Proof That Texas Executed An Innocent Man Could Turn Tide On Death Penalty

WASHINGTON -- He was executed in Texas in 2004, convicted of setting a fire that killed his three children, but Todd Willingham could become the first proven case of an innocent man put to death by the state.

Convicted at 24 of starting a fire that killed his three daughters, Willingham's case is now being reexamined, and opponents of capital punishment hope it could prove a turning point in the United States, where an average of 50 people a year are executed by lethal injection.

Proving a convict's innocence is difficult, and doing so after a prisoner has been executed is extremely rare. Death penalty experts told AFP that no US state has ever officially acknowledged making the "ultimate mistake."

"As long as our system of justice makes mistakes -- including the ultimate mistake -- we cannot continue executing people," argues the Innocence Project, which in 2006 took Willingham's case to the Texas forensic science commission.

If that commission establishes that Willingham was indeed innocent, as he continued to insist until his execution, "it will pose the greatest moral challenge to this nation about the death penalty: are we or are we not prepared to keep this system now, knowing that some innocent people will be convicted and tragically executed?" said Rick Halperin of the Texas Coalition to Abolish the Death Penalty.

"How many mistakes is this nation willing to endure?"

In 1992, Willingham was convicted by a jury based on evidence from local experts. He was executed 12 years later.

His case, detailed this week in the New Yorker magazine, included classic court missteps: the defense presented no opposing expert witness; a psychiatric expert described Willingham as a "dangerous psychopath," despite never having met him; witnesses changed their statements to favor the prosecution; and court-appointed lawyers acted in a manner other attorneys said was incompetent.

In a report sent in August to the Texas forensic science commission, reviewed by AFP, an expert fire investigator concluded, as did two other experts in 2004 and 2006, that the blaze was accidental, not arson.

The report found that the local fire scene expert consulted in the case offered an opinion that "is nothing more than a collection of personal beliefs that have nothing to do with the science-based fire investigation."

The case takes on chilling resonance as Troy Davis, a black man convicted of killing a white police officer, awaits execution in Georgia, continuing to proclaim his innocence.

He has escaped three dates with death and recently obtained a Supreme Court order forcing a court to examine new evidence he argues could prove his innocence.

A survey of 800 adults in California this week found that support for capital punishment had fallen to 66 percent, down from 79 percent in 1989. Forty-four percent of those surveyed said they were concerned about the possibility an innocent person could be executed -- up from 23 percent in 1989.

But Willingham's case will hardly make death penalty opponents' work easy.

In a recent ruling, Supreme Court Justice Antonin Scalia wrote in a dissenting opinion joined by Justice Clarence Thomas: "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."