Governor’s Sacking of Commission’s Head Stalls Review of Junk Science Convictions
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Texas Legislature created the Forensic Science Commission (“FSC”) in 2005 to investigate what the Texas Monthly called “scientific negligence and misconduct.” The legislature acted following the February 2004 execution of Cameron Todd Willingham and the October 2004 decision by Pecos County District Attorney Ori White to free Ernest Willis from capital murder charges. Willingham and Willis had both been convicted of capital murder and sentenced to death for murders they allegedly committed by setting fires to dwellings in which five people were killed—two women in Willis’ case and Willingham’s three young daughters. The forensic arson evidence used to convict both men was virtually identical. In fact, as Michael Hall wrote recently in Texas Monthly, these two condemned men had a lot in common:
“They were both country boys—Willis from New Mexico, Willingham from Oklahoma—who liked hunting, drinking, and carousing. Both were unemployed and living in small Texas towns when they were accused of setting fires that killed people (in Willingham’ case, his three small daughters in 1991). Both were convicted of capital murder on the basis of testimony of investigators who believed they had found evidence of arson. Both were sent to death row. Eventually both were vindicated by modern science, which determined that there was absolutely no evidence of arson in either case. The fires were almost certainly accidents.”
And both men were targeted as suspects by investigators because of their behavior immediately after the fires. According to neighbors who witnessed the Willingham fire, the father “crouched down” in his front yard and refused to make any effort to recuse his children despite pleas by the neighbors that he do so. Similarly, witnesses said Willis, who was high on pain killers and beer, looked distant as he impassively smoked cigarettes while watching the fire burn that killed the two women. This apparent lack of “proper” emotion and empathy for the people being burned alive was sufficient reason for investigators to manipulate the forensic evidence to change the fires from accidents into intentional acts of murder.
By 2003, time was running out for Willingham. In November of that year the U.S. Supreme Court rejected his final appeal. Desperate, the condemned man’s brother reached out to a highly respected Austin forensic arson expert named Gerald Hurst after reading an article about the Cambridge-educated chemist. The brother begged Hurst to examine the forensic evidence used to convict Willingham. The fire scientist agreed, and was astonished to discover the evidence used to convict Willingham almost certainly proved the fire had been an accident and not intentional arson/murder. Willingham’s court-appointed attorney notified Gov. Rick Perry about the Hurst findings three days before his client’s scheduled February 14 execution. He requested that the governor stay the execution of his client until the Hurst findings of innocence could be adequately developed. Gov. Perry did not respond to the stay request, so just 88 minutes before Willingham was actually executed the attorney faxed a copy of the Hurst report to the governor’s office. To this day it is not certain whether Gov. Perry even reviewed the Hurst report before allowing the execution to proceed as scheduled.
Ernest Willis was more fortunate. He was not represented by a court-appointed attorney with limited resources. He was represented by the international law firm of Latham and Watkins who were representing him pro bono and who, as Michael Hall pointed out, “could afford to spend $5 million on his defense, money that paid for, among other things, the forensic experts who disputed the arson claim.” Ironically, Willis’ conviction was reversed by a federal judge in August 2004 not because flawed forensic arson evidence had been used to convict him but because the Latham/Watkins attorneys discovered a report showing Willis had been placed on heavy dosages of psychotropic drugs without reason during his trial and this information had been deliberately withheld from his defense counsel.
Following the federal court reversal of Willis’ conviction, and in the wake of the ominous cloud of doubt the Hurst report had placed over Willingham’s guilt/execution, Pecos County District Attorney Ori White decided to hire Hurst and another prominent fire expert, Kenneth Ryland, a former fire instructor at the Louisiana State University, to investigate the forensic arson evidence against Willis. After reviewing the evidence, Hurst found “there [was] not a single item of physical evidence in this case which supports a finding of arson,” Ryland concurred with those findings. That was enough for DA White. He dismissed the capital murder charge against Willis in October 2004, effectively exonerating the former condemned inmate. The State of Texas paid Willis $250,000 for the 17 years he spent on death row under the wrongful capital murder conviction.
The Willingham execution and Willis’ exoneration drew the attention of the Chicago Tribune and investigative reporters Steven Mills and Maurice Possley. The newspaper secured the services of Hurst and Ryland, along with two other nationally prominent fire experts, to review the forensic arson evidence upon which the State had relied to convict and execute Cameron Todd Willingham. The four fire scientists drew the same conclusion after each had conducted independent analysis of the evidence: the fire that engulfed Willingham’s Corsicana, Texas home in December 1991 and killed his three small daughters was accidental and not an intentional arson. The newspaper published its findings in December 2004.
The Tribune findings and the tremendous groundswell of controversy they added to the Willingham execution, plus DA White’s decision to exonerate Willis (which cost the State $250,000), prompted the Texas Legislature to act with the creation of the FSC in the summer of 2005—even though the legislature did not appropriate any money to fund the commission’s work.
Buoyed by these developments, the New York-based Innocence Project hired four independent fire experts to examine the Willingham evidence. These four experts reached the same conclusion drawn by the Tribune fire experts: the Willingham fire was an accident. These findings, in conjunction with the Tribune findings, prompted the Innocence Project in May 2006 to formally request that the FSC review the forensic arson evidence used to convict Willingham and determine its scientific reliability.
In 2007 the legislature allocated funds necessary for the FSC to operate. In August 2008 FSC voted to approve the Innocence Project’s request for a review of the Willingham evidence. In January of this year the FSC through its chairman, Austin attorney Sam Bassett, announced the commission had selected Maryland fire scientist Craig Beyler, one of the nation’s most preeminent forensic arson experts, to review the Willingham evidence and submit a written report to the commission as to its scientific reliability.
This past August, Beyler submitted a 51-page report to the FSC which stopped short of saying Willingham was innocent but did reinforce the findings of the previous eight fire experts with the conclusion that there was absolutely no evidence to support the state’s evidence that the Willingham house fire had been intentionally set. A copy of Beyler’s report was released to the media inciting the simmering belief by death penalty critics that the State of Texas had executed an innocent man. FSC Chairman Bassett set October 2 as the date for hearing testimony from Beyler and the state’s fire experts who had testified against Willingham.
Locked in a heated reelection campaign with Republican rival Sen. Kay Bailey Hutchinson, Gov. Perry was not pleased with the state and national media attention the Beyler report generated. The governor’s Deputy General Counsel, Mary Anne Wiley, and former General Counsel David Cabrales had already applied pressure on Chairman Bassett to back off in the Willingham case by the time the report was released, saying in private meeting that chairman had exceeded his authority in ordering the Beyler investigation. Chairman Bassett said the two Perry aides told him the Beyler investigation was not “the kind of investigation the [FSC] statute contemplated. I don’t know what their intent was, but I know after the meetings I did feel pressured about the investigation.” Bassett then contacted Sen. John Whitmire, the chairman of the state’s legislative criminal justice committee, who instructed the FSC chairman to proceed with the investigation because it was within the purview of the law.
Realizing that brass political pressure would not kill the scheduled Willingham hearing, Gov. Perry on September 29 preempted the hearing process with what Innocence Project co-director Barry Scheck called a “Saturday night massacre” reminiscent of former President Richard Nixon’s Saturday night firing of Watergate Special Counsel Archibald Cox: the governor removed Chairman Bassett and two other members from the FSC. Bassett was replaced with a longtime political ally, Williamson County District Attorney John Bradley, and the other two members were replaced with appointees who were supportive of the governor’s efforts to squelch the Willingham case.
The first decision FSC Chairman Bradley made was to indefinitely postpone the scheduled October 2nd hearing in the Willingham case. The new chairman said and he and the other two new members needed time to review all the facts in the case. Not pleased with this political turn of events, Sen. Whitmire immediately announced his committee would conduct hearings to determine the direction of the FSC under Bradley’s leadership. The negative media reaction to Perry’s appointment of Bradley flourished, providing death penalty opponents with a national stage to attack Texas’ relentless death machine.
In an extraordinary demonstration of the level of official concern produced by Perry’s actions, Texas Court of Criminal Appeals Judge Barbara Hervey announced the court’s Criminal Justice Integrity Unit, which was established in 2008, should investigate the “fire science” used to convict Willingham and Willis. “Science progresses all the time, and we need to have a better understanding of fire science,” Judge Hervey informed the media.
Although Judge Hervey did not express any specific conclusions about the Willingham case, the judge, during the first week of October, went to the state archives building to read executed man’s file, including Gerald Hurst’s original report on the evidence in the case. The judge’s extrajudicial interest was in itself extraordinary because just four days before Willingham’s execution the Court of Criminal Appeals rejected the condemned man’s request for a stay, saying the Hurst report should have been presented earlier.
The Court’s Integrity Unit was established with the specific objective of improving the quality of legal representation for poor criminal defendants; improving witness identification procedures; overhauling, and creating new, standards for the collection, preservation, and storage of evidence; and create a review process for cases of inmates who may have been wrongfully convicted. The unit is composed of politicians, lawyers, law enforcement personnel, and legal experts.
Saying that the Integrity Unit’s work in “fire science” arena would complement the FSC work in the same area, Judge Hervey added that “arson is not something (courts) deal with on a regular basis. The one thing I think we can accomplish is to at least educate people” about the new investigative techniques in fire science such as those utilized by the nine fire experts who concluded the fires in the Willingham and Willis’ cases were accidents.
Clearly stung by the unabated media criticism, Chairman Bradley, in a November 7 op-ed piece published in the Houston Chronicle, introduced himself to the general public and attempted to explain the purpose of the FSC under his leadership. Assuring the public that the investigation into the Willingham case would be completed, Bradley cautioned that there are “those with agendas separate from the advancement of forensic science [who] have made exaggerated claims about the [Willingham] case.” In order to accomplish the intended legislative objectives of FSC, which is to investigate negligence or misconduct in the collection and presentation of forensic evidence and not to determine the guilt or innocence of criminal defendants, Bradley proposed five substantive changes to govern the commission’s work:
- Creation of written policies and procedures to guide the application of uniform standards in the review and investigatory process;
- Uniform standards in the investigative process would be created with the assistance of the Texas Rangers;
- Results and/or reports will remain confidential until a final decision is rendered by the commission under the guidance of the Texas Attorney General’s Office;
- Sufficient funds “to create an independent, authoritative presence in the forensic science field,” which will require additional funding from the legislature; and
- Positive role for improving the application of forensic science in the state’s courtrooms.
Although Bradley attempts to attach the best possible motives for the proposed changes to the FSC, we believe (until proven different) that the Williamson County District Attorney has a vision of the commission as a law enforcement-friendly agency whose real purpose is to protect state prosecutions of criminal defendants, regardless of the negligence or misconduct involved in obtaining those convictions. Bradley himself has lent credence to our belief with his repeated references to the Innocence Project as a “New York non-profit” with no real purpose other than the abolition of the death penalty. This is a typical attitude career prosecutors have for groups dedicated to exposing wrongful convictions of innocent people either with DNA evidence or discovery of suppressed evidence as in the Ernest Willis case.
Sen. Rodney Ellis, D-Houston, repeatedly clashed with Bradley during the hearing about his attitude against the Innocence Project, informing the FSC chairman that he had personally presided over three executions and that, as chairman of the board of the Innocence Project, the group simply wanted to make sure the state executes “the right person.”
Conservative Sen. Dan Patrick, R-Houston, also provided significant fuel to our belief that Bradley wants a “rubber stamp” commission to support the criminal convictions in cases where forensic negligence or misconduct becomes an issue. “Not one shred of evidence ever was presented that the man [Willingham] was innocent,” Patrick told Bradley. “Don’t be bullied, and don’t be swayed.”
In effect, Sen. Patrick was telling Bradley to remain true to his pro-death penalty views and don’t be swayed or bullied by anti-death penalty groups like the Innocence Project. Bradley got the message of support. He informed Patrick and others on the panel that he would not be anyone’s “political pawn” and refused to commit as to how the FSC will handle the Willingham case. He added that the “commission is not charged with debating the death penalty. The commission is not charged with determining whether people are guilty or innocent.”
Sen. Ellis was neither impressed nor intimidated by the “good ole boy” political jockeying between Patrick and Bradley. He pointed out that there are 742 people under arson convictions in the state’s prison system and he wants to make sure they were not convicted with “junk science.” He pointedly instructed Bradley not to “put our state in the position that there is a perception that people are using junk science to get convictions.”
The same week Bradley appeared before the Whitmire committee he suggested the FSC should conduct its meetings behind “closed doors.” He added that “it’s not a good idea to conduct an investigation in a public forum.” He stressed that the FSC should function like a law enforcement agency protected from the Texas Open Meetings Act and the Public Information Act.
Former FSC chairman Bassett blasted Bradley’s closed-door suggestion. “[The FSC] is not a law enforcement agency, it is not a court, it is a policy commission,” the former chairman said. “I think it’s important that for the public the public [to] have confidence in forensic science in Texas, the meetings be in public.”
Houston Chronicle columnist Rick Casey agreed with Bassett. “Bradley is speaking like a prosecutor,” Casey wrote in a November 12 column. “He assumes that the commission’s job is to decide whether the fire marshals, laboratory technicians, fingerprint experts and others engaged in solving crimes were negligent or incompetent. That’s not a surprising way for a prosecutor to read the law, which includes those terms. The concepts are right out of the prosecutorial culture. But the commission is not a prosecutorial body … Here’s the most important thing. The prosecutorial culture wants to know, beyond a reasonable doubt, whether the people involved did something wrong.”
And that’s precisely why we now believe the FSC has a serious, if not fatal, credibility problem. The “prosecutorial culture,” which is now in charge of the commission’s goals and objectives, will inevitably produce a decision-making body dedicated to protecting the prosecutorial interests of the criminal justice system even when innocent people like Willingham and Willis are wrongfully convicted. There are only a handful of prosecutors in this country, and even far less in Texas, who have exhibited the courage to support DNA testing for those inmates making claims of innocence. Prosecutors not only tend to oppose DNA testing requests but some have been known to even conceal such test results that clearly established the innocence of a wrongfully convicted person.
District Attorney Bradley’s appointment to the FSC is like placing the proverbial fox in charge of the hen house. Only when the chickens begin to disappear and the fox is caught with a mouthful of feathers will the public understand that prosecutors cannot be trusted to fairly and independently determine when negligence or misconduct is involved with evidence presented in our courtrooms. The fact that Judge Hervey wants the Court of Criminal Appeals’ own Integrity Unit to investigate fire science indicates, whether intentional or not, a lack of confidence in the FSC’s ability to conduct fair investigations in the field of forensic evidence which has found itself under ever-increasing credibility attacks.
Why? Because too many prosecutors have either manipulated or fabricated forensic evidence through crime lab analysts committed to the “convict-at-any-costs” prosecutorial culture. Now, the Texas Forensic Science Commission has a career prosecutor in charge of its fact-finding process—and if anyone truly believes this process will be fair, independent, and professional, we still have that “sea front property in Arizona” for sale.
Bradley, John “Panel on Forensic Science To Establish Ground Rules, Houston Chronicle, p. B7 (Nov. 7, 2009).
Hall, Michael, “Separated at Death,” Texas Monthly, p. 90 (Dec. 2009).