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Innocence Project of Texas

David Temple granted new trial

Wow.

Kelly Siegler

The state’s highest criminal court on Wednesday granted a new trial to David Temple, a former Katy football coach accused of killing his pregnant wife in 1999.

In an opinion posted online Wednesday morning, the court of criminal appeals sided with Temple’s lawyers, who argued in state district court in 2015 that Harris County prosecutors had illegally withheld crucial information during the 2007 trial.

“First things first: We get David out of jail,” said attorney Stan Schneider Wednesday in his downtown office.

Schneider said Temple will be eligible to bond out of jail in a few weeks, barring appeals from the state. If Temple’s case gets a new trial, Schneider will lead the defense, though he couldn’t say if the evidence withheld in the 2007 trial seemed likely to change the outcome.

It will be up to the incoming Harris County District Attorney, Kim Ogg, whether to appeal the court’s latest ruling or agree to go forward with a new trial.

The court filing Wednesday said several hundred pages of police reports had been withheld from the defense until sometime during the trail, in violation of legal precedent.

“The prosecutor believed, as evidenced by her testimony at the writ hearing, that she was not required to turn over favorable evidence if she did not believe it to be relevant, inconsistent or credible,” the filing said.

See here for previous blogging. The CCA isn’t exactly known for second-guessing prosecutors, so this is a big deal. Kelly Siegler has vigorously defended her actions since the allegations about her withholding evidence came out during the district court hearing last year, but as yet I have not seen a statement from her. It will be interesting to see what Kim Ogg decides to do with this – she could decline to go forward, try to work a plea deal, or ask the court to reconsider its decision. Whatever she decides to do, I’m guessing she’ll take her time making that decision.

Meanwhile, the CCA issued another big decision on what was clearly a big day before Thanksgiving for them.

Four San Antonio women who were imprisoned for sexually assaulting two girls more than 20 years ago are innocent and exonerated, the Texas Court of Criminal Appeals ruled Wednesday.

In the summer of 1994, the two girls – ages 7 and 9 – stayed at the home of their aunt, Elizabeth Ramirez, while their mother was away in Colorado, according to court records. Ramirez’s one-time girlfriend, Kristie Mayhugh, lived with her, and another couple – Anna Vasquez and Cassandra Rivera – would visit the apartment frequently. When the girls returned home, their grandmother reportedly notice a change in the girls’ behavior.

“[T]hey were subdued, scared, and refused to make eye contact. In mid-September, [their grandmother] noticed the girls playing with their dolls in a sexual manner,” according to court papers. “When she asked the girls why they were doing this, [one of the girls said] she and her sister had been sexually assaulted at their aunt’s apartment by the four women.”

In 1997, Ramirez, considered the ringleader, was sentenced to nearly 40 years in prison. The following year, the other women each were handed down 15-year sentences. In 2012, one of the victims announced she was coerced into making a false accusation. That same year, Vasquez was released from prison on parole, and in 2013, the other women were released as the case received another look.

The women are collectively known as the San Antonio Four, and getting a ruling of actual innocence, which qualifies them to receive recompense from the state, is not an easy thing to do; in fact, the visiting judge that originally freed them from prison didn’t think they met the standard for actual innocence. This Texas Monthly story about a documentary that was released last year, is a good overview of the case, so go give it a read. Happy Thanksgiving to you, Elizabeth Ramirez and Kristie Mayhugh and Anna Vasquez and Cassandra Rivera. Grits and the Current, which also has some good background and links to further reading, have more.

UPDATE: More from Texas Monthly.

Forensic Science Commission to examine bite mark evidence

Good.

The board charged with ensuring that reliable scientific evidence is used in Texas courtrooms agreed on Friday to investigate cases in which bite mark analysis was used to secure a conviction.

“We’re talking about the whole field, the validity of the field of bite marks,” said Dr. Vincent DiMaio, the chief presiding officer at the Texas Forensic Science Commission, and the former Dallas County medical examiner. “The problem justifies an investigation.”

The board voted to review bite mark cases to determine whether faulty evidence resulted in wrongful convictions after a presentation from Chris Fabricant, director of strategic litigation at the New York-based Innocence Project.

Last year, the American Academy of Forensic Sciences conducted a study of forensic odontologists and concluded that the analysis could not even accurately determine which marks were bite marks. In 2009, the National Academy of Sciences published a report that concluded there was insufficient scientific basis to conclusively match bite marks. Additionally, the Jo Handelsman, the White House Office of Science and Technology Policy, has said that bite mark evidence should be eradicated from courtrooms.

Bite mark evidence, Fabricant said, has contributed to 24 wrongful convictions nationally, including two in Texas.

“Overwhelmingly, it was the chief evidence in those cases,” he said. “Sometimes, it turned out they weren’t bite marks at all.”

[…]

The Innocence Project is urging the commission to institute a moratorium on the use of forensic odontology in criminal cases.

Dr. Nizam Peerwani, a commission member and the chief medical examiner in Tarrant County, said his agency abandoned the practice more than two decades ago. He recalled one instance in which a dentist identified a bite mark that turned out to be an injury from a crow bar.

“We have no respect, absolutely no regard for bite marks,” Peerwani said.

Grits has been on this for years. I’m a lifelong fan of crime fiction, and I know I’ve read more than a few examples of literary detectives using this technique. I’m surprised there are more cases that will need to be reviewed. Anyway, isn’t it amazing how much good work a body like the Forensic Science Commission can get done when people like John Bradley aren’t around to muck things up?

State Bar accuses Willingham prosecutor of misconduct

Wow.

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

The bar action was filed Mar. 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro county seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery Webb was accused of committing but promising to reduce his sentence if he testified against Willingham.

Jackson has repeatedly denied that he made any pre-trial agreement with Webb in exchange for his testimony. The former prosecutor acknowledged that he and others made extraordinary efforts to help Webb, but said they were motivated only by concern for a witness who had been threatened by other prisoners because of his testimony.

A lawyer for Jackson, Joseph E. Byrne, on Wednesday urged that people withhold judgment about the case until all the evidence was presented and took issue with the grievance filed against his client by the Innocence Project, a legal advocacy group.

“I disagree with much of the information that was put together by the Innocence Project and do not find it to be objective,” Byrne said.

[…]

Told of the state bar’s action, Willingham’s stepmother, Eugenia, said, “John Jackson committed a crime, and I want him punished. If the appeals court had known the truth, Todd would probably be alive today.”

A staff attorney for the Innocence Project, Bryce Benjet, said the group was encouraged by the bar’s disciplinary action. “Withholding exculpatory evidence and the presentation of false testimony in a death penalty case is quite possibly the most serious ethical breach for a lawyer you can imagine,” he said.

The disciplinary petition contends that “Jackson failed to make timely disclosure to the defense details for favorable treatment for Webb, an inmate, in exchange for Webb’s testimony at trial for the state.”

“During a pre-trial hearing on July 24, 1992, (Jackson) told the trial court that he had no evidence favorable to Willingham,” the complaint continues. “That statement was false.”

The Marshall Project disclosed earlier this month the existence of a letter sent by Webb to Jackson in 1996 asking Jackson to comply with what he called their “agreement” to reduce his judgment from aggravated robbery to robbery. Within a few weeks, Jackson obtained a court order that reduced the charge.

The grievance that led to this charge was filed last year after the evidence from Webb about his testimony being coerced first came to light. The Trib had a story last week that reviewed all this and that indicated that the charges against Jackson were coming. Go read that to get up to speed if you need to. As I said when this grievance was filed, we have started to see some rogue prosecutors be held accountable for their illegal actions. It would be a small but fitting piece of justice if John Jackson were to be held accountable for his. The Chron has more.

Michael Morton still has work to do

We should be glad he’s doing it.

Michael Morton, who spent nearly 25 years in prison for a murder he didn’t commit, said Monday that under current DNA testing requirements, he wouldn’t have had access to the evidence that led to his release.

Morton joined state Sen. Rodney Ellis, D-Houston, and lawyers from the New York-based Innocence Project at a press conference to urge passage of a bill to expand access to DNA testing in criminal cases.

“This is about making sure the right person is convicted and making sure our communities are safe,” Ellis said.

Senate Bill 487 would allow courts to grant DNA testing for pieces of evidence that have a “reasonable likelihood” of containing biological material, like saliva or sweat, that may not be visible to the naked eye.

A February 2014 ruling by the Texas Court of Criminal Appeals set a precedent of only granting DNA testing on pieces of evidence if there was proof that DNA evidence existed on those items. The court denied death row inmate Larry Swearingen’s request for DNA testing on the pantyhose used to strangle the victim because it wasn’t clear that tests would turn up any evidence.

“If the interpretation of the law as it stands now was enforced when I was trying to get access, I would not have been able to see that access,” Morton said. “We would not have been allowed to test it.”

SB487 would clarify another bill by Sen. Ellis from last session (SB1292) that mandated DNA testing for all biological evidence in death penalty cases. That’s in addition to the Michael Morton bill that will more tightly control the disclosure of evidence by prosecutors to the defense. The Observer highlights the importance of this session’s effort.

Innocence Project attorney Nina Morrison, who represented Morton, said that the bill “strikes the right balance” by giving judges the appropriate amount of discretion to order testing without turning the courts into DNA testing mills.

In Morton’s case, it took a court five years to grant permission to run a DNA test on relevant evidence.

“For somebody to be in a court battle about whether there is evidence for testing when the labs can just tell us—it just seems like a real waste of everybody’s time,” Morrison said.

Who knows, maybe if now-former Williamson County DA John Bradley hadn’t worked so hard to waste everyone’s time back then, he’d still be DA now. Too bad for him. SB487 should have bipartisan support but there still needs to be a House sponsor. Let’s get on with this, y’all. Grits has a copy of Sen. Ellis’ press release, and the Innocence Project has more.

While we wait for a ruling in the Rick Perry case

This story about a group of big-name lawyers filing a brief in support of Rick Perry’s motion to dismiss the charges against him ran a week ago. I put off writing about it because it looked like we might get a ruling on the motions from Judge Bert Richardson, but since he’s still thinking about it I figured I’d go ahead and finish what I’d started to write. I have what you might call a stylistic beef with the story as well as a substantive disagreement with the argument these gentlemen have put forward.

Corndogs make bad news go down easier

This corndog will not be silenced

A bipartisan group of lawyers and legal scholars is asking a judge to dismiss a criminal indictment against Gov. Rick Perry, arguing their objections to the case transcend politics.

“We have no personal or political stake in this case,” said James Ho, a Dallas lawyer who helped organize an amicus brief filed Monday morning. “We come from different political backgrounds. But Republican or Democrat, conservative or liberal, what unites us is our commitment to the Constitution, and our belief that this prosecution is profoundly mistaken.”

[…]

The brief filed Monday concludes the “prosecution must end immediately,” calling it “disturbing” that Perry could be indicted for actions he took during a political dispute. The groups cite a few examples of politicians using threats to work their will without facing the same consequences Perry has, most recently President Barack Obama telling congressional Republicans he’d issue an executive order on immigration reform if they didn’t act.

The 24-page brief has the backing of legal experts with Democratic backgrounds such as Jeff Blackburn, founder of the Texas Innocence Project; Paul Coggins, former U.S. attorney in Dallas; and Harvard Law professor Alan Dershowitz, whose skeptical remarks shortly after the indictment were used by Perry to argue even his political opponents think the case is bogus. Republicans on the brief include former U.S. solicitors general Ted Olson and Ken Starr, who now leads Baylor University.

See Texas Politics for more. The stylistic grievance I have is with the description of this group as “bipartisan”, since the term is being used to plant the idea that “see, even Democrats think the case against Rick Perry is bogus”. Look at the names highlighted in the story. One one side, you have three high profile professional Republicans – Ted Olson and Kenneth Starr, both former Solicitors General in Republican administrations, plus James Ho, a former Solicitor General for Texas under Rick Perry. On the “Democratic” side, you have one former US Attorney who – with all due respect – no one who doesn’t already know him has heard of, and two high-profile people that aren’t Democrats in a meaningful sense. Neither Alan Dershowitz now Jeff Blackburn has worked professionally for a Democratic administration or organization as far as I could tell by looking at their bios online. Dershowitz is an outspoken and often controversial academic whose stated beliefs are iconoclastic and not easily pigeon-holed into a left/right dichotomy. Blackburn heads up a well-respected non-profit that by its nature works closely with Democrats and Republicans. Folks in the criminal justice reform business tend to be single-issue focused and will gladly work with whoever supports them – see, for example, this recent Observer story and the remarks within it by Ana Yáñez-Correa, head of the Texas Criminal Justice Coalition, which include a warm endorsement of the newest Republican State Senator, Charles (no relation to Rick) Perry. Take these two “Democrats” out and you’re left with a group of mostly powerful Republicans standing in support of Rick Perry. There may or may not be merit to what they’re saying, but as a story it’s a lot less sexy this way.

As for my substantive objection, comparing Perry’s action to the standoff over immigration and a threatened executive order on DACA is so laughable I have to wonder if any of these high-profile signatories are even familiar with the case at hand. What this case is about is very simple: An elected official may not use the power of his or her office to try to coerce the resignation of another elected official. It’s not in dispute that this is what Rick Perry did. His defense boils down to 1) the laws that he is charged with violating were not intended for this use and are not applicable in this instance, and 2) he has a First Amendment right to make the kind of veto threats that he made. There may well be merit to point #1 – I have seen attorneys of the Democratic persuasion take pause with this. I’m not qualified to assess the legal fine points, but I recognize that Mike McCrum is tilling a new furrow here. Of course, Rick Perry did something no one had done before, too, so we’ll leave that up to Judge Richardson. As for the First Amendment argument, I claim no expertise but it seems to me that the exception being carved out here is narrow and well-defined. I see a bright line, not a slippery slope. Your mileage may vary, and so may the judge’s. If that’s the case, then so be it. I’m just not impressed by the smoke that these attorneys are trying to blow my way.

Finally, there’s a partisan question, raised in the comments here. Would I be so supportive of this prosecution if I didn’t have such a hearty dislike for Rick Perry? It’s always hard to objectively evaluate one’s own biases, and the partisan contours of this dispute were evident from the beginning, which makes it more difficult. But here’s a thought experiment to consider. We just elected ourselves an Attorney General that has some legal baggage of his own, including a criminal complaint, an SEC complaint, and a state bar grievance. It is possible that in the near future Ken Paxton could be in even more hot water than Rosemary Lehmburg once was. Now imagine that the gubernatorial election had turned out differently. How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down? I would suggest that how you feel about that and how you feel about the Perry indictment should be about the same. If they’re not the same – in particular, if the way you feel about one is the polar opposite of how you feel about the other – that may mean you’re letting partisan feelings cloud your judgment. Just something to think about.

John Bradley’s second act

Lisa Falkenberg brings a fascinating and unexpected update to the story of John Bradley, the former Williamson County DA and Texas Forensic Science Commissioner who served as one of the main villains in the Michael Morton case.

Since losing elected office, Bradley has tried to find work. In 2012, I wrote about him applying to lead the state’s Special Prosecution Unit.

No one would take him. Until now. It seems Bradley has landed another prosecutor’s post. Not in Texas. Not in the United States. In the tiny Republic of Palau, where, according to several sources, Bradley has accepted a position in the attorney general’s office.

The former U.S. territory of about 20,000 people in Micronesia was granted independence in 1994, and now operates in “free association” with the United States.

Barry Scheck, co-founder and co-director of the New York-based Innocence Project, said he learned about Bradley’s new job in a mass email from Bradley’s wife.

[…]

Rob Kepple, executive director of the Texas District and County Attorneys Association and a former colleague of Bradley’s at the Harris County District Attorney’s Office, said he hoped the island nation would provide a fresh start for his friend.

“It’s been awhile,” Kepple said, referring to the Morton revelations. “You know, maybe he gets another chance. Maybe he’s got to go all the way to Palau to get it. But I wish him well.”

Scheck, at the Innocence Project, echoed that sentiment.

“He’s certainly going quite a few thousand miles away in order to reinvent himself and we’re all in favor of second acts in American lives,” Scheck told me Tuesday.

Even Michael Morton maintained his graciousness when I asked what he thought about the prosecutor who wronged him returning to prosecuting.

“I don’t wake up every morning gnashing my teeth and shaking my fist at, you know, ‘where’s John Bradley?’ I’ve literally and figuratively moved on,” he said.

“At this stage of the game, I wish him well,” Morton said. “And, you know, adios.”

Morton’s Houston-based attorney John Raley, who worked the case for free, and fought Bradley at every turn as he tried to stymie Morton’s appeals, was a tad less gracious.

“I’m not aware of any evidence that he has learned the lessons of the Morton case,” Raley said of Bradley. “His actions in the future will answer that question.”

Part of me thinks everybody, even John Bradley, has the right to make a living, to learn from mistakes and to get on with life after grievous errors.

The other part thinks Bradley is still a danger to justice everywhere, even 8,000 miles away.

I’ve said repeatedly on this blog that I’m a believer in redemption. It’s the Catholic in me – I may not be a churchgoer any more, but what I learned while I was stays with me and still shapes how I think. The thing is, as we Catholics also know, you can’t be absolved of a sin until you stop committing it. Other than one brief feint in the direction of acknowledging his responsibility in the Morton saga, John Bradley has never shown any indication that he thinks he did anything wrong. If it were up to him, Michael Morton would still be in jail, Ken Anderson would still be on the bench, and the evidence that exonerated Morton and ousted Bradley and Anderson would be in a box somewhere, if it hadn’t been destroyed. So count me in the tad-less-gracious group here. It’s fine by me if John Bradley wants to put his life back together, but he can do that outside the practice of law. Flip burgers, sell cars, groom dogs, dig ditches, paint houses – there’s tons of honest, dignified jobs John Bradley can hold that won’t put him in a position of power over someone’s freedom. If he truly wants redemption, he knows what he has to do to earn it. Grits, who is more gracious than I, has more.

How much will science advance in the courts?

It’s up to the CCA to decide.

Texas’ highest criminal court will hear arguments Wednesday in a case that could affect how evolving scientific evidence is used in courtrooms across the state.

For Neal H. Robbins, the high court’s decision will determine whether he gets another shot at arguing his innocence.

In 1999, a jury convicted Robbins of killing his girlfriend’s 17-month-old infant. A key witness in the case was Patricia Moore, a Harris County medical examiner who ruled the child’s death was homicide by asphyxiation.

But in 2007, after a different medical examiner reviewed the original findings and disagreed, Moore recanted her trial testimony. In a letter to the district attorney, she wrote that while the infant’s death remained “suspicious,” she had come to believe that “a cause and manner of death of ‘undetermined’ is best for this case,” rather than homicide.

Robbins appealed, but in 2011, the Texas Court of Criminal Appeals, the state’s highest criminal court, denied a new trial by a vote of 5-4. In the majority opinion, Justice Larry Meyers wrote that despite her recantation, Moore’s original trial testimony had not been “proven false.”

Now, Robbins is hoping a new law passed by the Legislature in 2013 will cause the court to change course and give him another shot to prove his innocence. The law, Senate Bill 344, by Sen. John Whitmire, D-Houston, allows courts to grant post-conviction relief in cases where scientific testimony that was essential to a conviction has been contradicted. A lower court judge has recommended that Robbins be granted a new trial, but the CCA will make the final call.

Scott Henson, who was quoted in the story, adds some context.

[I]t was the CCA’s ruling in exactly this case that caused prosecutors to back off and agree to the bill’s passage. The court’s ruling in Ex Parte Robbins made clear the CCA would allow convictions based on junk science to stand if the Legislature didn’t change the law. After Robbins, the Harris County DA’s office (which had been the only significant opposition) acquiesced and helped negotiate the final language that’s now in the statute. It would be ironic if Robbins did not now prevail, since this particular case was the one that pushed the bill over the finish line at the Lege.

This is the same new statute under which the San Antonio Four and Fran and Dan Keller were released – they’re now out on bail though the CCA hasn’t given final approval in those cases yet. Those junk science cases are considered more likely to be easily approved, while the Robbins case – which involves an ME who gave erroneous testimony and changed her opinion after she learned more science – is considered the first test case that will provide an indication how the CCA will interpret the new writ.

He has more links and information in his post, so go read it. It’s clear what the CCA needs to do in this case, it’s just a matter of them doing it. I’m not sure what else the Legislature could do if they don’t do their job here. Hair Balls has more.

More evidence of Cameron Willingham’s innocence

The scientific evidence against Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three children, has long been discredited. The other piece of evidence used against him at trial was the testimony of a jailhouse informer, who said that Willingham confessed to him. Now that piece of evidence is under attack.

Cameron Todd Willingham’s stepmother and cousin, along with exoneree Michael Morton, joined the Innocence Project on Friday to call on Gov. Rick Perry to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Willingham, who was executed in 2004.

“We are forever passionately committed to the mission of clearing Cameron’s name,” said Patricia Cox, Willingham’s cousin.

[…]

The [Innocence Project] says it discovered evidence that indicated the prosecutor who tried Willingham had elicited false testimony from and lobbied for early parole for a jailhouse informant in the case.

The informant, Johnny Webb, told a Corsicana jury in 1992 that Willingham had confessed to setting the blaze that killed his three daughters. The Innocence Project also alleges that the prosecutor withheld Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Willingham.

Former Judge John H. Jackson, the Navarro County prosecutor who tried Willingham, said the Innocence Project’s claims were a “complete fabrication” and that he remained certain of Willingham’s guilt.

“I’ve not lost any sleep over it,” Jackson said.

[…]

During the trial, Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.

In a 1996 letter, Jackson told prison officials Webb’s charge should be recorded as robbery, not aggravated robbery.

But in legal documents signed by Webb in 1992, he admitted to robbing a woman at knife point and agreed to the aggravated robbery charge.

In letters to the parole division in 1996, the prosecutor’s office also urged clemency for Webb, arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.

In 2000, while he was incarcerated for another offense, Webb wrote a motion recanting his testimony, saying the prosecutor and other officials had forced him to lie.

That motion, [Barry] Scheck said, was not seen by Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Willingham’s innocence and prevent his death.

An investigation is needed, Scheck said, to improve the judicial process.

I’ve written extensively about the Willingham case. To me, the dismantling of the arson investigator’s evidence is more than enough to convince me that he did not receive a fair trial and very likely would not have been convicted – quite possibly, not even arrested – if valid investigative techniques had been used at the time. Having the non-scientific evidence called into doubt as well – surely there was a failure to disclose, at the least – makes me wonder what anyone might base a continued belief in Willingham’s guilt on. That doesn’t stop Rick Perry from keeping a closed mind about it, of course. Grits, who notes the story here, is clearly correct to say that the best chance for anything to happen with this case begins in 2015, with a new Governor. I personally think the chances are better with one candidate than with the other, but for sure there’s no chance with the current Governor. EoW has more.

Ken Anderson accepts a plea deal

Some closure in the Michael Morton case.

Former Williamson County State District Judge Ken Anderson, who oversaw the wrongful murder conviction of Michael Morton as a prosecutor, was sentenced to nine days in jail on Friday and will surrender his law license as part of a deal to resolve criminal charges and a civil lawsuit.

Anderson entered into a comprehensive settlement involving all matters before the court. Those include a charge of criminal contempt tied to an accusation of failing to disclose evidence during Morton’s 1987 trial, and the State Bar of Texas’ disciplinary case against Anderson over prosecutorial misconduct allegations. Charges of tampering with evidence were also dropped as part of the settlement.

Presiding District Judge Kelly G. Moore ordered that Anderson’s jail sentence — a 10-day sentence with a 1-day credit for time served — should begin on or before Dec. 2. Anderson was also ordered to pay a $500 fine along with serving 500 hours of community service in the next five years. His resignation to the State Bar will be acted on by the Supreme Court of Texas and will be treated as disbarment. Anderson did not address the presiding judge during Friday’s session and exited the courtroom promptly after the hearing was adjourned.

“There’s no way that anything we can do today will resolve the tragedy that occurred related to these matters,” Moore said, before addressing Morton, who was present in the courtroon during the hearing. “The world is a better place because of you.”

See here, here, and here for some background. Grits said that “compared to what Morton faced”, the punishment Anderson received was “relatively weak tea”. I agree with the sentiment, but honestly anything short of a life sentence could be called that. For what it’s worth, Michael Morton himself seems satisfied with the outcome.

Morton sat in the front row of the courtroom on Friday with his wife, Cynthia, and his attorneys and celebrated with his legal team following the hearing.

“When it began, I was asked what I wanted. I said ‘The only thing that I want, as a baseline, is for Ken Anderson to be off the bench and no longer practice law,'” Morton said. “Both of those things have happened and more.”

“I don’t know if satisfying is the right word,” he added, but he said the Anderson case “had to be done.”

My hope is that this will serve as a cautionary tale for other prosecutors. Now they know there will be at least the possibility of real consequences for the bad behavior Ken Anderson displayed. The reforms that Sen. Rodney Ellis passed that will require more disclosure from prosecutors will be beneficial, too. These are steps in the right direction, and there will be more to follow. Nothing can give Michael Morton back what was taken from him, but he will help others avoid a similar fate, and that’s something.

Jefferson pushes for judicial reforms

Most of what Texas Supreme Court Chief Justice Wallace Jefferson had to say to the Lege during his biennial address was good stuff that I hope the Lege will heed.

Wallace Jefferson

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free” and recommended the Legislature create a commission “to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms.” He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system.”

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Jefferson also pushed for indigent defense and more money for civil legal aid. “We must do more,” he said, “to keep the courthouse doors open for all of our neighbors.” He called on lawmakers to increase the amount of funding dedicated to organizations that provide indigent civil legal aid and criminal defense.

Jefferson touted reforms in creating an electronic filing system to lessen the use of paper in courts statewide. “Our courts operate much like they did in 1891,” he said, “with paper, stamps on paper, cabinets for paper, staples, storage, shredding of paper.” He backed Senate Bill 1146, by state Sens. Royce West, D-Dallas, and Robert Duncan, R-Lubbock, to decrease the cost of electronic filing, which he called “a key to ensuring access to our judicial system.

“The era of big paper is over,” he said, prompting laughs and applause from lawmakers.

Finally, Jefferson announced the creation of a special committee of the Texas Judicial Council to look at reforming the state’s guardianship system, in which court appointees make decisions and manage the interests of incapacitated individuals. “An exploding elderly population will stress the guardianship system,” he said. “We must begin to address these issues and prepare.” Currently, he said, Texas has 368 state-certified guardians handling 5,000 guardianships. The number of individuals needing guardianship, he said, is 40,000.

The Statesman has more:

Jefferson also criticized the practice of writing Class C misdemeanor tickets for disruptive conduct in Texas schools, forcing children to answer the charge in court and leaving some, particularly those who cannot afford a lawyer, vulnerable to arrest and a criminal record.

About 300,000 such tickets are written each year, he said.

“We are criminalizing our children for nonviolent offenses,” Jefferson said. “We must keep our children in school, and out of our courts, to give them the opportunity to follow a path of success, not a path toward prison.”

Bills that have been filed to address these concerns are SBs 393, 394, and 395, all by Sen. Royce West. Everything mentioned here by Justice Jefferson is something I support. My only complaint is this:

Another regular feature of these speeches is a call for lawmakers to revisit the way judges are selected. Currently, the judges are elected in partisan contests. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” Jefferson said during his last speech before the Legislature.

This session, several bills aim to address this issue. State Sen. Dan Patrick, R-Houston, has filed SB 103, which would end straight-ticket voting in judicial elections, where a single selection of Democrat or Republican at the top of the ballot carries through elections for all offices, including judges. Two years ago, Jefferson explicitly called for this policy change, saying straight-ticket voting led to “hordes of judges replaced for no good reason.”

*sigh* You know how I feel about this, so I’ll spare you another rant. Let’s just say I hope the rest of Justice Jefferson’s agenda gets a higher priority from the Lege than this does. Grits and EoW have more.

Court of inquiry concludes

The court of inquiry that was examining the behavior of then-prosecutor Ken Anderson has concluded with Anderson’s testimony in his defense. Having seen what he had to say for himself, I find myself not terribly sympathetic to him or his situation.

At times fighting back tears, Anderson called Morton’s case his “worst nightmare” but defended his conduct.

“We had a lot to be proud of, we still do,” Anderson said, his voice wavering. Then, pounding on the witness stand, he continued: “The office I ran was professional, it was competent. We did things right. We got it right as much as we humanly could.”

After testimony ended, [Judge Louis] Sturns said it will be several weeks before the parties reconvene. He did not say whether he will issue a ruling then.

[…]

Anderson, who testified Friday that he’s spent his life savings “defending myself against accusations that I think we all know are false,” claimed the judge only asked for a small portion of the police notes — and he complied.

Asked if there was any weight to accusations he hid evidence, Anderson responded that he’d reviewed the case “until I’m blue in the face. There is nothing in that record that even remotely says that.”

He was later shown a portion of the trial transcript where the judge asked: “Mr. Anderson, do you have anything that is favorable to the accused?” Anderson replied that he did not.

[…]

Anderson said all evidence could be seen differently with the benefit of hindsight. He also accused Hardin of wanting to “see me handcuffed and taken to jail” on matters “that are so bogus it’s unreal.”

Given the chance to address Morton directly, Anderson said he had been gracious since his exoneration and added, “I’ve apologized that the system screwed up and it obviously screwed up.”

“I’ve been beating myself up on what else I could have been done different,” Anderson concluded, “and I frankly don’t know.”

The Trib has a fuller version of that money quote: “I had to spend the money to hire lawyers. And I worked my entire life and now they have it,” he said. I have to say, you’d think a guy who spent a decade or more as a District Attorney would be familiar with the cost of competent defense attorneys. I’m sure some of the people he’s prosecuted could bring him up to speed on that. But be that as it may, he sure is weirdly disconnected from his role in this. I mean, “the system screwed up”? Last I checked, the District Attorney is a pretty integral part of the system. I get that he’s probably limited in what he ought to say during this proceeding, but an “I’m sorry” would have been nice.

Eye on Williamson sums it up nicely.

In watching all of this over the last year and a half or so, I’m not positive that Anderson technically broke any law. But I’m damn near positive there were moral and ethical lapses. And that former Sheriff Boutwell and Anderson knew, deep down in their souls, that Morton was guilty and were bound and determined to put him in jail – no matter what the evidence said. Their egos got in the way of reality. And that later on John Bradley was willing to keep him there for the same egotistical reasons. And lends credence to the many unfair justice stories, that are common place for anyone who has lived in Williamson County for an extended period of time.

Hopefully this will be a cautionary tale for all prosecutors that they are not the judge and jury. That they should allow everyone to look at all the evidence in a case – all the way through the appeals process – to make sure they’re not putting innocent people in jail for crimes they didn’t commit. Because, as this shows, when an innocent person goes to jail it not only ruins their life, but when the truth comes out it ruins the lives, and legacy, of those that put the innocent person in jail as well.

If there’s one other lesson that I hope everyone learns from this, it’s that if a convicted murderer requests that some old piece of evidence be tested for DNA, go ahead and let it be tested. What can it hurt? If he’s as guilty as you believe him to be, the DNA test will vindicate you. And if it proves him right and you wrong, isn’t it better to know, and to not be the villain that tried to keep the truth from coming out? Don’t be like John Bradley, that’s what I’m saying. Texas Monthly has more.

The court of inquiry

Going on this week is a court of inquiry in the matter of Williamson County Judge Ken Anderson, who was the District Attorney that won a conviction against Michael Morton for the murder of his wife, Christine, which as we know has since been overturned after DNA evidence cleared him and implicated another man. The court of inquiry is to evaluate the claims made by Morton’s attorneys that Anderson deliberately withheld exculpatory evidence, which may lead to criminal charges being filed against Anderson if that allegation is found to have merit. The Statesman and the Trib have all the background on this unusual proceeding, and for everything you need to know about the Morton case, read the two-part Texas Monthly story (and be prepared to have your heart broken by it) as well as Scott Henson’s interview with author Pam Colloff. Finally, you can follow the inquiry itself at the Trib’s liveblog.

Whatever else comes out of this inquiry, what I would like to see happen is a re-evaluation of how we think about those who fight crime. From the Trib story:

Anderson, who declined through his lawyer to be interviewed for this story, has contested allegations of wrongdoing and has said that he is sick over the wrongful conviction. And those in the Central Texas city of Georgetown, who have known Anderson over the years, say they can’t believe that the church-going Boy Scout troop leader — who tried to steer young people who veered into his courtroom onto a productive path — could do the unethical things he’s accused of doing. Even some defense lawyers who sparred with Anderson in the courtroom say allegations that he behaved underhandedly are hard to fathom.

“I never thought of him as acting unethically or in violation of the rules,” said veteran defense lawyer Roy Minton. “I did think of him as being very strong and hard on crime, but that was the history of that county.”

In Georgetown’s small courthouse circles, there are different ideas about who may have contributed to the injustice that befell Morton.

Williamson County’s legendary Sheriff Jim Boutwell, a tall, thin cowboy of a lawman who was rarely without his white Stetson, cowboy boots and handcuff tie clip, helped forge the county’s tough-on-crime history.

A former Texas Ranger, Boutwell became famous in 1966 when Charles Whitman went to the top of the University of Texas tower with three rifles and a sawed-off shotgun and fired at students and faculty. Boutwell flew an airplane over the campus, distracting Whitman with gunfire long enough for officers on the ground to take him down. Boutwell cemented his reputation in 1983 when he and a task force of officers extracted hundreds of murder confessions from Henry Lee Lucas. After Lucas was sentenced to death, then–Attorney General Jim Mattox issued a report that dismantled many of the confessions and concluded that the drifter wasn’t even in the same state when some of the killings were committed. In 2001 — eight years after Boutwell died of cancer — then-Gov. George W. Bush commuted Lucas’ death sentence to life in prison.

There’s no question that the path to Michael Morton’s conviction was paved by Sheriff Boutwell’s myopic, almost comically flawed investigation of the case. And whether Anderson was criminally negligent or not, there’s no question that exculpatory evidence was not made available to the defense. By their actions, geared towards convicting Michael Morton, Boutwell and Anderson are responsible for at least one other murder apparently committed by Mark Alan Norwood, who now stands accused of Christine Morton’s death. To me, anyone who by their actions could allow this to happen doesn’t get to be “hard and strong on crime”. Too many people who have that reputation – and this certainly includes now-former Williamson County DA John Bradley, who lost his primary race last year after waging and finally conceding a long battle to keep Michael Morton from doing the DNA test that led to his exoneration – who are more accurately described as being “tough on defendants” or “tough on suspects”. The two are not the same, a lesson I hope is finally starting to sink in. Maybe Mark Alan Norwood would not have been caught in time to prevent him from killing Debra Baker in 1988, but there’s no doubt that Boutwell and Anderson’s zealous pursuit of Michael Morton cost him 25 years of his life, for no good purpose. Had they been as committed to the truth and to justice with the same fervor, the world would be a better place today. It’s time for us to rethink what it means to be “tough on crime”, because the way we use that phrase now, it’s not a virtue.

Arson review moving forward

Good.

A long-awaited review of old Texas arson cases — an unprecedented search for wrongful convictions based on bad fire investigation science — is picking up speed and will probably produce the first results in January, participants said [last] Friday.

One suspect case has been identified and about 26 others are being scrutinized for evidence that investigators relied on now-discredited “myths,” instead of science, to determine that the fires were intentionally set, said Nick Vilbas with the Innocence Project of Texas, which is leading the review.

“We hope to be done pretty soon,” Vilbas told the Texas Forensic Science Commission during Friday’s meeting in Austin.

A panel of fire experts, assembled by new Texas Fire Marshal Chris Connealy, is scheduled to hear details of the first batch of suspect cases in January. Their findings would help determine how each case should proceed in the criminal justice system, Connealy said.

The Star-Telegram provides more details.

“We’re looking at four or five cases,” said Jeff Blackburn, chief counsel for the Innocence Project of Texas. “Those are going to be looked at hard.”

Blackburn is scheduled to appear before the Texas Forensic Science Commission in Austin to report on a records examination of hundreds of arson convictions. The effort is aimed at finding examples of junk science similar to that used to convict Cameron Todd Willingham of killing his three daughters, which resulted in a controversial review by the commission. Willingham was executed in 2004.

Blackburn says one or more of the new cases may involve inmates from North Texas.

At the request of the state’s top forensic panel, the Texas Innocence Project reviewed 1,025 arson-related crimes in Texas from recent years, and concluded that most don’t involve questionable evidence. A small number, maybe a half dozen, may have used scientific processes now deemed to be faulty, Blackburn said.

Blackburn’s work, commission members have said, is expected to send a clear message to fire investigators on the proper protocols for handling arson-related cases.

This has been a very long time in coming – it was two years ago that the Forensic Science Commission agreed to this review, and I think we know how much went on before we got to that point. It’s not a lot of cases to review, but they all sure matter to the possibly innocent convict who’s been in jail for it for however many years. I’ll be interested to see how the prosecutors of these cases react, given how resistant the Willingham prosecutor (among others) have been to this kind of review. Grits has more.

Why better eyewitness ID procedures matter

Because bad eyewitness ID procedures can lead to the wrong people being executed.

State Sen. Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect’s identification was a “textbook example” of why the system needs to be reformed.

“What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case,” Ellis said in an email.

“… The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases.”

Accounts of the crime, the investigation and DeLuna’s prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

That Columbia Human Rights Law Review article is here. The Trib has an interview with its author, and notes that a Chicago Tribune investigation from 2004 came to the same conclusion. The prosecutor in that case disputes these findings, which as we’ve seen with Todd Willingham and others is not unusual. What’s also not unusual is the fact that there was a questionable eyewitness ID as a key aspect to the state’s case. According to the Innocence Project, of the first 289 post-conviction DNA exonerations in the United States, “Eyewitness Misidentification Testimony was a factor in nearly 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions”. Getting eyewitness procedures right up front can and will avoid this problem. As Grits notes, Texas law-enforcement agencies must have in place by September 1 new procedures developed by the Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State. Not all of what Ellis and Gallego’s legislation would do is required, however, and there continues to be resistance to these reforms from within law enforcement. We’re heading in the right direction, but we’re not where we need to be just yet. Mark Bennett has more.

“Open letter to Williamson County”

John Raley is the attorney who worked for years to exonerate Michael Morton on the charge of murdering his wife in 1987. The key to the case was a bloody bandana, which DNA testing showed belonged to the real killer. Williamson County DA John Bradley fought against allowing the DNA test to proceed at every step. Bradley has had to explain his role in this process since Morton was declared “actually innocent”, and lately he’s been saying some things that Raley says are untrue. Raley wrote the following to set the record straight:

Open Letter To Williamson County:

I have resisted becoming involved in the upcoming election for District Attorney of Williamson County, because I believe that the decision should be made by local citizens. However, I have become increasingly concerned about statements made by Mr. Bradley regarding the Michael Morton case, and now feel the need to set the record straight. In doing so, I am not speaking on behalf of my dear friend and pro bono client for the last eight years, Michael Morton, nor am I speaking on behalf of my co-counsel with the Innocence Project who fought with me so long for DNA testing. I am speaking personally, and am not endorsing any candidate.

The world now knows that Michael is, and always has been, innocent. His dear wife was murdered in their home while he was at work, just as he has always maintained. When Michael was formally exonerated last fall, Mr. Bradley called to apologize to me and asked that I convey his apology to Michael. I hoped at the time of the call that Mr. Bradley had learned from this experience and had changed. However, I am concerned from reading recent statements by Mr. Bradley during the campaign that he is retracting his previous admission of responsibility for decisions that kept Michael in prison an extra six years and eight months.

On February 11, 2005, we filed our motion for DNA testing of, among other things, a bloody bandana found behind the Morton home after Christine’s murder. Such testing would cost the State of Texas nothing, because the Innocence Project offered to (and later did) pay for it completely. In 2005, and in virtually every brief and argument since, in state trial and appellate courts and in federal court, we contended that the bandana was found behind the house along the likely escape route of the murderer. We also pointed out that the bandana (1) may contain the blood of Christine Morton, (2) may also contain the DNA by blood, sweat, or skin cells of the murderer, and (3) the DNA of the murderer may lead to a hit on the national databank of known offenders. [Note: we did not know at the time that the DA’s trial file from 1987 contained a description of a stranger seen the days before the murder, driving an old van, and walking around behind the Morton house – exactly where the bandana was found.

Michael’s 1987 trial defense counsel have signed affidavits that they never were made aware of this key document and other critical investigative documents that would have been used in Michael’s defense.] Contrary to Mr. Bradley’s statements during the campaign, there are no valid chain of custody issues or contamination issues regarding the bandana. The bandana was seen by law enforcement on the very spot it was found by Christine’s brother and immediately handed to law enforcement for safekeeping. Following protocol, it would have been placed in a separate bag. There is no evidence otherwise. The blood, one day after the murder, would have dried. But the DNA was there, waiting like a time capsule to be tested.

I am not a criminal lawyer, but I come from a law enforcement family. I sought the advice of my father, a retired prosecutor, and he recommended that I call Mr. Bradley on a personal level to see whether he would agree to the testing, or at least not oppose it. I made several such efforts, even driving from Houston to Georgetown for a meeting with Mr. Bradley and my co-counsel from the Innocence Project, but all such efforts were rebuffed.

Instead of agreeing to a simple test, that can only reveal the truth, that would be free to the State, Mr. Bradley spent countless hours and taxpayer dollars opposing the testing every way he possibly could. It cannot reasonably be denied that if the murder happened in 2005, the bandana would have been DNA tested as part of law enforcement’s efforts to identify the murderer. The technology was not available in 1987, but it is now. There is no good reason not to allow DNA testing to reveal the truth – whatever it is. When I asked Mr. Bradley why he was fighting so strongly against DNA testing, he said “it would muddy the waters.” I responded, “Mr. Bradley, truth clarifies.” I tried to explain to Mr. Bradley the many flaws in the State’s presentation at trial against Michael, but Mr. Bradley was not interested in hearing about it. I tried to hand him the two lie detector tests Michael passed shortly after his wife’s murder, and he refused to look at them.

During this time, Mr. Bradley publically belittled our efforts, saying the bandana was “irrelevant”, that we were “grasping at straws”, and that we were searching for a “mystery killer.” He wrote letters to the parole board opposing a parole for Michael (who had by that time spent 23 years in prison) because Michael had not “accepted responsibility for the murder of his wife by mercilessly beating her to death.” He told the media: “The public might want to remain skeptical of a defendant who to this day doesn’t accept responsibility.” Around this time, Michael was informed that he would be likely paroled if he would “show remorse for his crime.”

Michael Morton is one of the finest men I know. He is a man of honor and integrity. He refused to lie to get out of prison. He said “All I have left is my actual innocence. And if I have to stay in prison the rest of my life, I am not giving that up.”

When we finally obtained testing of the bandana, after many years of strenuous opposition by Mr. Bradley, the highly sophisticated technology revealed (1) Christine Morton’s blood, (2) the DNA of a man who is not Michael, which when run through the databanks of known offenders (3) led to a direct hit on Mark Allen Norwood, who has a long criminal record in several states for, among other things, breaking and entering residences and assault with intent to murder. Thus, the DNA testing Mr. Bradley fought against so long not only proved Michael is, according to the State of Texas, “actually innocent” — it also led directly to the arrest and indictment of Mark Allen Norwood, who is now awaiting trial for the murder of Christine Morton.

Even after the hit on Norwood, Mr. Bradley’s office continued to fight against Michael’s exoneration, and Mr. Bradley publically discounted the bandana’s importance. Our office and the Innocence Project informed the Travis County District Attorney that a cold case in Austin of the murder of Debra Jan Baker, who was killed in her bed exactly the same way as Christine, might be linked to Norwood because he lived nearby at the time. They investigated and found important evidence, which they shared with Judge Sid Harle who was, at that time, presiding over the Morton case. Mr. Bradley could no longer oppose Michael’s exoneration, and a few days later backed down and agreed to Michael’s release.

I am hopeful people remember that when an innocent man is convicted of murder and wrongfully incarcerated, that means that the real murderer is allowed to go free and commit other crimes. Resistance to an honest search for the truth through DNA testing only prolongs the time that the the real murderer (or rapist, or other form of serious criminal) may be at large. People like to talk about being “tough on crime.” I propose, rather, being “smart on crime” – making sure that the guilty party is the one who is caught and eventually convicted. That’s what keeps our streets safe, and is what prosecutors should strive for. Although Mr. Bradley did not try the case that wrongfully sent Michael to prison and let the murderer go free, he is largely responsible, in my opinion, for adding the last six years and eight months to Michael’s tragic story. For nearly 2,400 additional days, the cell doors clanged shut on an innocent man. At one time Mr. Bradley accepted responsibility for his role. I hope he has not changed his mind about that.

Truth and justice are more important than winning an election.

John W. Raley

All I can say is “wow”. Via Grits and Wilco Watchdog.

Court of inquiry appointed in Morton case

Maybe now we’ll get some answers.

A special court will examine whether Georgetown District Judge Ken Anderson acted improperly when, as Williamson County’s district attorney in 1987, he prosecuted Michael Morton for a murder the authorities now acknowledge he did not commit.

Texas Supreme Court Chief Justice Wallace Jefferson convened a court of inquiry Thursday to examine allegations, leveled by Morton and his lawyers, that Anderson hid evidence that could have spared Morton from the murder conviction and almost 25 years in prison.

Jefferson also appointed District Judge Louis Sturns of Fort Worth to conduct the court of inquiry, a rarely used feature of the Texas criminal code designed to determine whether state laws have been broken.

“This is a historic moment for Texas justice,” said John Raley, a Houston lawyer who has represented Morton for free for the past eight years.

[…]

A court of inquiry is a fact-finding exercise that cannot result in a criminal conviction or punishment against Anderson, but a finding of misconduct could lead to criminal charges or disciplinary proceedings before the State Bar of Texas, according to Morton’s lawyers.

I have no idea how long this may take, but we may finally get some closure on this.

In the meantime, this made me angry.

[Last] week, the State Bar of Texas opened testimony in its lawsuit against a Lubbock attorney who faces possible disbarment for taking millions of dollars in compensation from 12 men cleared after DNA evidence showed they were innocent of charges. Attorney Kevin Glasheen acknowledges he collected $5 million in fees, a 25 percentage contingency fee taken from the payments the state of Texas pays to wrongfully convicted prisoners who prove their innocence.

Glasheen claims the fees are fair, saying his clients received more money from the state because he successfully lobbied for legislation increasing state payments to exonerees, from $50,000 to $80,000 for every year served in prison. He also says he kept only $3.5 million, sharing the rest with Amarillo attorney Jeff Blackburn, chief counsel for the Innocence Project of Texas, who assisted with the cases because of his expertise.

The Lubbock attorney entered into contracts with the wrongfully convicted men because he intended to file federal civil rights lawsuits on their behalf. But he changed his strategy, and chose to lobby for passage of legislation awarding more state compensation, rather than pursue the federal lawsuits.

Sen. Rodney Ellis, D-Houston, who has made helping wrongfully convicted people his signature legislative issue, was appalled at Glasheen’s enormous fee – and his reasons for collecting it. “It’s amazing, when a bill passes the Legislature, how everybody other than the people in the Legislature are responsible for it,” said Ellis, a co-sponsor of the legislation. “My staff and I did a heck of a lot of work.”

Ellis is board chairman of the Innocence Project of New York, an entity separately run from the Innocence Project of Texas, where Blackburn works. Ellis said he knows nothing about the inner-workings of the Texas-based group.

“I did not know they had this arrangement,” referring to Blackburn and Glasheen’s fees from the exonerated men, Ellis said. When they appeared at the Capital favoring his bill, “I thought they were there because they cared about the issue. I’m very disappointed.”

The State Bar ultimately lost their lawsuit, so Glasheen and Blackburn stand to collect their lobbying fees. Good luck sleeping at night, fellas.

Meet the Houston Regional Forensic Science Center

Mayor Parker has revealed her vision for an independent regional crime lab.

Mayor Annise Parker proposed on Wednesday taking control of the city’s crime lab away from the police department and handing it to an independent seven-member board with expertise in forensic science and fiscal management.

“I clearly prefer to have our forensics sciences not under the influence of police, prosecution or politics,” Parker said.

There are no details yet on where the crime lab would be located or how to come up with what a written report identified as the “significant” start-up costs for a new crime lab.

[…]

Parker proposes forming a local government corporation — a hybrid of sorts between a non-profit organization and a government agency — that would become the new employer of 188 police and civilian employees who currently work for the police department’s crime lab. The city envisions that the seven-member board would include a representative from the Innocence Project, the organization that uses DNA testing to exonerate the wrongfully convicted.

Parker herself would appoint the board members. Council would confirm them.

City Attorney David Feldman explained that such a board, because members could only be removed for wrongdoing, would be more independent than the county medical examiner, who is an at-will employee of Commissioners Court.

The LGC is the key to understanding the proposal, as it is the reason why the lab would be independent in a way that the county’s lab would not, at least as the Mayor sees it. The Chron story from before the announcement discusses that point.

Criminal justice advocates praised Parker’s push for independence.

“We definitely see it as a much-needed step to ensuring that people are not wrongfully convicted,” said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, which advocates for human and civil rights and protecting public safety. “Independence is key.”

The city and county have disagreed on what independence means. County officials insist that although Commissioners Court has the power to appoint the director of its Institute for Forensic Sciences and to set its budget, the operation runs independently of the sheriff and the district attorney. Parker has said that to hand over the city’s crime lab work to the county “simply substitutes one government master for another government master.”

[…]

The mayor’s plan does not preclude merging operations with the county, [spokesperson Janice] Evans said.

“In fact, we hope we can reach agreement on something that would include more entities than the city,” she said. The local government corporation board Parker envisions would have the power to broker deals with other jurisdictions.

County Judge Ed Emmett said that although the city and county are on separate tracks right now, Parker’s proposal ultimately could make it easier for the two governments to come together.

“By having the LGC, it opens up more options for how the city can approach forensic science, including partnering with the Institute of Forensic Sciences,” Emmett said.

That’s what most people would surely like to see happen. It makes the most sense in terms of cost and complexity. We’ll see what happens as more of the details get filled in. According to the post-presentation story, the proposal won’t come up for a vote before next month, so there’s time for things to be tweaked. You can see the Mayor’s presentation here. Backstory on the city and county’s efforts so far can be found here, here, here, here, and here. Stace has more.

Court of inquiry recommended in Morton case

Good.

Former Williamson County District Attorney Ken Anderson should face a court of inquiry to examine allegations that he hid evidence that could have spared Michael Morton from a wrongful murder conviction and almost 25 years in prison, a state district judge ruled Friday.

The finding means District Judge Sid Harle found probable cause to believe that Anderson violated state law in his prosecution of Morton.

But, Harle emphasized, he agreed to seek a special review court as the best way to balance competing needs, giving Anderson a chance to clear his name and Morton the opportunity to seek a greater measure of justice.

“I personally cannot imagine, having been a former prosecutor, a worse stain or tarnish on a prosecutor’s reputation, integrity or legacy,” Harle said.

The deeper examination of the allegations of prosecutorial misconduct would also serve the public’s need for answers in the high-profile case, Harle said at the close of a 75-minute hearing.

[…]

Harle’s request for a court of inquiry, an affidavit certifying that he found probable cause that state laws were broken, will be reviewed by Texas Supreme Court Chief Justice Wallace Jefferson.

If Jefferson agrees, he would name a state district judge to oversee the special court, which would have the power to issue subpoenas, take testimony and make a finding about whether Anderson violated state law. Designed as a fact-finding body, the court would not issue a punishment or criminal conviction.

This is all well and good, but it seems to me that if this much care had been taken back in 1986 to protect Michael Morton’s rights, we wouldn’t need to be doing any of this today. There’s a reason why prosecutors need to be held to a high standard of professional conduct. Grits, EoW, the Trib, and State Sen. Rodney Ellis have more.

“Beyond DNA”

The Dallas Observer has a good story about the state of the exoneration business now that most of the cases involving DNA have been handled.

Since Dallas County District Attorney Craig Watkins took office in 2007, incidents of wrongfully convicted men being released from Texas prisons have become almost commonplace. Dramatic scenes of innocent men finally walking free from county courtrooms are like nectar to reporters, who churn out stories praising Watkins’ creation of his office’s Conviction Integrity Unit, established in 2007 to review potential wrongful convictions. While most of these stories mention DNA testing and the fact that, unlike most counties, Dallas stored DNA evidence indefinitely, Duke’s case was different. Out of 17 exonerations in Dallas since 2007, his was one of only four cases without biological evidence, according to data from the Center on Wrongful Convictions at Northwestern University School of Law.

When Watkins became the county’s top prosecutor, he faced a backlog of about 500 cases involving DNA evidence that had previously been denied testing and that would, in many cases, prove guilt or innocence. In the first couple years of the Conviction Integrity Unit’s existence, DNA-based exonerations rolled out every few months. Most were old sexual assault cases in which semen from a rape kit was still available for modern-day tests. “The classic ‘DNA case’ is a stranger-on-stranger sexual assault. Nothing connects the defendant to the crime except for eyewitness ID obtained through questionable procedures, and the sexual assault kit is preserved years later,” says Mike Ware, who led the Conviction Integrity Unit from its inception until this summer.

After Ware resigned to return to private practice in Fort Worth, Russell Wilson, another long-time criminal defense attorney, took his place. Watkins’ first assistant, Terri Moore, also resigned this summer, and Michelle Moore, the public defender who worked with Watkins’ office on exonerations, left in October to help open a public defender’s office in Burnet County. Duke’s case was the first exoneration under the unit’s new leadership.

With all of the changes, Michelle Moore worries that the unit’s gears are sticking and cases that could be moving forward more quickly are stalled. “I think I see the tendency now to be overly cautious and it’s to the detriment of the innocent man,” she says.

“I get that sometimes it’s not as clear-cut as a simple DNA test, because that’s a gold standard, but there are cases … where there should be some things happening,” she says, though she wouldn’t mention any specifically, fearing they would take even longer. “[Russell Wilson] is a very well respected attorney; he’s the nicest man on the planet. I just want to see more action,” Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. “I’ll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing,” Moore says, but she’s still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

In the meantime, the sheer number of DNA exonerations — and the efforts to uncover how the courts failed so miserably — have revealed troubling gaps in the criminal justice system: Eyewitnesses are more fallible than jurors might think; forensic evidence isn’t always reliable or interpreted correctly; the way police run lineups can lead to wrongful convictions. The trouble is, those problems may just as easily plague cases in which no DNA exists. Modern science has shown the justice system the tip of the iceberg, but how many innocent men and women are suffering in prison and likely to stay there because they have no evidence to test? Where do law enforcement and innocence advocates, faced with sorting out the guilty and innocent, go from here?

“There’s been a strong shift,” Wilson says. DNA-based cases are still filtering through his office, but for the most part, he says, “the newer cases are non-DNA. … It’s a lot more fact-intensive.”

The good news about DNA exonerations is that they have freed a bunch of innocent men from prison, and that they have forced people to recognize the fact that there are unjustly convicted people in prison. The bad news is that DNA is a factor in only a small number of cases, and it was preserved as evidence in a small share of those cases, so if DNA evidence has become the de facto standard for triggering the exoneration process, a whole lot of other innocent people will be left behind. As Grits points out, there are still many arson cases that need review, and an untold number of people whose convictions were due in part to the no-discredited “scent lineups” of former Fort Bend County Sheriff’s Deputy Keith Pikett. On top of that, as the Michael Morton case has so clearly shown us, prosecutorial misconduct is another potentially large and under-explored factor in unjust convictions. Local defense attorney Robert Fickman wrote an op-ed on that topic, but did not include any actual policy prescriptions for how to deal with it. Clearly, depending on the State Bar won’t do much, so it’s up to the Lege, and they will need good guidance. There’s still a lot of work to be done to ensure justice for those who have been wrongly convicted and those who could be in the future if nothing is done, and that work gets harder from here.

It’s a long way to Damascus

The Trib has a good story about Williamson County DA John Bradley, whom you may recall as Rick Perry’s chief hatchet man on the Forensic Science Commission, and his apparent conversion to open-mindedness in the wake of the DNA exoneration of Michael Morton, who was convicted of murdering his wife in 1987 by Bradley’s predecessor and mentor, Ken Anderson. It’s a big scandal now because Anderson, now a district court judge, apparently withheld exculpatory evidence to the defense, and Bradley, as is his wont, fought against Morton’s attempts to get DNA testing done and unseal prosecution files for years before finally losing and learning how wrong he was to have fought. I have not followed this saga on the blog – you should read Eye on Williamson and Wilco Watchdog if you want the full story. Anyway, Bradley is now claiming to be a changed man as a result of this experience.

“I have been through a series of events that deeply challenged me,” Bradley, the Williamson County district attorney, said during an extended interview with The Texas Tribune. “I recognized that I could be angry, resentful and react to people, or I could look for the overall purpose and lesson and apply it to not only my own professional life but teach it. And I chose the latter path.”

In the last two years, Bradley and his trademark sharp tongue have been at the center of two of the most controversial murder cases in Texas. In 2009, as chairman of the Texas Forensic Science Commission, he and the New York-based Innocence Project battled aggressively over re-examining the case of Cameron Todd Willingham, the Corsicana man executed in 2004 for igniting the 1991 arson blaze that killed his three daughters. For six years, Bradley also fought the Innocence Project’s efforts to exonerate Michael Morton, who was wrongly convicted of murdering his wife under Bradley’s then boss in Williamson County 25 years ago.

Bradley discovered that not only was he wrong all those years about Morton’s guilt, of which he had been so certain, but that there are serious questions about whether his predecessor may have committed the worst kind of prosecutorial misconduct: hiding evidence that ultimately allowed the real murderer to remain free to kill again.

[…]

Bradley said he regrets that his opposition to DNA testing over the last six years meant more time behind bars for an innocent man. He also regrets sending letters to the Texas Board of Pardons and Paroles urging them to keep Morton locked away.

Had he known then what he knows now about the Innocence Project and Scheck, he said he might have handled the Willingham case differently, too.

This experience has taught him to be more open-minded, to try to see cases from both sides, he said. Bradley emphasized that his office is more open than his predecessor’s was. And in the future, when defense lawyers bring him cases to review, Bradley said, he will have a new perspective.

“If I had to come up with a slogan,” Bradley said, “I don’t know that I would use it, but essentially the slogan would be ‘We are more than tough on crime.'”

Some of his critics, though, see Bradley’s contrition as too little, too late. And they note that he is facing re-election next year. They want more than words.

“The jury is still out on whether those words will manifest themselves into real actions to help fix what is clearly a broken justice system,” said state Sen. Rodney Ellis, D-Houston, chairman of the Innocence Project.

Scott Henson, who writes the well-regarded criminal justice blog Grits for Breakfast, said Bradley could demonstrate his changed perspective by joining with innocence advocates to promote reforms to the Texas justice system. “He’s got a long record,” Henson said. “And it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.”

I’m as big a believer in redemption as the next person, but talk is cheap. I agree with Sen. Ellis and Henson that it’s what Bradley does next that will determine if he means this or is just hoping to deflect a weapon that will surely be used against him in the 2012 election. A phone call to Craig Watkins for advice on how to go about ensuring the integrity of past convictions would be a good start. There’s a lot Bradley can do to try to atone and get right with the universe. It’s up to him to do it. Link via Grits, who has more here.

Moving on from the Willingham case

It’s time to move to the next phase and make something good happen.

A state investigation into the science used to convict and execute Cameron Todd Willingham came to a quiet close Friday, but its results might echo across the justice system and the nation’s death penalty debate for years to come.

Making final changes to its report on the Willingham case, the Texas Forensic Science Commission signed off on a document acknowledging that unreliable fire science played a role in the Corsicana man’s conviction for the murder-by-arson deaths of his three young daughters in 1991. He was executed in 2004.

[…]

“The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence,” said Stephen Saloom , policy director for the Innocence Project. “By any fair estimate, that indicates he was innocent, that he did not set that fire.”

That’s likely to be the only acknowledgement of such, at least for the foreseeable future. It’s not enough, but Willingham’s family has accepted it.

“It doesn’t bring my son back, but I know they couldn’t do that,” said Willingham’s stepmother, Eugenia Willingham. “Maybe Todd’s name will go down in history as being a part all of this.”

[…]

Since his 2004 execution, Willingham’s family has continued a fight to prove his innocence. Willingham’s cousin, Patricia Ann Willingham-Cox, thanked the commission for its work.

“Have we gotten justice for Todd in the state of Texas? No, not yet, but we will,” Cox said. “Has Todd’s death effected needed change? Yes.”

That change could be very large indeed:

The agency’s final report includes a commitment from the state fire marshal’s office — whose investigator was the chief prosecution witness at Willingham’s trial — to review old arson rulings to determine whether convictions were based on now-debunked assumptions.

The Innocence Project of Texas will provide most of the heavy lifting — about 40 forensic science and law students — to help the fire marshal identify and review old arson cases, said Jeff Blackburn, chief lawyer for the Texas nonprofit legal organization.

“I think this is a great opportunity,” Blackburn said during Friday’s commission meeting in Austin. “As far as I know, this is the only example of this kind of cooperation going on anywhere in the country.”

Saloom commended the commission for acknowledging that the scientific understanding of fire behavior has vastly improved over the past 20 years — and for listing now-debunked arson indicators in its final report. That action might ensure that unreliable science no longer taints arson investigations in Texas and could serve as a model for other states grappling with the issue, Saloom said.

Hard to know exactly how many cases there will be to review, though the Texas Observer has a few suggestions for where to start. Really, the question is not about finding bogus convictions, but whether the prosecutors involved will accept the findings or cling to their discredited evidence and fight them on the grounds that having a “final result” and “respecting the jury’s verdict” is more important than an innocent person rotting in jail. There’s no shortage of the latter, after all.

AG rules Willingham case off limits for Forensic Science Commission

The last shovelful of dirt is thrown.

The Texas Forensic Science Commission’s investigation of the science used to convict Cameron Todd Willingham — executed in 2004 for an arson that killed his three children — may be at an end after the state’s top attorney Friday ruled that the panel cannot consider evidence in cases older than 2005.

Attorney General Greg Abbott’s ruling is the latest development in the years-long controversy over the commission’s handling of the high-profile case. Advocates on both sides of the issue claimed the ruling as a victory, though it does narrow the scope of what the commission is allowed to investigate.

The commission’s former chairman, Williamson County District Attorney John Bradley, said the decision vindicated his argument that the commission did not have jurisdiction to investigate evidence in cases that occurred before lawmakers created the panel in 2005.

“We should be spending much more time focusing upon these modern forensic science issues,” said Bradley, who requested the ruling in January. Lawmakers did not confirm Bradley’s appointment this year, and so his term ended with the legislative session. “This AG opinion will correct the course of the Forensic Science Commission.”

Bradley had asked Abbott to rule on three issues: the broadness of the term “forensic analysis”; whether the Willingham case was in the commission’s jurisdiction; and if the commission could only investigate work done at labs accredited by the Department of Public Safety.

In his ruling, Abbott wrote that while the commission may investigate incidents that occurred before its creation in 2005, the law prevents it from considering evidence that was gathered or tested before that date. The commission’s authority also is limited only to DPS-accredited labs, Abbott wrote. And, the commission may not investigate fields of forensic science that are specifically excluded in the state’s code of criminal procedures.

Bradley said the ruling should close the commission’s investigation of the Willingham case, because it involved a fire that happened in 1991. “I think much of this involved distractions created by outside entities that had a different agenda, trying to read into this something that wasn’t there,” he said.

Yes, John Bradley successfully completed his mission to ensure that no official review of the Willingham case ever takes place. You’d think that given the extreme confidence that he and his patron Rick Perry have publicly professed about Willingham’s guilt that they would welcome any review, as it would only serve to prove them correct. I guess bravado has its limits. It really is amazing how much effort was expended to keep eyes and hands off of this case. You don’t have to know anything more about the case to wonder just what it is they’re so afraid of.

Those that have pushed for the Forensic Science Commission to keep doing the work it was created to do will keep pushing for it.

Stephen Saloom, policy director for the Innocence Project, said that although Abbott’s ruling limits the action the commission may take, it should not end the work on the Willingham case and others. He said the Fire Marshal’s office continued to use questionable arson investigative techniques after 2005, and the ruling makes clear that the commission has jurisdiction over those cases. And, Saloom said, the ruling doesn’t absolve others in the criminal justice system from their duty to investigate old cases in which questionable science was used.

“The AG opinion is absolutely without effect on the rest of the criminal justice system’s legal, moral and ethical responsibility make sure justice be done in all past arson cases,” he said.

State Sen. Rodney Ellis, D-Houston, is chairman of the Innocence Project and helped write the 2005 law that created the Forensic Science Commission. He said the ruling should not stop the Willingham investigation or prevent the commission from issuing a ruling that the Fire Marshall was negligent when it did not inform prosecutors and courts that it had used flawed science.

“They had that ‘duty to correct’ prior to 2005, when the Forensic Science Commission legislation took effect, and after 2005, and they have never done so,” he said. “They should inform the criminal justice system of their mistakes quickly, and I would encourage the Forensic Science Commission to make such a recommendation to ensure justice is served in Texas.”

It remains the case that ensuring that law enforcement agencies today are using valid forensic methods is the top priority. But there’s still a lot of people sitting in jail today that were convicted on bogus arson evidence. We owe them something that this opinion makes them much less likely to receive. Sen. Ellis’ full statement is beneath the fold.

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Dr. Peerwani and the Willingham case

Dr. Nizam Peerwani, the newly appointed Chair of the Forensic Science Commission, gets profiled in the Trib. Most of the story is about the history of the Willingham case, which the Commission finally sort of dealt with last year.

With a smile and a friendly laugh, Dr. Nizam Peerwani offers coupons for free autopsies to visitors to his office.

Death and the science of it have dominated Peerwani’s 30-year career in the Tarrant County medical examiner’s office. Now, Peerwani is taking on a very live controversy as chairman of the Texas Forensic Science Commission: the continuing investigation into the arson science that led to the conviction and 2004 execution of Cameron Todd Willingham.

“His background and his temperament give him the unique ability to make sure the commission is focused on the science of forensics instead of the science of politics,” said Sen. Rodney Ellis, D-Houston, who helped created the nine-member commission in 2005.

[…]

In April, three years after it began its investigation, the commission published some of its findings. It made significant recommendations to improve future arson investigations, but did not decide whether the Willingham arson investigators were professionally negligent, which was its original charge.

Commissioners declined to rule on that until the Texas attorney general decides whether the panel has jurisdiction to investigate cases including Willingham’s that occurred before its creation in 2005. A ruling is expected by the end of this month.

Peerwani said he agreed with experts who testified before the board that the arson science used to convict Willingham was seriously flawed. But asked whether Willingham was guilty or innocent, he was less definitive. “There were other issues,” he said of what lead to Willingham’s conviction. “There were eyewitness accounts; there were hospital and doctor testimony given and investigative findings.”

[…]

Barry Scheck, co-founder and co-director of the Innocence Project, said he was heartened by Peerwani’s appointment. Early on in the Willingham investigation, Peerwani agreed with other experts that not only was the science faulty but that forensic examiners had an ethical duty to inform prosecutors of potential flaws in their work.

That, Scheck said, gets at the heart of the matter. When the Innocence Project asked the commission to review the Willingham case, the main purpose was to establish whether the science used was faulty. And if it was, to find other cases in which the same faulty science might have led to wrongful convictions.

If the attorney general rules that the commission cannot review older cases, he said, an unknown number of inmates convicted based on so-called junk science will have little opportunity to seek justice.

“It would be extremely troublesome,” Scheck said. “We’d be back to square one.”

Obviously, almost anyone would have been an improvement over professional hack/Perry toady John Bradley, but the reactions from folks like Scheck and Sen. Ellis are especially encouraging. This really is supposed to be about evaluating procedures to ensure that they’re rigorous and not a bunch of handed-down folk tales. If the FSC pursues that, and doesn’t get needlessly blocked from reviewing old cases, it will be a major step forward, if only to get us back to where we were always supposed to be.

Forensic Science Commission bill approved, but not improved, by the Senate

I don’t know what happened with the bill to more clearly define the mission of the Forensic Science Commission, but it seems to have gone off track.

Senate Bill 1658 would let the Texas Forensic Science Commission launch an investigation without having to wait for a complaint to be filed.

“It is a positive improvement,” said defense attorney Sam Bassett, the commission’s former chairman.

But some call the bill an effort to keep information from the public and ensure that the commission is under the governor’s control.

“This has the governor’s fingerprints all over it,” said Stephen Saloom, policy director for the Innocence Project.

Bassett and other critics said they worry about provisions that would allow Gov. Rick Perry to appoint all commission members. Currently, the commission’s nine members are appointed by the governor, lieutenant governor and attorney general. The bill would reduce the commission to seven members, all appointed by the governor.

Sen. Rodney Ellis, D-Houston, said that though he supports what the bill is trying to accomplish, he has “major concerns.” Allowing the governor to appoint all members is “a fatal flaw,” he said.

“This bill is still a starting point, and if it is not cleaned up, Texas will be worse off with it.”

Others are concerned about a provision that would close the public’s access to the commission’s investigations. The bill would exclude all the information from being subject to the Texas Public Information Act. It would also limit the public’s access to cases in which criminal charges are no longer pending or an appeal is in process.

“A central purpose in creating the commission was to create public faith in the investigations,” Saloom said. “If you deny public access to all this information .. there’s little sense in even having the commission.”

See here for some background. I don’t understand the rationale for these amendments. Grits has a statement from Stephen Saloom of the Innocence Project that goes into detail. I don’t expect anything better to come out of the House, so if this is what we’re going to get, it may be better to just do nothing and try again in two years.

The end of the Willingham case for the Forensic Science Commission

Dave Mann reads the Willingham report from the Forensic Science Commission so you don’t have to.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

[…]

So what do we make of this schizophrenic document?

Willingham’s relatives—his stepmother Eugenia Willingham and his cousin Patricia Cox—pronounced themselves satisfied with the commission’s work. “What this commission has done will have a significant impact on the justice system,” Cox said.

Stephen Saloom with the Innocence Project was clearly frustrated that the commission couldn’t address the negligence issue. But, he added, given that limitation, the commission did commendable work during the past two days. “It’s a good report,” Saloom said. “It makes clear that the old forms of arson evidence are not reliable and need to be corrected…and that the old cases that may have been tainted by this evidence have an opportunity for review. This gives a chance for justice for all those past cases where people may have been wrongly convicted of arson.”

Indeed, among the report’s 17 recommendations is much-needed reform. The commission recommends improving training and certifications for fire investigators and ensuring that training curriculum include fire science and fire dynamics. It recommends the Fire Marshal’s office conduct internal audits and create a peer review team to monitor the quality of its fire investigations. The report also recommends requiring lawyers and judges take continuing education classes focused specifically on forensic science.

Perhaps most importantly, it urges the Fire Marshal’s office to reexamine older cases. As I’ve written before, many of the 750 people current in Texas prisons on arson convictions may be innocent. The state desperately needs an official inquiry into older arson cases.

Unfortunately, the FSC doesn’t have the power to do more than urge the Fire Marshall to act, and there’s still an inquiry into the AG’s office to determine just what authority the Commission has. That will be John Bradley’s parting shot. This probably was the best report we could have gotten given Bradley’s endless meddling. Maybe with the Willingham matter more or less settled and no election looming, Rick Perry will appoint someone less egregious as Bradley’s replacement. Yeah, yeah, I know.

An answer in the Claude Jones case

Back in June, I noted the case of Claude Jones, who had been executed in 2000 for a murder committed in 1990. The main piece of evidence used to convict him was a single strand of hair that a forensic expert who examined it under a microscope testified belonged to Jones. It was not subjected to DNA testing. In June, after a three-year court battle, the Innocence Project and the Texas Observer won the right to have DNA testing performed on that hair. The results are in, and they show that it did not belong to Claude Jones.

The tests do not offer conclusive proof of Jones’ innocence, but raise questions about his conviction, which was largely based on the hair fragment, the only physical evidence against him.

Thursday’s announcement came as vindication to Jones’ son, Houston associate engineer Duane Jones, 50, who was reunited with his father only after the elder man found himself on death row.

“I was 98 percent sure of what he was telling me,” Duane Jones said of the convicted killer’s claim of innocence, “but now I believe him 100 percent. He was railroaded. He did not shoot that man. I think not only am I owed an apology, but so is everybody in the whole state of Texas.”

[Then-Gov. George W.] Bush’s decision to reject Jones’ plea for a 30-day reprieve the day before he was executed followed the recommendation of his staff counsel Claudia Nadig, whose confidential report to the governor made no mention of the condemned man’s request for DNA testing, despite that being the reason a stay was sought by Jones’ lawyers.

“I have no doubt that if President Bush had known about the request to do a DNA test of the hair he would have issued a 30-day stay in this case and Jones would not have been executed,” said Barry Scheck, co-director of the Innocence Project, which joined the Texas Observer, an Austin-based political journal, in calling for the new tests.

Just prior to the Jones’ appeal, Scheck noted, Bush had endorsed the post-conviction use of DNA testing to establish guilt or innocence in questionable cases.

Had DNA testing been performed in 2000, Scheck said, Jones’ conviction likely would have been reversed. “It’s a pretty significant event to know someone was executed wrongly,” Scheck said.

Given that Bush is now out on a national tour promoting his new book, I’m sure this question will be asked of him again. I wonder what he’ll have to say about it. For that matter, someone should pester Ms. Nadig until she explains why she kept that information from the Governor. Seems to me there’s a pretty strong moral case to be made that she is directly responsible for Jones’ death. I wouldn’t want something like that on my conscience.

Anyway, you should read the Observer story, which goes into a lot more detail. Again, this doesn’t mean Jones was innocent, but it does mean that if this result had been known that he likely never would have been tried for the crime. Note also the use of the jailhouse snitch and his convenient testimony, which he has since recanted, that Jones confessed to him. The reason these cases keep cropping up is because the emphasis for prosecutors is on getting a conviction rather than getting it right. As long as that’s what we incentivize, that’s what we’re gonna get. Grits and Bob Moser have more, and a statement from Sen. Rodney Ellis is beneath the fold.

(more…)

So what did the Forensic Science Commission do?

I guess I wasn’t expecting this.

A majority of the Texas Forensic Science Commission has tentatively concluded that there was no professional negligence or misconduct by arson investigators whose flawed work in a fatal Corsicana fire contributed to the conviction and 2004 execution of Cameron Todd Willingham.

It would be wrong to punish investigators for following commonly held beliefs about fire conditions that are known, in hindsight, to be invalid indicators of arson, said John Bradley, chairman of a four-member panel reviewing Willingham’s case.

“We should hold people accountable based on standards that existed when they were working on these things,” Bradley said during the commission’s quarterly meeting Friday.

All four members of the investigative panel agreed with the preliminary finding, which was reached during two meetings that were closed to the public, said Dr. Sarah Kerrigan, a forensic toxicologist and director of the Sam Houston State University crime lab in Huntsville.

“The panel unanimously felt the science was flawed by today’s standards, but the question for us was, was there professional negligence or misconduct?” Kerrigan said, adding that scientific arson standards — though adopted nationally in 1992, the year Willingham was convicted — had not filtered down to the front-line investigators in Texas.

I must have lost the thread of this whole saga awhile back, because as I write this I’m not really sure I know what I was expecting to come out of this. I knew the question of Cameron Todd Willingham’s innocence wasn’t on the table as it once had been – once Rick Perry and John Bradley squashed Craig Beyler’s testimony, all that was effectively swept under the rug – but the question about whether or not the fire investigators at the time of the Willingham blaze deserved official blame or not wasn’t what I had in mind. Thinking about it now, I’m not sure why that even matters. I suppose what I anticipated was more or less the same as Barry Scheck of the Innocence Project:

Instead of focusing on the fire investigators, Scheck implored commissioners to analyze the state fire marshal’s office , which he said adopted scientifically based standards for determining when a fire is arson yet failed to reinvestigate hundreds of arson convictions obtained from investigations now known to be flawed.

“Was it the fire marshal’s office that engaged in professional neglect or misconduct?” Scheck asked. “Does the (agency) have a duty to correct any past representations that are wrong, that are scientifically invalid?”

In the end, commissioners voted to give Scheck and other interested parties three weeks to submit objections to the proposed finding.

It’s well known that many other arson convictions are based on the same shoddy “science” that got Willingham executed. If there’s no action taken to review those convictions – if the Forensic Science Commission doesn’t force the issue in whatever fashion it can – then I don’t see the point of what they’re doing. I know this wasn’t the original intent behind the creation of the FSC. Time to schedule another committee hearing, Sen. Whitmire. Grits and the Chron has more.

UPDATE: Dave Mann, who has reported extensively on arson forensics, weighs in.

Claude Jones

Claude Jones was a Texas inmate who was executed ten years ago. He protested his innocence of the crime for which he was put to death till the end. Now we may get to see if he was telling the truth about that.

Visiting Judge Paul C. Murphy this week ordered testing of a strand of hair from Claude Jones’ case that death penalty opponents believe might provide the first DNA proof that an innocent man was executed.

Murphy issued a summary judgment in favor of the New York-based Innocence Project and The Texas Observer, an Austin newsmagazine, which three years ago petitioned to do mitochondrial DNA testing on a hair fragment recovered from the counter of Zell’s liquor store in Point Blank, about 65 miles north of Houston.

San Jacinto District Attorney Bill Burnett, who had assisted in the prosecution and died this month from pancreatic cancer, blocked the hair’s release. He argued state law provided no legal avenue for him to relinquish the 1-inch strand after Claude Jones’ death.

Neither Burnett’s attorney, David Walker, nor the first assistant, Jonathan Petix, who has temporarily replaced Burnett, could be reached for comment on whether they will appeal.

[…]

A key witness during the trial, Timothy Jordan, has recently recanted his testimony that Claude Jones had confessed being the triggerman to him. Jordan now says [co-defendant Kerry] Dixon told him that Claude Jones did it. Dixon, who has made no police statements, is currently serving a life sentence for his part.

But Walker has contended DNA testing cannot provide conclusive proof of Claude Jones’ innocence, only propaganda for those opposing the death penalty. He notes two other witnesses described seeing a pot-bellied, middle-aged man wearing clothing like Claude Jones’ enter the store, although neither could positively identify him.

Petix has also said releasing the hair could open a “floodgate” of requests for things such as O.J. Simpson’s gloves. They contended state law only allows a defendant to request DNA testing.

That’s kind of a tough standard for Jones to meet, what with him being dead and all. You can get some more details on the case, and the case for Jones’ innocence, from the Observer. I have two points to make:

1. To this day, I do not understand the fierce resistance that DAs like Bill Burnett put up to post-facto DNA testing. I get that at some point you have to declare a case over, but the Burnetts of the world always come across as fearful to me. If you’re so damn sure you’ve convicted the right guy and that this whole exercise is nothing but a propaganda ploy by death penalty opponents, why not call their bluff? If I knew I was right I’d welcome the opportunity to prove it to God and everyone. What better way to give the middle finger to all those annoying activists who’ve been pestering you all these years? Unless of course you’re really not at all sure you’re right and you’ll do anything in your power to find out. Which is why these guys all look like a bunch of fraidy cats to me.

2. The oft-made “it would open the floodgates” claim is specious on its face. Only a small percentage of crimes involve DNA evidence, and in many cases where it existed it wasn’t preserved after the conviction. Dallas, the hotbed of DNA exonerations, is that way because its longtime DA, Henry Wade, was bizarrely obsessed with preserving evidence, and they’ve basically run out of cases to review in less than four years. There would be an initial spike, sure, but it wouldn’t take more than a couple of years to work through it all. Just eliminating the drawn-out court battles over whether or not to do the testing in the first place would make it all go a lot faster.

Anyway. We don’t know what that DNA evidence will tell us, but we’ll be better off when we do know. Grits and Matt Kelly have more.

Judge Fine’s ruling about the death penalty

I’m sure this will get a lot of attention.

A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed.

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas’ death penalty was unconstitutional for their client, John Edward Green Jr.

Loper said he and Keirnan were pleased by Fine’s ruling, which will be appealed and almost certainly reversed.

Here’s an updated story that’s a bit more clear about what this means. I’m not qualified to analyze this, but fortunately Mark Bennett is, so you should just go and read what he has to say; read this, too. It’s pretty complex and doesn’t translate well for general audiences; my eyes have glazed over, that’s for sure. But if you want to have some understanding of what actually happened, that’s your best bet.

Tim Cole officially pardoned

This is a small bit of good to come out of a great injustice.

The [Texas Board of Pardons and Paroles] sent a letter to Tim Cole’s attorney at the Innocence Project of Texas on Friday saying that it had voted to recommend clemency and forwarded its decision to Gov. Rick Perry for his signature.

It would be the state’s first posthumous pardon, and Perry has indicated that he would sign an order clearing Cole’s name if recommended by the board.

“Gov. Perry looks forward to pardoning Tim Cole pending the receipt of a positive recommendation from the Board of Pardons and Paroles,” Perry spokeswoman Allison Castle wrote in an e-mail to The Associated Press on Saturday.

Perry has now fulfilled that promise. Good on him for taking care of it quickly.

Cory Session, who has been fighting to clear his brother’s name for years, said he anticipates that the governor will sign Cole’s pardon in March during a ceremony in Fort Worth.

“To say that the wheels of justice turn slowly would be an understatement,” Session said Saturday.

“The question is: How many more Tim Coles are out there?”

Grits tries to quantify that question. All I know is that if we lived in a society that valued justice more than it valued keeping score, we would have a criminal justice system that went to much greater lengths to prevent this sort of tragedy from happening, and worked proactively to fix the mistakes that did happen. I hope someday to live in that kind of society, but I don’t expect it.

Meet John Bradley

So today is the day that Sen. John Whitmire gets to grill Williamson County DA John Bradley, the new Chair of the Texas Forensic Science Commission, about his plans for the Commission and the status of the Willingham case. I very much look forward to hearing what Bradley has to say even if I have little faith in his being a force for good. I hope he proves me wrong, but I’m not counting on it. Anyway, if you want to know more about the man, I recommend this Statesman profile and this Texas Trib story for more. The former is a bit too positive for my taste – could they not find anyone willing to talk smack about the guy? – but there you have it.

In the meantime, State Sen. Rodney Ellis and Innocence Project Co-Director Barry Scheck will hold a press conference after the Whitmire hearing to give their perspective on where we stand. Click on to read their press release.

UPDATE: Grits has more.

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Lawsuit filed over dog scent evidence

Three men have filed a federal lawsuit against Fort Bend Deputy Keith Pikett and his use of “evidence” gathered by scent dogs, which they say led to them being falsely accused of and imprisoned for crimes they didn’t commit.

The men — Cedric Johnson, Curvis Bickham and Ronald Curtis — ask for compensatory and punitive damages for months spent in jail awaiting trial for crimes they did not commit. Charges against them eventually were dropped. Also named in the lawsuit are Fort Bend County Sheriff Milton Wright and the Houston Police Department.

Jeff Blackburn, attorney for the three, is leading a campaign against the use of dog scent evidence to charge people with crimes. Pikett and his dogs have been employed by prosecutors and police in thousands of Texas cases, in some instances providing the primary link between a suspect and a crime.

Blackburn is general counsel for the Innocence Project of Texas, which in September issued a scathing report on the use of dog scent evidence, calling it tantamount to junk science. The project works on behalf of wrongly accused people.

You can read that report here (PDF). I’ve blogged about this before here and here, and of course Grits is a comprehensive resource. It occurs to me that this is the sort of thing that the Texas Forensic Science Commission ought to be looking into, to help establish a statewide standard, or at least a set of recommendations and best practices, for local law enforcement agencies to go by. Too bad Governor Perry’s meddling in the affairs of the Commission over the Cameron Todd Willingham case has screwed the pooch on this, so to speak. Maybe some day, when we have a Governor that puts the best interests of Texas ahead of his own, that can happen.

Two views of Willingham and Perry

Couple of good op-eds in the papers in the past few days concerning the Cameron Todd Willingham case. First, here’s State Sen. Rodney Ellis and Barry Scheck of the Innocence Project focusing on the forensics:

In 2006, the Innocence Project brought the Willingham case to Texas’ Forensic Science Commission, which the state Legislature had created a year earlier. The Legislature created this commission to investigate allegations of negligence or misconduct that substantially affects the integrity of forensic analysis and recommend corrective action. The commission’s charge is straightforward and clear, and the Willingham case fits squarely within it.

The filing that kicked off the commission’s investigation didn’t just focus on Willingham’s case. It also included the case of Ernest Willis, who was convicted and sentenced to death for a nearly identical crime at around the same time — based on nearly identical forensic analysis — but was exonerated because the forensic evidence was so flawed. The Pecos County prosecutor who requested Willis’ exoneration determined that the arson analysis was wrong because it relied on outdated and inaccurate forensic techniques. Willis was determined to be “actually innocent” and was compensated by the state of Texas.

The filing also noted that thousands of Texans are convicted of arson, and that the commission’s investigation could help determine whether accurate, reliable forensic analysis is being used statewide. The Forensic Science Commission voted unanimously to move forward with an investigation comparing the Willis and Willingham cases and, by extension, determining whether there may be broader problems with other arson convictions.

This is the kind of work the Legislature had in mind when it created the commission. The legislation creating the commission passed in 2005, in the midst of the Houston Police Department crime lab scandal. Many legislators cited problems in the lab when debating whether to create the commission, and they also made it clear that we needed an independent commission to investigate other forensic issues that may come up.

And that’s why it’s so important that the Commission be able to do its work in an independent fashion, without any meddling from Governor Perry. On that score, and on the matter of innocence, here’s Rod Dreher of the Dallas Morning News.

Perry is plainly afraid that his own investigators will discover that the state likely put a blameless man to death. But what is he afraid of? Political fallout? What is mere politics when the credibility of a system that might have killed an innocent man – and might yet kill other innocents – is at issue? Our skittish governor has taken to calling Willingham a “monster.” Even if he was, we put men to death for their deeds, not their dispositions. He needed killin’ is no rationale for execution.

A real leader – a brave and honorable one – would want to know the truth, so that if evidence requires it, he and others responsible for Willingham’s death could make restitution and repent for shedding the blood of a blameless man railroaded to his execution. If hard-hearted Perry is so certain of Willingham’s guilt, why object to an investigation?

More importantly, if Willingham was wrongly put to death, all decent capital punishment supporters should want strict measures taken to ensure that this catastrophe never happens again. If we are going to have the death penalty, we have the solemn duty to use it responsibly. Right? Surely we Texans aren’t the kind of people so enamored of retribution that the actual guilt or innocence of those executed in our names is of no real concern.

I’ve often wondered why more conservatives aren’t skeptical of the death penalty. I mean, talk about a vast exercise of government power. Anyway, check ’em both out.

Bradley dithers on Forensic Commission

This is an incredibly frustrating article about John Bradley, the handpicked new chair of the Texas Forensic Science Commission.

Bradley told The Dallas Morning News on Tuesday that he doesn’t know when the board will take up its investigations again. He said he needs time to review the commission’s two years’ worth of work and to study the role of its members and the process they should use in moving forward.

“It is too important as a symbolic case, and as much as a real case, for us not to finish that work,” Bradley said of the Willingham case. “But at the same time, I want to make sure the work is done in a way that is professional and has utmost integrity.”

I’ve got to agree with Grits here. Is Bradley saying that the work done so far was not “professional and has utmost integrity”? How would he even know since he says he needs to stop everything they’re doing so he can have the time to read up on all of it?

Bradley said the timetable for the board to act is also unclear because the governor has two more positions to fill, and he wants to wait until all new members are on board.

But that doesn’t stop you from saying that you intend to continue the board’s work, and in particular to reschedule that meeting that you canceled once Perry named you Chair. And now that you are the Chair, you could help move things along by calling on Perry to fill those positions as quickly as possible so that you and the rest of the Commission can get down to all that important work you’ve been charged with doing. Unless you’re so helpless that all you can do is twiddle your thumbs in the meantime, of course.

Bradley said that looking back on cases to see if bad science played a role is important, but mostly as it applies to future cases.

“It is my experience that leadership is best applied to moving forward rather than looking back,” he said.

Bradley said he can’t satisfy critics who believe he was placed on the commission to stymie the Willingham investigation.

“All I can do is reassure people that … from this day forward, all of the decisions the commission makes will be in the best interest of advancing forensic science in Texas and that there is no preconceived notion of how that should be done,” he said.

Dude, all you need to do is say publicly that you intend to finish the work your predecessor started, and most of us critics will back off and give you a chance to prove wrong all of these notions, which are increasingly supported by empirical evidence. The longer you dilly-dally and mouth meaningless platitudes to the press and cancel educational roundtable meetings, the more we have reason to believe we’re right to think it’s all about politics. You are making this hard on yourself, not us. Dog Canyon, BOR, and EoW have more.