Monday, 15 March 2010

Ellis, Scheck and Session: Trusting science in life and death

When Gov. Rick Perry pardoned Timothy Cole earlier this month, it ended the Cole family’s long fight to clear his name. It is a heartbreaking case — and a stark reminder that we need to do more to ensure that our criminal justice system relies on solid evidence.

Cole was wrongfully convicted of rape two decades ago and died in prison in 1999. Last year, DNA testing proved his innocence and showed that another man committed the crime.

Cole’s conviction was based primarily on the victim’s identification of him and testimony from a forensic scientist linking him to the crime. The case is not an isolated mistake. Eyewitness misidentification contributed to more than 75 percent of the wrongful convictions overturned by DNA testing nationwide, and invalidated or improper forensic science played a role in approximately half the cases.

In Tim Cole’s case, solid science came too late. Perry was right to pardon him, but he would do well to learn from this case and make sure it doesn’t happen to anyone else.

One such person might be Hank Skinner, who is set to be executed March 24. Skinner has requested DNA testing for 10 years, and there is no good reason for state officials to continue blocking these efforts.

We don’t know whether Hank Skinner is guilty or innocent. But we know the governor has the power to step in and delay the execution so DNA testing can be done to resolve this case once and for all — before Skinner is executed.

Cole’s pardon and Skinner’s execution date come as questions continue to grow about the case of Cameron Todd Willingham, who was executed in 2004 for allegedly setting a fire that killed his children. At Willingham’s trial, forensic experts testified that evidence showed the fire was intentionally set. Several independent reviews — including one that was sent to Perry just hours before he failed to stop Willingham’s execution — have shown that the forensic science used in the case was invalid and that the analysts should have known that at the time.

Nearly four years ago, the Innocence Project asked the Texas Forensic Science Commission to review the cases of Willingham and another man, who was exonerated and pardoned by Perry because of faulty arson evidence. The Forensic Science Commission was asked whether the arson analysis in these cases was flawed, if other cases across the state might have been based on the same kind of faulty forensic analysis, and what improvements could prevent this from happening in other cases.

We believe it’s likely that there are other people in Texas prisons for arson convictions based on faulty forensic analysis. Unfortunately, politics interfered with the commission’s independent scientific work several months ago, when Perry replaced several commissioners. Days before the commission was to review the Willingham case, the new chairman canceled the meeting and has spent the past six months working on procedural issues.

Science proved Timothy Cole’s innocence 10 years too late. It threw Cameron Todd Willingham’s case into doubt several years too late. And it will soon be too late for science to definitively resolve Hank Skinner’s case before he is executed.

These cases remind us that much work remains to be done to ensure the integrity of Texas’ criminal justice system. Law enforcement agencies should establish written eyewitness identification procedures based on best practices, and we should ensure that forensic evidence is reliable and accurate, and defendants have access to that evidence.

The Forensic Science Commission needs to be protected from politicians so that Texans can trust that the commission’s decisions — and the evidence used in our courtrooms — are based on modern science instead of politics.

State Sen. Rodney Ellis, D-Houston, represents District 13; his e-mail address is Rodney.Ellis@ Barry Scheck is co-founder and co-director of the Innocence Project; his e-mail address is Cory Session is the brother of Timothy Cole and an advocate for the wrongfully convicted; his e-mail address is


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