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Innocence Project of Texas

Bradley dithers on Forensic Commission

This is an incredibly frustrating article about John Bradley, the handpicked new chair of the Texas Forensic Science Commission.

Bradley told The Dallas Morning News on Tuesday that he doesn’t know when the board will take up its investigations again. He said he needs time to review the commission’s two years’ worth of work and to study the role of its members and the process they should use in moving forward.

“It is too important as a symbolic case, and as much as a real case, for us not to finish that work,” Bradley said of the Willingham case. “But at the same time, I want to make sure the work is done in a way that is professional and has utmost integrity.”

I’ve got to agree with Grits here. Is Bradley saying that the work done so far was not “professional and has utmost integrity”? How would he even know since he says he needs to stop everything they’re doing so he can have the time to read up on all of it?

Bradley said the timetable for the board to act is also unclear because the governor has two more positions to fill, and he wants to wait until all new members are on board.

But that doesn’t stop you from saying that you intend to continue the board’s work, and in particular to reschedule that meeting that you canceled once Perry named you Chair. And now that you are the Chair, you could help move things along by calling on Perry to fill those positions as quickly as possible so that you and the rest of the Commission can get down to all that important work you’ve been charged with doing. Unless you’re so helpless that all you can do is twiddle your thumbs in the meantime, of course.

Bradley said that looking back on cases to see if bad science played a role is important, but mostly as it applies to future cases.

“It is my experience that leadership is best applied to moving forward rather than looking back,” he said.

Bradley said he can’t satisfy critics who believe he was placed on the commission to stymie the Willingham investigation.

“All I can do is reassure people that … from this day forward, all of the decisions the commission makes will be in the best interest of advancing forensic science in Texas and that there is no preconceived notion of how that should be done,” he said.

Dude, all you need to do is say publicly that you intend to finish the work your predecessor started, and most of us critics will back off and give you a chance to prove wrong all of these notions, which are increasingly supported by empirical evidence. The longer you dilly-dally and mouth meaningless platitudes to the press and cancel educational roundtable meetings, the more we have reason to believe we’re right to think it’s all about politics. You are making this hard on yourself, not us. Dog Canyon, BOR, and EoW have more.

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.

Perry sneers at Willingham evidence

This is exactly what I expect from Rick Perry.

Governor Rick Perry today strenuously defended the execution of a Corsicana man whose conviction for killing his daughters in a house fire hinged on an arson finding that top experts call junk science.

“I’m familiar with the latter-day supposed experts on the arson side of it,” Perry said, making quotation marks with his fingers to underscore his skepticism.

Even without proof that the fire was arson, he added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed “clear and compelling, overwhelming evidence that he was in fact the murderer of his children.”

These were the governor’s first direct comments on a case that has drawn withering criticism from top fire experts.

Death penalty critics view the Willingham case as a study in shoddy – or at least outdated – science, and they consider it the first proven instance in 35 years of an executed man being proven innocent after death.

“Governor Perry refuses to face the fact that Texas executed an innocent man on his watch. Literally all of the evidence that was used to convict Willingham has been disproven – all of it,” said Barry Scheck, co-director of the Innocence Project, a nonprofit group affiliated with the Cardozo School of Law in New York that has championed the case. “He is clearly refusing to face reality.”

Well, yeah. He has a Republican primary to win, you know, and reality is a hindrance in that race. Seriously, this is all classic Perry: the arrogance, the disdain for anything remotely intellectual, the refusal to consider the possibility of error, the bizarre belief that the Texas Board of Pardons and Paroles actually plays a role as reviewer of the evidence, the “jury’s verdict is final” mentality – if only he felt that way about civil verdicts as well. The one thing I find curious about this is the contrast to the case of Timothy Cole. I guess that bandwagon was big enough that he felt it necessary to hop aboard. I just hope that the Texas Forensic Science Commission is sufficiently independent that the Governor’s opinion in the Willingham case won’t affect their final report. We’ll see what he’ll have to say about that if they do the right thing. The Contrarian has more.

UPDATE: Grits has a good question for Perry.

Yet another innocence frontier

Scent lineups.

The Innocence Project of Texas said Friday that scent identification lineups, in which trained dogs determine if a suspect’s smell matches the smell of crime scene evidence, are based on faulty science and have led to a number of wrongful convictions.

The group, which tries to free the wrongly convicted, said it will release a report next week detailing at least five cases in which innocent people were arrested following scent ID lineups conducted by a Fort Bend sheriff’s deputy who trains dogs. Two of the five were jailed for capital murder before the charges against them were dropped.

Deputy Keith Pikett has spent about 20 years training dogs named Clue, James Bond and Columbo to sniff out possible criminals in more than 2,000 scent identification lineups. But the lineups have come under attack from some in the legal community, and Pikett is being sued by two people who claim they were wrongly implicated in crimes because of Pikett’s scent lineups.

[…]

Texas and Florida are the only states that regularly use scent identifications, [Jeff Blackburn, chief counsel for the Innocence Project of Texas,] said. The Innocence Project of Florida is reviewing about 20 cases involving a now dead dog handler who worked on three cases that later resulted in exonerations. Florida has since begun to restrict the use of scent lineups.

During a scent lineup, an officer wipes individual pieces of gauze or cloth on a suspect and several other people, and then places them in separate coffee cans, according to the lawsuits against Pikett. A trained dog is presented a piece of crime scene evidence, and is then led by Pikett to each can for a whiff. The dog is supposed to signal Pikett if it sniffs a match.

[…]

The lawsuits aren’t the first time someone took action against Pikett. In 2008, a now former Harris County assistant prosecutor e-mailed his colleagues to warn them about the “unreliable evidence” that came from Pikett’s work with Houston police, according to an affidavit.

Dr. Alejandro del Carmen, the chairman of the University of Texas at Arlington’s criminology and criminal justice department, compared scent identification to primitive criminology theories that identified suspects by body type. The once-accepted theory was that skinny people were too shy and heavy people too lazy to commit crimes.

“As a trained criminologist and a Ph.D., I find it nerve-racking that the justice system would rely on the ability of a dog to predict someone’s guilt or innocence,” del Carmen said.

Go read about Clever Hans if you’re unfamiliar with the potential pitfalls of relying on animals in this fashion. Grits, who has been following this for awhile, has more. The fact that only Texas is doing this should raise red flags about this practice. Maybe when dogs can be called to the stand to be cross-examined it’ll be different, but until then I think they ought to stick to search-and-rescue and tracking fugitives.

UPDATE: More from Grits.

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.

Two for Timothy Cole

On Friday, the House concurred with Senate amendments to HB1736, the Timothy Cole Act that increases compensation to those that have been wrongly convicted. I had said on Monday that it had passed both chambers at that time, but I didn’t realize the Senate had added two amendments that needed House approval. That’s now been done, so unless I’m missing something else, it should now be on its way to Governor Perry’s desk.

Also on Friday, HB498, which creates an Innocence Commission to investigate false convictions and identify reforms to prevent their recurrence, passed the House on third reading. It’s now in the Senate’s hands for final approval. Grits testified in support of this bill on behalf of the Innocence Project of Texas back in March. The commission would be known as the Timothy Cole Innocence Commission, according to a press release I received from Rep. Ruth Jones McClendon, the bill’s author. I’ve reproduced the release beneath the fold. All told, I’d say this has been a pretty decent session for criminal justice reform. There’s never enough that gets done, but I get the impression more has been done so far this time than in recent memory. Grits mentions a couple of other worthwhile bills that have made it this far as well.

(more…)

CSI: Needs Improvement

Looks like Gil Grissom got out at just the right time.

Crime labs nationwide must be overhauled to prevent the types of mistakes that put innocent people in prison and leave criminals out on the street, researchers have concluded.

A 255-page report from the National Academy of Sciences is urging creation of national standards of training, certification and expertise for forensic criminal work, much of which is currently done on a city or state level.

The report’s authors say the lack of consistent standards raises the possibility that the quality of forensic evidence presented in court can vary unpredictably.

[…]

In particular, the report’s authors point out that, with the lone exception of DNA evidence, similar analysis of bite marks, tool marks, or hair samples, cannot provide a conclusive “match” in the common understanding of the term.

Such evidence can show similarities between a suspect and evidence left at a crime scene, but does not provide absolute certainty.

Peter Neufeld, co-founder of The Innocence Project which helps free wrongly convicted prisoners, said the findings marked nothing less than a “seismic shift” in criminal forensic science.

“It’s going to take a national undertaking, a massive national overhaul, to make our forensic science community sufficiently robust,” argued Neufeld.

Peter Marone, the director of Virginia’s forensic lab, acknowledged “there are some issues that need to be addressed” within the profession, but said by and large the report’s recommendations echo what he and other experts have been saying for years.

“We need better education, we need better standardization, and we do need accredited universities,” he said.

[…]

The NAS report recommends Congress create and fund a new, national institute of forensic science to help establish consistent standard for forensic science, certification of experts, and development of new technology. It also recommends that forensic science work be moved out of the offices of law enforcement agencies to foster more unbiased analysis.

Those recommendations were made for the HPD Crime Lab as well, and were an issue in the District Attorney’s race last year. It’s great to issue a report like this, and I agree it’s a huge shift in how we think about these things, but it’ll be little more than interesting bathroom reading unless there’s a federal funding mechanism to make this happen. It’ll also presumably require action in state legislatures as well, to create the replacement labs. So consider this to be the first step on the thousand-mile journey. Grits has more.

Exonerating the deceased

One of the things Eric Berger focused on in his story about the relevance and importance of Charles Darwin some 200 years after his birth was the rise of DNA and its application to criminology. Today, DNA evidence is as well known for freeing the innocent as it is for convicting the guilty. Sadly, sometimes that evidence comes too late to actually set the wrongly-convicted person free, as is the case with Tim Cole of Lubbock. But that doesn’t make his exoneration any less important. Read his story and think how many others like him there must be.

UPDATE: The Lege pays honor to Timothy Cole. Grits has 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.

More on Larry Swearingen

I’ve blogged before about Larry Swearingen, who is on death row and is scheduled for execution on January 27 even though forensic evidence clearly demonstrates his innocence of the murder of Melissa Trotter. Multiple experts, including the Harris County medical examiner who originally testified against him at his trial, now say that Trotter’s body was dumped while Swearingen was sitting in a jail cell. Yet the Court of Criminal Appeals, that bastion of injustice and illogic, has refused to order a new trial. It’s appalling, and is going to be a huge, avoidable tragedy if nothing happens to prevent it.

Now the Chron’s Lisa Falkenberg has picked up on the Texas Monthly story about Swearingen. She adds a few new details, including this:

Attorneys with the New-York based Innocence Project are also working feverishly on requests for DNA testing on the panty hose, Trotter’s clothing and more blood scrapings. They plan to appeal to Gov. Rick Perry’s office for a stay, and have unsuccessfully tried to get newly elected Montgomery County District Attorney Brett Ligon to support a request for DNA testing.

Ligon didn’t return my call. Marc Brumberger, who handles the office’s appeals, said the new evidence doesn’t prove Swearingen didn’t kill Trotter. It only “throws in the prospect” that Swearingen may have initially refrigerated or frozen her body, then had help from an accomplice moving it into the woods while he was in jail.

[Swearingen’s attorney James] Rytting calls that far-fetched theory “guilt by imagination.” He said the DA’s office is grasping for explanations now that their case is crumbling.

“Their case is a lie and they’re going to kill him anyway,” Rytting says.

I shouldn’t be by now, but I continue to be amazed at how utterly pigheaded some DA’s offices can be about this. Have we learned nothing from Dallas’ experience? Let me put this in the simplest terms I can, simple enough that even Brett Ligon and Mark Brumberger can understand it: The actions of the Montgomery County District Attorney’s office will enable a murderer to walk free and possibly to kill again. Even if you don’t care about Larry Swearingen, you ought to care about that.