The Innocence Project and Arson

The Cardozo Law School Innocence Project is often referred to as "the" Innocence Project. It was the first law school-affiliated innocence project, founded and still directed by Barry Scheck and Peter Neufeld, two lawyers who can legitimately claim international renown. But it was the scientific certainty behind exonerations obtained by the Innocence Project that made it so well known and so influential.

The Innocence Project limited its caseload to those in which DNA could indisputably prove an inmate’s innocence. That’s strong stuff, and it has forced a recognition of the myriad factors underlying those wrongful convictions–faulty eyewitness identification, junk or fraudulent science, fabricated "snitch" and co-defendant testimony, police and prosecutorial misconduct, false confessions and ineffective defense attorneys.

Realizing that if they have identified so many wrongly convicted citizens in cases where DNA could be useful (a small fraction of all criminal cases), Mr. Scheck, Mr. Neufeld and other Innocence Project participants around the country have taken the decision to examine some of those other cases, including arson cases. Their first arson case involves two cases, those of Cameron Todd Willingham and Ernest Willis, both of Texas.

Fire origin and cause expert Dr. Gerald Hurst has said, "If there is a fatal fire and someone survives, the survivor will be charged with arson and murder." That certainly was true in both Willingham’s and Willis’ cases. Willingham survived a fire that claimed the lives of his three, young children. Willis escaped a blaze in which two women perished. The conclusions of the fire investigators that the fires were incendiary was based on low burns and irregular burn patterns, indicators that were once accepted by many, but have now been largely discredited, at least in cases where fires grow to involve the entire room or structure. Other indicators relied upon in these cases included annealed furniture springs, discolored concrete, and crazed glass. In the Willingham case, auto-ventilation was described as an indicator of an incendiary fire, and in the Willis case, the amount of damage to the ceiling was said to correlate to the amount of flammable liquid on the floor, even though all of the samples came back negative.

Both men were charged with arson and multiple counts of murder, precisely because their accounts of the fires were different than what the state’s fire investigators said had happened. That meant they were lying. That meant they were killers. Both were convicted and sentenced to death.

In the summer of 2004, after he had spent 17 years on Death Row, a federal judge ordered a new trial for Ernest Willis. Three months later, the local district attorney conceded there was no evidence to support the charge. "I don't have to decide whether he's innocent or not, but I think that's probably a probability, that he is innocent," said Ori White, the district attorney in the 112th judicial district. Willis was the first man released from Death Row in seven years.

But it was too late for Willingham. Five months before Willis’ new trial was ordered, eight months before Willis walked off Death Row a free man, Cameron Todd Willingham was executed by the State of Texas. Murdered by the State of Texas, on discredited, junk science. "Gee, we had no idea," won’t work to excuse Willingham’s murder. Texas judges, the members of the Board of Pardons and Parole, and Gov. Rick Perry all turned aside a report by Dr. Hurst that concluded, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Many people doubt any of these authorities bothered to even read Dr. Hurst’s report. Willingham’s February 17, 2004 execution went forward as scheduled.

Dr. Hurst’s report in Willingham’s case was reviewed by three other fire experts–private consultants John Lentini and John DeHaan, and Louisiana fire chief Kendall Ryland. They concurred with Hurst’s conclusions. Even Edward Cheever, one of the state fire investigators who worked on the Willingham fire, conceded, "At the time of the [Willingham] fire, we were still testifying to things that aren't accurate today." He added, "Hurst was pretty much right on. We now know not to make those same assumptions."

Or do we? What passes as expert testimony in too many arson cases continues to be littered with debunked theories passed off as science. In some instances, plain lies turn the key on innocent people. Few judges and even fewer jurors understand the evidence well enough to make informed decisions, and since the lawyers don’t understand it, either, wrongful arson convictions continue to occur.

The report on the Willingham and Willis cases was prepared for the Innocence Project by fire origin and cause investigators John J. Lentini, Daniel L. Churchward, Douglas J. Carpenter, David M. Smith, and Attorney Michael A. McKenzie. They are members of the Arson Review Committee (ARC) of the International Association of Arson Investigators (IAAI). Formation and functioning of the ARC is a significant accomplishment, since the membership of IAAI remains split over the application of science to fire investigation. Many arson investigators continue to believe that fire investigation is a subjective art, not an objective science. [A similar review group, the Tetrahedron Committee, was independently formed six years ago to review arson cases, and its participants met with ferocious criticism from "old school" fire investigators. The IAAI has come a long way in officially sponsoring the ARC. The Tetrahedron Committee continues to review cases. E-mail Truth in Justice for information on how to request assistance.]

We hope that the Innocence Project’s expansion into the science of fire will have the same, far-reaching effects as its efforts with DNA.