Senator Eliot Shapleigh - El Paso, Texas

AUSTIN — The Houston Chronicle and Hearst Newspapers LLC are suing Gov. Rick Perry in an effort to force the release of a clemency report Perry received before denying a stay of execution to Cameron Todd Willingham.

The report is a summary and status of the case against Willingham that was given to Perry at 11:30 a.m. on the day of Willingham's 2004 execution in the fire deaths of his three daughters. Anti-death penalty advocates say modern fire forensics show the blaze cannot be proven as arson.

Perry's office has refused to release the report, claiming it is a privileged document. The clemency document was used by Perry in the process of deciding whether to give Willingham a 30-day stay of execution.

“When it comes to human life, there is no place the governor should be more transparent in his decision-making,” said Jonathan Donnellan, an attorney for Hearst and the Chronicle.

“It should raise eyebrows that the governor is seeking to shield communications with his advisers as ‘legal advice,' when the very idea of executive clemency power is to make a policy decision after the legal process has run its course,” Donnellan said.

Willingham was put to death shortly after 6 p.m. on Feb. 17, 2004, just 88 minutes after the Governor's Office received an expert's report that the fire that killed Willingham's children could not be positively attributed to arson. It is unknown whether the report by Perry's general counsel included any mention of the arson controversy in the Willingham case.

In a statement e-mailed to the Chronicle, Perry spokeswoman Allison Castle said, “Todd Willingham was convicted and sentenced to death by a jury of his peers for murdering his three daughters, and that conviction was upheld by Texas courts and nine times by federal courts including four times by the U.S. Supreme Court. The governor reviewed all the facts in this case and agreed with jury and the courts that Willingham was guilty of murdering his three daughters. Our office has fully complied with the public information act.”

The Attorney General's Office has previously ruled that the specific documents that the Chronicle is referencing are not subject to disclosure under the Public Information Act.

A renewed controversy over the Willingham case erupted recently when Perry replaced members of the Texas Forensics Commission who were looking into the case to see whether standards for arson investigations could be improved. But their removal halted the investigation, sparking accusations the governor was trying to cover up an investigation into whether Willingham was innocent.

Perry cites precedents

The lawsuit contends that Chronicle reporter Lise Olsen on Aug. 31, 2009, requested documents on the Willingham case from Perry's office. With her permission, the Governor's Office redacted personal e-mail addresses and then produced 883 pages of documents.

The lawsuit says the governor's attorneys never informed Olsen that they wanted to withhold the clemency report. Nor did Perry's lawyers tell Olsen the document was not among those delivered to her.

Perry's office responded to Olsen's e-mail by saying the documents were similar to reports the Texas attorney general previously had ruled could be held from public view as privileged attorney product.

The governor has said the document contains nothing that is not in the public record, but he has refused to release it. He said the documents were kept private in both the administrations of Govs. Ann Richards and George W. Bush. The state archives at one point released the Bush clemency documents when Perry's office failed to object to their being made public.