Saturday, July 24, 2010

If arson science in Willingham case was 'flawed,' what about other, similar cases?

Two pieces of news from yesterday's Forensic Science Commission meeting in Houston stand out: 1) John Bradley's new, unilateral legal interpretation declaring the FSC couldn't investigate the Todd Willingham case was unanimously rejected, and 2) a committee examining the case said in an interim finding that "flawed science" was presented  in the Willingham case, but no negligence or misconduct by investigators occurred. Kuff doesn't mince words about his opinion of the proceedings.

The bombshell here is the finding that the Willingham case was based on "flawed science." As for whether there was negligence or misconduct by investigators, Jeff Gamso gets it right: "Excuse me, but who cares about that?  I mean, sure, we don't want negligent or dishonest investigations.  But this isn't about placing blame.  It's about figuring out what went wrong and how to do better." Reported AP:
Patricia Cox, Willingham's cousin, told commission members she appreciates the group's acknowledgment the forensic evidence used to convict her loved one was flawed.

"Even though there may not have been any malice or intent by fire investigators about not being informed on current standards, that doesn't excuse the fact that based on this misinformation, Cameron Todd Willingham was executed and that can't be corrected," said a tearful Cox.
If the fire science used to convict Willingham was flawed, it hardly matters whether the error was intentional; it sets off major alarm bells: The same fire science was used in hundreds if not thousands of other arson convictions across Texas. CNN quoted state Sen. Rodney Ellis making that point:
On Friday, he said he was "happy" to hear the investigation would continue, but concerned that the investigation was looking for misconduct and negligence in the wrong place.

"Unfortunately, the commission is off-track in terms of what it should be investigating," he said in a statement. "It was painfully apparent that many FSC members believe that flawed science was used in the Willingham conviction, but the FSC does not seem interested in looking at the bigger picture: When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?"
The idea that potentially hundreds of others were falsely convicted of arson based on the same junk science has yet to be widely discussed, but it's almost certain there are many other, similar cases out there, including some people still in prison, some on parole, and some entirely off paper. All deserve to have their names cleared.

In Willingham's case in particular, perhaps it was perhaps excusable not to know back in 1992 that the testimony concluding he committed arson was wrong. But it was inexcusable for the courts and the Governor's office to allow the man's execution to go forward based on junk science in 2004, when the standards for arson investigation had (supposedly) long since formally changed.

Of course, that's precisely the conclusion the Governor was hoping the Commission would formally put off until after the November election when he appointed its new, obstructionist chairman and gave him his marching orders (or more accurately, his stalling orders). It's a tribute to the fact that Mr. Bradley is receiving pushback from his fellow commissioners that even this tepid, interim conclusion was publicly released.


Anonymous said...

So, where are all those who kept insisting Willingham was guilty? It seems even John Bradley is not making that argument anymore.

Anonymous said...

I can't wait to hear the ADAs tell me this shows the system works or that there was other evidence that pointed to Willingham's guilt. Good, then. Let's retry him! Uh, wait a sec . . . . .

Hook Em Horns said...

Rick Perry made sure this was white-washed by firing the three commission members and appointing his crony, Bradley, as chairman. No way Governor For Life Perry, who called Willingham a "monster" could possibly risk his political future.

This thing stinks to high heaven and has since Perry scrambled the commission. Unfortunately this is how things are done in Texas. The good ole boy network is intact!

Anonymous said...

1. The FSC was established in 2005. WTF were they doing before the chair was replaced in 2009?
2. The Beyler report was not stifled. It's out there for everyone to read, and was publicly available even before the board shakeup. Read it, damnit.
3. Beyler said he found no basis for an arson finding.
4. Beyler did not say arson could be ruled out. This national expert was unable to find an accidental cause of the fire.
5. The wife, who is the only living person with first hand knowledge, says Willingham confessed to her.

All of this is a matter of public record. If you really care about this issue, get off your ass and research it properly.

Anonymous said...

The wife was not there the night of the fire, never claimed to be, and therefore has first hand knowledge of absolutely nothing. Get your own facts straight.

The FSC was doing exactly what it was supposed to be doing before 2009-- researching the forensic science, having experts evaluate procedures, including Beyler, and conducting due dilligence. Since 2009, however, John Bradley has been doing his level best to get rid of that evidence and research, including trying to prevent official consideration by the FSC of that report.

The fact that the report says no basis for finding arson is enough. In this country we do not convict people based on "maybe it was, maybe it wasn't." Besides, I think some people are missing the point. The FSC has a goal of determining whether the science was flawed, clearly it was and should not have been used and therefore the conviction was not valid. Either you believe in the rule of law or you don't, but drop the ass covering excuses.

Gritsforbreakfast said...

11:34, Beyler said the fire investigators' testimony offered at trial to reach the conclusion of arson was flawed and the indicators investigators told jurors proved arson did not prove what they claimed. Jurors were told the evidence conclusively demonstrated arson and that was simply junk science. Maybe it "could" have been, but the jurors were told it was certain and the reasons given were false.

Also, the wife, who as 12:01 said had no "first-hand knowledge," has made contradictory claims to the point that relying on the "confession" you say she heard amounts to grasping at straws.

There are two questions you're confusing here, only one of which Beyler and the FSC are addressing: Was the science flawed and was Willingham guilty? Just about everybody who's examined it outside Navarro County thinks the arson testimony was wrong. And since Willingham's dead, debating whether the other scant evidence would have been sufficient to convict him (sans junk science) is like asking how many angels can dance on the head of a pin.

Anonymous said...

<<< The same fire science was used in hundreds if not thousands of other arson convictions across Texas.>>>

Please substantiate this statement.

Do you know how many Texas prison inmates were convicted of arson? Do you have any logical way to determine how many of those convictions were based on "the same science"?

Writing "hundreds if not thousands" is awfully easy and plenty inflammatory (so to speak). Backing it would require actual work.

Anonymous said...

OK, let's look at the "contradictory evidence" that supposedly negates Willingham's confession to his wife.

Grits said, "I don't know which time Kuykendall was telling the truth or what was her motive when she didn't, but I know for sure it can't all be accurate."

Fair enough. Let's try this on for size. During the trial, she stood by him. At that point he could still get out and continue to beat the shit out of her. Remember, he beat her during her pregnancy to try to induce a miscarriage.

After he was in prison and couldn't get to her, she changed her story and said she believed he set the fire. What for God's sake would be her motivation to lie at that point? She'd stand to gain a lot more if it could be proved her innocent husband was executed.

I agree, they can't both be true. But to paint an abused woman, grieving the loss of her three children, as unreliable and a liar is bit much.

Gritsforbreakfast said...

@10:37: There are about 700-800 people incarcerated for arson, according to Jeff Blackburn from the Innocence Project of Texas, but that's just a subset of convictions (which would include people who got probation, deferred adjudication, have already finished serving time, etc.). The Dallas News at one point said there are about 275 arson convictions per year.

Of those convictions, all those before the updated standards in the early '90s relied on faulty junk "science." That doesn't mean they were all innocent - some confessed, in some cases there was other evidence - but the expert testimony didn't qualify as "scientific." After the new standards came about, there's strong evidence many arson investigators continued to use flawed methods into the 21st century, including the investigator in this case. The Fire Marshall in Killeen last year said he thinks the techniques may still be used today: “Whether it is an old-school mentality or sheer laziness because it’s what they’ve always done, I still have to think those old wives’ tales are still getting play in the state of Texas.”

So "hundreds if not thousands" is precisely the range of old arson cases with questionable science to be vetted: Probably no fewer than several hundred, and possibly several thousand.

And to 11:50, supposition is not evidence, and Willingham's ex continued to say he was innocent years after he was any threat to her. That part of your interpretation doesn't hold water, sorry.

Anonymous said...

Unfortunately, most people now seem to believe that people are guilty unless they are proven innocent when it should be innocent until proven guilty.

The only credible evidence in this case was the testimony of the investigators who labeled the fire arson. That evidence has now been discredited leaving no conclusive evidence that Willingham set the fire. Therefore, under the mythical "innocent until proven guilty" standard, Willingham is innocent.

What about the alleged confession? First, the source of the information is questionable, as others have pointed out. Second, even if it is true, we've seen countless times that people do confess to crimes they did not commit. Put yourself in this man's shoes. Imagine that you have just lost your children. You are then arrested, tried, convicted, and sentenced to death for killing them when you know you are innocent. I don't know about you, but if I were sitting on death row, in that situation, I'd probably be struggling to hold onto my sanity. Its possible that, in that situation, one might start to wonder if maybe they really did do it. And, they might even say that to someone. I saw something, I think it was on Dateline a week or so ago, about a guy who confessed 4 or 5 times to killing his daughter. This was during a very long and intense interrogation session with police. It's now pretty clear he was innocent.

So, the confession alone is not sufficient proof to sentence a man to death. I've read about the other so called evidence, all of which seems to be garbage (i.e. what people said about his behavior that night, etc.). What we are left with is absolutely no credible evidence that this man was guilty. Yet, some still insist that he must be. These people are in denial. They are so obsessed with protectin a broken system they can't see what should be as plain as the nose on their face: The State of Texas executed a man with no conclusive proof of his guilt.

My only question is, was this the first? I bet it wasn't.

Anonymous said...

Furthermore, the biggest issue I see at this point is why didn't the Board of Pardons and Paroles or the Governor stop this execution. From what I understand, both had Hurst's report. It seems that what should come out of all of this is a way to make sure it doesn't happen again. Both the Board and the Governor need to start taking their responsibilities in these cases seriously and actually look at the information that is presented to them. The Governor needs to step up and be a man and admit that he screwed up and apologize to Willingham's family and to the citizens of the state whom he failed.

Anonymous said...

Also, changes need to be made in the way these cases are investigated. Instead of letting Fire Marshall Bubba, who attended a class that was, at most, a few weeks long, and who probably barely graduated from high school, to investigate these cases, arson investigators should be required to have degrees in chemistry or physics. They should be very well trained and up to date on the latest science. Think about it. Someone's life and/or liberty is on the line in these cases. They need to be taken more seriously.

Furthermore, this case is probably a good example of why defense attorney's need more access to experts. Why didn't Willingham's attorney call someone like Hurst or Beyler?

Hook Em Horns said...
This comment has been removed by the author.
Anonymous said...

"This national expert was unable to find an accidental cause of the fire."

This national expert was not able to examine the actual fire scene and had to rely only on the information gathered by Fire Marshall Bubba.

If you read Beyler's report and Hurst findings, its clear that its unlikely this was an intentional fire.

Hook Em Horns said...
This comment has been removed by the author.
Hook Em Horns said...

There are people in Texas in prison based on NOTHING but eyewitness testimony. Do you TOUGH ON CRIME IDIOTS understand? N O T H I N G but the results of a line-up. 42...FORTY-TWO--D N A-- EXONERATIONS and the latest NON DNA EXONERATION in Houston on Friday. (Allen Wayne Porter Case) The asinine policies in this state that created 114 PRISONS and MORE FELONIES THAN ANY OTHER STATE are DUMB ON CRIME and it's this mentality that has innocent people locked up.

Anonymous said...

Ho Hum... Next story!

Hook Em Horns said...

Anonymous said...
Ho Hum... Next story!

7/25/2010 02:36:00 PM
Exactly, until it's your ass in front of the judge on some BS charge! Don't think it can happen, neither did those being set free or locked up!?

Anonymous said...

OK- I agree that Bradley is a bully-azzhole and do not know whether Willingham was guilty or not, but, there seems to be a lot of "junk theorizing" on this thread.


Hook Em Horns said...

Anonymous said...

OK- I agree that Bradley is a bully-azzhole and do not know whether Willingham was guilty or not, but, there seems to be a lot of "junk theorizing" on this thread.


7/25/2010 03:14:00 PM
OK Plato, I don't know that I necessarily disagree, however, since when do we allow someone to be executed based on Beyler having said the fire investigators' testimony offered at trial to reach the conclusion of arson was flawed and the indicators investigators told jurors proved arson did not prove what they claimed? Jurors were told the evidence conclusively demonstrated arson and that was simply junk science. Maybe it "could" have been, but the jurors were told it was certain and the reasons given were false.

There is a lot of junk out there but to convict and execute based on this, I think, is fairly serious and shows flaws in how we do things in Texas.

Anonymous said...

That's exactly what Willingham was convicted on: "junk theorizing".

Scott Cobb said...

The important thing about Friday's TFSC meeting is that they confirmed that the forensic science used to convict Todd Willingham was seriously flawed. That acknowledgement is another step towards one day determining whether Texas executed an innocent person. The TFSC will not exonerate Todd Willingham and it was of course never intended that the TFSC exonerate him or confirm his guilt, but it is possible, now that the TFSC is confirming that the forensic science used to convict him was seriously flawed, that a Court of Inquiry could now exonerate Todd Willingham just like a court posthumously exonerated Timothy Cole.

I would like to see a Court of Inquiry initiated to look at the entire Todd Willingham case.

Tex Paine said...

<<< @10:37: There are about 700-800 people incarcerated for arson...but that's just a subset of convictions....

Of those convictions, all those before the updated standards in the early '90s relied on faulty junk "science." ...the expert testimony didn't qualify as "scientific." >>>

Thank you for your follow-up.

You seem to suggest here that prior to the early '90s updates, arson science had no basis in fact - as if arson experts were like doctors analyzing patients according to skull shape. Was it so fanciful?

You may well be right that faulty science underlay many arson conviction. I still believe it may be a stretch to count them in the hundreds or thousands without examining each case.

Anonymous said...

"I still believe it may be a stretch to count them in the hundreds or thousands without examining each case."

Don't you think its time to examine each case?

Anonymous said...

Something else that the TFSC isn't tasked with but someone should be talking about is the complete lack of adequate counsel Willingham had at trial. Anybody who say the Anderson Cooper interview with this David Martin moron knows that he decided the arson investigators were right from the beginning and didn't question the guilt of his client. Had he given a damn, the results might have been different.

You're right, the commission is only meant to look at the science to help improve the system-- something Bradley never had the sense to understand. Ultimately, it's a separate issues whether all the circumstances (lack of effective counsel, flawed science giving way too conclusive conclusions, etc.) resulted in the death of an innocent man.

Tex Paine said...

<<< Don't you think its time to examine each case? >>>

I do - if you can say who will examine the court record for every arson case since the new standards, and also who will pay the examiners.

Saying something "should happen" doesn't accomplish much without the methods and means to get it done.

Gritsforbreakfast said...

"as if arson experts were like doctors analyzing patients according to skull shape."

Now you're beginning to get it, Tex Paine. That's exactly what I'm saying. I'm pretty comfortable with my estimate. Modern arson investigators like the guy from Killeen refer to the old standards as "wives tales." See this related Dallas News coverage.

As for who should do it, when the FBI discovered its bullet-lead analyses were faulty they went back and vetted every case. That should happen here. IMO the Attorney General should partner with the Innocence Project to do it just like Craig Watkins did for DNA cases in Dallas. The same thing needs to be done for dog scent lineups. It's a finite, do-able task. We need a systematic way to deal with this issue of disproven forensics, which is going to periodically come up as science improves.

Tex Paine said...

It's always harder than it looks.

Nobody, not even those noble volunteers at the Innocence Project, has the time to track down all the cases and dig into all the expert testimony. Nor would those volunteers be qualified to weigh the testimony; they're not experts.

I'm not even sure how they'd find cases dating to nearly 20 years ago.

I'd love to see every innocent person in jail exonerated. I'd love for Texas to do away with the death penalty so there would be no question of killing an innocent. (I also happen to think life without parole is a worse punishment, but that's another discussion.)

I just don't know how, in this one narrow instance, of people convicted on faulty arson science, we as a society could backtrack to exonerate the innocent. It is, as a practical matter, impossible.

I also think you're impractically idealistic about politicians. I don't know what you believe Rick Perry could do about Willingham now - not unless he and Bill White got together in private and decided they'd both do the same. You cannot expect a politician to commit political hari kari.

I'm all for idealism! But ideals must be implemented in practical steps capable of being carried out by fallible human beings. That's the hard part.

It's always tougher than it looks. If it weren't, we'd already live in a perfectly just world.

Gritsforbreakfast said...

Tex Paine says of vetting old arson convictions: "It is, as a practical matter, impossible."

I could say the same about preventing crime. Why bother prosecuting, if as a practical matter there will always be another burglary, another robbery, another murder, etc.? You do it because an injustice was done that the state is obligated to right. The same applies here, the only difference being the state is directly responsible for the injustice.

This post doesn't mention Rick Perry and I don't know what "idealism" about pols you're talking about. His role in this is past, though IMO he should have heeded experts critical of the Willingham arson evidence back in 2004. At this point, it's up to the voters to decide what they think about that.

Finally, if the FBI can vet past bullet-lead cases, as difficult as that was, Texas can do it on arson and dog-scent lineups. It's not that big a job and those student volunteers just look for red flags that then get vetted case by case in court. It's a tedious process but it worked in Dallas DNA cases, mainly because the prosecutor embraced instead of resisted the idea. It could work in other types of cases as well, if the naysayers give it a chance instead of simply claiming from the get-go it can't be done. Can't never could.

dudleysharp said...

Based upon the facts, as we now know them, the forensics findings are that no determination of the origin of the fire can be made.

All of the critical reports find that if arson, the flashover would have made the fire indistinguishable from an accidental fire.

This is before the report from the Fire Marshall's Office, which has already stated that they will be standing by their own experts finding that the fire was arson, which would require them to rebut the Beyler Report. We need to wait for the FM report.

In addition, the Corsicana Fire Department issued what looked like a very preliminary report, critical of Beyler, for which we can hope there is a more thorough supplement.

In addition to the reviews by all of the critical experts, my reading of the trial transcripts, the police interviews of witnesses, inclusive of the most recent one, and the admission by Todd Willingham that he lied about trying to rescue his children, collectively, lead me to conclude that he was guilty of murdering his 3 children by arson.

In light of all the new forensic reviews, there will never be a finding that Willingham was factually innocent of the 3 murders, because these critical reviews can only be neutral on the cause of the fire. They don't know.

If we are going to retry the Willingham case in the public forum, in light of better forensics, we must also acknowledge additional new evidence, such as his admission that he lied continuously about his efforts to save his children and that a crime scene witness has come forward, claiming that he saw Todd Willingham moving things from his burning house into his car, as his 3 children died of smoke inhalation and 2 of them were burned completely. If the newer forensics are neutral on the cause of the fire, the additional evidence is not neutral on arson - Willingham murdered his 3 children.

In light of all the collective evidence, if tried today, I believe Willingham would be found guilty of murder by arson.

But, as I have always stated, I think we have a way to go in this case, with more information to come.

The more expansive issue, which is what do we do about all older arson cases, whereby in many, it is more than likely that the arson forensics we flawed? The answer is clear. Follow the law.

Anonymous said...

Don't worry, Dudley. Grits and his liberal bleeding heart buddies won't let the truth stand in the way of their anti-death penalty agenda. As noted by some of the posts on this thread, they are already crowing that they've found the Holy Grail---i.e., that mean ol' Rick Perry executed an innocent. They don't care about the other evidence which might suggest that Willingham was actually guilty of killing three innocent children. But such is always the case folks who are of the deranged believe that every death row inmate in Texas is some kind of "political prisoner." As for opening up all of those old arson cases, it really doesn't matter to Grits that Texas may be about to have an 18 billion dollar budget deficit. Grits would readily sacrifice public safety in this state, and spend every dollar currently allocated in the state budget for law enforcement, prosecution and corrections, on "do good" efforts like the Innocence Project. He'd love to reopen the case of every single inmated currently incarcerated in TDCJ-ID and litigate them ad infinitum. I mean, really, why shouldn't we do that, Grits? According to you, all drug convictions are bogus. We can't rely on eyewitness testimony. Fingerprint evidence is unreliable. DNA evidence is unreliable. Dog scent lineups are bogus. Arson evidence is bogus. Hell, we can't even rely on the ones who pled guilty to actually be guilty, according to Grits. I've got an even better idea: why don't we just let everyone out of prison? And then maybe they could all just move in with Grits and Hookem since they're so convinced that all of these inmates were "unjustly accused" and victims of a "corrupt" system. I used to believe that anarchists only existed in the late 19th and 20th centuries--that they were some historical precursor to the Russion Revolution. Boy was I ever wrong! They're alive and well on this blog.

Gritsforbreakfast said...

The irony, 9:13, is that you have so many complaints and yet return here so frequently to troll. It's also interesting that I've gone from a "liberal" who wants Big Government to an "anarchist" who wants none. I wish all you anons would get your stereotypes straight.

Dudley, IMO without the expert arson testimony there's no way the original jury convicts. Every other piece of testimony either failed to independently demonstrate guilt, was subject to interpretation, or both. We'll have to agree to disagree.

dudleysharp said...


Yes, maybe we will have to disagree.

Today, we have this:

If admissable:

Willingham lied about all of his efforts to save the children.

Willingham was saving property from his house, putting it into his car, as he knew his children were burning/dying.

The evidence might be neutral on arson.

Willingham's ex wife will testify that Willingham confessed to the murders. Of course, she will be cross examined vigorously, as will all.

Still have to wait on TFM.

Hook Em Horns said...

I am not suggesting, have never suggested, that emptying the prisons or examining every conviction in Texas would be practical or a good idea. I do, however, believe there is sufficient evidence on the table to warrant a serious and intelligent review of how we do things in Texas.

We clearly have problems with our system of justice that has watched 42 people freed because of DNA and others freed based on a myriad of other issues including recanted testimony. As a law student, these issues concern me and they should concern every Texan.

Pat Lykos, in Houston, is right. The integrity of our system depends on doing what is right, not what's popular. I would also suggest a return to placing the burden of proof on the prosecution, not on the defense which is something, over the years, we have moved away from.

I am NOT anti death penalty, however, it does concern me that it is just and correct punishment and those convicted actually committed the crime they are dying for.

I would also say the our justice system in Texas was hi-jacked, at what degree you can decide, by this "law an order" political agenda where in order to look "tough on crime" our legislature created more felonies than any other state and built the largest prison-industrial complex in the United States.

We all want to be safe from criminals who will rape, kill and steal and we have to do something to stop the flow of illicit drugs and the crimes associated with them. Having said that, we have an obligation to make sure that those convicted are actually guilty and that many of the short-cuts taken to prosecute are stopped!

Gritsforbreakfast said...

Dudley, I said the other evidence was open to interpretation. Clearly if you skew your interpretations one direction only, as you consistently do, you'll come to the pre-ordained conclusion you're trying to reach. Without the forensic testimony, IMO there's no way Willingham would have been convicted.

dudleysharp said...

The forensic testimony would still be there, but different.

As you know, the TFM office has said they are standing by their experts finding of arson. We have not seen their rebuttal to Beyler, yet.

The defense would state that they can't establish arson or accident.

Add to that Willingham stating that he never tried to rescue his children and a witness that says Willingham was saving his belongings as his children died, . . .

And his ex wife stating that Willingham confessed to the murders . .

Well, yes, we disagree.

Tex Paine said...

Preventing crime has to do with acts yet to be committed. The arson cases are in the past, sometimes long in the past.

Unlike the FBI bullet-led cases, the arson cases aren't all on record at a single facility. Unlike DNA, no yes/no test exists to determine guilt in arson cases. And those cases were tried in courts all over Texas, over many years, involving innumerable prosecutors.

You have yet to specify the PRACTICAL STEPS by which fallible humans can vet old arson cases.

You didn't bring up Perry; others did. But if we want to implement our ideals in society beyond our individual behavior, we have to get politicians to agree with us and then to create PRACTICAL ways the state can accomplish them.

Gritsforbreakfast said...

Tex Paine, I did say how it should be done - though the AG cooperating with the Innocence Project. If you're asking specifically, how each case would be vetted, there are experts developing methods to do precisely that. As I said, it's a finite, do-able task.

For dog-scent lineups it would be even easier because there was only one person doing them. But there are just a handful of arson investigators in the state, and by accessing their back records it would be possible to ID the old cases they worked on. It wouldn't be simple, but neither is it simply impossible as you're trying to portray.

BlackFlame said...

For every flawed case, the guilty are roaming around the country. I wonder if they are breaking the law? Gosh, what are the odds. The disservice to all is that prosecutors have seemingly let the guilt go without consequence. But, they saved their jobs didn't they? And, the public was made to feel safe by catching the bad people. What a scam. Of course, I've always contended that it takes a psychopath to find one.