Texas Science Panel Adopts Arson Recommendations

A state panel in Texas has recommended more education and training for fire investigators following its review of a case involving a Texas inmate executed after a fire labeled arson killed his three daughters.

The Texas Forensic Science Commission also recommended establishing procedures for revisiting old cases.

Cameron Todd Willingham was executed in 2004. Prosecutors accused the 36-year-old unemployed mechanic of setting the fire at his home in Corsicana, about 60 miles south of Dallas. A jury convicted him of capital murder and sent him to death row. His conviction was upheld nine times on appeal.

Willingham didn’t testify at his trial but always insisted – even in an obscenity-filled tirade the moment before his death – that he was innocent. He suggested the fire could have been started accidentally by his 2-year-old daughter, Amber, who died along with her 1-year-old twin sisters, Karmon and Kameron.

Death penalty opponents have questioned arson investigators’ testimony that led to Willingham’s conviction and suggest he may be the first person wrongly executed in the U.S. since capital punishment resumed more than three decades ago. Several experts have since concluded the fire at his home was of undetermined cause or accidental but not arson, as two fire marshals at the scene ruled in 1991.

The commission on April 15 completed an often tedious review of its nearly 50-page draft report based on Willingham’s case and settled on the 16 recommendations for fire investigators, prosecutors and defense attorneys and lawmakers.

“We’re suggesting somebody else is going to have to carry these things out,” said Commission Chairman John Bradley.

The panel said that it wouldn’t decide whether arson investigators were negligent or guilty of professional misconduct in Willingham’s case until the Texas attorney general’s office decides whether the panel has that authority.

The state commission can’t exonerate Willingham or reopen his case but determines whether forensic science in such cases was sound. The eight-member panel won’t make a ruling on negligence or professional misconduct by the fire’s initial investigators until it gets word from the attorney general, a decision not likely until July. John Bradley, a suburban Austin district attorney and the commission chairman appointed by Gov. Rick Perry in 2009, had requested the legal opinion. After courts rejected appeals in Willingham’s case, Perry refused to stop Willingham’s execution.

“In general, I’m satisfied,” said Stephen Saloom, policy director for the Innocence Project, which first raised questions about the case. “They were constrained by the AG’s opinion and have had to overcome the chairman’s relentless efforts to keep a lot of issues down. In the areas they’re permitted to address, they’ve made some significant progress and deserve credit for that.”

He called it a great improvement over the draft report released on April 14.

“They’ve gotten much more specific,” he said. “It responds to the allegations as much as possible. This gives a chance for all those past cases.”

The panel’s recommendations also include establishing a code of ethics for investigators and making procedure for involving the state fire marshal’s office in fatal home fires. The commission acknowledged the Texas Legislature controls the money needed to implement a number of its recommendations.

Another wants the fire marshal’s office to adhere to standards established by the National Fire Protection Association and become a model for local fire investigators in Texas. They also urged investigators to keep original files of their cases and forward copies of documentation to other interested parties like prosecutors and defense attorneys. In Willingham’s case, the Forensic Science Commission can’t see arson investigators’ files because they’ve been lost.

The commission spent lengthy time debating a review procedure they said fire investigators should establish for resolved cases, a re-examination process common in medical settings.

Commissioner Sarah Kerrigan called it central to the overall report, saying results and interpretations like Willingham’s from 1991 may not be valid years later. They needed to be looked at and “stakeholders” impacted by any new interpretations be informed, she said.

“If the answer is ‘no,’ then we’re really in trouble,” she said.

“Conceptually, I don’t disagree,” Bradley said. “But in practice if we say something about this we have to be very careful. You’ve got adversaries in these cases and adversaries make wildly different claims that are decided by a jury.”

After prolonged wrangling but in a direct reference to the Willingham case, they agreed to a recommendation that urges the state fire marshal’s office develop standards similar to accredited disciplines of forensic science that “promote the re-examination of cases when science has evolved to create a material difference in the original analysis or result.” Under its recommendation, the state fire marshal’s office had a “duty to correct, duty to inform, duty to be transparent” and implement corrective actions.

The panel noted the evolution of fire standards never was disclosed by the fire marshal’s office or Corsicana Fire Department as Willingham’s case moved through the legal system.

Bradley came to the panel days before it was to hear from Craig Beyler, a Baltimore, Md., fire expert critical of the original investigation. Beyler’s appearance was stalled until early this year. Bradley has denied allegations of bias and has labeled criticism directed toward him as “politics and circus sideshow.” At the same time, his confirmation as board chairman is stalled before the Texas Senate and likely doomed after a contentious appearance before a senate committee. He can remain on the board through the end of the legislative session.

In its report, the commission determined investigators at the scene reasonably concluded Willingham’s theory about his oldest daughter setting the fire was only a remote possibility because the children were so young and because no lighters were found near their bodies. The report also pointed out no uniform standard of practice existed for state or local fire investigators in the early 1990s.