Eight years after Cameron Todd Willingham was executed for setting a fire that killed his three children, in a case now widely faulted for its use of flawed arson science, his relatives on Wednesday sought a posthumous pardon from state officials.

"It was Todd’s last wish that we help clear his name," said his stepmother, Eugenia Willingham. "It’s now time for the state to own up to its mistake and give Todd the justice he deserves."

In a petition filed with the Texas Board of Pardons and Paroles, Willingham’s stepmother and his cousin, Patricia Willingham Cox, argue that the science used to convict Willingham of a 1992 fatal fire in Corsicana has been refuted and discredited — and that he should be pardoned to clear his name because he was innocent.

The Willingham case has made national headlines for years because it raises the possibility that the state with the nation’s busiest death chamber executed an innocent man based on "junk science" that had already sent numerous Texans to prison.

More than 100 people have been released from death row across the United States since executions were reinstated as a punishment in 1976, but officials said no government agency so far has ruled that an innocent person was executed.

As a result of its inquiry into the Willingham case, long after he was executed in February 2004, the Texas Forensic Science Commission has pushed for a review of other Texas arson convictions to see if they also were tainted by discredited investigation techniques. Now 26 cases are under review, including several involving convicts on death row, according to Gerald Goldstein, past president of the National Association of Criminal Defense Lawyers who has assisted with the Willingham case.

The request for clemency was announced Wednesday morning at a Capitol press conference attended by Ernest Willis, 67, who was freed from death row in 2004 on an arson conviction that was thrown out over the same discredited investigation techniques that got Willingham convicted. Willis was exonerated eight months after Willingham was executed.

"I wish Todd would have gotten the same consideration that I did. He would still be here," said Willis, who served time on death row with Willingham and became his friend.

There was no immediate indication of when the state Board of Pardons and Paroles might decide on the Willingham request. The board had denied Willingham’s clemency request just before he was executed, without having access to a noted arson expert’s report that refuted the conclusions drawn from evidence in his case.

Harry Battson, a spokesman for the board, confirmed the application had been filed and will be voted upon after review. Despite a request from Willingham’s relatives for a public hearing on the issue, parole officials said current rules don’t allow for that.

Gov. Rick Perry, who would have to approve a pardon based on any favorable recommendation from the board, approved the state’s first posthumous pardon in March 2010 — of Timothy Cole, who spent more than 13 years in prison — and died there — for a 1985 Lubbock rape it was later proven he didn’t commit.

Perry’s press secretary, Catherine Frazier, said the governor hasn’t changed his position: that courts upheld Willingham’s arson-murder conviction and the death sentence. She noted that Perry cannot grant a pardon without a favorable recommendation from the parole board.

"Todd Willingham was convicted and sentenced to death by a jury of his peers for murdering his three daughters, year-old twins and a 2-year-old," Frazier said, echoing what Perry has said in the past.

The review of old Texas cases was spurred by a 2011 science commission report that acknowledged that unreliable fire science played a role in Willingham’s conviction. The findings didn’t weigh Willingham’s guilt or innocence.

The findings included recommendations for better training of fire investigators and a retroactive review of arson convictions — particularly those from before the early 1990s, when scientific studies discredited many of the presumptions investigators had used for years. For example, "pour patterns" — discolorations or deep burns that were once believed to be irrefutable proof that an accelerant had been poured on a floor — have since been determined to be common to accidental fires as well.

Assumptions such as that were used in investigators’ original determination that the deadly Corsicana fire had been deliberately set.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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