# Expert for Texas Commission concludes no evidence of arson in executed inmate's case **URL:** \ **Category:** Great Debates\ **Created:** [September 2, 2009, 6:46pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663 "2009-09-02T18:46:09Z")\ **Posts on this page:** 18\ **Page:** 5
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 4, 2009, 4:35pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/81 "2009-09-04T16:35:42Z")
> [@Max\_Torque](#): > > Just came across another interesting article by one of the former prosecutors on the case, who is now a judge: **[Willingham guilt never in doubt](http://www.corsicanadailysun.com/opinion/local_story_241210447.html?keyword=topstory)**. He cites evidence other than the arson as proof of Willingham’s guilt, concluding with: A rebuttal of each of Judge Jackson’s points: [Time to face truth in Willingham case](http://www.corsicanadailysun.com/opinion/local_story_245221832.html) As to Judge Jackson’s final quote: > [@](#): > > The Willingham case was charged as a multiple child murder, and not an arson-murder to achieve capital status. I am convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged, a fact that did not escape the Texas Court of Criminal Appeals. While anti-death penalty advocates can muster some remarkably good arguments, Todd Willingham should not be anyone’s poster child. How Willingham was charged is irrelevant if the cause of death was fire - no arson, no murder. I disagree wholeheartedly that absent the arson testimony Willingham would have been convicted anyway, but Judge Jackson’s missing the point. The issue isn’t the absence of the original arson evidence, it’s the presence of new evidence that there was no reason to suspect arson. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [September 4, 2009, 4:41pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/82 "2009-09-04T16:41:25Z")
Being just one person, I don’t have the time to address every single post, so I’m taking **Frylock** ’s as representative. > [@Frylock](#): > > This is probably the most damning piece of evidence. But: > > A. It does nothing to establish anything about whether a crime was committed. It indicates that there might be a motive, but nothing more. Again: it _indicates_ (not “shows”) that there _might_ be _some_ motive or other. > > B. It’s a leap anyway to assume he wanted to kill the kids since he tried to cause them to miscarry before they were born. How much time was there between the two instances? What relationship did he have with the kids after they were born? The incompetent defense lawyers only called one witness during the defense, so who can know? The twins were one year old, so I’d expect at most the passage of time from “attempt to induce miscarriage” to the time of their murder would be about 18 months. As for his relationship with the kids after they were born, the most commonly cited motive I’ve seen for setting the fire was that Willingham was attempting to cover up evidence of child abuse. > [@](#): > > Well, burns is burns. The prosecutor is speculating about their source. There’s nothing here. Willingham’s first account detailed him charging in to the children’s room, amid smoke and flames, and being unable to find them. Ending up with only superficial burns casts doubt on his truthfulness. > [@](#): > > There are witness statements–not given during trial, because of the incompetent defense–describing how he had to be physically restrained from going in to try to rescue the kids. > > Also, maybe he held his breath? Witnesses described his attempts to re-enter the house as appearing to be “a show” put on for police and rescue workers. Held his breath? So, who’s pretending to be a scientist now? > [@](#): > > How is this supposed to be evidence of anything? If I was accused of killing my kids, my response to any and all investigative questions might well be “fuck you” as well. Someone in this situation does not behave rationally. Moreover someone with a criminal history like this likely is very mistrustful of police and prosecutors, and may well suspect a trick. > > Also, polygraphs? Really? They _don’t work_. A polygraph is an investigative tool. Innocent people, especially grieving parents, you would expect, would cooperate with the investigation. > [@](#): > > This is not evidence of any kind concerning the question whether a crime was committed on the night in question. It’s evidence admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Texas Rule of Evidence 404(b). > [@](#): > > I’d be interested to know how many witnesses said this and how independent their testimony was. There was already a huge tendency for people to presume him guilty, and it is well known that this can have a huge effect on witnesses perceptions and memories. But even assuming he really did say that, the statement is open to interpretation. He didn’t say “You’re not the one I was supposed to kill.” If I had a favorite among my kids–indeed fantasized frequently about the death of my least favored–and my favorite died, I might think something like “You weren’t the one who was supposed to die” without it ever having entered my mind to actually kill anyone. To me, and to the jury as well it seems, the statement sounds like, “Others **were** supposed to die, but not you.” It’s immaterial that there are other possible interpretations, so long as the jury’s interpretation is not clearly incorrect. > [@](#): > > But wasn’t it supposed to be that he was trying to kill a couple of infants? I assume there’s no question of their escaping through any door, front or back. Or possibly a means to impede rescue. Covering up evidence of child abuse, remember? > [@](#): > > This takes the cake. A refusal to plead guilty is taken as evidence of guilt. It rolls the eyes, it does. I believe the point isn’t so much “refused to plead guilty” as “responded with violence and vulgarity to the plea offer”. > [@](#): > > The prosecutor claimed that the above points establish guilt independently of the fire evidence, but that’s ridiculous. As I’ve explained, the evidence hardly manages to even _suggest_ guilt, much less establish it. This prosecutor is in denial. Any single piece of evidence, perhaps not, but the _cumulation_ of evidence is pretty overwhelming. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [September 4, 2009, 4:48pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/83 "2009-09-04T16:48:15Z")
This is nuts. Evidence of WHAT? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [September 4, 2009, 4:57pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/84 "2009-09-04T16:57:26Z")
> [@Max\_Torque](#): > > Being just one person, I don’t have the time to address every single post, so I’m taking **Frylock** ’s as representative. Actually, don’t. **Bricker** ’s is better, not least because he’s an actual lawyer. Not to imply that mine takes second place. It doesn’t. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [September 4, 2009, 5:04pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/85 "2009-09-04T17:04:47Z")
> [@Frylock](#): > > Actually, don’t. **Bricker** ’s is better, not least because he’s an actual lawyer. > > Not to imply that mine takes second place. It doesn’t. **Pravnik** ’s link he just posted in #81 is also a must-read. **Bricker** explains the judge’s faulty legal reasoning, the link I just referred to explains the judge’s faulty reporting of the facts of the case. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 4, 2009, 5:08pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/86 "2009-09-04T17:08:22Z")
> [@Max\_Torque](#): > > The twins were one year old, so I’d expect at most the passage of time from “attempt to induce miscarriage” to the time of their murder would be about 18 months. See the Innocence Project column. His wife says he did not beat her while she was pregnant, and did not abuse their children. > [@](#): > > As for his relationship with the kids after they were born, the most commonly cited motive I’ve seen for setting the fire was that Willingham was attempting to cover up evidence of child abuse. The children’s bodies showed no signs of abuse. > [@](#): > > Willingham’s first account detailed him charging in to the children’s room, amid smoke and flames, and being unable to find them. Ending up with only superficial burns casts doubt on his truthfulness. Yes, it does, and he later admitted he told a macho lie about going into their room. The lie sounds very suspicious if you start with the belief that he killed the children, but if you don’t start with that assumption, it’s just a lie. > [@](#): > > Witnesses described his attempts to re-enter the house as appearing to be “a show” put on for police and rescue workers. Some of the witnesses said that several months later. At the time, they did not say that, and the firefighters said they had to restrain him from running back into the house. (Which is a little ironic, because if he had done that, he would probably still be dead, but no one would be calling him a murderer.) > [@](#): > > A polygraph is an investigative tool. It’s mostly a tool the police use to trick guilty people into confessing. 😉 > [@](#): > > Innocent people, especially grieving parents, you would expect, would cooperate with the investigation. Not necessarily. Regardless, this is a slimy implication, because turning down a polygraph does not mean you are guilty or have anything to hide. The guy clearly a bad temper, and his children had recently died in a fire of which he proclaimed his innocence. I am not surprised he chewed out the cops when they suggested they believed he killed the kids. > [@](#): > > It’s immaterial that there are other possible interpretations, so long as the jury’s interpretation is not clearly incorrect. What? We’re not talking about the jury’s interpretation, we’re talking about what the quote means. It’s potentially incriminating, but ambiguous, and given the fact that the three children slept in the same room, it doesn’t make much sense to suggest he was trying to kill only two of them. > [@](#): > > Or possibly a means to impede rescue. Covering up evidence of child abuse, remember? See above. > [@](#): > > I believe the point isn’t so much “refused to plead guilty” as “responded with violence and vulgarity to the plea offer”. All of which is irrelevant. > [@](#): > > Any single piece of evidence, perhaps not, but the _cumulation_ of evidence is pretty overwhelming. I disagree. I would be putting it pretty freaking mildly if I said the evidence fails to whelm at all. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 4, 2009, 5:22pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/87 "2009-09-04T17:22:37Z")
> [@](#): > > A polygraph is an investigative tool. Innocent people, especially grieving parents, you would expect, would cooperate with the investigation. No, a polygraph is not an investigative tool, any more than a coin is. Both have about the same accuracy. If I were accused of murder, and the authorities said “We’ll flip a coin. Call it correctly, and we’ll eliminate you as a suspect.”, my response wouldn’t be “Eh, can’t hurt, and it might get me off the hook”. My response would be something much more like “What the Hell? What in the world is that supposed to prove?”. The defendant in this case was in this same situation, and he apparently reacted the same way I or any other sane individual would. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [September 4, 2009, 6:01pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/88 "2009-09-04T18:01:06Z")
> [@pravnik](#): > > How Willingham was charged is irrelevant if the cause of death was fire - no arson, no murder. I disagree wholeheartedly that absent the arson testimony Willingham would have been convicted anyway, but Judge Jackson’s missing the point. The issue isn’t the absence of the original arson evidence, it’s the presence of new evidence that there was no reason to suspect arson. Spoken like a true defense attorney, and **pravnik** , you of all people should know better. The “new evidence” (in fact, the new report is not “new evidence” but a critique of the testimony and investigative methods of the _old_ evidence) does not show that there was no reason to suspect arson. The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 4, 2009, 6:05pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/89 "2009-09-04T18:05:23Z")
> [@Max\_Torque](#): > > Spoken like a true defense attorney, and **pravnik** , you of all people should know better. The “new evidence” (in fact, the new report is not “new evidence” but a critique of the testimony and investigative methods of the _old_ evidence) does not show that there was no reason to suspect arson. The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. It does mean there was no reliable evidence on the record for the jury to have found that arson did occur, though. In other words, the state had to prove arson beyond a reasonable doubt. You’re saying, “Hey, it still could have been arson!” OK, sure, it could have been. But the jury cannot convict on “it could have been.” ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 4, 2009, 6:16pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/90 "2009-09-04T18:16:00Z")
> [@Max\_Torque](#): > > The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. To be a little more specific, it shows most of the evidence is unreliable, did not say what the investigators said it did, says the fire should should have been investigated further, and perhaps most important, that the foregoing should have been clear at the time. > [@](#): > > And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. It just means there’s no solid proof. > [@Bricker](#): > > But the jury cannot convict on “it could have been.” Or rather, isn’t supposed to, and if it has sentenced a man to death on that basis, the man has died for no particular reason on a verdict that was, at best, coincidental with his death. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 4, 2009, 7:09pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/91 "2009-09-04T19:09:37Z")
> [@Max\_Torque](#): > > I must say, though, that I like the sketch by the original arson investigator, included at page 34 in Beyler’s report. I’m no expert, but Christ, that looks like a deliberately-set fire to me. Huge conflagration in the kids’ room, a path out into the hallway, which then turns directly toward the front door, rather than deeper into the house, where it burns down the front door and damages the concrete porch. Kinda strange, that. I know the conversation has moved on and that this is not the most important point, but your interpretation is bizarre and I wanted to address it. Why is it suspicious that the fire turns directly toward the front door and doesn’t go deeper into the house? If Willingham set the fire intentionally, why would he want the fire to go directly toward the front door, which was his own escape route? This proposal requires him to be a total idiot. I’m left with the image of Willingham spraying lighter fluid under the beds, striking a match, and then running for the door while continuing to spray lighter fluid as he ran. Are you picturing something else? Because that doesn’t make sense at all. He would be making it harder to get out of the burning house, making it more likely someone else would be able to get in, and leaving the most evidence intact, including running the risk somebody would see him do it. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [September 4, 2009, 7:16pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/92 "2009-09-04T19:16:06Z")
> [@Max\_Torque](#): > > The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. Actually, no. The new report doesn’t have any problem at all with the evidence (it’s just as reliable as before). It’s the asinine conclusions that were drawn from that evidence that are the problem. And it’s those conclusions that were used to portray a man as having started a fire; one that, it turns out, doesn’t appear to have even been started by a person (let alone a _specific_ person). ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 4, 2009, 7:25pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/93 "2009-09-04T19:25:52Z")
> [@Max\_Torque](#): > > Spoken like a true defense attorney and **pravnik** , you of all people should know better. Been hearing that all my life. > [@Max Torque](#): > > The “new evidence” (in fact, the new report is not “new evidence” but a critique of the testimony and investigative methods of the _old_ evidence) does not show that there was no reason to suspect arson. You’re drawing a distinction without a difference. In critiquing the original investigators methodology, Beyler shows that they named no indicator of arson that was not consistent with accidental fire. The only way to make a finding of arson is to eliminate all natural and accidental causes - if that can’t be done, then yes, as far as the forensic evidence goes there’s no reason to suspect arson. Even Judge Jackson concedes that the forensic evidence isn’t there. > [@Max Torque](#): > > The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. That’s already very clear. Nobody is saying that it does. That’s why I was careful to word my title “no evidence of arson” rather that “evidence that arson did not occur.” Modern standards starts from the presumption that arson didn’t occur and then looks for evidence that it did. There was no physical evidence to suggest arson, and the jury heard that there was. Could it have been arson? Sure, could have been. Could have been lightning or the ghost of Mrs. O’Leary’s cow, too. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 4, 2009, 7:26pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/94 "2009-09-04T19:26:49Z")
> [@LilShieste](#): > > Actually, no. The new report doesn’t have any problem at all with the evidence (it’s just as reliable as before). It’s the asinine conclusions that were drawn from that evidence that are the problem. Not to be persnickity, but the conclusions were also evidence: when the fire marshal testified, he did so as an expert witness; he was thus allowed to not only tell the jury what he found, but what conclusions he drew from what he found. It is the latter evidence - his conclusions - that have now found to be wholly unreliable. But those conclusions are evidence. ---
**Author:** ![LilShieste](https://avatars.discourse-cdn.com/v4/letter/l/9f8e36/32.png) [@LilShieste](https://boards.straightdope.com/u/LilShieste)\ **Post date:** [September 4, 2009, 7:28pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/95 "2009-09-04T19:28:08Z")
> [@Bricker](#): > > Not to be persnickity, but the conclusions were also evidence: when the fire marshal testified, he did so as an expert witness; he was thus allowed to not only tell the jury what he found, but what conclusions he drew from what he found. It is the latter evidence - his conclusions - that have now found to be wholly unreliable. But those conclusions are evidence. What, am I supposed to believe a lawyer? 😛 (I stand corrected.) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 4, 2009, 7:37pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/96 "2009-09-04T19:37:37Z")
> [@Max\_Torque](#): > > Spoken like a true defense attorney, and **pravnik** , you of all people should know better. The “new evidence” (in fact, the new report is not “new evidence” but a critique of the testimony and investigative methods of the _old_ evidence) does not show that there was no reason to suspect arson. The new report just asserts that evidence which was formerly used to demonstrate arson is not as reliable as once thought. And I wish to make this point very clear: **absence of direct evidence of arson does not mean that arson did not occur**. On rereading, I think you misunderstand what I’m saying. Judge Jackson is saying that even if you remove the forensic evidence there was enough evidence to find Willinham guilty without it. I disagree, but that’s not the point. If a retrial was held today the jury wouldn’t just hear the original testimony absent the original forensic evidence. They’d hear that the original forensic evidence that drove the police investigation, and that colored the testimony of every witness the first jury heard, was baloney from nine fire investigators. Big difference. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 4, 2009, 10:11pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/97 "2009-09-04T22:11:41Z")
The author of the New Yorker piece responds to Judge Jackson’s article: [The Prosecution Defends Itself](http://www.newyorker.com/online/blogs/newsdesk/2009/09/david-grann-response-to-jackson.html) ---
**Author:** ![Aw\_Hamburgers](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@Aw\_Hamburgers](https://boards.straightdope.com/u/Aw_Hamburgers)\ **Post date:** [September 18, 2009, 4:03pm UTC](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663/98 "2009-09-18T16:03:52Z")
John Jackson should be disbarred or something… listen to him on this interview here: [ABC News Videos - ABC News](http://abcnews.go.com/video/playerIndex?id=8608644) Most damning of all: ABC: You would agree that this report from TFSC calls into very serious question the methodology and the way this arson investigation… JJ: Without question ABC: That it really has a problem JJ: that the techiques used were flawed ABC: deeply? JJ: Yes JJ: Certainly some of the evidence was less credible than I would have liked to see. ABC: Doesn’t that give you pause at all about sending a man to death? JJ: Not at all. Not a man like Todd. **The best evidence to me is not the investigation of the arson** , the best evidence, that I believe I presented was the prior attempts of Todd Willingham to kill his children ABC: He beat his wife when she was pregnant, therefor he killed his children with a fire JJ: I think that is a major factor of that most finders of facts, such as a juror, should consider What the hell?! Isn’t the point of a trial is to present the facts that were evident DURING THE INVESTIGATION? Out of curiosity, **Max Torque** , did you ever talk to your fire chief Father-In-Law? [Previous page](https://boards.straightdope.com/t/expert-for-texas-commission-concludes-no-evidence-of-arson-in-executed-inmates-case/508663.md?page=4)