AG Opinion Puts Brakes on Willingham Investigation
FSC may investigate old cases, but not old evidence
By Jordan Smith, 11:22AM, Fri. Jul. 29, 2011
According to Attorney General Greg Abbott, the state's Forensic Science Commission may investigate old cases, provided it doesn't actually rely on old evidence to do so.
Moreover, the FSC is restricted to investigating claims related to questionable forensic science only if the entity being investigated – a police crime lab, say – was accredited by the state at the time the questionable analysis occurred. In short, the AG's opinion – in response to questions posed by former FSC chair and Williamson County District Attorney John Bradley – has effectively shuttered, before any final conclusion can be reached, the years-long investigation into the questionable fire science used to convict, and send to death, Cameron Todd Willingham.
Willingham was executed for the 1991 arson-murder of his three children in their home in Corsicana. Since 2004, experts have questioned the science used to prove that the fire was deliberately set; despite being made aware that the science underpinning the case was likely flawed, Gov. Rick Perry allowed the execution to go forward. The Innocence Project brought a complaint to the FSC after it's formation by statute in 2005; to date, roughly a dozen fire-science experts say that the State Fire Marshal's Office investigation in the Willingham case was seriously flawed and that it is likely that the fire was accidental. (That hasn't stopped the SFMO from standing by it's conclusions, however, a fact that the FSC called "untenable," in a preliminary report it wrote on the case earlier this year.)
It has appeared, at least, that some officials – including Perry and Bradley – simply aren't inclined to have the Willingham case resolved. Just days before the commission was initially set to hear testimony from fire experts, some two years ago, Perry removed several members of the panel, including its self-selected chair, Austin defense attorney Sam Bassett, and installed Bradley as the new chair. The investigation was then immediately put on hold. The FSC did eventually hear last winter the testimony of several fire experts and from the SFMO, but shortly thereafter Bradley questioned whether the FSC actually had the authority to be delving into the case at all. With the agreement from the panel, Bradley in late January penned a letter to Abbott, asking that his office weigh in on four important questions regarding the scope of the FSC's authority. The panel then decided to wait to finish it's report on the Willingham case – including an answer to the all-important question about whether the state was negligent in its reliance on outdated science in order to convict and execute a man – until Abbott had an opportunity to weigh in.
He did so today, opining that by statute the commission may investigate cases that came before the FSC – that is, prior to Sept. 1, 2005, when the Act creating the FSC took effect – but concluded that the group may not consider any forensic evidence conducted before that date. In other words, the Commission may consider the Willingham case, for example, but not the science that led to Willingham's conviction and execution. "Thus, although the FSC may investigate allegations arising from incidents that occurred prior to September 1, 2005, it is prohibited, in the course of any such investigation, from considering or evaluating specific items of evidence that were tested or offered into evidence prior to that date," Abbott wrote. Moreover, the panel's investigative authority only extends to "those laboratories, facilities, or entities accredited by the DPS at the time the forensic analysis" being questioned "took place," Abbott opined.
Bassett, the well-respected Austin defense attorney who Perry appointed and then pulled from the panel in 2009, says he finds the timing to the opinion questionable. Moreover, he noted in an email that a representative from the AGs office attended all of the meetings over which he presided "and this issue" of jurisdiction "was never raised at the 3-4 meetings in which we discussed undertaking the Willingham investigation," Bassett wrote in an email. "It is frustrating for me to now see them interjecting themselves into this debate years at the...investigation has progressed and is about to reach a conclusion."
"The current position of the [SFMO] that the investigators' original findings of arson are supported by fire science is absolutely untenable," he concluded. "I speculate that this has made a lot of politicians uncomfortable and this has something to do with the timing of the Attorney General's findings."