Saturday, August 27, 2011

Texas AG and the TFSC

The following are recent editorials and columns about the Texas Attorney General's ruling related to the Texas Forensic Science Commission.

San Antonio Express-News Editorial Board:
Gov. Rick Perry and his surrogates on the Texas Forensic Science Commission have done their best to stymie an investigation of the evidence that sent Cameron Todd Willingham to death row in 1992. The state of Texas executed Willingham in 2004 for the murder by arson of his three children.
Unfortunately, the Willingham case has became wrapped up in a larger debate about the death penalty, which in turn has implications for Perry’s political ambitions. Political considerations, however, should have no bearing on the outcome of this case.
Texas Attorney General Greg Abbott ruled last month that by statute, the commission is not authorized to investigate forensic lab work introduced into evidence before its creation on Sept. 1, 2005. The ruling is controversial. One interpretation of the legislative language, if not the intent, that created the commission supports Abbott’s conclusion.
The ruling also isn’t the end of the story. Three expert reviews of the investigation, including one authorized by the commission, found serious flaws in the forensic evidence used to convict Willingham. One called the work “characteristic of mystics or psychics.”
The Willingham case is not the only one in which the State Fire Marshal’s Office used flawed evidence to back up prosecutors. Yet even though the office has abandoned many of the procedures that produced that evidence, it has never acknowledged any error. It should.
Texans deserve to know whether bad evidence and the negligence or misconduct of arson investigators led to the flawed convictions of Willingham and others.
If the Texas Forensic Science Commission is unable to make a determination on this point, then a court of law or the Texas Legislature should.

How many arsonists are innocent?
By O. Ricardo Pimentel - San Antonio Express-News

Seven hundred and eight.
The Texas Forensic Science Commission should mull that number when it meets in September to consider the meaning of a recent attorney general opinion in the case of Cameron Todd Willingham, who was executed in 2004 despite evidence presented beforehand to Gov. Rick Perry that exposed the forensic methods used to convict Willingham as flimsy to bogus.
In his July 29 opinion, Attorney General Greg Abbott concluded that the commission had no jurisdiction to review evidence tested or introduced before Sept. 1, 2005, when the agency was created.
This opinion is generally believed — actually fervently hoped for in a certain camp in Texas that is preparing for a presidential campaign — to prevent the commission from continuing to raise awareness on Willingham.
But that makes no sense, either as a matter of procedure or justice.
The commission has already reviewed the Willingham case — pre-AG opinion — and made recommendations for improving arson forensic science in Texas. And the evidence they looked at suggests that the fire that killed Willingham’s girls in 1991 was not arson at all.
What was left for the commission to consider was the matter of negligence. State fire marshal investigators provided much of the testimony to convict Willingham.
That’s where 708 comes in — the number of people serving sentences in state prison on arson as the charge of record in fiscal 2010, according to the Texas Department of Criminal Justice. How many of these 708 — and others for whom arson was not the primary charge — were convicted based on the same discredited methods that convicted Willingham?
The complaint filed by the Innocence Project asked the commission to “redirect a re-examination of other forensic analyses conducted by the Texas State Fire Marshal or its contractors that may involve the same kind of erroneous arson analysis, and recommend corrective action.”
But in a written statement, state Fire Marshal Paul Maldonado noted that the commission’s report focused only on Willingham. He said there is “no plan to reopen closed arson cases.”
“The State Fire Marshal’s Office (SFMO) is reviewing the FSC recommendations and is seeking all opportunity to improve fire investigations so that the best policies, practices and science are used in fire investigations.” He acknowledged advances in science and encouraged the “appropriate parties” to contact his office with concerns.
That’s unsatisfactory, says the Innocence Project. Policy Director Stephen Saloom said the fire marshal is obligated by statute to more proactively inform the criminal justice system that “old” methods of arson investigation “had been scientifically proven invalid and unreliable.”
The state Fire Marshal’s Office does a lot of investigations. According to annual reports, it completed 3,212 between 2005 and 2010, resulting in 737 people referred for prosecution. The conviction rates for those indicted ranged from 59 percent to 104 percent, these figures reflecting overlap between previous year indictments and current year convictions.
It’s compellingly simple: The state likely executed an innocent man. Arson investigator testimony helped accomplish that. But maybe the commission can’t go there because of the AG opinion. I’m not buying that. But, given the discredited forensics, how could it not further examine whether the fire marshal’s failures to inform and reopen other arson cases aren’t negligence of another sort?
Seven hundred and eight.

The Houston Chronicle
Attorney General Greg Abbott's recent official opinion on the law governing the Texas Forensic Science Commission has been widely described as "confusing."
It says, for example, that the commission can investigate the controversial arson findings in the case of Cameron Todd Willingham, the Corsicana man who was executed in 2004 for killing his three children by arson in 1991.
But there is one caveat, the attorney general says. The commission can't look at the evidence presented to the jury, since only evidence presented after the law's passage in 2005 is to be examined.
But if the attorney general's opinion is confusing, it's partly because the law as written is confusing.
In my (unofficial) opinion, the attorney general gave a reasonable interpretation. But so did Barbara Dean, the highly respected veteran attorney in his own office assigned to act as counsel for the commission. Until this year when the commission hired a staff counsel, she attended every meeting and advised members on their powers. She never raised an objection during their years-long Willingham investigation.
Then there was the reasonable opinion of Sen. Juan "Chuy" Hinojosa, D-McAllen, who has some standing as a lawyer and the co-author of the bill establishing the commission.
He told the Corsicana Sun in 2009: "There is no statute of limitations on anything the Forensic Science Commission does."
Hinojosa was aware that the law needed refining, as new laws often do. That's why this spring he pushed revisions that would have gone a long way toward cleaning up the law.

Statewide problems

One of the main points of tension was whether the law's sole job was to make findings as to whether staffers of certified forensic labs were negligent in handling individual cases, or whether it was to critique any illegitimate use of forensic science in Texas criminal justice cases and work to improve the practice in the state.
The seven scientists on the commission clearly have wanted to focus mainly on the latter, which I think is far more important than policing certified labs (partly because it can include that function).

Bill would have helped

Two years ago, a congressionally mandated study by the National Research Council found forensic science practices around the country to be scandalously sloppy, from the FBI on down.
Texas certainly has played its role, from the Houston Crime Lab series of farces to convictions (some clearly proved wrong) of scores of men based on unscientific "lineups" conducted by dogs.
Yet juries are notoriously subject to persuasion by expert witnesses presenting what they claim is scientific evidence.
Williamson County District Attorney John Bradley, appointed by the governor to chair the commission and get its Willingham investigation under control, pressed repeatedly for the narrow interpretation of its role.
Since the errors in the Willingham case were by arson investigators, not a certified laboratory, they would not be included.
Hinojosa's bill this spring would have cleared the matter up.

Legislation dies

It kept language that charged the commission with censuring bad behavior in certified labs. But it added language that would authorize the commission to investigate any forensic analysis — without making a finding of negligence or professional misconduct - if by a majority vote the commission finds such investigation "would advance the integrity and reliability of the forensic science in this state."
In the end, that's what the commission did with its Willingham investigation. While the attorney general's opinion prevents it from laying blame on two investigators, it established without a doubt that their analysis was badly flawed and their confident testimony to the jury was unfounded.
Unfortunately, the only party not convinced is the state's Fire Marshal's Office, despite the fact that they were unable to find a single scientist to back their position.
Also unfortunately, Hinojosa ran out of time with his bill. It passed the Senate and was nearing consideration by the House when the session's time ran out.
According to a staffer, Hinojosa plans to present the bill again in 2013.
For the sake of justice, it should pass.

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