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Texas Forensic Science Commission

Sonia Cacy

A long-time-coming story of actual innocence.

A judge has ruled that Sonia Cacy, a West Texas woman convicted of setting her uncle on fire, is innocent of murder, basing his decision on new analysis of evidence presented at her 1993 trial.

“The cumulation of evidence supports Applicant’s claim of actual innocence,” visiting state District Judge Bert Richardson said in his ruling, filed Monday in Pecos County. “This court finds that Applicant makes a compelling case for actual innocence, given the overwhelming evidence.”

[…]

Cacy had served five years of a 99-year murder sentence for the 1991 death of her uncle, Bill Richardson. The two were living in his Fort Stockton home when it caught fire. Prosecutors said Cacy had set her uncle on fire, also burning the home, to get the money he left to her in his will.

But multiple experts — including the State Fire Marshal’s office — concluded that Cacy did not set her uncle ablaze. Some suspected that Richardson, a smoker, likely died of a heart attack and that the fire was accidental. Cacy was released on parole after The Texas Board of Pardons and Paroles received one of the reports, but her conviction was never lifted. The Pecos County District Attorney and the Bexar County medical examiner’s office had stood by the original investigation results.

Judge Richardson’s ruling was largely based on a 2013 state Fire Marshal’s Office report that discredited trial testimony that there was an accelerant found at the crime scene.

“The findings of the State Fire Marshal’s Office — a state organized and endorsed office — are the strongest evidence that no accelerant was present and that Bill Richardson likely died of a heart attack before being burned,” Judge Richardson wrote in a ruling that comes two years after Richardson first heard Cacy’s petition for relief in Fort Stockton.

I have to admit, this story is not one I was familiar with. The link in the quoted bit above is to a Trib story from 2010, but it goes back much farther than that. Texas Monthly adds some details to what happened this week.

Cacy’s journey through the legal system has been long, winding, and complicated. During at punishment retrial in 1996, her new attorney enlisted Dr. Gerald Hurst, the late Cambridge-educated chemist from Austin, to evaluate the forensic evidence that clinched conviction against her. Hurst discovered that the original tests, conducted by Joe Castorena of the Bexar County Forensics Lab, had been completely misread. The results didn’t find the indicators of an accelerant as he claimed. Castorena, a toxicologist by training, had in fact identified the products of pyrolysis—compounds created by burning plastic, which in many ways are similar to those of an accelerant.

Hurst was convinced these compounds came from rubberized curtains and a polyurethane foam mattress, both of which were found burned at the crime scene. Cacy’s uncle was a chain smoker who was notoriously careless with lit cigarettes, one of the most common causes of household fires. Yet in spite of the evidence, a jury affirmed Cacy’s conviction in 1996 and re-sentenced her to life in prison.

By 1998, Hurst had become obsessed with the case, and had enlisted a panel of at least a dozen respected arson experts and pathologists, all of whom concluded that the fire was accidental, and that Richardson—a man of poor health—had died of a heart attack, possibly while attempting to extinguish the flames. The Board of Pardon and Paroles was moved by the reports and promptly released Cacy that year. Now, they would go about the work of establishing her innocence.

Her attorneys filed a complaint with the Texas Forensic Science Commission in 2010, but they could not have encountered a more unsympathetic audience; the commission’s presiding officer, John Bradley, was the law-and-order Williamson County district attorney who spent years opposing DNA testing in the Michael Morton case, testing that later cleared Morton of the murder of his wife. Bradley petitioned then-state attorney general Greg Abbott for a legal opinion preventing the commission from reviewing Cacy’s case. Abbott delivered, opining that any cases prior to the formation of the commission in 2005 were out of bounds—namely Cacy’s.

Her attorneys turned to the newly reformed State Fire Marshal’s Office, whose scientific advisory panel conducted a lengthy examination of the case and concluded that there was no evidence of arson. Cacy took the report to the Texas Court of Criminal Appeals in 2012, along with some shocking new evidence: Castorena, the toxicologist, admitted in a letter to her counsel, Dallas lawyer Gary Udashen, that the clothing samples he’d tested had been contaminated in either the morgue or the lab. Thus, his baffling reasoning went, anyone who didn’t know about the contamination couldn’t accurately interpret the results. Asked why he never reported this, Castorena replied, “nobody asked me.”

It gets more ridiculous from there. Texas Monthly has three other stories about the history of the case, which as the second one notes was one of the driving forces in reforming how fire investigations are done in Texas and why old arson cases are being reviewed to see which ones relied on bogus, outdated investigative techniques. It’s a little jolting to see John Bradley’s name pop up in this discussion, but hardly surprising. And please, can we scrub the descriptor “law-and-order” from stories involving Bradley? We know full well by now that he was the opposite of “law-and-order” – he was an unscrupulous liar who worked tirelessly to keep innocent people in jail. The adjectives he deserves are all some variation on “disgraced”. Anyway, click on all the links and learn more about Sonia Cacy and how terribly wronged she was by the justice system. The fact that this wrong is finally being made right doesn’t change any of what happened in the past.

More on DNA mixtures

Some good news here.

Texas criminal justice organizations have begun reviewing thousands of cases that relied on an outdated method for calculating the odds that a particular person left DNA evidence at a crime scene.

At issue are samples that include more than one person’s DNA, such as evidence swabbed from a countertop after a convenience store heist or taken from bodily fluids in a rape kit. Experts revised national guidelines for calculating odds in these scenarios six years ago, but no one sounded an alarm or asked prosecutors to re-examine cases that used the previous methodology.

Now, Texas labs and lawyers are reviewing pending prosecutions and thousands of adjudicated cases, including those of death row defendants who had this type of evidence presented at trial.

The science behind DNA testing hasn’t changed, but for mixed samples, analysts now focus on fewer factors in their results before determining the odds of someone being at the scene. The findings are more conservative.

Inaccurate calculations still might be happening around the country, said Barry Scheck, director of the Innocence Project, a legal nonprofit that has reviewed post-conviction DNA evidence since 1992. Scheck took an informal poll last week among forensic scientists at a national conference on the outdated “multiple contributor” DNA protocol, and all agreed: “Texas is the only place that’s systematically trying to correct it.”

The review was initiated by crime labs and coordinated by the state’s Forensic Science Commission. Prosecutors, defense lawyers and judges have joined the effort to comb through old cases, contact affected parties and, in some instances, halt the judicial process to ensure the science is up to date.

[…]

The new results may have little or no bearing on a defendant’s guilt. But in a rare show of solidarity in the adversarial legal system, leaders of the state’s science, law enforcement and criminal-defense communities have banded together to deal with the problem.

“Texas is really the only state that’s taking it seriously,” said Sandra Guerra Thompson, a University of Houston criminal-law professor who has studied wrongful convictions and serves on the board of the Houston Forensic Science Center. “Instead of looking at this as a big mess, I think we need to be applauding our state’s leaders for having the apparatus in the first place to deal with this issue and for using it.”

See here for the background. It’s great to see a proactive review of this change in how DNA mixtures are analyzed, to see what cases may need to be revisted, and it’s especially good to see Texas being a leader in that. None of this would be happening without the Texas Forensic Science Commission, which despite Rick Perry’s onetime efforts to neuter it to prevent any real scrutiny of the Todd Willingham case, has become an invaluable tool in criminal justice reform.

DNA mixtures

Grits reports on the latest developments in forensics at a hearing of the Texas Forensic Science Commission, and what it means to the legal system in Texas and elsewhere.

First, a bit of background. DNA testing looks at two metrics on X and Y axes: Whether alleles are present at various loci, and the quantity of DNA available for testing at that spot. (The latter is complicated by allele drop-in, drop-out, and stacking, terms I’m only beginning to understand.) When examining the peak height of DNA quantity on the test results, DPS’ old method did not impose a “stochastic” threshold, which as near as I can tell is akin to the mathematical sin of interpreting a poll without ensuring a random sample. (The word “stochastic” was tossed around blithely as though everyone knew what it meant.) Basically, DPS did not discard data which did not appear in sufficient quantity; their new threshold is more than triple the old one.

That new methodology could change probability ratios for quite a few other cases, the panel predicted. One expert showed slides demonstrating how four different calculation methods could generate wildly different results, to my mind calling into question how accurate any of them are if they’re all considered valid. Applying the stochastic threshold in one real-world case which he included as an example reduced the probability of a match from one in 1.40 x 109 to one in 38.6. You can see where a jury might view those numbers differently.

Not every calculation will change that much and some will change in the other direction. The application of an improper statistical method generates all types of error, not just those which benefit defendants. There may be folks who were excluded that become undetermined, or undetermined samples may become suspects when they’re recalculated. The panel seemed to doubt there were examples where a positive association would flip all the way to excluded, but acknowledged it was mathematically possible.

DPS has identified nearly 25,000 cases where they’ve analyzed DNA mixtures. Since they typically represent about half the state’s caseload, it was estimated, the total statewide may be double that when it’s all said and done. Not all of those are problematic and in some cases the evidence wasn’t used in court. But somebody has to check. Ch. 64 of the Code of Criminal Procedure grants a right to counsel for purposes of seeking a DNA test, including when, “although previously subjected to DNA testing, [the evidence] can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.” So there’s a certain inevitability about the need to recalculate those numbers.

See here for the Texas Tribune story that Grits references – WFAA also covered the hearing – and be sure to read the whole post. There’s a lot of scientific info out there if you google “DNA Mixtures”, but I’m not informed enough to point you to something useful. As noted, DNA is still very exact when comparing known samples, or in isolating a suspect from a rape kit. It’s when there are multiple unknown DNA donors that things get complicated, and there isn’t a single standard for that now. What we do know is that the method that had been used to provide match/elimination probabilities were not accurate, and some number of convictions in Texas and elsewhere will need to be reviewed in light of reinterpreted DNA evidence. Ultimately, questions about what the standards are and how the evidence should be analyzed will be settled by the courts, from the CCA to SCOTUS. This will be a long and occasionally messy process, and we’re at the very beginning of it. On the plus side, this should provide all kinds of fodder for mystery writers and TV showrunners. So at least there’s that.

Forensic Science Commission to examine bite mark evidence

Good.

The board charged with ensuring that reliable scientific evidence is used in Texas courtrooms agreed on Friday to investigate cases in which bite mark analysis was used to secure a conviction.

“We’re talking about the whole field, the validity of the field of bite marks,” said Dr. Vincent DiMaio, the chief presiding officer at the Texas Forensic Science Commission, and the former Dallas County medical examiner. “The problem justifies an investigation.”

The board voted to review bite mark cases to determine whether faulty evidence resulted in wrongful convictions after a presentation from Chris Fabricant, director of strategic litigation at the New York-based Innocence Project.

Last year, the American Academy of Forensic Sciences conducted a study of forensic odontologists and concluded that the analysis could not even accurately determine which marks were bite marks. In 2009, the National Academy of Sciences published a report that concluded there was insufficient scientific basis to conclusively match bite marks. Additionally, the Jo Handelsman, the White House Office of Science and Technology Policy, has said that bite mark evidence should be eradicated from courtrooms.

Bite mark evidence, Fabricant said, has contributed to 24 wrongful convictions nationally, including two in Texas.

“Overwhelmingly, it was the chief evidence in those cases,” he said. “Sometimes, it turned out they weren’t bite marks at all.”

[…]

The Innocence Project is urging the commission to institute a moratorium on the use of forensic odontology in criminal cases.

Dr. Nizam Peerwani, a commission member and the chief medical examiner in Tarrant County, said his agency abandoned the practice more than two decades ago. He recalled one instance in which a dentist identified a bite mark that turned out to be an injury from a crow bar.

“We have no respect, absolutely no regard for bite marks,” Peerwani said.

Grits has been on this for years. I’m a lifelong fan of crime fiction, and I know I’ve read more than a few examples of literary detectives using this technique. I’m surprised there are more cases that will need to be reviewed. Anyway, isn’t it amazing how much good work a body like the Forensic Science Commission can get done when people like John Bradley aren’t around to muck things up?

Is there any valid evidence of Todd Willingham’s guilt left?

The Washington Post has a long piece examining the connection between the jailhouse snitch whose testimony helped send Cameron Todd Willingham to death row and the prosecutor who has long denied taking any action to influence that testimony.

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness was threatening to recant. (Jackson misspelled the rancher’s last name.) “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

Along with Webb’s account, the letters and documents expose a determined, years-long effort by the prosecutor to alter Webb’s conviction, speed his parole, get him clemency and move him from a tough state prison back to his hometown jail. Had such favorable treatment been revealed prior to his execution, Willingham might have had grounds to seek a new trial.

Read the whole thing, it’s well worth your time. I sadly disagree with the suggestion that this revelation will have any effect on public opinion about the death penalty. I think people have long since factored in this possibility in their thinking, and generally conclude it’s an acceptable cost. People have been making the argument about possibly executing the innocent without much traction yet. Maybe the recent ghastly news out of Arizona about horribly botched executions will help move public opinion, I don’t know. I just don’t expect this to do much on that score.

What I think this could do is spark a closer examination of how jailhouse snitches are used, much like the earlier revelations of bad investigative technique have spawned a real review of arson forensics and even a look at some other cases in which discredited methods were used to secure convictions. The cellmate to whom a defendant that is otherwise loudly proclaiming his innocence confesses fully to the crimes with which he is charged is practically a cliche, and often a too-easy convenience for overzealous prosecutors. If some kind of reform of that practice, or at least a heightened sense of skepticism when a jailhouse snitch is employed at trial, comes out of this, then at least some good will have resulted from Willingham’s needless and unjust death.

Actually, there is one more thing that can come of all this. I must have missed it in the WaPo story, but in this Chron story about Willingham’s stepmother and biggest advocate, there’s more to this than just information.

At 71, Eugenia Willingham has spent more than a third of her life trying to prove jurors were wrong when they condemned her stepson, Todd, for murdering his three young children in a deliberately set fire. Her faith in Texas justice fell as court appeals failed, then collapsed as ‑ after the 2004 execution ‑ seemingly well-crafted attempts to posthumously clear her son’s name were thwarted by the state.

Now, the Ardmore, Okla., woman’s hopes again are rising as lawyers for the New York-based Innocence Project target the prosecutor in Todd Willingham’s case in a complaint to the State Bar of Texas. The complaint alleges former Navarro County assistant District Attorney John Jackson arranged for a jailhouse informant to testify against Willingham in return of special consideration in his own case. Then he tried to keep the deal secret from the judge, jurors and the defense attorney, according to the complaint.

If the allegations are found true, Jackson, now in private practice, possibly could be disbarred.

[…]

Innocence Project Co-founder Barry Scheck said Willingham’s execution “would never have gone forward … if John Jackson had played by the rules.”

The complaint is the latest effort by Scheck’s organization to prove Willingham’s innocence.

All of the elements in the WaPo story are contained in the complaint, so do read them both. If Ken Anderson and hopefully Charles Sebesta can be held accountable for their unjust actions, I see no reason why John Jackson can’t be, too. Maybe, just maybe, they’ll serve as examples for others to learn from. Grits and PDiddie have more.

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.

Arson review moving forward

Good.

A long-awaited review of old Texas arson cases — an unprecedented search for wrongful convictions based on bad fire investigation science — is picking up speed and will probably produce the first results in January, participants said [last] Friday.

One suspect case has been identified and about 26 others are being scrutinized for evidence that investigators relied on now-discredited “myths,” instead of science, to determine that the fires were intentionally set, said Nick Vilbas with the Innocence Project of Texas, which is leading the review.

“We hope to be done pretty soon,” Vilbas told the Texas Forensic Science Commission during Friday’s meeting in Austin.

A panel of fire experts, assembled by new Texas Fire Marshal Chris Connealy, is scheduled to hear details of the first batch of suspect cases in January. Their findings would help determine how each case should proceed in the criminal justice system, Connealy said.

The Star-Telegram provides more details.

“We’re looking at four or five cases,” said Jeff Blackburn, chief counsel for the Innocence Project of Texas. “Those are going to be looked at hard.”

Blackburn is scheduled to appear before the Texas Forensic Science Commission in Austin to report on a records examination of hundreds of arson convictions. The effort is aimed at finding examples of junk science similar to that used to convict Cameron Todd Willingham of killing his three daughters, which resulted in a controversial review by the commission. Willingham was executed in 2004.

Blackburn says one or more of the new cases may involve inmates from North Texas.

At the request of the state’s top forensic panel, the Texas Innocence Project reviewed 1,025 arson-related crimes in Texas from recent years, and concluded that most don’t involve questionable evidence. A small number, maybe a half dozen, may have used scientific processes now deemed to be faulty, Blackburn said.

Blackburn’s work, commission members have said, is expected to send a clear message to fire investigators on the proper protocols for handling arson-related cases.

This has been a very long time in coming – it was two years ago that the Forensic Science Commission agreed to this review, and I think we know how much went on before we got to that point. It’s not a lot of cases to review, but they all sure matter to the possibly innocent convict who’s been in jail for it for however many years. I’ll be interested to see how the prosecutors of these cases react, given how resistant the Willingham prosecutor (among others) have been to this kind of review. Grits has more.

Beating Bradley

The Statesman writes about the aftermath of the GOP primary for District Attorney in Williamseon County where voters resoundingly threw out John Bradley.

Jana Duty

Michael Morton wasn’t on the ballot, didn’t campaign and didn’t back a candidate, but the recently exonerated former inmate cast a long shadow on the Williamson County district attorney race, becoming the key issue in the defeat of a once-popular John Bradley.

Jana Duty, a 10-point victor in Tuesday’s Republican primary, made Morton a centerpiece of her campaign, focusing on Bradley’s decision to fight Morton’s 2005 request for DNA testing. It would take six years for a court to order tests that cleared Morton of the 1986 murder of his wife, Christine, and led authorities to another suspect, Mark Alan Norwood.

Voters responded by turning out Bradley, Williamson County’s lead prosecutor for the past 10½ years and one of the state’s most prominent district attorneys.

Political observers said Duty was aided by lingering resentment over Morton’s treatment, a superior campaign organization and votes from crossover Democrats drawn to the GOP primary by an opportunity to torpedo Bradley.

And unlike prior years when Bradley made news by securing long prison sentences — accounts that played well with Williamson County’s conservative-leaning voters — this election cycle was punctuated by headlines involving controversy in and out of the courtroom.

Beyond the Morton affair, Bradley also was criticized for his leadership of the Texas Forensic Science Commission, which was investigating the science used to convict and execute Cameron Todd Willingham for the arson murder of his three young daughters.

[…]

One of Bradley’s leading backers, Dan Gattis Jr., said the Morton connection meant “everything” to the district attorney race.

“Jana Duty’s whole campaign was tying him to the Morton case,” Gattis said, adding that the Morton case “humbled and matured” Bradley and would have made him a better DA. Instead, his handling of the Morton matter left him vulnerable to challenge.

I’m pretty sure Michael Morton’s attorney John Raley would disagree with the assertion that Bradley was in any way changed for the better as a result of this experience. As people like Sen. Rodney Ellis and Scott Henson said back when Bradley was proclaiming that he had learned his lesson, actions speak louder than words, and Bradley’s actions were loud and clear. The voters made the right choice, and Bradley got what he deserved. Not that he has any need to fear for his future, of course. I’m sure his patron Rick Perry will find something for him to do, and if not there’s always the professional airing-of-grievances circuit. Don’t you worry about ol’ John, he’ll be just fine.

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.

Moving on from the Willingham case

It’s time to move to the next phase and make something good happen.

A state investigation into the science used to convict and execute Cameron Todd Willingham came to a quiet close Friday, but its results might echo across the justice system and the nation’s death penalty debate for years to come.

Making final changes to its report on the Willingham case, the Texas Forensic Science Commission signed off on a document acknowledging that unreliable fire science played a role in the Corsicana man’s conviction for the murder-by-arson deaths of his three young daughters in 1991. He was executed in 2004.

[…]

“The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence,” said Stephen Saloom , policy director for the Innocence Project. “By any fair estimate, that indicates he was innocent, that he did not set that fire.”

That’s likely to be the only acknowledgement of such, at least for the foreseeable future. It’s not enough, but Willingham’s family has accepted it.

“It doesn’t bring my son back, but I know they couldn’t do that,” said Willingham’s stepmother, Eugenia Willingham. “Maybe Todd’s name will go down in history as being a part all of this.”

[…]

Since his 2004 execution, Willingham’s family has continued a fight to prove his innocence. Willingham’s cousin, Patricia Ann Willingham-Cox, thanked the commission for its work.

“Have we gotten justice for Todd in the state of Texas? No, not yet, but we will,” Cox said. “Has Todd’s death effected needed change? Yes.”

That change could be very large indeed:

The agency’s final report includes a commitment from the state fire marshal’s office — whose investigator was the chief prosecution witness at Willingham’s trial — to review old arson rulings to determine whether convictions were based on now-debunked assumptions.

The Innocence Project of Texas will provide most of the heavy lifting — about 40 forensic science and law students — to help the fire marshal identify and review old arson cases, said Jeff Blackburn, chief lawyer for the Texas nonprofit legal organization.

“I think this is a great opportunity,” Blackburn said during Friday’s commission meeting in Austin. “As far as I know, this is the only example of this kind of cooperation going on anywhere in the country.”

Saloom commended the commission for acknowledging that the scientific understanding of fire behavior has vastly improved over the past 20 years — and for listing now-debunked arson indicators in its final report. That action might ensure that unreliable science no longer taints arson investigations in Texas and could serve as a model for other states grappling with the issue, Saloom said.

Hard to know exactly how many cases there will be to review, though the Texas Observer has a few suggestions for where to start. Really, the question is not about finding bogus convictions, but whether the prosecutors involved will accept the findings or cling to their discredited evidence and fight them on the grounds that having a “final result” and “respecting the jury’s verdict” is more important than an innocent person rotting in jail. There’s no shortage of the latter, after all.

Forensic Science Commission accepts its neutering

Another victory for the forces of obstructionism.

Whether they like it or not, members of the Texas Forensic Science Commission [Thursday] agreed that they will use an attorney general’s opinion that severely limits the panel’s jurisdiction as a guideline for future investigations. What that means for the Cameron Todd Willingham investigation — the commission’s most important and controversial case — will be up for discussion Friday.

“While it is not binding on us, [the opinion] does carry some weight,” said commissioner Lance Evans, a criminal defense lawyer from Fort Worth.

Texas Attorney General Greg Abbott wrote in July that the commission could not investigate evidence gathered or tested before it was established Sept. 1, 2005. He also concluded that the commission’s authority is limited to labs accredited by the Department of Public Safety. The commission met Thursday for the first time since that ruling and since the appointment of Dr. Nizam Peerwani, the Tarrant County medical examiner, as its chairman.

[…]

Commissioner Evans said he was hopeful that lawmakers would pass a bill during the next legislative session that clarifies and expands the commission’s role. A bill that would have done that this year failed during the final days of the legislative session.

Until that happens, the commissioners said they would use Abbott’s opinion to make case-by-case decisions about which cases to investigate. As they discussed new complaints and whether to investigate them, the commissioners said they would begin sending more specific and detailed letters explaining why certain cases are not investigated.

One such complaint they discussed Thursday was brought by Sonia Cacy. She was convicted in 1993 of dousing her uncle, Bill Richardson, in gasoline and igniting an inferno that killed him. She was sentenced to 99 years in prison, but she was released on parole after just six years. Arson expert Gerald Hurst — the same scientist who analyzed evidence in the Willingham case — reviewed the evidence that landed Cacy in prison. He concluded that there was no gasoline on Richardson’s clothing.

The commission decided to dismiss Cacy’s complaint against the investigators, despite serious reservations about the science used to convict her (Cacy remains on parole). The evidence was gathered and tested long before September 2005, and the lab used to analyze it was not accredited.

“If we are to abide by the opinion, we are left no other alternative other than to dismiss the [complaint],” [commissioner Sarah] Kerrigan said. “I hate to think the credibility of the commission is at stake.”

Unfortunately, it is, and the Attorney General has decided that it’s better for the Commission to be a do-nothing. See here for the background. I can only hope that Sens. Ellis and Hinojosa are able to push through a bill that overrides the AG’s bogus ruling in the next session. More from the Trib on the Commission’s meeting is here, and Dave Mann offers some perspective.

AG rules Willingham case off limits for Forensic Science Commission

The last shovelful of dirt is thrown.

The Texas Forensic Science Commission’s investigation of the science used to convict Cameron Todd Willingham — executed in 2004 for an arson that killed his three children — may be at an end after the state’s top attorney Friday ruled that the panel cannot consider evidence in cases older than 2005.

Attorney General Greg Abbott’s ruling is the latest development in the years-long controversy over the commission’s handling of the high-profile case. Advocates on both sides of the issue claimed the ruling as a victory, though it does narrow the scope of what the commission is allowed to investigate.

The commission’s former chairman, Williamson County District Attorney John Bradley, said the decision vindicated his argument that the commission did not have jurisdiction to investigate evidence in cases that occurred before lawmakers created the panel in 2005.

“We should be spending much more time focusing upon these modern forensic science issues,” said Bradley, who requested the ruling in January. Lawmakers did not confirm Bradley’s appointment this year, and so his term ended with the legislative session. “This AG opinion will correct the course of the Forensic Science Commission.”

Bradley had asked Abbott to rule on three issues: the broadness of the term “forensic analysis”; whether the Willingham case was in the commission’s jurisdiction; and if the commission could only investigate work done at labs accredited by the Department of Public Safety.

In his ruling, Abbott wrote that while the commission may investigate incidents that occurred before its creation in 2005, the law prevents it from considering evidence that was gathered or tested before that date. The commission’s authority also is limited only to DPS-accredited labs, Abbott wrote. And, the commission may not investigate fields of forensic science that are specifically excluded in the state’s code of criminal procedures.

Bradley said the ruling should close the commission’s investigation of the Willingham case, because it involved a fire that happened in 1991. “I think much of this involved distractions created by outside entities that had a different agenda, trying to read into this something that wasn’t there,” he said.

Yes, John Bradley successfully completed his mission to ensure that no official review of the Willingham case ever takes place. You’d think that given the extreme confidence that he and his patron Rick Perry have publicly professed about Willingham’s guilt that they would welcome any review, as it would only serve to prove them correct. I guess bravado has its limits. It really is amazing how much effort was expended to keep eyes and hands off of this case. You don’t have to know anything more about the case to wonder just what it is they’re so afraid of.

Those that have pushed for the Forensic Science Commission to keep doing the work it was created to do will keep pushing for it.

Stephen Saloom, policy director for the Innocence Project, said that although Abbott’s ruling limits the action the commission may take, it should not end the work on the Willingham case and others. He said the Fire Marshal’s office continued to use questionable arson investigative techniques after 2005, and the ruling makes clear that the commission has jurisdiction over those cases. And, Saloom said, the ruling doesn’t absolve others in the criminal justice system from their duty to investigate old cases in which questionable science was used.

“The AG opinion is absolutely without effect on the rest of the criminal justice system’s legal, moral and ethical responsibility make sure justice be done in all past arson cases,” he said.

State Sen. Rodney Ellis, D-Houston, is chairman of the Innocence Project and helped write the 2005 law that created the Forensic Science Commission. He said the ruling should not stop the Willingham investigation or prevent the commission from issuing a ruling that the Fire Marshall was negligent when it did not inform prosecutors and courts that it had used flawed science.

“They had that ‘duty to correct’ prior to 2005, when the Forensic Science Commission legislation took effect, and after 2005, and they have never done so,” he said. “They should inform the criminal justice system of their mistakes quickly, and I would encourage the Forensic Science Commission to make such a recommendation to ensure justice is served in Texas.”

It remains the case that ensuring that law enforcement agencies today are using valid forensic methods is the top priority. But there’s still a lot of people sitting in jail today that were convicted on bogus arson evidence. We owe them something that this opinion makes them much less likely to receive. Sen. Ellis’ full statement is beneath the fold.

(more…)

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.

Perry appoints Forensic, SBOE Chairs

The new SBOE Chair is not who I expected.

State Board of Education member Barbara Cargill, R-The Woodlands, will take the helm as the board’s new chairwoman, Gov. Rick Perry announced Friday.

She will follow Gail Lowe, who was appointed chairwoman two years ago but did not win Senate confirmation during the just-concluded legislative session. Lowe, who returns to her seat as an elected member of the board, also got the position when her predecessor, Don McLeroy, failed to get Senate confirmation in 2009.

I figured Perry would pick David Bradley. I’m sure he has his reasons for going a different route. Cargill is part of the same social conservative bloc, but off the top of my head I can’t think of anything horrible she’s done. Fortunately, we have the Texas Freedom Network to keep track of these things, and their Cargill files can be found here. We’ll see if she can break the streak of non-confirmed SBOE Chairs; she has nearly two full years to convince the Senate that she’s not just another nutjob.

Meanwhile, Perry also named a new Chair of the Forensic Science Commission.

Gov. Rick Perry today announced he has appointed Dr. Nizam Peerwani, a well-known Fort Worth medical examiner, to lead the Texas Forensic Science Commission.

Peerwani, who has served on the commission since 2009, will replace Williamson County District Attorney John Bradley as leader of the panel that has been embroiled in controversy practically since its inception. Bradley, a law-and-order prosecutor, failed to win Senate confirmation during the legislative session that ended last month.

[…]

Peerwani, who was appointed to the commission at the same time as Bradley, is chief medical examiner for Tarrant, Denton, Johnson and Parker counties. His term will expire “at the pleasure of the governor.”

Well, at least he’s a scientist. The Commission could use more of a scientific influence these days. I presume Dr. Peerwani will need to be confirmed as Chair as well in 2013. At this time, I have no particular reason to believe that he will have any difficulty with that. At least, I sure hope that’s the case. Grits has more.

Bradley and Lowe fail to get confirmed

Time for some new chairpersons.

Gov. Rick Perry’s appointments of John Bradley as head of the Forensic Science Commission and Gaile Lowe as State Board of Education chair are officially toast, Senate Nominations Chairman Bob Deuell, R-Greenville said.

“They’re sine die with the rest of us — except they won’t have to come back for a special session,” Deuell said Wednesday after submitting his last round of Perry appointees for Senate consideration.

Since they weren’t confirmed, the appointments of the two chairs will end when the regular session draws to a close Monday.

In the case of John Bradley, that’s almost certainly a good thing. Perry can replace him with another hack, of course, but it’s hard to imagine anyone doing more damage to the Forensic Science Commission than Bradley did. As for Lowe, well, there is still another level of absurdity that can be achieved. And two years from now, we’ll go through this again. Grits has more.

Forensic Science Commission bill approved, but not improved, by the Senate

I don’t know what happened with the bill to more clearly define the mission of the Forensic Science Commission, but it seems to have gone off track.

Senate Bill 1658 would let the Texas Forensic Science Commission launch an investigation without having to wait for a complaint to be filed.

“It is a positive improvement,” said defense attorney Sam Bassett, the commission’s former chairman.

But some call the bill an effort to keep information from the public and ensure that the commission is under the governor’s control.

“This has the governor’s fingerprints all over it,” said Stephen Saloom, policy director for the Innocence Project.

Bassett and other critics said they worry about provisions that would allow Gov. Rick Perry to appoint all commission members. Currently, the commission’s nine members are appointed by the governor, lieutenant governor and attorney general. The bill would reduce the commission to seven members, all appointed by the governor.

Sen. Rodney Ellis, D-Houston, said that though he supports what the bill is trying to accomplish, he has “major concerns.” Allowing the governor to appoint all members is “a fatal flaw,” he said.

“This bill is still a starting point, and if it is not cleaned up, Texas will be worse off with it.”

Others are concerned about a provision that would close the public’s access to the commission’s investigations. The bill would exclude all the information from being subject to the Texas Public Information Act. It would also limit the public’s access to cases in which criminal charges are no longer pending or an appeal is in process.

“A central purpose in creating the commission was to create public faith in the investigations,” Saloom said. “If you deny public access to all this information .. there’s little sense in even having the commission.”

See here for some background. I don’t understand the rationale for these amendments. Grits has a statement from Stephen Saloom of the Innocence Project that goes into detail. I don’t expect anything better to come out of the House, so if this is what we’re going to get, it may be better to just do nothing and try again in two years.

Two forensic bills

Texas has thousands of untested rape kits in it, and a bill to try to make something happen with them.

The bill, by Sen. Wendy Davis, D-Fort Worth, would require a police department to submit a rape kit to a crime lab within at least 10 days, and complete the DNA analysis no later than 90 days after the sexual assault was reported. After testing, the Texas Department of Public Safety would compare the DNA profile to those already in databases maintained by the state and the FBI. To address the “backlog of evidence,” the bill requires — only to the extent that funding is available — that all untested rape kits from active cases since 1996 be tested by 2014.

According to a fiscal analysis of the bill, Houston, Dallas, and San Antonio alone have more than 22,000 untested rape kits.

[…]

DPS estimates it would cost Texas more than $11 million to outsource testing to crime labs with enough personnel to process all of the rape kits.

“It would be a tremendous unfunded mandate on our department,” Jim Jones, a sergeant with the San Antonio Police Department, told the committee. Departments don’t typically test rape kits when the suspect is known to the victim, because DNA testing only shows that a sex act occurred. It can’t determine whether the act was consensual, Jones said. If a suspect is convicted, their DNA profile will be compared to state and FBI DNA databases anyway, Jones said, leaving little reason for the department to incur the cost of testing the rape kit.

And 10 days isn’t necessarily enough time to determine whether a sexual assault actually occurred, Jones said. Submitting rape kits prematurely for testing — at about $1,000 each — would burden the state and local departments with undue costs.

Davis said she is willing to change the bill to give police more time for investigation, but the cost shouldn’t be an issue for local police departments. The bill doesn’t mandate testing, she said. It only requires testing if there are adequate financial resources and personnel. But she hopes the legislation will encourage city councils to appropriate funding to address the backlog.

The bill in question is SB1636. I don’t know how much effect this will have in the absence of an assured funding source. Frankly, the cost for this isn’t very much to potentially clear a bunch of violent crimes, but that isn’t in the cards. For reasons unclear to me, this isn’t enough of a priority to merit an appropriation.

The Senate is also pondering broadening the scope of the Forensic Science Commission.

Senate Bill 1658 by Sen. Juan “Chuy” Hinojosa would greatly expand the commission’s authority to investigate botched forensic evidence. The bill makes clear that the commission could investigate allegations of wrongdoing in any field of forensic science. (Some critics of the commission have argued that current law allows the commission to oversee only accredited crime labs. The commission is waiting for the Texas Attorney General to issue an opinion on these jurisdiction issues. The bill would clarify that dispute.)

The bill would also allow the commissioners to launch an inquiry on their own. As it stands now, the commission can investigate a case only if someone has filed a complaint. The provision, which would greatly expand the commission’s authority, drew criticism from Sen. Joan Huffman, a Houston Republican, at [Tuesday’s] hearing. She said she might oppose the bill if that provision remained. Hinojosa said he’d try to convince her over the next few days why the commission needed such power. “Good luck,” quipped Sen. John Whitmire.

Huffman wasn’t the only senator who had concerns. Houston Democrat Rodney Ellis questioned Hinojosa extensively. Ellis was suspicious of a provision that folds the commission into the Department of Public Safety. The governor’s office has tried in past sessions to house the commission within DPS—an idea Ellis and other supporters of the commission have successfully resisted. They want to maintain the commission’s independence, especially to investigate DPS crime labs.

Hinojosa assured Ellis that DPS would provide only administrative support for the commission and wouldn’t have any influence over which cases the commissioners look into—to “avoid a conflict of interest.”

This is more or less how I envisioned the Forensic Science Commission working when it was first created, and the expressed concerns aside I daresay it’s closer to what the Senate envisioned for it at the time. There’s plenty of stuff for them to look into and hopefully correct if they’re given the chance. As long as they can get a Chair that is interested in the truth and not in covering Rick Perry’s backside, I’d like to see them get it. Grits has more.

The end of the Willingham case for the Forensic Science Commission

Dave Mann reads the Willingham report from the Forensic Science Commission so you don’t have to.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

[…]

So what do we make of this schizophrenic document?

Willingham’s relatives—his stepmother Eugenia Willingham and his cousin Patricia Cox—pronounced themselves satisfied with the commission’s work. “What this commission has done will have a significant impact on the justice system,” Cox said.

Stephen Saloom with the Innocence Project was clearly frustrated that the commission couldn’t address the negligence issue. But, he added, given that limitation, the commission did commendable work during the past two days. “It’s a good report,” Saloom said. “It makes clear that the old forms of arson evidence are not reliable and need to be corrected…and that the old cases that may have been tainted by this evidence have an opportunity for review. This gives a chance for justice for all those past cases where people may have been wrongly convicted of arson.”

Indeed, among the report’s 17 recommendations is much-needed reform. The commission recommends improving training and certifications for fire investigators and ensuring that training curriculum include fire science and fire dynamics. It recommends the Fire Marshal’s office conduct internal audits and create a peer review team to monitor the quality of its fire investigations. The report also recommends requiring lawyers and judges take continuing education classes focused specifically on forensic science.

Perhaps most importantly, it urges the Fire Marshal’s office to reexamine older cases. As I’ve written before, many of the 750 people current in Texas prisons on arson convictions may be innocent. The state desperately needs an official inquiry into older arson cases.

Unfortunately, the FSC doesn’t have the power to do more than urge the Fire Marshall to act, and there’s still an inquiry into the AG’s office to determine just what authority the Commission has. That will be John Bradley’s parting shot. This probably was the best report we could have gotten given Bradley’s endless meddling. Maybe with the Willingham matter more or less settled and no election looming, Rick Perry will appoint someone less egregious as Bradley’s replacement. Yeah, yeah, I know.

Draft Willingham report is out

Postcards:

A draft report issued today by the Texas Forensic Science Commission on the evidence used to convict and execute Cameron Todd Willingham focuses on training and education initiatives for fire investigators and makes several suggestions for continued improvement for investigations.

The report, as expected, takes pains to say that it does not comment on Willingham’s guilt or innocence. It does not reach conclusions about the performance of arson investigators. It acknowledges that fire science has improved since the 1991 fire that killed Willingham’s three young daughters and lays out some of the modern scientific understanding of fire behavior on questionable findings in the Willingham investigation.

The commission will discuss the draft report at its two-day meeting in Austin, which begins today at 1 p.m. and continues tomorrow morning.

Commission members have insisted that their investigation would focus on the science and say nothing about the guilt or innocence of Willingham.

The report is linked above; I have not had a chance to wade through it yet. I am disappointed that it did not draw any conclusions about the performance of the arson investigators from that fire, though I suppose one couldn’t do that without also addressing the innocence question. If the end result of all this is that the state Fire Marshall continues to defend that investigation with impunity, then this all really was a waste of time, and John Bradley can walk away with a clean victory for his lord and master Rick Perry. We can never improve if we’re not willing to admit when we make a mistake. We’ll see how it goes when the Commission takes this up. The Trib has more.

Bradley’s mission nears its completion

John Bradley won’t get confirmed by the Senate as the Chair of the Forensic Science Commission, but that’s all right. The purpose for which he was put on the Commission by Rick Perry is about to be fulfilled.

Perry, who refused to block Cameron Todd Willingham’s lethal injection in 2004, appointed Williamson County prosecutor John Bradley to take over the forensics commission and the Willingham case in 2009, just days before the panel was to hear a fire expert’s critical report of the original investigation.

[…]

Once in charge, Bradley took steps to slow down the panel’s work and has pushed members to find there was no misconduct by fire investigators in the original 1991 investigation.

The forensics panel is scheduled to meet April 14-15 to consider its final report on the case. GOP Sen. Bob Deuell, chairman of the nominations committee, told The Associated Press that he has been holding Bradley’s doomed nomination without a Senate vote in part to allow him to preside over that meeting.

Bradley doesn’t have enough Senate support for confirmation, and he’d be immediately forced out of his job on the forensics panel if he was called up for a vote and lost, Deuell said. If there is no vote, Bradley serves until the legislative session ends in May.

“Right now he knows he’ll get busted,” Deuell said. “The thinking is even from most of his critics, if not all, is that he needs to chair that meeting. We don’t want a new person to have to start over like he did.”

This critic thinks Bradley deserves the public dope slap that a failed confirmation vote would represent. So does Sen. Rodney Ellis, who was quoted as such later in the story. That said, I do understand Sen. Deuell’s position, and let’s be honest, if the Willingham case remained unresolved Rick Perry would just name another hatchet man to finish the job. Hell, for all we know he’d name David Bradley to fill that slot as well. Nobody has any illusions about Bradley’s role on the Commission, and nobody with any integrity will accept a whitewash from him, regardless of what the record will say. Let’s get this over with and move on. Thanks to Grits for the link.

The Willingham arson investigator

The Statesman has a good story about former Deputy State Fire Marshal Manuel Vasquez, whose testimony helped convict Cameron Todd Willingham, and the status of the Willingham case with the Forensic Science Commission.

Spurred by John Bradley, the Williamson County prosecutor who was appointed chairman by Gov. Rick Perry midway through the case, the commission has asked Attorney General Greg Abbott to determine whether it has jurisdiction to investigate the Willingham case. Legal briefs were due last week, and Abbott’s opinion is due by July 30.

If Abbott gives the green light, the commission’s next step will be to draft a final report on its Willingham findings. Commission members declined to discuss the report or its contents, but judging by their earlier statements, there are two essential questions:

• Was the arson finding based on valid science?

• Were fire officials negligent in their investigation and trial testimony?

In the spotlight is Vasquez, who had 30 years of firefighting experience, including 17 years as an investigator, when he told jurors that he had discovered numerous signs of arson at Willingham’s house.

But thanks to improved scientific understanding of fire behavior, it is now known that Vasquez was wrong about several key points.

Those two questions have always been what the Forensic Science Commission is all about. We can’t fix problems that we don’t acknowledge that we have. By now it’s clear that the answer to question 1 is no, not at all. The answer to 2 is less clear, but I for one would feel better about absolving the State Fire Marshall of any blame for their ruling at the time if they would quit defending the original ruling of arson and admit that they know more now than they did then. How can we have any faith they’re not still doing it wrong if they won’t own up to it?

Anyway. If the Bradley nomination truly is dead, then he will be off the Commission by the time AG Abbott makes his ruling. If so, and if Abbott doesn’t continue the hatchet job for Bradley, we may finally be able to put this matter to rest. It never should have taken this long, but better late than never.

Two Republican Senators oppose Bradley’s nomination to the Forensic Science Commission

Excellent.

The confirmation of Williamson County District Attorney John Bradley as chairman of the state Forensic Science Commission appears to be in deep trouble, as two Senate Republicans confirmed today that they will vote no.

That would leave Bradley four votes short of the required 21 needed to bring his name up for a Senate vote.

[…]

“At this point, his nomination not going anywhere,” said Nominations Committee Chairman Bob Deuell, R-Greenville. “Unless something changes, it’s over.”

[…]

Sen. Kevin Eltife, R-Tyler, said he is against Bradley’s nomination because of his controversial tenure as chairman of the commission. The exchange with [Sen. Rodney] Ellis is “only the latest example,” he said.

“This is no longer about him, it’s about the need for a change,” Eltife said. “Once a situation becomes this volatile, sometimes you need to make a change. That’s what I think the commission needs.”

Sen. John Carona, R-Dallas, said he also opposes Bradley’s nomination, and has no intention of changing his mind.

“I watched his disrespect for members of the Legislature on this and many other occasions, and based on that issue alone I will vote no,” he said. “His sheer dismissive attitude toward questions, toward the Legislature, that he has demonstrated time and time again, cannot be overlooked.”

Bradley’s Republican supporters said they hoped to persuade Sen. Eddie Lucio, D-Brownsville, to vote for the nomination. But Lucio said he is not switching.

“I don’t like the way he treated me on my life-without-parole bill last session, the way he talked down to me and treated me during that discussion,” Lucio said. “He was the biggest opponent of that bill . . . There was no common courtesy.”

I’m not sure which is my favorite part, the fact that he’s going down or the fact that he has no one to blame for it but himself and his arrogant, obnoxious attitude. The only bad news in this is that as the story notes Bradley would still be chairing the Commission on April 15, when it next meets to possibly take action on the Willingham case. As such, Bradley would have one last chance to fulfill the mission he was given by Gov. Perry, to permanently undermine any effort to examine and fix what went wrong in that case and set standards for arson investigations in the state. If he had any honor, he’s recognize the position he’s in and step down now, so that someone who could be confirmed can be nominated. But then if he had any honor he wouldn’t be in the position he’s in.

Bradley’s nomination to Forensic Science Commission may be dead

Peggy Fikac brings the good news.

It’s not looking good for John Bradley, the tough-talking prosecutor named by Republican Gov. Rick Perry to head the Forensic Science Commission – and not just because of Democratic opposition to his appointment.

“The Democrats are not going to vote for him, and there are two Republicans that are not,” said Senate Nominations Committee Chairman Bob Deuell, R-Greenville. It takes a two-thirds vote of the Senate to confirm the governor’s appointees. There are 19 Senate Republicans and 11 (sic) Democrats.

“He probably thought he could talk a couple of Democrats into voting for him. I don’t think he can talk four” into it, Deuell said.

[…]

If there aren’t enough votes to confirm Bradley, Senate leaders expect to let his nomination linger without a vote. His appointment then would be valid through the end of the session.

Couldn’t happen to a nicer, more deserving guy. I don’t have any illusions that Perry will pick anyone better to replace him, but as he doesn’t currently have an election to win it’s at least theoretically possible that he’ll name someone a little less hackish. We can hope, anyway. Grits has more.

Bradley’s confirmation delayed

Good.

In a bid to diffuse a partisan showdown, the name of Williamson County District Attorney John Bradley was temporarily stricken this morning from a list of nominees to be submitted to the full Senate for confirmation.

[…]

Nominations Committee Chairman Robert Deuell, R-Greenville, said [earlier] that he plans to submit the list of Monday’s nominees to the Senate for approval — possibly as early as tomorrow — but without Bradley’s name.

“I’m pulling him off the list for now, yes,” Deuell said. “I want to let things settle down, and then see where we are. If we put him out there now, they (Democrats) would sever him (from the rest of the nominees) and block him.

“There’s no reason to let that happen right now.”

Though pulled off of the current list sent to the Senate, Deuell said Bradley’s name could be submitted for confirmation at any time. Three other nominees to the Forensic Science Commission that were approved by the committee on Monday will be forwarded on for Senate confirmation now, Deuell said.

More here. Lt. Gov. Dewhurst is lobbying for Bradley, but there’s not enough lipstick in the world for this pig. Block away, Democrats. Burka has more.

Bradley gets committee approval

Can’t say I’m surprised.

The Senate Nominations Committee voted 4-2 today to recommend approving state forensic board chairman John Bradley’s appointment. Sens. Jose Rodriguez, D-El Paso, and Kirk Watson, D-Austin, voted against Bradley’s nomination.

Four Republicans voted in favor; other, less-controversial nominees were approved unanimously. State Sen. Rodney Ellis landed a few blows on Bradley, which I’m sure made for entertaining viewing. The full Senate still needs to confirm Bradley, and as with Don McLeroy and the SBOE last session, I would not at all be unhappy with his nomination being blocked by the Democrats. Frankly, I think Grits’ suggestion that the Forensic Science Commission pick its own Chair has a lot of merit. Perhaps there’s room for a deal in there. Dave Mann has more.

UPDATE: Here’s a statement from Sen. Ellis:

Senator Rodney Ellis (D-Houston) today urged the Texas Senate to reject the nomination of Williamson County District Attorney John Bradley for the remainder of his term as Chair of the Texas Forensic Science Commission. The Senate Nominations committee voted 4-2 to send Mr. Bradley’s nomination for consideration by the full Senate.

“The Legislature created the Forensic Science Commission to ensure we have forensic evidence we can trust in our courtrooms –in order to increase public safety and the public faith in justice system,” said Senator Ellis. “Unfortunately, since Mr. Bradley has taken the reins, rather than move the commission forward to look into allegations, find the truth, and repair problems in our broken justice system; the Commission has invested most of its time and energy finding ways to avoid looking into problems and looking for loopholes to block the commission from doing what it was created to do.”

In 2005, the Legislature created the Texas Forensic Science Commission to restore public faith in forensic evidence following the discovery that a series of serious errors called into question evidence in hundreds of cases across the state. The commission is yet to complete a single investigation. In 2009, just as the Commission was poised to begin completing its first investigation — a review of the evidence used to convict and sentence to death Todd Willingham — Mr. Bradley was appointed Chair of the Commission.

The Commission is still yet to complete any investigation.

After boasting that he knew nothing about the Commission, Mr. Bradley’s first move was to unilaterally cancel that meeting, stunning the public and policymakers, as well as his fellow Commission members. According to press reports, Mr. Bradley then ordered all Commissioners to delete their Commission-related emails, and declared that he wouldn’t let the Commission meet until he had time to learn more about it. Mr. Bradley displayed a shocking lack of objectivity in his work by declaring to the press that “Willingham is a guilty monster,” a clearly inappropriate statement from the Chair of a state Commission tasked to provide independent, expert investigations of allegations of forensic negligence or misconduct.

“We wanted independent experts to form a lean, efficient, and non-paid publicly review allegations of problems, investigate them, and report to the public about what it had found so that the public and thus all jurors could regain faith in forensic evidence – and thus convict the guilty and not convict the innocent,” Ellis said. “Sadly, Mr. Bradley has used his position to seize power over and thwart the will of the expert Commission, hide the Commission’s work from public view, greatly increase the Commission’s bureaucratic bloat, slow its previously impressive progress to a crawl, and otherwise prevent the Commission from accomplishing the legislature’s intent.”

Time for the Senate to go after John Bradley

Grits:

Governor Rick Perry’s appointees to the Texas Forensic Science Commission are up in the Senate Nominations Committee [today]. Senators should use the forum to force Commission Chairman John Bradley to answer all the questions he’s dodged in the past – especially about the ways in which he’s delayed or shut down all the Commission’s activities after his appointment in 2009. The other commissioners who are up IMO have done a good job; even if I haven’t always agreed with them on every jot and tittle, I’ve never once thought they were acting in bad faith. That hasn’t always been true of the chair.

Bradley is a shameless, lying hack, who was appointed by Governor Perry for the sole purpose of obstructing and emasculating the Forensic Science Commission, primarily but not exclusively relating to the Cameron Willingham case. Bradley has fulfilled Perry’s every expectation, while making a mockery of what should be an objective, scientific committee. He deserves to get nailed to the wall by the Senate, especially by Sen. Whitmire. Please don’t miss this opportunity, Senators.

Can we please get back to the basics?

The ongoing saga of the Texas Forensic Science Commission:

Adding an unexpected twist to its investigation of the science used to convict and execute Cameron Todd Willingham for arson murder, the Texas Forensic Science Commission voted Friday to seek an attorney general opinion on the limits of its jurisdiction.

The commission is examining allegations, made by fire scientists and the Innocence Project of New York, that investigators relied on bad science and poor techniques to conclude that Willingham intentionally set fire to his Corsicana home in 1991, killing his three young daughters.

The City of Corsicana and the state fire marshal’s office, however, have long complained that the commission lacks the authority to examine their investigators’ actions and conclusions.

On Friday, as they contemplated drafting a final report in the Willingham matter, the nine commission members voted unanimously to ask Attorney General Greg Abbott’s office to determine whether Corsicana and the fire marshal are correct.

“It’s been the elephant in the room the entire time,” Commissioner Lance Evans said after the meeting in downtown Austin. Evans made the motion to seek Abbott’s opinion.

In the meantime, commissioners vowed to continue working toward a final report.

“I certainly think we could make findings … on the state of fire investigation back at that time, the evolution of fire investigation up to the present day and where mistakes might have been made,” said Evans, a Fort Worth defense lawyer.

To the best of my recollection, the FSC was created for two purposes. First and foremost, to evaluate the forensic techniques being used by Texas law enforcement agencies, to see if they were sufficiently modern and grounded in scientific principles for use in a courtroom. Second, if the answer to question 1 was “No” for something, to recommend standards that would then be adopted voluntarily or via legislative coercion if necessary. In the case of arson investigations, the clear and overwhelming answer to question 1 is “No”. If we had a commission chair, or a governor that’s responsible for appointing the commission chair, that cared about anything other than politics, we might be able to get to part two. But we don’t, so we’ll just keep wasting everybody’s time until either the Lege steps in (for good or for ill) or we all get too bored and frustrated with the process to give a damn about it. Grits has more.

Forensic Science Commission finally hears Willingham testimony

If you were hoping the state of Texas would be open to changing how arson investigations should be done, then the hearing was a disappointment. Still, some good things happened.

Speaking at a special meeting of the Texas Forensic Science Commission, which is examining the science used to convict Willingham, the invited experts had little positive to say about an investigation they characterized as incomplete and investigators they criticized for improperly jumping to unjustified conclusions.

“Everything documented post-fire was just as consistent with an accidental fire as an intentional fire,” said John DeHaan , author of “Kirk’s Fire Investigation,” a widely used textbook. “You have really no basis for concluding this was arson.”

But the commission also heard from an official in the state fire marshal’s office who stood by the arson conclusion, saying it was reached after a thorough, professional investigation and supported by the evidence.

Assistant State Fire Marshal Ed Salazar admitted that in the years since 1991, science has determined that some of the evidence used to convict Willingham does not necessarily point to arson. But, he said, tests that found a combustible liquid under the front door and the presence of certain burn patterns support such a finding.

“They followed the protocols; they followed the practices that were available and being used at the time,” Salazar said. “I believe the conclusions they reached can be scientifically sound.”

The DMN and Chron have more, as does Dave Mann:

Fire Marshal officials appeared before the Texas Forensic Science Commission at a hearing in downtown Austin to publicly answer questions for the first time about their handling of the Willingham case. Assistant Fire Marshal Ed Salazar told the commissioners today that his office stands behind the Willingham investigation and its conclusions.

In the past 15 years, scientific experiments have proved false many of the old assumptions that fire investigators relied on, including many in the Willingham case. But no matter. Salazar said if this case were being probed today, his office might reach similar findings. That’s a scary thought.

[…]

As Salazar presented his evidence and contended that the slides still supported a finding of arson, it became clear that the field of fire investigation hadn’t come quite as far as we thought. His presentation relied on outdated notions, what some fire scientists have taken to calling “old wives tales.”

For instance, Salazar showed photos of burn patterns on the floor of the Willingham house that were labeled “pour patterns.” Investigators alleged this is where Willingham poured an accelerant to start the blaze. Salazar contended that even under today’s standards, pour patterns can be potential evidence of arson.

In reality, scientists now know that after a fire goes to flashover stage, which this fire did, investigators can glean very little information from the burn patterns on the floor. That’s because during flashover, the fire will scorch the floor. So after flashover, burns on the floor tell you nothing about how the fire started.

Salazar also showed photos of burned holes in the floor. This is another “old wives tale.” Salazar claimed that deep burning on the floor could indicate the presence of an accelerant. (In fact, the opposite is true, as DeHaan later explained in his rebuttal testimony. Repeated scientific testing has shown that gasoline and other accelerants burn off quickly, making it “very difficult, if not impossible, for the fire to burn through the floor,” DeHaan said. Typically, only a fire that goes to flashover can burn long enough to consume the floor. So, the deep burning on the floor couldn’t have been caused by an accelerant, but was simply the byporduct of the fire going to flashover.)

Undeterred, Salazar plowed ahead. He said Vasquez had followed the scientific method and drawn proper conclusions. “[The finding of arson] is a judgment call ultimately coming down to opinions.” The fire scientists might assert that fire investigators relied on their opinions for too long rather than verifiable scientific fact.

But everyone would probably agree with what Salazar said next: “There is an underlying tension between the scientific community and the people doing the down and dirty work.”

Reading this, I can only hope I’m never called to serve on a jury in an arson case, because I’d have to tell the judge that I would be unable to vote for conviction because I have no faith in the state’s ability to determine whether or not arson was actually the cause. Before the Willingham case distracted everybody, the purpose of the Forensic Science Commission was to evaluate the methods being used in (among other things) arson cases. If nothing else, it is now crystal clear that the state of Texas does not believe in using science when investigating suspicious fires. If the Forensic Science Commission does not make strong recommendations for how to fix this, then everything it has done will have been a waste of time and effort. Given the number of people currently sitting in jail because of questionable arson convictions, that would be a bigger tragedy than the Willingham case. Grits, who also attended, provides a detailed writeup as well.

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.

Pity poor John Bradley

It’s a truly beautiful thing to see the guy who was brought in to the Texas Forensic Science Commission for the express purpose of protecting Governor Perry’s political interests wail and moan about the Commission becoming a “political football” now that it’s clear he cannot control the other commissioners. The strategy, hatched back when Perry was in a competitive primary, was to delay the potentially explosive stuff until after the elections were over, when no one would be paying attention any more. You have to wonder at this point if Perry had just let nature run its course if the worst of this would be all behind him by now. Instead, things are still coming to a head, and his designated fixer has lost the handle. Somewhere, Machiavelli is shaking his head and muttering about “amateurs” under his breath. The DMN editorial board has more.

The scientists have rebelled

Wow.

When seven [members of the Texas Forensic Science Commission] met at a hotel near Dallas’ Love Field, the ostensible goal was to finalize their report on the Willingham case. But from the start, the forensic scientists on the panel fought Bradley at every step. By the end, the tenor of the meeting had changed entirely. What was supposed to have been the end of the Willingham probe now seems just the beginning.

One reform advocate termed the days events “the revenge of the scientists.” Another advocate, Stephen Saloom of the Innocence Project, said the meeting “gives me great hope about where this investigation will lead.”

Indeed, commissioners today talked openly of digging into the systemic problem with arson cases. That’s a subject I’ve been writing about for two years, and it was a remarkable to hear commissioners move beyond Willingham to look at the wider problem. Several commissioners even suggested a wide-ranging re-examination of arson cases in Texas from the past 20 years.

That was a stunning development given how the day started.

The day started, of course, with Rick Perry’s hand-picked fixer attempting to ram through a report, written by himself of course, that took the state Fire Marshall off the hook for its shoddy work in 1991 and declared that there was nothing more to see here. The commissioners had none of it, and in the end carried the day. Read the whole thing, as Saloom says it’ll give you hope that something useful may yet come out of this melodrama.

UPDATE: Grits has more.

Fire marshal clings to Willingham arson report

Oh, give it up, already.

The State Fire Marshal’s Office stands behind its controversial conclusion that Cameron Todd Willingham started the house fire that killed his three children in 1991, contradicting arson experts and scientists who insist the agency relied on bad science in its investigation.

In a pointed letter to the Texas Forensic Science Commission, which is nearing the end of a contentious review of the Willingham arson investigation, Fire Marshal Paul Maldonado defended his agency’s handling of the case that led to Willingham’s execution in 2004.

In July, the commission announced a tentative finding that investigators employed “flawed science” — including now-debunked beliefs that certain fire behaviors point to arson — to conclude that Willingham intentionally set fire to his Corsicana home.

But Maldonado said his agency’s investigation remains valid, even after modern, scientific arson standards are applied.

“We stand by the original investigator’s report and conclusions,” Maldonado said in his Aug. 20 letter to the commission. “Should any subsequent analysis be performed to test other theories and possibilities of the cause and origin of the fire, we will of course re-examine the report again.”

[…]

Maldonado, who became state fire marshal in 2004 after rising to assistant chief for the Austin Fire Department, acknowledged that his agency used many of the principles and practices espoused by NFPA 921 when Vasquez — who died in the mid-1990s — investigated the Willingham fire.

Attached to Maldonado’s letter was a point-by-point analysis showing that Vasquez’s arson finding can be supported by NFPA 921, which says melted aluminum, burn patterns, broken glass and other fire phenomena “may also be caused by ignitable liquids.”

The attachment also suggested that commission members take into account that Vasquez’s conclusions were based on a personal review of the fire scene and interviews with Willingham, who offered conflicting accounts of the fire.

I know it’s hard to admit to a mistake, but this is just sad. Many, many experts have examined the Willingham evidence, and none of them have agreed with this assessment. One might also argue that the “personal review” of the fire scene isn’t an advantage, as it may have made the investigators at the time too close to it. Three little kids died in that fire – that’s got to have an effect on the people who were right there to examine the scene. What Willingham said in the interviews also shouldn’t matter as far as the physical evidence goes. What he says may be confirmed or contradicted by what is found at the scene, but it can’t be determinative. That’s a job for the prosecutor, not the investigator.

The Commission meets today to finally discuss the Willingham case. They’ve already heard some grievances from a couple of Senators.

State Sens. Rodney Ellis, D-Houston, and Juan “Chuy” Hinojosa, D-McAllen, sent a letter Monday to the commission with a list of grievances about the way it has conducted the Willingham investigation. The senators wrote that the process has been too secretive, that it has been diluted and that the primary question in the case has not been addressed. They wrote: “It appears that you are not interested in looking at the ‘big picture’ component of this complaint: Did the State Fire Marshal commit professional negligence or misconduct if it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science may have been used to convict hundreds or thousands of defendants?”

The senators wrote that more than 225 people each year are sent to Texas prisons on arson convictions, and more than 700 current prisons are serving time for arson. “Texans need to be confident that the flawed science used to convict and execute Mr. Willingham wasn’t used to wrongly imprison many others,” they wrote.

We ought to know once and for all if the Commission will do the job it’s supposed to do or if it needs to be taken back to the Lege for an overhaul. I fear a whitewash is coming, but at least that will serve to clarify the issue. And who knows, maybe we’ll see another revolt by Commission members. Stranger things have happened. Dave Mann has more.

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.

John Bradley is a political hack: Film at 11

John Bradley, the District Attorney for Williamson County and the hand-picked-by-Rick-Perry Chair of the Forensic Science Commission, continues to be the single biggest impediment to the Commission doing the job it was specifically created to do.

In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.

Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”

Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.

In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.

And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.

Remember when the Forensic Science Commission was about making forensics better in Texas and not about covering Rick Perry’s ass? Those were the days. Grits and the Trib have more. A brief statement from State Sen. Rodney Ellis is beneath the fold; the full version of the statement is here.

UPDATE: Rick Casey piles on.

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