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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