Before the article in the New Yorker, “Trial by Fire” by David Grann, appeared last week, John Jackson, one of the prosecutors in the original trial of Todd Willingham, wrote a guest column in the Corsicana Sun laying out why he thought Willingham was guilty, despite the  “undeniably flawed” forensic evidence about the fire. Now, Grann has responded to Jackson’s arguments.

Excerpt from Grann’s rebuttal:

He writes that it has been “omitted” from reports on the Willingham case that Willingham had allegedly moved a refrigerator against the back door of the house. “Any escape or rescue route from the burning house was blocked by a refrigerator,” he says. But, as I detail in my story, I discovered during the course of my reporting that there were, in fact, two refrigerators in the house, and one of them was stationed by the back door. Both the police detective and assistant fire chief, who investigated the fire, told me that they had concluded that the fridge was not part of the arson plot. As the assistant fire chief, Douglas Fogg, put it to me, “It didn’t have nothing to do with the fire.” Even Jackson told me that he did not think the fridge was a “huge factor in the case.”

Jackson also alleges that the fire was “the third attempt by Todd Willingham to kill his children.” As I note in my story, there is evidence that Willingham hit his wife, even when she was pregnant, but there were no police reports or medical evidence indicating that Willingham had tried to abort or kill his children. And Willingham’s wife insisted during the trial and under interrogation that Willingham had not physically abused the children. She told police, “Our kids were spoiled rotten.”

Jackson further says that Willingham’s burns were so superficial that they seemed to have been “self-inflicted in an attempt to divert suspicion from himself.” During the trial, the fire investigator Manuel Vasquez speculated on this. But, as the noted fire scientist Craig Beyler writes in his recent report on the Willingham case for the Texas Forensic Science Commission (pdf), Vasquez never offers a rational basis for this or other conjectures; Beyler says that Vasquez’s method was more characteristic of “psychics.” Leading fire investigators who reviewed the case told me that Willingham’s first-degree and second-degree burns were consistent with being in a fire before the moment of “flashover”—that is, when everything in a room suddenly ignites. The Lime Street experiment, on which I go into great detail in my article, explains why what happened to Willingham was consistent with all the physical and scientific evidence.

Jackson argues that it is incriminating that Willingham did not suffer from severe carbon-monoxide poisoning. During the trial, Vasquez also suggested this, even though Vasquez had no medical expertise and did not meet with Willingham until about a week after the fire. As I note in my article, the Lime Street and other scientific experiments have proven that Vasquez’s notion of carbon-monoxide poisoning is no more than an old wives’ tale: before a room goes to flashover, levels of carbon monoxide outside the thermal cloud are relatively low.

Jackson also claims in his article that Willingham was offered a polygraph and refused. I do not know if this is true, though it may be. After Willingham was charged with murder, he stopped coöperating with authorities. (On death row, Willingham wrote to several legal organizations asking them if they could give him a polygraph so that he could prove his innocence.) But even if he refused to take a polygraph after he was arrested, polygraphs are notoriously unreliable, and are not admissible in a court of law. (I highly recommend Margaret Talbot’s piece on this subject, “Duped,” which appeared in The New Yorker, in 2007.) As a result, defense attorneys routinely do not let their clients take polygraphs. Ernest Willis, who I discuss in my piece, was also convicted of committing arson, in a case that was eerily similar to Willingham’s. He had taken a polygraph, and the results were interpreted by police and the prosecutor as a sign that he was guilty. Evidence later emerged, however, that he had not set the fire, and he was exonerated and released, after seventeen years on death row. The idea that a lie-detector test (or the refusal to take one) could be considered evidence cuts to the core of the problems in the Willingham case: a reliance on unreliable and unsound scientific techniques.

The other points that Jackson makes have to do with Willingham’s character and behavior. He reports that a witness overheard Willingham saying, beside his daughter’s coffin, “You’re not the one who was supposed to die.” In my article, I demonstrate that the eyewitness testimony concerning Willingham’s behavior grew increasingly damning once police suspected him of murder. Jackson also notes, as I point out in my article, that Willingham refused to accept the prosecution’s offer to plead guilty and take a life sentence. Jackson says Willingham almost had a physical confrontation with his lawyers over the offer, which, in his view, suggests that he was guilty.

But all these actions can just as easily be interpreted as evidence of Willingham’s innocence. If the arson investigators had concluded there was no scientific evidence that a crime had occurred—as the top fire investigators in the country have now determined—Willingham’s words at the funeral would surely be viewed as a sign that he was tormented by the fact that he had survived without saving his children. And his fury over the prosecution offer would have confirmed that Willingham would never, as he always insisted, admit to “something I didn’t do, especially killing my own kids.”

David Grann: The Prosecution Defends Itself: News Desk : The New Yorker

Where are the Democratic candidates challenging the incumbents on the Texas Court of Criminal Appeals who are running for re-election in 2010? The CCA allowed an innocent person to be executed – Todd Willingham. It is the court that one of its own current members says became a national laughingstock years before Sharon Keller said “we close at 5”. Keller, its presiding judge, is charged with incompetence and misconduct and could be removed from office.

The three incumbents on the CCA up for re-election in 2010 are: Lawrence Meyers, Michael Keasler and Cheryl Johnson.

Meyers made a laughable, dishonest claim that the CCA has a reputation for fairness in his re-election annoucement. “I am seeking re-election to the Court to continue to be an objective voice and ensure that we maintain our reputation for delivering fair and just opinions,” said Meyers in announcing his candidacy for re-election. Tell that to Todd Willingham, whose last appeal based on actual innocence was denied on the day he was executed, “We have reviewed the subsequent application for habeas relief and find that it does not meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, § 5 as a claim of newly discovered evidence of actual innocence.”

The Dallas Morning News blog said “try not laugh” at Meyers’ claim that the CCA has a reputation for fairness. Meyers deserves an opponent.

Michael Keasler is one of the most, far-right, conservative members of the CCA and also deserves an opponent. Grits for Breakfast has said, “There is no liberal wing on the Texas Court of Criminal Appeals. There’s a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller.”

Cheryl Johnson does not deserve an opponent. Johnson was the duty judge on call the day Keller said “we close at 5” when lawyers for a man set for execution wanted to submit an appeal after 5 pm. Keller violated the Execution-Day Procedures of her own court when she failed to inform Johnson about any communications from Richard’s lawyers. She testified for the prosecution in the trial against Sharon Keller, saying that she would have not said “we close at 5” like Keller did, but that she would have allowed lawyers for Michael Richard to submit their appeal instead of slamming the doors of justice closed. Johnson should probably be given a profile in courage award.

Currently there are no Democrats serving on the Court of Criminal Appeals, but we hope the Democrats find 2 strong candidates to run in 2010. It does not serve justice to have every member of any court to be all from the same political party. The Texas Court of Criminal Appeals has been all-Republican for more than a decade. It has become the “worst court in the state” (according to Texas Monthly), if not the entire U.S.

Democrats would have a chance to grab two seats on the CCA, if they find some quality candidates. Usually statewide judicial races are won by the same party that wins the governor’s race, but this could be the year that the Democrats could win a seat on the CCA no matter what the outcome of the gubernatorial race is because of the extremely poor reputation of the CCA.

The Corsicana Daily Sun, the newspaper in the city where the fire in the Todd Willingham case occurred, has published a second guest column rebutting the guest column by one of the former prosecutors in the Willingham case. The former prosecutor John Jackson, who is now a judge, made the embarrassingly ignorant claim in his column that despite the discredited arson, there was still enough evidence to convict Willingham. The first rebuttal came from Nina Morrison, an attorney at the Innocence Project, who wrote, “the truth is that all of the evidence that Jackson and his colleagues used to convict Willingham has been disproven”.

The second column, by Victor Steinbok, a lawyer and independent researcher,says:

I am very puzzled by Mr. Jackson’s column on the Cameron Todd Willingham’s case and by the Daily Sun’s willingness to print it. The column does not try to contradict the findings of the Texas Forensic Science Commission — it can’t. Mr. Jackson is presenting the impossible case that even if Mr. Willingham could not have been convicted of arson — as there was no evidence to support the theory that the fire was set — he still should have been convicted of murder and executed. This claim is like trying to convict someone of murder by firearm when there is absolutely no evidence that he has ever held a gun in his life or ever tried to procure one.

But Mr. Jackson does not stop with the claim alone. He cites seven “facts” in support of the conviction. Unsurprisingly, none of the “facts” have any bearing on the case, even if Mr. Jackson reports them accurately. Mr. Jackson is using his status in the community and in the legal profession to protect a conviction that should not stand.

The first claim may be the strongest. If indeed Mr. Willingham had attempted to kill his children twice before the fire, it may go to establish a pattern. But such pattern is only valid if there is actual evidence that the children were murdered — no arson, no murder. To make matters worse, Mr. Jackson “supports” this claim with a reference to “attemp[ing] to abort both pregnancies”. He further buttresses it by pointing out, in claim (5), that Mr. Willingham was “a serial wife abuser” of “violent nature” and prone to “vicious attacks on animals.”

But in his attempt to paint a “violent sociopath,” Mr. Jackson arrives at a contradiction — if Mr. Willingham was impulsive and violent, murder by arson — which requires premeditation and careful planning — would have been quite uncharacteristic. Mr. Jackson was a prosecutor on the case, not an expert forensic psychologist. The conclusions of claims (1) and (5) are irrelevant and nonsensical.

In claims (2) and (3), Mr. Jackson disparages Mr. Willingham’s initial claim that he attempted to rescue his children — a claim that was collaborated by witnesses who were first on the scene. In fact, Mr. Jackson baselessly attacks the credibility of one of the nation’s foremost experts, Dr. Craig Beyler, but mockingly referring to “well-established burns.” In fact, according to a Dallas Morning News article, Dr. Beyler wrote that “evidence of the burns Willingham suffered were well-documented, including scorch marks on his hands, singed hair on his chest and head, and a burn on his shoulder.” Dr. Beyler, along with eight other top forensic scientists in the nation recruited to investigate the case came to the conclusion that there was no evidence of arson.

But even if we except that the evidence in (2) and (3) suggests, as some neighbors had claimed, that Mr. Willingham did not sufficiently attempt to rescue his children from the raging fire, this would merely paint him as a less foolishly heroic figure than he tried to portray himself initially. This may be evidence of humiliation and despondency over the inability to save the children, but not of guilt. There can be no doubt that Mr. Willingham attempted to rush into the house after the firefighters arrived, which required first a neighbor, then a firefighter to restrain him.

Claim (4) concerns the use of a polygraph. Polygraph examination results or a refusal to submit to such may not be used as evidence of guilt in any US courtroom. The claim of a vulgar and insulting outburst that accompanied Mr. Willingham’s refusal is the worst kind of hearsay.

The same is true of claim (6). We have no idea why Mr. Willingham might have said what is claimed, what he actually said or if he said it at all. And, again, if there is no arson, there is no reason to suspect anything nefarious behind the statement even if he did make it.

Finally, claim (7) — the a refrigerator was blocking the rear exit — has no bearing on the murder conviction. If anything, it may suggest a path to prosecution on negligence — one never taken or considered. But does Mr. Jackson actually suggest that the refrigerator was placed at the back door specifically in order to block the exit path for the one- and two-year old children? According to Willingham’s testimony, the children were behind a far more benign child-proof barrier and could not have reached the rear exit even had they tried. Negligently creating a hazard that blocks an escape route is not the same as setting fire to the house.

It is also telling that Mr. Jackson did not use the alleged jail-house confession to support his case — after he cited it in a number of interviews with other publications, it has been pointed out that the general reliability of jail-house snitches is less than stellar. Given the circumstances and the character of the witness, the reliability of the testimony, in this case, is at the lower end.

In his column, Mr. Jackson wrote that Mr. Willingham was “charged as a multiple child murder, and not an arson-murder to achieve capital status.” But this is meaningless. The method of killing of which Mr. Willingham was convicted was arson. It does not matter if arson was not the aggravating factor in promoting the charge to capital status. If there is no arson, there cannot be a murder. And the TFSC finding is unambiguous — there is absolutely no evidence of arson at the Willingham home. No one is claiming that we know with certainty that Mr. Willingham was innocent — but we do know that he should not have been convicted for causing death through arson…

The AP reports that a person who was on Texas Death Row has been released and the charges dropped:

An inmate once on death row in Texas was a free man Thursday, nine months after his conviction was overturned in the 1985 bombing deaths of three people on Thanksgiving.

The Texas attorney general’s office dropped the charges against Michael Roy Toney, 43, on Wednesday and that night he was released from the Tarrant County Jail in Fort Worth, officials said. His release came a day before the attorney general had to declare whether the state would again seek the death penalty in the case.

State prosecutor Adrienne McFarland said in a dismissal motion that there was not enough time to complete an independent investigation before the Thursday deadline. The state can refile charges against Toney in the killings if the investigation warrants it.

In a statement released Thursday through his attorney, Toney thanked his friends, family and lawyers for their support.

“I have said all along that I was innocent of these charges and I know that when the Attorney General reviews the evidence, it will show that I am indeed innocent,” he said.

Toney was convicted of a 1985 Thanksgiving night bombing. Fifteen-year-old Angela Blount found a suitcase on the porch, took it inside and opened it. A bomb exploded, killing her; her father, Joe Blount, 44; and her cousin Michael Columbus, 18. Her mother and 14-year-old brother survived.

The Texas Court of Criminal Appeals ruled in December that the lead prosecutor withheld evidence that could have helped Toney during his 1999 trial, an assertion that the district attorney’s office never disputed.

In January, the District Attorney’s office recused itself from the case “to avoid the appearance of impropriety,” said District Attorney Joe Shannon.

The attorney general’s office then took over and reopened an investigation.

Toney remained in jail until Wednesday because charges were still pending. He also had to post $25,000 bail on an unrelated charge out of Polk County because he allegedly had a cell phone on death row.

Toney’s attorney Colleen Kennedy said in a statement that her client is “grateful … that while the investigation is under way, the Attorney General’s office has agreed to grant Mr. Toney his freedom.”

“The extensive post-conviction investigations undertaken by Mr. Toney’s defense team have produced overwhelming evidence that he was both wrongfully convicted and wrongly sentenced to death in this case,” Kennedy said.

Link to interview.