The document interprets the Commission’s enacting statute as limiting its jurisdiction to laboratories accredited by the Department of Public Safety. That could prevent it from taking up Willingham's case, which hinges on allegedly faulty testimony of experts at trial, not analysis conducted in a laboratory. Willingham was convicted of the 1991 arson deaths of his daughters and was executed in 2004.
The memo is unsigned, though it states that it “has been drafted, reviewed, and edited through the combined efforts of counsel for the Attorney General’s Office, the Office of Court Administration and the Department of Public Safety, along with the two members of the FSC who are lawyers.” (Those lawyers are Commission chairman John Bradley, the Williamson County District Attorney, and Fort Worth criminal defense lawyer Lance Evans. Both are on the subcommittee charged with reviewing the Willingham complaint.)
The sponsor of the bill that created the Commission, state Sen. Juan "Chuy" Hinojosa, D-McAllen, issued an open letter to the Commission disputing that interpretation, saying the agency’s scope “includes all forensic science analysis and procedures, which help the Commission identify best practices and eliminate the state’s use of ‘junk science.
State Sen. Rodney Ellis, D-Houston, echoed Hinojosa in a separate statement: “The statute never says that only Department of Public Safety (DPS) accredited labs, facilities, or entities may be investigated. DPS only began accrediting crime labs in 2003, and as such, allegations of professional negligence or misconduct that occurred before then would not be able to be investigated. … It would be absurd to think that the FSC would not have jurisdiction to investigate one of the main problems it was created to address.
Former chairman Sam Bassett, whom Bradley abruptly replaced in October — two days before the Commission was set to address the Willingham case — also took issue with the memo. In a response, he wrote: “It is my opinion that the jurisdiction of the FSC to investigate extends beyond ‘accredited’ entities as set forth in the Memorandum.
Update: John Bradley has just addressed the jurisdictional memo at the meeting. Bradley said the memo is a "legal description, not a legal conclusion" and was supposed to be a reference document for members, who are free to "come up with their own ideas as to how they should apply them."
"This memo was not intended to stop [the Willingham] investigation" he said, though "certainly some of the issues that were raised in the memo could question whether the commission has jurisdiction over the Willingham case." He added that "whatever hindsight we might have" about those issues would not apply retroactively to the cases they've already decided to take up — meaning Willingham.
Bradley also said that he expected the Commission to follow the same timeline anticipated by Bassett — who said while he was chair he thought the agency would finish its consideration of the Willingham case by the summer of 2010 — though they "may need a little more time."
Update: While delivering their report, members of the subcommittee charged with reviewing the Willingham case said that — though they believe the science used to convict the Corsicana man was flawed — they aren't prepared to say the fire investigator, whose testimony was used to convict him, committed professional negligence or misconduct. That's because, they explained, they aren't convinced that he violated the standard of care applicable at the time to arson investigations in Texas. That conflicts with the findings of Craig Beyler, the nationally regarded forensics expert that issued a report to the Commission in August that concluded investigators were not using up-to-date science when they investigated the crime scene.
Referring to Beyler's assessment, Bradley said, "to go back in time to create some academic, theoretical standard based on academic documents" and assume an investigator in Corsicana, Texas was aware of it, is "an unfair standard to apply."
"He was doing what he was taught at the time," he said, adding that though "we can certainly criticize [his methods] in hindsight, to put a label of misconduct on it is a stretch."
Nothing is final yet. After consulting more experts on what the standards the investigator should have applied, the commission will meet again "for the sole purpose" of resolving the Willingham complaint on Sept. 17.
Update: State Sen. Rodney Ellis issued the following statement about today’s proceedings:
"I am happy to hear that the Forensic Science Commission is moving forward on the Todd Willingham investigation, but unfortunately the Commission is off track in terms of what it should be investigating. It was painfully apparent that many FSC members believe that flawed science was used in the Willingham conviction, but the FSC does not seem interested in looking at the bigger picture: When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?