AUSTIN, Texas – A judge asked to re-examine arson evidence used to convict a man executed for killing his three daughters postponed a hearing in the case on Wednesday, after prosecutors asked him to step aside.
State District Judge Charles Baird delayed the hearing in the Cameron Todd Willingham case until Oct. 14, telling the court he wanted to give an attorney for Willingham's family time to respond to prosecutors' request to have him removed. In the meantime, Baird may decide to recuse himself or ask another judge to decide whether he should step aside.
Attorneys for Willingham's family, backed by the New York-based legal aid center the Innocence Project, are seeking to clear his name. Willingham was put to death in 2004 after being convicted of burning down his Corsicana home in 1991 and killing his 2-year-old daughter and 1-year-old twins. Several fire experts have found serious fault in the arson findings that led to Willingham's 1992 conviction.
If the judge clears Willingham, it will mark the first time an official in the nation's most active death penalty state has formally declared that someone was wrongly executed.
Many believe the case increasingly has become intertwined with political agendas, beginning last year with Gov. Rick Perry's sacking of three members of the Texas Forensic Science Commission just days before they were to review reports that cast doubt on the arson finding. Perry installed a conservative ally as the new chairman, Williamson County District Attorney John Bradley, who canceled the subsequent meeting and since has sought to close the inquiry.
Bradley criticized the Innocence Project petition as a politically motivated attempt to undermine the death penalty. Bradley's forensic commission is scheduled to again take up the Willingham case at a meeting in Austin on Oct. 15.
Navarro County District Attorney R. Lowell Thompson sought Baird's removal from the case, noting in court filings that Baird previously ruled on Willingham's case as a member of the Court of Criminal Appeals and questioning Baird's impartiality because he received an award from the Texas Coalition to Abolish the Death Penalty.
When Baird previously heard the appeal, there was not yet evidence from fire experts questioning the validity of the arson determination.
Gerald Goldstein, a San Antonio attorney working with the Innocence Project, filed the petition asking Baird to "restore the reputation" of Willingham and declare he was wrongly convicted. Also signing on was a former Democratic Gov. Mark White.
"We want a fair hearing, whether it's before (Baird) or somebody else," Goldstein said.
Thompson, whose office convicted Willingham, said any court of inquiry hearing must be done "fairly and correctly."
Willingham publicly maintained his innocence until he was put to death. But on Wednesday, his ex-wife tearfully reiterated her contention that he confessed his guilt to her.
Stacy Kuykendall read a prepared statement to reporters outside the Travis County courthouse, saying Willingham set the fire that killed the girls "and watched while their tiny bodies burned." Kuykendall, whose story about whether Willingham confessed has changed over the years, declined to answer questions.
"My ex-husband murdered my daughters, and just before he was executed, he told me he did it," Kuykendall said.
Kuykendall's voice began quavering early in her statement, as she noted her oldest daughter would be 21 and her twins would be 19. "I think about my girls every day and I miss them," she said.
The now disputed arson finding made by a pair of fire investigators following the 1991 deaths of Willingham's daughters is at the heart of the case.
A jury in Corsicana, south of Dallas, convicted Willingham of capital murder in 1992. He was executed in 2004, after Perry turned down his final appeal despite evidence from a renowned fire expert that there was not enough evidence to support the arson determination.
Testimony from fire investigators was the primary evidence against Willingham. The defense did not present a fire expert because the one hired by Willingham's attorney also said the fire was caused by arson.
But the investigators' conclusions have been strongly challenged by several fire experts. Craig Beyler, the chairman of the International Association of Fire Safety Science and one of the foremost experts in the field, wrote in a report last year that investigators didn't follow standards in place at the time and did not have enough evidence to make an arson finding.
The opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation," Beyler wrote. The State Fire Marshal's Office continues to stand behind the arson finding.
The science commission was set to hear testimony from Beyler last year. But that meeting was canceled by Bradley, who had been appointed by Perry just days earlier.
The science commission is still looking into whether investigators were negligent in ruling the fire was caused by arson. Commissioners last month rejected Bradley's efforts to close the case and conclude that fire investigators did not commit professional misconduct.
During the brief hearing Wednesday, Baird noted that Perry's office had declined an invitation to attend. He released a letter sent to the court by Perry's general counsel, Caren Burbach, who characterized the proceedings as "improper collateral attacks upon a final judgment against a man found guilty of murdering his three children."
The governor's office previously supported a similar hearing in another case before Baird. Jeff Blackburn, chief counsel for the Innocence Project of Texas, successfully petitioned for a similar hearing in the case of Tim Cole, who was wrongly convicted of the 1985 rape of a Texas Tech student and later died in prison. The Army veteran was cleared by DNA evidence in 2008.
Earlier this year, Perry granted the state's first posthumous pardon to Cole.