The StandDown Texas Project

The June Issue of Texas Monthly

It's jam packed with criminal justice coverage.  Editor Jake Silverstein introduces it with, "The Scales of Injustice."

About a year ago, it was reported that Randall Dale Adams had died, bringing to a close one of the more tragic stories in recent Texas history. A construction worker from Ohio, Adams (pictured here, in 1989) was convicted and sentenced to die in 1977 for the murder of Dallas police officer Robert W. Wood. He spent twelve years behind bars—and, in 1979, came within three days of being executed—before being released in 1989 after the key eyewitness recanted his previous testimony. The story was brought to widespread attention by the landmark documentary The Thin Blue Line, and Adams’s case became a rallying point for advocates of criminal justice reform. But after a few years of speeches and television appearances, he mostly shunned the spotlight, and by the time he died he was living in complete obscurity. When his obituary ran last June, he had already been dead for eight months.

For a time, Adams was the public face of wrongful convictions, but that dubious mantle has long since passed on to others who suffered a similar fate.

The main course is a roundtable discussion, "Trials and Errors," moderated by Michael Hall and Jake Silverstein.  It features:

Art Acevedo has been the chief of the Austin Police Department since 2007.

Rodney Ellis was elected to the state Senate in 1990 from District 13, in Houston.

Anthony Graves was wrongfully convicted in 1992 and released from jail in 2010. He lives in Houston.

Barbara Hervey is a judge on the Court of Criminal Appeals and the chair of the court’s fourteen-member Texas Criminal Justice Integrity Unit. She lives in San Antonio.

Kelly Siegler is a special prosecutor. She lives in Houston.

Craig Watkins is the DA of Dallas County and a former defense attorney.

Here's the beginning of this must-read:

Jake Silverstein, editor of TEXAS MONTHLY: Senator Ellis, we’re here tonight to discuss the issues in our criminal justice system that have led to some wrongful convictions and to talk about what can be done. But for starters, can you try to give us a sense of how serious you think this problem is?

Senator Rodney Ellis: I think it’s a major problem. We incarcerate more people than anyone else in the nation, we execute more people than anyone else in the nation, and we spend less on indigent defense than virtually everybody else in the country. You add those up, and it’s like 1-2-3: we have more DNA exonerations than any other state in the country. The criminal justice system is a government program. In every other sphere of public policy, the assumption is that sometimes the government makes a mistake. In this area, it could be life or death. Now, with that said, I’ll take the criminal justice system in America, on the whole, over any other in the world. And I am convinced that most people who are in jail are guilty. But we can do better.

Silverstein: Judge Hervey, the senator says he thinks we have a major problem. Would you define it the same way?

Judge Barbara Hervey: I would, but I have a little different spin. If the other 49 states think for a minute that they don’t have people in prison that shouldn’t be there, they’re mistaken. Texas is paying attention. My approach is that education is the key to the whole thing. You’ve got to get every person in the system on the same page with regard to wrongful convictions, because if they’re not on the same page, we’ll continue to have these problems.

And it’s about the public too. I recently went to a forum in Dallas with a lot of interested citizens, and I’ll tell you what, they were angry. This concept of innocence meant people were getting a bunch of money; it’s costing the state. And I said, “Wait a minute, let’s start at the beginning. How would any of you like to spend one day in prison for something you didn’t do?” And I was amazed. This group turned around and went, “Oh my God, this is horrible.”

The issue also contains a Letter From Corpus Christi, "Hannah’s Prayer," an update on the case of
Hannah Overton.  It's by Pamela Colloff.  Earlier this year, Colloff examined the case for TM in, "Hannah and Andrew."

Trial Judge Recommends Reversal of Cathy Lynn Henderson Convcition

Today's Austin American-Statesman reports, "Judge: New evidence should overturn Henderson's capital murder conviction."  It's by Chuck Lindell.

The state's highest criminal court should overturn the capital murder conviction of Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh — and a change of heart from the prosecution's star witness, former medical examiner Roberto Bayardo — mean no reasonable juror would convict Henderson if presented with the new evidence at trial.

"Testimony of the state's chief experts was, at bottom, scientifically flawed," Wisser wrote in findings dated May 14 and delivered Tuesday to the Court of Criminal Appeals.

After reviewing evidence via testimony and briefs, Wisser recommended that the appeals court dismiss Henderson's conviction and return her case to Travis County, where she may face "any indictment or charges" that prosecutors choose to pursue in the child's death.

The appeals court will determine whether to accept Wisser's recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A decision on Henderson's fate is likely to be months away.

And:

Henderson, 55, had claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor of her Pflugerville-area home. She said she panicked, then buried the boy's body in a Bell County field before fleeing to Missouri, where she was found and arrested 11 days later.

The search for the boy's body and hunt for Henderson dominated headlines in February 1994.

At Henderson's trial a year later, Bayardo testified that it was "impossible" to attribute the boy's extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall from "higher than a two-story building" to sustain a similar injury.

But in an affidavit included in Henderson's 2007 appeal, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon's 1994 autopsy.

"I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall," Bayardo said.

Dr. John Plunkett, one of five defense experts to testify before Wisser, said doctors were commonly taught that short falls could not cause serious injury or death in infants. However, scientific studies since 2001 have shown that falls of less than four feet can be lethal, producing complex skull fractures and other damage, said Plunkett, a Minnesota forensic pathologist who studied fatal playground accidents.

Plunkett concluded that no expert could prove that Brandon's death was an accident. "However, because of the new scientific information and analysis now available ... neither may anyone prove that Ms. Henderson intentionally caused it," he said in an affidavit to Wisser.

Also:

Henderson was two days from a June 13, 2007 execution date when the Court of Criminal Appeals ruled 5-3 to halt proceedings — directing Wisser, who had presided over Henderson's trial, to examine testimony from defense experts and Bayardo's recantation.

It is unclear how Wisser's conclusions will be received by the appeals court, an all-Republican nine-member body known as a tough venue for defense lawyers.

Three judges would not have delayed Henderson's execution in 2007— Sharon Keller, Barbara Hervey and Michael Keasler — saying defense lawyers did not meet criteria for a second appeal.

The AP filing is, "Judge: Condemned woman should have verdict nixed," by Nomaan Merchant.  It's via the Fort Worth Star-Telegram.

Henderson maintained that she accidentally dropped the boy onto a concrete floor in her home in Pflugerville, north of Austin. During her trial, the chief medical examiner in Travis County argued that the boy could not have been so badly injured in a short fall. Dr. Roberto Bayardo said Brandon would have had to fall from a height taller than a two-story building.

But Bayardo, now retired, changed his mind more than a decade later. He submitted an affidavit in 2007, saying new information about pediatric head trauma showed that his conclusion was incorrect and that a short fall could have caused the boy's injuries.

The Texas Court of Criminal Appeals halted Henderson's execution that June, two days before she was scheduled to die. She has remained on death row ever since.

And:

"The court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted (Henderson) of capital murder beyond a reasonable doubt in light of this new evidence," Wisser wrote.

Earlier coverage of the Cathy Lynn Henderson case begins at the link.  Related posts are in the forensics index.  Several notable older posts include:

• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

Dallas County Records 31st & 32nd Exonerations

"Two more Dallas County men cleared after serving decades for rape they didn’t commit," is the title of Jennifer Emily's Dallas Morning News report.

Raymond Jackson and James Williams returned to the same Dallas County courtroom Monday where they were wrongly convicted of rape nearly 30 years ago.

This time, though, court was in session to clear their names.

State District Judge Susan Hawk and District Attorney Craig Watkins shook their hands and apologized for the miscarriage of justice. Hawk declared the men “actually innocent” in the 1983 kidnapping, rape and shooting of a Canadian woman.

“To say I’m sorry is not enough,” Hawk said to the beaming Jackson, 67, and Williams, 54. “But I hope you both have very full and happy lives.”

They are the 31st and 32nd men to be exonerated in Dallas County since 2001. Dallas County has had so many exonerations because, unlike in other jurisdictions, evidence was preserved at the county crime lab, sometimes dating back to the late 1970s.

And:

An all-white jury sent the men, who are black, to prison based on eyewitness testimony, which has been proven notoriously unreliable in recent years. Most DNA exonerations in Dallas County and around the country involve the victims or witnesses wrongly identifying defendants as the perpetrator.

Jackson and Williams had alibis, but the jury did not believe them. They were sentenced to 99 years in prison.

Related posts are in the exoneration and wrongful incarceration indexes.

An Update on Kerry Max Cook

Today's Texas Tribune reports, "Filing by Cook Alleges Prosecutor Kept Murder Weapon."  It's by Brandi Grissom.

The prosecutor who sent Kerry Max Cook to death row in 1978 for a gruesome stabbing death has kept the blood-soaked murder weapon at his home for the last decade as a macabre “souvenir” of one of Tyler’s most infamous and brutal killings, according to a motion the former inmate’s lawyers filed Monday in Smith County.

Along with the knife, former Smith County District Attorney A.D. Clark III — now with the Texas attorney general’s office — also kept a slide with samples of Cook’s hair, the former inmate’s lawyers allege. 

“The rather odd practice of Mr. Clark keeping evidence of a murder case in his personal possession raises many questions, both legal and psychological,” lawyers wrote in a motion asking an administrative judge to reconsider his decision last month to allow Cook’s case to remain in Smith County despite court findings of prosecutorial misconduct there in the past.

What’s more, Cook’s lawyers argue, former Smith County prosecutors illegally destroyed much of the remaining evidence in the case that may have contained DNA that could have been tested to help prove Cook’s innocence. And, they said, the current district attorney lied about facts of the case during a court hearing last month.

“These acts of prejudice and malice have crippled Mr. Cook's efforts to defend himself and establish his innocence over the past 35 years,” Cook’s lawyer, Marc McPeak, wrote. “For the reasons stated and discussed herein, among many others, no Smith County judge should be permitted to preside over Mr. Cook's case.”

And:

Administrative Judge John Ovard granted Cook’s request for DNA testing, but he declined to remove the case from Smith County.

Cook’s lawyer, in the motion filed Monday, asked Ovard to reconsider his decision not to move the case based on the new discoveries about the destroyed evidence and “souvenirs” and based on what he described as misrepresentations of the facts by the current district attorney, Matt Bingham.

Earlier coverage of Kerry Max Cook begins at the link.

Washington Post Series: Investigating Flaws in Forensics

The Gallery for the series has an extensive group of photos.

"Convicted defendants left uninformed of forensic flaws found by Justice Dept.," is the first part of the series reported by Spencer S. Hsu.  Here's the beginning of this must-read:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

The case of a Maryland man serving a life sentence for a 1981 double killing is another in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for the man, John Norman Huffington, say they learned of potentially exculpatory Justice Department findings from The Washington Post. They are seeking a new trial.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

The review was performed by a task force created during an inspector general’s investigation of misconduct at the FBI crime lab in the 1990s. The inquiry took nine years, ending in 2004, records show, but the findings were never made public.

In the discipline of hair and fiber analysis, only the work of FBI Special Agent Michael P. Malone was questioned. Even though Justice Department and FBI officials knew that the discipline had weaknesses and that the lab lacked protocols — and learned that examiners’ “matches” were often wrong — they kept their reviews limited to Malone.

But two cases in D.C. Superior Court show the inadequacy of the government’s response.

Santae A. Tribble, now 51, was convicted of killing a taxi driver in 1978, and Kirk L. Odom, now 49, was convicted of a sexual assault in 1981.

"DOJ review of flawed FBI forensics processes lacked transparency," is part two of the series.  It's reported by Spencer S. Hsu, Jennifer Jenkins and Ted Mellnik.

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of plotting the first attack on the World Trade Center.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,” Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It turned out he had written or passed along scores of memos over the years warning of a lack of impartiality and scientific standards at the famed lab that did the forensic work after the World Trade Center attack and in other cases.

With the FBI under fire for its handling of the 1993 trade center attack, the Oklahoma City bombing and the O.J. Simpson murder case, officials had to act.

After the Justice Department’s inspector general began a review of Whitehurst’s claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that “no defendant’s right to a fair trial was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found.

Those decisions more than a decade ago remain relevant today for hundreds of people still in the U.S. court system, because officials never notified many defendants of the forensic flaws in their cases and never expanded their review to catch similar mistakes.

The series also contains "How accurate is forensic analysis?" examining different forms of forensic evidence.

Related posts are in the forensics category index.

Examining When Justice Goes Awry

That's the title of Gary Craig's column in today's Rochester Democrat & Chronicle of New York state.  Here's an extended excerpt:

Jonathan Gradess sees a certain logic in holding a conference on wrongful convictions in Monroe County.

“I like the idea that (the conference) is going to be in a jurisdiction that has been in the vanguard of mistakes,” said Gradess, who heads the New York Defenders Association. “It’s sort of like taking the death penalty to Texas. It’s taking wrongful convictions to Rochester.”

A statement that stings some in law enforcement but can’t be denied is that Monroe County has had its share of high-profile wrongful convictions.

Growing research into misidentifications by victims and false confessions by the accused show that wrongful arrests and convictions likely can be curbed. And on Friday, April 20, the Rochester Institute of Technology’s criminal justice and psychology departments will host a conference with the leading experts in these topics as well as others.

Among the speakers at the conference, titled “Justice Miscarried: Convicting the Innocent,” will be John Jay College psychology professor Saul Kassin, an expert in false confessions; Peter Neufeld, co-founder of the Innocence Project; John Jay College professor Jennifer Dysart, an expert in eyewitness identification; Steven Barnes, who spent 20 years in prison for a murder he didn’t commit; and Eugene Pigott Jr., an associate judge on New York’s highest court, the Court of Appeals.

“This conference will help people truly understand the peer-reviewed research that explains why — despite their best intentions — eyewitnesses so often misidentify innocent people as the perpetrators of crime,” said LaVerne McQuiller Williams, associate professor and head of RIT’s criminal justice department. “It will also address why innocent people falsely confess to having committed crimes and the threat that prosecutorial misconduct presents in convicting the innocent.”

The 2012 New York State Wrongful Convictions Conference will be held April 20.  Registration is free, but ends on April 12.

The Larry Swearingen Case

Bllomberg posts, "High Court Won’t Hear Death Row Inmate’s Claim of Innocence," by Bob Drummond.  It's via Business Week.

The U.S. Supreme Court today refused to consider stopping the execution of Larry Ray Swearingen, a Texas death row inmate who says newly uncovered evidence proves his innocence.

Swearingen’s lawyers had asked the high court to decide for the first time whether executing an innocent person constitutes cruel and unusual punishment under the Constitution.

Lower federal courts declined to intervene in Swearingen’s case in part because, as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution.

And:

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

In a 1993 Supreme Court decision, seven justices said they at least presumed, for argument’s sake, that the Constitution prohibits putting innocent people to death. The high court, however, has never turned that hypothetical discussion into a concrete rule of law.

The court ruled in 1993’s Herrera v. Collins decision that new evidence, by itself, says nothing about whether a defendant’s rights were respected during an earlier investigation and trial. An inmate needs additional evidence of a separate constitutional violation to warrant a federal court’s involvement, the high court ruled.

“Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution,” then-Chief Justice William Rehnquist wrote for a 6-3 majority. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”

Rehnquist acknowledged the stakes would be keenest in death penalty cases.

“We may assume, for the sake of argument,” he wrote, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”

Even then, the court said, the standard for assessing new evidence would “be extraordinarily high.”

More onthe Supreme Court's 1993 ruling in Herrea v. Collins, via Oyez.

A state court hearing on Swearingen's case got underway yesterday.  "Condemned killer Swearingen back in court," is Renée C. Lee's Houston Chronicle report.

After receiving his third stay of execution last year, condemned killer Larry Swearingen is back in court trying to gain a new trial and prove his innocence.

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Jordan Smith filed a preview of the hearing, "Dissecting the Science of Death," for the Austin Chronicle.

The question of whether the science of death and decomposition can prove that Larry Swearingen, now on death row, was not responsible for the 1998 kidnapping and murder of 19-year-old Melissa Trotter, will be taken up in district court in Montgomery County starting Feb. 27.

Trotter disappeared on Dec. 8, 1998. It was finals week at Montgomery College where she was a student; she attended a science class review and did some work on a computer in the college's library, then she disappeared. Three days later, Swearingen was arrested on outstanding warrants; he's been behind bars ever since. Although the portion of the Sam Hous­ton National Forest where she was ultimately found had been searched several times, by both law enforcement and others, her body was not discovered until Jan. 2, 1999. Swearingen was subsequently charged and convicted of capital murder and sentenced to die.

At issue, however, is whether science actually proves Swearingen's innocence. Accord­ing to Swearingen's defense attorney James Rytting and a bevy of medical experts – including a number of well-respected Texas medical examiners – it is impossible for Trotter to have been dead for more than a few days when her body was found. And if she had been dead for less than a week, Swearingen could not have been the killer because he was already in jail. Specifically at question is whether Trot­ter's body displayed the kind of decomposition expected of a body left outside for several weeks in the forest in December. Accord­ing to evidence first provided to the defense in 2009, the answer is no; histological samples of Trotter's heart, lung, and vascular tissue is more consistent with a person dead mere days before she was found.

Earlier coverage of Larry Swearingen's case begins at the link.  Related posts are in the forensics index.

Ohio Roundup

"Attorney General: Ohio refining execution policies," is the title of Andrew Welsh-Huggins' latest AP filing on the state's execution protocol.  It's via the Coshocton Tribune.

The state once again is refining its execution policies following a judge's ruling that criticized minor variations to Ohio's procedures, Attorney General Mike DeWine said Thursday.

The announcement comes as another execution was temporarily placed on hold while the debate over these variations works its way through the federal courts.

"We believe we have a constitutional system," DeWine told The Associated Press Thursday. "We want to make it a better procedure pursuant to the federal judge's order."

U.S. District Court Judge Gregory Frost stopped an execution in December because he said Ohio had broken its promise to follow its execution rules to the letter. He criticized the state for not properly recording a death row inmate's medical chart before an execution last fall and for not documenting the use of the lethal injection drug according to the written policies.

And:

The Department of Rehabilitation and Correction could not immediately say Thursday what policies were being refined.

DeWine said that even if the new procedures pass muster with Frost, there are no plans to withdraw an appeal pending before the U.S. Supreme Court. DeWine said there are large constitutional issues that the high court must decide.

The article notes that Ohio's next scheduled execution in February 22nd.  Michael Webb has petitioned the Ohio Parole Board for clemency.

Earlier coverage of Ohio lethal injection issues and the Webb case at the links.  Related posts are in the lethal injection index.

Also from Ohio is news of the state's newly consolidated death row.

"CCI death row receives final inmates," is in today's Chillicothe Gazette.  It's written by Jona Ison.

The final death row inmates have settled into Chillicothe Correctional Institution during the past week.

Mark Hooks, CCI public information officer, said the final inmates arrived Jan. 18. The first 27 death row inmates arrived in Chillicothe on Dec. 6.

"It's really going the way we want it to go. With anything new, there's little adjustments," Hooks said, adding no significant changes were made to the original plans for the move.

Altogether, 136 death row inmates were taken without incident in five trips to CCI from facilities in Mansfield and Youngstown, Hooks said.

And:

CCI is not housing all of Ohio's inmates on death row --the lone female death row inmate remains at the Ohio Reformatory for Women, four remain at the Franklin Medical Center, and six others, including four involved in the 1993 Lucasville prison riot, remain at the Ohio State Penitentiary in Youngstown. The six are considered the highest security risks, meaning they are prone to repeated violent actions against prison staff and inmates.

The move of death row, which was decided in October, is part of the state's overall goal of reducing violence in Ohio's prisons by opening up several hundred needed high-security beds at Mansfield and in Youngstown.

Location was one of the deciding factors in the selection process since CCI is about midway between Southern Ohio Correctional Facility in Lucasville, where executions are performed, and the Franklin Medical Center in Columbus, where inmates needing medical attention are treated.

WSYX-TV has video in "Lawmakers Tour New Chillicothe Death Row," by Steve Levine.

Ohio Lawmakers spent some time in prison, locked up on death row.

House and Senate leaders took a tour of the newly renovated death row area inside the Chillicothe Correctional Institution.

140 inmates were recently transferred there to save state money and open up cell space.

$40,000 in tax money was used to remodel a section of the prison and install additional security equipment.

Earlier coverage of Ohio's death row consolidation begins at the link.  Related posts are in the incarceration index.

CCA Overturns Murder Conviction - Journalists Faulted Forensics

A Texas case examined in a Pro Publica/PBS Frontline report on autopsies and forensics has been overturned by the Texas Court of Criminal Appeals.  The Court's ruling in Ex Parte Lopez is available in Adobe .pdf format.

Pro Publica reports, "Texas Court Voids Conviction in Child Death Case."  It's by by A.C. Thompson.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

"Judge Tosses Conviction Of Texas Man Accused Of Sexually Assaulting Infant," is the NPR report by Joseph Shapiro.

The NPR, Frontline and ProPublica investigation found nearly two dozen cases in the United States and Canada where people were convicted of killing children, but were later cleared when it turned out the accusations were based on flawed or biased work by forensic pathologists and other medical professionals.

Lopez's current lawyers argue that his case should get counted as one of those false convictions. They say Isis Vas died, not because she was beaten and sexually assaulted, but because of an undetected blood disorder that can create bruises and bleeding that mimic child abuse. But no witnesses were called to make that case at the original trial.

On Wednesday, the Texas Court of Criminal Appeals, the state's highest court for criminal cases, ruled that Lopez had received "deficient representation" and that had such witnesses testified on behalf of Lopez, there was a "reasonable probability the jury would not have convicted him."

And:

There is an added risk for Lopez in a new trial. Originally, Lopez was indicted on child sexual assault and murder charges. Prosecutors chose to go to trial on the sexual assault case first, and got a conviction. Jurors only learned that the child had died when it was time for them to determine Lopez's prison sentence. A new trial could also include the murder charge, and prosecutors could seek the death penalty.

Lopez's attorneys are ready to present medical experts who say there was evidence that Isis Vas suffered from a series of problems that suggested she had a rare blood disorder. They will argue that this is consistent with what Lopez told paramedics, doctors and the hospital: That the baby had been sick, lethargic and eaten little from the time her mother brought her to the Lopez house three days earlier.

The Amarillo Globe-News reports, "Sims: Will retry sex assault case."  It's by Bobby Cervantes.

Potter County’s chief prosecutor said Thursday he will retry an Amarillo man whose sexual assault conviction was overturned Wednesday.

47th District Attorney Randall Sims said Ernie Lopez, 41, will be brought back to Potter County within the month to face the 2001 indictment for aggravated sexual assault of a child.

“He’s coming back on the exact charge,” he said. “The case is at the same place any case would be right after it’s been indicted by the grand jury.”

And:

A grand jury in 2001 also indicted Lopez on a capital murder charge, which prosecutors decided to drop in lieu of the sexual assault charge.

Sims did not comment on whether he would pursue additional charges in the case.

“Other than that, I can’t tell you what’s going to transpire when he comes back,” he said

The Pro Publica series on questionalbe forensics is, "Post Mortem: Death Investigation in America."  The PBS Frontline report is also available.  Additional coverage of the series is available.  Related posts are in the forensics index.

The Carlton Gary Case in Georgia

"Stocking strangler case: Judge cuts federal funds for Carlton Gary's defense," is the Macon Telegraph report written by Tim Chitwood.

U.S. District Court Judge Clay Land has cut federal funding for convicted Stocking Strangler Carlton Gary’s defense team while arguments over DNA testing evidence from the serial killings continue in Muscogee Superior Court.

Land’s order set Dec. 31 as the cut-off date after which the federal government no longer would fund Gary’s defense, which is not entitled to such support in state judicial proceedings, the judge wrote.

Gary’s lead attorney Jack Martin said the defense has appealed Land’s decision to the 11th Circuit Court of Appeals, which has scheduled arguments for Feb. 15. The defense maintains the Superior Court proceedings are a continuation of Gary’s death-penalty appeals, he said.

Land disagrees. The judge wrote that were Gary to seek a clemency hearing before the Georgia Board of Pardons and Paroles, the feds likely would pay for that, as it’s an additional step in his federal appeals process. But they will not pay for defense attorneys’ trying to get Gary a new trial in Muscogee Superior Court, Land said.

Earlier coverage of the case is at the link.

Also From Ohio

"Condemned Ohio man claims innocence in arson death of 3-year-old son, asks governor for mercy," is by AP Legal Affairs Writer Anderw Welsh-Huggins.  It's via the Republic.

A condemned Ohio man scheduled to die next month says he's innocent of the arson death of his 3-year-old son and is asking the governor for mercy.

Michael Webb says new arson science disproves the state's argument about where the 1990 fire began, and he says the state didn't turn over evidence at trial about an alternative suspect.

Attorneys for the 63-year-old Webb planned to make their case to the Ohio Parole Board Tuesday in Columbus.

At the State Fire Marshall's Office

"State Fire Marshal Resigns as Arson Inquiry Begins," is the title of Brandi Grissom's post at the Texas Tribune.

The Texas state fire marshal who defended the agency’s work in the Cameron Todd Willingham arson investigation quietly and hurriedly resigned in December after seven years on the job.

Paul Maldonado’s one-sentence, hand-written letter of resignation, dated Dec. 12, comes just as the fire marshal’s office, in conjunction with the Innocence Project of Texas, embarks on an unprecedented review of arson cases in the wake of the Texas Forensic Science Commission’s protracted examination of the Willingham case.

Asked why Maldonado resigned, spokesman Jerry Hagins said the agency does not discuss personnel issues. “The personnel change won't affect the work of the State Fire Marshal's office,” Hagins wrote in an email. 

In October, after discussions with the Texas Forensic Science Commission and the Innocence Project, Maldonado had agreed to cooperate with a review of old arson cases to determine whether faulty science might have led to wrongful convictions. At the commission’s meeting on Friday, an update is expected on the progress of the review.

And:

Lynn Robitaille, general counsel at the commission, said Maldonado’s departure would not affect the arson case review, which is already under way.

“I think it's all systems go,” said Jeff Blackburn, general counsel for the Innocence Project of Texas, which is spearheading the review.

He said his group has already sent questionnaires to more than 1,000 inmates in Texas prisons on arson-related charges. Once those are returned, he said, Innocence Project staff will begin sifting through the cases to determine which ones warrant a deeper vetting.

“We’re way past the talking stage, and we’re in the doing stage,” Blackburn said.

Earlier coverage of the agreement to review arson cases for outdated science begins at the link.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

This is also a perfect time to point readers back to Dave Mann's enterprise reporting on questionable arson convictions in the Texas Observer.

Post-Conviction Access to Forensics in Illinois

The National Law Journal reports, "This win required a trip to the Legislature."  It's written by Lisa Holton.  Here's an extended excerpt:

As of late December, Patrick Pursley, an Illinois inmate found guilty of first-degree murder in a 1993 attempted robbery and sentenced to life in prison, was waiting for results of a post-conviction ballistics test result that could exonerate him.

So were Jenner & Block attorneys Andrew Vail, Robert Stauffer and Kyle Palazzolo and staff members of Northwestern University School of Law's Center on Wrongful Convictions.

All helped Pursley in his 14-year effort to get the state to retest the ballistics evidence — an uphill battle that included multiple appeals despite Pursley's successful petition to the Illinois Legislature to write post-conviction ballistics testing into the state's existing law.

The effort paid off in a big way on Jan. 26, 2011, when the Jenner team convinced the Illinois 2d District Court of Appeals to overrule a lower court and order post-conviction ballistics testing in Pursley's case. The court cited the possibility that the testing could provide new, material evidence relevant to Pursley's claim of actual innocence. It marked a precedent: the first time post-conviction ballistics testing would actually be performed under Illinois state law.

Vail, who started the case while an associate and is now a partner working in commercial, antitrust and Employee Retirement Income Security Act litigation, said Pursley was a model defendant who had worked tirelessly on his own behalf. "The case came to us through [the Northwesten center], and we first took it on because of Patrick himself," he said. "His story is so powerful, and he's done good things in and around the prison, and he's worked very hard on his case. The second thing was that this was going to be a case of first impression under the post-conviction ballistics statute, which could set a major precedent for other inmates."

Pursley had been in court for years, filing three separate pro se motions — each denied by the trial court — and three subsequent visits to the appellate court — which affirmed those denials.

Success came only after lobbying efforts on Pursley's behalf persuaded the Illinois Legislature to change the state's post-conviction evidence testing laws in 2007 to allow ballistics testing. After that, Jenner and the center assisted with Pursley's fourth pro se motion. Notwithstanding the new law, the trial court again rejected the petition, only to be overruled — finally — by the appeals court. Now, Pursley's evidence is back in the state's crime lab being tested with technology that's presumably more advanced than was available at the time of Pursley's conviction.

Related posts are in the forensics, post-conviction review, and pro bono indexes.

Michael Morton Case Update

Today's Austin American-Statesman reports, "Depositions shed light on Morton prosecution."  It's by Chuck Lindell.

Lawyers for Michael Morton, recently freed from a life sentence for a murder he did not commit, have accused former Williamson County District Attorney Ken Anderson of deliberately hiding evidence to secure a guilty verdict 25 years ago.

Newly released court records, including transcripts of sworn testimony provided last month by Anderson's trial assistant, show how Morton's legal team intends to bolster that accusation.

Mike Davis, a Round Rock lawyer who helped Anderson prosecute Morton for the murder of his wife, Christine, described his former boss as a "control guy" — a detail-oriented district attorney who took part in every facet of a major case, from the investigation by law enforcement to the strategy used at trial.

"Any murder case was Ken Anderson's baby," Davis said in his Oct. 29 deposition under questioning by Morton lawyer Gerry Goldstein.

Anderson, now a state district judge in Georgetown, would have determined what information had to be turned over to Morton's lawyers before trial, Davis said, adding that he was "shocked" to discover this year that certain evidence had not been provided.

Davis said he was particularly troubled to learn that Morton's lawyers did not receive evidence indicating that there was a witness to Christine Morton's murder — her 3-year-old son, Eric, who described the attacker as a monster who was not his father.

That information, contained in a taped and transcribed phone conversation between Christine Morton's mother and the lead sheriff's investigator, Sgt. Don Wood, was provided to Morton's lawyers in 2008 as part of a request under Texas open records laws. The sheriff's office and district attorney's office had fought the request.

Before Morton's trial, defense lawyers made the standard request for all evidence favorable to their client, but Anderson should have provided the conversation transcript without being asked, Davis said. Prosecutors are legally required to disclose evidence that could help a defendant, he said.

"Former Assistant DA Deflects Blame In Morton Case," is the title of Brandi Grissom's Texas Tribune post.

In a deposition made public Tuesday, Mike Davis, a former assistant district attorney in Williamson County, pointed the finger for any alleged wrongdoing that led to the prosecution of Michael Morton directly at his former boss, Ken Anderson.

Davis provided testimony Oct. 29 as part of an ongoing investigation by defense lawyers into whether Williamson County officials intentionally withheld information that could have prevented Morton's 1987 murder conviction and life sentence in the killing of his wife, Christine Morton. According to the transcript, a representative of the State Bar of Texas also attended the Davis deposition. That agency is also investigating allegations of prosecutorial misconduct in the Morton case.

And:

The transcript and other information, Davis said, should have been turned over to the judge and to Morton's attorneys. When he learned about the DNA evidence that exonerated Morton, Davis said he went to Anderson's office and confronted him about whether he had concealed the transcript outlining details of the attack young Eric Morton witnessed. "And he says, 'We turned it over,'" Davis said.

Davis also described a scene that unfolded in the Williamson County courthouse on the day that the Texas Court of Criminal Appeals exonerated Morton. Davis was in Anderson's courtroom, and he said current District Attorney John Bradley arrived and insisted on a meeting with Davis and Anderson in a back room. Anderson wanted to meet with Bradley alone, Davis said, and the two went into a separate room. "And Judge Anderson and Mr. Bradley had a discussion which was pretty loud," Davis said. "I could hear raised voices, but I couldn't tell what they were saying."

Davis contended he had no knowledge that anything was withheld from Morton's lawyers, and that he was disturbed to learn that information was allegedly supressed. "It troubles me greatly," Davis said.

The transcript of Anderson's deposition, which was conducted last week, is expected to be released soon.

The Tribune has also published the transcripts of the Davis deposition, the deposition of former Williamson County Deputy Sheriff Donald Wood, and a statement by Dr. Roberto Bayardo.

Earlier coverage of Michael Morton's exoneration begins at the link. 

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

FSC Investigation on Willingham Ends; 700+ Arson Cases to Get Review

The Texas Forensic Science Commission's Addendum to the Willingham/Willis Investigation Report, what appears to be the Commission's final word, is available in Adobe .pdf format.

"Willingham inquiry ends, but effects linger," is the title of Chuck Lindell's report for the Austin American-Statesman.  It appeared in the Saturday edition.

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.

Following commonly held beliefs now known to be wrong, arson investigators testified that the Willingham house fire was intentionally set using a liquid accelerant, the commission concluded.

Modern fire experts working for the commission and for the New York-based Innocence Project, which is representing Willingham posthumously, have determined that none of the more than 20 "arson indicators" identified by fire investigators in 1991 are reliable evidence of accelerant use. The cause of the fire should have been "undetermined," the experts said.

Though the commission's inquiry was never intended to weigh Willingham's guilt or innocence, the findings have added fuel to the debate over capital punishment.

"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."

And:

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."

The Texas Tribune post is, "Forensic Science Panel Recommends Arson Probe," by Claire Cardona.

Now, a new stage of work begins that will require time and cooperation to conduct an exhaustive review of previous arson cases. But Blackburn said with the Fire Marshal's involvement, all the pieces are falling into place. 

The commission's recommendations include the creation of a questionnaire for inmates convicted of arson to see if their cases are worth reviewing. The panel also recommended a review of death certificates in cases where the murder charge is listed as arson.

The recommendations also include new certification criteria for expert witnesses, and additional rules and regulations aimed at preventing the use of outdated science and improving the quality of testimony and analysis.

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."

"Texas forensic board recommends review of arson convictions," is the title of Will Weissert's AP report.  It's also available via the Fort Worth Star-Telegram.

A Texas commission no longer allowed to investigate a case where death penalty opponents say a man may have been executed based on a faulty arson investigation recommended Friday that all cases involving people locked up on arson convictions be reviewed.

The reviews were among 17 recommendations for improving arson inquiries approved by the Texas Forensic Science Commission. The State Fire Marshall's Office has agreed to scrutinize forensics in cases where determinations that fires were deliberately set led to an arson conviction or a murder by arson conviction.

The Innocence Project of Texas, the state arm of a national non-profit that specializes in using DNA evidence to overturn wrongful convictions, will help identify cases for review by providing written surveys to prisoners. State officials also will examine death certificates to ensure qualifying murder cases are identified — since some that involve fires don't list arson as the official cause of death.

Jeff Blackburn, the Innocence Project of Texas' chief attorney, said priority will be given to Texas death row inmates. How many prisoners could have their cases reviewed is unclear, but just looking at arson convictions could involve 750 to 900 cases.

The eight-member panel made its recommendations after the state attorney general limited the scope of its investigation in the case of Cameron Todd Willingham, who was put to death in 2004 for setting a 1991 fire that killed his three children. Arson experts hired by the forensic commission determined the evidence used to convict Willingham didn't meet modern scientific standards and the fire was most likely accidental.

The commission took up Willingham's case after the New York-based Innocence Project filed a complaint in 2007. It couldn't have overturned his conviction but might have determined whether evidence was collected and analyzed properly, supplying grounds for an appeal if it wasn't.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

This is also a perfect time to point readers back to Dave Mann's enterprise reporting on questionable arson convictions in the Texas Observer.

Federal Court Hearing Today on Hank Skinner DNA Request

"Texas death row inmate asking courts to force prosecutor to turn over evidence for DNA tests," is this morning's AP post via the Washington Post.

Just weeks away from execution, a Texas death row inmate is asking the courts to force prosecutors to turn over knives and clothing that were never tested for DNA, claiming that the evidence could show he didn’t kill his girlfriend and her sons nearly two decades ago.

But prosecutors say the latest request from Henry Watkins Skinner, who came within an hour of lethal injection last year before the U.S. Supreme Court stepped in, is an empty tactic to again delay his death.

Both sides will argue their case Monday in Amarillo before federal Magistrate Judge Clinton Averitte. The hearing comes after the U.S. Supreme Court ruled that Skinner could ask for the untested evidence, but left unresolved whether those items had to be surrendered by Gray County District Attorney Lynn Switzer.

The ruling came in a federal lawsuit that Skinner filed against Switzer, claiming the state violated his civil rights by withholding access to the evidence. Prosecutors want the lawsuit tossed, while defense attorneys are asking Averitte to delay ruling on the federal suit until the DNA testing issue is decided at the state-court level.

Skinner, 49, is scheduled for execution Nov. 9.

And:

Skinner’s lawyers have already asked the state courts to delay the execution and want Averitte to withhold any decision on the federal lawsuit until a request for DNA testing before Skinner’s trial court — the third such request from Skinner — is resolved there. Defense attorneys also argue that a new state law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

Ariane de Vogue posts, "Texas Death Row Inmate Wants Access to Untested DNA," at ABC News.

A Texas death row inmate who was hours from execution in 2010, now finds himself with two new avenues of appeal to attempt to prove his innocence through DNA testing.

For years since his murder conviction, Henry “Hank” Skinner had unsuccessfully sought access to untested DNA evidence found at the scene of the crime.

Last year, hours before his scheduled execution, a final appeal to the Supreme Court went in Skinner’s favor. The justices halted the execution and eventually ruled that he could go back to court and argue his case.

The ruling from the Supreme Court, coupled with a new DNA law passed in Texas last month, have given Skinner new hope that he might one day be found innocent of the death of his girlfriend and her two sons.

And:

While the Supreme Court did not weigh in on his guilt or innocence it said he could go to federal court and attempt to sue state officials under federal civil rights law.

At the same time, Skinner’s lawyers are pursuing a separate appeal in state court. Just last month Texas revised its DNA law to ensure that procedural barriers do not prevent prisoners from testing biological evidence that hadn’t been tested. Skinner’s lawyers have filed papers asking the court, pursuant to the new law, to compel the DNA testing.

“We are proceeding both in federal court and state court,” says Skinner’s lawyer, Rob Owen, “to leave no stone unturned.” Complicating Skinner’s appeal is that the trial judge set a new date for his execution in early November.

But the State of Texas believes that Skinner is abusing the system.

In court papers, Jonathan F. Mitchell, the Solicitor General of Texas, argues that at the time of his trial Skinner’s original attorneys made an “informed, tactical” decision to forego the testing because they feared it would further implicate their client.

The Amarillo Globe-News reports, "Skinner looks to federal court for hope," by Bobby Cervantes.

On Monday, the latest chapter in Skinner’s case begins at a federal courthouse in Amarillo, where U.S. Magistrate Judge Clinton E. Averitte will hear Skinner’s civil rights lawsuit. Another execution date looms, this one set for Nov. 9.

The new proceedings are the product of a last-minute stay of execution the United States Supreme Court granted in March — Skinner’s second since he has been on death row.

At issue was whether a federal civil rights lawsuit is a proper vehicle for a convicted prisoner to petition for access to DNA testing. A 6-3 majority on the court thought so, and Skinner’s attorneys swiftly filed the federal lawsuit that will be heard Monday.

Skinner contends additional DNA testing would exonerate him and implicate Busby’s late uncle.

In addition to the Supreme Court ruling, Skinner scored another victory in June, when lawmakers stripped Texas’ post-conviction statute of a once-powerful tool prosecutors and judges wielded to deny prisoners’ DNA petitions.

Previously, those who challenged their convictions citing untested DNA evidence had to prove, among other things, that the evidence was not tested at trial through no fault of their own.

"Federal judge to hear Texas death row inmate's civil rights case," is the AHN report written by Kris Alingod.

A federal judge on Monday was set to hear the case of a Texas death row inmate, Hank Skinner, who filed a civil rights lawsuit claiming prosecutors repeatedly denied him additional DNA testing.
clearpxl

The hearing in Amarillo comes two months after a motion from Skinner that evidence should be turned over to the defense under a bill passed by the state legislature in May expanding access to post-conviction DNA testing.

The U.S. Supreme Court early this year ruled 6-3 in favor of Skinner, saying he could seek such tests under the federal civil rights statute. It issued a temporary stay last year while it considered the lawsuit, saving Skinner from the lethal injection by only 45 minutes.

No DNA tests have been conducted following the ruling and Texas has set a new execution date of Nov. 9.

The case has attracted widespread attention, with advocacy groups,  pundits and some state lawmakers saying that while testing could show Skinner to be guilty, it could also prevent the execution of an innocent man.

Texas has the highest number of executions nationwide. In 2004, it executed Cameron Todd Willingham, who was later found to have been prosecuted using “flawed science" in an investigation by the Texas Forensic Science Commission.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.

Commentary on the Michael Morton Case

Let begin with editorials from the Austin American-Statesman and the Dallas Morning News.  The Statesman editorial is, "Morton free; now State Bar must act."

While Michael Morton begins rebuilding a life after almost 25 years in prison, his lawyers are moving forward on phase two of their quest for justice: looking into the investigators and prosecutors whose efforts sent him to prison for a murder he did not commit.

Angered by revelations of hidden evidence and apparently ignored leads that could have saved Morton from a wrongful conviction, defense lawyers have promised to conduct a vigorous investigation in the coming weeks.

Details of how that investigation will proceed remain hidden behind sealed court records, but presumably Morton's lawyers will seek to force onetime District Attorney Ken Anderson, now a district judge, and other former Williamson County officials to testify under oath in depositions.

Any new information unearthed would be added to allegations of official misconduct that are pending at the state's highest criminal court.

And:

The new DNA evidence prompted Williamson County District Attorney John Bradley to join Scheck in asking the courts to throw out Morton's conviction. That request is pending at the Texas Court of Criminal Appeals, which must approve all sentences that are vacated based on actual innocence.

But defense lawyers also informed the appeals court that in the unlikely event that Morton's request is denied, they will pursue allegations of official misconduct as a second path to attack his conviction.

To further develop those allegations, Morton's lawyers and Bradley agreed to allow "limited discovery," a legal process by which information is collected or exchanged. Details about the discovery plan are hidden in sealed files, except for one: If the appeals court agrees to throw out Morton's conviction, the time for discovery ends, and the allegations of misconduct "shall remain unresolved," court records show.

The appeals court has no deadline to issue its ruling but has acted on actual innocence requests as quickly as about one month, adding a sense of urgency to Morton's legal team.

"Those are serious matters," said Gerry Goldstein, one of the state's leading criminal defense lawyers whose San Antonio firm joined Morton's cause earlier this year. "We are pursuing those. I can't discuss exactly how, but you can trust us that these will be pursued vigorously."

Bradley, district attorney for the past 10 years, said he will have a role in the investigation, though he also declined to provide details, noting that the agreement is under seal.

Bradley said his association with Anderson — the two are friends who have co-written several legal books, including one still offered for sale — will not influence his actions.

Today's Dallas Morning News carries the editorial, "In murder exoneration, a revived debate."

The grotesque injustice suffered by Michael Morton of Williamson County was a travesty — nearly 25 years in prison for a murder he didn’t commit.

But, he pointed out after gaining his freedom based on DNA evidence, the travesty could have ended in tragedy.

“I thank God this wasn’t a capital case,” Morton said last week. “I only had life.”

That’s the essential argument for not adding to the list of 475 executions that have been carried out in Texas since 1982. Even well-meaning officials and juries too often have gotten it terribly wrong. The inevitable damage needs to be minimized, and substituting life in prison for the irrevocable death penalty is one fundamental way.

And:

Morton is the 45th Texas man whose conviction unraveled in the face of modern DNA tests, according to the New York-based Innocence Project. Morton’s case is one of a handful that involved murder, and it wasn’t prosecuted as a capital crime.

But Texas’ death row has not been immune from error. For the most recent, witness the fabricated case against Anthony Graves in the sensational murders of six in Burleson County, a conviction that unraveled last year because justice officials smelled the stench of injustice and bothered to find the source. It was in the office of a scheming former DA.

Morton left the courthouse last week with a judge’s apology ringing in his ears: “You do have my sympathies,” he said.

What a tragedy it would be if, some day, a judge were able to deliver those words only in memoriam.

Houston Chronicle columnist Patricia Kilday Hart writes, "Truth finally sets Texas inmate free."

For a man who'd spent more than 20 years locked up in a Texas prison, the offer must have been tantalizing: Admit your guilt, express remorse, and we'll set you free.

He'd grown gray since Williamson County prosecutors convinced a jury that he'd committed the monstrous murder of his wife, his college sweetheart. For two decades, he'd existed behind bars while his son, only 3 when both parents were stolen from him, became a man without him.

Michael Morton had been stripped of every single thing he held dear in this life - except the truth. Though it would cost him several more years in prison, no one, he decided, would make him tell a lie. He'd rot in prison rather than surrender that last fragile connection to his dignity.

Wednesday, finally cleared by DNA testing after 25 years in prison, Morton became a free man on his own terms: Exonerated.

And:

The district attorney at the time, Ken Anderson, is a now a Williamson County judge. Prosecutor Mike Davis is in private practice in Round Rock. Bradley, who was not involved with the original prosecution but fought Morton's right to obtain DNA testing, serves as district attorney.

This week, Bradley said he believed testing the bandana was unnecessary because law enforcement officials had not deemed it significant in their investigation. He admitted to me last week that judgment was wrong.

It was wrong, and not just because the evidence proved to be so illuminating. It was wrong because Bradley's duty as a prosecutor isn't to team up with law enforcement; it's to see that justice is done.

Last week, we saw the triumph of a man who believed the truth would set him free - as an unbroken man.

I hope, in the months ahead, we'll see the truly guilty held accountable, and find out how to prevent such a travesty of justice from occurring again.

Earlier coverage of Michael Morton's case begins at the link; the latest news coverage in the next post.

"I Thank God This Wasn't a Capital Case ..."

Those were some of the first workds Michael Morton spoke after he was freed in a Williamson County courtroom yesterday afternoon.  Video of his remarks is at the link.

Chuck Lindell writes, "Morton freed from prison after 25 years," for the Austin American-Statesman.

After an emotional group hug with his parents, Michael Morton took his first act as a free man Tuesday afternoon: facing a three-deep throng of cameras and reporters.

Going from serving a life sentence to giving a news conference in two dizzying days, Morton paused to collect his thoughts after having spent almost 25 years in prison for a crime he did not commit, the 1986 murder of his wife, Christine.

"This is new to me, so bear with me," he said, his voice slowly picking up speed. "I thank God this wasn't a capital case. I only had life."

Instead of being executed and forgotten, Morton was able to prove his innocence with a team of dedicated lawyers and a series of DNA tests that implicated another man — a felon with convictions or charges in four states — in the death of his wife.

Tuesday's hearing to release Morton from prison was a formality agreed to by Williamson County District Attorney John Bradley while Morton's case heads to the Texas Court of Criminal Appeals, which must approve all sentences thrown out on the grounds of actual innocence.

Until that ruling, Morton is free on a signature bond but technically still serving his murder sentence.

Brandi Grissom posts, "DNA Evidence Leads to Morton's Release After 25 Years," at the Texas Tribune.

For more than six years Morton's attorneys sought to have the DNA testing done that eventually resulted in his release. Williamson County District Attorney John Bradley, the former chairman of the Texas Forensic Science Commission, opposed the testing and publicly derided attempts to link the murder to "a mystery killer."

Through all the years of pressing courts and prosecutors to review the old evidence, Patricia Morton said she remained hopeful. "We never gave up hope," she said.

The Texas Court of Criminal Appeals must approve Morton's writ before his conviction is formally overturned. And before he is eligible for compensation, Morton must be acquitted in court or pardoned by the governor, or the prosecutor must dismiss charges against him. Under Texas laws, Morton could be eligible for a lump sum of up to $2 million and an additional monthly annuity worth another $2 million.

Innocence Project co-founder Barry Scheck said that the investigation into the Morton case will not end with his release from prison. Morton's lawyers allege that Williamson County prosecutors violated his due process rights in several ways and withheld evidence that could have prevented his conviction in the first place.

The original prosecutor, Ken Anderson, is now a Williamson County district judge.

Morton's lawyers claim in court documents that the district attorney's office withheld a transcript of a conversation between Rita Kirkpatrick, Christine Morton's mother, and an sheriff's investigator in which she told the officer that Morton's 3-year-old son saw a "monster" who was not his father attack and kill his mother.

The defense attorneys also allege prosecutors withheld information about Christine Morton's credit card being used in San Antonio two days after she was killed and about a check made out to her that was cashed with her forged signature nine days after her death.

"We are not going to rest until we do everything we can to find out what happened in this case," Scheck said.

"Wrongly imprisoned man goes free after 25 years," is the AP report, via CBS News.

The case in Williamson County, north of Austin, will likely raise more questions about the district attorney, John Bradley, a Gov. Rick Perry appointee whose tenure on the Texas Forensic Science Commission was controversial. Bradley criticized the commission's investigation of the case of Cameron Todd Willingham, who was executed in 2004 after being convicted of arson in the deaths of his three children. Some experts have since concluded the forensic science in the case was faulty.

Bradley did not try the original case against Morton. But the New York-based Innocence Project, which specializes in using DNA testing to overturn wrongful convictions, has accused him of suppressing evidence that would have helped clear Morton sooner. That evidence — including a transcript of a police interview indicating that Morton's son said the attacker was not his father — was ultimately obtained by the Innocence Project through a request under the Texas Public Information Act.

Austin's NBC affilliate KXAN-TV has extensive coverage beginning with "Michael Morton is a free man," reported by Pamela Cosel, Shannon Wolfson, and Nanci Wilson.

Morton walked into the courtroom at 3:14 p.m., dressed in a white long-sleeved, open-collar striped shirt, along with attorneys Barry Sheck and Nina Morrison. They joined attorney John Raley at the defense table. Morton, his formerly dark hair now a silvery gray, smiled broadly as he waited for the hearing to start. He read a few documents that his lawyers put before him, the stillness of the room heavy with corraled excitement, as water held behind a dam.

Morton's mother cried quietly as her son entered the room, and the elderly couple waved at him.

At 3:28 p.m., all of the attorneys went with Judge Sid Harle back to the judge's chambers. At 3:40 p.m., the proceedings started with Raley explaining the current status of the case. Sheck and Morrison added information before the judge.

Harle was swift in his actions -- and offered an apology for what Morton had been through, wrongly imprisoned for 25 years -- before releasing him to his friends and family.

"I have recommended to the Court of Appeals on count one, to accept my finding," he said. He offered his apologies and said, "You have my sympathy. You have my apologies ... We don't have the greatest system ... it shows ultimately that justice will be served."

KXAN also has "Anthony Graves reflects on Morton case," by Dustin Blanchard.  There is video at the link.

"I lost 18 years of my life. If they had just done any kind of investigation I would’ve never spent a night in jail, but that’s not the case," said Graves.

Graves said his case and the Morton case are proof of serious problems in the Justice System.

"If you don’t have DNA in your case, it’s like no one wants to hear it," said Graves. "[Morton's] case is just another example of how bad our system is and you think that’s 25 years ago and nothing’s changed in our system."

Graves spent the last year travelling the world talking about his experiences. He now helps counsel prisoners still behind bars. He said his time behind bars gave him a sense of purpose.

"I'm out here living my life trying to save life. I'm trying to educate people about this injustice known as the death penalty and our system," he said.

Graves works for the Texas Defender Service, where he advocates for reforms to the death penalty. Among them: stiff criminal penalties for prosecutorial misconduct, and institution of a review board for death penalty sentences.

"Anybody in whatever county who wants to seek the death penalty has to take that case in front of that panel ," he said. "That is the kind of safeguard that needs to be there. Because when you allow one man to make that decision you don’t know why he's making that decision."

Graves was exonerated and freed in October 2010.

Earlier coverage of Michael Morton's case begins at the link.

Michael Morton to Be Freed Today

"Morton expected to be freed today after 25 years," is the title of Chuck Lindell's Austin American-Statesman report.

After almost 25 years in prison, Michael Morton will be freed as early as today after Williamson County prosecutors agreed that new DNA evidence points to another man as the killer of his wife in 1986.

Recent DNA tests also linked the man, a felon identified as John Doe in court because he has not yet been arrested, to the unsolved Austin murder of Debra Jan Baker in 1988.

Like Christine Morton, Baker was killed in bed by multiple blows to the head from a blunt object.

John Doe was not in prison during either murder, and he lived only a few blocks from Baker when she was killed, Morton lawyer Nina Morrison said during a Monday hearing into Morton's innocence claim.

Williamson County District Attorney John Bradley said finding a DNA link between two similar murders, one committed while Morton was in prison, was "lightning-bolt type of information" that prompted him to agree to Morton's release.

Investigations will continue into both murders.

A separate investigation also will continue into allegations that then-prosecutor Ken Anderson and sheriff's investigators improperly withheld evidence that could have saved Morton from a guilty verdict.

Morton's lawyers renewed those allegations in court filings Monday, adding that it appears investigators were so focused on Morton that they neglected substantial leads, including reports that Christine Morton's credit card and a forged check were used to make purchases days after her murder. Her purse was reported stolen in the crime.

Bradley initiated the move to free Morton with a Friday phone call to Barry Scheck, co-founder of the Innocence Project, resulting in long hours spent drafting "findings of fact" to be ready for Monday's already scheduled hearing.

Morton learned about his impending freedom Saturday.

And:

Court filings from the Innocence Project accused Anderson and sheriff's investigators of hiding evidence that could have raised doubts about Morton's guilt. The evidence, which came to light since 2008, included:

• A taped police conversation with Christine Morton's mother, who said the Mortons' 3-year-old son described the attack, identified key details about the murder scene and said his father was not home at the time.

• A handwritten telephone message to lead investigator Sgt. Don Wood, dated two days after the murder, reporting that Christine Morton's missing Visa card had apparently been recovered at a San Antonio store. There is no record that the lead was followed up in the sheriff's or district attorney's case files, which have been opened to Morton's lawyers, the court filing says.

• Two messages telling Wood a check made out to Christine Morton was cashed nine days after her death, and the signature on the back appeared to be a forgery of Christine's name. There is no sign the lead was investigated, the filing said.

Had the clues been disclosed, it is likely that Morton would not have been convicted, and it's possible the Baker murder could have been averted, the court filing said.

"We are going to continue the investigation of those matters, because we regard them as extraordinarily serious," Scheck said after the hearing. "Stay tuned and keep your eye on the ball. This story is by no means over."

"DA Agrees DNA Evidence Doesn't Support Morton's Guilt," by Brandi Grissom for the Texas Tribune.

Michael Morton, who served 25 years in prison for the murder of his wife Christine, will be released after his attorneys reached an agreement with prosecutors, who agreed today in a legal filing that DNA evidence revealed Morton almost certainly was not the killer.

"Because new DNA evidence, previously unavailable at trial or at the time of Applicant’s prior writ applications through no fault of either party, indicates that someone other than Applicant committed the offense in this case, Applicant’s conviction should be set aside under the authority set forth above," Morton's attorneys and Williamson County prosecutors stated in a jointly agreed to "findings of fact and conclusions of law."

Williamson County District Attorney John Bradley said that the new developments — which he said were a "lightning bolt type" of discovery — warranted a reversal of Morton's murder conviction.

"It is my job, as district attorney, to make sure that justice is done," Bradley said after the court action today.

And:

"It's been a long, hard fight," said John Raley, a lawyer with the Houston firm Raley and Bowick, who worked pro bono for six years on the Morton case, along with the New York-based Innocence Project.

The Morton case could have serious ramifications for John Bradley, the former head of the Texas Forensic Science Commission who was critical of efforts to examine questions about the arson science used to convict Cameron Todd Willingham in the 1991 deaths of his three daughters. (Willingham was executed in 2004.)

For more than six years, Bradley resisted turning over the bandana and other evidence for new DNA testing until a Texas appellate court ordered him to do so last year.

On Monday, Bradley said he could not discuss the reasons he opposed DNA testing in the Morton case for more than six years. Doing so, he said, would jeopardize the ongoing investigation of the murders of Christine Morton and Debra Jan Baker.

“As a lawyer, I had what I believe are good-faith reasons for raising concerns about that," he said.

Raley, Morton's defense attorney, said the case proves that prosecutors should never fight against DNA testing. "It can only reveal the truth,” Raley said. “And those that oppose it are being inherently illogical.”

According to the Innocence Project, there have been 43 DNA exonerations in Texas, not including Morton's case, which still must be reviewed and approved by the Texas Court of Criminal Appeals.

Morton's attorneys also say Bradley sat on evidence that should have been turned over to the defense and that could have helped exonerate him. In addition to making claims of innocence on behalf of Morton in legal documents filed today, his lawyers also alleged that Williamson County prosecutors violated his due process rights in several ways.

The AP filing is, "DNA helps free Texas man convicted in wife's death," by Will Weissert.  It's via the Dallas Morning News.

Texas prosecutors agreed Monday to release an Austin man who spent nearly 25 years in prison for beating his wife to death — but always maintained his innocence — after DNA tests showed another man was responsible.

District Judge Sid Harle recommended Michael Morton go free to the state Court of Criminal Appeals, which will make the final determination on overturning his conviction. Morton is set for release Tuesday afternoon or Wednesday morning, following a final hearing before Harle.

The case will likely raise more questions about John Bradley, district attorney for Williamson County north of Austin and once a Gov. Rick Perry appointee to head the Texas Forensic Science Commission. Bradley criticized the commission's investigation of the case of Cameron Todd Willingham, who was executed in 2004 after being convicted of arson in the deaths of his three children. Experts have since concluded that case's forensic science was faulty.

The Innocence Project, a New York-based organization that specializes in using DNA testing to overturn wrongful convictions, has accused Bradley of suppressing evidence that would have helped clear Morton, who was convicted on circumstantial evidence and sentenced to life in prison for his wife's August 1986 beating death.

Earlier coverag of Michael Morton's case begins at the link.

Let's Let the Facts Lead the Way

That's the title of an Austin American-Statesman editorial regarding the Michael Morton case.  It appeared in the Sunday edition.

The main goal of any examination into the case of Christine and Michael Morton must be the search for truth and justice. District Judge Billy Ray Stubblefield of Williamson County emphasized that in his directive to prosecutors and the Innocence Project investigating new evidence that might exonerate Michael Morton, who has been in prison for nearly 25 years for killing his wife, Christine.

"We must all have the courage to learn the facts and let them lead the way," Stubblefield said in August, when new details emerged about DNA evidence. He is right. Our system of justice is not mistake-proof. But its measure should be taken not just by how many times the right person is convicted and imprisoned, but how well the justice system responds when it errs. This case is testing that core principle of justice.

There are several revelations that raise troubling questions about the case, specifically whether Michael Morton committed the murder and whether prosecutors who handled the case hid exculpatory evidence to help win a conviction. American-Statesman writer Chuck Lindell provides another compelling report on the case in today's editions.

And:

Another issue that must be examined is whether prosecutors who originally handled the case were involved in misconduct, as the Innocence Project claims. Before recusing himself, Stubblefield, said that issue should be examined. We agree, if for no other reason than to unearth deficiencies or mistakes that can prevent wrongful convictions in the future. District Judge Sid Harle of San Antonio has replaced Stubblefield.

In this case, the Innocence Project alleges that prosecutors hid key evidence that would have helped Morton prove his innocence. At issue is a transcript of a phone conversation between a sheriff's investigator and Christine Morton's mother, Rita Kirkpatrick. Kirkpatrick said Morton's 3-year-old son indicated that he had witnessed the murder and that the killer, whom he described as a "monster," was not his father.

This is a case that demands answers, transparency and full cooperation by all parties. Morton was by most accounts an average working guy living an average life. He was not a thug, not homeless, not poor. If the justice system failed him, it can fail anyone. But its redemption can be found in its ability to correct its mistakes.

Lindell's latest article, referrenced in the editorial, is, "Circumstantial case convicting Morton of murder now under attack."  Here's the beginning :

Legs buckling as his guilty verdict was read aloud, Michael Morton dropped into a chair, laid his head on the defense table and sobbed.

"I didn't do this," Morton told the court 24 years ago. "That's all I can say. I did not do this."

New evidence raises the distinct possibility that Morton was telling the truth, that another man brutally murdered his wife in their Williamson County home and moved on to commit additional crimes — possibly including a 1988 murder in Austin — while Morton spent the next quarter-century in prison.

The investigation of that new evidence is proceeding.

But back in 1987, when Morton was convicted of murder in a case based on circumstantial evidence, everybody who mattered — from investigators to jurors — was absolutely certain that he killed his wife, Christine, and callously left their 3-year-old son, Eric, alone at the murder scene.

According to an Austin American-Statesman review of trial transcripts and exhibits entered into evidence:

• The sheriff zeroed in on Morton almost immediately and was ready to make an arrest within a week of the murder.

• The medical examiner, using a questionable technique, declared a time of death that destroyed Morton's alibi.

• The prosecutor presented a blistering condemnation of Morton as cruel, manipulative and sexually abnormal.

In the end, 12 jurors needed less than two hours to find Morton guilty of murder, then another 30 minutes to dispense the maximum sentence: life in prison.

Securing the guilty verdict was no slam dunk.

No evidence directly tied Morton to the crime. He had no history of violence. And the murder weapon, a blunt object made of wood, was never found.

Even so, prosecutor Ken Anderson convinced jurors that Morton killed his wife for the basest of reasons, then staged a fake burglary in an inept attempt to deflect blame.

"Life in prison is a lot better than he deserves," Anderson, now a state district judge, said at the time.

Earlier coverage of the Michael Morton case begins at the link.  Another hearing in the case is scheduled for today.

The Morton Case

Today's Austin American-Statesman reports, "Could 1988 cold case in Austin help exonerate man imprisoned nearly 25 years?"  It's by Chuck Lindell.

Austin police are investigating potential links between an unsolved 1988 murder and the strikingly similar killing of Christine Morton two years earlier in Williamson County, raising the possibility that a serial killer is to blame and bolstering claims that Morton's husband has been wrongly imprisoned for almost 25 years.

Like Morton, Debra Jan Baker of Austin was beaten to death with a blunt object while lying in her bed. The Baker and Morton homes were about 12 miles apart.

What's more, lawyers for Michael Morton — serving a life term for his wife's murder — have tried without success to get court-ordered DNA testing to determine if there are links to another unsolved but similar crime, the 1980 bludgeoning death of Mildred McKinney. McKinney also was attacked in bed in her home, about a half-mile from the Morton house in southwestern Williamson County.

Morton has consistently proclaimed his innocence, blaming his wife's murder on an unknown intruder, and attempts to link that crime to the McKinney case have been central to his lawyers' efforts to overturn his sentence.

The link to the Baker case — established in interviews with Baker family members and from information revealed in a Monday hearing in the Morton case — is new.

About two weeks ago, cold case investigators from the Austin Police Department began re-interviewing Baker's relatives based on a tip from Morton's lawyers with the Innocence Project of New York.

The tip included the name and DNA profile of a man whose DNA was discovered on a recently tested piece of evidence from the Morton case: a bandanna that also contained Christine Morton's blood and one of her hairs.

The payoff for the Innocence Project came on Monday, when a routine hearing on Michael Morton's exoneration efforts took a dramatic turn after the judge handed out a two-page document provided by the Travis County district attorney's office.

The document, reviewed in private and discussed in a closed hearing to avoid compromising the cold case investigation, is now known to have included recent developments in the Baker case.

The next hearing in the case is scheduled for Monday, October 3.

Earlier coverage of the Michael Morton case begins at the link.

More Details on the Morton Case Review

Brandi Grissom posts, "DNA Test May Tie Morton Case to 1988 Killing," at the Texas Tribune.

Travis County authorities are investigating an unsolved 1988 Austin murder that they suspect is related to the 1986 murder of Christine Morton, for which her husband, Michael Morton, has been in prison for 25 years.

The developments could bolster efforts to exonerate Morton — who has steadfastly maintained his innocence — and help solve the mysterious killing of Debra Jan Baker, which has haunted her daughter, Caitlin Baker, nearly her entire life. She was 3 years old when her mother was bludgeoned to death in her bed.

“I’m happier for Michael Morton at this point,” Caitlin Baker told The Texas Tribune. “If it helps him, that would be even better.”

It could also have potentially serious ramifications for Williamson County District Attorney John Bradley, the former head of the Texas Forensic Science Commission. Appointed to the panel by Gov. Rick Perry, Bradley was critical of efforts to examine questions about the arson science used to convict Cameron Todd Willingham in the 1991 deaths of his three daughters. Willingham was executed in 2004.

And:

Neither Morton’s attorneys nor the district attorneys in Travis and Williamson counties would confirm a connection between the two cases or discuss the Baker investigation. But Caitlin Baker said a detective in the Austin Police Department cold case unit told her Tuesday that authorities are investigating a potential connection between the two crimes.

Debra Jan Baker's body was discovered on Jan. 13, 1988, in her north Austin home, about 12 miles from where Morton's body was found about a year and a half earlier. Initially, police focused on Baker’s estranged husband, Phillip Baker. But Phillip, who at the time worked at the local jail, said in an interview that the police eliminated him as a suspect.

Caitlin Baker, now 27, has pursued her mother's killer for years, begging Austin police and anyone else who might know what happened to share with her information about the murder. In 2005, she sent a letter to the Austin Chronicle, pleading for help from the public. “There must be someone with information regarding her death. We have not given up hope,” she wrote.

Over the years, the police were in occasional contact — Baker said she met with cold case detectives about four years ago and police took DNA samples from other relatives — but her mother's murder has remained unsolved.

Then, about three weeks ago, she said, the police returned, asking again about her mother’s death. Phillip Baker said police came to his home and showed him photos of two men, neither of whom he said he recognized. Caitlin Baker said police also spoke with her aunts and an uncle in Sugar Land. When Caitlin Baker asked Tuesday if the renewed interest in her mother’s case was related to the Morton murder and recently discovered DNA, an officer told her it was.

“They are definitely looking into that, but they couldn’t share any details,” she said. “I’m happy that there could be something.”

If DNA evidence from Debra Baker’s murderer is linked to the sample taken from the Morton bandana — as was implied at Monday’s court hearing — it could have momentous implications for Michael Morton and for Williamson County DA Bradley.

Earlier coverage of Michael Morton's case begins at the link.

More on Rick Perry, Todd Willingham, and the Death Penalty

Time carries, "The Controversial Willingham Case: What Rick Perry Knew and When."  It's by Mark Benjamin.  Here's the opening:

On the day in 2004 that her first cousin, Cameron Todd Willingham, was scheduled to be executed in Texas, Patricia Cox had good reason to believe he was innocent. 

Willingham was convicted of murder for killing his three daughters in a late 1991 house fire after a prosecution based almost entirely on a forensic fire analysis performed by an assistant fire chief and a state deputy fire marshal in the days after the blaze. Two weeks before Willingham’s execution date in 2004, though, Cox had managed to get famed arson analyst Gerald Hurst to take a fresh look at the case.

Working pro bono, Hurst reviewed the evidence and drafted a study that devastated the original findings. Hurst’s conclusions were based on his own skills, but arson forensics had also become far more advanced and standardized in the previous 13 years. “A contemporary fire origin and cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence,” Hurst’s report began.

Hurst found that there was, in fact, no arson at all. Cox and Willingham’s attorney rushed the report to the office of Governor Rick Perry on Feb. 13, just four days before the scheduled execution, Cox says.

Little was known about why the Hurst report did not compel Perry to use his last-minute authority to delay Willingham’s execution for further review. The governor’s office has resisted legal efforts to pry loose Perry’s most sensitive deliberative documents on the Willingham execution. “The governor’s office has been a giant black hole of information,” said Walter Reaves, Willingham’s post-conviction attorney.

Cox’s frantic correspondence with the governor’s staff in the days and hours before Willingham’s death, as described by Cox and detailed by Perry’s office to TIME, provide a new window onto those events.

Michael Smerconish writes, "A death case Perry may come to regret," in his latest Philadelphia Inquirer column.

In every presidential campaign, a face in the crowd becomes a household name and makes a major impact on the race. Think Joe the Plumber or the Rev. Jeremiah Wright in 2008. Or Katherine Harris in 2000. Or Willie Horton in 1988.

Rick Perry hopes that Cameron Todd Willingham is not that person in 2012.

And:

Perry refused a stay of execution, and Willingham was executed Feb. 17, 2004. The debate, however, was only getting started.

Ten months later, the Chicago Tribune's Maurice Possley and Steve Mills highlighted flaws in the science used to convict Willingham. Three experts they consulted agreed with Hurst. In 2005, Texas established the state Forensic Science Commission to investigate further. The commission hired Dr. Craig L. Beyler to lead the probe, and he would come to agree with Hurst. Beyler lambasted the arson investigation that convicted Willingham, saying it was "characteristic of mystics or psychics." He was not alone.

"There is not a single leading fire scientist who has looked at this case and concluded that Willingham . . . set the fire or that there was any evidence that arson even took place," Grann told me. True, three professional reviews of the arson investigations, while not rendering opinions as to Willingham's guilt or innocence, found fault with the initial investigation.

Today's Louisville Courier-Journal carries the editorial, "A telling silence."

It’s true that anyone can act like a jackass at a public event.It’s also true that there’s been plenty of that behavior on display at each of three recent televised debates among Republican presidential candidates.

In the first, audience members clapped and whistled when Texas Gov. Rick Perry was asked about the 234 Death Row inmates who have been executed on his watch, “more than any other governor in modern times,” as the moderator noted.

And:

As offensive as the audience jeers have been — and American voters should be noting just what the Republicans’ right-wing base seems to be thinking these days — even more offensive is something that has accompanied each one of these episodes of extreme and alarming reaction: absolute silence from the would-be presidents and so-called leaders in the spotlight and all-miked up. Nothing. Nada. Zilch.

Where is their outrage — or even expressed concern — over the cheering for the death penalty, the applause for letting someone without health insurance die, the condemnation of a gay soldier in a war zone?

A few of the candidates took exception to the booing of the soldier — after the debate, and after they left the stage. Hardly profiles in courage and too little, too late.

Is this shame what the GOP stands for these days?

Earlier coverage of Rick Perry and Texas' application of capital punishment and Todd Willingham, at the links.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

An Update on the Michael Morton Case

"Travis County May Hold Key to Solving Morton Murder," is the title of Brandi Grissom's Texas Tribune report.

Travis County prosecutors on Monday provided “powerful evidence” to a Williamson County district court that could be crucial in exonerating Michael Morton of the 1986 murder of his wife.

“I would assume that this information would take away any concerns whatsoever” about Morton’s innocence, said his attorney, John Raley, of Houston, who has been working on the case since 2003. In 1987, Morton was convicted of killing his wife, Christine Morton, in their Williamson County home and sentenced to life in prison.

At a hearing on Monday, Bexar County District Judge Sid Harle presented Morton’s lawyers and lawyers from District Attorney John Bradley’s office with new information from a case pending in Travis County. Because the case is pending, the judge and attorneys would not reveal the nature of the information or the names of individuals involved. But the information seemed to reinforce evidence Morton’s lawyers say shows that he is innocent.

Travis County assistant district attorney Buddy Meyer said his office would not comment on the information.

And:

“This is very powerful evidence your honor. Wow,” said Raley, adding that his client should be immediately released from prison based on the discovery. He said he expected the Williamson County district attorney's office to assist in preparing court filings indicating that Morton is innocent of murder.

But lawyers for Bradley's office said they wanted a hearing to further develop the information. “I think there are still issues that need to be resolved,” said Lindsay Roberts, first assistant district attorney.

At Morton's original trial, prosecutors told jurors that he bludgeoned his wife to death because he was upset that she had fallen asleep instead of having sex with him the previous night after celebrating hisbirthday.

Last month, Morton’s lawyers with the New York-based Innocence Project announced that they had discovered DNA on a bandana found near the crime scene that excluded him as his wife’s killer. The DNA, they said, belongs to a felon who is not in custody.

"Mystery filing could bolster prisoner's innocence," is the Austin American-Statesman coverage by Chuck Lindell.

Travis County prosecutors dropped a bombshell on the Michael Morton murder case on Monday: a sealed, two-page file detailing a pending investigation that apparently bolsters Morton's claim that he was wrongly convicted almost 25 years ago.

District Judge Sid Harle gave the sealed file — apparently detailing an investigation of a cold case murder from the 1980s — to prosecutors and defense lawyers during a Monday afternoon hearing on the Morton case, then he adjourned to give both sides time to read it.

When the hearing resumed, defense lawyer John Raley said the new information suggests that Morton should be immediately released from prison, where he is serving a life term for the 1986 murder of his wife, Christine Morton.

And:

Information about the Travis County cold case overshadowed the original intent of Monday's hearing: Harle's order to allow defense lawyers to review the Morton case files from the sheriff's office and district attorney.

Raley said the files revealed information that suggests prosecutors hid a key piece of evidence that could have raised questions about Morton's guilt — a transcript of a police interview with Christine Morton's mother. That conversation, taped by police 11 days after the murder, revealed that the Mortons' 3-year-old son said that he saw a "monster" hurting his mother and that his father was not home at the time of the attack.

Defense lawyers didn't learn of the transcript until 2008, when it was provided by the sheriff's office under Texas open records laws.

On Monday, Raley said he found a summary of the transcript in the district attorney's files. The information gives Morton a second avenue on appeal — a violation of his constitutional right to view evidence that could cast doubt on his guilt — if his innocence claim bogs down, Raley said.

Harle scheduled a follow-up hearing for Oct. 3.

Earlier coverage of Matthew Morton's case begins at the link.

FSC to Close Willingham Investigation; Fire Marshall to Examine Other Cases

"Thanks to Willingham inquiry, old arson cases getting a new look," is Chuck Lindell's report from the Saturday edition of the Austin American-Statesman.

The state fire marshal's office has agreed to review prior arson investigations to determine if criminal convictions were obtained using bad science or now-debunked assumptions, it was announced Friday.

The review was a key concession sought by the Texas Forensic Science Commission as part of its investigation into the science used to convict, and ultimately execute, Cameron Todd Willingham for the 1991 fire that killed his three young daughters.

Last April, the science commission determined that fire investigators, including a deputy fire marshal, relied on scientifically invalid techniques to rule that Willingham intentionally set fire to his Corsicana home.

Uncomfortable that a poor understanding of fire science could have influenced other investigations, the commission's Willingham report also urged Fire Marshal Paul Maldonado to review his agency's files.

Maldonado agreed to the review earlier this week, Forensic Science Commission Chairman Nizam Peerwani announced Friday.

"I thought that was a wonderful thing," Peerwani said. "There is no legal requirement for retroactive review, no mandate under the law, but there is some ethical and moral duty to do that."

The Dallas Morning News carried, "Texas forensic commission hesitant on Willingham case after attorney general's opinion," by Sommer Ingram.

The state’s forensic science commission, restricted by an opinion from the attorney general, is postponing a final vote on a high-profile arson case that death penalty opponents say may have led an innocent man to his death.

A draft report says the commission will decline to find negligence in the case involving Cameron Todd Willingham.

The state fire marshal’s office agreed this week to many of the Texas Forensic Science Commission’s 17 recommendations for improving arson science and investigation, commission chairman Nizam Peerwani said Friday. Included in these recommendations is a retroactive review of cases in which new scientific knowledge could have an impact.

Commissioners decided Friday to delay a formal vote until October so updated information about the fire marshal could be added.

Willingham was executed in 2004 for what investigators at the time said was an intentional fire set to his Corsicana home to kill his three daughters in 1991. Fire experts have since told the commission that Willingham’s conviction was based on bad science, and the New-York based Innocence Project filed a complaint asking the panel to find professional negligence by the fire investigators.

The case has been a source of criticism of Gov. Rick Perry, including in his campaign for president, because activists say he ignored key evidence suggesting Willingham’s conviction was faulty and failed to stop his execution. Perry has said he’s sure of Willingham’s guilt.

The commission determined previously that the evidence used to convict Willingham of arson-murder was unreliable.

But Attorney General Greg Abbott’s recent opinion prohibits consideration of evidence gathered or tested before the panel’s creation in September 2005, which has left commissioners treading lightly regarding their jurisdiction.

"Panel delays Willingham decision after AG ruling," by Allan Turner in the Houston Chronicle.

The report reiterated 17 recommendations for state and local arson investigators to improve their science, then sidestepped the controversial question of whether arson cops had been negligent or guilty of professional misconduct in the case.

On Friday, commission Chairman Nazim Peerwani told colleagues the fire marshal's office is moving toward meeting those suggestions.

Peerwani and Texas Fire Marshal Paul Maldonado conferred on the recommendations this week, with the fire executive pledging to share any "process improvements" with fire departments throughout the state.

Citing a recent Texas attorney general's opinion indicating the Willingham case was outside the commission's jurisdiction, the draft said no determination of negligence would be made.

Three reviews of the arson investigation, including one commissioned by the panel, found the arson investigation lacking.

"Forensic Panel Calls for Review of Past Arson Cases," by Brandi Grissom for the Texas Tribune,

A review of arson cases to determine whether faulty evidence has led to wrongful convictions has been a main aim of the New York-based Innocence Project, which filed the original complaint launching the commission’s work in the Willingham case. Stephen Saloom, policy director for the national organization, said he was pleased that the review would take place but was disappointed the commission did not take stronger action against the fire marshal’s office. The review of arson cases, he said, should not be left to the discretion of Maldonado, who has said that he stands by the evidence used to convict Willingham.

“It’s hard to understand how the public can have confidence that their recommendations will provide justice,” he said. “The commission is on the right track, but this job is not done.”

Maldonado declined to comment for this story.

Commissioners said they would finalize the Willingham report after their October meeting, and incorporate the fire marshal’s agreements to implement their recommendations.

Saloom said he hoped to convince the commission to take more of a leadership role in ensuring that all previous arson cases are investigated. He said the attorney general’s ruling had made the commission “gun shy.”

“It may have largely neutered this commission’s potential effectiveness and undermined legislators’ clear intent in creating this commission,” Saloom said.

Former commission chairman Sam Bassett, who publicly criticized Perry this week for attempting to squash the Willingham investigation, said Friday that the commission’s decision was a sad one. Bassett was chairman from 2007 until 2009, and the Willingham work began during his tenure. He said he now believes that he was given the boot to provide Perry with political cover.

Earlier coverage of the Forensic Science Commission investigation of the Willingham case begins at the link. The AG Opinon GA 866 is available in Adobe .pdf format.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

I also want to point readers back to Dave Mann's enterprise reporting on questionable arson convictions in the Texas Observer.

Sam Bassett

Brandi Grissom conducts the Texas Tribune interview with Sam Bassett, former Chair of the Forensic Science Commission. It's a must-read.  There is video at the link.

The Tribune sat down with Bassett on Thursday to discuss his views on why the governor replaced him, his suspicions that political motivations were behind it, why he believes the commission had the authority to conduct its investigation, and why he argues it is critical for the Texas justice system that the commission finish what it started under his leadership.

And:

TT: When did you first hear from the governor's office about the Willingham investigation?

SB: The first contact I had with the governor’s office was in February of 2009. I was called by an appointment secretary of sorts and asked to come over and meet with the general counsel, and [I was told] that it was important and urgent. I couldn’t meet that day, but I arranged to meet the following day during the noon hour I think, and I went over and met with David Cabrales who was then his general counsel and Mary Anne Wiley who was an assistant general counsel in charge of criminal justice issues. And I had a meeting in their office in February. That was the first meeting I had with the staff.

TT: What did they want to talk about?

SB: I wasn’t told why they wanted me to come over. I wasn’t given any sort of agenda or anything that they wanted to discuss ahead of time. I just went; I didn’t know what they were going to talk about. We began the meeting by discussing the commission in general, and then we started talking specifically about the investigations we were doing. We seemed to get stuck on the Willingham investigation. As soon as I brought it up the tone of the meeting turned more hostile and Mr. Cabrales in particular was very adamant that that’s not the kind of investigation the commission was intended for, and I think Ms. Wiley at one point characterized our investigation as a waste of state money, and I was criticized for bringing in an expert from outside of Texas. I just tried to respond by saying I thought we had jurisdiction over the issue, but that I would go do some checking to make sure I wasn’t off. And I also told them briefly that I thought the commission wanted to go forward with the investigation since it was a unanimous vote to proceed with the investigation.

Earlier coverage of the FSC and the Willingham investigation begins with the preceding post.

The AG Opinon GA 866 is available in Adobe .pdf format.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

FSC to Decide Today on Future of Willingham - Arson Investigation

"Despite Concerns, Science Panel Will Restrict Inquests," is the title of Brandi Grissom's Texas Tribune report.

Whether they like it or not, members of the Texas Forensic Science Commission today 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.

During the first day of a two-day meeting, the commissioners outlined how they would use the attorney general’s ruling to make decisions about which new cases they would investigate.

The commissioners expressed frustration over the contradiction between Abbott’s interpretation of the statute and communications they had with legislators. State Sens. Rodney Ellis and Juan “Chuy” Hinojosa, who worked on the 2005 law, had made clear their intent was to allow investigations of older cases.

Chuck Lindell writes, "Forensic science panel struggles under restrictions in Willingham case," for today's Austin American-Statesman.

The Texas Forensic Science Commission, which has already determined that unreliable science played a role in the conviction and execution of Cameron Todd Willingham, will decide today whether to take additional action on the arson-murder case.

The commission is struggling to identify options after the attorney general's office recently determined that legislators, despite intending to give the agency broad investigative powers, instead wrote a law that provided an extremely narrow scope of authority.

Those limits became apparent Thursday when the panel, kicking off two days of meetings in Austin, dismissed four complaints for lack of jurisdiction — including two that commissioners believed deserved additional investigation.

Commissioners chafed at the restrictions.

"I respect the legal opinion, and I intend to abide by it, but I'd hate that by doing nothing (on these cases), the credibility of the commission is at stake," said Commissioner Sarah Kerrigan, a forensic toxicologist.

"It's an opinion, right?" asked Chairman Nizam Peerwani, the Tarrant County chief medical examiner. "What if we as a commission choose not to follow it? What are the consequences?"

The answer — that commissioners could be sued individually if they exceed their authority — quieted that line of discussion.

One complaint the panel reluctantly rejected involved Sonia Cacy, sentenced to 99 years for killing her Fort Stockton uncle by setting fire to his bed in 1991. Forensic tests found gasoline on his clothes, but Cacy was released six years later when new tests determined that gas had never been present.

"Executed man's relatives urge Texas panel to continue probe," by Matt Smith is at CNN.

Relatives of a man executed in 2004 urged a Texas state commission Thursday to continue probing claims that outdated scientific testimony put him on death row as members weighed a legal opinion restricting their authority.

"You can't uninvestigate a case you've already investigated," Patricia Cox, the cousin of executed convict Cameron Todd Willingham, told the Texas Forensic Science Commission. "You can't unacknowledge what you've already acknowledged."

Willingham was put to death for setting a fire that killed his three daughters in 1991, but several experts who have reviewed the testimony in his trial say the fire was likely not arson. A series of studies in the 1990s rendered obsolete most of the things investigators pointed to as proof the fire was deliberately set, they say.

The commission's investigation was delayed after Gov. Rick Perry, now a Republican presidential candidate, replaced its chairman and three other members in 2009. The former chairman, Sam Bassett, now accuses Perry of trying to derail an investigation into Willingham's execution, which the governor allowed to go forward.

Earlier coverage of the Forensic Science Commission meeting begins at the link.

How Will FSC Move Forward in Arson Cases

Yamil Berard writes, "Texas forensics panel may close book on arson case," for today's Fort Worth Star-Telegram.  Here's an extended excerpt:

The state's top forensics panel may be getting ready to pull the trigger on the most publicized death penalty examination in its six-year history: the case of Cameron Todd Willingham.

Members of the Texas Forensic Science Commission meet today for the first time since being told that they do not have the authority to scrutinize the state fire marshal's office arson investigation that led to Willingham's 2004 execution.

In a July 29 opinion, Texas Attorney General Greg Abbott said the panel cannot examine forensic testing that predates its September 2005 inception.

Since then, commission members have remained mostly tight-lipped about the future of the Willingham case but haven't called it off. The commission is scheduled to meet beginning at 9:30 a.m. to discuss the effects of Abbott's opinion on the Willingham case and others, its agenda shows.

Fire marshal's officials and others who lauded Abbott's opinion argue that it closes the book on the Willingham case. Fire marshal's investigators had determined years ago that arson caused the 1991 house fire that killed the unemployed Corsicana mechanic's three young daughters. Ed Salazar, general counsel for the state fire marshal, said he told the commission long ago that it lacked the authority to look into the case.

"That was our position from the very beginning, but they just blew us off," he said.

But death penalty opponents and groups working to identify wrongful convictions say errors by the fire marshal's office in determining the cause of the fire must be addressed. They point to testimony by fire experts who told commission members in the past that the cause of the fire should have been ruled "undetermined." They also said the fire marshal's office used outdated methods and erred when determining its cause.

Abbott's opinion left an opening for action: While it prohibits the commission from making determinations on forensic evidence tested or offered in court before the panel's inception, it also states that there is no limitation on the commission's power to investigate any allegation of professional negligence or misconduct.

"We're confident that the commission is still going to look into it," said Stephen Saloom, policy director of the Innocence Project, which filed the Willingham complaint with the commission in 2006.

Texas Tribune coverage of the meeting is,"Advocates Urge Science Panel to Continue Arson Probe," by Brandi Grissom.

The Innocence Project is urging the Texas Forensic Science Commission to forge ahead with its investigation of the Cameron Todd Willingham and Ernest Ray Willis arson cases despite a recent ruling from the state’s top lawyer that seemed to limit the panel’s authority.

“As these cases so vividly demonstrate, your investigation is a matter of justice or wrongful convictions; indeed, it is a matter of life or death,” Steven Saloom, policy director at the New-York based organization, wrote in a letter Tuesday to the commission.

The commission is meeting today and Friday for the first time since Gov. Rick Perry appointed Dr. Nizam Peerwani chairman, replacing firebrand prosecutor and Williamson County District Attorney John Bradley. It’s also the first meeting since Attorney General Greg Abbott issued a ruling in July concluding that the panel cannot consider evidence in cases older than 2005. Willingham was convicted of igniting the 1991 blaze that killed his three young daughters. He was executed for the crime in 2004. Willis was convicted based on similar arson investigation techniques and was exonerated in 2004.

The Innocence Project in 2006 asked the Forensic Science Commission to investigate the science used to convict the two men.

And:

It’s unclear what action the commission will take at its meeting, and Peerwani did not respond to a request for comment for this story. But Sam Bassett, an Austin lawyer and past chairman of the commission, said he agreed the commission should complete the investigation. “The commission should take ‘corrective action’ to ensure that those with current or old cases involving arson are not wrongfully imprisoned,” Bassett said in an email. “The science being used in courtrooms throughout the 90’s in Texas has clearly been shown to be invalid in many instances.”

Earlier coverage of the Forensic Science Commission begins at the link.  The AG Opinon GA 866 is available in Adobe .pdf format.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

News Coverage of the Hank Skinner Filing

The Texas Tribune reports, "Hank Skinner Seeks DNA Testing Under New Law," written by Brandi Grissom.

Lawyers for death row inmate Hank Skinner filed a motion Friday seeking DNA testing under a new Texas law that expands access to such testing. And they have asked the state to withdraw the Nov. 9 execution date set for Skinner.

“Texas is wrong to seek Hank Skinner’s execution without allowing for DNA testing," Rob Owen, one of Skinner's lawyers and director of the University of Texas School of Law's Capital Punishment Clinic, said in a statement. "The state should be leading the search for truth, instead of continuing to waste taxpayer dollars on its 11-year-long campaign to block testing of critically important scientific evidence.”

And:

Last year, though, less than an hour before he was scheduled to be executed, the U.S. Supreme Court stayed Skinner's punishment. The high court sent the case back to the federal district court to decide whether Skinner is entitled to additional DNA testing. A decision is expected in the coming months on whether Texas courts arbitrarily and unconstitutionally applied the state's 2001 post-conviction DNA testing law.

During the legislative session this year, though, lawmakers approved a modification to that law, allowing more access to post-conviction DNA testing. The original legislation allowed testing only in cases in which DNA tests were not conducted during the original trial because the technology was unavailable or for some other reason that was not the fault of the defendant. This year, lawmakers repealed those restrictions. As of Sept. 1, post-conviction testing is available for DNA evidence not previously analyzed, and for DNA evidence that was tested but that can be re-examined with newer technology. “The new law was intended to make advanced DNA testing available in all cases where it can aid the truth-seeking process, and Skinner's case falls squarely within that category,” said state Sen. Rodney Ellis, D-Houston, who helped write the law.

"Skinner seeks DNA tests," by Bobby Cervantes in the Amarillo Globe-News.

Attorneys for convicted killer Hank Skinner hope a new DNA testing law that took effect last week will force the 31st District Attorney to turn over crime scene evidence, according to a new motion filed Tuesday in Gray County.

The petition cites major revisions to the state’s post-conviction DNA statute, which allows more prisoners to test biological evidence in criminal trials.

The untested evidence includes a man’s windbreaker with blood splatter and hair found next to Twila Busby’s body, two knives, a rape kit and bloody towels.

A Gray County jury convicted the Pampa man for the December 1993 triple slaying of Busby, his live-in girlfriend, and her two sons.

Skinner has maintained his innocence since his 1995 conviction, arguing he was incapacitated by a vodka and codeine overdose on the night of the murders.

"DNA tests sought," by Amanda Buck for the Martinsville Bulletin.

Three motions were filed Tuesday in state district court in Gray County, Texas, the release said. They seek to have the items tested under a new Texas law that took effect Sept. 1, according to the release and copies of the motions provided by Skinner’s attorneys.

The new law “intends to ensure that procedural barriers do not prevent prisoners from testing biological evidence that was not previously tested or could be subjected to newer testing,” the release said.

Another motion seeks to have the Nov. 9 execution date withdrawn to allow time for the DNA testing to be done.

That is not the first execution date for Skinner, who came within an hour of being put to death in March 2010 when the U.S. Supreme Court halted the sentence before deciding to hear his case.

The high court ruled this year that Skinner had the right to sue the Texas district attorney prosecuting his case under federal civil rights law for refusing to allow Skinner access to evidence for DNA testing. Justice Ruth Bader Ginsburg cautioned that allowing Skinner to sue is not the same thing as saying he should win his suit.

That lawsuit is pending in federal district court in Amarillo, Texas.

Earlier coverage of Hank Skinner's case - with the latest pleadings - begins at the link.

New Judge Named In Michael Morton Case Following Recusal

Chuck Lindell writes, "Morton judge steps aside; replacement named," for the Austin American-Statesman.

District Judge Billy Ray Stubblefield informed the Texas Supreme Court by faxed letter Tuesday afternoon — hours after Morton's lawyers filed a motion alleging official misconduct in the case — that he had recused himself from all Morton proceedings.

Stubblefield cited no reasons for the move but asked that a new judge to be appointed quickly "due to the urgency of a motion filed this afternoon and the exigent circumstances of the case."

The motion from Morton's lawyers with the Innocence Project of New York alleged that prosecutors or investigators in 1987 failed to produce information that would have bolstered Morton's claims that he did not kill his wife in 1986.

The case was prosecuted by Ken Anderson, now a state district judge in Williamson County, and Mike Davis, now a private lawyer in Round Rock. Neither can comment on the allegations because of a gag order in the case.

On Wednesday, Supreme Court Chief Justice Wallace Jefferson assigned the Morton case to District Judge Sid Harle of San Antonio.

Earlier coverage of Michael Morton's case begins at the link.

The Nation Examines Larry Swearingen's Case

Jordan Smith posts, "Is Rick Perry Ready to Execute an Innocent Man?" at the Nation.

As soon as Rick Perry threw his hat into the 2012 electoral ring, anti-death penalty critics brought up his staggering execution record as governor of Texas: 234 prisoners have been put to death under Perry’s watch, a number of whom had serious innocence claims. Most famous among them is Cameron Todd Willingham, who was executed in 2004 and whose case opened up an investigation that Perry has taken aggressive—and largely successful—measures to squash. But a lesser-known case could also haunt the governor if it reaches his desk: that of Larry Swearingen, convicted and sent to death row for the kidnapping, rape and murder of a 19-year-old college freshman named Melissa Trotter in 1998. Like Willingham, Swearingen was convicted largely on circumstantial evidence and a history of run-ins with the law. But Willingham was convicted based on the inexact science of arson investigations, whose flawed assumptions have been slow to evolve. The scientific evidence in Swearingen’s case, medical experts say, is beyond dispute—and it proves his innocence.

There’s another difference: Swearingen is still alive.

Swearingen was scheduled to die on August 18. But his execution was stayed in late July by the state's highest criminal court, the notoriously pro-prosecution Court of Criminal Appeals, in order to have the trial court consider new evidence: Histological samples of Trotter's cardiac, lung and vascular tissue that a growing number of doctors, including well-respected Texas pathologists, say show conclusively that Swearingen could not have killed Trotter.

But is that enough? The Swearingen case has raised questions about the intersection of science and the law: how courts and cops view science, and how decisions are made about what kind of scientific proof is “good enough” to override the type of circumstantial evidence that lends itself to the finality of conviction that Texas courts crave—especially in death penalty cases.

Earlier coverage of Larry Swearingen's case begins at the link, with Smith's reporting for the Austin Chronicle.

Bad Blood at the Dallas County Crime Lab

That's the title of Amanda Grimes report in the September issue of D Magazine.  It's subtitled, "Attention, all convicted rapists and murderers. Start filing your appeals now.."  Here's an excerpt from the introduction:

No matter how easy it looks on prime-time television, putting bad guys in jail isn’t as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot messier than that.

It’s so messy that, six years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.

The Dallas County Crime Lab—more formally called the Southwestern Institute of Forensic Sciences, or SWIFS—has yet to come under the commission’s microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas’ crime lab ever since. He is speaking openly for the first time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back five years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

“People’s liberties are at stake here,” Nulf says.

The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime lab is doing fine because it says it is.

Related posts are in the crime lab and forensics indexes.

Coverage of Michael Morton DNA Hearing in Williamson County

Chuck Lindell writes, "Bradley remains on case as details emerge about suspect ID'd with DNA," for the Austin American-Statesman.

A judge Tuesday denied a defense request to remove Williamson County District Attorney John Bradley from the Michael Morton case in the wake of new DNA evidence that has raised questions about Morton's 1987 conviction for his wife's murder.

The hourlong hearing was more notable for intriguing details that emerged about the DNA evidence, which was found on a bandanna containing the blood and hair of the murder victim, Christine Morton.

Mixed with skin cells belonging to Christine Morton, who was beaten to death in her bed in 1986, was DNA from a man who has a state and federal felony record for offenses in three states that include burglary of a residence, "extensive" drug use and assault with intent to kill, defense lawyer John Raley told the court.

"This man is not in custody at this time," Raley said. "He is out, and we have a very good idea of where he is."

Prosecutor Kristen Jernigan objected, asking that no additional details be given in open court because it could compromise the investigation and could warn the suspect, identified in court documents only as a onetime California inmate.

District Judge Billy Ray Stubblefield called the lawyers to his bench, where they conferred for almost three minutes.

"This is an extraordinary case," the judge said later. "The evidence is extraordinary. What you told me privately here at the bench is even more extraordinary."

Michael Morton has been in prison for almost 25 years while serving a life sentence for murder.

And:

Stubblefield said he was confident that the district attorney's office and investigators would conduct a proper investigation. But the judge warned that he wanted no foot dragging, and he set a Sept. 27 court date to receive a progress report.

"What I do not want to happen is for there to be a protracted, long period of investigation," Stubblefield said, adding that he plans to be "very tough" on both sides when it comes to sharing evidence that could point to Morton's guilt or innocence.

"We must all have the courage to learn the facts and let them lead the way," he said.

In a related ruling, Stubblefield said he will investigate the Innocence Project's claims that prosecutors improperly withheld evidence during Morton's 1987 trial, particularly a transcript of a phone conversation between a sheriff's investigator and Christine Morton's mother. In the conversation, Rita Kirkpatrick said the Mortons' 3-year-old son indicated that he witnessed the murder and that the killer, whom he described as a "monster," was not his father.

Stubblefield said he would view the investigative file, which has been sealed and stored at the 3rd Court of Appeals, to see if the transcript was included.

The judge also extended a gag order barring lawyers and investigators from commenting on the case.

"Despite Questions of Bias, John Bradley Will Stay On Innocence Appeal," by Morgan Smith for the Texas Tribune.

A state judge Tuesday declined to remove firebrand Williamson County District Attorney John Bradley from investigating the case of Michael Morton, whose 1987 murder conviction has been called into question after new DNA evidence suggests someone else killed his wife. 

District court judge Billy Ray Stubblefield, who has been on the bench since 1993, said he was not prepared to take “the extraordinary act” of recusing Bradley. He said he had a “high degree of confidence” in the two assistant district attorneys in Bradley’s office handling the appeal and that he would “take this case as seriously as any case that has come before me in 19 years on this court.” Morton's lawyers, which include attorneys with the Innocence Project, a New York-based nonprofit, had demanded that Bradley be removed from the case.

And:

At the center of Morton's appeal are the June DNA results obtained from a bloody bandana that had been found at a construction site near the couple’s home shortly after the murder. For six years, Bradley fought advanced DNA testing of the bandana and other evidence, saying Morton's attorneys were searching for a “mystery man” and “grasping at straws.” The Third Court of Appeals ultimately ruled in Morton's favor and ordered the testing last year. The results revealed that comingled with Christine Morton’s hair, sweat, and blood on the bandana was the DNA of a man who was not Michael Morton.

Raley said his own “informal” investigations of the new suspect, who is still at large, revealed he had a history of drug abuse and assault.

In addition to the DNA evidence, Raley said Bradley fought to keep under wraps a sheriff's department interview with Morton's mother-in-law conducted days after the 1986 murder in which she said the couple's young son had witnessed the crime. She said her grandson, three years old at the time, told her that a man who was "not Daddy" killed his mother. Raley also questioned whether the trial judge at the time had ever seen the document.

Earlier coverage of the Michael Morton case begins at the link.

Hearing in the Morton DNA Request

"Lawyers ask judge to appoint special prosecutor," is the AP report via the Houston Chronicle.

A hearing is scheduled Tuesday in Georgetown, north of Austin.

The New York-based Innocence Project represents Michael Morton. The attorneys say the new DNA testing of a bloody bandana points to someone else as the murderer. They want a judge to remove District Attorney John Bradley from the case and appoint a special prosecutor.

Morton was sentenced to life in prison for the 1986 beating death of his wife Christine.

Bradley has been district attorney since 2001. He had objected to Morton's request for new DNA tests.

Earlier coverage of Michael Morton's fight for post-conviction DNA testing begins at the link.

Jordan Smith on the Case of Larry Swearingen

The award-winning Austin Chronicle journalist writes, "The Science of Injustice," for the issue out today.  It's a comprehensive review of the controversial case. Here's an excerpt from this must-read:

Although they had not yet found her body, police investigating her disappearance were fairly certain that Trotter was dead, and they believed they knew who was responsible: Larry Swearingen, a 27-year-old local electrician, married with two young children and a history of getting himself in trouble with the law. Swearingen had been seen talking with Trotter at the college the day she disappeared. The state maintains he was the last to see her alive.

Three days after Trotter disappeared, police arrested Swearingen on outstanding warrants. He's been behind bars ever since. After Trot­ter's body was found, he was charged with capital murder. The state charged that Swear­in­gen kidnapped her from the college, raped her, and tied a single panty hose leg around her neck, strangling her before dumping her body in the national forest. There was no direct evidence – no DNA, for example – linking Swear­ingen to the crime, and there was no certain evidence that Trotter had been the victim of sexual assault.

But there was a good deal of circumstantial evidence linking Swearingen to the disappearance and death. He had been seen with her at the school the day she disappeared, several hairs matching Trotter were found in Swear­ingen's pickup truck (although he did not dispute that they were friends), and, most damning, during their third search of Swear­in­gen's home, police said they were given a leg of panty hose that Swearingen's landlord had found while cleaning up Swearingen's rented trailer. A Department of Public Safety analyst later said it was a positive match to the leg found tied around Trotter's neck.

Swearingen maintains his innocence, but he was tried and convicted in the summer of 2000; after less than two hours of jury deliberation, he was sentenced to death. Since 2007, he's been scheduled for execution three times but has avoided lethal injection thanks to court-imposed stays – including one late last month granted by the state's highest criminal court, the Austin-based Court of Criminal Appeals, which sent the case back to district court for further review. At issue is the forensic science of death and decomposition. More than a decade after Trotter's death, a growing number of scientists – including pathologists, forensic anthropologists, and entomologists – agree that Swearingen could not have been responsible for Trotter's death.

Specifically at issue is histological evidence (analysis of cell tissue) that nearly a half-dozen doctors have reviewed and that they say shows conclusively that Trotter had not been dead for 25 days at the time she was found in January 1999. Samples of cardiac, lung, and vascular tissues harvested from Trotter at autopsy, saved in a paraffin block and finally recovered from the Harris County Medical Examiner's Office by Swearingen's attorney in 2009, show tissue that is hardly decomposed at all and is most consistent with a person who has been dead less than a week.

If Trotter was dead less than a week when her body was discovered, Swearingen was in jail when she died and could not have killed her.

"[I]t is categorically impossible, beyond all reasonable doubt, that Ms. Trotter was killed and her body left at that location by ... Swear­ingen, who had been incarcerated ... 23 days before the body was found," Dr. Lloyd White, deputy medical examiner in Tarrant County, wrote in a June 2011 report detailing his most recent examination of the tissue samples.

Yet despite what appears to be clear and convincing medical evidence that Swearingen could not have killed Trotter, neither prosecutors nor the courts have been persuaded that he could be innocent. Swear­ingen's defense has been trying for four years to demonstrate to the courts – the trial court and the CCA as well as federal courts – the import of the new scientific findings. While the CCA has remanded the case to the trial court twice for further hearings, they've ultimately sided with prosecutors, ruling that the forensic evidence isn't convincing enough to outweigh what CCA Judge Cathy Cochran wrote in January 2009 is a "mountain" of circumstantial evidence pointing to Swearingen's guilt.

The case renews questions about the intersection of and tension between science and law – how courts and law enforcement professionals view and understand science, and how decisions are made about what kind of science is "good enough" to be deemed more telling or important than other compelling but decidedly nonscientific evidence. "When you have objective forensic evidence and testimonial evidence – which is subjective – [that testimonial evidence] must be questioned and take a backseat to the objective science," says Dr. Stephen Pustilnik, the chief medical examiner for Galveston County, who after reviewing the Trotter tissue samples also concluded that Trotter was killed within days of being found in the forest, not in early December, and therefore not by Swearingen. "It's not the convenient scenario, not the easy scenario" for the state, he says. "Just because [Swearingen] is the easy and convenient person, all of a sudden, if the science says he didn't do it, doesn't mean that you can ignore the science."

Earlier coverage of the Larry Swearingen case begins at the link.

Getting It Right

That's the title of a new widget from the Innocence Project and University of Virginia Law prof Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Here's what the IP has to say in announcing the widget:

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice. The new interactive widget, “Getting it Right,” is embeddable on any website and features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The widget was produced in partnership with University of Virginia Law School Professor Brandon Garrett, whose 2011 book, “Convicting the Innocent,” has earned rave reviews and provides the most comprehensive analysis to date of the causes of wrongful convictions later overturned through DNA testing.

I'll add a link to the site in the left-column webroll, "Innocence Projects & Resources."

Earlier coverage of Brandon Garrett and his book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

Commentary on AG's FSC Opinion Continues

Today's San Antonio Express-News carries the editorial, "AG ruling shouldn’t end Willingham case."

Gov. Rick Perry and his surrogates on the Texas Forensic Science Commission have done their best to stymie an investigation of the evidence that sent Cameron Todd Willingham to death row in 1992. The state of Texas executed Willingham in 2004 for the murder by arson of his three children.

Unfortunately, the Willingham case has became wrapped up in a larger debate about the death penalty, which in turn has implications for Perry’s political ambitions. Political considerations, however, should have no bearing on the outcome of this case.

And:

The Willingham case is not the only one in which the State Fire Marshal’s Office used flawed evidence to back up prosecutors. Yet even though the office has abandoned many of the procedures that produced that evidence, it has never acknowledged any error. It should.

Texans deserve to know whether bad evidence and the negligence or misconduct of arson investigators led to the flawed convictions of Willingham and others.

If the Texas Forensic Science Commission is unable to make a determination on this point, then a court of law or the Texas Legislature should.

Rick Casey's latest Houston Chronicle column is titled, "Law gets in way of science, again."  Here's an extended excerpt from the beginning of the column.

Attorney General Greg Abbott's recent official opinion on the law governing the Texas Forensic Science Commission has been widely described as "confusing."

It says, for example, that the commission can investigate the controversial arson findings in the case of Cameron Todd Willingham, the Corsicana man who was executed in 2004 for killing his three children by arson in 1991.

But there is one caveat, the attorney general says. The commission can't look at the evidence presented to the jury, since only evidence presented after the law's passage in 2005 is to be examined.

But if the attorney general's opinion is confusing, it's partly because the law as written is confusing.

In my (unofficial) opinion, the attorney general gave a reasonable interpretation. But so did Barbara Dean, the highly respected veteran attorney in his own office assigned to act as counsel for the commission. Until this year when the commission hired a staff counsel, she attended every meeting and advised members on their powers. She never raised an objection during their years-long Willingham investigation.

Then there was the reasonable opinion of Sen. Juan "Chuy" Hinojosa, D-McAllen, who has some standing as a lawyer and the co-author of the bill establishing the commission.

He told the Corsicana Sun in 2009: "There is no statute of limitations on anything the Forensic Science Commission does."

Hinojosa was aware that the law needed refining, as new laws often do. That's why this spring he pushed revisions that would have gone a long way toward cleaning up the law.

One of the main points of tension was whether the law's sole job was to make findings as to whether staffers of certified forensic labs were negligent in handling individual cases, or whether it was to critique any illegitimate use of forensic science in Texas criminal justice cases and work to improve the practice in the state.

The AG Opinon GA 866 is available in Adobe .pdf format.   Earlier coverage of the Attorney General's Opinion on the Forensic Science Commission's authority begins at the link.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

More on the Case of Larry Swearingen

Brandi Grissom writes, "In Murder Case, Science May Get Its Day in Court," for the Texas Tribune and the Sunday Texas edition of the New York Times.  Here's the beginning of this must-read examination of the case and its forensics.

Sandy and Charles Trotter already suspected the worst.

For 25 days, dozens of police officers, friends and family in slickers and rubber boots had tromped through the damp Piney Woods around Lake Conroe searching for any sign of their 19-year-old daughter, Melissa. Hundreds of fliers were strewn across the suburbs north of Houston. On Christmas Day, Mrs. Trotter had appeared on the local news pleading for anyone with information about their daughter to come forward. Nothing.

Then, on Jan. 2, 1999, hunters in the Sam Houston National Forest happened on a nightmarish scene: a petite woman’s corpse splayed on a mat of leaves, twigs and pine needles, her face badly decomposed, her chest exposed, a green sweater shoved up to her neck, a stark white sock on a foot that had worn the tennis shoe lying next to the body. Her fingernails were still decorated in green and red polish for the holidays. The leg of a pair of pantyhose was knotted around her throat.

For the Trotters, the news was devastating. “Her theme when she was a leader of the Rainbow Girls was the Serenity Prayer and ‘love thy neighbor,’ ” Mrs. Trotter said. “So that was kind of a tough deal.”

Larry Swearingen, an inmate at the Montgomery County Jail and the prime suspect in Melissa Trotter’s disappearance, did not take the news well either. “She was my friend,” he said.

Ms. Trotter had disappeared from Montgomery Community College on Dec. 8, 1998. Mr. Swearingen was among the last people to see her alive. Police arrested him on unrelated outstanding warrants three days after she went missing and immediately fingered him as the culprit. Evidence on her body and a pile of circumstantial evidence implicated Mr. Swearingen. A jury convicted him of kidnapping, raping and killing the teenager and sentenced him to death in 2000.

Since his conviction, though, at least 10 different reports from more than a half-dozen scientists have concluded that Ms. Trotter’s body tells a different story. Their examinations of her internal organs show that she was killed while Mr. Swearingen was behind bars. The inmate’s lawyers have pleaded with courts for years to review the science. So far, those efforts have failed. But after the Texas Court of Criminal Appeals last week issued a third stay of execution, Mr. Swearingen, a former electrician and father of five, and his lawyers hope they will get to present their evidence in court and exonerate him.

“I don’t want to die, not in here,” Mr. Swearingen, 40, said during a recent interview on death row. “I don’t want to be a pin cushion for the state.”

Earlier coverage of Larry Swearingen's case begins at the link.

Jordan Smith on the AG Ruling

This week's Austin Chronicle, out today, carries, "A.G. Ruling on Arson Probe Is 'Just Weird'.  Decision hog-ties commission's role in Willingham case."  It's by Jordan Smith.  In this excerpt, she quotes Sam Bassett, who served as the first Chairman of the FSC:

Bassett, the well-respected Austin defense attorney whom Perry appointed and then pulled from the panel in 2009, says he finds the timing of the opinion questionable. Moreover, he noted in an email that a representative from the A.G.'s Office attended all of the meetings over which he presided, and the issue of jurisdiction was never raised. "It is frustrating for me to now see them interjecting themselves into this debate years after the ... investigation has progressed and is about to reach a conclusion.

"The current position of the [fire marshal] that the investigators' original findings of arson are supported by fire science is absolutely untenable," he concluded. "I speculate that this has made a lot of politicians uncomfortable and this has something to do with the timing of the Attorney General's findings."

Indeed, the case could be kept alive and the commission could finish its investigation because the State Fire Mar­shal's Office last year wrote to the commission defending the science used to convict Willingham and Willis – despite the scientific consensus to the contrary. By standing by the old science, the state fire marshal has seemingly made the "evidence" of its practices contemporary – that is, post-Sept. 1, 2005 – which would still, even under the most conservative reading of the A.G.'s ruling, allow the commission to consider it during its inquiry.

Although the A.G.'s ruling is "frankly ... just weird," says Stephen Saloom, policy director for the Innocence Project, there is nothing in it that would prevent the commission from considering whether the fire marshal is negligent by relying on outdated science. "The central element [to our complaint] is that the fire marshal has been negligent and remains negligent to this day for not informing the criminal justice system [that] the old arson science is invalid," he said. Indeed, that is the view apparently shared by state Sen. Rodney Ellis, D-Houston, who also serves as the Innocent Project's board chair. "Nothing in this [A.G.] opinion prevents the [commission] from completing its report and ruling that the [State Fire Marshal's Office] was negligent when it failed in its 'duty to correct' the flawed arson science that was used in numerous arson cases," Ellis said in a statement. "They had a 'duty to correct' prior to 2005, when the [FSC] legislation took effect, and after 2005, and they have never done so."

Earlier coverage of the Attorney General's Opinon begins with the preceding post.

Editorials Criticize AG's FSC Opinion

Today's Corpus Christi Caller-Times carries the editorial, "New limit on state forensics panel is a justice setback."

Even the most ardent supporters of the death penalty want to be sure that the condemned deserve their sentence. If a conviction can be proved wrongful, it should be — not just to prevent a pending execution, but to clear the names of the mistakenly executed and to learn how not to repeat such grievous errors.

How far such efforts should go is a matter of continuing debate. But they should go farther than the limit placed on them Friday by Texas Attorney General Greg Abbott. The attorney general decided that the Texas Forensic Science Commission can't examine forensic testing that predates the commission's 2005 inception.

And:

Abbott's opinion doesn't prevent the commission from looking into professional negligence or misconduct that occurred before the commission's inception. It just can't review evidence that was tested or introduced into evidence before then. So, assuming — as we do — that forensic science has progressed, Abbott's decision prevents the application of today's knowledge to correct mistakes by investigators who acted competently and in good faith but were limited by the technology of the day.

We'll go out on a limb and suspect that Texas imprisoned people wrongly convicted before 2005, including some on Death Row. Forgoing the potential to correct those mistakes because the commission didn't exist yet isn't justice.

The jury is out on whether it's politics, but there's a whiff of that in the Willingham case.

"Forensic panel should be aggressive, despite AG opinion," is today's Dallas Morning News editorial.

A new and confusing attorney general’s opinion might appear to hem in the authority of the Texas Forensic Science Commission over cases dating back several years, no matter how rotten they smell.

But it doesn’t have to turn out that way — not if the commission charts an aggressive tack when it sees that justice has been ill-served. And it should be clear that the commission smells an odor in the Cameron Todd Willingham arson-murder investigation, which ended in Willingham’s execution.

Bewildering guidelines in Attorney General Greg Abbott’s opinion leave the door ajar if the commission wants to take the final steps and decide whether arson investigators were negligent in the Willingham probe. We urge members to settle that question, despite the numerous efforts of Gov. Rick Perry and others to head off a closer examination of this troubling case.

And:

Should Willingham’s arson investigators have said something about the evolution of standards? Absolutely. Did they have a duty to correct the record?

On that, the Forensic Science Commission has been clear. Its Willingham report from April said that forensic investigators must speak up and correct the record when re-examination is warranted.

That didn’t happen prior to Willingham’s execution, and it should have. Silence was tantamount to negligence. There are potentially hundreds of inmates in Texas prisons whose convictions are based on outmoded science, and the state fire marshal’s office can and should be called out on it.

"Texas AG's forensic ruling further clouds Todd Willingham case," is the title of a Fort Worth Star-Telegram editorial.

The point of asking the Texas attorney general for an interpretation of law is to find clarity and guidance.

But an AG's ruling on the authority of the Texas Forensic Science Commission seems to have added another convolution to those already encircling the case of Cameron Todd Willingham.

Attorney General Greg Abbott said the commission can continue looking into whether professional misconduct occurred in the arson investigation that led to Willingham's capital conviction -- but the panel can't evaluate specific evidence used to prosecute him.

That's more than a little confusing. And it adds more question marks to the commission's next steps in its Willingham inquiry.

And:

In July, Perry named Tarrant County Medical Examiner Nizam Peerwani chairman of the commission. Its next meeting is Sept. 9 in Austin, and a Saturday Star-Telegram news story quoted Peerwani as saying Abbott's ruling would be discussed.

It would be unfortunate if, after all the time and effort the commission put into examining the Willingham case, a final conclusion is precluded. But the work done so far has produced valuable recommendations for essential improvements in arson standards and training. Making those changes will strengthen the accuracy and fairness of criminal prosecutions -- and add certainty to the punishments the state administers.

AG Opinon GA 866 is available in Adobe .pdf format.  Earlier coverage of the Attorney General's Opinion regarding the FSC begins at the link.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

AG Opinion Limits FSC Investigations - UPDATED

AG Opinon GA 866 is available in Adobe .pdf format.  Here is the Opinion Summary:

Although the Forensic Science Commission may conduct investigations of incidents that occurred before September 1, 2005, the law that created the Commission prohibits the FSC from considering evidence that was tested or offered into evidence prior to that date.  The Forensic Science Commission’s investigative authority is limited to those laboratories, facilities, or entities that were accredited by the Department of Public Safety at the time the forensic analyses took place. The FSC may not investigate fields of forensic analysis expressly excluded from the statutory definition of “forensic analysis.” Forensic analysis that is neither expressly included nor excluded by the Act or DPS rule, but that falls under the generic definition of “forensic analysis” found in section 38.35(a)(4), is generally subject to FSC investigation, assuming all other statutory requirements are satisfied.

"AG says Forensic Science Commission can’t consider Willingham case, others before Sept. 2005," is Tim Eaton's post at the Austin American-Statesman.

Texas Attorney General Greg Abbott said today that the Forensic Science Commission is prohibited from considering evidence that was tested or offered into evidence prior to Sept. 1, 2005.

The result of the ruling is that commission didn’t have the authority to look into the case of Cameron Todd Willingham, who was convicted in 1992 in the 1991 deaths of his three children, who died in a Corsicana house fire that jurors decided he set. Willingham was executed in 2004.

The AP filing is, "Texas AG: Forensic panel can't consider older evidence in Willingham case," by Christopher Clausen.  It's via the Beaumont Enterprise.

Texas Attorney General Greg Abbott ruled Friday that the state's Forensic Science Commission can't consider evidence that was tested or offered into evidence in court prior to Sept. 1, 2005, the official date set by the Texas Legislature.

That blocks the commission's formal review of the case of Cameron Todd Willingham who was executed in 2004 for the 1991 deaths of his three children, who died in a Corsicana house fire that jurors decided he intentionally set.

And:

In 2008, the Innocence Project - which works on behalf of those it believes were wrongly convicted - filed a complaint with the Forensic Science Commission and alleged professional negligence and/or misconduct by arson investigators in the case.

The State Fire Marshal's Office and Corsicana Fire Department objected to the Willingham investigation, saying the commission did not have authority to examine the case. While proceeding with its investigation, the commission asked the Attorney General's Office to decide the question.

The commission ultimately issued a on the Willingham that found arson investigators relied on now-discredited practices to conclude the fire was intentionally set.

The case has both scientific and political angles.

Allan Turner posts, "AG: Forensic panel off the Willingham case," at the Houston Chronicle.

Forensic commissioners, who in April issued broad recommendations for improving fire investigations in Texas, asked Abbott to rule on the extent of their authority.

Abbott responded that the panel lacked authority to review complaints that involved unaccredited forensic laboratories. At the time of the arson investigations, the state had no mechanism for such certifications.

Additionally, Abbott concluded that while the commission may consider cases that occurred before the panel's Sept. 1, 2005 birth, it did not have authority to review evidence that was tested or offered into evidence before that date.

And:

Steve Saloom, policy director for the New York-based Innocence Project, which had asked the commission to review the quality of the arson probes,says responded that Abbott's ruling does not preclude the commission from considering a key assertion in the complaint: The state fire marshal's office failed in its duty to apprise authorities when investigation protocols were dramatically improved.

That responsibility, he said, existed before Sept. 1, 2005, but continues through today.

"Texas attorney general blocks forensic panel from continuing Willingham case," by Yamil Berard is from the Saturday edition of the Fort Worth Star-Telegram.

Current commission Chairman Nizam Peerwani declined to comment on specifics but said the commission will take up the matter at its next meeting.

"What we intend to do is open up the discussion at our September meeting and determine how each commissioner feels about the opinion," said Peerwani, the Tarrant County chief medical examiner.

The opinion gives the commission some latitude for investigating pre-2005 cases. It states that though the time limitation prohibits the commission from taking any action with respect to forensic evidence tested or offered in court before Sept. 1, 2005, there is no limitation on the commission's power to investigate any allegation of professional negligence or misconduct.

Under that provision, said state Sen. Rodney Ellis, D-Houston, the commission should continue its review of the Willingham case.

"Nothing in this AG's opinion prevents the Texas Forensic Science Commission from completing its report and ruling that the fire marshal was negligent in its failure to correct the flawed arson science that was used in numerous arson cases," Ellis said in a statement.

And:

The commission's April report included other broad findings and recommendations based on issues raised by the its inquiry into the Willingham case and the case Ernest Ray Willis, who spent 17 years on Death Row after being convicted of setting a fire that killed two women. Prosecutors dropped the case against Willis after an inquiry suggested that the fire was an accident.

The report found that many forensic investigators in Texas lacked necessary resources or fell short on the scientific background needed for the work. It called for a uniform standard of practice and a code of ethics and said investigators should be better-trained in documenting their analyses and preserving records.

In the Willingham case, a debris analysis report could not be found.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

CCA Orders Stay in Larry Swearingen Case - UPDATED

The Texas Tribune reports, "Criminal Appeals Court Grants Rare Execution Stay."  It's by Brandi Grissom.

In a rare move today, the Texas Court of Criminal Appeals, the state’s highest criminal court, stayed the scheduled August 18 execution of Larry Swearingen.

He was convicted of the 1998 rape and murder of 19-year-old Melissa Trotter. The Montgomery Community College student’s body was discovered in the Sam Houston National Forest on Jan. 2, 1999, nearly a month after she disappeared from campus. Witnesses said they saw Trotter leaving the campus with Swearingen on Dec. 8, 1998 — the last time she was seen alive.

Swearingen’s lawyers have filed repeated pleas in state and federal court urging jurists to consider their arguments that forensic science proves that the 40-year-old inmate could not have committed the crime, because he was in jail when Trotter was murdered.

And:

Entomologists, pathologists and an anthropologist who examined the evidence from Trotter’s body have said that she could not have been in the forest for longer than two weeks. Her body, the experts report, showed only enough decomposition to have been in the woods for a few days to, and at most, two weeks. That means her murder would have happened after Swearingen was jailed.

In 2007, Dr. Joye Carter, the Harris County medical examiner who testified at Swearingen’s trial that Trotter had been in the forest for 25 days, reviewed new evidence and submitted an affidavit in which she concluded the murder happened within two weeks of the day Trotter's body was discovered.

James Rytting, Swearingen’s lawyer, said he hopes the stay will give defense lawyers the opportunity to have a full court hearing on the forensic science.

The CCA order staying the execution is available in Adobe .pdf format.

Earlier coverage of Larry Swearingen's case begins at the link.

UPDATE - The Saturday Houston Chronicle carries, "Condemned inmate Swearingen gets reprieve."  It's written by Renee C. Lee.

Death row inmate Larry Swearingen has dodged an execution date for a third time in the 1998 slaying of a Montgomery County college student.

The Texas Court of Criminal Appeals ruled Thursday that new evidence in Swearingen's appeal raised the issue of due process violation. The court remanded the case to the 9th state District Court in Montgomery County for a hearing.

Swearingen was set to die by lethal injection Aug. 18. He won reprieves in January 2007 and January 2009, each handed down a day before his execution.

Swearingen's attorney, James Rytting, said his client was convicted on false forensic testimony. A former Harris County medical examiner who testified during Swearingen's capital murder trial changed her testimony in 2007.

"It was a courageous decision by the Texas Criminal Court of Appeals," Rytting said. "It was the right decision, and it acknowledges the science in this case is powerful proof that Mr. Swearingen could not have committed the crime."

The Case of Larry Swearingen

Steve Mills writes, "Another case could raise tough questions for Gov. Rick Perry: With death row inmate Larry Ray Swearingen, timing of murder is the issue," for the Chicago Tribune.

As Texas Gov. Rick Perry considers a presidential run, another death penalty case with tough questions about scientific evidence may become an issue. In this case, Perry would decide whether to proceed with the execution.

Larry Ray Swearingen is on death row for the December 1998 kidnapping and murder of Melissa Trotter. At issue is scientific evidence that estimates when Trotter was murdered. That is crucial because she disappeared Dec. 8, 1998, and her body was found more than three weeks later, on Jan 2, 1999, in the Sam Houston National Forest.

Swearingen was taken into custody and jailed Dec. 11, 1998, on other charges, then charged with the murder. His lawyer insists he could not have committed the crime because he was in jail when it happened.

At trial, a former chief medical examiner from Houston testified that Trotter had been dead about 25 days. That time frame made it possible for Swearingen to have committed the crime before he was taken into custody.

As Swearingen appealed his conviction, though, his lawyers found forensic experts, including some of the state's leading medical examiners, to study the case. Those experts determined Trotter had been dead only several days when her body was found. What's more, the prosecution's lead witness re-examined the case and said she had been wrong in her trial testimony. She said Trotter had been killed as long as 10 days after Swearingen had been arrested.

Earlier coverage of the Swearingen case begins at the link.  Mills' article is a sidebar to an examination of the Todd Willingham case - and its possible signifigance to Rick Perry and politics.  It's next up.

San Antonio Columnist on the Willingham Impact

San Antonio Express-News columnist Ricardo Pimentel writes, "Execution's aftermath hurts Perry."

Cameron Todd Willingham.

Three words that should, in a just world, derail a Rick Perry presidency aborning.

Willingham was executed in 2004, convicted in the arson deaths in Corsicana of his three children, the oldest 2 years old.

That Willingham was innocent — if not accepted outright — now seems considered a probability of such a high degree that it nags at the conscience. Perry refused a Willingham request for a stay of execution. Hearst Newspapers sued to get the clemency report, so far an unsuccessful effort.

But that Perry allowed this execution really isn't the primary reason he shouldn't be president.

No, the main reason Perry shouldn't be president lies in what occurred five years after Willingham was executed. On the virtual eve of key testimony before the Texas Forensic Science Commission on the soundness of the evidence that convicted Willingham, Perry ousted three members of the commission, immediately replacing two of them. The new head became Williamson County District Attorney John Bradley.

It's hardly novel in Texas for holdover appointees to serve well after expired terms. So why the necessity — in the midst of a crucial inquiry — to replace three members whose terms had just expired?

Here's one clue: Bradley canceled the meeting at which damning testimony pointing to Willingham's innocence was to occur. This happened as Perry was looking at a primary election battle against U.S. Sen. Kay Bailey Hutchison.

This is typically considered sweeping unsavory matters under the rug or, more colloquially, covering posteriors.

And:

But blocking testimony that might cast some light on whether the state executed an innocent man? To avoid political embarrassment and damage?

That is what's disqualifying here.

Earlier coverage of Todd Willingham's case begins at the link.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Dallas Morning News Editorial - The Lege

"A mixed bag of wins and losses in Austin on our priorities," is the title of an editorial in today's Dallas Morning News.

At the beginning of 2011, this newspaper identified six priority areas where we wanted leaders to “stand and deliver” solutions to stubborn problems. Here is our assessment of how lawmakers did in the regular legislative session that just ended in Austin.

And:

Getting it right on criminal justice

Give the Legislature high marks for adopting safeguards against wrongful convictions.

Shepherded by Sen. Rodney Ellis , D-Houston, and Rep. Pete Gallego, D-Alpine, the most badly needed reform sets standards for police agencies in conducting eyewitness lineups. Another allows defendants new post-conviction access to DNA evidence. Legislation by Sen. Wendy Davis, D-Fort Worth, sets a timeline for police agencies to have rape kits tested to try to solve cases. And one more bill extends compensation eligibility to Anthony Graves, who was railroaded and put on death row for a killing spree that took six lives; he was exonerated last year.

The governor should sign these bills.

Lawmakers leave important unfinished business, including reforms to record confessions of felony suspects and to ban the offer of leniency in exchange for accomplice testimony in a death penalty case. And at long last, lawmakers should create a special commission to study wrongful convictions and find ways to improve the system.

Earlier coverage of the Texas Legislature's 82nd Regular Session begins at the link. Related posts are in the Texas Legislature index.

The Regular Session eneded Monday.  Lawmakers are currently meeting in a Special Session.  The agenda is limited to items specified by the governor.

NPR Examines Use of Psychological Assessment Tool

The NPR report by Alix Spiegel is, "Can A Test Really Tell Who's A Psychopath?"  Here's an excerpt from this must-read: 

Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.

Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born.

"In those days, social factors, environmental factors were the explanation for all crime," Hare says. "When you're born, you're a blank slate, and I can train you to be anything you want — a doctor, a dentist."

Hare, for one, didn't fully buy this. He thought inborn personality was important. He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.

"We have individual differences in intelligence," Hare says. "Well, we should have individual differences in the personality traits that are responsible or related to crime."
Robert Hare, the psychologist who created the PCL-R test for psychopaths, at first resisted giving the checklist to people in the criminal justice system. But he ultimately agreed to publish the test officially so anyone could use it.

Hare set out to dissect the personality traits that might predispose people to criminality. To do this, he recruited the help of inmates at a prison some 30 miles down the road from his office at the University of British Columbia.

"The offenders in those days had hardly ever been studied," Hare says, "and they were very interested in what I was doing. They would all volunteer. And in fact, one of the head inmates there — the one at the top of the heap — actually held a public address (because in those days they could congregate in groups of four or five hundred) and said, 'Look, this sounds interesting, I'm in.' And then everybody else said, 'I'm in, too.' "

Hare set up a lab and started pumping out studies on the prisoners.

And:

Ultimately, this work led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse.

"It's sort of like trying to explain to a colorblind person what the color red is," Hare says. "Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but the person will never quite get it."

The NPR series is a topic of a post at  the Forensic Psychologist blog post, "PCL-R inventor wringing his hands over forensic misuse."

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

    While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

    "I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

    In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

    "I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

    “ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

NPR has also assembled, "Expert Panel: Weighing The Value Of A Test For Psychopaths," by Patrick Waters.

Many psychologists believe that psychopaths are almost bound by nature to commit crime. So if psychopaths can be accurately identified, their menace to society can be contained. That's the hope, at least.

But there is real debate about how to diagnose a psychopath and the usefulness of the tools available to do it. A test developed by psychologist Robert Hare called the Psychopathy Checklist-Revised, or PCL-R, is widely used in the criminal justice system -- before trial, during sentencing and even in parole and death-penalty decisions -- to evaluate a person's psychopathic tendencies.

Some psychologists believe the PCL-R is a critical tool in predicting which offenders pose the greatest risk. Others see the test as too vulnerable to human bias and question its place in the criminal justice system. We asked three experts in the field of forensic psychology to weigh in.

The individual essays are:

• Masking Bias With Science by Karen Franklin
• Identifying The Bad Apples by Henry Richards
• An Unreliable And Stigmatizing Tool by John Edens

Related posts are in the mental illness and expert witnesses indexes.

Genetics & Violence

Arizona Republic columnist E.J. Montini writes, "Eventually, science will kill capital punishment."

We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene."

I'm pretty sure we didn't want to know. We wanted him dead.

Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.

"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.

He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior.

"Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."

For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty.

"There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.

The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young.

"At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."

The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.

And:

The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.

Related posts are in the forensics and mental illness indexes.

Humberto Leal

SA Current, San Antonio's alt-weekly, features, "Illegal injections: How Texas is breaking the law, one execution at a time," written by Michael Barajas.  Here's the beginning of this lengthy examination of the case with its tangled issues:

In the early hours of May 21, 1994, 16-year-old Adria Sauceda and dozens of others attended a raucous Southside house party on Vincent Street, where witnesses reported seeing a dazed Sauceda — pumped full of alcohol, cocaine, and marijuana — pulled to the backyard. There she was stripped and circled by eight or nine men, each “taking turns” on the disoriented teenager. Friends who came to her aid were told to shut up, drink, and quit spoiling the party.

Later that morning, Humberto Leal, Jr. showed up, furious about what had happened to Sauceda, according to witnesses. He insisted on taking the girl home, saying she was a neighbor of his. Hours after Leal drove off with the victim in his father’s 1977 Mercedes, police found the girl’s naked and beaten body in a field just yards away from the house. She had been repeatedly raped, lastly with a crude wooden plank, and bludgeoned to death.

The account of that tragedy, pulled from hundreds of pages of trial transcripts and case files, is complex and, Leal’s defense now claims, filled with holes. Leal has always claimed he left the party with the victim that drunken night, and admitted to police he may have accidentally killed her during an alcohol-fueled fight on the side of the road. But for over a decade, Leal has denied he ever kidnapped or raped the victim.

But Leal’s imminent execution is now entangled in a controversy that has dogged the administrations of two U.S. presidents. Set to die by lethal injection this summer, the execution of the Mexican national flies in the face of international law, the wishes of the Mexican government, and even the U.S. Supreme Court. Leal, born in Monterrey, Mexico, is one of 50 Mexicans sitting on death row who have been charged, tried, and sentenced to die without gaining access to Mexican consular officials — a clear violation of a long-standing international treaty that protects thousands of Americans arrested abroad each year.

Leal’s lawyers claim the lack of access to the Mexican consulate sabotaged his case from the start, equipping him with a hopelessly inadequate defense team that failed to challenge the case against him. A review of the trial, they say, reveals a shoddy investigation that left more questions than answers in the wake of Sauceda’s brutal 1994 slaying.

While denied a retrial and, as of yet, the ability to re-test a crucial piece of evidence that secured his conviction, Leal’s lawyers say a judicial review, as requested by numerous U.S. and Mexican officials, would give the case a fair shake and flush out any uncertainty that still looms over the investigation into the teenager’s tragic murder.

Leal has a July 7th execution date.

Related posts are in the foreign citizen index.

Texas Senate OK's Changes to FSC

"Texas Senate approves bill that would change Forensic Science Commission," by Yamil Berard for the Saturday Fort Worth Star-Telegram.

A state panel tasked with weeding out junk science in the criminal justice system would get broader powers under a bill approved by the Texas Senate on Friday.

Senate Bill 1658 would let the Texas Forensic Science Commission launch an investigation without having to wait for a complaint to be filed.

"It is a positive improvement," said defense attorney Sam Bassett, the commission's former chairman.

But some call the bill an effort to keep information from the public and ensure that the commission is under the governor's control.

"This has the governor's fingerprints all over it," said Stephen Saloom, policy director for the Innocence Project.

Bassett and other critics said they worry about provisions that would allow Gov. Rick Perry to appoint all commission members. Currently, the commission's nine members are appointed by the governor, lieutenant governor and attorney general. The bill would reduce the commission to seven members, all appointed by the governor.

Sen. Rodney Ellis, D-Houston, said that though he supports what the bill is trying to accomplish, he has "major concerns." Allowing the governor to appoint all members is "a fatal flaw," he said.

"This bill is still a starting point, and if it is not cleaned up, Texas will be worse off with it."

Others are concerned about a provision that would close the public's access to the commission's investigations. The bill would exclude all the information from being subject to the Texas Public Information Act. It would also limit the public's access to cases in which criminal charges are no longer pending or an appeal is in process.

"A central purpose in creating the commission was to create public faith in the investigations," Saloom said. "If you deny public access to all this information .. there's little sense in even having the commission."

On Friday, the governor's office deferred comment to the bill's sponsor, Sen. Juan "Chuy" Hinojosa, D-McAllen.

"Senate OKs Forensic Science Commission Bill," by Brandi Grissom for the Texas Tribune.

State Sen. Juan "Chuy" Hinojosa, D-McAllen, said SB 1658 was intended to clear up confusion over the role of the Forensic Science Commission, which has been embroiled in an investigation of the Cameron Todd Willingham case for about two years.

Willingham was convicted of setting fire to his Corsicana home and killing his three daughters in 1991, but he maintained his innocence. Following his execution in 2004, fire science experts questioned the evidence used to convict him.

The commission received a request from the Innocence Project, a New York-based group that seeks to exonerate wrongfully convicted people, to review the Willingham case for professional negligence in 2006. It took up the case 3 years later, but the investigation has been fraught with political uproar that has stymied the process.

The commission has approved a final draft of its report on the Willingham case, but the nine-member board declined to make a final ruling about whether there was professional misconduct or negligence on the part of arson investigators because it has been seeking clarification on its jurisdiction from Attorney General Greg Abbott.

Under Hinojosa's bill, the commission would have jurisdiction to investigate the work of both accredited and unaccredited crime labs. It would also be able to initiate investigations of forensic science procedures on its own, without an outside complaint. The bill would clarify that the commission's role is not to issue a determination of guilt or innocence in any case. And it would prohibit the use of commission reports in any civil or criminal litigation.

The AP report is, "Bill would refine duties for Texas forensic panel.  It's by Sommer Ingram and via the Beaumont Enterprise.

Hinojosa's bill would eliminate two commissioners, leaving a 7-member panel composed of a prosecutor, defense attorney and five other forensic science experts. He said the panel's new make-up will make the commission geared more toward expert advice and knowledge of forensics while adding expertise of the courtroom.

The legislation affirms that the commission's role is to determine whether any junk science is used in arson cases, but not to rule on guilt or innocence in the case. A report issued by the commission can't be used as evidence in criminal or civil court.

It now goes to the House for consideration.

Earlier coverage of the Forensic Science Commission begins at the link.

Still More on Denkowski Payments From Harris County

Mike Tolson posts, "Psychologist takes slap on wrist, forfeits lucrative niche practice," at the Houston Chronicle MedBlog.

Fort Worth psychologist George Denkowski lost not only a large share of public credibility when he agreed to accept a slap on the wrist from the Texas State Board of the Examiners of Psychologists, but he also forfeited a lucrative niche practice doing evaluations of capital murder defendants or death row inmates whose lawyers are making a claim of mental retardation.

How lucrative? Invoices from Harris County show payments of more than $307,000 to Denkowski from 2003 through 2008. The good news for the good doctor is that business was dwindling anyway. Most of those murderers or alleged murderers with so-called Atkins claims have already been evaluated. Only a small portion of the new capital murder defendants likely will make such claims, and Harris County capital murder trials where the death penalty is sought have reached historic lows anyway.

The evaluations became necessary following a 2002 decision by the U.S. Supreme Court that spared those with mental retardation from execution. Not surprisingly, many inmates and defendants around the country raced to the courthouse asserting retardation. A small percentage achieved success. Most of those claims required fresh evaluations from psychological experts.

Denkowski became the go-to psychologist for local prosecutors. Most of the time - about 80 percent - he found that the subject was not retarded, which helped preserve 16 death sentences from Harris County. In four cases, he agreed with defense lawyers, resulting in life sentences for their clients. But along the way, Denkowski's methods became controversial. Many other experts in the field said no science existed to justify his unusual approach, which often involved adjusting IQ scores upward because certain "adaptive behaviors" showed the subjects were really smarter than they first appeared.

And:

"This is no less a matter of scientific concern than what we found out was happening with the crime lab," Kase said, referring to faulty forensics uncovered at the Houston Police Department's crime lab nearly a decade ago. "We began to review all of those cases. Why wouldn't we do that here? And unlike most of those cases, these are cases where men's lives are at stake. This man was raising scores on psychological instruments based on factors not used in psychology."

Earlier coverage of the Denkowski sanction begins at the link.