The price of innocence

This article appeared in the Texas Observer on January 26, 2007:

The Price of Innocence

by Dave Mann
Cameron Todd Willing-ham professed his innocence to the very end. Belted to a gurney moments before the potassium chloride pumped into his veins and stopped his heart, Willingham told those gathered to witness his February 2004 execution, “The only statement I want to make is that I’m an innocent man—convicted of a crime I did not commit.” Willingham had been sentenced to death for starting a 1991 house fire that killed his three daughters in the North Texas town of Corsicana. From the beginning, he had maintained that the fire was accidental. He was convicted mainly on the testimony of a single arson investigator, whose forensic evidence has since been debunked. In Willingham, the state of Texas may well have executed an innocent man.

His execution is exactly the kind of case the Texas Forensic Science Commission is supposed to investigate. The Legislature created the nine-member commission—made up of prosecutors, defense attorneys, forensic science experts, and legal analysts—in 2005 to oversee and investigate the state’s troubled forensic crime labs. In the past five years, the Houston police crime lab and several Department of Public Safety labs have produced well-documented failures: tainted and lost evidence, poorly conducted tests, intentionally misleading testimony. The New York City-based Innocence Project, a major proponent of the commission, has uncovered seven cases in which Texas sent innocent men to prison because of faulty forensic evidence. Some have been set free; others, like Willingham, are already dead. Given the many crime lab controversies, Texas legislators saw a need in 2005 for a concept that few states have tried—an independent body that could investigate allegations of misconduct against crime labs and correct poor forensic practices. The bill that created the Forensic Science Commission—sponsored by Sen. Juan “Chuy” Hinojosa, a McAllen Democrat, and Rep. Joe Driver, a Republican from Garland—passed the state House and Senate unanimously. Supporters hoped the commission would free innocent men already in jail and prevent similar injustices in the future.

“The public has to have trust in the criminal justice system, that we’re convicting the right people,” says Hinojosa. “A lot of the labs have been very sloppy and very negligent. The credibility of the system is at stake.”

For nearly two years, however, Texas’ highest elected officials have stalled the commission’s work. It took Gov. Rick Perry and Lt. Gov. David Dewhurst more than 10 months to appoint their seven commissioners. In the year since, the commission has done no work for a simple reason: It has no money. Both Perry and the legislative leadership have refused to provide the commission the small amount of funding it needs for regular meetings and investigations. The nine commissioners hope the current Legislature will provide a budget. Nearly two years after it was created and three years since Willingham’s death, the commission—like the possibly innocent people still in jail—sits and waits.

The commission missed out on funding from the Legislature in 2005 because the bill authorizing the commission passed too late in the session to be included in the two-year state budget. The commission did receive a bit of money from the Texas Legislative Council to convene two meetings in fall 2006. With the Legislature out of session, the Legislative Budget Board—headed by Dewhurst and House Speaker Tom Craddick—has authority to make minor appropriations. But the board hasn’t funded the commission. In addition, Perry could have directed minor administrative funding to the commissioners, but hasn’t done so.

Some commission supporters privately speculate that Perry, who faced three opponents in November’s election, wasn’t eager to preside over the first government body in the nation to confirm the modern execution of an innocent man—perhaps even someone executed during his time in office. States have freed numerous wrongly convicted people from death row in recent years, and several media and anti-death penalty groups have uncovered strong evidence that Texas and other states have executed the innocent. But no American governmental body has yet reached that conclusion. The forensic commission may well become the first.

Perry spokesman Ted Royer says the governor supports the commission, but believes that the Legislature is the appropriate entity to provide funding. “The governor certainly wants to see the commission get the funding it needs,” Royer says. “That will very likely be addressed this legislative session.”

Hinojosa says he doesn’t think election politics stalled the commission so much as resistance within the criminal justice system. “When you bring change to a system, it makes people uncomfortable,” he says.

Perhaps no criminal justice system has produced more crime lab horror stories than that of Texas. Attorney Barry Scheck of the Innocence Project has called it a “legacy of misconduct and neglect.”

“The need for this is obvious,” Scheck says. “To me, it’s obvious that if you want to protect the innocent and apprehend the guilty, few things in the criminal justice system are more important than crime labs that produce reliable work. And you can’t find out if your crime labs are producing reliable work unless you have an oversight body that can investigate and audit whenever serious negligence or misconduct arises, and we have documented cases where that’s happened.”

Take the case of Brandon Moon, convicted of a 1987 rape in El Paso. The victim had mistakenly identified Moon as her attacker. But the conclusive evidence that sent Moon to prison came from the DPS crime lab in Lubbock. DNA testing was in its infancy at the time, and tests on a semen sample recovered from the crime scene proved inconclusive. However, lab testing did show that the semen had come from a so-called non-secreter—someone whose blood type doesn’t show up in bodily fluids such as semen and saliva. Since Moon is a non-secreter, a DPS lab analyst assumed he must be the culprit. The DPS lab overlooked the fact that the victim and her husband were also non-secreters, details that could have exonerated Moon, but never came to light in his trial. A 2002 DNA test showed Moon wasn’t the attacker, but not before he spent 17 years in prison for a crime he didn’t commit. As Scheck points out, the DPS lab technician who botched the Moon case worked at the Lubbock lab for another four years. No one has examined the many other cases he handled, though Scheck requested last April that the forensic commission do so if it ever gets funding.

Then there’s George Rodriguez—a Houston man wrongly convicted of rape because the Houston police crime lab botched an analysis of semen and a hair found at the scene. Rodriguez spent 17 years in jail before DNA testing at the request of the Innocence Project freed him. Meanwhile, the man who actually committed the rape remained free and attacked several more women, including an assault of his mother’s housekeeper, who was five-months pregnant.

The Houston lab has also experienced problems with ballistics testing. Then there are the more than 8,000 missing pieces of forensic evidence from the Houston lab found lying untested in cardboard boxes in a warehouse. Supporters believe the forensic commission must examine many of these issues. But perhaps no area of forensic science in Texas needs more urgent attention than arson cases.

The science of detecting arson has undergone a recent revolution. For years, arson investigations weren’t particularly scientific. Fire investigators operated under a set of assumptions, inherited knowledge from their predecessors, about how to sift through the detritus of a burned building and determine an accidental fire from one that was started intentionally. In the last 15 years, a new generation of arson experts has methodically debunked most of the old assumptions. For instance, investigators once thought the presence of accelerants such as gasoline caused arson fires to burn much hotter than accidental blazes.
Recent experiments have shown that accidental fires can burn just as hot or hotter.

Similarly, it was once thought that a distinctive pattern of cracks in windows—known as crazed glass—was evidence of arson. Investigators believed that the extreme heat of an arson fire caused crazed glass. The presence of crazed glass in Cameron Todd Willingham’s house was one of the key pieces of evidence that led to his conviction. Willingham testified that in December 1991, he had taken a nap and woke up to find the house on fire. He escaped, but couldn’t save his daughters, the oldest of whom was 2. At Willingham’s trial, a deputy state fire marshal testified that he found several forensic indicators of arson, chief among them crazed glass. In fact, recent research has shown that crazed glass also is caused by the temperature change when cold water from fire hoses hits flame-heated windows. Arson experts now say that crazed glass can indeed occur in accidental fires.

Crazed glass and other dubious arson evidence also sent Ernest Ray Willis to death row for killing two women in a 1986 fire in West Texas. In late 2004, after 17 years in prison, Willis was released after arson experts refuted the evidence against him. Given the similarity between the cases, Willis’ exoneration raises disturbing, unresolved questions about Willingham’s death. To this day, Texas officials maintain that Willingham was guilty.

So last year the Innocence Project commissioned the nation’s five leading arson experts to examine the Willis and Willingham cases. Their subsequent report, released in May 2006, concludes that neither fire was the result of arson and that Willingham was wrongfully executed. Scheck sent a copy of the report to the forensic commission with a letter requesting an investigation into arson convictions in Texas. “Willis cannot be found ‘actually innocent’ and Willingham executed based on the same scientific evidence,” Scheck wrote to the commissioners. Texas has the highest percentage of arson convictions in the nation. Many other Texans may have been sent to prison for arson crimes they didn’t commit.

Without money, the commission has taken no action on the Willingham case or any other. Commission Chair Debbie Lynn Benningfield, who works as an administrator in the Houston police fingerprint lab, refuses to comment on cases that might be pending before the commission (other commissioners referred questions to Benningfield). Choosing her words carefully, Benningfield says commissioners are focused primarily on securing funding from the just-convened Legislature.

The commission certainly won’t cost much. Commissioners are unpaid and meet in donated space. The commission would need $156,000 for administrative and setup costs in its first two years, according to an analysis by the Legislative Budget Board. Some proponents of the commission hope the Legislature will make an emergency appropriation so the panel can begin work soon. If lawmakers include funding for the 2008-2009 fiscal year, which isn’t guaranteed, the commissioners will have to wait at least until next September. Hinojosa says the Senate Criminal Justice Committee, chaired by Sen. Whitmire, may hold hearings on the commission’s lack of funding. “We’re going to be pushing this very hard to make sure that there is funding,” he says. “We want some answers as to why it’s taking so long.”

Scheck says, “You can’t blame the commissioners. They haven’t been given anything to work with.” He believes that innocent people may remain in Texas prisons, perhaps on death row, wrongly convicted because of faulty forensic evidence. The longer the commission’s work is stalled, the longer those injustices remain, and the longer negligent forensic practices persist in crime labs that could send more innocent people to jail. “This is all taking entirely too much time,” Scheck says.