Experts: Willingham investigation negligent even by 1991 standards

Yesterday, Texas' Forensic Science Commission held the hearing on faulty arson science in the Todd Willingham case that Chairman John Bradley was appointed 15 months ago to stall past the November election - a task he successfully accomplished, but scientists on the commission ultimately insisted on holding the hearing over his objections. I attended and the (rather small) conference room was packed, with no fewer than 10 TV cameras and a gaggle of reporters and various interested onlookers.

I was somewhat surprised at the crowd because at the last meeting of the commission, which Grits reported on here, there was just one other reporter there besides me (Chuck Lindell of the Statesman) and no other attendees except a few staffers and folks from the Innocence Projects of New York and Texas. In circumstances like that, I tend to more quickly publish a straight-up narrative account. But when there are a room full of people paid to write about an event, I prefer to let them do the heavy lifting and tack on whatever observations I think they may have missed or under-emphasized. In that vein, here are links to initial coverage from various media sources, of which I commend you particularly to the Texas Observer piece by Dave Mann, IMO the best of the lot:

• Texas Observer
• Austin Statesman
• Fort Worth Star-Telegram
• Dallas Morning News
• Houston Chronicle
• Associated Press
• Texas Tribune
• CNN

Go there for primary coverage. What follows are additional observations from my notes and overall recollections.

First, I was pleased this day finally came. Since I never thought it would affect the Governor's race one way or another, I was frustrated by all the finagling to delay it, considering it unnecessary even for political purposes. Prior to this hearing, I had expressed frustration that the case was being used as a political football to debate the death penalty instead on focusing on flawed arson science, as was the Forensic Science Commission's charge. Yesterday that happened, and finally this debate began to cast more light than heat: For that I was thankful.

It's often forgotten in the media frenzy that the FSC is really investigating two, parallel arson cases, not just Willingham's. The concurrent Ernest Willis investigation, where courts overturned the conviction based on essentially similar evidence, was barely discussed at the meeting but whenever mentioned was uniformly acknowledged as fundamentally flawed.

One thing I didn't see reported, but which definitely affected the dynamic in the room, was that the crowd was restless, at times even modestly heckling Chairman John Bradley as he interrogated the visiting scientists in a confrontational, sometimes demeaning fashion. At one point a woman I didn't know sitting two seats down from me exclaimed audibly, "Who does he think he is?" At another point, Bradley was trotting out some (easily rebutted) red herring in response to claims by John DeHaan, one of the top minds in the fire science field who literally "wrote the book" on the topic, “Kirk’s Fire Investigation,” used to train arson investigators since the 1980s (and during the period of the Willis and Willingham cases). As Bradley droned on, an exasperated onlooker in the back exclaimed, "Jesus Christ!," causing the crowd to laugh and twitter. Several times outright laughter broke out, and not always at intentional jokes but also at disingenuous rhetorical ploys by the chair. All that to say, there was a tension in the room from the outset that continued and built throughout the day, driven by the chair's bullying tactics and the collective backbone of the experts and several commissioners who insisted on focusing on the science.  Bradley, instead, clearly wanted to debate Willingham's guilt or innocence. The scientists, to their credit (and the crowd's approbation), wouldn't be baited and simply refused to go there.

Speaking of Bradley, he seemed quite animated by the exchanges with experts, even as they adroitly dismissed his main points of attack. One wag suggested he seemed to relish for once playing the role of defense attorney, trying to inject "reasonable doubt" into the unanimous testimony by fire scientists before the commission. He could have just let them speak and allow the scientists on the commission to ask the questions (the time allotted for questioning each expert was limited), but he dominated much of the discussion, asking more questions and taking up more time than any of the scientists on the panel, who otherwise I thought did a great job. They were engaged, very prepared, their questions were probing, and best of all (from my perspective) they stood up to the chair and insisted on bringing the discussion back to questions of science and ethical responsibility.
 
I thought the state fire marshal sent the wrong guy to speak to the commission - Ed Salazar is a lawyer, not a fire investigator, and his testimony was full of weasel words that the scientists' testimony avoided and later debunked. When an actual arson investigator from the office briefly was called up to answer questions, he much more clearly spoke the language of the scientists on the panel, who appeared frustrated with Salazar's rather brazen portrayal of outdated indicators as probative in the face of denials by the top minds in the fire science field. Salazar admitted he "can't defend the lack of specificity" in the arson investigators' reports, but stood by them anyway, claiming it all boiled down to a "judgment call." It wasn't lost on commissioners, though, that this was a lawyer's argument, not a scientist's opinion.

As Dave Mann's Observer coverage makes clear, the state fire marshal's circle-the-wagons mentality embarrassed themselves and the state. It was really pretty grim. Asked his view of the state fire marshal's continued backing of debunked investigative techniques, DeHaan understatedly declared, “I was dismayed to see that interpretation. It was dismaying to see that all we’ve tried to do in the intervening 15 years didn’t make much difference.” Rather than "dismayed," the word I would have chosen would be that they "disgraced" themselves and the Lone Star state. It's one thing to claim the investigation met standards at the time (though a credible case was made that it did not), but it's quite another to say Texas arson investigators would still make the same finding today. Disgraceful. You're Texans, for Godssake! When you're wrong, stand up like a man and take your lumps. For reasons Mann makes clear, it's obvious the state fire marshal remains in a collective state of denial.

The testimony by fire expert Dr. Craig Beyler and his back and forth with Bradley and other commissioners finally illuminated for me the fundamental critiques of the Willingham fire investigation more clearly than any of the news reporting on the topic. Here's the crux: In the child's room where the fire clearly started, rather than assess the debris in the room, investigators shoveled it out into the yard where it was hauled off as garbage. They did so because their training was to look for pour patterns underneath the debris, but even by standards of the day, said Beyler and DeHaan, they should have at least looked though electrical appliances in the debris to rule them out as causes. They did check wiring in the walls, but that is very rarely the cause of electrical fires, which usually result from something plugged into the outlet, not the wall's wiring itself. That's exactly the type of evidence that was shoveled out the window into the yard and never evaluated. When Commissioner Jean Hampton asked DeHaan if the failure to excavate and evaluate that evidence was "negligent" by 1991 standards, he said "Yes."

Beyler said there were three primary flaws with the original investigation, which he and DeHaan insisted should have resulted in an "undetermined" outcome instead of a finding of arson. First, they ignored plausible alternative hypotheses, when basic arson investigative techniques even at the time required eliminating all accidental or natural causes before issuing an "arson" finding. Second, the hypothesis suggsted by the arson investigator - that Willingham doused the child's room with accelerant, which he then trailed down a long hall to his doorway and lit like a fuse - was contradicted by unrebutted eyewitness testimony: someone who saw Willingham on the porch with smoke coming from the back of the house but not yet in the doorway or hall behind him. While other hypotheses might have been developed if all the key evidence hadn't been shoveled into the garbage, Beyler said heatedly toward the end of the day in rebuttal to the state fire marshal, the hypothesis actually presented at Willingham's capital murder trial could not be supported without explaining away the eyewitness testimony.

The third thing was the use of outdated arson indicators, which is the subject most frequently discussed by journalists covering the Willingham case - the reliance on pour patterns, etc., that have since been debunked. Beyler emphasized that if reliance on those disproven indicators were the only flaw, he would not consider the investigation negligent. Their training changed since then and those were things still being taught at the time of the Willingham and Willis investigations, even if it's regrettable it took so long to upgrade their approach. But the failure to examine evidence or exclude other causes, coupled with unrebutted eyewitness testimony contradicting the investigators' hypothesis, meant the investigators were negligent even by the standards of the day, both Beyler and DeHaan agreed.

Beyler said at the time of the Willingham investigation the profession was "bootstrapping" and understood they were behind the science of the day. The science had been available for years, said Beyler, but forensic arson investigators had refused to acknowledge it and continued relying on what have oft been called "wives' tales" debunked by actual, controlled burns designed to test the old assumptions empirically. Finally, the science was forced upon the profession when experts in civil suits, where stakes are higher and both sides can afford top experts, debunked the old methods, and under the US Supreme Court's Daubert ruling they slowly, haltingly, with great resistance, became obliged to improve their own investigations.

DeHaan maintained, despite energetic, insistent questioning from Bradley, that if investigators' theory of the fire were true, accelerant would have been found in the girl's room, that based on the photos, with the structure still standing, the fire had not burned long enough for all the accelerant to burn up. He cited his own experience setting 500-600 structure fires under a variety of experimental circumstances, including with and without accelerants, in which they determined exactly when and how accelerants burned up. For the amount of accelerant theorized by the original investigators, the house would have had to have burned longer and hotter to get rid of all the chemical evidence. Yet no accelerant was found in either the child's room or the hallway. "Ignitable liquids should have survived," he insisted. He said the finding of an ignitable liquid so far from the ignition point was "irrelevant," and that there are lots of background flammable liquids in the everyday environment, including BBQ accessories on the porch that could explain the finding.

Dr. Kerrigan asked DeHaan whether the state fire marshal had an ethical obligation to review old cases where they'd given bad evidence, but he demurred. She, he, and Dr. Peerwani had a spirited conversation on the topic, though, and much to Chairman Bradley's dismay, Peerwani in particular seemed to think there was a proactive duty to correct. Bradley countered that that obligation was absolved by the defense counsel's duty to put on an opposing case, but of those who spoke, other FSC members didn't seem to concur.

Speaking of whom, I should mention that Commissioners Nizam Peerwani, Sarah Kerrigan, Lance Evans, Garry Adams, Norma Farley and Jean Hampton all had good questions, answers from which most of the analysis above was derived. (If my notetaking were better, the back and forth was instructive.) And Bradley's oppositional stance was actually helpful, in an odd way (with a lot of weird, negative energy attached to it), helping refine the experts' objections to finer and finer points, sharpening instead of dulling their critique. Everybody came with their A-Game yesterday. I learned a lot and came away feeling as though the issues regarding the details of flaws in the Willingham arson investigation were finally, fully vetted. Now we'll wait to see what they finally report.

I'm glad to see this finally happen: Awhile back I bet a beer with a buddy that we'd see Manny Pacquiao fight Floyd Mayweather in the boxing ring before we saw this hearing occur. I need to call my pal up and buy him a cold one.