AG Ruling May Spell End of Willingham Probe

The Texas Forensic Science Commission’s investigation of the science used to convict Cameron Todd Willingham — executed in 2004 for an arson that killed his three children — may be at an end after the state’s top attorney Friday ruled that the panel cannot consider evidence in cases older than 2005.

Attorney General Greg Abbott’s ruling is the latest development in the years-long controversy over the commission’s handling of the high-profile case. Advocates on both sides of the issue claimed the ruling as a victory, though it does narrow the scope of what the commission is allowed to investigate.

The commission's former chairman, Williamson County District Attorney John Bradley, said the decision vindicated his argument that the commission did not have jurisdiction to investigate evidence in cases that occurred before lawmakers created the panel in 2005. 

“We should be spending much more time focusing upon these modern forensic science issues,” said Bradley, who requested the ruling in January. Lawmakers did not confirm Bradley’s appointment this year, and so his term ended with the legislative session. “This AG opinion will correct the course of the Forensic Science Commission.”

Bradley had asked Abbott to rule on three issues: the broadness of the term "forensic analysis"; whether the Willingham case was in the commission's jurisdiction; and if the commission could only investigate work done at labs accredited by the Department of Public Safety.

In his ruling, Abbott wrote that while the commission may investigate incidents that occurred before its creation in 2005, the law prevents it from considering evidence that was gathered or tested before that date. The commission’s authority also is limited only to DPS-accredited labs, Abbott wrote. And, the commission may not investigate fields of forensic science that are specifically excluded in the state’s code of criminal procedures.

Bradley said the ruling should close the commission’s investigation of the Willingham case, because it involved a fire that happened in 1991. “I think much of this involved distractions created by outside entities that had a different agenda, trying to read into this something that wasn’t there,” he said.

Bradley, who was appointed by Gov. Rick Perry to the commission in 2009, said Abbott's opinion also aligned with that of the governor's office. Perry appreciated Abbott's "carefully reasoned opinion," said his spokeswoman, Katherine Cesigner. "Now that these issues have been resolved, the Texas Forensic Science Commission can focus on fulfilling the important role that the Legislature has assigned to it."

The panel's current chairman, Dr. Nizam Peerwani, has not responded to a request for comment.

The New York-based Innocence Project asked the commission to review the case in 2006 and alleged that the Texas Fire Marshal’s office was negligent in the Willingham case and other arson investigations because it employed scientific methods that had been discredited. Multiple arson experts in the Willingham case, including those hired by the commission, concluded that the Fire Marshal had used discredited methods to determine cases of arson.

The Innocence Project’s aim was to get the commission to force the Fire Marshall’s office to inform prosecutors and courts that convictions based on evidence from state investigators could be wrong.  But the investigation turned into a proxy battle over whether Texas had executed an innocent man in Todd Willingham.

Sam Bassett, who led the commission before Bradley, said he disagreed with the AG’s conclusions. He believes the commission has authority to investigate older cases like Willingham’s. And he said attorneys from the AG’s office who attended previous meetings never discussed any concern over jurisdiction questions that had been raised. He said it was frustrating to see the AG’s office, which is headed by a popularly elected official,  inserting itself into the forensic science debate.

“The current position of the State Fire Marshal's Office that the investigators' original findings of arson are supported by fire science is absolutely untenable,” Bassett wrote in an e-mailed statement. “I speculate that this has made a lot of politicians uncomfortable and this has something to do with the timing of the Attorney General's findings.”

Media across the country have raised questions about the Willingham case and how the possibility that Texas executed an innocent man might affect Perry's potential bid for the White House.

But Stephen Saloom, policy director for the Innocence Project, said that although Abbott’s ruling limits the action the commission may take, it should not end the work on the Willingham case and others. He said the Fire Marshal’s office continued to use questionable arson investigative techniques after 2005, and the ruling makes clear that the commission has jurisdiction over those cases. And, Saloom said, the ruling doesn’t absolve others in the criminal justice system from their duty to investigate old cases in which questionable science was used.

“The AG opinion is absolutely without effect on the rest of the criminal justice system’s legal, moral and ethical responsibility make sure justice be done in all past arson cases,” he said.

State Sen. Rodney Ellis, D-Houston, is chairman of the Innocence Project and helped write the 2005 law that created the Forensic Science Commission. He said the ruling should not stop the Willingham investigation or prevent the commission from issuing a ruling that the Fire Marshall was negligent when it did not inform prosecutors and courts that it had used flawed science.

“They had that ‘duty to correct’ prior to 2005, when the Forensic Science Commission legislation took effect, and after 2005, and they have never done so," he said. "They should inform the criminal justice system of their mistakes quickly, and I would encourage the Forensic Science Commission to make such a recommendation to ensure justice is served in Texas.”