A recent editorial in the Fort Worth Star-Telegram raised questions about Texas’ entire death penalty system, given the preliminary finding by the Texas Forensic Science Commission that arson experts relied on outdated and flawed science during their investigation of a death penalty case. Cameron Willingham was executed in 2004 for setting a fire that killed his three daughters in 1991 based on this faulty research. Now it appears that the fire may not have been deliberate at all. The Commission did not comment on whether the reliance on flawed science constitutes professional negligence or misconduct. “But,” the editorial stated, “even if the evidence doesn’t clearly show wrongdoing, a conviction based on bad science might still mean a wrongful execution.” The whole death penalty system needs review: “If an automaker discovers that a faulty design is making some of its cars accelerate without warning, the company doesn’t just make fixes going forward, it inspects older models to repair the defect… .All Texans, including those who support the death penalty, should want to know the truth — and to make certain that no one’s life is taken erroneously in our name.” Read full editorial below.

Re-examining the evidence in Willingham case

If an automaker discovers that a faulty design is making some of its cars accelerate without warning, the company doesn’t just make fixes going forward, it inspects older models to repair the defect.

If a material used in manufacturing, such as lead paint, is a health hazard, the government doesn’t just block its sale but requires the product’s removal to prevent harm.

If Texas used flawed science to convict criminal defendants of arson, why wouldn’t it be imperative to re-examine the evidence to make sure that previous findings are accurate and to avoid recurrences?

That’s the big-picture question looming over the Texas Forensic Science Commission’s investigation into the case of Cameron Todd Willingham.

Texas executed Willingham in 2004. The Corsicana man had been convicted 12 years earlier of setting a fire that killed his three daughters shortly before Christmas 1991.

Because of a complaint about the techniques used for that arson finding, the commission hired a Baltimore fire expert to review the case. He concluded that the original investigation used outdated forensic methods and that the fire might not have been deliberate. Now, the commission must decide if officials engaged in negligence or professional misconduct.

After lengthy discussion at a July 23 meeting, commission members agreed to gather more information and accept public comments, then meet in mid-September to hash out a report on the case.

All four members of a panel that looked at the Willingham case seemed to agree that the Corsicana Fire Department and Texas Fire Marshal’s office relied on flawed science to determine that arson occurred. But members didn’t agree on where that leads.

More modern forensic methods were published in 1992, the same month Willingham was charged. It took a few years for them to get widely accepted.

Commission Chairman John Bradley said there wasn’t enough evidence to say investigators were negligent. But other members weren’t ready to draw definitive conclusions.

Sarah Kerrigan, a Sam Houston State University forensic science professor, said it is a stretch to expect field investigators to be familiar with all the details in scientific literature.

“Professional ignorance is not professional negligence or misconduct,” she said. But she supported collecting more input on how widely the updated methods were being used in the early 1990s.

Criminal defense attorney Lance Evans of Fort Worth said he wants to learn what kind of training the investigators received and whether they met whatever standards they had been trained to follow.

Kerrigan said, “There’s no question that the science was flawed, and this has far-reaching consequences for this particular discipline well beyond this case.”

Commission findings could affect scores of inmates convicted of arson.

But the political pressure and national attention surrounding the inquiry shouldn’t drive the report that the commission is expected to vote on in October.

The commission can’t issue a judgment on Willingham’s guilt or innocence. Its mission is to determine the credibility of forensic procedures used in pursuing criminal convictions. Faulty procedures must be corrected.

If official negligence or misconduct took place, the state must answer for that. But even if the evidence doesn’t clearly show wrongdoing, a conviction based on bad science might still mean a wrongful execution. If so, there must be mechanisms in the legal system to make amends and avoid such an unacceptable mistake.

All Texans, including those who support the death penalty, should want to know the truth — and to make certain that no one’s life is taken erroneously in our name.

(“Re-examining the evidence in Willingham case,” Fort Worth Star-Telegram, August 3, 2010). See Innocence or read more about Cameron Todd Willingham.

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