AUSTIN, Texas – The Texas attorney general severely limited the state's Forensic Science Commission's ability to investigate past cases Friday, including an arson case that critics say might have ended in the execution of an innocent man.
Attorney General Greg Abbott's ruling, which has the same effect as a supreme court ruling in other states, effectively ends the commission's inquiry into the evidence that convicted Cameron Todd Willingham, who was executed for the arson death of his three children. Arson experts hired by the commission determined the evidence used to gain Willingham's conviction does not meet scientific standards and that the fire was most likely accidental.
While the commission cannot overturn a conviction, it can determine whether evidence was collected and analyzed properly, supplying grounds for an appeal if there was misconduct.
Anti-death penalty advocates have argued that Willingham could not have been convicted using present-day forensic standards, and Texas likely executed an innocent man. Republican Gov. Rick Perry, who is now considering a run for president, was governor when Willingham was executed in 2004. Willingham's attorneys sent letters to the governor's office arguing the evidence from the 1991 fire needed to be reviewed using the latest scientific methods, but Perry failed to intervene.
Last year, when the commission was set to rule on the validity of the evidence in Willingham's case, Perry appointed a new commission chairman, John Bradley, who stopped consideration of the case and asked for an attorney general's ruling on the limits of the commission's authority.
The Texas Senate failed to confirm Bradley's appointment after he told the media that Willingham was "a guilty monster." Last month, Perry appointed Dr. Nizam Peerwani, a Tarrant County medical examiner, to chair the eight-member panel made up of prosecutors, defense attorneys and forensic scientists.
Lawmakers created the commission to ensure scientifically sound forensic methods are used in Texas after several high-profile cases were thrown out due to unsound practices. The Willingham trial was one of the first two cases the commission investigated. But in his opinion released Friday, Abbott said the commission can investigate old cases, but not old evidence.
"Although the Forensic Science Commission may conduct investigations of incidents that occurred before September 1, 2005, the law that created the Commission prohibits (it) from considering evidence that was tested or offered into evidence prior to that date," Abbott wrote.
Abbott also limited the laboratories the commission could investigate to those accredited by the Department of Public Safety.
The ruling is a major setback for groups such as the Innocence Project, which brought the original complaint about the Willingham conviction to the commission. Such groups had hoped the commission could reopen old cases where convictions were obtained using what is now considered unreliable forensic techniques.
"While I believe the Attorney General took a very narrow view in responding to the questions asked, I was happy to see him recognize that the Forensic Science Commission has the authority to investigate allegations of professional negligence or misconduct from incidents occurring prior to September 1, 2005," Sen. Rodney Ellis, D-Houston, who also serves as chairman of the Innocence Project's Board, said in a written statement.
Ellis, who is a strong proponent of the commission, said the ruling still gives the commission authority to investigate if the state fire marshal acted negligently in the Willingham case.
"Nothing in this Attorney General's opinion prevents the Texas Forensic Science Commission from completing its report and ruling that the Fire Marshal was negligent when it failed in its 'duty to correct' the flawed arson science that was used in numerous arson cases," Ellis said. "They had that 'duty to correct' prior to 2005, when the Forensic Science Commission legislation took effect, and after 2005, and they have never done so."
Despite losing the authority to determine the validity of the evidence in the Willingham case, the commission has recommended establishing a code of ethics for investigators and establishing procedures for fatal home fires involving the state fire marshal's office. The commission acknowledged the Texas Legislature controls the money needed to implement a number of its recommendations.