Pecos DA challenges state fire marshal review of junk science in arson cases

A West Texas DA has sought an Attorney General's opinion seeking to stop the State Fire Marshal from reviewing old arson cases to identify flawed science, the Austin Statesman's Chuck Lindell reported (Oct. 19):

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believes the fire marshal overstepped his authority by examining — and discrediting — evidence used by his office to convict Sonia Cacy of dousing her uncle with gasoline and setting him alight.

In a letter dated Oct. 1, Ponton asked Texas Attorney General Greg Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott, who is running for governor, has until early April to deliver his opinion on the legality of the reviews.

In the meantime, State Fire Marshal Chris Connealy plans to continue examining old arson cases, lining up five more to be reviewed in December. Connealy said he will not abandon an effort that is improving the skills of arson investigators while taking responsibility for investigative techniques now known to be flawed, sometimes leading fires to be mislabeled as arson.

“It’s working extremely well,” Connealy said. “I think it’s a credit to the criminal justice system. I think it enhances it.”

In the interest of full disclosure, Grits works for the Innocence Project of Texas which is representing Sonia Cacy, whose case Ponton objected to the fire marshal reviewing. (See 2010 coverage of her case from the Texas Tribune.) IPOT and likely the Forensic Science Commission and the fire marshal will be responding themselves to the AG, however I'm not an attorney and not involved in that process. But I do know a bit about the underlying issues raised in Ponton's request (pdf), which relies mainly on an AG opinion issued in response to an earlier request by former Forensic Science Commission Chairman John Bradley.

Grits readers will recall that the AG shut down the FSC's investigation into the Todd Willingham case on the grounds that it had no authority to investigate older cases, an interpretation I found strained, at best. In response, state Sen. Juan "Chuy" Hinojosa authored and passed legislation this year specifically expanding the jurisdiction of the FSC and overruling the AG opinion, mooting those arguments. Apparently DA Ponton missed the memo.

Moreover, Ponton's stance in his request relies on a fiction: That the fire marshal is acting as an agent of the FSC in its review of old arson cases. While it's true the FSC recommended the agency undertake such a review, they actually rejected Cacy's case and the FSC has never formally undertaken an investigation in the matter. The fire marshal took up Cacy's and several other arson cases involving bad science on their own steam, not as the FSC's stalking horse. The whole brouhaha over their jurisdiction strikes me as off base and a sideshow.

As for Cacy's case, reported Lindell, the experts convened by the fire marshal found that:

• Today’s science doesn’t support a finding of arson. Instead, the cause of the Cacy fire should have been listed as undetermined.

• The most damning evidence — a forensic test that found gasoline on her uncle’s clothes — was based on misinterpreted results.

• With no smoke inhalation or heat damage to Richardson’s throat and lungs, there is no evidence he was alive at the time of the fire.

Instead, it appears that Richardson, a 76-year-old who smoked up to three packs of cigarettes a day, died of a heart attack while smoking in bed, Cacy’s lawyers argue, adding that numerous burn marks on the furniture show that Richardson was a careless smoker.

Other experts reached similar conclusions in 1998, prompting the Texas Board of Pardons and Paroles to order Cacy released from prison after serving less than six years of her 99-year sentence. Cacy’s murder conviction, however, was unaffected, and she remains on parole at age 66.

The fire marshal's review took no position on Cacy's guilt or innocence - they only examined the validity of forensic testimony at her trial. However, IPOT is pursuing habeas corpus relief for Ms. Cacy and that's what's got the DA hot under the collar.