short list if the cases against them are as weak as they appear from Dave's reporting. Since, unlike Todd Willingham, these fellows haven't already been executed, they're eligible to pursue state habeas claims just like the guys where new DNA evidence was discovered.
That said, some innocent defendants inadvertently exhaust their habeas claims because they file pro se briefs to the court without an attorney or significant new evidence, getting themselves labeled "writ abusers" after multiple, unsuccessful submissions. State Sen. John Whitmire carried legislation this year that would have ensured such defendants could get back into court when there is new scientific or forensic evidence affecting their case. A deal had been cut with the prosecutors on final language but the bill died for reasons unrelated to its merits during the partisan meltdown over voter ID. If these arson cases have trouble on that score, it will provide further evidence the Lege needs to reform those habeas rules in light of the CCA's narrow interpretations.
Unfortunately, there's just no process for vetting these older cases except habeas petitions to the Texas Court of Criminal Appeals, which is led, of course, by self-described pro-prosecution Judge Sharon Keller. Who knows how that would go? Quite a few members of the CCA seem to think "finality" is a more important goal of the justice system than liberating the innocent.
Perhaps to expedite the process, Attorney General Greg Abbott should mimic the approach to DNA cases by Dallas District Attorney Craig Watkins and partner with the Texas Innocence Project to vet old arson cases with disputed convictions for erroneous forensic testimony. We're not talking about that many to go through en toto, and until somebody has undertaken that task, we can't be sure there aren't more, possibly many more innocent people sitting in prison based on false arson convictions.
See prior, related Grits posts:
- Willingham debate not focused on arson science
- Arson cases a tangle of science and supposition
- Arson cases fueling innocence debates
- Many arson convictions based on invalid science
- Arson convictions may be next venue for innocence claims
- College to develop screening processes for vetting old arson cases for bad forensic science