Tuesday, November 10, 2009

Secrecy at forensic commission not justified based on weak investigative powers

I'm headed up to the capitol a little later this morning to watch the Texas Senate Criminal Justice Committee hearing on the Forensic Science Commission at 10 a.m., where new commission chairman and Williamson County DA John Bradley will explain to the committee why he shut down all commission activities immediately upon his appointment and henceforth wants to operate in secret. (Go here for a live feed of the hearing and a press conference by Sen. Rodney Ellis afterward.)

The Fort Worth Star Telegram has a preview story this morning about the hearing, quoting Sen. John Whitmire saying the FSC could emerge from this controversy stronger and more effective than ever. I hope so. At the same time, Bradley is already making obfucscatory claims that make me think his agenda is to conceal the truth and avoid debates over faulty forensics instead of encouraging reform. For example, he told Texas Lawyer recently:

“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. ...

“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.

Bradley is confusing the FSC with agencies that investigate individuals on allegations of negligence or misconduct. But this is a horse of a different color. Bottom line: The Forensic Science Commission is not a regulatory agency and has no power to punish anyone. Nobody's due process rights are implicated the way they are, say, when a police officer is investigated by Internal Affairs. The FSC exists to investigate the validity of forensic science and lab practices in Texas and encourage public debate, not to indict or accuse individual actors. It is weak by design, largely because Governor Perry opposed giving it any real power.

Mr. Bradley's excuses for seeking secrecy at the FSC don't hold water. Agencies like the Judicial Conduct Commission that evaluate specific allegations against individuals and have authority to punish them may justifiably maintain secrecy throughout their investigation, but the FSC possesses none of those types of powers. It's simply not a valid comparison.

Investigating people may justify secrecy. Investigating science requires openness.

RELATED: See a Dallas News editorial outlining their hopes for today's hearing.

UPDATE: I'll write up today's hearing tomorrow morning, but in the meantime here's some of the initial MSM and blog coverage:

MORE:

33 comments:

Anonymous said...

The hue and cry over the leaked Beyler report and the Willingham case are EXACTLY why Bradley is right to want the investigative activities of the FSC to be done in private. Because of the way the Beyler report was handled, that whole investigation has become politicized. You yourself, Grits, jumped on the bandwagon and painted the local officials in Corsicana as a bunch of "hicks" without them being afforded an opportunity to officially respond. Because of the way this whole matter was handled, any number of peoples' reputations were potentially harmed by the the mainstream media and in blogs such as this one. What purpose was served by prematurely releasing this report other than to possibly make Perry look bad before the primary. As I recall, even you have questioned whether the controversy over the Willingham case might have caused people to become distracted from the overall purpose and objective of the FSC. Seems to me, if the "investigation" had been conducted in private, and a comprehensive report issued at the conclusion; then everything could have been opened up and objectively evaluated at the end. It wasn't as if there was any particular need to hurry to disclose this information. Willingham is long since executed and the arson science standards of the early 90's have almost universally changed and improved in the interim.

Whe the FSC was established in 07, many around the capital were nearly certain that it was simply going to become a "Trojan Horse" to for the anti-death penalty folk to launch attacks against the death penalty. They way the FSC handled the Willingham "investigation," it appears those concerns appear to have been well founded.

At the end of the day, I'd be willing to bet that Mr. Bradley's efforts to restore some measure of objectivity and professionalism to the FSC will ultimately be a good thing for forensic science in the courtroom. For those of you who are so quick to smell a "conspiracy" because of recent events, wouldn't that be something?

halides1 said...

Scott,

You are right to focus science, and science functions best when there is open debate. The distinction you draw is a thoughtful one.

Chris

Gritsforbreakfast said...

8:36 - I never used the word "hicks" so don't put words in my mouth, especially if you're too cowardly to write under your own name..

And what do you mean they never had an opportunity to "officially respond"? Corsicana officials issued media responses every other day - I only commented on what they said. Welcome to the blogosphere.

Beyler's report on the arson forensics was and is "final." It was work product the taxpayers paid for and they should get to see it, undoctored in secret, closed-door meetings by political appointees. The FSC can release it's own report later, but the independent analysis of an expert hired to present his opinion stands on its own as a document that merits release, and whose release is required under the public information act.

The "Trojan Horse" line is BS - these were all Rick Perry appointees. Why do you think he would populate such a Trojan Horse with his own enemies? Geez! Don't worry, the black helicopters aren't circling and nobody's out to get you.

If Bradley approaches his task with integrity and doesn't delay the commission's work for political purposes or let political agendas obfuscate scientific analyses, I'll admit my fears were unfounded. But his actions so far have inspired little confidence.

Faceless Man said...

Anon 8:36 must be from Smith County where law enforcement, prosectuors and the judiciary are beyond reproach.

Anonymous said...

Does anyone believe we would have ever even heard of the Beyler report if the commission's activities were already secret? The reason public officials want secrecy is so that they can control what the public finds out about. The reason Bradley wants secrecy protection is so that he can cover up any information he doesnt' like.

Anonymous said...

Does the first poster believe that the public is so stupid they need to be protected from information?

Anonymous said...

Wasn't Beyler hired by the commission? If so, wasn't he paid by taxpayer funds? As a taxpayer don't I have the right to see a report paid for by taxpayer funds?

Anonymous said...

Ummm, Grits, you might want to go back and look at HB 1068 (Texas Code of Criminal Procedure Section 38.01) before you call B.S. on that Trojan Horse argument. By statute only 4 of the 9 commissioners are appointed by the governor and one of those has to be chosen from a list furnished by the defense bar. The rest are appointed by the Lt. Governor and A.G. from lists furnished by various acedemic institutions. Curiously, only one prosecutor was on the commission, and he too, was chosen by the governor from a list furnished by the prosecutors' association.

If you look at the enabling legislation, it's pretty obvious that the FSC was on an illegitimate "witch hunt" of questionable legality when it began investigating the Willingham case to begin with. It wasn't as if they were conducting any sort of investigation of contemporary crime laboratory malfeasance--e.g., the Houston Police Department Crime Lab. Instead, they chose to analyze an arson case from back in 1991 which involved an essentially local investigation and arson standards which have already changed and improved in the last FIFTEEN YEARS (if you recall, the principal basis for Beyler's criticism was that the arson investigators in Willingham had used standards which were no longer approved under CURRENT practice).

The only B.S. that I see was the articulated justification for the creation of the FSC to begin with and their rationale for investigating a capital murder case that was nearly 20 years old where was no real likelihood of accomplishing any scientific advancement in an area where the standards have already evolved. To me, this was just another backdoor effort to find the ever elusive "innocent" who was executed.

Anonymous said...

Anon: 3:31 You are in D-E-N-I-A-L. Lets just all bury our head in the sand and continue to believe there is nothing wrong with the Texas criminal justice system.

Anonymous said...

"If you look at the enabling legislation, it's pretty obvious that the FSC was on an illegitimate "witch hunt" of questionable legality when it began investigating the Willingham case to begin with."

Yes, I guess the search for the truth is just an illegal waste of time.

Anonymous said...

Let's see Anon 3:31, we've had close to 40 DNA exonerations and clear evidence of other wrongful convictions and we've just really begun to look into actual innocence claims in Texas. But, no, its not possible that an innocent person could have been executed. No way. So investigating the possibility is just an illegal waste of time. A few years ago I bet you would have said there was no way 40 people would be exonerated based on DNA evidence.

Anonymous said...

"Because of the way the Beyler report was handled, that whole investigation has become politicized."

Don't you think the fact that someone was executed on potentially faulty evidence is something the voters should be concerned about. When the governor tries to cover it up it seem perfectly right that it should be "politicized". Or, do you prefer ignorant and uniformed voters who can be led like sheep by people who want to preserve the status quo?

Anonymous said...

Sorry, I meant uninformed, not uniformed. I've got to start proofreading.

halides1 said...

Anonymous at 3:31,

I am baffled by your use of the word "current." The Beyler report (and the Hurst report, for that matter) make it clear that the Willingham investigation was flawed by the standards of its day. However, the Beyler report covers more than just the Willingham fire.

Chris

Gritsforbreakfast said...

3:31 - Exactly WHO are you saying surreptitiously appointed anti-death penalty "Trojan Horse" types to the FSC - the governor, the AG or the Lt. Gov.? None of them are anti-death penalty zealots to my knowledge, but you seem to think they had some weird, secret anti-DP agenda. Exactly which statewide GOP officeholder are you (anonymously) accusing of aiding and abetting death penalty abolitionists?

Also, the FSC really examined two arson cases - Willis and Willingham - and Willingham's was a relatively recent case when you take into account the faulty arson science was only identified in 2004 and the FSC received the complaint about the case in 2006.

RAS said...

Grits, any talk in Austin about the secrecy surrounding the riot in Al Price that sent 5 to 7 staff to the hospital?

Anonymous said...

I think its interesting Bradley is talking about the qualifications of the members of the commission. What the qualifications of "Bubba Fire Marshal" vs. someone like Dr. Beyler. Someone correct me if I wrong but I believe most fire marshals are just firefighters who were sent to the police academy. Most of them had no investigation experience before becoming fire marshals. They go through a 14 week police academy that provides no training in fire cause investigation. I assume they probably sent to some school for this type of investigation that at most lasts a few weeks. There is no college degree requirement and I would bet that few fire marshals have a college degree.

I haven't looked at Dr. Beyler's resume but I assume since he is referred to as Dr. that he has a PHD. This means that he has spent several years studying the science involved.

Based on qualifications alone who is more credible? "Bubba Fire Marshal" or Dr. Beyler?

Anonymous said...

So did you go to the hearing today, Grits? Am I correct that since the founding of the FSC in 2005 they've only investigated THREE cases? And that two of those were arson cases?

How was it that the Willis and Willingham cases were referred to the FSC? Did they come from the Innocence Project? Who made the decision to hire Beyler and how was that decision made? Was he really paid 30 grand?

Regardless of what the motives were behind the particular appointments, it seems that the lack of standards and procedures allowed the FSC to become hijacked by those who advanced a broader agenda, i.e., criticism of the death penalty.

You yourself have expressed concerns about whether the FSC's investigation into the Willingham case might have created a distraction from the FSC's broader goal of improving the work product of crime labs in Texas. I'll submit the ill-informed comments posted by the posters on this blog as Exhibit "A" in support of that proposition.

Anonymous said...

Interesting story by a fellow inmate of Willingham's, claiming his wife was sleeping with one of the guards:

http://deathpenaltynews.blogspot.com/2009/11/todd-willingham-was-good-friend-of-mine.html


I bet nobody believes him because he's a felon. They believe felons who atre snitches just fine, but not felons who proclaim someone's innocence.

halides1 said...

Anonymous at 3:31 PM,

Suppose that another fire occurred in the city of Corsicana tomorrow and that someone were charged with arson and defended by Mr. Martin. What would be different? Based on their recent comments, very little. The Fire Chief and Mr. Martin still don’t seem to have a modern understanding of what does or does not constitute evidence of arson. As long as that is the case, it sounds to me as if someone, perhaps this commission, has a job to do.

Chris

Gritsforbreakfast said...

Yes I went to the hearing, 4:53, but your self-interested spin on the facts misrepresents things. The FSC was founded on paper in 2005 but didn't have a full roster of appointees, a budget, or begin to meet until FY 2007. They've analyzed 30 formal complaints since that time but only three have so far been elevated to full-blown, formal investigations where they hired outside experts. Their budget does not permit very many more than that. Even those three, now, Bradley has shut down until he can write rules (although we also learned today the Lege did not give the agency rule making authority). Bradley says new rules will take until long after the March primary to write and implement (surprise, surprise). I probably won't write it all up until tomorrow morning.

The rest of your assumptions about Trojan Horse motives of the FSC's creators weren't supported at all by what was said at the hearing - quite the opposite, actually. Go here to watch the hearing for yourself. And try to listen to everything that's said, don't just cherrypick fact-bites that support your assumptions and ignore everything else.

Anonymous said...

"I'll submit the ill-informed comments posted by the posters on this blog as Exhibit "A" in support of that proposition"

That's an interesting statement coming from someone advocatig secrecy in government which will result in people being less informed.

Anonymous said...

I'm listening to the recording of the commission meeting right now. Two things in Bradley's testimony strike me so far. First, his call for establishing policies and procedures is a stalling tactic. From his testimony one would find it amazing that the commission has accomplished anything without his wisom and guidance. Second, he wants the Texas Rangers to help them establish investigative procedures. What a joke. Lets get Ranger Kemp who totally F'd up the Mineola Swinger's Case by totally violating all established protocols for this type of investigation to advise this commission on establishing appropriate investigative procedures. Give me a break. He mentioned the board is made up of 7 scientists and 2 lawyers. I bet those scientist are much more capable investigators than the Texas Rangers are. This is all just about delaying and covering up.

Anonymous said...

Its funny to watch people try to put a cat back in a bag.

Boyness said...

Guess what, Prosecutors in Texas lie with ease. The law and order atmosphere that permeates this state allows and encourages it. All Bradley wants to do is what he has been doing. As much in total secret as possible so the public wont know how much he really stinks!

Anonymous said...

Actually the Rangers typically do an excellent job investigating crimes... much better than any other agency in Texas. It's not even close. They tend to follow ALL the leads leaving no stone unturned. Good Ranger reports can approach FBI quality. You'd be surprised. I was.

Anonymous said...

Still listening to the hearing. A little off topic but I was listening to the Senator talk about the thousands of unopened rape kits in the Houston crime lab. It occurs to me that if we weren't spending so many of our resources arresting pot smokers we might could put those resources into going after serious crimes. The fact ist that serious crimes are falling by the wayside while we spend all our resources on the war on drugs, a war that has been lost.

Anonymous said...

The Willingham case is not about the death penalty. The person who has posted several times here is trying to make it about the death penalty by accusing others of doing that. It is about wrongful convictions. One of the senators in the hearing made a good point that there could be many others sitting in prison based on faulty science used in arson investigations. Railing against the anti-death penalty crowd is a distraction. Lets address the real issue: Wrongful convictions.

Anonymous said...

"Actually the Rangers typically do an excellent job investigating crimes... much better than any other agency in Texas. It's not even close. They tend to follow ALL the leads leaving no stone unturned. Good Ranger reports can approach FBI quality. You'd be surprised. I was."

If that's true then the Mineola case and Ranger Kemp are not typical. I would hope that lying on the stand, as Kemp did, is also not typical Ranger behavior.

Anonymous said...

Does anyone remember Wesley Styles, the Texas ranger who helped frame Clarence Brandley? There are bad apples in every law enforcement agency.

But, hey, Grits, any chance of a bloglet on the topic of J.P. Galligan the former military prosecutor and judge who has got himself hired to represent Major Hasan, the Fort Hood suspect. He's kicked off his representation by referring to the fact that his client is "coherent" and "smart" and that Hasan requested a lawyer immediately the cops tried to question him. (A fact that would be inadmissible under Texas law, although I confess I don't know about courts martial). And the very fact that he's talking to the media at all about his client's understanding of things i.e. a breach of attorney-client privilege ... especially when a mental status defense seems highly likely ... None of this bodes well for Hasan's right to a fair trial ...

Anonymous said...

Grits, any talk in Austin about the secrecy surrounding the riot in Al Price that sent 5 to 7 staff to the hospital?

Gritsforbreakfast said...

6:37, I've heard nothing about it beyond your question, but I'm a bit out of the loop on TYC stuff these days.

RAS said...

Catherine Evans is the least of TYC's problems.If the job market rebounds significantly the mass exodus from TYC will cause what? 20 to 1 staffing ratios? 60 or 70 hour weeks? State troopers on the dorms? If the assaults on staff continue to increase in freguency it won't matter what the job market is. Read 'TYC - In The Trenches', I think most of the blogs aren't exagerations.