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.

CCA: TX junk science writ can't challenge bad forensics at death-penalty sentencing

The Texas Court of Criminal Appeals today adopted a particularly ungenerous interpretation of Texas' so-called "junk science writ" (Code of Criminal Procedure 11.073) to say that habeas challenges may only confront junk science used in the guilt/innocence phase of a conviction, not in the sentencing phase.

As a practical matter, this mainly excludes use of the writ to challenge evidence in the sentencing phase of capital cases, where "special issues" supporting the death penalty must be proven "beyond a reasonable doubt" just like with the adjudication of guilt. For most other felonies, the judge or jury may choose from a range of sentences without facing additional layers of proof.

Judge Keller's majority opinion carried six members of the court. Judge Richardson authored a concurrence, joined by Newell and Hervey, to say this was a "harsh result" and arguing that the Lege should expand access to the writ to include the sentencing phase. Judge Alcala wrote another despair-tinged dissent, joined by Judges Meyers and Johnson.

Because after all, just because the state relied on junk science to secure a death sentence, why should that death sentence be overturned after that evidence is debunked? It's not like there's anything important at stake, right?

Having been involved with the early drafting of the statute in question back when I was Policy Director at the Innocence Project of Texas, Grits must admit that nobody on either side of the negotiations ever contemplated this issue and I'd never considered it before this case came up. (The capital folks weren't much involved with the original bill and, in truth, if they'd been its big promoters, it would have been unlikely to pass.) I can also say for certain that nobody involved in the negotiations was operating under the assumptions Judge Keller hypothesized based on the court's DNA testing jurisprudence. The subject simply wasn't ever considered.

Because, as a practical matter, the Lege expressed no "intent" one way or another, I suppose the CCA judges get to do what they want. And in general, what they want is to side with the state and wherever possible issue what Judge Richardson called a "harsh result."

Bottom line: This was a judgment call. They could have interpreted their writ authority more broadly, either on the textual grounds Judge Alcala proposed or just in the interest of justice (in the absence of legislative intent either way). So they could pick whatever outcome they wanted, and each of them did.

For my part, in retrospect, the reason this never occurred to me is that we were amending the habeas corpus statute, which generally challenges convictions from long ago for which all the inmates' direct appeals have been exhausted. And habeas can challenge both guilt/innocence and sentencing issues. That's why, though IANAL, the distinction championed by the CCA majority never occurred to me, nor to any of the numerous attorneys who vetted the bill during the process.

Though Judge Richardson called on the Legislature to change the law to allow use of the writ in the sentencing phase, in recent years, the court's demands for legislative action haven't carried much weight. (I plan a post in the near future outlining requests for legislation from several CCA dissents and concurrences.) OTOH, the Legislature in 2015 amended the junk-science writ statute to preempt meddling by the Government Always Wins faction of the court, so perhaps they'll do so again.

IN OTHER CCA NEWS:

The court granted Sonia Cacy's actual innocence writ, overturning her junk-science based arson conviction. Judge Yeary, joined by Presiding Judge Keller, was moved to write a concurrence declaring that, even though Cacy had met all the prongs of the court's "actual innocence" jurisprudence and deserved relief, he wouldn't personally use the term "actually innocent" because her innocence couldn't be demonstrably proven, all that could be shown was that all the state's alleged proof of her guilt was flawed and proved nothing. See coverage from the Dallas Morning News, the Austin Statesman, and Texas Monthly.

Just to say so, the state's compensation statute uses language from the court's "actual innocence" jurisprudence to trigger when exonerated inmates get compensation. So if Judges Yeary and Keller want to move away from that phrasing, the Lege will need to adjust the compensation statute so that it continues to pay the exonerees whom the legislature intended to get that money. This concurrence looks like the beginnings of a back-door method of thwarting legislative decisions about innocence compensation at some future date when the pair can convince three more judges to join their interpretation.

Fire! Jailhouse informants and Texas arson cases

Two recent high-profile news stories shined a spotlight on the use of incentivized jailhouse snitches to supplement flawed arson science in high-profile murder cases:

• Jeremy Stahl, Slate, "The Trials of Ed Graf"
• Maurice Possley and Maurice Chammah, The Marshall Project, "Jailhouse snitch claims secret deal in death case"

Grits has no time at the moment to comment at any length. But long-time readers know the intersection of informants and flawed arson science cuts across two of my long-time interests, so I may come back to these items as the vicissitudes of time and convenience permit. For now, I'll encourage everyone to read both stories and offer up in the comments any observations, arguments or suggestions which may consequently arise.

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.

Surging toward Groundhog Day, and other stories

Here are a few items that deserve Grits readers' attention but haven't made it into independent posts:

Pointless 'surge': Waiting for the punchline
DPS' $1.3 million per week border surge IMO is a bad joke. Brandi Grissom must think it's Groundhog Day. How many "surges" have we witnessed in Texas since Operations Linebacker, Wrangler, etc.? What did they solve? And how will this one convince some teenager in Honduras not to begin the march northward fleeing oppression and poverty to come here for a job that Texas businesses want give him? The feds seem to have a more pragmatic response: bringing in emergency judges to process immigration cases. Maybe this would be a good time for the US Senate to fill some of Texas' empty federal judicial posts.

Eat This
A Tyler company admitted no guilt as it entered into a $392,000 settlement with the US Department of Agriculture after meat it sold as pet food wound up being fed to inmates at the federal Bureau of Prisons.

'Pregnant women in Texas county jails deserve better than this'
Horrific. From the Dallas News (June 26), "A federal lawsuit in Wichita Falls shines a spotlight on a dramatic example of how the opportunity for lifesaving medical intervention is often missed in county jails. In this case, a child was tragically lost." See the full, gut wrenching column coauthored by the Texas Jail Project's Diana Claitor and Burke Butler of the Texas Civil Rights Project.  

Arson and false convictions
As evidence that Texas' arson review has had national influence, check out this NBC piece on a Michigan man exonerated in an arson-murder case. It hails Texas as authoring "the most comprehensive overhaul of fire investigation in the nation" and holds up the state fire marshal's review of old cases as a model.

Weather litigation heating up with summer
The Dallas Observer has details from one of the lawsuits over excessive heat at Texas prisons focused on the Hutchins State Jail. Wrote Sky Chadde, "Larry McCollum's death received most of the press. McCollum was a 58-year-old Hutchins inmate -- in for a nonviolent crime -- who suffered a seizure after several 100-degree-plus days in a row. At the hospital, his body temp was 109.8 degrees. He fell into a coma and died six days later, from living in a place with high temperatures and no A/C. Lawyers from the Texas Civil Rights Project sued the Texas Department of Criminal Justice, which runs the state's prison system. That lawsuit is still playing itself out, but now the department has another one on its hands." The story noted at the end that, "Recently, the AP reported that the criminal justice department is hoping to make seven state prisons a little more bearable by using large fans, like those football teams use to cool down on game days."

FBI to TX: Give our informant a PI license
Eric Dexheimer at the Austin Statesman has the story of an FBI informant with impeccable references from his handlers who was nonetheless turned down for a private investigator license because of his criminal history.

Bad analogies and the Fourth Amendment
Here's hopeful assessment from Vox of the import of yesterday's SCOTUS decision that cell phones can't be searched incident to arrest. "The Supreme Court's new attitude is best summarized by a single sentence in the opinion. The government had argued that searching a cell phone is no different from searching other items in a suspect's pocket. That, the court wrote, 'is like saying a ride on horseback is materially indistinguishable from a flight to the moon.'" Much of the debate surrounding the Fourth Amendment in the 21st century hinges on bad analogies, the author argues.

Habeas corpus post-Guantanamo
The Stanford Law Review has a nice little summary of the effectuation of federal habeas corpus and due process rights in recent D.C.-circuit case law for prisoners at Guantanamo Bay.

There are also worthy, recent items at Texas Prison Bidness, Defending People, and The Defense Rests.

'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.

Arson, shaken baby forensics called into question

A couple of recent academic papers related to areas of disputed forensic science deserve readers' attention. Here are links to the papers and the abstracts:

• A Perfect Storm Brewing for Fire Investigators in Court

The genesis of this piece comes from a trend the authors have observed in three separate but related areas, which we believe are converging into a perfect storm for fire investigators. These are: 1) the ongoing movement by courts across the nation to scrutinize more closely the reliability of expert testimony, 2) a growing apprehension about wrongful convictions stemming from faulty forensic evidence and problems in fire investigations, culminating in the revolutionary report published by the National Academy of Sciences, and; 3) the continuing development of industry standards that are raising the bar for fire investigators. Part I describes each of these forces, and then Part II demonstrates how together they are creating a mounting pressure on fire investigation experts to defend their qualifications and the reliability of their opinions in court, particularly insofar as analyzing the fire scene and interpreting fire patterns is concerned.

• Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction

The emergence of "Shaken Baby Syndrome" presents an object lesson in the dangers that lie at the intersection of science and criminal law. As often occurs in the context of scientific knowledge, understandings of SBS have evolved. We now know that the diagnostic triad — the three neurological symptoms once equated with guilt — does not itself prove beyond a reasonable doubt that an infant was abused nor that the last person with the baby was responsible for the baby’s condition. Nevertheless, our legal system has failed to absorb this new consensus. As a result, innocent parents and caregivers remain incarcerated and, perhaps more perplexingly, triad-based prosecutions continue even to this day.

This is the CONTENTS and INTRODUCTION to "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press, April 2014). "Flawed Convictions" surveys the scientific, cultural, and legal history of SBS from inception to formal dissolution, exposing extraordinary failings in the criminal justice system’s treatment of what is, in essence, a medical diagnosis of murder. The story of SBS highlights fundamental inadequacies in the legal response to science-dependent prosecution. "Flawed Convictions" proposes a restructuring of the law that confronts the uncertainty of scientific knowledge.

The piece on fire investigations includes an extensive discussion of debates in Texas around arson science. Via CrimProf Blog.

Should Texas create a statewide public defender for forensic writs?

Texas should consider creating a statewide public defender office to handle habeas corpus writs related to flawed forensics, an adviser to Gov. Rick Perry told the Court of Criminal Appeals' Criminal Justice Integrity Unit Thursday afternoon.

Judge Barbara Hervey convened the meeting to discuss "Notification in the wake of an 'irregularity' in a criminal case," a reference to forensic snafus like the Jonathan Salvador fiasco and the ongoing hair and fiber review by the Forensic Science Commission. Out of those situations, the question arises, how should affected parties be notified of large-scale forensic errors and who should represent defendants in the habeas corpus process? (See Grits coverage of a "white paper" on the topic from the integrity unit and the Forensic Science Commission published last year.)

It's impossible to rely on defendants' original attorneys, most participants agreed, particularly in older cases and where lawyers represented them on an appointed basis, often for just a few hundred dollars. And even if you're able to find defendants and notify them, without representation that won't get their cases re-opened.

At present, these decisions are made on a completely ad hoc basis. In the Jonathan Salvador situation, which involved cases in more than 30 counties, judges in some jurisdictions appointed habeas counsel in every affected case while, in others, it's unclear if defendants were even notified and for most, counsel was never appointed.

Regular readers know Grits considers this one of the most vexing issues facing the criminal justice system. In the wake of the 2009 National Academy of Sciences report calling into question the scientific basis for many traditional forensic disciplines, it's clear this issue isn't just a one-off related to Jonathan Salvador, arson cases or hair-and-fiber cases but is something that will come up again and again over the next decade or two. But Texas and other states, and for that matter the feds, don't have systems in place to deal with correcting errors in old cases, Judge Hervey told the packed courtroom today.

This is uncharted territory and nobody has a clear idea how to handle such situations or what mechanisms should be created to process such cases en masse. In the Salvador case, potentially hundreds or even thousands of cases were processed based on analyses by a discredited lab analyst, but the evidence is now unavailable to be retested. The Court of Criminal Appeals has ruled that Salvador's work should be presumed invalid, but said the presumption could be rebutted by new testing or additional evidence. But outside of Harris and Galveston counties, few such cases are going forward and there's no standardized process for how to deal with them.

Integrity unit member Mary Ann Wiley from the governor's office surprised many in the room by suggesting that the state should consider creating a public defender office to handle such writs modeled on the successful Office of Capital Writs that handles habeas corpus in indigent death-penalty cases. That would solve a ton of problems, centralizing the process and guaranteeing someone takes responsibility for notifying defendants and filing habeas corpus writs where appropriate.

Indeed, there's an argument that a public defender for writs is needed for cases beyond just forensic issues. Bob Wicoff of the Harris County Public Defender Office pointed out the need for writ representation to challenge convictions based on the recently-deemed-unconstitutional online solicitation of a minor statute. And Judge Hervey pointed out that there could be Brady issues where large-scale notice and representation may be needed.

Few criminal defense lawyers have experience with habeas corpus processes and the Court of Criminal Appeals is all but overwhelmed with the volume of writs they receive, mostly from pro se (self-represented) prisoners, often hand-written and inexpertly crafted. Professionalizing that process would be a boon on many fronts. It may be politically impractical to provide a public defender for all habeas writs, but for situations affecting multiple defendants, whether over forensic issues, Brady violations, or other large-scale "irregularities," or it makes a lot of sense.

Today's meeting was one of the most productive, probative sessions of the CCA's integrity unit I've attended, which is nearly all of them. Judge Hervey got a good group together and led a meaningful discussion that could result in real change down the line. Texas is way ahead of other states on this topic, as far as I can tell, and this meeting offered some meaty suggestions for the Legislature to consider when it convenes again in 2015.

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

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.

DA's files lost in Ed Graf arson case

The McLennan County District Attorney's Office has lost the files from Ed Graf's original trial in which he was convicted based on junk science of murder by arson, the Waco Tribune Herald reported this week (Feb. 12):

Prosecutors are required to turn over to the defense exculpatory evidence, or material that could be favorable or tend to exonerate a defendant.

But because District Attorney Abel Reyna and Vic Feazell, the former district attorney who tried Graf in 1988, have said the original DA’s office file cannot be located, Graf’s attorney, Walter M. Reaves Jr., is seeking dismissal of the charges.

Graf, 61, who won a new trial from the Texas Court of Criminal Appeals, is set for trial May 19 in Waco’s 54th State District Court.

“Defendant suggests that his trial cannot proceed without the assurance that any evidence which points to his innocence has been produced,” Reaves wrote in his motion to dismiss the charges. “That assurance cannot be given.”

Judge Matt Johnson has not ruled on Reaves’ motion.

Graf's was one of the cases reviewed by the state fire marshal in which the conviction was found to have been based on since-debunked arson indicators now known to be junk science. See extensive coverage of Graf's case from The Texas Observer.

'Burning Injustice'

The Dallas Observer's Brantley Hargrove has an excellent, extended piece out today with the same title as this post on the Sonia Cacy arson conviction, one of the cases that was reviewed by the state fire marshal for faulty forensics and found wanting. My employers at the Innocence Project of Texas are handling her post-conviction innocence claim, which includes a challenge of forensic evidence misinterpreted by an expert at trial to falsely claim there was accelerant (gasoline) used at the scene under Texas' new junk science writ. Fine reporting on a complex topic, read the whole thing.

MORE: From the Dallas Observer's Unfair Park blog, "Why the District Attorney's Arson Case Against Sonia Cacy Remains Weak."

The case for State Fire Marshal Chris Conneally as 'Texan of the Year'

My colleague at the Innocence Project of Texas, Cory Session, last week made an argument in the Dallas Morning News why State Fire Marshal Chris Conneally deserves to be named the paper's "Texan of the Year" for his review of faulty forensics in old arson cases. See below the jump for the meat of his argument:

'White paper' suggests systemic reforms to respond to mass forensic errrors

How should the criminal justice system respond when forensic errors or malfeasance occur on a large scale, affecting hundreds or even thousands of cases? Texas courts, prosecutors, defense counsel and crime labs already are struggling with these questions, and it appears the Texas Legislature may need to take up the issue when they re-convene in 2015.

Late afternoon the day before Thanksgiving (Nov. 27), the Texas Forensic Science Commission and the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit issued a little-noticed joint "white paper" (pdf) based on a stakeholder "roundtable" held earlier this year. (In the interest of full disclosure, your correspondent participated in that roundtable on behalf of the Innocence Project of Texas.) Suggestions in the white paper could have big implications for the justice system when large-scale forensic SNAFUs arise like the DPS-Houston crime lab fiasco where lab worker Jonathan Salvador was caught drylabbing evidence, casting doubt on a large number of convictions where he'd performed testing.

Between the Salvador mess, the discrediting of dog-scent lineups and hair-and-fiber analyses, and scientific debunking of now-outdated arson indicators used to secure convictions for decades, in recent years Texas and indeed the entire, national criminal-justice system has had to come to grips with the fact that many past criminal convictions have been secured using what's now known to be junk science. The Texas Legislature passed a landmark statute in 2013 allowing habeas corpus relief in such cases, creating a vehicle for revisiting convictions based on bad science and overturning them if the conviction couldn't have been obtained without the faulty forensic testimony. But there are still no processes in place for identifying those old cases, notifying affected defendants, or creating a vehicle to ensure that meritorious cases actually get a chance to seek relief in the courts. Those are the issues about which this white paper offers some first, tentative suggestions, though there's still a long way to go to turn the ideas into a workable blueprint, much less a functioning, effective system.

First things first, the paper confronts the issue of how to give effective notice of such errors to defendants in a way that would allow them to seek relief where appropriate. In the Jonathan Salvador case, in particular, "because so many different counties were affected, it was extremely challenging to determine whether affected defendants have received notification consistently, or whether notice varies from county to county depending upon local resources and other factors. It is also difficult to assess the extent to which prosecutors themselves understand the nature and scope of the forensic misconduct and potential ramifications." For example, despite advice to the contrary from the state prosecutors' association, the Fort Bend County District Attorney balked at notifying defendants whose cases were implicated in the Salvador SNAFU until finally cratering under media pressure.

The white paper praised the Texas District and County Attorney Association for advocating on their website that prosecutors provide notice, but recognized "that TDCAA cannot force its membership to check its blog regularly or to follow its recommendations." Instead, participants in the roundtable "emphasized the importance of notice redundancy," noting that "making several layers of contact with various affected parties is critical."

The paper also suggested that the lab identifying "nonconformance" should hold a "technical briefing" where stakeholders may ask questions ... so they may understand the scope of the problem accurately." But depending on the circumstances, the agency where the problems originated may or may not be the best source for a thorough, honest technical briefing. Grits would suggest that, at a minimum, representatives from the Forensic Science Commission should participate in such presentations so  labs won't gloss over important details in ways that minimize their own culpability. In the Salvador case, the DPS officials IMO behaved with great integrity and that wouldn't have been necessary. In other instances - as with dog-scent lineups performed by the Fort Bend County Sheriff's Office - the agency promoting faulty forensics wouldn't have been nearly so forthcoming. And for hair and fiber analyses, there is no single agency implicated but an entire forensic field that's been called into question. I'm not sure how the white-paper briefing model would work in that sort of scenario.

The white paper suggests the Forensic Science Commission should be responsible for notifying individual District Attorneys offices with affected cases, as well as notifying leadership at the Texas Criminal Defense Lawyers Association, the Texas Center for the Judiciary, the prosecutorial assistance unit at the Texas Attorney General, and regional presiding judges via the Office of Court Administration. (Right now the FSC has no statutory duty to perform those tasks but there's also nothing stopping them from doing so, resources permitting.) The paper also suggests the FSC "should consider establishing a centralized Internet-based repository accessible to everyone in the state with basic information on pending forensic complaints and disclosures, including a FAQ section and other guidance.

All that, however, doesn't ensure defendants whose cases may be affected will be notified. The paper points out that "prosecutors have an obligation to make a good faith effort to contact defendants. However, they cannot track individuals beyond their last known address." That's definitely an issue, but Grits would suggest a few possible avenues for followup. For starters, when the address in prosecutors' files are outdated, the US Postal Service may have change-of-address information if anybody bothered to check. For that matter, commercial list brokers often have more and better updated information on addresses even than the post office, as any political consultant or professional marketer would tell you. For large-scale notification projects like the ones being discussed, following up with those sources would be well worth the cost, given the stakes involved.

As for the content of such notifications, "prosecutors should provide a resource for defendants to inquire about any re-testing or potential writ process. This prevents prosecutors from being placed in the impossible position of advising defendants who contact their office with inquiries." That suggestion doesn't go as far as the advice from TDCAA regarding the Salvador scandal. They suggested that, for any defendant with viable habeas claims, prosecutors should "request that the court appoint an attorney to take the case through a writ process." TDCAA's advice represents a stronger, more pro-active approach than suggested in the white paper. Telling them to ask the courts to appoint an attorney to me makes more sense than vaguely telling DAs to "provide a resource."

Which brings us to the question: Once defendants are notified, what happens then? For indigent defendants who originally had appointed counsel, the lawyer assigned to them on the front end has no continuing duty to assist them in filing habeas corpus writs after the fact, particularly if they're not being paid for it. (Plus, habeas corpus writs a relatively specialized field and most attorneys taking appointed cases wouldn't be competent to handle them.) It's at this stage in the process that legislative action would be required to implement the course of action outlined in the white paper, as well as rule changes by the state bar:

The majority of stakeholders felt the Commission on Indigent Defense should be responsible for these cases by appointing attorneys on a temporary basis to address the claims. The Commission on Indigent Defense should work with the State Bar, TCDLA and Texas law schools to obtain effective and targeted representation where possible. The attorney group would be appointed only for the purposes of dealing with the forensic nonconformance at issue and would be disbanded when the cases have made their way through the appeals process. Absent a statewide solution, local counties should consider creating “consortiums” with their neighboring counties so that attorneys capable of handling appeals and writs may represent defendants in these cases across multiple counties. The Commission on Indigent Defense could in turn fund the local consortiums. Form pleadings should be created and distributed to help attorneys represent clients efficiently in these cases.

If laws need to be changed to permit the Commission on Indigent Defense to fulfill this role, they should be changed during the next legislative session. The Governor’s office and/or the Attorney General’s office should be consulted regarding access to emergency funds for these cases.

Finally, the State Bar should consider developing guidelines for professional responsibility in cases where a defense attorney who no longer represents a defendant receives notice from the prosecutor. Some further action should be taken by the attorney so the notice does not fall through the cracks.

At the roundtable, "Stakeholders felt the Commission on Indigent Defense (in partnership with the State Bar) is the best organization to handle this. ... Absent their assistance, stakeholders will continue to rely on TCDLA, the Innocence Project of Texas and a county-by-county approach," which is "inefficient and creates unequal results depending on what county a person lives in." If a statewide solution through the TIDC cannot be crafted, counties should "make the effort to appoint one or two competent and experienced appellate attorneys depending on the volume to handle all affected cases through the writ process." In addition, "The State could consider amending the post-conviction writ rules to make these types of cases more streamlined for all parties," though the white paper offered no specific suggestions in that regard.

This white paper made a good first stab at thinking through the problems surrounding how to respond large-scale forensic SNAFUs, but clearly there's much to be resolved and some of the suggestions would require legislative action and possibly clarification of prosecutor and defense attorney responsibilities through the State Bar. Some issues may crystallize to some extent when the Court of Criminal Appeals hands down its ruling in Ex Parte Coty, which is the key case parsing issues surrounding the Jonathan Salvador scandal (see Grits' coverage of oral arguments). But as yet, Texas is clearly on the front end of figuring out how to respond to large-scale problems with forensic science, even if in many respects we're far ahead of other states on the topic.

Still, I'm glad to see state leaders thinking about these subjects in terms of systems and processes instead of slogging through it all on a case by case basis, which is how the courts typically handle such matters. That approach makes a lot more sense and, once systems are in place, will prevent a lot of headaches down the line as scientific advances continue to call into question forensic disciplines that are turning out to be less reliable than most everyone thought in years past.

Dallas DA pledges to review convictions based on junk science

Assuming he wins a third term as Dallas District Attorney, which without opposition in the Democratic primary appears increasingly likely, Craig Watkins said recently he wants to expand the work of his Conviction Integrity Unit - which spearheaded his office's review of old DNA cases, leading to numerous exonerations - to include arson and shaken baby cases. Reported the Dallas Morning News ("Craig Watkins says he still has big plans for DA's office," Nov. 14):

Dallas County District Attorney Craig Watkins has gained a national reputation for spearheading prisoner exonerations.

As he prepares to seek a third term, Watkins said Thursday he wants to expand on that role and add a few others. ...

Watkins, a Democrat who was first elected in 2006, gained attention for using DNA tests to overturn convictions, and he said his office has a few more such cases pending.

When prosecutors finish with those next year, Watkins said, he wants his team to take another look at people convicted of arson and those accused of shaking their babies to death. Watkins said he has concerns about the science used in the prosecution of both types of cases.

“The science has changed. We need to revisit it,” Watkins said without elaborating.

With the passage of SB 344 by Whitmire/Turner, people convicted based on junk science now have a clear path to pursue habeas corpus writs to challenge their convictions, with old arson and shaken-baby cases high on the list of bad science likely to be challenged. It will be welcome news if Watkins takes leadership and gets out in front of those issues the way he did on DNA testing. The main difference will be that, until the Legislature changed the law in 2011 (SB 122 by Ellis), DAs could prevent DNA testing in old cases if they chose, just as Williamson County DA John Bradley thwarted testing in the Michael Morton case for many years simply by objecting. By contrast, the passage of SB 344 means junk science cases can now get back into court via habeas writs on their own, so Watkins and other District Attorneys will be forced to revisit them whether they want to or not. Still, it's refreshing to see a DA willing to seek out false convictions in junk science cases instead of reflexively fighting tooth and nail to keep them intact.

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.

Washington state crime lab faces Texas-size quandary: How to deal with old cases processed by lab manager accused of misconduct?

Grits has been highlighting the overturned convictions based on alleged misconduct by a former analyst at the DPS crime lab in Houston and has compared the episode to a similar but even larger-scale scandal out of Massachusetts involving tens of thousands of cases. Now another, similar, case has cropped up in Washington State, reported AP:

The manager of the state crime lab in Cheney resigned last week as authorities determined he lied about performing work in several cases, the Washington State Patrol said Tuesday.

Kevin Fortney headed the Cheney lab for about a decade. His subordinates prompted the investigation by reporting their concerns to Fortney's boss, the commander of the patrol's Crime Laboratory Division, the patrol said in a news release. ...

Fortney was previously mentioned in a 2004 Seattle Post-Intelligencer story about ethical problems at the patrol's crime labs: In late 2000, he was suspended for two days after admitting he cruised Internet porn sites at work, disciplinary records showed.

The patrol documented at least five cases - mostly arson investigations - in which Fortney reported in a computer system that he had completed work when other records proved he was lying, said patrol spokesman Bob Calkins.

Just as in Texas, whatever management implications there are from the scandal, front-line workers at the lab deserve credit for outing the alleged bad actor. But that doesn't resolve the question of how to handle all the cases the fellow worked on in the past, nor what changes could be made to improve day-to-day oversight. The Chairman of the Texas Forensic Science Commission, Dr. Vincent DiMaio, argued earlier this month that the state should develop "disaster protocols" for when large numbers of cases are called into question by labworker misconduct. Apparently we're not the only state that needs to consider such contingency measures.

Waco conviction overturned over debunked arson testimony

In a curious per curium opinion, the Texas Court of Criminal Appeals today granted habeas corpus relief to Ed Graf (see Grits coverage here, here, and here), who was convicted based on expert testimony about arson that was substantively demonstrably false. The case is notable both for a) the quick turnaround and b) the lack of dissent among a court that was divided 5-4 on similar questions in Ex Parte Robbins, Overton and Henderson. Perhaps with SB 344 by Whitmire passing the Texas Senate this week in direct response to their recent decisions, the court decided these old arson cases were the wrong venue to quarrel over whether debunked science provides a basis for relief.

MORE: At the Dallas News (March 28), see, "Force arson science to apply in criminal court," and from Dave Mann at the Texas Observer, see "The Arson Files: Ed Graf wins a new trial."

Bill to allow habeas relief on junk science cases passes Texas Senate

Excellent news: Sen. John Whitmire's SB 344, which would expand access to habeas corpus relief for people falsely convicted based on junk science, passed the Texas Senate yesterday on a 28-3 vote. (The three were Senators Brian Birdwell, Dan Patrick and Jane Nelson. Dr. Charles Schwertner, who without explanation voted against the bill in committee, supported it on the floor). A couple of small tweaks, that IMO actually improved the bill, satisfied complaints from the Harris County DA's office, the sole opposition in the past, and with their blessing signaled by support from state Sen. Joan Huffman, it passed rather easily. See a good backgrounder on a complex topic by Maurice Chammah at the Texas Tribune. (In the interest of full disclosure, this is an issue on which I've worked as an advocate for the Innocence Project of Texas.)

Bill would bridge 'disconnect' between science and reliable verdicts

Now SB 344 heads to the House where Rep. Sylvester Turner is carrying the companion (for which SB 344 will be substituted). This bill has made it through the House Criminal Jurisprudence Committee twice before - the hangups have come in 2009 because of the Voter ID chubfest that killed hundreds of bills including this one, and in 2011 by delays at the committee level - Criminal Jurisprudence and Calendars - that should be mitigated (knock wood) with the main, historical opposition now standing aside. It's a minor tweak that will impact a small but difficult group of often high-profile cases where the Court of Criminal Appeals simply cannot agree on the correct authority or standard on which to base their decisions. In that sense, the bill bolsters the Great Writ to confront 21st century challenges.

Texas Court of Criminal Appeals Judge Cathy Cochran has openly worried in a published opinion that the “disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased.” Indeed, "The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate."

In an earlier case, Ex Parte Robbins (see earlier Grits coverage), the court on a 5-4 vote refused to provide relief even though admittedly false medical testimony, recanted even by the scientist who originally offered it, was the only evidence accusing the man who'd been convicted. (Both the prosecutor and the defense attorney from the Ex Parte Robbins case, Mike McDougal and Brian Wice, testified at the senate committee hearing.) If SB 344 had been in place, the court would have had firm grounds on which to grant a new trial when forensics that were the "sole bases" of Mr. Robbins' conviction were discredited.

Now it's up to the Texas House to finish the job. This year, with an early start, SB 344 has an excellent chance of making it all the way through the process and resolving these sticky questions which have too often confounded 21st century habeas jurisprudence in Texas. There's no good excuse for not passing this now-agreed bill as quickly as possible, resolving a judicial impasse and crossing off the list another recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions.