Sunday, February 27, 2011

Questioning John Bradley: Forensic Science Commissioners up in Senate Nominations Monday

(UPDATED BELOW WITH DETAILS FROM THE HEARING) 

Governor Rick Perry's appointees to the Texas Forensic Science Commission are up in the Senate Nominations Committee tomorrow. Senators should use the forum to force Commission Chairman John Bradley to answer all the questions he's dodged in the past - especially about the ways in which he's delayed or shut down all the Commission's activities after his appointment in 2009. The other commissioners who are up IMO have done a good job; even if I haven't always agreed with them on every jot and tittle, I've never once thought they were acting in bad faith. That hasn't always been true of the chair.

There are lots of unanswered questions for the committee to ask Mr. Bradley. He only talks to friendly media and limits his comments to tightly constructed political barbs instead of honest answers to legitimate questions, so there's a lot of untrod ground to cover. The Dallas News published a list of written questions he repeatedly refused to answer, for example, on the grounds that they sounded like they came from a "New York lawyer." I supplied satirical responses on Bradley's behalf.

They could also check with members of the House Public Safety Committee, who asked Bradley to appear to answer questions but were snubbed with a no-show. There are plenty of unanswered questions out there if they start looking, and the nominations process would be a good place, finally, to get responses.

Regular readers will recall Bradley's first official act as chairman was to unilaterally shut down a long-scheduled hearing to evaluate arson science used in the Todd Willingham and Ernest Willis cases, a move which was widely interpreted as an effort by Bradley and the Governor to improperly delay an inquiry into faulty forensics used to justify putting Mr. Willingham to death until after the November 2010 elections. After Bradley made the rounds in the media calling Willingham a "guilty monster,"  he was scolded by other commissioners at an FSC meeting, where "six of the seven other commission members present at the meeting voiced disapproval or discomfort" with Bradley's statements. (When commissioners finally heard the expert testimony earlier this year, it was brutally damning.)

Having shut down not just commission investigations but a series of planned educational events, Bradley proceeded to railroad through a set of policies and rules at the next commission meeting, leaving all pending business off their agenda and giving commissioners only a single day after receiving a draft to vote on them. After wasting a full meeting securing votes for these policies, he pointed out that the AG advised the FSC has no rulemaking authority and that the rules and policies they'd just approved were only nonbinding guidelines that did not in any way restrain the commission. So in effect, Mr. Bradley stopped all the agency's productive activities to waste time debating and voting on policies he knew the agency had no authority to enact. In a post evaluating the Chairman's performance at that meeting, Grits accused Bradley of "Usurping power from commissioners," "Hijacking the meeting agenda," "Concealing key activities from commissioners," Wasting commissioners time," "Ignoring 'process'," and "Dissembling." I doubt any neutral observer who watched his bullying performance would disagree.

The only case the Commission has voted to accept since Mr. Bradley came onboard involved allegations against the Austin PD crime lab that several outside entities have already looked into and determined to be unfounded. I attended the screening committee meeting involving the case, where Dr. Nizam Peerwani, a medical examiner from Fort Worth who will also face the Nominating committee tomorrow, strongly argued that the case had no merit and the FSC shouldn't waste its time. But, as Grits then reported, "Bradley said the Commission needn't only be the bearer of 'bad news,' and that it would be worthwhile to 'deliver a positive message' to accredited labs that affirmed the value of their work." He also made a very legalistic argument: That the screening committee should only determine whether the elements of the complaint met the minimal threshold for consideration by the committee, but insisted they should not evaluate the merits. Peerwani's opinion that the complaint was meritless, said Bradley, was appropriate for discussion with the full board, but shouldn't be a consideration at the level of the Complaint Screening Committee (one of several committees created under the chairman's above-described policies and rules). Peerwani demurred, declaring his intention to recommend against investigating the case, and gave an "Aye" vote to allow consideration by the full Commisssion.

At the meeting where the FSC took up the case, though, Dr. Peerwani could not attend because he was required to testify in court back in Fort Worth. Bradlley promoted taking up the Austin case for the same reasons suggested at the Complaint Screening Committee, sending a positive message, etc., but did not tell his fellow commissioners about Dr. Peerwani's objections! As Grits reported, "Peerwani's rather strong objections to spending resources on the Austin case weren't voiced in absentia when it was discussed on Friday. Instead, his Aye vote at the screening committee was portrayed as an endorsement that the FSC investigate, which was the opposite of my impression from my memory and notes. Be that as it may, the case has been delegated to an investigative committee whose first meeting date has not been announced." I think the committee should ask Dr. Peerwani about his opinions on the Austin case and then compare it to the record from the January FSC meeting where Bradley laid out the Screening Committee's recommendation. (If they need it, the national Innocence Project recorded video of the meetings.). The episode was an example in microcosm of how the chairman has run the committee: Saying whatever he needs to to get his way, even to the point of transparently misrepresenting facts or the opinions of others.

Besides questioning Bradley on efforts to deflect and distract the Commissioners from productive consideration of forensics (their mission), his politicized budget and hiring decisions deserve close review. Bradley has insisted on pushing through the creation of a General Counsel position from the Commission's limited budget, despite the fact that the Attorney General was already providing those services for free. The problem: The AG was giving advice that would allow investigations to go forward that Bradley wanted to shut down. The AG lawyer advising the FSC has always said they have authority to investigate cases like Willingham, Brandon Moon, and others dating from before when accreditation was required, but Bradley has requested a formal AG opinion seeking to overrule that advice. That's the context in which I view the creation of this unneeded General Counsel slot at the FSC: The chairman seems to be shopping for a lawyer who will give him the advice he wants for political reasons instead of a legal interpretation that's correct, and if he can't get that from an AG lawyer he'll seek to replace her with an attorney who reports directly to him. Plus, the tactic has the added benefit of bleeding scarce funds available for investigations, which he clearly wants to stymie, anyway.

Otherwise, hiring an attorney as the main staffer at the FSC would be an odd choice since a lawyer gives the commission no expertise at its main task of evaluating forensics and the salary diverts money that otherwise would have been used for functions that get more directly at the Commission's core mission. The General Counsel slot was created in January using monies that remain unspent mostly because the chairman shut down all the FSC educational events and investigations during calendar year 2010. But there's no money in their budget for the position, and in fact both HB 1 and SB 1 - the House and Senate budgets - would reduce the FSC's budget by roughly the amount of the new General Counsel's salary. Leaving ideology aside, that's just poor management.

Finally, there's the chairman's assiduous penchant for secrecy, violating the open meetings act at his first meeting as chair and seeking to close FSC deliberations and records to the public at every possible turn, a tactic which was rebuffed by his fellow commissioners.

Speaking of whom, I think the other commissioners should be asked their opinion of Mr. Bradley's performance, his proposals for conducting business in secret, his insistence on revisiting past AG advice and commission decisions on jurisdiction, the propriety of conclusory statements on the Willingham case, etc.. Perhaps most importantly: Ask Bradley's fellow FSC commissioners if they should be allowed to select their own chair from among their number instead of having the Governor pick? I guarantee the FSC would run a lot less contentiously and get a lot more accomplished if the majority on the commission were allowed to select their own chair. Bradley's shenanigans have alienated just about everybody who's witnessed them.

UPDATE (2/28): The Houston Chronicle editorialized today that the Senate should reject John Bradley's nomination. They say the Williamson County DA has "obstructed real debate and instead proceeded to perpetuate the governor's political agenda. He has delayed hearings unnecessarily. He has shown disdain for members of the commission and witnesses. He has proven himself to be an enemy of science, refusing to ask that arson be subject to state-of-the-art scientific analysis." They conclude, "We believe John Bradley has shown himself unwilling to engage in true scientific inquiry. He does not merit reappointment and the Senate should reject him." The Chronicle's Peggy Fikac reports that, though he's not on the committee, state Sen. Rodney Ellis plans to participate in the questioning.

MORE: Kuff chimes in.

FROM THE HEARING (2/28): Bradley feels free to just openly insult Sen. Ellis, accusing him of a conflict of interest because he chairs the national Innocence Project. Ellis retorted that if that was the case, Bradley had a similar bias as a hyper-aggressive, know-it-all prosecutor. Bradley's comments were laced with sneers and insults aimed at Ellis about "your bias," causing Chairman Deuell to bang his gavel and insist on civility. I'm not sure he's doing his nomination chances any favors with this performance. The senate is a small club and they don't take kindly to their members being openly disrespected.

Sen. Jose Rodriguez also raised serious concerns, particularly regarding the appearance of bias from Bradley's public statements. Rodriguez also asked about whether the TFSC should hold its subcommittee meetings in public, but he appeared not to know that Bradley's fellow commissioners explicitly overruled the chairman and insisted those committee meetings be open. In December, Grits attended the very first public meeting of the Complaints Screening Committee, which under Mr. Bradley's original rules previously had been closed to the public. MORE: Sen. Ellis got Bradley to clarify that the meetings were previously closed and that the change to make them public was recent.

Here's a fun exchange:
Bradley to Sen. Ellis: "You watch my back, I'll watch yours."
Ellis (to much laughter): "I'm glad I've got my bulletproof suit on."
Public testimony was pretty darn good, including exoneree Anthony Robinson and Bill Allison from UT's innocence clinic, the latter particularly critical of JB's chairmanship on the FSC. Regrettably, though, the video kept going out during the final twenty minutes or so of the hearing (I was watching online), so it was difficult to take down details from what was said. 

All the other nominations on today's agenda were approved unanimously but Bradley's, and the Committee had to wait for Sen. Jane Nelson to come back to approve his, a sure sign the vote was particularly close. When Sen. Nelson returned, Bradley's nomination was approved on a 4-2 party line vote.

Video of this morning's hearing has been posted here (click on "February 28, 2011); the FSC portion began roughly fifteen minutes in.

AND MORE: See initial coverage of the hearing from the SA Express-News' Texas Politics Blog, the Austin Statesman, the Texas Observer, and the Lone Star Report. Statesman columnist Ken Herman has additional commentary and video highlights.

17 comments:

Michael said...

I know you have to be careful, Scott, that you don't burn bridges, but the truth is that Bradley is a sleazebag who is only carrying out the orders of the man who appointed him -- the biggest sleazebag still in office in this state -- Governor Rick Perry. Perry cannot afford the embarrassment of his not having done something when he could have, or at least to honestly acknowledge the error of his ways by not considering there is a possibility that we have executed an innocent man or men. That would require that he and other Texans challenge the basic tenets of their belief system based on their misconception of Leviticus 24:17. On a related note, they are fiscal conservatives in name only, as you very appropriately explained in a previous post on Grits this past week.

The problem with the criminal justice system in Texas is that we have too many ideologues like Bradley, Perry, and Dewhurst, all of whom our state would be much better without. They carry on the slave-plantation mentality with which the system has been operated for the last 160+ years. Like it or not, though, the changes are a coming....and they know it. Going back to their belief system.... one day God will require an answer of them regarding their denials and deceit. What will they have to offer?

David RD said...

I agree with Michael. Bradley and his entire Wilco operation is quite sleazy and Perry appointed him with the sole purpose of killing this FSC at all cost and with any means necessary. Perry and Bradley have nothing more important to them than obtaining and keeping as much political clout and power as they can...at all costs. They don't care one bit about innocence or a persons life - they care only about power! There are several Perry appointees that the Senate needs to very very carefully look at and get rid of, many of these "friends and contributors" are in the Texas justice area. The legislature needs to take this critical power away from the Governor and place it in the hands of independent committees that would recommend QUALIFIED experts to the Legislature for appointment and hiring. The "GOOD OLD BOY" system needs to be GONE!!!

Gritsforbreakfast said...

Michael, I didn't feel like I was holding back too much. His public actions pretty much speak for themselves.

Anonymous said...

I don't see how you can criticize Bradley, Grits, without acknowledging that the whole Willingham FSC investigation was political from the get go. Everyone knows that the reason that Innocence Project of New York made the original complaint was to attack the death penalty in Texas, maybe get a finding that an innocent had been executed and perhaps make Perry look bad before the election. Just like that silly court of inquiry they pushed before Judge Baird. It's not that different from that anti-death penalty scheme to discredit Sharon Keller. These anti-death penalty zealots know they can't win at the ballot box so the have to try all these silly little back door attacks to accomplish their liberal goals. So Perry out maneuvered them through Bradley. Personally, I'm glad he did. If the FSC can't stay true to its original mission without becoming embroiled in contentious political disputes over capital punishment, I think the Legislature should sunset the whole thing.

Gritsforbreakfast said...

Who are the "liberals" or death penalty abolitionists on the Forensic Science Commission, 7:10, or for that matter on the State Commission on Judicial Conduct that went after Judge Keller? They're all GOP appointees, for heaven's sake. Blaming everything on the Great Liberal Conspiracy only works when there are actual liberals involved in the process to blame. This is a fight among conservatives - ones who believe science trumps ideology, and Bradley's cadre that believes the opposite.

A similar fight is taking place involving JB's brother on the state board of education, btw, with his brother taking a similar ideology-over-science stance.

Anonymous said...

Anonymous @ 7:30 sounds hauntingly like John Bradley.

Hopefloats said...

John Bradley seems to have gotten away with a lot over the years...as has Rick Perry. I find it amazing that he is allowed to hold any kind of office or position - hopefully the commissioners will stop his arrogance and require him to answer the appropriate questions. However, I have watched in horror over the years the unbelievable behavior displayed in Williamson County. Everytime a complaint that was unbelievable hit the new, he immediately settled the complaint out of court (with taxpayer money no less) to stop the bleeding in the news and went right on...this happened over and over. It would be interesting to find out how many lawsuits were settled during his tenure that were filed against Williamson County and were settled and just how much it has cost the county - I am sure the County would be floored. When there was some case that was covered in the news that would benefit him, he was quick to strut his stuff and weave his web of deceit. I think the State of Texas is better than that and hope we rid ourselves of these folks.
By the way - I find that the folks who bemoan and throw the Liberal term around usually are anything but a conservative - and in this case quiet a hypocrite.

Anonymous said...

So if so many people do not like Rick Perry, who voted for him? I did not and never have.

As for John Bradley, I do not know him, but items I have read regarding him, speak of under-handed tatics and only for his "self inficted aura".
Next election, be sure who you vote for***Rick Perry is out to be something more than Governor of Texas. He could not afford to go to DC for the governor's meeting but could afford to fly to CA for a GOP highlight.

Anonymous said...

"if so many people do not like Rick Perry, who voted for him?"

People who just vote based on party labels instead of actually bothering to look at the candidates. We need more parties or none, but the two party system is a disaster. Just look at redistricting. The whole goal is to create districts that take away our choices. :-(

Michael said...

Good job, Scott, keeping these people informed. On another note, tomorrow I will be in Austin and looking forward to the opportunity to discuss a proposal that would save more money than all others considered thus far. Amend 508.283(c), Tex.Govt.Cd., to permit parolees to receive credit for calendar time served in compliance with rules and conditions of parole.

A closer look at the relevant statutes results in ambiguity. First of all, a parolee is in the "legal, custody of the division." Moreover, 508.155(b) says that parole time is "calendar time" served. Moving to 508.142, we see that the parole term is to be calculated by subtracting from the sentence "calendar time" served. So, my reading of these two statutes taken together, is that when determining the amount of time a parolee is to serve, we need to subtract from his sentence any calendar time served -- whether that calendar time was served in the custody of the TDCJ-CID or the TDCJ-PD. Yet, there is a trump card.

Section 508.283(c) says that if a parolee who has never been convicted of any offense under 508.149(a), and who has not served half of his parole, is returned to the TDCJ-CID, he is not to receive credit for any of the time from the date of his initial release to his re-arrest. This means, he loses all calendar time served on parole, period! Side note: If a parolee absconds, say, I don't have a problem with his not receiving credit for the time he is at-large. But we have another statute to address that, 508.253. However, the way 508.283(c) is worded, there is no need for 508.253.

So why the ambiguity and seeming contradictions? Both statutes were enacted during the 56th Legislature in 1959. Without having the opportunity to read or listen to the minutes of those hearings (if they are even available) it should suffice to say that the good-ole boy system operated in Huntsville and Austin in the 1950's was anything but compliant with the civil rights of ordinary citizens. Heck, up to the 1970's we still had completely segregated prison units for God's sake!

Michael said...

My point is this: According to the Legislative Budget Board (LBB) Uniform Cost Reports, the average number of parolees returned to prison each year for technical violations only the last six years is 1,695. Additionally, the average number of parolees returned for new misdemeanor or felony offenses the last three years is 5,813. The average number of years technical violators spent in compliance with parole conditions prior to revocation the last six years has steadily increased, from 2.56 years in 2005, to 3.5 years in 2010. The six-year average is 3.04 years. The length of time parolees with new offenses spent on the streets prior to revocation the last three years has remained the same at 2.8 years. Thus, each year taxpayers bear the additional cost of supervising technical violators for 5,153 years more than judges, juries, and prosecutors intended them to serve; for violators with new convictions the number is 16,276 years.

Some of these offenders will serve the additional years in prison, at a cost of about $43 per day; others will serve the additional years on various forms of parole, ranging from active supervision at a cost of $3.74 a day, to super-intensive supervision, which costs $25.54 per day. If all offenders served the additional years in prison, the annual cost of the current 508.283(c) is as high as $336,328,155 (16,276 [years added to the sentences with new convictions] + 5,153 [years added to technical violators] x $15,695 [cost of supervision in the TDCJ-CID]). At best, if all offenders spent every minute of the additional years on regular active parole supervision, the costs are no lower than $80,144 ([16,276 + 5,153] x $3.74).

There is no way to determine how many of the additional years will be spent in prison or on what type of parole. While some may spend all the additional time in prison, most will spend portions of the additional time in prison and on parole. Averaging the two extremes, above, the annual cost of enforcing 508.283(c) as it is current written is approximately $168,204,149! This does not include the costs incurred by the Attorney General's Office in defending applications for writs of habeas corpus filed by offenders who have been punished beyond the terms given them by the courts. According to Reg Hargrove, the Attorney General's Public Information Coordinator, this amount cannot be determined, as their budget is not itemized per claims filed.

Everyone seems to be missing this huge cost savings. As a cost-saving measure, the legislature recently enacted 508.1555 permitting early termination of supervision for parolees who have been out and done well for an extended period of time. This is even more to the point: Why not allow offenders to receive credit for calendar time they actually served in compliance with their parole -- whether that was one week or ten years -- and why not allow that rule to apply regardless of the offense for which the individual was convicted? Either way, it is still calendar time served.

As I mentioned above, the statute in question was enacted by the 56th Legislature in 1959. It has been upheld by courts ever since. E.g., Joyner v. Moore, 233 F.Supp. 309 (S.D. Tex., 1964); Betts v. Beto, 424 F.2d 1299 (5th Cir., 1970); and Morrison v. Johnson, 106 F.3d 127 (5th Cir., 1997), cert. denied 525 U.S. 1081, 119 S. Ct. 823, 142 L. Ed. 2d 681 (1999). To justify their rationale in Morrison, the Court cited Cortinas v. U.S. Parole Comm'n, 938 F.2d 43 (5th Cir., 1991), as an example of a federal statute (since repealed) in which those on special parole were required to forfeit their street-time credit. However, a closer look at the former federal statute reveals no resemblance to the scheme in Texas.

Michael said...

The relevant federal parole statute relied on in the above holdings, since repealed, states in pertinent part, that the Parole Commission:
shall determine ... whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense, but in no case shall such service together with such time as the parolee has previously served in connection with the offenses for which he was paroled be longer than the maximum term for which he was sentenced in connection with such offense.
18 U.S.C. § 4210(b)(2)(emphasis added). The former federal statute goes on to state that:
[i]n the case of any parolee found to have intentionally refused or failed to respond to any reasonable request, order, summons or warrant ... the jurisdiction of the Commission may be extended for the period during which the parolee so refused or failed to respond.
18 U.S.C. § 4210(c).

Only federal defendants on "special parole" lost their street time. See 21 U.S.C. § 841. Specifically, § 841(c), since repealed, requires mandatory forfeiture of street time for special parole violators sentenced under that statute. Munguia v. U.S. Parole Comm'n, 871 F.2d 517, 520 (5th Cir.), cert. denied 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989). However, a special parole term was a punishment "in addition to, and not in lieu of, any other parole provided for by law." 21 U.S.C. § 841(c). The special parole term was also in addition to the sentence of imprisonment and was handed out to certain defendants convicted of drug-related offenses at punishment. See 21 U.S.C. § 841(b)(1)(B). Texas has no such policy or statute in which judges impose additional parole terms defendants are to serve upon completing their actual sentences. In Texas, the parole term is part of, not in addition to, the sentence.

At the very least, federal judges interpreting 508.283(c) have a misunderstanding of Texas law. More likely, having established relationships within the federal judiciary in the Fifth Circuit after 30 years of litigation in Ruiz v. Estelle, the Department has the judges in their pocket. Where the courts have failed to remedy this matter, it is the responsibility of the Legislature to intervene.

Any comments or suggestions from you and others is greatly appreciated. I will be in Austin tomorrow and hope to present this issue to the Senate Crim Just Committee. Your thoughts???

Anonymous said...

Ellis brought his A-game, it sounds like. Funny stuff.

Rage

Hook Em Horns said...

YES, I AM SCREAMING! I AM A GOD-DAMNED LIBERAL WHO SUPPORTS THE DEATH PENALTY! I JUST DON'T SUPPORT THE CHEATING, LYING, CORRUPT TEXAS CRIMINAL JUSTICE SYSTEM THAT HAS WITNESSED MORE DNA AND NON-DNA EXONERATIONS THAN ANY OTHER STATE.

THE TEXAS SYSTEM IS BROKEN IN MORE THAN ONE PLACE AND NEEDS FIXED. PERIOD. THE DEATH PENALTY IN TEXAS NEEDS TO BE ATTACKED BECAUSE OF THE CASES OF PEOPLE BEING SENT THERE WHO WERE INNOCENT.

HELLO????????

Anonymous said...

Since the committee voted on party lines for the nomination, I expect he will be confirmed, probably with a 19-12 semate vote.

Charles in Tulia

Anonymous said...

If it's 19-12, isn't it the case that he WON'T be confirmed because of the 2/3 rule?

David RD said...

I can't say this about all "conservatives" or Tea Party-sans or even Republicans - but, I can say it FOR MANY of them or for MOST OF THE ONES I HAPPEN TO KNOW - they don't believe in science in the first place. NO evolution, NO Global Warming, NO accurate history books, and especially NO G*D D**MN Forensic Science Commission!! They'd rather believe in that "Gut Feeling" of the fire investigator on the Willingham case.