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,
INNOCENCE PROJECT:

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things, the status of its inquiry into whether arson investigations across the state have been based for many years on outdated and discredited scientific analysis and that the Texas criminal justice system has failed to recognize this fact.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.

The State Commission on Judicial Conduct has officially found that Texas Court of Criminal Appeals Presiding Judge Sharon Keller has cast “public discredit on the judiciary or the administration of justice” and “did not accord Richard with access to open courts or the right to be heard according to law”. They also found that Keller’s conduct constitutes “willful or persistent conduct inconsistent with the proper performance of her duties as a judge”.

In 2007, Texas Moratorium Network filed a judicial complaint against Keller after she said “we close at 5” on the day of the scheduled execution of Michael Richard. Today the State Commission on Judicial Conduct issued its decision and reprimanded Sharon Keller with a “Public Warning”.

The people of Texas have been publically warned today that we have an ethically compromised judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law, yet she has been allowed to keep her job. Sharon Keller’s actions were not in accordance with the accepted principles of right and wrong that govern the conduct of her profession as a judge. This is the worst case scenario for Texas, because now we know that the problems in the Texas death penalty system reach to Texas’ highest ranking criminal appeals court, and yet the judge who closed the doors to justice remains on the Texas Court of Criminal Appeals.

A public warning is useful, but it is not enough. Sharon Keller should be removed from office. The public warning tells us that if you seek justice in Texas, proceed with caution because Sharon Keller is the presiding judge of the Texas Court of Criminal Appeals.

The Texas Legislature can help restore integrity to the Texas Court of Criminal Appeals by impeaching and removing Keller from office. We now have the findings of fact from the State Commission on Judicial Conduct, so it is confirmed that Keller has brought discredit to the Texas judiciary by her misconduct hendering access to justice. It is up to the people of Texas now to take the findings of fact and act on them by seeking to remove Keller from office through their elected representatives using the impeachment process or at the ballot box in 2012 when she is up for re-election. Since Keller is not up for re-election for another two years, it is in the best interest of justice that the Legislature removes her from office.

In a post on the Texas Moratorium Network blog on October 3, 2007, we said “Texas Court of Criminal Appeals Presiding Judge Sharon Keller should resign or be impeached and removed from office for her conduct regarding the execution of Michael Richard. As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity”.

News from Illinois:

Gov. Pat Quinn would maintain Illinois’ 10-year moratorium on the death penalty while his Republican opponent, state Sen. Bill Brady, would lift it, the two candidates’ campaigns said this week.

Their comments come at the same time as the Illinois Coalition to Abolish the Death Penalty released the results of a poll it commissioned showing that a majority of Illinois registered voters prefer some penalty other than death for the crime of murder.

The poll also found that fewer than 40 percent of registered voters even know Illinois has a death penalty.

“We really view the results as verifying what we already knew,” said Jeremy Schroeder, executive director of the coalition. “People assume there is a slight preference (for capital punishment). That’s not reality.”

Quinn’s campaign said the governor has no “immediate plans” to lift the moratorium on executions that was put in place by then-Gov. George Ryan in 2000. Both ex-Gov. Rod Blagojevich and Quinn have maintained it.

“Although he supports capital punishment when applied carefully and fairly, he is deeply concerned by the possibility of an innocent man or woman being executed,” campaign spokeswoman Mica Matsoff said in a statement. “He believes the current moratorium gives the state an opportunity to reflect on the issue and create safeguards to make sure that the death penalty is not being imposed improperly in Illinois.”

The Texas Tribune’s Brandi Grissom has an audio interview with Brad Levenson, a deputy federal public defender in California, who will lead the first ever Texas Office of Capital Writs starting Sept. 1. His new job will require him to represent Texas death row inmates who claim their trials were botched and that they were wrongly convicted.

In one audio snippet, Levenson says he has a moral and ethical opposition to the death penalty and will work tirelessly to defend his clients on Texas death row.

Visit the Texas Tribune to hear the audio recordings.

From the Tribune:

Texas lawmakers created the office in 2009 after a series of investigative reports and studies of the criminal justice system revealed serious problems with the quality of legal representation for indigent defendants on death row. Some of the lawyers whom judges had appointed to represent capital defendants had no death row experience, some had mental illness, some had abandoned their death row clients, and some of the lawyers chosen by judges were dead.

So lawmakers created the Office of Capital Writs to provide better representation for people on death row who can’t afford to pay their own lawyers to challenge their sentences. Levenson, who has extensive experience with post-conviction cases in California, has only tried one such case in Texas, which has the busiest death row in the nation. And even before he’s opened his office, he must deal with a 5 percent budget cut. He’ll have to hire about 10 staffers and work about a dozen cases a year with $991,000, down from what was supposed to be a $1 million budget. But Levenson said he’s up for the challenge.

Levenson said Texas wasn’t even on his radar screen until 2008, when his office was asked to represent Texas death row inmate Clinton Lee Young. He was convicted of murdering two Texas men in 2001, and a Midland jury sentenced him to death. But Young and his lawyers claim the prosecution withheld evidence at trial that could have helped him, and last year the Texas Court of Criminal Appeals sent his case back to the trial court. Working on that case — and traveling in the Lone Star State — piqued Levenson’s interest.