Sunday, November 08, 2009

John Bradley: FSC Investigations Should be Secret

“It’s not a good idea to conduct an investigation in a public forum”
- John Bradley

Williamson County District Attorney John Bradley thinks Forensic Science Commission investigations should be secret and not open to public scrutiny, according to the following article by Mary Alice Robbins of Texas Lawyer. Grits For Breakfast has posted the list of things that John Bradley plans to propose next week to the Texas Senate Criminal Justice Committee.
  • Making investigations secret and meetings about them closed.
  • Re-education of commissioners: "Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says."
  • Lengthening terms for commissioners. (No word why the governor couldn't just reappoint if continuity is so important.)
  • Creating new rules and procedures for the commission (no detail).
  • "Clarifying" whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire's word for it.)

Fired Up: Changes Sought for Texas Forensic Science Commission

By Mary Alice Robbins Texas Lawyer November 05, 2009

The prosecutor heading a commission at the center of a political firestorm will recommend ways to improve the panel’s operations at a Senate Criminal Justice Committee hearing Nov. 10. The controversy ignited in September when Gov. Rick Perry abruptly replaced two commission members two days before they were to review an arson expert’s report in the case of Cameron Todd Willingham, a death-row inmate executed in 2004 after Perry declined to grant him a 30-day reprieve.

Anti-death penalty activists have contended that Willingham was innocent and that Perry replaced the commission members to block a review of a report questioning whether the fire Willingham was accused of starting was arson.

Williamson County District Attorney John Bradley, the new chairman of the Texas Forensic Science commission, says he will recommend, among other things at the Senate committee hearing, that during an ongoing investigation, the commission should be allowed to meet in private to discuss the matter being investigated and that reports to the commission on an investigation be withheld from public release until the commission concludes its deliberations.

“It’s not a good idea to conduct an investigation in a public forum,” Bradley says.

Other agencies that have an investigative function, including those in law enforcement, are protected from the Texas Open Meetings Act and the Public Information Act during their deliberations, Bradley says. When investigations are conducted in public, it is difficult to protect them from outside influences, he says.

Bradley says he also will suggest that commission members be appointed for three-year terms, not the two years currently provided under Texas Code of Criminal Procedure Article 38.01, so that there is time to train members to carry out the commission’s mission.

“The commission’s work is focused on investigating and then deliberating on allegations of negligence and misconduct in the forensic science field,” Bradley says.

Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.

One of the things the commission needs to do, Bradley says, is to develop and adopt written policies and procedures, which it has never had.

But Bradley’s proposed changes come as the commission’s former chairman says the governor replaced him when the commission started looking into the science that helped convict a man of starting a fire that killed his three young daughters.

Perry appointed Bradley to the commission and named him chairman on Sept. 30 — two days before the commission was scheduled to review the findings of an arson expert hired by the commission to evaluate the methods and procedures used by fire investigators in the arson case against Willingham. The Willingham case is one of three the commission has looked into, but it is the first one to reach the report stage.

The Texas Legislature created the nine-member commission during the 2005 session but did not fund it until 2007, Bradley says.

According to the Texas Forensic Science Commission’s Web site, its mission includes “investigating in a timely manner, any allegation 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.”

Under the 2005 statute, the governor appoints four members of the commission, including a prosecutor, a criminal-defense attorney and two members with forensic science experience. The lieutenant governor appoints three members and the attorney general appoints two members, all from the forensic science field.

Bradley is not the only new appointee to the forensic science commission. Perry replaced all four of his commission appointees — two on Sept. 30 and two on Oct. 9.

Perry is seeking re-election in 2010 and faces the prospect of a close Republican primary race against U.S. Sen. Kay Bailey Hutchison, R-Texas. In 2004, Perry declined to grant a 30-day reprieve to Willingham after his defense lawyers submitted new evidence shortly before the state executed Willingham.

Barry Scheck, co-director of The Innocence Project of New York City, says Gerald Hurst, an Austin-based chemist and fire expert, filed an affidavit with the governor’s office stating that fire investigators were incorrect in their finding that an accelerant was used to start the 1991 house fire that killed Willingham’s daughters. The Innocence Project submitted the complaint that led to the forensic science commission’s decision to investigate the Willingham case.

After he was appointed, Bradley canceled the commission’s Oct. 2 hearing with Craig Beyler, the fire protection engineer and arson expert hired by the commission to evaluate the science used by local and state arson investigators looking into the fire at Willingham’s home in Corsicana. Beyler concluded in a report the commission released in August that the evidence did not sustain the finding of arson that led to Willingham’s capital murder conviction in 1992 and execution in 2004.

Bradley says he did not think it would be fair to hold the Oct. 2 hearing less than 48 hours after he was appointed to the commission. At the time the hearing was scheduled, the governor had not yet appointed two of the commission members, he says.

According to Beyler’s report to the commission, the investigation of the fire in the Willingham case did not comport with modern standards of care in such investigations or with the standards of care at the time of the fire.

“It should, in my view, have been written up as cause undetermined,” Beyler, technical director of Hughes Associates Inc. in Baltimore, says of the 1991 fire.

State Sen. John Whitmire, D-Houston, chairs the criminal justice committee and was a sponsor of H.B. 1068, the 2005 measure that created the Texas Forensic Science Commission. Whitmire, of counsel at Locke Lord Bissell & Liddell, says he will ask Bradley at the Nov. 10 hearing for a status report on the commission and for Bradley’s assessment of the scope and parameters of the commission’s authority.

But Whitmire says he will also ask Bradley, “Oh, by the way, are you going to hear from Beyler?”

Whitmire says he is not troubled by Perry’s replacement of the commission members.

“My position is: He is the governor,” Whitmire says. “He makes appointments.”

But Whitmire says the timing of Perry’s decision to replace these commission members was unfortunate.

“If he had made the decision a month earlier, this situation wouldn’t be the way it is,” Whitmire says.

Whitmire says the situation does not prevent a new set of members from doing their work, which he says is “critical.” He says the important thing is to learn from the forensics and move forward.

Bradley declines comment on the investigation of the Willingham case because it is still pending before the commission.

But Bradley says, “I do plan to recommend that the commission move forward and complete a report in the Willingham case. I think it’s in the best interest of the public to have the report come out.”

Referring to the Willingham case, Chris Cutrone, Perry’s deputy press secretary, says, “The governor has reviewed all the facts of the case. He has come to the same conclusion that all the Texas courts and federal courts did — that he was guilty.”

But Scheck says, “If there is no evidence of arson, there is no case as a legal matter.”

Whitmire says the purpose of the Texas Forensic Science Commission is not to determine whether the state executed an innocent man.

“That’s why we have a trial jury; that’s why we have the appellate system,” he says.

“I do think it’s fair to look at forensic science in any case, with the goal of having to do it better in the future,” Whitmire says.

Austin criminal-defense attorney Sam Bassett, the forensic science commission’s former chairman, says the commission paid Beyler about $30,000 to review whether appropriate science was employed in Willingham’s case and in the case of Ernest Ray Willis. Willis was sentenced to death for the 1986 deaths of two women who died in an Iraan house fire that was ruled an arson, but he ultimately walked out of prison a free man in 2004 after a federal judge ruled that his due process rights were violated, among other things.

But most of the news media’s attention has focused on Willingham’s case.

Bassett, a partner in Minton Burton Foster & Collins, says he thinks it is within the commission’s statutory authority to evaluate fire investigators’ techniques and testimony in that case.

“I thought it was very appropriate to investigate that for the sake of the future, not to second-guess anybody,” he says.

For most of its existence the commission has worked in obscurity. In fact, the commission was unable to do anything at all for a while.

Alan Levy, a Tarrant County assistant district attorney who served on the commission from 2005 until late September of this year, says the commission did nothing in its first two years of existence.

“We didn’t have authority to meet at our own expense, so there were no meetings,” Levy says.

Although he had served on the commission since 2005, Bassett says that before he was replaced, he had asked the governor’s office to allow him to remain on the commission another two years.

“I wanted to finish the work we started,” Bassett says.

Levy says he wrote a letter to Perry in support of Bassett’s request for reappointment.

Bassett says he learned that he would not be reappointed in a call shortly before 5 p.m. Sept. 29 from Doris Scott, a staff member in the governor’s appointments office. As Bassett recalls, Scott told him, “The governor wants to thank you for your service, and the commission will be taking a different direction.”

Levy, who also had been a commission member since 2005, says he received a similar call from a woman in the governor’s office in late September, notifying him that he was no longer on the commission. While Levy cannot recall the name of the person who called him or the exact date of the call, he says the message was that the governor’s office had decided to go in another direction.

Cutrone says the terms of the four commission members whom Perry replaced had expired Sept. 1. The majority of the gubernatorial appointees whose terms have expired are not reappointed, he says.

But Bassett says he believes the investigation of the Willingham case was the reason the governor did not reappoint him.

The commission voted to investigate the Willingham matter at its Aug. 15, 2008, meeting, according to minutes of that meeting. Bassett says the commission voted unanimously to conduct that investigation after receiving the complaint from The Innocence Project.

Scheck says The Innocence Project had advocated for the formation of a forensic science commission in Texas and testified in support of the bill that created the commission in 2005.

The Innocence Project’s concern, Scheck says, is that best practices and valid procedures have not been followed in some criminal defendants’ cases.

Scheck, who also is a professor at the Benjamin N. Cardozo School of Law in New York, says the issue in front of the Texas Forensic Science Commission is not and never has been whether Willingham was an innocent man. The issue, he says, is whether the science used against Willingham was valid science.

If the commission finds that bad science was used, it can make sure people no longer use similar investigative methods and look at how many other cases those methods were used in, Scheck says.

But, according to Bassett, the commission’s investigation of Willingham’s case raised concerns in the governor’s office. Bassett says that in February, he discussed the Willingham case at a meeting with David Cabrales, then the governor’s general counsel, and Mary Anne Wiley, deputy general counsel for Perry. The Willingham case also was the topic of discussion during a meeting with Wiley in March, he says.

“It was clear to me they [Cabrales and Wiley] didn’t think the commission should be investigating the Willingham matter,” Bassett says. “The stated reason was they didn’t think it was the type of investigation the commission should be in.”

Cutrone declines a request to interview Wiley and Scott.

“We have a policy in the governor’s office that only people in the press office speak to the press,” Cutrone says.

Cabrales, now a partner in Locke Lord in Dallas, did not return two telephone calls for comment.

Levy says he believes “things went south” for the commission after Bassett released Beyler’s report to the public in August “as he was required by law to do.”

Bassett says, “I would have preferred to keep the report private until we finished our investigation. I was advised by the attorney general’s office I had no choice but to release the report.”

In an e-mail responding to Texas Lawyer’s request for comment, Texas Office of the Attorney General spokesman Jerry Strickland writes, “Our office provides counsel to a variety of clients every day; however, we are not at liberty to discuss attorney client conversations.”

H.B. 1068 requires the commission to make available to the public all reports on investigations. That’s one of the requirements that Bradley says he hopes to change.

Terry Jacobson, Corsicana’s city attorney, questioned whether the commission has authority to review the fire investigation in Willingham’s case in an Oct. 7 letter to Bradley. In the letter, a copy of which Jacobson provided to Texas Lawyer, Jacobson cited a provision in §22 of H.B. 1068 that reads, “The change in law made by this Act applies to evidence tested on or after the effective date of this Act.” As noted in the letter, the statute provides exceptions to that cutoff date for people confined in prison or in a Texas Youth Commission facility after adjudication for conduct that constitutes a felony.

However, H.B. 1068 is the result of the Legislature combining two bills. The first part of the bill deals with the Texas Forensic Science Commission and the rest of the bill deals with forensic analysis of evidence and the admissibility of evidence under Code of Criminal Procedure Article 38.35. It’s unclear whether the §22 provision applies to the forensic science commission.

But Jacobson says, “I think it’s crystal clear it applies to the entire act.”

Whitmire says he believes the forensic science commission has authority to look at forensics in the past.

Bradley says he will seek clarification on what limitations there are to the commission’s authority. He says it is not clear in the statute whether the commission’s investigations can be retroactive from its Sept. 1, 2005, effective date or only prospective.

Notes Bradley, “If the conclusion is you can’t look back 30 years, people need to be told.”

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