State Fire Marshal's Critics Fear Arson Review Will Be Compromised

When the Forensic Science Commission reconvenes next month to continue its discussion of arson science used to convict and execute Cameron Todd Willingham, it is expected to finalize a long-sought agreement with the state fire marshal to launch a comprehensive review of other cases that used similarly problematic arson evidence.

There’s one big problem with that plan, says Stephen Saloom, policy director at the New York-based Innocence Project — State Fire Marshal Paul Maldonado doesn’t believe the evidence in the Willingham case was faulty.

Since 2008, the commission has been embroiled in a controversial investigation of the arson science used to convict Willingham of intentionally setting the 1991 blaze that killed his three children. The Innocence Project, in a 2006 complaint, asked the commission to decide whether investigators from the State Fire Marshal’s Office had committed misconduct or professional negligence by relying on methods that scientists have since said were discredited. If the commission determined there was wrongdoing, the Innocence Project asked the panel to then review evidence from other arson cases and to require corrective action where warranted.

But in a July opinion from Texas Attorney General Greg Abbott — a ruling requested by former commission chairman John Bradley, a political ally of Gov. Rick Perry — the commission’s authority was severely curtailed. Abbott wrote that the commission could not investigate evidence gathered or tested before it was established Sept. 1, 2005. He also opined that the commission could only investigate labs accredited by the Department of Public Safety.

Based on that decision — and despite their disagreement with Abbott’s conclusion — the commissioners said they would not issue a finding of wrongdoing on the part of state fire investigators. But in a draft report on the case issued in April and amended last week, the commissioners outlined a host of recommendations to prevent faulty arson science in the criminal justice system.

Among those recommendations was a retroactive review of arson cases that would let prosecutors and courts know about cases in which questionable evidence could have led to wrongful convictions.

Dr. Nizam Peerwani, the commission's new chairman and the Tarrant County medical examiner, said at the meeting last week that he had reached an agreement with Maldonado to begin a review of arson cases. “There is some moral and ethical duty to do that,” Peerwani said. “After lengthy discussion, Paul [Maldonaldo] does support this notion.”

That’s a major departure from Maldonado’s previous stance, said John Lentini, a fire scientist who has reviewed the Willingham evidence. He co-authored a 2006 report that concluded that “each and every one of the indicators [fire marshal’s investigators] relied upon have since been scientifically proven to be invalid.”

In 2010, Maldonado rejected multiple expert reports that drew the same conclusion Lentini and his colleagues found. In a letter to the commission, Maldonado wrote, “In reviewing documents and standards in place then and now, we stand by the original investigator’s reports and conclusions.”

Earlier this year, commissioners called Maldonado’s position untenable.

“We have reason to believe that the fire marshal seems confused to this day as to what appropriate arson evidence is,” the Innocence Project's Saloom said.

Maldonado, through a spokesman, declined to be interviewed or to comment. “The State Fire Marshal will continue to work with the Forensic Science Commission, as we have stated. That process is underway. It would be premature to discuss specifics at this time,” spokesman Jerry Hagins said via email.

If Texans are to have confidence in the review of arson cases, Saloom said, Maldonado cannot lead it. “It’s simply hard for any human being to check his own work to see if it was erroneous,” Saloom said. “You need additional perspective.”

Lentini called Maldonado’s position on the Willingham investigation “just lame” and said the review ought to be led by someone else with arson investigation experience. “He needs to turn it over to someone who knows what’s going on,” Lentini said.

But Jeff Blackburn, general counsel at the Innocence Project of Texas, a Lubbock-based organization, said he was heartened by the commission’s decision to work with the fire marshal on a review of past cases. The Texas Innocence Project plans to assist the fire marshal to help identify questionable cases.

And Blackburn said an initial study his group did indicates there likely aren’t many. A limited survey of more than 800 arson cases, he said, turned up only a handful that merited further investigation. “We have learned that sometimes it takes a long time for law enforcement to come around, but that they eventually do,” Blackburn said.

Editor's Note: Staff at the Texas Forensic Science Commission provided this comment from Chairman Dr. Nizam Peerwani via e-mail following the publication of this story: "The Texas Forensic Science Commission reiterates its appreciation for the leadership displayed by the Texas State Fire Marshal’s Office in agreeing to participate in a review of past arson cases. The Commission, State Fire Marshal and Innocence Project of Texas look forward to working together in this effort, and to pursuing the common goal of continued improvement in fire investigation in our state. We view this as an important opportunity to strengthen the use of forensic science in our criminal justice system, and are all equally committed to a fair and complete review."