Eighteen months ago, Texas Governor Rick Perry appointed Williamson County DA John Bradley to head up the Texas Forensic Science Commission. It was like turning over the Vatican to Richard Dawkins. Bradley, like most Texas prosecutors, thinks forensic scientists have one role: helping the state convict bad guys; Perry’s atheist pope likes forensic testimony crafted to the needs of the prosecution.
Governor Perry put Bradley in charge of the TFSC to keep the Cameron Todd Willingham debacle out of the headlines during his primary fight with Kay Bailey Hutchinson. Perry also tried to stack the commission with people who share Bradley’s worldview, but things haven’t worked out to the governor’s liking. As Rick Casey demonstrates in this informative column in the Houston Chronicle, Bradley is unlikely to receive Senate confirmation.
Senate may save science from politics
By RICK CASEY
HOUSTON CHRONICLE
March 6, 2011, 4:29PM
It may surprise some folks in the more liberal parts of the nation, but while Texas leads the nation in death penalty executions, it also took an important step in 2005 to lead the nation in improving the science that is used to convict suspects.
The Texas Forensic Science Commission was created to police the state’s forensic science practices in the wake of the widely publicized scandals at the HPD crime lab. The seven scientists on the nine-member panel have worked vigorously to keep politics out of the panel and use it to promote more professionalism in a field that hardly works like CSI makes it seem.
But politics have plagued the commission for 18 months — ever since Gov. Rick Perry appointed Williamson County DA John Bradley to head the commission in an obvious political act.
Now it is time for the Senate to confirm, by a two-thirds vote, that appointment. Houston Sen. Rodney Ellis believes he has the votes to remove Bradley. Texans should hope he’s right.
Just days after Perry appointed Bradley, the commission was scheduled to hear testimony from one of the nation’s top arson scientists.
The scientist, Craig Beyler, had already written a report saying the arson investigation that helped lead to the conviction and execution of Cameron Todd Willingham for setting his house on fire to kill his three small children was egregiously unscientific and wrong. Beyler concluded that the arson evidence did not come close to proving the fire was not accidental.
Perry was heading into what was presumed to be a tough primary fight against U.S. Sen. Kay Bailey Hutchison, and Beyler’s findings were particularly sensitive because Perry’s office had been warned that the arson science in the Willingham case was abysmal but had ignored a last-ditch request to postpone his execution so that the issue could be addressed.
Obstructionist
Bradley would succeed in delaying Beyler’s testimony not only until after the primary but until after the general election.
But Bradley has shown himself to have a much more ambitious agenda than delaying one case.
It is, simply put, to cripple the commission.
He held his first meeting in Harlingen to (successfully) discourage press coverage. He began the meeting by violating the state’s Open Meetings Act, barring a film crew from the small conference room he had rented. A call to the Attorney General’s Office forced him to let the crew in.
More importantly, he presented the commission with a set of by-laws that would have given him virtually total control by allowing him to set up a group of committees, select their members and chairmen, and decide which committees handled which issues and investigations.
The scientists, no dummies, blocked him.
Later, Bradley would embarrass the commissioners.
They were trying to educate the sometimes sloppy media and the public that their job was not to judge Willingham’s guilt but to determine the quality of the “science” used to convict him.
In an interview, Bradley, talking like a prosecutor rather than the chairman of a scientific commission, called Willingham “a guilty monster.”
Repudiated memo
In July, he presented the commission with an unsigned memorandum finding that it didn’t have jurisdiction over the Willingham case and claimed it was “drafted, reviewed and edited through the combined efforts of the two members of the FSC who are lawyers, counsel for the Attorney General’s Office.”
When that was exposed as untrue, Bradley, who couldn’t quite admit that he wrote the memo, joined in an 8-0 vote rejecting its conclusions.
Bradley’s attitude toward the use of science was demonstrated back in 2002 when, on an Internet bulletin board for Texas prosecutors, he responded to a prosecutor who wanted a suspect to waive any further DNA testing as a condition of a plea bargain.
“A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentencing. Then, there is nothing left to retest.”
The reason it should be destroyed is that if the defendant later shows evidence he is innocent, he might get his earlier agreement set aside.
“Innocence, though, has proven to trump most anything,” Bradley wrote, as if this is a problem.
I asked him what interest the state has in destroying evidence, especially when scores of Texas convicts have been found innocent based on DNA testing after serving years in prison.
He said we need finality and painted a picture of thousands of inmates filing endless appeals.
That’s an arguable rationale for a district attorney, but it is an untenable philosophy for the chairman of the Forensic Science Commission.
rick.casey@chron.com
Friends of Justice 
The Willingham case shows that there are still many ways for wrongful convictions to lead to the death chamber even though modern DNA science is promoted by some as the solution to wrongful convictions. What a good idea for Texas to have a commission to study forensic science practices! CSI sure doesn’t exist in real life; but anyone who’s even taken High School science classes recently can spot holes in that show–they have to keep new plots coming, after all.
But the forensic scientists (or in the Willingham case, ex-firemen with hunches), still are employed by law enforcement, work with or for the prosecuting attorney’s office, or are independent and only see and work with cops and prosecutors all day. Most would say their job is to collect evidence to find the truth and if a crime has been committed, find and convict the correct criminal; but how independent can they really be? Let alone those like the Pathologist in Canada who thought his job was to provide the best evidence for the prosecution that he could, or DNA or fingerprint technicians who falsify test results in important cases when it’s sure who’s guilty. Should indigent defendants be provided their own independent experts to test and assess evidence? Is this realistic when so few defendants are provided adequate legal help?
There was a bright spot this week on a Texas death penalty case.
The Skinner v. Switzer Supreme Court decision on March 7, 2011 opens new path to DNA testing. Here is the decision:
Click to access 09-9000.pdf
This is one conclusion drawn in the Texas Observer Newspaper
http://www.texasobserver.org/contrarian/the-wider-implications-of-the-skinner-ruling
“”You could argue that the rulings by Texas’ Court of Criminal Appeals are frequently unreasonable, but it’s luck of the draw whether a federal judge will see it that way. In other words, your chances of winning a habeas claim to access DNA evidence aren’t good in Texas. And so it’s been so far for Skinner.
Many…issues have been mitigated now that the Supreme Court has ruled that inmates can pursue claims for DNA evidence with habeas petitions and under federal civil rights law.
That clears the legal barriers for Skinner to pursue his innocence claims. But it also opens a path for many other inmates who, for whatever reason, can’t file habeas petitions.
In short, many prisoners will have access to DNA testing that will confirm or overturn their guilt. It’s another way to catch mistakes in the system. And that can’t be a bad thing.”
Here is some background on the federal law:
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 requires that prisoners who wish to appeal their convictions by state courts must petition the federal courts within one year. In addition, inmates must make all their claims for relief at one time. It’s not difficult to see why these rules would run counter to the interests of real justice in many cases.
Imagine entering the horrifying new environment of prison, and still being forced to file these appeals immediately. That is assuming you are aware of the time-limit, know the law, and realize that your rights have been violated and your original conviction can be challenged. Even in this case, I think your immediate survival might be a higher priority.
State prisoners who are unaware of the one-year limitation simply lose their right of appeal. So do any prisoners who realize that their rights have been violated only after the year has been passed. This is a very likely scenario, since newly arriving prisoners rarely have the legal advice or background to understand these complex issues.
Compounding this problem is the fact that prisoners seeking federal review generally have no right to a lawyer and few have the funds to hire one independently. Consequentially, even those prisoners who are conscious of the time limit often file inadequate petitions of their own. If their efforts fail and they subsequently manage to come up with the money to hire a lawyer–by then it’s often too late.
But the obstacles to seeking justice do not end there. In the case of a Constitutional rights violation by a state court, its ruling can only be reversed if the state court’s application of the law was not just incorrect, but “unreasonable.” Even if the Supreme Court has spoken clearly about the right’s existence and nature, and the state appellate court misunderstood the law, if the state’s incorrect interpretation was “reasonable,” then its decision stands.
So your constitutional rights can be violated during your trial, then the state appellate court can compound this error by incorrectly reaffirming your conviction—but the federal courts can still rule that the mistake was “reasonable,” and you will not get a new trial.
In other words: Rank-and-file prisoners, who are statistically likely to be both impoverished and undereducated and are operating from behind bars, must know the law well enough to file their appeals quickly and correctly. But state appellate judges are not expected to know the law well enough to accurately interpret the rulings of the United States Supreme Court.
All of this is, of course, especially sad if it is a death penalty case. (But after all, this is exactly the motivation for the law in the first place: There’s a reason why it’s called the “Effective Death Penalty Act.”) Never mind that, as NYU Law professor Bryan Stevenson told Bill Moyers in a recent interview, “For every eight people who have been executed, we’ve identified one innocent person. If we will tolerate that kind of error rate in the death penalty context, it reveals a whole lot about the rest of our criminal justice system and about the rest of our society.”
Knowing all this can only deepen the prisoner’s distrust of the American justice system, and his anger will grow day by the day and with every humiliation and abuse that he endures. The rage that he feels is shared by many others, and together their voices ultimately lead to a confrontation with the men running these prisons. When the frustrated prisoners act out, even more draconian measures can be deployed against them. And if prisoners wish to challenge these harsh measures, another law waits to thwart all their efforts: The Prison Litigation Reform Act (PLRA), also passed in 1996.
All of this happened, incidentally, during the Clinton administration. Would you like to write a guest post on this subject?
I am not a writer or overly political so one administration or another is the same to me. I find the two parties do not deviate much on the important issues although they perform great theater for the masses to get our hopes up.
Here is the article on the PLRA and the AEDPA I quoted from.
http://solitarywatch.com/2010/07/10/the-prisoners-catch-22/
I am waiting for an analysis on the Skinner decision by a legal expert.
Take this issue and run with it if you find it worthy of your time.
More info on the Skinner decision:
http://www.utexas.edu/law/magazine/2011/03/07/supreme-court-decides-switzer-v-skinner-in-favor-of-capital-punishment-clinic-client/
Rob Owen, codirector of the Capital Punishment Clinic, argued the case before the Supreme Court.
Owen said about the decision. “The Court’s action corrects the Fifth Circuit’s fundamental misunderstanding of this important principle. As Justice Ginsburg states in her majority opinion, there is no reason to fear that lawsuits like Mr. Skinner’s will overwhelm the federal courts. The high court’s ruling will simply make it possible for Mr. Skinner to vindicate his due process rights in federal court, a right long enjoyed by prisoners in other parts of the country. We look forward to making our case in federal court that Texas’s inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand.”
Kennedy, Alito and Thomas said they feared a gusher of unmeritorious claims. This concerns them more than the rights of the wrongfully convicted or, more likely, they believe that wrongful convictions happen rarely in non-capital cases, and never happen when the death penalty is on the line.
Hi. I bounce from blog to blog, so frustrated and overwhelmed by the huge injustice of our ‘justice’ system. There are many people who are interested in making a difference, but there doesn’t seem to be much head-way.
There is next to no encouragement from the state of NC. I can find very little support to help with change in the case of my husband. Anyone who looks at the lack of evidence, the threatening of the jury, the lack of a forensic expert for his defense, threatening of myself by the assistant DA, can see that the truth was never allowed to be presented. If we had money, this would never have happened, but all of our money went to our kids, and then the bailsbondsmen, and trying to survive until they took him away for life with no evidence.
Who do we write to, how do we speak out against the injustices, of which there are many, so we can get citizens involved?
Thank you.