Whether they like it or not, members of the Texas Forensic Science Commission today 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 (pictured), the Tarrant County medical examiner, as its chairman.
During the first day of a two-day meeting, the commissioners outlined how they would use the attorney general’s ruling to make decisions about which new cases they would investigate.
The commissioners expressed frustration over the contradiction between Abbott’s interpretation of the statute and communications they had with legislators. State Sens. Rodney Ellis and Juan “Chuy” Hinojosa, who worked on the 2005 law, had made clear their intent was to allow investigations of older cases.
“I have an element of discomfort having to abide by [the AG opinion] knowing that was not the intent,” said commissioner Sarah Kerrigan. “But that’s the law.”
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],” Kerrigan said. “I hate to think the credibility of the commission is at stake.”
Not wanting to ignore their concerns about the science, the commissioners decided they would draft a letter to accompany the dismissal that would encourage the appropriate law enforcement agency to review the case and take action. “We can still be proactive and bring all these issues out,” Peerwani said.
The commission is scheduled to discuss the Willingham case Friday. Before the meeting concluded Thursday, Willingham’s cousin, Patricia Ann Willingham-Cox, pleaded with the commissioners to complete their investigation.
“You can’t uninvestigate a case you’ve already investigated. You can’t unacknowledge what you’ve already acknowledged,” she said. “Surely, the Willingham case would demand special consideration.”
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