The Austin Chronicle

Texas Forensics: Politics vs. Justice

By Jordan Smith, September 16, 2011, News

Because an opinion issued by Attorney General Greg Abbott now restricts its jurisdiction, the Forensic Science Commission (during a two-day meeting last week) has declined to draw a formal conclusion about whether the State Fire Marshal's Office engaged in negligence or misconduct in investigating the now notorious Cameron Todd Willingham arson-murder case.

However, the panel put off until next month a vote on the text of its final report on the matter – including more than a dozen recommendations for the Fire Marshal's Office and other criminal justice stakeholders on how to improve arson investigations – in order to include in the document the Fire Marshal's Office's recent agreement that it would undertake a review of older arson cases that might have relied on outdated science. Jeff Blackburn, chief counsel for the Innocence Project of Texas, has offered to help in that review, and he said the Innocence Project of Texas has already reviewed more than 800 arson convictions and found fewer than a dozen where questionable science may have come into play.

The decision to table the question of whether the Fire Marshal's Office was negligent – perhaps not only in relying on outdated science to conclude that Willingham (executed in 2004) was responsible for setting the 1991 fire that killed his three young children in their home, but also in failing to correct those conclusions once the fire science had evolved – was prompted by Abbott's July opinion that the statute creating the FSC restricted the panel to considering only cases or evidence at issue after the effective date (Sept. 1, 2005) of the FSC's enabling legislation, and further that it may only investigate entities, like DNA labs or police crime labs, that have been accredited by the Department of Public Safe­ty since that date. (Abbott's opinion was requested by the FSC at the behest of its since-ousted chair, Williamson County District Attorney John Bradley, appointed to the post by Gov. Rick Perry.)

The panel has concluded that it must rely on that opinion in deciding whether to accept cases for investigation, but several members noted their discomfort with the ruling. Sarah Kerrigan, director of the forensic science program at Sam Houston State University, said she understands that the FSC must follow the opinion – while not legally binding in the same manner as a court opinion, failure to follow its advice could subject individual members to legal liability – but she still has "a level of discontent with it because we know that was not the intent" of the law. Bill sponsors Sens. Juan "Chuy" Hinojosa, D-McAllen, and Rod­ney Ellis, D-Houston, have said that their actual intent had been to give the panel broad authority to investigate and offer correction in any number of investigations. (Members had hoped that the jurisdictional issues would be addressed during this year's legislative session, but a bill to do so failed to pass the House.) Instead, on the first day of the commission's two-day meeting, the panel dismissed a handful of complaints on jurisdictional grounds.

Still, notwithstanding the A.G. opinion, in several cases – including a Willingham-related complaint brought by the Innocence Project of New York – the panel included in its dismissals a number of recommendations. In the Willingham matter, for example, the panel is recommending a host of improvements – including that the Fire Marshal's Office beef up its training, oversight, report-making, and testimonial skills. The panel will incorporate additional information gleaned from a meeting last week with Fire Marshal Paul Maldonado, including that his office said it would review other older cases. A Fire Marshal's Office spokesman confirmed that Maldonado met with FSC Chair Nizam Peerwani, and Maldonado released a statement acknowledging that he would "discuss all of the [FSC] recommendations and explore ways that process improvements might be applied. Any outcomes from this discussion will, of course, be shared with the entire fire investigation community in Texas."

The FSC is scheduled to meet again in October, at which time it is expected to vote on its final report on the Willingham matter and officially close the case.

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