Forensic Science Commission Takes Up Willingham

Texas Forensic Science Commission Chairman John Bradley listens to other board members during a scheduled meeting on September 17, 2010 in Dallas, Texas.
Texas Forensic Science Commission Chairman John Bradley listens to other board members during a scheduled meeting on September 17, 2010 in Dallas, Texas.

Chairman John Bradley wants you to know that the Texas Forensic Science Commission is "not punting on any discussion" on whether standards of arson science have changed since the state convicted Cameron Todd Willingham of capital murder in 1992. He made that much clear at the agency's meeting as members gathered to discuss a draft report of its findings in the Willingham complaint. 

It may not be punting on the discussion, but after numerous delays, the commission has yet to arrive at a conclusion on the case that's been pending since 2008. The state agency will meet again on Nov. 19 to hear testimony from a panel of experts on the training standards of the day. 

The commission was poised to make a conclusive determination in the Willingham case at today's meeting. But members of the commission, during testy exchanges with Bradley, balked at adopting carte blanche the findings of the draft report. It concludes that fire analysts who provided evidence for the state adhered to investigation practices that existed at the time, and thus were not professionally negligent in deciding that Willingham started the fire. (Download the report above.)

Commissioner Sarah Kerrigan said she was concerned that in the report, it "sounds as if the panel is suggesting the investigators were abiding by the science" — saying that while the fire analysts may have followed contemporary practices, she believed there was a disconnect between those practices and the current scientific standards. A second commissioner, Garry Adams, took it a step further, saying he was "not completely convinced the science was not available" to the analysts, either. Listing all of the training courses the analysts had taken, Adams said it was "difficult to believe that five different agencies were teaching anecdotal fire investigation at the time." That's what the experts will testify about at the Nov. 19 meeting. 

The commission hired nationally renowned fire expert Craig Beyler to advise it on the Willingham case last summer. Beyler's report discredited the techniques the fire analysts used, saying they seemed "to be wholly without any realistic understanding of fires and how fire injuries are created." At a July meeting, commission members, including Chairman John Bradley, questioned the basis of Beyler's report, saying it did not properly detail the contemporary standard of practice for fire investigations in Texas, and focused on publications and research, rather than manuals or materials the investigators would have used. It's not fair, Bradley said then, "to go back in time to create some academic, theoretical standard based on academic documents," adding that the investigator "was doing what he was taught at the time."

In 2007, the commission agreed to hear a complaint from the Innocence Project concerning the arson science the state used to convict Willingham, who was executed in 2004. Two days before the commission was scheduled to take up the Willingham case in October, Gov. Rick Perry abruptly replaced three of the commission members, including then-Chairman Sam Bassett, an Austin criminal defense attorney. Bradley, the Williamson County District Attorney, took his place, and postponed the review until he could properly acquaint himself with agency procedures. 

State Sens. Rodney Ellis, D-Houston, and Juan "Chuy" Hinojosa, D-McAllen, sent a letter on Monday to the commission criticizing its handling of the Willingham case. They said the commission has been too secretive — its internal deliberations on the case have been in a four-person subcommittee not subject to the Open Meetings Act — and that it has avoided answering the original question brought up by the 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?"

Bradley responded to the letter by questioning the motives of the senators, noting that Ellis sits on the Innocence Project's Board of Directors. "The Forensic Science Commission is an independent agency that will set aside the exaggerated claims and self-serving opinions of individuals outside the forensic field and concentrate on answering the single statutory question authorized by law to be answered," he said. "The rest is just a circus sideshow."

Willingham's stepmother, Eugenia, and two of his cousins, Patricia Willingham Cox and Judy Willingham Cavner, attended today's packed meeting at a Dallas hotel. During a lunch break, Eugenia Willingham, who was in tears by the end of the meeting, told reporters she was "encouraged" that other commission members were "standing up" to Bradley. Cox spelled out who she thought was accountable for what she believes was her cousin's wrongful execution: Perry. "The governor was made aware of it, he knew those standards were wrong in 2004," she said. 

In a statement, former Chairman Bassett praised today's proceedings: "When this draft was offered, what should have happened with the commission did happen. Science prevailed. It is heartening to see the scientists on the commission are taking this investigation seriously and requiring that more be done. It is only through a complete investigation that the commission will retain credibility and do the best job possible."

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