Tuesday, March 19, 2013

Senate committee approves expansion of forensic commission jurisdiction

The Texas Senate Criminal Justice Committee today approved SB 1238 by Senators Juan "Chuy" Hinojosa and Joan Huffman expanding the jurisdiction of the Texas Forensic Science Commission in the wake of a limiting Attorney General opinion sought during John Bradley's ill-fated chairmanship. The bill allows the commission to investigate non-accredited forensic disciplines - like arson and fingerprinting - in addition to accredited crime labs. A committee substitute stripped out medical examiners from the commission's jurisdiction, which is a tad odd because the FSC has been dominated by medical examiners. But commission staff say that, if they were tasked to look into allegedly shoddy autopsies, they would have time to do little else. My boss Jeff Blackburn testified about the arson review that the Innocence Project of Texas is performing with the state fire marshal (which is a topic that earned Jeff few new friends when he spoke yesterday at a statewide conference of fire investigators that's currently happening in Austin).

The FSC has no shortage of critics. Some in the labs dislike the oversight and there are reformers who consider it a toothless tiger. Granted, as a regulatory body it possesses little authority. But there are also major problems at forensic labs that would not have come out without their investigation. To the extent it's true sunlight is the best disinfectant, IMO that's still an important role to play.


Anonymous said...

Under SB 1238 the Governor gets full control of the members chosen to the Commission. Why?
Do we really want a full commission made up of Bradley-minded individuals?

Gritsforbreakfast said...

The Governor's appointments besides Bradley were fine. Do you imagine any of Texas' other statewides would be better? He won't be governor forever.

Carole Jean Powell said...

Depends on the latest embalming technology. LOL

dfisher said...


As I had to explain to Senator Whitmire's assistant, the reason the forensic science commission can't review autopsy reports generated by medical examiners and TMB licensed physicians.(CCP 38.35{f})The reason is as follows: "TX Medical Examiners are "Judges" under the statute,(CCP49.25)charged with conducting "Inquest", not autopsies. TMB Licensed physicians only perform forensic autopsies under an Order from a Justice of the Peace, so autopsies are operations of the Judiciary and judges don't generate evidence.

Inquest are "Examining Trials" as ruled by the Court of Criminal Appeals.(AG Opinion, 1948, V-538)In that opinion the AG wrote:

"The County Attorney was present at the inquest in the *legal conduct of his office,

Article 977, which prescribes procedure in inquest proceedings, reads in part: “If any other persons than the justice, the accused and his counsel, and the counsel for the State, are present at the inquest, they shall not interfere with the proceedings. No question shall be asked a witness,
except by the justice, the accused or his counsel, and the counsel for the State.”

Article 26, V. C. C. P,, reads, in part:

“The County Attorney shall attend the terms of all courts in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county.”

In the case of Meyers v. State, 26 S. W. 196, an inquest had been held. The testimony of a witness was taken in the presence of the defendant and his counsel, who were offered the privilege of cross-examination, which offer was refused. The witness died and on trial the defendant objected to the evidence taken, because It
was taken at an inquest. The Court of Criminal Appeals said: “It seems wholly Immaterial whether the justice styled' the proceeding an ‘inquest’ or an ‘examining
trial’.. . . " and held the evidence admissible on final
trial of a charge of murder against the defendant. The Court held that the justice of the peace may hold an examining trial while holding an inquest. In either such
case the defendant may cross-examine witnesses and the County Attorney has the duty to be present and represent the State."

As you can see from this ruling that has never been challenged or reversed, Inquest and formal Inquest Hearings are civil rights of a defendant to be present to cross examine the witness. This is before the finding of the death has been ruled a homicide and before a DA takes the case to the grand jury.

Is it any wonder the State, Legislature and DA's are fighting me so hard on this issue.

Just imagine how different Michael Morton's case would have gone had the Williamson CO. JP performed the required statutory Inquest? And why hasn't Norwood's attorneys requested that inquest before the on-going trial? Any JP in a county can re-open, or perform an inquest, if one was never conducted, or there is evidence leading the elected JP to believe there are relevant issues that need addressing.

Under the statute, Inquest are required before a defendant can be charged with a death and taken to trial.

OH! And by the way, the forensic science commission statute does not allow judges to be commission members.

Hello Jeff Blackburn, where are you?

Gritsforbreakfast said...

The answer to that last question, dfisher, is usually "Amarillo."