The Texas Attorney Generals’ Office issued an opinion in July that effectively halts the Texas Forensic Science Commission’s investigation of the Cameron Todd Willingham case. Mr. Willingham was executed in 2004 after he was convicted of arson and murder in a 1991 fire that killed his three children. In 2009, the Texas Forensic Science Commission reported findings from a nationally recognized arson scientist that criticized and called into question the arson investigation and findings at trial. The investigation has been profiled nationwide, with excellent coverage by the New Yorker and PBS’ Frontline (which my colleague Ken reviewed last year).
The Attorney General issued its opinion in response to a formal request from the Commission. Earlier this year, the Commission sought guidance as to the statutory scope of its authority, asking whether it may properly investigate evidence acquired prior to 2005, claims of negligence or misconduct related to evidence examined by an non-accredited laboratory, and the scope of “forensic” analysis that may be reviewed. The Attorney General’s opinion stated:
Although the Forensic Science Commission may conduct investigations of incidents that occurred before September 1, 2005, the law that created the Commission prohibits the FSC from considering evidence that was tested or offered into evidence prior to that date. The Forensic Science Commission’s investigative authority is limited to those laboratories, facilities, or entities that were accredited by the Department of Public Safety at the time the forensic analyses took place. The FSC may not investigate fields of forensic analysis expressly excluded from the statutory definition of “forensic analysis.” Forensic analysis that is neither expressly included nor excluded by the Act or DPS rule, but that falls under the generic definition of “forensic analysis” found in section 38.35(a)(4), is generally subject to FSC investigation, assuming all other statutory requirements are satisfied.
This opinion affects the Willingham investigation because its evidence was collected and analyzed prior to 2005. This ruling is a boon for Texas Governor and Republican Presidential hopeful Rick Perry, who has been accused of suppressing the Commission’s efforts and findings for his own political gain. Mr. Perry fired the chair and three other members of the Commission shortly before they were due to hear arson experts’ findings, replacing them with his own political allies. As Governor, he denied Willinghams’ clemency petition, despite strong evidence that the underlying science was faulty and a new trial was warranted.
Death penalty abolitionists (and human beings generally) watched in horror as the audience cheered for Mr. Perry’s gruesome execution record at a recent Republican candidate debate. Mr. Perry said the system works — but no one called him out on the Willingham case. I hope that as the debates and scrutiny in the run up to the nomination proceed, Mr. Perry will be called to account on this matter. It’s one thing to support capital punishment, it’s entirely another to suppress evidence of negligence and look the other way when your state may have executed an innocent person. As Atlantic columnist Ta-Nieshi Coates put it, I hope the ghost of Cameron Todd Willingham haunts Rick Perry in this election.
Texas Code Code. Crim. Proc §38.01 et seq.
Texas Gov. Code §411.001 et seq.