Delay, delay, it's the word of the day: Bradley proffers excuses to put off investigating forensic errors

I attended a meeting Friday of the Texas Forensic Science Commission at which Chairman John Bradley continued his quest to delay the commission's work as long as possible, this time pushing in executive session to request an Attorney General opinion to decide whether they have authority to consider the Todd Willingham case. See MSM coverage:

• Austin Statesman
• Dallas News
• Houston Chronicle
• Texas Tribune

The commission retired to executive session immediately before the Willingham case was publicly discussed. When commissioners each silently reentered the room about an hour later, everyone looked tense and grumpy; I'd love to have been a fly on the wall. (OTOH, as fate would have it, I ended up sitting next to Judge Barbara Hervey from the Court of Criminal Appeals, so the delay gave us a welcome chance to chat.)

Clearly jurisdictional issues were the main focus of discussion in executive session. Bradley has repeatedly argued that the commission has no authority to investigate older cases because it can only investigate accredited labs, and accreditation wasn't required until 2005. However, the Attorney General staffer who'd been advising the Commission - before Bradley pushed for creation of a General Counsel position, that is - repeatedly advised the FSC that they could investigate entities that now require accreditation but didn't in the past. Further, notes the Austin Statesman, "several legislators who were instrumental in creating the agency rebutted Bradley's analysis, saying the law was not intended to limit investigations to accredited labs or to post-2005 cases."

Both legislators and the commission's AG adviser have repeatedly said it would be absurd to limit investigations to post 2005 cases because the FSC was created in reaction to Houston crime lab scandals, and it would be nonsensical to claim the commission could not investigate the very case that spawned its creation. (It'd solve quite a few admittedly self-inflicted problems for the commission if the Lege would clarify that language this session: It would solve many more problems if they changed the law to let commissioners name their own chair.)

In any event, Bradley wouldn't let the jurisdictional issues go, so now every active case before the commission - not just Willingham's - will be delayed while the chairman seeks to neuter his own agency's authority. (Of course, by all appearances, that's the main reason he was appointed.) Further, under state law, only the chairman himself - not the entire commission - may draft an opinion request, so look for Bradley to slant the request as much as possible to solicit the outcome he wants.

On Bradley's motion, though quite clearly over his objection, the commission voted to move forward drafting their report on the Willingham case while the AG opinion is pending. This was a clever parliamentary move. It was pretty clear the chairman has isolated himself by pushing delay so hard, and the rest of the commission seemed determined to move forward regardless of his contrary opinion. But through the language in his motion, Bradley was able to exert more control over that process by changing how the final report will be drafted. From Chuck Lindell at the Statesman:

Originally, a four-member subcommittee was to draft a report during a public meeting and then present it to the full committee of seven forensic scientists, a defense lawyer and a prosecutor.

Now, commissioners will submit suggestions to the agency's general counsel, who will compile a draft report. Final language will be hashed out by the full commission in a future open meeting.

Of course, the brand spanking new General Counsel reports to Mr. Bradley, so this new process gives the chairman much more input over drafting than if a committee did it. Indeed, between controlling the content of the AG request and shifting drafting duties on the Willingham report to the General Counsel, the chairman cleverly asserted greater control over the process in a number of important ways on Friday, even though he'd (much) prefer it not go forward at all.

And speaking of the new General Counsel, the proposed House budget cuts the Forensic Science Commission's budget by roughly the amount of her salary. Assuming that reduction stands, the FSC would be faced with a choice of firing their General Counsel or taking money for her salary out of the pot available for investigating forensic flaws. My own view is that was precisely the purpose of Bradley's push to create the General Counsel's position to begin with. But whatever his or anyone else's intentions, that's the tradeoff facing them under the proposed budget. (The budget reduction wasn't mentioned by commissioners at Friday's meeting.)

Another sign of behind-the-scenes tension - and another topic where the commission seemed united against its chairman - regarded whether to accept anonymous complaints, which heretofore had always been allowed. The commission is updating their intake forms, over the chair's objections, specifically to allow for anonymous complaints. Bradley argued against the idea briefly, but it was clear he'd already lost this fight in other forums and he didn't press the subject. Dr. Sarah Kerrigan noted that the federal Forensic Science Reform Act filed by Sen. Patrick Leahy would allow for anonymous complaints.

A final oddity was that the chairman seemed to misrepresent or at least dramatically downplay the opinion of Dr. Niram Peerwani regarding a recommendation to accept a case based on allegations against the crime lab in Austin. Peerwani regrettably was unable to attend because he had to testify in court that day. But at the screening committee meeting in December (which Grits attended), he recommended the FSC close out the case, declaring there was "no basis" for the complaint. It had been thoroughly vetted by three other agencies and both Drs Peerwani and Eisenberg said enough investigation had been done. According to that discussion, much of the complaint deals with personnel and supervisory issues, not science, and no specific defendants' cases were implicated.

In response, Bradley had made a rather legalistic argument that the screening committee should consider only a handful of objective criteria - is it an accredited lab, is the complaint about a forensic science as defined under the law?, etc. - and that Peerwani's arguments for "closure" of the case would be better made before the full commission. The chairman also argued that, since the complaints seemed unfounded and the lab seemed to have responded to them as they should, the case would give the commission a chance to "deliver a positive message" to accredited labs by affirming their work. After Dr. Eisenberg seconded the chair's motion to recommend the case, Peerwani reluctantly went along.

But 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.

Some of Mr. Bradley's stratagems are breathtakingly bold and crass but as far as I can tell they're essentially working, at least if you assume the chairman's goal is to delay the commission's work as long as possible and ultimately, if he can, to kill all its ongoing investigations while diverting resources to innocuous projects. He's alienating his fellow commissioners in the process, no doubt, but there's scarce evidence that the chairman particularly cares about their good opinion, or for that matter yours or mine.

See related Grits posts:

• Forensic commissioner: State fire marshal testimony "embarrassing"
• Experts: Willingham investigation negligent even by 1991 standards 
• Arson experts finally scheduled to testify in Willingham inquiry tomorrow 
• Forensic Science Commission diverting resources from investigating negligence, misconduct 
• Peerwani: Arson testimony in Willingham case flawed 
• What trick, what device, what starting-hole canst thou now find out? 
• If arson science in Willingham case was 'flawed,' what about other, similar cases?