At the height of the controversy surrounding the fire investigation that led to the arson murder conviction and death sentence of Cameron Todd Willingham, Dr. Gerald Hurst, one of the country's pre-eminent fire investigators, told a reporter for ABC News, "The Willingham case is like a hundred other cases I've seen, except that they executed him. The others are rotting away in prison."
But attorneys with the Innocence Project of Texas, who have been conducting a massive review of arson convictions in Texas, told the Texas Forensic Science Commission at its meeting Friday that the number of cases in which arson investigations may have led to wrongful convictions will turn out to be quite small. Nick Vilbas, executive director of the Innocence Project of Texas, said he expects the final number of cases that are sent for review to the state fire marshal to be six to eight.
Vilbas said that his group will likely produce a final list of questionable cases for the state fire marshal’s office to study in May.
Dr. Sarah Kerrigan, a member of the commission and director of the Forensic Science Program at Sam Houston State University, said the results of the review indicate that overall the state's fire science practices are sound. "When you have six to eight cases out of a thousand, you're really restoring public confidence in the fire investigation system,” she said.
The review has proceeded in four stages. First, the organization contacted 1,085 defendants in arson cases who were still incarcerated or who had been recently released. From an initial round of responses, the attorneys, with the help of university students, whittled the number of cases needing a closer look down to 33.
One case involved a fire in a mobile home, believed by the local fire marshal to have involved accelerants. Attorneys analyzing the case found that the model of mobile home was recalled because of electrical problems that could lead to fires.
Although many of the cases that may be sent for additional review are not yet public, one is currently in court. Today, McLennan County state district Judge George Allen ruled that Ed Graf, whose arson conviction is being studied by the project, is entitled to a new trial. Graf, who is now 60 years old, was convicted in 1988 of locking his two young stepsons in a storage shed at their home outside of Waco and setting it on fire, killing the boys. A prosecutor in the case has said that the fire science used in the original investigation was questionable, but he added that the McLennan County district attorney's office is not convinced that Graf is innocent because of other evidence in the case. A final determination of whether Graf is entitled to a new trial will be made by the Court of Criminal Appeals.
Vilbas said that of 33 cases the Innocence Project selected for intensive screening, 18 have been initially analyzed and only two of those will go on to be reviewed by a panel of fire experts, set up by Texas Fire Marshal Chris Connealy. The rest of the cases, 15 in all, will be studied in the coming months.
“There are only a handful of convictions that are really in question,” said Mike Ware, another attorney with the Innocence Project.
If Innocence Project attorneys determine that faulty science was used to obtain a conviction, Vilbas said, they will take on those convicted as clients and try to get courts to revisit the cases.
In April 2011, the Texas Forensic Science Commission issued a report casting doubt on the science used in the Willingham case. It noted that “pour patterns,” broken glass, and other evidence once seen as proof that a fire was set intentionally, are no longer considered clear indicators. That kind of evidence had been widely used in Texas arson cases.
At the meeting, Scott Henson, a policy consultant for the Innocence Project and author of the criminal justice blog Grits for Breakfast, cautioned the commission that the arson review only addressed convictions in which someone is currently serving prison time. They did not look at cases in which the convicted arsonist is on parole or probation, or has finished their sentence. In addition, Henson said, many false arson accusations did not enter the criminal justice system, but instead were handled by the Texas Department of Insurance as a part of questions over fire damage claims.
The review comes just as Senate Criminal Justice Committee Chairman John Whitmire prepares to refile a bill, which nearly passed in 2009, that would expressly permit courts to overturn a conviction if the forensic science originally used has since changed.