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The revolt at the forensic science continues. At an emergency meeting yesterday several members called chairman John Bradley to task for calling Cameron Todd Willingham a guilty monster. For some reason they thought that might call his objectivity into question. I don't why they would think that his opinion on guilt would influence his decision on the issues before the commission.

Dr. Sarah Kerrigan had some insightful comments that point out the role should play in criminal cases - a role that has largely abandoned. She asked what guilt or innocence had to do with whether the investigation was flawed. When asked to read all the transcript, she asked why the character of the individual should make a difference in determining what the science shows. In my opinion, she nailed the reason for most of problems we have had with forensics.

Numerous studies have demonstrated how bias can alter the interpretation of the evidence. If you believe someone is guilty, you interpret the evidence to support that opinion. In fact, it should have nothing to do with it; science is neutral, and should not be concerned with guilt or innocence. The problem is when scientists become advocates.

Whether or not Cameron Todd Willingham is guilty has nothing to do with whether the investigation. If he is guilty (which I don't believe), they got lucky; it doesn't somehow transform the investigation.  If the investigation is flawed it's flawed, regardless of whether the defendant is guilty or not.

I've said before that we have lost focus in many of these cases. The focus should not be on guilt, but on whether bad science was used to obtain the conviction. If it was, then how can we make sure that doesn't happen. Dr. Kerrigan is a breath of fresh air - she brings the perspective of a scientist - and not an advocate. If more scientists did that, we would go a long way toward solving many of the problems with forensic evidence.

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The big surprise yesterday was that the forensic commission showed they finally had enough. Ever since John Bradley took control the other members have been superfluous. He has controlled the agenda, and prepared the reports. Apparently it was no different for the report on the Cameron Todd Willingham investigation. Bradley had a report ready which absolved the fire marshal of any responsibility - they were just doing the best they could do at they time. The other members finally revolted, and refused to go along - good for them.

Although I wasn't there, I heard it got fairly contentious. Bradley even told the members they were "shirking" their responsibility - seriously. In my view they finally stood up and exercised their responsibility. They have a duty to investigate - not whitewash. Mr. Bradley apparently views their responsibility as the equivalent of  his - which was to do everyone possible to either derail or minimize the impact of the Willingham case. I was convinced he was going to be successful - thank goodness it looks like that may not be the case.

We will wait to see what happens in November. But for now, the commission appears headed in the right direction.

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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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I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission.  Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Another thing that struck me, was  the definition of what is a forensic discipline. If it's not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature's exemptions - latent fingerprint examination and breath tests. If those two areas don't involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their "scientific" their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.

The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting - they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.

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I attended the Senate hearing yesterday and listened to the new chairman of Forensic Science Commission - John Bradley - lay out his plans for the commission. Not surprisingly, the representatives wanted answers to two questions; when was the commission going to issue a report on Willingham, and was the late replacement of the commission chair designed to derail the investigation and work that already been done. Neither of those questions was definitely answered, but then what can you expect in a political arena.

Sen. Whitmire - chairman of the committee asked Mr. Bradley if his service as a prosecutor created a possible conflict. His reply was that he was probably more qualified than a defense lawyer, because  he had a statutory obligation to "see that justice is done." He also described himself as sort of a one man innocence project because of the number of cases he had dismissed before they were ever filed.

I've heard for years the argument that prosecutors have an obligation to see that justice is done. No doubt that is the law. The problem is how it is interpreted, and carried out. We know that too often that obligation is not honored. Is a prosecutor who hides evidence seeking justice? What about a prosecutor who has doubts about a case, but decides to "leave it to the jury"?

Most of the time the statement is made to divert someone away from the facts. The statement is really nothing more than "you can trust me to do it right". In other words, I wouldn't be doing this unless the guy was really guilty.

There's another problem with this argument. It creates an "us against them" mentality. Mr. Bradley followed up with the statement that defense lawyer's only have an obligation to their client. The insinuation is that they will do anything to get them off - ethical or not. The underlying argument is that they are on the side of truth and justice; the defense lawyer is on the other side, and you don't need to pay any attention to what they say.

As with any right in the criminal justice system, it is only as strong as the person enforcing it. It would be  nice if all prosecutors took that obligation seriously. There is no doubt that some do. Most of those prosecutors never have to remind people of their obligation - no one has any doubt because they carry it on a daily basis. If you have to remind people, you probably aren't doing too good of a job at carrying it out.

I'll wait and see how Mr. Bradley carries out his job as commission chairman. So far he hasn't done anything and he can't be held accountable for the manner in which he was appointed. I'll keep an open mind, but so far I'm not too hopeful.

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