Sen. Rodney Ellis on the Jurisdiction of the Texas Forensic Science Commission and the Delayed Investigation of Forensic Analyses in the Todd Willingham and Ernest Willis Cases
(Houston, TX)—The Texas Forensic Science Commission will meet tomorrow in part to discuss whether it has jurisdiction to analyze the forensic evidence in two prominent arson cases. Senator Ellis issues the following statement.
"I urge the Texas Forensic Science Commission (FSC) to resume its investigation of the flawed arson science used in the Todd Willingham and Ernest Willis cases, as well as any similarly flawed science used in the many other arson cases that the State Fire Marshal's Office has been involved in since Willingham was convicted in 1992. The FSC was operating within the language and intent of the law when it determined that it had jurisdiction to investigate the case the first time in August 2008. Frankly, I am surprised that the Commission is even questioning whether or not it has jurisdiction, since it unanimously decided – with the Attorney General's representative in the room – to review the cases over two years ago.
While I appreciate the fact that the law establishing the Forensic Science Commission could be more clearly written, there are flaws in the analysis contained in the jurisdiction memo written by an unnamed FSC author. The statute never says that only Department of Public Safety (DPS) accredited labs, facilities, or entities may be investigated. DPS only began accrediting crime labs in 2003, and as such, allegations of professional negligence or misconduct that occurred before then would not be able to be investigated. In fact, the problematic crime lab that was the impetus of the legislation, the Houston Police Department Crime Lab, was not accredited by DPS for most of the 2005 session, and its DNA lab was not provisionally accredited until June 19, 2006. It would be absurd to think that the FSC would not have jurisdiction to investigate one of the main problems it was created to address.
Additionally, the statute says that "all laboratories, facilities, or entities that conduct forensic analyses" must report professional negligence or misconduct. It would make little sense for "all laboratories, facilities, or entities" to report such problems if the FSC did not have jurisdiction to investigate them. Finally, the section of the law that refers to "accredited" laboratories says that the Commission shall investigate "any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity." As a whole, the statute envisions the possibility that negligence or misconduct could be alleged in a lab or by an entity -- accredited or not -- and that the FSC should investigate it if it would substantially affect the results of a forensic analysis by an accredited lab.
One important part of the law that the Commission doesn't seem concerned about is its duty to investigate allegations of professional negligence or misconduct "in a timely manner." The Willis/Willingham complaint was brought to the Commission over four years ago, in May 2006. Between FY 2006 and 2009, about 1,100 people were committed to Texas prisons on arson convictions. A timely investigation of the Willis/Willingham case obviously would be important to those defendants since the same flawed science may have been used in their cases. Timely investigations are also important to the public, so they can be assured that problems in our crime labs are dealt with swiftly, and important to our courts to insure that forensic evidence is reliable and accurate. Timely investigations are also important to current and future complainants and whistleblowers so they will feel confident bringing complaints, and know that their allegations will be addressed quickly and won't be ignored.
The work of the Texas Forensic Science Commission is too important to be bogged down in political bickering. Texans need the FSC to perform its work in a timely manner so the public can once again have confidence in forensic evidence and confidence that the truly guilty are behind bars and the innocent are free."