UH Law prof weighs in on Willingham...

A letter to the editor from a law professor at the University of Houston takes liberal Lisa Falkenberg to task (link). Excerpt follows...

Misunderstood

The Todd Willingham arson-murder case has been badly misunderstood. For example, Lisa Falkenberg's column (“It's not just about the ‘bad man,' ” Page B1, Thursday) asks, “Did Texas execute an innocent man?” And it says that this is the “big-picture question.” But no one in the press seems to have reported on the evidence that would answer that big-picture question. You see, in arson cases, whether there was arson isn't usually the hardest question. The hardest thing to prove, if it was arson, is, who did it? In a criminal case, every element of the crime must be proved beyond a reasonable doubt, including the identity of the person who committed the arson. And the proof about who did it, almost automatically, provides proof of the arson element, too. In other words, the evidence of who did the arson also provides evidence that it was arson, because you can't prove that that person committed arson without happening to corroborate the evidence that proves arson in the first place.

Falkenberg observes that Willingham was a bad man, but adds, “being a bad man isn't a crime punishable by death, even in Texas.” Of course not, and the gratuitous slam against Texas is unfortunate. The point is, there has to have been strong evidence that Willingham did it. In fact, there has to have been more than strong evidence; there has to have been evidence proving it beyond a reasonable doubt. Otherwise, the courts that reviewed his case — and there were many of them — would have had a duty to reverse the conviction and direct an acquittal. I'd like to know what that evidence was before I shot off my mouth about whether the governor was being an obstructionist or whether an innocent man was executed. The governor may be completely correct in saying that the commission's hiring of an East Coast expert to analyze the arson investigation was a waste of state funds. From what I've seen, there's no way to tell. It may be that the expert was simply indulging a taste for suggesting that an investigator from Corsicana was too rural to be credible. For example, criticizing a burn-pattern conclusion, as the expert did, because the report does not explicitly rule out electrical sources in connection with the burn pattern, sounds to me like an academician's put-down of a field investigator. Anyone who has read police reports would not think it surprising if an investigator's report happened to omit explicit mention of electric sources in connection with a burn pattern, particularly if no electrical source was nearby. But the real point is that in spite of the overheated rhetoric about this case, nothing in the press supports a conclusion that the governor is wrong, particularly since all of that rhetoric has been uttered without any report of the evidence against Willingham.

David Crump, Professor of law, University of Houston Law Center

A brave man to write those words. David Crump, if you didn't have tenure, you probably won't get it now.