Forensic Science Commission meets today, but does it have rulemaking authority? Some say "No"

(LIVEBLOGGING BELOW) This was received via email from the national Innocence Project out of NYC, which will webcast today's Forensic Science Commission meeting out of Harlingen:

As you are probably aware, the Texas Forensic Science Commission is meeting [this morning] for the first time in six months. This is the commission’s first meeting since Gov. Rick Perry suddenly replaced its chair and several of its members while it was in the middle of an investigation into the case of Cameron Todd Willingham.

The Innocence Project will stream live video of the meeting on our website. The meeting begins at 9:30 a.m. (Central) on Friday, January 29, and will run several hours. Newly appointed commission chairman John Bradley decided to hold the meeting in Harlingen, which makes it difficult for many interested parties in the state to attend. Those who cannot be in Harlingen can watch the meeting live online starting at 9:30 a.m. (Central).

The agenda for the meeting is here. The Willingham case is not on the agenda, which Bradley set, although it was on the agenda for the last scheduled meeting of the commission (which was canceled when Gov. Perry replaced the chair and several members). ... The agenda for tomorrow’s meeting does include a discussion of pending cases. Also, individual commissioners have the authority to place a discussion of the Willingham case on the agenda during tomorrow’s meeting.

Willingham was executed in 2004 for allegedly setting a fire that killed his children. Before and after his execution, leading experts found that there was no scientific basis for deeming the fire an act of arson. The Innocence Project formally asked the Forensic Science Commission to investigate the case in 2006. That request specifically asked the commission to determine whether there was negligence or misconduct in the forensic analysis that initially deemed the fire an arson and – importantly – to determine whether other arson convictions in Texas may have been based on the same kind of unreliable forensic analysis. Nearly two years ago, the commission unanimously decided to pursue an investigation, which proceeded in an objective, transparent fashion until October 2009, when the chair and several members were removed. For full background on the Willingham case, go to: http://www.innocenceproject.org/willingham.

I was also forwarded by the Innocence Project a letter they'd sent to every individual commissioner arguing why the shift in focus toward policies and procedures is unnecessary. When I asked this morning, they wouldn't post it online until after the meeting. But a notable portion of the letter reads:

We were surprised by Mr. Bradley's suggestions since the Commission has proceeded transparently, with regard for its enabling statute and Texas law, and with advice from the Attorney General's office throughout the process. The comments also raised questions for us about whether the Chair, without a majority vote of the Commission, might be able to unilaterally invalidate, alter or delay the Commission's ongoing work. This is of particular concern to us as a case that we submitted three years ago is now approaching the final stages of review by the Commission.

Consequently we asked the law firm of Weil, Gotshal & Manges to educate us about two related legal issues: (i) The proper procedures for decision making by the Texas Forensic Science Commission; and (ii) The relative authority of individual commissioners, inclusing that of the presiding officer. ... In summary,[Weil's] memo finds:

• The enabling statute for the Texas Forensic Science Commission did not provide the Commission with rulemaking power;
• The Texas Forensic Science Commission is not a "state agency;"
• The Commission appropriately established the policies and procedures that enable it to fulfill its statutorily prescribed duties;
• The business of the Commission is governed by parliamentary procedure, which directs that the powers of the presiding officer are generally ministerial, and that the will of the majority controls; and
• There does not appear to be any reason to further delay the Commission's pending investigations, and that it would be most appropriate in light of the Commission's statutory responsibility for the Chair or any Commissioner to propose that a vote be taken at the January 29th meeting to renew action on such investigations as soon as possible.

The legal analysis echoes what the Attorney General's representative has already told the Commission. The Commission sought and received speciffic and tacit approval about how it conducted its meetings from the Attorney General's representative who was present during your meetings. In short, it is clear that the Commission does not need to take time from its ongoing work to revisit its operating policies and procedures.

You can watch the proceedings here starting at 9:30. Sounds like commissioners who dislike the chairman's new approach may now have more ammunition to push back, if they choose to use it.

UPDATE (11:03): I've only gotten to watch bits and pieces so far, but a couple of commissioners were pretty unhappy that Chairman Bradley had begun drafting rules and issuing statements to the media without the knowledge or consent of other commissioners. The Commission never approved that work, the chairman was told, and they felt like he was going around them. Bradley replied with a tone-deaf retort that they should have known because he'd said he was working on new rules in his op ed, though he apologized if his fellow commissioners felt left out.

When a commissioner suggested that, instead of Mr. Bradley's unsolicited "rules," they instead take up the half-dozen "action items" listed in the minutes from the last meeting, the chairman declared that they would only discuss items listed on the agenda. The room appeared disgruntled, and rather than debate the matter further Bradley declared they would "take a break" and resume in ten minutes with a discussion of his proposed policies.

Bottom line, for somebody concerned about having procedures in place, some members think Chairman Bradley violated the commission's existing procedures by moving forward on unauthorized action items while ignoring the action items the group was working on before he came on board. That's a pretty plausible interpretation, if you ask me.

NUTHER UPDATE: (11:30) Chairman Bradley now is going down the detailed list of his proposed new rules and nobody on the commission is asking any questions or debating the sometimes rather arbitrary language. (One wonders what was said to whom during that break?) These rules are way too much for the commission to digest and vote on in one meeting when they'd never authorized their creation in the first place. I hope they vote to delay the rules to give more time for public vetting and that someone on the commission moves that all of their old action items be placed on the next agenda.

AND MORE: Now commissioners are speaking up, particularly about the narrow definition of "misconduct" that requires the FSC to prove an actor's behavior was "deliberate." One commissioner (I wish I could match names to faces!) said that evaluating individuals' culpability was outside the scope of the commission's charge to investigate science. Another said the requirement of showing "deliberate" misconduct meant too many errors would get a pass.

Bradley replied by saying the Legislature told them to investigate "misconduct," which implies passing judgment on intent. And Dr. Peerwani pointed out that cases could still be investigated as "negligent" if intent couldn't be proven. Annoyingly, Bradley's schtick was filled with comparisons to prosecutions and the rights of criminal defendants, but the FSC does not investigate individuals and has no power to punish them. Their focus is on bad science, not bad actors.

Unfortunately these proposed rules aren't available online, and commissioners only got them yesterday, they lamented. In an astonishing moment of hubris, Bradley announced he "cannot be held responsible" for failing to get commissioners' input on either the meeting agenda or the rules! He claimed doing so would have violated the Open Meetings Act. That seems highly unlikely. Other state commissions get such information to members in advance of their meetings.

AND MORE (11:51): Complaints were made that the most controversial sections of Mr. Bradley's rules are also the portions with no references to sources and appear not to rely on definitions and standards from other jurisdictions or the feds, who are currently in the process of addressing exactly these questions. Dr. Sarah Kerrigan said the FSC should wait for those national standards to be fleshed out, but Bradley said he wouldn't wait on the feds to act and the Commissioners in the room were more qualified than whoever the feds had assigned to the job. (Of course, Bradley didn't consult all the knowledgeable people in the room - he wrote the standards himself!)

(12:05): The AG rep described a "small gap" in the negligence and misconduct definitions (I don't have a copy so I can't be specific) that includes people who are aware of professional standards and fail to follow them but where the incident may not rise to the definition of "negligence" in the rules - a category the AG's rep said would likely make up a large number of cases submitted to the commission. The scientists on the committee didn't seem to understand the significance of what was being said to them on this score (and the defense attorney's rep isn't there), so they moved forward without changing the language or closing the "gap." Ouch!

(12:16) This just occurred to me: If the FSC is a "state agency" as Bradley contends (contradicting the Weil firm's interpretation), can they really enact these rules today, as the chair keeps saying? Don't they have to publish the rules in the Texas Register then hold a public hearing like everybody else? Surely Chairman Bradley can't just hand out a long set of rules the day before the hearing then push for a final vote the next day? For somebody concerned about "process," he's pretty quick to ignore such formalities!

(12:24): They're on a break. I wish these commissioners knew more about parliamentary procedure; Bradley's running the show on the agenda, but they get to make motions, too! Someone should have moved to add the other six action items from the last meeting's minutes and take them up first!

(12:28): Bradley wants the Commission to meet less often and for more work to get done in new committees yet to be created, whose chairs he wants sole power to appoint.

(12:43): Lots of pushback from several committeemembers on the chair's overreaching power in the rules, particularly by Dr. Kerrigan. They democratized the committees somewhat, requiring their membership to be approved by the whole committee and letting each committee name their own chair. These committees, according to Mr. Bradley, won't be subject to open meetings and don't have to post their agenda before they meet, which judging by his overall goals for the commission is probably in part why he wants to create them.

(12:50): A "Complaint Screening Committee" is the next Bradley innovation. Previously, the whole commission evaluated whether to accept complaints without the open meetings exemption. Bradley has a long, detailed list of case evaluation criteria here that nobody's questioning as they go through it. These rules really need more vetting before adoption.

(1:20): Dr. Kerrigan is asking all the right questions, particularly about the investigations committee structure, but there's a bit of what I'd dub a parliamentary procedure gap. Though the Commission supposedly operates under Robert's Rules, the chair is running the meeting based on "consensus," ironically. That gives him a big edge because it removes limits on the power of the chair. That adds to the edge Bradley enjoys from being the only one who's had more than 24 hours to look at the rules.

Those dynamics have combined to generate many moments during this meeting when someone could move to change the rules in response to criticisms made, but for the most part nobody ever does so. And whenever the cacophony of criticism becomes too strong, it's always the chairman, not the committee, rewriting the draft. Frustrating. I don't always like his agenda, but John Bradley's a smart fella. Manipulative, but smart. Giving commission members the rules draft the day before was really a low-rent move. Wish I had a copy! It's hard to follow the discussion without it.

(1:36): The scope of the proposed legislative committee's issue areas seemed pretty limited to me - more about the commission's own funding than recommending new laws to improve forensic practices - but it's hard to tell without reading them. The chair read the description just once, and pretty quickly. Some committee members are state employees and most of the discussion was about to what extent they were allowed to participate in the legislative process. (That makes me laugh when you consider the sweeping legislative agendas of large agencies like DPS or TDCJ.) Did I mention I'm looking forward to reading the actual rules draft?

(1:50): Bradley thinks the FSC, which currently only has a single staff member (who actually, formally, works for Sam Houston State University), needs its own full-time General Counsel. The FSC's entire staff would then consist of one administrative staffer who's officially paid by someone else and one lawyer - no scientists, investigators, etc.. The AG rep said the duties so far had not overburdened her and she'd not suggested the idea. The committee is pushing back.

The news that the only staffer actually works for SHSU actually makes a strong case for the Weil firm's contention that the FSC is not really a "state agency" at all and therefore not empowered to even create these rules.

(2:02): Kerrigan suggested that the commission's "communications policy" should be written down. Though Bradley had previously ordered commissioners not to speak to the press or other state agencies, he backed off that when Kerrigan pressed him on it and said that decision would be made when they created a written policy, until which they were free to speak to whomever they wanted. Dr. Kerrigan got off a good line: "Talk about us making up the rules as we go along!"

At the end of the process, Bradley himself admitted the FSC doesn't have rulemaking authority! Asked if these were laws, rules, or guidelines, Bradley said "guidelines" is a good word, though he prefers "policies and procedures." He described the policies as an informal agreement. "They're not even enforceable on ourselves," he opined.

So why are they going through all this then?

(2:09): Dr. Kerrigan asked whether these rules apply to pending cases or new ones. Good question! Bradley said new or recent cases would be affected but not those already in the pipeline. A commissioner asked particularly whether cases where they'd already spent money on outside consultants would now have to go through the new process. Bradley said "no."

(2:12): The rules passed. The chair appears quite proud of himself, but the body language of the other commissioners conveys a different set of emotions.

(2:27): Bradley backtracked after the rules passed to say old cases like Todd Willingham's in fact will go through his new committee process. That's a complete 180-degree flip from what he told the commission members twenty minutes ago, back when Commissioner Kerrigan told the chair her vote depended on his answer.

Bradley did not allow public comments - for the first time in the commission's history, one member noted - but told those present they could submit written comments to the commission coordinator if they cared to do so.