The Texas Forensic Science Seminar

From Grits for Breakfast:

The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit is jointly sponsoring a conference/CLE event October 7-8 titled the "Texas Forensic Science Seminar" in the auditorium at the capitol in Austin. See their promotional flyer here (pdf). It looks like a substantive discussion, particularly the second day, so I signed up to attend the free event.

An interesting note, fwiw: Former Forensic Science Commission Chairman Sam Bassett is listed among the faculty, while current FSC Chair John Bradley apparently wasn't invited to present.

Topics covered include arson, digital media, trace evidence, firearms and toolmarks, DNA evidence and statistics, latent print evidence, toxicology, eyewitness identification and false confessions. There will also be discussions of the National Academy of Sciences report on forensic science, application of the scientific method to forensic fields, and the admissibility of forensic science testimony in Texas courts.

Write Forensic Science Commission to Demand All Subcommittee Meetings are Public and Not Held in Secret Behind Closed Doors

If you believe that all subcommittee meetings of the Texas Forensic Science Commission should be public and not private, secret closed door meetings, then please join us in writing commission Chair John Bradley (photo left) and other members urging them to make the meetings public and to post notices on their website of when and where the subcommittee meetings will take place.
The address is:

Texas Forensic Science Commission
Sam Houston State University
College of Criminal Justice
Box 2296
816 17th Street
Huntsville, Texas 77341-2296

Fax: 1-888-305-2432
E-mail: info@fsc.state.tx.us

Report of today's meeting from the Dallas Morning News:

Bradley meets the press. Asked about the pace of the Willingham case ahead, he says it will proceed as appropriate. Asked if he would set a timetable, he says no. He says that would be arbitrary.

Asked about the newly configured, four-person Willingham committee, he says it will meet in private. Why not public? "I don't think it's in the best interest of how we choose to do things." Asked who decided the Willingham committees will meet privately, he says the committee did. (I should point out that the assistant AG attending today's session advised the commission that the committee were only made official today and that they couldn't have made official decisions at their organizing meetings last week.)

Bradley cuts off questions before I could ask him particulars of what the committee will tackle at its next meeting.

Talking with Commissioner Evans, the Fort Worth defense attorney, who says it was news to him that the committee will be meeting in private. Should it be? Evans says he would have no objection to public meetings, though he appreciates that there is a level of frankness that can help get things done behind closed doors. Overall, he says he's willing to listen to pros and cons.

Evans says he figures that committee members will be in contact to decide what materials to review and people to talk to for their next session -- whenever that is.

On his way out, Adams says it was news to him that committees will conduct business in private. He presumed they would be public. But don't worry, he says, other members of the commission will make sure business is above-board.

From last week's Grits for Breakfast, "Forensic commission's Willingham committee meeting in secret":

Committee meetings of the Forensic Science Commission are being held in secret, including a committee evaluating the Todd Willingham arson investigation which met yesterday. Death penalty activist Scott Cobb emailed FSC coordinator Leigh Tomlin to ask:

I heard your voice mail that the Complaint Screening Committee and the Investigative Committee on the Willingham/Willis Case held meetings yesterday in Dallas. When and where were they held? I didn't see any meeting notice posted on the website. I only knew about it because I had read in the Houston Chronicle that it was going to be held next Thursday. Did the Commission provide a public notice before the meetings were held? How can the public be aware of when these meetings are going to be held in the future? Are there minutes available of the meetings yesterday?

Tomlin replied with a single sentence: "The meetings were not public meetings."

They could be public, of course, at the discretion of the commission and the chair. But the new rules Chairman John Bradley rammed throughat the commission's last meeting allow him to opt to have closed sessions.

Having watched that meeting online, I seriously doubt the majority of commissioners understood that this would be the result or intended to close their deliberations. This is simply the chairman exercising his discretion in the convenient absence of any rule to the contrary. This is what happens when rules aren't publicly posted or even shared with commissioners before the day they're required to vote on them. One hopes the commission majority will override their chairman to revisit and amend those rules, making committee hearings public and publishing their agendas just like regular commission meetings.

The Forensic Science Commission never conducted its business in secret before. What do they have to hide?

Todd Willingham Case: Public Comment Period at Next Meeting of Texas Forensic Science Commission April 23 in Dallas Area

The Texas Forensic Science Commission has posted its agenda for its meeting in Irving, Texas on April 23, 2010 at the Omni Mandalay Hotel at Las Colinas, 221 E. Las Colinas Blvd, Irving, Texas (Map and directions). The meeting starts at 9:30 AM, but is expected to last all day and the public comment period will be at the end of the meeting.

The agenda includes a period to accept comments from the public, although the proposed new rules on public comments say that the public comment period may be eliminated, reduced or postponed "if deemed necessary due to time constraints or other exigent circumstances". Each commenter will be given three minutes and must fill out a form and give it to the commission coordinator before the meeting.

Students Against the Death Penalty plans to attend the April 23 meeting and we encourage members of the public who wish to make comments to the commission to attend also. The commission needs to hear that the public wants them to speed up the process of investigating the Todd Willingham case and discussing the report given to the commission by Dr Craig Beyler, so that Texas can determine whether faulty forensic science lead to the wrongful conviction and execution of an innocent person.


Agenda for Texas Forensic Science Commission Meeting April 23, 2010

Rick Casey expects no major progress in the investigation until after the November election. He says in his Houston Chronicle column today:

The commission just posted its agenda for next week's meeting, again drawn up by Bradley though this time honoring some suggestions from commissioners. The first item: approval of Bradley's nominations for a number of committees, including an “investigative panel” for the Willingham case.

For that three-member panel, Bradley called his own number. The other two are Dr. Nizam Peerwani of the Tarrant County medical examiner's office and Sarah Kerrigan, the Scotland Yard-trained head of the forensic science graduate program at Sam Houston State University. Peerwani is one of Perry's new appointees. Kerrigan has been critical of Bradley's leadership.

Little progress expected

The group's first meeting is set for next Thursday, the day before the commission's meeting. Since it is scheduled for just two hours and is not expected to hear from Beyler or any other witnesses, don't look for it to advance the process much.

Bradley said he had planned to have the commission question Beyler at the October meeting, hear from critics of his report at the February meeting and then produce a final commission report by the spring or summer.

He said the nine members of the commission, a much smaller body than most congressional committees, were comfortable handling the matter as a whole.

If Bradley wanted to press the matter, I suppose he could push the investigative panel to produce a report by the July meeting and take action then or at the October meeting.

But to expect that, I suspect, would be doubly naive.

Scott Henson at Grits for Breakfast wrote a post critical of Bradley for creating the new three-person committee for the Willingham case instead of allowing the full commission to deal with it and for appointing himself as one of the members. Henson also suggested how the other commission members should handle the situation by making a motion to reconsider.

If one believes - as admittedly I do - that the Governor ousted his old appointees last fall and replaced them with Bradley and Co. for the purpose of scuttling the Willingham inquiry until after the election, then these new rules and committee assignments set them up admirably to accomplish the task. Particularly telling was the chairman's brazen decision to assign himself to the committee assessing the Willingham case. From the Startlegram: "The notion that he would be on this particular committee in light of everything that has gone on in the last year is particularly inappropriate," said Rep. Lon Burnam, D-Fort Worth. "A suspicious mind would be concerned about nefarious activities."

Burnam's right about Bradley and the appearance of neutrality. The Williamson County DA has already been sharply, publicly critical of the arson expert commissioned to investigate the lack of scientific rigor in the evidence presented at the Willingham trial. Bradley even tried to prevent the scientist from testifying before a legislative committee that requested his views on the role of expert testimony unrelated to the case.

What's more, a second member of the three-person committee, Dr. Peerwani, was also appointed last fall after the Governor interceded tochange the direction of the commission. So two of the three committee members evaluating the Willingham case were people who, by all appearances, were appointed to the Commission primarily to impede the investigation, not get to the bottom of the matter. Given that, there's a decent chance the thing never gets voted out of committee - that's what I'd do if I just wanted to kill it.

That's why, IMO someone on the commission should bone up on their parliamentary procedure and make a "motion to reconsider" at their next meeting later this month, because they were sold a pig in a poke. The Commission made the decision to create this new committee structure based on false pretenses, believing it wouldn't apply to pending cases. I was liveblogging the hearing at the time, and here's how I recorded the exchange on whether the Willingham case would go through the new committee process:

Dr. Kerrigan asked whether these rules apply to pending cases or new ones. Good question! Bradley said new or recent cases would be affected but not those already in the pipeline. A commissioner asked particularly whether cases where they'd already spent money on outside consultants would now have to go through the new process. Bradley said "no."

Later, though, just before the meeting ended:

Bradley backtracked after the rules passed to say old cases like Todd Willingham's in fact will go through his new committee process. That's a complete 180-degree flip from what he told the commission members twenty minutes ago, back when Commissioner Kerrigan told the chair her vote depended on his answer.

The next day, in a post reviewing the meeting, I accused Bradley of:

Dissembling: When a commissioner told the chairman her vote hinged on whether old cases already in the pipeline - including ones where the Commission had already paid outside consultants (there are only two) - would be subjected to the new committee process, Bradley said no, they would not. After the vote, when the meeting had nearly ended, Bradley insisted that Willingham's case must go through "part of" the new committee process. If he'd been honest about that during the debate, IMO a majority of commissioners present wouldn't have supported his rules.

That's sufficient reason to initiate a motion to reconsider, which is allowable under Robert's Rules if the motion is made by anyone - say, Dr. Kerrigan or her allies on the board - who voted for the rules at the last meeting. I think the Commission should reconsider and clarify the rules to have pending, longstanding cases bypass this new committee, which is what they were told would happen before they voted to create it.

More on How John Bradley Violated Texas Open Meetings Act at TFSC Meeting

Rick Casey of the Houston Chronicle had a column yesterday on how Rick Perry's handpicked puppet/chair of the Texas Forensic Science Commission violated the Texas Open Meetings Act (PDF) at Friday's meeting, which was held in Harlingen. The Dallas Morning News' Trailblazer blog first reported on Bradley's violation of the TOMA. Bradley should be removed as chair of the Commission. He has proven by his handling of the first meeting that his main goal was to cover-up and impede the investigation into whether Texas relied on faulty arson evidence to execute a person who did not kill anyone.

One of the Commission members should offer a motion at the next meeting of the Commission to recommend that Rick Perry replaces Bradley as chair. Bradley is an elected district attorney. He knows about the TOMA. He obviously violated the act on purpose as part of his cover-up of the Willingham investigation. The commission members should also read up on Robert's Rules of Order to make sure they know how to exercise their own authority to control Bradley.

From Rick Casey:

Friday started badly for John Bradley, the Williamson County district attorney selected last fall by Gov. Rick Perry to ride herd over the troublesome scientists on the Texas Forensic Science Commission.

His first official act of the morning was to violate the state's open meetings law.

Then his day got worse.

This was the first meeting of the commission under Bradley, who was appointed last September. His first official act was to cancel a meeting three days later at which the commission was scheduled to receive a report from a nationally renowned arson expert hired by the commission in its first high-profile case.

The meeting had drawn national attention because the expert found that the arson investigation that helped lead to the 2004 execution of Cameron Todd Willingham for the murder of his children was badly flawed. It was especially controversial because Perry had rejected a request to delay Willingham's execution based on similar expert analysis.

Bradley unilaterally wrote the agenda for Friday's meeting to focus on new policies and procedures, omitting the Willingham report. He also unilaterally chose Harlingen (which is as close to Mexico City as to Fort Worth, where three of the nine uncompensated and busy commission members live), making wrong my snide prediction that he would hold the meeting in Presidio to discourage reporters.

The session took place in a modest meeting room at a Marriott Courtyard Hotel. A few area reporters were seated around the walls, as well as a handful of protesters carrying signs. A camera crew from the national Innocence Project streamed the meeting live on the group's Web site.

But Bradley evicted an Austin-based documentary crew before the meeting started. One of its members called the attorney general's office in Austin, which sent a message to Barbara Dean, the assistant district attorney who has attended all of the commission's meetings, providing legal guidance since its inception.

Film crew admitted

An hour and a half into the meeting, Dean, seated behind Bradley, tapped him on the shoulder and quietly spoke into his ear. He announced a 10-minute break, and when the meeting resumed the film crew was in the room.

When I asked Bradley about the matter, he curtly told me to talk to the film crew. I said I had and he replied with annoyance: “Then you know.”

His defensiveness was understandable. Enforcement of the Open Meetings Act is the responsibility of local district attorneys such as himself.

Grits for Breakfast liveblogged the meeting, which you can read here.

Grits also has a post listing reasons why the commission members should be upset by Bradley's handling of the meeting.

Usurping power from commissioners: Bradley refused to put "action items" on the agenda that were designated in the minutes from the last meeting.
Hijacking the meeting agenda: The chairman arrived in Harlingen with a detailed set of "rules" that were never authorized by the commission and insisted they focus on them exclusively.

Concealing key activities from commissioners: Most FSC members were never told the chair was drafting rules nor did they authorize him to do so. They were first informed of the rules' existence and given a draft the day before the meeting.

Wasting commissioners' time: After spending all day on "rules," the chairman revealed at the end of the meeting that the commission had no rulemaking authority, announcing that these were only voluntary "guidelines" representing an informal agreement that is "not even enforceable on ourselves."

Ignoring "process": Though the Commission historically operated under Robert's Rules, Bradley ran the meeting on a "consensus" basis, which removed limits on the chair, obfuscated members' right to control the process, and allowed Bradley to railroad through his agenda.

Dissembling: When a commissioner told the chairman her vote hinged on whether old cases already in the pipeline - including ones where the Commission had already paid outside consultants (there are only two) - would be subjected to the new committee process, Bradley said no, they would not.

After the vote, when the meeting had nearly ended, Bradley insisted that Willingham's case must go through "part of" the new committee process. If he'd been honest about that during the debate, IMO a majority of commissioners present wouldn't have supported his rules.

Off the Kuff says Bradley's performance on Friday is a good reason for Senator John Whitmire "to have another hearing about the Commission and what Bradley is doing to it".

Today, we learned about more misbehavior by John Bradley. He tried to interfere with a legislative hearing held Jan 11 by the Chair of the Texas House Committee on Criminal Jurisprudence.

As we said yesterday, John Bradley "should be removed as chair of the Texas Commission on Forensic Science. He has proven by his handling of the first meeting that his main goal was to cover-up and impede the investigation into whether Texas relied on faulty arson evidence to execute a person who did not kill anyone".

As reported by Gary Scharrer in The Houston Chronicle:

Gallego had a committee hearing on Jan. 11 to focus on rules of evidence. He invited Beyler to testify.

In a Jan. 26 letter, Beyler told Gallego: "Mr. Bradley.... asked me not to appear before your committee. He was apparently concerned about your motives in inviting me and was very concerned that you wished to do the Commission harm."

"I was not at all convinced by his concerns and decided to come to Austin. As it turns out, his fears were wholly without merit. I very much appreciated that the committee members did not ask questions about the pending TFSC work," Beyler wrote in the letter to Gallego.

The veteran lawmaker said it's its improper to tell witnesses not to show up for a hearing.

"I'm really disappointed that he (John Bradley) would attempt to interfere in a legislative hearing in that fashion," Gallego said.

But Bradley, the district attorney in Williamson County, say he simply told Beyler "that his status as an expert in a case pending before the Forensic Science Commission made it potentially a conflict to serve as a witness in a hearing related to such matters before the conclusion of an investigation."

"Mr. Beyler had already damaged his reputation for impartiality by publicly commenting on the recent appointment of new commissioners. By entering the political arena, he gave ammunition to those people who might question his impartiality," Bradley said. "Having heard Mr. Beyler's presentation to the House Committee, it appears that he wisely edited his remarks to avoid further damaging his reputation. No one prevented him from testifying. It is naive to think that his invitation was unrelated to his work for the commission."

But Gallego said: "Our hearing was about the rules of evidence, and we told everybody that up front. There was no effort on my part to talk about anything else. If those cases came up by name, they came up peripherally."

Grits' Biggest Texas criminal justice stories of 2009

At the beginning of the new year, it's worth taking a moment to recall some of the biggest Texas criminal justice stories of 2009. It's a partial list, cut short by babysitting duties this morning, so let me know in the comments what I missed.

Sharon Keller on the dock: The Commission on Judicial Conduct ordered a fact finding hearing to determine whether Presiding Judge Sharon Keller deserves to be removed from the bench for rejecting a last-minute death penalty appeal on bureaucratic grounds ("We close at 5") without notifying the duty judge whose job it was to evaluate it. The results should be reported in 2010.

Asset forfeiture shakedown: The East Texas town of Tenaha made national headlines for using asset forfeiture laws to shake down passing motorists of whatever they happened to be carrying with them in exchange for not filing trumped up criminal charges. Legislation to remedy those abuses died as a result of the end-of-session voter ID meldtown in the Texas House of Representatives.

No more juvie LWOP: The Texas Legislature abolished life without parole for juveniles, setting the max sentence for juvenile offenses at 40 years.

"Zero tolerance" on contraband fails spectacularly: TDCJ spent most of the year combating contraband - especially cell phones - at Texas prison units, only to have an inmate successfully smuggle a gun onto a prison medical transport and escape from custody. (He was recaptured without incident a week later.) TYC's Ombudsman, a former judge from Dallas, was indited for intentionally sneaking contraband including a weapon onto a TYC facility. Federal legislation to allow cell phone jamming was filed by Sen. Kay Bailey Hutchison and passed the US Senate.

Death sentences decline: Only nine new additions to death row in 2009; none of them from Houston, notably, despite its long-time reputation as the nation's death penalty capital. Twenty-four men exited through the execution chamber.

Sex Parte: In the Charles Dean Hood case, the Court of Criminal Appeals ruled that a judge and prosecutor sleeping together during a capital murder trial isn't enough to force a mistrial if they successfully conceal their misconduct for a long enough period of time. Likely this ruling was more personal favor than policy decision: the judge involved, Verla Sue Holland, was appointed after the case by Gov. George W. Bush elected in 1996 and served with 8 of the 9 current CCA members as a Court of Criminal Appeals Judge.

Juarez at war: El Paso's sister city has all but turned into a war zone, with cartels fighting both one another, for access to the bridge, and also the Mexican military, which has been occupying the city for the last two years under what amounts to martial law.

Timothy Cole's posthumous exoneration: Tim Cole died in prison before his name was finally cleared, even though the real offender had claimed credit for the rape he was convicted for in correspondence to Lubbock prosecutors from prison. DNA testing finally confirmed the real offender's story, and soon-to-be-retiring Travis County District Judge Charlie Baird presided over the state's first ever posthumous exoneration hearing. In the aftermath, the Legislature improved its compensation package for the falsely convicted in legislation bearing Cole's name. The Lege also created an advisory panel named after Cole that will evaluate potential innocence reforms for the 2011 session.

Innocence legislation needlessly dies: This is how I spent my spring, working at the time as Policy Director for the Innocence Project of Texas. Several bills proposed to prevent future false convictions - including eyewitness ID reforms, requiring policies on recording interrogations, and lowering barriers to accessing the courts for writ procedures - all died an ignominious death when the Texas House melted down in an unrelated debate over voter ID. In particular, the Criminal Justice Integrity Unit established by the Court of Criminal Appeals had said the eyewitness ID legislation should have been the highest priority for preventing future false convictions: However, it wasn't a high enough priority for partisans to put aside their differences and allow the bill to proceed.

Politics prevents arson reconsideration: A discussion that should have been about faulty arson science morphed into a pointless death penalty debate. Days before the Forensic Science Commission was to receive a commissioned report on shoddy arson science used to convict Todd Willingham (who was executed in 2004), Gov. Perry ousted Chairman Sam Bassett and appointed Williamson County DA John Bradley in his stead, who promptly canceled the meeting and shut down all the commission's ongoing activities. Bassett was one of the Dallas News' "Texan of the Year" finalists.

Dog scent lineups: DNA exonerations and an Innocence Project of Texas report demonstrated erroneous "scent lineups" run by Deputy Keith Pikett of the Fort Bend County Sheriff's Department are unreliable, and dog experts say he fails to use best practices. The Court of Criminal Appeals recently accepted a case to evaluate whether Pikett's dogs' testimony is acceptable as evidence.

DPS leadership in transition: After long-time Col. Tommy Davis retired under duress in the wake of the Governor's mansion fire, his replacement Stanley Clark resigned abruptly over allegations of sexual harassment. He was replaced with Gov. Perry's homeland security advisor Steve McCraw, solidifying the Governor's grip on the historically independent department.

Assigning 'Condition X': Federal District Judge Sam Sparks ruled that the Texas Board of Pardons and Paroles violated parolees due process rights when it labeled them sex offenders without due process, even when the offense for which they were convicted was not a sex crime. Sparks said of parole board chair Risssie Owens, "Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed.'"

See also Jordan Smith's Top 9 criminal justice stories from the Austin Chronicle and her list of top nine drug policy stories.

Exonerees, lawyers fees and innocence compensation: A personal perspective on an ugly dispute

Last week an article about an exoneree suing his attorneys was printed in several papers. At the time I knew that something was not right, that the whole story was not being printed but I had not caught up with being out of town and responded yet.

I know Jeff Blackburn, with the Innocence Project of Texas, and know him to be a very hard-working, extremely dedicated attorney. If you know me at all, you know I rarely praise attorneys as most of them are not worthy of any, but Jeff is one of the exceptions. I have known him since the '70's and he is one of the people wanting to figure out how to have Todd Willingham posthumouslyalso exonerated. Jeff spoke at our annual march in Texas this year. You can watch his speech online.

He was also the attorney for the Tulia defendants who were so royally screwed until he stepped in and took their cases and fought the powers in Tulia. Google Tulia or rent the movie "American Violet" and see for yourself, if you are not familiar with this case.

Anyhow, I wanted to share with you a post that is on the great blog, "Grits for Breakfast" that explains what I wasn't able to put into words. Heaven knows that with more attorneys like Jeff, our wrongly convicted prisoners would never have been wrongly convicted!

Gloria Rubac

Exonerees, lawyers fees and innocence compensation: A personal perspective on an ugly dispute

I'm going to speak out of school a bit to offer a personal perspective on a dispute covered today in the Dallas News involving my former employers. I've not spoken to anyone involved about the lawsuit described below. I claim no direct line to the truth on this and only offer my own impressions.

However, I've got mixed feelings about today's media coverage over a fee dispute between one of Texas' DNA exonerees, his attorney, and the legal director of the Innocence Project of Texas. This spring I worked worked for/with both lawyers being sued - Kevin Glasheen and Jeff Blackburn - and my history with Blackburn goes back to working with him on the Tulia cases around the turn of the century. What's more, I know all of the exonerees and attorneys who are quoted in the story.. If you know nothing besides what you read in Jennifer Emily's Dallas News story ("Innocence Project counsel criticized for profiting on exonerees"), it sounds pretty bad. Here's her lede:

Jeff Blackburn has helped spring dozens of Texans from prison after they spent time behind bars for crimes they did not commit.

But even as he's carried on the public fight to free the wrongly convicted as chief counsel for Innocence Project of Texas, he's been privately profiting off of some of the exonerated by claiming a portion of the state restitution paid to them.

Accepting fees from exonerees for services not directly connected to the nonprofit Texas Innocence Project is not illegal. But at least one public watchdog group says it appears improper, and a state legislator says he may file a bill to prohibit such profiteering.

At root, this critique is based on a sentiment, most directly expressed by Rep. Rafael Anchia, that "They should be helping the exonerees on a pro bono basis." But what other clients do attorneys represent without compensation? In this case, thanks to their lawyers, clients got aggressive representation across multiple fronts that resulted in changes to state law and opened the door for multi-million dollar settlements of their federal civil rights claims. That's no small thing. Texas could, as a state, change the way we compensate lawyers in civil court, but that's a much larger question.

The whiff of scandal promoted in the story is rooted in a fallacy the writer fails to rebut: The idea that exonerees could have just filed "a one-page document the guy could fill out himself." The fact is that Texas already had a compensation statute when Steven Phillips got out of prison, but at a much lower compensation rate. All of the fellows who hired Glasheen (some of whom, but not Phillips, for which Blackburn receives a referral fee) could have filed that same one-page document already and received compensation at a lower rate. They each had a choice under the law: Sue or accept compensation. Some did accept the compensation and didn't pay lawyers anything. Bully for them. That was their decision, but they'll receive less money overall than Mr. Philips. The only ones on the hook for attorneys fees are the ones who made a conscious choice that the previous compensation package was not enough.

Under the law for exonerees who reject the state compensation package, their other option for compensation was and is to hire a lawyer and sue. These are straight-up, contingency style Sec. 1983 federal civil rights suits which are very expensive to litigate and perhaps even more difficult to win - plaintiffs must not just prove harm but a "pattern and practice" of abuse. Those lawsuits were settled this spring in light of Texas' new compensation bill and a portion of the bill's success may be attributed directly to leverage from Glasheen's litigation - particularly among Dallas-area reps like Anchia whose local governments could otherwise be on the hook for big civil judgments. If the bill had failed, the litigation would have gone forward, including Mr. Phillips', of that I have little doubt.

Bottom line: these exonerees are in a unique position because of a) choices they made and b) the point in history they made them. Nobody going forward will find themselves similarly situated because the law has changed.

The compensation they'll receive under the new bill, even after paying their lawyers, will be much more than exonerees would have gotten otherwise. What's more, the new bill establishes an annuity that will pay them for the rest of their lives. Nobody's hurting for money here.

It should also be said I'm 100% sure the compensation bill would not have passed this year without Kevin Glasheen and Jeff Blackburn. While Blackburn's efforts were more high-profile, Glasheen, a Republican attorney out of Lubbock, brought connections and resources to the table that I'm absolutely certain pushed the bill over the top, especially during a session when money was tight and most other innocence legislation died. He was in Austin every week lobbying with terrific success, but his incentive to do so was the fee agreement. Should he, would he, would anyone expect him to do so just out of the goodness of his heart? He didn't take these cases pro bono; this is how the man earns his living.

Ditto for Blackburn, who faced similar criticism after the Tulia cases were settled. But how can he handle expensive, longshot innocence cases if he must earn his living hustling for DWI clients in Amarillo? I've watched Blackburn put tens of thousands in legal expenses on his own credit cards in possible-innocence cases, sometimes without getting it back. If we're going to blame Jeff when makes money, he should also get credit for putting in a lot more of his own money and pro bono time to help innocent clients post-conviction than most attorneys I know.

Another thing not mentioned in the story: Glasheen gave significant monetary advances to exonerees to help them pay bills while the litigation and legislation was pending - in some cases fairly significant amounts. Nobody had any complaints when they approached him seeking cash, one notices, and if the bill and litigation both failed, he'd be out that money. I'm just sayin'.

So while I understand why Phillips and perhaps others chafe at the notion, personally I don't begrudge the attorneys involved being paid. Professional-level services are not free, and otherwise the work wouldn't get done.

At the end of the day, Blackburn, Glasheen, and these exonerees together along with Anchia, Rodney Ellis, Robert Duncan and others at the Lege achieved something amazing with the passage of this bill. Exonerees in the past were compensated much less, and in a couple of instances wound up destitute and homeless a few short years after getting the money. Even after attorneys fees, these guys will get more than they otherwise would have, including a lifetime annuity.

The fight for better statutory compensation - fought by the exonerees through their own efforts and their attorneys - both earned more for them and paved the way for improved justice for others in the future.. Henceforth, it's true: Nobody need hire an attorney and exonerees can just file that one-page document. But that's a fight recently won, not a fait accompli that would have happened without these attorneys' effort.

Political and legal fights over public policy are messy beasts and seldom free from self-interest. This one was successful, so it's a shame to see victors feuding over the spoils. I'm sad that it's happening and wish everyone involved the best.

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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