death penalty news—-TEXAS

Oct. 16


'Junk Science' Emerges in Graves Case

It's been 17 years since Bobbie Joyce Davis, her daughter, and 4
grandchildren were murdered inside their home in Somerville, about 70
miles east of Austin, and the home was set on fire in an attempt to cover
the crime. It's been nine years since Robert Carter, the father of one of
the children killed in the crime, was executed for his admitted role in
the bludgeoning murders. And it's been three years since the 5th U.S.
Circuit Court of Appeals overturned the conviction of Anthony Graves, who
was sentenced to death for the murders based almost entirely on the word
of Carter, who had fingered him as an accomplice. But if and when Graves
will finally be retried for the crime remains unclear and as time wears
on, the state's case against Graves grows weaker and increasingly more

Graves has maintained his innocence since the 1992 murders. He was tried
in 1994, with Carter testifying to Graves' involvement. What Graves and
his defenders did not know at the time, however, was that Carter had
repeatedly recanted that assertion both to Texas Ranger Ray Coffman, who
was investigating the crime, and to then-Burleson Coun ty District
Attorney Charles Sebesta, who was trying the case.

Indeed, Carter had recanted to Sebesta the night before testifying for the
state against Graves. The 5th Circuit overturned the case in 2006, ruling
that Sebesta had withheld statements from Graves and had elicited false
testimony from Carter.

Since then the case has slogged strangely forward. Although Carter was
executed in 2000 and is thus permanently unavailable to testify during any
retrial, the state, through its special prosecutor Patrick Batchelor (who
worked on the conviction of Cameron Todd Willingham, whose 2004 execution
is now a matter of high-profile debate as a likely example of the state
having executed an innocent man), sought to have Carter's likely perjured
testimony allowed into evidence during Graves' expected retrial. How the
defense could be expected to cross-examine a dead man is unclear as is an
explanation of how allowing that testimony into evidence wouldn't run
afoul of Graves' Sixth Amend ment confrontation right. Nonetheless, Judge
Reva Towslee-Corbett (whose father presided over Graves' first trial) has
said she would allow Carter's statements into evidence.

Graves' retrial date has been pushed back several times. And now, new
developments have further derailed any hope for a "speedy" trial;
Katherine Scar dino, one of Graves' attorneys, says a Feb ru ary 2010
trial date is now also certain to be postponed to some unknown future
date. One sticking point is figuring out who will be in charge of trying
the case for the state: Citing health issues, Batchelor has now filed a
motion seeking to be removed from the case. An attorney from the Texas
Attorney General's Office would be a likely candidate to take over the
case, but at press time, the A.G.'s office had not responded to a request
for comment.

Additionally, new "evidence" that the state is seeking to use against
Graves will likely cause yet another pretrial hiccup. Specifically,
prosecutors this summer brought in Fort Bend County Deputy Keith Pikett to
conduct a "scent lineup" a practice of dubious scientific validity that
was recently the subject of a scathing report from the Lubbock-based
Innocence Project of Texas. This type of lineup, with dogs supposedly
matching a scent from a crime scene to a scent collected from a suspect,
is junk science, the Innocence Project charges, while questioning Pikett's
techniques in conducting the dog-led lineup. The procedure has indeed been
implicated in a number of wrongful arrests and convictions. According to
the report, released Sept. 21, Pikett has no formal training in the
practice nor does he apparently think any is necessary. Pikett has
testified in court (in a matter unrelated to Graves) that there is no need
for formal training or for scientific rules or protocols when conducting
such lineups, and Pikett has rejected the importance of scientific studies
regarding scent identification. Nonetheless, prosecutors across the state
including with the Texas Attorney General's Office have relied on Pikett
for "expert testimony" in a number of criminal cases.

In the Graves case, Pikett's dogs apparently "hit" on two items of
clothing evidence taken from the scene of the 1992 murders linking them
to Graves' scent during a lineup conducted in a parking lot. But the
validity of those results is hardly credible, says Scardino. For starters,
the evidence was collected from a burned-out house 17 years ago and then
was part of evidence that was "lost" for years, until the state finally
found it among a host of evidentiary items that had been stored in a cell
in the old and unused Caldwell jail. The notion that the evidence has not
been compromised and that dogs could smell Graves on 2 of 6 items
presented to them by Pikett is simply ludicrous, says Scardino. The
"evidence was burned," she said, and Graves' "scent wouldn't be on
evidence after it burned." Scardino said Graves' defense team has not yet
filed a motion seeking to exclude the evidence but is likely to do so.
Given Towslee-Corbett's rulings thus far, Scardino isn't confident that
Pikett's evidence will be excluded. But if it's allowed, she said, the
Graves team has a nationally renowned FBI expert who will take it apart in

To Scardino, the bottom line is that the state has no case against Graves
but is going to extremes to pretend that it does: "It's junk science,"
Scardino said. "I am embarrassed and ashamed of my fellow lawyers who
would agree to use that kind of evidence in a case where a man could die."
(source: Austin Chronicle)


Fire expert says flawed science, not politics, is controversy's core issue

The arson expert at the center of a death penalty storm said Thursday that
the political fight over whether Cameron Todd Willingham was wrongly
executed is obscuring a broader problem: flawed science that is failing
the justice system.

Dr. Craig Beyler, a Harvard-educated engineer and chairman of the
International Association for Fire Safety Science, said he is frustrated
by Gov. Rick Perry's attack over his finding that there's no proof that
arson caused the 1991 Corsicana fire that killed Willingham's 3 children.

Willingham, protesting his innocence, was executed in 2004 after Perry
reviewed the case.

Perry said Thursday that Beyler had lost his credibility and exposed his
political agenda by criticizing the governor's actions and calling Perry's
changes to a forensic-science panel unethical.

"I would suggest to you that if you look at the bulk of Mr. Beyler's
remarks over the last days and weeks, you will see a very politically
driven agenda," Perry said during a visit to a Richardson high school.
"This is a politically driven agenda by a group of people."

Beyler has been reluctant to speak publicly on the investigation, and late
Wednesday, he said in an e-mail that Perry should stay out of the
subsequent investigation because he approved the execution of Willingham.

Perry has tried over the last few days to fashion his decisions in the
case as strong support for the death penalty, and he has questioned the
motives of those who would challenge the evidence.

Beyler, in one of his first interviews, said Thursday that he was speaking
out for a single reason: to insulate science from politics.

"My agenda is that the governor should keep his hands off scientific
investigations," he said.

Concerns that the Willingham arson verdict was based on discredited fire
investigation methods were first raised in 2004, shortly before his
execution. A later panel of independent scientists gathered by the
Innocence Project also questioned whether arson caused the fire.

Last year, the Texas Forensic Science Commission, which is charged with
assuring the integrity of scientific evidence in the justice system, hired
Beyler to review the case.

His highly critical report was released in August. He found that no
investigator, based on the evidence, could have determined that the
Corsicana fire was intentionally set. 2 days before Beyler was to appear
before the commission and present his report, Perry replaced 4 commission
members, including the chairman. The meeting was canceled.

Perry, as his office had previously, questioned the direction being taken
by the Forensic Science Commission.

"It seems strange to me," Perry said. "If you were really interested in
getting to the truth, you would have at least asked people who actually
there, experts, law enforcement officials, fire officials, who were
actually there."

Nevertheless, he said, the reconstituted commission would continue its

"The commission's going to go forward and address these new, supposed
pieces of science," Perry said.

Perry says the evidence shows Willingham to be guilty, and he dismisses
the work of Beyler and other arson experts. The governor declined to
specify Thursday what evidence he believes backs up the case.

Beyler said his criticism of Perry stems from the governor's dismantling
and upending the work of the commission.

"Whether he just didn't have a clue that he had a conflict of interest,
which I suppose that's plausible, or he chose not to do the right thing, I
can't tell you," Beyler said.

The scientist said the governor's inference that Beyler is motivated by
sentiment against the death penalty is absurd, though he declined to say
what his belief on the topic is.

"There can be legitimate findings of murder by arson, and there can
illegitimate ones. Both exist. And I had no preconceived notion as to
which this was," he said of the Willingham case.

He said his greatest concern is that the political fight is burying the
real work, which was alluded to by a recent National Academy of Sciences
report that stated there are problems throughout the forensic sciences and
what is being presented in courtrooms today.

"This is simply a specific example of a wake-up call to the broad notion
that forensic sciences need help and work. This is not something unique to
Texas. It's a national issue," Beyler said.

He said the Willingham case, and another he looked at involving Ernest Ray
Willis, who was subsequently released from Texas' death row, revealed the
same pattern of shoddy forensic work that relied more upon folklore than

In Willingham's case, the investigators' theory of the fire is
"inconsistent with eyewitness testimony," he said. In addition, the key
markers they pointed to as indications of arson have all been discredited
by more recent fire science, and both investigators testified that
alternate explanations existed for what had happened.

"My scope of work was to show whether it was arson or not, and I concluded
that they had not," Beyler said. "Some people would say if it's not arson,
it's not murder. I didn't connect those dots, but most people would."


A look at the evidence in the Cameron Todd Willingham case:

His story: Willingham, an unemployed mechanic with a history of spousal
abuse and a criminal record for drugs, said he was awakened by his
2-year-old daughter, Amber, and told of a fire in their home in 1991. He
instructed Amber to run outside and went into another bedroom to find
1-year-old twins Karmon and Kameron but couldn't because of smoke. He said
he ran outside and broke open their bedroom window, but flames shot out.
All 3 children died in the blaze in Corsicana.

Arson investigation: Willingham's own burns were superficial, and he
showed no evidence of smoke inhalation. At least one lighter fluid
container, and possibly as many as four, were on or near the front porch.
A charcoal grill also had been on the porch but was removed by
firefighters. Investigators cited burn patterns on the floor and other
indicators that accelerants had been used. But subsequent science has
shown that those are consistent with "flashovers," which occur when rising
gases and heat hit a critical juncture and the entire room and its
contents erupt into fire. A flashover can occur within four minutes of an
accidental fire. 7 independent fire experts all reached the determination
that there was no credible evidence of arson, and all of the patterns
cited by investigators at the time can be attributed to a flashover.

Willingham's behavior: Willingham moved his car out of the driveway while
the fire was being fought. He said it was to prevent a flare-up that would
further endanger his children, but witnesses saw it as a greater concern
for possessions than his kids. Some witnesses said Willingham had to be
restrained from running back into the house, but others saw his demeanor
as cool and indifferent. He failed a polygraph test, but because of the
high incidence of false readings, the findings were never entered into

Alleged confession: A jailhouse snitch said Willingham confessed to him
that he set the fire, but the offender in later interviews has appeared
unreliable. Willingham steadfastly maintained that he was innocent,
including upon his execution in 2004.

(source: Dallas Morning News)


Affidavit: Executed man had confessed to fatal arson

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 3 daughters.

The statements from Ronnie Kuykendall are part of 2 affidavits released by
the city of Corsicana in response to media requests.

Willingham on Feb. 17, 2004, was executed over the 1991 deadly fire in

Forensic scientists have called into question arson evidence used to
convict Willingham, who maintained his innocence.

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.

(source: Associated Press)


Willingham juror no longer sure of his guilt in Texas case

At least one member of the jury that sentenced Cameron Todd Willingham to
death in the arson homicides of his three children says she is struggling
with the idea that she might have convicted an innocent man.

It has been 17 years since Willingham was convicted in Texas of setting a
house fire that killed his children, a crime Willingham vehemently denied
right up until his execution in 2004.

Since that time, 3 investigations have concluded arson was not the likely
cause of the 1991 fire, including one that arrived in Texas Gov. Rick
Perry's office 88 minutes before the scheduled execution.

Perry replaced 4 of 9 members of the Texas Forensics Sciences Commission
in recent weeks, just before the commission was to receive a report from
the latest of the 3 investigations.

The controversy has led juror Dorenda Brokofsky to think twice about the
decision she made in a jury room in 1992.

"I don't sleep at night because of a lot of this," Brokofsky said. "I have
gone back and forth in my mind trying to think of anything that we missed.
I don't like the fact that years later someone is saying maybe we made a
mistake, that the facts aren't what they could've been."

Brokofsky spoke with CNN by phone from her Midwest home. She has long
since moved away from tiny Corsicana, Texas, where the fire took place.

"When you're sitting there with all those facts, there was nothing else we
could see," she said. "Now I don't know. I can't tell you he's innocent, I
can't say 100 % he's guilty.""I do have doubts now," she said. "I mean, we
can only go with what we knew at the time, but I don't like the fact now
that maybe this man was executed by our word because of evidence that is
not true. It may not be true now. And I don't like the fact that I may
have to face my God and explain what I did."

Brokofsky had another revelation. She said she thought she would be
excluded from the jury because of her family's close relationship with key
witness and then-Corsicana Assistant Fire Chief Douglas Fogg.

Her father was also a fire marshal for 8 years before the Willingham fire.

"I was raised with my father being a fire marshal," she said. "He went
around proving that stuff, so he wasn't here at that time. But I knew Doug
Fogg, who was one of the witnesses. It was no secret, but I didn't think
they would pick me as a juror because of it."

Critics say Perry's recent actions to shake up the commission were
politically motivated, a charge he denies.

Perry's office said it received a 5-page fax on the day of the execution
that contained an arson expert's findings that the fire was not
deliberately set.

It is unclear whether Perry read the fax.

"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
contents," Perry spokeswoman Allison Castle said.

Willingham was executed less than 2 hours later.

Death-penalty opponents say an impartial review of Willingham's case could
lead to an unprecedented admission — that the state executed an innocent
man. The latest report concluded that the arson ruling at the heart of
Willingham's conviction "could not be sustained" by modern science or the
standards of the time.

Perry said he remains confident Willingham was guilty, as do authorities
in Corsicana, south of Dallas, who prosecuted Willingham.

Willingham's wife's brother, Ronnie Kuykendall, said in a signed affidavit
that Stacy Willingham told her family that Todd Willingham confessed to
killing the children during her visit to him on death row a few days
before the execution.

But Stacy Willingham testified for her husband during his trial, while her
family argued he was guilty. CNN could not reach her for comment.

Perry, meanwhile, on Thursday lambasted the most recent report, by
Maryland arson expert Craig Beyler, as having "a very politically driven
agenda" and being propaganda for the anti-death penalty movement.

Beyler, asked about Perry's statements, said they were "strange and

(source: CNN)