Filmmakers Steve Mims and Joe Bailey Jr.’s first feature collaboration resulted in the documentary”Incendiary: The Willingham Case”. Along with David Grann’s New Yorker piece, “Trial By Fire,” the film has become an essential part of the canon of journalism devoted to the trial and execution of Cameron Todd Willingham — the Corsicana, Texas, man who was convicted in 1992 for the arson deaths of his children. Their film has made a huge splash. At the SXSW Film Festival in their native Austin, they took home the Louis Black/Lonestar Special Jury award, and now they are out on tour with the movie, with screening dates in Washington, D.C., New York City, Dallas and Los Angeles planned for the fall.
The film, a bracing weave of scientific exposition, character study and the legal process, has a salience with certain viewers. For those who advocate against the death penalty, it’s their nightmare realized — a defendant put to death for a crime he could not have possibly committed. And for those of us who follow and report on the 2012 election-year pageant, the fact that Texas Governor Rick Perry played a significant role in the outcome of the investigation into the Willingham case that was undertaken by the Texas Forensic Science Commission makes it an issue worth exploring, as Perry’s candidacy has dragged the issue of capital punishment into the GOP debates.
But if you ask Mims and Bailey, they’ll tell you that they aren’t that interested in any of that. Their sole interest is in legal processes and the level of competence with which they are carried out — and using the language of film to bring hidden elements, like the complexities of the physical sciences, to life in the hope that an audience, newly informed, can help work to make those processes better. I had the opportunity to speak with Mims and Bailey this week as the pair prepared for the beginning of their movie’s latest D.C.-area engagement.
As Bailey describes it, the work that resulted in “Incendiary” began with an after-class discussion. Bailey, who graduated from the University of Texas School of Law, had gravitated to film study, and in turn, to Mims, who teaches film at UT and through a program called Austin Film Works. It was after a meeting of Mims’ production class that Bailey struck up a conversation in which he expressed an interest in the clemency process and how governors apply scrutiny to death penalty cases. Mims suggested Grann’s New Yorker piece, and it lit a spark.
“I was just floored by it,” says Bailey, “I’d never seen forensics and criminal law and politics woven together into a narrative like that before.” It stoked enough of Bailey’s interest that he was soon pitching a project to his teacher. “The first thing I thought,” said Mims, “was that this was going to be a lot of work.” But the pair had a distinct advantage: living in Austin gave them convenient access to most of the characters in the story.
And watching “Incendiary,” it’s easy to see the actual people who appear in the story as characters, as protagonists and antagonists who form the two sides of the central conflict or as supernumeraries who move the story along. In that Texas way, many seem larger-than-life, and Mims and Bailey demonstrate a keen eye for bringing the nuances of human behavior to the surface. “People often remark that we had a ‘great cast,’” says Mims.
And their effort was probably destined for success the minute they reached out to their first subject, fire scientist Gerald Hurst. Hurst’s extraordinary career began during the Space Race: his expertise with “‘high-energy’ chemistry … explosives, incendiaries, rocket propellants” made him an ideal rocket scientist. Later, he moved into the manufacture of explosive materials, both for the Atlas Powder Company and America’s wars. He holds many patents as well — he invented the Mylar balloon, for instance — and is wealthy enough to provide pro bono work for arson investigations. He was well into that career when he was sought out to prove Willingham’s innocence. “By the time we got to the end of our interview with him, we thought, ‘Wow, this guy is a film by himself,’” says Mims, who added, “If nothing else, we can make a film about him.”
Hurst helped the filmmakers make the acquaintance of fellow fire-science expert John Lentini. Together, Hurst and Lentini are primarily responsible for taking the film’s scientific content and making it comprehensible. Lentini, broad and gregarious, lends a wry wit and youthful love of the study of fire, which contrasts neatly with Hurst’s quiet, Gandalfian sagacity.
“This is when we knew we had a movie,” Mims says, “They’re both so authentic. They’re professionals, they know what they’re talking about, and you get this intangible thing from them on screen where you realize that these guys have no reason to lie. And that sort of authenticity is something that is contrasted in the film by a lot of the other characters.”
Just who did Mims have in mind, as far as contrast went? Right off the bat, he mentions David Martin, Willingham’s defense attorney, who in the film actually serves as Willingham’s chief prosecutor. Too easily persuaded by the junk science presented by the prosecution and resolutely convinced of Willingham’s guilt to this day, Martin is the film’s biggest oddball. His interview, which is intercut throughout the movie, was shot in a barn in the middle of a hot Texas August. Martin wears a beat-up hat, drawls like a West Texas caricature, and off-screen the viewer can hear the sounds of a lonely rooster crowing.
I asked the filmmakers if they had set out to make Martin look foolish, but Bailey said that Martin insisted on doing the intervew exactly like that. “We wanted to do the interview indoors,” Bailey said, “But Martin insisted that we shoot it out in the barn. It was in the shade, so it wasn’t intolerable, but you had animal noises in the background, goats and roosters.”
“When we did his interview, he literally rode up on a mule,” Mims enthusiastically recalled, “And Joe was like, ‘We should shoot that!’ And I was resistant because we felt that if we put that in the film, people would think of it as character assassination.”
Mims and Bailey were already at work on the film when news broke that Rick Perry had decided to depose the chair of the Texas Forensic Science Commission, Sam Bassett, two days before the Commission was scheduled to hear the testimony of a fire scientist who’d reached the same conclusions as Hurst and Lentini about the shoddy arson investigation that led to Willingham’s conviction. So the pair followed the reformed commission to Harlingen, Texas, where they met another one of the “contrasting” characters, newly installed Commission chair John Bradley.
“That’s when it hit us between the eyes, because we met John Bradley. We realized that there was a lot more going on. He made a real effort to control everything having to do with the Willingham case, and to elongate the process that was already headed toward a conclusion. We were astonished by the slow motion.”
Bailey’s background in law proved useful, as he noticed that Bradley was tossing their cameras out of the room but allowing the print journalists to remain. “We were extremely polite,” he recalls, “but as a Texas District Attorney, it’s his duty to enforce laws like the Open Meetings Act.” Bradley’s subsequent actions as he assumed command of the Commission made it clear that he was familiar with the law he seemed to have forgotten in the filmmakers’ case.
“Bradley used the Open Meetings act as a shield for his agenda,” Bailey says. “By not allowing public comment at that meeting, for example, because it wasn’t on the agenda, so he could legally prevent it. He used the Open Meetings act to keep discussions of the case in private, breaking the Commission into subcommittees. He did so knowing that the Open Meetings law only applied in cases where the Commission had a quorum.”
“Bradley was easily the most brusque person we met during the making of the movie,” Mims recalled. “I was astounded by his level of contempt. The way he ran roughshod over the press and his peers was just the worst schoolyard behavior. I was left to wonder if the guy was not self-aware, or if he was and just didn’t care how he came across to people.”
The man who got squeezed out in this conflict between the scientific method and the legal system was Sam Bassett. “Sam is a guy who is a model of integrity,” Bailey says, “He’s a caring person, but someone who also knows the realities of the world. He’s known as a model of ethical conduct, and is well-liked and well-regarded.”
“He’s really the Tom Hanks or the Jimmy Stewart of this movie,” says Mims, who could not recall Bassett’s political affiliation. Mims recalls Bassett as “a moderate guy,” who fought for the Commission, seeking at every turn to honor the process and perform his role correctly. “He was very invested in the forensic science commission, which makes his story worse.”
There was a tension between science and politics throughout. “Most of the people on this commission,” including the scientists, Bailey notes, “are state employees.” That made for a “built-in conflict.”
“These are state employees,” says Mims. “But as scientists, they know that they have nothing without their reputation, so they can’t budge on the science.” But if the scientific method was the map used by those commission members, it was clear that Bradley was interested in arriving at an altogether different outcome. “Bradley wanted some milquetoast kind of assessment of what happened,” Mims says. “Something that said, ‘Well, things probably went wrong, things are probably better now, we can’t hold anyone accountable, everyone made decisions based on the best possible information.’ The other commissioners wanted to step beyond that … They wanted to fix the problem. They’re looking at real problems and asking, ‘What can we do to make sure this doesn’t happen again?’”
Of course, the success of the effort to prevent another Willingham case depends on whether or not the film is persuasive. According to Mims and Bailey: so far, so good. “We’ve had a great response,” Mims says. “We’ve had professionals from law enforcement agencies talk to us about how they think it’s an important film. We had one guy who just went on and on with us, saying that he’d never seen a film that so well illustrates the conflict between prosecution and evidence and science.”
Bailey says that it was essential both to have a faith in audiences’ ability to grasp the scientific material and find it fascinating, and to provide them with as many tools to make that possible. The visual language of film proved to be vital: “Fire is a beautiful, captivating thing for people,” says Bailey. “To animate all of these arcane, scientific concepts with live fire is a tool that we as documentary filmmakers have at our disposal that print journalists just don’t have. We could give the audience the same body of knowledge as the scientists themselves.”
There are several parts of the movie where fire becomes one of the characters, ably proving the contentions of Hurst and Lentini. In one particularly compelling moment, the filmmakers respond to the contention of the original arson investigators that the fire Willingham allegedly set moved quickly through his home because of an accelerant; they set an accelerant-treated board ablaze. It burns agonizingly slowly.
“When you usually see an extended news piece about a case like this,” says Bailey, “the scientists have their 30 seconds to say it is or it isn’t. And then they move on to the next person, who’d usually have some emotional content to deliver. And the scientist is never allowed to teach the audience in a meaningful way.”
The camera’s unsparing eye brings all of this to the surface in the film in a way that other journalistic media have been unable to. As Bailey noted, “All of the journalists who have covered the story who’ve seen the film are very complimentary of the film, because body language, context, all of these things that are really hard to squeeze into a written piece or a minute-long news feature. They are allowed to breathe in the documentary format.”
Mims, who praised the work of Errol Morris during our conversation, told me directly, “We’re not an advocacy film. In fact, we’re not fans of films that have a point of view. We’re not a death penalty movie. We were hellbent on sidestepping any argument as to whether the state has the right to kill a person.”
Did this cause any tension between the filmmakers and the anti-death penalty advocates who show up in the movie to make their case? Mims says no: “Sure, we were worried that those advocates might be offended because there’s not a stronger case made against the death penalty. But what we found was the opposite of that.”
The filmmakers maintain that by directly engaging the case itself and striving for fairness, it was probably more useful to their cause than it would have been had the audience started from their point of view. “This was a movie that dealt with due process and whether it was handled correctly. I think for people who are against the death penalty, it’s probably more useful for them because it approaches the matter on the issue of competency. You can say to somebody, ‘Okay, if you believe in the death penalty, then you must believe that the process works.’ And here the process didn’t work. It’s like [Supreme Court Justice Antonin] Scalia’s statement that if there was ever an innocent person executed, his name would be shouted the rooftops.”
And while the filmmakers will attest that politics were in play, they didn’t set out to make a political movie, either. “The political content is straight verite documentary filmmaking,” says Bailey. “It’s nice that the election has gotten eyes on the film, but we’d already had success at SXSW.”
Bailey notes that during Perry’s gubernatorial run, the Willingham case was an issue in the primary. Perry’s Tea Party opponent, Debra Medina, called Perry a “tyrant” for his treatment of the Forensic Science Commission, while Kay Bailey Hutchison called it a “cover-up.”
I mention that Perry’s death penalty record was brought up at the recent NBC News/Politico debate, and that the way Brian Williams edged up to mentioning the Willingham case without directly engaging the incident got a rise out of me at the time. Mims was understanding, but realistic, “I try to imagine what Rick Perry would have said, and chances are he would have said what he’s always said: ‘Willingham was a monster, and due process was served, he went through all of the appeals, and I’m comfortable with that.’ And that’s all you would have gotten.”
The filmmakers can’t help but give Perry some credit for the way the movie turned out. Says Mims: “What’s interesting is that all minutiae that you have to get into to understand this case, well, that was set to come to a close in October of 2009. If Rick Perry hadn’t stepped in and fired those commissioners, the story would have been, ‘Oh, a scientist gave a report and said that the science was bad.’ That would have been mildly controversial, but it would have been nothing. Instead, he fires people, stretches it out until now, and now it won’t go away so easily.” Had Perry done nothing, Mims believes that the Willingham case would have been harder to make compelling.
“We never even set out to prove that Willingham was innocent,” Bailey says. “We just gathered all of the instructive evidence that we could. We know that the prosecution’s case was impossible, because that’s what the scientific evidence tells us. But we don’t know what actually happened.”
Toward the end of the movie, Willingham’s feckless defense attorney, David Martin, responds to the contention that the original arson investigation was based on junk science by asserting that there could be no other explanation. And then, in an effort to back up his claim, Martin actually begins to set out a plausible theory of how the fire may have started — that Willingham’s children, left alone in a room with a space heater, may have accidentally caused the fire themselves.
For a moment, Martin lingers on what he’s just said, and then, seemingly cognizant of the fact that he’s all but undermined his previous beliefs on the matter, digs back down into his reservoir of denial, saying, “But we know that [Willingham] is a psychopath and a sociopath.”
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