Members of Texas Moratorium Network and others are in Houston this morning to attend the meeting of the Texas Forensic Science Commission. We intend to let Rick Perry’s appointed chair/puppet John Bradley know that it is Texans, not just “New York lawyers”, who are concerned that our state government suffered an epic FAIL and may have executed an innocent person. We demand the investigation into the Willingham case be made the highest priority of the Commission and of the State government of Texas.
If Rick Perry had done his job properly as governor, the people of Texas would not have to be worried now that an innocent person has been executed in our names. The only person who has politicized the work of the Texas Forensic Science Commission is Texas Governor Rick Perry.
Todd Willingham’s last lawyer, Walter Reaves, has written a blog post on what he expects at Friday’s meeting of the Texas Forensic Science Commission in Houston:
I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission. Basically, the memo says they don’t have jurisdiction to do anything. They concluded that they do not have “discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science.” The complaint must involve a “discipline” recognized by the DPS and accredited by DPS. In practical terms, that means they can’t investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.
I decided not to talk about that decision, because by now everyone knows what to expect from the commission. Their goal – at least under the leadership of John Bradley – has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement. He has successfully done what many lawyers attempt – avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.
What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn’t get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.
DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity. One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.
Another thing that struck me, was the definition of what is a forensic discipline. If it’s not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature’s exemptions – latent fingerprint examination and breath tests. If those two areas don’t involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their “scientific” their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.
The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting – they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.
Below is the memo that Walter Reaves refers to in his blog post.
The Texas Forensic Science Commission has posted its agenda for its meeting in Houston on July 23, 2010 at the Doubletree Houston Intercontinental Airport, 15747 JFK Boulevard, Houston, Texas 77032 (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.
Forensic panel must resist chair’s efforts at sabotage
By BARRY SCHECK and PATRICIA WILLINGHAM COX,
This Friday, the Texas Forensic Science Commission (TFSC) is meeting in Houston to discuss, among other things, the status of its inquiry into whether arson investigations across the state have been based for many years on outdated and discredited scientific analysis and that the Texas criminal justice system has failed to recognize this fact. The inquiry arose from two cases — those of Cameron Todd Willingham and Ernest Willis — in which arson had been found and both men were sentenced to death.
In Willis’ case, the system identified its error when Ori White, the prosecutor responsible for retrial after appeal, relying on the expertise of Dr. Gerald Hurst, realized how wrong the original arson analysis was. He promptly moved to dismiss the case, and Willis was ultimately pardoned on the grounds of actual innocence.
Cameron Todd Willingham was not so lucky. Despite asserting his innocence, he was executed in 2004 based on the same arson evidence that prosecutor White — and the arson community nationwide — had realized was scientifically baseless. Before Willingham was executed, Gov. Rick Perry ignored a plea from Hurst, the expert Ori White relied upon, that arson analysis in Willingham’s case was plainly unreliable.
Our interest in these issues is not abstract. One of us, Patricia Cox, is a cousin of Cameron Todd Willingham. The other, Barry Scheck, is co-founder of the Innocence Project, which exonerates the wrongfully convicted through DNA evidence.
In May 2006, we asked the TFSC to undertake this inquiry about arson evidence. We submitted a 48-page report from an independent panel of the nation’s leading arson investigators, which concluded that the scientific analysis used to convict Willingham was not valid. The commissioners then engaged their own national expert to review the matter, who agreed that the forensic analysis used to convict Willingham was wrong — and further, that experts who testified at Willingham’s trial should have known it was wrong at the time. Days before that expert was to present his findings, Perry removed three commissioners, including the chair, Sam Bassett, and appointed Williamson County District Attorney John Bradley as the new chair. Bradley immediately shut down the Willingham hearing.
In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.
Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”
Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.
In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.
And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.
Rather than becoming mired in bureaucratic shell games, the commissioners should take their cue from the FBI, which, after learning that a scientific test it used for three decades to do composite bullet lead analysis was unreliable, not only stopped using this flawed science but systematically reviewed its old cases and notified prosecutors across the country when it could no longer stand behind the testimony of its own agent examiners. The same should be done in this instance.
The people of Texas deserve a justice system they can believe in. But if commissioners keep allowing Bradley to rewrite the rules and sabotage the commission’s mission, their ability to redress the forensic problems that have plagued the criminal justice system in Texas will never materialize.
Scheck is co-founder of the Innocence Project; Cox is a cousin of Cameron Todd Willingham.
Texas Moratorium Network (TMN) is a non-profit organization with the primary goal of mobilizing statewide support for a moratorium on executions in Texas. Significant death penalty reform in Texas, including a moratorium on executions, is a viable goal if the public is educated on the death penalty system and is encouraged to contact their elected representatives to urge passage of moratorium legislation.
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