Texas AG's Flawed Opinion Need Not Spell End to Scrutiny of Convictions and Executions Based on Junk Science

An opinion letter issued on Friday by Texas Attorney General Greg Abbott is the latest chapter in Texas’s efforts to cover up its 2004 execution of an innocent man named Cameron Todd Willingham. The letter concerns the scope of authority of the Texas Forensic Science Commission (TFSC), an agency created to take a serious, objective look at the quality of forensic science in Texas courtrooms. It should be seen for what it is: just another attempt to divert attention from the scientists by the politicians.

As background, by appointing prosecutor John Bradley to lead the TFSC in late 2009, Governor Rick Perry stymied the TFSC’s investigation of the deeply-flawed “fire science” testimony used to condemn Willingham for murder by arson.

Though an assistant attorney general had always been present at TFSC meetings since its creation, one of Bradley’s tactics was to question the TFSC’s very authority to examine Willingham’s case. Bradley questioned whether the TFSC could investigate evidence introduced before its creation in 2005; he questioned whether it could investigate laboratories that had not yet been accredited; and he questioned whether it could investigate the professional negligence of forensic scientists who acted before 2005.

Lucky for him, Bradley’s dancing-on-the-head-of-a-pin questions went to Texas Attorney General Greg Abbott – Texas’s top prosecutor. Rejecting several points made by the ACLU of Texas and others who weighed in, the fox sent to guard the hen house did little to disappoint Bradley (whose reappointment the Texas Senate recently nixed).

In the attorney general’s non-binding opinion letter, he determined that the TFSC is limited to examining evidence introduced after September 1, 2005, despite the fact that the TFSC was created to address problems that arose prior to 2005. But the opinion letter also states that the statute places absolutely no time limits upon TFSC’s ability to investigate professional negligence and misconduct.

The opinion places the TFSC and Texas at a crossroads. The TFSC’s newly-appointed chair, Dr. Nazim Peerwani, has said that the commission would be debating the impact of the opinion on the Willingham case.

At a minimum, the opinion means the TFSC can move forward and assess the professional negligence of the State Fire Marshal’s Office. That office has continued to defend the faulty evidence used to condemn Willingham, and thus continues its professional negligence. The TFSC already recognized this year that the arson science used to convict Willingham was flawed.

If the TFSC decides that the attorney general’s opinion restricts its ability to fully review the Willingham case, it will still have important work to do. But in that case the Legislature should step in to clarify the TFSC’s broad mandate to root out junk science. The TFSC should be able to look at what the lawyers and the politicians knew about the use of junk science in death penalty (and other) cases.

Leading the nation, Texas has executed 472 people since 1982. 322 more await the same fate unless they win their appeals. Texas also leads the nation in DNA exonerations. Texas has almost certainly executed innocent people, Willingham likely among them. How the TFSC moves forward will help to answer how many more innocent people will be sent to Texas’s death chamber.

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