On December 23, 1991, Cameron Todd Willingham was taking a nap in his Texas home with his three young daughters playing in the next room.  He awoke to the sound of his three-year-old calling his name, and a room filled with smoke and flames.  The fire was so strong, Willingham couldn’t get through to his daughters.  He ran outside.  All three children were killed. But even though he survived, Willingham would find himself fighting for his life yet again – this time behind bars.

Due to what was considered an ‘expert’ fire investigation, it was concluded that the fire was arson.  Willingham, being the only other person in the house at the time, was tried and found guilty of arson murder.  Over the next decade, despite numerous petitions and heaps of evidence mounting that suggested his innocence, no court would overturn the ruling, and the Governor’s office would not grant clemency.  In 2004, Willingham was executed for a crime he denied to the very end.

Since the execution, there have been many attempts to clear Willingham’s name..  Now, a new documentary is taking a look back at the case, its flaws, and what evidentially seems to be one huge cover up by the Texas state government and Rick Perry.  Steve Mims and Joe Bailey Jr’s INCENDIARY: THE WILLINGHAM CASE has already taken numerous Film Festivals by storm, as well as won the Louis Black/Lonestar Special Jury award at SXSW.  (You could read my review right here…the hype is all real.)  The film, which has been called the partner documentary to David Grann’s New Yorker piece, “Trial By Fire,” is now screening in major cities all around the country, and the directors sat down with us to give us their views on Willingham, their experiences filming, and the unexpected reception that followed.

First off, give us an idea of how this project came to be in the first place, and how did it grow into what it is today?

Joe Bailey Jr: I was just finishing a fellowship at the law school, and my wife persuaded me to take Steve’s class. I had been working on a music documentary for a couple of years, but never had any formal training in film.  Steve had a tremendous reputation for teaching film in Austin, so I enrolled.  About three weeks into class, we got into this conversation about the clemency process and how that functions in Texas…what’s the thought process of the Texas governor when he receives a petition for clemency for reprieves in a capital case, etc.  Steve had just finished reading the David Grann piece in the New Yorker about the Todd Willingham case.  I’d never heard of the case, but on his recommendation, I read the article and was really stunned.  I couldn’t believe I never heard of it, first of all, but also was floored by the way it brought these complex elements of the law and science and sort of made them come alive in this narrative of life and death.  I also thought there was such great visual potential in the story and a film would be spectacular, so I wrote Steve and suggested just that…we should make a film about it.

Steve Mims: I wrote him back and was going ‘Well that’s an incredible amount of work’, and just stopped to think about that for a moment, but by the time I got to the bottom of the email, I convinced myself that we should do it, and so we did.  We were lucky.  Part of the reason we decided to go forward with it with no funding essentially (it’d be our own equipment) is we had time to schedule shoots that we could work into our schedule, and we would be able to do it right.

Yeah, I feel like this was a big passion project for both of you.  What were the initial following steps?

SM: Absolutely.  We started acquiring interviews, and the first interview we did was with Gerald Hurst the chemist who lives here in Austin.  We were with him for an afternoon, and when we walked out, we were like ‘Wow, even if the Willingham thing doesn’t work out, there’s a great film to be made about Gerald Hurst!’ [laughs] Hurst was amazing.  He goes off into all kinds of things based on his background, the defense industry, and all these stories about different fires that couldn’t make it into the film.  That was in October 2009, and by the end of the year, we shot John Lentini—the other scientist in the film—and Elizabeth Gilbert.  We started editing right away, just in terms of refining those interviews, and the following year (2010), we started covering the Forensics Science Commission meetings in real time.

Gerald Hurst

How much footage did you two actually gather?

SM: I don’t really know, but I would guess probably 40 hours of footage maybe.  Like all documentaries, you get a lot of material that can’t go in, so we have a lot of stuff [laughs]

Let’s get back to John Lentini and Gerald Hurst for a second.  They’re both very different yet strong voices and characters in the film.  How’d you end up getting both of them?

JB: Actually, Gerald Hurst is a neighbor, more or less, and has done pro bono work for criminal cases since 1996.  He was asked to look at the Sonya Casey case by a colleague of his in civil litigation, and when he looked it over, he was astonished at how folkloric and ridiculous the techniques that were employed against the defendant were…the fire testimony was so strange and had no basis in modern fire science.  He testified in that case, she was eventually exonerated, and from that point on, he agreed that he would take any criminal case without compensation that he found worthy.  Because of that openness, I think he was generally receptive to cold calls.  He lives in Austin and once we found a number for him and explained the project to him, he was really easy to talk to and really captivating.

John Lentini happened to be speaking in San Antonio—a short drive from Austin—for a fire investigators conference.  He’s so gregarious in person and has such strong personal convictions in his work because he had a conversion of sorts.  (it’s a really fascinating part of our interview with him that’s not in the final cut, but in 1990, he was called in on an investigation for this fire called the Lime Street Fire where the prosecution asked him and his team to bolster their case, because knew they were up against some pretty stout defense council.  They basically had Lentini and his team set fire to a house that was identical to the defendant’s house in the way that the defendant claimed that the accidental fire would have happened.  They got a cigarette, lit it on a sofa and watched, expecting to totally discredit the defendant’s defense.  What they actually found was the sofa basically had the room engulfed in flames in a matter of 3 or 4 minutes.  They expected it to take 15.

After that experience and all this other phenomena they witnessed in that set fire (burn patterns on the floor looked like what had been relied upon as accelerant burn patterns, carbon monoxide levels in the room rose near the thermal clouds of fire, but not really rising in other areas in the house) disproving all these ideas they had taken for granted and used in prior cases, Lentini had a real professional epiphany.

SM: There’s something intrinsically honest about their performance in this film.  We’re so lucky we got them for that because they’re both so confident and have so much experience from different backgrounds, and I think they’re astonished, just the way everyone else is, that people in charge of how this case has been handled could be in such denial about the facts.

John Lentini

That’s the next thing I wanted to ask about.  I have to admit, the way you guys cut this together, you make the case for Willingham’s innocence, and it’s almost obvious how people want to push this case under the rug and make it go away.  Yet, when you watch any documentary, usually, there’s an argument of a bias or not giving the “other side” of the story.  Do you think you two had any bias or leaning when filming, or was it more that you went in to find the truth, and the information and research is speaking for itself?

SM: The title of the film is INCENDIARY: THE WILLINGHAM CASE.  And I think we really just lay out the actual case in the film.  We felt that in the telling of the story so far that people were sort of easily distracted by the history before the fire.  If you look at the case to be made against Willingham, other people have dealt a lot more with his personality and family life and childhood.  For us, we mention that, but the only thing that is germane is if on the morning of the fire, Willingham really did get up with no shirt and no shoes, set his house on fire, and then go outside and pretend he woke up and his house was in flames.  The primary thing is ‘What is the real evidence that convicted this guy?’ If that becomes the focus, it sort of puts the other stuff in perspective.  You’re innocent until proven guilty and need to be proven guilty beyond a reasonable doubt. That’s how we started…in terms of if he had been given a fair shot and based on what we know today, what would have been the outcome? By narrowing the discussion of that, it sort of helped us cut through a lot of the noise and get down to whether or not we would have even been able to bring this thing into court today, and the truth is that nobody would accept the evidence because it’s all been discredited.

JB: That’s what comes out over and over when you discuss it from a legal or investigatory standpoint: it’s not even really a matter of whether he’s innocent or guilty.  We don’t have probable cause for an arson fire, and if that’s true, then there’s no crime to charge anyone with.  I think the film respects that truth because it’s established fact, corroborated by every scientist that’s looked at this case well beyond the ones that appeared in this film.  At least 13 independent fire experts and known experts have all corroborated with Lentini and Hurst about the case.

Yet, even with that seeming so cut and dry, audiences are still torn when watching your film…

JB: Exactly.  I think the film is still sort of dialectic and brings this sort of little battle between your brain and emotions, because even though you know there’s no evidence for the crime at all, you’re also sort of drawn into this emotional debate that goes on…the flames that are fanned by David Martin, the Texas governor, John Bradley calling him a guilty monster, and obviously by the testimony of his ex wife on the courthouse steps during that exoneration period.  It’s such an emotionally charged case, and all of those things sort of combine in a battle royal between your intellect and emotions.

I have to admit, David Martin (Willingham’s defense attorney) definitely seemed like one of the two biggest wildcards.  He is almost messing with everyone by saying he may know something you don’t. 

JB: That’s one of the things that fascinated us about the case initially and what makes for a good film: that seed of doubt.  Whether or not it’s legitimate, you can’t avoid it and it’s really fascinating to try and think about what Martin knows and what his motivations are.  And I think not having a narrator gives the audience the discretion to figure that out for themselves, and that’s a lot more fun than to be sort of led in a certain direction.  We were just as curious as anyone about unearthing everything we could about the case toward guilt or innocence. The forensic science commission was looking hard at the evidence and letting us consume ourselves with the evidence because that was the elemental part of the case, but we also wanted to let it play out in front of the lens and really let the emotional debate dominate the film.  We let it play out and sort of let it overtake the direction of the film.

Oh, and it definitely does.   But with all that, was there anyone else you could have gotten or wanted to interview on the other side that could have had something to prove Willingham guilty, or was it that that was all the possible guilt, and everything else pointed to innocence?

SM: I don’t think that there’s anybody else that we could have interjected into the film in terms of a stronger conviction of whether Willingham was guilty or not, but there were definitely other people that we wanted to get that we couldn’t, the main person being the District Attorney, the man that prosecuted Willingham.  What’s interesting about him is that while Willingham was on death row, this DA eventually became a judge, and was the same judge that received the recantation of a snitch that said Willingham confessed to him in jail.  That judge never forwarded that information on to Willingham’s defense attorney, and we could not get that interview.

JB: Not only did he not share the recantation with the defense council—something you were required to do—but the prosecutor, if I’m not mistaken, was never made aware of that.  I think the judge never entered that information into court records and that motion to recant testimony.  That was an ethical failure on his part, a real problem ethically and would probably be grounds for criminal action against the judge and the prosecutors.  I’m just guessing that’s probably the reason why he didn’t want to speak with us.

But besides that, I don’t think there’s any missing link.  I think David Martin was definitely someone we really wanted to talk to and we were really lucky that he allowed us and was really generous to talk to us for a really long time about everything.

Going back to Martin for one second, because this is something that struck me as what would be a major issue for anyone seeing the film…everyone else that defends Willingham sitting inside on a couch or in a suit, and yet, David Martin is sitting outside on a farm sweating with animals in the background and his cowboy hat on…

SM: Martin dictated the terms of that interview.

REALLY?

SM: We drove up there on a Saturday and met him out at his ranch.  It was incredibly hot in August, and we asked to do the interview inside.  He wanted it done outside.  In fact, he rode up on a mule.  He was literally on a saddle on a mule.  There was sweat rolling down his face, he was not shaved, he was dressed to work on the farm, and Joe said ‘We should get a shot of that’, and I immediately said “No, that would be character assassination,” but that’s how he wanted to do it.  If you look at the uncut footage, in some of the shots there are goats in the background , and the rooster you hear in the interview is just a rooster that was there.  It’s funny because we’ve had some criticism on the film based on that observation, but in every other case, we said we needed a quiet, comfortable space, and we worked off that.  In this case, that’s exactly how he wanted it, and other people have looked at the film without knowing that and go ‘Boy, you’re really setting him up’ but no, these were the terms of the interview of the day we shot it.  We were just as astonished, too.

JB: Yeah, he was very specific.  He said ‘This is where I like to do all of my interviews’, and if you look at his other interviews he’s right.  Every other interview I’ve seen has been in that same setting: in his barn, dressed, ready to tend to the cattle.  I don’t know if his family was in the house and he didn’t want to upset them, but I wasn’t about to argue.  Frankly, I was doing sound and I was getting annoyed at the constant noises and tried to roll off as many as I could…

SM: The thing about Martin is the guy is incredibly smart.  Obviously we had to live with all this footage for two years in terms of putting it together, but having been with him and looking at that footage for a long time, he’s a smart guy. Joe’s wife, Alice, conducted most of that interview.  We asked a few questions, but she is a prosecutor, and he was on his best behavior with her and a real gentleman the whole time and answered questions over and over again.  It’s just hard to know where he’s coming from.

One of the first pieces in the film, he talks about the OJ Simpson trial and how the defense team knew OJ was guilty, but had to come up with a theory to allow a jury to find a not guilty verdict.  He lays that out.  You really have to stop to think about David Martin.  When you think about that level about what he knows, trying to get us to see the world the way he sees the world, it’s a real enigma down to that last shot.  I’m so glad we didn’t react right away, because it’s a great moment where he says what he says, and it’s just quiet and he sort of looks around at us for our reaction and we were stunned by that.

It was almost cruel, like almost intentionally poking or jabbing you.

SM: Right, right.  He definitely has the kind of demeanor.  The way he posed that is very provocative, and it makes for a great discussion.  We’ve had on many occasions long discussions with people and that’s what other people tell us they can’t stop thinking about when they watch the film: what’s he really trying to say?

JB: it’s an ethical question wrapped in an ethical question wrapped in something that you can’t know

Wrapped in bacon from the farm.

JB: For me personally, every time I watch that part of the film, it’s kind of a gut check about what do I believe about our justice and process and how much confidence I have in the process…Is evidence required to convict someone, or can we just go on the gut feeling of a prosecutor or defense attorney?

SM: To me, it’s part of the outrageous nature of the whole story, and when I say outrageous, I mean that it outrages me that you could have a guy at the end of the film say something like that, which stems the whole film back around to what Joe is saying: an emotional objective thing.  That has been the whole problem with the Willingham case.  The story is framed in different ways by different parties who seem to want different things.  Some want to frame this as a heinous crime committed by a monster who somehow has gained sympathy from a bunch of biased scientists coming out of the woodwork.  Martin’s line there sort of adds fuel to that perspective.  People who are intellectual watching can look and go ‘Oh, evidentially he didn’t do it because there’s no evidence’, but then people see material like that and are stunned because they say ‘Even though there’s no evidence, this guy knows a big secret’.  What matters is if you can’t make the case, you can’t make the case.  And these scientists, who are apparently the smartest guys you ever met and intrinsically honest, are sitting here telling you there is no way this happened the way the prosecutor told the jury in the original trial.  Yet, we’ve had a lot of super smart people watch this film, who in the end, mostly because of Martin and Willingham’s ex wife, can’t shake the idea that these two characters tell you something that seems diametrically opposite from what everyone else has said.  That’s part of what really is juicy and fascinating about the film to us at a very human level.

So after all that, how’s the reception been so far and touring the film all around the festivals?

JB: It’s really been in some ways more than we could ask for and expect out of the film.  We thought it was something that was fascinating and important, but like most documentary filmmakers, we kind of resigned ourselves to the fact that it might not escape the death by anonymity that most documentaries suffer.  We feel almost vindicated in the way that people have gotten it and see the things that are fascinating and important that we saw in the story.  Initially, when we started making it, a lot of people thought it was an interesting film, but when we showed it to people who had any sort of background in sales or marketing of the film, they’d always be like ‘the scientists get so much screen time… what about all the emotional content? Shouldn’t you be playing that up some more?’ We stuck to our guns and made a film where scientists deserve to get a lot of time, and to bring the audience on the same plane that they are on, to allow you to understand the things that they know so much about rather than just dictating up high from what their opinion is.  We knew that because fire was such a fascinating, captivating thing, we could illustrate all of these scientific concepts in a way that would be cinematic and beautiful, and we were really happy that after many hours and cuts and wildling it down, we were able to arrive at a balance where people could learn a lot about fire and also be fascinating by all the other facets of the case.

Editing is a big part of any film…

JB: Yes it is, and we owe a lot to the editorial process. We worked with John Pierson, who has helped give a lot of great filmmakers of the past 30 years their start.  He saw an early cut of the film, and he loved it, and every couple of weeks, we’d run a new cut for his advanced producing class at the University of Texas, get feedback, and bring that back into the editing room.  That was the first hurdle: to get a guy like John Pierson to really like it and a room full of college juniors and seniors to be fascinated by science.  Once we had that, we had a lot more confidence.  We took that with us to SXSW, and from there, it’s just been really rewarding to get people that are interested in a film that’s really substantive and rich, but respects the intelligence of the audience and doesn’t dumb anything down.

SM: We had really tremendous audiences for the film.  We had a great turnout here in Austin and we had super questions and people were very insightful.  In New York and Washington and everywhere we ran the film, we turned out all these great people.  In DC, we had a fire investigator come out to see the film, and he told us at the end that essentially, we went easy on the initial arson investigators.  In New York, at the end of the screening, I was in the lobby with this young couple, and they kept coming back with questions.  We talked for a long time, and when I asked what they were doing, he said he was in school at Princeton, and she was going to Rutgers, and I thought to myself ‘What are you doing here talking to me?’ [laughs]  Like Joe said, it’s really confirmed our take of the story in terms of our presentation of the material to bring intellect from emotion…not to deny the emotion of the film, but to make the film more useful to people.

What do you guys want your audience to leave this film with?  Do you want them to have a specific answer, do you want them to feel a need for justice? Do you want them to see this and want to learn more?

JB: I just want them to be curious.  Hopefully when they walk out, they’re just as curious or more curious about this case and just about the world at large.  I think that’s what great documentaries do—they indulge your curiosities and make you hunger for more information about the world around you.  I mean, it’s a generalist answer, but that’s pretty much what we’re after and what the best documentaries and the ones I really like do.

SM: I’m like Joe in the sense that I want people to be engaged and think deeply about it, but I think at the bottom of that for me is to have people really stop and think about the nature of the discourse that we have.  Even before I read the David Grann piece, in the press there was a lot about science and the public sphere in terms of education.  There was an issue in Texas about schoolbooks and whether you would include intelligent design along with evolution or if evolution would even exist in Texas schoolbooks for whatever politic reasons, and I was kind of agitated that that would even be part of a the discussion in 2009.  When this came along, what shocked me was that this was another facet of the same thing.  We have a case where for whatever reason, people cannot accept the scientific method as a legitimate issue in the Willingham case.   You would assume that in 2011, these things would not be controversial and people would be willing to go with the scientific method without really much thought.  It’s like ‘What’s the problem?’, and I think that that’s more the useful outcome of watching the film…to elevate that question about how people either accept or don’t accept what we would hope would be the basis for making rational decisions about things.

JB: Yeah, I think that’s definitely true.  Personally when I watch the film, after having gone to law school and having a wife prosecuting criminal cases on a daily basis and hearing her experiences, I’m always fascinated by the strangle hold emotion has in criminal justice.  I think that most criminal defense attorneys will tell you that while we have a great system in theory, a lot of times, we don’t execute in a way that we’d hope.  Even in a system like ours that’s arguably the best in the world, a jury of your peers has a hard time looking at facts in a dispassionate way and really getting down to the fact of ‘Do we have evidence beyond a reasonable doubt that someone committed a crime?’  This case really highlights the fact that the prosecutor’s role is the most important role, because they bring the case and they should have the discretion not to bring a case where we don’t have evidence for a crime.  Looking at it from a legal perspective, it’s theoretically important to ask all these fact based questions before we move on to a broader discussion, so hopefully people think hard about why we have this system and whether we are actually honoring that system that we got.

So what’s next for you guys?  What’s on the schedule?  More teaching and more films anytime soon?

SM: I do a lot of client projects, and I’m still teaching, but basically what’s next is really to continue to get the film out…it’s become a full time job for us, and will probably be like that through the end of the year.

JB: Yeah, we’re just staying on course and trying to bring the film to audiences.  Like Steve said, it’s a full time occupation, or more than full time, for that matter, but it’s been a blast and a lot of fun to see what people think of it.  This is the best we could have ever asked for.

INCENDIARY: THE WILLINGHAM CASE is in theaters now.