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Anthony Robinson named to crime lab LGC

Excellent choice.

Anthony Robinson

Anthony Robinson

The latest appointment to the city’s crime lab oversight board brings a unique perspective to the post.

Anthony Robinson spent 10 years in prison for a rape he did not commit before being exonerated by the kind of DNA testing the proposed new crime lab will perform.

“I am very sensitive to the errors made by the defense bar in the use, misuse, or failure to properly use forensics, particular when the evidence is presented (or not presented) by the state,” Robinson wrote in an email from Beijing, where he had traveled on business. “Science is objective when properly performed and utilized.”

The City Council approved his appointment by Mayor Annise Parker on Wednesday.

Parker said Robinson’s appointment to the board of Houston Forensic Science LGC Inc., the local government corporation created by the City Council last year to develop a crime lab independent of the Houston Police Department, was based on more than just his compelling personal history.

“He’s going to be an even better board member because he has skills as an attorney and his being very familiar with the criminal justice system,” she said. “And community contacts and ties, as well.”

My interview with Robinson from his campaign for District D is here. He’s an impressive person, and he will be an insightful and much-needed voice on the crime lab’s board. Well done.

We need a Conviction Integrity Unit in Harris County

From the DMN:

Craig Watkins

Dallas County District Attorney Craig Watkins has gained a national reputation for spearheading prisoner exonerations.

As he prepares to seek a third term, Watkins said Thursday he wants to expand on that role and add a few others. …

Watkins, a Democrat who was first elected in 2006, gained attention for using DNA tests to overturn convictions, and he said his office has a few more such cases pending.

When prosecutors finish with those next year, Watkins said, he wants his team to take another look at people convicted of arson and those accused of shaking their babies to death. Watkins said he has concerns about the science used in the prosecution of both types of cases.

“The science has changed. We need to revisit it,” Watkins said without elaborating.

That was via Grits for Breakfast, who adds the following:

With the passage of SB 344 by Whitmire/Turner, people convicted based on junk science now have a clear path to pursue habeas corpus writs to challenge their convictions, with old arson and shaken-baby cases high on the list of bad science likely to be challenged. It will be welcome news if Watkins takes leadership and gets out in front of those issues the way he did on DNA testing. The main difference will be that, until the Legislature changed the law in 2011 (SB 122 by Ellis), DAs could prevent DNA testing in old cases if they chose, just as Williamson County DA John Bradley thwarted testing in the Michael Morton case for many years simply by objecting. By contrast, the passage of SB 344 means junk science cases can now get back into court via habeas writs on their own, so Watkins and other District Attorneys will be forced to revisit them whether they want to or not.

Craig Watkins has done groundbreaking work in Dallas reviewing old convictions for which DNA evidence was available to allow for it. This was possible in part because Dallas County obsessively kept all their old case evidence, but it was Watkins who had the vision to look at old cases where the potential existed for a conviction that had been based on potentially shaky evidence and for which a more definitive answer could be established. Dozens of wrongly convicted men were freed as a result. DNA evidence only exists in a small percentage of cases, but there are other kinds of cases that can and should be reviewed, beginning with the “junk science” cases highlighted in SB344. It’s way past time for Harris County to conduct a systematic review of its own of old cases to see which of them deserve a closer look. We will be under the mandate of SB344 for some of these cases, but there’s no reason to limit ourselves, or to wait till the last minute. It’s beyond question that there are people currently in jail after being convicted in Harris County that are provably innocent of the crimes they were convicted for. In some cases, as with the just-released “San Antonio Four”, the crime in question never actually occurred. We already have to take action for some of these. Let’s commit to doing a thorough and exhaustive job of it. I look forward to hearing what Devon Anderson and Kim Ogg have to say about this.

Ken Anderson accepts a plea deal

Some closure in the Michael Morton case.

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

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

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

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

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

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

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

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

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

Interview with Anthony Robinson

Anthony Robinson

Anthony Robinson

If you’ve followed the news at all in Texas over the past decade or so you’re familiar with the large number of convicted inmates who have been subsequently freed after being exonerated by DNA evidence. That’s the story of District D candidate Anthony Robinson, who was convicted of a crime he didn’t commit in 1986, freed after serving ten years in jail, then proven innocent by DNA analysis in 2000. A former Army Cavalry Officer, Robinson earned two degrees while in prison, then got a law degree and became an attorney after being freed. He is a practicing attorney now, and as you might imagine has a strong interest in criminal justice matters. That was one of the things we talked about in our interview:

Anthony Robinson interview

You can see all of my interviews as well as finance reports and other information on candidates on my 2013 Election page.

State Bar seeks sanctions against Ken Anderson

Seems reasonable to me.

Arguing that a trial is no longer needed, the State Bar of Texas has asked a judge to summarily rule that former Williamson County District Attorney Ken Anderson engaged in professional misconduct by hiding evidence in the murder trial of Michael Morton, who was exonerated after spending almost 25 years in prison.

Such a ruling would allow the State Bar, which oversees lawyer discipline, to proceed directly to a state district court hearing on sanctions against Anderson, who could be disbarred, temporarily lose his law license or receive a public reprimand for his handling of Morton’s prosecution in 1987.

A lawyer for Anderson, now a state district judge in Georgetown, said he will oppose the bar’s motion and plans to move for a dismissal of the State Bar’s lawsuit.

The civil lawsuit is separate from criminal charges that are also pending against Anderson, but both cases rely on the same accusations – that Anderson hid evidence that could have raised questions about Morton’s guilt, then lied when he assured Morton’s trial judge that he had no favorable evidence to turn over to the defense as required by law.

Morton served almost 25 years in prison for the murder of his wife, Christine, before he was exonerated in 2011.

In its motion for summary judgment, the State Bar’s Commission for Lawyer Discipline argued that a Sept. 30 trial wasn’t necessary because its allegation – that Anderson violated his duties as a lawyer – had already been proved in a court of inquiry that examined Anderson’s handling of Morton’s prosecution.

[…]

The criminal case against Anderson is still in the early stages, and Anderson’s legal team has filed an appeal arguing that the charges are improper because the statute of limitations had passed two decades ago.

Anderson’s lawyers believe the State Bar’s lawsuit also is barred by the statute of limitations and plan to file a competing motion for summary judgment asking that the lawsuit be dismissed, lawyer Eric Nichols said.

In its motion, the State Bar argued that Anderson mounted a vigorous defense during a weeklong court of inquiry hearing in February and isn’t entitled to retry the facts after losing that case.

The law “prevents relitigation of particular issues that were litigated and decided in a previous lawsuit,” argues the motion from Linda Acevedo, the commission’s chief disciplinary counsel.

Nichols disagreed, saying the court of inquiry didn’t result in a final decision or judgment against Anderson, who insisted he did nothing wrong, and operated under looser rules of evidence, providing a questionable result.

As noted in the story, the judge in the court of inquiry issued an arrest warrant for Anderson in April, charging him with tampering with physical evidence and tampering with a government document. I can see Anderson’s point that this wasn’t a normal courtroom procedure and the standards of evidence may have been different, but he got to put on a defense and it’s hard to see how things would play out differently in civil court. Unless some of the previously introduced evidence was suppressed via a successful motion by his attorneys, which would add a layer of irony to the whole thing that I’m not sure any of us could handle. The statute of limitations argument completely fails to impress me. It may be technically right if we are forced to start the clock when Michael Morton was tried, but under the much more sensible interpretation that the limitations period began when the crime was actually discovered there’s no leg to stand on. I say Anderson has had his chance to prove that the misconduct allegations were meritless. The Bar has a responsibility to act, and it should be allowed to do so.

Michael Morton Act signed into law

Excellent news.

With exoneree Michael Morton by his side, Gov. Rick Perry on Thursday signed a measure that aims to avoid wrongful convictions by preventing prosecutors from suppressing evidence.

“This is a major victory for integrity and fairness in our judicial system,” Perry said of Senate Bill 1611, which was named for Morton, who spent 25 years in prison before being exonerated. It was the governor’s first public signing ceremony of the session.

[…]

Under SB 1611, prosecutors will be required to turn over evidence to defendants accused of crimes and to keep a record of the evidence they disclose. The landmark 1963 U.S. Supreme Court ruling in Brady v. Maryland already requires prosecutors to give defendants information that is “material either to guilt or to punishment.” The Morton Act requires disclosure of evidence regardless of its materiality to guilt or punishment. It is the first significant reform to Texas discovery laws since 1965.

[…]

State Sen. Rodney Ellis, D-Houston, who co-authored the bill with state Sen. Robert Duncan, R-Lubbock, said the bill’s passage represented “an important milestone in the journey toward justice in Texas.” Duncan said the legislation would help preserve liberty in the state.

After signing the bill, Perry handed Morton the pen he used to do it, and state Rep. Senfronia Thompson, D-Houston, presented Morton with the gavel used to mark the passage of the bill in the House.

Well done all around. When SB1611 was first introduced, it was opposed by the Texas Criminal Defense Lawyers Association on the grounds that it would have also required defense attorneys to open their files to discovery, much like prosecutors are required to do. I hadn’t followed this bill very closely so I wasn’t sure if the TCDLA was now on board with SB1611 – their website and Facebook page give no indication that I could find. I eventually found a comment by TDCLA President-elect Bobby Sims on this Grits post (scroll all the way down; Sims’ handle is Longhorn74) which makes it clear that in the end the TDCLA did support SB1611. All’s well that ends well. It would be nice if there were an equally happy ending for HB166, the bill to establish an Innocence Commission, but that doesn’t appear to be the case. One step at a time, I guess.

Court of inquiry issues arrest warrant for Ken Anderson

Wow.

A judge issued an arrest warrant for former Williamson County District Attorney Ken Anderson Friday, after finding probable cause to believe Anderson withheld critical evidence in Michael Morton’s 1987 murder trial.

Judge Louis Sturns concluded his court of inquiry by charging Anderson, who is now a state district judge, with tampering with government records (a misdemeanor), tampering with physical evidence (a felony) and failing to comply with a judge’s order to turn over such evidence, for which he could be held in “contempt of court.”

The rare court of inquiry, in which arguments were made in February, was held to determine whether Anderson, a former district attorney, committed criminal misconduct during the trial that led to Morton’s wrongful murder conviction. Morton, who was in attendance for Friday’s decision, spent nearly 25 years behind bars for his wife’s murder before he was exonerated.

Sturns said that Anderson purposefully concealed evidence from Morton’s defense attorneys, hiding reports that neighbors had seen a green van outside of the Mortons’ home and a phone transcript in which Morton’s son was said to have told his grandmother a “monster” murdered Morton’s wife.

Rusty Hardin, the special prosecutor in the court of inquiry, told reporters that Anderson would turn himself in at the Williamson County Jail on Friday afternoon, and that he would have to pay a $2,500 bond for each of three separate counts.

As for what happens next, Hardin admitted that nobody involved is sure. “We’re all kind of operating on a clean slate here,” he said, adding that Anderson would be “treated like anybody else.”

See here and here for some background. I wasn’t terribly sympathetic to Anderson after reading his testimony, so I’m not particularly sorry for him now. But as Michael Morton himself reminds us, this is not about punishment but transparency and accountability. Whatever happens next, it’s good that Ken Anderson is being held accountable for his actions. A statement from Sen. Rodney Ellis, who has authored and advocated for more legislation that would help promote that kind of transparency and accountability, is beneath the fold.

UPDATE: Grits has a copy of Judge Sturns’ order.

(more…)

Reciprocal discovery

There’s a bit of controversy brewing over one of the criminal justice reforms that have been proposed. The bill at issue was filed on deadline day.

Senate Bill 1611 would enact uniform discovery requirements in criminal cases across Texas. It would require prosecutors to give defense lawyers evidence in their files and to include essentially everything except their own notes about strategy. It would require defense lawyers to share evidence as long as it doesn’t include their strategy plans or violate the defendant’s right against self-incrimination. The measure also spells out that lawyers on both sides would have an ongoing duty as the case continues to reveal information, and it would provide sanctions in cases where the discovery requirements are violated.

[Sen. Rodney] Ellis, D-Houston, said the bill would make the justice system fairer and save taxpayers money that is often spent in long, expensive court battles and on compensation to those who have been wrongfully convicted.

“Ensuring all evidence comes to light and that all the relevant facts are weighed will improve the reliability of the justice system,” he said. “Texans deserve a system they know will protect the innocent, convict the guilty, and is instilled with the fairness and integrity justice demands.”

Nearly every other state has discovery requirements similar to those outlined in SB 1161, and requiring reciprocal open discovery was a recommendation in the August 2010 report from the Timothy Cole Advisory Panel on Wrongful Convictions. Then-state Rep. Pete Gallego, D-Alpine, filed a similar bill in 2011, which did not pass. Under current law, prosecutors are required only to divulge basic information about the crime to a defendant’s lawyer, and they’re only forced to do so if a judge orders it.

Ellis and Sen. Robert Duncan are the authors of this bill. I was curious to see how the defense bar would react, since they had raised concerns about the direction of this legislation before it was filed. It seems their concerns have not been assuaged.

The Texas Criminal Defense Lawyers Association this weekend approved a resolution opposing the legislation.

“The only ones who ought to open their files is the prosecution; they have the burden of proof,” said Bobby Mims, president-elect of the association.

Momentum to pass legislation that requires both district attorneys and defense lawyers to share their files has grown in the wake of wrongful convictions in which prosecutors allegedly withheld critical evidence. Such laws, proponents argue, would prevent convictions like that of Michael Morton, who was exonerated in 2011 after spending nearly 25 years in prison for his wife’s murder. His lawyers allege that the district attorney in Morton’s case deliberately kept information from defense lawyers that could have prevented his conviction and led to the real killer. Morton himself has supported legislation to require open discovery.

Some criminal defense lawyers over the last decade have led the fight against reciprocal discovery proposals in Texas. The association says the measure is unnecessary, would result in a flood of expensive, unneeded paperwork and would give prosecutors too much access to their clients’ information. It is the prosecution — not the defense — that bears the burden of proof in criminal cases, and defense lawyers argue they should not have to reveal their clients’ hands. What’s more, they say the legislation would do nothing to prevent tragedies like Morton’s.

“We have numerous problems in the criminal justice system,” said Keith Hampton, a veteran criminal defense lawyer in Austin. “Discovery is no longer it.”

[…]

Though they are not required to do so, Mims said, most prosecutors in Texas already have some type of open file policy that allows defense lawyers access to evidence against their clients.

Ellis’s legislation, he said, would require expensive and lengthy document production that would drive up the cost to taxpayers who foot the bill for indigent defendants. And he worried that the requirements would inundate lawyers with unnecessary files.

But the biggest worry for defense lawyers, Mims said, is that providing witness lists to prosecutors could lead to witness intimidation.

“The fact that a prosecutor is ethical doesn’t mean his investigators or other police officers are, too,” Mims said.

For all the heartburn it is likely to cause, Mims said, the law would not prevent what happened to Morton from happening to others. No legislation can ever stop a police officer or prosecutor who wants to hide evidence, he said.

Instead, he said, the TCDLA strongly favors Senate Bill 825, a measure by state Sen. John Whitmire, D-Houston, which [was] heard Tuesday in the Senate Criminal Justice Committee, which the senator leads. The measure would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire’s proposal, which Morton also supports, would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison.

The association also supports House Bill 166 by State Rep. Ruth Jones McClendon, D-San Antonio, which would create an innocence commission to examine wrongful conviction cases and recommend improvements to the criminal justice system to prevent them in the future.

The Texas Defender Service supports SB1611, but as you saw in that earlier link that didn’t cut any ice with the TCDLA. I’m not an attorney, let alone a criminal defense attorney, so I do not presume that I understand this issue better than they do, but I am curious about something. If it really is the case that most other states do things the way the Ellis/Duncan bill would have Texas do, is it truly that Texas’ way is better, at least from a criminal defense perspective, or is it just that Texas’ way is good enough and it’s not worth mucking with? Like I said, I’m just curious. In any event, Sen. Whitmire’s SB 825 has passed out of committee, and that would unquestionably be a step forward. Grits has an excellent writeup about it. We’ll see how it goes with SB 1611.

Jefferson pushes for judicial reforms

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

Wallace Jefferson

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

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

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

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

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

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

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

The Statesman has more:

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

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

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

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

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

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

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

Court of inquiry concludes

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

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

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

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

[…]

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

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

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

[…]

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

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

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

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

Eye on Williamson sums it up nicely.

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

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

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

The court of inquiry

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

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

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

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

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

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

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

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

In praise of CODIS

We’re catching more crooks thanks to DNA. Not exactly an earth-shattering revelation, but it’s always nice to have some numbers.

I want one of these

The number of Texas crimes solved after a suspect’s DNA matched with offenders’ DNA samples stored in the national repository known as CODIS (Combined DNA Index System) recently passed the 10,000th mark.

The state averaged only about 200 matches a year during the first five years after the database was created in 1996. That number leaped to an average 1,000 hits a year for the next 10 years. In just the last 11 months, the number of matches has nearly doubled to 1,943, records show.

[…]

Harris County now processes an average of 400 cases a month, compared to about a dozen cases in the past, said the lab’s director, Dr. Roger Kahn, explaining how automation has replaced the tedious repetitive tasks once done by human hands.

The number of samples of offenders’ DNA stored in Texas’ database also has mushroomed to more than 660,000. Texas law requires all registered sex offenders, felons sent to prison or placed on community supervision, and juveniles committed to Texas’ juvenile justice system to submit a DNA specimen.

“The more samples in the pool, the greater opportunity for a match,” said Skylor Hearn, who oversees the crime lab that manages the state’s database. “There is a degree of recidivism in (the) criminal world, and we’re catching up to them.”

At the same time, the ability to make a match is increasing because DNA profiles can be developed from material that’s often invisible to the eye.

“Originally, we required a blood stain the size of quarter. Now it’s not visible. A dandruff flake is enough; just touching something leaves behind cells that can be enough. The systems are much more sensitive,” Kahn said.

Harris County also has a special “CSI-style” seven-member team that it can dispatch to collect potential DNA from sensitive murder scenes.

That last bit is somewhat of a commercial for the Harris County crime lab, which as you know is getting a new facility soon, but what the heck. Keep up the good work, y’all.

Using DNA analysis is often associated with innocence and exoneration these days, and for good reason. It’s important to remember that every time DNA absolves someone who had been convicted of a crime, it also points a finger at the real perpetrator. For every innocent person in jail, there is some number of guilty people who aren’t in jail. (Some may be in jail for other reasons, or they may be dead, or as with some questionable arson cases, there may have been no crime in the first place.) None of those exonerations, and subsequent arrests of the real criminals, would have been possible if the original DNA evidence had been destroyed upon conviction, as prosecutors like now-former Williamson County DA John Bradley have advocated. If he had gotten his way in the Michael Morton case, not only would Morton still be incarcerated, but a man who is now also suspected in the murder of at least one other woman would still be walking free. Think about that. And while you do, be sure to read Pam Colloff’s outstanding two-part story in the November and December editions of Texas Monthly about the Michael Morton saga. If you don’t have a tear in your eye, and a belly full of outrage, by the ending, you should consider talking to your doctor. See also Grits’ interview with Colloff for more.

Arson review moving forward

Good.

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

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

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

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

The Star-Telegram provides more details.

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

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

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

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

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

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

Hampton going after Keller

I wish him the best of luck.

The ethics behind Court of Criminal Appeals Presiding Judge Sharon Keller’s decision to shut the doors on a death penalty appeal are resurfacing as her opponent launches a contentious campaign against her.

Democratic defense lawyer Keith Hampton is striking out at Keller, a Dallas resident who’s held the presiding judge post since 2001.

Experts say Hampton has a long road ahead of him, made rockier by the fact that no Democrat has won a statewide race in nearly 20 years. Though he has more money in his arsenal and is running a broad campaign against Keller’s job performance, her party affiliation and incumbent status are huge advantages.

Nine judges sit on the Court of Criminal Appeals, the highest court in the state for criminal charges, which hears capital punishment cases and has been criticized for reversing convictions for technical matters unrelated to a defendant’s innocence. If Hampton wins, he would be the only non-Republican on the court — and probably the only Democrat elected statewide.

“It’s difficult, but I don’t think impossible, given that Keller has some baggage and isn’t running the kind of campaign he is now,” said Sherri Greenberg, a former House member who is director of the Center for Politics and Governance at the University of Texas at Austin. “On the other hand, she may just be banking on that it’s a Republican gig.”

The Trib wrote about Hampton’s efforts to woo Republican voters last month. A victory for Hampton is one part how high the Democratic baseline is this year, and one part how successful he is at that persuasion effort. There is a Libertarian candidate on the ballot as well, which allows for the possibility of Hampton winning with a plurality vote. If he can get to 48%, he has a decent shot. Over the weekend he got the endorsements of the DMN and the Star-Telegram, which will help a little, and when all is said and done he should have most if not all of the remaining newspaper nods. It would be nice if more people were aware of Sharon Keller’s record and voted accordingly – visit VoteNoSharonKeller.com if you need a refresher – but this is how it is. If she wins again she gets six more years on the Court of Criminal Appeals bench. She doesn’t deserve that, and neither do we.

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.

The exoneration that wasn’t

I don’t know about you, but I’d forgotten about this.

Charlie Baird

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

Scientific experts who debunked the arson evidence used against Willingham at his 1992 trial and a jailhouse witness who recanted his shaky testimony convinced District Court Judge Charlie Baird in 2010 that “Texas wrongfully convicted” him. But Baird’s order clearing Willingham’s name never became official, because a higher court halted the posthumous inquiry while it considered whether the judge had authority to examine the capital case.

While waiting for permission to finish the case from the Third Court of Appeals, Baird put together the document that “orders the exoneration of Cameron Todd Willingham for murdering his three daughters,” because of “overwhelming, credible and reliable evidence” presented during a one-day hearing in Austin in October 2010.

“You can’t do anything for Willingham except clear his name,” Baird told The Huffington Post. “When they tried Willingham, I’m convinced that everyone worked in good faith. The problem is that up until the execution, everything had changed so dramatically that you realized the science relied upon at trial was not reliable enough to take a man’s life.”

Baird’s intended order never came to light because the court of appeals criticized his handling of the case and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

Baird, now an attorney in private practice, said he was moved to share the document with HuffPost after reading about Carlos DeLuna, a Texan who a Columbia University team said this week may have been wrongly executed in 1989.

Link via Grits, who asked for and received a copy of Baird’s order. I had previously blogged about Baird’s hearing and the Third Court of Appeals shutting him down. I don’t suppose we’ll ever get past the politics of this case, but I think Baird’s conclusion that a modern day jury would never have convicted on the evidence that was presented at Willingham’s trial is accurate. Whether we’ll ever use our better understanding of the science of fire to correct the wrongs of the past that still can be corrected remains to be seen.

Why better eyewitness ID procedures matter

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

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

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

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

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

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

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

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

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

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

“Open letter to Williamson County”

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

Open Letter To Williamson County:

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

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

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

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

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

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

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

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

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

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

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

Truth and justice are more important than winning an election.

John W. Raley

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

Court of inquiry appointed in Morton case

Maybe now we’ll get some answers.

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

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

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

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

[…]

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

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

In the meantime, this made me angry.

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

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

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

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

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

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

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

Court of inquiry recommended in Morton case

Good.

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

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

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

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

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

[…]

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

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

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

“Beyond DNA”

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

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

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

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

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

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

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

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

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

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

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.

The science of fire

Great story about how scientists have been figuring out what really happens when a building burns, and why so much arson “evidence” is bunk:

At laboratories throughout the United States—some large enough to contain a three-story house—researchers have been lighting rooms and houses on fire and analyzing the results with the kind of scientific scrutiny that has upended several deeply entrenched misconceptions about how fires behave. The upheaval is more than academic. For generations, arson inspectors have used outmoded theories to help indict and incarcerate many suspects. But as new science is brought to bear on old cases, it is becoming clear that over the past several decades, dozens, perhaps hundreds, of people have been convicted of arson based on scant research and misguided beliefs. Many of those people are still in jail, hoping that someone will take up their cause.

“A lot of bad science has been applied to arson investigation,” says John Lentini, a renowned fire expert who has given exculpatory testimony in at least 40 arson cases since 2000. His most recent case, now under review, involves a Massachusetts man convicted of arson by Molotov cocktail, even though not a single glass fragment from the supposed bottle bomb was found at the scene.

“I shudder to think how many wrongful convictions there are,” says Richard Roby, president and technical director of Combustion Science and Engineering, a fire-
protection engineering firm based in Columbia, Maryland. Roby has testified for several men charged with arson. One, named Michael Ledford, could not have been 
at the scene when the fire that killed his son was allegedly set, according to Roby’s calculations, yet he is now serving a 50-year sentence. “It’s amazing to think how long it takes for basic science to be accepted,” Roby says. “I lose sleep over this every week.”

The good news is that genuine science is starting to be used by fire investigators. The bad news is that it’s a slow process, and there is still much resistance from the old guard and certain political quarters, as we have clearly seen in Texas, though perhaps the closing of the Willingham case, which included an agreement from the Fire Marshall to review old cases where bunk science might have played a role in getting a conviction, will help change that. They’ll have their choice of cases to investigate, as the unfortunate consequence of all this is that there’s a lot of people who have been convicted of deliberately starting what were surely accidental fires.

In Massachusetts, the percentage of building fires determined to be arson has dropped from more than 15 percent in the early 1990s to less than 2 percent in 2009. In Texas the proportion of fires labeled incendiary has declined by more than half in the last decade. Nationwide, according to the National Fire Prevention Association, the number of intentional structure fires declined by about 51 percent between 1990 and 2007, the most recent year for which statistics are available—from 111,900 incidents to 54,700.

There aren’t fewer fires, there are fewer fires being incorrectly classified as crimes. Even these shrunken numbers are likely too high, and the trend is of no comfort to those wrongly rotting in jail. It’s a real tragedy.

Moving on from the Willingham case

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

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

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

[…]

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

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

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

[…]

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

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

That change could be very large indeed:

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

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

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

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

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

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…)

One good thing that can be said about this session

A fair number of innocence-related bills have been passed this session. Some of them might have been passed in 2009 had it not been for the voter ID-killing chubfest, for others it was just that the stars finally aligned. Grits and Dave Mann have the details. Hopefully, the voices in Rick Perry’s head are not telling him to veto any of these bills. Each one represents a necessary step forward. Now if we can just make sure that the Forensic Science Commission bill doesn’t get screwed up.

Prior bad acts

I don’t know about this.

In what critics say could be a “seismic change” in state criminal law, the Texas Senate tentatively approved a bill that would allow jurors in sexual assault cases to hear testimony about similar allegations against a defendant — even if the previous incident did not result in a conviction or even criminal charges.

The bill by Sen. Joan Huffman, R-Houston, would allow the introduction of testimony about allegations of other sexual assaults to be admitted during the guilt or innocence phase of a trial if a judge — outside the presence of the jury — hears the evidence and deems it relevant.

The bill gives “greater resources to prosecutors and victims of sexual assault,” Huffman said Monday. Allowing testimony of similar sex offenses “brings Texas closer in line with federal rules of evidence,” she added.

Sen. Royce West, D-Dallas, opposed the bill, arguing the measure would bring about “more wrongful convictions” because jurors will be afraid to acquit a defendant against whom they have heard multiple allegations. Jurors who are skeptical of the evidence of the case before them could feel compelled to convict “because he (the defendant) must have done something wrong,” West said.

“All of us want to be law and order and the whole nine yards,” West said. “But this is carving new ground in criminal jurisprudence. You ought to think long and hard, ‘is that fair?’ ”

I share Sen. West’s concerns. Maybe if Texas had more robust innocence procedures, and a Court of Criminal Appeals that wasn’t a wholly owned subsidiary of the prosecution, this might be all right. As things actually are, I too expect that we’ll see more wrongful convictions as a result. This needs to be given third and fourth thoughts before it gets enacted. Grtits has more.

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.

House eyewitness ID bill passes

Another step forward.

The Texas House, aiming to reduce the number of wrongful convictions, approved legislation Wednesday that would require law enforcement agencies to begin standardizing the way eyewitnesses identify criminal suspects.

The unanimously approved bill would require police to adopt written policies to determine how they conduct photographic or live lineups. Agencies would be encouraged, but not required, to develop blind procedures whereby the person administering a live lineup doesn’t know who the suspect is. Judges still would be given wide discretion on what evidence to admit in court.

Rep. Pete Gallego, D-Alpine, said he sponsored the bill to cut down on the leading cause of wrongful convictions. Misidentification of suspects by eyewitnesses is responsible for 75 percent of the convictions overturned by DNA evidence, according to The Innocence Project, a non-profit working to free wrongfully incarcerated people.

Rep. Gallego’s bill is HB215, which now goes to the Senate; the Senate has already unanimously approved Sen. Rodney Ellis’ SB121, which is mostly the same. Assuming nothing unusual, a bill will be on its way to Governor Perry’s desk shortly. Grits has more.

Eyewitness ID reform passes the Senate

Good.

As approved 31-0 by senators, Senate Bill 121 by state Sen. Rodney Ellis, D-Houston, will require law enforcement agencies in Texas to adopt best-practice standards for eyewitness identification — in both photo and live lineups — where there is no such law now.

A 2008 study found that only 12 percent of police departments in Texas had any such standards.

“Eighty-six percent of the 44 DNA exonerations in Texas have been due to incorrect eyewitness identification,” Ellis said.

“The Texas Senate today took a very important step toward improving justice in Texas. … It enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent.”

That’s one of Sen. Ellis’ package of innocence-related bills, whose House companion has passed out of committee. With any luck, this will be the year that these needed reforms get enacted. Kudos to Sen. Ellis for his tireless work on the subject. The Trib has more.