Will others suffer Willingham's fate?
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.