Texas Forensic Science Commission to reopen discussion of Willingham case this month

Posted Saturday, Apr. 10, 2010

Read more: http://www.star-telegram.com/2010/04/10/2104682/texas-forensic-science-commission.html#ixzz0lIqwlqLG

By DAVE MONTGOMERY

dmontgomery@star-telegram.com

AUSTIN -- After months of delay and internal upheaval, the revamped Texas Forensic Science Commission is poised to reopen discussion of the Cameron Todd Willingham case when it meets April 23 in Irving.

Tarrant County Medical Examiner Nizam Peerwani, appointed to the panel in December, is likely to play a central role in the inquiry to determine whether a flawed arson investigation led to Willingham's execution in 2004.

The commission also includes two other members from Fort Worth: defense attorney Lance Evans and Jay Arthur Eisenberg, a professor and chairman of the department of forensic and investigative genetics at the University of North Texas Health Science Center at Fort Worth.

The meeting will mark the first time that the commission has revisited the Willingham case since a membership shake-up halted the inquiry more than six months ago.

"I think the commission is looking forward to being able to get down to work," said Evans, who was appointed in October.

Willingham, an unemployed Corsicana mechanic, was convicted of setting a house fire in 1991 that killed his three daughters. But several fire experts, including one hired by the commission, have challenged the arson findings, raising the possibility that the fire may have been accidental.

Controversy, criticism

The case has drawn national attention, becoming a rallying point for anti-death penalty groups saying Texas may have executed an innocent man on Gov. Rick Perry's watch. The controversy intensified in the fall when Perry replaced four of the nine commissioners.

Commission Chairman John Bradley told the Star-Telegram in e-mails last week that the commission will discuss the Willingham case and other pending complaints when it meets at the Omni Mandalay Hotel at Las Colinas. It is not known how long resolving the Willingham case will take.

Bradley, who is the Williamson County district attorney and was named by Perry to replace ousted Chairman Sam Bassett, came under fire at a legislative hearing last week for what critics suggested was a heavy-handed leadership style that stifles public discussion. Bradley, who was not at the hearing, later called the assertions unwarranted and his approach fair and inclusive.

"I'm not knocking their right to criticize," Bradley said. "I'm just suggesting that it isn't a balanced view of our work."

A new approach

In a meeting in January, the restructured commission adopted policies and procedures that Bradley said were necessary before the commission can move forward on pending investigations, including the Willingham case.

The new policies call for creating separate panels to screen complaints and handle investigations, with recommendations ratified by the full commission. Panel members are appointed by the chairman, subject to approval by the commission.

Bradley declined to discuss the commission's investigations, but three other commissioners said the Willingham inquiry has been tentatively assigned to a three-member investigation panel: Bradley, Peerwani and Sarah Kerrigan, a forensic toxicologist and director of a regional crime lab at Sam Houston State University in Huntsville.
Bradley, Peerwani and Eisenberg are also on a committee that will valuate complaints and recommend to the full commission whether they should be pursued. If the commission votes to go ahead, complaints are assigned to three-member investigative panels that will present their findings to the full commission.

Still up in the air
Peerwani said that the screening committee has scheduled a meeting for Thursday in his Fort Worth office but that members of the second panel who were assigned to the Willingham case have yet to get together. It remains unclear to what extent the Willingham panel will rely on the previous work of the original commission, but Peerwani hopes that the panel won't have to start from scratch.

"We do have a lot of material that the commission has collected," said Peerwani, who has been Tarrant County's medical examiner for 30 years. "I don't think we have to go back and restart all those investigations."

But "it's still up in the air. I don't know what the commission is going to do," he said.

Eisenberg, a member of the commission since October 2006, said he is "pleased that we're going to get back to the discussion."

"We had invested a lot of time and effort in terms of the material," Eisenberg said.

Renewed inquiry

One crucial element from the original inquiry was a report that was prepared for the commission by Baltimore fire expert Craig Beyler, who concluded that the arson investigation that led to Willingham's conviction was based on outmoded techniques and could not sustain a finding of arson.

The commission agreed to look into the case after receiving a complaint from The Innocence Project, a New York-based advocacy group, in December 2006.

Beyler, whom the commission hired December 2008, submitted his report in August 2009 and was scheduled to appear at a commission hearing that was abruptly canceled after the membership shake-up in September. Beyler told the Star-Telegram late last week that he has not been invited to the upcoming meeting.

Under the new policies and procedures, the commission can find that a "forensic analysis met the standard of practice that an ordinary forensic analyst would have exercised at the time the analysis originally took place."

Other options are concluding that the evidence did or did not sustain a finding that "professional negligence or misconduct" occurred in a forensic analysis and taking "such other action as appropriate."

'Quagmire of delays'

The restructured investigative approach -- which may still have to be formally ratified at the upcoming meeting -- has raised questions among Bradley's critics, who believe that it may give him too much power over the Willingham case.

Bradley's appointment by Perry-led accusations that the governor was trying to dictate the outcome of the Willingham case to avoid potentially embarrassing findings, assertions that Perry and Bradley have denied.

"The notion that he would be on this particular committee in light of everything that has gone on in the last year is particularly inappropriate," said Rep. Lon Burnam, D-Fort Worth. "A suspicious mind would be concerned about nefarious activities."

Burnam, who said he plans to attend the upcoming meeting, also expressed concerns that the new approach would keep the investigation out of the public eye. "It runs contrary to every gut instinct I have about how government should work," he said.

Bassett, the former chairman who has criticized Bradley's approach, said the creation of the panels would differ from previous practice, in which the commission conducted inquiries as a body. He said Bradley's presence on an investigative panel would give him more control over the ultimate outcome.

"He can have an influence over what's written, there's no question," said Bassett, an Austin defense attorney. "I don't think it's improper. I'd say it's more a question of personal style. I would have preferred the entire commission to debate the findings that are going to be in the draft report rather than just three people."

At last week's hearing of the House Public Safety Committee, Rep. Tommy Merritt, R-Longview and committee chairman, sharply challenged Bradley's insistence that new policies and procedures were needed before the commission could move forward on investigations.

The result, he said, was "a quagmire of delays" that needlessly stalled the work of the committee.

But Bradley, in e-mails after the meeting, defended the new rules. "Previously the Commission literally had no written guidelines. There was no definition of misconduct or negligence. There was no written process for how to accept or investigate a complaint."

Bradley also disputed assertions that he single-handedly prepared the new policies and guidelines, saying they were drafted by a committee that included Eisenberg and Evans, and were "debated and amended considerably" at the commission's last meeting. He called the product "very much a collaborative effort.

"No doubt it will be revisited, but it does give us a strong set of policies and procedures from which to work," he said.

Source(www.star-telegram.com)