And the Truth Shall Reveal You Killed an Innocent Man

Open covenants openly arrived at.

If you are of a certain age, perhaps you remember that idea from high school history classes. It was the first of Woodrow Wilson's Fourteen Points for how to establish and ensure world peace. In full, that first point called for

[o]pen covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

Naive, certainly, and it turned out an impossible way to conduct diplomacy, it was also a powerful statement about the importance of transparency.

If it doesn't work for diplomacy, though, we've enshrined it in the Constitution for court proceedings. It's at the beginning of the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.

The grand jury which is where charges are brought in the first place is another matter. Here, for instance, are the secrecy provisions for grand juries as set out in Rule 6 of the Ohio Rules of Criminal Procedure:

(E) Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No grand juror, officer of the court, or other person shall disclose that an indictment has been found against a person before such indictment is filed and the case docketed. The court may direct that an indictment shall be kept secret until the defendant is in custody or has been released pursuant to Rule 46. In that event the clerk shall seal the indictment, the indictment shall not be docketed by name until after the apprehension of the accused, and no person shall disclose the finding of the indictment except when necessary for the issuance of a warrant or summons. No obligation of secrecy may be imposed upon any person except in accordance with this rule.

All of which is a fancy and long winded way of saying that although people who were witnesses at a grand jury can talk about what they said if they want to, nobody else can talk about what went on there without a court order, which isn't easy to get. Oh, and the prosecutor can be told. (The federal rule is far more complicated, and much longer, but it similarly favors secrecy.)

There may be good reasons for keeping grand jury proceedings secret. In 1910, the Supreme Court of Ohio offered this partial explanation in the legalese of the day.

It is not constituted evidence in the case for any purpose. The proceedings before the grand inquest is not a trial. As yet it has no adverse parties before it, and the person whose conduct is being investigated has no right to appear there except by permission, and then not as a party, but as a voluntary witness. He cannot take his attorney with him before the inquest, nor has he a right to interview grand jurors touching what is said or transpires there. Therefore, the grand jury room is a secret chamber where, independent of fear, favor and affection, and unmoved by malice, hatred or ill-will, charges against persons may be investigated and indictments presented, if the facts warrant such presentment.

All of that means that grand jury testimony is (1) untested, and therefore not all that reliable, and (2) far more reliable than trial testimony so that (3) it's good for everyone that it be kept secret. Is your head spinning yet?

In fact, of course, all sorts of investigative proceedings are kept secret while they're underway. The question is whether that's a good idea. Which brings us, as we've so often been brought, to the case of Cameron Todd Willingham.

You'll recall where we are in the plot. Governor Perry had taken the opportunity, two days before the Texas Forensic Science Commission's hearing on Willingham's innocence, to replace the chair of the Commission. That ground the hearing to a halt before it began.

Perry said it was the merest coincidence. He wasn't trying to interfere with the Commission - and any commission who said otherwise (and there was, indeed, such a member) was a damned liar.

Why, after all, would he oppose the hearing. The purported expert hired by the Commission was only a "supposed" expert (the word and the quotation marks are both Perry's by the way) nobody would believe. And anyway, Willingham was a monster and therefore must have killed his children and deserved to die even if he had nothing to do with the fire in which they died. And of course he must have started the fire because he was a monster who deserved to die and the experts who said he didn't were only "supposed" experts .

Pretty much nobody believed Perry about the coincidence thing then. Pretty much nobody believes it now.

Well, we've now got some follow-up. Scott Henson at Grits For Breakfast directs attention to the news, as reported in the Texas Lawyer, that the newly appointed chair of the Commission, John Bradley, wants to hold that hearing after all. But in secret. You see,

It’s not a good idea to conduct an investigation in a public forum.

He doesn't say why, exactly, though he does opine about the risk.

When investigations are conducted in public, it is difficult to protect them from outside influences.

Just what those influences might be is hard to say. Perhaps the media might intimidate the Commission into honesty?

Here's 's summary of what Bradley plans to propose to the Texas Senate Committee overseeing this cluster fuck.

• 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.)

And here's his commentary.

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, anway.

Dick Cheney would be proud. It's so much easier to whitewash the truth if nobody gets to see you doing it.