’s cell, Todd had confessed to setting the fire. He went on to say that Willingham described how he had poured lighter fluid on the floor of the children’s bedroom in a pentagram pattern. This was supposed to be evidence of Wicca or some darker satanic cult.
When investigators had first heard that claim from Webb months before, it was seen as the key to Todd Willingham’s whole personality. It became a critical element of what became the second phase of the trial.
I don’t think much of jailhouse snitches, yet we see them used all the time. The thinking is that if some bad guy is going to shoot his mouth off about what he’s done, he’s most likely going to do it to one of his own kind. According to David Grann in The New Yorker, Jackson didn’t believe Webb had any motive for making a statement that wasn’t true.
From my experience, jailhouse snitches always have something to gain, or at least perceive that they do. It’s the only reason they come out of the woodwork.
“Why did you decide to tell anyone about this conversation?” Jackson asked Webb on the witness stand.
“Because it got to bugging my conscience. I mean, three kids, you know? Someone tells you something like that, it’s not something to be taken lightly.”
Don’t believe any of the pretense of conscience or feeling sorry for the victim or wanting to see justice done when it comes from this type of individual. It’s all about them. This doesn’t mean they’re lying, necessarily. But it does mean that their credibility is always questionable.
I’ve always said the same thing about prison and parole-mandated psychiatry. Unlike regular therapy, in which the subject has a vested interest in being truthful and candid with the analyst, in a law enforcement situation the subject has a vested interest in telling the analyst whatever will get him out or reduce his sentence.
In this case, the idea that a man who steadfastly maintained his innocence would suddenly spill to another inmate he hardly knew, in full hearing of others, is utterly preposterous, even if the defendant was guilty. If I were a juror, I would have given it no credence. In fact, I might even have held it against the prosecution, figuring they might not be as sure of their case as they seemed if they had to present a loser like this.
The main case against Cameron Todd Willingham, though, was the forensic investigation. On the witness stand, Manuel Vasquez enumerated his twenty indicators of arson, proclaimed his firm belief that it was Todd who had started the fire, and even ventured an opinion as to motive. “The intent was to kill the little girls,” he said.
Vasquez seemed to have an almost mystical relationship with fires and arson, claiming that nearly every fire he had investigated had turned out to be intentionally set. Other experts would later raise eyebrows at this claim. “Let me say this,” he declared under questioning from coprosecutor Alan Bristol, “the fire is telling me this. The fire tells a story. I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells me the truth.”
And the truth, as he interpreted it, was that three fires had been set intentionally in the house that morning in late December. “Based on my experience, and from what I observed at the fire scene, the first fire was in the bedroom, the front bedroom.”
“The bedroom where the twins were found?” Bristol clarified.
“Yes, sir. The second fire was in the hallway, and the third fire was on the front door on the porch.”
“Deputy Vasquez, during your investigation, did you interview witnesses, including the occupants of this house?”
“Yes, sir. I’ve talked to the occupant of this house, and I let him talk and he told me a story of pure fabrication.”
Todd had wanted to take the stand in his own defense, but his attorneys were concerned he would be his own worst enemy, and prevented him from testifying. They tried to find experts to refute Fogg’s and Vasquez’s reports, but they couldn’t find any. The only witness they ended up putting on was a woman who had babysat for the Willingham children. She said she did not believe Todd capable of harming them. There has been a good deal of criticism of the defense team, which believed their client to be guilty. But from the trial transcripts, even though they presented little evidence of their own, they mounted a vigorous and, to me, effective assault on the prosecution’s case and the expert witnesses’ assumptions.
The jury went out at 10:25 A.M. on August 20. They returned to the courtroom seventy-seven minutes later with a verdict: guilty of three counts of murder in the first degree.
In the penalty phase, conducted after lunch on the same day, a string of witnesses from law enforcement and the private sector testified to Todd’s antisocial acts and “bad reputation.” Neighbor John Bailey recalled an argument he’d heard in which Todd taunted Stacy, “Get up, bitch, and I’ll hit you again!”
Prosecutors called Stacy to the stand. She proved to be a hostile witness, stating definitively that she believed Todd was innocent and would not have hurt the children. She also minimized his physical abuse of her.
Then they picked up on the satanic theme. The pentagram pattern in which Webb said Willingham poured the accelerant conformed to the pattern of burns Vasquez had noted on the bedroom floor and immediately tied to other aspects of Todd’s personality. Jackson pressed Stacy on the significance of Todd’s shoulder tattoo of a dragon wrapped around a gaping skull.
“It’s just a tattoo,” Stacy replied.
Not so, countered Tim Gregory, a prosecution witness with a degree in family counseling. He cited Todd’s interest in heavy metal and his posters of Led Zeppelin and Iron Maiden as evidence of his preoccupation with violence and death, cults and satanic activities. “In my opinion,” Gregory stated, “there is not much chance of any type of rehabilitation at all.” He admitted under cross-examination that he had never interviewed Todd or anyone associated with him. But he had gone goose hunting with the prosecutor John Jackson.
The final witness was Dr. James Grigson, a psychiatrist who had testified so often in capital punishment cases that he had earned the moniker “Dr. Death.” He called Willingham a “severe sociopath,” beyond the help of psychiatry, despite the fact that, like Gregory, he had never met him.
The next morning, the jury came back to hear final arguments. They retired to deliberate at 10:15 A.M. They returned at five minutes past noon. Taking the scientific proof together with the portrait of a death-obsessed, satanic sociopath beyond reclamation, the jury voted for a sentence of death.
Those who spoke later said they were unimpressed by Johnny Webb’s testimony, but they set great store in Manuel Vasquez. They didn’t like the fact that Todd Willingham didn’t take the stand and explain his own innocence. They also didn’t like it that he just stood outside as the fire burned and made no attempt to go back inside to rescue his children.
These issues shouldn’t matter in a determination of guilt. But, of course, they do. Regardless of the judge’s instructions, once the twelve individuals enter the deliberation room and close the door, it’s all up to them.
CHAPTER 5
BURNING QUESTIONS
Cameron Todd Willingham was packed off to death row in E1, the Ellis One Unit at the Texas State Penitentiary, near Huntsville. Like Roger Coleman, he continued to proclaim his innocence.
During that time, an extraordinary event took place at the institution. Ken Light, a well-known and respected documentary photographer, and Suzanne Donovan, a writer who previously had been director of the American Civil Liberties Union (ACLU) of Texas, were granted “unlimited access” to the Texas death row. The two had been teaching colleagues at the journalism school of the University of California, Berkeley. Ken made three trips, spending an aggregate of several weeks there. He made the photograph of Todd Willingham that appears in this book during one of those trips.
From my own experience with penitentiaries throughout the country, I know how difficult it is even for a law officer like me to get all the permissions and clearances to get in to talk to individual inmates. The fact that the toughest capital punishment state in the nation would allow in and give free reign to an ACLU official and writer and a guy with a camera is amazing. So are the results, published in a 1997 book entitled Texas Death Row. Their interest was not to make judgments as much as “put a human face on who these men are.”
Ken has seen a lot of the world’s tragedy and evil during his distinguished career, but the experience in the Texas death house clearly affected him.
“I worked from early in the morning until six or seven, when I was completely exhausted and would go back to my little hotel room and lock the door and just be completely freaked out,” the photographer stated.
“Probably for about a year and a half, I had nightmares from the experience, waking up from dreams, sweating, with images of the guys,” he added. “Of the guys I photographed, about sixty-five have been executed.” For some, Ken’s images were the last ever made of them.
The intensity was compounded by what was going on in his own life. “At the same time I was working on this project, my wife was pregnant, so that was an experience of going to the death house, coming back home to my wife, and realizing all these guys started out as babies. You begin to wonder how the hell did they end up here.”
As you might expect, he described the atmosphere at Ellis as “dark and gothic.” And while most of the inmates would not relate their crimes to him, the chronicler revealed, “Some of them did tell me their stories. And, of course, they’re very weird and twisted, with their ethical scale completely stuck. They’ll describe, ‘Yes, I killed that person, but I didn’t rob him, so I shouldn’t be here.’ ”
During his time at Ellis, Ken got friendly with Willingham’s bunkmate Danny, and through him got to know Todd. “There is something about that tattoo on his arm that is fairly impressive,” Light states, realizing it was that scary, dragon-wrapped skull image that helped convict him nearly as much as the scientific evidence. But Ken found him friendly and cooperative. “A regular guy.”
“Some people avoided me because they were afraid their pictures being made would jeopardize their appeals.”
Todd had no such qualms, never even talked about his case, and he and Danny allowed Ken in and out of their cell at will. And the image he captured, Ken feels, is representative of the man.
“It was unusual to find an inmate lying in bed in this stark cell in the middle of the afternoon, calmly reading a book. That was part of the interest in taking the picture.”
Basically, that was how Todd spent his twelve years on death row.
Like Roger Keith Coleman, Cameron Todd Willingham’s long string of appeals went nowhere. Stacy believed him, but she decided to put her life with him behind her and would not come to see him. Eventually, like Coleman’s wife, she filed for divorce.
Also, like Coleman, he eventually acquired a female friend on the outside. But instead of a girlfriend, she became his chief advocate. Elizabeth Gilbert was a teacher and writer from Houston, a divorced mother of two, who had acceded to an anti–capital punishment friend’s request that she become a pen pal to a prisoner on death row. Willingham turned out to be her assigned prisoner and she was impressed by how articulate he was. Either out of curiosity or just general human compassion, she agreed to his request that she visit him at Huntsville.
Their relationship developed. They continued to correspond and she came to visit him again. All the time, he continued to insist on his innocence. When she had agreed to the pen pal arrangement, it hadn’t occurred to Elizabeth that her prisoner might actually be innocent. With this possibility in mind, but also with a writer’s skepticism, she set about to investigate the case on her own.
She drove to Corsicana, went to the courthouse and sat down with the court records. She was surprised to note that a number of the eyewitness accounts of Todd’s behavior had shifted after the fire investigators’ report came out. That is to say, once they knew that the fire had been set intentionally, their interpretations suggested more “inappropriate” behavior than they had originally noticed.
This phenomenon is actually pretty well known to those of us in law enforcement. As David Grann noted in his excellent New Yorker article about the case, “Dozens of studies have shown that witnesses’ memories of events often change when they are supplied with new contextual information.”
I have often said that investigators, including me, can only be as good as the evidence we have to work with. If this issue of witnesses’ “evolving impressions” of the subject had been brought to us, I would have tried to make a few points. Most important is that the witnesses were not necessarily wrong in either case. We are always filtering our firsthand experience through a layer of interpretation. Therefore, I would have advised that it is very important to do complete interviews with each of these individuals, to probe their feelings about the crime and their beliefs about Todd Willingham, in order to set these observations in a meaningful context. Otherwise, they aren’t going to be very helpful or indicative.
As one telling example, Vicki Prater stated on the Frontline program that, given Todd’s history of beating up on Stacy, many in the community were unwilling to give him the benefit of the doubt when it came to killing his children. This statement showed a good deal of insight. Essentially, Vicki was profiling Todd and the community. This is just the kind of analysis investigators should use.
Elizabeth Gilbert talked to Todd’s parents, Gene and Eugenia, and then Stacy. None of them could conceive of Todd hurting his children. All three described his behavior as normal in the days before the fire—happy anticipation of visiting his parents in Oklahoma.
She also went to see Johnny Webb in prison in Iowa Park, Texas. He described his background of crime and drug abuse and his psychiatric diagnosis of mental impairment. Eventually he would recant his testimony about Willingham admitting to setting the fire. Then he would recant the recantation.
When David Grann interviewed Webb shortly before the publication of his article, he seemed not to remember one way or the other. After I pressed him, Grann wrote, he said, “It’s very possible I misunderstood what he said.”
Throughout all of her personal investigation, Elizabeth just couldn’t find a motive for Todd killing the three little girls. She found him becoming more emotionally dependent on her. As his situation grew more desperate, and he grew more despondent in prison, she was the only one besides his parents and court-appointed appeals lawyer, Walter Reaves, who came to see him.
The various state court levels continued to refuse Reaves’s motions, and after the U.S. Supreme Court refused in December 2003 to hear the case, Willingham’s execution by lethal injection was scheduled for Valentine’s Day—February 17, 2004.
It was at this point that the case took two dramatic turns—the most significant since the trial almost twelve years before. Both involved women in Todd Willingham’s life.
The first involved Stacy. For the first time in twelve years, she agreed to visit him in prison. The visit did not go well. She had reviewed the court record and fire investigator’s report and now believed Todd had set
the fire intentionally. For this reason, when he asked her, through the Plexiglas partition that separated them, to have him buried next to the three children, she refused. He was outraged that she denied this final request and that she had come around to believing he was guilty. They argued and shouted, and she stormed away from the prison.
The second turn of events involved Elizabeth Gilbert. Once she concluded that Todd’s lack of motive and apparent sincerity about his innocence didn’t square with the scientific evidence of arson, she started looking for experts to see if there might be any divergent theories about the fire. If there were other explanations, these might at least be devices to gain a stay from the scheduled execution.
One of the names she came across was Dr. Gerald Hurst in Austin, Texas. Todd’s cousin, Patricia Ann Cox, had seen him on television. After a great deal of effort, they reached him.
Hurst is an unusual, intellectually imposing, idiosyncratic fellow. A tall, thin man in his sixties, with large glasses, thinning gray hair and a full gray beard, Hurst was considered brilliant by his colleagues. He had earned a Ph.D. in chemistry from Cambridge. He became an expert on explosives and designed rockets and bombs for a number of American defense contractors. Deciding during the Vietnam war that he no longer felt comfortable in the destruction business, he went on to become an inventor of “civilian” products and various applications to make explosives less likely to detonate accidentally. His knowledge of all subjects relating to fire was so profound that he became a much sought-after expert witness in civil cases of possible insurance fraud. Within the industry, his judgment became the last word and he garnered such fans as John Lentini, an Atlanta-based, world-renowned fire investigator in his own right who would go on to write the landmark text Scientific Protocols for Fire Investigation.
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