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On May 2, the Innocence Project asked the fledgling Texas Forensic Science Commission to review two arson cases. In one case, a man was exonerated, and in the other, a man was executed. According to the 48-page report, prepared by five fire investigators, neither of the fires at issue in the cases of Ernest Willis and Cameron Todd Willingham were “incendiary fires,” meaning they were not the result of arson. John Lentini, a certified fire investigator and chemist who manages the fire investigation division of Applied Technical Services Inc., an independent consulting firm in Marietta, Ga., led the panel of experts. The report goes through testimony of fire investigators who worked on each case and finds that they relied on incorrect assumptions when they determined that each case involved arson. “The artifacts examined and relied upon by the fire investigators in both cases are the kind of artifacts routinely created by accidental fires that progress beyond flashover,” the fire investigators wrote in the report. Willis, who spent 17 years on Texas death row, walked out of prison a free man in October 2004. U.S. District Judge Royal Fergeson Jr. of San Antonio, in a federal habeas proceeding, ordered the state to either retry Willis by Nov. 18, 2004 or free him. Ori T. White, then the district attorney in Fort Stockton, filed a certificate of actual innocence in Willis’ case with the Court of Criminal Appeals. Brock Jones Jr., judge of the 112th District Court, signed an order in October 2004, dismissing the charges against Willis, due to insufficient evidence. Barry Scheck, co-director of the New York City-based Innocence Project, told reporters at an Austin news conference that Dr. Gerald Hurst, an Austin-based arson analyst who studied Willis’ case, found no evidence that arson was involved in the 1986 fire that Willis had been convicted of setting. Two women died in that fire in the West Texas town of Iraan. But Scheck said that the same science which saved Willis failed to save Willingham, who was executed in February 2004 for the December 1991 deaths of his three young children in a fire at their home in Corsicana. Hurst also had submitted an affidavit in Willingham’s case, when the State Board of Pardons and Parole and Gov. Rick Perry’s office reviewed the case shortly before the state executed Willingham. “This is a perfect storm; it is a very unique case,” Scheck said at the news conference, referring to the state having declared one man actually innocent while executing the other man, based on the same evidence and the same science. But John Jackson, the former Navarro County assistant district attorney who prosecuted Willingham, says in an interview that he’s “flabbergasted” that the Innocence Project picked Willingham’s case for review. “I can’t imagine why any rational person would focus this amount of attention on a case like this,” says Jackson. Jackson now serves as judge of the 13th District Court in Corsicana � the same court in which a jury convicted Willingham. Jackson says Willingham blocked the rear door of the house with a refrigerator to prevent anyone from escaping and to prevent rescuers from getting into the house. Neither Willingham’s defense lawyer at trial, Rob Dunn, nor his lawyer on appeal, David Martin, immediately returned a telephone call seeking comment. Future Steps The Innocence Project also has asked the Forensic Science Commission to order a review of all arson convictions in the state, but it may be some time before the commission can take action, because it has no state funding. The Texas Legislature passed H.B. 1068 in 2005 to create the commission to develop a reporting system and investigate allegations 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.” Lawrence Coleman, policy director for the Senate Criminal Justice Committee, says the Senate passed H.B. 1068 after it passed the state’s appropriations bill. The state’s Legislative Budget Board is looking at the funding situation, Coleman says. State Sen. Rodney Ellis, D-Houston, who appeared at the news conference, said the state has an $8 billion surplus. “There shouldn’t be any problem paying for it,” Ellis says of the commission. However, the Budget Board can’t act while the Legislature is in session, and it’s up Perry whether to add funding for the Forensic Science Commission to the call of the special session. Kathy Walt, Perry’s press secretary, did not immediately return a telephone call for comment. Scheck says the commission can require any state agency that it investigates to pay for the investigation. But without state funds, the commission can not reimburse its appointed members for costs and travel to attend meetings.

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