The Prosecution Objects

[Editor's note: This story has been updated to reflect additional comments from Judge Charlie Baird.]

Fifteen years ago, Judge Charlie Baird was one of the justices on the state’s highest criminal court who reaffirmed Cameron Todd Willingham’s death sentence. Now a state district judge, Baird is scheduled on Wednesday to begin a process that could determine that the conviction — and Willingham’s execution — were mistakes. And the prosecution objects.

Lawyers for Willingham's family are set to take their high-profile fight to exonerate the executed arsonist to a new venue today. They’ve asked Baird to convene a court of inquiry to determine whether Willingham was wrongfully convicted, and whether state officials committed a crime when they executed the Corsicana man despite evidence casting doubt on his guilt. Baird agreed to hold a hearing to determine the need for such a court to investigate the case. But Navarro County District Attorney R. Lowell Thompson, whose office originally convicted Willingham, says Baird's impartiality is tainted by his previous ruling in the case, and his own beliefs about the death penalty. “Therefore he should recuse himself or be disqualified,” Thompson writes in a motion seeking to disqualify Baird. Thompson argues that the hearing should be put on hold until a decision on the motion is made. But the hearing remained scheduled as of late Tuesday.

Whether Baird presides or not, the larger question is whether Willingham’s case represents systemic flaws in the Texas criminal justice system that may have landed countless other alleged arsonists behind bars or even in the death chamber. “The goal is to see if we have the proper procedures to eliminate the prospect that some innocent person would be executed,” says Mark White, former Democratic Texas governor and attorney general who is among several lawyers representing Willingham's survivors.

Willingham was convicted of intentionally igniting the blaze that killed his three daughters in 1991. In the 12 years between his conviction and his execution, he repeatedly proclaimed innocence. Days before he was executed in 2004, arson expert Gerald Hurst sent the results of his investigation of the Willingham fire to state officials. Hurst — and other experts since — concluded that investigators used faulty science to prove that Willingham started the fire. Nevertheless, Willingham was executed. His case drew national attention last year when The New Yorker published an investigative story on the case.

Since then, the Innocence Project has sought a review of the investigative science used to convict Willingham and other arsonists from the Texas Forensic Science Commission. That process, though, has been fraught with controversy. As the commission last year was set to review another report that concluded that Willingham investigators used faulty science to determine the fire was arson, Gov. Rick Perry abruptly replaced three of the commissioners, including the chairman. The reconfigured commission sought a different scientist to review the arson evidence. The new report concluded that there was no wrongdoing. At a hearing last month, the commission decided — against the wishes of its new chairman, John Bradley — that it needed even more time to review the case and determine whether investigators used bad techniques or whether they abided by the standards of the day.

Unlike the Forensic Science Commission, the court of inquiry would have the authority to decide on Willingham’s guilt or innocence — and whether the evidence supports "official oppression" charges against any officials involved in the case. “State officials have intentionally denied or impeded Mr. Willingham’s and his survivors’ right to a remedy to his reputation,” lawyers for the Willingham family wrote in a petition requesting the court of inquiry.

Baird declined to comment Tuesday about how he might rule on the recusal motion. In an earlier interview, he said evidence contradicting state arson investigators’ findings was not available when he first heard the case as a judge on the Court of Criminal Appeals in March 1995. “It just seems to me like the enormity of the issue ... is just as large as it [gets] in the criminal justice system,” Baird says. "The seminal issue of, did we wrongfully execute someone, is just overwhelming."

District attorney Thompson said there was no wrongful conviction in the Willingham case. "The criminal justice system was utilized correctly in this case,” he said in an interview. In a motion filed this week, Thompson wrote that Baird should be disqualified because he was on the Court of Criminal Appeals when it upheld Willingham’s guilt, the central question at issue in the court of inquiry. In the same motion, Thompson contends — in a seemingly contradictory argument — that Baird has a reputation as a death penalty opponent. He cites comments from a newspaper website that question the judge’s impartiality and an award that Baird received earlier this year from the Texas Coalition to Abolish the Death Penalty. The coalition recognized Baird — who exonerated Tim Cole in a court of inquiry, based on DNA evidence that the convicted rapist was innocent — for his “constant and courageous voice of opposition to the death penalty.” Cole was sentenced to 25 years in prison, where he died in 1999.

Thompson also argues that Baird has already taken steps, illegally, to begin the court of inquiry before a hearing to examine whether evidence indicates that one is necessary. If Baird or another judge determines that a court of inquiry is needed, then the law requires a separate judge to preside over that process.

When Baird dealt with Willingham's case in 1995 — lacking evidence that would be uncovered later — the lawyers' arguments centered on whether the venue was appropriate; on questions about the testimony of jailhouse snitch Johnny Webb, who told jurors that Willingham confessed; and on whether the evidence supported the death penalty in his case. In the days leading up to the court-of-inquiry hearing, Baird says he reviewed the appellate case for Willingham. “You have to make decisions at a time certain, with the evidence before you and the arguments before you, and that’s all in the world you can do,” Baird says. “I still think I was right, based on what issues raised were on appeal.”

Previous courts of inquiry have led to broader policy changes. In the Tim Cole case, the court of inquiry resulted in Perry eventually issuing the first-ever posthumous exoneration. It also spurred lawmakers to create the Timothy Cole Advisory Panel on Wrongful Convictions, which has made recommendations to the Legislature about new laws that could help prevent cases like Cole’s. In the 1990s, lawyers from El Paso launched a court of inquiry to examine whether state agencies were shortchanging communities along the border. No criminal charges came from the case, but state Sen. Eliot Shapleigh, D-El Paso, who was one of the lawyers who worked on the court of inquiry, says the process led to legislative and agency changes that meant more money for mental health, transportation and other public services in border communities. “It is a way to gather evidence on what really happened,” Shapleigh says of courts of inquiry. 

Should the court of inquiry rule that Willingham was innocent, Baird says he’ll be saddened that he played a role in a process that led to the execution of a wrongfully convicted man. “Life is full of mistakes, but my thinking has always been, if you make a mistake, you ought to be man or woman enough to admit it,” he says. “And you go on down the road and try not to make the same mistake twice.”