The Case That Wouldn't Stay Closed

The case of Cameron Todd Willingham, tried and executed for a 1991 fire in Corsicana, Texas, that claimed the lives of his three young children, has been a long and circuitous one, full of political intrigue, scientific inquiry, and sadness. The story is not yet finished: Over the past four years it has actually heated up to a near fever pitch, starting when lawyers with the Innocence Project requested the nascent Texas Forensic Science Commission reinvestigate the case to determine whether the arson science used to convict Willingham was outdated and inaccurate. When the panel was on the eve of questioning fire scientists about that issue in 2009, Gov. Rick Perry quickly shuffled the panel, taking off several well-respected members – including the group-selected chair, attorney Sam Bassett, and replacing him with a hand-picked chair, Williamson County District Attorney John Bradley, a man not known for his even-handedness.

We sat down with Austin filmmakers Steve Mims and Joe Bailey Jr. for a chat about making Incendiary: The Willingham Case, which explores at length the case that has sparked debate about the use of junk science in criminal cases, brought up issues about Perry's duty to carefully review death cases, and raised questions about whether a local judge can hear evidence that may open the door to having Willingham declared innocent. It's a story still far from having its final chapter written.

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Austin Chronicle: This is such a huge case – it's been going on since 1991, basically – and it's still kind of a moving target. How do you go about conceiving of this big story?

Joe Bailey Jr.: I guess the thing we always go back to, the thing we were most intrigued by, is the way that the science and the politics and the legal understanding were all kind of woven into the story. ... And we were really lucky in a sense to come to the project right when [Perry's panel shuffle] happened – that was just provenance. I don't really know how that happened. But that was really just a gift from the governor. [laughs]

AC: Is there anybody that you wanted to interview that you didn't get to interview?

Bailey: Yeah, well, I mean of course. It was a really sensitive time for the governor.

AC: That's putting it mildly.

Bailey: I did contact his press office. And I might've been more oblique than I should have, because I was hoping there was some chance of something. And it wasn't going to be a confrontational-type thing; I wasn't going to blindside him; I just wanted a chance – I think I was just really naive starting out. ... Even after law school, you would think I would've come out a hardened cynic, but I hadn't.

AC: In what way?

Bailey: I felt like the governor had to understand his duty and how important his job is as a fail-safe in that system. And I don't think that he did. And in his defense, I think that most people who are lawyers don't understand how the Texas system relies upon the governor so heavily in that respect. Because the fact-finder, the jury, once they make up their mind about that evidence, the appeals court [doesn't] look at that evidence again. And the governor ... took the position that, well, the courts have all looked at this. So it's fine. And that's a real problem.

Steve Mims: It's a real problem. The Innocence Project [has identified] 750 people in Texas who are in jail for arson, and there may be a lot of them who are guilty, but there are probably some of them who are not and were convicted on the same [kind of] evidence. And they've offered to help – to go methodically through all of those cases and say, "These are worthy of taking another look; these aren't."

Bailey: And the really depressing part is that the [FSC] is there – and it is there to do this. These brilliant people on this commission have not been allowed to do their work. ... [O]ne of the things the film puts to the fore is the battle between speculation on one side and science on the other. [T]here are things that we know, or that we can know, and then there are the unknowables, the things that we're never going to know for sure. And I feel like all the things that David Martin [Willingham's first defense attorney] talks about are speculative. Except he's got the trump card because he's got attorney-client privilege.

AC: Which doesn't seem to concern him too much.

Bailey: Right. And it should not be a trump card, and it's never made to be played as a trump card, because part of that ethical obligation doesn't die with the client. ... I will say, he was very friendly to us. He was very cordial and gentlemanly and wonderful to us, but I would feel really weird about saying some of the things that he said.

AC: Yes, because I would say that some of the things he has said are part of that attorney-client relationship, and he has been criticized about talking out of school about this case. It sort of feels like he's gaming it a little bit.

Bailey: No, he is playing it. He is. ... I suspect it is because he likes the game. But it could be because he feels like it's as far as he can go.

AC: Without getting himself sideways.

Bailey: Yeah.

Mims: Which is already too far. He's essentially telling you, "[Willingham] confessed," without telling you he confessed. It's like, "I'm going to tell you about the weapons of mass destruction, but I can't tell you about the weapons of mass destruction." ... It's the same thing.

Bailey: With an odd wink.

AC: [to Mims] I know you do feature narrative films, but I don't know your history with documentaries. Is there anything that is remarkably different about a project like this?

Mims: It's totally different. We just started piling up footage, not really knowing what's going to happen. ... And then [there was] the trial [in local court, seeking to clear Willingham's name or to open a formal court of inquiry into the case], which we were so excited about. We'd even talked about trying to do a mock trial so that we have the sides articulate the case. But we could never logistically make that happen. But then we had the real trial. So this was like the perfect conclusion: You have people under oath say what they've bee saying outside the courtroom. The issue that still lingers about the validity of that trial is unimportant to us because what we know is, the day that those people testified, under oath, they were telling the truth. And we already had those guys as sort of protagonists.

But to answer your question, with a narrative, [you] sort of figure it out, put your fish in a barrel and shoot 'em. With this, it was nothing but fishing for a long time and hoping. The version you saw was probably about two or three minutes longer. We've actually been whittling it down. Like I was telling Joe, you don't want to throw the baby out with the bathwater, but at some point you go, "Well, there's got to be a baby in there somewhere." [laughs]

AC: Are there any conclusions you've drawn about this case?

Mims: Yes. I think that ... what's the best way to put it? If Willingham had had financial means, this would never have happened. There would have been a change of venue somehow or that case would not have [gone forward].

AC: Well, as they say, no one ever pays to go to death row.

Mims: Yeah. I think that's true. And I think that it's true that you can say that all the signs are saying ... there is not evidence of what they accused him of. And, so, the enigma of it is that you can't really know what happened. As Martin likes to say, all the witnesses died in the fire.

Bailey: All you can know is that it didn't happen the way they said it happened.

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For more from this interview, see austinchronicle.com/pip.

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Incendiary: The Willingham Case

Lone Star States, World Premiere

Saturday, March 12, 4:30pm, Paramount

Thursday, March 17, noon, Rollins

Saturday, March 18, 5:30pm, Rollins