Just When You Thought It Was Safe To Go Back to Austin

Two more stories from the Lone Star State.

I

Start, as so much of the Texas news does, with Cameron Todd Willingham.

You know, the guy who was executed for the arson murders of his children despite compelling evidence that there was no arson.  And since there was no arson, there was no crime.  It was a tragic accident, and Willingham was, therefore, almost certainly wholly innocent of wrongdoing in their deaths.  And Governor Perry had that evidence before him, and allowed Willingham to be killed anyway.

You'll recall that just as the Texas Forensic Science Commission was getting ready to hold hearings on the Willingham case, Perry replaced three members of the Commission, grinding its business to a halt.  As the new chair, Perry installed prosecutor John Bradley.  Since then, Bradley has undercut every effort to seek quick and thorough review of what happened to Willingham.  As Barry Scheck of the Innocence Project and Patricia Willingham Cox (Cameron Todd Willingham's cousin) explain in an op-ed in today's Houston Chronicle

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. 

Now  gone farther.

Last week, Walter Reeves, who writes the Waco Criminal Law Blog, and who (more importantly) vigorously defended Cameron Todd Willingham after his conviction, posted the latest from Bradley, a memorandum from the Commission discussing its jurisdiction.

Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

Scheck and Cox give more detail.

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. 

Scott Henson isn't surprised.

Doubtless most Grits readers are unsurprised at Mr. Bradley's hubris in relying upon his own opinion over his colleagues' 2008 determination and the commission's advisers from the Attorney General. Such transparent stalling tactics have been his modus operandi since the day Bradley was appointed to the chairman's slot. 

Of course, this isn't just a stalling tactic.  Unless the Commission retracts the memo (they're scheduled to meet on Friday), a possibility that might lie somewhere between ain't gonna happen and no way in hell will it happen, it's a flat-out shutdown.  No investigation.  Zippo.

And of course it's not just about Willingham. As Scheck and Cox point out, bad arson investigation is a much broader problem.

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.

Business as usual, I'm afraid.

II

The Chronicle's outdoing itself today.  Along with the Scheck & Cox op-ed, it's also got a behind-the-scenes report by Rick Casey on just how the Commission on Judicial Conduct came to decide that we should all be warned of the danger posed by Sharon Keller as long as she stays on the bench.  You'll recall that Judge Berchelmann said she shouldn't be sanctioned at all.  Her conduct, he said, was "not exemplary"; her decisions were "highly questionable"; there was "a valid reason why many in the legal community are not proud of Judge Keller's actions."  Still, her conduct not "so egregious that she should be removed from office."  After all, he explained, she had learned her lesson (though she testified that she had not, and continues to insist that she has not.

In any event, in Berchelmann's report, Keller found complete exoneration.  The Commission, though, issued that warning.  But it took some work. There was the good-for-her vote.

During the closed-door session in which the 13-member commission debated what sanction it should give Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, one non-lawyer member of the commission opined that Keller should be commended for saving the state money by blocking the appeal. 

As Scott Greenfield responds,

I mean, seriously, isn't it bad enough we have to try 'em before we fry 'em?

Casey also tells us how they decided on the warning as opposed to a harsher "reprimand."

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.

. . .

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

Scott Henson sees the absurdity, and why it's the wrong result.

It's a bit of a strange argument: Why would they prohibit Keller from sitting later if they did not think she needed to be removed now? Another question might be, "Why would the mid-range verdict of a 'public reprimand' exist if that's the commission's basic calculus? By that logic, judges don't deserve a public reprimand until they behave so badly they warrant removal, at which point presumably the commission would instead vote to remove them. What a Catch-22! If, as I suspect, the same commissioners have voted to give other judges public reprimands, that seems a bit disingenuous.

I can actually see a strong argument for a public reprimand as the right outcome - not removing her now but preventing Keller from sitting as a visiting judge later. One might think it proper to allow voters to pass judgment on Keller instead of having her administratively removed, but down the line you wouldn't want someone who would knowingly violate court rules to sit as a visiting judge. 

Besides, "sin no more" really only works as a warning to one who recognizes what sin is and acknowledges her mistakes.

Keller fails on both counts.