Wednesday, October 14, 2009

Judge Hervey wants "Integrity Unit" to take on arson science

Judge Barbara Hervey of the Texas Court of Criminal Appeals wants the court's Criminal Justice Integrity Unit she founded to focus on changes in arson science in the last two decades, the Austin Statesman reports ("More arson understanding needed in courts, judge says," Oct. 14):

A judge on the Texas Court of Criminal Appeals, which has the power to overturn death sentences and halt executions, wants to improve the criminal justice system's understanding of fire science in the wake of a possibly flawed arson investigation in the Cameron Todd Willingham case.

Willingham was executed in 2004 for killing his three young children by setting fire to his Corsicana house.

Judge Barbara Hervey said her interest in the issue was piqued by recent reports that Cameron's conviction relied on bad science, now-disproved theories and personal bias from arson investigators.

"Science progresses all the time, and we need to have a better understanding of fire science," Hervey said Tuesday.

Last week, Hervey ventured to the state archives building to read Willingham's court file, which included the first report — by Austin chemist Gerald Hurst — to question the 1991 arson ruling.

The Court of Criminal Appeals dismissed that appeal, filed four days before Willingham's execution, ruling that Hurst's findings should have been raised earlier.

Hervey, who joined the court in 2001, said she came away from her reading with no conclusions about Willingham's case but with a desire to have the Texas Criminal Justice Integrity Unit investigate fire science. ...

"Arson is not something (courts) deal with on a regular basis," Hervey said. "The one thing I think we can accomplish is to at least educate people" about improvements in fire science and arson investigative techniques.

The integrity unit, Hervey said, would complement work being done by the Texas Forensic Science Commission.

I'm glad to learn Judge Hervey is concerned about arson cases, but this court needs to do more than promote "education" about arson science - they need to start granting habeas relief in arson cases where convictions were based on lousy, discredited forensics. In fact, they should look for an appellate case through which they can judicially ban dated arson forensics from Texas courtrooms once and for all. The CCA missed their chance to do that in the Todd Willingham case, but there's no shortage of additional opportunities going forward.


Whitney said...

Amen, Grits. That's my beef with Hervey. She talks a good game about innocence reforms, but when look at her rulings, she's right there with Keller. If she wants to educate people, she should start with her colleagues and herself. Hopefully something useful with come from the CIU, but I'm highly skeptical.

Anonymous said...

Whitney hits the nail on the head. Hervey has been playing the public relations game for some time, doubtless having seen that Keller's antics were losing votes. That explains all Hervey's panel and committee work and her mouthing of soothing platitudes, while she rules just as viciously as Keller ever does. Also her support for one of her longtime prosecution colleagues, now acting as a "public pretender" ... and conveniently singing Hervey's praises. And now Hervey also jumps onto the Willingham bandwagon ...

Hervey seems to be positioning herself for a long stay at the Court, possibly replacing Keller as PJ. Let's hope people who actually care about justice expose her for the hypocrite she is and get her out of office at the next opportunity.

Gritsforbreakfast said...

You know, say what you will about Hervey's rulings, and I've criticized many of them, WAY too many people are looking at Willingham and feuding over the death penalty. For her to look hard at the case and publicly announce arson science needs to be reconsidered is a big step forward for her, even if it's not as far as I'd like her to go.

In all the activities of her "Integrity Unit," there's been sort of an unspoken oddity hovering over the proceedings that the CCA could fix a lot of this stuff - especially eyewitness ID, excluding outdated forensics, etc. - of their own accord, but instead were just talking about it in a powerless forum. That'll be true, at least in part, for any issue the Integrity Unit takes up. But if this is what we're going to get, at least she's focused on what I think are the right lessons from the Willingham case, and I think most people from nearly all sides of the political spectrum simply haven't been.

Anonymous said...

But that's just it, Grits - the "integrity unit" and similar projects are a front that enables Hervey to market herself to people of reason as being a judge who is open-minded and fair. And then she will turn around and make a ruling, one not dictated by logic, fairness or current science, to uphold some grotesque trial court error. She could (with current scientific thinking on her side) help eliminate the travesty of unscientific predictions of future dangerousness in capital cases. But she hasn't, even though she has been presented with that opportunity many times. She doesn't have the guts or the honesty to do that because voting "for" a capital murder defendant would lose her votes with her real constituency. So yes, it's nice that she's making the right noises, but the day she translates her new-found zeal for scientific integrity into a vote on the court will be a chilly one down below. Please call her on her hypocrisy by asking her about the contradiction between her public pronouncements and her judicial rulings the next time you are in a public forum with her.