Attorney General: State fire marshal may continue arson review

The Texas Attorney General ruled on Friday that the state fire marshal has authority to review old arson cases, rebuffing West Texas DA Rod Ponton who'd hoped the AG would intervene to stop its consideration of bad science in the Sonia Cacy arson case, in which the court this week will consider a habeas corpus writ based on actual innocence and junk science claims. The Austin Statesman's Chuck Lindell reported today:

The State Fire Marshal’s Office may continue reviewing old arson cases for bad science, Attorney General Greg Abbott said in a formal opinion released Monday.

Nothing in state law limits the office from testing old convictions to determine if the arson cases were based on science or scientific techniques now known to be flawed, false or misleading, the opinion said.

The opinion was in response to a West Texas prosecutor who was upset after the review raised questions about a 1993 murder conviction.

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believed 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 Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott’s opinion, however, stated that state law gives the fire marshal broad authority to investigate cases of arson and suspected arson.

In the Cacy case, reported Lindell:

According to the [state fire marshal's] experts:

• 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 [alleged victim Bill] 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.

Defense lawyers have filed an appeal to overturn the murder conviction.

Meanwhile, my colleagues Nick Vilbas and Jeff Blackburn from the Innocence Project of Texas (IPOT) reported Friday morning at the Forensic Science Commission that the fire marshal's Science Advisory Workgroup (SAW) has identified junk science used to secure convictions in five cases so far, including Cacy's. IPOT sent questionnaires to more than a thousand prisoners in TDCJ convicted of arson, getting responses back from about a quarter of them. Prioritizing murder cases, they vetted them to identify instances where convictions relied solely on testimony from arson investigators and older, outdated techniques, forwarding nine of them so far to a committee of experts convened by the fire marshal. Of those, five of them relied on bad science, in two of them science supported the original conclusion, and two cases had inconclusive results.

The review was not comprehensive. Most prisoners did not return questionnaires and many people convicted were sentenced to probation or had already been paroled. But so far, about two percent of older arson cases examined involve people who claimed innocence and were convicted based on what's now considered junk science - less than one might have expected going in. (The Todd Willingham case, having already been vetted by numerous experts including an extensive report [pdf] from the Forensic Science Commission, was not among the nine reviewed by the fire marshal.)

Those numbers are lower than some experts predicted when the review began. In many cases, there was other evidence besides expert testimony - including confessions, video, and eyewitnesses - that supported findings of guilt. Many inmates who returned the questionnaire did not dispute that they'd started a fire. Blackburn told the commission that the relatively low number of possible innocence cases identified should inspire confidence in the process.

Going forward, now that fire marshal has vetted murder cases, IPOT will be assisting the agency reviewing non-murder cases starting in 2002 (the agency only keeps files going back 12 years). Said IPOT's Nick Vilbas, "We should be able to find some other cases needing review by the SAW panel through this process."

MORE (April 9): The Austin Statesman editorial board praised the new AG opinion and encouraged the fire marshal's arson review to continue.

See related Grits posts:

• Pecos DA challenges state fire marshal review of junk science in arson cases
• Dallas News to AG: Don't go looking for trouble by nixing arson review