When MSNBC's Brian Williams asked Rick Perry during a recent GOP debate if he ever worried that his state had executed an innocent man on Perry's watch, the three-term Texas governor didn't hesitate: "No sir, I've never struggled with that at all." Maybe he should have: As Steve Mims and Joe Bailey detail in their new documentary, Incendiary, the state's 2004 execution of Cameron Todd Willingham for the murder of his two children was based in large part on arson science that had been thoroughly rejected by the scientific community—something that Perry had been informed of before the "ultimate justice" was served.
Inspired by David Grann's masterful 2009 New Yorker story about the case, the Austin filmmakers set out to chronicle the flawed forensics behind the execution. They soon found themselves in the middle of a pitched political battle involving Perry's apparent maneuvering to put a thumb on the scales with the Texas Forensic Science Commission. Mims and Bailey spoke recently with Mother Jones about the Willingham case, arson science, and how they navigated the politics of capital punishment.
Mother Jones: What about Grann's story, and the case specifically, made you think "we need to make a film"?
Joe Bailey: I was so fascinated that the law and science and political forces were all animated in a life-and-death story. We saw that as a rare thing, and we thought that a documentary format allowed us the opportunity to explore the case in our own way and illustrate these things that seemed really fascinating—properties of fire, the human dynamic, and the appeals and petitions for clemency. We didn't expect it to erupt into this sort of political theater that it became: Just when we started making our film is when the shakeup of the Texas Forensic Science Commission happened, and it became sort of a dynamic and hilarious—darkly hilarious—struggle to document.
MJ: The centerpiece of the film, the forensics expert who explains why it wasn't arson, is Gerald Hurst. (He's the Willie Nelson figure in the trailer below.)
Hurst says the process that was used to convict Willingham "was akin to witch hunting." What's his critique?
Steve Mims: At the time the fire happened and they investigated the fire scene for arson, the people who showed up there had been trained as arson investigators by other arson investigators, and they were using techniques that were derived from anecdotal observations about previous fires. It turns out none of the stuff was correct, and it wasn't really based on the scientific method—it was based on one fire investigator training another fire investigator how to look for signs that someone had poured fuel in a dwelling or something to set it on fire. At roughly the same time, the real science, which was already known, was being put into a document that was put out the next year, NFP 921.
MJ: So one year separated the junk science from the real science.
SM: That's the thing: It was known that this type of arson science is inaccurate, but it was formalized a year later. People have been able to characterize this case in ways that make [the science] seem marginal. Well, it's marginal to everybody but probably the guy who gets convicted.
JB: NFP 921 was published in January 1992. State of Texas v. Willingham didn't commence until that August.
SM: It hadn't percolated down to Corsicana, Texas, I guess.
JB: It definitely wasn't there during the investigation. But the timing is sort of eerie in a way. And you see Ernest Willis, for instance, being exonerated by the state of Texas under exactly the same circumstances on October 6th, 2004, and that's only months after Willingham's execution.
SM: They've also characterized Willingham as a "monster" over and over again (see video below). They came to be very methodical in terms of how they talk about the people involved in the investigation in that way.
JB: Hurst actually grew up in Oklahoma, but he decided to make his home in Texas. After he’d graduated from Cambridge and he'd already created an explosive molecule and a patent, the Defense Department was like, "Hey, where would you like to be—we'll give you the acreage and the space to conduct tests?" and he said, "Austin." Hurst is a perfect example of the conundrum for many people in Texas, the way that they laud scientific progress when it's profitable and the way that they discourage it when it comes to throwing criminal prosecutions into question. Hurst created astrolite explosives that are used in the development of oil and gas; it's used in shooting seismic, used in fracking oil and gas wells. He invented that.
He's pro-bono taking these cases and trying his best to make things right, and you have the governor basically trying to throw that into question for reasons that [seem] political or sad and dark. What's unique about the Willingham case is that if the scientific evidence isn't there, then the fire wasn't an arson. And if the fire wasn't an arson, then there isn't an arsonist to convict or to charge. That's where the rubber meets the road from a legal perspective, and I think most attorneys, and people who could call themselves scholars of the Constitution, should understand that. When you reduce it to a character test, that's a harder argument to win for someone like Willingham, who wasn't the shining example of a pillar of society.
When you reduce it to a character test, that’s a harder argument to win for someone like Willingham, who wasn't the shining example of a pillar of society.
SM: Another thing that kind of gets pushed away when people talk about the original event is how outrageous the case that the state made was: Around 9 a.m. on a weekday in December, Willingham got up and poured some kind of fluid all over his house and set it on fire. And when he did that, he decided not to put any shoes on, or a shirt, so the story you have to believe is he consciously ignited his house, without putting shoes or a shirt on, and ran outside and pretended that he'd only just woken up and he found the place in flames. And in that state, he intentionally burned himself.
Or you can believe what the guy says. There were all these witnesses to his behavior at the fire site: They had to restrain the guy from going back in. They had to handcuff him to a gurney so he would not endanger his life or the firefighters' life.
JB: They also claimed that he poured accelerant in an X pattern. I think the argument was made at one point that it was in a pentagram, and the prosecutor and the judge believed that he was a Satanist because he had heavy metal posters on the wall and skull tattoos on his arm.
MJ: Most fans of heavy metal manage to avoid that.
JB: Yeah, I think so. We offer in the film as a concession, that yeah, he probably hit his wife, and he's probably a pretty questionable character in a lot of ways. But not somebody necessarily who would murder his children by burning them alive. There's a huge leap in psychology between a pretty typical domestic dispute and psychopathic murderer. They were able to make that leap with a lot of cultural biases about rock and roll.