Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Thanks in large part to Cameron Todd Willingham and the work of the Innocence Project the problems with arson investigations are now well known. Almost everyone now concedes that there prior convictions that are flawed by investigations involving false assumptions and bad science (if it can even be called that) While courts - and individual judges - have publicly acknowledged the problem, they have been slow to actually do anything about it. Hopefully that may be changing.

Several recent cases show that the courts may be starting to take this seriously. The Third Circuit Court of Appeals last week sent a case back to the District Court for an evidentiary hearing. In doing so the court suggested that a conviction based on faulty science might constitute a due process violation.

In another case a federal magistrate in California in considering whether George Soulitous' 1997 conviction should be set aside because it was based on a faulty investigation. According to a former ATF agent:

Steven W. Carman, a fire investigator for 20 years with the U.S. Bureau of Alcohol, Tobacco and Firearms, said Modesto investigators relied on fire patterns and other forensic evidence that amounted to "a laundry list of things we used to believe broadly in this profession that have since been widely discounted."

Finally, an Ohio inmate is challenging his arson conviction before the parole board.

There is no doubt that these attacks are going to continue, as more cases are identified. Let's hope the Court's are up for the challenge.

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If you read this blog you know I'm not a big fan of the way forensics is used in criminal cases. Many of the problems are the result of using techniques and processes that were not designed for determining a person's guilt or innocence. Another problem is that the scientific method does not parallel a criminal trial.

Under the scientific method you develop a hypothesis, and then try to prove it wrong. In most criminal  cases it is the opposite. You try to prove someone is guilty, even if there is evidence to the contrary.

What made me think about this a decision out of New Hampshire (New Hampshire v. David McLeod) criticizing John Lentini, one of the leading arson experts in the country. Mr. Lentini's position is that you should start off with the presumption that the fire was an accident. He has a couple of reasons for that. One is that most fires are accidents. The more important one is that everyone is presumed innocent, so shouldn't you follow that in an investigation. The New Hampshire Court didn't like that approach, and prevented  him from testifying.

The decision tries to portray Mr. Lentini as having an agenda - which he doesn't have. He has a presumption. What is the alternative - that you go in with an open mind - that's contrary to the scientific method, which the court believes it is following.

The problem with Mr. Lentini is that he's honest. He's admitting how he approaches the investigation. Those on the other side are not going to admit they assume the defendant is guilty, because that wouldn't look fair. Instead, they claim they will start of neutral.

The court relies on NFPA 921, which is the National Fire Protection Agency's guide to fire investigation. There's nothing wrong with that, and in fact it should be accepted - as long as you except everything in it, and not merely that which supports your position.

The NFPA calls for a systematic approach, and the court equates that with the scientific method. While that's part of it, so is testing a hypothesis, which you can't have if you are neutral. The end result in an arson case is that it was either an accident or arson. If you cannot disprove it was an accident a defendant should not be found guilty.

I don't know if the scientific method works or not in criminal cases. You are not dealing with absolute truths like you are in science. Instead, you are dealing many times with possibilities - what is more likely. Yet science still must play a role. If it is going to be the determining role - as it is in arson cases - I think fairness dictates Mr. Lentini's approach. Unfortunately, since that approach makes it more difficult to obtain a conviction, I doubt the court's will agree.

 

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Thanks to the Attorney General opinion the Forensic Science commission officially closed the lid on the Willingham investigation. A supposed bright spot is the decision by the State Fire Marshall's office to review old cases. Admittedly I have been suggesting that for a long time. The question I have is whether the Fire Marshall's office is the proper entity to review cases. An even more important question is what happens when they find a case that is based on faulty testimony.

As for the first question, I have already criticized the Fire Marshall's office for their support of the Willingham investigation. While it 's admirable to not abandon a sinking ship, they lost all credibility by trying to defend an investigation that cannot be defended. The whole reason for reviewing old cases to determine what impact the the false assumptions used by investigators had. If the Fire Marshall's doesn't accept the premise that false assumptions and bad science were used, then how effective can their review be?

The second question is more basic - what happens if they actually find an investigation was flawed. As I pointed out earlier, relief through the courts may now be non-existent. If the court's won't grant relief what is left - an apology - oops, sorry your going to have to stay in prison even though you probably aren't guilty. I suppose the parole board/governor could grant relief, but I'm not  holding my breath on that.

A thorough review of old cases is a good first step. But it is only a first step. We already know what they are going to find - lots of people that shouldn't  have been convicted. Unless we come up with a way to fix that problem then review is nothing more than a  useless academic exercise.

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The Court of Criminal Appeals recently attempted to answer the question of when advances in science can be used to obtain relief after conviction. The usual situation is that a defendant was convicted years ago, and a key part of the State's case was forensic evidence. Since science (or at least our understanding) evolves, what was once well established may now longer be. Exhibit A is arson. In the past the so called experts relied on pour patterns and other indications which we now know exist in almost every fire. The problem is what to do with this new evidence.

The Court of Criminal Appeals has held that a defendant can obtain relief through habeas corpus when they can establish actual innocence based on newly available evidence. You cannot simply argue you were actually innocent; which would basically be retrying the case. You must establish  there is new evidence available that establishes your innocence.

The court address the issue of "new evidence" in Ex Parte Spencer. There, the defendant presented a forensic visual expert (I haven't heard of one either -  it sounds pretty cool), who testified the witnesses could not have seen what they claimed they saw. The court held that was not newly available evidence. They focused on whether the evidence as it originally existed could be retested or reevaluated. Since the scene had changed, and conditions were different, that could not be done..

In my opinion, the court fell into the trap of evaluating everything against DNA evidence. There is no doubt that everyone considers DNA evidence to be the gold standard, and as a result everything has been compared to that. In DNA testing the original evidence is retested, and there is no problem in doing so. However, not all advances in science fit easily into that categorization. Arson is one that immediately comes to mind.

Under the test adopted by the court, the advances in our understanding of fire dynamics would not qualify as new evidence. The scene would have long been destroyed, and pictures would probably not be sufficient. I'm sure there are other areas that will pose the same issues.

As long as forensic science is used in criminal cases, the courts must be open to reevaluating those cases when necessary. Science, and our understanding of different things is constantly evolving;. what we hold as truth today, may deem be discredited tomorrow. To allow a conviction to stand on discredited terrorist testimony can certainly not be considered fair or just.

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The Texas Forensic Science Commission finished - at least for now - their review of the Cameron Todd Willingham case. The commission chairman - John Bradley - successfully discharged  his duty, which was to derail any inquiry into the innocence of Willingham. He was able to do so by seeking an attorney general opinion on the scope of their jurisdiction. His heavy handed tactics backfired in part though, as the commissioners staged a mini-revolt last year. The result of that was a hearing on Thursday and Friday.

While they did not make a determination on innocence, they did something far more significant. They acknowledged that arson science had evolved over the years, and  prior convictions may be in question. Review of those cases was suggested, although the scope of such review was not set forth. This is exactly what many - me included - have been requesting for years.

The task is daunting, since there may be thousands who have been convicted on faulty testimony. The first question is no doubt going to be who is responsibility for reviewing the case. In my opinion, it clearly should not be the State fire marshall's office. They have clearly demonstrated they are not competent to conduct such an investigation, since they still refuse to admit the testimony in Willingham was faulty. Scott Henson suggested the attorney general's office, and that would at least be a better choice than the State Fire Marshall.

One of the fundamental concepts of due process is that the State must disclose exculpatory evidence; that obligation should continue even after a defendant is convicted. If that is true, then the prosecutors who obtained the convictions have an obligation to review them. They should have records of those they have prosecuted for arson, and at a minimum notify those defendants or their lawyers.

I would certainly expect the Innocence Project to have a role, and no doubt they will assist in some cases - as they are already doing. Resources are tight though, and unless they State is willing to fund a full review, the burden should be on the state.

I sincerely hope this is a first step. Time will time how many people have been convicted on faulty testimony.

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Recent advances in science have created a problem in handling old cases where faulty science was used. A problem that is if you are interested in seeking justice. Unfortunately, justice is not the primary focus in post-conviction litigation. The system is far more concerned with protecting old convictions - "finality" is the catch phrase used to wipe problems under the rug.

The problem is highlighted in Scott Greenfield's recent post about problems with the Nassau county crime lab. The problem is what to after you discover the problem. As he points out, the fact that there was an error doesn't mean that a defendant is innocent. No doubt that will be the primary argument of the DA's office. After all, you wouldn't want to let a guilty defendant go just because the lab screwed up would you?

In some cases establishing error is the equivalent of establishing innocence. If the lab says the substance was cocaine and it was actually baking soda, then the defendant can't be guilty of possessing cocaine. However, the link is not so clear in other cases. Evidence - such as DNA - might place a defendant at a scene. There may be other evidence that puts the defendant at the scene, and in those cases he would probably have been convicted without it. But what if it's an important link?

Regular readers - all 2 of them - know I have been involved in several arson cases. In those there is no doubt the evidence establishing arson was faulty. However, in most cases you can never conclusively establish innocence. If it wasn't arson, it wasn't a crime. Proving a negative is always difficult - if not impossible - to do. Just because the State can't prove it was arson doesn't mean you can prove it wasn't.  Circumstantial evidence is always an important part of those cases, and the State will still emphasize that - exhibit A is Cameron Todd Willingham.

Hopefully, the Texas legislature is going to address the problem in part by amending the writ laws. The goal is to make it easier to use scientific evidence; generally you need new evidence, and that is often  a problem when alleging faulty science. the problem that still remains though is how to establish harm. If you have to establish innocence, there will be few defendants who benefit.

My solution is to shift the focus away from innocence. Instead, look at whether there is any doubt that the defendant would be found not guilty if the current science was used. In other words, if the State didn't have experts who could testify that the fire in Willingham was arson, would he have been convicted. No matter how much Governor Perry and his henchman scream, I think everyone else agrees the answer to that question must be no.

Innocence is great if you can prove it. It's not the controlling inquiry though. Sometimes justice requires releasing those who may not be able to establish innocence; if they never would have been convicted in the first place is it really fair to make them stay in jail? I think not.

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Thanks to the Charles Smith Smith blog I was able to read the keynote address to the 2010 Fire Investigation Science and Technology Conference. The address was given by a leading arson expert - Daniel Churchward - and titled "Fire Investigation is Still Art and Not Science".

Mr. Churchward pulled no punches, and I imagine was not the most popular person at the conference. Which I think make his remarks even more significant.

For starters, he criticized the training of fire investigators, noting that they don't have to meet any standards, nor do they need to show any level of competency. He also criticized the refusal to accept fire science by many veteran investigators because it was contrary to what they have always been taught. Much of what they have been taught is by people they respect and trust, and by accepting something different they have to accept that were misinformed, and have been doing it wrong for years. He quoted from Carl Sagan who said that "If we've been bamboozled long enough, we tend to reject any evidence of the bamboozle."

One of the more interesting subjects he addressed was the effect of not having understanding of the chemistry and physics as it relates to fire initiation and growth. He notes:

Without a rudimentary knowledge of such relationships, the fire investigator can only apply his acquired logic to what he sees. Logic is a terrible means to scientific thinking. It is what got us a flat earth, witchcraft and crop circles. This lack of scientific educational baseline creates the probability of considerable error in any hypotheses formed by this analysis

He criticized the so called tests or experiments they do at fire schools using the example of igniting a flammable liquid in a room and observing what happens. Without scientific knowledge you  have now way of determining what was observed was unique, or present in fires with no flammable liquids. He also notes that the lack of basic knowledge prevents investigators from being able to "kick the tires of some proposed theory they have just heard at a fire seminar."

Here's what else he has to say about the lack of basic knowledge:

The lack of knowledge of physical and chemical phenomena allows for the development of incorrect beliefs by fire investigators. It tolerates the creation of myths and rules of thumb. Further, it allows for the perpetuation of the process by letting that same investigator, as he gains experience, to “educate” his younger associates on the same misconceptions. It gives that poorly educated investigator the perception that he is knowledgeable and therefore correct in his determinations.

Mr. Churchward also talks about the concept of "negative corpus", which is the methodology whereby one determines the cause of fire by elimination of all identified or perceived ignition sources within an area of origin.  The problem -  among many - if what if you get the area of origin wrong?

Many of the problems can be traced to a lack of training. He describes a test he did at a training seminar where they asked attendees to determine what happened by looking at fire damage. The result was a 75% failure rate. In other words, the chances are way better than 50-50 that the fire investigator gets it wrong. It doesn't send shivers down your spine the next part should.

He talks about the inherent bias most investigators have, which causes them to focus on factors that have nothing to do with the fire's inception. Those include:

1. The fire victim was not financially secure

2. The home was either for sale or in need of repair

3. The fire victim been in the structure just prior to the development of the fire

4. The fire victim was either unsavory or had previous experiences such as another fire or previous arrests

5. The physical evidence from the fire cannot be explained by the investigator

As he notes, if you have a fire today and one of those circumstances exist you are going to experience a very unpleasant situation.

Mr. Churchward also notes the bias that fire investigators must have. Insurance companies want answers - preferably one that says arson so they don't have to pay. As he notes, telling a client you don't know what caused the fire is not going to get you much work.

He also lays the blame on the judges, noting that rarely will a fire investigator be declared unqualified. Most of those are in civil, and not criminal cases.

I'm sure Mr. Churchward's call for more training, and mandatory certification was not well received. My guess is that if you required certification exams which mirrored real world situations most would be out of a job. Nevertheless, it's nice to see someone who knows what they are doing addressing the problem - in hostile territory no less.

 

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The Texas Forensic Commission met last week, and as usual they provided a lot to write about. As usual, Dave Mann and the Texas Observer have by the far most complete coverage on the meeting.

Unlike prior meetings, there is more to talk about than what a complete lackey for the governor John Bradley is. Don't worry, He's still focused on making the governor look good - i.e. prove Cameron Todd Willingham was really guilty. He took the lead in grilling and ridiculing anyone who would suggest otherwise. But the real shocker came from the State Fire Marshall's office.

For some inexplicable reason they chose to send a lawyer - Ed Salazar. He proceeded to try and explain how the original investigators got it right. According to Mr. Salazar, the only thing they should have done differently was write a more detailed report. This was after the morning had been spent tearing apart every part of the original investigator by two of the leading fire scientists in the country - John DeHaan and Craig Beyler. Everyone except Bradley received the testimony with a heavy dose of incredulity. He stood firm though, and was followed by an investigator with the Houston Fire Department who had the major "Duh" statement of the day - there's some conflict between scientists and fire investigators.

To show how ridiculous their position was, here is how they explained their continued reliance on  pour patterns. They recognized that "fall down" debris could create the same impression. However, the first thing they did was sweep away everything to see if there any patterns - without documenting anything. So there is no way to tell if he debris could have created the pattern. I had thought that everyone - even non-scientist fire investigators - recognized that "pour patterns" couldn't tell you anything. Guess I was wrong.

Commission member Sarah Karrigan took the lead in asking whether there is any obligation to go back and review old cases. Mr. Salazar never answered the question, which means a big no. Of course, why would they need to go back and review old cases when everything seems to be just fine.

Unfortunately, this is not a knew situation. Despite the constant stream of exonerrations most of those in law enforcement refuse to recognize their is a problem. They may accept that someone else could get it wrong, but not them. When someone recognizes there might be problems - a Craig Watkins for example - look at what happens. Even if Dallas had problems no one else do you really think that if other DA's took that same approach he results would not be the same? Yet it is easy to go in blissful ignorance; as long as no one looks there aren't any problems.

It's pretty obvious that the Fire Marshall's obvious didn't know what they were doing then, and still don't. That should be major concern to everyone; if the leading agency in the State can't be trusted to get the right result, then how can we have confidence in any of the prior arson convictions. I think the obvious answer is no. There's no telling how many people are in jail for accidental fires; and we are never going to know until an independent review is done. One that the Fire Marshall is not involved in. I've said before that we need to do away with the State Fire Marshall's office - that should even be more obvious now.

As long as no one looks, everything is just fine. It's time to start looking.

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The State Fire Marshall system has always been a mystery to me. There is an inherent conflict in having arson determinations made by the body that regulates insurance companies; companies that have an interest in seeing fires declared as arson, so they can avoid paying claims.

There's also the problem with the competence of fire investigators in general. Over the last several years more people have recognized the role of science in arson investigations. The result has been that many of the factors relied by arson investigators are not indicators of arson, but instead, things that exist in almost all fires. The problem is at the forefront of public opinion due in large part by efforts to focus on the case of Cameron Todd Willingham - who almost everyone agrees was convicted on findings that have now been discredited. I should now say everyone but the State Fire Marshall.

The Texas Forensic Science Commission is meeting today to decide what to do about the Willingham case. Following their last meeting they solicited comments, and a number of experts provided their opinions. The main question was what the state of knowledge was back in 1992 back when the fire was originally investigated. That was around the time NFPA 921 was published - which everyone agrees was slow to be adopted by the fire investigators. As a leading expert - John DeHaan notes - there was always a conflict between the scientists and those in the field. It took awhile, but by now most agencies view NFPA 921 as the guide for fire investigations.

There was a reason why the Forensic Science Commission was focusing on what was known at the time; they were trying to give the fire marshall a pass. Even the commission chairman - John Bradley - has conceded that the investigation was flawed. There is  a reason for that - every expert who has looked at the case agrees the investigation was bad. Apparently the fire marshall - Paul Maldonado - didn't get the hint. He published a response standing by the original findings. According to Mr. Maldonado, the principals and techniques they used in the original investigation "are linked to NFPA standards subsequently put in place." In other words, he admits they should be judged by the standards that are now accepted.

It gets worse. He actually discusses the evidence, and how the original findings were consistent with NFPA 921. The argument basically tracks that used at trial, which is what has now been discredited. If Mr. Maldonado believes the original investigation and findings were conducted in accordance with current standards he should be replaced immediately. Even someone with no fire science background can see how NFPA 921 contradicts the original findings. Apparently, Mr. Madonado concedes that investigations are being conducted just as they were in 1992.

I find it difficult to believe Mr. Maldonado seriously believes what he claims. Instead, I think it is a blatant attempt to save face. If so, it shows the inherent problems with the fire marshall's office. Any "scientific" entity should be concerned with the truth and not saving face. It's time to turn arson investigations over to those who are willing to apply the science, and apply the scientific method. That's not going to happen until we change the system.

 

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On Friday the Texas Forensic Commission held their first meeting under new chairman John Bradley. The fact that it was held in Harlingen should have told you everything you need to know. He wanted to make it as inconvenient as possible for people to attend - and it didn't take long to find out why.

Thanks to the Innocence Project the meeting was streamed live over the internet. For those able to stay awake they were able to witness a primer on how to abuse power and hijack a government commission for your own purposes. As usual, we could rely on Scott Benson and Grits for Breakfast for coverage. He has posts here and here.

As you remember, last year the commission was set to hear from Dr. Craig Beyler who had been hired to produce a report on the Cameron Todd Willingham Case. The day before the hearing Gov. Perry removed the chairman, and put Mr. Bradley in his place. His first action as the new chairman was to cancel the hearing. He then started talking about developing rules for procedures for conducting business - in other words, he didn't want to do anything substantive. So after several months we finally have the first meeting under chairman Bradley. He had rules all right - of course he didn't share those with the other members of the commission; no doubt because he didn't want them to have a chance to read them.

Before the meeting there had been a discussion over whether the commission even has the authority to enact rules. Most thought they didn't. The Innocence Project hired a prominent New York Law firm to furnish to an opinion. Their conclusion was that they had no such authority.

As it turns out, Mr. Bradley knew this all along. After forcing the new rules down everyone's throat - and demanding a vote even though they were looking at them for the first time - he acknowledged they weren't really binding. As Capt. Jack Sparrow said about the Code, they are really "more like like guidelines". That's not the only thing he backtracked on. He assured the members that the new rules wouldn't apply to pending cases. After they voted to approve them, he said they would apply to the pending cases. Of course I guess it really doesn't mean much since they are really only guidelines.

Mr. Bradley definitely showed his prosecutorial bent, and pulled out all the tricks. Prosecutors are used to getting want they want. They also control the information, and are prone to demanding decisions without allowing adequate time to consider the options. He certainly got what he wanted here - or did he really get what Gov. Perry wanted?

I have serious doubts that Mr. Bradley came up with those rules on his own. After all, he does have a full time job. The commission so far doesn't have a general counsel, and only has one staff person. So where did they come from? My guess is they came straight from the governor's office - although that is something we will probably never know.

So where does that leave the commission? The idea behind the commission was to create a forum to address problems with forensic science. It started with Williingham - which pointed out the problems with arson investigations. There have also been problems with labs, and individuals. The commission should be a forum to address those issues; to decide if there was a problem, and  how to fix it. That has to include what to do in those cases where mistakes have been made.

The Courts are not designed to referee disputes over forensic science. A commission - made up of scientists and lawyers - and without the political pressure judges face, is an ideal forum. A commission can hear from all sides, and consider more than one individual case. Unfortunately, it doesn't look the commission is going to do anything here other than waste a lot of taxpayer money.

I'm not sure what Mr. Bradley has in mind - once they actually get down to business. I have serious doubts that he wants to correct mistakes that have already been made. He has already indicated a desire to be prospective. What's more troubling is the rules he wanted to impose focused only on intentional acts. Most of the problems in forensic science aren't intentional. They are made because people don't know any better. If you address only intentional mistakes you might as well not even look at cases like Willingham - the investigators there were arguably applying the tactics that had been used for years.  We now know it was wrong.

The legislature is concerned about this, and there have already been two hearings held. I don't know what the answer is, but I do know It's not the current commission. We would be better off scrapping the whole thing and start over - and save a lot of money in the meantime.

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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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I hate to question a good thing - the saying "don't look a gift horse in the mouth" comes to mind. But Over the last week I have been amazed at the coverage being given to Cameron Todd Willingham. You can't skim the blogs or the newspapers without seeing some discussion of the case. (For a great collection of the coverage see Grit's recent post) I'm glad people are looking at this issue - I only wonder why it wasn't done earlier.

Todd Willingham's story of an innocent man being executed based on junk science is not new. Steve Mills and Maurice Posely were the first to cover the case. The two veteran Chicago Tribune reporters were the first to cover the case - in 2004. Their story concluded that Willingham was probably executed for an accidental fire. The story got some coverage in the national media, but nothing close to what the current coverage is. The New York based innocence project was also aware of the case; they seized upon the similarities between Willingham's case and that of Ernest Willis. Although the cases were almost identical, the result was not. Willis was freed - with the help of the prosecutor - while Willingham was executed. The Innocence Project solicited the leading arson experts in the world to review the case. They released their report in 2006; their conclusion - the fire was not intentionally set, and the testimony used to obtain the conviction was nothing more than a collection of myths and "old wives tales."  This report received a little more traction, largely because of the connections of the Innocence Project. However, it quickly died out.

One thing the report did accomplish though was that it pushed the State of Texas into action. The Forensic Commission was created, and the first subject studied was the Willingham and Willis cases. Even though they had a  report from a panel of leading experts, the commission went out and hired their own expert. Not surprisingly (or perhaps surprisingly for some) the state's expert came back with the same conclusion reached by the panel - the fire was nothing more than an accident. At the same time - not by design because I know the reporter had been working on this for several months - the New Yorker article came out. The combination of the two led to the almost daily discussion now about this case, and what happens next.

My question is why wasn't this a story back in 2004, or at least 2006? You cannot estimate what impact an earlier discussion would have had on views about the death penalty, as well as arson investigations. So while we are debating what happens next, maybe we should also be considering why we weren't talking about this earlier.

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So far I haven't added my comments to the discussion of the execution of  Cameron Todd Willingham. Since I was personally involved, I've struggled with whether I should comment. I have never commented on clients on their cases. Their are a number of reasons for that, one of the big ones being privacy. Their lives have become more public than they ever wanted, and I don't want to add to that. I'm going to make an exception though for someone I still consider a client even though he is no longer with us. I've had to carry this around for over 5 years, and this forum is as good as any to talk about it; I also need to get it off my chest.

By now, everyone knows the story. The Chicago Tribune was the first to report the conclusions of the expert the Texas Forensic Commission hired to review the case of Cameron Todd Willingham. He reached the same conclusion as all the other experts who have reviewed the case in the last few years - there was no arson. That would good news except for the fact that the State has already executed Mr. Willingam for killing his children - having done so in February 2004.

Most criminal defense lawyers - at least those who care - have cases that haunt them. I have my share, and this one is at the top. I represented Todd after he had been convicted, and after his direct appeals had been denied. I knew from the start that there were problems with the case, and came to believe his adamant protestations of innoence. Like others, I initially had no reason to doubt the fire was intentionally set, and looked at other possible suspects - of which there was no shortage.

Shortly before Todd's execution date I had the good fortune to come in contact with Dr. Gerald Hurst. Dr. Hurst is a scientist, who is also an expert in fire science. He had worked on several other cases, and successfully convinced authorities that a fire was not intentionally set - i.e., not arson. Dr. Hurst agreed to review Todd's case, and I sent him all the material. It didn't take him long to tell me it was all BS (to put it politely). He started working on an affidavit, which he prepared. After reviewing the affidavit I did not see how anyone could  have a doubt that this was not an arson. But then, this is the court system - in Texas, no less.

I promptly filed a successive writ. I knew those were rarely successful, but I naively believed we had a shot. At a minimum I thought we would get  a hearing. I didn't expect any relief from the trial court, and didn't get any. I thought the Court of Criminal Appeals would step in, and at least order a hearing so Dr. Hurst could present his findings, and the state could question him. Why I ever thought the Court would take pause at the execution of someone who was actually innocent I'll never know. I'm not sure how much they read, but for their sake I hope it wasn't much. I don't see how anyone could live with the knowledge that they let someone be executed when there was a serious question about their innocence. I recognize Courts wrap themselves in procedural rules, and probably looked at this as nothing more than a last minute attempt to avoid execution. After all, as Justice Scalia recently stated, Courts can't be concerned with actual; they simply have to determine if a trial was fair.

Ever the optimist I continued to have faith in the Federal Courts. I knew they took death penalty cases seriously, and had hope they would see the serious questions that had been raised. Those hopes were dashed quickly; the procedural Gods won out once again. The case had already been through the courts, and they didn't see any reason why it shouldn't got through again.

I still had some hope - I know, my wife has always wondered about my seemingly naive sense of optimism. There was still the governor, and the Parole Board. All I wanted was 30 days so we could try to get back in court. I don't know what the parole board actually saw - there was never a hearing, nor did they all get together to discuss it. Instead, they all submitted their no votes, and i was notified of those votes by fax. That left the governor; i didn't have much hope, but I still had a little. Shortly before 6:00 p.m. (the time scheduled for execution) I got the call. It was one of the most upsetting conversations I have ever had. It's probably a good thing it wasn't in person, because I would probably now have a criminal record. The call came from a young man, who I am guessing probably hadn't been out of school too long; he probably was even a lawyer. I got the impression the job of notification fell to him, and it was something he needed to get out of the way before he could go out and have drinks with his friends. What he told me has been seered into my brain - and it is probably I will never get out. What he said was that  the Governor had looked at the case, and he didn't any reason to delay the execution. Really!!!!! You have a nationally recognized expert telling you its not arson and that's not pause for concern?

I promised that I wasn't going to give up on  his case, and I haven't. Thanks to the Innocence Project, and several reporters, the story will not go away. Barry Sheck and the project saw the problem with the case; what made it worse that another defendant, Ernest Willis had been released on almost identical evidence, and with the same expert. The only difference was the prosecutor. They submitted the two case to a panel of experts, who issued a report that has led the way in pointing out the myths that have been associated with arson cases. Two reporters from the Chicago Tribune also took the case, and published a terrific piece of investigative journalism. Through those efforts, the Court realized they had do something, and appointed the Forensic Commission. That commission took on the Willingham and Willis cases, and retained an expert to review them, which is where the current report came from.

So far every expert that has reviewed the evidence has concluded there was no evidence of arson. So Governor Perry, there was a reason to delay the execution. The rush to carry out the execution, and make sure "justice was served" resulted in the most serious miscarriage of justice imaginable - the execution of an innocent person.

I sincerely believe that we all have will  have to eventually answer for actions. I don't know this for a fact, but I'm guessing that you won't be able to get away with  the excuse that you were just following the law, or it was someone else's decision. The buck has to stop somewhere, and I believe it is with each person who  has a chance to make a difference. In death cases, the consequences of being wrong are irreversible. You can't come back and say I'm sorry - just ask Todd's family. If there is any question of innocence, is it too much to check it out?

If there is one thing I wish judges and prosecutors could get out of this case is that it could have just as easily been you. I'm reasonably sure that no one wants to go through life (not to mention eternity) knowing that they participated in the execution of an innocent person. Most people think that would never happen to them; they tell themselves they would recognize the situation. History if full examples of situations that we look back on and believe we would have done something. We don't like to believe we would have sat on the sidelines while Hitler exterminated jews, or people sold human beings into slavery. The fact is, the majority of people did just that. It's not something new. I don't think it was a coincidence that Catholic Church's reading for the day the story came out,  was from Matthew. Chapter 23, where Jesus calls the scribes and Pharisees hypocrites for saying if they had lived in the time of the prophets they would not have shed their blood. In fact, they ended up doing that very thing. They couldn't see Jesus right in front of them.

The lesson from this should be that the next person who comes before you and says they are innocent might actually be. Is it too much to accept the possibility that it might be true?

In my career, I've seen people convicted who I had no doubt were innocent. One I was able to see walk out of prison out; it took 16 years to prove I was right, but he eventually gained his freedom.  The other I can only look his picture and the card his family sent me after his execution. I don't have all the answers - I'll leave that to people far smarter than me. If you think this is an isolated incident though, you are as deluded as I was in thinking I would get a hearing in Todd's case. We need to do something - and that something needs to more than an apology after the fact. Of course, so far his family hasn't received even that.

 

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I recently posted about the decline in the number of investigative reporters, and the effect that would have on death penalty cases. Almost on cue, the Texas Observer came out with its second article looking at cases where convictions have been based on faulty arson evidence.

Granted, this is not a death penalty case. Also, in the interest of full disclosure, I admit this is a case I am working on. Despite that, this is an important issue, which has been getting an increased amount of attention over the last couple of years. Arson is one of those areas of "junk science", and may well be the worst. For years, so called experts testified about things that were at best guesses and speculation. They often testified about how the fire "talked to them", and how they could determine what happened from looking at the scene. The problem is that they know nothing about the scientific principles of fire; most were nothing more than fireman, whose sole training came from other firemen.

There are no telling how many people are in prison for something that was nothing more than an accident. Although there has been publicity, it is has not gained attraction like the DNA exonerations  have. Hence the need for investigative journalists. Unless they are there to get the story out, these people have no voice. Lawyers face an uphill battle in these cases; that battle is easier when public sentiment is our your side - which doesn't happen with the journalists. Anyone who doubts that need only look at the DNA cases, and the widespread acceptance among the general public that innocent people are convicted. That sentiment wasn't there 10 years ago - back then most people would say innocent people are seldom - if ever - convicted.

So to Dave Mann and all the other investigative journalists out there, keep up the good work.

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In 2005 the Texas legislature created a Forensic Commission. Their job was to investigate complaints of forensic misconduct. Frankly, I didn't expect them to do anything, and I still don't have high hopes. However,  they at least got off to a good start - even if did take almost 3 years.

The commission voted on Friday to review two arson cases - Cameron Willingham and Ernest Willis. One was executed, and the other released, on almost identical evidence. The Innocence Project has already commissioned a report that was prepared by the leading experts in the country, so I don't know how much work is going to be required. Maybe that's why they took these two cases.

I'm not sure what they can accomplish, but hopefully this will raise awareness of the issue of flawed arson investigations. There are other cases out there, and people still serving  time for something that was not a crime.

I represented Cameron Willingham in the final stages of his appeals, and presented the evidence to the courts and the governor.  The response from the governor's office was that he "didn't see anything that would convince him he should postpone the execution". I'll never forget that statement - but I guess its too much to expect something like innocence to get in the way of an execution.  It's too late for Mr. Willingham, but maybe the commission can do something to prevent the same thing from happening to someone else.

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A recent Dallas Morning News editorial applauded District Attorney Craig Watkins for agreeing to scrutinize non-DNA case. I applaud him too; unfortunately, he is probably going to be in the minority. In fact, I would be surprised if any other elected District Attorney decides to follow his lead. In non-DNA cases, the knee jerk reaction is to fight them tooth and nail. In the absence of conclusive proof (like DNA) few prosecutors are going to agree that a person is innocent. I have seen this most often in recantation cases. Granted, most recantations are false, but many prosecutors refuse to acknowledge the possibility that at least some of them are true. If you plead guilty, your odds are even worse. Until prosecutors are willing to honestly accept the fact that there are a substantial number of innocent people of prison, this problem is not going to be resolved.

A recent blogger reported a prediction that the next wave of innocence cases will be arson convictions. I certainly hope that's true, because I have one. Almost everyone agrees that what was known about arson investigation back in 1980's was wrong; much of it was nothing more than "old wives tales". The result was that many fires were declared to be intentionally set, when they were probably accidents. These cases are unique, because you are not claiming someone else committed the crime; in fact, no crime was committed. Unfortunately, that has been the biggest hurdle to overcome, because many people refuse to believe that no one is responsible for the deaths that result from these fires.

DNA cases are easy, especially when you can prove who actually committed the offense. These cases are far more difficult, although the defendants are no less innocent. Judges and prosecutors are going to have to step up and do the right thing. I hope I'm wrong, but I think Mr. Watkins is going to be part of a very small minority. I hope voters don't hold that against him, and you know it will be an issue. Even if they do, I have no doubt he will be rewarded.

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