whether the State Fire Marshal's Office has a responsibility to notify law enforcement officials, district attorneys, judges and the governor when it discovers that people have been (and are being) convicted on faulty science.The exchange between Bradley and Eisenberg shows there's a big difference between what's "legal" and what's right or just. False convictions are by definition "legal" until they're overturned by the appellate courts. What's more, the legal system historically values "finality" over correcting old mistakes, so it's perfectly "legal" to ignore junk science used to secure past convictions, as Bradley wants the commission to do, even if it's a profligate and shameful stance. I'm glad at least the scientists on the commission seem to understand that the administration of justice requires analyzing not just society's legal obligations but its moral ones. Bradley's pedantic search for technicalities to justify ignoring injustices promotes disrespect for the law and the legal system.
Hundreds of Texans sit in prison for arson, possibly based on science discredited in the 1990s. Bradley had ignored the issue, but the scientists insist on raising it with the Fire Marshal's Office.
The tension between scientists and the prosecutor was captured in an exchange I was told of between Bradley and Commissioner Arthur Eisenberg, the highly regarded professor of pathology and anatomy and director the DNA Identity Laboratory at the University of North Texas Health Science Center. It went something like this:
Eisenberg, echoing what all the scientists present said was a responsibility to correct errors, said his office investigated all alleged errors and disseminated corrections when appropriate.
Under what law, Bradley demanded.
I don't need a law, said Eisenberg.
The commission is, as it should be, focusing on what is right, not just legal. But Bradley clearly sees it as his job to defend all criminal convictions.
That is understandable, if not always appropriate, for a DA. But it's totally inappropriate for the chairman of the Forensic Science Commission.
Monday, October 04, 2010
Scientists school forensic commission chair on difference between 'legal' and 'right'
Continuing with our theme of Flawed Forensic Science Week, check out this notable article from Houston Chronicle columnist Rick Casey regarding Texas' Forensic Science Commission, observing that scientists among the group have rebelled against Chairman John Bradley "in a showdown between science and politics" concerning old arson cases - a conflict in which science, for once, "won a resounding victory." Casey was particularly gratified, as is your correspondent, that scientists on the commission are insisting on addressing the question of:
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7 comments:
"Bradley's pedantic search for technicalities to justify ignoring injustices promotes disrespect for the law and the legal system." That pretty much encapsulates the Bradley reign at the FSC in one sentence.
You guys are beginning to butt up against the line of the relevance of the FSC in determining innocence cases. Be careful not to cross it. If you cross it, you give credibility to Bradley's position. Don't be baited.
Regardless of what the FSC says or doesn't say, all of those innocence cases still are deficient by the problems inherent in the Daubert standard; that the judge does not have sufficient expertise to determine what is or isn't reliable expert testimony. This is a defect to be cured by the legislature, not the FSC.
The members opposed to Bradley's position are remaining in bounds when they ask "whether the State Fire Marshal's Office has a responsibility to notify law enforcement officials, district attorneys, judges and the governor when it discovers that people have been (and are being) convicted on faulty science."
This question goes to who a complaint can be alleged against at the FSC and for what reason. A determination that a complaint can be heard by the FSC will help the the logistics of innocence cases. However, it does not make the innocence case.
The result in and of itself does not promote respect nor disrespect for the law except to the extent that you (reporters/media; loosely defined) blur the story.
Chris, I certainly didn't mean to imply the FSC is the vehicle for correcting false convictions, if that's what you're saying. Otherwise, I'm not sure I see your point.
Bradley first fought to keep the Willingham case from being examined and now wants to keep the FSC from evaluating the Fire Marshal's responsibility to correct errors. The FSC was set up to improve public confidence in forensic science, but Bradley's actions are having the opposite effect.
As for "who a complaint can be alleged against at the FSC and for what reason," look for the Lege to revisit that next spring precisely because of Bradley's attempt to derail investigation into faulty arson science.
Moving the discussion from legal requirements to what is "right" focuses the discussion on rhetoric. That scarecrow is easily knocked down by Bradley and those that will support the Governor in this.
If you were trying to use the FSC in a campaign to gain support for your policy, you'd be doing well to bring up "right" and "just". But they're in the middle of making the sausage. Focus on the question that was being asked, not on the feel good, MST3K banter.
What responsibility does the State Fire Marshals have, and does failure of those responsibilities open them up to a FSC complaint?
That's the crux of the policy, not whether justice is served. The FSC is not a trial court, it's not an appellate court, it doesn't have the ability to dole out justice. It merely has the ability to review failures in forensic science procedures which serves as a deterrent to injustice reigning.
Schooling the FSC chair on the difference between 'legal' and 'right' is a hollow victory.
Chris, I suppose I see your point, FWIW, but since the "schooling" of JB referenced was precisely the majority's decision to examine the question, over the chair's objections, of "What responsibility does the State Fire Marshals have, and does failure of those responsibilities open them up to a FSC complaint?," it seems to me you're for the most part posing a distinction without a difference. It wasn't a "hollow" victory, it was substantive. Bradley didn't want to take up the topic, but the majority decided to do what's right instead of look for pedantic excuses for inaction. Or am I missing something?
Your hollow victory is the following, from the Oct 15th Agenda, posted this morning:
Discuss liabilities, immunities and processes re authority and scope of FSC (Deane)
This comes prior to any additional discussion on Willingham.
If the "bold" scientists don't have legal justification for talking about what's "right" instead of what's "legal", the outcome is going to be...
Bradley determining upon advice of their legal counsel that "there is no authority for us to hear additional testimony from Beyler, unless he wishes to submit a public comment form...and oops, we determined the deadline for those in re: Willingham would be Aug 13th.
Therefore we can vote on the draft I have prepared or someone can offer some amendments, etc....or we can put this off until the November 19th meeting and have the same options, but we really should move on and not keep this commission buried on one topic, we have other work to accomplish."
Bradley's been making those arguments from Day One, of course. The legal issues are vague and subject to interpretation (e.g., the AG's advice before Bradley came on board was the opposite of his on the subject of the commission's scope), so in the end it will still come down to this: Will commissioners do what they think is right or allow themselves to be bullied? They chose the former when they rebuffed Bradley at the last meeting. Maybe you're right that they'll let themselves be bullied at the next one. But IMO the legal arguments the chair is making are a smokescreen, not a substantive barrier to the FSC performing a review of arson science or the role of the state fire marshal.
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