Forensic Science Panel Calls for Review of Past Arson Cases

The Texas Forensic Science Commission on Friday said it would not issue a finding of negligence or professional misconduct against the state fire marshal in its investigation of the controversial Cameron Todd Willingham arson case after the Texas attorney general ruled the body does not have jurisdiction over the matter.

But rather than ending its work on the case, the commission agreed to amend its final report to note a recent agreement with the state fire marshal’s office that will allow for a review of other arson cases that may have resulted from faulty evidence.

“Since we’ve agreed that we are going to abide by that opinion … we feel essentially uncomfortable at this point making a finding of negligence or misconduct,” said commissioner Dr. Sarah Kerrigan, a forensic toxicologist.

The commission met Thursday and Friday for the first time since Gov. Rick Perry appointed Dr. Nizam Peerwani chairman, replacing prosecutor and Williamson County District Attorney John Bradley. It was also the first meeting since Attorney General Greg Abbott’s July ruling that the panel cannot consider evidence in cases older than 2005.  

Willingham was convicted of starting the 1991 fire that killed his three young daughters. He was executed for the crime in 2004. Several fire scientists, though, have concluded that the evidence used to convict Willingham was faulty, raising serious questions about whether Texas executed an innocent man. The Innocence Project in 2006 asked the Forensic Science Commission to investigate the science used to convict Willingham. In an April report, the commission concluded that the scientific methods used in the Willingham investigation were discredited.

But the commission did not finalize its report then. Commission members were awaiting a ruling from the attorney general on the panel’s jurisdiction before issuing a finding of negligence or professional misconduct on the part of the state fire marshal’s investigators who concluded that Willingham set the fire.

Abbott wrote in July that the law prevents the commission from considering evidence gathered or tested before that date. He also concluded that the commission’s authority is limited to DPS-accredited labs.

During the first day of the meeting, the commissioners decided they would use the ruling as a guideline for their decision making. And a lawyer for the commission told the members they could be sued if they chose to ignore the opinion. Based on those concerns, the commissioners said they would not issue a finding of wrongdoing in the Willingham case. But they said it was important to implement more than a dozen recommendations developed during the course of the investigation, including a review of previous arson cases.

A day before the meeting started, Peerwani said he met with Paul Maldonado, the state fire marshal, to discuss implementation of the recommendations. Peerwani said Maldonado agreed to a review of arson cases involving the state fire marshal’s office. “There is no legal requirement for retroactive review,” Peerwani said. “But there is some moral and ethical duty to do that.”

Jeff Blackburn, chief counsel for the Innocence Project of Texas, told the commission his organization and others in Texas would be willing to help with the investigation of previous arson cases and that they have already begun some of that work. Blackburn said he had conducted a survey of more than 800 arson cases and discovered only about five that merited further investigation.

“The arson situation is not as bad as, frankly, we wanted it to be,” Blackburn said. But he added that there could be other cases, particularly murder cases involving arson, that his group missed in the survey.

A review of arson cases to determine whether faulty evidence has led to wrongful convictions has been a main aim of the New York-based Innocence Project, which filed the original complaint launching the commission’s work in the Willingham case. Stephen Saloom, policy director for the national organization, said he was pleased that the review would take place but was disappointed the commission did not take stronger action against the fire marshal’s office. The review of arson cases, he said, should not be left to the discretion of Maldonado, who has said that he stands by the evidence used to convict Willingham.

“It’s hard to understand how the public can have confidence that their recommendations will provide justice,” he said. “The commission is on the right track, but this job is not done.”

Maldonado declined to comment for this story.

Commissioners said they would finalize the Willingham report after their October meeting, and incorporate the fire marshal’s agreements to implement their recommendations.

Saloom said he hoped to convince the commission to take more of a leadership role in ensuring that all previous arson cases are investigated. He said the attorney general’s ruling had made the commission “gun shy.”

“It may have largely neutered this commission’s potential effectiveness and undermined legislators’ clear intent in creating this commission,” Saloom said.

Former commission chairman Sam Bassett, who publicly criticized Perry this week for attempting to squash the Willingham investigation, said Friday that the commission’s decision was a sad one. Bassett was chairman from 2007 until 2009, and the Willingham work began during his tenure. He said he now believes that he was given the boot to provide Perry with political cover.

Bassett said the action Friday was the culmination of Perry’s effort to shelve the Willingham investigation. “Texas can do better,” he said.

The governor's office has maintained that Willingham's case was properly handled by the courts and his conviction and sentence upheld at every point.

Wednesday night, during his first nationally televised presidential campaign debate, Perry was asked whether he had trouble sleeping wondering if any of the 234 people executed during his tenure might be innocent. “No, sir, I've never struggled with that at all,” Perry responded. In the past, he has called Willingham a “guilty monster.”

Perry first drew criticism for alleged political meddling in the Willingham investigation when he replaced Bassett on the commission in 2009 and appointed Bradley, a political ally of the governor’s. Bassett’s dismissal came as the commission was prepared to discuss a report from Dr. Craig Beyler that blasted the science used in the Willingham case.

Bradley also called Willingham a “guilty monster.” He objected to the commission’s involvement in the case, and the pace of the investigation came to a crawl. Before his stint on the board ended this year after lawmakers refused to confirm his appointment, Bradley asked Abbott to opine on whether the panel had jurisdiction over the Willingham case.

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