Judge Charlie Baird will decide today whether to recuse himself from an investigation into the innocence of Cameron Todd Willingham, the Corsicana man executed in 2004 for the arson deaths of his three young daughters.
Navarro County District Attorney R. Lowell Thompson, whose office originally convicted Willingham, questioned the Travis County judge’s impartiality in a motion before the court last week. At today’s hearing, the Willingham family's lawyers — a high-powered team that includes former Texas Gov. and Attorney General Mark White and San Antonio criminal defense attorney Gerry Goldstein, who counts the late Hunter S. Thompson among his past clients — will respond to the motion. Thompson seeks the recusal on the grounds that Baird previously voted to reaffirm Willingham’s death sentence in 1995 when he sat on the state Criminal Court of Appeals but has since won notice as an opponent of the death penalty.
With or without Baird, a bigger question is in play: whether a court of inquiry, which a judge can initiate to look into whether state officials committed a crime, is the appropriate venue to consider Willingham’s guilt or innocence. In this case, it could implicate any officials — the state fire marshal, for instance — who allowed the execution to proceed despite evidence that challenged his guilt. Willingham’s relatives have cast the investigation as their last hope to clear his name. But whether a court of inquiry has the power to do that is a bone of contention among victims' rights groups and advocates for the wrongfully accused.
In 2009, Baird led a court of inquiry on the case of Tim Cole, who died in prison while serving a 25-year sentence for a rape conviction prosecutors obtained on faulty DNA evidence. After reviewing Cole’s case, Baird exonerated him, he says, based on Article I, Section 13 of the Texas Constitution, which provides that courts have the power to remedy “every person for an injury done him, in his lands, goods, person or reputation.”
Did Baird overstep a court of inquiry's legal bounds in doing so? That's uncharted territory, according to University of Texas criminal law professor George Dix. "I'm not sure that anybody knows much about courts of inquiry," he said in an e-mail. "I understand that if it finds reason to believe a crime was committed and a specific person committed that crime, it can issue an arrest warrant. As far as I know, it has no further power."
For Kent Scheidegger, the legal director of the California-based Criminal Justice Legal Foundation, the answer is clearly yes. All the Texas criminal code authorizes a court of inquiry to do is “investigate whether a ‘crime of oppression’ has occurred and then issue an arrest warrant,” Scheidegger says. Tying that into “an investigation of whether somebody convicted of a past crime is innocent is a stretch right out of the gate," he says.
Williamson County DA John Bradley, the lightning-rod chairman of the Texas Forensic Science Commission, shares Sheidegger’s assessment. Courts of inquiry have “no authority for declaring someone innocent after death," he told the Tribune via e-mail. “The rest is made up by a judge and a New York lawyer to fulfill a political agenda.” As for Baird’s constitutional argument, Bradley wrote that “Section 13 simply indicates there must be a process. It doesn't allow the judge to make up that process,” adding that Willingham already exercised his right to access the courts — and lost — in the multiple appeals leading up to his execution.
Bradley heads the state board that has labored for three years over investigating the evidence the state used to convict Willingham. He has publicly stated that he believes the experts who testified that Willingham set the fire that killed his three daughters in 1991 were following the accepted arson science of the day. The commission has yet to issue an official opinion on whether that science was properly up-to-date; it will take up the case once again on Nov.19. It is also on the agenda for Friday's meeting.
After the Cole court of inquiry, Gov. Rick Perry issued the state’s first posthumous pardon. That’s the reason Baird’s ruling in the Cole case was not legally challenged, Scheidegger says: because “everyone agreed that he was indeed innocent.” But just because no one challenged the court’s action doesn’t make it a legal precedent, he says.
For advocates of the wrongfully convicted, a court of inquiry can have significance on a broader level, even if it doesn’t have the power to exonerate. Cory Session — Cole’s brother, and the policy director of the Texas Innocence Project — says that, in the Willingham matter, it provides an official way to review a case without involving Bradley’s controversial commission and “highlights the fact that we need to stop allowing junk science into court room.” Until now, the commission has resisted taking a stand on whether faulty evidence was used to convict Willingham, and Bradley has denounced efforts to continue its review of the case as a result of “endless waves of ongoing outside improper influence” from death penalty opponents and groups with “agendas outside of forensic science.”
Sessions counters that a court of inquiry “has nothing to do with the death penalty. It has to do with the fact that we used bad science. Somebody has to be charged with going back and looking at these cases.”