Bassett: Politics Stymied Willingham Investigation

The former chairman of a state forensic board applauded the current commissioners' report on the arson investigation used to convict Cameron Todd Willingham, a review that recommended wide-ranging improvements in fire science. But he said he's deeply concerned that politics interfered in their ability to take a stronger stance on the case.

"The level of controversy that an investigation might cause should not be a criteria for advancing the cause of forensic science in Texas," Austin attorney Sam Bassett wrote in an email to The Texas Tribune.

Willingham, who was accused of setting fire to his Corsicana home in a 1991 blaze that killed his three daughters, was executed in 2004 despite maintaining his innocence. Following his execution, fire experts questioned the science used to convict him. In an email sent Monday, Bassett said the commission report clearly indicates that the science used to convict Willingham was faulty. And he applauded commissioners' efforts to require forensic science institutions, such as the state fire marshal's office, to inform and correct in cases where science changes. 

"If they had done so, perhaps Mr. Willingham would have had a new trial at which the jury would have had the benefit of an investigation based upon good science," he wrote. "Instead, those who could have done something to shed scientific light on the case did nothing and Mr. Willingham was executed." 

In 2006, the Forensic Science Commission received a request from the Innocence Project, a New-York based clinic that seeks to exonerate wrongfully convicted people, to review the Willingham case for possible professional negligence and misconduct. The commission took up the case 3 years later, when Bassett was chair.

The commission hired arson expert Craig Beyler to write a report of Willingham's case, but days before Beyler was to testify on his findings, Gov. Rick Perry replaced his appointees to the commission and named Williamson County District Attorney John Bradley the new chairman.

In January 2010, the new commission heard testimony from arson experts, including Beyler and officials from the state fire marshal's office. And Bradley called for Attorney General Greg Abbott's opinion on whether the commission had jurisdiction to determine professional negligence, despite other commissioners' urging to keep moving the case forward. The board finalized its report on the case late last week, a document that lists recommendations for fire investigators, lawyers and judges — but explicitly states that the commission will not rule on negligence while Abbott's decision is pending. Abbott has up to 180 days to make his ruling.

In his email, Bassett argued that the commission already has jurisdiction, and didn't need a politicized AG opinion to prove it. "Now, it seems the question is in the hands of an elected official, the attorney general, and I remain concerned that politics rather than science, will influence the decision," he wrote.

He also said the time it's taken to get to this point is the result of offensive political maneuvering. 

"That is not acceptable to most Texans, myself included," he wrote. "I hope that future investigations of this importance are not delayed in this fashion. 

Here's the full text of Bassett's email: 

I was heartened to see the hard work of the Commissioners in pushing through a report on the Willis/Willingham case this week.  The report is forward looking, as it should be.  It does appear to establish that the science which was largely the basis of Todd Willingham’s conviction was flawed.  We will never know if Willingham was innocent or guilty.  However, one thing is certain – much of the “expert” testimony used to convict him was not based upon sound scientific principles.  It is clear that the evolution of fire science showed this to be true well before the date of Willingham’s execution.   The Commission is correct to recommend that forensic entities (such as the State Fire Marshal’s Office) must take measures to inform and correct in cases where science evolves and/or changes.  It is clear that the State Fire Marshal’s Office should have done more to keep pace with science and inform fire investigators throughout Texas once NFPA 921 was published.  If they had done so, perhaps Mr. Willingham would have had a new trial at which the jury would have had the benefit of an investigation based upon good science.  Instead, those who could have done something to shed scientific light on the case did nothing and Mr. Willingham was executed. 

I am hopeful that the Commission will proceed to the final inquiry in the case – whether or not fire investigators and/or law enforcement committed professional negligence or misconduct during the course of the case.  Only recently, the Commission has chosen to seek the opinion of the Attorney General of the State of Texas on the issue of the jurisdiction of the Commission.  It is interesting to me that the jurisdiction question is being raised at this late juncture, at a time when the Commission appears to be seriously considering a finding of professional negligence or misconduct.   The jurisdictional question was considered when I was Presiding Officer and the Commission.  At that time, Commissioner Alan Levy (a prosecutor) and myself both believed the Commission was within its jurisdiction to investigate the Willingham case.  Now, it seems the question is in the hands of an elected official (The Attorney General) and I remain concerned that politics, rather than science, will influence the decision.

The Commission’s journey to this point was not easy.  If you recall, the complaint was originally filed in 2006.  At that time the Commission had no funding.  In 2008, after the Commission was funded, the Commission voted unanimously to proceed with the investigation.  It has taken almost three (3) years to reach this point.  To me, that is not acceptable to most Texans, myself included.  I hope that future investigations of this importance are not delayed in this fashion.  The level of controversy that an investigation might cause should not be a criteria for advancing the cause of forensic science in Texas.  My hope is that the Commission will grow to be more science oriented as a result of the Willingham investigation.  The persistence of scientists on the commission in 2010 and 2011 is what brought us to the point where we are today.  I thank them for their hard work.