Sunday, October 04, 2009

Willingham debate not focused on arson science

In a lot of ways, I wish the Texas Forensic Science Commission had picked another arson case to examine besides Cameron Todd Willingham. Because it's a death penalty case, the debate quickly devolves into a pointless re-trial of Willingham (retrying his case in the media can neither bring him back nor make him more dead).

But that wasn't the purpose of either the Forensic Science Commission or the expert they hired, who were charged with evaluating the forensic testimony in Willingham's arson conviction. And that evaluation (pdf), conducted in accordance with current scientific knowledge about fire, arguably has huge implications for some probably-innocent convicted "arsonists" now sitting in prison. If this weren't a death penalty case where the defendant was already executed, I doubt Rick Perry would have bothered himself to intervene and maybe there'd be a better chance for getting more innocent people out of prison.

These thoughts arose this morning as I read a hyper-defensive and frankly embarrassingly dense 21-page rebuttal (pdf) from the City of Corsicana Fire Chief. Most of the fire chief's report adumbrates in detail other testimonial evidence that has nothing to do with the forensic testimony. He seems to fancy himself a prosecutor and his main concern is to claim Todd Willingham was guilty anyway, not to defend in any meaningful detail the science presented at trial.

His rebuttal shows the chief seemingly unaware of the history or status of modern fire science, and he ironically fails to understand the implications of the expert testimony received by the commission. The chief said that calling 1991 investigation methods "folklore" is "a bit strong" but he doesn't know what they were, doesn't know how they changed, and he pretty universally accepts what Beyler says they are now. He merely thinks investigators shouldn't be faulted for not using more modern methods that didn't exist yet.

But the Commission's point wasn't to fault investigators but to evaluate their findings based on scientific assumptions in a field that everyone acknowledges has changed dramatically since Willingham was convicted. In 1991, Corsicana investigators relied on junk science, or really "folklore," to use Beyler's term, that had no actual relation to "science" at all - but that was true of most arson investigators in America. There's no need to be defensive to the point of denial. Worse, the chief betrays his own ignorance by defending debunked methods as valid, discrediting his views from the get-go.

Ignoring portions of the rebuttal unrelated to science (and thus equally unrelated to the investigation at the Forensic Science Commission), the chief's critique of the scientific debate boils down to a complaint that "Beyler ignores the testimony of Doug Fogg, the Corsicana Fire Department investigator, regarding the pour patterns and what could have caused them, and Beyler also quotes Fogg as saying that plastic toys don’t melt, and that latex paint doesn’t burn off wood, which he did not say," reported the Corsicana Sun. At the end of his rebuttal, the chief goes on at length to say that the fact that the floor was on fire is evidence that arson occurred because "Fire burns up, not down."

These claims would be almost comical if they didn't come up in such a macabre setting. Those assumptions about "pour patterns" and fire on the floor are precisely among the aspects of junk forensics discredited by modern methodologies. That's the point of Beyler's testimony and the fire chief clearly doesn't know enough about the subject to engage in an on-point debate.

Mr. Fogg is not a scientist and to judge by the chief's rebuttal, even today fire officials in Corsicana don't have anyone on staff with a firm grasp of modern arson science. By comparison, Dr. Beyler has bachelors and masters degrees in fire safety engineering, a PhD in engineering from Harvard and is chairman of the International Association for Fire Safety Science. The techniques of modern fire science were mostly developed via hands-on experimentation within the last 20 years. Real-world testing debunked a specific set of non-scientific mythologies and assumptions that previously dominated arson investigation, some of which the chief still clearly clings to. But when Dr. Beyler sees testimony about "pour patterns" and fire on the floor presented to a jury as evidence of arson, with no other evidence but "eliminating" accidental causes, for him that's not even a hard call. Science just doesn't consider that good evidence anymore, even though not long ago such testimony was common, though erroneous, even when given in good faith. That's the piece of the puzzle that makes sense of these conflicting claims about fire.

During the forensic testimony at Willingham's trial, jurors were assured that "the fire does not lie," etc., implying that contradictory accounts among witnesses could be sorted out through science. The rest of the testimony was sketchy and inconclusive, with contradicting witnesses telling different stories on virtually every critical point. (The other important witness was a jailhouse snitch who has since recanted.) The chief said this was just a colloquialism, but in context it had significant import: With conflicting witnesses, forensic testimony was the crux of the evidence for conviction, and although the jury was told the fire did not lie, they had no way of knowing fire could be so profoundly misunderstood.

The chief's other big complaint focuses on the use of one three-word phrase in a 51-page report - "standard of care," which he says is evidence of bias. But because this is a death penalty case, unbiased sources are few and far between and the fire chief clearly isn't one, either. Personally, I read that phrase as referring to care in gathering and maintaining evidence in the investigation. If Dr. Beyler has a bias, it appears to be a bias for higher standards of professionalism in arson investigations than what happens in Corsicana.

Bottom line, the arson testimony in Todd Willingham's trial was overstated and reached definitive conclusions that a scientific understanding of fire fails to support. Nobody will ever be able to prove a negative - that Todd Willingham didn't set the fire - because evidence wasn't preserved and the investigation can't be re-done by people who know what they're doing. But it's possible now to say there was no solid forensic evidence of arson presented to the jury, which was all the Commission was investigating in the first place.

If this weren't a death penalty case, that might be enough to spark a more thorough review of past arson convictions and expanded training and research in fire science, which is what's needed. Instead, the Governor appoints a crony who shuts down the inquiry so he can play hero to the pro-death penalty crowd in the run up to the primary. That does not bode well for anyone falsely convicted of arson who claimed innocence at trial and is now sitting in prison based on discredited forensics. They're going to have to wait on justice awhile longer while the culture warriors slug it out over whether an innocent person received the death penalty.

UPDATE (10/5): While I appreciate the Dallas News linking to this post on their list of "Must reads from the web," I took umbrage at the headline they gave it: "A minor Willingham tragedy." I'd say that's a matter of perspective. If you're sitting in prison long-term for an arson crime you didn't commit, arguably the tragedy wouldn't seem nearly so "minor."

See prior, related Grits posts:

17 comments:

Anonymous said...

Great discussion of this case and the typical defensive comments so typical of elected and appointed public officials who cannot admit that a mistake may have been made. Rather than defensive posturing -- they should recognize changes in fire science and that earlier understandings were based more on myth than science. We all make mistakes under circumstances of limited knowledge, uncertainty and risk. But we should be willing to learn as new knowledge emerges -- not persist in the belief that the earth is flat and the sun revolves around the earth.

There is no dishonor in owning up to mistakes of the past when new knowledge reveals them. If there is dishonor it is in adhering to beliefs and mistakes when the best available evidence reveals has the falacies of our earlier thinking.

Revising our thinking based on changing evidence and theory is not weakness -- it is strength.

Karo said...

Nice post and excellent insight vis-à-vis the DP element.

For my money your "Martin Mode" writing is more persuasive than your "Malcolm Mode."

Gritsforbreakfast said...

Karo I assume you refer to Martin Lawrence and Malcolm Gladwell, right? ;)

Scott in South Austin said...

I sincerely doubt the Corsicana Fire Chief wrote that letter. I suspect someone in the DA office helped scribe the letter.

I've known a lot of fire chiefs and fire officials in my life and I've never seen any correspondence written with the use succinct legal references or unique adjectives.

Karo said...

"There is no dishonor in owning up to mistakes of the past when new knowledge reveals them." - Anon 10:38

Says you! Have you already forgotten about flip-flops and waffles? Many voters in these parts would rather be wrong than uncertain. We call these types "creationists" and they are scared of accidentally getting another David Souter.

Anonymous said...

Karo,

I would rather have a flip flopper who is rethinking issues based on new knowledge than someone who rigidly sticks to the same position regardless of changing information and new knowledge. Rethinking issues is the mark of an intelligent and thoughtful person.

Rigidly sticking with something because it fits some outdated model or position is the mark of intransigence and an unwillingness to consider that our earlier views may have been wrong. It is the opposite of intelligent ad thoughtful. It is simply rigid and unreflective.

In public policy and justice questions, rigidity can be disasterous.

Anonymous said...

Actually, the Forensic Science Commission DID pick another case, a companion case called TX v Ernest Ray Willis. Mr. Willis was exonerated and freed.

Willis was convicted on essentially the same kind of BS (bad science) as Willingham, and Beyler reviewed the Willis evidence as well. There was even some overlap in personnel.

It is interesting to see the TX Fire marshal standing behind their determination. In 2004, their man Cheever admitted that mistakes were made, and made a comment to the effect that things that were true in 1991, were no longer true, as if the laws of physics had changed.

Anonymous said...

One of the great human traits is resistance to change.

Perry and Bradley clearly want to keep their jobs so they're resisting change.

Trouble is - change happens.

I sincerely hope both of them get a good dose of change in the next election.

Meanwhile, looks like Willingham may not have "done it", and the Justice system in Texas is as dysfunctional as we all know it to be.

Anonymous said...

A quick point during the game.
The Chief does offer a few opinions of his own. Upon reading one is exposed to a fine scientific mind, clearly a master of the art of geometric logic.

Eliminating the notion that one potential source of the fire could have been a ceiling fan, the chief points out that it was 50 degrees that December morning and such a fan was "not likely to have been on" inplying that it was too cold to run the fan.

I suspect the good chief is too wet behind the ears to have ever paid his own utility bills and may in fact be unfamilliar with the concept of stratification. I can state with relitive certanty that warm air is less dense than colder air. It does in fact rise and tend to collect at the ceiling. If the good chief will venture out to leave his centrally air conditioned enviornment, he will be exposed to a myraid of folks using single point sources of heat who will be more than happy to expound on the benifical use of ceiling fans in the winter time. They might even show him the top secret reversing switch incorporated into these fans for just that purpose.

Anonymous said...

Continuing with our theme of Is Your Fire Chief Smarter Than a Fith Grader, it seems the good chief or his assistant has some expertise in the area of modern coatings. They must have some expertise as they offered up the following insight, "Again, on page 47, Dr. Beyler asserts that Assistant Chief Fogg testified that
water based paints are not flammable. That is a gross distortion of what he
said. As mentioned above, what he said was that the latex will not bum "off' of wood, leaving the wood unburned itself.......That makes sense because with water based paint, the paint is actually absorbed into the wood. The painted wood would burn, but the paint would not burn "off' the wood and leave the wood charred
or unburned."

It's one of the things that make these guys such a menance. If the good chief repeats some nonsense such as this to a remodeling client as so many of these guys do on their alternate days off, one can simply write it off as let the buyer beware. But here we have a man who is quite willing to spout something he clearly has no clue about as fact. I can't say he would go on the stand and swear to this as an expert, but the fact that he would include it in this official rebuttal gives little confidence to the contrary.

Using heat to remove latex paint is a standard practice. It's one of the safest methods used by professionals and do it yourselfers alike.

Anonymous said...

Proving that he has a firm grasp on Newtonian physics, Chief McMullan presents his theory.

"Dr. Beyler also implies on page 46that a spill of charcoal lighter fluid on the concrete front porch could account for the presence oflighter fluid under the
threshold in the house. The testimony regarding the slope ofthe porch (away from the front door) and the fact that there was a hole or crack separating the
concrete porch from the front door appears to rule out that possibility."

The old shit don't run uphill trump card.

This clearly brings into question just what level of technology was in use at the time of the Willingham fire. Since any deployment using tens of gpm of water leaving a nozzle at high velocity to contain the fire tends to blow the chiefs theory right off the porch, we have to assume they deployed a bucket brigade.

Anonymous said...

I bet it was written by the City Attorney, Terry Jacobson. Firemen can't write like that at all. Also, he wrote a piece that was recently featured in the Corsicana Daily Sun that also ignored forensic evidence and claims that Willingham was caught in a bunch of misstatements so he must have been guilty, then goes on to say that the evidence should be retested. If the evidence needs to be retested, why deal with inconsistencies at all? And we know that some of those inconsistencies were flat out wrong and you can't trust the CPD or prosecutor's statements because they've been directly contradicted by witnesses at the scene.

Jasobson is famous in town for being on the wrong side of any particular issue, so this is no surprise.

Anonymous said...

retrying his case in the media can neither bring him back nor make him more dead

It would also lead any rational soul back to the Willis case. I guess everyone knows he was guilty too, he just skated? Yea, a few bastards skip, but we'll damn sure fry every other sonofabitch that comes our way, evidence be damned.

dudleysharp said...

It is about the arson science when you consider this:

The basic finding of the 3 reports, critical of the investigation is that the original investigators got it wrong, that what was described as evidence for arson, was, actually no such thing, in respect to the finding that the fire had a flashover, which may make signs of arson, if any, indistinguishable from an accidental fire.

The basic conslusion being, from those 3 reviews, being that we will not know if it was accidental or arson.

However, we do, now, have some direct contradiction of the Beyler report, as to foresnic science interpretation, as well as an introduction of evidence, I was, previously, unaware of, which gives many reasons why the jurors, prosecutor, defense attorney and jurors all found Willingham guilty of arson/murder of his children.

I suspect that there will be a release, at some point, of at least 2 more reports, the Corsicana Police Department, The Texas Fire Marshall - 3 more, if you count the tiral transcript.

I think it wise to wait for release of all of the information, before reaching a final conclusion.

Boyness said...

None of this matters, the leather-faced, wig-wearin moron from Paint Creek will make sure we never know!

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debate popular said...

The fact that this case and certainly can not be tried and sentenced to death for lack of concrete evidence and solid foundation to support the facts. A shame that there are no more specialized expert people.