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Originally published Tuesday, December 21, 2010 at 9:20 AM

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Appeals court: Judge was wrong in Texas arson case

A Texas appeals court halted an inquiry Tuesday into whether a man convicted of arson was wrongly executed, saying the presiding judge acted improperly by not ruling on a motion for his recusal.

Associated Press

DALLAS —

A Texas appeals court halted an inquiry Tuesday into whether a man convicted of arson was wrongly executed, saying the presiding judge acted improperly by not ruling on a motion for his recusal.

In a 2-1 decision, the Third Texas Court of Appeals ruled that Judge Charlie Baird "abused his discretion" by not recusing himself or referring a motion for his recusal to another judge. Baird presided over an October hearing into whether Cameron Willingham was wrongly executed for setting a 1991 fire that killed his three daughters - a 2-year-old and 1-year-old twins.

Although Willingham was executed in 2004, many of the nation's foremost fire experts, some of whom testified in October, now say the blaze was accidental. Some of Willingham's surviving relatives and attorneys from the Innocence Project are trying to clear Willingham's name and get the state to acknowledge he was wrongly executed.

The recusal issue must be resolved before the hearing into Willingham's possible innocence can continue. A complicating factor is Baird's retirement at the end of the year. The judge did not immediately respond to a message left by The Associated Press.

The ruling is the latest setback for anti-death penalty advocates trying to prove Willingham's innocence. If he were exonerated, it would mark the first time an official in the nation's most active death penalty state has formally declared someone was wrongfully executed.

Last month in a different case, a DNA test on a single hair cast doubt on the guilt of a Texas man who was put to death in 2000 for a liquor-store murder. The hair had been the only piece of physical evidence linking Claude Jones to the crime scene. The DNA does not prove Jones' innocence but does indicate there was not enough evidence to convict or execute him under Texas law

"The clock is ticking and it is running out," said Barry Scheck, the co-director of the New York-based Innocence Project, a legal center specializing in wrongful conviction cases. "The bottom line is we have been frustrated by an inability to get adjudication on the merits of these serious issues."

Navarro County District Attorney R. Lowell Thompson, whose office convicted Willingham in 1992, sought to stop the hearing after Baird declined to recuse himself. Thompson questioned Baird's impartiality, noting he received an award this year from the Texas Coalition to Abolish the Death Penalty.

But Baird refused to rule on the recusal motion in October, saying Thompson didn't have standing in the case. Thompson then successfully won an emergency stay the same day, barring Baird from issuing an opinion on whether Willingham was wrongly convicted.

"I always said from the beginning that if this was going to get done, then it needs to be done the correct way," Thompson said. "I am happy the appellate court saw it needs to be done the correct way."

Williamson County District Attorney John Bradley, who leads a forensic science panel examining whether fire investigators in the Willingham case were negligent, said the appeals court ruling is an unmistakable rebuke of Baird.

"The majority opinion clearly informs Judge Baird that he was wrong to ignore the request for a recusal hearing," Bradley said. "So at a minimum, he has to stop the proceeding and . decide whether or not he is a biased judge."

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At the October hearing, two fire experts said the blaze that killed Willingham's three daughters was an accident, not arson. Florida-based fire expert John Lentini ridiculed the findings and testimony of a deputy fire marshal. Lentini referred to the marshal as "misinformed" and "totally off the wall" and said his conclusions were "completely without merit, completely unreliable."

Another fire expert, Gerald Hurst, said Hurst the fire was an accident, probably caused by faulty wiring. Innocence Project lawyers also presented evidence that a jailhouse snitch who testified against Willingham later recanted.

Willingham publicly maintained his innocence. His ex-wife, Stacy Kuykendall, said he confessed his guilt to her shortly before his execution. But Innocence Project lawyers say she has gone back and forth over the years on whether he confessed.

Testimony from fire investigators was the primary evidence against Willingham in his original trial. The defense did not present a fire expert because the one hired by Willingham's attorney also said the fire was caused by arson. Willingham's original trial attorney, David Martin, has repeatedly told the AP that his client was guilty.

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