The Contrarian

It’s come to this: The Texas budget outlook has become so bleak that we’re comparing rather favorably to the one state where balanced budgeting goes to die.

People, our budget deficit is now as bad as California’s.

Yes, the over-spending, over-regulated capital of hippiedom now has a state fiscal outlook on par with the Lone Star State.

That fact may not sit well with some people—especially in the governor’s office, which loves to bash California and never misses an opportunity to point out how Texas’ low-tax, business-friendly model has led to a more robust economy and sound state finances. When California faced a $60 billion deficit last year—a shortfall that was bigger than the entire budget of most states—you could almost hear the chortling from the Texas governor’s office. It seemed a handy example of what happens when you put big-spending liberals in charge.

It wasn’t that simple, though. The causes of California’s problems—and Texas’ lack thereof—were varied and complex. And now the states’ budget deficits are looking very similar.

Texas: $18 billion shortfall (estimated) or about 20 percent of state spending.

California: $19.1 billion shortfall (official estimate) or about 20 percent of state spending.

The numbers match up pretty neatly.

A couple of caveats: Texas—as you probably know—budgets in two-year cycles. If the budget gap does turn out to be $18 billion (and we won’t have an official number until early next year), that would represent about 20 percent of the $87 billion in state funds that Texas allocated for 2010-2011.

California budgets one year at time. But the state spends about double what Texas does. So a $19.1 billion budget gap represents about 20 percent of the roughly $83 billion California will spend this year from its general fund.

You can read a breakdown of California’s proposed budget for next year here.

(Another caveat: I found several different figures for California’s state spending (not counting federal funds). The governor’s office budget proposal seems to show $123 billion in state spending. But the Wall Street Journal and Los Angeles Times both reported about $83 billion, so I’m going with that number.)

It’s also worth noting that even though Texas’ budget deficit is very similar to California’s, the Lone Star State is still in a better fiscal position. Texas has better credit ratings and nearly $9 billion banked in the Rainy Day Fund. We also haven’t yet sliced our budget by about a quarter, as California did last year. (And California is losing $52 million a day because state leaders missed their deadline to pass a budget and still can’t agree.)

But if our budget deficits persist, we could very well end up in the same position.

The days when Texas leaders could mock California—or at least its budget mess—appear to be over.

Have We Learned the Lessons from 2003 Budget Cuts?

Seven Years Later, Some Programs Still Haven't Recovered

This is my first post in quite a while. I’m happy to report that I spent last week lying on a beach. I hoped to return from vacation to find Texas’ fiscal problems magically solved. Crazy thinking, I know. But, hey, when you’re staring at the ocean and daydreaming, it’s easy to fantasize that the projected $18 billion budget deficit was maybe just an accounting error…perhaps someone put a decimal point in the wrong place or something.

But, alas, like waking from a pleasant dream, I returned to work this week to find the state’s finances still a mess.

The $18 billion shortfall would represent about 20 percent of all state spending. That’s a daunting problem.

The state’s Republican leaders would rather roll themselves down a hill of razorblades than raise taxes. But can we really rely on spending cuts and the Rainy Day fund to balance the budget?

Well, there’s fresh evidence this week that reducing state spending that much could be a disaster.

Cutting too deeply can have disastrous and long-lasting impact. Take the Texas food stamp program. Food stamps are administered by the states, but paid for and overseen by the federal government.

Texas’ program is a mess. It’s gotten so bad that the feds announced this week that they would fine Texas nearly $4 million for having high error rates. That means the state isn’t enrolling people correctly—Texans eligible for the program are being turned away and people who shouldn’t get the benefits are receiving them by mistake.

The shame of it is that Texas used to have a well-running food stamp program. So good, in fact, that it routinely won awards from the feds for having low error rates. But no more.

In 2003—as many will remember—Texas lawmakers passed an unprecedented effort to privatize the system that enrolls Texans in government programs—everything from Medicaid to food stamps. Thousands of state workers were laid off and their jobs were turned over to privately run call centers overseen by Accenture. The effort was supposed to save $600 million. Lawmakers were desperate to cut the budget in 2003 and those promised savings were too tempting to resist. It turned out to be fool’s gold, though. The call center plan quickly turned into a fiasco and the whole effort was scrapped.

The state’s eligibility system hasn’t been the same since and nowhere has the impact been more pronounced than in the high error rates now plaguing food stamps.

Corrie MacLaggan at the Statesman has done excellent reporting on Texas’ troubled food stamp program. You can read her story on the recent federal fine here.

State officials blame the problem partly on a rise in food stamp applications following Hurricane Ike in 2008, MacLaggan reports. And that surely had some impact. But the problems with food stamps can be traced directly back to the budget-cutting session of 2003. Seven years later, we’re still feeling the effects.

It’s a tale worth remembering as we once again head into a legislative session facing a huge budget shortfall. 

DNA Could Show If Claude Jones Was Wrongly Executed

Innocence Project, Observer Win Access to Key Evidence from 1989 Murder

A state judge has ordered East Texas prosecutors to hand over key evidence from a 1989 murder case to the Innocence Project and The Texas Observer for DNA testing—analysis that may prove for the first time that Texas executed an innocent man.

The Innocence Project and the Observer filed suit in 2007 to obtain a strand of hair from the scene of a homicide 21 years ago at a liquor store in San Jacinto County. The one-inch hair was key evidence that supposedly implicated Claude Howard Jones in the killing. Jones was put to death on Dec. 7, 2000—the final execution overseen by then-Gov. George W. Bush.

On June 11, Judge Paul Murphy issued a one-page order, granting the Innocence Project and Observer’s motion for summary judgment in the case and commanding the San Jacinto district attorney’s office to turn over the hair for DNA testing.

Prosecutors can appeal the decision. Officials in the Montgomery County Attorney’s office—which has been handling the case following the sudden death of San Jacinto County DA Bill Burnett from pancreatic cancer in early June—said Tuesday that no decision has been made yet on whether to appeal.

The Innocence Project and the Observer hope that DNA tests on the hair will confirm Jones’ guilt or prove he was innocent, as he always claimed. (For Background, read the Observer’s 2007 story about the Jones case here. Time magazine also recently profiled the case here. A timeline is here.)

If DNA evidence exonerates Jones, it would mark the first time an innocent person was executed for a crime that DNA tests would later prove they didn’t commit. DNA tests have freed nearly 20 death row inmates in the United States before they were executed. Innocence attorneys and reporters have also uncovered quite a few troubling cases in which states executed inmates who were likely innocent. That includes the infamous case of Cameron Todd Willingham—the North Texas man put to death for starting the fire that killed his three children and who forensic experts say was convicted on flawed evidence.

But there hasn’t yet been a case in which DNA evidence has proven without a doubt that an innocent person was executed.

Questions about Jones’ guilt have long lingered.

In fall 1989, Jones, who had recently been released on parole, was hanging out with two other men, Kerry Dixon and Timothy Jordan.

On Nov. 14, 1989, witnesses said that two men pulled into a liquor store in the small town of Point Blank in rural San Jacinto County, about 80 miles northeast of Houston. The description of the vehicle matched Dixon’s pickup truck. One man went inside and shot the owner, Allen Hilzendager, three times. Witnesses who were standing across the road couldn’t positively identify the killer.

Dixon and Jordan later said that Jones was the shooter. Both men were spared the death penalty for their testimony against Jones.

Jones claimed that he never entered the store.

Beyond fuzzy eyewitness accounts, and the questionable testimony of Dixon and Jordan (who later recanted his testimony), the only reliable evidence that linked Jones to the murder was a strand of hair found on the liquor store counter.

At Jones’ 1990 trial, a forensic expert testified that the hair appeared to come from Jones. But the technology didn’t exist at the time to determine if the hair matched Jones’ DNA.

Advanced DNA testing techniques could now show if the hair was Jones’—and confirm his guilt. Or it could match Dixon, proving that he was the gunman who entered the store. That would exonerate Jones. Or tests could reveal the hair came from a third person and leave Jones’ guilt unknown.

After Judge Murphy’s recent ruling, we’re one step closer to finding out.

Perry: We’re On a Crusade

You can always tell a politician’s desperate to win reelection when he or she describes an election as good vs. evil, us vs. them, the fight of our lifetime. Or, as Gov. Rick Perry put it last night, “a struggle for the heart and soul of our nation.”

Perry unleashed that beauty in a speech to the Texas Eagle Forum, as The Dallas Morning News reports.

It amazes me how candidates must over-hype elections these days to ensure their loyalists turn out. Sure, elections are important, but it’s a damn midterm, people. Let’s not go mistaking it for Antietam.

By my count, I’ve lived through the “most important election of all time” at least three times in this decade alone: the 2000 election was supposed to be the great struggle for the soul of America. So was 2006.Then, 2008 was billed as the most important election of our lifetime…or the next two years, whichever comes first, I guess.

Meanwhile, the governor was in rare form last night, casting this fall’s election in stark religious terms:

“We will raise our voices in defense of our values and in defiance of the hollow precepts and shameful self-interests that guide our opponents on the left….

“Who do you worship? Do you believe in the primacy of unrestrained federal government? Or do you worship the God of the universe, placing our trust in him?”

I’m hoping Perry was just over-doing it for a very friendly (and socially conservative) audience.

(Later in the evening, according to the Morning News, they gave a “Patriot” award to Don McLeroy, which says it all about the tenor of that crowd)

Because if the governor’s race is going to sound this divisive for the next five months, I don’t know if I can make it till November.

A Bill White Scandal?

The Bill White campaign today finally released the Democratic candidate’s tax returns dating back to 2004, after refusing to do so for the past three months.

The tax documents—from the years 2004-2008—reveal a business relationship that could cause political problems for the candidate. The documents show that White profited from investing in a company he personally enlisted to help with Houston’s recovery from Hurricane Rita. 

After the storm devastated Houston in 2005, White reached out to BTEC Turbines to help provide emergency power, White told the AP today.

White knew the company well. He had served on its board until 2004, and The Wedge Group—the holding company White headed before he became mayor—was a majority shareholder in BTEC. 

White reached out to BTEC to help avert a looming crisis. The storm had knocked out power to the Trinity River pumping station, which feeds the Lynchburg Reservoir. The reservoir had five days of water left. If power wasn’t restored quickly, 500,000 residents of Harris County would have lost water service and several large refineries would have shut down, endangering the nation’s refining capacity already reduced by Hurricane Katrina.

BTEC Turbines received an emergency contract from the local water utility and supplied urgently needed power to the pumping station, according to news accounts at the time. (Read a Houston Chronicle account of the incident here.) 

It’s not clear how much the company earned for this work. 

More than a year later, White earned more than $556,000 from his investments in BTEC Investments—the parent company of BTEC Turbines, according to his 2007 tax returns that were released today.

White has continued to earn money from BTEC, pocketing $163,000 in “passive” income in 2009, according to tax documents.

This would seem a looming scandal for White. The insinuation is clear enough: he personally profited from disaster recovery that he oversaw as mayor. 

But that doesn’t seem to be the case.

There are some important mitigating details:

1. White had no financial ties to BTEC Turbines at the time the company received its contract. Although he had served on the board previously, he wasn’t invested at the time.

2. White spokesperson Katy Bacon said White’s investment in BTEC came more than a year later and was unrelated to the company’s hurricane recovery work. She said investors who were looking to purchase BTEC called White in 2006 to ask his opinion on the company. The then-mayor said it was an excellent company—one he would personally invest in. In fact, the investment group later asked him to do just that.

3. And, finally, it seems unlikely that White’s $556,000 profit stemmed from BTEC”s work on Hurricane Rita. It’s doubtful a temporary emergency contract for mobile generators could have provided enough money to BTEC to enrich a single investor. (Again, it’s not clear how much money—if any—BTEC earned from the emergency contract. Calls to the company for comment weren’t returned this afternoon.)

Bacon pointed out that it was the water utility—not the city of Houston—that handed out the contract. White had no direct control over the utility. But, facing an emergency, he worked with power companies and the water utility to ensure that residents didn’t lose their water. He recommended BTEC because he knew it could respond quickly.

“When Bill’s dealing with an emergency, he picks up the phone and gets things done,” she said.

White was first asked to release his tax returns by the Houston Chronicle in March. He’d made his 2009 returns public, but hadn’t divulged returns from earlier years. Gov. Rick Perry’s campaign had been demanding White release the returns and reveal how he’s made his many millions — even refusing to debate until the former mayor did so. 

Later this week, the Observer will release a feature story detailing White’s business career.

It doesn’t appear that White acted unethically by investing in BTEC.

Still, it doesn’t look good. And the campaign will certainly have to spend time and energy answering questions about White’s relationship with BTEC Turbines. 

There’s no getting around it: Texas’ budget is a mess, and the worst is yet to come.

We’ve gotten a preview this week of just how painful the budget process will be next session. (This Fort Worth Star-Telegram story has details on the first round of cuts.) State leaders are once again saying they intend to rely mostly on spending cuts to make up a budget shortfall that may reach $18 billion. It’s already clear lawmakers will have a difficult time cleaving that much money from Texas’ miserly state budget.

Now is the time to talk about this—not next year—because the budget gap isn’t just a result of the bad economy, although that has played a part.

At least half the budget deficit can be directly attributed to Gov. Rick Perry, Lt. Gov. David Dewhurst and other Republican leaders. The question is, will their handling of the budget become an election issue? (For more details on Perry’s budget dealings, I suggest you read this recent feature by my colleague Melissa del Bosque.)

To understand how Perry and other state leaders intentionally created a large chunk of the budget shortfall, we must retrace some history from 2006. That was the year the Legislature, under court order, passed a school finance reform plan. The framework of the plan was largely devised by Perry in conjunction with former comptroller John Sharp.

The idea was to cut property taxes and replace the lost revenue with a new business tax. It was pitched as a tax swap that wouldn’t cost the state any money. Problem is, it wasn’t a swap at all. The business tax doesn’t bring in nearly enough money to cover the loss in property tax revenue.

This means Texas budget is guaranteed to have a shortfall of several billion dollars every year.

And here’s the key point—one often missed in the reporting on what’s known as Texas’ structural deficit—Perry and the Legislature knew full well the plan didn’t balance when they passed it.

In the 2006 session, the state’s own budget analysts at the Legislative Budget Board told lawmakers the plan would create a $5 billion shortfall every year (that’s $10 billion per biennium—or more than half next session’s estimated $18 billion gap.)

In 2006, everyone knew the plan didn’t balance. And it wasn’t supposed to.

Here’s what the Observer wrote back in 2006, the week after the Perry-Sharp plan was approved:

“The number-crunchers at the Legislative Budget Board project that the proposal will burn a $5 billion hole in the state budget every year. The estimated five-year deficit is $25 billion….At a celebratory day-after-session news conference on May 16, Perry responded to such concerns with a supply-side argument. He contended that the Legislative Budget Board’s numbers are off because they don’t take into account “dynamic modeling” and other measures of future economic growth that will balance the state’s books. Curious about how much dynamism the governor expects, we asked Perry’s press office for revenue numbers that the governor thinks are more accurate. They didn’t have any.

“The dirty secret of this plan, which everyone at the Capitol knows, is that the $5 billion annual deficit will box future legislatures—starting in 2007—into deep budget cuts or a sales tax hike or a combination of both. That will hurt poor and vulnerable Texans. Some right-wing lawmakers are not only aware of the built-in deficit, they don’t mind it. After all, some on the right adore shrinking government and expanding consumption taxes.

“But for anyone of a different ideological bent, this plan looks irresponsible.”

For the past two sessions, we’ve papered over the deficit—first because of the booming economy and then with the aid of federal stimulus money. But now our reckoning may be upon us.

I fear what the next budget—with its yawning $18 billion hole—will do to this state. Services for the poor will certainly be reduced. Cities and municipalities will likely suffer. So far Perry, Dewhurst and Speaker Joe Straus have refused to cut already underfunded and understaffed areas like prisons and state hospitals for the mentally ill. But that may not last.

We have to remember that Perry and other Republican leaders purposely structured the budget this way. They wanted to hold down state spending. That’s a perfectly legit policy decision, but now we’re seeing the consequences.

To my mind, the budget mess is the most important issue in Texas politics right now.

But the question remains: Will Perry (and others) intentional shorting of the budget ever become an election issue? It certainly should be.

Texas’ budget situation is looking downright frightening.

If you thought the 2003 session was bad—when the state faced a $10 billion budget shortfall—you ain’t seen nothing yet.

The estimates for next session’s budget deficit keep rising—$11 billion, $12 billion, $15 billion. Earlier this week, House Appropriations Committee Chair Jim Pitts said the deficit could balloon to $18 billion—nearly double the shortfall of 2003. That’s a terrifying concept.

Those of us who lived through the 2003 session remember the damage inflicted on the state by the deep budget cuts that year. Refusing to raise taxes—though they did hike a number of “fees,” but that’s a separate issue—Gov. Rick Perry and the Legislature closed the gap mainly through accounting tricks and spending cuts. Lawmakers sliced more than $1 billion out of education and $6 billion from health and human services, according to state budget analysts (hat tip to the Statesman). Other key state functions were privatized—in some cases, with disastrous results.

The 2003 budget didn’t do the state well. One of the most famous consequences was that hundreds of thousands of kids lost state-sponsored health insurance. But the budget cuts affected nearly every corner of Texas life.

My personal favorite—the budget choice that won the award for pure meanness—was lawmakers’ decision to cut nursing home residents’ monthly “personal needs” allowance from $60 to $45. Suddenly nursing home patients had less money to buy personal items the nursing home didn’t supply, like shampoo, toothpaste and shoes.

Taking money from elderly nursing home residents proved such a debacle that the Legislature quickly restored the funds in 2005. So it was with many line items. Lawmakers spent much of the 2005 and 2007 sessions trying to fix the damage inflicted by the 2003 budget. Some programs have recovered; some haven’t.

It’s taken seven years for the Children’s Health Insurance Program enrollment to return to its 2002 levels (and all the while, the state’s uninsured population has grown).

Meanwhile, the system that enrolls people in food stamps and other government programs is still a mess, reeling from a disastrous plan that laid off thousands of state workers in favor of privately run call centers. The plan was hastily abandoned, but the damage had been done. Before 2003, the Texas food stamp program was a model of efficiency. It regularly won awards from the federal government for its low error rate. Now, the food stamp program is an embarrassment, as Corrie MacLaggan’s excellent reporting in the Statesman has shown.

House Speaker Joe Straus said this week he favored closing the budget gap without raising taxes. Surely, lawmakers will have to seek out new revenue sources—legalized gambling seems to be popular once again. But, if Straus is to be believed, the emphasis once again will be on reduced spending. And they can’t cut Medicaid and CHIP, like they did in 2003, because the newly passed national health care bill likely won’t allow it. That means deeper cuts in other programs.

We’re already seeing the effects, the result of 5 percent across-the-board cuts at state agencies. The University of Texas at Austin is laying off hundreds of staff and faculty. Health care at state prisons is suddenly in jeopardy, as Grits reports.

This is just the beginning. I honestly don’t know where lawmakers will find the cuts, and how bad the consequences will be. Texas already spends less per citizen than any other state in the nation.

I do know that cutting that much from the state budget—$10 billion, $15 billion, $18 billion, whatever the final figure—will negatively affect nearly everyone in this state for years to come.

The ABC News program 20/20 will broadcast a report this Friday night about people wrongly convicted of arson.

The segment—which airs at 9 p.m. central time—will feature the case of Curtis Severns, who was convicted in 2006 of starting a fire in his Plano gun shop. He remains in federal prison in Beaumont for a crime he likely didn’t commit.

The Observer first reported Severns’ case last year as part of our series on false arson convictions. As in other cases, Severns was convicted by what some of the top fire experts in the country now say is flawed forensic evidence.

Leading into Friday’s broadcast, the ABC News site is featuring several online stories about discredited arson evidence this week. You can read those pieces here and here.

Federal prosecutors and investigators with the Bureau of Alcohol, Tobacco and Firearms contended that Severns must have set the fire in his gun shop because they found what’s called multiple points of origin at the scene. This typically indicates the work of an arsonist because accidental fires almost never start in more than one place.

But two of the most respected fire scientists in the country—Gerald Hurst of Austin and Florida-based John Lentini—believe the fire was accidental. They say a frayed electrical cord found at the scene ignited a small fire on a workbench that caused a nearby case of aerosol cans to explode and spread flames all over the shop. In essence, they say, an aerosol can explosion caused the appearance of multiple points of origin. And a recently discovered video of a test fire—run by the ATF itself—shows that aerosol cans can spread fire and make an accidental fire appear like an arson. “Spray cans can create the illusion of multiple origins,” Hurst told the Observer last year.

Even the prosecution’s star witness—when questioned by the Observer about the new evidence—conceded that the aerosol-can scenario was possible.

Here’s the opening to our investigative report from April 2009:

It was just past 1 a.m. on a Saturday night when the phone woke Curtis Severns. The security company was calling to say his gun shop was on fire. He roused himself, left his wife, Sue, and their newborn, and began the hour-long drive from the North Texas town of Sherman to his store in Plano. That was Aug. 21, 2004. His life hasn’t been the same since.

For nearly three years, Severns has been in federal prison. Convicted of intentionally starting the fire in his gun shop, he has 25 more years on his sentence. Severns has maintained his innocence all along. As in many arson cases, he was convicted almost exclusively by the testimony of fire investigators who relied on assumptions that some of the leading arson experts in the country now say are false. In fact, new evidence and an Observer investigation reveal that Severns remains in federal prison in Beaumont for a crime he likely didn’t commit…..

There wasn’t much to go on. No witnesses saw him set the fire. There were no traces of gasoline or other accelerants used to start the blaze. And there was little motive for Severns to burn down his own business and its inventory. Prosecutors would later claim he did it for the insurance money. That seems odd. Severns’ family wasn’t struggling financially; his wife earned a six-figure salary. Moreover, five months before the fire, Severns had reduced his insurance policy limit to far less than the shop was worth. If he’d done it for the insurance, he would have lost money on the deal.

Two of the leading arson experts in the country believe the fire at Lone Star Guns was accidental. They say it had a single point of origin, sparked by a frayed electric cord found at the scene, and was spread by a case of aerosol cans sitting nearby. The cans were filled with highly flammable gun cleaner. When aerosol cans explode, they can act like blowtorches, spewing flaming liquid all over. These experts say the ATF agents, using sloppy methods, mistook an aerosol-can explosion for a three-point-of-origin fire…..

But new video evidence has surfaced that contradicts the key testimony that convicted Severns and shows the fire was likely accidental. In 2007, someone inside the ATF leaked one of the agency’s training videos to Lentini. In the video, shot in 1994, ATF agents intentionally ignite aerosol cans to see how they’ll react in a fire. When the cans explode, they can clearly be seen bouncing around the room, tossing flaming liquid and starting fires several feet away—just as Hurst and Lentini contend.

The fire expert who provided key testimony for the prosecution, John DeHaan, recently admitted, in an interview with the Observer, that it’s “theoretically possible” that the fire was accidental…..

Perhaps no one was more surprised by the verdict than Severns. He had turned down a five-year plea offer before the trial. When his lawyer explained that the plea could have him home in three years rather than 30, Severns said he wouldn’t plead guilty to something he didn’t do.

When the judge read the guilty verdict, Severns collapsed. He fell to the floor behind the defense table and began to sob. His lawyer had never seen anything like it. “I didn’t do this,” Severns said. After his lawyer coaxed him to his feet, Severns yelled at the prosecutors, “How could you do this?” A short time later, U.S. marshals handcuffed him and led him away to nearly three decades in federal prison.

Severns’ original 30-year sentence has since been reduced. A federal appeals court last year determined the sentence was egregious. But even so, Severns has been in prison for nearly four years now and still has more than a decade left to serve—10 years away from his wife and children, sitting in a cell for a crime he almost assuredly didn’t commit.

Aaron Hart has an IQ of 47. When Hart went to prison last year, his family described the then-18-year-old to reporters as profoundly mentally retarded. He couldn’t count money, didn’t know right from left, couldn’t shave and was illiterate. He played with toys made for 5 and 6 year olds.

Yet Hart was found competent to stand trial in Paris, Texas, on charges of indecency with a child. He pled guilty—though it’s not clear he understood the gravity of that decision—and received a sentence in February 2009 that shocked even the most tough-on-crime advocates.

He was sent to prison for 100 years.

But that sentence has now been overturned. In the latest development in the case, Texas’ 6th Court of Appeals threw out the conviction last Friday, ruling that Hart received inadequate representation from his court-appointed attorney. (Read the Paris News story here.)

The appeal contended that his attorney didn’t challenge Hart’s competency to stand trial, didn’t even consider his mental retardation as a defense, didn’t challenge the admissibility of Hart’s confession and didn’t investigate whether he understood the consequences of his guilty plea, according to The News.

Lamar County DA Gary Young told the newspaper he will put Hart on trial again.

Hart managed to graduate form high school in 2008—despite not being able to read or write. He was unemployable, though. So he took to mowing neighbors’ lawns and hanging out with young kids, who were more on his intellectual level. On Sept. 25, 2008, a neighbor allegedly discovered Hart in her yard fondling her 6-year-old stepson, according to news accounts.

His family contended that Hart had no comprehension of what he did. While awaiting trial, Hart spent seven months in county jail, where he was allegedly raped repeatedly by other inmates. 

The court-appointed attorney told Hart that, if he pled guilty, he might get probation—even though, due to the severity of the charges against him, Hart wasn’t eligible for probation. The appeals court cited this point in ruling that Hart received incompetent counsel.

Hart remains in prison awaiting a new trial.

His father told the Paris News that he hopes Hart will receive treatment in a state facility for the mentally disabled rather than decades in a maximum-security prison. It seems unlikely that Hart will receive another century-long sentence. But the larger question is should someone with his mental disabilities be in prison at all.

Law & Order’ Takes on Arson

You know the controversy over false arson convictions has truly penetrated the wider culture when it appears on Law & Order.

Last night’s episode of Law & Order: Special Victims Unit featured the case of a man wrongly accused of setting a fire that killed his family. 

I’ve been writing a lot about arson the past year—specifically how flawed arson evidence has sent innocent people to prison (or the death chamber). See our coverage here.

So this was one Law & Order I’m sorry I missed. But judging from a clip available on the NBC site, they did a pretty good job.

In the show, Sharon Stone plays an assistant DA who comes to suspect that the father she’s prosecuting for murdering his kids is actually innocent. (This seems based on the Cameron Todd Willingham case, though it could be any number of cases.) She seeks out a quirky independent expert—based on some combination of Austin fire expert Gerald Hurst (whom I profiled in this story) and Florida-based expert John Lentini.

An aging fire marshal has ruled the fire an arson based on burn patterns supposedly caused by an accelerant and so-called crazed glass—two of the most infamous pieces of forensic “evidence” that were used for years to convict thousands of defendants and have since been discredited.

(One quibble: Crazed glass has been so thoroughly debunked by now that I doubt any fire investigator, even one using outdated methods, still believes it. But burn patterns and “pour patterns” on the other hand— also debunked in post-flashover fires—are still used to this day in courtrooms.)

Stone’s character and the outside expert stage a test fire to show that an accidental-fire scenario—started without an accelerant—could leave the same burn patterns that were supposedly evidence of arson. This is reminiscent of the Lime Street Fire experiment of 1991—a breakthrough that showed scientists that a phenomenon known as flashover could make accidental fires look very much like intentionally set ones.

More than 700 people are serving time for arson in Texas prisons alone. There’s compelling evidence that at least 250 of them were wrongly convicted. 

In the television show, the prosecutors end up dropping the charges, and the innocent man goes free. In reality, more often than not, the innocent person would have been convicted and sent to prison—and in Willingham’s case, executed—based on shoddy forensics.

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