death penalty news—-TEXAS

Sept. 26


Texas commission to consider report disputing the arson finding that led
to man's execution

More than 5 years after his final act from the Texas death chamber gurney
was a profanity-filled tirade, the murder case of executed inmate Cameron
Todd Willingham refuses to die.

Willingham was executed in February 2004 proclaiming his innocence and
hoping aloud that his wife would "rot in hell" for the deaths of his 3
young daughters in a fire at their Corsicana home on Dec. 23, 1991.

An arson finding by investigators was key to his conviction in the
circumstantial case.

The Innocence Project, a nonprofit legal organization that investigates
possible wrongful convictions, questioned Willingham's guilt. Now the
Texas Forensic Science Commission will review a report Friday from an
expert it hired who concluded the original arson determination was faulty.

The prosecutor in the case still believes Willingham is guilty, but
acknowledges it would have been hard to win a death sentence without the
arson finding.

Yet Barry Scheck, co-director of the New York-based Innocence Project,
sees it differently: "There can no longer be any doubt that an innocent
person has been executed."

In 2006, Scheck's group gave its review of the case to the state
commission, which later hired Baltimore-based arson expert Craig Beyler to
study. Beyler concluded the arson finding was scientifically unsupported
and investigators at the scene had "poor understandings of fire science."

John Jackson, the prosecutor in Navarro County, about 50 miles south of
Dallas, says the original fire investigation was "undeniably flawed,"
based on subsequent reviews, but remains confident Willingham was guilty
of killing Amber, 2, and 1-year-old twins Karmon and Kameron.

"What people missed is that even though the arson report may be flawed, it
certainly doesn't mean it arrived at a faulty conclusion," Jackson said.

"I'm an easy target," he added, shaking his head over media reports on the
case "about how we're all a bunch of bozos."

The nine-member commission, created by the Texas Legislature in 2005, also
will hear from others including the State Fire Marshal's Office. The panel
will release its own report, probably next year and what happens then is
uncertain. This is the commission's 1st review case; the panel is not
empowered to rule on Willingham's guilt or innocence.

The commission's mandate is strictly to determine forensic negligence,
panel coordinator Leigh Tomlin said.

Willingham, in an Associated Press interview about two weeks before his
execution, said Amber's cries woke him around 10:30 a.m. His wife, Stacy,
had left earlier to run errands.

He said he told Amber to get out of the house and approached the twins'
room but couldn't get past the flames and smoke. The house had no phone,
so he said he ran to a neighbor's home and "screamed to call the fire

He did not go back inside.

"The only way for me to get back into the house was to jump back into the
flames," he said. "I would not do that."

Amber's body was found in Willingham's room. The twins were in their room.

Willingham listed other possible causes of the fire, including an
electrical malfunction, an intruder who wanted them dead, or an oil
lantern on a collapsing shelf.

A state fire marshal who has since died and a local fire investigator
ruled it was arson, that a liquid accelerant was ignited and the blaze was
set in a way to keep anyone from reaching the children. Prosecutors
arrested Willingham 2 weeks later.

"It's all a farce," Willingham told the AP from death row.

Years later, Innocence Project investigators and now Beyler, based on
notes and photos from the scene, agree with him.

Douglas Fogg stands by his conclusions as the former assistant fire chief
who helped investigate the deadly blaze.

"The bleeding hearts that are against the death penalty are trying to stir
everything up again," he told The Dallas Morning News last month. "They
finally got someone who would say what they wanted to hear."

Other prosecution evidence was largely circumstantial: A county jail
inmate said Willingham discussed his involvement in the fire and neighbors
reported Willingham worried more about his car than the children as the
house burned.

Jackson, the Navarro County prosecutor, said the multiple deaths not the
arson made it a capital murder case. But he acknowledged that without an
arson determination the capital conviction would have been difficult.

"I'm not sure the evidence would have sustained a conviction from a legal
standpoint if we hadn't been able to prove a fire of incendiary arson," he

At trial, Willingham's wife, Stacy, testified for him during the
punishment phase, denying he ever hurt her. Acquaintances, however, said
she told them he'd beaten her several times, even while she was pregnant.

On appeal, courts rejected Willingham's arguments that it was improper to
allow hearsay bolstering prosecutors' contentions that the children
impeded Willingham's lifestyle. He denied that.

"They were great kids," he said from prison. "They were fantastic kids."

Willingham acknowledged a rocky relationship with his wife, whom he
married about 2 months before the fire and after they'd been living
together for almost 3 years.

"I cheated on her," he told the AP. "I was so full of myself and so dumb."

His venom from the death chamber was aimed at her as she watched his

In the years following his conviction, she became convinced of his guilt,
refused his request to testify for him at a clemency hearing, but did
agree to his long-standing invitation to see him in prison about 2 weeks
before he was scheduled to die.

"It was hard for me to sit in front of him," she said, describing their
meeting to the Corsicana Daily Sun a few days later in 2004 in her most
recent public comments. "He basically took my life away from me. He took
my kids away from me."

Jackson said jurors who heard the prosecution's case got a more complete
picture of Willingham and that the arson questions now raised are "wild

"I'm pretty ambivalent when it comes to the death penalty," Jackson said.
"I guess if it raises the question of the propriety of capital punishment,
I think that's a good argument for people to have.

"I'm not losing a whole lot of sleep."

(source: Associated Press)


With little oversight in Texas, autopsies often careless

The man almost took the dirty secret of his death to his grave. The
Tarrant County medical examiners office said injuries from a pickup wreck
killed him. But after a funeral director hundreds of miles away found a
bullet in the mans head, authorities realized a killer was on the loose.

Worse has happened in the autopsy suites of Texas medical examiners.

A child molester faked his own death and almost got away with it after the
Travis County medical examiner mistook the burned body of an 81-year-old
woman for the 23-year-old man.

A woman was on her way to Death Row in Alabama after a medical examiner
now working in Texas said she had suffocated her newborn. The sad truth,
other experts said, was that the baby was stillborn.

An Austin baby sitter has spent years on death row for a babys murder. The
medical examiner whose testimony helped put her there now says the babys
death may have been an accident.

The medical examiner is the doctor-detective who is supposed to extract
truth from the hodgepodge of details about a death. By examining body
tissues, organs and fluids, gathering data from a crime scene and
examining lab results, the medical examiner provides insight into how and
why someone has died. Those judgments are of consequence for violent or
suspicious deaths, as well as for unexplained deaths and those that might
result from negligence or improper care.

County officials say the state's system works well by unraveling questions
surrounding death at a reasonable cost to taxpayers. In the courtroom,
much of the work, they say, stands up to scrutiny.

But over the years, Texas medical examiners have misidentified bodies,
botched examinations and had to do a double take on cases of individuals
later exonerated by law enforcement. That has opened the door for innocent
men and women to go to prison and killers to go free. The slapdash work of
some medical examiners could also allow public health threats, wrongful
deaths and preventable medical errors to go undetected, experts warn.

"The work of the medical examiner's office is just so slipshod," said
Tommy Turner, the former special prosecutor who put a Lubbock medical
examiner behind bars for falsifying autopsies.

Critics say the medical examiner's office is "the last bastion of junk
science." The problems, they say, are similar to those that plagued the
states crime labs for years: lack of performance standards, poor
documentation, a shortage of qualified personnel and lax oversight.

"The state does not keep track of MEs in any shape, form or fashion,"
Bexar County Chief Medical Examiner Randall Frost said. The state doesn't
even know how many certified forensic pathologists work in government
offices, he added.

And a medical examiner doesnt have to be trained in forensics or pass a
specialty exam to do an autopsy. All that's required is a state medical
license. That's akin to having your family doctor do brain surgery, says a
growing chorus of medical examiners.

"It's a travesty for Texas," Frost said. "Most people are horrified that
there are no qualifications for this field under the law. They are shocked
when I tell them that."

Thoroughness questioned

How often do autopsy blunders occur? No one knows because there are no
state data to track when a medical examiner recants a previous
determination or when colleagues resoundingly disagree with him or her,
leading to different outcomes on death certificates or death row.

The Texas Medical Board keeps records on physicians found to have fallen
short of the standards of care or to have committed other violations. But
for years, it didn't consider the performance of an autopsy as the
practice of medicine because an autopsy has no potential to harm the
patient. The board reversed its position in 2000 when it disciplined an
unlicensed physician working at the Harris County medical examiner's
office. The office was the target of whistle-blower lawsuits and
complaints from the district attorney.

Still, the board said it receives few complaints about medical examiners.

County officials, among others, say that if there are problems with
medical examiners opinions, the adversarial system of the courts will help
ensure that they are exposed. By and large, there have been no such
revelations, the officials say.

"We've not had district attorneys coming and saying, 'We're losing because
we're not getting quality autopsy work,'" said Donald Lee, executive
director of the Texas Conference of Urban Counties. "If there was a
widespread problem with the autopsy process, you would think that DAs
would be coming to their fellow county officials and raising the alarm."

In Tarrant County, officials say there may be problems elsewhere in Texas,
but they are confident in Chief Medical Examiner Nizam Peerwani's office.

"I've heard horror stories from other counties about their medical
examiner," County Commissioner Gary Fickes said. "But I have not been made
aware of any major problems, just a few little items, but I don't think
they are of any magnitude."

Turner sees flaws in such arguments. Who would complain, he asks. "First
of all, the person that you're performing the work on is dead," he said.
"They're not going to complain."

And grieving families may not know whether a licensed physician examined
their loved one or whether appropriate tests were conducted, he noted.

Concerns are being pushed into the limelight, though. Convictions have
been overturned or called into question because of incomplete or sloppy
autopsy records, failure to conduct vital tests and preserve key evidence,
or the use of flawed methods.

A half-dozen forensic pathologists have criticized Webb County Chief
Medical Examiner Corinne Stern's autopsy of a newborn when she worked in
Alabama. She said the infant was suffocated, but other experts said that
her finding was based on junk science and that the boy was stillborn. As a
result, a capital murder charge against the mother was dismissed.

Some medical examiners themselves question the thoroughness of some
autopsies. Their concerns were echoed in a report by the National Academy
of Sciences to Congress this year. It said the quality of forensic science
work including crime labs and medical examiners' offices is undermined
by inadequate training, inconsistent practices and a lack of oversight.

"These shortcomings pose a threat to the quality and credibility of
forensic science practice and its service to the justice system," the
report warns.

Major blunders

Elizabeth Gard's husband died within 48 hours of being admitted to an El
Paso hospital. She waited 2 1/2 months for the autopsy report, wondering
whether his death resulted from injuries in a traffic accident 6 weeks
earlier or poor medical care after the wreck.

When she finally saw the report, she was shocked to see her husband
identified as Hispanic.

"He was white, blue eyes, really white. He was pink, a big white guy," she
said. "There's no mistake he was a white man."

She called the medical examiner, and the error was corrected. But other
problems surfaced that made her question the cause of death, and she was
disturbed that no toxicology test was performed.

Medical examiners have goofed up eye color and gender. They've made
mistakes on the locations of scars and tattoos, described gallbladders and
appendixes that had long since been removed even confused one body for

Some medical examiners say such minor oversights don't indicate that the
case has been bungled. Typos occur, and the eyes turn cloudy after death,
Peerwani said.

An appendix may have been removed, but a fingertip-size portion could
remain, he said.

But such errors call into question the integrity of death investigations,
said Burnet County Justice of the Peace Peggy Simon, who caught numerous
blunders by the Travis County medical examiner's office when it was headed
by Dr. Roberto Bayardo.

Burnet County doesn't have a medical examiner, so like other counties with
populations under 1 million, it relies on justices of the peace to sign
death certificates. Simon goes to death scenes to perform the inquest, an
inquiry to determine the cause of death.

Once, she saw a car crash victim's dentures lying next to his body. But
when she read the autopsy report, it said the man's teeth were natural and
in good condition.

Four years ago, she saw a charred body pulled from a car that was set on
fire. Police identified the body as that of a man sentenced to prison for
molesting a child. Apparently, he had killed himself. Final identification
depended on findings by the medical examiner, which conducted autopsies
not only for Travis but also for more than 40 other counties.

The autopsy, by Dr. Vladimir Parungao, reported that the body had a penis,
as well as urine in the bladder. But Simon, who had observed the size of
the body at the scene, challenged the autopsy and ordered DNA testing.
Turned out the body was that of an elderly woman who had died more than a
year earlier.

"A penis? Urine in the bladder? That would be pretty unlikely, I would
think," Simon said.

The convicted man, Clayton Wayne Daniels, had dug up the body of the
81-year-old to fake his death.

"I wonder … what mistakes your office has made?" Simon wrote the medical

Parungao told the Star-Telegram that when he received the body, police had
identified it as Daniels. The body was so charred, he said, he had trouble
identifying organs.

"I should have been very careful," he said. "I let my guard down."

He also said that Bayardo required pathologists to quickly issue autopsy
reports, even before tests were completed; if new information came up, the
policy was to amend the reports.

Bayardo, who has since retired, said that even competent medical
examiners, like Parungao, can make mistakes. "He got bad information and
took it 100 %," Bayardo said of his deputy in a recent interview.

Such inaccuracies can be corrected, he said; medical examiners can change
their opinions, as he has done. Others say the willingness of some medical
examiners to alter their conclusions shows their shaky foundation. In May
2007, Bayardo changed the original testimony that helped put Austin baby
sitter Cathy Lynn Henderson on death row. In 1995, he testified that the
baby died from intentional blows. But after experts hired by Henderson's
attorneys challenged the opinion, Bayardo said he could not tell whether
that had been the case or whether Henderson had accidentally dropped the
child, as she claimed.

A criminal appeals court granted Henderson a reprieve 2 days before her
scheduled execution. Her case was sent back to the trial court, where it
is pending.

A team of other experts, including Galveston County Chief Medical Examiner
Stephen Pustilnik, has reviewed the case for the state and said Bayardo
was right the 1st time. Pustilnik said the baby's skull had been shattered
and the death was clearly a homicide.

It took much probing to discover flaws in autopsies by former Lubbock
Chief Medical Examiner Ralph Erdmann. After families raised concerns about
errors in his work, Turner got court permission to disinter bodies so
another pathologist could review the deaths. As the bodies were dug up,
truths were unveiled.

A bullet was found inside the head of man whose autopsy report had noted
an exit wound on the top of his head. A baby was found with intact
intestines, though Erdmann had said the baby's bowels had been ruptured
when he was struck.

Missing evidence

Lax laws and poor oversight allow such lapses, critics say.

One significant weakness: Texas law doesn't require medical examiners to
take notes, produce body diagrams or photograph evidence.

Such documentation is essential, said Dr. Ray Fernandez, chief medical
examiner for Nueces County. Without it, a medical examiner can't back up
an autopsy in court or show the validity of conclusions if challenged.

"A good report is based on how well that person documents their
observations, so that another pathologist looking at the photographs, the
diagrams, the report looking at all of it can at least assess the
accuracy of what was done," said Dr. LeRoy Riddick, a retired forensic
pathologist who is a professor at the University of South Alabama. "The
interpretations are something else."

In one of the state's most high-profile cases the 1991 murders of 4
teenage girls at an Austin yogurt shop pathologist Tommy Brown, who did
the autopsies for Travis County, told jurors that he did not take crime
scene photographs but relied on those taken by police.

He also said that "a lot of times" information he dictated didn't get into
his autopsy reports or he didn't dictate information that should have been
included. 2 men convicted in the slayings, based largely on their
confessions, were released this summer after new DNA tests showed that
another man could have been involved.

Bayardo told the Star-Telegram that he never took notes because he feared
they would be subpoenaed.

"That's always a problem," he said.

Instead, he would create an autopsy report by dictating information on

In another case that drew in the Tarrant medical examiners office, capital
murder charges against a young couple were dismissed 2 years after their
babys death when some evidence apparently disappeared.

That case offered up a merry-go-round of opinions.

Bayardo declared the cause of death undetermined. Peerwani, who was asked
for a separate opinion, released a report saying that the baby died of
head trauma and that the case was a homicide.

Bayardo questioned how Peerwani who didn't examine the brain because it
was apparently misplaced came to that conclusion.

"How can you say she died of head injuries when you have no brain?"
Bayardo said in a recent interview.

Peerwani has said he had slides with brain specimens and sent them to a
specialist for review. The charges were dropped when the slides could not
be found.

In a recent interview, Peerwani supported his preliminary finding of
homicide: "A kid that little doesn't have so many rib fractures."

The Texas Medical Board did take action after whistle-blowers complained
about former Harris County Medical Examiner Joye Carter. Initially, it
sought to revoke or suspend her license after finding that she used an
unlicensed pathologist to conduct hundreds of autopsies. Eventually,
though, she was fined $1,000.

Questions about her work continued to be raised.

Numerous pathologists, including Dr. Lloyd White of the Tarrant County
medical examiner's office, have questioned Carters findings in the slaying
of Conroe college student Melissa Trotter.

The time of the womans death was a critical piece of evidence. Carter said
the young woman had been dead for 25 days or more when her body was found
north of Houston. That helped persuade a jury to convict an ex-con. He
could not have committed the crime if the woman had been dead a shorter
time, because he was in jail for traffic violations.

But forensic pathologists testifying for the defense pointed to evidence
that they said showed the body could not have been in the forest for more
than 2 weeks. The young woman's weight before she died was just 4 pounds
more than when Carter performed the autopsy. Had Trotter been dead for 25
days, her body would have been in more advanced stages of decomposition
and weighed much less, the pathologists said.

Dr. Glenn Larkin, a former medical examiner in Pennsylvania, also called
Carters autopsy "sloppy," "irresponsible" and "misleading," noting that
key medical records were missing and that some tissue samples had

After the criticism, Carter signed an affidavit agreeing that Trotter
could not have been dead for more than 2 weeks. She blamed problems on not
having key evidence during the autopsy. A video of the crime scene and
medical records were not available to her, she wrote.

Carter did not respond to repeated requests for comment.

The convicted man's execution was postponed, but prosecutors are standing
by Carter's original autopsy report. The defense team, clamoring for the
appeals court to intervene, points out that the state is rejecting
opinions from some of the very pathologists prosecutors have relied on in
other criminal cases.

"If all [these] medical examiners are all wrong on Melissa Trotter, how
can they be right on all other cases?" said private criminal investigator
Tina Church.

"There's no room for error when somebodys life depends on their findings."


Autopsies required

In Texas, inquests by medical examiners are required when:

– A person dies within 24 hours of admission to a hospital or institution.

– A person dies in prison or jail.

– A person is killed or dies an unnatural death.

– A person dies in the absence of one or more good witnesses.

– A body part or body of a person is found and the cause or circumstances
of death are unknown.

– The circumstances of the death are suspicious.

– A person commits suicide or is suspected of having done so.

– A person dies without having been attended by a physician and the cause
of death is unknown.

– A child younger than 6 dies and the death is reported under state law
dealing with child welfare services.

– The attending physician is not certain about the cause of death.

[source: Texas law]

(source: Fort Worth Star-Telegram)