Sci­ence – like death – has its lim­its

Austin American-Statesman - - OPINION -

It is a find­ing that is at once ex­cul­pa­tory of in­di­vid­u­als and damn­ing of a sys­tem. In a pre­lim­i­nary de­ter­mi­na­tion reached Fri­day, the Texas Foren­sic Sci­ence Com­mis­sion said ar­son in­ves­ti­ga­tors used flawed — or at least now-out­dated — sci­ence in their re­view of a 1991 Cor­si­cana fire that killed three chil­dren and led to cap­i­tal murder charges against Cameron Todd Willing­ham, their fa­ther.

Wil­liamson County District At­tor­ney John Bradley, the com­mis­sion chair­man, said at the meet­ing that in­ves­ti­ga­tors can­not be sec­ond-guessed for ad­her­ing to stan­dards in place at the time of the crime.

“We should hold peo­ple ac­count­able based on stan­dards that ex­isted when they were work­ing on these things,” he said.

It’s hard to ar­gue with that, just as it’s hard to ar­gue with Bradley’s point that ar­son sci­ence — like much of foren­sic sci­ence — has made tremen­dous ad­vances in re­cent years. But the up­dated ar­son sci­ence is of no use to Willing­ham be­cause the state killed him in 2004.

At this point, Tex­ans can only hope that Willing­ham was prop­erly con­victed of the crime for which he was ex­e­cuted. Tex­ans also should be re­minded by this case and its af­ter­math that ev­ery­body ex­e­cuted in their names is stripped of a right granted all other con­victs. Un­like other con­victs, who can be freed when up­dated sci­ence sheds new light on old cases, those we ex- ecute lose that po­ten­tial rem­edy.

That’s the damn­ing part of the Foren­sic Sci­ence Com­mis­sion find­ing in the Willing­ham case: Sci­ence marches on, but it’s frozen in time for the ex­e­cuted. It’s why we be­lieve life with­out pa­role is the more fair and hu­mane ul­ti­mate sen­tence.

Bradley, in a Mon­day in­ter­view with the Amer­i­can-States­man ed­i­to­rial board, re­jected the use of the word “flawed” in ref­er­ence to the sci­ence used by in­ves­ti­ga­tors in the Willing­ham case.

But com­mis­sion mem­ber Sarah Ker­ri­gan, a foren­sic tox­i­col­o­gist and di­rec­tor of Sam Hous­ton State Uni­ver­sity’s crime lab, said Fri­day that the panel unan­i­mously con­cluded “the sci­ence was flawed by to­day’s stan­dard.”

Pros­e­cu­tors, bol­stered by what might have been the best sci­ence of the day, suc­cess­fully ar­gued that Willing­ham set the fire.

We’re left with the cer­tainty of an ex­e­cu­tion mea­sured against the un­cer­tainly of evolv­ing sci­ence that, as we have learned, can change the out­come of a case we thought was, as the lawyers say, res ju­di­cata — a thing de­cided.

But we’ve learned the hard way that some things never are fi­nally de­cided, es­pe­cially when new sci­ence is ap­plied to an old case and a wrongly con­victed in­mate is freed. That causes no pause for Bradley, an ac­com­plished pros­e­cu­tor who noted that up­dated sci­ence was avail­able prior to Willing­ham’s ex­e­cu­tion, and his lawyers waited un­til the fi­nal hours to raise ques­tions about it.

“These post-con­vic­tion reme­dies are com­pletely avail­able to de­fen­dants in Texas, in­clud­ing those fac­ing the death penalty, and have been for a cou­ple of decades,” Bradley said, ac­knowl­edg­ing, how­ever, that reme­dies are not avail­able to those who have been ex­e­cuted.

“There is al­ways go­ing to be an im­per­fect sys­tem,” he said. “It doesn’t mat­ter if you are build­ing a car or writ­ing a news­pa­per ar­ti­cle or pros­e­cut­ing peo­ple. All you can do is ap­ply the best meth­ods you have avail­able at the time.”

Cars can be re­called. News­pa­per ar­ti­cles can be cor­rected or sub­jected to law­suit. Ex­e­cu­tion, how­ever, car­ries a cer­tain fi­nal­ity.

Bradley said death penalty foes op­er­ate on the “false premise … (that) if you can’t build a per­fect sys­tem, you should aban­don the crim­i­nal jus­tice sys­tem … .”

We don’t think any­body is ar­gu­ing that. All we seek is a sys­tem that of­fers ready rem­edy for in­her­ent im­per­fec­tion.

Bradley said the cur­rent sys­tem gives “ev­ery pos­si­ble op­por­tu­nity” for those charged with crimes to de­fend them­selves and those con­victed of crimes to use new ev­i­dence to es­tab­lish their in­no­cence.

But, as he also told us, sci­ence evolves. Please think about that as you mull the death penalty.

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