Has Texas fixed the death penalty?, and other notable Texan commentary on the justice system

A few items, while I have you:

Views of the system from the perspective of the punished
These recent opinion pieces from Texans with experience on the wrong side of the justice system merit Grits' readers attention:

• Beverly Harrison, The Marshall Project, "A Decades Old Conviction Cost Me My Post-Retirement Job"
• Jayson Hawkins, The Marshall Project/Vice, "Sentenced to Life in Prison: And a Job Making Furniture"
• Jorge Renaud, Texas Observer, "The Road to Huntsville"

Discussing drug abuse and families
Meanwhile, with tens of thousands of drug overdose deaths making national headlines, Texans Care for Children this fall in Austin will launch an interesting-looking three-part discussion series on drug abuse, families, and public policy. For state-level policy folk in Texas, it's a good time to be thinking about this sort of big picture analysis more than a year out from the next legislative session. Between Gov. Abbott vetoing Good Samaritan legislation in 2015 - and the Lege declining once again in 2017 to pay for expanded treatment services through reduced incarceration of drug users - it's pretty clear most Texas pols don't yet feel comfortable addressing drug abuse through any but a tough-on-crime lens. Advocates will need new strategies, alliances and messages to get much further. 

Is Texas on the way to fixing its death penalty?

Finally, Pat Metze, a Texas Tech law prof, looked at criticism of Texas' death penalty system in a recent law review article and thinks the Legislature is on its way to solving the problem!! As luck would have it, your correspondent worked on many of the initiatives he's lauding - mostly innocence-type work - which he frames as responses to concerns raised in a 2013 American Bar Association report that was critical of several aspects of Texas' capital-punishment system.

But the Legislature didn't view its innocence work through a capital frame, and it's at best a stretch to attribute anything they did as a response to critics of capital punishment. By contrast, most of those innocence reforms could only be passed because they weren't framed as specifically affecting capital cases.

For the most prominent example, the Texas state fire marshal ultimately was happy to correct erroneous arson science and conduct a comprehensive review of disputed cases. But initially, debates over arson science were framed around the case of Todd Willingham, who was executed based on flawed arson testimony in the face of his claims of innocence. The resulting culture-war brouhaha nearly caused then-Gov. Rick Perry to disband the Texas Forensic Science Commission, the FSC's general counsel revealed to a recent national gathering. That pattern has been consistent - reforms can often happen in Texas if they're not about the death penalty or other hot-button culture-war topics - which is why it's odd to portray Texas as acting specifically to correct flaws in the capital punishment system.

Given that the US Supreme Court has taken to bench slapping the Lone Star State two or three times per year on death-penalty matters (e.g., Moore, Buck, etc.), the perspective Prof. Metze offers here definitely qualifies as a revisionist view. A capital-attorney friend who'd seen Metze's article told me it made her "blood boil."

In that light, I teasingly asked Grits' contributing writer Jennifer Laurin, one of the authors of the 2013 ABA report, whether this means "Mission Accomplished!" She responded, "The short answer is that Texas has made big strides on innocence reform, and continues not to touch anything that redounds to the exclusive benefit of capital defendants. And actually I think the analysis in the article bears that out." More on this later, for sure, but I wanted to flag the link.

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:

Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.

The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Marshall Project: Prosecutor misled court about aid to Willingham snitch

The brand spanking new Marshall Project, a nonprofit journalism project focused on criminal justice, launched its first big feature this week: An examination by Maurice Possley of the remaining evidence against Todd Willingham outside of now-debunked arson testimony, honing in in particular on a confidential informant, Johnny Webb, who later recanted his testimony. Possley was one of the Chicago Tribune reporters who first credibly alleged that, by killing Willingham, Texas may have executed an innocent man.

The New York Times earlier this spring reported that Webb's cooperation agreement had never been disclosed to the defense. The Marshall Project's notable addition to the story: At trial, John Jackson told the court the informant received no benefit from his testimony. But in reality, he arranged substantial financial assistance through a third party and aggressively sought clemency for Webb even after he ascended to the bench and was no longer a prosecutor, Possley reported. The article does a nice job of linking to primary sources for most of its more controversial claims.

See more analysis of the new revelations from a national Innocence Project press release. The Dallas News editorial board opined in response that, "Outrageous allegations of unethical or illegal gamesmanship in the prosecution of Cameron Todd Willingham, who was executed in 2004, need a thorough and transparent examination by the State Bar of Texas."

Combine this Marshall Project article with David Grann's New Yorker piece on the case, the Texas Forensic Science Commission's mammoth report (large pdf) on junk arson science in this and the Ernest Willis case, Possley's original Chicago Tribune report (with Steve Mills), Judge Charlie Baird's never-issued opinion from the halted court of inquiry, and, if I may be so bold, Grits' Willingham coverage, which contains links and references to lots of contemporary material, and you'd have a pretty decent summary of all that's happened before and after Willingham's 2004 execution.

This deadly fire nearly a quarter century ago in Corsicana must be one of the exhaustively reported (probably non-) crime stories of the modern era. If it can be uncovered via methods of law, journalism, science, or government inquiry, it's likely been explored in the Willingham case. Ironically, so many resources have been thrown into this endeavor precisely because Todd Willingham is dead. If he'd been incarcerated on a life sentence like Ed Graf (who won a new trial, delayed until September while the DA looks for their lost files, and is now sitting in the McLennan County Jail), sadly I doubt the national press would blink an eye.

'Leading Fire Investigation Into the 21st Century'

At TexasMonthly.com, Brantley Hargrove has a substantial piece titled "Leading Fire Investigation Into the 21st Century" about the case of Sonia Cacy, a West Texas woman accused of arson who was found guilty based on flawed junk science. For the record, Cacy is currently represented in her habeas corpus proceeding by Gary Udashen, who is board president of my employer, the Innocence Project of Texas.

Hargrove framed the story in terms of the renewal and revival of arson science in Texas beginning when Gerald Hurst first analyzed expert testimony in Sonia Cacy's case to help her secure parole in the 1990s. He related the role of the Todd Willingham execution and the post-mortem political fiasco surrounding the Texas Forensic Science Commission as a spur to banishing bad science in Texas arson cases. And he described state fire marshal Chris Conneally's panel of experts reviewing old arson cases like Cacy's and Ed Graf's to identify bad science and reinforce the use of the good stuff.

Grits is happy to see wider coverage of these obscure but important topics. Go read the whole thing.

Willingham prosecutor allegedly failed to disclose jailhouse snitch deal

The New York Times this week (Feb. 27) published an article on the Todd Willingham case casting doubt on the credibility of a jailhouse informant who provided the only evidence besides flawed arson science suggesting that Willingham, who has since been executed, set the fire that killed his three children. Reported the Times' John Schwartz:

Mr. Willingham was convicted on charges of setting the 1991 fire in Corsicana, Tex., that killed his three children, and was sentenced to death the next year. The conviction rested on two pillars of evidence: analysis by arson investigators, and the testimony of a jailhouse informant, Johnny Webb, who said that Mr. Willingham had confessed the crime to him.

The arson investigation has since been discredited; serious questions were raised about the quality of the scientific analysis and testimony, which did not measure up to the standard of science even at the time. But the prosecutor who led the case shortly before Mr. Willingham’s execution argued that even though the arson analysis had been questioned, the testimony of Mr. Webb should be enough to deny any attempt for clemency.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony. ...

The Innocence Project also contends that prosecutors suppressed an effort by Mr. Webb to recant his testimony. ...

What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.

As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

Flawed forensics and prosecutorial misconduct are a potent mix. No one will ever know for certain whether Todd Willingham was innocent or guilty - one can't prove a negative - but it's pretty certain at this point he should never have been convicted in the first place.

Dallas News to AG: Don't go looking for trouble by nixing arson review

The Dallas News editorial board published a staff editorial last week (reprinted in full on the Odessa American website for those without a subscription) chastising West Texas DA Rod Ponton out of Fort Stockton for requesting an Attorney General opinion that would block state fire marshal Chris Conneally's review of flawed science in old arson cases (see prior Grits coverage). Ponton wants Attorney General and Texas gubernatorial candidate Greg Abbott to stop the fire marshal's investigation into shoddy forensics, pulling a page from John Bradley's playbook when Rick Perry appointed him chair of the Forensic Science Commission and he tried to stop the FSC's investigation into the Todd Willingham case. Here's how the editorial begins and ends:

Don’t go looking for trouble where bad arson convictions are concerned.

That’s the gist of a West Texas district attorney’s request to Attorney General Greg Abbott — essentially a request for roadblocks to analyzing old arson cases where modern science casts new light on expert testimony used to convict people.

Problem is, the trouble can’t hide. It’s already clear that the justice system has allowed junk science into Texas courtrooms. It would be a travesty to turn a blind eye to the injustice that has caused, and Abbott should not be a party to it.

Criminal justice reformers have made progress to modernize the use of forensic science in Texas, and we’d hate to see that rolled back. ...

It doesn’t become the district attorney to try to build a wall against the truth. Opponents of the [Todd] Willingham inquiry tried that, and the Forensic Science Commission refused to wear the muzzle. It’s a credit to Connealy that he is taking seriously the duty to correct.

This year, state lawmakers struck two more blows for modernized forensic standards. One, they clarified the Forensic Science Commission’s authority to pursue arson cases. Two, they passed a law to give appeals courts new rationale to overturn convictions secured through outmoded forensic work.

Through the court system, the state wields awesome power over an individual’s liberties. There should be no tolerance for any vestiges of junk science to remain in the state’s legal arsenal.

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.

Hair and fiber review needn't center on death-penalty debate

It would be a shame if culture war debates over the death penalty were to overshadow an important inquiry by the Texas Forensic Science Commission into possible false convictions based on erroneous testimony by forensic analysts regarding hair and fiber comparisons. Yamil Berard at the Fort Worth Star-Telegram on Sunday offered up a story on the Forensic Science Commission's review of hair and fiber evidence (see here) for possible innocence cases, citing the case of a man executed in 2000 based solely on hair-comparison testimony. The article opened:

Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

The commission hopes that labs will self-report examples of miscroscopic hair analysis and dig up old reports, transcripts and testimony.

See a 2010 story from Dave Mann at the Texas Observer for more background on the Jones case. According to Mann, "His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones."

Long-time readers will recall how the commission's focus on the Todd Willingham case caused the Governor to intervene to stop the commission's review of old arson convictions. Rick Perry appointed since-ousted Williamson County District Attorney John Bradley to chair the FSC. Bradley immediately halted the arson inquiry, claiming it amounted to an end-run by death-penalty abolitionists. The episode delayed and nearly ended the arson review, which only resumed in earnest after the Texas Senate refused to confirm Bradley's appointment.

Really, though, the commission's inquiry into flawed arson science wasn't death-penalty specific and neither is the review of faulty hair analysis. Grits becomes frustrated that the media and some advocates prefer to frame every criminal justice issue in terms of the death penalty when the vast majority of convictions based on flawed forensics aren't capital cases. Mr. Jones' case may have been a travesty, but nothing the FSC does now will benefit him. The focus should be on boosting the integrity of the justice system in all cases, not rehashing tired culture war memes that distract from goals they can actually accomplish.

Read more here: http://www.star-telegram.com/2013/08/11/5071996/forensic-science-commission-to.html#storylink=cpy

Judge recommends habeas relief in conviction based on junk arson science

Following a habeas hearing in district court discussed earlier on Grits, Judge George Allen in McLennan County has recommended a new trial based on expert testimony that the arson investigation in the two-decade old case was profoundly flawed. See related coverage:

• Texas Observer: After serving 25 years, Ed Graf may finally receive a new trial 
• Texas Observer: Judge recommends new trial for Ed Graf; see also the Observer's 2009 coverage of the case.
• Waco Tribune-Herald: Judge's okay puts Graf one step closer to new trial in murder
• KWTX-TV: Judge recommends new trial for local man convicted of sons' fiery deaths

Graf's case will be the first time the Texas Court of Criminal Appeals will consider whether a defendant convicted based on junk arson science may be entitled to habeas relief, or at least the first since the whole controversy over the Todd Willingham case brought international attention to the subject. But precedents at the high court are all over the map regarding whether such convictions can be overturned when the science changes or improves, and several judges on the CCA think it shouldn't be allowed. The Texas Legislature this spring will consider a bill (expected to be filed next week) to close that gap in state habeas law to clarify that new, potentially exonerating scientific evidence can provide a basis for post-conviction relief. The measure is one of two recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions that the Legislature has not yet acted upon (the other is to require police to record custodial interrogations). For Graf's sake, and others similarly situated, I hope it passes this time around.

This morning Grits is headed to the Forensic Science Commission meeting where they'll hear a presentation on the status of the arson review being conducted by the state fire marshal and my employers at the Innocence Project of Texas. After the politicized brouhaha surrounding the Todd Willingham case, it's a welcome relief to see these topics addressed in a calmer, more thoughtful and systematic fashion. But unless and until the Legislature or the court clarifies that false convictions can be overturned based on new, exonerating science, it's impossible to envision how the end-game will play out, either in Graf's case or others involved in the arson review.

Prosecution failed to dispute expert testimony at habeas hearing on arson science

Dallas News editorialist Sharon Grigsby has a blog post about Ed Graf's habeas hearing in Waco last week, complementing Waco Tribune-Herald coverage over the weekend. Grigsby, who was childhood friends with Graf's sister, pointed to similarities between expert testimony in Graf's habeas appeal and the expert conclusions in the Todd Willingham case, providing links to documentation from Graf's fire experts and the Craig  Beyler report debunking arson investigator testimony used to convict Willingham. As Grits suggested last week, both cases involved the use of arson "indicators" that are no longer considered valid in the field, and in both cases the bulk of the probative evidence was hauled  off to the dump before it could even be examined. From Grigsby's post:

The arson investigators at the time had little understanding about, among other things, how fire burns. Bluntly, they seemed clueless about the science involved. One example: The arson investigator thought fire can burn straight down, through a plywood floor, when that’s just not the case.

Rodger [Jones], who has written a lot of editorials about the Cameron Todd Willingham case, says he sees remarkable similarities between the Graf reports and reports done on the controversial Willingham case. The initial arson investigators in Willingham’s case had the same poor grasp of the basics of fire science as they did in the Graf case.

In my opinion, the new analysis in the Graf case indicates the same use of “old wives’ tales” used by arson investigators in reaching their conclusions.

Notably, reported the Tribune-Herald, the McLennan County District Attorney declined to put on his own expert witness at the habeas hearing on Friday, leaving testimony by the two experts brought by Graf's legal team unrebutted. (In the interest of full disclosure, Graf's attorneys work with Grits' employers at the Innocence Project of Texas, though I have no knowledge of the case beyond published news reports.) Without the arson investigator testimony, Waco attorney Walter "Skip" Reaves told the paper, “I feel at minimum we will get a new trial out of (the hearing), and if we do, then I don’t think they’ll re-try it because I don’t think there is any evidence of arson.” If that prediction sounds optimistic, it's certainly bolstered by the fact that the McLennan DA failed to dispute the validity of expert testimony at the habeas hearing.

These old arson cases present a challenge for the Court of Criminal Appeals, which has struggled in determining whether convictions based on false forensic testimony may receive habeas corpus relief. However, without the culture-war circus surrounding capital punishment in the Willingham saga, cases like Graf's allow for a more thoughtful consideration of how to secure justice when junk science is presented as fact in the courtroom.

First case under consideration in Texas arson review

The Dallas Morning News editorial board offered praise this week for the arson review being conducted by the state fire marshal and my employers at the Innocence Project of Texas in an item ("Duty to correct arson cases," Jan. 9) which opened thusly:

Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.

Just this week in Houston, the state fire marshal’s office sat down with outside experts to pore over a short list of old arson cases suspected of using junk science to put someone behind bars. One of those suspect cases, from the Central Texas town of Hewitt, is on a separate review track in McLennan County. The district attorney there has cited “serious and complex issues” involving arson forensics in the murder conviction of Ed Graf, who will get a hearing Friday on a writ to reopen his 26-year-old case.

All this traces back to the noisy early days of the Texas Forensic Science Commission and its first case, the arson-murder conviction of Cameron Todd Willingham, executed in 2004. Critics were prone to calling reformers out of bounds, grandstanders who were out to undermine Texans’ support of the death penalty.

Those critics need to take a look today. The fight was a righteous one and has yielded a kind of systematic re-examination of the science in arson convictions that is unprecedented in the nation.

The News pointed to a Waco Tribune Herald report from December ("Experts to testify in Ed Graf arson/murder case from 1980s," Dec. 23) on the first arson case to undergo joint review by IPOT and the fire marshal, that of a man named Ed Graf. A hearing on Graf's habeas writ was scheduled in Waco for today. The Trib story opened:

Two of the nation’s leading fire science experts are scheduled to come to Waco next month for a hearing that will help decide the fate of a Hewitt man who claims he was wrongfully convicted of arson murder.

But the hearing could have implications far beyond Ed Graf’s case, said Jeff Blackburn, chief counsel for the Innocence Project of Texas.He said the state’s criminal justice system is starting to come to terms with the idea that junk science contributed to a number of wrongful convictions in recent decades.

But the state’s highest criminal court has not yet developed a uniform and fair way of handling such injustice, he said.

The hearing in Graf’s case, scheduled for Jan. 11, will be the first post-conviction hearing in Texas where attorneys will present evidence to show faulty fire science was used to secure an arson conviction, Blackburn said.

If he and Waco attorney Walter M. Reaves Jr. are able to provide the level of proof they think they can, Graf’s case could well be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnared by bad science, he said.

“The law in this area is complicated and generally terrible, but the facts of Ed Graf’s case are not,” Blackburn said. “It shows the stark possibilities of the way science can be misused and abused in a courtroom. The guy shouldn’t have been convicted and deserves a new trial.”

The DA and Graf's ex-wife still believe he is guilty, but the arson "science" in Graf's case eerily tracks the outdated and debunked techniques in the Todd Willingham debacle. Again, from the News:

The commission’s final report — while not commenting on Willingham’s guilt or innocence — said prosecutors relied on arson investigators who had a poor understanding of fire science and learned their craft when there were no uniform standards.

Those very themes surfaced in the Graf case, in reports compiled by experts retained by the Innocence Project of Texas. Prosecutors put Graf away for life after his two stepsons burned to death in a frame storage shed behind his house.

Yet the state arson investigator had little grasp of how fire burns and employed “old wives’ tales” in reaching conclusions, one expert wrote. Worse, there was no “crime scene” to examine, since the burned-up shed had been knocked down by volunteer firefighters and hauled off to a dump.

That's exactly what happened in the Willingham case, where probative evidence was simply hauled off to the dump and the main arson indicators cited by investigators are no longer considered valid.

Grits has no connection to IPOT's legal work on Graf's case and knows nothing more about it than has been reported in the press. But I've spent a great deal of time analyzing the revolution in arson investigation that's occurred since the early '90s, and feel strongly that the possibility of error in some of these older cases was high. For that reason, Grits agrees with the Morning News that "Graf, at the very least, deserves another day in court." And today's the day.

Fifteen of 250 men executed under Rick Perry faced death declaring innocence

The Texas Tribune this week published an infographic providing comprehensive data about each of the 250 executions under Governor Rick Perry's watch, the most recent of which occurred on Halloween. One of the information elements included was each of the offenders' last statements, which this morning I examined in some detail. Many Texas capital offenders faced death silently; others said goodbye to family and friends. Some prayed or recited scripture. A significant number expressed repentance and/or begged forgiveness from victims' families. But a significant minority of those 250 men faced death declaring their innocence - 15, to be precise, or six percent, by Grits' count. Those were:

2001: Mack Hill
2002: Robert Coulson, Richard Kutzner (“If Mr. McDougal had allowed the DNA evidence, I would be exonerated”), William Chappell
2004: Cameron Todd Willingham
2005: Luis Ramirez
2006: Derrick Frazier
2007: Roy Pippin
2008: Gregory Wright, Elkie Taylor
2009: Willie Pondexter
2011: Cary Kerr, Steven Woods
2012: Keith Thurmond, Jonathon Green

That list excludes those who claimed innocence by self-defense, including only those who said flatly some version of "I'm innocent," "I didn't do it," "They got the wrong guy." Some suggested alternative suspects, begging to tell victims' families who really did it just before the needle went in.

Todd Willingham is on that list, claiming his innocence and cursing his ex-wife to the bitter end. Carlos DeLuna predated it. Those are the two names one most frequently hears associated with claims that an innocent person has been executed. And Grits wouldn't be surprised if many or most of those claiming innocence on their death-bed (I guess a gurney is a bed) turned out to be lying, for reasons as twisted as their acts, or at least more culpable than they claim, even if I can't understand the motive for dissembling at that late hour. But all of them? At that final, moment of truth?

Of course, Grits has argued that the public wouldn't reduce its support for the death penalty even if it were definitively proven that an innocent person had been executed, but that's a debate for another day. In the meantime, let me know your opinion in the comments: What are the chances Texas executed an innocent person on Rick Perry's watch?

Todd Willingham, Carlos DeLuna, touted as innocent Texans executed

Two items deserve Grits readers' attention related to possible false convictions that ended in Texas executions.

First, Todd Willingham's family, in conjunction with the national Innocence Project, is seeking a posthumous pardon, according to reports from numerous sources (e.g., see reports from the LA Times, the Texas Tribune and the Houston Chronicle). The national Innocence Project has posted documents related to the pardon application on this page. The news comes on the heels of additional coverage out of the LA Times about the review of old arson cases spawned by the Forensic Science Commission's report on the Willingham case. And the new state fire marshal has said he'll use the FSC report to revamp his agency's training and instruction protocols. So whether Willingham ever secures a posthumous pardon - and while Rick Perry is Governor, one tends to doubt the prospects - there's already a significant positive legacy stemming from this possible false execution. It will be interesting to see how the Board of Pardons and Paroles will respond.

Meanwhile, "In May, the Columbia Human Rights Law Review dedicated an entire issue to the story of Carlos DeLuna, who was executed by the state of Texas in 1989," reported the Boston Review on Oct. 22. "The article, “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” forthcoming as a book, runs 434 pages long, reads like Truman Capote’s In Cold Blood, and is groundbreaking in its detail and scope. Its conclusion: Texas murdered an innocent man." I haven't read Los Tocayos Carlos but the summaries I've seen (see prior Grits coverage), including the bullet points highlighted by the Boston Review, make it sound as though the case for his innocence may be more compelling, even, than for Willingham. In the Willingham case, no one could definitively say he didn't do it, merely that the arson testimony convicting him was hokum.. In Carlos DeLuna's case - which was based in part on a sketchy, cross-racial eyewitness identification - basically another man went to his grave saying "I did it." The case for DeLuna's innocence seems to be strong, though I'd want to read, or at least peruse (I won't pledge to review the thing!), the daunting tome that's been published before judging their conclusions.

'Forensics on Trial': Texas forensic commission at forefront of vetting forensic errors

PBS's NOVA on Wednesday ran a show titled "Forensics on Trial" (you can watch it online) with the following promo description:

There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In "Forensics on Trial", NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

Faulty forensics are important and account for a statistically significant proportion of exonerations, but IMO they're a much less common direct cause of false convictions than things like eyewitness error, ineffective defense counsel, and police or prosecutor misconduct. Forensics are usually used as corroborative evidence after an arrest has been made and with a few notable exceptions (e.g.,, DNA and fingerprint matches, DWI evidence) are seldom the sole evidence pointing to a defendant's guilt. Still, it's certainly on the short list and, as the Forensic Science Commission's reviews have shown, there has been a significant amount of error and incompetence to be rooted out in Texas state crime labs. The PBS report doesn't mention Texas, but it should be noted that the Texas FSC represents a pioneering effort at state-level forensic oversight, which has continued even after the cameras stopped rolling in regards to the whole Todd Willingham brouhaha.

True, the FSC's findings have no "teeth" and are sometimes spun rather generously toward the labs. OTOH, labs have been surprisingly compliant with their investigations, and if you agree sunlight is the best disinfectant, then exposing problems in detail serves a significant function. (I've learned a lot.) Plus, assistance by DPS, ASCLD/LAB, the Court of Criminal Appeals' "integrity unit," the state fire marshal, the Innocence Project of Texas, and other entities has given the FSC an extended  reach which would otherwise remain beyond their grasp. No one involved could fail to find fault with various aspects of the Texas FSC's processes, particularly when John Bradley was chair, but also before and after. However, a reform bill carried by state senator Juan "Chuy" Hinojosa, which nearly made it through the process last session and is expected to pass next spring, may ameliorate some of the most pressing limitations on the agency's authority.

Texas has focused its attention on issues surrounding forensic (and for that matter, eyewitness) errors more intensely than almost any other state. Before the NAS report was even begun, Texas labs had to be accredited by 2005, the year the FSC was created. So the state deserves credit for beginning to wrestle with these questions well before the National Academy of Sciences' much-publicized 2009 report on flaws in forensic analysis, though that certainly gave the FSC a much-needed jump start. All this to say, despite the Forensic Science Commission's rather odd makeup and some fixable, structural flaws, its detailed investigations provide much more information about what's going on in state and local crime labs than Texas ever had before the commission ramped up its efforts.

We're only at the beginning of an era when the scientific method is being applied to historically accepted forensic products, and the results so far have been a mixed bag. But at least Texas has created a mechanism capable of documenting crime-lab problems about which, a decade ago, we perhaps wouldn't even be aware. The NOVA special is right that we're in an era when forensic sciences are "on trial." But to the extent forensics is science, it should be constantly put "on trial," and I'm gratified that Texas has created a mechanism, however flawed, for doing so.

MORE: From Boing Boing.

State fire marshal pledges to assist in innocence review of old arson cases

Texas' new state fire marshal, Chris Connealy, told the Forensic Science Commission on Friday that he will use recommendations in the commission's report on the Todd Willingham arson investigation as a blueprint for reforming the agency, and even "go beyond" them. The former Houston and Cedar Park fire chief, who took the job about a month ago, embraced scientific advancements in the arson field that the agency heretofore strongly resisted. The fire marshal will update its training and standard operating procedures, he said, and create a new science advisory committee. Connealy also pledged to work with my employers at the Innocence Project of Texas (IPOT) to review arson convictions of current TDCJ inmates for potentially valid innocence claims based on flawed forensics.

I got to visit a bit with Mr. Connealy after the meeting and he seemed just as committed to confronting flawed arson forensics as his predecessor seemed committed to ducking the issue. Frankly it was a breath of fresh air.

Jeff Blackburn, chief legal counsel at IPOT (and my boss at my day job), updated the commissioners on the work that's gone into the arson review project so far. IPOT conducted reviews of 1,085 arson convictions, said Blackburn, and identified 25 or 26 which justify significant additional review. Blackburn said he expected a more thorough vetting would weed out more, and speculated that perhaps 10-15 arson cases may end up going forward seeking relief, though it's too early to say for sure, he emphasized. (N.b., Grits works with IPOT on the policy side and is not involved with the arson review or any legal work regarding innocence claims.)

The common denominator in the 25-26 cases, said Blackburn, was poor work by the defendants' (usually appointed) legal counsel who failed to adequately vet questionable testimony from arson investigators, either through cross-examination or their own expert witnesses. (For those interested, I've uploaded a document Blackburn presented to commissioners updating them on the process.)

Once IPOT has narrowed down the numbers as much as they can through their own research, they and the state fire marshal will convene mutually agreed upon experts to evaluate potentially flawed testimony from arson investigators. At that point, where experts believe flawed testimony led to false convictions, the question becomes whether it's possible to secure relief from the Court of Criminal Appeals through writs of habeas corpus, or if the court's majority will continue to block innocence claims based on invalid science.

Never-issued opinion would have exonerated Todd Willingham

Former Travis County District Judge Charlie Baird, a past member of the Texas Court of Criminal Appeals who is currently competing in a heated primary for District Attorney, wrote an 18-page opinion in the Todd Willingham court of inquiry that was never issued because an appellate court shut the process down, reported Michael McLaughlin at the Huffington Post:

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

Scientific experts who debunked the arson evidence used against Willingham at his 1992 trial and a jailhouse witness who recanted his shaky testimony convinced District Court Judge Charlie Baird in 2010 that "Texas wrongfully convicted" him. But Baird's order clearing Willingham's name never became official, because a higher court halted the posthumous inquiry while it considered whether the judge had authority to examine the capital case.

While waiting for permission to finish the case from the Third Court of Appeals, Baird put together the document that "orders the exoneration of Cameron Todd Willingham for murdering his three daughters," because of "overwhelming, credible and reliable evidence" presented during a one-day hearing in Austin in October 2010.

"You can't do anything for Willingham except clear his name," Baird told The Huffington Post. "When they tried Willingham, I'm convinced that everyone worked in good faith. The problem is that up until the execution, everything had changed so dramatically that you realized the science relied upon at trial was not reliable enough to take a man's life."

Baird's intended order never came to light because the court of appeals criticized his handling of the case and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

For whatever reason, McLaughlin didn't post a link to the order, but I asked Judge Baird for a copy and here it is, for anyone interested. He concluded that "no reasonable juror would have convicted Willingham in light of the newly discovered evidence."

Todd Willingham may be the most infamous case of a Texan executed based on a flawed, likely erroneous conviction - Grits refers to this class of executed defendants as "probably nots" - but he's not alone. Along with the Forensic Science Commission's final report (large pdf, see background here), Baird's draft opinion provides a capstone on the debate over Willingham's case for the public and perhaps historians, despite it's lack of legal weight.

Grievances filed against Bradley, Anderson and Davis

A group I'd not heard of, the Texas Coalition on Lawyer Accountabilty announced that it has filed grievances aganst current Williamson County District Attorney John Bradley, former Williamson County District Attorney (and current District Judge) Ken Anderson, and former Williamson County Assistant District Attorney Mike Davis. Go here to download copies.

The grievance against Bradley includes allegations related to the Forensic Science Commission's investigation into flawed forensics underlying Todd Willingham's conviction, in addition to alleged misconduct related to the Morton case. Via Wilco Watchdog.

MORE: See additional analysis from Wilco Watchdog. And from the Texas Tribune.

UPDATE/RELATED: Via KXAN-TV, "John Bradley files for re-election."

John Bradley's Willie Horton?

The blog Wilco Watchdog goes for the jugular vs. District Attorney John Bradley and District Judge Ken Anderson, attacking their "tuff on crime" credentials head on by exploring a plea deal they cut with an alleged child molester - from a 3rd degree felony to a Class A misdemeanor -  who later showed up on NBC Dateline's "To Catch a Predator" series:

• To UNCatch a Predator: Another Travesty of Justice
• To UnCatch a Predator: The Full Story

Thanks to the reduced charges, the defendant spent 97 days in jail for the misdemeaor then went on his merry way until Dateline caught up to him. Wrote the Watchdog, "It is one thing to just be sloppy or have temporary lapses in judgment, but it is quite another thing to turn a child predator loose with a slap on the wrist, freeing him to act again." That's a rough and tumble attack, but it's also the kind of thing John Bradley slings at others all the time in the press without giving it a second thought: Live by "gotcha" politics and you may well die by it.

In a past life, Grits was a professional opposition researcher for around 13-14 years, working in a total of roughly 68 campaigns, and I can't recall a candidate with as much negative research handed to the opposition on a platter before you even get started digging. Offhand:

1. Delaying the Todd Willingham investigation at the Forensic Science Commission, leading to a refusal by the Republican-controlled Texas Senate to confirm his nomination (lots of negative quotes about his performance just a Google search away).
2. The Michael Morton fiasco: Opposing DNA testing and disclosure of exculpatory evidence withheld from the defense. Dismissive comments about Morton to the press while he was in prison.
3. Cynical attitude toward innocence and DNA testing.
4. Tried to water down Texas' much-praised probation reforms.
5. Behaves like a bully.
6. The UnCatch a Predator angle, which includes footage that would make a devastating TV commercial.

These are messages that, combined with a general anti-incumbent sentiment among voters, create plenty of fodder for attacks against John Bradley in the electoral arena. And those are just the easy ones. A full-blown opposition research effort would inevitably discover more given how long he's been in office. You'd want to poll them to see which ones resonated most with the public, but any one could be devastating. Collectively they could wipe the incumbent off the electoral map if he faces opposition with enough money to deliver those messages to the voters. Bradley already has drawn a Democratic opponent in 2012, but anyone with a D by their name is at best a longshot in Williamson County. However, rumors are swirling that Bradley may face an opponent in the GOP primary, which would be an even greater threat.

UPDATE: For another, similar tale from the Wilco Watchdog, see also "To Uncatch a Predator: Another predator, another catch and release." In that sordid tale, a local law enforcement official was allegedly given a relatively light sentence when accused of fondling his underage step daughter.

'Incendiary' Rick Perry, Todd Willingham and the death penalty

The Texas Tribune on July 12 in Austin is hosting a screening of the documentary Incendiary, which focuses on the Todd Willingham case, at the Bob Bullock state history museum. Go here to sign up, and use the code SpecialRate to receive a discount on the ticket price.

That said, I don't think the Willingham story will have nearly the effect on a possible Rick Perry candidacy as do some national pundits. Conor Friedersdorf at The Atlantic confuses optimism with analysis when predicting that California or Texas may soon abolish the death penalty because, "In the Golden State, it costs too much to execute the guilty -- and in the Lone Star State they've likely killed an innocent." In response to a post at Sentencing Law and Policy, I left this rebuttal in the comments: "Not a prayer Texas does it. Proving an innocent person was executed will not be a silver bullet ending the death penalty, that's abolitionist fantasy. According to the polling I've seen, a majority of people who think the state has already killed an innocent prisoner still support capital punishment."

Another reason it may not matter is Perry's unique strategic approach of pandering to the hard right while  ignoring the media and swing voters. A Perry presidential campaign would seek to win the GOP primary by pressing as hard to the right as possible, then hoping the tide of history washes him ashore at the Whitehouse without ever needing to appeal directly to centrists. Whenever challenged, demagoguery over the death penalty can and will obfuscate the issue enough for GOP voters to blame the controversy on the "liberal media" before moving back to their red-meat issues. In the GOP primary, it's too easy to shrug the issue off because of the volume of death penalty cases in Texas and the fact that no other Republican candidate would have done any different. For that matter, the death penalty is not an issue that particularly contrasts GOP candidates with Obama, who's after all out there initiating targeted assassination campaigns.

In the end, if a Republican wins the next presidential election it will be because of the economy, not any culture war issue like the death penalty. Perhaps I'm wrong - time will tell - but I have a hard time envisioning the Willingham case being raised in a context where it could actually damage a Rick Perry presidential campaign.