Forensic Panel Urged to Continue Willingham Arson Probe

The Innocence Project is urging the Texas Forensic Science Commission to forge ahead with its investigation of the Cameron Todd Willingham and Ernest Ray Willis arson cases despite a recent ruling from the state’s top lawyer that seemed to limit the panel’s authority.

“As these cases so vividly demonstrate, your investigation is a matter of justice or wrongful convictions; indeed, it is a matter of life or death,” Steven Saloom, policy director at the New-York based organization, wrote in a letter Tuesday to the commission.

The commission is meeting today and Friday for the first time since Gov. Rick Perry appointed Dr. Nizam Peerwani chairman, replacing firebrand prosecutor and Williamson County District Attorney John Bradley. It’s also the first meeting since Attorney General Greg Abbott issued a ruling in July concluding that the panel cannot consider evidence in cases older than 2005. Willingham was convicted of igniting the 1991 blaze that killed his three young daughters. He was executed for the crime in 2004. Willis was convicted based on similar arson investigation techniques and was exonerated in 2004.

The Innocence Project in 2006 asked the Forensic Science Commission to investigate the science used to convict the two men. Since the commission agreed in 2008 to take up the matter, it has become a proxy fight between death penalty abolitionists and proponents.

Bradley, a political ally of Perry’s, called Willingham a “guilty monster” and objected to the commission’s involvement in the case. Before his stint on the board ended this year when lawmakers refused to confirm his appointment, Bradley asked Abbott to opine about whether the panel had jurisdiction over the matter.

Abbott wrote in July that the commission could investigate incidents that occurred before its creation in 2005, but that the law prevents it from considering evidence gathered or tested before that date. He also concluded that the commission’s authority is limited to DPS-accredited labs.

Bradley said then that the decision vindicated his position. “This AG opinion will correct the course of the Forensic Science Commission,” he said.

But in his letter, Saloom wrote that the attorney general’s opinion should not stop the work the commission has done on the Willingham case. The Innocence Project filed the complaint about the Willingham case not as a means to establish Willingham’s guilt or innocence, but in the hopes of identifying cases where questionable science may have been used to convict an innocent person.

The commission, in its April draft report on the Willingham and Willis cases, concluded that the methods the State Fire Marshal’s Office used to investigate those arsons were outdated. But the commission did not issue a finding then about whether the investigators were negligent, because it was awaiting Abbott’s opinion.

Saloom told the commission that the attorney general's opinion should not prevent it from forcing the State Fire Marshal’s Office to notify prosecutors and judges statewide of other cases in which it used outdated scientific investigative techniques that could have resulted in wrongful convictions. The Innocence Project’s complaint, he wrote, was focused on the Fire Marshal’s failure to notify criminal justice officials of potential problems with old investigations. Their worry, he wrote, is that others wrongly convicted of arson are still incarcerated. “Without definitive, focused action from the commission on this point, those monumental problems seem destined to persist,” Saloom wrote.

State Fire Marshal Paul Maldonado in the past has defended investigators’ work in the Willingham case. In an emailed statement today, Maldonado said the fire marshal’s office investigates only a small percentage of suspicious fires in Texas. But he added that he planned to meet with the commission in the coming days to discuss its recommendations and explore ways to improve. “Any outcomes from this discussion will, of course, be shared with the entire fire investigation community in Texas," he said.

It’s unclear what action the commission will take at its meeting, and Peerwani did not respond to a request for comment for this story. But Sam Bassett, an Austin lawyer and past chairman of the commission, said he agreed the commission should complete the investigation. “The commission should take ‘corrective action’ to ensure that those with current or old cases involving arson are not wrongfully imprisoned,” Bassett said in an email. “The science being used in courtrooms throughout the 90’s in Texas has clearly been shown to be invalid in many instances.”