Barry Scheck, co-director of the Innocence Project in New York, recently disagreed with the opinion issued by the Texas Attorney General limiting the power of the Forensic Science Commission to investigate the case of a possibly innocent man who was executed in 2004. The AG’s decision held that the Commission does not have jurisdiction to examine evidence prior to 2005 and therefore could not look at evidence from the case of Cameron Todd Willingham (pictured), who was executed for arson based on highly questionable evidence. In an op-ed in the Houston Chronicle, Scheck described the state attorney general’s opinion as, “yet another stunning example of politics preventing the commission from carrying out the responsibilities that led the Legislature to create the commission in the first place: to ensure that what passes as forensic science in Texas court rooms is actually based on science and to prevent innocent people from being wrongly convicted based on testimony that is not scientifically based.” Read full op-ed below.
Scheck (pictured at right) is also urging the commission to conduct a thorough investigation of Texas Fire Marshal Paul Maldonado, who continues to stand behind the original arson report in Willingham’s case, even though the science used to determine that the fire was arson has been discredited. Scheck wrote, “Maldonado has defended the original investigation of the Willingham case, claiming that the investigation was based on sound science even though this has been disputed by many of the nation’s most respected arson scientists and is in clear violation of accepted standards of the NFPA, the nation’s foremost authority on fire investigation science. This alone gives the commission plenty of reason to proceed with a complete and thorough investigation of Maldonado and insist that he appear before the commission to explain how he could hold this ‘untenable’ position.”
Forensic Science Commission still has work to do
By BARRY SCHECK
On April 15, 2011, the Forensic Science Commission issued an opinion finding that the critical testimony of the fire investigator that led to the conviction and execution of Cameron Todd Willingham was scientifically invalid and inconsistent with current accepted scientific standards of the National Fire Protection Agency (NFPA).
The commission pointedly criticized as “untenable” the decision by Texas Fire Marshal Paul Maldonado to stand behind the original fire investigator’s report and conclusions in the Willingham case. The commission also called for a review by the fire marshal’s office to determine if there are other people who may have been wrongly convicted based on the now-discredited arson science.
Now comes an opinion by the state attorney general that contradicts advice given to the commission by the AG’s own representatives for years and limits the power of the commission to investigate evidence in cases prior to September 2005 in specific cases.
This is yet another stunning example of politics preventing the commission from carrying out the responsibilities that led the Legislature to create the commission in the first place: to ensure that what passes as forensic science in Texas court rooms is actually based on science and to prevent innocent people from being wrongly convicted based on testimony that is not scientifically based.
What’s clear is that the commission should further investigate Fire Marshal Maldonado’s actions throughout this investigation. On at least two instances over the past year — once through a letter submitted to the commission and again through the testimony of his attorney - Maldonado has defended the original investigation of the Willingham case, claiming that the investigation was based on sound science even though this has been disputed by many of the nation’s most respected arson scientists and is in clear violation of accepted standards of the NFPA, the nation’s foremost authority on fire investigation science.
This alone gives the commission plenty of reason to proceed with a complete and thorough investigation of Maldonado and insist that he appear before the commission to explain how he could hold this “untenable” position.
The best explanation for the attorney general’s opinion and Maldonado’s continued intransigence is that it is just politics as usual. That is, the attorney general and Maldonado are protecting themselves and shielding Gov. Rick Perry from potential criticism and political backlash stemming from the fact that a man was allowed to be executed even though his conviction was based on flawed and outdated science and that this fact had been explained to them at the time by one of the nation’s leading experts in fire science.
There is no telling how many other innocent people have been wrongly convicted based on outdated and discredited arson science. We can only hope that the analysts in Maldonado’s office are not continuing to apply bogus fire science.
It is worth remembering that the Innocence Project initially asked the commission to investigate two cases, Ernest Willis and Cameron Todd Willingham, because both men had been convicted and sentenced to death based on the testimony of fire investigators who used outdated science in concluding that the men committed arson murder. Yet the fates of the two men could not have been more different. Willis was awarded a new trial based on ineffective assistance of counsel. When the prosecutor learned from his fire expert that the evidence of arson had long been discredited, the prosecutor promptly withdrew the case, and Willis was exonerated and compensated. Willingham, on the other hand, was executed even though a leading expert notified the governor and the Board of Pardons and Parole about the problems with the arson science before his execution.
These two high-profile cases suggest there could be an untold number of innocent people in Texas prisons who were convicted by similarly faulty evidence. The commission should certainly be allowed to review these cases and the evidence that led to any such convictions.
The commission has shown amazing resilience despite the many political efforts to derail it. And it is abundantly clear based on Maldonado’s continued reliance on “untenable” methodology that the commission’s job is not done. We hope that the commission will use its power to force the fire marshal’s office to explain exactly where it stands on the outdated forensics that has already cost one man his life and are almost certainly affecting the lives of many more.
Scheck is co-director of the Innocence Project.
(B. Scheck, “Forensic Science Commission still has work to do,” Houston Chronicle, August 14, 2011). Read more about Cameron Todd Willingham. See Innocence.
