Friday, April 15, 2011

Punting: Forensic Science Commission fails to answer on misconduct, negligence in Willingham fire investigation

In what is likely John Bradley's last hurrah as Forensic Science Commission chair (he reportedly cannot secure Senate confirmation), the Williamson County DA convinced the commission to issue a draft report making no finding on the central question it convened hearings and an expensive report from an expert to address: Whether there was negligence or misconduct by fire investigators in the Todd Willingham arson case? See coverage from
Ostensibly they made no finding regarding negligence because the commission is awaiting answers to jurisdictional questions posed by Mr. Bradley. He has requested that the Attorney General's opinions committee overrule the AG lawyer assigned to staff and advise the FSC, who consistently told the commission that it had jurisdiction over the case.

Regular readers will recall that nationally renowned fire experts told the Forensic Science Commission that investigators at the Willingham arson case were negligent for not following even best practices of the day, as well as utilizing erroneous arson indicators that have since been debunked by modern science. Further, the state fire marshal's office flat out embarrassed itself with a legalistic defense of unscientific methods and outdated practices. Given the expert testimony, it's no wonder Mr. Bradley wanted to avoid as long as possible drawing conclusions regarding the negligence of investigators: If they do draw one, it will likely be to find negligence since no actual arson experts were willing to defend the Willingham investigators. So issuing no decision is the only way for Bradley to kick the can down the road, hoping the Attorney General will squelch the investigation after he's gone by throwing one of his lawyers under the bus.

UPDATE: Though the report draws no conclusions about the original Willingham investigation, there were a few conclusions added at yesterday's meeting that were critical of the state fire marshal. (They begin again at 9:30 a.m..) Commissioners strengthened the report to say that the state Fire Marshal's representations to the FSC took what "appears to be an untenable position in light of advances in fire science." They also added language critical of the state fire marshal's continued reliance on debunked arson indicators. There are also 17 recommendations in the report which I've not had time to consider in any detail, but which will likely be the subject for further discussion this morning.


Anonymous said...

This whole "investigation" was contrived by the anti-death penalty Innocence Project. I'm sure there will now be lots of petulant, childish foot-stomping by that bunch, but at the end of the day, regardless of one's feelings about Bradley, this was the correct call by the Forensic Science Commission. It's way past time to move on.

Gritsforbreakfast said...

What was the correct call, exactly? They didn't make any call, they punted! Pay attention, will ya?

You're certainly right it's "past time" this was over, but it's Bradley and no one else who's been responsible for every delay. And thanks to his seeking the AG's opinion after an AG lawyer advised the commission they had jurisdiction, he's also solely responsible for this not being over now.

Anonymous said...

Bradley's reputation has taken major blows as a result of his decisions and conduct since his appointment by Perry. The proof is evidenced by the Senate's refusal to confirm him.

It is really sad that an elected DA would find himself in Bradley's predicament.

I guess his ardent supporters would be quick to point out that when John goes into the tank for you,.....he goes into the tank.

Don said...

He wasn't elected the first time-was appointed by Perry then just rolled on his incumbency thereafter.

Anonymous said...

Grits, your info seems well researched, but just want to verify: did the former AG attorney specifically advise on the jurisdiction issue? (i.e., recorded in the minutes) or is that being inferred because the AG attorney was present at the meetings? I think the jurisdiction question is a legitimate one, and if I were a Willingham relative I would want to make damn sure the Forensic Science Commission had legal authority to make a definitive ruling on an old case... otherwise it's just a Baird dog and pony show.

Anonymous said...

Wow! So, the FSC wants an AG opinion and they make their request under Sec. 402.042 of the Texas Government Code.

I can't seem to find where they they have authority to make a request:
"...(b) An opinion may be requested by:
(1) the governor;
(2) the head of a department of state government;
(3) a head or board of a penal institution;
(4) a head or board of an eleemosynary institution;
(5) the head of a state board;
(6) a regent or trustee of a state educational institution;
(7) a committee of a house of the legislature;
(8) a county auditor authorized by law; or
(9) the chairman of the governing board of a river authority.
(perhaps number 9, since a decision made by them could send someone "up the river"?)

Perhaps they could s t r e a c h Sec. 402.043. QUESTIONS RELATING TO ACTIONS IN WHICH THE STATE IS INTERESTED, since one of the board members is a "prosecuting attorney".

But, then there is another problem that section continues with: " the prosecution or defense of an action in which the state is interested before a district or inferior court if the requesting attorney has investigated the question involved and submitted a brief to the attorney general...". Mr. Bradley states in the first paragraph of his request: "...there is no litigation pending regarding the matters for which this opinion is requested..."

If you are not a person in the list the the Attorney General has a problem: "...Sec. 402.045. LIMITATION. The attorney general may not give legal advice or a written opinion to a person other than a person named in this subchapter..."

Two of the members of the FSC were appointed by the Attorney General and they have an Assistant AG "on loan" and now they want the AG to issue an opinion.

Do a little dance, make a little law. Get down tonight!

Chris Halkides said...

The comment by Anonymous on 4/15 at 8:28 is a good illustration of why it was too bad that the Willingham case was the flagship case with respect to arson. There are probably a number of innocent people in prison on the basis of faulty arson investigation, as grits has often commented. Instead, the case became a lightning rod for pro-death penalty advocates, as well as anti-death penalty advocates. That having been said, I am absolutely convinced that the Willingham case (if it happened today) would not pass the reasonable doubt threshold, and the least we can do is to acknowledge that fact.

Swede said...

If these guys don't have jurisdiction, then who the hell does?

I don't really care all that much about death penalty this or death penalty that - but if we're gonna kill people for doing something, let's make sure they actually did the crime, mmmmk?