The Texas Forensic Science Commission met today in Irving. The meeting took all day, but the time spent discussing the case of Todd Willingham amounted to about 5-8 minutes or so. One commission member said they were just at the beginning of the investigation. One member wanted to look at the Willingham trial transcript, get a report from the Corsicana fire department and take a look at what the Willingham’s wife has said, among other things, so that suggests they may take a broader look at the Willingham case instead of just focusing on the scientific validity of the forensic evidence. If the forensic evidence and the analysis of it had no basis in science, then there was no valid evidence of arson, which means there was no evidence of a crime and Texas executed an innocent person. 

They expanded the subcommittee handling the investigation into the Willingham case and the case of Ernest Willis from three members to four. Chair John Bradley pointed out that if they put too many people on the subcommittee, then they would have to make the subcommittee members public. As it is, with so few members on the subcommittee, they can have secret, closed meetings.

In fact today’s meeting of the entire commission during the brief time they discussed the Willingham case was so agreeable between the commission members, that it appeared they may have hashed out any differences in the secret meeting they held last week of the then three-person panel of the subcommittee.

From the Austin American-Statesman:

Three commissioners had initially been tapped for the Willingham case: commission chairman John Bradley, who is the Williamson County District Attorney; Tarrant County Medical Examiner Dr. Nizam Peerwani; and Sarah Kerrigan of the forensic science program at Sam Houston State University.

Kerrigan at first said she was “willing to stand down” from the subcommittee. Bradley said Kerrigan had told him that “personal issues” would prevent her from committing the time required for the subcommittee work. And he said that he wanted to add another lawyer to the panel because of the weighty legal issues involved — and also because, for public perception, it would be better to have both a prosecutor and a defense lawyer on the subcommittee.

Bradley said he’d asked defense lawyer Lance Evans to join the subcommittee in Kerrigan’s place.

Evans said he’d be happy to join the subcommittee, but he asked the commission to consider expanding it to include more commissioners — or the entire commission. He said it might be helpful to have people on the subcommittee who had been involved in the earlier investigation. Peerwani, Bradley and Evans are recent Perry appointees.

“I think every member of this commission is vitally interested in this particular investigation,” Evans said.

Bradley told the commission that if the subcommittee were enlarged to include the entire nine-member commission — or at least a quorum — the meetings would have to be public because of Texas’ open meeting requirements.

But three — or four — members may meet behind closed doors.

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.

Texas Moratorium Network plans to ask the public to write the commission and urge them to make all subcommittee meetings public and not to hold private, secret closed door meetings.

Texas today executed its 453rd person since 1982 and the 214th person since Governor Rick Perry took office in 2000. The next Texas execution is April 27 when Samuel Bustamante is set to die.

Click here to join the Texas Moratorium Network Facebook page to stay informed about the Texas death penalty.

From the Houston Chronicle:

A Texas inmate convicted of fatally shooting an El Paso high school senior after robbing and sexually assaulting her was executed Thursday evening in the nation’s busiest death penalty state.

William Josef Berkley was condemned to death for the March 2000 slaying of 18-year-old Sophia Martinez, whose body was found in the desert outside El Paso after being robbed at a drive-through ATM. She had been shot in the head five times and there was evidence she’d been raped.

Berkley was the sixth Texas inmate to receive lethal injection this year. Ten other prisoners are set to die over the next three months.

In his final statement, Berkley thanked his girlfriend, a friend and his spiritual adviser, who were at the execution, for their love and support. But he did not mention Martinez or look at or speak to the victim’s mother and two sisters, who were also in attendance.

“Warden, let her rip,” Berkley said after his brief statement.

As the drugs took effect, he gasped at least twice. Nine minutes later, at 6:18 p.m. CDT, he was pronounced dead.

Berkley, a self-described marijuana-smoking, baggy-jeans-wearing, “sarcastic smart ass,” denied involvement in the slaying during an interview with The Associated Press before his execution.

The U.S. Supreme Court turned down Berkley’s appeal late Thursday. The high court last year refused to review his case. On Wednesday, the 5th U.S. Circuit Court of Appeals rejected his appeal.

Martinez was robbed after pulling up to a drive-through ATM to withdraw $20 for spending on a Friday night.

A surveillance camera caught the robbery on tape and showed a man prosecutors said was Berkley forcing his way into Martinez’s car. After being forced to withdraw $200 from the ATM, Martinez drove off with Berkley.

Two days later, Martinez’s body was found in the desert about 10 miles away.

Berkley, who dropped out of high school in 10th grade, was born in Germany, where his father was posted with the U.S. Army. His family moved to El Paso when he was in the fourth grade.

Berkley said he had dual citizenship with Germany. The German government didn’t step in to intervene in the case.

Scheduled next for the Texas death chamber is Samuel Bustamante, 40, facing execution Tuesday for the fatal stabbing of a 28-year-old man during a robbery in Fort Bend County.

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 (of Texas Moratorium Network) 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.

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.

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.

The El Paso Times has run has run several long articles recently covering the case of William Josef Berkley, who was convicted and sentenced to death in El Paso. In the latest article, Berkley again says “I didn’t kill her”. He is scheduled to be executed today at 6 PM.

Call the governor at 512 463 1782 to express your opposition to this execution. Or use Rick Perry’s online website contact form.

From today’s El Paso Times:

LIVINGSTON, Texas — The day before his scheduled execution, William Josef Berkley was eerily calm, at times joking.

Berkley, 31, sat in a glassed cage during a 45-minute interview with the El Paso Times, a prison guard standing behind him. The bridge of his round silver-framed glasses was crudely repaired with Scotch tape, and he was quick to smile. At one point, he stuck out his tongue as he was photographed.

But when asked whether he was the man responsible for the brutal robbery, rape and murder of 18-year-old Sophia Martinez in 2000, he grew serious, and his gentle grasp on a telephone used to communicate did not change.

“I didn’t kill her,” Berkley said in a soft voice.

He didn’t appear very concerned about his execution,

Sophia Martinez

scheduled to take place just after 5 p.m. El Paso time today in Huntsville.

“To me, it’s in God’s hands,” Berkley said. “I’ve done all I can do. I read my Bible every day. It’s his choice.”

During the middle of the interview, the prison chaplain walked in and asked Berkley whether he was sure that he did not want a Mass on Wednesday or before he was to be put to death.

“No, no,” Berkley replied, matter of factly.

As he spoke, there was no sense of fear or terror on his face. He joked, cussed and looked you in the eye.

He was slender, wore a white T-shirt and said he could be called “Will” or “Ghost,” a nickname his mother gave him as a child.

Berkley, who said he was not especially religious though he has read the Bible since he was young, was sentenced on April 22, 2002, to die for Martinez’s murder. Police, prosecutors and jurors found that Berkley shot Martinez in the face and robbed her of $200 at an East Side ATM. He then drove her red Pontiac Grand Am to a desert area of Northeast El Paso, raped her and shot her to death.

Close to graduating

Martinez, a Burges High School senior just months from graduating, had stopped at the ATM on her way to meet a blind date at the Old Plantation nightclub in Downtown El Paso.

Prosecutors and police said Berkley used a gun belonging to his father, a former Army Ranger who served in Operation Desert Storm in the early 1990s.

An FBI forensic expert told jurors that bullets found at the crime scene matched bullets found in Berkley’s home. However, last year FBI officials disavowed the expert’s testimony.

Appeal is denied

The dispute over the forensic expert’s testimony was the basis for a last-minute appeal filed last week by attorneys Cori Harbour and Leon Schydlower. The appeal, which also included a request that Berkley’s execution be postponed, was eventually denied by a state appellate court and the 5th U.S. Circuit Court of Appeals in New Orleans.

Schydlower said Wednesday that he was preparing and filing a motion to the U.S. Supreme Court to stay Berkley’s execution.

Asked about the testimony about his father’s gun matching the crime scene, Berkley said, “Bull … .”

Some hope

Berkley said he had some hope that he would not be executed today.

“One of my attorneys said there’s a very good chance I’ll get a stay,” Berkley said.

Berkley said he doesn’t believe he received a fair trial. His trial attorney, Frank Macias, has said Berkley received “the fairest (trial) he could.”

“Macias didn’t investigate nothing,” Berkley said.

Instead, Berkley said, Macias prepared for the punishment phase of trial instead of trying to prove his innocence.

On Wednesday, Berkley claimed that on the night of Sophia’s murder, he had been driving around town with his friend, Michael Angelo Jacques, discussing ways of earning quick cash. He said the two had an argument over whether they should rob someone, and Berkley got out of the car and walked to a gas station near Viscount and Hawkins.

Berkley said he hid behind the gas station to roll a joint, then began walking toward a friend’s apartment. He said he couldn’t remember exactly where his friend lived and decided to walk home. He said three girls in a car stopped and gave him a ride.

Friend gets life term

A jury in San Antonio in 2002 convicted Jacques of capital murder for his role in planning Martinez’s murder. The jury sentenced him to life in prison.

Berkley claims to have known Martinez. On Wednesday, Berkley said he and Martinez met in January 2000 through a mutual friend after a night at the Old Plantation.

He said he and Martinez bumped into each other several times after first meeting in January 2000, and claims his father even met Martinez. Berkley claims Martinez refused to introduce him to her family because he already had a daughter.

“She was a cool chick with a good head on her shoulders,” Berkley said.

Martinez’s family and District Attorney Jaime Esparza fervently deny that Martinez and Berkley knew each other.

Berkley on Wednesday denied a statement from a prosecution witness who claimed Berkley laughed when he read a newspaper article about Martinez’s death. Berkley admits learning about her death from the article but described his reaction as more of a laugh in disbelief.

Evidence of rape

During Berkley’s trial, Macias argued that Berkley and Martinez had consensual sex. However, Dr. Juan Contin, the county’s deputy chief medical examiner, testified that Martinez’s body showed evidence of rape.

Berkley claimed it’s not in his nature to rob someone.

“I’ve never denied doing drugs, but I’m not the type of person to go robbing people,” Berkley said.

Berkley said he regrets not applying himself in school, saving his money and becoming a lawyer. He dropped out of Irvin High School in 1996, but later obtained the equivalent of a high-school diploma.

“I could have have had money for a home school paralegal course,” Berkley said. “I could have gone on to be an attorney.”

He also regrets not joining the military when he had a chance, but said he chose not to so that he could spend more time with his daughter, who is now 13 and lives in El Paso with her mother. Berkley said his daughter visits him in prison about once a month.

Mother blames self

He said his parents are holding up “as well as they can in this situation.” Berkley said his mother blames herself for what has become of Berkley, her only child.

One thing he said he doesn’t regret is his drug abuse. Besides immersing himself in legal research for his appeals, he has researched the possibility of marijuana one day becoming legal for medicinal purposes.

Berkley said that in the past he had abused cocaine, acid and marijuana, but that he believes marijuana can heal him of his epileptic seizures and attention deficit hyperactivity disorder.

He said he’s also studied death, something that has interested him for most of his life.

“I used to think, ‘I could die tomorrow so I’m going to live today,’ ” Berkley said.

Asked whether he had anything to say to Martinez’s family, Berkley grew quiet for a moment.

“I feel for them,” he said when he finally spoke. “I hope they’re doing OK. I’m sorry she passed away. I wish she was still with them.”

After another pause, Berkley said, “But I didn’t kill her.”

Click here to join the Texas Moratorium Network page to stay informed about the Texas death penalty.

William Josef Berkley is scheduled for execution in Texas on Thursday, April 22.

UPDATE April 21 at 10 PM: “Court denies stay of execution for El Paso man scheduled to die Thursday“

Please call Rick Perry at 512 463 1782 or use his website form to email Governor Perry to express your opposition to the execution or to the death penalty.

If executed, Berkley would be the 453rd person executed in Texas since executions resumed in Texas in 1982.

Attorneys for William Josef Berkley are asking a federal appeals court to block his execution.

From the El Paso Times:

EL PASO — William Josef Berkley, who is to be put to death this week for killing 18-year-old Sophia Martinez, has personally made two requests to block his execution.

In addition, two El Paso attorneys have sought a stay of execution on Berkley’s behalf, challenging the expert testimony at his trial.

Berkley and the attorneys filed their motions in the 243rd District Court, where Judge David Guaderrama presides. Guaderrama also was the judge at Berkley’s trial.

Jurors convicted and sentenced Berkley in 2002 for Martinez’s murder. He shot and robbed her in March 2000 at an East Side ATM, took her to the Northeast desert, raped her and shot her again.
Martinez was a senior at Burges High School who dreamed of becoming a history teacher. Her two sisters and mother, Lourdes Licerio, plan to be at Berkley’s execution Thursday in Huntsville.

Berkley recently filed a writ asking that his death sentence be thrown out because it violated double jeopardy laws.

Berkley stated he could have been sentenced to either death or prison time. He argued that since he is serving prison time while awaiting execution, he is essentially serving two sentences.
Guaderrama denied Berkley’s request, but on April 12 Berkley filed a handwritten appeal and asked for a stay of execution so that his argument could be heard by the state Court of Criminal Appeals.

Berkley wrote of his concerns about prison guards possibly throwing away inmates’ mail and about the prison law library’s outdated law books.

Berkley has told The Associated Press that he no longer has an attorney. On the same day Berkley filed his most recent appeal, attorneys Leon Schydlower and Cori Harbour requested a stay of execution for him based on testimony from Diana Grant, an FBI forensic examiner.

According to the motion, Grant testified that bullets found at the crime scene and the bullets found at Berkley’s home came from the same manufacturer and the same pot of lead at the ammunition manufacturing plant.

Schydlower and Harbour, who declined to be interviewed, argued that, after FBI officials reviewed Grant’s testimony in 2008, they determined it was “misleading and scientifically unsupported.” Last year, FBI officials disavowed the testimony.

Other evidence prosecutors presented to the jury included testing that placed Berkley’s DNA on Martinez’s body, and witness testimony that Berkley burned Martinez’s driver’s license in a barbecue grill.

Berkley’s trial attorney, Frank Macias, said last week that Berkley may not have many chances left to save his life.

“I think the appeals for him have finished,” Macias said.

He said he had not spoken to Berkley since he was transferred to the state prison in Livingston, but he remembers the case well.

“He came from a real good family. His father was a high-ranking noncommissioned officer in the Army and his mother was from Germany. They’re both really nice people,” Macias said.

Macias also described Berkley as “friendly and real talkative” when sober.

“By the time I got to meet Berkley, when he wasn’t on drugs and just Berkley, he was the nicest guy in the world,” Macias said. “It pains me to know they’re going to execute him.”

According to court records, Berkley was born in Germany but is a U.S. citizen. He moved to El Paso as a child.

During Berkley’s trial, two of his friends described him as an outcast who often lied. He told people he was a gang member until actual gang members beat him up. Friends also testified that Berkley often used drugs, including crack.

According to court records regarding Berkley’s history, he often told friends that the “best way to relieve stress was to unload a clip into someone’s head.”

Prosecutors also accused Berkley of assaulting his mother and, as a student at Magoffin Middle School, a teacher and a female student, courts records show.

One witness also claimed that Berkley laughed when he read a newspaper article about Martinez’s death, prosecutors said in the records.

Berkley maintains his innocence, according to several Web sites that help death row inmates in Texas find pen pals.

In one Internet posting, Berkley asks for help in his legal research and proclaims his love for his 13-year-old daughter. Her whereabouts and the whereabouts of the girl’s mother are unknown.

“I am innocent and I know everybody says that, but I have VERY VERY strong proof here in my cell. I have had court-appointed attorneys throughout my appeals and they have not done good jobs, so I have been representing myself in court,” Berkley wrote in the posting, which he signed with his nickname, “Ghost.”

Macias said he thought Berkley got as fair a trial as possible.

“I don’t think he would have gotten a fair trial anyplace else in Texas, and he got the fairest he could here in El Paso,” Macias said.

Prison officials said Berkley would be executed through injections of three different drugs.

The first drug, sodium thiopental, would sedate him. A second drug, the muscle relaxant pancuronium bromide, would collapse his diaphragm and lungs. The third drug used, potassium chloride, would stop his heart.

Prison officials said executed inmates are usually pronounced dead within seven minutes. The cost per execution for the drugs used is $86.08.