New forensic commissioners appointed, but agency jurisdiction too limited

Gov. Rick Perry issued four appointments yesterday to the Forensic Science Commission. Reports the Fort Worth Star-Telegram:

Assistant District Attorney Richard Alpert of North Richland Hills will replace former board Chairman John Bradley, district attorney of Williamson County. Bradley's controversial appointment two years ago gave rise to criticism that the governor had hand-picked the prosecutor to block findings that Texas had executed an innocent man.

While Bradley was a lightning rod on the commission, Alpert said he is "hoping to be more weather-resistant."

Also stepping down from the panel is Lance Evans, a Tarrant County defense attorney appointed in 2009. He said this change will likely not make waves. "It's not going to have near the turmoil this time as it did last time," Evans said.

Evans is being replaced by Robert Lerma, a Brownsville attorney in private practice and former president of the Texas Criminal Defense Lawyers Association.

The Tarrant County medical examiner, Dr. Nizam Peerwani, appointed to the commission in December 2009, was reappointed and will continue to serve as chairman for "a term to expire at the pleasure of the governor," according to Monday's announcement.

The other new member is Dr. Vincent Di Maio of San Antonio, a former chief medical examiner for Bexar County. Di Maio replaces Dr. Norma Farley, chief forensic pathologist in Hidalgo and Cameron counties.

Coupla thoughts here: First, I'm glad to see Dr. Peerwani reappointed as chair, which signals the FSC likely won't radically change direction the way it did after John Bradley's ascension to the job.

That said, it's rather odd that two of the FSC members are medical examiners when the statute specifically excludes autopsies from the Commission's jurisdiction. I continue to hope that the Legislature in 2013 will expand the FSC's authority to include MEs and other forensic fields excluded under the statute and an Attorney General's opinion (pdf) issued this summer. Legislation to by state Sen. Juan "Chuy" Hinojosa to expand the FSC's jurisdiction came close to passing earlier this spring; the Senate bill died for time awaiting a vote on the House calendar when the session came to a close.

Also, though I've nothing against the new appointees, I'd like to see more consistency on the commission's membership instead of replacing folks every two years. These are complex topics on which it takes time to develop expertise. Indeed, FSC investigations so far have all taken longer than two years to complete. For those reasons, IMO the Lege should expand FSC terms at least to four years, preferably to six.

It remains to be seen what the Commission will be doing going forward now that the Attorney General has shut down all their active investigations. One situation likely to move to the front burner involves allegations by a national accrediting agency that controlled substance testing at the El Paso crime lab suffered from incompetent analysts; inadequate supervision; overstating the thoroughness of testing; failure to follow their own laboratory policies; failure to base laboratory procedures on known standards; inadequate intensity on their mass spectrometer; failure to document testing/calibration of instruments; improper access to the lab by police officers and other department personnel; and failing to require a written test to determine labworker competency. The national Innocence Project has filed a complaint asking the FSC to independently investigate.

Also, though the AG opinion precludes taking up new investigations in older cases or in non-accredited disciplines, the FSC report (large pdf) on the Willingham/Willis cases urged a "retroactive review" of old arson cases, urging the state fire marshal to formally adopt a "duty to correct" past errors and a "duty to inform" defendants when flawed science was used to secure their conviction. Dr. Peerwani has been working with the State Fire Marshal's Office and my employers at the Innocence Project of Texas to develop a methodology and protocols for such a review.

To truly reach its full potential, though, the Forensic Science Commission needs the Legislature to clean up its jurisdictional authority. They also need for politicians, particularly the Governor, to forswear interference in their work long enough for the FSC to complete investigations, which after the AG opinion must now all begin again at square one. The Commission's charge - to investigate flawed science used in criminal courtrooms - is particularly timely given the national re-evaluation of various non-science based forensics. But so far the agency has been blocked from reaching its full potential, and until the Lege expands the FSC's jurisdiction, I fear commissioners will continue to find themselves unduly hamstrung.