Wednesday, 7 October 2009

Willingham debate not focused on arson science

In a lot of ways, I wish the Texas Forensic Science Commission had picked another arson case to examine besides Cameron Todd Willingham. Because it's a death penalty case, the debate quickly devolves into a pointless re-trial of Willingham (retrying his case in the media can neither bring him back nor make him more dead).

But that wasn't the purpose of either the Forensic Science Commission or the expert they hired, who were charged with evaluating the forensic testimony in Willingham's arson conviction. And that evaluation (pdf), conducted in accordance with current scientific knowledge about fire, arguably has huge implications for some probably-innocent convicted "arsonists" now sitting in prison. If this weren't a death penalty case where the defendant was already executed, I doubt Rick Perry would have bothered himself to intervene and maybe there'd be a better chance for getting more innocent people out of prison.

These thoughts arose this morning as I read a hyper-defensive and frankly embarrassingly dense 21-page rebuttal (pdf) from the City of Corsicana Fire Chief. Most of the fire chief's report adumbrates in detail other testimonial evidence that has nothing to do with the forensic testimony. He seems to fancy himself a prosecutor and his main concern is to claim Todd Willingham was guilty anyway, not to defend in any meaningful detail the science presented at trial.

His rebuttal shows the chief seemingly unaware of the history or status of modern fire science, and he ironically fails to understand the implications of the expert testimony received by the commission. The chief said that calling 1991 investigation methods "folklore" is "a bit strong" but he doesn't know what they were, doesn't know how they changed, and he pretty universally accepts what Beyler says they are now. He merely thinks investigators shouldn't be faulted for not using more modern methods that didn't exist yet.

But the Commission's point wasn't to fault investigators but to evaluate their findings based on scientific assumptions in a field that everyone acknowledges has changed dramatically since Willingham was convicted. In 1991, Corsicana investigators relied on junk science, or really "folklore," to use Beyler's term, that had no actual relation to "science" at all - but that was true of most arson investigators in America. There's no need to be defensive to the point of denial. Worse, the chief betrays his own ignorance by defending debunked methods as valid, discrediting his views from the get-go.

Ignoring portions of the rebuttal unrelated to science (and thus equally unrelated to the investigation at the Forensic Science Commission), the chief's critique of the scientific debate boils down to a complaint that "Beyler ignores the testimony of Doug Fogg, the Corsicana Fire Department investigator, regarding the pour patterns and what could have caused them, and Beyler also quotes Fogg as saying that plastic toys don’t melt, and that latex paint doesn’t burn off wood, which he did not say," reported the Corsicana Sun. At the end of his rebuttal, the chief goes on at length to say that the fact that the floor was on fire is evidence that arson occurred because "Fire burns up, not down."

These claims would be almost comical if they didn't come up in such a macabre setting. Those assumptions about "pour patterns" and fire on the floor are precisely among the aspects of junk forensics discredited by modern methodologies. That's the point of Beyler's testimony and the fire chief clearly doesn't know enough about the subject to engage in an on-point debate.

Mr. Fogg is not a scientist and to judge by the chief's rebuttal, even today fire officials in Corsicana don't have anyone on staff with a firm grasp of modern arson science. By comparison, Dr. Beyler has bachelors and masters degrees in fire safety engineering, a PhD in engineering from Harvard and is chairman of the International Association for Fire Safety Science. The techniques of modern fire science were mostly developed via hands-on experimentation within the last 20 years. Real-world testing debunked a specific set of non-scientific mythologies and assumptions that previously dominated arson investigation, some of which the chief still clearly clings to. But when Dr. Beyler sees testimony about "pour patterns" and fire on the floor presented to a jury as evidence of arson, with no other evidence but "eliminating" accidental causes, for him that's not even a hard call. Science just doesn't consider that good evidence anymore, even though not long ago such testimony was common, though erroneous, even when given in good faith. That's the piece of the puzzle that makes sense of these conflicting claims about fire.

During the forensic testimony at Willingham's trial, jurors were assured that "the fire does not lie," etc., implying that contradictory accounts among witnesses could be sorted out through science. The rest of the testimony was sketchy and inconclusive, with contradicting witnesses telling different stories on virtually every critical point. (The other important witness was a jailhouse snitch who has since recanted.) The chief said this was just a colloquialism, but in context it had significant import: With conflicting witnesses, forensic testimony was the crux of the evidence for conviction, and although the jury was told the fire did not lie, they had no way of knowing fire could be so profoundly misunderstood.

The chief's other big complaint focuses on the use of one three-word phrase in a 51-page report - "standard of care," which he says is evidence of bias. But because this is a death penalty case, unbiased sources are few and far between and the fire chief clearly isn't one, either. Personally, I read that phrase as referring to care in gathering and maintaining evidence in the investigation. If Dr. Beyler has a bias, it appears to be a bias for higher standards of professionalism in arson investigations than what happens in Corsicana.

Bottom line, the arson testimony in Todd Willingham's trial was overstated and reached definitive conclusions that a scientific understanding of fire fails to support. Nobody will ever be able to prove a negative - that Todd Willingham didn't set the fire - because evidence wasn't preserved and the investigation can't be re-done by people who know what they're doing. But it's possible now to say there was no solid forensic evidence of arson presented to the jury, which was all the Commission was investigating in the first place.

If this weren't a death penalty case, that might be enough to spark a more thorough review of past arson convictions and expanded training and research in fire science, which is what's needed. Instead, the Governor appoints a crony who shuts down the inquiry so he can play hero to the pro-death penalty crowd in the run up to the primary. That does not bode well for anyone falsely convicted of arson who claimed innocence at trial and is now sitting in prison based on discredited forensics. They're going to have to wait on justice awhile longer while the culture warriors slug it out over whether an innocent person received the death penalty.

UPDATE (10/5): While I appreciate the Dallas News linking to this post on their list of "Must reads from the web," I took umbrage at the headline they gave it: "A minor Willingham tragedy." I'd say that's a matter of perspective. If you're sitting in prison long-term for an arson crime you didn't commit, arguably the tragedy wouldn't seem nearly so "minor."


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