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John Bradley

John Bradley to leave Palau

He’s coming home.

Former Williamson County District Attorney John Bradley is resigning from his job as attorney general in the Republic of Palau.

Bradley sent a letter to the president of Palau on Sept. 13 announcing his plans to quit his job Nov. 30 due to family reasons.

[…]

The president of Palau, Tommy Remengesau, said he was happy with Bradley’s performance, according to a local news website PacificNote. Bradley was hired as attorney general in Palau in 2014 and his contract was set to expire on Jan. 19, 2017. Palau is a tiny nation of 250 islands in the western Pacific southeast of the Philippines.

During his tenure in Palau, Bradley has clashed with the nation’s Vice President Antonio Bells, who suspended Bradley for insubordination in December 2015. Bradley, when contacted at the time by the American-Statesman, said he was not suspended.

Bells also sued Bradley and other officials in April, claiming that a U.S. grant was deposited into a nongovernmental account and expended illegally, according to the Pacific Report newspaper.

See here for the background. I don’t have anything to add, I’ve just been fascinated by this chapter in Bradley’s history. One wonders what Bradley will do when he returns stateside. It’s fairly common for former prosecutors to become defense attorneys once they leave that office, and if anyone can credibly claim to know the tricks and shenanigans that prosecutors pull against defendants, it’s John Bradley. I just can’t quite bring myself to accept the idea in this case.

Sonia Cacy

A long-time-coming story of actual innocence.

A judge has ruled that Sonia Cacy, a West Texas woman convicted of setting her uncle on fire, is innocent of murder, basing his decision on new analysis of evidence presented at her 1993 trial.

“The cumulation of evidence supports Applicant’s claim of actual innocence,” visiting state District Judge Bert Richardson said in his ruling, filed Monday in Pecos County. “This court finds that Applicant makes a compelling case for actual innocence, given the overwhelming evidence.”

[…]

Cacy had served five years of a 99-year murder sentence for the 1991 death of her uncle, Bill Richardson. The two were living in his Fort Stockton home when it caught fire. Prosecutors said Cacy had set her uncle on fire, also burning the home, to get the money he left to her in his will.

But multiple experts — including the State Fire Marshal’s office — concluded that Cacy did not set her uncle ablaze. Some suspected that Richardson, a smoker, likely died of a heart attack and that the fire was accidental. Cacy was released on parole after The Texas Board of Pardons and Paroles received one of the reports, but her conviction was never lifted. The Pecos County District Attorney and the Bexar County medical examiner’s office had stood by the original investigation results.

Judge Richardson’s ruling was largely based on a 2013 state Fire Marshal’s Office report that discredited trial testimony that there was an accelerant found at the crime scene.

“The findings of the State Fire Marshal’s Office — a state organized and endorsed office — are the strongest evidence that no accelerant was present and that Bill Richardson likely died of a heart attack before being burned,” Judge Richardson wrote in a ruling that comes two years after Richardson first heard Cacy’s petition for relief in Fort Stockton.

I have to admit, this story is not one I was familiar with. The link in the quoted bit above is to a Trib story from 2010, but it goes back much farther than that. Texas Monthly adds some details to what happened this week.

Cacy’s journey through the legal system has been long, winding, and complicated. During at punishment retrial in 1996, her new attorney enlisted Dr. Gerald Hurst, the late Cambridge-educated chemist from Austin, to evaluate the forensic evidence that clinched conviction against her. Hurst discovered that the original tests, conducted by Joe Castorena of the Bexar County Forensics Lab, had been completely misread. The results didn’t find the indicators of an accelerant as he claimed. Castorena, a toxicologist by training, had in fact identified the products of pyrolysis—compounds created by burning plastic, which in many ways are similar to those of an accelerant.

Hurst was convinced these compounds came from rubberized curtains and a polyurethane foam mattress, both of which were found burned at the crime scene. Cacy’s uncle was a chain smoker who was notoriously careless with lit cigarettes, one of the most common causes of household fires. Yet in spite of the evidence, a jury affirmed Cacy’s conviction in 1996 and re-sentenced her to life in prison.

By 1998, Hurst had become obsessed with the case, and had enlisted a panel of at least a dozen respected arson experts and pathologists, all of whom concluded that the fire was accidental, and that Richardson—a man of poor health—had died of a heart attack, possibly while attempting to extinguish the flames. The Board of Pardon and Paroles was moved by the reports and promptly released Cacy that year. Now, they would go about the work of establishing her innocence.

Her attorneys filed a complaint with the Texas Forensic Science Commission in 2010, but they could not have encountered a more unsympathetic audience; the commission’s presiding officer, John Bradley, was the law-and-order Williamson County district attorney who spent years opposing DNA testing in the Michael Morton case, testing that later cleared Morton of the murder of his wife. Bradley petitioned then-state attorney general Greg Abbott for a legal opinion preventing the commission from reviewing Cacy’s case. Abbott delivered, opining that any cases prior to the formation of the commission in 2005 were out of bounds—namely Cacy’s.

Her attorneys turned to the newly reformed State Fire Marshal’s Office, whose scientific advisory panel conducted a lengthy examination of the case and concluded that there was no evidence of arson. Cacy took the report to the Texas Court of Criminal Appeals in 2012, along with some shocking new evidence: Castorena, the toxicologist, admitted in a letter to her counsel, Dallas lawyer Gary Udashen, that the clothing samples he’d tested had been contaminated in either the morgue or the lab. Thus, his baffling reasoning went, anyone who didn’t know about the contamination couldn’t accurately interpret the results. Asked why he never reported this, Castorena replied, “nobody asked me.”

It gets more ridiculous from there. Texas Monthly has three other stories about the history of the case, which as the second one notes was one of the driving forces in reforming how fire investigations are done in Texas and why old arson cases are being reviewed to see which ones relied on bogus, outdated investigative techniques. It’s a little jolting to see John Bradley’s name pop up in this discussion, but hardly surprising. And please, can we scrub the descriptor “law-and-order” from stories involving Bradley? We know full well by now that he was the opposite of “law-and-order” – he was an unscrupulous liar who worked tirelessly to keep innocent people in jail. The adjectives he deserves are all some variation on “disgraced”. Anyway, click on all the links and learn more about Sonia Cacy and how terribly wronged she was by the justice system. The fact that this wrong is finally being made right doesn’t change any of what happened in the past.

John Bradley does John Bradley things

From Grits for Breakfast:

Former Williamson County District Attorney and Texas Forensic Science Commission Chairman John Bradley – who left Texas to become Attorney General of the island nation of Palau after facing national disapprobation, losing reelection, and struggling to find work in Texas as a prosecutor – has been suspended “for ten working days without pay on grounds of insubordination” by Palau’s Vice President, reported Pacific Beat.

In response, according to this source, Bradley issued a statement declaring the VP had no authority to suspend him, defending his record in Texas, suggesting the veep committed a felony by suspending him, and threatening a defamation suit.

Some people seem to make friends wherever they go.

This is vintage John Bradley; our man appears in top form.

The President, who is out of the country, was quoted as saying he hadn’t reviewed Bradley’s suspension but expected the vice president’s decision was made in the “best interest of the Republic.”

See here and here for the background. I admit, it’s a bit unseemly to keep piling on the man, who clearly can’t help himself. But honestly, how can one resist?

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?

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.

State bar grievance filed against Paxton

It’s getting to be hard to keep track of all of the complaints and legal actions being filed against the man who would be the state’s top lawyer. This one is a grievance filed with the State Bar of Texas by another watchdog group.

Sen. Ken Paxton

In its grievance, the Austin-based Texas Coalition on Lawyer Accountability requests that the state bar investigate whether Paxton broke at least four rules involving the disclosure of conflicts of interest.

“Like every other Texas lawyer, Mr. Paxton must comply with the legal ethics rules that govern the legal profession,” the coalition said in a news release.

Once a grievance is filed with the state bar, the Chief Disciplinary Counsel’s lawyers review it to see whether it actually alleges violations of the Texas Disciplinary Rules of Professional Conduct. If it does, it becomes a complaint that can lead to an airing of the issue in district court or before a panel of state bar lawyers from across Texas. If sustained, the complaint can result in the suspension or disbarment of an attorney.

Anthony Holm, a spokesman for the Paxton campaign, called the grievance “yet another political stunt” by a group with Democratic ties, pointing out the acting executive director does not have a law license. “Frankly, it’s a bit silly,” Holm said in a statement.

The coalition did not immediately respond to a request for comment Tuesday, but in announcing the grievance said it aims to hold lawyers accountable regardless of their political affiliations.

As you may recall, a criminal complaint was filed in July, and a complaint with the SEC was filed in May. I didn’t recall hearing about the Texas Coalition on Lawyer Accountability before, but I did note the complaint they filed in 2011 against Ken Anderson, John Bradley, and Mike Davis over the Michael Morton case. As a reminder, to myself as much as to you, they are “a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas Legal profession accountable to its statutory, constitutional, and ethical obligations”. Their origin story is that the TCLA was established in 2010, initially to provide input from the public perspective on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct. Here’s a letter they sent to then-Chief Justice Wallace Jefferson outlining their concerns. They eventually won a victory over this issue in 2011, when the proposed changes were voted down by the bar members.

Anyway. They’re definitely on the do-gooder side of things, but I wouldn’t dismiss their track record. Here’s their statement on the grievance, which outlines the basics of Paxton’s admitted and alleged bad deeds, the complaint narrative, which is the long version of the story, and the actual complaint form that they filled out. Any lawyers want to weigh in on this?

Palau catches a little heat for hiring John Bradley

Hilarious.

The president of Palau has defended appointing a US lawyer who left his previous role as Texas county prosecutor amid controversy over an innocent man who spent almost 25 years behind bars.

President Tommy Remengesau confirmed former Williamson County district attorney John Bradley would take up a position as assistant attorney general in the tiny Pacific nation later this month.

[…]

Remengesau said Bradley acknowledged he was wrong to block the DNA testing and “is painfully aware that his actions kept an innocent man locked up for longer than he should have been”.

But he said Bradley deserved a second chance and was seeking it in the island nation of 22,000 people, which is best known for its spectacular diving sites.

“Mr. Bradley says that the Morton case has changed him as a person and has made him a more balanced, fair, and humble prosecutor,” Remengesau said in a statement.

He said Bradley had more than 25 years of prosecution experience and had never been found to have violated any law or ethical rule over the Morton case.

“The Republic hired Mr. Bradley because our nation needs experienced and skilled prosecutors to help keep our community safe Mr. Bradley fits that bill,” he said.

See here for the background. Like Grits, who found this story, I don’t buy Bradley’s claims that he’s a changed man. As noted in that previous post, he has made claims to that effect before, but so far has not backed them up with action. I hope, for his sake but more importantly for the sake of the people of Palau, that he’s sincere this time. I’d nonetheless advise President Remengesau to keep a close watch on him.

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.

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.

Beating Bradley

The Statesman writes about the aftermath of the GOP primary for District Attorney in Williamseon County where voters resoundingly threw out John Bradley.

Jana Duty

Michael Morton wasn’t on the ballot, didn’t campaign and didn’t back a candidate, but the recently exonerated former inmate cast a long shadow on the Williamson County district attorney race, becoming the key issue in the defeat of a once-popular John Bradley.

Jana Duty, a 10-point victor in Tuesday’s Republican primary, made Morton a centerpiece of her campaign, focusing on Bradley’s decision to fight Morton’s 2005 request for DNA testing. It would take six years for a court to order tests that cleared Morton of the 1986 murder of his wife, Christine, and led authorities to another suspect, Mark Alan Norwood.

Voters responded by turning out Bradley, Williamson County’s lead prosecutor for the past 10½ years and one of the state’s most prominent district attorneys.

Political observers said Duty was aided by lingering resentment over Morton’s treatment, a superior campaign organization and votes from crossover Democrats drawn to the GOP primary by an opportunity to torpedo Bradley.

And unlike prior years when Bradley made news by securing long prison sentences — accounts that played well with Williamson County’s conservative-leaning voters — this election cycle was punctuated by headlines involving controversy in and out of the courtroom.

Beyond the Morton affair, Bradley also was criticized for his leadership of the Texas Forensic Science Commission, which was investigating the science used to convict and execute Cameron Todd Willingham for the arson murder of his three young daughters.

[…]

One of Bradley’s leading backers, Dan Gattis Jr., said the Morton connection meant “everything” to the district attorney race.

“Jana Duty’s whole campaign was tying him to the Morton case,” Gattis said, adding that the Morton case “humbled and matured” Bradley and would have made him a better DA. Instead, his handling of the Morton matter left him vulnerable to challenge.

I’m pretty sure Michael Morton’s attorney John Raley would disagree with the assertion that Bradley was in any way changed for the better as a result of this experience. As people like Sen. Rodney Ellis and Scott Henson said back when Bradley was proclaiming that he had learned his lesson, actions speak louder than words, and Bradley’s actions were loud and clear. The voters made the right choice, and Bradley got what he deserved. Not that he has any need to fear for his future, of course. I’m sure his patron Rick Perry will find something for him to do, and if not there’s always the professional airing-of-grievances circuit. Don’t you worry about ol’ John, he’ll be just fine.

GOP results, statewide

Full, though not necessarily the most up to date, results, are here. The Trib and the Observer have good roundups as well.

– Mitt. Yawn. He was at just under 70% statewide, with Ron Paul getting 11% and Rick Santorum 8%. You have to wonder what might have been if Santorum had held on through May.

– Dewhurst and Cruz in a runoff, with the Dew getting 45% to Cruz’s 33%. I will not be taking bets on the outcome of that one. Tom Leppert had 13% and Craig James – cue the sad trombone – was below 4%. Why did he get in this race again? And did he really think he had crossover appeal? Geez.

(UPDATE: Mike Baselice, Dewhurst’s pollster, says every Republican candidate with over 43 percent going into a statewide runoff during the last 20 years has gone on to win. So Cruz may as well go ahead and concede now, right?)

– Christi Craddick and Warren Chisum will go into overtime for Railroad Commissioner, as will Barry Smitherman against Greg Parker. Supreme Court Justice David Medina got less than 40% in a three-way race and will face the will-he-never-go-away? candidate John Devine.

– All incumbent Congressfolk easily won re-nomination, with Campaign for Primary Accountability targets Ralph Hall (59%) and Joe Barton (63%) not particularly bothered. Kenny Marchant in CD24 was on some people’s watch lists as well, but he got 68% in his race. The two open seats for which the GOP is heavily favored in November were interesting. Roger Williams will duke it out with somebody, most likely Wes Riddle as I write this. Michael Williams was a total dud, finishing with just over 10% and in fifth place. Over in CD36, what in the world happened to Mike Jackson? Steve Stockman (!) and somebody named Steve Takach were neck and neck for the runoff slot. The other open seat, CD14, saw Pearlanders Randy Weber and Felicia Harris make it to the second round.

– The first signs of carnage are in the SBOE races. David Bradley, Barbara Cargill, and thankfully Thomas Ratliff all won, but George Clayton was headed to a third place finish in his four way race – Geraldine Miller, whom Clayton knocked off in a 2010 shocker, was leading the pack – and in a race that sure wasn’t on my radar, SBOE Chair Gail Lowe lost to Sue Melton. Where did that come from? The open SBOE 15 seat to replace Bob Craig was the closest race, with Marty Rowley leading Parent PAC-backed Anette Carlisle by 2000 votes.

– State Sen. Jeff Wentworth will have to keep running in SD25, as he had about 36% of the vote with 75% of precincts in. His opponent in July, in a blow to Texans for Lawsuit Reform, will not be Elizabeth Ames Jones, however, as Donna Campbell took for second place. I hope Wentworth can do better in overtime, because Campbell would make the Senate even dumber than Ames Jones would have. Former State Reps. Kelly Hancock (SD09), Mark Shelton (SD10, opposing Wendy Davis), Larry Taylor (SD11), and Charles Schwertner (SD05) all won the right to get a promotion in November.

– It’s in the State House that the body count begins to pile up. The following incumbents lost their races:

Leo Berman (HD06)
Wayne Christian (HD09)
Rob Eissler (HD15)
Mike Hamilton (HD19)
Marva Beck (HD57)
Barbara Nash (HD93)
Vicki Truitt (HD98)

Hamilton was paired with James White. Eissler was the chair of the Public Education committee. With Scott Hochberg retiring, that’s going to put a lot of pressure on two new people next year. And no, Eissler wasn’t beaten by someone who wanted to make public education better. Eissler didn’t distinguish himself last session in my opinion, but this is not an upgrade.

Incumbents in runoffs:

Turncoat Chuck Hopson (HD11, 47.15% to Travis Clardy’s 46.30%)
Turncoat JM Lozano (HD43, 41.55% to Bill Wilson’s 44.38% but with only 42 of 69 precincts reporting)
Sid Miller (HD59, 42.48% to JD Sheffield’s 41.50%)
Jim Landtroop (HD88, 34.63% in a four way race to Ken King’s 30.08% with two precincts out)

Speaker Joe Straus easily survived his re-election bid and picked up an opponent for Speaker before the first vote was counted.

– The Parent PAC slate had mixed results:

Texas Senate

S.D. 9: Rep. Todd Smith, R-Euless – Lost
S.D. 11: Dave Norman, R-Seabrook – Lost
S.D. 25: Sen. Jeff Wentworth, R-San Antonio – Runoff

Texas House of Representatives

H.D. 2: George Alexander, R-Greenville – Lost
H.D. 3: Cecil Bell, Jr., R-Magnolia – Won
H.D. 5: Mary Lookadoo, R-Mineola – Lost
H.D. 7: Tommy Merritt, R-Longview – Lost
H.D. 9: Chris Paddie, R-Marshall – Won
H.D. 24: Dr. Greg Bonnen, R-Friendswood – Leading, in runoff
H.D. 29: Ed Thompson, R-Pearland – Won
H.D. 57: Trent Ashby, R-Lufkin – Won
H.D. 59: Dr. J.D. Sheffield, R-Gatesville – In runoff
H.D. 68: Trent McKnight, R-Throckmorton – Leading, in runoff
H.D. 74: Poncho Nevárez, D-Eagle Pass – Winning as of last report
H.D. 92: Roger Fisher, R-Bedford – Lost
H.D. 94: Rep. Diane Patrick, R-Arlington – Won
H.D. 96: Mike Leyman, R-Mansfield – Lost
H.D. 97: Susan Todd, R-Fort Worth – Lost
H.D. 106: Amber Fulton, R-The Colony – Lost
H.D. 114: Jason Villalba, R-Dallas – In runoff
H.D. 115: Bennett Ratliff, R-Coppell – In runoff
H.D. 125: Justin Rodriguez, D-San Antonio – Won
H.D. 138: Whet Smith, R-Houston – Lost
H.D. 150: James Wilson, R-Spring – Lost

State Board of Education

SBOE 7: Rita Ashley, R-Beaumont – Lost
SBOE 9: Thomas Ratliff, R-Mount Pleasant – Won
SBOE 15: Anette Carlisle, R-Amarillo – Lost

Unclear to me at this time if this is a net gain, a net loss, or a wash.

– David Bradley won his race, but Williamson County DA John Bradley was trailing as votes slowly trickled in. If that holds, it’s one of the best results of the day.

– Turnout was likely to be around 1.5 million, which will be a bit better for them than 2008 was (1,362,322 votes in the Presidential primary). Clearly, the Senate race drove their turnout. In 2004, they had less than 700,000 votes total.

(UPDATE: Total votes cast in the Presidential race were 1,438,553.)

On to the Democrats…

“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.

The battle for Williamson County DA

Outside of the Congressional races, the hottest primaries this year are District Attorney races. We’ve got them in Harris County, in Travis County, and of course in Williamson County.

An 11-year Republican incumbent who hasn’t faced an opponent since 2002, District Attorney John Bradley now finds himself in a pitched battle against the current Williamson County attorney just to keep his party’s nomination.

“It’s the most intense race I’ve seen in Wilco — period — and I was born and raised here,” said 48-year-old Bill Gravell, a political consultant and a pastor in the area. “It makes the Texas football game against Texas A&M look like a peewee game.”

Jana Duty scrapped her plans to seek re-election as county attorney, a position she’s held since 2005, to challenge Bradley.

The battle to keep his seat is a unique challenge for Bradley, who has been district attorney since he was appointed in 2001. He won the 2002 Republican primary with 68 percent of the vote.

The candidates are challenging each other’s record in office in campaign rhetoric. Duty said she’s running against Bradley because he has “propelled Williamson County into the national spotlight in a very negative light.”

You know what I think of John Bradley. I doubt I’d care much for Jana Duty, but she would have the virtue of not being John Bradley. There is a Democrat running – Ken Crain – and as always one wonders who would be the better opponent for an underdog candidate. Williamson County is trending the right way, and while it’s unlikely to be there yet the right candidate at the right time can break through. Eye on Williamson and Wilco Watchdog are good resources if you want to follow this race more closely, and of course Grits is on it as well.

“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.

Grievances filed over Morton case

Interesting.

The Texas Coalition on Lawyer Accountability (TCLA) announced that its Executive Director, Julie Oliver, is today filing disciplinary grievances against prosecutors in the Michael Morton case: current Williamson County District Attorney John Bradley; former Williamson County District Attorney (and current District Judge) Ken Anderson; former Williamson County Assistant District Attorney Mike Davis.

Published reports indicate that those lawyers may have violated several of the ethics rules that govern Texas lawyers.  The apparent violations had tragic, horrific consequences—including the wrongful imprisonment of Michael Morton for 25 years, and the undermining of public confidence and trust in the criminal justice system in Williamson County.

Collectively, Anderson, Bradley, and Davis appear to have violated one or more of the following ethical standards governing the conduct of Texas lawyers (the Texas Disciplinary Rules of Professional Conduct).

In 1987, a jury convicted Michael Morton of murdering his wife, Christine.  Morton was sentenced to life in prison.  After serving almost 25 years in prison for a murder that he did not commit, Mr. Morton was released in October 2011 after DNA testing exonerated him.  Published reports suggest that the Morton prosecution team withheld key evidence from the defense during the murder trial, misrepresented the testimony of certain key witnesses during closing arguments, and failed to comply with a court order.

All of these actions likely caused Mr. Morton’s wrongful conviction—and kept the true murderer on the street.

“What is clear is that the prosecution in the Morton case dramatically failed to meet the burden imposed by court rules, statutes, and the Constitution, to disclose evidence tending to negate guilt,” said Julie Oliver, Executive Director, Texas Coalition on Lawyer Accountability.  “In Texas, for far too long disciplinary enforcement against prosecutors who engage in unethical conduct has been lax or non-existent.”

Article 2.01 of the Texas Code of Criminal Procedure best states the critical message of this case: “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.”  This disciplinary case, if investigated thoroughly and prosecuted vigorously, can help make that critically important ethical rule a functional reality in our criminal justice system.  Justice in Texas requires no less.

 “We are filing these grievances today so that public scrutiny of the investigation will be assured, vigorous, and ongoing,” said Julie Oliver.  “Effective lawyer discipline requires such public vigilance and involvement.”

The Texas Coalition on Lawyer Accountability (TCLA) is a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas legal profession accountable to its statutory, constitutional, and ethical obligations.  Coalition members include the Mexican American Legal Defense and Education Fund (MALDEF), Public Citizen, the Environmental Defense Fund (EDF), the Southwest Voter Registration Education Project (SVREP), the Texas Civil Rights Project (TCRP), Texas Watch Foundation, and the Texas Housing Justice League (THJL).

I’ve no idea how likely it is that this will go anywhere, but as long as we let prosecutors who break the rules get away with it unscathed, there’s no incentive for them to not break the rules. Someone needs to be made an example of why you shouldn’t break those rules. This would be a good place to start. Grits and EoW have more.

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.

Investigating the DA

There may be something interesting going on in the grand jury room.

A Houston grand jury apparently investigating recent allegations about the Houston Police Department’s troubled mobile alcohol-testing vehicles may now be setting its sights on the Harris County District Attorney’s Office.

An appellate court ruled on Thursday that the grand jury can continue to exclude prosecutors from listening to witnesses testify in secret proceedings in the ongoing investigation, despite protests from Harris County District Attorney Pat Lykos.

Because grand jurors meet behind closed doors, their intentions are unclear, but court documents filed this week shed light on the investigation. Defense attorneys involved in the case also have their suspicions.

Chip Lewis, an attorney representing a former police crime lab super­visor who testified Thursday, said it is his understanding that she was called to talk about problems with the HPD’s breath alcohol testing vehicles – known as BAT vans – as well as issues with the DA’s office and the police department.

Lewis also said it was possible the grand jury is investigating the district attorney’s office.

“I wouldn’t call it a runaway grand jury,” he said, as much as I would call it a well-focused grand jury.”

I don’t have a particular opinion about this one way or another. It makes sense to me that if there were issues with the evidence, then those issues are most likely not limited to just the police, but beyond that I don’t know enough to comment. I’m noting this story mostly because of how unusual it is for the DA’s office to be investigated in this manner. It seems to me that in general, a lot of DA’s offices operate without a whole lot of oversight, and that this is how you get situations like that of Michael Morton, in which an innocent man was convicted of a crime in part because exculpatory evidence was never given to the defense attorneys. When you look at all the legal maneuvers the current DA in Williamson County and the District Court judge who was the DA at the time are pulling to avoid having to go on the record about what they did and why they did it, you can clearly see the incentives they have for playing to win rather than working for justice. It may well be that the voters will ultimately hold John Bradley and Ken Anderson accountable at the ballot box, but if that’s the only consequence for conspiring to deprive a man of 25 years of his freedom, well, that ain’t much of an incentive to play by the rules, if you ask me. I don’t know what the answer to this is, but I do know that we ought to be asking some questions about it.

UPDATE: See Murray Newman for more on the Harris County story.

Forensic Science Commission accepts its neutering

Another victory for the forces of obstructionism.

Whether they like it or not, members of the Texas Forensic Science Commission [Thursday] agreed that they will use an attorney general’s opinion that severely limits the panel’s jurisdiction as a guideline for future investigations. What that means for the Cameron Todd Willingham investigation — the commission’s most important and controversial case — will be up for discussion Friday.

“While it is not binding on us, [the opinion] does carry some weight,” said commissioner Lance Evans, a criminal defense lawyer from Fort Worth.

Texas Attorney General Greg Abbott wrote in July that the commission could not investigate evidence gathered or tested before it was established Sept. 1, 2005. He also concluded that the commission’s authority is limited to labs accredited by the Department of Public Safety. The commission met Thursday for the first time since that ruling and since the appointment of Dr. Nizam Peerwani, the Tarrant County medical examiner, as its chairman.

[…]

Commissioner Evans said he was hopeful that lawmakers would pass a bill during the next legislative session that clarifies and expands the commission’s role. A bill that would have done that this year failed during the final days of the legislative session.

Until that happens, the commissioners said they would use Abbott’s opinion to make case-by-case decisions about which cases to investigate. As they discussed new complaints and whether to investigate them, the commissioners said they would begin sending more specific and detailed letters explaining why certain cases are not investigated.

One such complaint they discussed Thursday was brought by Sonia Cacy. She was convicted in 1993 of dousing her uncle, Bill Richardson, in gasoline and igniting an inferno that killed him. She was sentenced to 99 years in prison, but she was released on parole after just six years. Arson expert Gerald Hurst — the same scientist who analyzed evidence in the Willingham case — reviewed the evidence that landed Cacy in prison. He concluded that there was no gasoline on Richardson’s clothing.

The commission decided to dismiss Cacy’s complaint against the investigators, despite serious reservations about the science used to convict her (Cacy remains on parole). The evidence was gathered and tested long before September 2005, and the lab used to analyze it was not accredited.

“If we are to abide by the opinion, we are left no other alternative other than to dismiss the [complaint],” [commissioner Sarah] Kerrigan said. “I hate to think the credibility of the commission is at stake.”

Unfortunately, it is, and the Attorney General has decided that it’s better for the Commission to be a do-nothing. See here for the background. I can only hope that Sens. Ellis and Hinojosa are able to push through a bill that overrides the AG’s bogus ruling in the next session. More from the Trib on the Commission’s meeting is here, and Dave Mann offers some perspective.

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.

(more…)

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.

Perry appoints Forensic, SBOE Chairs

The new SBOE Chair is not who I expected.

State Board of Education member Barbara Cargill, R-The Woodlands, will take the helm as the board’s new chairwoman, Gov. Rick Perry announced Friday.

She will follow Gail Lowe, who was appointed chairwoman two years ago but did not win Senate confirmation during the just-concluded legislative session. Lowe, who returns to her seat as an elected member of the board, also got the position when her predecessor, Don McLeroy, failed to get Senate confirmation in 2009.

I figured Perry would pick David Bradley. I’m sure he has his reasons for going a different route. Cargill is part of the same social conservative bloc, but off the top of my head I can’t think of anything horrible she’s done. Fortunately, we have the Texas Freedom Network to keep track of these things, and their Cargill files can be found here. We’ll see if she can break the streak of non-confirmed SBOE Chairs; she has nearly two full years to convince the Senate that she’s not just another nutjob.

Meanwhile, Perry also named a new Chair of the Forensic Science Commission.

Gov. Rick Perry today announced he has appointed Dr. Nizam Peerwani, a well-known Fort Worth medical examiner, to lead the Texas Forensic Science Commission.

Peerwani, who has served on the commission since 2009, will replace Williamson County District Attorney John Bradley as leader of the panel that has been embroiled in controversy practically since its inception. Bradley, a law-and-order prosecutor, failed to win Senate confirmation during the legislative session that ended last month.

[…]

Peerwani, who was appointed to the commission at the same time as Bradley, is chief medical examiner for Tarrant, Denton, Johnson and Parker counties. His term will expire “at the pleasure of the governor.”

Well, at least he’s a scientist. The Commission could use more of a scientific influence these days. I presume Dr. Peerwani will need to be confirmed as Chair as well in 2013. At this time, I have no particular reason to believe that he will have any difficulty with that. At least, I sure hope that’s the case. Grits has more.

Bradley and Lowe fail to get confirmed

Time for some new chairpersons.

Gov. Rick Perry’s appointments of John Bradley as head of the Forensic Science Commission and Gaile Lowe as State Board of Education chair are officially toast, Senate Nominations Chairman Bob Deuell, R-Greenville said.

“They’re sine die with the rest of us — except they won’t have to come back for a special session,” Deuell said Wednesday after submitting his last round of Perry appointees for Senate consideration.

Since they weren’t confirmed, the appointments of the two chairs will end when the regular session draws to a close Monday.

In the case of John Bradley, that’s almost certainly a good thing. Perry can replace him with another hack, of course, but it’s hard to imagine anyone doing more damage to the Forensic Science Commission than Bradley did. As for Lowe, well, there is still another level of absurdity that can be achieved. And two years from now, we’ll go through this again. Grits has more.

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.

Draft Willingham report is out

Postcards:

A draft report issued today by the Texas Forensic Science Commission on the evidence used to convict and execute Cameron Todd Willingham focuses on training and education initiatives for fire investigators and makes several suggestions for continued improvement for investigations.

The report, as expected, takes pains to say that it does not comment on Willingham’s guilt or innocence. It does not reach conclusions about the performance of arson investigators. It acknowledges that fire science has improved since the 1991 fire that killed Willingham’s three young daughters and lays out some of the modern scientific understanding of fire behavior on questionable findings in the Willingham investigation.

The commission will discuss the draft report at its two-day meeting in Austin, which begins today at 1 p.m. and continues tomorrow morning.

Commission members have insisted that their investigation would focus on the science and say nothing about the guilt or innocence of Willingham.

The report is linked above; I have not had a chance to wade through it yet. I am disappointed that it did not draw any conclusions about the performance of the arson investigators from that fire, though I suppose one couldn’t do that without also addressing the innocence question. If the end result of all this is that the state Fire Marshall continues to defend that investigation with impunity, then this all really was a waste of time, and John Bradley can walk away with a clean victory for his lord and master Rick Perry. We can never improve if we’re not willing to admit when we make a mistake. We’ll see how it goes when the Commission takes this up. The Trib has more.

Bradley’s mission nears its completion

John Bradley won’t get confirmed by the Senate as the Chair of the Forensic Science Commission, but that’s all right. The purpose for which he was put on the Commission by Rick Perry is about to be fulfilled.

Perry, who refused to block Cameron Todd Willingham’s lethal injection in 2004, appointed Williamson County prosecutor John Bradley to take over the forensics commission and the Willingham case in 2009, just days before the panel was to hear a fire expert’s critical report of the original investigation.

[…]

Once in charge, Bradley took steps to slow down the panel’s work and has pushed members to find there was no misconduct by fire investigators in the original 1991 investigation.

The forensics panel is scheduled to meet April 14-15 to consider its final report on the case. GOP Sen. Bob Deuell, chairman of the nominations committee, told The Associated Press that he has been holding Bradley’s doomed nomination without a Senate vote in part to allow him to preside over that meeting.

Bradley doesn’t have enough Senate support for confirmation, and he’d be immediately forced out of his job on the forensics panel if he was called up for a vote and lost, Deuell said. If there is no vote, Bradley serves until the legislative session ends in May.

“Right now he knows he’ll get busted,” Deuell said. “The thinking is even from most of his critics, if not all, is that he needs to chair that meeting. We don’t want a new person to have to start over like he did.”

This critic thinks Bradley deserves the public dope slap that a failed confirmation vote would represent. So does Sen. Rodney Ellis, who was quoted as such later in the story. That said, I do understand Sen. Deuell’s position, and let’s be honest, if the Willingham case remained unresolved Rick Perry would just name another hatchet man to finish the job. Hell, for all we know he’d name David Bradley to fill that slot as well. Nobody has any illusions about Bradley’s role on the Commission, and nobody with any integrity will accept a whitewash from him, regardless of what the record will say. Let’s get this over with and move on. Thanks to Grits for the link.

It’s Bradleys all the way down

Me, March 15, on the subject of SBOE Chair Gail Lowe’s confirmation issues in the Senate:

I feel the same way about this as I did with Don McLeroy’s ultimately scuttled confirmation back in 2009. I have nothing good to say about Gail Lowe, but I have absolutely no illusions that her successor would be any better. In fact, I’d bet money that should Lowe fail to get confirmed, Perry will nominate David Bradley as the next Chair, which will not only ratchet the crazy factor back up to 11, it will also be a big, ironic middle finger aimed at every Democratic Senator. I’m not going to tell anyone how they should vote on this one – the game is rigged, and the choices all suck – but I do think everyone should give it a lot of thought.

Peggy Fikac, March 28, same subject.

It looks like speak-his-mind prosecutor John Bradley’s appointment as head of the Forensic Science Commission will end with this legislative session.

But Bradley’s brother, the equally blunt David Bradley, may benefit if Senate Democrats also block State Board of Education Chairwoman Gail Lowe’s appointment.

What’s more, if Gov. Rick Perry were to name David Bradley to replace Lowe after this regular session ends, senators might not get a chance to weigh in on the appointment until the 2013 regular session (barring a special session).

Perry’s appointments of Lowe and John Bradley are in trouble because a two-thirds Senate vote is needed to confirm nominees. There are 19 Senate Republicans and 12 Democrats.

A couple of Republicans have joined Democrats in opposing John Bradley. Senate Nominations Committee Chairman Bob Deuell, R-Greenville, said all the Republicans would vote for Lowe. But that’s not enough. Without a Senate vote, the appointees’ terms end when the session does in May.

David Bradley, a State Board of Education member from Beaumont, is a possible Lowe replacement. He’s a leader of conservatives who’ve made controversial social studies changes that even a conservative group said exaggerates Biblical influence. Bradley once tried to insert President Barack Obama’s middle name, “Hussein,” in a reference to him in history standards.

Lowe, while conservative, is credited with an even hand in presiding over board meetings. Bradley acknowledges he doesn’t have her patience.

I’m just saying.

The Willingham arson investigator

The Statesman has a good story about former Deputy State Fire Marshal Manuel Vasquez, whose testimony helped convict Cameron Todd Willingham, and the status of the Willingham case with the Forensic Science Commission.

Spurred by John Bradley, the Williamson County prosecutor who was appointed chairman by Gov. Rick Perry midway through the case, the commission has asked Attorney General Greg Abbott to determine whether it has jurisdiction to investigate the Willingham case. Legal briefs were due last week, and Abbott’s opinion is due by July 30.

If Abbott gives the green light, the commission’s next step will be to draft a final report on its Willingham findings. Commission members declined to discuss the report or its contents, but judging by their earlier statements, there are two essential questions:

• Was the arson finding based on valid science?

• Were fire officials negligent in their investigation and trial testimony?

In the spotlight is Vasquez, who had 30 years of firefighting experience, including 17 years as an investigator, when he told jurors that he had discovered numerous signs of arson at Willingham’s house.

But thanks to improved scientific understanding of fire behavior, it is now known that Vasquez was wrong about several key points.

Those two questions have always been what the Forensic Science Commission is all about. We can’t fix problems that we don’t acknowledge that we have. By now it’s clear that the answer to question 1 is no, not at all. The answer to 2 is less clear, but I for one would feel better about absolving the State Fire Marshall of any blame for their ruling at the time if they would quit defending the original ruling of arson and admit that they know more now than they did then. How can we have any faith they’re not still doing it wrong if they won’t own up to it?

Anyway. If the Bradley nomination truly is dead, then he will be off the Commission by the time AG Abbott makes his ruling. If so, and if Abbott doesn’t continue the hatchet job for Bradley, we may finally be able to put this matter to rest. It never should have taken this long, but better late than never.

Two Republican Senators oppose Bradley’s nomination to the Forensic Science Commission

Excellent.

The confirmation of Williamson County District Attorney John Bradley as chairman of the state Forensic Science Commission appears to be in deep trouble, as two Senate Republicans confirmed today that they will vote no.

That would leave Bradley four votes short of the required 21 needed to bring his name up for a Senate vote.

[…]

“At this point, his nomination not going anywhere,” said Nominations Committee Chairman Bob Deuell, R-Greenville. “Unless something changes, it’s over.”

[…]

Sen. Kevin Eltife, R-Tyler, said he is against Bradley’s nomination because of his controversial tenure as chairman of the commission. The exchange with [Sen. Rodney] Ellis is “only the latest example,” he said.

“This is no longer about him, it’s about the need for a change,” Eltife said. “Once a situation becomes this volatile, sometimes you need to make a change. That’s what I think the commission needs.”

Sen. John Carona, R-Dallas, said he also opposes Bradley’s nomination, and has no intention of changing his mind.

“I watched his disrespect for members of the Legislature on this and many other occasions, and based on that issue alone I will vote no,” he said. “His sheer dismissive attitude toward questions, toward the Legislature, that he has demonstrated time and time again, cannot be overlooked.”

Bradley’s Republican supporters said they hoped to persuade Sen. Eddie Lucio, D-Brownsville, to vote for the nomination. But Lucio said he is not switching.

“I don’t like the way he treated me on my life-without-parole bill last session, the way he talked down to me and treated me during that discussion,” Lucio said. “He was the biggest opponent of that bill . . . There was no common courtesy.”

I’m not sure which is my favorite part, the fact that he’s going down or the fact that he has no one to blame for it but himself and his arrogant, obnoxious attitude. The only bad news in this is that as the story notes Bradley would still be chairing the Commission on April 15, when it next meets to possibly take action on the Willingham case. As such, Bradley would have one last chance to fulfill the mission he was given by Gov. Perry, to permanently undermine any effort to examine and fix what went wrong in that case and set standards for arson investigations in the state. If he had any honor, he’s recognize the position he’s in and step down now, so that someone who could be confirmed can be nominated. But then if he had any honor he wouldn’t be in the position he’s in.

Bradley’s nomination to Forensic Science Commission may be dead

Peggy Fikac brings the good news.

It’s not looking good for John Bradley, the tough-talking prosecutor named by Republican Gov. Rick Perry to head the Forensic Science Commission – and not just because of Democratic opposition to his appointment.

“The Democrats are not going to vote for him, and there are two Republicans that are not,” said Senate Nominations Committee Chairman Bob Deuell, R-Greenville. It takes a two-thirds vote of the Senate to confirm the governor’s appointees. There are 19 Senate Republicans and 11 (sic) Democrats.

“He probably thought he could talk a couple of Democrats into voting for him. I don’t think he can talk four” into it, Deuell said.

[…]

If there aren’t enough votes to confirm Bradley, Senate leaders expect to let his nomination linger without a vote. His appointment then would be valid through the end of the session.

Couldn’t happen to a nicer, more deserving guy. I don’t have any illusions that Perry will pick anyone better to replace him, but as he doesn’t currently have an election to win it’s at least theoretically possible that he’ll name someone a little less hackish. We can hope, anyway. Grits has more.

Bradley’s confirmation delayed

Good.

In a bid to diffuse a partisan showdown, the name of Williamson County District Attorney John Bradley was temporarily stricken this morning from a list of nominees to be submitted to the full Senate for confirmation.

[…]

Nominations Committee Chairman Robert Deuell, R-Greenville, said [earlier] that he plans to submit the list of Monday’s nominees to the Senate for approval — possibly as early as tomorrow — but without Bradley’s name.

“I’m pulling him off the list for now, yes,” Deuell said. “I want to let things settle down, and then see where we are. If we put him out there now, they (Democrats) would sever him (from the rest of the nominees) and block him.

“There’s no reason to let that happen right now.”

Though pulled off of the current list sent to the Senate, Deuell said Bradley’s name could be submitted for confirmation at any time. Three other nominees to the Forensic Science Commission that were approved by the committee on Monday will be forwarded on for Senate confirmation now, Deuell said.

More here. Lt. Gov. Dewhurst is lobbying for Bradley, but there’s not enough lipstick in the world for this pig. Block away, Democrats. Burka has more.

Bradley gets committee approval

Can’t say I’m surprised.

The Senate Nominations Committee voted 4-2 today to recommend approving state forensic board chairman John Bradley’s appointment. Sens. Jose Rodriguez, D-El Paso, and Kirk Watson, D-Austin, voted against Bradley’s nomination.

Four Republicans voted in favor; other, less-controversial nominees were approved unanimously. State Sen. Rodney Ellis landed a few blows on Bradley, which I’m sure made for entertaining viewing. The full Senate still needs to confirm Bradley, and as with Don McLeroy and the SBOE last session, I would not at all be unhappy with his nomination being blocked by the Democrats. Frankly, I think Grits’ suggestion that the Forensic Science Commission pick its own Chair has a lot of merit. Perhaps there’s room for a deal in there. Dave Mann has more.

UPDATE: Here’s a statement from Sen. Ellis:

Senator Rodney Ellis (D-Houston) today urged the Texas Senate to reject the nomination of Williamson County District Attorney John Bradley for the remainder of his term as Chair of the Texas Forensic Science Commission. The Senate Nominations committee voted 4-2 to send Mr. Bradley’s nomination for consideration by the full Senate.

“The Legislature created the Forensic Science Commission to ensure we have forensic evidence we can trust in our courtrooms –in order to increase public safety and the public faith in justice system,” said Senator Ellis. “Unfortunately, since Mr. Bradley has taken the reins, rather than move the commission forward to look into allegations, find the truth, and repair problems in our broken justice system; the Commission has invested most of its time and energy finding ways to avoid looking into problems and looking for loopholes to block the commission from doing what it was created to do.”

In 2005, the Legislature created the Texas Forensic Science Commission to restore public faith in forensic evidence following the discovery that a series of serious errors called into question evidence in hundreds of cases across the state. The commission is yet to complete a single investigation. In 2009, just as the Commission was poised to begin completing its first investigation — a review of the evidence used to convict and sentence to death Todd Willingham — Mr. Bradley was appointed Chair of the Commission.

The Commission is still yet to complete any investigation.

After boasting that he knew nothing about the Commission, Mr. Bradley’s first move was to unilaterally cancel that meeting, stunning the public and policymakers, as well as his fellow Commission members. According to press reports, Mr. Bradley then ordered all Commissioners to delete their Commission-related emails, and declared that he wouldn’t let the Commission meet until he had time to learn more about it. Mr. Bradley displayed a shocking lack of objectivity in his work by declaring to the press that “Willingham is a guilty monster,” a clearly inappropriate statement from the Chair of a state Commission tasked to provide independent, expert investigations of allegations of forensic negligence or misconduct.

“We wanted independent experts to form a lean, efficient, and non-paid publicly review allegations of problems, investigate them, and report to the public about what it had found so that the public and thus all jurors could regain faith in forensic evidence – and thus convict the guilty and not convict the innocent,” Ellis said. “Sadly, Mr. Bradley has used his position to seize power over and thwart the will of the expert Commission, hide the Commission’s work from public view, greatly increase the Commission’s bureaucratic bloat, slow its previously impressive progress to a crawl, and otherwise prevent the Commission from accomplishing the legislature’s intent.”

Time for the Senate to go after John Bradley

Grits:

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

Bradley is a shameless, lying hack, who was appointed by Governor Perry for the sole purpose of obstructing and emasculating the Forensic Science Commission, primarily but not exclusively relating to the Cameron Willingham case. Bradley has fulfilled Perry’s every expectation, while making a mockery of what should be an objective, scientific committee. He deserves to get nailed to the wall by the Senate, especially by Sen. Whitmire. Please don’t miss this opportunity, Senators.

Can we please get back to the basics?

The ongoing saga of the Texas Forensic Science Commission:

Adding an unexpected twist to its investigation of the science used to convict and execute Cameron Todd Willingham for arson murder, the Texas Forensic Science Commission voted Friday to seek an attorney general opinion on the limits of its jurisdiction.

The commission is examining allegations, made by fire scientists and the Innocence Project of New York, that investigators relied on bad science and poor techniques to conclude that Willingham intentionally set fire to his Corsicana home in 1991, killing his three young daughters.

The City of Corsicana and the state fire marshal’s office, however, have long complained that the commission lacks the authority to examine their investigators’ actions and conclusions.

On Friday, as they contemplated drafting a final report in the Willingham matter, the nine commission members voted unanimously to ask Attorney General Greg Abbott’s office to determine whether Corsicana and the fire marshal are correct.

“It’s been the elephant in the room the entire time,” Commissioner Lance Evans said after the meeting in downtown Austin. Evans made the motion to seek Abbott’s opinion.

In the meantime, commissioners vowed to continue working toward a final report.

“I certainly think we could make findings … on the state of fire investigation back at that time, the evolution of fire investigation up to the present day and where mistakes might have been made,” said Evans, a Fort Worth defense lawyer.

To the best of my recollection, the FSC was created for two purposes. First and foremost, to evaluate the forensic techniques being used by Texas law enforcement agencies, to see if they were sufficiently modern and grounded in scientific principles for use in a courtroom. Second, if the answer to question 1 was “No” for something, to recommend standards that would then be adopted voluntarily or via legislative coercion if necessary. In the case of arson investigations, the clear and overwhelming answer to question 1 is “No”. If we had a commission chair, or a governor that’s responsible for appointing the commission chair, that cared about anything other than politics, we might be able to get to part two. But we don’t, so we’ll just keep wasting everybody’s time until either the Lege steps in (for good or for ill) or we all get too bored and frustrated with the process to give a damn about it. Grits has more.

Forensic Science Commission finally hears Willingham testimony

If you were hoping the state of Texas would be open to changing how arson investigations should be done, then the hearing was a disappointment. Still, some good things happened.

Speaking at a special meeting of the Texas Forensic Science Commission, which is examining the science used to convict Willingham, the invited experts had little positive to say about an investigation they characterized as incomplete and investigators they criticized for improperly jumping to unjustified conclusions.

“Everything documented post-fire was just as consistent with an accidental fire as an intentional fire,” said John DeHaan , author of “Kirk’s Fire Investigation,” a widely used textbook. “You have really no basis for concluding this was arson.”

But the commission also heard from an official in the state fire marshal’s office who stood by the arson conclusion, saying it was reached after a thorough, professional investigation and supported by the evidence.

Assistant State Fire Marshal Ed Salazar admitted that in the years since 1991, science has determined that some of the evidence used to convict Willingham does not necessarily point to arson. But, he said, tests that found a combustible liquid under the front door and the presence of certain burn patterns support such a finding.

“They followed the protocols; they followed the practices that were available and being used at the time,” Salazar said. “I believe the conclusions they reached can be scientifically sound.”

The DMN and Chron have more, as does Dave Mann:

Fire Marshal officials appeared before the Texas Forensic Science Commission at a hearing in downtown Austin to publicly answer questions for the first time about their handling of the Willingham case. Assistant Fire Marshal Ed Salazar told the commissioners today that his office stands behind the Willingham investigation and its conclusions.

In the past 15 years, scientific experiments have proved false many of the old assumptions that fire investigators relied on, including many in the Willingham case. But no matter. Salazar said if this case were being probed today, his office might reach similar findings. That’s a scary thought.

[…]

As Salazar presented his evidence and contended that the slides still supported a finding of arson, it became clear that the field of fire investigation hadn’t come quite as far as we thought. His presentation relied on outdated notions, what some fire scientists have taken to calling “old wives tales.”

For instance, Salazar showed photos of burn patterns on the floor of the Willingham house that were labeled “pour patterns.” Investigators alleged this is where Willingham poured an accelerant to start the blaze. Salazar contended that even under today’s standards, pour patterns can be potential evidence of arson.

In reality, scientists now know that after a fire goes to flashover stage, which this fire did, investigators can glean very little information from the burn patterns on the floor. That’s because during flashover, the fire will scorch the floor. So after flashover, burns on the floor tell you nothing about how the fire started.

Salazar also showed photos of burned holes in the floor. This is another “old wives tale.” Salazar claimed that deep burning on the floor could indicate the presence of an accelerant. (In fact, the opposite is true, as DeHaan later explained in his rebuttal testimony. Repeated scientific testing has shown that gasoline and other accelerants burn off quickly, making it “very difficult, if not impossible, for the fire to burn through the floor,” DeHaan said. Typically, only a fire that goes to flashover can burn long enough to consume the floor. So, the deep burning on the floor couldn’t have been caused by an accelerant, but was simply the byporduct of the fire going to flashover.)

Undeterred, Salazar plowed ahead. He said Vasquez had followed the scientific method and drawn proper conclusions. “[The finding of arson] is a judgment call ultimately coming down to opinions.” The fire scientists might assert that fire investigators relied on their opinions for too long rather than verifiable scientific fact.

But everyone would probably agree with what Salazar said next: “There is an underlying tension between the scientific community and the people doing the down and dirty work.”

Reading this, I can only hope I’m never called to serve on a jury in an arson case, because I’d have to tell the judge that I would be unable to vote for conviction because I have no faith in the state’s ability to determine whether or not arson was actually the cause. Before the Willingham case distracted everybody, the purpose of the Forensic Science Commission was to evaluate the methods being used in (among other things) arson cases. If nothing else, it is now crystal clear that the state of Texas does not believe in using science when investigating suspicious fires. If the Forensic Science Commission does not make strong recommendations for how to fix this, then everything it has done will have been a waste of time and effort. Given the number of people currently sitting in jail because of questionable arson convictions, that would be a bigger tragedy than the Willingham case. Grits, who also attended, provides a detailed writeup as well.