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The Contrarian

CNN Explores Warren Horinek Case

Anderson Cooper brings fresh scrutiny to alleged wrongful conviction
Photo illustration by Matt Wright-Steel

CNN’s Anderson Cooper 360 will air a report tonight on the controversial case of Warren Horinek—a former Fort Worth police officer convicted in 1996 of murdering his wife. Horinek is serving a 30-year sentence in state prison. There is compelling evidence that he’s innocent.

The Observer first reported on the serious flaws in the case against Horinek in August 2010. Our exposé—titled “A Bloody Injustice”—detailed the unusual circumstances that led to Horinek’s conviction.

On March 14, 1995, Warren Horinek called 911, claiming his wife Bonnie had shot herself. When paramedics arrived, they found Bonnie dead. She was lying on the couple’s bed with a gunshot wound to the chest. Warren was frantically administering CPR. On the bed next to Bonnie’s body was a .38 revolver and a shotgun. There was no sign of a break in. Police quickly narrowed the possible scenarios: Either Bonnie had committed suicide or Warren had murdered her. Warren claimed from the beginning that Bonnie had killed herself.

The people normally responsible for prosecuting a murder came to believe that Warren was telling the truth. The crime scene investigator, the homicide sergeant, the medical examiner and the assistant DA assigned to prosecute the case all became convinced that the evidence pointed to suicide.

“I always thought that it was suicide,” Mike Parrish, the prosecutor handling the case, told the Observer last year. “Still do.”

Bonnie’s parents chose to hire a private attorney, who, through a quirk in the law, obtained a grand jury indictment of Horinek. That led to a bizarre trial. Everyone trying to convict Warren was in private practice, and the agents of the state—crime scene investigator, homicide sergeant and assistant DA—all testified for the defense.

It seemed Warren was headed for acquittal until the testimony of the prosecution’s final witness—a blood spatter expert from Oklahoma named Tom Bevel. He testified that the small spots of blood found on Warren’s t-shirt the night of Bonnie’s death were certainly the result of blood spatter form a gunshot. He said the spatter proved Warren had fired a gun the night of the murder.

It was Bevel’s blood spatter testimony that led to Warren’s conviction.

The problem is Bevel may well have been wrong. Several nationally known blood spatter experts have examined the Horinek case and strongly believe the blood spots resulted from Warren administering CPR to Bonnie. They say the key forensic evidence that sent Warren to prison is flawed. (For more details on the blood spatter evidence, read our 2010 story on the Horinek case.)

The Utne Reader and The Daily Beast followed up our reporting on the case. And now CNN will bring what seems a gross injustice to a national audience (the show will air tonight at 8 p.m. and 10 p.m. EST).

As the case is gaining wider attention, Walter Reaves, a Waco attorney, is hoping to vacate Horinek’s conviction or win a new trial. Reaves filed a writ of habeas corpus for Horinek in 2010. This fall, there were two hearings on Horinek’s case in Fort Worth at which three forensic experts—including Jim Varnon, the original CSI on the case who has worked to free Horinek for years—testified that overwhelming evidence points to a suicide. It will take at least three months for the judge to make a recommendation on Horinek’s case to the Texas Court of Criminal Appeals, which will decide whether the conviction will stand.

In the meantime, increased media attention on the fate of Warren Horinek can’t hurt.

Greenest Lawns in Town

rickchiasmallcapTexas is suffering through one of its worst droughts; the previous 12 months were the hottest and driest ever recorded in the state. But some Texans don’t seem to notice.

Despite water shortages and tight water restrictions in many localities, Texas’ business and political elite are using up to 19 times as much water as average Texans, according to utility records.

Let’s start at the top of state government. Gov. Rick Perry’s private residence in far west Austin used 790,000 gallons in the 12-month period between September 2010 and August 2011, according to utility bills the Observer obtained through a public records request. Texas taxpayers have been footing the bill for Perry and his family to live in the 4,000-square-foot, $10,000-a-month house in a tony subdivision while the historic Texas Governor’s Mansion undergoes repairs from a June 2008 fire.

Perry’s house sits on 3.5 acres featuring extensive landscaping and a pool. Perry’s water consumption is nearly eight times higher than Austin’s household average: about 100,000 gallons a year, according to the city utility.

Perry’s water usage may seem excessive compared to the average, but many people use a lot more water than the governor. In fact, Perry’s total doesn’t even put him in the top 50 water users in Austin—all of whom consumed more than a million gallons of water in the past year. That’s remarkable, given that the city’s water restrictions limited lawn watering to two days per week for most of the summer. Local environmental activist Paul Robbins obtained the list of the top 50 water users and released it to media outlets, including the Observer and NPR’s new StateImpact project.

The worst offender was Roger Girling, owner of a home health care business, who used 1.9 million gallons, or 19 times the average. The No. 3 water user was super-lobbyist Neal “Buddy” Jones. And sixth on the list was Republican congressman Michael McCaul, recently named by The Hill newspaper as the richest member in Congress (surpassing John Kerry). McCaul used 1.4 million gallons, nearly double Perry’s total.

It’s impressive that the governor’s water consumption can be nearly eight times the average, and he still can’t keep up with the Joneses—or the McCauls.

The Rick Perry Roadshow

Gov. Rick Perry has run the most disastrous campaign for president in recent memory. The signature moment, of course, was his brain freeze at the GOP debate in Michigan, when he stammered for 54 seconds, unable to recall that he wants to eliminate the Department of Energy, the federal agency that safeguards the nation’s nuclear arsenal, and then uttered the delicious word that has come to define his candidacy: “oops.”

Internet and television pundits have called it one of the most memorable gaffes in the history of televised presidential debates. It was particularly damaging to Perry because it reinforced the central negative perceptions of him: that he’s a shallow candidate who lacks knowledge of federal policy, and that he’s an inarticulate man who, as many commentators put it, “isn’t ready for prime time.” The Perry campaign tried to spin the lapse as the kind of “human” moment we’ve all experienced. That’s not quite right. We forget things that people tell us—a stranger’s name, the number of the Medicaid reform bill, a co-worker’s birthday. We don’t forget our core beliefs, or lines of argument that we’ve carefully considered. Perry hasn’t studied the federal budget. He hasn’t thought carefully about whether—and to what effect—the Department of Energy should be eliminated. It was just something he said to energize the anti-government base. This approach cost him. For one spectacularly painful moment, Perry was naked in front of a national television audience, stripped of his talking point. Oops indeed.

The gaffe finished off Perry as a viable presidential candidate, barring a truly miraculous comeback. And the “oops” moment will become shorthand for Perry’s stumbling candidacy—if it hasn’t already. But the truth is that Perry had probably blown his chances well before the words “Department of Energy” slipped his mind. Perry’s poll numbers in the key early primary states had already sunk to single digits, a decline earned on merit. His missteps are too numerous to list, but here are some highlights: implying a threat of violence against Federal Reserve Chairman Ben Bernanke; saying the anti-immigrant base has “no heart”; mangling an attempted debate attack on Mitt Romney for flip-flopping; saying, in response to the first question of the Oct. 11 debate on economic issues, that he didn’t have a jobs plan but would release one soon; claiming that Warren Buffett, of all people, doesn’t understand how to create private-sector jobs. Eat your heart out, Fred Thompson.

The campaign has secured for Perry a national reputation as a bungler, but Texans can’t afford to think of him that way. Bunglers are harmless; if they cause pain, it’s accidental. Rick Perry isn’t Mr. Bean. He’s implemented policies that have robbed much-needed social services from hundreds of thousands of Texans. He’s lorded over state government like a bully, using intimidation and fear to get what he wants from the Legislature. Perhaps most of all, he’s built a network of patronage throughout state government in which supporters and former staffers populate key government positions and dispense state contracts and grants to companies that—coincidently or not—contribute to Perry’s political funds.

In the December 2011 issue of the Observer, we explore these elements of Perry’s record in Texas. And with good reason. His presidential campaign has been an embarrassment, and the rest of the nation will soon be free to forget about Rick Perry. But Texans don’t have that luxury. He is still our governor for—gulp—at least another three years. It behooves us to take him seriously.

In “The V.I.P. Room” we meet some of Perry’s friends and former staffers who have built careers—and won lucrative state contracts for their clients—thanks to their relationship with the governor. 

Read “Brains Behind the Curtain” to learn about the think tank responsible for many of Perry’s controversial ideas.

Rick Perry released his tax reform plan yesterday. The proposal—along with Perry’s energy plan and his promise to balance the federal budget—has clarified how Perry would govern the country if he’s elected president: make the rest of the United States as much like Texas as possible.

There’s a term for this, a word that pundits bandied during the George W. Bush years and which we need to dust off.


Perry’s solution for the country’s economic problems is apparently to replicate the Texas approach to taxes, government spending and job creation. The Texas Way would be a boon to industry and would likely create jobs. But there’s a cost: Little investment in education, health care and other social programs. And a badly degraded environment (more on that further down).

In a speech in South Carolina yesterday, Perry proposed an optional 20 percent flat tax (more details here). I say optional because, under Perry’s plan, Americans would have a choice: pay their tax rate under the current system or pay the flat tax.

The plan is already under attack from the left and the right. I do find it amazing that Perry is pitching a bold, simple way to pay your taxes, but, in fact, his plan could complicate the tax code. Under his proposal, taxpayers would have to calculate the taxes they owe under two systems and then decide which is cheaper. (Has anyone checked to see if TurboTax is backing Perry?)

The bottom line is this: Perry’s plan would result in a huge tax cut for wealthy Americans—who pay a top tax rate of 35 percent. But middle-class and lower-income Americans wouldn’t necessarily have to pay more (as they would under Herman Cain’s 9-9-9 plan).

So, it’s not regressive, really. It just helps the rich. Wealthy people get a massive tax break, while everyone else gets nothing. Oh, I forgot to mention that corporate taxes would shrink, at least in the first year.

The net effect would be a large drop in revenue for the federal government. That’s probably the idea.

I haven’t yet seen any estimates of how much money Perry’s 20 percent flat tax would deprive the federal government, but it’s likely quite a bit.

Perry also pledges to balance the federal budget. That’s a worthy goal, of course. But combined with Perry’s tax proposal, it could create a serious problem.

Starving the government of revenue while simultaneously balancing the budget would result in almost unfathomable budget cuts.

It’s hard to imagine how much money we would have to cut from the budget to make federal spending balance out with the plunging revenues envisioned in Perry’s tax plan. Medicaid, Medicare, Social Security and defense spending—the big ticket items—would all take massive reductions.

At the same time, Perry has pitched a jobs/energy plan that focuses on domestic fossil fuel production. And he promises to eviscerate—or streamline, depending on your point of view—federal regulatory agencies, starting with the EPA, in order to spur job growth.

So Perry’s vision is taking shape: low taxes, low spending, lots of oil and natural gas drilling, and business-friendly regulation.

Remind you of any place?

The business-friendly Texas model has created a good economy the past decade. Though Texas has felt the recession, it’s also created more jobs than any other state.

But can the Texas model be exported? Would it create jobs all across the country? I have no doubt that corporations and wealthy individuals would fair very well under a President Perry. Some states might see job growth. But would Perry’s approach create jobs in Michigan?

And at what cost? There’s another side to the so-called Texas Miracle.

Our low tax, low-spending approach has left Texas with chronically under-funded education and health care systems. Our graduation rate is low, our dropout rate high. The number of Texans without health insurance is larger than the population of Costa Rica.

Our poorly funded government programs have caused one crisis after another—from Child Protective Services to the Texas Youth Commission to state centers for the developmentally disabled.

Our drilling and lack of environmental regulation has left Texas with some of the most polluted air and water in the country, and quite a few cancer clusters.

Many Texans—at least the ones who vote—like the state the way it is and are perfectly comfortable with this grand tradeoff.

The question for voters in the rest of the nation evaluating Perry’s plans is this: Do they want their country to look like Texas?

Report: Nearly Half of Enterprise Fund Companies Gave to Perry (UPDATED)

Forty-three companies that got taxpayer grants donated millions to Perry.

Updated below.

Gov. Rick Perry touts his Texas Enterprise Fund—which doles out public money to spur job growth—as an economic boon to the state. But nearly half the companies that received the taxpayer grants are also politically connected to Perry, according to a new report by an Austin watchdog group.  

The report—released Thursday by the nonprofit Texans for Public Justice—found that of the 90 companies that have received Enterprise Fund grants, 43 have given money either to Perry’s campaigns or to a political organization closely tied to him. Those 43 companies received $333 million in public money through the Enterprise Fund. They donated nearly $7 million to Perry’s campaign account or to the Republican Governors Association. Perry served as chair of the Washington, D.C.-based governors association in both 2008 and 2011 and has helped raise substantial money for the group.

The Enterprise Fund has handed out nearly $440 million in taxpayer money to those 90 companies since its creation in 2003. Perry’s office claims the economic development grants have created more than 59,000 jobs. Critics have often called the program a political slush fund for the governor.

In March 2010, the Observer first reported that nearly 40 percent of Enterprise Fund companies had contributed to Perry’s campaign or to the Republican Governors Association. Our 2010 analysis showed that 20 companies had donated $2.2 million. In the past 18 months, the number of Enterprise Fund grants has increased—as has the political giving.

Andrew Wheat, Texans for Public Justice research director, said the campaign contributions present a conflict of interest for the governor’s office. “Having the government give out public money to private companies is inherently controversial,” he said. “If indeed a government is going to have this kind of program it would seem to be prudent to have it heavily insulated from the political process, which this one definitely is not.” (Full disclosure: Wheat has written columns for the Observer.)

Perry’s office largely decides which companies receive funds, though the lieutenant governor and Texas House speaker also must approve grants. Companies that receive money from the Enterprise Fund file reports with Perry’s office to document that they’re creating the required number of jobs. Companies that fail to create jobs must return money to the state, but only if the governor’s office requires them to.

Wheat said it’s a conflict of interest for Perry—who’s receiving large campaign contributions from these companies—to oversee their compliance. “It seems insane that the politician that is handing out this money and is receiving campaign money from these same sources is also in charge…. There should be independent bean counters enforcing the public’s interest in these contracts.”

Perry’s office didn’t respond to a request for comment late Wednesday afternoon. In Tuesday night’s GOP presidential debate in New Hampshire, Perry was asked about public subsidies for companies that are also his campaign contributors. He defended the grants and noted that the Texas Legislature has oversight of his economic incentive programs. The Legislature meets once every two years.

The top donors in the report include major companies such as Hewlett-Packard and General Electric, which each gave more than $600,000 to the Republican Governors Association since 2008.

Another top donor—the Texas A&M Institute for Genome Medicine—may have exaggerated its job creation numbers, according to a Wall Street Journal report this week. The newspaper found that the Texas A&M Institute for Genome Medicine claimed to have produced 12,000 jobs, when in fact the newspaper could confirm only 220 jobs. “What accounts for the discrepancy? The newspaper asked. “To reach their estimate of 12,000-plus jobs created by the project, officials included every position added in Texas since 2005 in fields related sometimes only tangentially to biotechnology, according to state officials and documents provided by Texas A&M. They include jobs in things like dental equipment, fertilizer manufacturing and medical imaging.”

The Institute for Genome Medicine—at Perry’s alma-matter—received $50 million in taxpayer money from the Enterprise Fund in 2005. The institute has contributed $506,000 to Perry’s campaigns and another $85,000 to the governors association, according to the Texans for Public Justice report, the fifth most generous contributor among Enterprise Fund recipients.

Update (Oct. 14): The Texas governor’s office referred questions about the report to Perry’s campaign. Katherine Cesinger, a campaign spokesperson, responded that TPJ drew “false and unsupportable” conclusions in its report. “In fact, many of the ‘crossover’ companies TPJ cited also contributed nearly equal amounts to the Democratic Governors Association as they did to the RGA during the same time period,” Cesinger wrote in an email. “Each TEF project must receive unanimous approval from the governor, lieutenant governor and speaker of the House to receive funding. Funds are awarded based on the merits of the projects, including job creation, and the TEF is key to Texas’ ability to successfully compete with other states economically. The program also has strong contract provisions and is reviewed every two years by the Texas Legislature.”

Is Rick Perry Finished?

Plagued by mistakes and behind in the polls, Perry tries to revive his presidential campaign.

“A month ago, all we heard about was Rick Perry and now, he’s off the map. He had a worse September than the Red Sox.” —David Letterman

It’s funny because it’s true. On Aug. 13, the Boston Red Sox had the best record in the American League and were favorites to reach the World Series. On that same day, Rick Perry announced his presidential candidacy. He rocketed to the top of nearly every poll and soon became the favorite to win the Republican nomination.

Then came September. The Red Sox completed one of the most stunning late-season collapses in baseball history by surrendering a ninth-inning lead to last-place Baltimore on the season’s final night and missed the playoffs.

Bad as that was, Perry might have had a worse month. (That’s really saying something: Boston lost 20 of its last 27 games.)

You know the litany of Perry errors. There were his unsteady debate performances—the last of which included an attack on Mitt Romney and an answer on Pakistan policy that were so nonsensical it seemed Perry was coming off a four-day bender. Conservatives are hammering Perry for granting in-state college tuition to children of undocumented immigrants. Then there were his face-palm, off-the-cuff remarks, including saying that Warren Buffett(!) was out of touch with the private sector and that Perry would be open to sending troops into Mexico. And, of course, there was the ranch controversy.

Eat your heart out, Terry Francona.

The popular theory among some political pundits is that Perry is down, but not out—that he can still right his campaign, overtake Romney and win the nomination. And the Perry-comeback narrative has some merit. My colleague Forrest Wilder recently laid out several compelling reasons why Perry can still win this thing. He does have the money, time, talent and opportunity to do it. The clown show that is the GOP field remains wide open. So I won’t count anyone out, Perry included. (A smooth performance at Tuesday’s Republican debate could start the Perry comeback.)

But I have a hard time seeing it.

Perry’s problems appear to run much deeper than a few controversial statements and what his family’s hunting ranch was called. Put simply, the Texas governor looks like a flawed candidate right now.

It’s baffling for those of us who watched Perry win every election he entered in Texas and who considered him a talented campaigner.

For most of August and September, I told national reporters who called to ask about the governor that Perry was an excellent politician. He may not seem impressive at first, I had said, he may not be a policy whiz or be a slick debater, but he’s a natural on the campaign trail, someone who connects with people, and a man with uncanny political instincts and an aggressive style that rattles his opponents.

That person seems to have disappeared. I don’t recognize the Rick Perry who’s running for president.

He’s making cringe-worthy gaffes during debates and embarrassing comments on television and in speeches. Instead of attacking his opponents, he’s constantly clarifying, explaining, apologizing and back-peddling. Each time he tries to reorient his campaign and get back on the attack, another controversy knocks him on the defensive. I don’t claim to be a political expert, but I do know that candidates who are clarifying and explaining their positions are losing the race.

What’s so puzzling is that the topics giving Perry problems aren’t new. Texas Democrats and Republicans have attacked Perry for years without success on cronyism, HPV and immigration.

Yet now Perry seems flustered. I won’t pretend to know why. Perhaps it’s the same unknowable reason that the potent Red Sox lineup stopped scoring runs late in the season. Perhaps he’s in poor health. Perhaps his campaign team has become too comfortable and overconfident after a string of easy gubernatorial elections. Perhaps Perry just wasn’t that good to begin with.

But whatever the reason, it’s evident that Perry wasn’t prepared for a national campaign. As a result, he’s falling seriously behind.

I’m usually suspicious of early polls, but some of Perry’s numbers are alarming. The latest survey of New Hampshire voters has Perry in a tie for fifth—with just 4 percent of the vote. (The poll has a margin of error of 4.4 percent—so Perry could be as high as 8 percent….but he could also be at zero!) Either way, he trails Romney by about 30 points. The voting in the first primary state begins in 90 days. His numbers in Florida are nearly as bad.

There’s still time to revive his campaign, but the signs aren’t encouraging.

Media reports this past weekend told of a more “disciplined” Perry on the campaign trail in Iowa. Disciplined doesn’t mean better. A New York Times story today portrayed a candidate trying to find the right formula:

Mr. Perry is re-examining his campaign — and himself — in an effort to correct his shortcomings of style and substance….

“He seems uncomfortable on the stage,” said Sam Clovis, a conservative radio host in Sioux City who had a more favorable impression of Mr. Perry after shaking his hand during a weekend campaign stop here. “He’s going to have to get much, much better.”…

He raced through campaign events, delivering speeches that clocked in around eight minutes. He quickly moved to question-and-answer sessions, but after calling on five people, he shouted, “Last question!” (Most candidates assign that task to an aide to avoid the impression that it is the candidate who is eager to go.)….

Several Republican voters who turned out for his campaign events said they knew little about him, aside from the recent debates, and walked away disappointed that they had not learned more.

Steven Berntson, 57, a corn and soybean farmer from Paullina, asked Mr. Perry to discuss the books that have shaped his life. Mr. Perry replied by citing the free-market economist Friedrich Hayek, but did not name the title of his well-known book, “The Road to Serfdom,” as he criticized Keynesian economics and turned back to a general conversation about the economy.

After Mr. Perry finished speaking, as he shook hands and signed autographs nearby, Mr. Berntson said that he was disappointed by the answer and by the fact that he had mentioned only one book.

“I wanted to see how deep he was,” Mr. Berntson said. “I asked an open-ended question that I thought would give the candidate lots and lots of room to help us know who he is. And he talked about it for less than one minute.”

Yikes. Does anyone believe that “The Road to Serfdom” is really the book that shaped Perry’s life? Or did he just say that because he wanted to stay on message? When politicians try to remake themselves on the fly, start heeding consultants’ advice for fixing their flaws, shortening their answers and speeches, and sticking strictly to talking points, it usually doesn’t end well.

Retail politics and speaking to small crowds on the stump is supposed to be Rick Perry’s strength, his specialty, his big advantage over Romney. He’s never been a great debater. He’s not a policy wonk. If he’s struggling on the campaign trail too, then what does he have?

Not that candidates can’t improve their skills. We’ve seen politicians improve aspects of their game over the course of a campaign. (During more than 20 debates in 2007-2008, Barack Obama became a much sharper debater.) But you have to be naturally good at something. It’s very difficult for a candidate to re-invent himself in the middle of a national campaign.

But that’s seemingly what Perry is doing. He reminds me of a baseball player mired in a hitting slump who’s constantly fiddling with his stance, tweaking his swing, grasping for the right adjustment that will yield results. He seems a far less confident candidate than the governor who stormed into the GOP field in August and gallivanted through Iowa.

Worst of all for Perry, his struggles have put him in the uncomfortable position of needing a good performance in the Republican debate on Tuesday night in New Hampshire to turn around his candidacy. That’s a difficult spot for someone who doesn’t excel in debates.

Perry has never been in this position before: needing a sparkling debate performance. He’s typically been ahead in the polls—able to coast through debates by avoiding mistakes. Coasting won’t suffice this time. Pat, empty-sounding answers won’t do it. Perry is behind. People want to see something from him. He needs to show some depth, an understanding of economic problems. He needs to be very good. Can he pull it off? Anything’s possible. But it’s asking an awful lot of Perry.

Like mystified Boston baseball fans, I’m stunned by all that’s gone wrong for Perry. He may still win the nomination, of course. But, right now, he seems more likely to suffer the Red Sox’s fate.

Why the Willingham Case Matters (Updated)

Will others suffer Willingham's fate?

Updated below

The now-infamous Cameron Todd Willingham case will be back in the news this week and not just because Texas Gov. Rick Perry is leading the Republican presidential field.

The Texas Forensic Science Commission, which has been investigating the Willingham-arson case for three years, plans to discuss the case at its meeting in Austin that begins this afternoon and runs through Friday.

Willingham was executed seven years ago for starting the 1991 house fire that killed his three daughters. Perry oversaw the execution and rejected a last-minute request for stay of execution—and ignored an expert report that questioned the forensic evidence in the case. Eight other nationally recognized fire scientists have since examined the case and found no evidence of arson. (For more background, read this Chicago Tribune story and this one from the New Yorker.)

The Willingham case has become an international sensation and a political problem for Perry. But much of the reporting on the case focuses on Willingham’s guilt or innocence—a debate that will likely never be settled—and misses the larger point. There is a systemic problem with flawed arson cases in Texas and across the country. The Willingham case is just the most famous example.

The commission last met to discuss Willingham in mid April, when it released a “final” report on the case. I put final in quotes because the commissioners were still waiting for the Texas attorney general to decide if the commission has jurisdiction to investigate the case and it wasn’t in April clear if the commission would take further action.

In that first report, commissioners highlighted the many flaws in the Willingham case and made 17 recommendations.

The most important was its recommendation that the State Fire Marshal’s Office review its old arson cases for possible flawed evidence. The Fire Marshal’s office files are filled with hundreds of defendants who may have been convicted by the same type of faulty arson evidence that sent Willingham to death row. None of these cases have been examined.

How many innocent people are sitting in Texas prisons on bad arson cases? We simply don’t know, because no one has looked.

I know of three likely innocent men still in prison because of faulty arson evidence. In 2009, I wrote a series on arson cases and profiled the flawed convictions for Curtis Severns, Ed Graf and Alfredo Guardiola.

All three are sitting in prison at this very moment. The Observer’s review of old arson cases turned up three apparent wrongful convictions.

Yet no agency or group has stepped forward to conduct a comprehensive investigation of past convictions. The commission’s recommendation that the Fire Marshal at least begin that process was a promising first step.

But the recommendations were non-binding. The Fire Marshal officials told me in mid-August—four months after the Willingham report came out—that they had no plans to re-investigate older arson cases.

I then called Nizam Peerwani for a comment on the Fire Marhsal’s inaction. Peerwani is the new chair of the Forensic Science Commission. (He replaced the controversial John Bradley who was forced off the commission last spring when the state Senate wouldn’t confirm his appointment. Peerwani, the medical examiner in Fort Worth, will be a much different chair than Bradley was. In previous meetings, Peerwani has not only supported other scientists on the panel, but asked some of the most intelligent and probing questions about the Willingham case.)

Peerwani told me he planned to meet with officials from the Fire Marshal’s office just before the start of today’s meeting to discuss a re-investigation of older cases. He still endorses the retrospective review, but said he understands their financial and time limitations. “I understand where they’re coming from,” he said. “We don’t have enforcement power. It’s only a recommendation on our part. “

Peerwani said crime labs and other entities that handle forensic evidence should have a policy to review their work. He said that he initiated a review of arson cases in Tarrant County from the past 20 years. It took eight months. They found no faulty convictions, he said.

Asked for further comment, State Fire Marshal Paul Maldonado released this statement through a spokesman: “I will be meeting with the Commission in the coming days to discuss all of the recommendations and explore ways that process improvements might be applied.”

Peerwani said the commissioners will decide this week if they will further investigate the Willingham case and issue another report. Or if they will drop the matter.

Even if they choose to continue, there isn’t much left for the commissioners to do. The attorney general ruled in July that the commission didn’t have jurisdiction to investigate evidence in cases before 2005. That would seem to tie the commission’s hands since Willingham was executed in 2004.

So it seems unlikely that the commissioners will make any resounding statements about the competency of the investigators in the Willingham case. They almost certainly won’t clear Willingham’s name.

But they still can press the Fire Marshal’s office—and other agencies—to dig into older arson cases.

There are 750 people in Texas prisons on arson convictions. Dozens, even hundreds, of them—like Severns, Graf and Guardiola—could be innocent.

Will their cases ever be uncovered? We’ll know more after the commissioners discuss the Willingham case either later this afternoon or tomorrow.

We will likely never know for certain if Willingham was innocent. We do know, however, that he was convicted on flawed evidence.

A review of older cases could go a long way toward uncovering anyone else who has suffered that fate.


Update (5:50 p.m.): The Forensic Science Commission will take up the Willingham case first thing Friday morning.

This afternoon, the commission considered new cases that involved flawed forensic evidence. It quickly became apparent how constricted the commission is following the recent opinion from the Texas attorney general’s office.

The commission rejected a half-dozen complaints, including three allegedly flawed arson cases, because they weren’t within its jurisdiction—at least as recently interpreted by the AG. The AG this summer ruled that the commission doesn’t have authority to investigate cases before 2005.

The three arson cases all occurred before then. So even though the cases apparently contained serious problems—and would otherwise have been investigated—the commission was forced to dismiss them because of “jurisdictional issues,” as Chair Nizam Peerwani put it.

The dismissed complaints included the Sonia Cacy case. Cacy was wrongly convicted of arson and served several years of a 99-year sentence before she was released from prison with the help of Austin fire scientist Gerald Hurst (the same expert who first questioned the evidence against Willingham and whose report Gov. Perry ignored just before the 2004 execution.) While Cacy’s case has obvious flaws, the commissioners were powerless to do anything because she was convicted before 2005.

Several commissioners expressed frustration with this new legal straight jacket.

Commissioner Sarah Kerrigan made clear the commission would have investigated these arson cases if not for the new legal boundaries. She suggested sardonically that the commission establish a committee to handle dismissed cases because given constraints of the AG opinion, “We’re going to be dealing with this in a large number of cases.”

And that might have been the point. There’s little doubt the commission was created to investigate flawed forensics prior to 2005. But imprecise wording in the 2005 statute that birthed the commission raised legal questions about jurisdiction.

Former Chair John Bradley took advantage of that ambiguity and asked for the opinion from the AG’s office. Bradley’s move was widely seen by critics as an attempt to stall the Willingham probe. We’ll find out tomorrow morning if the AG opinion will scuttle the commission’s investigation into the Willingham case.

But regardless of what happens with the Willingham case tomorrow, it’s clear that the AG opinion as severely limited the Forensic Science Commission’s power to investigate new allegations of forensic misconduct. That can’t be good.

Perry: The Cruise-Control Debater

In his first national debate, Perry will likely stay above the fray.

Rick Perry has never been keen on debates.

In his three campaigns for Texas governor, Perry treated candidates debates as necessary evils—events he had to endure and survive. (That is, of course, with the notable exception of the 2010 general election, when Perry refused to debate his Democratic opponent.)

Though Perry is the longest serving governor in Texas history, I can think of only four debates he’s appeared in: one debate each in the 2002 and 2006 campaigns, and two during the 2010 GOP primary.

 The governor didn’t perform particularly well in any of them. He didn’t have to. Each time, he was ahead in the polls and coasting toward victory. His mission was simply not to screw up. He played it safe, defended his record, and avoided any gaffes that might have altered the race.

Tonight Perry will take part in his first nationally televised debate as a presidential candidate. (8 p.m. EDT on MSNBC). We’ve been bombarded in recent days with analysis of Perry’s debating skills. Paul Burka at the Monthly thinks Perry will be “seen as the winner.”  The New Republic opines that he will “thrive in presidential debates.”

In reality, we really don’t know if he’s up to the task; Perry never needed a knockout debate performance. He’s never trailed in the polls and needed a lively debate performance to jump-start his campaign.

The conventional wisdom in Texas has always been that if and when Perry ran for national office, he’d have to break away from his cruise-control debating style and actually engage his opponents.

I doubt that will happen tonight.

Perry once again finds himself leading in the polls. His mission tonight—as in his past gubernatorial debates—is to avoid saying anything incredibly stupid.

Perry may face tough questions from the medial panel, and attacks from Michele Bachmann and Mitt Romney about his controversial past remarks and actions.

But as long as Perry can effectively defend his record and not commit any race-altering gaffes, then he will likely continue as the GOP front-runner. It’s a position Perry is familiar with and one he’s succeeded in.

All eyes will be on Perry tonight, but I suspect he will stay above the fray. And I doubt we’ll learn much about his debating skills.

At some point—either later in the primary season or perhaps in a general election against Obama—Perry will face a one-on-one debate that he can’t simply coast through. He will face a debate in which he’ll have to appear presidential, offer concrete proposals and rise to the occasion before a live national audience.

But that won’t happen tonight.

Can Rick Perry Govern?

Texas governor is a terrific campaigner but has accomplished little in office.

“With the support of my family and unwavering belief in the goodness of America, I declare to you today as a candidate for president of the United States.”

With those words, Gov. Rick Perry on Saturday ended years of speculation and made official what had become apparent months ago: He will seek the presidency in 2012.

Amid all the horse-race analysis of Perry’s candidacy—can he win? how does he stack up against Mitt Romney?—a more basic question has been lost. Can he govern?

Therein lies the rub for Rick Perry. His record in Texas doesn’t exactly blow you away. The man can win an election, no doubt. But once the campaigns are over and he actually gets into office, well, the results aren’t inspiring.

In fact, I would argue that Perry has achieved no major legislative accomplishments as governor.

Everyone will point to the Texas economy, of course. And Perry will undoubtedly center his presidential campaign on the so-called Texas Miracle. Perry does deserve some credit for Texas’ better-than-other-states economic performance the past few years. But it certainly isn’t all—or even mostly—his doing.

Meanwhile, the major policy proposals that were Perry’s doing have all been colossal failures.

First there was the Trans-Texas Corridor. Perry initially proposed this toll-road plan during the 2002 governor’s race. It would have used government’s eminent domain authority to seize rural farmland for a massive toll road project, complete with rail and utility lines. The backlash from rural Republicans was intense, and the plan died slowly over the next four legislative sessions.

In 2007, Perry proposed that all young girls receive the HPV vaccine. That idea suffered defeat even faster. Conservatives in the Legislature would have none of it.

Then there’s the one major proposal that Perry passed into law—the business margins tax. This tax increase on business was crafted in 2006 as part of a school-finance reform. The idea was to cut property taxes and replace the lost revenue with a new business tax.

This 2006 tax “swap” was the one instance during Perry’s decade as governor when he proposed a wide-ranging plan and successfully pushed it through the Legislature mostly unchanged. It’s perhaps his signature legislative accomplishment.

Problem is, it’s been a disaster. Small businesses don’t like it. Some conservatives hate it—in fact, a few believe Perry’s business tax is unconstitutional. Worst of all, the tax doesn’t generate enough revenue. The tax swap has cost the state $5 billion a year for five years running. The Texas budget now faces an ongoing structural deficit because of the underperforming business tax.

None of this is to say Perry has been ineffectual. He’s used his veto power (or the threat of it) to bend the Legislature to his wishes. And he’s utilized his power of appointment to build a web of political patronage that stretches across every entity in state government. He’s greatly expanded the influence of the once-weak Texas governorship.

But he’s not a policy guy. At times, it’s difficult to even glean a coherent ideology from him. Yes, he’s generally conservative; a times, he’s extremely conservative. But the details are tough to pin down. In fact, his three major proposals—pitching toll roads built with eminent domain, requiring a vaccine for an STD and passing a new tax that created a permanent budget deficit—aren’t exactly “conservative.”

If you watch Perry long enough, you realize he doesn’t sweat the details. The specifics of his positions are often fungible depending on what’s politically advantageous at the moment. For instance, in 2011, as Perry prepared to run for president, we saw him take more hard-line conservative positions on immigration and government spending.

In his folksy, delegate-the-details approach to governing, Perry will undoubtedly remind some voters of George W. Bush. But Perry may be even less interested in policy than Bush. By most accounts, Bush genuinely cared about education reform. Perry? In 2005, he proposed an education reform plan so unworkable that the GOP-dominated Texas House voted it down 126-0.

As governor of Texas, Perry’s lack of policy depth hasn’t hindered him much. He lets the Legislature do the heavy lifting. When the Legislature isn’t in session, Perry floats from one public appearance to another, cheerleading the Texas economy. It’s a nice gig.

But if he wins the presidency, Perry will have to deal with complex policy every day. It’s hard to envision him flourishing in that role.

Perry is a masterful politician, a charismatic and talented campaigner. But the whole governing thing? Not his forte.