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Another helping of forensic politics - Texas
style
October 23, 2009
By Crime Lab Report
Click here to Print
The conviction
and execution of Cameron Todd Willingham continue to grab
headlines.
Willingham was executed by Texas
authorities in 2004, thirteen years after being convicted of
committing a fatal arson that activists now claim was not
arson at all.
Willingham was innocent, according to
his outspoken supporters.
Crime Lab Report
devoted its last editorial to this case and for the first
time in our short history, we will issue back-to-back
commentaries on this fascinating and uniquely instructive
case.
Since our last report, Texas Governor
Rick Perry enraged innocence activists by removing four
members from the state’s nine-member Forensic Science
Commission. The shakeup, which has been characterized
as the “Saturday Night Massacre” (an apparent reference to
President Richard Nixon’s dismissal of key figures in the
Justice Department during the Watergate scandal), came just
days before the Commission was scheduled to begin hearings
on the Willingham case.
But a closer look at the Commission and
the political maneuvering that was apparently clouding its
proceedings suggests that Governor Perry may have done the
people of Texas a huge favor.
Governor Perry is authorized to appoint
four members to the Commission pursuant to House Bill (HB)
1068, which was passed by the state legislature in 2005.
Two appointees must have expertise in forensic science. One
must be a prosecuting attorney chosen from a list of ten
names submitted for consideration by the Texas District and
County Attorneys Association. Another must be a defense
attorney that the governor selects from a similar list of
names submitted by the Texas Criminal Defense Lawyers
Association.
The other five members are appointed by
the Lieutenant Governor and the Attorney General; but again,
there are specific guidelines concerning eligibility.
Moreover, the governor appoints the presiding officer of the
commission.
Each member of
the Commission serves a two-year term. Those appointed
by the Governor and Lt. Governor have terms that expire on
September 1st of odd years. So
Crime Lab Report
is perplexed as to why there has been such an outcry when
Governor Perry simply exercised his right to make new
appointments pursuant to Texas law.
Perhaps the Willingham case represents
much more to innocence activists than they would have the
people of Texas believe.
Crime Lab Report
has studied the history,
tactics, and rhetoric of the innocence network going back as
far as 1932 when Yale law professor Edwin Borchard wrote his
groundbreaking book titled
Convicting the Innocence.
Over time, what was once a field of study invigorated by an
objective and scholarly examination of criminal cases has
been overtaken by self-proclaimed activists who advocate for
a sweeping battery of justice reforms. And at the
heart of this agenda is the termination of capital
punishment in America.
Crime Lab Report
celebrates the right of these
activists to pursue their agenda and all of its elements.
We also understand that reasonable people can make a
persuasive and intelligent argument against the death
penalty. But we are troubled by what we perceive to be
an astounding lack of professional integrity in the way that
the Willingham case, and other cases around the country, are
being exploited.
Finding cases where innocent people were
tragically executed seems to be a reasonable approach to
fulfilling the objectives of the innocence campaign.
And what better place to mount an offensive than Texas,
where more persons have been executed than any other state.
But when the agenda becomes more
important than the facts, and when overwhelming evidence of
guilt is dismissed in favor of politically convenient
theories, the citizens of Texas, and their governor, have a
reason to be outraged.
It just may be that the tactics of many
post-conviction litigators are now creating a demand for new
professional oversight, continuing education, and codes of
conduct for attorneys who present forensic evidence in
post-conviction proceedings. The situation has gotten
so out-of-hand, and there are now so many instances where
forensic evidence appears to have been misinterpreted during
the post-conviction process, that leaders in the legal and
judicial communities should step forward immediately.
In Texas, the Forensic Science
Commission has no choice but to subject the Willingham case
to intense scrutiny. The local media, however, do have a
choice. They must stop their unfair and biased
coverage. It is obvious to us that many reporters have
not taken the time to read the twenty-one page letter to the
Commission from Chief Donald McMullan of the Corsicana Fire
Department, not to mention the 64 page report from
fire-expert Craig Beyler, only a portion of which is devoted
exclusively to the Willingham case and is highly critical of
the original investigation.
In Beyler’s
report, he concludes that the investigation of the
Willingham fire “did not comport with either the modern
standard of care” expressed by the National Fire Protection
Association’s Guide for Fire
and Explosion Investigations
(NFPA 921).”
According to Beyler, “the investigators
had poor understandings of fire science and failed to
acknowledge or apply the contemporaneous understanding of
the limitations of fire indicators. Their methodologies did
not comport with the scientific method or the process of
elimination. A finding of arson could not be sustained based
upon the standard of care expressed by NFPA 921, or the
standard of care expressed by fire investigation texts and
papers in the period 1980–1992.”
As Chief McMullan
explained in his letter, Beyler’s emphasis on NFPA 921 as
the modern standard of care
fails when you consider the
fact that it was not published until 1992, which is after
the fire occurred. McMullan, who admits that he was not
involved with the original investigation, points out
numerous discrepancies and mischaracterizations in Beyler’s
report.
Furthermore, Beyler does not offer a
single opinion as to what actually caused the fatal fire
that claimed the lives of Willingham’s three children that
fateful December morning. In fact, his opinion that a
“finding of arson could not be sustained” seemed to conflict
with his own statement that “there is no available evidence
that an outside individual was considered as the fire
setter.”
According to an
article that appeared in the October 15th
edition of the Dallas Morning
News, Beyler went so far as to
call for the new Commission appointees to step down and seek
the reinstatement of the people who were replaced.
A spokesman for Governor Perry remarked
that Beyler’s statement “demonstrates that he was never an
objective scientist looking only at forensic facts. He
clearly had another agenda.”
We are confident that the Commission can
now be more objective. But the Willingham case
illustrates how easily forensic science commissions can
become plagued by political wrangling and special interests.
We can only assume that Governor Perry
recognized that the Commission was losing its objectivity
when he exercised his right to make changes. We respect his
actions at a time when too much of the media have lost their
own objectivity and become vitriolic advocates for
Willingham’s post-mortem exoneration.
With Perry facing opposition in next
year’s gubernatorial race, both inside and outside of his
party, it could wind up being a campaign issue.
There is
much more at stake in the Willingham case than meets the
eye. The forensic science community should pay close
attention to how this all shakes out.
*****
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