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Forensic Science Commission finally hears Willingham testimony

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Willingham documentary

From the Trib:

As you’re reading this, Steve Mims and Joe Bailey Jr. are putting the finishing touches onIncendiary, a new documentary about theCameron Todd Willingham case that focuses almost entirely on forensics — on the science behind arson investigations like the one that led to the Corsicana man’s arrest, conviction and execution following the death of his three small children in a 1991 house fire.

Mims and Bailey aren’t political activists; the former lectures in the University of Texas’ Department of Radio-Television-Film, while the latter is a graduate of UT’s law school. But they were so moved by an article about the Willingham case in The New Yorker that they decided to tackle one of the most controversial topics in the modern era of state’s criminal justice system.

Featured in the film are two arson science experts, Gerald Hurst and John Lentini, talking about the case and about forensics in general. Willingham’s original defense attorney, David Martin, also gets a lot of screen time — although, given his skepticism about any wrongdoing by the authorities, he could easily be mistaken for a prosecutor. Barry Scheck, co-director of the New York-based Innocence Project (and best known as a member of O.J. Simpson’s criminal defense team), plays a leading role as well.

But the breakout performance is that of Williamson County District Attorney John Bradley, who was appointed by Rick Perry to chair the Texas Forensic Science Commission just as the commission and its previous chair were inconveniently set to weigh in on the Willingham case during the gubernatorial campaign. Bradley is combative, bordering on hostile, from the moment he appears in Incendiary, both in his dealings with the press and with his fellow commissioners.

There’s an 8-minute preview at the Trib link, which is well worth your time to watch, plus a brief Q&A with the filmmakers. I look forward to seeing the finished product.

Appeals court suspends Willingham court inquiry

This happened late last week.

An Austin appeals court has ordered Judge Charlie Baird to halt his inquiry into whether Cameron Todd Willingham was wrongfully executed in 2004 and whether there is probable cause that state officials committed a crime in their handling of Willingham’s case prior to his execution.

The Austin American-Statesman obtained an order by the 3rd Court of Appeals from the court clerk just prior to 5 p.m. today, after Baird heard several hours of testimony on the case. By that time, Willingham’s lawyers had announced that they were through presenting evidence.

Before Baird closed the hearing, former Gov. Mark White said that Willingham should be posthumously exonerated.

“The state of the testimony that convicted him has been impugned today,” said White, who said. “Every shred of evidence points conclusively to his innocence.”

Baird said he would take the case under advisement and issue formal findings of fact at a later date if they that is warranted.

Dave Mann has a good report of what actually happened at the hearing before the Appeals Court suspended matters, Grits reviews the politics of the matter, and the Stand Down blog rounds up coverage of the story. I don’t know what will happen at this point, but I feel pretty confident saying we’d be paying less attention to this now if Governor Perry and his henchman John Bradley hadn’t expended so much effort trying to keep the lid on it. Justice is slow, but usually it eventually arrives.

Pity poor John Bradley

It’s a truly beautiful thing to see the guy who was brought in to the Texas Forensic Science Commission for the express purpose of protecting Governor Perry’s political interests wail and moan about the Commission becoming a “political football” now that it’s clear he cannot control the other commissioners. The strategy, hatched back when Perry was in a competitive primary, was to delay the potentially explosive stuff until after the elections were over, when no one would be paying attention any more. You have to wonder at this point if Perry had just let nature run its course if the worst of this would be all behind him by now. Instead, things are still coming to a head, and his designated fixer has lost the handle. Somewhere, Machiavelli is shaking his head and muttering about “amateurs” under his breath. The DMN editorial board has more.

The scientists have rebelled

Wow.

When seven [members of the Texas Forensic Science Commission] met at a hotel near Dallas’ Love Field, the ostensible goal was to finalize their report on the Willingham case. But from the start, the forensic scientists on the panel fought Bradley at every step. By the end, the tenor of the meeting had changed entirely. What was supposed to have been the end of the Willingham probe now seems just the beginning.

One reform advocate termed the days events “the revenge of the scientists.” Another advocate, Stephen Saloom of the Innocence Project, said the meeting “gives me great hope about where this investigation will lead.”

Indeed, commissioners today talked openly of digging into the systemic problem with arson cases. That’s a subject I’ve been writing about for two years, and it was a remarkable to hear commissioners move beyond Willingham to look at the wider problem. Several commissioners even suggested a wide-ranging re-examination of arson cases in Texas from the past 20 years.

That was a stunning development given how the day started.

The day started, of course, with Rick Perry’s hand-picked fixer attempting to ram through a report, written by himself of course, that took the state Fire Marshall off the hook for its shoddy work in 1991 and declared that there was nothing more to see here. The commissioners had none of it, and in the end carried the day. Read the whole thing, as Saloom says it’ll give you hope that something useful may yet come out of this melodrama.

UPDATE: Grits has more.

So what did the Forensic Science Commission do?

I guess I wasn’t expecting this.

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

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

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

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

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

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

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

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

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

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

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

John Bradley is a political hack: Film at 11

John Bradley, the District Attorney for Williamson County and the hand-picked-by-Rick-Perry Chair of the Forensic Science Commission, continues to be the single biggest impediment to the Commission doing the job it was specifically created to do.

In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.

Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”

Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.

In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.

And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.

Remember when the Forensic Science Commission was about making forensics better in Texas and not about covering Rick Perry’s ass? Those were the days. Grits and the Trib have more. A brief statement from State Sen. Rodney Ellis is beneath the fold; the full version of the statement is here.

UPDATE: Rick Casey piles on.

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Defense attorneys criticize Forensic Science Commission

Good for them.

Texas defense lawyers took aim at the state’s Forensic Science Commission Monday, charging that the group — now probing the possibly botched arson investigations that sent an East Texas man to his execution — is in danger of being “permanently tainted and derailed by politics.”

In a statement issued by Texas Criminal Defense Lawyer’s Association president Stanley Schneider, the lawyers targeted commission Chairman John Bradley, saying he has “overstepped his authority, ignored the will of the Legislature and is trying to hide the commission’s work from public scrutiny.”

[…]

Schneider, a Houston lawyer, said a Bradley-devised system of subcommittees designed to collect investigation evidence, accept citizen complaints and handle other matters “very likely” violates the Texas Open Meetings Act.

In response to my emailed request, Keith Hampton of the TCDLA sent me a copy of the their statement, which I have reproduced beneath the fold. Like Grits, I hope the TCDLA pursues the open meetings angle, which based on the story and Grits’ analysis seems likely to be a winning argument if a lawsuit were to be filed. Someone needs to hold John Bradley accountable for his actions.

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Forensic Science Commission finally gets back to Willingham case

It’s a start, but it’s not much more than that.

Meeting for the first time since January, the nine-member Texas Forensic Science Commission voted to obtain and review the complete transcript of the capital murder trial of Cameron Todd Willingham, who was sentenced to death for setting the December 1991 Corsicana house fire in which his three young children perished.

Commissioners also agreed to renew contact with Baltimore fire expert Craig Beyler, who, in a commission-sponsored review last fall, criticized the arson investigations of Texas Deputy Fire Marshal Manuel Vasquez and Corsicana Fire Chief Doug Fogg.

[…]

Commission members on Friday voted to create the Willingham and other subcommittees, but an earlier configuration of the Willingham panel — Bradley, Peerwani and Kerrigan — met earlier this month in private to discuss the case.

The state’s open meetings law does not require the subcommittee to meet publicly, but Bradley said the meetings could be opened to the public if members desire.

Asked if he favored allowing the public to attend such sessions, Bradley responded, “No,” adding that all matters discussed in the closed sessions ultimately would be revealed at regular commission meetings.

A full liveblog of the hearing by Rodger Jones is here. What really matters, as Grits and Dave Mann in addition to Jones point out, is that the Willingham subcommittee can do its work in secret. Whatever happens, the public won’t get to see it or have any input on it until it’s too late. Which is no doubt what Bradley, being a good and loyal foot soldier to Rick Perry, had in mind all along. The Statesman, the DMN, and EoW have more.

UPDATE: Scott Cobb comments:

Anyone who believes that all committee meetings of the Texas Forensic Science Commission should be public and not private, secret closed door meetings, should write commission Chair John Bradley and other Commission members urging them to make the meetings public and to post notices on the Commission website of when and where the subcommittee meetings will take place.

Urge Texas Forensic Science Commission to Hold Public Meetings in Todd Willingham Case

I second that.

Forensic Science Commission to finally get back to Willingham case

It’s sure taken them long enough.

After months of delay and internal upheaval, the revamped Texas Forensic Science Commission is poised to reopen discussion of the Cameron Todd Willingham case when it meets April 23 in Irving.

Tarrant County Medical Examiner Nizam Peerwani, appointed to the panel in December, is likely to play a central role in the inquiry to determine whether a flawed arson investigation led to Willingham’s execution in 2004.

The commission also includes two other members from Fort Worth: defense attorney Lance Evans and Jay Arthur Eisenberg, a professor and chairman of the department of forensic and investigative genetics at the University of North Texas Health Science Center at Fort Worth.

The meeting will mark the first time that the commission has revisited the Willingham case since a membership shake-up halted the inquiry more than six months ago.

“I think the commission is looking forward to being able to get down to work,” said Evans, who was appointed in October.

[…]

Peerwani said that the screening committee has scheduled a meeting for Thursday in his Fort Worth office but that members of the second panel who were assigned to the Willingham case have yet to get together. It remains unclear to what extent the Willingham panel will rely on the previous work of the original commission, but Peerwani hopes that the panel won’t have to start from scratch.

“We do have a lot of material that the commission has collected,” said Peerwani, who has been Tarrant County’s medical examiner for 30 years. “I don’t think we have to go back and restart all those investigations.”

But “it’s still up in the air. I don’t know what the commission is going to do,” he said.

[…]

One crucial element from the original inquiry was a report that was prepared for the commission by Baltimore fire expert Craig Beyler, who concluded that the arson investigation that led to Willingham’s conviction was based on outmoded techniques and could not sustain a finding of arson.

The commission agreed to look into the case after receiving a complaint from The Innocence Project, a New York-based advocacy group, in December 2006.

Beyler, whom the commission hired December 2008, submitted his report in August 2009 and was scheduled to appear at a commission hearing that was abruptly canceled after the membership shake-up in September. Beyler told the Star-Telegram late last week that he has not been invited to the upcoming meeting.

If you’re thinking that this sounds suspiciously like John Bradley continuing to do what he can to delay and obfuscate matters relating to the Willingham inquiry, you’re not alone. Grits sees it that way, and he thinks the Commission should call for a motion to reconsider a vote it took to create a special screening committee that includes Bradley as a member at their January meeting on the grounds that it was made under false premises. That ought to liven things up.

Bradley and the Texas Open Meetings Act

Rick Casey finds another way in which John Bradley, the Chair of the Texas Forensic Science Commission, is a failure.

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

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

Then his day got worse.

[…]

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

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

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

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

Wayne Slater noted this as it was happening as well. Heck of a job, Johnny. Scott Cobb and the Statesman’s editorial board have more, and on a tangential note, State Rep. Pete Gallego is peeved with Bradley for preventing arson expert Craig Beyler from testifying before a recent legislative hearing that Gallego chaired.

It must be noted, however, that Bradley’s political mission, to protect Rick Perry, has been a success. Not only is the next meeting scheduled for after the primary runoff date, as Dave Mann notes the whole Willingham issue was never mentioned in either of the GOP gubernatorial debates. At this point you have to wonder if Rick Perry will pay any price for this. More from Casey here.

No mention of Willingham

The Texas Forensic Science Commission had its first meeting since Williamson County DA John Bradley was named Chair by Governor Perry. Bradley did the job Perry picked him for by preventing any official discussion of the Cameron Todd Willingham case until after the March primary.

The delay and Friday’s agenda, which failed to move forward any of the pending investigations, led to some terse exchanges between commissioners and Bradley. Some questioned his authority to speak for the commission, noting an editorial he wrote immediately after his appointment without consulting long-term commissioners.

“I apologize if any toes feel like they were stepped on,” Bradley said.

When Commissioner Garry Adams mentioned that there were “weighty” items awaiting commission action, Bradley answered flatly that “our actions today are limited to what’s on the agenda.”

After the meeting, Adams, a veterinary pathologist at Texas A&M University, said he expected the commission’s cases to be back on track at the next meeting, scheduled for April 23 in Fort Worth.

Bradley assured commissioners that the Willingham case investigations would be considered at the next meeting.

“Yes, they will be on the agenda. Yes, they will be discussed,” he said.

I trust you’ll forgive me if I don’t put a lot of faith in Bradley’s reassurances. For more on what did take place, read Grits’ liveblogging of the meeting. If that’s too much, try this summary of the meeting and of Bradley’s performance.

That was really quite a display. I’ll give him this. John Bradley came into Harlingen with an agenda; he was on his A-game when other commissioners were back on their heels and didn’t know what to expect; and as a result he got what he wanted out of the meeting: Delay discussing anything substantive about flawed forensic science and a new “process” in which he can bury the Willingham case in committee until after the November election.

It was a pretty brazen performance, but judging by minimalist MSM media coverage, the Williamson County DA clearly made a good bet that – by moving the meeting to the Rio Grande Valley on a Friday and waiting to produce the rules until the last minute – he would get away with such bold hectoring of the commission. It’s not a great start to Bradley’s relationship with his fellow commissioners, but he’s obviously not there to make friends. He’s there to delay the commission’s work and to impede the Willingham investigation by hook or by crook. And he’s succeeding.

Yoo hoo! Senator Whitmire! I believe this is your cue to have another hearing about the Commission and what Bradley is doing to it.

Where’s Willingham?

The Texas Forensic Science Commission will meet on January 29. You will be shocked to hear that Cameron Todd Willingham is not on their agenda.

Instead, the meeting will focus on formalizing procedures explaining how the group will conduct business, John Bradley, the commission’s newly appointed chairman, said Thursday.

[…]

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who wrote the report in question.

Bradley said that he isn’t ignoring Willingham — who was executed for the 1991 deaths of his three daughters in a house fire outside Corsicana — and that the board’s investigation of the case could conclude this summer . He said he will assign pending cases, including Willingham’s, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn’t have policies in place that answer “simple questions, like ‘What is the standard for accepting or rejecting a complaint?'”

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it “an agenda that deflects attention from what everybody wants answered.”

And Sam Bassett, the panel’s deposed chairman, said it appears the group’s new direction “is, in my view, unnecessarily delaying the investigations we had going.”

None of this should come as a surprise, of course. Bradley has been very clear about the fact that he has no real interest in pursuing the Willingham investigation. Very simply, he will not do anything that might be damaging to his patron, Rick Perry. Until he takes concrete action towards bringing this case to a real conclusion, with recommendations for action going forward, I see no reason to believe anything he says about it. The Contrarian and the Texas Moratorium Network have more.

The Willingham jury

You know, I don’t blame any of the jurors in the Cameron Todd Willingham trial for the verdict they rendered. Based on the evidence that was presented to them, a guilty verdict was to be expected. They had no way of knowing that the “science” used to “prove” arson was bogus. If they want to keep believing now that they did the right thing then, I completely understand. They’re not the problem.

We know about the problems with the “science” that was used to convict Willingham and who knows how many others. (Among them, Ernest Willis, who was eventually freed. Find a copy of this month’s Texas Monthly and read about him.) And we know about the problems with the Texas Forensic Science Commission, which is supposed to be examining these procedures and coming up with standards and recommendations to ensure we do a better job going forward. That can be summed up as John Bradley and his coverup crusade. But I don’t think I fully appreciated the problem of Willingham’s attorney, David Martin, and his inability to respect his client’s privilege until I read this story. I have to ask: The next time someone writes this story again – it’s been written before, it will surely be written again – will he or she take the time to wonder whether it is appropriate for Martin to be running his mouth like this? Seems to me that might be the even bigger story here.

Bradley’s penchant for secrecy

I don’t know what John Bradley’s goals are as the Chair of the Texas Forensic Science Commission. But if one of them is to dispel the notion that he’s Rick Perry’s stooge, who was installed for the purpose of covering the Governor’s ass on the Cameron Todd Willingham case, then he’s doing it wrong.

John Bradley, who took over as chairman of the revamped commission Sept. 30, told state senators this month that the commission must adopt new rules before proceeding with the inquiry.

Bradley, district attorney for Williamson County, has also sought to control the release of information about commission activities. In an Oct. 30 e-mail obtained by the Star-Telegram, staff coordinator Leigh Tomlin asked commission members, “as a reminder of our e-mail retention policy, please delete all commission correspondence.

“If you feel there is something that needs to be saved, forward it to my office.”

Sen. Juan “Chuy” Hinojosa, D-McAllen, who sponsored legislation that created the commission in 2005, expressed disapproval with the policy, saying “it’s going in the wrong direction.”

“Surely deleting all e-mail correspondence is a nice way of saying, ‘destroy all correspondence,’ ” he said. “It’s the same thing.”

Hinojosa also said that because commission members are appointed independently of the chairman, they should be able to “keep and save whatever e-mail they want to keep.”

Bradley said the policy “simply seeks to make sure that all relevant information is saved at a single location.”

“As you might imagine,” Bradley wrote in an e-mail, “with digital information being sent, forwarded and replied to at the touch of button, an agency can find itself with duplicates of the information in numerous places.

“That makes it difficult for a public information officer to respond to requests for information and be confident about complying with all the legal requirements connected to that responsibility.”

That sound you hear is my bullshit detector blowing a gasket. Having official communications emanate from a single source does not require email purges. The reason you do that is to make it hard, if not impossible, for there to be a complete record of the Commission’s activities. There’s absolutely no justification for a commission whose purpose is to review forensic science procedures and make recommendations about best practices to be concerned about secrecy like this. Unless, of course, they expect to be discussing things that might embarrass someone they don’t want to be embarrassed. This policy needs to be stopped before any real damage is done.

Grits on the Whitmire/Bradley hearing

When I posted a roundup of reporting and commentary on the Senate hearing chaired by State Sen. John Whitmire to inquire with John Bradley about the status of the Texas Forensic Science Commission, Scott Henson hadn’t yet posted his thoughts. He has now done so, and it’s well worth your time to read.

The Whitmire/Bradley hearing

As noted, today was the day for the Senate hearing chaired by State Sen. John Whitmire to inquire with John Bradley about the status of the Texas Forensic Science Commission. The main data point to note is that Bradley says the full panel will meet in January to begin the process of writing and adopting rules. I’m sure there will be more to say about it tomorrow, but for now, go read The Contrarian, BOR, the Texas Trib, and a whole bunch of posts at Texas Politics (start here) for reports on what happened.

Meet John Bradley

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

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

UPDATE: Grits has more.

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Bradley speaks

John Bradley, the hang-em-high Williamson County District Attorney who was appointed to chair the Texas Forensic Science Commission by Governor Perry in August, tries to reassure us that there will be no Perry-saving monkey business on the Commission. He has the opposite effect.

The commission wants to reassure you that the Cameron Todd Willingham case, involving a study of the application of the forensic science of arson, will be completed. However, pending the release of a final report by the commission, you should be skeptical of media reports, personal pronouncements and editorials on that case. Those with agendas separate from the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case. The commission can only ask that the public be patient and permit the commission to apply a disciplined, scientific approach to the investigation. That kind of hard work takes time and careful deliberation, and is not likely to result in a simplistic report.

You also need to know that the commission was created to determine only whether there was negligence or misconduct by an accredited laboratory conducting forensic analyses of certain kinds of evidence in specific cases. The commission does not decide whether persons are guilty or innocent of criminal offenses. The commission also is not a forum for the debate of social issues, such as the appropriateness of the death penalty. Such discussions are better suited for our court system and the legislative process.

In other words, lower your expectations and don’t hold your breath waiting for that Willingham report to come out, because we’ll be in no hurry. If you don’t read all that into what he says here, perhaps some more of Bradley’s words, taken from this Texas Lawyer article and summarized by Grits, will help you see it.

Bradley suggests:

  • Making investigations secret and meetings about them closed.
  • Re-education of commissioners: “Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.”
  • Lengthening terms for commissioners. (No word why the governor couldn’t just reappoint if continuity is so important.)
  • Creating new rules and procedures for the commission (no detail).
  • “Clarifying” whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire’s word for it.)

Hardly anyone attends FSC meetings – at the last one in Houston not a single media member showed up, including this blogger – so the secrecy request can only be a reaction the Willingham uproar, which was raised to a national issue with Bradley’s abrupt appointment by Governor Perry to chair the FSC and his subsequent decision to cancel all commission activities. What’s more, Bradley thinks the public shouldn’t get to know what taxpayers bought for $30K from the expert hired to advise the commission – a proposition that seems like a really big stretch, to me, anyway.

All I can say is that I hope Sen. Whitmire, whose committee hearing to inquire with Bradley about the state of the Commission will be this coming Tuesday, November 10, reads this article as well and has a few questions about it. EoW has more.

More heat on Perry over the Forensic Science Commission

The Chicago Tribune provides further evidence that gutting of the Texas Forensic Science Commission was all about politics.

Just months before the controversial removal of three members of a state commission investigating the forensics that led to a Texas man’s 2004 execution, top aides to Gov. Rick Perry tried to pressure the chairman of the panel over the direction of the inquiry, the chairman has told the Tribune.

Samuel Bassett, whom Perry replaced on the Texas Forensic Science Commission two weeks ago, said he twice was called to meetings with Perry’s top attorneys. At one of those meetings, Bassett said he was told they were unhappy with the course of the commission’s investigation.

“I was surprised that they were involving themselves in the commission’s decision-making,” Bassett said. “I did feel some pressure from them, yes. There’s no question about that.”

You need to read the whole thing, because it just gets worse for our only Governor. Combine this with the Chron story from Sunday about Perry stonewalling attempts to release information about what he and his staff did with the report Gerald Hurst prepared prior to Cameron Todd Willingham’s execution, and there’s a whole lot of heat being brought. Sooner or later, something’s got to give.

Now turn the clock back to August, when the Beyler report was released, and imagine a world in which Governor Perry accepted its findings, admitted to his role in the wrongful execution, and gave a speech that said while he still believes in and is committed to the death penalty, he will now dedicate himself to making sure that the system works as it is supposed to so that we’ll never again need to ask these questions after an inmate is put to death. Do you think he’d be in a better position politically than he is now if he did that, or worse? It’s not a completely obvious question, since his first priority is the Republican primary, and the voters there don’t really care about trivia like this, but I don’t think this would cost him many votes with that crowd. It might even make him look statesmanlike, and would bolster him in the general election. Now, it’s certainly true that he can and indeed will be favored to prevail in both March and November next year even given his ham-handed behavior. But I don’t think history is going to be too kind to him at this point. Maybe he doesn’t care about that, I don’t know. All I can say is that if he does, it’s too late to do anything about it now. BOR, The Contrarian, Grits, and TPM have more.

Perry fills out rest of Forensic Science commission

Sam Bassett, the now-former Chair of the Texas Forensic Science Commission whom Rick Perry abruptly replaced with Williamson County DA John Bradley, wasn’t the only member of the Commission that got the ax, but his was the only slot that was immediately filled. On Friday, Governor Perry named the replacements for the other Commissioners whose terms had expired.

Named to the nine-member panel were Lance Evans, a Fort Worth criminal defense lawyer, and Randall Frost, head of the Bexar County Medical Examiner’s Office in San Antonio.

The pair joins Perry’s earlier appointments, Williamson County District Attorney John Bradley and Norma Farley, chief pathologist for Cameron and Hidalgo counties, who were named to the panel on Sept. 30 — just two days before the commission was to hear testimony in an arson case that resulted in a man’s execution.

Legislation creating the commission empowers Perry to name four members, one of whom must be selected from a list submitted by a defense lawyer’s association. The remaining commission members are appointed by the lieutenant governor and attorney general.

Terms for Perry’s new appointees will expire on Sept. 1, 2011.

All right then. Bradley now has a complete team to work with, so that’s one fewer excuse for not rescheduling that meeting and for not meeting other obligations. The clock is officially ticking. Will Bradley take action before he has to explain himself to Sen. Whitmire, or will he spend that time working on his next batch of excuses? Stay tuned.

UPDATE: I had missed this when I first published, but it sure explains a lot about why Rick Perry wants to make the whole thing go away.

Just 88 minutes before the February 2004 execution of Cameron Todd Willingham, Gov. Rick Perry’s office received by fax a crucial arson expert’s opinion that later ignited a political firestorm over whether Texas, on Perry’s watch, used botched forensic evidence to send a man to his death.

In a letter sent Feb. 14, three days before Willingham was scheduled to die, Perry had been asked to postpone the execution. The condemned man’s attorney argued that the newly obtained expert evidence showed Willingham had not set the house fire that killed his daughters, 2-year-old Amber and 1-year-old twins Karmon and Kameron, two days before Christmas in 1991.

On Feb. 17, the day of the execution, Perry’s office got the five-page faxed report at 4:52 p.m., according to documents the Houston Chronicle obtained in response to a public records request.

But it’s unclear from the records whether he read it that day. Perry’s office has declined to release any of his or his staff’s comments or analysis of the reprieve request.

A statement from Perry spokesman Chris Cutrone, sent to the Chronicle late Friday, said that “given the brevity of (the) report and the general counsel’s familiarity with all the other facts in the case, there was ample time for the general counsel to read and analyze the report and to brief the governor on its content.”

A few minutes after 5 p.m., defense lawyer Walter M. Reaves Jr. said he received word that the governor would not intervene. At 6:20 p.m. Willingham was executed after declaring: “I am an innocent man, convicted of a crime I did not commit.”

Summaries of gubernatorial reviews of execution cases previously were released as public records in Texas, most recently under former Gov. George W. Bush. Yet Perry’s office has taken the position that any documents showing his own review and staff discussion of the Willingham case are not public — a claim the Chronicle disputes.

Without those records, the question of how much — or how little — Perry considered the newly obtained evidence in his decision to proceed with execution will remain forever a state secret.

Good work by reporter Lise Olsen, who also put together a timeline in the sidebar. I hope the Chron takes this to court, because the public has a right to know what Rick Perry did with this last-minute evidence. Even the original prosecutor, John Jackson, who remains convinced of Willingham’s guilt (though I think there’s a good chance he’ll eventually come around) says Perry should release the records. What are you hiding from us, Governor Perry?

Whitmire pushes Bradley

State Sen. John Whitmire, who has previously indicated that he will hold a hearing to inquire about the current status of the Texas Forensic Science Commission, has reiterated that intent for the near future.

“I’m concerned about the process,” said Sen. John Whitmire, (D) Houston. “It looks to me like it might have gotten off schedule and where do you go forward? Where we go from here is my greatest concern and my responsibility.”

[…]

The governor’s new appointee, John Bradley, a respected district attorney in Williamson County north of Austin, canceled the upcoming hearing, essentially stalling the truth.

Bradley told News 8 he first has to get up to speed on what the Forensic Science Commission does before he moves forward. He would not say when he would call a meeting, or more importantly, whether he would even revive the Willingham investigation.

But, Whitmire, who authored the bill that created the Texas Forensic Science Commission, said he will call a special hearing of the Senate’s Criminal Justice Committee on November 10 in Austin in order to urge Bradley to continue the Willingham investigation and explain what he needs to do a “first class job.”

“He’s not going to stop the truth from coming out, though,” said Gary Udashen, a Dallas attorney and board member for the Texas Innocence Project.

He praised Whitmire for pushing the investigation forward.

“Good for Senator Whitmire,” Udashen said. “Somebody needs to pursue this. The governor’s going to do what he can to stop this. I don’t think he can fire Sen. Whitmire, so good for him.”

“I know John [Bradley] hopes to some day run for something bigger,” Sen. Whitmire said. “So, here’s his opportunity for him to do the right thing, and I’ve told him that.”

Whitmire said he would give Bradley a month to make a plan and get familiar with issues the Forensic Science Commission faces.

Good for Sen. Whitmire, who also says he will push for further investigation of the HPD Crime Lab. I will say again, there is nothing at all that is keeping Bradley from saying right now that he intends to reschedule that meeting. It’s all in his power to turn down the heat level and take politics mostly if not entirely out of this equation. I’ll say again, if he hasn’t given any indication that he intends to do the right thing, then I will take it as clear evidence that he doesn’t intend to do the right thing. The choice is yours, John. EoW and The Contrarian have more.

Bradley dithers on Forensic Commission

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

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

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

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

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

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

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

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

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

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

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

It’s not too early to reschedule that meeting

Rick Casey talks to State Sen. John Whitmire about Rick Perry’s choice of Williamson County DA John Bradley as the replacement chair of the Texas Forensic Sciences Commission, and how we can tell if the intent was as sinister as we all now believe it to be.

“I’ve never questioned his integrity,” Whitmire said. “He is very transparent.”

Whitmire said he talked to Bradley on Thursday morning and is “taking a wait-and-see approach” in hopes that “he won’t let Perry’s politics pull him down.”

“I told him, John, this is an opportunity to show what you’re made of,” he said.

But Whitmire also said he will schedule a committee hearing in about a month to ask Bradley in what direction he plans to take the commission. One likely question, said Whitmire: Will Bradley reschedule the Willingham arson matter before the March primary?

I will acknowledge here that if Bradley does wind up doing the right thing, the effect he could have on Texas’ criminal justice system and the potential to reform it would be enormous, quite likely far greater than it would have been with a less Nixon-goes-to-China type in the chair. As far as that goes, I hope Sen. Whitmire’s faith in his integrity is not misplaced.

But let’s be clear here. Only John Bradley can put aside the perception that what Rick Perry did here was a naked attempt to kill the Commission and discredit its investigation into the Willingham case. And he can take a huge first step in that direction by announcing, right now, that he intends to reschedule the Commission’s meeting that was supposed to take place before the Perry purge happened once he has familiarized himself with the materials. He doesn’t have to actually reschedule the meeting, he just has to say that he intends to do so once he’s up to speed. There’s no reason he needs to wait to announce that intent. Indeed, if he still hasn’t said anything by the time Whitmire has that committee hearing in a month or so, I’ll take it as solid evidence that Bradley is in on the fix. All he has to do is affirm that he plans to continue his predecessor’s work. It’s that simple. Grits has more.

Meanwhile, some political pros ponder the implications of Perry’s actions.

For Democrats, it was an ah-ha moment, a suggestion that by abruptly removing three members of a forensic science commission Gov. Rick Perry was trying to derail an investigation into a case raising the disturbing possibility Texas may have executed an innocent man.

For other people, not so much.

“Unless there’s real solid evidence that the guy didn’t do it and Rick Perry’s people screwed up a review, I can’t see it becoming an issue,” GOP analyst Royal Masset said.

[…]

But what, if anything, voters will make of the brouhaha, both in the March primary and in November, remains to be seen.

“I think for most Texans, this is an opportunity to sit back and milk the entertainment value as it goes forward,” said Cal Jillson, a political scientist at Southern Methodist University.

[…]

“If it turns out we executed an innocent man, that’s bad and the state ought to be held accountable,” said Gary Polland, former chairman of the Harris County Republican Party and an attorney. But new evidence, and new interpretations of evidence, routinely come to light as scientific methods advance, he said.

The bigger issue, he said, is whether Perry was attempting to manipulate the process.

“The idea that we should change commissioners to avoid an outcome smacks of a cover up,” Polland said. “Why do that? If I advised the governor, I would have told him, ‘Let the commission finish their investigation and, whatever they come up with, they come up with.’ ”

I think Masset and Jillson are correct in their perceptions, but I also think Polland nails the issue, and shows how it could be used effectively as a political weapon against Perry. It’s not about the death penalty, it’s about Perry meddling in places he shouldn’t be, which as Burka notes is something that he’s done a lot of lately. Connect it to some of these other things, especially the shenanigans with the regents at Texas Tech and Texas A&M, and there’s a strong narrative you can build. Kay Bailey Hutchison is in the best position to do that, which doesn’t exactly fill me with confidence. Tom Schieffer and Hank Gilbert can get some traction with this as well, though they’ll have to push back harder against Perry making this about the death penalty than KBH would have had to. But it’s there, and it’s a soft spot for him, and the more this drags out, the softer it should be.

On the other hand, one presumes that Team Perry, which does know a thing or two about politics, has considered all this and decided that this was the less-damaging alternative. The Contrarian games it out.

It seems to me — and I’ll preface this by saying it’s speculation — that Perry’s people have made the calculation that taking their lumps now is better than the alternative.

Imagine this scenario: It’s early next year, right before the March primary, and the Forensic Science Commission– a state government body whose members Perry helped appoint — issues its final report on Willingham, which concludes that Perry had overseen the execution of an innocent man (and allowed it even though his office knew of mitigating evidence before the execution). That’s the nightmare scenario they’re trying to avoid.

I suspect the Perry people are hoping the current fiasco blows over, and forgotten in a few months. Meanwhile, with John Bradley in charge of the commission, the Willingham investigation can be scuttled entirely or slow-walked till after the election or watered down so the final conclusions aren’t so critical of Perry.

It’s a risky play, though. It’s not clear this issue will be forgotten any time soon.

For one, the Craig Beyler report — with its devastating critique of the forensics in Willingham’s case — has already been released and isn’t going away.

And a lot of people are outraged by Perry’s decision and will likely keep this issue alive.

I don’t think it’s going to go away, but the question is whether it will gain traction and force Perry to retreat or get shelled, or if it will turn into the kind of he-said/she-said bickering that makes most people tune out. That’s why I think it needs to be part of a larger narrative about Perry, that he’ll meddle where he shouldn’t whenever the reality of something doesn’t fit with his worldview. It’s part of a pattern, and that pattern is as much a problem for Texas as Rick Perry’s indifference to a doomed man’s innocence is.

Finally, Dog Canyon suggests that Perry may have actually violated federal law by taking the action he did. I don’t see anything coming out of that, but it’s worth thinking about.

Reschedule the meeting

I’ve read a bunch of coverage of Governor Perry’s conveniently-timed decision to replace members of the Texas Forensic Science Commission just before they were scheduled to review the Beyler report on the Cameron Todd Willingham arson investigation, and one thing is clear to me. If Perry really wants us to believe that this is “business as usual, naming new appointments to a commission after their terms have expired” and had nothing to do with his own erroneous notions about the case, there’s a very simple thing his hand-picked replacement, Williamson County DA John Bradley, can do.

Beyler was to address the commission Friday, but Bradley canceled the meeting to familiarize himself with the agency’s work, he said.

“I’ve got so much homework to do, I feel like I’m starting the first day of high school,” said Bradley, who added that he had not yet read Beyler’s report.

Fine, then. Read the report, familiarize yourself with Dr. Beyler’s findings, and then re-schedule the damn meeting. When you say stuff like this, it doesn’t exactly fill me with confidence that you intend to let the facts come out.

Bradley said he learned of the appointment Wednesday morning when he was called by the governor’s office. He said it was not a position he sought.

He said he canceled Friday’s commission meeting because he thought “it was too much to ask for myself and the new members to absorb,” and because he wanted time to review the Beyler report and materials.

Bradley said he is not yet “informed enough” to know if he would ask Beyler to present his report at a future meeting or continue the line of questioning begun unanimously by the commission.

“I just know it’s going to keep my weekend busy,” Bradley said.

If you have any respect for the Commission and its members, then your unfamiliarity with the Beyler report should not prevent you from making a commitment to hold the hearing that was scheduled for tomorrow at another time. You don’t have to set a date yet, but a simple statement that once you have spent the weekend boning up on the materials you will put it back on the calendar forthwith would offer reassurance that this isn’t about politics. Give Dr. Beyler a call – it’s just common courtesy, after all – to check what his schedule is like, and to let him know that you look forward to hearing from him in a few weeks. I really don’t think that’s too much to ask.

UPDATE: Here’s a statement from Hank Gilbert that I missed yesterday, and a good post from Dog Canyon that posits Perry will make this about opposition to the death penalty, rather than pursuing the facts wherever they take us.

UPDATE: More from Burka and EoW.

Perry attempts to gut Forensic Science Commission

This is an outrage.

Gov. Rick Perry today replaced the chairman of the Texas Forensic Science Commission, which is conducting a politically sensitive investigation into whether the state executed a man based on a fatally flawed arson investigation.

The commission’s new chairman is Williamson County District Attorney John Bradley, a tough-on-crime politically connected conservative.

Bradley replaces Austin defense lawyer Sam Bassett as head of the commission, created by Legislature in 2005 to investigate allegations of scientific negligence or misconduct in the criminal justice system.

Bassett’s term expired Sept. 1, and the Texas Criminal Defense Lawyers Association had urged Perry to reappoint him as the commission’s seat reserved for a defense attorney.

Austin lawyer Keith Hampton, vice president of the defense lawyers association, was dismayed at the choice of Bradley.

“This looks an awful lot like a governor who’s interfering with a science commission because the science demonstrated that we’ve executed an innocent person,” Hampton said. “To pick one of the most partisan people in the state and just anointing him as presiding officer is rather breathtaking.”

Bradley’s first act as chairman was to cancel Friday’s commission meeting in Dallas, where fire scientist Craig Beyler was to discuss his recently released report on the 1991 fire that killed three children of Cameron Todd Willingham.

Emphasis mine. No question in my mind that Perry, who thinks this is all a bunch of hippie tree-hugger crap, wants to bury the Commission’s report, if not forever than at least till after the 2010 elections. If I had any capacity to be shocked by his sociopathy, I’d be shocked. For shame, Governor. A statement from Tom Schieffer is beneath the fold. The Contrarian has more.

UPDATE: Grits has more.

(more…)

Report: Most elected officials refuse to contribute to their own prosecution

That’s what the headline to this story should read.

Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas — including representatives, senators, judges and commissioners — in which police on the scene asked for a sample to determine whether the driver’s blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

[…]

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

That’s one way of looking at it. Another is to note that most elected officials are knowledgeable enough to realize that breathalyzer tests have high rates of error, and consenting to take the test can only help the prosecution. Which, despite the fulminations of MADD and the TDCAA and Williamson County DA John Bradley is not something that anyone accused of a crime is required to do. In fact, as the original story notes, all of the elected officials in recent years who had been pulled over for DWI and refused to take the breathalyzer test wound up either being acquitted or having the charges dismissed. With a track record like that, who among us wouldn’t do the same?

Now, if you want to argue that there’s a certain hypocrisy here, especially with state legislators who routinely vote to get tuff on crime as long as it applies to someone else, I won’t dispute that. But as long as we still have the freedom to not make it any easier for the state to prosecute us, I don’t have any objection to those who exercise that freedom.