Many arson convictions based on invalid science

My recent conversation about arson cases with Innocence Project of Texas director Jeff Blackburn left me more interested in the issue of how and why people are wrongly convicted of arson based on faulty forensic science, and how many innocent people may be implicated.

As it turns out, in 2006 Barry Scheck's Innocence Project in New York sponsored a formal peer review of expert testimony in two Texas arson cases - Cameron Todd Willingham, who was executed for capital murder, and Ernest Ray Willis who was exonerated after courts overturned essentially similar forensic testimony. Here's the full 49-page report (pdf), which is a sad and fascinating read, concluding that:

The State’s expert witnesses in both cases relied on interpretations of “indicators” that they were taught constituted evidence of arson. While we have no doubt that these witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid. To the extent that there are still investigators in Texas and elsewhere, who interpret low burning, irregular fire patterns and collapsed furniture springs as indicators of incendiary fires, there will continue to be serious miscarriages of justice.

What's more, said the peer review committee, the problem wasn't just that forensic science had disproved bad assumptions from the past, but the state's expert witnesses (whose verbatim testimony is vetted in the document in some detail) misrepresented physical science that should have been known at the time. One expert arson investigator, for example, displayed "a surprising lack of knowledge about compartment fire dynamics," and merely behaved "As if constant repetition would make the assertion true."

To judge by this "peer review," every arson conviction obtained prior to the mid to late '90s, or that used investigators trained before that time, should probably be re-examined comprehensively to look for actual innocents who were wrongly convicted. Part of the problem, said the committee, is that:

Prior to 1992 the state of the art in fire investigation was, in a word, dismal. Fire investigators, by and large, were, and continue to be, individuals without any serious training in scientific methodology. More experienced fire investigators would mentor less experienced fire investigators, and pass on what became a collection of myths. Many investigators, who obtained their “basic training” before 1995, were trained with misinformation and misconceptions. Some of those investigators have taken very little additional training since then, and of those, many refuse to recognize how flawed their early training was.

The peer review committee offered a recommendation for what should happen in these old cases, and a pre-emptive dismissal of the inevitable, defensive reactions by those on whose erroneous testimony wrongful convictions were based:

If an investigator is willing to admit that a citizen was convicted based on bad science, then the only civilized course of action is to reopen the investigation. It was resistance to this concept that allowed the state to execute Mr. Willingham, even though it was known that the evidence used to convict him was invalid. When interviewed by the Chicago Tribune about the Willingham case, Mr. Cheever (who was involved in the case but did not testify) acknowledged the validity of published criticism of the conviction. He stated, “At the time of the Corsicana fire, we were still testifying to things that aren't accurate today, They were true then, but they aren't now. Hurst, was pretty much right on. ... We know now not to make those same assumptions.”

Actually, the behavior of fire is no different in 2006 than it was in 1986, so Mr. Cheever’s statement that “They were true then, but they aren’t now” is very far wide of the mark. The laws of physics did not change between 1986 and 2006. What is false today was false in 1986 and 1992. The fact that some poorly trained fire marshal believed it does not make it any more true, although it may make the fire marshal feel better about his errors.

The justice system has no right to take such a “feel good” approach to miscarriages of justice. Inevitably, when a convict like Ernest Ray Willis is exonerated, someone remarks, “See? The system worked!” Even by that low standard, the system failed to work for Cameron Todd Willingham.

The group also made this sensible suggestion that defense counsel should get to retain its own fire investigator in felony arson cases:

Because of the increasingly “scientific” approach to fire investigations, and because scientific evidence is held in such high regard by juries, defendants in arson cases should be afforded the opportunity to retain an independent fire investigation expert to evaluate the State’s expert’s fire analysis. Without expert assistance, defense counsel is unlikely to be in a position to render effective assistance to his client.

Though shoddy DNA labs, questionable ballistic evidence, flawed serology and other crime lab problems have grabbed more headlines, arguably arson is a unique case where forensic testimony needs to be vetted even more closely, said the committee, because:

There is no crime other than homicide by arson for which a person can be sent to death row based on the unsupported opinion of someone who received all of his training “on the job.” All that is necessary for a conviction is that the jury accepts that opinion. If an incompetent witness renders a false opinion in a confident manner, how is a jury to know?

How, indeed?

According to these data, Texas has convicted more people of arson than any other state, followed by Ohio, even though California has double the number of fires caused by arson. You have to wonder if that's because our investigators aren't all using valid forensic science when they make their accusations.

No wonder Jeff Blackburn thinks arson cases may be the next big venue for innocence claims in Texas. Sounds like such a review is long overdue.