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Forensic Science Commission finally hears Willingham testimony

If you were hoping the state of Texas would be open to changing how arson investigations should be done, then the hearing was a disappointment. Still, some good things happened.

Speaking at a special meeting of the Texas Forensic Science Commission, which is examining the science used to convict Willingham, the invited experts had little positive to say about an investigation they characterized as incomplete and investigators they criticized for improperly jumping to unjustified conclusions.

“Everything documented post-fire was just as consistent with an accidental fire as an intentional fire,” said John DeHaan , author of “Kirk’s Fire Investigation,” a widely used textbook. “You have really no basis for concluding this was arson.”

But the commission also heard from an official in the state fire marshal’s office who stood by the arson conclusion, saying it was reached after a thorough, professional investigation and supported by the evidence.

Assistant State Fire Marshal Ed Salazar admitted that in the years since 1991, science has determined that some of the evidence used to convict Willingham does not necessarily point to arson. But, he said, tests that found a combustible liquid under the front door and the presence of certain burn patterns support such a finding.

“They followed the protocols; they followed the practices that were available and being used at the time,” Salazar said. “I believe the conclusions they reached can be scientifically sound.”

The DMN and Chron have more, as does Dave Mann:

Fire Marshal officials appeared before the Texas Forensic Science Commission at a hearing in downtown Austin to publicly answer questions for the first time about their handling of the Willingham case. Assistant Fire Marshal Ed Salazar told the commissioners today that his office stands behind the Willingham investigation and its conclusions.

In the past 15 years, scientific experiments have proved false many of the old assumptions that fire investigators relied on, including many in the Willingham case. But no matter. Salazar said if this case were being probed today, his office might reach similar findings. That’s a scary thought.

[…]

As Salazar presented his evidence and contended that the slides still supported a finding of arson, it became clear that the field of fire investigation hadn’t come quite as far as we thought. His presentation relied on outdated notions, what some fire scientists have taken to calling “old wives tales.”

For instance, Salazar showed photos of burn patterns on the floor of the Willingham house that were labeled “pour patterns.” Investigators alleged this is where Willingham poured an accelerant to start the blaze. Salazar contended that even under today’s standards, pour patterns can be potential evidence of arson.

In reality, scientists now know that after a fire goes to flashover stage, which this fire did, investigators can glean very little information from the burn patterns on the floor. That’s because during flashover, the fire will scorch the floor. So after flashover, burns on the floor tell you nothing about how the fire started.

Salazar also showed photos of burned holes in the floor. This is another “old wives tale.” Salazar claimed that deep burning on the floor could indicate the presence of an accelerant. (In fact, the opposite is true, as DeHaan later explained in his rebuttal testimony. Repeated scientific testing has shown that gasoline and other accelerants burn off quickly, making it “very difficult, if not impossible, for the fire to burn through the floor,” DeHaan said. Typically, only a fire that goes to flashover can burn long enough to consume the floor. So, the deep burning on the floor couldn’t have been caused by an accelerant, but was simply the byporduct of the fire going to flashover.)

Undeterred, Salazar plowed ahead. He said Vasquez had followed the scientific method and drawn proper conclusions. “[The finding of arson] is a judgment call ultimately coming down to opinions.” The fire scientists might assert that fire investigators relied on their opinions for too long rather than verifiable scientific fact.

But everyone would probably agree with what Salazar said next: “There is an underlying tension between the scientific community and the people doing the down and dirty work.”

Reading this, I can only hope I’m never called to serve on a jury in an arson case, because I’d have to tell the judge that I would be unable to vote for conviction because I have no faith in the state’s ability to determine whether or not arson was actually the cause. Before the Willingham case distracted everybody, the purpose of the Forensic Science Commission was to evaluate the methods being used in (among other things) arson cases. If nothing else, it is now crystal clear that the state of Texas does not believe in using science when investigating suspicious fires. If the Forensic Science Commission does not make strong recommendations for how to fix this, then everything it has done will have been a waste of time and effort. Given the number of people currently sitting in jail because of questionable arson convictions, that would be a bigger tragedy than the Willingham case. Grits, who also attended, provides a detailed writeup as well.

So what did the Forensic Science Commission do?

I guess I wasn’t expecting this.

A majority of the Texas Forensic Science Commission has tentatively concluded that there was no professional negligence or misconduct by arson investigators whose flawed work in a fatal Corsicana fire contributed to the conviction and 2004 execution of Cameron Todd Willingham.

It would be wrong to punish investigators for following commonly held beliefs about fire conditions that are known, in hindsight, to be invalid indicators of arson, said John Bradley, chairman of a four-member panel reviewing Willingham’s case.

“We should hold people accountable based on standards that existed when they were working on these things,” Bradley said during the commission’s quarterly meeting Friday.

All four members of the investigative panel agreed with the preliminary finding, which was reached during two meetings that were closed to the public, said Dr. Sarah Kerrigan, a forensic toxicologist and director of the Sam Houston State University crime lab in Huntsville.

“The panel unanimously felt the science was flawed by today’s standards, but the question for us was, was there professional negligence or misconduct?” Kerrigan said, adding that scientific arson standards — though adopted nationally in 1992, the year Willingham was convicted — had not filtered down to the front-line investigators in Texas.

I must have lost the thread of this whole saga awhile back, because as I write this I’m not really sure I know what I was expecting to come out of this. I knew the question of Cameron Todd Willingham’s innocence wasn’t on the table as it once had been – once Rick Perry and John Bradley squashed Craig Beyler’s testimony, all that was effectively swept under the rug – but the question about whether or not the fire investigators at the time of the Willingham blaze deserved official blame or not wasn’t what I had in mind. Thinking about it now, I’m not sure why that even matters. I suppose what I anticipated was more or less the same as Barry Scheck of the Innocence Project:

Instead of focusing on the fire investigators, Scheck implored commissioners to analyze the state fire marshal’s office , which he said adopted scientifically based standards for determining when a fire is arson yet failed to reinvestigate hundreds of arson convictions obtained from investigations now known to be flawed.

“Was it the fire marshal’s office that engaged in professional neglect or misconduct?” Scheck asked. “Does the (agency) have a duty to correct any past representations that are wrong, that are scientifically invalid?”

In the end, commissioners voted to give Scheck and other interested parties three weeks to submit objections to the proposed finding.

It’s well known that many other arson convictions are based on the same shoddy “science” that got Willingham executed. If there’s no action taken to review those convictions – if the Forensic Science Commission doesn’t force the issue in whatever fashion it can – then I don’t see the point of what they’re doing. I know this wasn’t the original intent behind the creation of the FSC. Time to schedule another committee hearing, Sen. Whitmire. Grits and the Chron has more.

UPDATE: Dave Mann, who has reported extensively on arson forensics, weighs in.

Forensic Science Commission finally gets back to Willingham case

It’s a start, but it’s not much more than that.

Meeting for the first time since January, the nine-member Texas Forensic Science Commission voted to obtain and review the complete transcript of the capital murder trial of Cameron Todd Willingham, who was sentenced to death for setting the December 1991 Corsicana house fire in which his three young children perished.

Commissioners also agreed to renew contact with Baltimore fire expert Craig Beyler, who, in a commission-sponsored review last fall, criticized the arson investigations of Texas Deputy Fire Marshal Manuel Vasquez and Corsicana Fire Chief Doug Fogg.

[…]

Commission members on Friday voted to create the Willingham and other subcommittees, but an earlier configuration of the Willingham panel — Bradley, Peerwani and Kerrigan — met earlier this month in private to discuss the case.

The state’s open meetings law does not require the subcommittee to meet publicly, but Bradley said the meetings could be opened to the public if members desire.

Asked if he favored allowing the public to attend such sessions, Bradley responded, “No,” adding that all matters discussed in the closed sessions ultimately would be revealed at regular commission meetings.

A full liveblog of the hearing by Rodger Jones is here. What really matters, as Grits and Dave Mann in addition to Jones point out, is that the Willingham subcommittee can do its work in secret. Whatever happens, the public won’t get to see it or have any input on it until it’s too late. Which is no doubt what Bradley, being a good and loyal foot soldier to Rick Perry, had in mind all along. The Statesman, the DMN, and EoW have more.

UPDATE: Scott Cobb comments:

Anyone who believes that all committee meetings of the Texas Forensic Science Commission should be public and not private, secret closed door meetings, should write commission Chair John Bradley and other Commission members urging them to make the meetings public and to post notices on the Commission website of when and where the subcommittee meetings will take place.

Urge Texas Forensic Science Commission to Hold Public Meetings in Todd Willingham Case

I second that.

Forensic Science Commission to finally get back to Willingham case

It’s sure taken them long enough.

After months of delay and internal upheaval, the revamped Texas Forensic Science Commission is poised to reopen discussion of the Cameron Todd Willingham case when it meets April 23 in Irving.

Tarrant County Medical Examiner Nizam Peerwani, appointed to the panel in December, is likely to play a central role in the inquiry to determine whether a flawed arson investigation led to Willingham’s execution in 2004.

The commission also includes two other members from Fort Worth: defense attorney Lance Evans and Jay Arthur Eisenberg, a professor and chairman of the department of forensic and investigative genetics at the University of North Texas Health Science Center at Fort Worth.

The meeting will mark the first time that the commission has revisited the Willingham case since a membership shake-up halted the inquiry more than six months ago.

“I think the commission is looking forward to being able to get down to work,” said Evans, who was appointed in October.

[…]

Peerwani said that the screening committee has scheduled a meeting for Thursday in his Fort Worth office but that members of the second panel who were assigned to the Willingham case have yet to get together. It remains unclear to what extent the Willingham panel will rely on the previous work of the original commission, but Peerwani hopes that the panel won’t have to start from scratch.

“We do have a lot of material that the commission has collected,” said Peerwani, who has been Tarrant County’s medical examiner for 30 years. “I don’t think we have to go back and restart all those investigations.”

But “it’s still up in the air. I don’t know what the commission is going to do,” he said.

[…]

One crucial element from the original inquiry was a report that was prepared for the commission by Baltimore fire expert Craig Beyler, who concluded that the arson investigation that led to Willingham’s conviction was based on outmoded techniques and could not sustain a finding of arson.

The commission agreed to look into the case after receiving a complaint from The Innocence Project, a New York-based advocacy group, in December 2006.

Beyler, whom the commission hired December 2008, submitted his report in August 2009 and was scheduled to appear at a commission hearing that was abruptly canceled after the membership shake-up in September. Beyler told the Star-Telegram late last week that he has not been invited to the upcoming meeting.

If you’re thinking that this sounds suspiciously like John Bradley continuing to do what he can to delay and obfuscate matters relating to the Willingham inquiry, you’re not alone. Grits sees it that way, and he thinks the Commission should call for a motion to reconsider a vote it took to create a special screening committee that includes Bradley as a member at their January meeting on the grounds that it was made under false premises. That ought to liven things up.

Bradley and the Texas Open Meetings Act

Rick Casey finds another way in which John Bradley, the Chair of the Texas Forensic Science Commission, is a failure.

Friday started badly for John Bradley, the Williamson County district attorney selected last fall by Gov. Rick Perry to ride herd over the troublesome scientists on the Texas Forensic Science Commission.

His first official act of the morning was to violate the state’s open meetings law.

Then his day got worse.

[…]

Bradley evicted an Austin-based documentary crew before the meeting started. One of its members called the attorney general’s office in Austin, which sent a message to Barbara Dean, the assistant district attorney who has attended all of the commission’s meetings, providing legal guidance since its inception.

An hour and a half into the meeting, Dean, seated behind Bradley, tapped him on the shoulder and quietly spoke into his ear. He announced a 10-minute break, and when the meeting resumed the film crew was in the room.

When I asked Bradley about the matter, he curtly told me to talk to the film crew. I said I had and he replied with annoyance: “Then you know.”

His defensiveness was understandable. Enforcement of the Open Meetings Act is the responsibility of local district attorneys such as himself.

Wayne Slater noted this as it was happening as well. Heck of a job, Johnny. Scott Cobb and the Statesman’s editorial board have more, and on a tangential note, State Rep. Pete Gallego is peeved with Bradley for preventing arson expert Craig Beyler from testifying before a recent legislative hearing that Gallego chaired.

It must be noted, however, that Bradley’s political mission, to protect Rick Perry, has been a success. Not only is the next meeting scheduled for after the primary runoff date, as Dave Mann notes the whole Willingham issue was never mentioned in either of the GOP gubernatorial debates. At this point you have to wonder if Rick Perry will pay any price for this. More from Casey here.

Where’s Willingham?

The Texas Forensic Science Commission will meet on January 29. You will be shocked to hear that Cameron Todd Willingham is not on their agenda.

Instead, the meeting will focus on formalizing procedures explaining how the group will conduct business, John Bradley, the commission’s newly appointed chairman, said Thursday.

[…]

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who wrote the report in question.

Bradley said that he isn’t ignoring Willingham — who was executed for the 1991 deaths of his three daughters in a house fire outside Corsicana — and that the board’s investigation of the case could conclude this summer . He said he will assign pending cases, including Willingham’s, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn’t have policies in place that answer “simple questions, like ‘What is the standard for accepting or rejecting a complaint?'”

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it “an agenda that deflects attention from what everybody wants answered.”

And Sam Bassett, the panel’s deposed chairman, said it appears the group’s new direction “is, in my view, unnecessarily delaying the investigations we had going.”

None of this should come as a surprise, of course. Bradley has been very clear about the fact that he has no real interest in pursuing the Willingham investigation. Very simply, he will not do anything that might be damaging to his patron, Rick Perry. Until he takes concrete action towards bringing this case to a real conclusion, with recommendations for action going forward, I see no reason to believe anything he says about it. The Contrarian and the Texas Moratorium Network have more.

Bradley’s penchant for secrecy

I don’t know what John Bradley’s goals are as the Chair of the Texas Forensic Science Commission. But if one of them is to dispel the notion that he’s Rick Perry’s stooge, who was installed for the purpose of covering the Governor’s ass on the Cameron Todd Willingham case, then he’s doing it wrong.

John Bradley, who took over as chairman of the revamped commission Sept. 30, told state senators this month that the commission must adopt new rules before proceeding with the inquiry.

Bradley, district attorney for Williamson County, has also sought to control the release of information about commission activities. In an Oct. 30 e-mail obtained by the Star-Telegram, staff coordinator Leigh Tomlin asked commission members, “as a reminder of our e-mail retention policy, please delete all commission correspondence.

“If you feel there is something that needs to be saved, forward it to my office.”

Sen. Juan “Chuy” Hinojosa, D-McAllen, who sponsored legislation that created the commission in 2005, expressed disapproval with the policy, saying “it’s going in the wrong direction.”

“Surely deleting all e-mail correspondence is a nice way of saying, ‘destroy all correspondence,’ ” he said. “It’s the same thing.”

Hinojosa also said that because commission members are appointed independently of the chairman, they should be able to “keep and save whatever e-mail they want to keep.”

Bradley said the policy “simply seeks to make sure that all relevant information is saved at a single location.”

“As you might imagine,” Bradley wrote in an e-mail, “with digital information being sent, forwarded and replied to at the touch of button, an agency can find itself with duplicates of the information in numerous places.

“That makes it difficult for a public information officer to respond to requests for information and be confident about complying with all the legal requirements connected to that responsibility.”

That sound you hear is my bullshit detector blowing a gasket. Having official communications emanate from a single source does not require email purges. The reason you do that is to make it hard, if not impossible, for there to be a complete record of the Commission’s activities. There’s absolutely no justification for a commission whose purpose is to review forensic science procedures and make recommendations about best practices to be concerned about secrecy like this. Unless, of course, they expect to be discussing things that might embarrass someone they don’t want to be embarrassed. This policy needs to be stopped before any real damage is done.

The case against Willingham

Most of the pushback against the criticism of the Cameron Todd Willingham investigation and conviction has so far been of the form of “He was a bad guy!” and “We did too use science to prove arson!”, neither of which has been the least bit convincing. The DMN has a story that does a much better job of creating doubt about any claims of innocence. Basically, Willingham made a lot of inconsistent statements over time, the Beyler report never concluded that the fire was not arson, just that arson could not be proven, and some media reports of one juror’s doubts about her guilty vote were overblown. It does not change the nature of the problem with his case, which is that the forensic techniques used to convict Willingham were bunk, and that many other people have been convicted on similar “evidence”, but it was still a bit bracing to read. I know I for one had held some incorrect beliefs about the case based on previous reporting, and it was good to get set straight on a few points.

But again, this doesn’t change the fundamentals of the case, which still all boil down to this:

Gerald Hurst, a Cambridge-educated chemist from Austin, began researching the fire evidence after being recruited in January 2004 by Patricia Ann Cox, a Willingham cousin. Hurst finished his report four days before the scheduled execution on Feb. 17.

His affidavit, filed in the trial court, said “most of the conclusions” reached by fire marshal Vasquez “would be considered invalid in light of current knowledge” in the fire investigation field. It said the finding of multiple origins – a persuasive sign of arson – “was inappropriate even in the context of the state of the art in 1991.”

Hurst did not express an opinion about what caused the fire in the affidavit. However, in a letter sent to Perry on Feb. 13, 2004, requesting a 30-day reprieve for his client, Willingham’s attorney stated “Dr. Hurst’s opinion is that the fire was not intentionally set.”

[…]

Beyler delivered his report in August. In it, he said “a finding of arson could not be sustained” based upon current standards of fire investigation or those in place in 1992. He did not say what caused the fire, as Corsicana Fire Chief Donald McMullan pointed out in a response.

In an interview Friday, Beyler said that he had no theory about what actually happened and that the cause of the fire is undetermined.

His report did not try to explain Willingham’s inconsistencies and adopted at least one of his claims as fact: that Amber was in her own bed right before the fire. He said he didn’t realize until The News told him that her body was found with the sheet pulled up near her shoulders, raising the question whether she was tucked in her parents’ bed all along.

Ultimately, he said, the conclusions he reached didn’t depend on Willingham’s statements. Beyler said he focused on the science.

“I do recognize that he said many different things to many different people,” Beyler said of Willingham.

At the end of the day, if the investigation of the Willingham fire had been done correctly, there likely never would have been charges filed. The evidence does not support a conclusion of arson. You can’t be certain what a DA might do, but if the one in this case had proceeded he might well have lost. We almost certainly would not be where we are right now had the fire marshal at the time done the right thing. That’s what it’s all about.

By the way, Cameron Willingham isn’t the only one who has given conflicting statements about what did or did not happen. So has his ex-wife Stacy, who is now claiming that he did in fact confess to her, despite saying the opposite in years past.

In a brief interview at her home in 2004, Kuykendall told the Tribune Willingham never made [a confession]. She confirmed that this year to a reporter from the New Yorker magazine.

Her statement that he confessed — and that he said he set the fire because she threatened to divorce him — also conflicts with other accounts that she has provided.

Eight days after the fire, in an interview with fire investigators and police, Kuykendall said that she and Willingham had not argued for at least two weeks and she made no mention of a threat the night before the fire to divorce him.

On that night, she told authorities, the couple went to a Kmart and picked up family photographs that she intended to give as Christmas presents.

She failed to mention a threat of divorce in a second interview as well, and under oath at the punishment phase of Willingham’s trial said he never would have hurt their three girls.

I’m no more inclined to believe what Stacy Kuykendall says now than I am to believe her brothers. The science is the key, as this Star Telegram article admirably reports (hat tip: The Contrarian). Everything else is a distraction.

Perry goes on the attack as evidence of a coverup mounts

The evidence keeps coming in.

Lawyers representing Gov. Rick Perry on two occasions grilled Austin lawyer Sam Bassett on the activities of his Texas Forensic Science Commission, telling him its probe into a controversial Corsicana arson case was inappropriate and opining that the hiring of a nationally known fire expert was a “waste of state money,” the ousted commission chairman said Tuesday.

Bassett, who served two two-year terms as commission chairman before Perry replaced him on Sept. 30, said he was so concerned about what he considered “pressure” from the lawyers that he conferred with an aide to state Sen. John Whitmire, D-Houston, who reassured him “the commission was doing what it’s supposed to do.”

[…]

As Bassett outlined the commission’s investigations of the Willingham case and that of Brandon Lee Moon, an El Paso man wrongly convicted of sexual assault, Cabrales told the chairman “he didn’t think those kinds of investigations were the kind contemplated by the statute,” Bassett said.

“I think he said something along the lines that we should be more forward-looking, more current rather than examining older cases,” Basset said. Later in the discussion, Bassett said, he was told the Moon investigation was appropriate, but the Willingham case was not.

Bassett later reviewed the statute, and, feeling vindicated, sent a copy to the governor’s lawyers along with a copy of the complaint that prompted the Willingham investigation.

At one point, the lawyers asked Bassett how the panel chose Beyler to review the Willingham case. Bassett said he explained state regulations, requiring the soliciting of bids, were followed. When Wiley asked how much Beyler had been paid, Bassett said he responded, “$30,000, maybe a little more.”

Wiley then remarked, “That sounds like a waste of state money,” according to Bassett.

Bassett said he was a novice in the role of commission chairman and was uncertain how to interpret the lawyers’ remarks.

“I was surprised at the level of involvement that they wanted to have in commission decision-making,” he said.

It may have been a surprise at the time, but it should be clear to all by now what was going on. Given that meddling in the affairs of others seems to be the Rick Perry modus operandi these days, I’d say that his initial explanation of this all being “business as usual” is quite apt, though I daresay not in the way he intended it to be. By the way, that’s the same Mary Ann Wiley who had nice things to say about the Tim Cole Advisory Panel on Wrongful Convictions. Clearly, she’s capable of playing the bad cop as well.

And with the evidence comes the attack.

The governor, speaking with reporters after a speech at the Texas Association of Realtors today, made some shocking comments.

Quorum Report was there and has a dispatch.

I’ll take Perry’s assertions one at a time.

“Willingham was a monster. This was a guy who murdered his three children, who tried to beat his wife into an abortion so that he wouldn’t have those kids. Person after person has stood up and testified to facts of this case that quite frankly you all aren’t covering. And I would suggest to you that you go back and look at the record here because this is a bad man.”

This parrots the prosecution’s arguments in the case. There was no motive for Willingham to kill his kids. So at trial they tried to paint him as a “monster.” Some of their evidence for this was Willingham’s rock posters that contained violent images, according to the must-read New Yorker story.

So Perry’s argument is basically “He was a bad man! He must have been guilty of something! We’re allowed to kill him for that!” I don’t think there’s really anything I can say to that.

Perry also asserts that:

[T]hat study that Mr. (Craig) Beyler came forward with is nothing more than propaganda by the anti-death penalty people across this country.”

This statement would be funny if we weren’t talking about a life and death issue here.

Craig Beyler is one of the preeminent fire experts in the nation, which is why the Perry-appointed Forensic Science Commission contracted Beyler to study the case. He’s a scientist, not an activist. He works with Hughes and Associates, an engineering and fire protection firm in Baltimore.

This case has become shrouded in death-penalty politics, but it’s still about the science of detecting arson.

Clearly, he fails to take into account that well-known liberal bias that reality has.

I remain skeptical that this is really going to damage Rick Perry with the GOP base, but the more it drags out and becomes apparent that it’s basically a banana republic-level attempt to cover up wrongdoing that is rooted much more in indifference than actual malice – in other words, all in the service of refusing to own up to a mistake, albeit a lethal one – the more one thinks that he will ultimately be damaged. I sure as hell hope so, anyway. TPM, BOR, and PDiddie have more, while Grits discusses a related topic.

Tim Cole advisory panel begins its work

The Tim Cole Advisory Panel on Wrongful Convictions, which was created to much fanfare by the Lege this spring, begins its mission this week in the shadow of the Cameron Todd Willingham uproar.

Cole was wrongfully convicted in 1986 and died in prison 13 years later before being posthumously exonerated this year. His brother, Cory Session, also of Fort Worth, said he plans to cite the Willingham case when he addresses the panel.

“It’s hard to overlook the possibility that an innocent man was executed,” Session said. “Just like my brother Tim till the day he died, they both said, ‘I didn’t do it.’ We just can’t take it lightly anymore when somebody says they’re innocent.”

You’d think so, that’s for sure. Makes you wonder what might have happened with the Cole legislation if the Beyler report had hit the fan in February instead of August, though. There’s a million ways for bills to die without leaving any obvious fingerprints behind, after all. Sadly, I share Grits’ pessimism about the panel being able to do anything in this climate without interference from the Governor’s office. But I’ll be happy to be proven wrong, and Grits’ Day One report was quite hopeful, with Mary Ann Wiley, the Governor’s representative, sounding a lot of good notes. I still can’t quite shake my feelings of cynicism, but again, I hope I have to retract that some day. The Contrarian has more.

Speaking of our only Governor, he would really appreciate it if you would pay no attention to the man behind the curtain.

Perry has fought to keep his itinerary of upcoming meetings and appearances from public review. No e-mail he has written has been made public because he only uses a personal e-mail account, which he says is not used for state business. His executive staff keeps a schedule that destroys most of the e-mails it generates every seven days.

In the latest example, Perry has denied access to files he reviewed in July 2004 that convinced him that Willingham was justly convicted.

Recent governors have served four or five years, and the memos of their general counsel became public through archives. Perry has served for 10 years and is keeping his lawyer’s memos over that decade closed.

“Those memos are provided by the governor’s general counsel to the governor under attorney-client privilege,” press secretary Allison Castle said.

She objected to any characterization of the governor as secretive, saying, “The governor continues to promote transparency at all levels of government.”

He has worked to place state spending and budgets online and released his tax returns. But when it comes to his prospective travel, meetings and even whether he is out of state, he has won attorney general backing that allows him to withhold his schedule.

“Security is different in a post-9/11 world. Security is paramount,” Castle said.

Nevertheless, his fight to tightly hold information is contrasted to the White House, which routinely announces the president’s appearances and meetings, along with his travel schedule weeks in advance.

“From what we have seen, this governor seems to be much more inclined to make decisions and conduct business in the dark than in the light of day compared to previous governors,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas, which fights for open government.

“I don’t know why he feels it’s absolutely necessary to keep from the public, for example, what his travel schedules are. Other governors did not have the need to do that,” he said.

Yes, well, other Governors – even the President! – aren’t Rick Perry. He’s so transparent he’s achieved invisibility. Like a ninja, except for the sword and the code of honor. Don’t even try to understand, your feeble mind has no hope of wrapping itself around the transparent aura of Rick Perry.

More heat on Perry over the Forensic Science Commission

The Chicago Tribune provides further evidence that gutting of the Texas Forensic Science Commission was all about politics.

Just months before the controversial removal of three members of a state commission investigating the forensics that led to a Texas man’s 2004 execution, top aides to Gov. Rick Perry tried to pressure the chairman of the panel over the direction of the inquiry, the chairman has told the Tribune.

Samuel Bassett, whom Perry replaced on the Texas Forensic Science Commission two weeks ago, said he twice was called to meetings with Perry’s top attorneys. At one of those meetings, Bassett said he was told they were unhappy with the course of the commission’s investigation.

“I was surprised that they were involving themselves in the commission’s decision-making,” Bassett said. “I did feel some pressure from them, yes. There’s no question about that.”

You need to read the whole thing, because it just gets worse for our only Governor. Combine this with the Chron story from Sunday about Perry stonewalling attempts to release information about what he and his staff did with the report Gerald Hurst prepared prior to Cameron Todd Willingham’s execution, and there’s a whole lot of heat being brought. Sooner or later, something’s got to give.

Now turn the clock back to August, when the Beyler report was released, and imagine a world in which Governor Perry accepted its findings, admitted to his role in the wrongful execution, and gave a speech that said while he still believes in and is committed to the death penalty, he will now dedicate himself to making sure that the system works as it is supposed to so that we’ll never again need to ask these questions after an inmate is put to death. Do you think he’d be in a better position politically than he is now if he did that, or worse? It’s not a completely obvious question, since his first priority is the Republican primary, and the voters there don’t really care about trivia like this, but I don’t think this would cost him many votes with that crowd. It might even make him look statesmanlike, and would bolster him in the general election. Now, it’s certainly true that he can and indeed will be favored to prevail in both March and November next year even given his ham-handed behavior. But I don’t think history is going to be too kind to him at this point. Maybe he doesn’t care about that, I don’t know. All I can say is that if he does, it’s too late to do anything about it now. BOR, The Contrarian, Grits, and TPM have more.

Reschedule the meeting

I’ve read a bunch of coverage of Governor Perry’s conveniently-timed decision to replace members of the Texas Forensic Science Commission just before they were scheduled to review the Beyler report on the Cameron Todd Willingham arson investigation, and one thing is clear to me. If Perry really wants us to believe that this is “business as usual, naming new appointments to a commission after their terms have expired” and had nothing to do with his own erroneous notions about the case, there’s a very simple thing his hand-picked replacement, Williamson County DA John Bradley, can do.

Beyler was to address the commission Friday, but Bradley canceled the meeting to familiarize himself with the agency’s work, he said.

“I’ve got so much homework to do, I feel like I’m starting the first day of high school,” said Bradley, who added that he had not yet read Beyler’s report.

Fine, then. Read the report, familiarize yourself with Dr. Beyler’s findings, and then re-schedule the damn meeting. When you say stuff like this, it doesn’t exactly fill me with confidence that you intend to let the facts come out.

Bradley said he learned of the appointment Wednesday morning when he was called by the governor’s office. He said it was not a position he sought.

He said he canceled Friday’s commission meeting because he thought “it was too much to ask for myself and the new members to absorb,” and because he wanted time to review the Beyler report and materials.

Bradley said he is not yet “informed enough” to know if he would ask Beyler to present his report at a future meeting or continue the line of questioning begun unanimously by the commission.

“I just know it’s going to keep my weekend busy,” Bradley said.

If you have any respect for the Commission and its members, then your unfamiliarity with the Beyler report should not prevent you from making a commitment to hold the hearing that was scheduled for tomorrow at another time. You don’t have to set a date yet, but a simple statement that once you have spent the weekend boning up on the materials you will put it back on the calendar forthwith would offer reassurance that this isn’t about politics. Give Dr. Beyler a call – it’s just common courtesy, after all – to check what his schedule is like, and to let him know that you look forward to hearing from him in a few weeks. I really don’t think that’s too much to ask.

UPDATE: Here’s a statement from Hank Gilbert that I missed yesterday, and a good post from Dog Canyon that posits Perry will make this about opposition to the death penalty, rather than pursuing the facts wherever they take us.

UPDATE: More from Burka and EoW.

It’s hard to get a conviction when there’s no evidence of a crime

The main bit of news in this AP story about the Todd Willingham case review is that the Texas Forensic Science Commission will be reviewing the Beyler report about the shoddy investigation of the fire on Friday. I hope, though the story doesn’t say, that this means it will be an open hearing at which the press, if not the public, will be in attendance. It’ll be valuable to get some idea of what the Commission thinks as we wait for their report next year. The most interesting bit of information in this story, however, is this admission from the prosecutor who helped to kill Willingham:

The prosecutor in the case still believes Willingham is guilty, but acknowledges it would have been hard to win a death sentence without the arson finding.

[…]

John Jackson, the prosecutor in Navarro County, about 50 miles south of Dallas, says the original fire investigation was “undeniably flawed,” based on subsequent reviews, but remains confident Willingham was guilty of killing Amber, 2, and 1-year-old twins Karmon and Kameron.

“What people missed is that even though the arson report may be flawed, it certainly doesn’t mean it arrived at a faulty conclusion,” Jackson said.

“I’m an easy target,” he added, shaking his head over media reports on the case “about how we’re all a bunch of bozos.”

[…]

Jackson, the Navarro County prosecutor, said the multiple deaths — not the arson — made it a capital murder case. But he acknowledged that without an arson determination the capital conviction would have been difficult.

“I’m not sure the evidence would have sustained a conviction from a legal standpoint if we hadn’t been able to prove a fire of incendiary arson,” he said.

I suppose I should feel some sympathy for the guy, who’s presumably trying to wrap his mind around the fact that he is directly responsible for putting an innocent man to death. But come on. What he’s saying here is the equivalent of “It might have been hard for us to get a conviction in that embezzlement case if the evidence showed that no money had actually gone missing.” Dude, if you knew then what you knew now you’d never have sought an indictment, much less a conviction. There was no crime. That’s what this is all about.

What I’d really like to know at this point is why he still clings to the idea that Willingham is guilty, given that he’s stumbling towards accepting the idea that there was no crime. I understand why Douglas Fogg, who was one of the investigators in the case, remains convinced of Willingham’s guilt – he seems to think that the whole Innocence Project investigation is some kind of liberal plot to, I don’t know, fluoridate his water or something. But Jackson strikes me as different, and I think over time he’ll come to see the light. Until then, I’d like to see reporters ask him why he still thinks Willingham is guilty. I feel like there’s something we can learn from that.

The New Yorker on Todd Willingham

If you haven’t done so already, you really need to read this in-depth story, as well as the brief followup, on the Cameron Todd Willingham case. Author David Grann gives a thorough overview of the case, and gets into why the “science” that the arson investigators used to build a case against Willingham was complete bunk. I realize that for some people there is no amount of evidence that will convince them that this was a horrible miscarriage of justice, but I do hope they’re in a small minority. It should be clear from reading this that we need more rigor in our forensics, and safeguards in the system that are actually used (the Texas Board of Pardons and Paroles is a sick joke) if we care about preventing another Todd Willingham. Better judges, especially on the appeals courts, are also a key ingredient. But making sure everyone knows about this case is a start. Read it and see for yourself. Thanks to Greg for the link.

More on the Willingham report

Now that the Texas Commission on Forensic Sciences has received its report on the botched investigation of Cameron Todd Willingham and the likelihood that he was convicted and executed for a non-crime, will that help improve forensic standards so that tragedies like this can be avoided in the future?

Questions of investigators’ competence in the tragic case — and of Willingham’s possible innocence — vaulted to center stage last week when nationally renowned fire expert Craig Beyler blasted the accuracy of the early probes in a study commissioned by the Texas Forensic Science Commission.

Beyler’s review joins two earlier expert reports in faulting the work of Texas Deputy Fire Marshal Manuel Vasquez, whose testimony was key to Willingham’s conviction.

Barry Scheck, co-director of the Innocence Project, hailed Beyler’s findings as corroboration of a 2006 study sponsored by his group.

“There is a powerful case for those who have the stomach to look at it that an innocent man in Texas went to his death,” Scheck said. “This was not arson, much less an arson murder case.”

Scheck said he hopes publicity about the Harvard-trained Beyler’s report will boost congressional interest in a National Research Council call for a body to set standards for U.S. forensics laboratories and professionals and oversee education. The research council found serious deficiencies in the current system but stopped short of calling for old criminal cases to be reopened.

The commission could issue a final report in the Willingham case next spring. I can’t wait to see what they say, and if they go where the evidence takes them or if they try to weasel out of it. In the meantime, given enough resources, national standards for forensics (which, I must confess, it hadn’t occurred to me that we don’t already have) should be easy to sell. Just get some “CSI” actors, plus Abby from “NCIS”, and have them do a bunch of promos in favor of the idea. I bet they’d work cheap for something like this. Someone needs to make this happen.

Of course, you will have to overcome guys like this, who would surely become the Sarah Palin of archaic arson investigations if given the media exposure.

That question still stirs passions among those closely associated with the case. Most surprising is the view of Willingham’s first attorney, Waco lawyer David Martin.

“He’s a classic textbook psychopath,” Martin said of his former client. “He’s among the 6 percent of the population who don’t have a conscience.”

Martin, a former policeman, dismissed Beyler’s report. “Vasquez was one of the most competent and forthright witnesses I’ve seen,” he said. “He was an honest man. He did a good job.”

Martin said he examined the burned-out residence and found what he considered clear-cut evidence of arson. “It was quite obvious he poured accelerant on the floor and set the house on fire,” he said.

Yeah, all the experts are wrong and my dime-store psychoanalysis is all you need to know. And the more guys like him say stuff like that, the more they’ll be quoted as “the other side”, as if there were one in this. Grits and the Texas Moratorium Network have more.

Forensic Science Commission gets its report on Willingham case

It’s going to be a lot harder for anyone to claim with a straight face that the state of Texas has never executed an innocent man.

Key testimony that sent a Corsicana auto mechanic to the execution chamber for setting a house fire that killed three young children was based on faulty investigations that ignored eyewitness reports and failed to follow accepted scientific procedures, an expert review of the case concludes.

While the 51-page report by nationally known fire scientist Craig Beyler stops short of charging that Cameron Willingham wrongfully was sent to his death, it dismisses as slipshod the investigations by Deputy State Fire Marshal Manuel Vasquez and Corsicana Assistant Fire Chief Douglas Fogg. Willingham maintained his innocence until his execution in 2004.

“The only statement I want to make is that I am an innocent man — convicted of a crime I did not commit,” Willingham said from the death house gurney.

The men’s investigations into the December 1991 blaze at Willingham’s residence failed to meet current standards of the National Fire Prevention Association or even standards that were in place at the time of the fire, Beyler wrote.

Some of the testimony Vasquez offered to support his claim that the fire was set to kill Willingham’s 1-year-old twins and 2-year-old stepdaughter, Beyler contended, was “hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics.”

Beyler performed the review for Baltimore-based Hughes Associates Inc., a global fire protection engineering firm commissioned last year by the Texas Forensic Science Commission. The commission was created by the Legislature in response to the Houston Crime Lab scandal and other irregularities at state forensic labs.

Commission Chairman Sam Bassett, an Austin lawyer, said the panel will interview Beyler at its Oct. 2 meeting in Irving. Bassett said the commission will seek a response from the state fire marshal’s office. Vasquez died in 1994.

“This is a major step in the commission’s review,” the chairman said in an e-mail, “but it is by no means the end of the investigation.”

For more background on the Willingham case and other questionable arson cases in Texas, see here, here, and here. The Chicago Tribune, whose 2004 article on Willingham got the ball rolling on all this, has their own story, which contains this ending that may prove to be sadly prophetic.

Contacted Monday, one of Willingham’s cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham’s innocence.

“They are definitely going to have to respond to it,” said Pat Cox. “But it’s difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They’ll dance around it.”

There is enough wiggle room to do that, if you’ve got a Sharon Keller/Antonin Scalia view of what “innocence” is. As encouraging as it was to see the state do the right thing in the Timothy Cole case, this is a step I’m not sure the powers that be are ready to take. I’ll be happy to be proven wrong about that. Grits and The Contrarian have more.

Innocence

Lisa Falkenberg examines what Circuit Judge Jacques L. Wiener Jr. referred to as “the elephant in the room” in granting a stay of execution to Larry Swearingen.

The nation’s highest court hasn’t directly addressed whether a claim of actual innocence can be made in late appeals, so federal appeals courts are left to their own interpretations. The 5th Circuit takes the easy route: it uniformly rejects them.

But, apparently, refreshingly, there’s at least one member of the court who disagrees: Judge Wiener.

In concurring with the stay, he wrote a special statement after Monday’s order to address what he called “the elephant” in the room.

Wiener writes that even though the U.S. Supreme Court never “expressly” recognized the right to claim actual innocence in late appeals, justices have made statements that suggest they view the truly innocent in the same light as the insane or the mentally retarded.

Wiener quotes Justice O’Connor: “I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution.”

One would certainly think.

There’s a very real possibility, Wiener writes, that the lower court to which Swearingen’s case was returned “could view the newly discovered medical expert reports as clear and convincing evidence that he victim in this case could not possibly have been killed by the defendant.”

That would represent a change in how the Court of Criminal Appeals has reacted to such evidence on Swearingen’s behalf previously, but I suppose one can hope. What else can you do?

I should note that when I wrote before about how our state leaders have always maintained that Texas has never executed a provably innocent man, there was already a strong possibility that they are wrong in this belief. There’s the case of Cameron Willingham, executed in 1991 for setting a fire that killed his three children. Except that the forensic science used to prove the charge of arson was based on discredited procedures, and multiple experts who have reviewed the evidence today have all concluded the blaze was accidental. In a matter of propitious timing, the Texas Forensic Science Commission is getting close to rendering a final judgment on the matter.

Fire scientist Craig Beyler has been asked by the Texas Forensic Science Commission to conduct an independent review of the case’s forensic evidence.

“He appears to be one of the pre-eminent people in the fire and arson investigation field,” Samuel Bassett, an Austin attorney and commission member, said of Beyler.

Barry Scheck of the Innocence Project, a non-profit organization responsible for scores of DNA exonerations, called the hiring of Beyler an “encouraging sign” and said he hoped Beyler would be able to “get to the bottom” of the case that sent Willingham to a lethal injection.

“It’s essential that this matter is resolved for the sake of those who have been wrongly convicted by unreliable arson evidence, as well as those under investigation in new arson cases,” said Scheck, the Innocence Project’s co-director.

[…]

The Forensic Science Commission was created in 2005 to investigate allegations of forensic error and misconduct in the country’s busiest death-penalty state. The Willingham case is its first capital case.

Bassett said he hoped Beyler would be able to complete his review by early April. Beyler will write a report and may make recommendations to the commission.

It is not clear whether Beyler would conclude whether Willingham was innocent. Even if he finds that the science used at the time was flawed, as the other experts have, he may not take the next step and say Texas was wrong to execute Willingham, though that would be the clear implication.

“If [Beyler’s report] is critical of the arson testimony,” said Bassett, “then theoretically it’s possible that could be the basis for a broader conclusion about the original conviction.”

That’s a fine distinction that unfortunately won’t do Cameron Willingham any good, but may perhaps spur the debate forward, and who knows, might even act as a catalyst for Larry Swearingen. The Chicago Tribune was the driving force behind the re-examination of Willingham’s case – you really should read their 2004 story, written ten months after Willingham’s execution, to get the full background. Thanks to Grits for the link to today’s story.