Monday, November 30, 2009

Memoir: MOTHER CALIFORNIA: A Story of Redemption Behind Bars

If you are interested in what really happens inside prison or just want to experience a great memoir, MOTHER CALIFORNIA: A Story of Redemption Behind Bars, by Kenneth E. Hartman, is the book to read.

Kenneth E. Hartman has served 30 continuous years in the California Department of Corrections and Rehabilitation on a life without the possibility of parole sentence. An award-winning writer and prison reform activist, he helped establish the Honor Program at the California State Prison – Los Angeles County. He is currently leading grassroots campaigns to end life without parole sentences, to bring higher education back into the prison system, and to provide opportunities for prisoners to perform good works for the free world.

“In this memoir, a magnificent inquiry into the human condition, a man serving a life sentence in the California prison system documents the brutality and inhumanity of life “inside,” where criminals are victimized rather than rehabilitated, and chaos flowers among the despairing. Hartman, an eloquent, middle-aged prisoner convicted of murder at 19, tells a sad but unsentimental story: a rough childhood and a wish for invincibility fueled Hartman’s youth and downfall, but in the time since, he has married in prison, fathered a child, and currently works to improve the broken U.S. prison system. Hartman discovered his talent in a writing class, after having abandoned drugs; using it, he examines up close the “mad, violent circus” of prison life, his place in it, and the fate of his fellow prisoners: “Under the big tent of this brutally unnatural environment, few of us ever take the frightening step of analyzing our deeper motives.” Publishers Weekly, 11/10/09

“An illuminating, unflinching, self-portrait of a life behind bars. A snapshot of who we are as a society through the gritty prism of ‘how we punish those we throw away.’ If Charles Bukowski had committed murder and done time, this is what he would have written. Raw. Searing. Brutal. Written without self-pity. Regardless of your politics, you will read the last page of Mother California, close this book, and walk away transformed.” Erik Jensen co-author (with Jessica Blank) of the stage play and film The Exonerated, the play Aftermath and the memoir Living Justice: Love Freedom and the Making of The Exonerated

Video from Death Row: Possibly Retarded Prisoner Faces Execution

Renée Feltz of the Texas Observer has the following article and video interview on the case of mentally retarded death-row inmate Bobby Woods. Woods is scheduled to be executed next Wednesday.

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters — many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Bobby Woods Describes Where He Grew Up

Woods was sentenced to die in 1998 for kidnapping, raping and murdering 11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is responsible for cutting Patterson's throat. But the cousin committed suicide the week following Woods' arrest. Levin acknowledges "the facts of this crime are very difficult," but she notes the ban on executing the mentally retarded applies no matter how heinous the offense. Levin and students with the Capital Punishment Center at the University of Texas Law School began working on Woods' case just before he was scheduled to be executed in October 2008. Their efforts followed years of cringe-worthy legal representation by Richard Alley, one of just two attorneys the Texas Court of Criminal Appeals has removed from its list of lawyers qualified to represent death row prisoners in their appeals. He visited Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the list — who was being taken to task in a federal court at the very same time he's being appointed to represent Bobby in his federal proceedings, and then for Bobby — a mentally retarded man — to suffer the consequences of that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital habeas cases. While he raised 28 issues in Woods' state habeas appeals, just two were actually new and neither was backed by useful evidence. In contrast, Levin and her students were able to contact family members who described how Woods was a slow child who suffered from learning disabilities and was called "retard" by his classmates, and "always needed to live with someone who could take care of him" when he was older. Their investigations revealed that while Woods had held a steady job as a short-order cook at Waffle House, he had to have the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it. Levin won a rare second chance to present new evidence in October 2008, but she was unable to reach a higher bar set by the court because it was his second time making the appeal. This second appeal had to overcome the previous legal record established on almost no investigation of Woods' mental capacity.

Levin could not claim that Woods suffered from ineffective assistance of counsel either. While a Texas statute guarantees Woods an attorney to file his habeas appeals, it doesn't require him to be competent. So Woods remains scheduled to be executed on Dec. 3 pending a decision by the Board to recommend that Perry have mercy and grant him clemency or a reprieve. Below are additional videos that may be used in evidence. Woods has reached the end of the legal process. His only opportunity now resides with Perry and the parole board.
Bobby Woods Describes His Previous Jobs

Bobby Woods Describes His Reading and Writing Abilities

Saturday, November 28, 2009

Texas's highest criminal court harrassing anti-death penalty lawyers

By Mary Alice Robbins, Texas Lawyer
November 25, 2009

CCA Show Cause Order Directs Lawyers to Explain Untimely Filing

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Under the CCA’s rule, an attorney who fails to attach a sworn, detailed explanation to an untimely filing or who fails to adequately justify the necessity for the untimely filing shall be sanctioned. As noted in the rule, such sanctions can include, but are not limited to, referral to the State Bar of Texas chief disciplinary counsel, contempt of court, removal from the list of attorneys eligible to be appointed to represent death-row inmates in filing habeas corpus writ applications or restitution of costs incurred by the opposing party.

When asked about the CCA’s order, Dow says, “I’m not interested in talking about it.” Black did not return three telephone calls seeking comment by presstime Nov. 25.

Reasons for Rule

CCA Judge Paul Womack, chairman of the court’s rules committee, says, “The rule was adopted to ensure that the court would have sufficient time to consider and decide motions in these cases, while recognizing that in rare instances there might be a need for a filing less than 48 hours before a scheduled execution date.”

Womack says the court saw a need to reduce to a minimum the number of last-minute filings in death penalty cases.

Sian Schilhab, the CCA’s general counsel, says the court enacted the rule because the court has had people who filed anything they thought would keep a case going.

CCA Judge Cathy Cochran, a member of the court’s rules committee and its immediate past chairwoman, says the court will review pleadings, no matter what time they come in. The “trade-off,” Cochran says, is the court will look at whether the attorney has done everything he should to file a document in time to meet the 48-hour requirement. That’s the reason the rule requires an attorney to file a certificate of compliance, or statement, explaining why physically he could not have discovered the claim, investigated it and filed the pleading before he did, Cochran says.

Cochran says the CCA patterned its rule after a 5th U.S. Circuit Court of Appeals rule.

Rule 8.10 of the 5th Circuit’s Rules and Internal Operating Procedures sets a five-day deadline prior to a scheduled execution for attorneys to file for a certificate of appealability, permission to file a successive habeas writ petition or an appeal from a district court judgment. Like the CCA’s Miscellaneous Rule 08-101, the 5th Circuit rule requires an attorney to attach to an untimely filing a detailed explanation stating under oath the reason for the delay, authorizes the court to direct an attorney to show good cause for a late filing and provides for sanctions if an attorney cannot justify the delay.

Simpson’s Application for Postconviction Writ of Habeas Corpus, which is signed by Dow and which lists Dow and Black as his attorneys, raised a Batson v. Kentucky claim, based on the U.S. Supreme Court’s 2005 decision in Miller-El v. Dretke, regarding the state’s exercise of peremptory challenges to eliminate two black potential jurors from Simpson’s trial. Under Miller-El, the application says, courts reviewing Batson challenges must examine whether the state engaged in disparate questioning of black and white jurors to determine whether a juror was challenged for a race-neutral reason. As alleged in Simpson’s application, the CCA’s unpublished April 29 decision in Ex Parte Williams recognized that “the Supreme Court’s decision in Miller-El has the practical effect of modifying the underlying constitutional right recognized in Batson.”

In a Nov. 18 opinion, the CCA dismissed the application in Ex Parte Simpson, finding that it failed to satisfy the requirements of Texas Code of Criminal Procedure Article 11.071 §5. The statutory provision provides in relevant part that a court may not grant relief based on a subsequent application for writ of habeas corpus unless it contains sufficient facts to establish that the claims and issues could not have been presented in a previous writ application.

According to the CCA’s opinion, the court also denied Simpson’s motion for stay of execution. The Texas Department of Criminal Justice Web site shows the state executed Simpson on Nov. 18 for the 2000 murder of an 84-year-old woman.

Dow wrote in a three-page sworn statement attached to Simpson’s application that he worked pro bono for Simpson, who first contacted Dow in May. As noted in the statement, TDS did not obtain Simpson’s file until Nov. 6, when Simpson retained Dow as his counsel. Dow wrote that TDS initially focused on Simpson’s claims under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which prohibits the execution of mentally retarded persons. However, Dow noted in the statement that TDS determined Nov. 15 that Simpson’s Batson claim appeared to be affected by the Supreme Court’s Miller-El decision and the CCA’s Williams decision and began preparing the habeas corpus writ application.

But, as Dow pointed out in the statement, “lawyers in our office were simultaneously assisting lawyers representing” death-row inmate Gerald Eldridge, whose execution date was set for Nov. 17. U.S. District Judge Lee Rosenthal granted Eldridge a 90-day stay of execution on Nov. 17 to determine whether he is mentally competent to be executed.

“The demands imposed by Mr. Eldridge’s case, coupled with the demands imposed by the other work we had undertaken on Mr. Simpson’s behalf, simply made it impossible for us to get the Batson/Miller-El claim completed forty-eight hours in advance of the execution,” Dow wrote in the statement.

However, Cochran says the CCA is not totally satisfied with that explanation.

“We want a better explanation,” Cochran says. “That’s why we’ve invited the lawyers to come up and explain that.”

The Court of Criminals Appeals’ order directing Dow and Black to appear before the court and show cause for the untimely filings in Simpson is only the second such order that the CCA has issued since adopting its June 2008 rule. In a Nov. 28, 2008, order, the CCA directed K.S. “Gator” Dunn of the Dunn Law Firm in Conroe to appear at a Jan. 14, hearing to show cause why he filed an untimely subsequent habeas corpus writ application for death-row inmate Eric Cathey. Schilhab says the CCA did not sanction Dunn, who declines comment.

As noted in the CCA’s order, while Dow filed an explanation for the untimely filing, Black neither signed Dow’s explanation nor filed her own explanation.

Criminal defense attorney David Botsford, who reviewed the CCA’s Miscellaneous Rule 08-101, says that while one could interpret the rule to require each counsel who signs on a pleading to file an explanation if the pleading does not meet the 48-hour filing requirement, “[t]he rule doesn’t specifically say each counsel who signs on a pleading has to do that.”

Botsford, a partner in Austin’s Botsford & Roark, who represents death-row inmates in habeas corpus writ applications, also notes that an attorney who gets involved Nov. 6 in the case of an inmate scheduled for execution Nov. 18 would have only 10 days under the CCA’s rule to file the pleadings.

“That’s not a significant amount of time,” he says.

Botsford says he is sympathetic with attorneys who are willing to represent death-row inmates pro bono.

“We don’t want to throw up legal impediments to people doing that,” he says.

Anderson County Criminal District Attorney Doug Lowe, who prosecuted Simpson, says he believes the rule is justified.

Speaking generally, Lowe says, he think the purpose of the rule is to stop “last-second, last-ditch filing.”

Lowe says that as a local prosecutor, he sees what happens to the crime victims’ survivors — who are themselves victims — waiting for the execution of the person who murdered their loved one.

“When you’ve got victims sitting down there waiting, it’s just tortuous,” he says.

Wednesday, November 25, 2009

Saudis Urged to Reverse Death Sentence on ‘Witchcraft'

A human-rights organization says the Saudi authorities are arbitrarily executing people for witchcraft.

Saudi Arabia is being urged by Human Rights Watch to stop meting out the death penalty for alleged witchcraft.

Human Rights Watch (HRW) is calling on Riyadh to cease applying capital punishment, to codify its criminal laws and update the criminal procedure law.

“Saudi judges have harshly punished confessed ‘witches’ for what at worst appears to be fraud, but may well be harmless acts,” the rights group said. “Saudi judges should not have the power to end lives of persons at all, let alone those who have not physically harmed others.”

“There is no legal interpretation of these terms, and that’s part of the problem,” Sarah Leah Whitson, Middle East director at Human Rights Watch told The Media Line. “Judges arbitrarily describe conduct – such as possession of an Amharic text - as ‘sorcery’ or ‘witchcraft.”

“What’s disturbing is that here in the 21st century, the Saudi government is still regularly prosecuting people for outdated, backwards concepts of ‘witchcraft’,” she said.

Hady Amr, director of the Brookings Doha Center and a fellow at the Saban Center for Middle East Policy said the severe punishments were a derivative of the strict form of religion practiced in the kingdom.

“Islam in general, and particularly the conservative brand of Islam practiced in Saudi Arabia and throughout the Gulf, does not accept any other supernatural forces other than the individual and society’s relationship with God,” he told The Media Line. “Anything that contravenes that is seen as blasphemy and against the will of God, so by severely punishing those practicing witchcraft, they are doing God’s will.”

Saudi has convicted several people in the kingdom over the past few years for practicing witchcraft or sorcery.

On November 9, Ali Sabat was sentenced to death by a Medina court for witchcraft.

The sentence was based on advice and predictions that Sibat gave on Lebanese television. The Saudi religious police arrested at least two other people on counts of witchcraft in the past month, according to local media reports.

Sibat was arrested in May 2008 in a hotel in Medina, where he was carrying out a pilgrimage before returning to his native Lebanon.

Local media report that the only evidence against him is the divinations and life advice he gave on a Lebanese satellite television station.

Other cases reveal a zero-tolerance policy towards what the Saudi authorities perceive as witchcraft.

Mustafa Ibrahim, an Egyptian pharmacist working in Saudi Arabia, was executed in November 2007 for sorcery in Riyadh. He was found guilty for trying to separate a married couple “through sorcery,” the Ministry of Interior said.

A court in Jeddah tried a Saudi man this month, after he was arrested for smuggling a book of witchcraft into the kingdom.

In a separate case reported by a local Saudi paper, the religious police in Taif arrested an Asian man for “sorcery” and “charlatanry” and accused him of trying to use supernatural powers to solve marital disputes and induce people to fall in love.

Saudi citizen Fawza Falih was sentenced to death for witchcraft in 2006 after a “discretionary” conviction. HRW protested the sentence in 2008, but the Minister of Justice Abdallah Al A-Sheikh responded that the organization had “preconceived Western notions of Sharia (Islamic Law),” and did not answer questions about the judicial process.

According to HRW, after it approached a high-ranking official at the Ministry of Justice in 2008 to define the crime of witchcraft and its associated evidence, “the official confirmed that no legal definition exists and could not clarify what evidence has probative value in witchcraft trials. Saudi Arabia has no penal code and in almost all cases gives judges the discretion to define acts they deem criminal and to set attendant punishments.”

HRW responded by saying that “Saudi judges should overturn witchcraft convictions and free those arrested or convicted for witchcraft-related crimes. King Abdullah should urgently order the codification of Saudi criminal laws and ensure it comports with international human rights standards.”

Whitson elaborated that HRW “are documenting the cases brought against people on these absurd grounds, seeking media attention to the disturbing practice, and urging the Saudi government to rein in its judges and pass a new penal code that defines once and for all what constitutes a crime in Saudi Arabia,”

Wajeha Al-Huwaidar, a Saudi rights activist and a member of HRW’s advisory committee said it seems as though the Saudis are living in the Dark Ages.

“Witchcraft was considered a big crime [in the past] and many people got burned alive or tortured to death for practicing witchcraft,” she told The Media Line.

“In the Saudi case, witchcraft has deep roots in the Islamic religion. Most Saudis believe that those who have this "magic" power are able to destroy families and cause diseases to others and even death,” she elaborated. “These beliefs made people feel witchcraft was a horrible crime and whoever committed it should be locked out or killed. Witchcraft is a common practice among ignorant and poor people all over the Islamic world but only Saudi Arabia punishes them in a very brutal way.”

Source: The Media Line, Nov. 25, 2009

Monday, November 23, 2009

Governor Perry Continues to Play Politics with Death Penalty Issue By Refusing to Accept Recommendation of BPP for Clemency for Robert Thompson

"Rick Perry continues to play politics with the death penalty. He should have accepted the recommendation of the Texas Board of Pardons and Paroles to commute the death sentence of Robert Thompson. It would not surprise me if Rick Perry one day replaces the members of the Texas Board of Pardons and Paroles who voted in favor of clemency for Thompson, just like he replaced his own appointees on the Texas Forensic Science Commission in the midst of their investigation into the Todd Willingham case. Rick Perry is using the death penalty issue to endear himself to right-wing voters in the upcoming Republican primary, but his actions do not reflect the priorities of mainstream Texans who are increasingly concerned about the fairness of the Texas death penalty system"

Cobb continued, "In an Orwellian application of language repurposing, Governor Rick Perry and many of his supporters would like the public to believe that people sentenced to death under the Law of Parties are "killers", but a "killer" is "one who kills", not "one whose accomplice killed". People such as Jeff Wood and Kenneth Foster, Jr, are not killers. They never killed anyone and in a fair system of justice, they should never have received death sentences".

There is widespread support in Texas for ending the practice of sentencing people to death under the law of parties. In the last session of the Texas Legislature, the Texas House of Representatives passed a bill (HB 2267 by Terri Hodge) that would have banned executions of people convicted solely under the Law of Parties. The Law of Parties provision of HB 2267 was taken out of the bill in the Senate Criminal Justice Committee after Governor Perry threatened to veto it if the bill was sent to him in the same form that it had passed the House. The revised version, which would have only required separate trials for co-defendants in capital trials, then died in the Senate when it did not come up for a vote on the floor before the deadline.

Two family members of a person on death row who was sentenced to death under the Law of Parties issued statements regarding Rick Perry's refusal to accept the recommendation of clemency for Robert Thompson. Jeff Wood remains on death row in Texas after receiving a stay in 2008 from a federal judge.

Terri Been, whose brother Jeff Wood is on Texas death row convicted under the Law of Parties said "I must say that I was surprised to hear that the Texas Board of Pardons and Paroles grew a conscious and voted in favor of clemency for Robert Thompson, since they unanimously voted for the execution of my brother, Jeff Wood, who was also convicted under the law of parties despite the fact that he is factually innocent of murder. However, I was not surprised to hear Perry didn’t jump on board the clemency train as the man has no sense of true justice. After all, it was Perry who killed House Bill 2267, which would have ended the death penalty as a sentencing option for those who never committed murder. It is a very sad day, and I grieve not only for Robert Thompson, his family and for the family of the victim killed by Thompson's accomplice, but I grieve for the lack of hope that I feel because of Governor Perry’s latest decision. To kill is wrong, but to kill someone who was not convicted of actually killing anyone is INJUSTICE in the simplest form".

Gavin Been, nephew of Jeff Wood and president of Kids Against the Death Penalty said, "KADP members mourn for Robert Thompson and for the injustice taking place in Texas today. Governor Perry strikes again by condemning another person to death who is factually innocent of murder, and we are appalled that our fellow citizens continue to turn a blind eye to Perry’s mismanagement of power. We know that Texans favor “tough on crime” laws, but we were taught that laws and punishment were supposed to be equal and fair. How is it fair that people like, Jeff Wood, or in this case Robert Thompson, who are factually innocent of murder, should face execution while there are REPEAT offenders of murder and rape in general population, who have the right to be paroled, and are given a second chance? To sentence a person to death who never committed a murder is NOT justice; it is murder itself, and Mr. Perry should be ashamed of himself for allowing another murder to take place".

Wednesday, November 18, 2009

Attorneys File motion Asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in Stay Request of Danielle Simpson

From the Palestine Texas Herald Press:
Late Tuesday afternoon, Simpson's attorneys David R. Dow and Katherine C. Black filed a postconviction writ of habeas corpus; a motion for a stay of execution; and a motion asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in the case.

Dow and Black are attorneys for the Texas Defender Service and their motion on Simpson's behalf alleges the judge "has made disparaging statements about TDS" in the past, which they say compromises "her ability to rule impartially in a case involving a party represented by the TDS."
From the Houston Chronicle:
A condemned prisoner who volunteered for execution but in recent weeks changed his mind hoped a court would spare him from a trip to the Texas death chamber Wednesday evening.

Danielle Simpson, 30, was set to die for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river.
Simpson this year won approval from a federal court that he was competent to decide to drop his appeals. Then he reversed himself and allowed lawyers to try to save him from lethal injection.

He'd be the 22nd Texas prisoner to die this year.

Simpson told The Associated Press earlier this month from death row he was innocent, it wasn't his choice to volunteer for execution and Texas prisons were "pitiful."

He was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

Attorneys representing him argued to the federal courts Simpson is mentally impaired, incapable of deciding whether to drop his appeals and offered his repeated reversals as proof.

They also wanted permission to appeal a lower court's determination that Simpson is not mentally impaired and challenged the elimination of two black people from consideration to serve on Simpson's trial jury. Simpson is black. There were no blacks on the jury that convicted him and decided he should be put to death.
Simpson earlier sent a federal court a handwritten motion in which he said he was "tired of being in a institution that's unjust, degrading, and corrupted" and was ready to die.

A federal judge found Simpson had "a mental disease, disorder or defect" but was able to understand his legal position and competent to choose to die.

Don't let Texas execute someone without the Governor receiving phone calls or emails protesting the execution. In the past, we have done public information requests and discovered that for some executions, very few people call to protest, so it is important to call every time. They keep a tally. Call the Governor and leave a voice message at 512 463 1782 or email him through his website at

Members of various groups, including Texas Moratorium Network, Students Against the Death Penalty, Campaign to the End the Death Penalty, Kids Against the Death Penalty and the Texas Death Penalty Abolition Movement participate in vigils and protests on the day of each execution in Texas. The protests are held in various cities, including Huntsville and Austin. The protest in Austin is at 5:30 pm on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street.

Breaking News: Board of Pardons and Paroles Recommends that Governor Perry Commutes Death Sentence of Robert Thompson

Call the Governor and leave a voice message at 512 463 1782 or email him through his website at Urge him to accept the recommendation of the Texas Board of Pardons and Paroles to grant Robert Thompson clemency and commute his sentence to life. The execution is currently scheduled for Thursday, November 19.

From the Houston Chronicle:

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Tuesday, November 17, 2009

Three Executions in Three Days in Texas, Starting Today

Texas is set to execute three people in three days starting today, November 17.

The first is Gerald Cornelius Eldridge, who is mentally ill and has an IQ of 72. Eldridge, 45, was sentenced to death for the 1993 shooting deaths of his former girlfriend, Cynthia Bogany and her nine-year old daughter Chirissa in Houston.

The second is a man named Danielle Simpson, sentenced to death for the murder of 84-year old Geraldine Davidson.

On Thursday, Robert Thompson is scheduled for execution. He was convicted and sentenced to death under the Law of Parties, even though it was his accomplice who fired the bullet that killed the victim. The accomplice was sentenced to life.

Call Governor Perry at 512 463 1782 to protest these executions or contact Perry by email through his website.

Members of various groups, including Texas Moratorium Network, Students Against the Death Penalty, Campaign to the End the Death Penalty, Kids Against the Death Penalty and the Texas Death Penalty Abolition Movement participate in vigils and protests on the day of each execution in Texas. The protests are held in various cities, including Huntsville and Austin. The protest in Austin is at 5:30 pm on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street.

Monday, November 16, 2009

Pending U.S. Executions



17th ~ Larry Bill Elliott (Virginia)

17th ~ Gerald Eldridge (Texas)

18th ~ Danielle Simpson (Texas) - Volunteer

19th ~ Robert Thompson (Texas)

2nd ~ Cecil Johnson, Jr. ( Tennessee)

3rd ~ Bobby Woods (Texas)

8th ~ Kenneth Biros (Ohio) STAY RECEIVED!!!
Kenneth Biros receives an indefinite stay from the U.S. District Court. Mr Biros was scheduled for execution on December 8, 2009 for the death of Tami Engstrom from Hubbard. Mr. Biros was previously issued a U.S. court stay from his March 20, 2007 execution date.

9th ~ Devin Banks (Tennessee)

11th ~ Eric Wrinkles (Indiana)



7th ~ Vernon Smith (Ohio) - FKA - Abdullah Sharif Kaazim Mahdi

7th ~ Gerald Bordelon (Louisiana) Volunteer
The Governor
Louisiana Governor Mike Foster
PO Box 94004
Baton Rouge, LA
70804 USA
Phone: (225) 342-7015
Fax: (225) 342-7099

12th ~ Gary Johnson (Texas)

14th ~ Julius Young (Oklahoma)

4th ~ Mark Brown (Ohio)

24th ~ Hank Skinner ( Texas)

2nd ~ Michael Sigala (Texas)

9th ~ Lawrence Reynolds (Ohio)

30th ~ Franklin Alix ( Texas)

20th ~ Daryl Durr (Ohio)

13th ~ Michael Beuke (Ohio)

10th ~ Richard Nields (Ohio)

Sunday, November 15, 2009

If You Hire an Attorney, You Won't be Sentenced to Death

If you hire a lawyer, the chances are you won't be sentenced to death in Houston.
University of Denver Criminologist Scott Phillips reviewed 504 capital indictments over three decades in Harris County, Texas, and found that defendants who hired lawyers for the entire trial were never sentenced to death -- and were more likely to be acquitted.

The results of his study, published over the summer in the Journal of Criminal Law & Criminology, are truly stunning. Since nearly all defendants facing the death penalty in Harris County were poor, Phillips argues that his results further demonstrate the arbitrariness of capital punishment. If a defendant's family and community is able to pool resources to hire an attorney, the paid attorney might be better equipped to investigate a case or to bring bargaining power to the table against a district attorney.

He makes clear that his findings aren't an indictment of appointed attorneys, but of the system that straddles those attorneys with thin resources in a death penalty case. Something clearly went wrong for results this drastic.

Phillips also came up with some significant findings on race and capital punishment, which he published in the American Constitution Society's journal, Advance.

Phillips found that the race of a defendant played a significant role in whether he or she was charged with death. This is no surprise to people following capital punishment issues, of course, but Phillips makes some interesting recommendations for prosecutors' offices to avoid this disparity. He praises the Harris DA's office for eliminating the race of a defendant from the memo used to determine whether to seek the death penalty. Other markers, however, still indicate race and play a role in the decision, he says.

Phillips suggests that prosecutors' offices go further than just removing race -- they need to "be vigilant" and remove victim information, neighborhoods, school names and other possible identifiers. This is a commendable -- but unrealistic -- idea.

Phillips' research is important, but I believe it further proves that the death penalty is cruel and unusual. I don't think it's possible to remove the arbitrariness of race, socioeconomic background or myriad other factors that lead the most vulnerable to our death row. Abolishing capital punishment is the only way to address the inherent injustice in the system.

Thursday, November 12, 2009


June 29 through July 2, 2010

17th Annual Fast & Vigil

to Abolish the Death Penalty

at the U.S. Supreme Court

in Washington, DC

Read the who, what, when, where, why and how of this important annual abolitionist event by visiting our website.

The four-day Fast & Vigil takes place on the sidewalk in front of the U.S. Supreme Court, considered by many to be the heart of the legalized killing machines in this country.

This is a great experience and training ground for people who want to practice, or become very adept, at talking about the death penalty. Tens of thousands of tourists, from all over the U.S. and throughout the world, pass by our vigil and table, so the opportunity for dialogue and discussion at a real grass-roots level is invaluable to the movement.

In addition to the strong public witness, this is an excellent opportunity to meet other abolitionists and to "recharge your batteries" while engaging in public outreach and maintaining a physical presence at the Court.

As always, the liquid-only fast is optional, although many do participate and build community around it. This year, the small voluntary registration fee of $20 also includes a free t-shirt and a stainless steel water bottle. Housing within walking distance of the Court is provided at little or no cost. And since this event is a fast, meals are cheap! The only cost to participants is travel to Washington, DC. And even that can be covered by getting your own local sponsors through the pledge sheet on the website.

Please contact us to register, sponsor, or find out more.

The Abolitionist Action Committee can be reached at 800-973-6548 or

The Abolitionist Action Committee (AAC) has held a four day vigil at the Supreme Court every summer since 1993, from the dates of June 29 to July 2, to mark two very important court decisions about the death penalty. The AAC is an ad-hoc group of individuals committed to highly visible and effective public education for alternatives to the death penalty through non-violent direct action. Visit them online at

Wednesday, November 11, 2009

Viewpoint: Postponed justice

"Postponed Justice" is the title of Jillian Sheridan's editorial in the Daily Texan.

The Texas Senate Committee on Criminal Justice held a hearing yesterday to talk with the Texas Forensic Science Commission’s new chairman, John Bradley. They discussed, among other things, whether or not Bradley is serving as a political pawn for Gov. Rick Perry and whether Bradley plans to resurrect the commission’s controversial investigation into the science used to convict and execute Cameron Todd Willingham.

Perry appointed Bradley to the commission this fall, abruptly replacing his former appointees two days before the commission was set to hear a report from nationally recognized arson expert Craig Beyler. Austin criminal defense attorney Sam Bassett, the forensic science commission’s former chairman, says the commission has paid Beyler approximately $30,000 to review the science used in Willingham’s case, according to the publication Texas Lawyer. Beyler had determined that science was used inappropriately to reach a conviction.

Bradley promptly canceled the hearing, indefinitely postponing the commission’s conclusion on the Willingham case.

Not surprisingly, senators questioned whether Perry is using Bradley to postpone action on the Willigham case, likely until after the March 2010 gubernatorial primary.

Bradley’s response: “I don’t see myself as being someone else’s political pawn. And I don’t think you’ve ever seen that I behaved that way.”

Yet Bradley is in no hurry to hear from Beyler or to focus his commission on the controversy, though he does promise to take it up again some time in the future. Instead, he is calling those who want to move the investigation forward agenda pushers.

In a Dallas Observer editorial, Bradley wrote, “Those with agendas other than the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case. The commission can only ask that the public be patient and permit the commission to apply a disciplined, scientific approach to the investigation. That kind of work takes time, careful deliberation and is not likely to result in a simplistic report.”

But the commission had already dedicated years, and tens of thousands of dollars, to conducting an in-depth investigation. Apparently, Bradley is ready to throw out its efforts.
The former commission was ready to wrap up the Willingham case. Bassett told Texas Lawyer that before he was replaced, he had asked the governor’s office to allow him to remain on the commission for another two-year term. “I wanted to finish the work we started,” he said.

But political machinations are now suppressing that work and the case. Bradley has announced that his first priority will be establishing clear policies and procedures and that he may call a meeting to address housekeeping matters in January.

But the commission is unlikely to come to any conclusions on the science that resulted in the Perry-sanctioned execution of Willingham anytime soon ­— and certainly not before the March primary.

And when the commission eventually does consider the case, Bradley will be careful to avoid any suggestions of Willingham’s guilt or innocence. “The commission has to be very careful about the process that it develops so that we keep the focus ... on forensic science and not on the criminal case,” Bradley told The Dallas Morning News.

Bradley may claim that he is not a pawn of the administration, but the evidence suggests otherwise.

John Bradley's Use of Misinformation to Push His Political Agenda

Yesterday, John Bradley, the new chair of the Texas Forensic Science Commission, testified to the Senate Committee on Criminal Justice. The question is whether Bradley's testimony to the committee or any comments he gives to the media can be trusted. Based on the statements he gave to the media during the last session of the Texas Legislature regarding the Law of Parties bill, Bradley seems to be comfortable using hyperbole if not outright propaganda-like misinformation to push his own political agenda.

In the last session of the Texas Legislature, the Texas House of Representatives passed a bill (HB 2267) that would have banned executions of people convicted solely under the Law of Parties. The Law of Parties provision of HB 2267 was taken out of the bill in the Senate Criminal Justice Committee after Governor Perry threatened to veto it if the bill was sent to him in the same form that it had passed the House. The revised version, which would have only required separate trials for co-defendants in capital trials, then died in the Senate when it did not come up for a vote on the floor before the deadline.

The reason for TMN's concern was a quote in the Austin American Statesman from Williamson County Attorney John Bradley. He said in the Austin American-Statesman: "To exempt all defendants in capital cases because they didn't pull the trigger "is irrational," said Williamson County District Attorney John Bradley. "Under that reasoning, Hitler, Osama bin Laden and Charles Manson could never get the death penalty. You have to look at the facts of each case ... whether their participation merits holding them culpable".

The problem with Bradley's comments is that people like Hitler, Manson and Osama bin Laden would not have been prosecuted under Section 7.02(b) of Texas' Law of Parties, which is the section that would have been affected by HB 2267. Furthermore, for those people who are and would continue to be prosecuted under section 7.02 (b) (again not Hitler, Manson or bin Laden), HB 2267 would still have held them culpable, it just would have limited the maximum punishment for non-killers convicted solely under that section to life in prison without parole.

HB 2267 said

A defendant who is found guilty in a capital felony case only as a party under Section 7.02(b), Penal Code, may not be sentenced to death, and the state may not seek the death penalty in any case in which the defendant's liability is based solely on that section.

Bradley's statement was one of the most absurd, irresponsible comments by an elected legal professional trying to justify a political agenda that we have ever heard.

The Law of Parties in section 7.02 (b) says "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy".

That section, together with Article 37.0711 of the Code of Criminal Procedure, allows the state to prosecute and sentence to death people who have no intent to kill and who in fact do not kill anyone, people like Kenneth Foster, Jr and Jeff Wood.

Section 7.02 (b) would not have applied to Hitler, Manson or bin Laden because those three did not conspire to commit one felony such as robbery and then someone was killed during the course of the robbery. Manson, Hitler and bin Laden conspired to commit murder, so they could have been prosecuted under other sections of the Law of Parties statute that would have remained unchanged by HB 2267. In fact, section 7.02 would have also remained unchanged under HB 2267, so people could still have been convicted under that section. They just would have received life without parole instead of death.

Law of Parties cases are very rare. There have been only 3 Law of Parties executions in Texas out of the total of 443 executions, which is less than one percent.

"Misinformation given out by an elected county attorney like John Bradley to push his political agenda is appalling. Bradley's past propaganda-like misinformation regarding the Law of Parties brings the reliability and trustworthiness of his testimony in today's hearing into question. The people of Texas should be concerned whether Bradley can be trusted to conduct an unbiased investigation into the scientific validity of the arson investigation and analysis methods used by prosecutors to convict and execute Todd Willingham", said Scott Cobb of Texas Moratorium Network.

Ehsan Fattahian was Hanged Early This Morning

Iran Human Rights, November 11: According to reliable sources in Iran, the Kurdish political prisoner Ehsan Fattahian was hanged in Sanandaj today.

The numerous campaigns by the local and international human rights groups to stop his execution did not give any result. He was executed in the prison of Sanandaj this morning.

Mahmood Amiry-Moghaddam, the spokesperson of Iran Human Rights said "Our thoughts go to Ehsan’s family and friends and all those who are struggling for abolition of death penalty worldwide. We condemn strongly Ehsan’s execution. Iranian leaders must know that hanging and torture will not solve their regime’s massive problems, and they will eventually be held responsible for their acts".

Monday, November 09, 2009

Tune in Online: Hearing Tuesday on Texas Forensics

In Austin tomorrow morning, the Texas Senate Criminal Justice Committee will question John Bradley, the newly appointed chairman of the state Forensic Science Commission, about the panel’s ongoing work. Before Gov. Rick Perry replaced four commission members, the panel was in the process of reviewing forensic evidence used against Cameron Todd Willingham, who was executed in 2004.

Click here to watch the hearing live Nov. 10 at 10 a.m. CST (11 a.m. EST)

Click here to watch the press conference live Nov. 10 at approximately 10:30 a.m. CST (11:30 p.m. EST)

(You will need Real Player to watch the events above online. Download it for free here).

Learn more about the Willingham case and the Texas Forensic Science Commission.

For more information visit:

Keith Hampton Running for Texas Court of Criminal Appeals

A few months ago, TMN wrote a post asking "After Todd Wilingham and Sharon Keller debacles, where are the Democratic candidates challenging members of the Court of Criminal Appeals?"
Where are the Democratic candidates challenging the incumbents on the Texas Court of Criminal Appeals who are running for re-election in 2010? The CCA allowed an innocent person to be executed - Todd Willingham. It is the court that one of its own current members says became a national laughingstock years before Sharon Keller said "we close at 5". Keller, its presiding judge, is charged with incompetence and misconduct and could be removed from office.

The three incumbents on the CCA up for re-election in 2010 are: Lawrence Meyers, Michael Keasler and Cheryl Johnson.
Today, we have learned that at least one of the three judges will receive a strong challenger in next year's election. Keith Hampton, who was the lawyer who convinced the Texas Board of Pardons and Paroles and Governor Perry to commute the death sentence of Kenneth Foster, Jr to life in prison, is running for Place 6 on the Texas Court of Criminal Appeals. The seat is currently held by Michael Keasler.

You can visit Hampton's website at

His website says that
If elected, Keith Hampton will be the only judge who has handled death penalty cases in all stages of litigation – from accusation, trial, appeal and all post-conviction proceedings, including appearing before the Supreme Court of the United States.

Growing up in Texas, a life-long Democrat, Keith Hampton began his career at age 17, as the youngest precinct chairperson for the Texas Democratic Party.

For the last twenty years, Keith has defended the Texas Constitution and the Constitution of the United States in hundreds of cases. As an active member of the criminal defense bar, a Fellow of the Texas Bar Foundation, and a member of the Pro Bono College of the State Bar of Texas, Keith has tirelessly worked for fairness, integrity and justice for all Texans.

A Celebrated Career
1989 - J.D., St. Mary’s University

1989-90 - Briefing Attorney, Judge Sam Houston Clinton

1995-2005 - Legislative Director for the Texas Criminal Defense Lawyers Association

1991 - present - Author/Speaker/Course Director, Texas Criminal Defense Lawyers Association

2008 - Percy Foreman Lawyer of the Year

2003-2009 - Texas Monthly “Super Lawyer”

Winner of the Texas Criminal Defense Lawyers Association President’s Awards for 7 straight years

Eric Wrinkles on the Oprah Winfrey show

Tomorrow at 4 pm EST, the Oprah Winfrey show will focus on the case of Eric Wrinkles, who was sentenced to death in Vanderburgh County, Indiana, for killing his estranged wife and two of her relatives while he was in a meth-induced psychosis. The show includes interviews with Wrinkles and victims' family members. The show was produced a couple of months ago; on November 3rd, the Indiana Supreme Court set December 11th as Wrinkles' execution date. He's exhausted all appeals and probably will not be pursuing clemency so December 11th is a firm date.

One of the victims' mothers testified at trial and again in state post-conviction proceedings against imposing the death penalty. She was also interviewed for a DVD the Indiana Catholic Conference produced.

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.”