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West Texas DA seeks to halt review of old arson cases

The State Fire Marshal’s Office is testing old arson cases for bad science, earning national attention for confronting a dark legacy — fire investigators who helped send Texans to prison with scientifically invalid arson rulings. Three questionable convictions have been discovered so far.

But the effort has also drawn the ire of a West Texas prosecutor who, upset at the questions raised about a 1993 murder conviction, has moved to shut down the reviews.

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believes the fire marshal overstepped his authority by examining — and discrediting — evidence used by his office to convict Sonia Cacy of dousing her uncle with gasoline and setting him alight.

In a letter dated Oct. 1, Ponton asked Texas Attorney General Greg Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott, who is running for governor, has until early April to deliver his opinion on the legality of the reviews.

In the meantime, State Fire Marshal Chris Connealy plans to continue examining old arson cases, lining up five more to be reviewed in December. Connealy said he will not abandon an effort that is improving the skills of arson investigators while taking responsibility for investigative techniques now known to be flawed, sometimes leading fires to be mislabeled as arson.

“It’s working extremely well,” Connealy said. “I think it’s a credit to the criminal justice system. I think it enhances it.”

The review of old arson cases was recommended by a 2011 Texas Forensic Science Commission report that acknowledged that faulty fire science played a role in Cameron Todd Willingham’s murder-by-arson conviction in the deaths of his three young daughters in 1991. The Corsicana man was executed in 2004.

A deputy state fire marshal testified that burn patterns, charring and other damage found in Willingham’s home could only have been caused by an accelerant such as charcoal lighter fluid — a common belief among investigators at the time. Scientists now agree that the so-called arson indicators cited in the Willingham fire — including blown-out windows, melted aluminum thresholds, discolored bedsprings, peeling vinyl tiles — are also found in accidental fires.

Leaders of the State Fire Marshal’s Office initially disputed the commission’s findings, standing by their investigator’s arson ruling in the Willingham case despite a parade of experts who disputed every piece of evidence used to label the fire as arson.

The pattern of denial changed when Connealy took over the agency last year after eight years as chief of the Cedar Park Fire Department.

Embracing the commission’s Willingham report, Connealy assembled a six-member panel of fire, forensic and legal experts to review old cases — identified by his staff and by the Innocence Project of Texas — that might have relied on bad science.

The panel’s first quarterly meeting was in January. Cacy’s case was reviewed in April and July.

In August, the group issued its findings about the early-morning fire that killed Bill Richardson in the small Fort Stockton home he was sharing with Cacy in November 1991. Outlined in a two-page letter from Connealy to Ponton, the findings refuted the heart of the prosecution’s case against Cacy.

According to the experts:

• Today’s science doesn’t support a finding of arson. Instead, the cause of the Cacy fire should have been listed as undetermined.

• The most damning evidence — a forensic test that found gasoline on her uncle’s clothes — was based on misinterpreted results.

• With no smoke inhalation or heat damage to Richardson’s throat and lungs, there is no evidence he was alive at the time of the fire.

Instead, it appears that Richardson, a 76-year-old who smoked up to three packs of cigarettes a day, died of a heart attack while smoking in bed, Cacy’s lawyers argue, adding that numerous burn marks on the furniture show that Richardson was a careless smoker.

Other experts reached similar conclusions in 1998, prompting the Texas Board of Pardons and Paroles to order Cacy released from prison after serving less than six years of her 99-year sentence. Cacy’s murder conviction, however, was unaffected, and she remains on parole at age 66.

Now staying with relatives of her deceased husband in Granbury, Cacy said the murder conviction has made it extremely difficult to find a job and an apartment.

“I’m looking for a place to live. It’s very hard to do when you’re on parole,” she said last week. “Everyone can check your record. They just don’t want somebody convicted of murder living there. I can’t blame them, but I’m innocent.”

Defense lawyers have filed an appeal to overturn the murder conviction.

Ponton, a Democrat elected as district attorney in 2012, opposes the appeal, saying he believes Cacy is guilty based on other evidence, which he wouldn’t discuss because it is part of a pending criminal case.

“The Cacy conviction doesn’t rise and fall solely on the fire evidence,” he said.

According to court records, excluding fire evidence leaves only a circumstantial case against Cacy, including a will that Richardson wrote days before his death leaving his property to Cacy; speculation that previous fires at the home were set by Cacy to test the fire department’s response time; and the death of two dogs owned by Richardson, while Cacy’s dog survived.

Ponton wasn’t amused to find Connealy’s letter attached to Cacy’s appeal, along with about a dozen affidavits from other experts who dispute the forensic evidence used to convict Cacy. His request for Abbott’s legal opinion followed.

Jeff Blackburn, a founder of the Innocence Project of Texas and part of Cacy’s legal team, called Ponton’s attempt to halt the case reviews “downright medieval.”

“The Texas fire marshal’s office is trying to be the very best arson investigation team in the United States. Part of doing that is looking backward to figure out how to do better,” Blackburn said. “They are not trying to interfere with the judicial system.”

Connealy said the review team, dubbed the Science Advisory Workgroup, examines whether a criminal prosecution could withstand scrutiny using modern forensic fire science. The team, with four nationally recognized arson investigators, a medical examiner and a lawyer, examines investigative reports, photos, court records and other evidence.

The panel meets for four days quarterly. The first 1½ days, open to investigators statewide, are devoted to training presentations. The rest of the time is spent reviewing past cases.

“We only look at the science of fire investigations. We don’t look at other issues,” including guilt or innocence, Connealy said.

When complete, the panel’s findings are mailed to the prosecutor and, if an appeal is pending, to the proper court.

There is no similar review process underway anywhere else in the country, Connealy and Blackburn said.

Thus far, four reviews have been completed. Three, including Cacy’s case, found notable problems with the fire science. One case presented no problems, and a similar finding will be made in a fifth case that will be completed at the December meeting in Plano, Connealy said.

Ponton’s letter to Abbott complained that no prosecutors from his office were present for the review. Connealy has invited Ponton to participate in the December meeting to ask questions and get a better understanding of how the review process works. Connealy also vowed to work harder to ensure that prosecutors are involved in every review.

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