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Barry Scheck

John Bradley’s second act

Lisa Falkenberg brings a fascinating and unexpected update to the story of John Bradley, the former Williamson County DA and Texas Forensic Science Commissioner who served as one of the main villains in the Michael Morton case.

Since losing elected office, Bradley has tried to find work. In 2012, I wrote about him applying to lead the state’s Special Prosecution Unit.

No one would take him. Until now. It seems Bradley has landed another prosecutor’s post. Not in Texas. Not in the United States. In the tiny Republic of Palau, where, according to several sources, Bradley has accepted a position in the attorney general’s office.

The former U.S. territory of about 20,000 people in Micronesia was granted independence in 1994, and now operates in “free association” with the United States.

Barry Scheck, co-founder and co-director of the New York-based Innocence Project, said he learned about Bradley’s new job in a mass email from Bradley’s wife.

[…]

Rob Kepple, executive director of the Texas District and County Attorneys Association and a former colleague of Bradley’s at the Harris County District Attorney’s Office, said he hoped the island nation would provide a fresh start for his friend.

“It’s been awhile,” Kepple said, referring to the Morton revelations. “You know, maybe he gets another chance. Maybe he’s got to go all the way to Palau to get it. But I wish him well.”

Scheck, at the Innocence Project, echoed that sentiment.

“He’s certainly going quite a few thousand miles away in order to reinvent himself and we’re all in favor of second acts in American lives,” Scheck told me Tuesday.

Even Michael Morton maintained his graciousness when I asked what he thought about the prosecutor who wronged him returning to prosecuting.

“I don’t wake up every morning gnashing my teeth and shaking my fist at, you know, ‘where’s John Bradley?’ I’ve literally and figuratively moved on,” he said.

“At this stage of the game, I wish him well,” Morton said. “And, you know, adios.”

Morton’s Houston-based attorney John Raley, who worked the case for free, and fought Bradley at every turn as he tried to stymie Morton’s appeals, was a tad less gracious.

“I’m not aware of any evidence that he has learned the lessons of the Morton case,” Raley said of Bradley. “His actions in the future will answer that question.”

Part of me thinks everybody, even John Bradley, has the right to make a living, to learn from mistakes and to get on with life after grievous errors.

The other part thinks Bradley is still a danger to justice everywhere, even 8,000 miles away.

I’ve said repeatedly on this blog that I’m a believer in redemption. It’s the Catholic in me – I may not be a churchgoer any more, but what I learned while I was stays with me and still shapes how I think. The thing is, as we Catholics also know, you can’t be absolved of a sin until you stop committing it. Other than one brief feint in the direction of acknowledging his responsibility in the Morton saga, John Bradley has never shown any indication that he thinks he did anything wrong. If it were up to him, Michael Morton would still be in jail, Ken Anderson would still be on the bench, and the evidence that exonerated Morton and ousted Bradley and Anderson would be in a box somewhere, if it hadn’t been destroyed. So count me in the tad-less-gracious group here. It’s fine by me if John Bradley wants to put his life back together, but he can do that outside the practice of law. Flip burgers, sell cars, groom dogs, dig ditches, paint houses – there’s tons of honest, dignified jobs John Bradley can hold that won’t put him in a position of power over someone’s freedom. If he truly wants redemption, he knows what he has to do to earn it. Grits, who is more gracious than I, has more.

More evidence of Cameron Willingham’s innocence

The scientific evidence against Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three children, has long been discredited. The other piece of evidence used against him at trial was the testimony of a jailhouse informer, who said that Willingham confessed to him. Now that piece of evidence is under attack.

Cameron Todd Willingham’s stepmother and cousin, along with exoneree Michael Morton, joined the Innocence Project on Friday to call on Gov. Rick Perry to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Willingham, who was executed in 2004.

“We are forever passionately committed to the mission of clearing Cameron’s name,” said Patricia Cox, Willingham’s cousin.

[…]

The [Innocence Project] says it discovered evidence that indicated the prosecutor who tried Willingham had elicited false testimony from and lobbied for early parole for a jailhouse informant in the case.

The informant, Johnny Webb, told a Corsicana jury in 1992 that Willingham had confessed to setting the blaze that killed his three daughters. The Innocence Project also alleges that the prosecutor withheld Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Willingham.

Former Judge John H. Jackson, the Navarro County prosecutor who tried Willingham, said the Innocence Project’s claims were a “complete fabrication” and that he remained certain of Willingham’s guilt.

“I’ve not lost any sleep over it,” Jackson said.

[…]

During the trial, Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.

In a 1996 letter, Jackson told prison officials Webb’s charge should be recorded as robbery, not aggravated robbery.

But in legal documents signed by Webb in 1992, he admitted to robbing a woman at knife point and agreed to the aggravated robbery charge.

In letters to the parole division in 1996, the prosecutor’s office also urged clemency for Webb, arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.

In 2000, while he was incarcerated for another offense, Webb wrote a motion recanting his testimony, saying the prosecutor and other officials had forced him to lie.

That motion, [Barry] Scheck said, was not seen by Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Willingham’s innocence and prevent his death.

An investigation is needed, Scheck said, to improve the judicial process.

I’ve written extensively about the Willingham case. To me, the dismantling of the arson investigator’s evidence is more than enough to convince me that he did not receive a fair trial and very likely would not have been convicted – quite possibly, not even arrested – if valid investigative techniques had been used at the time. Having the non-scientific evidence called into doubt as well – surely there was a failure to disclose, at the least – makes me wonder what anyone might base a continued belief in Willingham’s guilt on. That doesn’t stop Rick Perry from keeping a closed mind about it, of course. Grits, who notes the story here, is clearly correct to say that the best chance for anything to happen with this case begins in 2015, with a new Governor. I personally think the chances are better with one candidate than with the other, but for sure there’s no chance with the current Governor. EoW has more.

It’s a long way to Damascus

The Trib has a good story about Williamson County DA John Bradley, whom you may recall as Rick Perry’s chief hatchet man on the Forensic Science Commission, and his apparent conversion to open-mindedness in the wake of the DNA exoneration of Michael Morton, who was convicted of murdering his wife in 1987 by Bradley’s predecessor and mentor, Ken Anderson. It’s a big scandal now because Anderson, now a district court judge, apparently withheld exculpatory evidence to the defense, and Bradley, as is his wont, fought against Morton’s attempts to get DNA testing done and unseal prosecution files for years before finally losing and learning how wrong he was to have fought. I have not followed this saga on the blog – you should read Eye on Williamson and Wilco Watchdog if you want the full story. Anyway, Bradley is now claiming to be a changed man as a result of this experience.

“I have been through a series of events that deeply challenged me,” Bradley, the Williamson County district attorney, said during an extended interview with The Texas Tribune. “I recognized that I could be angry, resentful and react to people, or I could look for the overall purpose and lesson and apply it to not only my own professional life but teach it. And I chose the latter path.”

In the last two years, Bradley and his trademark sharp tongue have been at the center of two of the most controversial murder cases in Texas. In 2009, as chairman of the Texas Forensic Science Commission, he and the New York-based Innocence Project battled aggressively over re-examining the case of Cameron Todd Willingham, the Corsicana man executed in 2004 for igniting the 1991 arson blaze that killed his three daughters. For six years, Bradley also fought the Innocence Project’s efforts to exonerate Michael Morton, who was wrongly convicted of murdering his wife under Bradley’s then boss in Williamson County 25 years ago.

Bradley discovered that not only was he wrong all those years about Morton’s guilt, of which he had been so certain, but that there are serious questions about whether his predecessor may have committed the worst kind of prosecutorial misconduct: hiding evidence that ultimately allowed the real murderer to remain free to kill again.

[…]

Bradley said he regrets that his opposition to DNA testing over the last six years meant more time behind bars for an innocent man. He also regrets sending letters to the Texas Board of Pardons and Paroles urging them to keep Morton locked away.

Had he known then what he knows now about the Innocence Project and Scheck, he said he might have handled the Willingham case differently, too.

This experience has taught him to be more open-minded, to try to see cases from both sides, he said. Bradley emphasized that his office is more open than his predecessor’s was. And in the future, when defense lawyers bring him cases to review, Bradley said, he will have a new perspective.

“If I had to come up with a slogan,” Bradley said, “I don’t know that I would use it, but essentially the slogan would be ‘We are more than tough on crime.'”

Some of his critics, though, see Bradley’s contrition as too little, too late. And they note that he is facing re-election next year. They want more than words.

“The jury is still out on whether those words will manifest themselves into real actions to help fix what is clearly a broken justice system,” said state Sen. Rodney Ellis, D-Houston, chairman of the Innocence Project.

Scott Henson, who writes the well-regarded criminal justice blog Grits for Breakfast, said Bradley could demonstrate his changed perspective by joining with innocence advocates to promote reforms to the Texas justice system. “He’s got a long record,” Henson said. “And it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.”

I’m as big a believer in redemption as the next person, but talk is cheap. I agree with Sen. Ellis and Henson that it’s what Bradley does next that will determine if he means this or is just hoping to deflect a weapon that will surely be used against him in the 2012 election. A phone call to Craig Watkins for advice on how to go about ensuring the integrity of past convictions would be a good start. There’s a lot Bradley can do to try to atone and get right with the universe. It’s up to him to do it. Link via Grits, who has more here.

Dr. Peerwani and the Willingham case

Dr. Nizam Peerwani, the newly appointed Chair of the Forensic Science Commission, gets profiled in the Trib. Most of the story is about the history of the Willingham case, which the Commission finally sort of dealt with last year.

With a smile and a friendly laugh, Dr. Nizam Peerwani offers coupons for free autopsies to visitors to his office.

Death and the science of it have dominated Peerwani’s 30-year career in the Tarrant County medical examiner’s office. Now, Peerwani is taking on a very live controversy as chairman of the Texas Forensic Science Commission: the continuing investigation into the arson science that led to the conviction and 2004 execution of Cameron Todd Willingham.

“His background and his temperament give him the unique ability to make sure the commission is focused on the science of forensics instead of the science of politics,” said Sen. Rodney Ellis, D-Houston, who helped created the nine-member commission in 2005.

[…]

In April, three years after it began its investigation, the commission published some of its findings. It made significant recommendations to improve future arson investigations, but did not decide whether the Willingham arson investigators were professionally negligent, which was its original charge.

Commissioners declined to rule on that until the Texas attorney general decides whether the panel has jurisdiction to investigate cases including Willingham’s that occurred before its creation in 2005. A ruling is expected by the end of this month.

Peerwani said he agreed with experts who testified before the board that the arson science used to convict Willingham was seriously flawed. But asked whether Willingham was guilty or innocent, he was less definitive. “There were other issues,” he said of what lead to Willingham’s conviction. “There were eyewitness accounts; there were hospital and doctor testimony given and investigative findings.”

[…]

Barry Scheck, co-founder and co-director of the Innocence Project, said he was heartened by Peerwani’s appointment. Early on in the Willingham investigation, Peerwani agreed with other experts that not only was the science faulty but that forensic examiners had an ethical duty to inform prosecutors of potential flaws in their work.

That, Scheck said, gets at the heart of the matter. When the Innocence Project asked the commission to review the Willingham case, the main purpose was to establish whether the science used was faulty. And if it was, to find other cases in which the same faulty science might have led to wrongful convictions.

If the attorney general rules that the commission cannot review older cases, he said, an unknown number of inmates convicted based on so-called junk science will have little opportunity to seek justice.

“It would be extremely troublesome,” Scheck said. “We’d be back to square one.”

Obviously, almost anyone would have been an improvement over professional hack/Perry toady John Bradley, but the reactions from folks like Scheck and Sen. Ellis are especially encouraging. This really is supposed to be about evaluating procedures to ensure that they’re rigorous and not a bunch of handed-down folk tales. If the FSC pursues that, and doesn’t get needlessly blocked from reviewing old cases, it will be a major step forward, if only to get us back to where we were always supposed to be.

Willingham documentary

From the Trib:

As you’re reading this, Steve Mims and Joe Bailey Jr. are putting the finishing touches onIncendiary, a new documentary about theCameron Todd Willingham case that focuses almost entirely on forensics — on the science behind arson investigations like the one that led to the Corsicana man’s arrest, conviction and execution following the death of his three small children in a 1991 house fire.

Mims and Bailey aren’t political activists; the former lectures in the University of Texas’ Department of Radio-Television-Film, while the latter is a graduate of UT’s law school. But they were so moved by an article about the Willingham case in The New Yorker that they decided to tackle one of the most controversial topics in the modern era of state’s criminal justice system.

Featured in the film are two arson science experts, Gerald Hurst and John Lentini, talking about the case and about forensics in general. Willingham’s original defense attorney, David Martin, also gets a lot of screen time — although, given his skepticism about any wrongdoing by the authorities, he could easily be mistaken for a prosecutor. Barry Scheck, co-director of the New York-based Innocence Project (and best known as a member of O.J. Simpson’s criminal defense team), plays a leading role as well.

But the breakout performance is that of Williamson County District Attorney John Bradley, who was appointed by Rick Perry to chair the Texas Forensic Science Commission just as the commission and its previous chair were inconveniently set to weigh in on the Willingham case during the gubernatorial campaign. Bradley is combative, bordering on hostile, from the moment he appears in Incendiary, both in his dealings with the press and with his fellow commissioners.

There’s an 8-minute preview at the Trib link, which is well worth your time to watch, plus a brief Q&A with the filmmakers. I look forward to seeing the finished product.

So what did the Forensic Science Commission do?

I guess I wasn’t expecting this.

A majority of the Texas Forensic Science Commission has tentatively concluded that there was no professional negligence or misconduct by arson investigators whose flawed work in a fatal Corsicana fire contributed to the conviction and 2004 execution of Cameron Todd Willingham.

It would be wrong to punish investigators for following commonly held beliefs about fire conditions that are known, in hindsight, to be invalid indicators of arson, said John Bradley, chairman of a four-member panel reviewing Willingham’s case.

“We should hold people accountable based on standards that existed when they were working on these things,” Bradley said during the commission’s quarterly meeting Friday.

All four members of the investigative panel agreed with the preliminary finding, which was reached during two meetings that were closed to the public, said Dr. Sarah Kerrigan, a forensic toxicologist and director of the Sam Houston State University crime lab in Huntsville.

“The panel unanimously felt the science was flawed by today’s standards, but the question for us was, was there professional negligence or misconduct?” Kerrigan said, adding that scientific arson standards — though adopted nationally in 1992, the year Willingham was convicted — had not filtered down to the front-line investigators in Texas.

I must have lost the thread of this whole saga awhile back, because as I write this I’m not really sure I know what I was expecting to come out of this. I knew the question of Cameron Todd Willingham’s innocence wasn’t on the table as it once had been – once Rick Perry and John Bradley squashed Craig Beyler’s testimony, all that was effectively swept under the rug – but the question about whether or not the fire investigators at the time of the Willingham blaze deserved official blame or not wasn’t what I had in mind. Thinking about it now, I’m not sure why that even matters. I suppose what I anticipated was more or less the same as Barry Scheck of the Innocence Project:

Instead of focusing on the fire investigators, Scheck implored commissioners to analyze the state fire marshal’s office , which he said adopted scientifically based standards for determining when a fire is arson yet failed to reinvestigate hundreds of arson convictions obtained from investigations now known to be flawed.

“Was it the fire marshal’s office that engaged in professional neglect or misconduct?” Scheck asked. “Does the (agency) have a duty to correct any past representations that are wrong, that are scientifically invalid?”

In the end, commissioners voted to give Scheck and other interested parties three weeks to submit objections to the proposed finding.

It’s well known that many other arson convictions are based on the same shoddy “science” that got Willingham executed. If there’s no action taken to review those convictions – if the Forensic Science Commission doesn’t force the issue in whatever fashion it can – then I don’t see the point of what they’re doing. I know this wasn’t the original intent behind the creation of the FSC. Time to schedule another committee hearing, Sen. Whitmire. Grits and the Chron has more.

UPDATE: Dave Mann, who has reported extensively on arson forensics, weighs in.

Where’s Willingham?

The Texas Forensic Science Commission will meet on January 29. You will be shocked to hear that Cameron Todd Willingham is not on their agenda.

Instead, the meeting will focus on formalizing procedures explaining how the group will conduct business, John Bradley, the commission’s newly appointed chairman, said Thursday.

[…]

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who wrote the report in question.

Bradley said that he isn’t ignoring Willingham — who was executed for the 1991 deaths of his three daughters in a house fire outside Corsicana — and that the board’s investigation of the case could conclude this summer . He said he will assign pending cases, including Willingham’s, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn’t have policies in place that answer “simple questions, like ‘What is the standard for accepting or rejecting a complaint?'”

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it “an agenda that deflects attention from what everybody wants answered.”

And Sam Bassett, the panel’s deposed chairman, said it appears the group’s new direction “is, in my view, unnecessarily delaying the investigations we had going.”

None of this should come as a surprise, of course. Bradley has been very clear about the fact that he has no real interest in pursuing the Willingham investigation. Very simply, he will not do anything that might be damaging to his patron, Rick Perry. Until he takes concrete action towards bringing this case to a real conclusion, with recommendations for action going forward, I see no reason to believe anything he says about it. The Contrarian and the Texas Moratorium Network have more.

Meet John Bradley

So today is the day that Sen. John Whitmire gets to grill Williamson County DA John Bradley, the new Chair of the Texas Forensic Science Commission, about his plans for the Commission and the status of the Willingham case. I very much look forward to hearing what Bradley has to say even if I have little faith in his being a force for good. I hope he proves me wrong, but I’m not counting on it. Anyway, if you want to know more about the man, I recommend this Statesman profile and this Texas Trib story for more. The former is a bit too positive for my taste – could they not find anyone willing to talk smack about the guy? – but there you have it.

In the meantime, State Sen. Rodney Ellis and Innocence Project Co-Director Barry Scheck will hold a press conference after the Whitmire hearing to give their perspective on where we stand. Click on to read their press release.

UPDATE: Grits has more.

(more…)

Two views of Willingham and Perry

Couple of good op-eds in the papers in the past few days concerning the Cameron Todd Willingham case. First, here’s State Sen. Rodney Ellis and Barry Scheck of the Innocence Project focusing on the forensics:

In 2006, the Innocence Project brought the Willingham case to Texas’ Forensic Science Commission, which the state Legislature had created a year earlier. The Legislature created this commission to investigate allegations of negligence or misconduct that substantially affects the integrity of forensic analysis and recommend corrective action. The commission’s charge is straightforward and clear, and the Willingham case fits squarely within it.

The filing that kicked off the commission’s investigation didn’t just focus on Willingham’s case. It also included the case of Ernest Willis, who was convicted and sentenced to death for a nearly identical crime at around the same time — based on nearly identical forensic analysis — but was exonerated because the forensic evidence was so flawed. The Pecos County prosecutor who requested Willis’ exoneration determined that the arson analysis was wrong because it relied on outdated and inaccurate forensic techniques. Willis was determined to be “actually innocent” and was compensated by the state of Texas.

The filing also noted that thousands of Texans are convicted of arson, and that the commission’s investigation could help determine whether accurate, reliable forensic analysis is being used statewide. The Forensic Science Commission voted unanimously to move forward with an investigation comparing the Willis and Willingham cases and, by extension, determining whether there may be broader problems with other arson convictions.

This is the kind of work the Legislature had in mind when it created the commission. The legislation creating the commission passed in 2005, in the midst of the Houston Police Department crime lab scandal. Many legislators cited problems in the lab when debating whether to create the commission, and they also made it clear that we needed an independent commission to investigate other forensic issues that may come up.

And that’s why it’s so important that the Commission be able to do its work in an independent fashion, without any meddling from Governor Perry. On that score, and on the matter of innocence, here’s Rod Dreher of the Dallas Morning News.

Perry is plainly afraid that his own investigators will discover that the state likely put a blameless man to death. But what is he afraid of? Political fallout? What is mere politics when the credibility of a system that might have killed an innocent man – and might yet kill other innocents – is at issue? Our skittish governor has taken to calling Willingham a “monster.” Even if he was, we put men to death for their deeds, not their dispositions. He needed killin’ is no rationale for execution.

A real leader – a brave and honorable one – would want to know the truth, so that if evidence requires it, he and others responsible for Willingham’s death could make restitution and repent for shedding the blood of a blameless man railroaded to his execution. If hard-hearted Perry is so certain of Willingham’s guilt, why object to an investigation?

More importantly, if Willingham was wrongly put to death, all decent capital punishment supporters should want strict measures taken to ensure that this catastrophe never happens again. If we are going to have the death penalty, we have the solemn duty to use it responsibly. Right? Surely we Texans aren’t the kind of people so enamored of retribution that the actual guilt or innocence of those executed in our names is of no real concern.

I’ve often wondered why more conservatives aren’t skeptical of the death penalty. I mean, talk about a vast exercise of government power. Anyway, check ’em both out.

Perry sneers at Willingham evidence

This is exactly what I expect from Rick Perry.

Governor Rick Perry today strenuously defended the execution of a Corsicana man whose conviction for killing his daughters in a house fire hinged on an arson finding that top experts call junk science.

“I’m familiar with the latter-day supposed experts on the arson side of it,” Perry said, making quotation marks with his fingers to underscore his skepticism.

Even without proof that the fire was arson, he added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed “clear and compelling, overwhelming evidence that he was in fact the murderer of his children.”

These were the governor’s first direct comments on a case that has drawn withering criticism from top fire experts.

Death penalty critics view the Willingham case as a study in shoddy – or at least outdated – science, and they consider it the first proven instance in 35 years of an executed man being proven innocent after death.

“Governor Perry refuses to face the fact that Texas executed an innocent man on his watch. Literally all of the evidence that was used to convict Willingham has been disproven – all of it,” said Barry Scheck, co-director of the Innocence Project, a nonprofit group affiliated with the Cardozo School of Law in New York that has championed the case. “He is clearly refusing to face reality.”

Well, yeah. He has a Republican primary to win, you know, and reality is a hindrance in that race. Seriously, this is all classic Perry: the arrogance, the disdain for anything remotely intellectual, the refusal to consider the possibility of error, the bizarre belief that the Texas Board of Pardons and Paroles actually plays a role as reviewer of the evidence, the “jury’s verdict is final” mentality – if only he felt that way about civil verdicts as well. The one thing I find curious about this is the contrast to the case of Timothy Cole. I guess that bandwagon was big enough that he felt it necessary to hop aboard. I just hope that the Texas Forensic Science Commission is sufficiently independent that the Governor’s opinion in the Willingham case won’t affect their final report. We’ll see what he’ll have to say about that if they do the right thing. The Contrarian has more.

UPDATE: Grits has a good question for Perry.

More on the Willingham report

Now that the Texas Commission on Forensic Sciences has received its report on the botched investigation of Cameron Todd Willingham and the likelihood that he was convicted and executed for a non-crime, will that help improve forensic standards so that tragedies like this can be avoided in the future?

Questions of investigators’ competence in the tragic case — and of Willingham’s possible innocence — vaulted to center stage last week when nationally renowned fire expert Craig Beyler blasted the accuracy of the early probes in a study commissioned by the Texas Forensic Science Commission.

Beyler’s review joins two earlier expert reports in faulting the work of Texas Deputy Fire Marshal Manuel Vasquez, whose testimony was key to Willingham’s conviction.

Barry Scheck, co-director of the Innocence Project, hailed Beyler’s findings as corroboration of a 2006 study sponsored by his group.

“There is a powerful case for those who have the stomach to look at it that an innocent man in Texas went to his death,” Scheck said. “This was not arson, much less an arson murder case.”

Scheck said he hopes publicity about the Harvard-trained Beyler’s report will boost congressional interest in a National Research Council call for a body to set standards for U.S. forensics laboratories and professionals and oversee education. The research council found serious deficiencies in the current system but stopped short of calling for old criminal cases to be reopened.

The commission could issue a final report in the Willingham case next spring. I can’t wait to see what they say, and if they go where the evidence takes them or if they try to weasel out of it. In the meantime, given enough resources, national standards for forensics (which, I must confess, it hadn’t occurred to me that we don’t already have) should be easy to sell. Just get some “CSI” actors, plus Abby from “NCIS”, and have them do a bunch of promos in favor of the idea. I bet they’d work cheap for something like this. Someone needs to make this happen.

Of course, you will have to overcome guys like this, who would surely become the Sarah Palin of archaic arson investigations if given the media exposure.

That question still stirs passions among those closely associated with the case. Most surprising is the view of Willingham’s first attorney, Waco lawyer David Martin.

“He’s a classic textbook psychopath,” Martin said of his former client. “He’s among the 6 percent of the population who don’t have a conscience.”

Martin, a former policeman, dismissed Beyler’s report. “Vasquez was one of the most competent and forthright witnesses I’ve seen,” he said. “He was an honest man. He did a good job.”

Martin said he examined the burned-out residence and found what he considered clear-cut evidence of arson. “It was quite obvious he poured accelerant on the floor and set the house on fire,” he said.

Yeah, all the experts are wrong and my dime-store psychoanalysis is all you need to know. And the more guys like him say stuff like that, the more they’ll be quoted as “the other side”, as if there were one in this. Grits and the Texas Moratorium Network have more.

Exonerating the deceased

One of the things Eric Berger focused on in his story about the relevance and importance of Charles Darwin some 200 years after his birth was the rise of DNA and its application to criminology. Today, DNA evidence is as well known for freeing the innocent as it is for convicting the guilty. Sadly, sometimes that evidence comes too late to actually set the wrongly-convicted person free, as is the case with Tim Cole of Lubbock. But that doesn’t make his exoneration any less important. Read his story and think how many others like him there must be.

UPDATE: The Lege pays honor to Timothy Cole. Grits has more.

Innocence

Lisa Falkenberg examines what Circuit Judge Jacques L. Wiener Jr. referred to as “the elephant in the room” in granting a stay of execution to Larry Swearingen.

The nation’s highest court hasn’t directly addressed whether a claim of actual innocence can be made in late appeals, so federal appeals courts are left to their own interpretations. The 5th Circuit takes the easy route: it uniformly rejects them.

But, apparently, refreshingly, there’s at least one member of the court who disagrees: Judge Wiener.

In concurring with the stay, he wrote a special statement after Monday’s order to address what he called “the elephant” in the room.

Wiener writes that even though the U.S. Supreme Court never “expressly” recognized the right to claim actual innocence in late appeals, justices have made statements that suggest they view the truly innocent in the same light as the insane or the mentally retarded.

Wiener quotes Justice O’Connor: “I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution.”

One would certainly think.

There’s a very real possibility, Wiener writes, that the lower court to which Swearingen’s case was returned “could view the newly discovered medical expert reports as clear and convincing evidence that he victim in this case could not possibly have been killed by the defendant.”

That would represent a change in how the Court of Criminal Appeals has reacted to such evidence on Swearingen’s behalf previously, but I suppose one can hope. What else can you do?

I should note that when I wrote before about how our state leaders have always maintained that Texas has never executed a provably innocent man, there was already a strong possibility that they are wrong in this belief. There’s the case of Cameron Willingham, executed in 1991 for setting a fire that killed his three children. Except that the forensic science used to prove the charge of arson was based on discredited procedures, and multiple experts who have reviewed the evidence today have all concluded the blaze was accidental. In a matter of propitious timing, the Texas Forensic Science Commission is getting close to rendering a final judgment on the matter.

Fire scientist Craig Beyler has been asked by the Texas Forensic Science Commission to conduct an independent review of the case’s forensic evidence.

“He appears to be one of the pre-eminent people in the fire and arson investigation field,” Samuel Bassett, an Austin attorney and commission member, said of Beyler.

Barry Scheck of the Innocence Project, a non-profit organization responsible for scores of DNA exonerations, called the hiring of Beyler an “encouraging sign” and said he hoped Beyler would be able to “get to the bottom” of the case that sent Willingham to a lethal injection.

“It’s essential that this matter is resolved for the sake of those who have been wrongly convicted by unreliable arson evidence, as well as those under investigation in new arson cases,” said Scheck, the Innocence Project’s co-director.

[…]

The Forensic Science Commission was created in 2005 to investigate allegations of forensic error and misconduct in the country’s busiest death-penalty state. The Willingham case is its first capital case.

Bassett said he hoped Beyler would be able to complete his review by early April. Beyler will write a report and may make recommendations to the commission.

It is not clear whether Beyler would conclude whether Willingham was innocent. Even if he finds that the science used at the time was flawed, as the other experts have, he may not take the next step and say Texas was wrong to execute Willingham, though that would be the clear implication.

“If [Beyler’s report] is critical of the arson testimony,” said Bassett, “then theoretically it’s possible that could be the basis for a broader conclusion about the original conviction.”

That’s a fine distinction that unfortunately won’t do Cameron Willingham any good, but may perhaps spur the debate forward, and who knows, might even act as a catalyst for Larry Swearingen. The Chicago Tribune was the driving force behind the re-examination of Willingham’s case – you really should read their 2004 story, written ten months after Willingham’s execution, to get the full background. Thanks to Grits for the link to today’s story.