Cameron Todd Willingham, left, who was put to death in 2004 for the murder of his three children in a 1991 house fire; Texas Governor Rick Perry, right.
His predecessor left office to become President but Rick Perry has now become the longest-serving and most powerful governor in the history of the state of Texas. That is very much due to his use of wide-ranging appointment powers that have allowed him to dominate state boards, commissions and courts that control many aspects of daily life in Texas. But, in the past week, a brouhaha over his refusal to reappoint three members of an obscure forensic-science commission has political observers wondering if Perry, who is facing a potentially bruising GOP primary battle, has made a political misstep.
A well-placed source has confirmed to TIME that Perry ignored the written pleas from several members of the Texas Forensic Science Commission, including two of his own appointees, to reappoint the board's well-respected chairman, Austin lawyer Sam Bassett. Bassett's departure has resulted in a delay in an important investigation of evidence in a death-penalty case that critics say will prove an innocent man was executed on Perry's watch. (Read 10 stories of wrongfully imprisoned men exonerated by DNA evidence.)
The Texas Forensic Science Commission evaluates forensics standards in a state that too frequently has been in an unwelcome spotlight on issues of crime and punishment. Recently, Texas has been working to show that it is not all frontier justice and, indeed, the day Perry's office announced he was dropping Bassett and appointing a new commission chairman, the governor also issued a "pardon for innocence" for James Lee Woodard, released last year after serving 27 years in prison for a murder and rape he did not commit. Woodard was exonerated on the basis of DNA testing urged by the New York City–based Innocence Project, led by noted defense attorney Barry Scheck. (Read "Texas: The Kinder, Gentler Hang 'Em High State.")
Scheck's group is also pressing the case that is at the heart of Perry's moves at the forensics commission: that of Cameron Todd Willingham, who was put to death in 2004 for the murder of his three children in a 1991 house fire in Corsicana, Texas. In September, Willingham's story was detailed in a New Yorker investigative report by David Grann. It details the conclusions of two noted experts that the fire was accidental and that the arson evidence presented at Willingham's trial was not based on science. "The New Yorker's investigation lays out this case in its totality and leads to the inescapable conclusion that Willingham was innocent," Scheck says. (Read about the decline in death sentences in Texas.)
On the apparent cusp of the forensics board's re-examination of the evidence in the Willingham case, Perry has not only dropped forensics chairman Bassett but two other members of the body, Fort Worth prosecutor Alan Levy and forensics expert Aliece Watts, both of whom had written letters to Perry in support of Bassett continuing as commission head so their work could continue without interruption. Scheck compared Perry's failure to reappoint the three to the infamous Saturday Night Massacre of 1973 when President Nixon fired the special prosecutor investigating the Watergate scandal. But Perry's office said the changes were "business as usual" and the governor added, "Those individuals' terms were up, so we're replacing them."
Sarah Kerrigan, a forensic toxicologist who was appointed by Texas attorney general Greg Abbott, told TIME that she had circulated a letter she had sent "three or four weeks ago" in support of Bassett to Perry among the commission's members and she was aware of similar letters written by Watts and Levy. (The governor appoints four members of the forensics board; the state attorney general appoints two and the lieutenant governor appoints three. In this case, Bassett, Levy and Watts were all Perry appointees. Bassett was first named to the commission in 2005 and reappointed in 2007.)
Much of the case for Willingham's innocence rests on the conclusions of two prominent forensic arson experts including Craig Beyler, who was scheduled to testify before the commission last week. But Perry's new forensics chairman, Williamson County district attorney John Bradley, a well-known, tough-on-crime prosecutor, cancelled last week's meeting on Willingham, saying he needed time to get up to speed on the commission's work. Beyler's testimony in the Willingham case has now been put off until Bradley sets a hearing, and he has not indicated when, or if, he will, saying he needs to talk to state leaders about the role of the commission. So far, leading Democrats in the state senate who pressed for the creation of the commission are praising Bradley's integrity, but say they will call a hearing in a few weeks to hear what his plans are.
Kerrigan says the members believe it is important for continuity to keep Bassett on board in order to wrap up not only the Willingham report, but also preside over several important roundtables aimed at improving forensics standards — part of a nationwide initiative prompted by a report on forensic shortcomings by the National Academy of Sciences. Bassett told TIME he was dismayed and puzzled by Perry's decision. "I certainly hope this change is not about political concerns," Bassett says.
Some political observers speculate that Perry's actions may have something to do with the potentially bruising March 2, 2010, Republican gubernatorial primary in which he is set to face off against U.S. Senator Kay Bailey Hutchison. The Senator has already raised forensic accuracy as an issue. "I am for the death penalty," Hutchison told the Dallas Morning News in response to Perry's actions, "but always with the absolute assurance that you have the ability to be sure, with the technology that we have, that a person is guilty." It is a stance Bassett agrees with. He supports the death penalty in some cases but adds, "We just have to make damn sure we are relying on the best quality evidence possible." (Read a story about Hutchison's candidacy.)
But Perry stands by the decision to execute Willingham. "I am familiar with the latter-day supposed experts on the arson side of it," Perry told the Dallas Morning News last month. Over the weekend, his office told the Corsicana Daily Sun: "Governor Perry has reviewed the totality of the facts of the case, and has stood by the conclusions reached by the courts ... To suggest the arson testimony was the only evidence presented to the jury is grossly inaccurate. The jury also heard testimony of inaccuracies in Willingham's statements."
Still, last week's decision has prompted head-scratching by political observers, even those with ties to the Republican Party. The commission's final report on the Willingham case would not have been issued until late spring or summer of 2010, after the State Fire Marshal's Office would have responded to Beyler's report. The political reality is that the death penalty is unlikely to be an issue in the March Republican primary, says Bill Miller, an Austin political consultant, and it has never had much traction in fall contests, given the wide support for the penalty among both Democratic and Republican voters in the state. Could it be simply an expression of his power? Hubris? Acting because he can? "Well, it is his board," says Miller with a laugh.