#txlege committees should post witness materials, testimony online

Some Texas legislative committees, like House County Affairs, helpfully post on the committee website the handouts and written testimony given to members at committee hearings.

Others, like the House Criminal Jurisprudence and Corrections Committees, do not.

All of them should, whether it's individual committee chairs choosing to post that material or implemented across the board when each chamber's rules are adopted in January.

Posting handouts and written testimony online, particularly the data-driven presentations frequently offered by agency staff, would make it easier for the public watching the hearings outside of Austin to follow along. It would also improve press coverage of legislative debates.

In general, reporters or members of the public can always, ultimately get access to these presentations, either by appealing to a sympathetic member, calling individuals who testified to ask for their materials, or filing open records requests in the case of agency testimony. But many more people would/could access the information, and with a lot less hassle, if it were posted online automatically.

This move would help everyone, from the wonkiest number cruncher looking for data discussed at the hearing to the average citizen in Abilene or Amarillo watching the hearings from afar and trying to understand what's going on. It would even benefit legislative and agency staff to put all that stuff where they can access it electronically.

Grits would like to see the practice become the rule, not the exception.

***

Still waiting on TDCJ statistical report
Speaking of not posting data online, the FY 2017 TDCJ Statistical report, discussed here, STILL has not been posted online. The last annual dataset released by the agency was for year ending Aug. 31, 2016, so that information is now more than two years old. WTF?

This is all data that TDCJ tracks in minute detail and includes in various, internal reports which are updated monthly. There is no good reason to believe annual reports couldn't be produced by the end of the CALENDAR year in which the fiscal year ends. County jails must update their population figures monthly; there's no way to justify TDCJ getting to sit on their data for so long.

5th Circuit upholds Open Meetings Act

Good news on a sleeper issue that has worried your correspondent for some time: A three judge panel at the federal 5th Circuit Court of Appeals upheld the Texas Open Meetings Act, which local politicians had challenged on First Amendment grounds, claiming they should have the right to deliberate about public business in secret. Given that Texas' Open Records Act - since changed to the Public Information Act - has been gutted over the years by the courts, the Legislature, and various Attorneys General, the Open Meetings Act remains the most meaningful legacy of transparency reforms enacted in the 1970s following the Sharpstown bank scandal. A victory by the plaintiffs and their allies at the Texas Municipal League would have been a calamity for public accountability. Plaintiffs vowed to continue to appeal all the way to the Supreme Court, but most observers I've talked to believed that if they were to prevail, it would happen at the 5th Circuit. Here's a link to the opinion (pdf).

Dog on Dog Open-Government Action, the Fiction of the Consensual Police Encounter, and other stories

Here are a few items I ran across recently that deserve Grits readers' attention:

Backstory on breaking Austin open government scandal
Get the full background on the Austin City Council Open Government Scandal when the Jennifer Peebles at the Texas Watchdog interviews Ken Martin at the Austin Bulldog in a TW podcast. That's a lot of dog on dog action. Interesting stuff; Martin dishes a lot of juicy details about who concealed what and how the story was broken. They've stopped the illegal meetings, says Martin, but the City is still concealing emails where City Councilmembers performed city business on their personal email accounts, a clear violation of years of precedent from the Texas Attorney General. Which is probably why, also in violation of the law, the City of Austin did not request an opinion from the Attorney General. They just said "no," like Melville's Bartleby the Scrivener declaring, "I would prefer not to." With no other recourse, Martin has been forced into court for the documents. Honestly, County Attorney David Escamilla is the only one who can crack this nut by bringing charges against those politicians who by all appearances conspired to violate the open records and open meetings acts.

'Perpetuating the Fiction of the Consensual Police Encounter'
The subhed is the title of a post from Liberty and Justice for Y'all criticizing a Texas Court of Criminal Appeals decision that placed the subject of a police encounter in a no-win position. If the defendant had not complied with a police command, writes blogger B.W. Barnett, "there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here."

Latest poster boy for asset forfeiture reform
As if he needed another one after the 2009 Tenaha Scandal, Jim Wells County has offered up a poster boy for Senate Criminal Justice Committee Chairman John Whitmire's asset forfeiture reform bill this session. According to the SA Express News, last week "four-term Jim Wells County district attorney pleaded guilty Monday to a felony count of misappropriating more than $2 million in asset forfeiture funds."

Attitudes toward gays fair game in sex offender voir dire
Attorney Bill Habern pointed out to me an interesting civil ruling from the Texas Supreme Court involving voir dire during civil commitment trials of sex offenders, on a couple of points: Where the case will include evidence that the target is gay, it's permissible to question jurors whether or not they can be fair to a gay person. Also, where a case requires proof of two prior sex-offense convictions, the defense may question whether or not the jurors will require more evidence than the mere fact of conviction in the two cases to determine whether the civil commitment target is "likely to reoffend." The SCOTX held that the judge unfairly limited the defendant's ability to eliminate biased jurors who would not consider the evidence. MORE: From the Supreme Court of Texas blog.

Making (some) sense of Indictment-Fest 2010 in Collin County
I've got to admit, I've never understood the whole brouhaha up in Collin County where the outgoing DA and judges spent their final months in office taking turns getting one another indicted, but several items I read today helped somewhat clear up the bizarre and murky picture. Here's Ed Housewright at the Dallas News framing the story with a journalist's faux balance. More probative, IMO, were attorney Hunter Biederman's excellent offerings at the blog Collin County Observer and on Biederman's own blog, Frisco DWI Lawyer, including juicy links to primary documents. MORE: From the Dallas Observer.

Why don't MSM sites link to primary documents?
Speaking of which, why don't MSM newspaper reporters and editors link to their primary sources in online reporting? I've never understood that. They have access to them, reference, them, quote them. Often they're already available online and only need a link, or are easily uploaded online either onto the media outlets own server or a variety of free alternatives (Google Documents, etc.). I thought about this today reading Brandi Grissom's piece in the New York Times where she quoted Dr. Tony Fabelo from a recent presentation to the Senate Criminal Justice Committee. Grits has quoted the same report, but I linked to a copy [pdf]. It'd pretty much put blogs like Grits out of business if the MSM would do that themselves. Quite often, the main value Grits adds is linking to primary sources for those who want more information (and, having read them for myself, raising any issues the MSM didn't pick up on). The idea of journalists as information gatekeepers is a myth that's been blown sky-high in the internet age. Today the best journalists are information conduits, summarizing the topline, takeaway issues for the masses but also providing access to more detailed information for opinion leaders and others with specialized interests. There's no reason they can't do both and it would make their product more valuable.

Austin City Council flouts Open Meetings, Public Information Acts

The Austin City Council not only for years has been violating the Open Meetings Act through a "walking quorum" - with the Mayor meeting one-on-one or one-on-two before council meetings to deliberate instead of discussing city business publicly - it turns out they've got a secret texting system where they immediately delete conversations in order to intentionally subvert the Public Information Act. And they've used private email accounts for city business on the (flimsy) hope that they wouldn't be subject to public disclosure, as required by law.

My old pal Ken Martin at The Austin Bulldog broke the story and has actually filed a lawsuit against the City - bully for him! - to stop what amounts to a conspiracy to violate the Public Information and Open Meetings Acts. (In the interest of full disclosure, I should add a fact I didn't know when I mentioned Ken's work the other day - my wife is actually on the board of directors of The Austin Bulldog's 501c(3). We've only been together 20 years, you'd think I'd have known that! OTOH, I've known Ken even longer than that.)

Martin has been hammering away at the city for concealing emails, texts and other communications that should be subject to the Public Information Act, and hit a home run when he discovered references to a texting system called "Spark," on which council aides explicitly instruct one another how to disable the chat history so the records will be (illegally) deleted. Reports the Austin Statesman:

The city released hundreds of e-mails last week that were exchanged among council members. Council Member Mike Martinez, who turned over fewer than a dozen e-mails initially, disclosed hundreds more Wednesday.

The lawsuit alleges that not only did council members fail to give the Bulldog all the e-mails from their city e-mail accounts that fall under the records request, but that council members didn't turn over other messages about city business, such as text messages from mobile devices, e-mails from private accounts and instant messages sent on a city program called Spark.

In a July 2009 e-mail, an aide to Council Member Randi Shade encouraged the use of Spark, noting that all e-mails from city accounts are subject to open records requests, and: "In the heat of a Council meeting you may wish to communicate sensitive constituent information with your Council Member that would not be appropriate for all of us to enjoy in the Statesman the next day."

The aide, Glen Coleman , included a link from another staffer with instructions on how to delete previous Spark messages and disable the "chat history" function so future messages can't be saved.

It's telling, I think, that it took an independent nonprofit news source like the Bulldog to break this story, when a phalanx of reporters truck in and out of City Hall every week from the MSM and we never heard word one about this. Indeed, the more frequent media reaction was to ridicule Austinites calling for openness as some sort of Jacobite horde who just irrationally hated the City Council, when in fact the folks, for example, who pushed Proposition One (myself included) were reacting to a growing veil of secrecy that Martin has now documented beyond any reasonable doubt. As I wrote after that initiative failed, that controversy "forced the local Austin print media, the Austin American Statesman and the Austin Chronicle, to choose sides: Are they insiders and power brokers, in which case they benefit from secrecy? Or are they journalists who benefit from public information? News flash: They're insiders." The Austin Bulldog shows the best journalists don't need insider connections, they just need for democratic protections like the Open Meetings and Public Information Act to function as they're supposed to. In Austin, under the current City Council, they do not.

As I said the other day of the Austin Mayor's "walking quorum," the deletion of council communications is illegal, particularly if it's done intentionally to get around the Public Information Act. An increasing opacity at the Austin City Council has had a serious, negative impact on public discourse across an array of issues for the past decade. What's more, the people responsible know better but thought they were smarter than everybody else and could get away with it.

Now the question falls to County Attorney David Escamilla: Will they?

Questioning John Bradley: Forensic Science Commissioners up in Senate Nominations Monday

(UPDATED BELOW WITH DETAILS FROM THE HEARING) 

Governor Rick Perry's appointees to the Texas Forensic Science Commission are up in the Senate Nominations Committee tomorrow. Senators should use the forum to force Commission Chairman John Bradley to answer all the questions he's dodged in the past - especially about the ways in which he's delayed or shut down all the Commission's activities after his appointment in 2009. The other commissioners who are up IMO have done a good job; even if I haven't always agreed with them on every jot and tittle, I've never once thought they were acting in bad faith. That hasn't always been true of the chair.

There are lots of unanswered questions for the committee to ask Mr. Bradley. He only talks to friendly media and limits his comments to tightly constructed political barbs instead of honest answers to legitimate questions, so there's a lot of untrod ground to cover. The Dallas News published a list of written questions he repeatedly refused to answer, for example, on the grounds that they sounded like they came from a "New York lawyer." I supplied satirical responses on Bradley's behalf.

They could also check with members of the House Public Safety Committee, who asked Bradley to appear to answer questions but were snubbed with a no-show. There are plenty of unanswered questions out there if they start looking, and the nominations process would be a good place, finally, to get responses.

Regular readers will recall Bradley's first official act as chairman was to unilaterally shut down a long-scheduled hearing to evaluate arson science used in the Todd Willingham and Ernest Willis cases, a move which was widely interpreted as an effort by Bradley and the Governor to improperly delay an inquiry into faulty forensics used to justify putting Mr. Willingham to death until after the November 2010 elections. After Bradley made the rounds in the media calling Willingham a "guilty monster,"  he was scolded by other commissioners at an FSC meeting, where "six of the seven other commission members present at the meeting voiced disapproval or discomfort" with Bradley's statements. (When commissioners finally heard the expert testimony earlier this year, it was brutally damning.)

Having shut down not just commission investigations but a series of planned educational events, Bradley proceeded to railroad through a set of policies and rules at the next commission meeting, leaving all pending business off their agenda and giving commissioners only a single day after receiving a draft to vote on them. After wasting a full meeting securing votes for these policies, he pointed out that the AG advised the FSC has no rulemaking authority and that the rules and policies they'd just approved were only nonbinding guidelines that did not in any way restrain the commission. So in effect, Mr. Bradley stopped all the agency's productive activities to waste time debating and voting on policies he knew the agency had no authority to enact. In a post evaluating the Chairman's performance at that meeting, Grits accused Bradley of "Usurping power from commissioners," "Hijacking the meeting agenda," "Concealing key activities from commissioners," Wasting commissioners time," "Ignoring 'process'," and "Dissembling." I doubt any neutral observer who watched his bullying performance would disagree.

The only case the Commission has voted to accept since Mr. Bradley came onboard involved allegations against the Austin PD crime lab that several outside entities have already looked into and determined to be unfounded. I attended the screening committee meeting involving the case, where Dr. Nizam Peerwani, a medical examiner from Fort Worth who will also face the Nominating committee tomorrow, strongly argued that the case had no merit and the FSC shouldn't waste its time. But, as Grits then reported, "Bradley said the Commission needn't only be the bearer of 'bad news,' and that it would be worthwhile to 'deliver a positive message' to accredited labs that affirmed the value of their work." He also made a very legalistic argument: That the screening committee should only determine whether the elements of the complaint met the minimal threshold for consideration by the committee, but insisted they should not evaluate the merits. Peerwani's opinion that the complaint was meritless, said Bradley, was appropriate for discussion with the full board, but shouldn't be a consideration at the level of the Complaint Screening Committee (one of several committees created under the chairman's above-described policies and rules). Peerwani demurred, declaring his intention to recommend against investigating the case, and gave an "Aye" vote to allow consideration by the full Commisssion.

At the meeting where the FSC took up the case, though, Dr. Peerwani could not attend because he was required to testify in court back in Fort Worth. Bradlley promoted taking up the Austin case for the same reasons suggested at the Complaint Screening Committee, sending a positive message, etc., but did not tell his fellow commissioners about Dr. Peerwani's objections! As Grits reported, "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." I think the committee should ask Dr. Peerwani about his opinions on the Austin case and then compare it to the record from the January FSC meeting where Bradley laid out the Screening Committee's recommendation. (If they need it, the national Innocence Project recorded video of the meetings.). The episode was an example in microcosm of how the chairman has run the committee: Saying whatever he needs to to get his way, even to the point of transparently misrepresenting facts or the opinions of others.

Besides questioning Bradley on efforts to deflect and distract the Commissioners from productive consideration of forensics (their mission), his politicized budget and hiring decisions deserve close review. Bradley has insisted on pushing through the creation of a General Counsel position from the Commission's limited budget, despite the fact that the Attorney General was already providing those services for free. The problem: The AG was giving advice that would allow investigations to go forward that Bradley wanted to shut down. The AG lawyer advising the FSC has always said they have authority to investigate cases like Willingham, Brandon Moon, and others dating from before when accreditation was required, but Bradley has requested a formal AG opinion seeking to overrule that advice. That's the context in which I view the creation of this unneeded General Counsel slot at the FSC: The chairman seems to be shopping for a lawyer who will give him the advice he wants for political reasons instead of a legal interpretation that's correct, and if he can't get that from an AG lawyer he'll seek to replace her with an attorney who reports directly to him. Plus, the tactic has the added benefit of bleeding scarce funds available for investigations, which he clearly wants to stymie, anyway.

Otherwise, hiring an attorney as the main staffer at the FSC would be an odd choice since a lawyer gives the commission no expertise at its main task of evaluating forensics and the salary diverts money that otherwise would have been used for functions that get more directly at the Commission's core mission. The General Counsel slot was created in January using monies that remain unspent mostly because the chairman shut down all the FSC educational events and investigations during calendar year 2010. But there's no money in their budget for the position, and in fact both HB 1 and SB 1 - the House and Senate budgets - would reduce the FSC's budget by roughly the amount of the new General Counsel's salary. Leaving ideology aside, that's just poor management.

Finally, there's the chairman's assiduous penchant for secrecy, violating the open meetings act at his first meeting as chair and seeking to close FSC deliberations and records to the public at every possible turn, a tactic which was rebuffed by his fellow commissioners.

Speaking of whom, I think the other commissioners should be asked their opinion of Mr. Bradley's performance, his proposals for conducting business in secret, his insistence on revisiting past AG advice and commission decisions on jurisdiction, the propriety of conclusory statements on the Willingham case, etc.. Perhaps most importantly: Ask Bradley's fellow FSC commissioners if they should be allowed to select their own chair from among their number instead of having the Governor pick? I guarantee the FSC would run a lot less contentiously and get a lot more accomplished if the majority on the commission were allowed to select their own chair. Bradley's shenanigans have alienated just about everybody who's witnessed them.

UPDATE (2/28): The Houston Chronicle editorialized today that the Senate should reject John Bradley's nomination. They say the Williamson County DA has "obstructed real debate and instead proceeded to perpetuate the governor's political agenda. He has delayed hearings unnecessarily. He has shown disdain for members of the commission and witnesses. He has proven himself to be an enemy of science, refusing to ask that arson be subject to state-of-the-art scientific analysis." They conclude, "We believe John Bradley has shown himself unwilling to engage in true scientific inquiry. He does not merit reappointment and the Senate should reject him." The Chronicle's Peggy Fikac reports that, though he's not on the committee, state Sen. Rodney Ellis plans to participate in the questioning.

MORE: Kuff chimes in.

FROM THE HEARING (2/28): Bradley feels free to just openly insult Sen. Ellis, accusing him of a conflict of interest because he chairs the national Innocence Project. Ellis retorted that if that was the case, Bradley had a similar bias as a hyper-aggressive, know-it-all prosecutor. Bradley's comments were laced with sneers and insults aimed at Ellis about "your bias," causing Chairman Deuell to bang his gavel and insist on civility. I'm not sure he's doing his nomination chances any favors with this performance. The senate is a small club and they don't take kindly to their members being openly disrespected.

Sen. Jose Rodriguez also raised serious concerns, particularly regarding the appearance of bias from Bradley's public statements. Rodriguez also asked about whether the TFSC should hold its subcommittee meetings in public, but he appeared not to know that Bradley's fellow commissioners explicitly overruled the chairman and insisted those committee meetings be open. In December, Grits attended the very first public meeting of the Complaints Screening Committee, which under Mr. Bradley's original rules previously had been closed to the public. MORE: Sen. Ellis got Bradley to clarify that the meetings were previously closed and that the change to make them public was recent.

Here's a fun exchange:

Bradley to Sen. Ellis: "You watch my back, I'll watch yours."
Ellis (to much laughter): "I'm glad I've got my bulletproof suit on."

Public testimony was pretty darn good, including exoneree Anthony Robinson and Bill Allison from UT's innocence clinic, the latter particularly critical of JB's chairmanship on the FSC. Regrettably, though, the video kept going out during the final twenty minutes or so of the hearing (I was watching online), so it was difficult to take down details from what was said. 

All the other nominations on today's agenda were approved unanimously but Bradley's, and the Committee had to wait for Sen. Jane Nelson to come back to approve his, a sure sign the vote was particularly close. When Sen. Nelson returned, Bradley's nomination was approved on a 4-2 party line vote.

Video of this morning's hearing has been posted here (click on "February 28, 2011); the FSC portion began roughly fifteen minutes in.

AND MORE: See initial coverage of the hearing from the SA Express-News' Texas Politics Blog, the Austin Statesman, the Texas Observer, and the Lone Star Report. Statesman columnist Ken Herman has additional commentary and video highlights.

Rigged Game: Prosecutors should shut down Austin City Council's 'walking quorum'

Slightly off topic, but my old pal Ken Martin at the Austin Bulldog has blown the lid off the reason I simply quit local work in Austin on police accountability issues or anything else: Votes at the Austin City Council are a rigged game, with special interests dictating outcomes behind the scenes and councilmembers deliberating and making decisions outside public processes that might give average citizens a chance for meaningful input. The Austin Statesman gave the Bulldog props in this story today by Tony Plohetski.

Through a series of open records requests, Martin revealed that the Austin City Council for many years - dating back, unsurprisingly, to Mayor Kirk Watson's tenure - has operated what's colloquially known as a "walking quorum," getting around the Open Meetings Act by deliberating privately in one on one or one on two sessions with the Mayor before actually meeting in public. Previously, the City Council held "work sessions" the day before council meetings where issues were discussed openly in public, but the walking quorum made that unnecessary - they just deliberated behind the scenes and showed up with their votes all decided. And it showed. Citizens might comment at the meetings, but commitments for votes had already been made and public input came to have less and less impact on council decisions. The fix was in, and you could smell councilmembers' disdain in the air for anyone who thought their contrary opinion should be considered before a decision is made.

By comparison, the Texas Legislature is literally a bastion of democracy. Why? Because they have rules on when legislation can be considered that they actually must follow or their bills get killed with a "point of order." At the Austin City Council, such rules are a joke and as you can tell by the emails (some of which are excerpted at the end of Tony's article), that councilmembers are laughing and snickering at their constituents from behind the veil of secrecy they've cast over the decisionmaking process.

This is illegal and the Mayor and Councilmembers who participated in the walking quorum should be prosecuted for violating the Open Meetings Act. I'm tired of Austin city politics being a rigged game. Travis County Attorney David Escamilla, please, put a stop to this crap. Or if he won't, Attorney General Greg Abbott should step in to do so.

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.

RELATED:

• Willingham case stalled in seemingly stacked panel at forensic commission
  
• Online broadcast of Forensic Science Commission meeting today
  
• Forensic commission's Willingham committee meeting in secret
  
• Forensic commission should 'reconsider' rules, pull Willingham case out of stacked committee
• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority?
• Saying 'no' to John Bradley
  
• Bradley violated Open Meetings Act at forensic hearing

Forensic commission's Willingham committee meeting in secret

Committee meetings of the Forensic Science Commission are being held in secret, including a committee evaluating the Todd Willingham arson investigation which met yesterday. Death penalty activist Scott Cobb emailed FSC coordinator Leigh Tomlin to ask:

I heard your voice mail that the Complaint Screening Committee and the Investigative Committee on the Willingham/Willis Case held meetings yesterday in Dallas. When and where were they held? I didn't see any meeting notice posted on the website. I only knew about it because I had read in the Houston Chronicle that it was going to be held next Thursday. Did the Commission provide a public notice before the meetings were held? How can the public be aware of when these meetings are going to be held in the future? Are there minutes available of the meetings yesterday?

Tomlin replied with a single sentence: "The meetings were not public meetings."

They could be public, of course, at the discretion of the commission and the chair. But the new rules Chairman John Bradley rammed through at the commission's last meeting allow him to opt to have closed sessions.

Having watched that meeting online, I seriously doubt the majority of commissioners understood that this would be the result or intended to close their deliberations. This is simply the chairman exercising his discretion in the convenient absence of any rule to the contrary. This is what happens when rules aren't publicly posted or even shared with commissioners before the day they're required to vote on them. One hopes the commission majority will override their chairman to revisit and amend those rules, making committee hearings public and publishing their agendas just like regular commission meetings.

The Forensic Science Commission never conducted its business in secret before. What do they have to hide?

Cobb emailed me the above exchange and asked, "Do you think the Texas Forensic Science Commission is justified in holding non-public meetings of the three person committees it has set up?" I replied, "Legally, yes. However clearly discussing more things in private was a primary purpose of the new rules."

Doublechecking on the legality, according to the AG's Open Meetings handbook (p. 19 of the pdf), "Generally, meetings of less than a quorum of a governmental body are not subject to the Act," except "when a governmental body appoints a committee that includes less than a quorum of the parent body and grants it authority to supervise or control public business or public policy, the committee may itself be a 'governmental body' subject to the Act."

But who cares? It may be legal but that don't make it right.

MORE: See the Houston Chronicle's Rick Casey's column predicting further delays in the Willingham investigation published earlier this week.

RELATED:

• Forensic commission should 'reconsider' rules, pull Willingham case out of stacked committee
• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority?
• Saying 'no' to John Bradley
  
• Bradley violated Open Meetings Act at forensic hearing

Bradley violated Open Meetings Act at forensic hearing

A Houston Chronicle column by Rick Casey ("The revolt of the scientists," Jan. 31) details behind the scenes wrangling at the Forensic Science Commission meeting on Friday, in which Chairman John Bradley first ejected, then reluctantly allowed in, a documentary camera crew tracking the Willingham case. Here's a tasty excerpt:

Friday started badly for John Bradley, the Williamson County district attorney selected last fall by Gov. Rick Perry to ride herd over the troublesome scientists on the Texas Forensic Science Commission.

His first official act of the morning was to violate the state's open meetings law.

Then his day got worse. ...

Bradley unilaterally wrote the agenda for Friday's meeting to focus on new policies and procedures, omitting the Willingham report. He also unilaterally chose Harlingen (which is as close to Mexico City as to Fort Worth, where three of the nine uncompensated and busy commission members live), making wrong my snide prediction that he would hold the meeting in Presidio to discourage reporters.

The session took place in a modest meeting room at a Marriott Courtyard Hotel. A few area reporters were seated around the walls, as well as a handful of protesters carrying signs. A camera crew from the national Innocence Project streamed the meeting live on the group's Web site.

But Bradley evicted an Austin-based documentary crew before the meeting started. One of its members called the attorney general's office in Austin, which sent a message to Barbara Dean, the assistant district attorney who has attended all of the commission's meetings, providing legal guidance since its inception.

An hour and a half into the meeting, Dean, seated behind Bradley, tapped him on the shoulder and quietly spoke into his ear. He announced a 10-minute break, and when the meeting resumed the film crew was in the room.

When I asked Bradley about the matter, he curtly told me to talk to the film crew. I said I had and he replied with annoyance: “Then you know.”

His defensiveness was understandable. Enforcement of the Open Meetings Act is the responsibility of local district attorneys such as himself.

See related Grits coverage of the meeting:

• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority? Some say 'no'

'Chairman of Texas forensic science panel oversteps his authority'

The title of this post is the headline of a Fort Worth Star Telegram editorial today chastising Williamson County DA and Forensic Science Commission Chairman John Bradley for an array of recent moves aimed at clouding the commission's work in secrecy. Bradley wants to make meetings closed, records secret, and now he's telling other commission members to delete their emails and that only he may speak with the media. Opines the Startlegram:

What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?

Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives.

Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

This whole situation has the outward appearance of a pretty brazen coverup, whatever excuses Mr. Bradley publicly provides for his actions.

Defiant John Bradley rebuffed on secrecy pleas

Blogs play different roles in different types of news stories. Frequently Grits covers topics that receive very little attention from the press, in which case simply reporting what goes on provides a meaningful service. But some stories, like Gov. Rick Perry's replacement of the Texas' Forensic Science Commission chairman with Williamson County District Attorney John Bradley, take on a media life of their own. In those cases, nobody really needs me to give the blow by blow.

Yesterday's Texas Senate Criminal Justice hearing was attended by a full-blown media gaggle, whose coverage I compiled as comprehensively as I could at the end of this post. The whole thing was well covered in the MSM, so I won't give a soup to nuts account here, but rather offer my own after-the-fact impressions. All the usual suspects were there: Between the press, legislators, staff and the audience, it seemed like I knew about 2/3 of the people in the nearly-full hearing room, on both sides of the debate. (Even Judge Barbara Hervey from the Court of Criminal Appeals was kind enough to stop and say "hello.")

Mr. Bradley was the sole witness at the hearing. He seemed to thrive in the limelight with his ego swelling more and more as his performance wore on, to the point at the end of near-open defiance toward Sen. Rodney Ellis and state Rep. Tommy Merritt, the chairman of the House Law Enforcement Committee who sat in on the hearing. In many ways, it was quite an arrogant performance - answering nothing concretely and accusing (implicitly or explicitly) anyone who disagreed with him of bias. Several times Bradley spoke of the Innocence Project with a disdainful sneer as a "New York nonprofit," as though Jeff Blackburn of the Innocence Project of Texas weren't sitting just six feet behind him in the audience. As though Texans don't really care about innocent people locked up in prison.

To dredge up a quote from an old Terry Allen song permanently ensconced in Grits' sidebar, Mr. Bradley, "I don't wear a Stetson, but I'm willing to bet son that I'm as big a Texan as you are."

Bradley's main theme, to which he returned several times, was that the Forensic Science Commission had been "hijacked" by people with anti-death penalty agendas. I kept wondering which statewide GOP official who makes appointments to the commission - Rick Perry, David Dewhurst, or Greg Abbott - does he believe aided and abetted this "hijacking"? Apparently Gov. Perry's original appointees were to blame, since getting rid of them, we're now told, will somehow result in depoliticizing and professionalizing the commission. Sen. Whitmire and others reminded Bradley that those "third parties" of whom he was so dismissive were actually representatives of the public, but that did nothing to mitigate the DA's disdain.

Bradley claimed he's not a political "pawn" (perhaps he considers himself a bishop, knight or a rook), but his main agenda was clearly to justify an open-ended delay in pursuing the commission's pending work. Expect the denouement of the Todd Willingham case to be delayed many, many months - it could easily be after the 2010 general election before the FSC takes it up again, to judge by the timeline laid out yesterday. Bradley says the commission first needs to establish rules, which they'll begin to discuss at their January meeting. Assuming the earliest they might vote on rules would be at their next quarterly meeting, more likely even later, new rules won't be in place until, at the earliest, next fall to consider pending business.

Steve Saloom of the national Innocence Project said at a press conference after the hearing that the commission's enabling legislation does not authorize it to create rules. He later elaborated that former Chair Sam Bassett asked the Attorney General's representative who attended every FSC meeting whether or not they should create written rules, and the AG said they weren't authorized to do so. The reason, said Saloom, was that "The Legislature didn't want to create a behemoth bureaucracy. They wanted it to be composed of experts, and they wanted it to be lean."

Saloom added, "Does [Mr. Bradley] want to add a layer of bureaucracy? ... or is he just doing this to stall?" Whatever his intent, there can be no argument that the outcome is to stall.

Despite the obvious delaying tactics, the good news was that no one on the Senate committee seemed sympathetic with Bradley's request to create exceptions to the Public Information Act for FSC investigations, much less allowing the commission to meet in secret. Whitmire said his intent in authoring the bill was for the agency to be "very transparent, very public." Even Sen. Dan Patrick told Bradley he wants to see "transparency in all the work that you do."

Sen. Whitmire made a point that I brought up yesterday on Grits - the commission's role is to examine the science, not investigating and punishing individual wrongdoing like a law-enforcement or regulatory agency. Oddly enough, Bradley agreed (!), but it's easy to say so when his actions contradict that sentiment: Bradley told the committee he'd asked the Texas Rangers to suggest secrecy standards for investigations, even though the commission is investigating science, not necessarily criminal conduct. As the Houston Chronicle's Rick Casey pointed out, "the job of the commission is to investigate science, not crime. The investigative procedures for that should be developed by forensic scientists, not members of a police agency that will be subject to the commission's review."

Sen. Rodney Ellis gave out some data on arson cases I hadn't heard before: He said 742 people are currently locked up in TDCJ for arson, with 275 per year on average convicted statewide on felony arson charges. Ellis said there's no way to know right now if state of the art arson science had been used in all of those cases. (The short answer is: probably not, especially the farther back you look.) According to insurance industry data, Ellis said, about 43,000 fires per year nationwide result from arson.

Overall, the committee appears committed to increasing oversight of the FSC and making sure Mr. Bradley doesn't succeed in making the agency secretive and unaccountable. Of all the comments from senators, perhaps the most telling was one of the most low-key from Sen. Glen Hegar, a Republican who told Bradley he took the Senate's role confirming Governor's appointees "very seriously" and reminded him that they'd all be watching. I took away from the hearing that there's a bipartisan consensus on the committee, at least for now, that Texas needs to confront bad forensics instead of bury the problem under a mountain of bureaucracy, procedure and doublespeak. Mr. Bradley, by contrast, appeared to be promoting quite a different agenda. Time will tell how it all plays out.

Fending off attacks on open government

I wanted to mention a couple of notable open government cases that merit readers attention.

First, updating the case discussed in this post, the 5th Circuit ruled that two city councilmembers who'd challenged Texas' open meetings act no longer had standing to do so because they're not in office anymore. They never reached the question of whether the Open Meetings Act violates the First Amendment rights of city councilmembers, but requiring elected officials to discuss public business in public is an utterly reasonable restriction IMO. Nobody's reducing the right of individual speech; instead the law limits deliberation between a quorum on the council on public business to open, posted meetings.

Also, I'm pulling for Dallas News and the Attorney General against the Comptroller in a suit headed to the Texas Supreme Court over whether the state must release employee birthdates under the Public Information Act. There's no real way to use that information for identity theft, which is what the Comptroller claims, and there's a huge need for public interest investigators to keep that information open.

As a long-time open records user, I've got a personal dog in this fight because, as the Dallas News argued to the court, there's no other way to identify an individual if you don't have their DOB. Is the employee John Smith who you suspect of graft the same John Smith identified in real estate records who added a large wing to his home? Without the DOB or other identifying information, it's literally impossible to tell. Now, your social security number, driver license number - those things CAN be used for identity theft. But your DOB is on your voter registration information at the county, and voter rolls have never been a source of identity theft that I'm aware of.

I'm pleased to see Justice Dale Wainright expressing skepticism at the Comptroller's arguments, and also glad the Attorney General is aggressively advocating for open government in both these cases. The open government lobby in this state has weakened in recent years as newspapers lose reporters and revenue, so it's more important than ever that public officials stand up to protect openness and ensure accountability.

Open meetings laws a First Amendment violation?

Here's an unfortunate and potentially devastating new ruling by a 3-judge panel of the 5th Circuit Court of Appeals that deserves to be overturned en banc, via the Chicago Tribune:

Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails. ...

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."