NIJ Conference 2010
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NIJ Conference 2010
Mary Lou Leary: Thank you, and welcome everybody. Welcome to our plenary panel of “Rising From the Ashes — What We Have Learned From the Cameron Todd Willingham Case.“
We'll be starting the conference this morning with what will be an overarching theme for the next few days, and it's also a top priority for this administration; that is, a renewed focus on science.
This panel this morning will feature more than just a really fascinating case study about the use of science in criminal justice, but, in fact, the case serves as really kind of a microcosm of many of the most challenging issues facing our criminal justice system today — the use of forensic science, crime scene investigation, eyewitness testimony, indigent defense, among others.
The primary focus of this panel this morning will be on the use of forensic science. Forensics provides an incredibly valuable tool for criminal justice professionals. Using science in general and forensics in particular, we're learning more, and we are determined to put that knowledge to better use.
To date, the use of forensics has resulted in 254 exonerations nationwide. All of those cases involve DNA, but we have to remember forensics is much, much larger than just DNA analysis. It's a very complex and varied field with experts ranging from firearms examiners to toxicologists to arson scientists. Forensics gives us the ability not only to solve our current cases but, very importantly, to learn from old cases.
Looking back in this case that we will be talking about today gives us a heightened sense of how far we have come and, I think, a clear vision of where we need to go.
On the panel today, we're very lucky. We have a journalist, an arson expert, a neuroscientist and an attorney. When I was prosecuting cases in the District of Columbia, I would love to have had a little panel like that working with me on every single case. But, in their own ways, each of them is applying his knowledge to improve the criminal justice system. They are helping practitioners and the public by providing a detailed analysis of a single case that is filled with lessons for all of us.
I was telling a couple of the panelists this morning that when I was early on in my years as a prosecutor, we had a couple arson cases in my unit, and I had to tell them, quite honestly, we had no idea what we were doing with that evidence and what that evidence really meant. So it was very, very interesting to me to learn about this case.
These experts are going to take us into the heart of the fire, and they will dispel faulty, longstanding beliefs about the evidence. These experts are helping police officers and detectives understand their own unconscious biases and helping to counteract them, and they serve as a firsthand example of the importance of revisiting old cases.
I have no doubt that today's discussion will leave you with a deep sense of the importance of using the best science and the best practices to ensure that justice is always served.
The Department of Justice is committed to working with all of you to build a criminal justice system that has no room for guesswork. The policies, the practices and the tools that we use have to be based on sound science and comprehensive research, and they must be applied fairly and used carefully.
And now, to help us learn from this case, I'd like to introduce our panelists. David Grann is a staff writer with The New Yorker and his highly acclaimed article, “Trial by Fire,” an in-depth look at the questions surrounding the Willingham case, continues to attract the national spotlight. Using letters, diaries, interviews with relatives, associates and friends, the article catalogs this case from initial investigation to trial and from the first appeal to the final plea. It's a gripping article. I encourage you to read it.
He is also the author of a New York Times bestseller, The Lost City of Z, and a new collection of true stories, The Devil and Sherlock Holmes, which includes an updated version of “Trial by Fire.” Mr. Grann has won countless awards, and he is an accomplished crime writer and an investigative reporter. You can watch him as you see him talking to people around the room. If he hears something really interesting, he goes like this.
Leary: He is looking for new material all the time.
One of the many experts mentioned in Mr. Grann's article, John Lentini, is the president and principal investigator with Scientific Fire Analysis. He is an expert on the science of fire. Mr. Lentini has conducted more than 2,000 crime fire scene inspections and has served as an expert witness on more than 200 occasions. He is working tirelessly to break down the pervasive mythological indicators that are the hallmark of unscientific fire investigation that, unfortunately, continues to this day. His book, Science Protocols for Fire Investigation, is one of the foremost texts in this field. He works with both plaintiffs and defendants on products liability and arson cases. He brings science and common sense to the courtroom.
Dr. Itiel Dror is a cognitive neuroscientist at the University College of London. He is the principal researcher and consultant with Cognitive Consultants International. His research focuses on the detailed inner workings of the human brain, how we process information, how we form perceptions and judgments, how we make decisions. Most significantly, he works to make the sometimes abstract and always complex science of the human mind accessible for practitioners in the field. He has a long list of current projects, including two studies that are funded by NIJ to investigate expert error and cognitive difficulty and to assess the impact of technological contextual information. He is very well-known in the field as well for his work on fingerprint identification with really groundbreaking research.
Michael Logan Ware is the Chief of the Special Fields Bureau in the Dallas County District Attorney's Office. He joined D.A. Craig Watkins' office in July 2007, and he leads the Conviction Integrity Unit, better known as the CIU. CIU is the first of its kind in this country. In addition to overseeing the review of more than 400 cases involving DNA evidence, CIU is investigating other cases where evidence points to new or additional perpetrators, and, in fact, that unit has resulted in the exoneration of two defendants in capital murder cases that were not DNA cases. Ware's background in criminal defense and his work with the Wesleyan Innocence Project and the Innocence Project of Texas prepared him for this exceptional opportunity to serve as a defense attorney in a prosecutor's office.
Following remarks by each of our panel members, we will accept questions from the audience.
And now, I'd like to invite Mr. Grann to start our presentations.
David Grann: I want to thank you for that lovely introduction, and it's a great honor to be on this very illustrious panel. And these are really the folks, the experts, who you want to hear from today. So what I'd like to do is simply to summarize the case and give you all the context, so that you can follow the symposium.
Now, inevitably, because of time constraints, I'm going to have to boil down the case and only focus on some of the main tenets.
On December 23, 1991, a fire broke out in a small, one-story, wood-frame structure in a working class neighborhood of Corsicana in northeast Texas. A neighbor, seeing smoke, ran down the street toward the house, and that's when she saw Cameron Todd Willingham, standing on his front porch, his bare chest blackened with smoke, his hair and eyelids singed. He was screaming, “My babies are burning up.”
His three children, twins who were 1-year-old girls, and his other daughter, Amber, who was 2, were trapped inside. Moments later, the five windows of the children's room exploded, and “flames just blew out,” as one witness put it. Within minutes, the firemen, first firemen had arrived, and Willingham approached them screaming that his children were trapped in the bedroom where the flames were thickest.
Todd Willingham, looking on, appeared to grow more hysterical, and a police chaplain led him to the back of a fire truck and tried to calm him down. Willingham explained that his wife Stacy had gone out earlier that morning, and that he had been jolted from sleep by his daughter Amber screaming “Daddy, daddy.” “My little girl was trying to wake me up and tell me about the fire,” Willingham said, adding, “I couldn't get my babies out.”
While he was talking, a fireman emerged from the house cradling Amber, and as she was given CPR, Willingham, who was 23 years old and powerfully built, suddenly stormed toward her and then ran toward the house where the babies were. He had to be physically restrained by the police chaplain and others, giving the chaplain a black eye in the process.
He was taken to the hospital, where he then learned that his three children had all perished in the fire. According to the autopsy report, Amber, who was found in the master bedroom, had died of smoke inhalation, and the twins, who were in the children's bedroom, had also died of smoke inhalation.
Now, several days later, fire investigators fanned out to the house, trying to pinpoint the source of the blaze. One of the fire investigators was a deputy fire marshal named Manuel Vasquez.
And I know John is really the expert in this, and he is going to give a much more detailed explanation of the fire evidence, but I want to give you at least some context because it is so central to the case we are talking about today.
Among the indicators that the fire investigators cited were low burning along the walls and on the floor and under the beds. The investigators had been taught that fire burns down, not up, and that if you find this kind of low burning, it is an indication that some type of liquid accelerant or charcoal lighter fluid or gasoline or something had been poured on the floor. The fire investigators also said they had found what were these irregular char marks that looked like pour patterns or puddle configurations, and, again, they had been taught that when you pour some type of liquid accelerant on the floor, it burns deeper in these spots, leaving these irregular char marks.
They also found something called “crazed glass,” which is a spider web intricate pattern in the glass, which they believe was caused from rapid heating. What they said, “The fire burned too hot and too fast,” meaning they believe that someone had used some kind of liquid accelerant.
They counted what they believe are 20 indicators of arson, more than 20 indicators of arson, and they then concluded that the fire was intentionally set and was, in fact, a triple homicide. Cameron Todd Willingham, who was the only person known to be in the house at the time other than the victims, immediately became the prime suspect.
Police and fire investigators then canvassed the neighborhood, interviewing witnesses. Several, like the police chaplain, initially portrayed Willingham as devastated by the fire and the loss of his children. Yet, over time, witnesses offered more damning statements. One neighbor said that she had not seen Willingham try to enter the house until after the authorities arrived, as if he were putting on some kind of show.
Now the police, meanwhile, began to piece together a disturbing profile of Cameron Todd Willingham. Even though he was never arrested for any serious crimes, he was a rough-and-tumble character, dropped out of high school, sniffed glue as a kid. He had been arrested for driving under the influence, stealing a bicycle, shoplifting. He drank too much Jack Daniels and sometimes hit his wife, even when she was pregnant.
Although there was no clear motive for the crime, for setting the fire, the authorities concluded that Willingham was a man without a conscience whose serial crimes had climaxed almost inexorably in murder.
John Jackson, who was then the assistant district attorney in Corsicana, was assigned to prosecute the case, and he later told The Dallas Morning News that he considered Willingham to be, quote, “an utterly sociopathic individual” who deemed his children, quote, “an impediment to his lifestyle.”
On the night of January 8, 1992, two weeks after the fire, Willingham was charged with murder. Not long after Willingham's arrest, authorities received a message from an inmate who was in the jail with him. He said that Willingham had confessed to him when he was in jail saying that he had started the fire. The case against Cameron Todd Willingham was now considered airtight.
Now, just before trial, the prosecutor offered Willingham a deal that if he pled guilty to setting the fire and to murder, he would receive a life sentence and be spared the death penalty.
Willingham's two state-appointed lawyers in the case believed he should accept the offer. They looked at the fire evidence, and they believe there was no doubt that Willingham had set the fire. But Willingham refused to take the plea, saying, “I ain't going to plead to something I didn't do, especially killing my own kids.” His refusal and his implacableness only confirmed to the prosecutor and to even his own defense attorneys that he was an unrepented killer.
When the case went to trial, the prosecution brought several witnesses, including the jailhouse informant, Johnny Webb, as well as a few neighbor witnesses, but the crux of the case remained the fire evidence, the scientific fire evidence from the investigators and the so-called “20 indicators of arson.”
Willingham only had one witness on his defense, a babysitter who had not even been present during the fire, and it took the jury barely an hour to reach the decision that he was guilty unanimously. He was sentenced to die, and the as the deputy state marshal in the case, Manuel Vasquez said, as he put it, “A fire does not lie.”
Now, in 1999, after Willingham had been on death row for seven years, he began to correspond with a 47-year-old French teacher and playwright from Houston named Elizabeth Gilbert. Gilbert assumed that he was guilty, but over time she became curious about the case, and so one day she drove down to the courthouse in Corsicana and pulled the court records. And, as she began to go through them, she was struck by several contradictions in eyewitness testimony. While some people said he hadn't tried to go into the fire, get back into the house, other people said he had, he had broken a window, some people described having to physically restrain him.
And, beyond that contradiction, she noticed something else that was very unusual about the eyewitness testimony, and Itiel, who has really done pioneering research in this field, will really illuminate this, but essentially, the eyewitness testimony began to grow more damning over time. Once the eyewitnesses were led to believe or suspected or after Willingham had been arrested, their testimony began to grow damning and began to shift. And dozens of studies have shown how witnesses' memories will change if they are given new and different contextual information or contextual bias, and again, I will let Itiel explain that much more when he talks.
There was something else that Elizabeth Gilbert found startling, equally startling when she looked through the records, and that was the lack of a motive. Why would a man, a father, suddenly wake up one morning and light his house on fire, killing his three children? Willingham's wife, Stacy, said though he hit her, he had never abused the children and had never hurt them.
David Grann: And Gilbert, in all her dealings with Willingham, he had never come across to her as somehow sociopathic, and in fact, many people who knew Willingham from his past, including law enforcement officials, his previous parole officer, and a judge who had sent him to jail, believed he was actually a messed-up-but-pretty-good kid and that he would never have done something so horrific as kill his own children.
And, in fact, the only evidence that Willingham was a sociopath was presented by two experts at the trial who had never actually met Willingham and never interviewed him. One of them was a family counseling psychologist who actually had no background and never published any research or done any scientific studies in sociopathic research. He suggested that Willingham's interest in rock music and his rock posters in the house, including Led Zeppelin and Iron Maiden, suggested that he was into satanic rituals.
Willingham's tattoos were also presented as evidence that he was sociopathic and somehow abnormal. At one point, the wife was asked about these on the stand during the penalty phase, and she said, “They are just tattoos.” So he just has interest in skulls because he had a skull on a tattoo? She said, “Yeah, they're just tattoos.”
The other psychiatric expert who testified was very famous in Texas at the time. He was known as “Dr. Death” because he had testified in so many death penalty cases. His name was Grigson. He had testified that another inmate who was on death row was a sociopath. That same inmate was later exonerated and released from prison, and three years after Grigson testified in the Willingham case, he was expelled from the Psychiatric Association nationwide and in Texas for violating its ethics.
Now, Elizabeth Gilbert began to have more and more concerns about the case, and so she began to track down witnesses. And one of the witnesses she tracked down in the case was the jailhouse informant, Johnny Webb. Now, when she went to see him, Johnny Webb was extremely paranoid, and as he had testified once, he suffered from mental impairment. He had trouble remembering things. He suffered from multiple psychological disorders. He said that he suffered from post-traumatic stress disorder. He told her what he had told the prosecutors and testified to, which is that while he was walking by Willingham's cell, Willingham had spoke to him through a food slot, broke down and eventually confessed. But Gilbert thought that this seemed very odd because Willingham had always maintained his innocence, and it seemed very odd that he would suddenly confess to somebody he didn't share a cell with and didn't even know, as Webb himself admitted. The confession also took place by a speaker where all the guards could have heard it. It seemed like a very unlikely place for a confession. Not long after Gilbert left, actually, Webb sent a letter to the prosecutor recanting his testimony, but he then later recanted his recantation.
Now, when I went to visit Webb, he was about as jumpy as a cat on a rocking chair, extremely paranoid, clearly very psychologically unstable. He told me that perhaps he had misunderstood what Willingham said, and then he looked at me and asked me, “When does the statute of limitations on perjury expire?”
Grann: Now, by January 2004, Willingham had exhausted all of his appeals and was scheduled to be executed in February of that year. Now, as the execution date approached, Gilbert and a relative of Willingham contacted Dr. Gerald Hurst, an acclaimed scientist and fire investigator, who agreed to review all the evidence of arson gathered in Willingham's case, which was still the bulk of the case against him and was really the crux of his prosecution. Hurst had received a Ph.D. in chemistry from the University of Cambridge. He was an acclaimed scientist who had experimented in the properties of fire for decades, including working on classified weapons projects for the U.S. government.
In the early 1990s, he began to be consulted in arson cases as a fire scientist, and he was stunned by the lack of training of many arson investigators. It turned out that many arson investigators, especially back then, only had high school educations. They would only take a few-hour course, not even always, but often they would just take a 30- or 40-hour course to be certified as arson investigators, and really what they learned — and, again, John will talk much more about this -the bulk of what they learned was wisdom passed down from old-timers in the field, and yet this wisdom and theories were often not scientifically valid or not been scientifically tested.
And when Hurst began to look at the Willingham case, he was stunned by what he found. Again, I am going to really let John Lentini explain the science, but just to give you a little bit of context, a few of these indicators, the so-called “spider web intricate pattern” on the glass that they found that they said meant the fire burned too hot and too fast and that a liquid accelerant had been used, well, this has nothing to do with arson. It simply has to do with thermal shock from rapid cooling. When firemen often set hoses against the glass, that's what causes this to happen, not from rapid heating.
Also, Hurst discovered that throughout the case, the original investigators did not appear to understand basic fire behavior, including one of the most important phenomenons called “flashover.” Witnesses had seen the Willingham's children's room explode with flames, the window shattering and flames shooting out of it. What had happened is the fire had gone to flashover, and again, I'll let John explain this, but what it essentially means is that thermal gases had built up in the room causing everything eventually to ignite. When this happens, scientific studies have shown you get low burning, you get these so-called “pour patterns” and puddle configurations. They can simply be the product of a natural fire, and they have absolutely nothing to do with arson.
By the time Hurst had finished his investigation, he concluded that every one of the 20 indicators of arson were based on old wives' tales and junk science. Fearing that a man was wrongfully convicted or innocent was about to be executed, he sent his report off to the clemency board and to the governor of Texas, and as you know, the clemency system is really supposed to be the fail-safe in our judicial system to ensure that the worst thing never happens, that an innocent person is executed for a crime he did not commit.
Willingham was hopeful. Hurst's findings in the past had helped release many prisoners. In fact, several months after he looked at Willingham's case, he looked at another case by a man named Ernest Willis who was on death row with Willingham, and the case was eerily similar with puddle configurations, pour patterns, all these same indicators. In that case, Hurst again concluded that there was no scientific basis to conclude that the fire was intentionally set. The prosecutor in that case released Willis, and he was exonerated as a free man. But, in Willingham's case, based on almost virtually the exact same evidence, the clemency board rejected his appeal for clemency. The governor turned down his stay. He was sent to the execution chamber, and he was executed.
Before he died, he pleaded with his parents to never stop trying to fight to vindicate him, and several months later the Chicago Tribune asked several fire investigators, including John Lentini, to review the fire evidence in the case. They concur with Hurst's results and findings.
Nearly two years later, the Innocence Project commissioned an independent panel with John Lentini again and several of the leading fire investigators in this country to review the case, and they, once more, concluded that there was no scientific basis whatsoever to conclude that the fire was intentionally set.
In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed are the Willingham case and the Willis case, and the fire expert, Craig Beyler, was asked by the commission to review all the evidence in the fire case. He concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez the fire marshal's approach seemed to deny, quote, “rational reasoning” and was more “characteristic of mystics or psychics.” Just before Willingham received the lethal injection, he said, “I am an innocent man convicted of a crime I did not commit.”
John Lentini: This is a hard case to talk about in 15 minutes. It is going to go a little fast. Sorry about that. That is the time they gave us.
What I've got is a tale of two fires with very similar evidence and very different outcomes. What we had as evidence of arson in both of these cases was low burning, multiple origins and pour patterns. This is all things that fire investigators can determine by visual observation, or they think they can.
The case I want to talk about first is Ernest Ray Willis, and he was sort of the control case when I was approached first by Maury Possley and then by Barry Scheck to look at these two cases. Willis was a guy who the system worked, finally, after 18 years. I love it when they say, “The system worked.”
The fire was in '86. He was tried and sentenced to die in '87. In 2000, I don't know why it took them 14 years to learn, but the judge learned that Willis had been drugged throughout his trial. He had back pain, and they gave him this antipsychotic medication. He was totally unable to help with his defense during the trial. He just sort of sat there impassively.
So, in closing arguments, the D.A. said, “Look at this remorseless killer just sitting here impassively.” There also was this “no future dangerousness” report that somehow didn't find its way into the defense's hands.
The trial judge actually recommended that the sentence be overturned, and that doesn't happen very often, but that doesn't cut a lot of ice in Texas. It went to the Texas Court of Criminal Appeals, also known as the “Texas court of criminal affirmation,” and they said, “No. Kill the guy.”
Lentini: Fortunately, there's the federal courts, and the judge in west Texas overturned the conviction, and they gave the state three months to retry him. And the D.A., Ori White, was concerned about it. He asked Dr. Hurst to review it, and Dr. Hurst said, “This is a crock,” and so the D.A. let him go. And Willis was freed on October 6 with 100 dollars and 10 days worth of medication.
But Texas, in some ways a backward state and some ways very forward thinking, has one of the most generous exoneration compensation programs in the country, and so Willis is now collecting about $80,000 a year. And, after 17 years on death row, he was a happy man.
Well, sometimes it doesn't work out that way, and Cameron Todd Willingham was a guy that was not the lucky one. The fire was in December of '91. He was sentenced to die a year later, exhausted all of his appeals. The governor had a report from Dr. Hurst which he chose not to read. Now, remember in the Willis case, it was the prosecutor who actually read Dr. Hurst's report. Willingham was executed on February 17, 2004.
I first heard about the case when Maury Possley, the crime reporter for the Chicago Tribune, called, asked me to look at it, and gave me the 20 indicators, gave me the transcript from the trial, and I was pretty troubled by what had happened.
I was later asked by Barry Scheck to head up a committee to review the work, and I corralled three experts and a lawyer to help me with that work, and we reviewed all of the expert testimony, all of the photographs, the videotapes, and concluded that it was a crock.
We submitted our report to the Texas Forensic Science Commission in May of '06. In August of '08, after they — they were created in '05, but, in a very clever way of getting around their obligations, the legislature didn't fund them. So they couldn't actually meet. They existed. The first set of commissioner's commissions actually expired before they got to meet. So they decided in August of '08, two and a half years after our report, to investigate. In December of '08, they hired Dr. Craig Beyler, one of the top guys on the planet in fire science, and his report came out August 25, '09, about a week before David's article, “Trial by Fire,” came out.
The Forensic Science Commission was scheduled to hear testimony from Dr. Beyler on October 2, but, on September 30 of '09, the governor dismissed three members of the Forensic Science Commission. Just routine, don't you know, wasn't a cover-up or anything. It resonated. There were editorials in The New York Times and the L.A. Times and Chicago Tribune. It got a lot of publicity. I think Governor Perry was hoping things would quiet down, but it made it very loud for a while. But it has since disappeared into sort of a political wasteland. But that's politics.
I want to talk about the science, and the first thing I want to do is give you guys a primer on compartment fires. These are fires indoors. Everybody thinks they know something about fires. Everybody knows about convection; heat rises. It's way more complicated than that.
Fire dynamics rule number one, fires behave differently when they're inside structures.
Rule number two, heat rises but only until it gets to the ceiling. It is going to stop there.
Lentini: Yeah, it sounds funny, but you would be amazed at the number of fire investigators that get on the witness stand, and they talk about this V-pattern, how heat rises up. And if it burns the floor, well, it must have had help.
Rule number three, once a room becomes fully involved, accurate visual interpretation of post-fire artifacts becomes difficult, if not impossible.
Now, we've known this for some time, since the mid '80s, but this is fire scientists and fire engineers, who didn't talk a lot to fire investigators, and they are different communities. As David mentioned, they are mostly just high school graduates. They are making complicated decisions about chemistry and physics, and they haven't had any chemistry or physics since high school.
This is a sketch of how fire progresses. This is called a “free-burning stage,” looks like a regular fire. The heat rises, makes a V-shaped pattern, but it forms a gas layer at the ceiling, and, as the fire burns, that gas layer gets thicker and it gets hotter. So you are putting both smoke, mass and energy into that hot gas layer.
Now, what do you know, it is a big black body at the ceiling. It radiates it every direction, including down, and so, at this point, you've got heat coming downward.
And then flashover occurs. When the temperature of that hot gas layer reaches about 1,200 degrees Fahrenheit or when the heat flux on the floor gets to about 20 kilowatts per square meter, everything, every exposed surface in the room, ignites and you can get burning underneath chairs. You can get more burning underneath than on top because it is closer to the carpet.
And I know these sketches have been just fascinating for you. This is a video that every juror, every judge, everyone involved in a fire litigation should see.
[Video showing a chair catching fire after a cigarette is dropped on it]: This chair is stuffed with plastic foam. It has the fuel potential of 50,000 candles and no mechanism to control the release. The steady heat of a cigarette accidentally dropped between the cushions can create a disaster. Initially, the burning cigarette creates a smoldering fire, which breaks down the foam stuffing into vaporous fuel. When there's enough heat and oxygen, it starts to flame. More heat produces more fuel, and the fire accelerates rapidly. Smoke and other products of the fire, including unburnt fuel, collect beneath the ceiling. Within three minutes, the temperature at the ceiling reaches 1,000 degrees, heating the contents of the entire room near the point of ignition. The carpet and other furnishings start to break down into vaporous fuels. Then, within seconds, in a process called “flashover,” everything in the room erupts into flame. No life survives flashover. After all the oxygen in the room is consumed, a pulsing back draft sucks in air from the outside, depletes it in a surge of burning, then careens in more. All this took place in less than four minutes and started with a smoldering cigarette.
John Lentini: Four minutes. If your couch is on fire, get out of the house, seriously. It's incredible. I have lit these things, and it is just incredible how quickly a room can go to flashover.
And, unfortunately, when they made that film, they didn't go look at the floor afterwards, but I've done some tests and went and looked at the floor afterwards, and you know what, it looks like somebody poured gasoline all over the floor. And, when I first learned that, I was really taken aback because I had been going out for 10 years looking at floors, and, “that looks like gasoline on the floor.” Now, I never did call them “arsons” unless the laboratory came back positive, and I ran the laboratory, and I trusted my laboratory, but there's a lot of people that don't trust the laboratories.
In most of these cases, the fire investigators, particularly a guy like Vasquez, was working back in the '70s when laboratories put forward a lot of false negatives in arson cases. Now, they put forward false positives because they've gotten so sensitive. But, back in the day, we were not very sensitive.
This is Vasquez, “The fire tells the story. I am just the interpreter. I am looking at the fire, interpreting the fire. That's what I know. That's what I do best. And a fire does not lie. It tells me the truth.” Well, you know what, you can misinterpret what it tells you, and he misinterpreted like crazy.
The first incendiary indicator is auto-ventilation. When you saw that window break out, that was auto-ventilation. It happens all the time. And, if he thought that auto-ventilation was a sign of arson, that might explain why most every fire he looked at, he called “arson.”
Here, he says wood fire does not exceed 800 degrees. Well, you know what, wood and gasoline burn at the same temperature. You got a higher heat release rate from gasoline. Well, when a blacksmith wants to increase the temperature of his fire, he does not change the nature of the fuel. He blows air on it. So he's got this, he saw a melted aluminum threshold and he says that's proof of arson.
And then he's got crazed glass, the pieces of the broken window glass to the northeast bedroom disclose a crazed spider webbing condition. This condition is an indicator that a fire burned fast and hot. It's not. It's absolutely not. It's a myth. I knew it was a myth the first time I heard it because I used to craze glass when I would screw up a chemistry experiment and put water on it to try and cool it off quickly. But it was accepted all over the place. People cited this book from the National, by god, Bureau of Standards that said crazed glass indicates rapid heating. Well, when the National Bureau of Standards says something, most scientists say, “It must be true. They wouldn't print it if it wasn't true.” They codified a half-a-dozen myths in this book, and this book got quoted throughout the '80s and the '90s, even, in textbooks because, when the National Bureau of Standards says it, everybody figures it is a good reference.
They had a lot of input from the National Fire Academy where most of these guys got taught. This book was one of the leading texts in 1991, and it said that crazed glass indicates rapid heating.
Here's some crazed glass. I wrote my initials in that crazed glass with a wet Q-tip, and then I sprayed the lower left corner with water. I can make glass craze uniformly just by getting it hot, whether fast or slow, and spraying water on it. But that's one of the things that convicted Todd Willingham.
Now, you can, once in a while, rarely, look at a pattern on a floor and say that it's caused by a flammable liquid. This is one of those times. But even in this case, I was able to see when I could smell it. I could smell the mineral spirits and tested it when I got to my laboratory.
This was a test fire, looks like a pour pattern. In fact, I can illustrate it with PowerPoint. I can draw the edges, so that the jury can see. They can see the hole burned in the floor. Not a drop of accelerant, not a drop of accelerant, that's a natural pattern there.
I call it the “myth that will not die.” People today say they can look at the floor and tell that it's a flammable liquid pour pattern, even once the room has gone beyond flashover to full room involvement.
The question that really needs to be asked with a pattern like this is why didn't it burn on the sides? And the reason it didn't burn on the sides is the floor protected it. There was something on the floor protecting it from the heat of the flashover.
Here is a puddle pattern. There was an old couple down in Florida, got denied their insurance claim because a pattern like this appeared on their floor. This is not a liquid pour pattern. This is caused by a cardboard box burning on the floor.
A guy in Arizona did eight years before the judge was clued in to the fact that flashover can cause patterns like this, but look at the right angles there. I mean, the question shouldn't be, “Why did the floor burn?”, but “Why didn't those areas of the floor burn?”
This is a famous pour pattern from the Lime Street fire, again, a flashover fire, protection in some places, exposure in others, causing that pattern.
This is the pattern from the Willingham case, and this is what his lawyer looked at and said, “Oh, looks like a flammable liquid pour.” In fact, his lawyer actually went out and bought some carpet, poured gasoline on it, and lit it on fire, and it looked like that. So he said, “Hmm, this must be a real arson fire.”
This is more Willingham patterns. What this is is a burnt floor. It means nothing. But the fire marshal told the jury that it meant that there was flammable liquid burning on the floor.
Well, the science is different now. This is a Texas fire marshal talking to the Chicago Tribune in 2004. “At the time of the Willingham fire, we were still testifying to things that weren't accurate or that aren't accurate today. They were true then, but they aren't now,” as if the laws of physics have changed.
Lentini: I'm sure he meant to say something else, but I love that quote.
But it wasn't just the fire, folks. It wasn't just the bad science with the fires. This is what they used to get him sentenced to die. Posters. This is from that psychologist. “There is a hooded skull with wings and a hatchet,” shows that he is a monster. “All of these are in fire. Depicting it reminds me of something like hell, and there, a Led Zeppelin picture of a falling angel, and there's association many times with cultive-type activities, a focus on death and dying. Many times individuals have a lot of this type of art have an interest in satanic-type activities.” You know, I could see if it were just Iron Maiden, but Led Zeppelin?
Lentini: Really, what about “Stairway to Heaven”?
And then we have Dr. Death comes in, and he said, “He's an extremely severe sociopath, no pill or treatment would help him.” And then, as David mentioned, he got kicked out of the American Psychiatric Association for making diagnoses of people whom he had never met.
Now, my question is, who puts this stuff into evidence? Who does that? There's only one word to describe it.
Lentini: Forgive the foul language, but that's the only word I can think of to describe that kind of trial work. And this is the problem. This is the problem.
I get in civil cases all the time, and in civil product liability cases, there's almost always a Daubert challenge these days, where the lawyer says, “Oh, John, you're not using the science correctly. You shouldn't be allowed to testify.” And there have been literally thousands of people excluded in civil cases under Daubert where the standard of proof is a preponderance, not beyond a reasonable doubt. In criminal cases, it almost never happens. In fact, it makes headlines. It makes headlines when a judge excludes testimony in a criminal case.
So we can't count on the courts, and that's the take-away message, is we've got to clean the act up upstream of the courts because the judges are not going to. They are not going to do it.
So that's what I have, and my time is up. Thank you.
Itiel Dror: I have a lot to say and not enough time, so I put a lot of information on the World Wide Web with signs — and the details and the research and the articles. If people are interested, you have the website.
Where has this all gone wrong? And I ask myself when I look at the Willingham case. As tragic as it may be, it represents very special circumstances that happen once in a blue moon. It's not interesting and not important. I want to know if there is something in this case that illustrates something that happens all the time, every day, across the country, and I am going to put forward to you, yes, this case illustrates a big problem, but the problem is not in forensic evidence. Let me say it again: it's not in forensic evidence.
For the most part, forensic evidence is very good. There is a much bigger problem that happens all the time: the psychology of violating evidentiary independence. What happens, you have a lot of information coming in. It can be to the judge or to the jury, it can be to the prosecutor, it can be to the detective, and this information flows to the decision-makers, to the people who think about the case.
You have fingerprint evidence, you have DNA evidence comes in, and a whole variety of forensic evidence. We don't have to list all the forensic evidence that comes in. You have eyewitness testimony, you may have confessions, and you have a whole variety of evidence that you know very well — we don't have to list the vast majority of evidence that comes in.
And then somebody has to sum it all up and do it all together to decide if you have a case is to convict somebody, and the person accumulating the information, the detective, needs to have a hypothesis and to decide what to do, and not only that it is good, it cannot be any different way.
And when they weigh the evidence together, they are subjective, and that's good. Somebody can say, well, a fingerprint evidence and DNA evidence is, I think, much stronger than bite-mark evidence, or they can say eyewitnesses is not very reliable, or “I just looked at the eyewitness, and I don't believe them.” And that's fine for the detective and the jury and the judge to do. There is no problem with that. And the same with confessions and so on and so forth, this is all fine and good.
The problem is, for each to work, each one of those lines of evidence must be independent and not contaminated and there's a lot of contamination of this evidence, and that, I put to you, happens not in a rare case, once in a blue moon like the Willingham case, as tragic as it may be, but happens every day across the country and around the world.
What am I talking about? For example, eyewitnesses. So we have taken quite a lot of steps. We know when somebody has an eyewitness lineup, we can't say to them, “Well, number four is who I believe it is,” because that's going to influence the eyewitness. When you interview them, it doesn't take a lot. All you have to say, “Are you sure about that?” And even if you don't say anything, the tones of your question, your mannerisms, affects the eyewitnesses.
There is even a lot of debate in lineup whether they should be double blind. Not only the eyewitness cannot know the lineup who the suspect is, but even the person conducting the lineup, the detective, should be somebody else who doesn't know who the suspect is because there is a lot of nonverbal communication — the Rosenthal effect, the Pygmalion effect — a lot of contamination.
If you think that only eyewitnesses, naive people who are not experts, can be contaminated, well, think again. Even fingerprint and DNA evidence can be contaminated. For example, if you present a pair of fingerprints, and we have done that, and fingerprint examiners have determined it is a match or not match based on the fingerprints and you present it in a different context. In one context they know that that person confessed to the crime or there's eyewitness testimony against them or the detective believes that it's a match or it's taken from a high-profile emotional case, this is presented in a different context, again, nothing to do with the actual fingerprints, you find that they reach different conclusions.
This is very disturbing when we found out that it is not two different examiners but the same examiner or the same person presented with the same fingerprint in a different context a few years apart, reach a different conclusion because of the context, and it's all on the Web, all of the data is published research. And let me tell you, DNA too, and to qualify it and say a mixture of DNA is also susceptible to that, and we are talking about criminal cases when this happens.
For example, look at this U.S. case. I took off the details because I am not here to embarrass any detective or any bureaus because the problem goes across the board, so here is a lot of contextual information.
First of all, in the request that the detective is making to the fingerprint examiner, he said it's a homicide. The examiner needs to know it is a homicide? Maybe. Then it's a black man killing a white person. Is that relevant? Maybe. I don't know. But, if you go down to the very bottom, I can't read it. I don't know if you can read here, but it says, “This person pulled the trigger. Please make every effort to identify them,” and not only that, it said that the only other witness in the truck was too drunk to identify, so you are the only evidence; if not, somebody is gone. This may influence and contaminate the evidence because this context that affects a lot of issues, and I have a real case in the U.S. on DNA evidence similar to that where it affected the results.
Itiel Dror: If it's during fingerprinting, DNA, let me assure you that it happened across forensic domains. I'll give you a case from the United Kingdom, from London. A serial murderer — not very common in the U.K; we take them very seriously; it happened very early — follows young women in a car and then he parks the car and goes behind them and kills them with a blunt instrument. We are not sure even what it is, if it is a baseball bat or hammer, and kills them, doesn't steal their money, doesn't rape them, just kills them. And CCTV, Closed Circuit Television, very popular in the U.K., captured the car of the murderer, but it was a very old camera that doesn't take pictures very quickly, so there is only one frame of the car.
This is the car of that killer. Experts look at it and can identify the car, but there are 27,000 cars, so it is not very helpful. But the registration plate is this. So this is given to two experts, imagery experts, and they look at it without a context, and they say what you are supposed to say, “I have no idea.”
Dror: Not only they say “I have no idea,” they say that the characters here are seven rows of pixels and the minimal is nine to make an identification. But then the police find Levi Bellfield, a guy who may or may not done it. He is definitely a scum. I can tell you a lot about him. And they are convinced that it is him, and they go back to the experts and give them the registration plate of Levi Bellfield and ask the forensic examiners to re-analyze, to re-look at the evidence, and behold, they can make quite a lot out of this license plate suddenly because they know the license plate. And they're dedicated, hard-working, motivated forensic examiners. To understand this phenomena, I really do not have enough time because we have to talk about the human brain and understand the mechanisms involved in perception.
I have a paper called Perception is Far From Perfection, and if I have to explain in a nutshell, we all have, or many of us, a view that we see the world the way it is, but the human mind is not a camera, a cornerstone of intelligence of expertise is filtering information, interpreting information, and we are very dynamic and flexible in how we process information — what we want to see, what we expect to see. And you all know when you go to an airport and you are waiting for somebody, you make mistakes. You all know when you don't want to see somebody, you see them everywhere.
Dror: It's the way the brain works, and I do not have enough time to really get into details, even if I had an hour to do that, and I have only a few more minutes.
Confessions, also, you find out that one quarter, 25 percent, of the people who have been exonerated based on DNA confessed to the crime, and confession is very, very powerful. And that will apply across the board to any kind of evidence.
What is interesting is not only that the contamination happens from the detective, for example, but it happens from one to the other. So, if the fingerprint examiner knows that there is DNA to incriminate the person or vice versa, that is potential contamination because we require independence and the same across and between all forensic domains. And between them, the eyewitness doesn't need to know that the person confessed, or anytime you get a confession, you don't need to say, “Well, we have eyewitnesses against him, there's forensic evidence.” All of this distorts the system. It all comes together. As a detective, each one of those lines filling in is independent, and all these red arrows introduced a lot of contamination.
I put a green line because it doesn't mean there cannot be communication. Some information is needed. A fingerprint examiner may need to know that the fingerprint was lifted off a knife because it affects how the knife was held and the pressures and the distortions. So that is information that needs to be provided, some does not, and that information that is provided, you must have the training in the procedures to minimize the contamination.
Think about a medical doctor. You go to a medical doctor, and they have a hypothesis. They send you to a blood test, to a urine test, to a CT test, but they don't tell the person who is doing the blood test, “I think this person has cancer.” They say, “Now I need to know how many red blood cells are in that specimen.” Sometimes they do. In some complex CTs, they need to say what they are looking because it may affect the contrast used in the scan, but this is a lot of issues that are quite dangerous, and I think I'll talk about the Willingham case in a minute, if I have any time.
So we want to take them out. We want to minimize. When you extract information, you affect the information itself, and you have to be very careful. And this is a big problem. We want to make the evidence stronger. It's all about making the evidence stronger, and to do that it needs to be independent, not to the judge, not to the jury, not to the prosecutor, not to the detective, but for the eyewitness person, for the forensic examiner, they don't need the entire context. If they need some context — the DNA analysis is a lot of context that they need to have — you can give it to them, but you need to take measures to minimize the potential contextual influence if that happens.
In the Willingham case, you've already heard a lot, how the potential contamination of the eyewitnesses and how they revised statements as a result of these kind of issues. This is a psychology of violating evidentiary independence. The evidence needs to be collected independent from one another, and then the decision-maker — be the judge or the jury, the prosecutor, or the detective — can weigh them all together in any subjective way they want to do. It is up to them, but it is not up to the different lines of evidence. To do it properly, they must be independent.
The Willingham case, in my view, represents that forensic problems exist, but they are rare. They have not happened all the time. Forensic evidence is generally very good, but the break of evidentiary independence, I believe, happened all the time in many cases across the country, and this is, for me, the lesson that we can take because I don't think we are going to be facing it often, every day, frequently. But this issue, I think, is what I take from the Willingham case, to illustrate the importance of this issue. This is where it has all gone wrong.
Thank you very much.
Michael Logan Ware: Good morning. My name is Mike Ware, and it's truly an honor to be asked to be part of this panel and to address this esteemed group. I think as the only prosecutor on the panel, it's appropriate that I go last and get the last word.
Ware: I am the chief of Special Fields Bureau of the Dallas County District Attorney's Office and the head of the Conviction Integrity Unit, and I am going to talk about all of that for a few minutes, here in a few minutes, but the title of this panel discussion is “What We've Learned From the Todd Willingham Case,” which is not a Dallas County case, although it probably could have been. As a matter of fact, Dr. Death made his — James Grigson — made his reputation in Dallas County, testifying in the '70s, '80s and I guess into the '90s.
And maybe this is nothing new. Maybe I am just naive, but what struck me really about the whole Willingham matter is maybe something we already know, but it's just how blatantly and shamelessly and cynically politicians are willing to meddle into the justice system for their own political ends.
I mean, I don't even think you have to have an opinion as to whether or not Todd Willingham was guilty or not or innocent to see that if Craig Beyler, the expert who issued the report to the commission back less than a year ago, if his report had come back and said, “This was the best forensic arson investigation I have ever seen in my life and Todd Willingham was obviously guilty,” then the governor would not have replaced or jerked the rug out from under the Forensic Science Commission and replaced, at the last minute, the chair and other key members of that commission before that report could be officially made public.
So the politics, the politics of justice, politics, which is about anything but the truth, and how it sometimes seems to interfere with the justice system, which is supposed to be all about the truth, is what has struck me as much as anything about the Willingham case.
So let me talk about Dallas County and what we've been doing for the last three years or so; first, a brief history to put it into context.
Well, it looks like for whatever reason, my PowerPoint is — oh, there it goes. Well, forget it.
Craig Watkins took office as the newly-elected district attorney of Dallas County in January of 2007. He was the first African American ever to be elected to district attorney of Dallas County and actually the first one in Texas, period, to this day. And, at that point, Dallas County had nine DNA exonerations, and since the Texas Statute passed in 2001, the post-conviction DNA testing statute passed in 2001, which is more than any other county in the country and more than most states.
So he, Mr. Watkins, and his newly-hired first assistant, Terri Moore, determined that to address that problem, they would petition the Dallas County commissioners — and this was in the spring of 2007 — for funding for a conviction integrity unit to address that problem and others, which had given the D.A.'s office in Dallas County a history of notoriety, at least in some circles.
I think that the analogy that's sometimes used, if there had been nine airplane crashes, like there had been nine DNA exonerations, out at Reagan Airport for example, you can be sure that there would be extensive investigations and fact-finding missions to determine the cause of the problem and determine what needed to be done to rectify them. And perhaps, just as importantly, it's our position at the District Attorney's office that it is our obligation to protect the citizens of Dallas County, and if the wrong people are being convicted of violent crimes that are actually being committed by other people, we are not fulfilling our obligation to protect the citizens of Dallas County.
So the commissioners agreed, after some contentious debate, to fund four positions in Dallas County that became the Conviction Integrity Unit, and in July of 2007, I left private practice, 23 years of private practice, to head up the unit.
If I could get my PowerPoint to work. Well, I'll just make do without it.
Ware: Anyway, if it were working, my first slide, my next slide would be quotes from both John Ashcroft and Chief Justice Roberts exulting the benefits of DNA testing, about how they are the greatest truth machine ever invented, about how DNA testing can be used to not only exonerate the innocent but convict the guilty, and how it is one of the greatest truth machines and tools of justice ever invented. Of course, in the case of Chief Justice Roberts, those are the opening words in the Osborne opinion, and the opinion kind of went downhill after that, as Mr. Osborne was denied a DNA test by the Supreme Court.
But, anyway, taking that rhetoric to heart, one of our first tasks with the Conviction Integrity Unit was to go back through approximately 4- to 5-hundred cases of instances where an inmate had requested a post-conviction DNA test but had actually been turned down for the test. By the time I started, I believe there had been 12 exonerations, DNA exonerations, in Dallas County, but I would say that it appears that probably only about 1 out of 10 or 1 out of 20, or maybe even more than that, inmates who had requested tests had actually gotten tests.
And so we undertook, we got some grant money and undertook a joint project, a cooperative project with the Innocence Project of Texas and the Dallas County Public Defender's Office and later on other Innocence Projects to go back through all these old cases where requests had been made, but the inmate had actually been turned down for even a test to determine if any of those should have, in fact, gotten tests. And I think it was important that we undertook this task with the Innocence Projects, with the Public Defender's Office for transparency purposes. I mean, I am a prosecutor, and if I go back through all the old cases and determine all those individuals were correctly denied a test, it does not hold near the weight that it does if it is a joint project with Innocence Projects and with the Public Defender's Office who likewise are vetting these cases and determining which ones, if any, should have gotten the test.
Michael Logan Ware: Partially as a result of this process and other actions that we've taken over the last three years, Dallas County now has 20 DNA exonerations and then, most recently, two capital murder exonerations that did not involve DNA testing, and that the Court of Criminal Appeals or, as John Lentini referred to them, a court of criminal affirmations, actually signed off on and ratified as legitimate exonerations.
So I'm going to talk briefly about some of the specific cases that we've worked on, some of these 20 DNA exonerations. Every one of the cases are incredible, and every one of them are amazing stories in and of themselves, but I only have a few minutes. So I just want to give y'all a sample of what we have done, and if my PowerPoint worked, I could put a face to some of these names.
The first one is a Thomas McGowan.
Ware: First one is Thomas McGowan. This was a brutal home invasion, sexual assault that occurred in Dallas County back in 1985. McGowan became a suspect several weeks after the offense when he was arrested for a misdemeanor and was driving a vehicle that was somewhat consistent with the vehicle that the perpetrator was driving. As a result of that, he was put in a photo spread and picked out as the perpetrator, and that is actually a separate story in and of itself. But, anyway, as a result of that, he was charged with aggravated sexual assault and burglary. That was basically the evidence against him, this eyewitness identification testimony.
He had two different trials, one for the aggravated sexual assault, one for the burglary. Two different juries convicted him. He got a life sentence in each case, and the judge stacked the life sentences. So he was doing two stacked life sentences for this offense which, based on the heinousness of the offense, would have been appropriate, except that he didn't do it.
In the fall and spring of 2007 and 2008, we tested the DNA. Long story short, it was not his. DPS put it in the CODIS system. It belonged to Kenneth Wayne Woodson, who was serving time in a Texas prison for an almost identical offense out of Dallas County that he committed after he committed the one that Thomas McGowan was convicted of. And something that I just can only classify as bizarre, it turns out Woodson was in the same photo spread with Thomas McGowan, the actual perpetrator, but was not picked out by the victim, and McGowan was. To me, they really don't even look that much alike.
We did send our investigator out to talk to Mr. Woodson in prison. He did give a full confession on audiotape in which he recounted the details of the offense, and there is an actual letter of apology that he wrote to the victim of the case.
I am running out of time quicker than I anticipated. I'll go through some of these cases.
Steven Phillips is a truly interesting case. If you are in the bar later this evening, I will tell you about it.
Ware: Phillips is the guy in the upper right-hand corner. The actual perpetrator, as identified through DNA, is the individual in the other two pictures.
Patrick Waller, he was one of the first to apply for post-conviction DNA testing. He was denied because he was technically convicted of aggravated kidnapping and aggravated robbery, not sexual assault, even though the sexual assault was an integral part of the proof at his trial. And, in fact, blood typing taken from the sexual assault kit had indicated that he was part of the 13 percent of African American males who had that blood type, had the same blood type as the rapist.
We went back and tested it, tested the DNA in that case, even though he had been turned down for testing, and the DNA in the CODIS check revealed that it was actually a Byron Bell who likewise was in prison for another offense, who matched the DNA. Mr. Bell ultimately confessed and identified his co-actor, a Lemondo Simmons, in that case.
One last case, this is pretty interesting, Gregory Wayne Wallis, another home invasion, sexual assault. He became a suspect because the victim mainly could identify what she and what police believed to be a unique tattoo that the perpetrator had. They did a composite. It was posted at the jails. They were soliciting informants, and informants said that they knew a Greg Wallis that had a tattoo similar to that. He was put in a photo spread. The victim picked him out as the perpetrator.
There is a picture of Greg Wallis' tattoo. As you can tell, it is in a different position and actually a little bit different than the composite. DNA, our subsequent DNA test, showed that he was not the perpetrator, that that individual right there, that is a picture of him back then, was the actual perpetrator. We found him, sent investigators out to the federal pen to talk to him. He's changed a little bit.
Ware: He would not talk to us, but he did take his shirt off, and that's a tattoo that he had, which is actually much closer to the composite than Greg Wallis' as far as the position it was at and what it actually looks like. There is Wallis', down his arm, at which that was a big issue at trial, but, as you can imagine, there was an elaborate and clever explanation for why the tattoo was initially described in a different place than where Greg Wallis' was.
So, anyway, in conclusion, let me quote from the Herrera case and Justice Rehnquist, which, “After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.”
Mary Lou Leary: So, first question?
Leary: No questions?
Yes. There's one over here.
Henry Beattie: It's not working, or is it?
It's for Mr. Lentini, and the question is we had multiple points of origins, pour patterns. Did anybody ever take — I've not seen any in the writings — of hydrocarbons, presence of hydrocarbons?
John Lentini: There were samples collected in both cases. The Willis case had no positive laboratory results. The Willingham case, they did find some mineral spirits on the front porch, right where he kept his barbecue and his charcoal lighter fluid.
Henry Beattie: But nothing in the room?
Lentini: Nothing, nothing inside.
Henry Beattie: And any other multiple points of origins, was that ever —
Lentini: Multiple points of origin is pretty damning evidence that the fire was intentionally set, but in order to make that determination, you've got to find an area that's unburned in between two burned places.
As you saw in that flashover video, the fire goes up. It spreads across the ceiling and comes back down. There's a lot of two dimensional thinking going on in fire investigation because we're surrounded by two dimensional surfaces that collect the patterns, and so, if a guy sees burning over here on the floor and burning over there on the floor, he might say, “Aha, two points of origin,” not thinking that there's a connection above or a connection on the wall.
There was no evidence of multiple origins in either one of them, although they said there was.
Henry Beattie: The last part, was it ever determined what started the fire?
David Grann: I just wanted to add one point on the multiple point of origin. It was presented in trial. Vasquez presented multiple points of origin as a key indicator of why it was arson.
When I went to investigate the case, I spoke to the other fire investigator on the case, and he actually told me he did not think there were multiple points of origin, but he said nobody had ever asked him about it and that's why he never testified to that fact.
Leary: Thank you. We have a question over here.
Thomas Mostowy: Hi. Thomas Mostowy, Trinity University.
You noted the political effect on the post conviction review of the evidence in the Texas cases. One of the things I study is the effects of judicial and prosecutor selection, elected — political effects of elected prosecutors and judges. What effect do you think that has on the failure to review these post conviction cases?
Lentini: I'm sorry. What was the final thing you asked?
Thomas Mostowy: The fact that in most jurisdictions in the United States, prosecutors and judges have to stand for election. Very few people get re-elected by saying, “We made a lot of mistakes in prosecuting and convicting people.” What effect do you think that has in the failure to more thoroughly review these sorts of post conviction problems?
Michael Logan Ware: Well, I think it probably has a large effect. I think what everybody — what a lot of people have been probably surprised about is how much political traction actually doing the right thing has. That this nontraditional role that we've taken on as prosecutors, even though it's there in every ethical code that's ever been written that it's a prosecutor's duty to seek justice, not to simply seek convictions or simply to protect convictions, even bad convictions, that this nontraditional role we've taken on is actually — has a lot of political traction.
And the interest I've heard expressed from other offices — and I know Manhattan is now — the Manhattan prosecutor's office now started a Conviction Integrity Unit, which I think is the real deal, but most of the — honestly, most of the, I think, inquiries I've gotten from other prosecutors' offices, I honestly think in many instances they are more interested in the political traction that we seem to be getting out of that than they were in actually starting something that was doing an honest and thorough review of the cases that would expose possible mistakes of the past.
Leary: Really interesting point. OK. We have time for one more question.
Kimberly Mehlman Orozco: My name is Kimberly Mehlman Orozco. I'm a Ph.D. student in George Mason University's Criminology Department. And my question is, it seemed like the panelists focused on improving the investigation aspect in order to prevent this miscarriage of justice, but what degree do you think that improving the standard of indigent defense would have helped, I guess, forego what had happened in this case that you had mentioned?
Leary: Anybody like to take that? Mike?
Ware: You know, I had a list of things that I anecdotally had concluded were factors, common factors in the proven wrongful convictions in the 20 DNA and other cases out of Dallas County, which is also consistent with what all the literature I've ever read is on people who actually do serious studies, scientific studies on the causes, and, you know, in some cases I think improving, certainly improving the quality of indigent defense because what I think every one of these exonerees had in common is every one of them was indigent. And, certainly, improving the standards of indigent defense and improving the actual indigent defense would be helpful because that was one of the factors that I believe went into some of the wrongful convictions.
But some of these guys and one case I didn't talk about, some of them had really competent defense lawyers who did a good job, but evidently, in some cases, it just didn't matter. So there are a number of factors that go into them, but I think certainly improving the quality of indigent defense would be one of the things that would improve the system and prevent these kind of travesties.
Leary: Thank you, Mike.
Well, I think our time is up, but I want to say thank you so much to all of our panelists for sharing their knowledge with us about what I think is one of the most fascinating cases that I have ever read about, and I think the lessons that we've learned from this case will continue to inform us and to improve our work in the criminal justice system for many, many years to come. So thank you all.
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Moderator: Mary Lou Leary, Principal Deputy Assistant Attorney General, Office of Justice Programs, U.S. Department of Justice Panelists:
Date created: July 12, 2010