A new and confusing attorney general’s opinion might appear to hem in the authority of the Texas Forensic Science Commission over cases dating back several years, no matter how rotten they smell.
But it doesn’t have to turn out that way — not if the commission charts an aggressive tack when it sees that justice has been ill-served. And it should be clear that the commission smells an odor in the Cameron Todd Willingham arson-murder investigation, which ended in Willingham’s execution.
Bewildering guidelines in Attorney General Greg Abbott’s opinion leave the door ajar if the commission wants to take the final steps and decide whether arson investigators were negligent in the Willingham probe. We urge members to settle that question, despite the numerous efforts of Gov. Rick Perry and others to head off a closer examination of this troubling case.
Willingham was executed in 2004 for the 1991 deaths of his three daughters at his home in Corsicana. Expert re-evaluations of the original arson finding have repeatedly criticized the investigators’ conclusions and their methods.
Based on that analysis, the Forensic Science Commission issued a report in April that picked apart the arson probe for outmoded forensic standards. The commission didn’t wade into the matter of negligence, however, because then-chairman John Bradley first wanted an AG’s opinion on its scope of authority.
That opinion came last week, and we are troubled by two of its conclusions.
Bradley asked the AG whether the panel could investigate a lab that was unaccredited. The AG said no. But the fire marshal’s arson lab, which was unaccredited by the state at the time of the Willingham case, is accredited today and is accountable for its past.
The opinion was clear as mud on another central question: Can the commission go back and investigate cases that pre-date creation of the commission itself, in September 2005?
The AG says the commission is free to take up allegations of negligence regardless of date but cannot consider any “specific items of evidence” tested before September 2005. That leaves us wondering exactly how the AG thinks the commission would evaluate complaints about a case if it could not evaluate the integrity of forensic tests in question.
The commission is already on record as saying there is a huge gap between the state of fire science in 1991 and today. That knowledge took a big leap forward through the 1990s as new national standards for arson science gained acceptance by investigators.
Yet Willingham was led into the death chamber in 2004 even as critics of the arson-murder verdict clamored for a new review using modern techniques.
Should Willingham’s arson investigators have said something about the evolution of standards? Absolutely. Did they have a duty to correct the record?
On that, the Forensic Science Commission has been clear. Its Willingham report from April said that forensic investigators must speak up and correct the record when re-examination is warranted.
That didn’t happen prior to Willingham’s execution, and it should have. Silence was tantamount to negligence. There are potentially hundreds of inmates in Texas prisons whose convictions are based on outmoded science, and the state fire marshal’s office can and should be called out on it.
The panel’s purpose
“There’s no statute of limitations on any of the investigations the Forensic Science Commission does. … I think people confuse this. The purpose of the commission was never meant to decide guilt or innocence, but to scrutinize the methodology used in cases, so if there’s a mistake we could learn from the mistake and make the system better.”
— Sen. Juan “Chuy” Hinojosa, D-McAllen, co-author of a bill to create the Texas Forensic Science Commission
“No one should be afraid of the facts. The facts will never change. To say they don’t have the jurisdiction, so what? I’m not sure that was the concept we had in mind, to determine guilt or innocence of Willingham. That’s not my job or the commission’s job. They’re supposed to find the best forensics practices and use that to go forward.”
— Sen. John Whitmire, D-Houston, another co-author