Never-issued opinion would have exonerated Todd Willingham

Former Travis County District Judge Charlie Baird, a past member of the Texas Court of Criminal Appeals who is currently competing in a heated primary for District Attorney, wrote an 18-page opinion in the Todd Willingham court of inquiry that was never issued because an appellate court shut the process down, reported Michael McLaughlin at the Huffington Post:

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

Scientific experts who debunked the arson evidence used against Willingham at his 1992 trial and a jailhouse witness who recanted his shaky testimony convinced District Court Judge Charlie Baird in 2010 that "Texas wrongfully convicted" him. But Baird's order clearing Willingham's name never became official, because a higher court halted the posthumous inquiry while it considered whether the judge had authority to examine the capital case.

While waiting for permission to finish the case from the Third Court of Appeals, Baird put together the document that "orders the exoneration of Cameron Todd Willingham for murdering his three daughters," because of "overwhelming, credible and reliable evidence" presented during a one-day hearing in Austin in October 2010.

"You can't do anything for Willingham except clear his name," Baird told The Huffington Post. "When they tried Willingham, I'm convinced that everyone worked in good faith. The problem is that up until the execution, everything had changed so dramatically that you realized the science relied upon at trial was not reliable enough to take a man's life."

Baird's intended order never came to light because the court of appeals criticized his handling of the case and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

For whatever reason, McLaughlin didn't post a link to the order, but I asked Judge Baird for a copy and here it is, for anyone interested. He concluded that "no reasonable juror would have convicted Willingham in light of the newly discovered evidence."

Todd Willingham may be the most infamous case of a Texan executed based on a flawed, likely erroneous conviction - Grits refers to this class of executed defendants as "probably nots" - but he's not alone. Along with the Forensic Science Commission's final report (large pdf, see background here), Baird's draft opinion provides a capstone on the debate over Willingham's case for the public and perhaps historians, despite it's lack of legal weight.