Defense lawyers: Forensic commission committee meetings should be open

The criminal defense bar wants to pick a fight with Forensic Science Commission Chairman John Bradley over his new committee system conducting the commission's business in secret, reports the Houston Chronicle ("Defense lawyers rip Texas forensic panel," May 4). The story opens:

Texas defense lawyers took aim at the state's Forensic Science Commission Monday, charging that the group — now probing the possibly botched arson investigations that sent an East Texas man to his execution — is in danger of being “permanently tainted and derailed by politics.”

In a statement issued by Texas Criminal Defense Lawyer's Association president Stanley Schneider, the lawyers targeted commission Chairman John Bradley, saying he has “overstepped his authority, ignored the will of the Legislature and is trying to hide the commission's work from public scrutiny.”

Willingham arson case

Monday's statement marked the first time the lawyer's group has become involved in controversy surrounding the commission, which is reviewing arson investigations in a 1991 Corsicana house fire that killed three children. The youngsters' father, Cameron Willingham, was executed for their deaths in 2004.

Schneider, a Houston lawyer, said a Bradley-devised system of subcommittees designed to collect investigation evidence, accept citizen complaints and handle other matters “very likely” violates the Texas Open Meetings Act.

Bottom line, under the governing court rulings interpreting the Open Meetings Act, committee cannot meet in secret if the commission has delegated key decision making functions. TCDLA argues that it has done so; Bradley says the full commission will make the final call. I'm not a lawyer, but from my own reading of the statute, the FSC rules (pdf) and the AG's Open Meetings handbook (pdf, p. 14), IMO it's arguably true that the closed committee meetings are illegal; certainly they are unwise, and not particularly ethical - it gives the appearance, whatever the reality, that Mr. Bradley and the commission have something to hide.

In the case that set the existing legal standard, a city council had developed a track record over time of delegating decisions to a particular committee that were seldom reversed. The key question is whether the commission has "granted it authority to supervise or control public business or public policy." Of the committees created, certainly it's hard to argue that the "Complaint Screening Committee" doesn't control public policy - their recommendations were rubber stamped at the last FSC meeting and they control the commission's intake. Similarly, according to the FSC rules, the Investigation Panels on individual cases "shall coordinate an investigation into a complaint approved by the FSC for investigation," which is definitely controlling a key function of the commission. The "Forensic Development Committee," by contrast, under the rules appears to fall more under the model of making recommendations that would allow them to keep the meetings closed.

Only a court could say for sure, but perhaps TCDLA will take things to the next level and sue under the Open Meetings Act. It'd be good to resolve this question once and for all.

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