No fault found in fa­tal ar­son in­quiry

State com­mis­sion­ers say flawed case­work end­ing in ex­e­cu­tion in­volved no neg­li­gence or mis­con­duct

Austin American-Statesman - - FRONT PAGE - By Chuck Lindell

HOUS­TON — A ma­jor­ity of the Texas Foren­sic Sci­ence Com­mis­sion has ten­ta­tively con­cluded that there was no pro­fes­sional neg­li­gence or mis­con­duct by ar­son in­ves­ti­ga­tors whose flawed work in a fa­tal Cor­si­cana fire con­trib­uted to the con­vic­tion and 2004 ex­e­cu­tion of Cameron Todd Willing­ham.

It would be wrong to pun­ish in­ves­ti­ga­tors for fol­low­ing com­monly held be­liefs about fire con­di­tions that are known, in hind­sight, to be in­valid in­di­ca­tors of ar­son, said John Bradley, chair­man of a four-mem­ber panel re­view­ing Willing­ham’s case.

“We should hold peo­ple ac­count­able based on stan­dards that ex­isted when they were work­ing on these things,” Bradley said dur­ing the com­mis­sion’s quar­terly meet­ing Fri­day.

All four mem­bers of the in­ves­tiga­tive panel agreed with the pre­lim­i­nary find­ing, which was reached dur­ing two meet­ings that were closed to the pub­lic, said Dr. Sarah Ker­ri­gan, a foren­sic tox­i­col­o­gist and di­rec­tor of the Sam Hous­ton State Uni­ver­sity crime lab in Huntsville.

“The panel unan­i­mously felt the sci­ence was flawed by to­day’s stan-

Con­tin­ued from A1 dards, but the ques­tion for us was, was there pro­fes­sional neg­li­gence or mis­con­duct?” Ker­ri­gan said, adding that sci­en­tific ar­son stan­dards — though adopted na­tion­ally in 1992, the year Willing­ham was con­victed — had not fil­tered down to the front-line in­ves­ti­ga­tors in Texas.

The other three mem­bers of the com­mis­sion had lit­tle to add to the dis­cus­sion.

But with the com­mis­sion ap­pear­ing to head to­ward a vote di­rect­ing the in­ves­tiga­tive panel to write a fi­nal re­port on its Willing­ham find­ings, lawyer Barry Scheck in­ter­rupted, start­ing the first of two shout­ing matches with Bradley.

“I must protest that,” said Scheck, co-founder of the In­no­cence Project in New York, which filed the orig­i­nal com­mis­sion com­plaint about the Willing­ham case.

“I am go­ing to ask you to please sit down and be quiet or leave,” Bradley said.

But Scheck pressed on, say­ing the com­mis­sion’s in­quiry was head­ing down the wrong path.

In­stead of fo­cus­ing on the fire in­ves­ti­ga­tors, Scheck im­plored com­mis­sion­ers to an­a­lyze the state fire mar­shal’s of­fice, which he said adopted sci­en­tif­i­cally based stan­dards for de­ter­min­ing when a fire is ar­son yet failed to rein­ves­ti­gate hun­dreds of ar­son con­vic­tions ob­tained from in­ves­ti­ga­tions now known to be flawed.

“Was it the fire mar­shal’s of­fice that en­gaged in pro­fes­sional ne­glect or mis­con­duct?” Scheck asked. “Does the (agency) have a duty to cor­rect any past rep­re­sen­ta­tions that are wrong, that are sci­en­tif­i­cally in­valid?”

In the end, com­mis­sion­ers voted to give Scheck and other in­ter­ested par­ties three weeks to sub­mit ob­jec­tions to the pro­posed find­ing.

In ad­di­tion, the panel will ask fire ex­perts to sub­mit in­for­ma­tion on what Texas ar­son in­ves­ti­ga­tors knew — or should have known — when the Willing­ham fire was in­ves­ti­gated in 1991 and when he was pros­e­cuted in 1992.

The in­ves­tiga­tive panel will then spend about three weeks com­pil­ing the in­for­ma­tion and writ­ing a fi­nal re­port about the Willing­ham fire, which will be pre­sented to the full com­mis­sion dur­ing an as-yet un­sched­uled spe­cial meet­ing, prob­a­bly in Septem­ber.

Willing­ham’s three young girls were killed in a De­cem­ber 1991 fire in their Cor­si­cana home. Willing­ham, who es­caped the blaze, was ar­rested a month later af­ter in­ves­ti­ga­tors found ev­i­dence that the fire was in­ten­tion­ally set.

His case has drawn in­ter­na­tional at­ten­tion — and spec­u­la­tion that Texas might have ex­e­cuted an in­no­cent man — af­ter mod­ern fire ex­perts, in­clud­ing Austin chemist Ger­ald Hurst, de­ter- mined the ar­son find­ing was based on un­re­li­able, un­sci­en­tific con­clu­sions.

The com­mis­sion was cre­ated by the Texas Leg­is­la­ture in 2005 to pro­mote pro­fes­sional stan­dards for the use of foren­sic sci­ence in the court­room and to in­ves­ti­gate al­le­ga­tions of sci­en­tific neg­li­gence or mis­con­duct.

It be­gan in­ves­ti­gat­ing the Willing­ham mat­ter in 2008 and hired sci­en­tist Craig Beyler, who found that fire in­ves­ti­ga­tors — one with the Cor­si­cana Fire Depart­ment, the other with the state fire mar­shal’s of­fice — re­lied on un­proven the­o­ries and per­sonal bias in their ar­son rul­ings.

But days be­fore Beyler was to present his find­ings to the com­mis­sion last year, Gov. Rick Perry re­placed the panel’s chair­man with Bradley, who is also district at­tor­ney of Wil­liamson County. Perry even­tu­ally re­placed his other three com­mis­sion ap­pointees as well. Beyler’s pre­sen­ta­tion was can­celed.

Crit­ics ac­cused Perry of try­ing to bury the Willing­ham in­ves­ti­ga­tion or at least de­lay its find­ings un­til af­ter elec­tion sea­son. The gover­nor has de­nied the ac­cu­sa­tion.

Willing­ham’s mother, Eugenia Willing­ham, flew in from her home in Ard­more, Okla., to at­tend the meet­ing with about 30 other spec­ta­tors and re­porters crammed into a small ho­tel meet­ing room. Two doc­u­men­tary film crews recorded the pro­ceed­ings.

“We came down here not know­ing what to ex­pect, that maybe they’d find a way turn their backs on Todd,” she said. “I have this sick feel­ing in my stom­ach like I had at Todd’s trial.”

The panel’s find­ings on the fire in­ves­ti­ga­tors over­shad­owed an ear­lier con­tro­versy over a seven-page le­gal anal­y­sis stat­ing that the Foren­sic Sci­ence Com­mis­sion’s ju­ris­dic­tion was far more limited than orig­i­nally thought.

The memo, re­leased last week, was largely writ­ten by Bradley af­ter con­sult­ing with fel­low com­mis­sion mem­ber Lance Evans, a Fort Worth de­fense lawyer, and attorneys with the at­tor­ney gen­eral’s of­fice and Depart­ment of Pub­lic Safety.

Concerned that the memo was an at­tempt to short-cir­cuit the Willing­ham in­ves­ti­ga­tion, sev­eral Demo­cratic leg­is­la­tors ob­jected, say­ing it re­lied on an overly re­stric­tive in­ter­pre­ta­tion of the law cre­at­ing the com­mis­sion.

Bradley de­nied any ul­te­rior mo­tives: “I have made it clear that we are go­ing to com­plete the Willing­ham case.”

Evans, who said that fol­low­ing the memo would lead to an ab­surd re­sult and ham­string com­mis­sion in­ves­ti­ga­tions, moved that the panel “not adopt” the le­gal anal­y­sis and “con­tinue to re­view each case as it comes up.”

The mo­tion passed 7-0, with Bradley say­ing the dis­cus­sions con­vinced him that the memo was not ready for adop­tion.

Larry Kolvo­ord

John Bradley de­vel­oped a tough-on-crime rep­u­ta­tion as Wil­liamson County district at­tor­ney be­fore be­ing ap­pointed to lead the Texas Foren­sic Sci­ence Com­mis­sion.

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