Experts Exclude Man As Killer, Execution Set Anyway

UPDATE: Larry Swearingen has been given a stay of execution! His case has been sent back to the trial court “to review and resolve the claims made” in a couple of habeas corpus applications.  In this case, the main claim raised is one of “actual innocence”.  Four of the court’s judges would have voted to dismiss Swearingen’s applications and allow the August 18 execution to proceed.

I have written a few times about the weird relationship between Texas and Science.  As those of you who watch any of the 10,000 CSI programs know, science is playing an increasingly central role in our criminal justice system.  But from proposing scent lineups, to carrying out executions based on discredited fire forensics, to refusing to test available DNA evidence, to acting on tips from psychics, Texas seems routinely to be behind the curve.

Now, Texas has set August 18 as the execution date for Larry Swearingen.  Swearingen was sentenced to death for the murder of Melissa Trotter, but he had been in jail for 23 days when the body of the victim was found.  Five separate forensic experts, including four current or former Chief Medical Examiners from Texas, have determined that Melissa Trotter died very close to the date her body was found.  That is, the crime occurred when Larry Swearingen was in jail.  This contradicts the trial testimony of Dr. Joye Carter who had said the death occurred 25 days prior to the body’s discovery.  But she herself has recanted that testimony and now agrees with the other forensic experts.


DNA Test Exposes Execution Based on Bad Evidence

Claude Jones was sentenced to death based on one hair.  That hair, prosecutors insisted, was his, and placed him at the scene of a 1989 killing at an East Texas liquor store.  Now, 10 years after his Dec. 7, 2000 execution, the Texas Observer reports that DNA tests have concluded that the hair was the victim’s, not his.  Normally, after someone is put to death, no tests are carried to determine if the execution was wrongful.  These tests were only carried out as a result of a lawsuit filed by the Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network.

Jones was a career criminal who was involved in a plot to rob the store.  But to execute him, Texas needed to convict him of the murder, and for that they relied of the forensic technique of hair matching, something we now know to be a kind of junk science.    This week’s DNA results, which directly contradict the conclusions drawn by the state’s forensic hair expert,  do not CONCLUSIVELY prove Jones’ innocence in the killing (since they don’t implicate an alternative suspect), but they do mean that there is now no physical evidence tying Jones to the crime for which he was put to death.

In the hours leading up to his execution, Jones had asked for a DNA test of this lone hair, but the courts rejected that request, and then Governor George W. Bush declined to intervene.  Interestingly, it appears that Governor Bush’s lawyers neglected to mention the request for DNA testing in the memo they gave him.  Bush had previously granted a reprieve to allow DNA testing, so we are left to wonder what he might have done in this case, if he had known.

We do know now that, as in the case of Cameron Todd Willingham, Claude Jones was convicted on the basis of fundamentally flawed evidence.  And, despite the existence of appeal courts, the clemency process, real DNA science, and other supposed safeguards, his execution could not be stopped.

Flawed Science and New York Lawyers

Cameron Todd Willingham was convicted in 1991 and sentenced to die for an arson that killed his three children in Corsicana, Texas. Throughout, he insisted that the fire was an accident, and after his execution, doubts only increased.  A report commissioned by the Innocence Project concluded that the arson investigation in Willingham’s case was seriously flawed, leading many to suspect that the Lone Star State did indeed execute an innocent man.  In 2008 the Texas Forensic Science Commission agreed to look into the case.

On Friday, July 23, the Commission decided that arson investigators had used flawed science, but were not negligent and committed no misconduct.  The investigators had relied, the Commission said, on the best science available at the time.  But a report given to them last year by fire expert Craig Beyler concluded that:

A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921 [the current standard], or the standard of care expressed by fire investigation texts and papers in the period 1980–1992.

In other words, it wasn’t arson by any standard.

The Beyler report was completed over 9 months ago, but Governor Rick Perry stopped the Commission in its tracks by replacing three of its members, including its chairman, two days before a review of the report was to take place. It was Governor Perry who, in 2004, allowed Willingham’s execution to go forward, despite having in hand a report on the “junk science” Texas used to obtain the death sentence.  

Texas state Senator Rodney Ellis suggested to CNN the broader questions the Commission did not ask:

When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?

The Forensic Science Commission’s chairman is now a prosecutor named John Bradley, who deftly blamed the whole thing on “New York lawyers”, saying of the Willingham case “I think that’s being used very much as a side issue to politicize, through some New York lawyers, the work of the commission.”

The Texas State Forensics Commission will vote on a final report sometime later this year.  Expectations are low.

Is Ignorance the Best Policy?


The US Supreme Court has stayed the execution of Henry Skinner, at least temporarily.  He has filed a petition to the Supreme Court, and if the Court declines to hear his petition, the stay will be lifted.  If the petition is accepted, the stay would continue indefinitely and there would be a hearing at the Supreme Court.

Today, Texas is scheduled to execute Henry “Hank” Skinner, despite the fact that readily available evidence in his case has never been tested for DNA which might prove his innocence (or confirm his guilt).  Adopting a policy of willful ignorance is nothing new for officials of the Lone Star State.  Infamously, last week, the Texas State Board of Education voted to remove Thomas Jefferson from the state’s social studies curriculum because he coined the phrase “separation of church and state.” His name was deleted from a list of famous writers who inspired 18th and 19th century revolutions. He wrote the Declaration of Independence.  

Six years ago, the execution of Cameron Todd Willingham was allowed to proceed, even though Governor Rick Perry and others were warned that the science used to convict Willingham of an arson that killed his three children was seriously flawed, and that the fire might have been an accident.  Last Fall, Governor Perry personally sabotaged an investigation into the science used in Willingham’s case, abruptly replacing three members of the Texas Forensic Science Commission just as it was about to hear from a nationally respected forensic fire science expert, Craig Beyler, whose report concluded that the fire should not have been ruled an arson.

Well, now it’s Spring 2010, and Mr. Beyler has still not had a chance to present his findings to the Texas Forensic Science Commission, but last night, he did participate in a panel that discussed the case, and the need for better forensic science, at Georgetown Law School here in DC.  According to the Innocence Project, three states (Arizona, Nebraska and Oklahoma) are considering legislative resolutions in support of using “solid science” in arson investigations.

Really?  We need legislative resolutions for that?

Sadly, yes. Texas officials not only don’t endorse “solid science,” they continue to actively thwart efforts to improve the quality of forensic investigations.  Executing Henry Skinner while grave doubt hangs over his conviction, when DNA tests could easily remove that doubt, is just the latest example that, for Rick Perry and company, ignorance remains the best policy.

Saturday Night Massacre, Business as Usual, or Both?

(c) Scott Langley

(c) Scott Langley

An important hearing was supposed to take place in Texas today, but on Wednesday, September 30, Texas Governor Rick Perry abruptly replaced three members of the Texas Forensic Science Commission that is currently reviewing the fire investigation that led to the 2004 execution of Cameron Todd Willingham.  The Governor took this action two days before the Commission was scheduled to hear live testimony from Craig Beyler, a nationally respected fire expert whose recent report criticized the original investigation of the fire that killed Willingham’s three children as having “nothing to do with science-based fire investigation.”

That hearing, scheduled for today, has now been postponed, and the chair of the Commission, a defense lawyer from Austin, Sam Bassett, has been replaced by politically-connected, tough-on-crime prosecutor John Bradley.  More than a few eyebrows have been raised by Governor Perry’s sudden move.  Barry Scheck of the Innocence Project,  which also conducted a review of Willingham’s case and determined that he was innocent of the crime for which he was executed, called Perry’s actions a “Saturday Night Massacre,” drawing an analogy with President Nixon’s famous firing of the special prosecutor who was investigating the Watergate scandal. 

For his part, Governor Perry said that his actions were simply “business as usual” … the terms of the three Commission members he removed had expired, so they were replaced.  Of course, this occurred two days before the Commission’s hearing, and there is no reason Governor Perry could not have simply reappointed those Commission members so that they could finish their important work. 

Governor Perry (and the Texas Board of Pardons and Paroles) signed off on Willingham’s execution back in 2004, despite having in hand a report challenging the fire investigations as “junk science,” and the Governor has publicly challenged Beyler’s credibility, referring to him and others who have looked at the case as “supposed experts.” What Governor Perry’s expertise is in the area of forensic fire science is unclear.

What is clear is that, whatever the Governor’s motives, if his actions lead to another white-washing of a dubious conviction and death sentence (and, in this case, execution), then that will indeed be “business as usual” in Texas.