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A Nebulous End to the Willingham Inquiry

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The moment had an air of finality to it.

In a small hearing room in downtown Austin, eight members of the Texas Forensic Science Commission voted this afternoon to adopt their final report on the long-disputed arson conviction of Cameron Todd Willingham. It was a moment five years in the making. The New York-based Innocence Project had originally asked the commission to investigate the case back in 2006. So when the final vote was taken to adopt the report, an Innocence Project staffer and members of Willingham’s family—who claim that Texas executed an innocent man—applauded from their seats in the front row.

It felt like an ending. But what exactly the end result was—like so much in the Willingham saga—seems unclear. If this was the end, it was a nebulous one.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

The commission refused to address those questions because it’s not clear it has the authority to do so. In January, the commission requested an opinion from the Texas Attorney General’s office on whether it has jurisdiction to determine “professional negligence” in arson cases.

The AG’s opinion is due this summer. But the commission chose to issue a final Willingham report anyway. It’s not exactly clear why the commission was in such a rush, though it’s worth noting that this was likely the last meeting for controversial Chair John Bradley. The Texas Senate is unlikely to confirm Bradley before the end of the legislative session. Perhaps Bradley wanted to finish the Willingham report before he’s removed from the commission and returns exclusively to his day job as Williamson County DA.

But whatever the reason, by rushing out a report before the AG’s opinion, the commissioners put themselves in an awkward position. In the last two days, they tried to craft a final report that made strong recommendations but without inferring that the original fire investigators were negligent.

That was no easy task. In fact, at times it seemed the commissioners were trying to write a report with their hands tied. Whenever a commissioner tried to relate a piece of flawed arson evidence directly to the Willingham case, Bradley would caution that—without the AG’s opinion—they didn’t have the legal authority to “editorialize.”

As a result, the final report oddly makes almost no comment about the quality of the Willingham investigation, even while it condemns certain actions by the Fire Marshal’s office and makes numerous recommendations on how to prevent other people from being wrongly convicted of arson. (The final report hasn’t been posted online. I will link to it when it is available.)

So what do we make of this schizophrenic document?

Willingham’s relatives—his stepmother Eugenia Willingham and his cousin Patricia Cox—pronounced themselves satisfied with the commission’s work. “What this commission has done will have a significant impact on the justice system,” Cox said.

Stephen Saloom with the Innocence Project was clearly frustrated that the commission couldn’t address the negligence issue. But, he added, given that limitation, the commission did commendable work during the past two days. “It’s a good report,” Saloom said. “It makes clear that the old forms of arson evidence are not reliable and need to be corrected…and that the old cases that may have been tainted by this evidence have an opportunity for review. This gives a chance for justice for all those past cases where people may have been wrongly convicted of arson.”

Indeed, among the report’s 17 recommendations is much-needed reform. The commission recommends improving training and certifications for fire investigators and ensuring that training curriculum include fire science and fire dynamics. It recommends the Fire Marshal’s office conduct internal audits and create a peer review team to monitor the quality of its fire investigations. The report also recommends requiring lawyers and judges take continuing education classes focused specifically on forensic science.

Perhaps most importantly, it urges the Fire Marshal’s office to reexamine older cases. As I’ve written before, many of the 750 people currently in Texas prisons on arson convictions may be innocent. The state desperately needs an official inquiry into older arson cases.

The scientists on the commission fought hard against Bradley’s attempts to weaken the report’s language, especially on the recommendation for reexamination of past cases.

Of course, even in recommending an investigation of past cases, the report’s language leaves something to be desired. “The evolution of fire science standards and practices raises the question of whether an obligation exists to reevaluate cases,” the report reads.

And these are non-binding recommendations. It still falls to the Fire Marshal’s office—or other entities—to follow through on these reforms. It’s not clear if anything will come of these recommendations or if this report—watered down as it is—will simply land in a drawer and never be heard from again.

Willingham’s relatives said they hoped the commission would come back at its July meeting—after the AG’s opinion is released—and finally decide whether the Willingham investigation was negligent.

But it’s unclear if the commission will return to the Willingham case or if the matter is finished. The panel will likely have a new chairman at the July meeting—whoever Gov. Rick Perry appoints to replace Bradley.

Friday’s events felt like a milestone in the Willingham case. Seven years after his death and after five years of hearings, press conferences and national controversy, we finally have a government-produced report examining the flawed arson evidence in the case. But what it means and where the saga goes from here is anyone’s guess.

Dave Mann has been with the Observer since 2003. Before that, he worked as a reporter in Fort Worth and Washington, D.C. He was born and raised in Philadelphia. He thinks border collies are the world’s greatest dogs, and believes in the nourishing powers of pickup basketball.