Austin American-Statesman


Thanks to Willingham inquiry, old arson cases getting a new look

By Chuck Lindell

AMERICAN-STATESMAN STAFF

Published: Friday, Sept. 9, 2011

The state fire marshal's office has agreed to review prior arson investigations to determine if criminal convictions were obtained using bad science or now-debunked assumptions, it was announced Friday.

The review was a key concession sought by the Texas Forensic Science Commission as part of its investigation into the science used to convict, and ultimately execute, Cameron Todd Willingham for the 1991 fire that killed his three young daughters.

Last April, the science commission determined that fire investigators, including a deputy fire marshal, relied on scientifically invalid techniques to rule that Willingham intentionally set fire to his Corsicana home.

Uncomfortable that a poor understanding of fire science could have influenced other investigations, the commission's Willingham report also urged Fire Marshal Paul Maldonado to review his agency's files.

Maldonado agreed to the review earlier this week, Forensic Science Commission Chairman Nizam Peerwani announced Friday.

"I thought that was a wonderful thing," Peerwani said. "There is no legal requirement for retroactive review, no mandate under the law, but there is some ethical and moral duty to do that."

The fire marshal's office confirmed the Wednesday meeting between Maldonado and Peerwani but declined to discuss what was said or what agreements were reached.

At Friday's meeting of the science commission in Austin, members expected to sign off on a draft report closing the Willingham investigation with two questions unanswered:

• Were the Willingham investigators negligent in their analysis of the fire?

• Was the fire marshal's office negligent for failing to inform the justice system that advances in fire science could call into question prior arson findings?

The draft report — actually an addendum to the panel's April report on the Willingham case — said those questions and any further inquiries must be dropped in light of a July attorney general opinion. That opinion said state law limits the commission to investigating forensic evidence collected, tested or offered into evidence after Sept. 1, 2005, when the panel was created.

But commissioners postponed voting on the addendum so it could be updated to reflect Maldonado's agreement to review past investigations.

Peerwani said the fire marshal agreed to review cases in which agency investigators offered trial testimony. But realizing that would be a huge undertaking involving decades of files, Maldonado asked for help identifying cases to review, Peerwani added.

The Innocence Project of Texas, based in Lubbock, stepped forward to offer that help.

Jeff Blackburn, chief counsel of the Texas nonprofit, said his organization has already researched more than 850 inmates serving time for arson.

"We thought when we did this study, there would be close to 100 cases of people plainly innocent and needing to come out," Blackburn told commissioners. "What we ultimately discovered was that there were only a handful, I think five cases, that actually merited deeper investigation."

But, Blackburn cautioned, the review of arson convictions excluded a significant area — murder convictions where arson fires were the weapon. "And those are the real complicated ones," he said

Blackburn said his organization would be happy to unleash affiliated law students and forensic science graduate students to help the fire marshal narrow the search.

The science commission also will consult with prosecutors, defense lawyers and court officials to identify potential cases for review, commissioner Sarah Kerrigan said.

The Innocence Project of New York, which filed the original Willingham complaint with the science commission, has spent years pushing Maldonado to review old cases.

Finally granted its wish, the organization reacted cautiously Friday.

Policy director Stephen Saloom said he was pleased with the news but leery of trusting the fire marshal's office to follow through.

The agency, Saloom said, lost credibility when it stood by its arson finding in the Willingham case despite numerous questions raised by modern fire experts and the commission's finding that investigators had flawed understanding of fire dynamics. "The fire marshal's continued faith in the arson evidence in the Willingham case keeps me from having faith in his judgment," he said. "And frankly, it should worry the commission."

Also Friday, the commission closed its investigation into suspect blood tests that led to Brandon Moon serving 17 years in prison for an El Paso rape he did not commit.

Though limits on the panel's authority mean it cannot determine if the Department of Public Safety analyst acted improperly in conducting the 1987 blood tests, commissioners approved a report making several suggestions to speed post-conviction DNA testing.

Pat Johnson, the DPS official in charge of the agency's crime lab, told commissioners that DPS reviewed similar cases handled by the analyst and found two that warranted further DNA testing.

clindell@statesman.com; 912-2569

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