'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.

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."

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.