A.G. Ruling on Arson Probe Is 'Just Weird'

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 commission 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 when the questionable analysis occurred. In short, the A.G.'s opinion appears to have the effect of shuttering, before any final conclusion, the years-long investigation into the questionable fire science used to convict and execute Camer­on Todd Willingham for the 1991 arson-murder of his three children in their Corsicana home. The A.G. ruling was made in response to questions posed by former commission chair and Williamson County District Attorney John Bradley.

Other interpretations of the ruling suggest that while the decision is clearly political in nature, it will not in fact end the investigation into Texas' use of fire science in criminal cases until the commission has its final say.

Since 2004, experts have questioned the science used to prove the 1991 fire was deliberately set; despite evidence showing that the science underpinning the case was likely flawed, Gov. Rick Perry allowed Willing­ham's execution to go forward. The Innocence Project brought a complaint to the FSC after the commission's formation by statute in 2005. Since then, roughly a dozen fire-science experts have said that the investigative techniques used by the State Fire Marshal's Office in the case were seriously flawed and that it was more likely that the fire was accidental. (The complaint also alleged that the same flawed science was used to send Ernest Willis to death row. The only difference between the two cases is that upon review, prosecutors in the Willis case agreed the science used to convict was flawed and Willis was freed.) That hasn't stopped the State Fire Marshal's Office from standing by its conclusions, however, a fact the commission called "untenable" in a preliminary report it wrote on the case earlier this year.

It has appeared that some officials – including Perry and Bradley – aren't inclined to have the Willingham case resolved. Just days before the commission was initially set to hear testimony from fire experts 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 halted. Eventually, in January, the commission heard testimony from several fire experts and from the State Fire Marshal's Office, but shortly thereafter, Bradley questioned whether the commission actually had the authority to delve into the case at all. With the agreement from the panel, Bradley in late January asked Abbott's office to weigh in on three questions regarding the scope of the commission's authority. The panel then decided to postpone its report on the Willingham case – including an answer to the all-important question of whether the state was negligent by relying on outdated science to convict and to execute Willingham – until Abbott had an opportunity to weigh in.

Abbott did so July 29, opining that by statute, the commission may investigate cases preceding its creation – that is, prior to Sept. 1, 2005, when the act creating the commission took effect – but concluding the group may not consider any forensic evidence collected 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 [Department of Public Safety] at the time the forensic analysis [being questioned] took place."

Bassett, the well-respected Austin defense attorney whom Perry appointed and then pulled from the panel in 2009, says he finds the timing of the opinion questionable. Moreover, he noted in an email that a representative from the A.G.'s Office attended all of the meetings over which he presided, and the issue of jurisdiction was never raised. "It is frustrating for me to now see them interjecting themselves into this debate years after the ... investigation has progressed and is about to reach a conclusion.

"The current position of the [fire marshal] 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."

Indeed, the case could be kept alive and the commission could finish its investigation because the State Fire Mar­shal's Office last year wrote to the commission defending the science used to convict Willingham and Willis – despite the scientific consensus to the contrary. By standing by the old science, the state fire marshal has seemingly made the "evidence" of its practices contemporary – that is, post-Sept. 1, 2005 – which would still, even under the most conservative reading of the A.G.'s ruling, allow the commission to consider it during its inquiry.

Although the A.G.'s ruling is "frankly ... just weird," says Stephen Saloom, policy director for the Innocence Project, there is nothing in it that would prevent the commission from considering whether the fire marshal is negligent by relying on outdated science. "The central element [to our complaint] is that the fire marshal has been negligent and remains negligent to this day for not informing the criminal justice system [that] the old arson science is invalid," he said. Indeed, that is the view apparently shared by state Sen. Rodney Ellis, D-Houston, who also serves as the Innocent Project's board chair. "Nothing in this [A.G.] opinion prevents the [commission] from completing its report and ruling that the [State Fire Marshal's Office] was negligent when it failed in its 'duty to correct' the flawed arson science that was used in numerous arson cases," Ellis said in a statement. "They had a 'duty to correct' prior to 2005, when the [FSC] legislation took effect, and after 2005, and they have never done so."