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Gerald Hurst

Sonia Cacy

A long-time-coming story of actual innocence.

A judge has ruled that Sonia Cacy, a West Texas woman convicted of setting her uncle on fire, is innocent of murder, basing his decision on new analysis of evidence presented at her 1993 trial.

“The cumulation of evidence supports Applicant’s claim of actual innocence,” visiting state District Judge Bert Richardson said in his ruling, filed Monday in Pecos County. “This court finds that Applicant makes a compelling case for actual innocence, given the overwhelming evidence.”

[…]

Cacy had served five years of a 99-year murder sentence for the 1991 death of her uncle, Bill Richardson. The two were living in his Fort Stockton home when it caught fire. Prosecutors said Cacy had set her uncle on fire, also burning the home, to get the money he left to her in his will.

But multiple experts — including the State Fire Marshal’s office — concluded that Cacy did not set her uncle ablaze. Some suspected that Richardson, a smoker, likely died of a heart attack and that the fire was accidental. Cacy was released on parole after The Texas Board of Pardons and Paroles received one of the reports, but her conviction was never lifted. The Pecos County District Attorney and the Bexar County medical examiner’s office had stood by the original investigation results.

Judge Richardson’s ruling was largely based on a 2013 state Fire Marshal’s Office report that discredited trial testimony that there was an accelerant found at the crime scene.

“The findings of the State Fire Marshal’s Office — a state organized and endorsed office — are the strongest evidence that no accelerant was present and that Bill Richardson likely died of a heart attack before being burned,” Judge Richardson wrote in a ruling that comes two years after Richardson first heard Cacy’s petition for relief in Fort Stockton.

I have to admit, this story is not one I was familiar with. The link in the quoted bit above is to a Trib story from 2010, but it goes back much farther than that. Texas Monthly adds some details to what happened this week.

Cacy’s journey through the legal system has been long, winding, and complicated. During at punishment retrial in 1996, her new attorney enlisted Dr. Gerald Hurst, the late Cambridge-educated chemist from Austin, to evaluate the forensic evidence that clinched conviction against her. Hurst discovered that the original tests, conducted by Joe Castorena of the Bexar County Forensics Lab, had been completely misread. The results didn’t find the indicators of an accelerant as he claimed. Castorena, a toxicologist by training, had in fact identified the products of pyrolysis—compounds created by burning plastic, which in many ways are similar to those of an accelerant.

Hurst was convinced these compounds came from rubberized curtains and a polyurethane foam mattress, both of which were found burned at the crime scene. Cacy’s uncle was a chain smoker who was notoriously careless with lit cigarettes, one of the most common causes of household fires. Yet in spite of the evidence, a jury affirmed Cacy’s conviction in 1996 and re-sentenced her to life in prison.

By 1998, Hurst had become obsessed with the case, and had enlisted a panel of at least a dozen respected arson experts and pathologists, all of whom concluded that the fire was accidental, and that Richardson—a man of poor health—had died of a heart attack, possibly while attempting to extinguish the flames. The Board of Pardon and Paroles was moved by the reports and promptly released Cacy that year. Now, they would go about the work of establishing her innocence.

Her attorneys filed a complaint with the Texas Forensic Science Commission in 2010, but they could not have encountered a more unsympathetic audience; the commission’s presiding officer, John Bradley, was the law-and-order Williamson County district attorney who spent years opposing DNA testing in the Michael Morton case, testing that later cleared Morton of the murder of his wife. Bradley petitioned then-state attorney general Greg Abbott for a legal opinion preventing the commission from reviewing Cacy’s case. Abbott delivered, opining that any cases prior to the formation of the commission in 2005 were out of bounds—namely Cacy’s.

Her attorneys turned to the newly reformed State Fire Marshal’s Office, whose scientific advisory panel conducted a lengthy examination of the case and concluded that there was no evidence of arson. Cacy took the report to the Texas Court of Criminal Appeals in 2012, along with some shocking new evidence: Castorena, the toxicologist, admitted in a letter to her counsel, Dallas lawyer Gary Udashen, that the clothing samples he’d tested had been contaminated in either the morgue or the lab. Thus, his baffling reasoning went, anyone who didn’t know about the contamination couldn’t accurately interpret the results. Asked why he never reported this, Castorena replied, “nobody asked me.”

It gets more ridiculous from there. Texas Monthly has three other stories about the history of the case, which as the second one notes was one of the driving forces in reforming how fire investigations are done in Texas and why old arson cases are being reviewed to see which ones relied on bogus, outdated investigative techniques. It’s a little jolting to see John Bradley’s name pop up in this discussion, but hardly surprising. And please, can we scrub the descriptor “law-and-order” from stories involving Bradley? We know full well by now that he was the opposite of “law-and-order” – he was an unscrupulous liar who worked tirelessly to keep innocent people in jail. The adjectives he deserves are all some variation on “disgraced”. Anyway, click on all the links and learn more about Sonia Cacy and how terribly wronged she was by the justice system. The fact that this wrong is finally being made right doesn’t change any of what happened in the past.

Willingham documentary

From the Trib:

As you’re reading this, Steve Mims and Joe Bailey Jr. are putting the finishing touches onIncendiary, a new documentary about theCameron Todd Willingham case that focuses almost entirely on forensics — on the science behind arson investigations like the one that led to the Corsicana man’s arrest, conviction and execution following the death of his three small children in a 1991 house fire.

Mims and Bailey aren’t political activists; the former lectures in the University of Texas’ Department of Radio-Television-Film, while the latter is a graduate of UT’s law school. But they were so moved by an article about the Willingham case in The New Yorker that they decided to tackle one of the most controversial topics in the modern era of state’s criminal justice system.

Featured in the film are two arson science experts, Gerald Hurst and John Lentini, talking about the case and about forensics in general. Willingham’s original defense attorney, David Martin, also gets a lot of screen time — although, given his skepticism about any wrongdoing by the authorities, he could easily be mistaken for a prosecutor. Barry Scheck, co-director of the New York-based Innocence Project (and best known as a member of O.J. Simpson’s criminal defense team), plays a leading role as well.

But the breakout performance is that of Williamson County District Attorney John Bradley, who was appointed by Rick Perry to chair the Texas Forensic Science Commission just as the commission and its previous chair were inconveniently set to weigh in on the Willingham case during the gubernatorial campaign. Bradley is combative, bordering on hostile, from the moment he appears in Incendiary, both in his dealings with the press and with his fellow commissioners.

There’s an 8-minute preview at the Trib link, which is well worth your time to watch, plus a brief Q&A with the filmmakers. I look forward to seeing the finished product.

The case against Willingham

Most of the pushback against the criticism of the Cameron Todd Willingham investigation and conviction has so far been of the form of “He was a bad guy!” and “We did too use science to prove arson!”, neither of which has been the least bit convincing. The DMN has a story that does a much better job of creating doubt about any claims of innocence. Basically, Willingham made a lot of inconsistent statements over time, the Beyler report never concluded that the fire was not arson, just that arson could not be proven, and some media reports of one juror’s doubts about her guilty vote were overblown. It does not change the nature of the problem with his case, which is that the forensic techniques used to convict Willingham were bunk, and that many other people have been convicted on similar “evidence”, but it was still a bit bracing to read. I know I for one had held some incorrect beliefs about the case based on previous reporting, and it was good to get set straight on a few points.

But again, this doesn’t change the fundamentals of the case, which still all boil down to this:

Gerald Hurst, a Cambridge-educated chemist from Austin, began researching the fire evidence after being recruited in January 2004 by Patricia Ann Cox, a Willingham cousin. Hurst finished his report four days before the scheduled execution on Feb. 17.

His affidavit, filed in the trial court, said “most of the conclusions” reached by fire marshal Vasquez “would be considered invalid in light of current knowledge” in the fire investigation field. It said the finding of multiple origins – a persuasive sign of arson – “was inappropriate even in the context of the state of the art in 1991.”

Hurst did not express an opinion about what caused the fire in the affidavit. However, in a letter sent to Perry on Feb. 13, 2004, requesting a 30-day reprieve for his client, Willingham’s attorney stated “Dr. Hurst’s opinion is that the fire was not intentionally set.”

[…]

Beyler delivered his report in August. In it, he said “a finding of arson could not be sustained” based upon current standards of fire investigation or those in place in 1992. He did not say what caused the fire, as Corsicana Fire Chief Donald McMullan pointed out in a response.

In an interview Friday, Beyler said that he had no theory about what actually happened and that the cause of the fire is undetermined.

His report did not try to explain Willingham’s inconsistencies and adopted at least one of his claims as fact: that Amber was in her own bed right before the fire. He said he didn’t realize until The News told him that her body was found with the sheet pulled up near her shoulders, raising the question whether she was tucked in her parents’ bed all along.

Ultimately, he said, the conclusions he reached didn’t depend on Willingham’s statements. Beyler said he focused on the science.

“I do recognize that he said many different things to many different people,” Beyler said of Willingham.

At the end of the day, if the investigation of the Willingham fire had been done correctly, there likely never would have been charges filed. The evidence does not support a conclusion of arson. You can’t be certain what a DA might do, but if the one in this case had proceeded he might well have lost. We almost certainly would not be where we are right now had the fire marshal at the time done the right thing. That’s what it’s all about.

By the way, Cameron Willingham isn’t the only one who has given conflicting statements about what did or did not happen. So has his ex-wife Stacy, who is now claiming that he did in fact confess to her, despite saying the opposite in years past.

In a brief interview at her home in 2004, Kuykendall told the Tribune Willingham never made [a confession]. She confirmed that this year to a reporter from the New Yorker magazine.

Her statement that he confessed — and that he said he set the fire because she threatened to divorce him — also conflicts with other accounts that she has provided.

Eight days after the fire, in an interview with fire investigators and police, Kuykendall said that she and Willingham had not argued for at least two weeks and she made no mention of a threat the night before the fire to divorce him.

On that night, she told authorities, the couple went to a Kmart and picked up family photographs that she intended to give as Christmas presents.

She failed to mention a threat of divorce in a second interview as well, and under oath at the punishment phase of Willingham’s trial said he never would have hurt their three girls.

I’m no more inclined to believe what Stacy Kuykendall says now than I am to believe her brothers. The science is the key, as this Star Telegram article admirably reports (hat tip: The Contrarian). Everything else is a distraction.

Willingham’s supposed confession

I’m sure we’ll be hearing a lot about this in the coming weeks.

A newly released affidavit has a relative of the then-wife of Cameron Todd Willingham saying the condemned inmate confessed to her that he set the fire that killed their three daughters.

The statements from Ronnie Kuykendall are part of two affidavits released by the city of Corsicana in response to media requests.

[…]

The Corsicana Daily Sun reports Ronnie Kuykendall said that his sister, Stacy, on Feb. 8, 2004, called her family together to tell them about her last meeting with Willingham. Ronnie Kuykendall’s affidavit says his sibling cried as she said Willingham told her he had set the fire because he knew that she was going to leave him.

The print version of the Chron had a much longer version of the story, much of which appears here. In Googling around, though, I found this very different version of the story from the DMN.

Shortly before his execution, Cameron Todd Willingham reminded his former wife of his threat to “take away what’s most precious of hers” if she tried to leave him, a former brother-in-law said Thursday.

Tracy Kuykendall said his twin sister, Stacy, recounted the conversation with her ex to her family in February 2004. Kuykendall said he interpreted Willingham’s remarks as an admission that he set the fire that killed his three young daughters in 1991.

“He didn’t actually come out and say, ‘I killed the kids,’ ” Kuykendall said. “He had told Stacy during their time together, through the beatings and all, that if she ever left him that he would take what was most precious of hers, which was the kids.”

“He told her, ‘You remember what I always told you about what I would do if you ever left me?’ ” When his sister said yes, Kuykendall said, “he kind of made a note and said, ‘All right, there you go.’ They knew what was going on when that was said.”

Kuykendall said his sister had told him before the fire on Dec. 23, 1991, that she planned to leave Willingham after Christmas and take the children with her.

Different brother, different story. Obviously, I don’t know what exactly Willingham said to his former wife, but I’m not at all inclined to believe Ronnie Kuykendall. For one thing, his brother Tracy shows here that whatever Willingham might have said may well be subject to interpretation. He’s not around any more, so we can’t ask him if his recollection matches either of theirs. For another, as the DMN article and The Contrarian both point out, back in 2004 Stacy Kuykendall herself said that he did not confess.

Four days before the scheduled execution, [Willingham’s attorney Walter] Reaves attached [fire expert Gerald] Hurst’s report to a petition seeking relief from Texas’ highest court, the Court of Criminal Appeals, and from the governor.

“I didn’t see any way the court was going to deny us a hearing on it,” Reaves said. “No one could in good conscience go forward with that evidence.”

The response from local prosecutors included a two-paragraph affidavit from Ronnie Kuykendall, the brother of Willingham’s former wife. He said that Stacy, who had divorced Willingham while he was on Death Row, had recently visited him, then gathered the family to say that he had confessed.

But she said in an interview that was untrue. At the time of the trial, she said she had believed in her husband’s innocence, but over the years, after studying the evidence and the trial testimony, she became convinced he was guilty.

In their final meeting, however, he did not confess, she told the Tribune.

So yeah, I’m not inclined to believe Cameron Willingham’s ex-brothers-in-law. And I hope that any followup stories on this remind people of that fact as well.

But even if Stacy Kuykendall now comes forward and changes her story from 2004, it doesn’t matter. It’s all a distraction. What matters, first and foremost, is that the “science” used to arrest, indict, convict, and ultimately execute Cameron Todd Willingham was crap. It has no basis in reality. And whatever you think of Willingham, the fact remains that there are many people in jail right now who were put there because of the same crap science that snared Willingham. We can argue all we want about the death penalty, and whether or not Rick Perry should have intervened when he got a copy of the Hurst report (assuming he ever actually read it; we may never know), but what are we going to do about these guys who are in prison right now for non-existent crimes? Those guys are feeling the consequences of Perry’s meddling with the Forensic Science Commission the most. Put aside everything else and ask, what are we going to do with them, and will we get around to doing it before one of them becomes the next Timothy Cole?

More heat on Perry over the Forensic Science Commission

The Chicago Tribune provides further evidence that gutting of the Texas Forensic Science Commission was all about politics.

Just months before the controversial removal of three members of a state commission investigating the forensics that led to a Texas man’s 2004 execution, top aides to Gov. Rick Perry tried to pressure the chairman of the panel over the direction of the inquiry, the chairman has told the Tribune.

Samuel Bassett, whom Perry replaced on the Texas Forensic Science Commission two weeks ago, said he twice was called to meetings with Perry’s top attorneys. At one of those meetings, Bassett said he was told they were unhappy with the course of the commission’s investigation.

“I was surprised that they were involving themselves in the commission’s decision-making,” Bassett said. “I did feel some pressure from them, yes. There’s no question about that.”

You need to read the whole thing, because it just gets worse for our only Governor. Combine this with the Chron story from Sunday about Perry stonewalling attempts to release information about what he and his staff did with the report Gerald Hurst prepared prior to Cameron Todd Willingham’s execution, and there’s a whole lot of heat being brought. Sooner or later, something’s got to give.

Now turn the clock back to August, when the Beyler report was released, and imagine a world in which Governor Perry accepted its findings, admitted to his role in the wrongful execution, and gave a speech that said while he still believes in and is committed to the death penalty, he will now dedicate himself to making sure that the system works as it is supposed to so that we’ll never again need to ask these questions after an inmate is put to death. Do you think he’d be in a better position politically than he is now if he did that, or worse? It’s not a completely obvious question, since his first priority is the Republican primary, and the voters there don’t really care about trivia like this, but I don’t think this would cost him many votes with that crowd. It might even make him look statesmanlike, and would bolster him in the general election. Now, it’s certainly true that he can and indeed will be favored to prevail in both March and November next year even given his ham-handed behavior. But I don’t think history is going to be too kind to him at this point. Maybe he doesn’t care about that, I don’t know. All I can say is that if he does, it’s too late to do anything about it now. BOR, The Contrarian, Grits, and TPM have more.

Perry fills out rest of Forensic Science commission

Sam Bassett, the now-former Chair of the Texas Forensic Science Commission whom Rick Perry abruptly replaced with Williamson County DA John Bradley, wasn’t the only member of the Commission that got the ax, but his was the only slot that was immediately filled. On Friday, Governor Perry named the replacements for the other Commissioners whose terms had expired.

Named to the nine-member panel were Lance Evans, a Fort Worth criminal defense lawyer, and Randall Frost, head of the Bexar County Medical Examiner’s Office in San Antonio.

The pair joins Perry’s earlier appointments, Williamson County District Attorney John Bradley and Norma Farley, chief pathologist for Cameron and Hidalgo counties, who were named to the panel on Sept. 30 — just two days before the commission was to hear testimony in an arson case that resulted in a man’s execution.

Legislation creating the commission empowers Perry to name four members, one of whom must be selected from a list submitted by a defense lawyer’s association. The remaining commission members are appointed by the lieutenant governor and attorney general.

Terms for Perry’s new appointees will expire on Sept. 1, 2011.

All right then. Bradley now has a complete team to work with, so that’s one fewer excuse for not rescheduling that meeting and for not meeting other obligations. The clock is officially ticking. Will Bradley take action before he has to explain himself to Sen. Whitmire, or will he spend that time working on his next batch of excuses? Stay tuned.

UPDATE: I had missed this when I first published, but it sure explains a lot about why Rick Perry wants to make the whole thing go away.

Just 88 minutes before the February 2004 execution of Cameron Todd Willingham, Gov. Rick Perry’s office received by fax a crucial arson expert’s opinion that later ignited a political firestorm over whether Texas, on Perry’s watch, used botched forensic evidence to send a man to his death.

In a letter sent Feb. 14, three days before Willingham was scheduled to die, Perry had been asked to postpone the execution. The condemned man’s attorney argued that the newly obtained expert evidence showed Willingham had not set the house fire that killed his daughters, 2-year-old Amber and 1-year-old twins Karmon and Kameron, two days before Christmas in 1991.

On Feb. 17, the day of the execution, Perry’s office got the five-page faxed report at 4:52 p.m., according to documents the Houston Chronicle obtained in response to a public records request.

But it’s unclear from the records whether he read it that day. Perry’s office has declined to release any of his or his staff’s comments or analysis of the reprieve request.

A statement from Perry spokesman Chris Cutrone, sent to the Chronicle late Friday, said that “given the brevity of (the) report and the general counsel’s familiarity with all the other facts in the case, there was ample time for the general counsel to read and analyze the report and to brief the governor on its content.”

A few minutes after 5 p.m., defense lawyer Walter M. Reaves Jr. said he received word that the governor would not intervene. At 6:20 p.m. Willingham was executed after declaring: “I am an innocent man, convicted of a crime I did not commit.”

Summaries of gubernatorial reviews of execution cases previously were released as public records in Texas, most recently under former Gov. George W. Bush. Yet Perry’s office has taken the position that any documents showing his own review and staff discussion of the Willingham case are not public — a claim the Chronicle disputes.

Without those records, the question of how much — or how little — Perry considered the newly obtained evidence in his decision to proceed with execution will remain forever a state secret.

Good work by reporter Lise Olsen, who also put together a timeline in the sidebar. I hope the Chron takes this to court, because the public has a right to know what Rick Perry did with this last-minute evidence. Even the original prosecutor, John Jackson, who remains convinced of Willingham’s guilt (though I think there’s a good chance he’ll eventually come around) says Perry should release the records. What are you hiding from us, Governor Perry?

One more for the arson-that-wasn’t files

Meet Alfredo Guardiola, currently serving a 40-year sentence for arson-related murders that were almost certainly deaths that resulted from an accidental fire. His case has another chestnut in it, the coerced confession. It’s story number three in a series by the Observer (here are parts one and two), and it doesn’t get any less depressing to read. But read you must, because we need to know what we’ve been doing in the name of justice, especially when it’s still possible to do something about it.