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Claiming that Texas may have executed an innocent man in 2004 based on a flawed forensic analysis, the Innocence Project has asked the fledgling Texas Forensic Science Commission to review the arson cases of inmates still in state prisons. On May 2, Barry Scheck, co-director of the New York City-based Innocence Project, released a report prepared by five fire investigators who examined trial testimony in the arson cases of Ernest Willis and Cameron Todd Willingham. Willis, who spent 17 years on Texas death row in connection with a fire that killed two women, walked out of prison a free man in October 2004. But the state executed Willingham in February 2004 for the December 1991 deaths of his three young children in a fire at their Corsicana home. According to the 48-page report, neither of the fires at issue in the Willis and Willingham cases were “incendiary fires,” meaning they were not the result of 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. “It’s time to find out whether Texas executed an innocent man,” Scheck told reporters at an Austin news conference. Relatives of Willingham who attended the news conference said he maintained his innocence to the end. “We want to keep this from ever happening again,” Willingham’s stepmother, Eugenia Willingham of Ardmore, Okla., told reporters. But John Jackson, the former Navarro County assistant district attorney who prosecuted Willingham, says in an interview that he has no doubts about Willingham’s guilt. “Any report that finds the Willingham fire was not incendiary has to be characterized as silly,” Jackson says. Jackson says Willingham had blocked the rear door of the house with a refrigerator to prevent anyone from escaping and to prevent rescuers from entering the house. “I can’t imagine why any rational person would focus this amount of attention on a case like this,” he adds. For the past 10 years, Jackson has served as judge of the 13th District Court in Corsicana � the same court in which a jury convicted Willingham in 1992.
Have a comment about this story? We want to hear from you . Your comments will be posted at the end of this story. Editor’s Note: Texas Lawyer reserves the right to post comments that are deemed appropriate for this forum. Please include a name and location with your comments, along with the story’s headline.

Ben Gonzales, spokesman for the State Fire Marshals Office, says the agency is confident in the work done by its arson investigators. “If the state commission of forensic science decides to review the cases cited [in the report], the State Fire Marshals Office is happy to assist them in any way we can,” Gonzales says. Neither Rob Dunn, Willingham’s defense lawyer at trial, nor David Martin, his court-appointed lawyer on appeal, returned a telephone call to each of their offices by presstime on May 4. Scheck says Dr. Gerald Hurst, an Austin-based arson analyst who studied Willis’ case, found no evidence that arson was involved in the fire that claimed the lives of two women in Iraan in Pecos County. U.S. District Judge Royal Furgeson Jr. of San Antonio found in a habeas proceeding that Willis had been denied effective assistance of counsel at trial and ordered the state either to 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 for Willis in the Court of Criminal Appeals. White did not return a telephone call by presstime on May 4. Judge Brock Jones Jr., of the 112th District Court, signed an order in October 2004 that dismissed the capital murder charge against Willis due to insufficient evidence. But Scheck said that the same science that saved Willis failed to save Willingham. Scheck noted that Hurst had submitted an affidavit in support of clemency for Willingham and presented the same kind of evidence that he did in the Willis case to the State Board of Pardons and Parole and Gov. Rick Perry’s office 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 his contention that the state declared one man innocent but executed the other man, based on the same kind of evidence and the same science. 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 that prepared the report on the Willis and Willingham cases. The Innocence Project submitted the arson experts’ report to the nine-member Forensic Science Commission and asked that the commission re-examine other arson cases. Future Action But it may be some time before the commission can take action on that request, because it has no state funding. Commission member Sam Bassett, a partner in Austin’s Minton, Burton, Foster & Collins, says the commission has held no meetings. “There’s been an apparent delay in securing funding,” Bassett says. The Texas Legislature passed H.B. 1068 in 2005 to create the commission to develop a reporting system and investigate allegations of professional negligence that would “substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility or entity.” But 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. 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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