1. law, govt and politics

Case No. 86-452-K26
THE STATE OF TEXAS
V.
MICHAEL W. MORTON
§
§
§
§
§
IN THE 26" JUDICIAL
DISTRICT COURT OF
WILLIAMSON COUNTY, TEXAS
MOTION TO RECUSE WILLIAMSON COUNTY DISTRICT ATTORNEY
AND FOR APPOINTMENT OF INDEPENDENT PROSECUTOR
Defendant-Movant Michael W. Morton, by and through undersigned co-counsel, hereby
submits this Motion to Recuse the Williamson County District Attorney, John Bradley, and his
Office from its role as counsel for the State of Texas in the above-referenced matter, and for
appointment of an independent prosecutor to investigate the 1986 murder of his wife, Christine,
in light of new DNA evidence that establishes Defendant's factual innocence of this heinous
crime. In support of the Motion, Defendant respectfully submits the following:
Introduction
Almost twenty-five years ago to the day, on August 13, 1986, Christine Morton was
found bludgeoned to death in the home in Georgetown that she shared with her husband,
Michael, and the couple's three-year-old son, Eric. In 1987, the State convicted Michael Morton
of the murder - even though there were no eyewitnesses or direct evidence of any kind that
connected him to the crime, and even though he was, by all accounts, a faithful and loving
husband and father with no criminal record, nor any history of violence whatsoever against his
wife or any other person. The State's theory was that Michael, in a sudden rage, beat his wife
and the mother of his only child to death in their own bed, simply because Christine was too tired
to have sexual relations with him after they returned from celebrating his 32' birthday at a
restaurant the previous evening. The State argued that Michael left a feigned note to Christine
(with an "I love you" signoff) nonetheless referencing his true motive, i.e., a dispute over sex;
staged the crime scene to look like a robbery-murder, as part of which he managed to dispose of
Christine's purse and his own gun before arriving at work at 6 A.M. the next day; and, perhaps
most remarkably, went to work fully understanding that his 3 year old son, left alone in the
house, would find his murdered mother.
For the last twenty-five years, Michael has maintained that he had nothing to do with his
wife's death, and that she must have been killed by an unknown intruder after he left for work
early that morning. To that end, he and his longtime pro bono counsel have spent more than six
years trying to obtain and waiting for the results of advanced DNA testing - ultimately ordered
over the present District Attorney's persistent and determined objections - to prove the truth of
his claim of factual innocence and further identify the true perpetrator of his wife's murder.
That day has finally arrived. On June 30, 2011, the Orchid Celimark laboratory issued to
both parties a DNA testing report revealing that Christine Morton's blood and hair were detected
on a stained bandana recovered from an abandoned construction site over a hundred yards away
from the scene of the crime, on the exact route that Defendant's trial counsel alleged the real
perpetrator had most likely fled after committing the murder. Moreover, Celimark found that
Christine Morton's blood and hair were commingled on the bandana with the DNA profile of a
single, male individual who is not Michael Morton. See Report of Laboratory Examination
dated June 30, 2011 (attached hereto as Exhibit A).
On Tuesday, August 9, 2011, counsel for both parties were informed by the Texas
Department of Public Safety that a "hit" had been obtained in the national convicted-offender
DNA database to the actual source of the DNA mixed with Christine Morton's blood and hair on
the bandana. That individual has been identified, at this writing, as a person whose sample was
collected in accordance with the laws of the State of California. Under national database
regulations, California officials may not release the individual's name or any identifying
information (including whether he is alive or dead; still in prison or out of custody; or the nature
of his prior conviction(s)) to Texas officials until California first "confirms" the hit by re-testing
an original DNA sample from that individual. Although that confirmation process typically
takes one month, because Mr. Morton is presently incarcerated for the crime, Texas DPS
officials informed the undersigned that they asked, and California officials agreed, that the
matter be given "rush" priority.
Yesterday afternoon, the undersigned were informed that the California laboratory had
confirmed the correctness of the original "hit." Counsel were also provided with the name of,
and basic identifying information pertaining to, the convicted offender in question.
Thus, nearly twenty-five years after Christine Morton was murdered, the State of Texas is
finally poised to correct an unimaginable injustice that was perpetrated against her husband - a
man who was not only wrongfully convicted and imprisoned for over two decades, but who was
left a widower and lost custody of his only child while the person who actually committed the
crime eluded detection.
There are no words to fully describe the ordeal that Michael Morton and his family have
endured over the last quarter century. But because of the unusually tortured history of this
particular case - as well as the animus that the present District Attorney, John Bradley, has
developed towards Mr. Morton and his counsel during that time - it is difficult, if not impossible,
to imagine that Mr. Bradley will ever bring himself to try to utter them. More than mere words
of apology are required of the State at this juncture, now that DNA technology and the national
convicted-offender database have turned the prosecution of Michael Morton on its head. Justice
demands a rigorous and unbiased investigation into the true circumstances of Christine Morton's
death, and an explanation as to how her grieving husband was wrongfully charged and convicted
of the crime. Because Mr. Bradley clearly cannot be expected to play that role, he should recuse
himself from the matter immediately, or be recused by this Court. This is so for two principal,
interrelated reasons:
First, for Mr. Bradley to admit the obvious - that the new DNA evidence is powerful
proof of Michael Morton's innocence - he will have to acknowledge more than just an
embarrassing misjudgment that cost Michael Morton more than five years behind bars, more
than just the use of inappropriately bitter rhetoric, and more than just a substantial expenditure of
taxpayer dollars to block the testing. He will also have to acknowledge that he knowingly
suppressed other evidence of Mr. Morton's innocence that had been in the State's files for over
twenty years. These critical documents in the State's investigative file were finally obtained
through a public records act request to the Williamson County Sheriff's Office ("WCSO") that
Mr. Bradley personally opposed. They immeasurably strengthen the claim that Mr. Morton first
presented to this Court in 2005 - that Christine was killed by a third-party intruder, and that he
should be given an opportunity to prove it through DNA testing - a theory that Mr. Bradley
derided as unworthy of serious consideration during the entirety of the Chapter 64 proceedings.
The materials that Mr. Bradley failed to bring to this Court's attention include, among
other leads, a chilling taped police interview by the WCSO's chief investigator of the victim's
own mother, just one week after Christine's funeral. The transcript of the interview reveals that
(1) the victim's mother reported that her grandson, Eric, had personally witnessed the murder,
(2) Eric not only gave a detailed (and factually corroborated) account of the crime, but was
certain that a man who was not "Daddy" actually murdered Christine, and (3) the victim's
mother urged the WCSO's investigator to abandon the theory that the crime was "domestic" in
nature and to instead - in her words - go out and "look for the monster" who committed the
crime; and (4) the investigator resisted, suggesting instead (and without any supporting evidence)
that Michael might have committed the murder while wearing a scuba diving suit that made him
unrecognizable to his only son. Having failed to disclose this extraordinary document (as well
as, it appears, others with leads to the real killer that were not pursued by the State and/or
disclosed to trial counsel) during the entirety of this Court's Chapter 64 proceedings, and having
unsuccessfully tried to block Defendant from obtaining them through the Public Information Act
while the claims were on appeal, Mr. Bradley surely cannot be trusted to impartially investigate
the case now. Nor would any investigation headed by his office have the appearance of fairness
that the law requires.
Second, Mr. Bradley's ability to seek impartial justice is further compromised by his
deep personal animosity towards Mr. Morton's counsel. During the pendency of these DNA
testing proceedings, Mr. Bradley was appointed by Gov. Perry to chair the Texas Forensic
Science Commission, an investigative body that was charged with, among other things,
investigating several matters initially presented to the Commission by the Innocence Project the same organization that has represented Mr. Morton in these proceedings for the last decade.
The most widely-heralded matter before the FSC was a request by the Innocence Project that the
Commission examine whether flawed forensic evidence may have contributed to the wrongful
execution of a Texas man named Cameron Todd Willingham -- one who (like Michael Morton)
was convicted of murdering his family member(s) over his longtime protestations of innocence.
During Mr. Bradley's tenure as chairman of the Commission, he did not merely have
substantive disagreements with the Innocence Project and others who urged the Commission to
make findings regarding the flawed forensic evidence in the Willingham case, but repeatedly
derogated the work and integrity of the Innocence Project itself - including repeated personal
attacks against its director, Barry Scheck (one of Mr. Morton's longtime counsel), and its Board
Chair, Texas State Senator Rodney Ellis. Mr. Bradley's personal animus towards Mssrs. Ellis
and Scheck, and his snide characterization of Mr. Willingham as a "guilty monster" while the
inquiry was still pending before the FSC, subjected Mr. Bradley to a flood of criticism statewide,
and was widely cited as the reason why even the Republican-controlled State Senate did not see
fit to reappoint him to that position this year.
For the foregoing reasons, and pursuant to the authorities set forth herein, Defendant
respectfully moves that Mr. Bradley recuse himself and his office from further participation in
the State's investigation into Christine Morton's death, so that this Court can appoint an
independent prosecutor to conduct a full and prompt review of the case at this critical juncture.
If Mr. Bradley declines to do so, Defendant requests that this Court enter an order of recusal
accordingly. In the alternative, Defendant requests that this Court directly supervise the State's
investigation into the identity and culpability of the prisoner identified as the source of the DNA
on the bandana containing Christine Morton's hair and blood, so that Mr. Bradley's office does
not taint that investigation through misconduct or the further suppression of information that is
material to Defendant's claim of actual innocence.
Background
The underlying crime at issue here, and the evidence presented at Defendant's trial, are
well known to this Court from its years of presiding over the instant Chapter 64 litigation. They
were also set forth in considerable detail by the Court of Appeals in its recent opinion granting
Defendant's request for DNA testing of the bloody bandana. See In Re Morton, 326 S.W.3d 634
(Tex. App.-Austin) (Jan. 8, 2010). Defendant hereby incorporates the facts set forth in that
opinion by reference, as well as the Statement of Facts set forth in his original Motion for
Postconviction DNA Testing filed in this Court on February 11, 2005.
The specific, additional facts relevant to this Motion to Recuse are as follows:
A. Mr. Bradley's Unwavering Opposition to DNA Testing
Defendant first moved this Court for DNA testing on the bandana and other items more
than six years ago, in February 2005. Prior to filing his Motion pursuant to Chapter 64 of the
Code of Criminal Procedure, his undersigned pro bono counsel sought to cordially enlist Mr.
Bradley's cooperation and consent to the relief sought. Those efforts included numerous
telephone conferences with Mr. Bradley during the weeks prior to the date the motion was filed,
letters to Mr. Bradley and his staff, and travel to Williamson County by Houston- and New
York-based counsel in July 2005 to personally meet with Mr. Bradley about the case. Further,
although Chapter 64 provides for DNA testing at state expense to persons like Mr. Morton who
are indigent at the time they seek testing, counsel offered to pay for all costs of the testing so that
Mr. Bradley would be able to represent to his constituents that agreeing to the requested relief
could not only exonerate a convicted person and identify the true perpetrator, but could be
conducted at no cost to the County.
Those initial entreaties were uniformly rebuffed. Over the ensuing six years of litigation,
Mr. Bradley and his representatives opposed each and every request for DNA testing made by
Mr. Morton and his counsel, in both state and federal court, at the trial and appellate level. He
opposed DNA testing not only on the bloody bandana itself (although he reserved his most
pointed opposition for that item — see State's Resp. to Mot. filed Oct. 20, 2005, at 12-15), but
also on other items of evidence that the State had collected at the scene, such as the victim's
vaginal swabs and fingernail clippings. He opposed DNA testing notwithstanding the fact that
another unsolved murder in the County bore a highly similar modus operandi to the distinctive
facts of this crime (similarities so plain as to lead the Court of Appeals to remark that
comparative testing would "both exhibit prudent investigative practice and serve the interests of
justice," see In Re Morton, 326 S.W.3d at 646, even if it could not be compelled under the
current version of Chapter 64).' And perhaps most notably, he opposed DNA testing
notwithstanding the fact that he never denied the fundamentally scientific potential for such
testing to prove Mr. Morton's innocence: that advanced STR-DNA testing methods could now
permit the State not just to exclude Mr. Morton as the source of male DNA from any or all of
these items, but to affirmatively identify the true perpetrator through the national DNA database.
Of course, however erroneous and unwavering Mr. Bradley's opposition to DNA testing
may have been, he is not the first prosecutor in Texas or elsewhere to oppose DNA testing
sought by a convicted person who is later exonerated by court-ordered testing. But two features
of Mr. Bradley's opposition to Mr. Morton's claims during these years of needless litigation
This view of Mr. Bradley's intransigence was shared by other courts, regardless of
whether they ultimately concluded that they had the legal authority to order DNA testing over
the State's objection. See, e.g., Morton v. Bradley, No. A-08-CA-597-SS (U.S.D.0 W.D.Austin) (June 19, 2009), at 18 ("[T]his Court questions [the Williamson County District
Attorney and Sheriff's] rationale for rejecting the Plaintiffs' offer to conduct DNA and other
testing at their own expense, particularly in light of their duties to uphold the Constitution and
seek and provide fair and impartial justice").
would significantly compound the prejudice to Mr. Morton and public distrust of the integrity of
any ensuing investigation were Mr. Bradley to continue to represent the State at this new, critical
juncture in the case. First, Mr. Bradley repeatedly mocked the positions taken by Defendant and
his counsel during the litigation in an unprofessional fashion. For example, he derided Mr.
Morton's request to be allowed to perform comparative DNA testing on evidence from the scene
of his wife's murder with that of a similar, unsolved murder in the Mortons' former
neighborhood as "silly" (DNA Could Overturn 21-Year Wrongful Conviction, KXAN-TV
(Austin), Aug. 6, 2008). He dismissed counsel's continued efforts to obtain DNA testing on the
bandana after an initial failure to secure such an order as "grasping at straws" (Rick Casey, New
Science Panel Chief Fights DNA, Houston Chronicle Oct. 11, 2009); and mocked Mr. Morton's
claim that DNA testing on the bandana and other items could possibly be linked, in Mr.
Bradley's words, to "a mystery killer" (Joyce May, Williamson County Sun, Aug. 11, 2008).
Secondly, and more egregiously, during the six years that Mr. Bradley and his deputies
tried to block DNA testing on the bandana, they asserted that such testing could not possibly
substantiate Mr. Morton's third-party-killer theory, despite having undisclosed information in the
State's own files that indicated otherwise. For example, in its first brief to this Court after the
Chapter 64 motion was filed in 2005, the District Attorney's Office made the remarkable
assertion that even if Christine Morton's own blood turned up on a bandana found a full 100
yards from her home at an abandoned construction site, it was "no more unlikely" that "prior to
her death, Christine sustained a minor injury while in the area behind her property and used the
previously-discarded bandana to wipe away her blood" (Resp. at 14) than that the bandana
belonged to an intruder who dropped it while fleeing down the path after committing this bloody
crime.
Little did Mr. Morton and his counsel - or this Court - know that the State made this
argument even though it had in its file a jaw-dropping eyewitness account of this intruder's
violent presence at the scene (dated less than two weeks after the murder), as well as other
evidence material to this defense, that it had failed to disclose for over two decades.
B. Mr. Bradley Unsuccessfully Seeks to Suppress Key Investigative Documents That
Point to Third-Party Intruder
On or about October 27, 2008, while the appeal from this Court's initial ruling on
Defendant's Chapter 64 motion was pending, undersigned counsel received by mail a stack of
documents from the Williamson County Sheriff's Office, in response to a Public Information Act
("PTA") request that had been filed five months earlier on Mr. Morton's behalf. The PTA request
had been opposed in its entirety by the WCSO, which reviewed the State's entire Christine
Morton file, provided a "representative sample" of its contents to the Texas Attorney General's
Office, and asked the AG's Office for an opinion letter deeming the file exempt from disclosure
to Mr. Morton. (See Office of the Attorney General, File No. OR2008-10444A (Oct. 8, 2008) at
1, 5.) (attached as Exhibit B). Remarkably, according to the AG 's office opinion letter
overruling these objections, the principal ground urged by the WCSO and its counsel against
disclosure was that "the defendant is currently appealing his request for post-conviction DNA
testing" and that "release of the information at issue would interfere with the appeal" (id. at 5-6)
(emphasis supplied).
The Attorney General's letter also reveals that the WCSO was not opposing disclosure of
the State's investigative file on its own. The letter notes that Mr. Bradley's office had personally
reviewed the file contents and joined in the WCSO's request to bar Mr. Morton from accessing
the file while the DNA testing litigation was pending:
10
The documents at issue relate to the prosecution of the named individual [Mr. Morton] for
murder, for which he was convicted. You inform us there is currently ongoing litigation
in the form of a request for post-conviction DNA testing, which is on appeal before the
Third Court of Appeals. . . . You state that the Williamson County District Attorney's
Office is a party to the litigation and has requested that the information be withheld
pursuant to section 552.103.
Id. at 6 (emphasis supplied).
The Attorney General's Office ultimately overruled the majority of Mr. Bradley's and the
WCSO's objection to the materials, and ordered substantial portions of the file disclosed to Mr.
Morton for the first time since trial. Most of the documents provided consisted of investigative
reports and witness statements that were already part of trial counsel's file (which the
undersigned had obtained from trial counsel, soon after the Innocence Project assumed its
representation of Mr. Morton in 2002). But the file also contained additional, previouslyundisclosed documents, whose significance to the DNA testing proceedings that had just
concluded in this Court could not possibly have been overlooked by any prosecutor with even
the most basic knowledge of the defense's "third party intruder" theory of the case - much less
one who had, by that time, spent nearly four years publicly mocking that theory as unworthy of
belief by the courts or the public.
C. WCSO File: The "Monster" Eric Morton Saw Kill his Mother
The newly-disclosed WCSO file contained, inter alia, the transcript of a telephone
interview conducted by the WCSO's Sgt. Don Wood - the State's chief investigator into
Christine's death in 1986-87 - and the victim's mother (Michael's mother-in-law), Rita
Kirkpatrick, on August 24, 1986 (eleven days after Christine's body was found). In the
interview, Mrs. Kirkpatrick reports that earlier that day, her three-year-old grandson, Eric, had
confided to her, in chilling detail, how he had witnessed an unknown man murder his mother, a
conversation that Mrs. Kirkpatrick then wrote down and read to Sgt. Wood over the telephone:
2
Alright, so this is it. Approximately 11:00 a.m., August 24, Eric and I were alone
in my house in Pearland which is the first time he and I had been alone since his
mother's death. I was putting on make-up in the bathroom. Eric layed [sic] his
[inaudible] blanket on the floor of my bedroom. He said, Mommie is sleeping in
the flowers. His dad had told him that last week at the cemetery. Then he kicked
the blanket and said, 'Mommie, get up.'
[begins reading exchange between Eric and 'Grandmother':]
Grandmother: Don't kick Mommie, Eric.
Eric: Mommie's crying. She's [inaud.] stop it. Go away.
Grandmother: Why is she crying?
Eric: Cause the monster's there.
Grandmother: What's he doing?
Eric: He hit Mommie. He broke the bed.
Grandmother: Is Mommie still crying?
Eric: No, Mommie stopped.
Grandmother: Then what happened? [To Sgt Wood:] (My heart was in my
throat, my stomach was in my toes, but I knew I had to do it. Okay.)
Eric: The monster throw a blue suitcase on the bed. He's mad.
[Grandmother:] Did he put anything else on the bed?
[Eric:] No.
Grandmother: Did the monster hurt Mommie?
Eric: Yes. Mommie go to hospital.
Grandmother: Then what did the monster do?
Eric: He said Mommie's in the garage.
[Grandmother:] Was he big?
[Eric]: Yeah.
[Grandmother:] Did he have on gloves?
[Eric:] Yeah, red.
[Grandmother:] What did he carry in his red gloves?
[Eric:] Basket.
[Grandmother:] What was in the basket?
[Eric]: Wood.
[Grandmother:] Did he have Daddy's gun or Mommie's purse?
[Eric:] (Sort of a vague, "Yeah.")
[Grandmother:] But he did have wood?
[Eric:] Yeah.
[Grandmother:] What kind of wood, Eric?
[Eric:] Like Daddy's. [Inaud.]
[Grandmother:] Did he have the tool for the fireplace?
[Eric:] (Sort of a vague, "No.")
[Grandmother:] Did the monster leave then?
[Eric:] Yes.
[Grandmother:] How did he leave?
[Eric:] The door.
[Grandmother:] Which door, Eric?
[Eric:] Front door.
[Grandmother:] Eric, was it the front door or the patio door? Did he go out the
deck or in the front?
[Eric:] The front door.
13
(Williamson County Sheriff's Ofc., Supplementary Offense Report, Aug. 24, 1986, at 2-3
(attached as Exhibit Q.
Mrs. Kirkpatrick went on to tell Sgt. Wood how, knowing that investigators suspected
that Michael was the killer, she then forced herself to ask Eric the most critical question of all whether the "monster" he saw was in fact his own father:
[Grandmother:] Where was Daddy, Eric? [To Sgt. Wood:] (And this is where
Grandmother almost died.) Was Daddy there?
[Eric:] No. Mommie and Eric was there.
(Id. at 3) (emphasis supplied).
As this Court will quickly recognize given its own familiarity with the crime scene,
Eric's account to his grandmother rings true precisely because he describes details that are
independently corroborated by the physical evidence at the scene. These include not only the
bloody ("red gloves") hands of the killer who repeatedly struck Christine on the bed, but also
that Eric saw the killer throw a blue suitcase and a wicker basket on her corpse (which
investigators found piled on top of the body), and that he carried "wood" with him (with the
medical examiner finding wood chips in Christine's hair and skull).'
And there is more. After recounting this exchange, Mrs. Kirkpatrick immediately told
Sgt. Wood the obvious: that whatever they may have once believed, there was no longer any
doubt in her mind, and should be none in the State's, that the "monster" who committed the
crime was not her son-in-law. See id. at 3: "So. Sgt. Wood. I'd get off the domestic thing now
and look for the monster and I have no more suspicions in my mind that Mike did it." (emphasis
Eric had recently watched his father build a hardwood deck at the family's home. At
trial, defense counsel offered expert testimony that the wood chips found in Christine's hair were
"definitely from a piece of old, weathered wood," which counsel argued was consistent with an
intruder taking a piece of wood from the nearby construction site and using it as the murder
weapon.
14
supplied). But rather than take this new information and refocus his investigation to "look for
the monster" still at large, Sgt. Wood immediately began - after falsely telling Mrs. Kirkpatrick
that they were "off the tape" (id.) - to try and convince her that perhaps Eric had simply failed to
recognize his own father as the killer. His attempt to convince this grieving and vulnerable
grandmother of this possibility included, among other strained claims that had no basis in fact,
his speculation that Michael might have committed the murder while wearing a full-body scuba
diving suit in August, thus leading his own son to believe that he was a "monster" in disguise.
(Id. at 4-6 .)3 Sgt. Wood also instructed her not to have any other family members mention
anything to Eric about what he had seen, "cause they'll confuse him if they do." (Id. at 4.)
D. Prosecutors Deliberately Withheld Eric's Eyewitness Account from Defense
Counsel by Keepin2 S0. Wood from Testifyin2 and Falsely Assertin2 that His
Reports Contained No Brady Material
Undersigned counsel has carefully reviewed all of trial counsel's remaining file in the
case (which was provided to us in or around 2002) and the Sgt. Wood report above is nowhere in
that file. Undersigned has also been informed by Bill Allison and Bill White, Defendant's trial
attorneys, that neither of them possess any additional files from the case - nor do they remember
(and they submit that they surely would have remembered) seeing the foregoing transcript in
their files had it been provided to them during discovery.
On the tape, Sgt. Wood tells Mrs. Kirkpatrick that Michael had gone scuba diving the
previous day (which was true) and that his diving suit had been found in a bag in the garage
(which was not). In fact, Michael had not worn a scuba diving suit on his trip because he never
wore one (for obvious reasons) in the heat of Texas in August. He only took the necessary
accessories for warm-weather diving itself (goggles, fins, diving knife, etc.), and after cleaning
and drying that gear, returned it to the duffel bag in which he always kept it - where it was
found, as depicted in investigator's own photos of the garage. Nor did Sgt. Wood begin to
explain to Mrs. Kirkpatrick why her grandson would not have recognized his father's face in any
event, much less why Michael - whom the State contended killed Christine in the middle of the
night, in a sudden crime of passion - would have gone and put on a full-body scuba suit
beforehand, then fled out the front door in the middle of the night as Eric described. With good
reason, trial prosecutors made no mention of Sgt. Wood's ludicrous "Michael in a scuba diving
suit" theory at trial.
15
What both counsel do remember - and what is well-supported by the trial record - is that
they "smelled a rat," so to speak, when the State announced that it would not call Sgt. Wood as a
witness. As this Court well knows, in 1987 and today, it is highly unusual for homicide
prosecutors to fail to call their own chief investigator as a trial witness, especially in a case in
which there are (at least as far as the jury knows) no eyewitnesses to the crime, and the case is a
circumstantial one. Trial counsel promptly moved to have Sgt. Wood's reports and notes
reviewed in camera to determine if there was any Brady material to which they would be entitled
notwithstanding the State's decision not to call Sgt. Wood himself to the stand. After reviewing
what prosecutors represented to be the entire product of Sgt. Wood's investigation, the trial court
determined that his reports and notes included no Brady material. But the inquiry into Sgt.
Wood's mysteriously-withheld notes did not end there: after learning from jurors that trial
prosecutors may have boasted about the "reasonable doubt" contained in Sgt. Wood's reports,
trial counsel immediately filed a Motion for a New Trial seeking to revisit the issue. That
motion was denied, but defense counsel were undeterred: they asked for the sealed filed of Sgt.
Woods's notes and reports to be forwarded to the Court of Appeals to review the Brady ruling
yet again.
There is no reason to believe that either the trial prosecutors or Mr. Bradley were
unaware of the suppressed material and its significance. Just prior to trial, the prosecution not
only announced that it would not call Sgt. Wood to testify, but asked the Court to hear a motion
in limine regarding the competency of a witness that no one (save the prosecutors themselves)
had any reason to think would testify: three-and-a-half-year-old Eric Morton. The motion was so
out of place that defense counsel quipped in return that "we've been preparing him [to testify] for
days now," and then assured the trial court that they were, in fact, "joking." (R. 66-67).
16
With the chilling Sgt. Wood report in hand, however, the reason for the prosecution's odd
anxiety over the prospect of Eric taking the stand now comes into focus. For if the State had
disclosed the Wood report, it faced more than the prospect of the defense being able to call Eric
and/or the grandmother in whom he confided his eyewitness account of the murder to testify
about what he saw. 4 The defense also would have been able to highlight the manipulative way in
which Sgt. Wood tries on this tape to convince Mrs. Kirkpatrick that Michael may have been the
killer, notwithstanding Eric's clear eyewitness statements to the contrary. The objectivity of the
police investigation in this case - their failure to follow investigative leads supporting an intruder
theory, and their subjective judgments about Michael's demeanor - were critical, contested
issues at the trial. Most significantly, defense counsel had made a significant point, supported by
prominent experts, that the Medical Examiner had incorrectly revised his initial time-of-death
estimate to conform with the State's case just prior to trial. See Kyles v. Whitley, 514 U.S. 419,
449 (1995) (Brady violated where witness statement withheld from trial counsel "could have
been used to cap an attack on the integrity of the investigation and on the reliability of [the lead]
Detective" at trial). Yet more than twenty years later, as several rounds of post-conviction DNA
litigation in this Court made the importance of any evidence supporting an intruder theory all the
more evident, Mr. Bradley himself urged the Texas Attorney General to let him continue to
withhold the material from Mr. Morton's counsel - perversely citing the pending DNA testing
litigation as grounds for this nondisclosure.
E. Additional Documents Indicative of Third-Party Intruder
The portions of the WCSO file newly produced to the undersigned in 2008 contained
additional documents supporting Defendant's claim that a third party intruder entered the home
See, e.g., Escamilla v. State, 334 S.W.3d 263 (Tex. App. —San Antonio 2010)
(affirming trial court's decision to permit testimony by child victim aged three years, nine
months, and who was two years old at time of alleged crime).
17
and murdered Christine shortly after Defendant left for work in the early morning hours of
August 13, 1986. For example, the day after the murder (Aug. 14), a WCSO officer named
Traylor was stopped by a neighbor of the Mortons. The man said that both his wife and their
next door neighbor "had on several occasions observed a male park a green van on the street
behind (the Mortons') address, then the subject would get out and walk into the wooded area off
the road." The witness "advised that from the way his wife talks," he believes that their neighbor
"knows where the subject with the green van lives." (See Supplementary Offense Report dated
8/14/86) (attached as Composite Exhibit D). Similarly, a woman named Linda Looney
telephoned Sgt. Wood on 8/15/86 to report that three years earlier, she alerted police to a strange
man on the roof of the home next door who she saw climbing "over a wall." She said that two
weeks later, she found a piece of wood fashioned into a homemade club in her storm gutter; and
that the man who was caught lurking next door turned out to be a construction worker who,
according to his foreman, "has these uncontrollable urges to do things like that." (Ms. Looney
lived in Austin at the time she left this message, but the report does not indicate if she resided in
Williamson County at the time of the incident.) Ms. Looney further appears to have stated that
when she saw the news about Christine Morton, she thought that "it could have been her" who
was killed instead. (See id.)
Finally, the newly-produced WCSO file contains a handwritten telephone message to Sgt.
Don Wood dated 8/15/86, reporting that what appeared to be Christine Morton's missing Visa
credit card was recovered at the Jewel Box store in San Antonio - with the note further
indicating that "Larry Miller can ID the woman, who has $1,000 in fraud on her." (See id.)
Yet there is nothing in the WCSO file indicating any follow-up investigation as to any of
the above leads - not even to trace the path of the credit card that appears to have been used by
18
a known individual two days after Christine's murder. As with the Eric Morton report, however,
the details described by these witnesses correspond to the Christine Morton crime scene. Indeed,
the bloody bandana on which the present DNA results were obtained was found in a construction
site adjacent to the "wooded area off the road" that ran behind the Mortons' home, where the
suspicious man in the green van was earlier spotted by the Mortons' neighbors. Similarly, the
Mortons lived near a semi-abandoned construction site, and Christine Morton was bludgeoned to
death with what the State's expert concluded was a piece of old, weathered wood that could have
come from the site - similar to the makeshift weapon that Ms. Looney found in her home after
the construction worker with self-described "uncontrollable urges" was caught lurking on the
roof of the home next door. Upon information and belief, however, none of these documents
were ever disclosed to trial counsel - and it was only over Mr. Bradley's opposition that they
were ultimately provided, twenty-two years later, to the undersigned. 5
F. Mr. Bradley's Animosity Towards Mr. Morton's Present Counsel
Mr. Bradley's inability to impartially review and act upon the present DNA test results is
further compounded by the personal animosity he has repeatedly and publicly expressed towards
Mr. Morton's current counsel at the Innocence Project. That Mr. Bradley has made no secret of
his disdain for Mr. Morton's counsel would arguably be enough to question whether he can fairly
be tasked with leading the sensitive reinvestigation into Christine Morton's death, especially
when the new evidence to be investigated is the fruit of earlier DNA testing litigation in which
Mr. Bradley's position did not prevail. That concern is particularly well-founded now, in the
wake of the recent Willingham investigation in which the parties to the instant matter found
themselves on opposite sides of a much-watched political battle over an alleged wrongful
Trial counsel has examined these documents and reported that, to the best of counsel's
recollection, they were not provided to the defense during pretrial discovery. Nor do copies of
the documents appear in the trial files provided to the undersigned in or around 2002.
conviction - and during which Mr. Bradley was publicly stripped of a prominent agency
chairmanship, after major newspapers across the State questioned his fitness to impartially
preside over the Commission's inquiries.
The history of the Willingham case is too complex to detail here. For purposes of this
recusal motion, the relevant history begins on September 30, 2009, when Mr. Bradley was
named chairman of the Texas Forensic Science Commission ("FSC"). Mr. Bradley was
appointed just two days before the FSC was to hold a public hearing on a report by Dr. Greg
Beyler, a nationally-known arson expert that the Commission had retained to evaluate the
complaint filed by the Innocence Project in the Willingham case, in which the IP asked the
Commission to investigate whether the arson evidence relied upon to convict Mr. Willingham
and sentence him to death was unreliable. Dr. Beyler had concluded that the arson evidence was
based on a discredited methodology and wholly without scientific merit. He was further
expected to testify that the flaws in the arson analysis that he identified were the exact same ones
raised in an affidavit by Dr. Gerald Hurst, another nationally renowned arson expert, which was
filed by Willingham's counsel in an unsuccessful bid to halt Mr. Willingham's 2004 execution.
Mr. Bradley's first act as chairman was to cancel the Willingham hearing. He followed
that act with an announcement that he would recommend that the FSC conduct future meetings
behind closed doors, and an even more highly-publicized statement that he would revisit the
issue of whether the FSC had jurisdiction to investigate the Willingham matter at all. See James
C. McKinley, Texas Governor Defends Shakeup of Commission, New York Times, Oct. 2, 2009;
Mary Alice Robbins, Fired Up: Changes Sought for Texas Forensic Science Commission, Texas
Lawyer, Nov. 5, 2009 (articles attached as Composite Exhibit E).
'All
In the ensuing months, Mr. Bradley was subjected to a firestorm of criticism for what
many alleged was a politically-motivated effort to prevent an FSC finding that the arson
evidence in the Willingham case was unreliable. For his part, Mr. Bradley responded with a
series of not-so-thinly-veiled attacks against the New-York based Innocence Project, Inc. ("IP"),
a nonprofit organization which, in addition to representing individual prisoners like Mr. Morton
seeking to establish their innocence based on DNA evidence, also includes a Policy Department
that advocates for broader reforms to the criminal justice system to try and prevent future
wrongful convictions. The IP played a key role in drafting the bipartisan legislation that created
the FSC in 2005, and had referred two prominent cases to the FSC (the Willingham matter, and
the non-capital case of an exonerated IP client named Brandon Moon) which the panel had long
ago commenced investigating when Mr. Bradley took over. See id. 6
Weeks after becoming chairman, and even though the FSC had conducted no business as
to the Willingham matter during that time, Mr. Bradley emailed news outlets across the state, and
broadly alleged that "[t]hose with agendas separate from the advancement of forensic science
have made exaggerated claims and drawn premature conclusions about the [Willingham] case,"
and announced that he would seek the AG's advice as to how to guard the FSC against
"improper outside influences." Terrence Stutz, Texas forensic science agency new chief calls
for changes as arson inquiry continues, Dallas Morning News, Nov. 7, 2009. His charges
became far more personal, and pointed, when he appeared before the Texas Senate Committee
charged with regulating the FSC on November 10, 2009, where he "tangled repeatedly" with
Sen. Rodney Ellis, who, in addition to his other charitable activities, serves as the Chair of the
6
The objective of the Innocence Project's complaint in the Willingham matter, consistent
with the mission of the FSC, was to establish that the arson science used by the Texas Fire
Marshal's office in the case was unreliable, and to obtain an audit of past cases involving the
Texas Fire Marshal officials where similarly unreliable arson evidence might have been used.
21
IP's Board of Directors. After Sen. Ellis asked Mr. Bradley when the public could expect that
the FSC would resume its inquiry into the Willingham case and to respond to allegations that he
had focused on other matters as a "delaying tactic," Mr. Bradley shot back with twice the force.
According to one news report, "Bradley told Ellis that 'when you hold your news conference'
with Innocence Project director Barry Scheck, to remember that, as a prosecutor, he lets more
people off every year than "Senator Ellis' New York nonprofit." See R.G. Ratcliffe, Forensic
panel's new chief says he is not apawn, Houston Chronicle, Nov. 10, 2009; Dave McNeely,
'Junk Science' on trial before Senate committee, San Angelo Standard-Times, Nov. 13, 2009.
What many took to be a sign of public disrespect for a well-regarded (and self-described
"pro death penalty") legislator so early in Mr. Bradley's tenure as chairman raised more than a
few eyebrows. But officials' response to this hearing paled in comparison to what was to come
the following year. In October 2010, the Innocence Project filed a separate proceeding on behalf
of the Willingham family before the Texas Court of Inquiry (whose jurisdiction is distinct from
the FSC's) to "restore the reputation" of Mr. Willingham by declaring him factually innocent of
crimes for which he had been executed. A livid Mr. Bradley told the Associated Press that
[H]e believes the effort by the New York-based Innocence Project to have Willingham
declared innocent is not about justice - or even about the guilt or innocence of
Willingham. 'What they are interested in is finding the poster boy for the abolition of the
death penalty. And they want to make Willingham that poster boy. And they chose
poorly, because Willingham is a guilty monster."
Jeff Carlton, Judge asked to declare executed Texas man innocent, "Associated Press, Oct. 6,
2010.
Mr. Bradley's gratuitous characterization of Mr. Willingham as a "guilty monster" while
the commission was still conducting its scientific inquiry was quickly repudiated by his fellow
members. Aware that the Willingham inquiry was receiving "worldwide attention," they
expressed concern (in far more measured terms) that his comments did not convey an
appropriately "forthright, objective, and neutral" approach to their mandate. Seemingly unable,
or at least unwilling, to tone down his rhetoric, Mr. Bradley only continued to personalize the
issue. He charged that the FSC was "being used" by the Innocence Project to promote what he
continued to characterize as an "anti-death penalty agenda," and ridiculed the IP's efforts to
posthumously exonerate Willingham as "ridiculous," a "sham" and "a circus sideshow." See
Dave Montgomery, Texas Forensic Science Commission members at odds over chairman's
comment on Willingham, Fort Worth Star-Telegram, Oct. 16, 2010; Erin Mulvaney, The state
forensic panel criticized their leader for calling Cameron Todd Willingham 'a guilty monster,'
Dallas Morning News, Oct. 16, 2010; Texas prosecutor denies showing bias in arson case,
Associated Press, Oct. 18, 2010 (articles attached as composite Exhibit E).
In the wake of these inflammatory remarks, Mr. Bradley's tenure with the FSC was shortlived. After yet another Senate hearing in March 2011 -- in which Mr. Bradley continued to
charge "advocacy groups" with "misleading the public" about the Willingham case - Mr.
Bradley's fellow Republicans concluded that his chairmanship could not, and should not, be
salvaged. See Dust-up at hearing could cost Perry nominee, Houston Chronicle, 3/10/11
(describing how Mr. Bradley lost both Republican and Democratic support after his latest public
face-off with Sen. Ellis regarding the Innocence Project's role in the Willingham inquiry).
Virtually every major editorial board in Texas to weigh in on the issue concluded the same. See,
e.g., Bradley is the wrong man for important job, Austin American Statesman, 3/8/11 (criticizing
Mr. Bradley's "use of overheated, pejorative rhetoric relating to the most celebrated case before
the commission" and arguing that removing him as chairman "is the best thing for the state and
for justice"); Senate should reject Perry pick, San Antonio Express-News, 3/3/11 (citing
23
Bradley's "series of foot-dragging exercises over 15 months" to delay Willingham inquiry during
Perry campaign, which should "disqualify him, plain and simple" from serving as chairman);
Bradley nomination not worth /1ghting for in Senate, Dallas Morning News, 3/3/11 (noting that
Bradley's "willfulness hasn't served him well as chair of [the FSC] . . . [and] didn't serve him
well in dealing with tough questions this week as to whether he ought to keep his job").
Lacking the votes to even make it past the Senate Nominations Committee, Mr. Bradley
was publicly relieved of his chairmanship at the end of the legislative session in May. Texas
forensic science panel chairman will be out ofajob next week, Fort Worth Star-Telegram, May
25, 2011.
Five weeks later, on June 30, 2011, Mr. Bradley and the Innocence Project received the
written results of the exclusionary DNA testing conducted in Mr. Morton's case pursuant to this
Court's prior order.
Argument
Tex. Code Crim. Proc. art. 2.01 (2010) provides, "It shall be the primary duty of all
prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is
done." See also Carr v. State, 745 S.W.2d 51 (Tex. App. - Houston (1st Dist.), 1987) (same).
The elected District Attorneys of this State are charged with upholding this function in
all criminal cases in the district courts and courts of appeal; ordinarily, they may not be relieved
of prosecutorial authority in an individual case absent a direct conflict of interest, such as having
previously represented a party or witness in a case they are prosecuting. See generally, Tex.
Code Crim. Proc. art. 2.01 (2010). But this rule is not without its exceptions. For even where a
prosecutor lacks what has traditionally been recognized as a conflict that warrants
disqualification, "The absence of an impartial and disinterested prosecutor has been held to
24
violate a criminal defendant's due process right to a fundamentally fair trial."
See, e.g., In re
Guerra, 235 S.W.3d 392, 430 (Tex. App. - Corpus Christi 2007) (citing Ganger v. Peyton, 379
F.2d 709, 714 (4th Cir. 1967)). Of course, "a prosecutor is not 'partial' simply because he
zealously seeks a conviction." Id. Nonetheless, "any interest that is inconsistent with the
prosecutor's duty to see that justice is done is a conflict that could potentially violate a
defendant's right to fundamental fairness." Id. (emphasis supplied)
In Guerra, for example, the prosecutor in question was a former political adversary of the
defendant, including in a contested election that had since become the subject of a voter fraud
investigation. Even though the prosecutor was not "conflicted" in the traditional sense, the Court
concluded that the history of political rivalry between the two men raised a specter of
impropriety in the pending criminal proceeding that rose to the level of a due process violation.
See id. at 431.
Here, it would be difficult to conclude that Mr. Bradley could conduct a full and fair
investigation into the significance of the recent DNA databank hit to a California prisoner in Mr.
Morton's case even if he had "only" spent five years opposing the very DNA testing that brought
this new evidence to light. It is not inconceivable that despite this history, a conscientious
prosecutor could nonetheless find the courage to take the reinvestigation to its logical conclusion,
and, if the evidence so warranted, publicly acknowledge that Mr. Morton had spent a quartercentury behind bars for a crime he did not commit (the last six years of which he never would
have served, had Mr. Bradley simply granted counsel's initial request to conduct the present
DNA testing in 2005), while the victim's family was torn apart and the real killer eluded justice.
But that, of course, is not the only baggage that Mr. Bradley brings to the case at this
juncture. The record now shows that he personally violated his duty to disclose critical materials
25
in the State's original investigative file that were directly relevant to Mr. Morton's third-partyintruder defense - documents that Mr. Bradley personally asked the Attorney General's office to
permit the State to continue to withhold from Mr. Morton, so as not to "interfere" with the
pending DNA testing litigation. It is inconceivable that any prosecutor with even a surface
knowledge of the facts of the case could conclude that those materials -- particularly the taped
interview with the victim's mother in which she described Eric having seen the "monster" who
killed his mother, while his Daddy was "not there" - were not relevant to Mr. Morton's efforts to
obtain post-conviction DNA testing. Worse, Mr. Bradley and the WCSO counsel cited that very
litigation as justification for their continued bid to prevent these materials from coming to light.
Were that not enough to question whether Mr. Bradley can be expected to fulfill his
"primary duty. . . to see that justice is done" in this case, it is further compounded by his
undisguised animus towards Mr. Morton's longtime counsel. Having repeatedly cast himself as
a bulwark against what he perceives as the "agenda" and "outside interests" of the Innocence
Project, it is inconceivable that he will be able to dispassionately and fairly evaluate the evidence
of Mr. Morton's guilt at this juncture - since he cannot help but fear that a public declaration of
innocence for a man whom the Project has represented for nearly a decade, in a case that will
certainly inspire an outpouring of sympathy, will also give momentum to an organization
towards which he is unabashedly hostile. That is particularly so when the latest developments in
the Morton case come directly on the heels of Mr. Bradley's own political fall from grace in
May, in which the Republican-controlled Senate failed to reappoint him to statewide office after
numerous public clashes with the Innocence Project and its legislative allies. And surely, no
observer in Texas or elsewhere who followed the FSC debacle could help but question whether,
if Mr. Bradley continues on the case and represents to the Court that Mr. Morton is guilty of the
26
crime despite the new DNA evidence, he will have reached that conclusion independent of his
personal desire to deprive Mr. Morton's counsel of a "win" on his own home court.
This extraordinary combination of factors presents the rare case in which permitting the
County's elected prosecutor to continue to represent the State in a criminal matter rises to the
level of a due process violation.
Additional Considerations: Authority to Release Mr. Morton on Bond
Pendin2 Disposition of the Writ
One additional consideration regarding recusal merits discussion. Even if Mr. Bradley is
not recused from the case, Mr. Morton can (and will) file a petition for a writ of habeas corpus in
this Court under Tex. Code Crim. Proc. art. 11.07 in light of the new DNA results and Brady
material he now has in hand. But a failure to recuse Mr. Bradley could well hinder this Court's
own ability to award Mr. Morton all appropriate relief in a timely fashion.
This is because, under art. 11.07, the Texas Court of Criminal Appeals has exclusive
authority to grant a writ of habeas corpus and vacate Mr. Morton's conviction. This Court is
empowered to conduct hearings on the writ and to propose Findings of Fact and Conclusions of
Law (which may carry significant weight in the CCA), but not to enter the requested relief.
Moreover, even if this Court satisfies itself that Mr. Morton had nothing whatsoever to do with
the murder of his wife; that the crime was instead committed by the California prisoner whose
DNA is intermingled with Christine Morton's blood and hair on the bandana; and that Mr.
Morton has already done twenty-five years in prison for a crime that was committed by someone
else, the Court still would not have the authority to free Mr. Morton from prison without the
prosecutor's consent. See Tex. Code Crim. Proc. art. 11.65 (providing for limited exception to
art. 44.04(b)'s usual rule against bond for persons convicted of serious crimes; convicting court
27
may release an applicant for a writ of habeas corpus on bond, but only "[o]n making proposed
findings of fact and conclusions of 1 aw jointly stipulated to by the applicant and the state")
(emphasis supplied).
Thus, absent recusal of Mr. Bradley, it is likely that Mr. Morton will spend still further
days, weeks or months behind bars while he awaits the CCA's consideration of his writ (unless
Gov. Perry takes the unusual step of granting him a pardon in the interim). 7 That unimaginable
result could come to pass even if this Court concludes that Mr. Morton is factually innocent of
the crime for which he has already spent nearly a quarter-century in prison.
Prayer for Relief
Wherefore, in light of the foregoing, counsel for Michael Morton respectfully requests as
follows:
1.
That District Attorney John Bradley voluntarily recuse himself from any further
participation in this case, so that this Court may appoint an independent prosecutor to investigate
Christine Morton's death on behalf of the State in light of the new DNA test results. See Ex Rel.
Hilbig v. McDonald, 877 S.W.2d 469, 472 (Tex.App. - San Antonio 1994, no pet.) (a "district
attorney has at his disposal the power to recuse himself and his office in an appropriate case").
2.
That if Mr. Bradley does not voluntarily recuse himself, this Court enter an order
for said recusal, and appoint an independent prosecutor to conduct a full investigation of the case
and represent the State in this matter.
In the Innocence Project's experience (having represented Texas clients in more than a
dozen successful writ applications based on DNA evidence of their actual innocence), the CCA
typically takes several weeks, if not longer, to review the record and the proposed findings of the
convicting court - even where the State is in agreement as to the grounds. In cases where the
State opposes relief, consideration of the writ by the CCA may take a year or more.
28
3.
In the alternative, if Mr. Bradley is not recused, that this Court order production
of all materials related to its investigation into Christine Morton's death that have not already
been produced to counsel (including, but not limited to, documents previously filed with the
court under seal and those withheld from production in the 2008 public information act request),
and for any and other relief the Court deems appropriate to ensure that the State's investigation
of the new DNA evidence is conducted in a fair and just manner.
RALEY BOWICK,LLP
By:
JOH ESLEY RALEY
State Bar. No. 16488400
1800 Augusta Drive, Suite 300
Houston, Texas 77057
Telephone: 713-429-8050
Fax: 713-429-8045
INNOCEN99 PROJECT, INC.
By:
BA SCHEC
NINA MORRIS N
40 Worth St., Suite 701
New York, New York 10013
Telephone: 212-364-5340
Fax: 212-364-5341
29
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Recuse
Williamson County District Attorney and for Appointment of Independent Prosecutor was
served on counsel as indicated below on August 17, 2011:
VIA FACSIMILE AND EMAIL
John Bradley, District Attorney
Kristin Jernigan, Assistant District Attorney
Williamson County Justice Center
District Attorney's Office
405 M.L.K. Street, Suite 265
Georgetown, Texas 78626
Fax: 512-943-1255
jbrad1ey(wi1co.org
[email protected]
30
EXHIBIT A
Ol&cH I I)
CELLMARK
13988 Diplomat Drive
Suite 1 00 Dallas. TX 75234 )14.271.8400
I 800752 2774 214.271.83M fax
Report of Laboratory Examination
June 30, 2011
Supplemental - FR07-0030-C
Ms. Nina Morrison
The Innocence Project
40 Worth Street
Suite 701
New York, NY 10013
ORCHID CELLMARK NO: FRO7-003 0
AGENCY CASE NO:
86-452-K26
ADD'L AGENCY NO:
L-183798
SUBJECT:
Christine Morton
SUSPECT:
Michael Morton
EXHIBITS
Client Item
OC Item
86-452-K26-147
86-452-K26-148
86-452-K26- 157
86-452-K26-143
86-452-K26-145
86-452-K26-146
86-452-K26
86-452-K26
86-452-K26
86-452-K26
86-452-K26
86-452-K26
86-452-K26-11
86-452-K26(29)
86-452-K26
86-452-K26-161
86452-K26-160
96-452-K26- 159
86-452-K26-158
86-452-K26-156
FR07-0030-0 1
2/22/2007
FR07-0030-02
2122/2007
FR07-0030-03
2/22/2007
FR07-0030-04
2/22/2007
FR07-0030-05
2/22/2007
FR07-0030-06
2/22/2007
FR07-0030-07
3/13/2007
FR07-0030-08
3/13/2007
FR07-0030-09
3/13/2007
FR07-0030-10
3/13/2007
FR07-0030-1 1
3/13/2007
FR07-0030- 12
8/17/2007
FR07-0030- 13
2/22/2007
FR07-0030- 14
5/27/2010
FR07-0030-1 5
6/17/2010
NOT EXAMINED 2/22/2007
NOT EXAMINED 2/22/2007
NOT EXAMINED 2/22/2007
NOT EXAMINED 2/22/2007
NOT EXAMINED 2/22/2007
86-452-K26-155
86-452-K26-154
86-452-K26-153
86-452-K26
Received Item Description
Screened PCR
Fingernail Clippirigs:Left Hand
Fingernail Clippings:Right Hand
Hair:from victims right hand
Vaginal Swabs
Rectal Swabs
Oral Swab:Christine Morton
Swab Cutting:Rectal (1)
Swab Cutting:Rectal (2)
Swab Cutting:Vaginal (1)
Swab Cutting:Vaginal (2)
Swab Cutting:Oral
Buccal Swabs - Michael Morton
Nightgown
Bandana:BIue
Hair:From Bandana
Small Manila Envelope:Slide S-P 5
Small Manila Envelope:Slide S-P 1
Small Manila Envelope:Slide S-P 4
Small Manila Envelope:Pubic hairs- M. Morton
Small Manila Envelope:Slide (hair- marked victim
head')
NOT EXAMINED 2/22/2007 Small Manila Envelope:Slide (hair- marked "truck
A')
NOT EXAMINED 2/22/2007 Small Manila Envelope:Slide (hair- marked truck')
NOT EXAMINED 2/22/2007 Small Manila Envelope:Slide (hair- marked victim
head)
NOT EXAMINED 3/13/2007 Ziplock Bag:Blood- Christine and Michael Morton
86452 K 26
!
N
N
N
N
N
N
N
N
N
N
N
N
Y
Y
N
N
N
N
N
N
Y
N
Y
N
Y
Y
N
N
N
N
N
N
N
N
N
N
N
N
N
FR07-0030-C
I of
Accradired by the .4,,,er,cop Socwtv ofCr,,ne LciI'orcrorv Dfrec to rs /Lchvroiory , cred'taton Saud
Y
Y
Y
Y
Y
Y
Y
Y
Y
SEROLOGY RESULTS
FR07-0030-1 3.01
Presumptive testing for semen was inconclusive on the nightgown.
One spermatozoan was identified on the nightgown (13.0 1.32).
The p30 protein found in seminal fluid was not detected on the nightgown (13.01.33, 13.01.34).
FR07M030-1 4
Presumptive testing for blood was positive on the blue bandana.
RESULTS
DNA testing using the polymerase chain reaction (PCR) and the AmpF1STR ldentifilerTM Amplification Kit
was performed on Items 03, 06, 12, 14, 15. The loci tested and the results obtained for each tested sample are
listed in Table 2. Additionally, DNA testing using the polymerase chain reaction (PCR) and the Mi niFilerTM
STR Amplification Kit was performed on the Items 06, 14 and 15. The loci tested and the results obtained
for each tested sample are listed in Table I (see attachment). This report supplements Orchid Celimark's
Laboratory Report FR07-0030-B dated September 28, 2007.
Human and Male specific DNA quantitation using the Quantifier Human and Quantiifler-Y kits was
performed on the scrapings taken from the unstained area of the underside of the blue bandana (14.01.8).
PCR testing was not performed on this exhibit at this time.
CONCLUSIONS
FR07-0030-03.01 .1
The DNA profile obtained from the hair from the victim's right hand is consistent with the partial profile
obtained for Christine Morton.
FR07-0030-03 .02.1
The DNA profile obtained from the hair from the victim's right hand is consistent with the partial profile
obtained for Christine Morton.
FR07-0030-03.03. 1
No DNA profile was obtained from the hair from the victim's right hand.
FR07-0030- 14.01.7
The DNA profile obtained from the bloodstain on the blue bandana is consistent with the partial DNA profile
obtained for Christine Morton.
FR07-0030-1 4.01.12
The partial, predominant DNA profile obtained from the scrapings taken from the unstained areas of the
topside of the blue bandana originated from an unknown male. The minor alleles are consistent with the
partial profile obtained for Christine Morton. Michael Morton is excluded as a possible donor to this sample.
June 30, 2011
86452-K26
OF, CHIP
CE [[MARK
Accred,ti by the Arne,,can Society of Cme Loborntoy D,ectos / Lob000,y Aweduthon ood
Dallas, TX
FR07-0030-C
2of3
FR07-0030-1 5.01.1
The partial DNA profile obtained from the hair from the bandana is consistent with the partial profile
obtained for Christine Morton.
STATISTICAL ANALYSIS
Samples compared: FR07-0030-14.01,7 Bloodstain from the Blue Bandana
FR07-0030-15.01.1 Hair from the Bandana
FR07-0030-06.01.2-EF Oral Swab - Christine Morton (Epithelial Fraction used as
Victims Standard)
The estimated frequency of occurrence of this genetic profile at eight loci in five North American populations
is:
POPULATION DATABASE
FREQUENCY
Black
1 in 104.1 billion unrelated individuals
Caucasian
1 in 6.766 billion unrelated individuals
Southwest Hispanic
I in 34.64 billion unrelated individuals
Southeast Hispanic
1 in 3.171 billion unrelated individuals
General Asian
I in 4.167 billion unrelated individuals
DISPOSITION
In the absence of specific instruction, evidence will be returned to the submitting agency by Federal Express
or another appropriate carrier.
REVIEW
The results described in this report have been reviewed by the following individuals:
Technical
.
Reviewer:
Analyst:
Huma
Nd
I Team Leader"'
Rick W. Staub, Ph.D. / Laboratory Director
Procedures used in the analysis of this case adhere to the Quality Assurance Standards for Forensic DNA Testing Laboratories. Orchid Celhnark is accredited by the American Society of
Crime Laboratory Directors/Laboratory Accreditation Board and Forensic Quality Services-International The results in this report relate only to the items tested.
cc: Doug Arnold
Williamson County DA's Office
405 Martin Luther King
Box 1
Georgetown, TX 78626
June 30, 2011
86-452-K26
o RC 1110
CELLMARK
Accredited by the American Society of Crime Laboratory Directors / Laboratory Accteditation Booed
Della TX
FR07-0030-C
3 of
en
L1
N
rfl
N
N
0)
0)
rL
D.
N
'0
00
-
C'
tn
0
9
N
rn
N
N
N
N
--
+..
00
rq
—
><
0c
0
00
00
oc
N
00
.1
z
I
V
rcu
ar
Cq
4
P4
Z -
—
.-s -
F-
E
N
EN
.
'
°1
•9
H-2
>-
OL
oc
1';
U
C
C
U-
>(
—
><
—
U
—
'0
aN
Va
*
00
Ol
00
C4
>
*
en
Va
—
Va
—
—
—
r4
—
cli
Va
cl
r
r-4 -
C.;)
C
a-fl
C
Z
—
Z
0'
en
N
N
C
N
— 00
cc
U
7
00
00
U
—
00
-
cz
—
•
a)
N
N
U
N
7
Cl]
Va
N —
N
0'
N
—
—
'4Th
-
fn
ci
C
U
U
U
U
U
U
Z
U
00
—
U
04
Ln
Z
—N
*
I'D
z
CD
fl ) 00
CD
N
r14
N
N
N
06
N
0s
N
a-
N
00
cI
N
-
N
Z
—
—
—
—
C
z
00
10
C
C
z
0
10
0
0
m
0
00
.0
10
00
00
01)
10
C)
— LU
z
C) C.)
>Z' 0
C.)
C)
C
z
.
00
9r
N Va
•"
CD
S Va
04
29ca
Va
09ra
N V -,
o1
04 10
a-I
N Va
oc'im pe
Va
•.
•It
10 C4
00
N Va
Ô
N
00 0
0 N
I)
E
a)
0.
0.
0
'0
00
L)
0
0
0
0)
0)
0)-
r
In
'C
00
.-
CD
9
N
CD
-
m
I
oc
C
. 0)
9s
0
.0)
v- r
1.1-I
.0)
00
C
0)
-C
0
I
0 0
z
I)
z
0)
0)
U
z
c)
z
0'S
U-.
-
o2
Il
0) 4 0)
ca 11.0
0)
II >L)
WXX* Z
EXHIBIT B
.., It
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 8, 2008
/
/
/
/
z
M
/nty Sheriff's Office
Wu
50
Street
Gxas 78626
0R2008- I 0444A
Dear Ms. Lentz:
You have submitted to this office a request to reconsider Open Records Letter
No. 2008-10444 (2008). After review, we have determined that the prior ruling should be
corrected. See Gov't Code §§ 552.306, .352. Accordingly, we hereby withdraw the prior
ruling. This decision is substituted for Open Records Letter No. 2008-10444 (2008) and
serves as the colTect ruling. Your request was assigned ID# 326741.
The Williamson County Sheriff's Office (the "sheriff') received a request for all documents
regarding the investigation into a specified homicide. You claim the submitted information
is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.130, and 552.136
of the Government Code. We have considered the exceptions you claim and reviewed the
submitted representative sample of information.
Section 552.101 of the Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial, decision." Id.
§ 552.101. Section 552.101 encompasses information protected by other statutes. The
public availability of fingerprints is governed by chapter 560 of the Government Code. See
id. §sS 560.001(l) ("biometric identifier" means retina or iris scan, fingerprint, voiceprint,
or record of hand or face geometry), 560.003 (biometric identifier in possession of
We assume that the representative sample of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open
records letter does not reach, and therefore does not authorize the withholding of, any other requested records
to the extent that those records contain substantially different types of information than that submitted to this
office.
PosT OiI•JCL Box 12548, AUsTIN, 'ILXAS 7871 1 - 2548 1EL:(5 12)463-2100 \VWW.oA(;.S'I'A'I'I.J'X.Us
-
An
/:'jrt.F / 1: ,n,,/n;',uci
(jj,prnr,,,, if
r
lull/ito i'r,
/' i'ifliflI
00
/,'i'rri'lr,/ /'tipri
Ms. Katie Lentz - Page-
governmental body is exempt from disclosure under Act). Section 560.002 provides,
however, that "[a] governmental body that possesses a biometric identifier of an
individual.. . may not sell, lease, or otherwise disclose the biometric identifier to another
person unless . . . the individual consents to the disclosure[.]" Id. § 560.002(l)(A).
Therefore, as the authorized representative of the individual whose fingerprints are contained
in the submitted documents, the requestor has a right of access to that information under
section 560.002(1 )(A). See Open Records Decision No. 481 at 4 (1987) (privacy theories
not implicated when individual requests information concerning himself). Therefore, the
sheriff must release the submitted fingerprints, which we have marked, under
section 560.002 of the Government Code.
Section 552.101 also encompasses information protected by the Medical Practices Act
(the "MPA"). Access to medical records is governed by the MPA, chapter 159 of the
Occupations Code. Section 159.002 of the MPA provides:
(b) A record of the identity, diagnosis, evaluation, or treatment of a patient
by a physician that is created or maintained by a physician is confidential and
privileged and may not be disclosed except as provided by this chapter.
(c) A person who receives information from a confidential communication
or record as described by this chapter, other than a person listed in
Section 159.004 who is acting on the patient's behalf, may not disclose the
information except to the extent that disclosure is consistent with the
authorized purposes for which the information was first obtained.
0cc. Code §§ 159.002(b), (c). This office has concluded that the protection afforded by
section 159.002 extends only to records created by either a physician or someone under the
supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343
(1982). Further, information that is subject to the MPA also includes information that was
obtained from medical records. See 0cc. Code. § 159.002(a), (b), (c); see also Open
Records Decision No. 598 (1991).
Medical records must be released upon the governmental body's receipt of the patient's
signed, written consent, provided that the consent specifies (1) the information to be covered
by the release, (2) reasons or purposes for the release, and (3) the person to whom the
information is to be released. See 0cc. Code §§ 159.004, .005. Section 159.002(c) also
requires that any subsequent release of medical records be consistent with the purposes for
which the governmental body obtained the records. See Open Records Decision No. 565 at 7
(1990). We have marked a medical record that is subject to the MPA. The sheriff may only
disclose this record in accordance with the MPA.
Next, we note that portions of the remaining information are subject to section 552.022 of
the Government Code, which provides that:
Ms. Katie Lentz - Page
(a) Without limiting the amount or kind of information that is public
information under this chapter, the following categories of information are
public information and not excepted from required disclosure under this
chapter unless they are expressly confidential under other law:
(1) a completed report, audit, evaluation, or investigation made of,
for, or by a governmental body, except as provided by Section
552.108;
(17) information that is also contained in a public court recrd[]
Gov't Code § 552.022(a)(1), (17). A portion of the submitted information constitutes a
completed report made by the sheriff A completed report must be released under
section 552.022(a)( 1) unless the information is excepted from disclosure under
section 552.108 or expressly confidential under other law. The submitted information also
contains court-filed documents which must be released unless this information is expressly
confidential under other law. You claim the submitted information is subject to
sections 552.103 and 552.108 of the Government Code. Section 552.103 is a discretionary
exception and, thus, does not make information confidential. See, e.g., Dallas Area Rapid
Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App—Dallas 1999, no pet.)
(governmental body may waive section 552.103); Open Records Decision Nos. 542 at 4
(1990) (statutory predecessor to section 552.103 may be waived), 522 at 4 (1989)
(discretionary exceptions in general). Accordingly, the sheriff may not withhold any of the
information that is subject to section 552.022 of the Government Code pursuant to
section 552.103.
Section 552.108 of the Government Code is also a discretionary exception to disclosure
under the Act and, as such, does not constitute "other law" for purposes of
section 552.022(a)(17). See Open Records Decision Nos. 586 (1991) (governmental body
may waive section 552.108), 177 at 3 (1977) (statutory predecessor to section 552.108
subject to waiver). Accordingly, we conclude that the sheriff may not withhold the
documents that are subject to section 552.022(a)(17) under section 552.108. However,
because the sheriff claims that the documents that are subject to section 552.022(a)(1) are
excepted from disclosure pursuant to section 552.108, we will address the sheriff's claim
with respect to that information along with the remaining information that is not subject to
section 552.022. Further, because sections 552.10 1, 552.130, and 552.136 are other laws
for purposes of section 552.022, we will address the applicability of these exceptions to the
submitted information.
Next, we will address the sheriff's claim under section 552.108 of the Government Code for
the submitted information that is not subject to section 552.022(a)(17). Section 552.108
provides, in pertinent part:
Ms. Katie Lentz Page
(a) Information held by a law enforcement agency or prosecutor that deals
with the detection, investigation, or prosecution of crime is excepted from
[required public disclosure] if:
(1) release of the information would interfere with the detection,
investigation, or prosecution of crime[.]
(b) An internal record or notation of a law enforcement agency or prosecutor
that is maintained for internal use in matters relating to law enforcement or
prosecution is excepted from [required public disclosure] if:
(1) release of the internal record or notation would interfere with law
enforcement or prosecution[.]
Gov't Code § 552.108(a)(1), (b)(l). A governmental body that claims an exception to
disclosure under section 552.108 must reasonably explain how and why this exception is
applicable to the information that the governmental body seeks to withhold. See id.
§ 552.301(e)(1)(A); Exparte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision
No. 434 at 2-3 (1986). We note the information not subject to section 522.022(a)(17)
contains criminal investigation records from the City of Austin Police Department ("APD").
Section 552.108 may be invoked by the proper custodian of information relating to an
investigation or prosecution of criminal conduct. Open Records Decision No. 474 at 4-5
(1987). Where an agency possesses information relating to a pending case of a law
enforcement agency, the custodian of the records may withhold the information under
section 552.108 if( 1) it demonstrates that the information relates to the pending case and (2)
this office is provided with a representation from the law enforcement entity that the law
enforcement entity wishes to withhold the information. You inform us the submitted
information contains records relating to an ongoing criminal investigation being conducted
by APD. Further, APD has provided comments to this office objecting to the release of the
information at issue because its release would interfere with its ongoing criminal
investigation. Upon review, we find the release of the information at issue would interfere
with the detection, investigation, or prosecution of crime. See Houston Chronicle Pubi 'g Co.
v. City ofHouston, 531 S.W.2d 177 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref'd
n.ie. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests
that are present in active cases). Thus, the sheriff may withhold the information we have
marked under section 552.108(a)(1) of the Government Code.
You acknowledge the remaining information at issue relates to a criminal prosecution in
which the defendant was convicted and sentenced to life in prison. You state, however, the
defendant is currently appealing his request for post-conviction DNA testing. You state
release of the information at issue would interfere with this appeal. We note Texas courts
have analogized a post-conviction DNA proceeding to that of a habeas corpus proceeding.
See Ex Parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000); Cravin v. State, 95
S.W.3d 506, 510 (Tex. App.—Hóuston [1st Dist.]) 2002, pet. ref d). In Cravin, the State
Ms. Katie Lentz - Page
argued a post-conviction DNA proceeding makes a collateral attack into the validity of the
conviction, and therefore, is unlike a criminal trial where the guilt of the defendant is at
issue. Cravin, 95 S.W.3d at 510. The court agreed with the State and stated, "Unlike a
criminal trial, consideration of a post-conviction DNA proceeding does not necessarily
involve any witnesses or accusations against the appellant." Id. Thus, we find a postconviction DNA proceeding is not a criminal proceeding for section 552.108 purposes.
Accordingly, you have failed to demonstrate how release of the remaining information not
subject to section 552.022(a)(17) would interfere with the detection, investigation, or
prosecution of crime, and the sheriff may not withhold the remaining information at issue
under section 552.108(a)(1) or 552.108(b)(1) of the Government Code.
We now turn to your argument under section 552.103 for the information that is not subject
to subsections 552.022(a)(1) and (a)(l7). Section 552.103 provides in part:
(a) Information is excepted from [required public disclosure] if it is
information relating to litigation of a civil or criminal nature to which the
state or a political subdivision is or may be a party or to which an officer or
employee of the state or a political subdivision, as a consequence of the
person's office or employment, is or may be a party.
n
(c) Information relating to litigation involving a governmental body or an
officer or employee of a governmental body is excepted from disclosure
under Subsection (a) only if the litigation is pending or reasonably
anticipated on the date that the requestor applies to the officer for public
information for access to or duplication of the information.
Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant
facts and documents to show that section 552.103(a) is applicable in a particular situation.
The test for meeting this burden is a showing that (1) litigation is pending or reasonably
anticipated on the date the governmental body receives the request for information, and (2)
the information at issue is related to that litigation. See Thomas v. Cornyn, 71
S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.); Univ. of Tex. Law Sch. v. Tex. Legal
Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.); Heard v. Houston Post
Co., 684 S.W.2d 210, 212 (Tex. App.—Houston [1st Dist.] 1984, writ ref d n.r.e.); Open
Records Decision No. 551 at 4 (1990). The governmental body must meet both prongs of
this test for information to be excepted under section 552.103(a). We also note that
section 552.103(b) provides that "[for purposes of this section, the state or a political
subdivision is considered to be a party to litigation of a criminal nature until the applicable
statute of limitations has expired or until the defendant has exhausted all appellate and
postconviction remedies in state and federal court."
Ms. Katie Lentz - Page'.
The documents at issue relate to the prosecution of the named individual for murder, for
which he was convicted. You inform us that there is currently ongoing litigation in the form
of a request for post-conviction DNA testing, which is on appeal before the Third Court of
Appeals. You do not inform us, however, that the sheriff either is or expects to become a
party to the pending litigation. See Gov't Code § 552.103(a); Open Records Decision
No. 575 at 2 (1990). Under these circumstances, we require an affirmative representation
from the prosecuting attorney, who is the party to the litigation, that the prosecutor wants the
submitted information withheld from disclosure under section 552.103. You state that the
Williamson County District Attorney's Office is a party to the litigation and has requested
that the information be withheld pursuant to section 552.103. We note that the litigation was
pending on the date the request was received. Based on your argument, we find that the
information at issue relates to pending litigation for purposes of section 552.103. Therefore,
you may withhold the information that is not subject to subsections 552.022(a)(1) and
(a)(17) from disclosure under section 552.103(a). 2
Generally, however, once information has been obtained by all parties to the litigation
through discovery or otherwise, no section 552.103(a) interest exists with respect to that
information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that
has either been obtained from or provided to the opposing party in the anticipated litigation
is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further,
the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney
General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
We now address your remaining arguments for the information that is subject to
section 552.022. Section 552.101 also encompasses chapter 411 of the Government Code.
Criminal history record information ("CHRI") generated by the National Crime Information
Center or by the Texas Crime Information Center is confidential. Title 28, part 20 of the
Code of Federal Regulations governs the release of CHRI that states obtain from the federal
government or other states. Open Records Decision No. 565 (1990). The federal regulations
allow each state to follow its individual law with respect to the CHRI it generates. See id.
Section 411.083 of the Government Code deems confidential CHRI that the Department of
Public Safety ("DPS") maintains, except that DPS may disseminate this information as
provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083.
Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI;
however, a criminal justice agency may not release CHRI except to another criminal justice
agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in
chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another
criminal justice agency; however, those entities may not release CHRI except as provided
by chapter 411. See generally id. §§ 411.090-.127. Thus, any CHRI generated by the
federal government or another state may not be made available to the requestor except in
'As our ruling is dispositive, we need not address your remaining argument against disclosure of this
information.
Ms. Katie Lentz - Page
accordance with federal regulations. See ORD 565. Furthermore, any CHRI obtained from
DPS or any other criminal-justice agency must be withheld under section 552.101 in
conjunction with chapter 411, subchapter F of the Government Code. We have marked the
information that constitutes CHRI and is confidential under section 411.083. Therefore, the
information we have marked must be withheld under section 552. 101 of the Government
Code.
Section 552.101 also encompasses common-law privacy. For information to be protected
from public disclosure by the common-law right of privacy under section 552.101, the
information must meet the criteria set out in Industrial Foundation v. Texas Industrial
Accident Board, 540 S.W.2d 668, 685 (Tex. 1976). In Industrial Foundation, the Texas
Supreme Court stated that information is excepted from disclosure if (1) the information
contains highly intimate or embarrassing facts, the release of which would be highly
objectionable to a reasonable person, and (2) the information is not of legitimate concern to
the public. 540 S.W.2d at 685. This office has found some kinds of medical information or
information indicating disabilities or specific illnesses are excepted from required public
disclosure under common-law privacy. See Open Records Decision Nos. 470(1987) (illness
from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses,
operations, and physical handicaps). A compilation of an individual's criminal history is
also highly embarrassing information, the publication of which would be highly
objectionable to a reasonable person. Cf U.S. Dep 'I of Justice i'. Reporters comm. for
Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding
individual's privacy interest, court recognized distinction between public records found in
courthouse files and local police stations and compiled summary of information and noted
that individual has significant privacy interest in compilation of one's criminal history).
Furthermore, we find that a compilation of a private citizen's criminal history is generally
not of legitimate concern to the public. This office has also found that personal financial
information not related to a financial transaction between an individual and a governmental
body is intimate and embarrassing. See Open Records Decision Nos. 600 (1992) (public
employee's withholding allowance certificate, designation of beneficiary of employee's
retirement benefits, direct deposit authorization, and employee's decisions regarding
voluntary benefits programs, among others, are protected under common-law privacy), 545
(1990) (deferred compensation information, mortgage payments, assets, bills, and credit
history protected under common-law privacy), 373 (1983) (sources of income not related to
financial transaction between individual and governmental body protected under
common-law privacy). Upon review, we find that portions of the remaining information are
highly intimate or embarrassing and not of legitimate public interest. Thus, the sheriff must
generally withhold this information under section 552.101 in conjunction with common-law
privacy. We note that the requestor is the authorized representative of a -parent of the
individual whose private information is at issue. Thus, the requestor may have a right of
access to the marked information. Section 552.023(a) gives a person or a person's
authorized representative a special right of access, beyond the right of the general public, to
information held by a governmental body that relates to the person and that is -protected from
disclosure by laws intended to protect that person's privacy interests. See Gov't Code
Ms. Katie Lentz - Page
§552.023; Open Records Decision No. 481 at 4(1987) (privacy theories not implicated when
individual or authorized representative asks governmental body to provide information
concerning that individual). Therefore, if the requestor has a right of access to the private
information pertaining to his client's child, the sheriff may not withhold this information
under section 552.101. If the requestor does not have a right of access to such information,
the sheriff must withhold this information under section 552.101 in conjunction with
common-law privacy.
Section 552.130 of the Government Code excepts from public disclosure information that
relates to a motor vehicle operator's or driver's license or permit issued by an agency of this
state or a motor vehicle title or registration issued by an agency of this state. See Gov't Code
§ 552.130(a)(l)L2). We note that this provision only applies to motor vehicle record
information issued by the State of Texas, and not other states. The information you have
marked contains license plate numbers issued by other states. We also note that
section 552.130 protects personal privacy. The requestor is the authorized representative of
one of the individuals to whom a portion of the marked Texas motor vehicle record
information pertains. As such, the requestor has a right of access to his client's Texas motor
vehicle record information under section 552.023 of the Government Code. See id.
§ 552.023(a); Open Records Decision No. 481 at 4 (1987). Therefore, the sheriff must
withhold the Texas motor vehicle record information we have marked under
section 552.130.
Section 552.136 of the Government Code states that "[n]otwithstanding any other provision
of this chapter, a credit card, debit card, charge card, or access device number that is
collected, assembled, or maintained by or for a governmental body is confidential." Gov't
Code § 552.136. An access device number is one that maybe used to "(1) obtain money,
goods, services, or another thing of value; or (2) initiate a transfer of funds other than a
transfer originated solely by paper instrument." Id. We note, however, thatthe purpose of
section 552.136 is to protect the privacy interests of individuals, and because the right of
privacy lapses at death, the credit card numbers of a deceased individual may not be
withheld under section 552.136. Moore v. Charles B. Pierce Film Enters. Inc., 589 S.W.2d
489 (Tex. Civ. App.—Texarkana 1979, writ ref d n.r.e.) (Texas does not recognize relational
or derivative right of privacy). We also note that the requestor has a right of access to some
of the marked information. See Gov't Code § 552.023. Therefore, if the marked account
numbers pertain solely to the accounts of deceased individual or the requestor's client, they
are not excepted from disclosure under section 552.136 and must be released. However, if
the marked account numbers pertain to accounts in which a living person, who is not the
requestor's client, has an interest, they must be withheld under section 552.136 of the
Government Code.
In summary, the marked medical record may only be released in accordance with the MPA.
With the exception of basic information, the sheriff may withhold the information we have
marked under section 552.108(a)(1). The sheriff may withhold the information that is not
subject to subsections 552.022(a)( 1) and (a)( 17) under section 552.103. The sheriff must
Ms. Katie Lentz - Page.
withhold the criminal history record information we have marked under section 552.101 in
conjunction with section 411.083 of the Government Code. If the requestor does not have
a right of access to information pertaining to his client's child, then the sheriff must withhold
this information and the remaining information we have marked under section 552.101 in
conjunction with common-law privacy. The sheriff also must withhold the Texas motor
vehicle record information we have marked under section 552.130. If the marked account
numbers pertain to accounts in which a living person, who is not the requestor's client, has
an interest, they must be withheld under section 552.136 of the Government Code. The
remaining information must be released.
This letter ruling is limited to the particular records at issue in this request and limited to the
facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the
governmental body wants to challenge this ruling, the governmental body must file suit in
Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of
such a challenge, the governmental body must file suit within 10 calendar days.
Id. § 552.353(b)(3). If the governmental body does not file suit over this ruling and the
governmental body does not comply with it, then both the requestor and the attorney
general have the right to file suit against the governmental body to enforce this ruling.
Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the
statute, the attorney general expects that, upon receiving this ruling, the governmental body
will either release the public records promptly pursuant to section 552.221(a) of the
Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the
Government Code. If the governmental body fails to do one of these things, then the
requestor should report that failure to the attorney general's Open Government Hotline,
toll free, at (877) 673-6839. The requestor may also file a complaint with the district or
county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can challenge that decision by suing the governmental
body. Id. § 552.321(a); Texas Dep 't of Pub. Safety V. Gilbreath , 842 S.W.2d 408, 411
(Tex. App.—Austin 1992, no writ).
Please remember that under the Act the release of information triggers certain procedures
for costs and charges to the requestor. If records are released in compliance with this ruling,
be sure that all charges for the information are at or below the legal amounts. Questions or
Ms. Katie Lentz - Pag
coinp!ai!ts about over-charging must be directed to Hadassah Schloss at the Office of the
Attorney General at (512) 475-2497.
If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. Although there is no statutory deadline for
contacting us, the attorney general prefers to receive any comments within 10 calendar days
of the date of this ruling.
Sincerely,
\j
Melanie J. Villars
Assistant Attorney General
Open Records Division
MJV/jh
Ref: ID# 326741
Enc. Submitted documents
c:
Mr. Christopher Lau
Innocence Project
100 Fifth Avenue, 3rd Floor
New York, New York 10011
(w/o enclosures)
Ms. Cathie Childs
Assistant City Attorney
City of Austin
P.O. Box 1088
Austin, Texas 78767-1088
(w/o enclosures)
EXHIBIT C
Tape: Rita Kirkpatrick
SUPPLEMENTARY OFFENSE REPORT
Nof!8J2ñ
Williamson County Sheriff's Dept.
Victim: Chris Morton
14 Hazel urst
8-24-86
pag e. .
RESULTS OF INVESTIGATION
This is a transcript of a taped conversation between
on 8-24-86.
D - Don Wood, Sgt.
0 - May
Rita
Kirkpatrick and Sgt. Don Wood
R - Rita Kirkpatrick (Chris Morton's mother)
(Means tape is inaudible)
0 - Operator
r help you?
D - Yes, this is Sgt. Don Wood with the Williamson County Sheriff's Office and r need
to charge this call to the Sheriff's Department at 863-2114, area code 512.
0-114?
D - Right.
0 - Thank you, sir.
D - Uh, huh. Thank you.
R - Hello?
D - Hello. Mrs. Kirkpatrick?
R - Yes.
D - This is Sgt. Wood.
R - Yeah, I've
wanted to - to, ah, repeat a conversation let me get ..., okay?
D - Okay.
R - Do you want to tape this or not? This was the first time I was alone with Eric
since my daughter was killed.
D - Okay.
R - And, ah, he came in my bedroom, closed the door and began to talk, okay?
D - Okay. You don't mind if r tape, then.
R - Please do and I'll tell you that yesterday was ... child psychology was the first
time ... real anger in missing his mother. One week to the day from the funeral.
Okay.
R - It was a bad day of biting and ... and kicking and saying, I want Moninie, which
he has not been doing.
D - Urn.
Cont'd.
4
Tape: Rita Kirkpatrick
86-08-126
paqe 2
R - Okay. Marilee told me to come write this down and T think it was probably a very
important thing to do. I'm - with a three year old - you keep remembering.
D - Right.
R - Alright, so this is it. Approximately 11:00 am., August 24th, Eric and I were
alone at my house in Pearland which was the first time he and I had been alone
since his mother's death. I was putting on make-up in the bathroom. Eric layed
his ... blanket on the floor of my bedroom. He said, Momie is sleenina in the
flowers. His dad had told him that last week at the cemetary. Then he kicked
the blanket and said, Mowmie, get up. Ah, I've got grandmother and Eric - okay,
G for grandmother. Uh, G: Don't kick Moninie, Eric.
Mofrnnies crying. She's ... stop it. Go away.
EF IcK
Grandmother: Why is she crying?
Eric: Cause, the monster's there.
Grandmother: What's he doing?
Eric: He hit Momie. He broke the bed.
Grandmother: Is Monimie still crying?
No, Moimnie stopped.
Then what happened? (My heart was in my throat, my stomach was in my toes, but
I knew I had to do it. Okay.)
Eric: The monster throw a blue suitcase on the bed. He's mad.
Did he put anything else on the bed?
No.
Grandmother: Did the monster hurt Momie?
Yes.
Momte go to hospital.
Grandmother: Then what did the monster do?
Eric: He said Moninie's in the garage.
Was he big?
Yeah.
Did he have on gloves?
Yeah, red.
What did he carry in his red gloves?
Basket.
What was in the basket?
S
-__J.,_I
Tape: Rita Kirkpatrick
86-08-126
page 3
Wood.
Did he ... have Daddy's gun or Momie's purse?
(Sort of a vague, "Yeah.")
But he did have wood?
Yeah.
What kind of wood, Eric?
Like Daddy's
Did he have the
ci
. for the fireplace? Did he have anything from the fireplace?
"
(Sort of a vaque, "No.")
Did the monster leave then?
Yes.
How did he leave?
The door.
Which door, Eric?
Front door.
Eric, was it the front door or the patio door? Did he go out on the deck or out
in the front?
The front.
Where was Daddy, Eric? (And this is where Grandmother almost died.)
Was Daddy there?
No. Momie and Eric was there.
So. Sgt. Wood, I'd get off the ... domestic thing now and look for the monster
and I have no more suspicions in my mind that Mike did it. I have had.
D - Uh, huh.
R - But there must be mad people out there. Uh, I guess I've been closer to the
child - Merilee has been close. We're off the tape, right?
D - Right.
R - Okay. Merilee's been ... putting what is this ... now. But Frank hasn't seen as,
I mean, Eric hasn't seen as much of his other grandparents and I guess my daughter
and I were ... close that she always talked about me to him and, you know, I saw
then at least once a month. And this is in his entire life and It was the
weirdest thing - It was like this child wanted to tell this story and he had to
wait until his grandmother was halfway sane - no longer crying, no longer, you know rnnt'dl
-
Tape: Rita Kirkpatrick
-
8648-126
page 4
D - Right.
R - And I put on make-up for the first time.
0 - Urn huh.
R - And we were just in there putting on the make-up, but he did get up and close that
bedroom door. Now, he's been paranoid about anybody closing a door.
0 - Urn huh.
R - We figured, you know, what? But I know now he witnessed the - and he's going to
need help.
0 - Very definitely.
R - He did dump this off. But I'm going to ask those members of the family not to
pump him because I doubt if he'd ever again say this
0 - I doubt . 'bout the only one that's going to be able to work with him on this
looks like is going to be you and if they don't even mention it would be cireat
cause they'll confuse him if they do.
R - Right. ... butyou don't ... testimony of a child's
0 - Yes, ma'am, we can. Sure can.
R - ... big monster with a big moustache that does this type thing?
0 - No, ma'am, I don't. Do the
-r-
is he still there?
R - No. No, no, no. Merilee took him out of the room. LJh, what I'm thinking
though very strongly is that he either did not know the murderer or It was
somebody he failed to recognize.
0 - Okay. There's one other thing I want to insert here.
R - Okay.
0 - And this bothers me.
R - Okay.
0 - Okay? Has he ever seen Mike in his skin diving suit?
R - I don't know. I would think they - P11 find out for you.
O - When he talks about monsters, you know, if a person was just In there R - Oh, I thought of that. See, since I thought he could even of been someone else
they knew, you know, that he wouldn't have recognized.
D - Um huh.
R - He also - oh,
I
left one out and that was, it was dark but the lights were on.
0 - It was dark bUt the lights were on?
Cont ' d.
Tape: Rita Kirkpatrick
86-08-126
page 5
R - Dark ... I said, "Was it dark?"
Yeah, it's dark.
Were the lights on?
Yeah.
13- We need to find out about that skin diving suit real, real bad bacause that, ah,
you know, that was - that is something that a child would describe as a monster.
R - Right, that's true. That's true.
13 - And I do know that Mike was very meticulous with his skin diving suit.
R - Urn huh.
13 - And I do know that he hung it all up in just, ah, you know, very, very neat and
very particular about it and it wasn't that way. It was throwed in a bag in the
corner of the garage.
R - And it was in the garage?
13 - Yes, ma'am.
R - Okay.
13 - It was in a bag. It wasn't hunci up like it always is.
R - Okay.
13 - In fact, somebody that was at his house says I cannot understand why - said this
is just not right because Mike does not do his equipment like that - said he's
just like he's in love with it - said he is so meticulous and so careful with
it. There is just no way that he would throw that stuff in a corner in a bag
like that.
R - Now, I didn't have much to do with skin diving, so, I really, you know, don't
know whether he ever saw him in that or not.
13 - tkn huh.
R - But I certainly will -find out for you if - if Eric ever saw him in it.
13 - Okay.
R - ... looks like ... or something 13 - Huh?
R - I just don't see how his father could have ... you know,
D - Uhhuh.
R - That's why I, ab, thought of ...
D- Okay.
Tape: Rita Kirkpatrick
86-08-126
page 6
R - I know the majority - I mean, like yawl told me, the majority of these things are
right under the roof and, or someone close and someone somebody knows, you know.
0 - Urn huh.
R - But, ah, this isn't, you know, something I wanted to repeat to him
0 - Yes, very definitely. Well, if he'd of said, a bad man or something like that R-
-
D - You know and when he says monster, you know, that's something that you would
think something out of the nrdinry you kow,—nQt a— no-t-kind of like
being.
R - Uh huh. Yeah. This is so, again, I guess where we need the child psychologist
to tell us the three year olds relate everything bad to monsters, you know.
0 - Right.
R - Alot of things could be related to monsters.
0 - Right. Is R - Cause humans don't do this. Monsters do
0 - Right.
- You know, and that must be possible, I don't know.
O - Very definitely.
R - But he just layed down on his little blanket and just wanted to talk and I tell
you, I didn't really want to but I thought I better do it
O - I am so glad you did because R - ... had to do it ... we had to find out.
0 - We got to know. We've got to know.
R - Alright, Sgt., well, listen, I'll let you go - and ah, ah, I will find out.
O - Okay.
R - But that is, ah, ... unless I understood that hobby was pretty well over.
D - Well, now, he went skin diving the day before.
R - Oh, he had been.
O - Well, when he came back supposedly, ... in a bag.
R - What kind of a bag?
O - tJh, I don't know. r didn't see the bag. One of the officers was talking to me.
I wasn't in the garage.
Cont'd.
Tape: Rita Kirkpatrick
R - Yeah. Maybe like a
86-08-126
page 7
gym bag like he just come back and hadn't hung it up yet or -
D - Well, they said that whenever - the information that I got from people close to
him - that when he came back from skin diving, that stuff was meticulously cleaned
and picked up.
R - Uh huh.
D - And according to him, when he come back, he layed down and went to sleep.
R - Uh huh.
0 - I just, you know, I just don't know. I just don't know.
0 - IJh huh.
R - Merilee I think will.
D - That's what I was thinking if you could talk to her about it. She would know
more about it and know what kind of a suit he wore cause I never seen this suit.
Uh, we need to find out if it was a full suit, you know, the full skin aear and
everything which I imagine it was with the top that goes over your head and
most of those skin diving - divers have red gloves or a lot of them do.
R - Uh huh.
0 - And that red gloves really interests me.
R - I thought it was blood.. See, I mean - I kind of discounted it and thought he
as far as ... his hands would have been red unless, you know ... they stopped
to wash, I don't know, but, you know, that's what r ... was blood 0 - lJh huh.
R - You know. Well, I'll tell you, what we're going to do is, ah, we're going away
to try to get ... and get up and get out for a little bit with him and ah, now
Mike is supposed to pick her up ... and pick him up, ah, he's suppose to stay
overnight and pick him up and take him to his folks in East, Texas.
D - tih huh.
R - For a few days. I believe that's the plan
0 - Uh, huh.
R - So, I don't - don't know what time he plans to be here
O - Uh huh.
R - ... but I told Merilee ... before he got here.
- Uh huh.
R - So, ah, we'll be on back within two or three hours, anyway.
0 - Okay.
Cont'd.
Tape: Rita Kirkpatrick
86-08-126
page 8
R - And during that time, P11 have a chance to ask her.
D - Okay and real good. And would you call back and the S.O. can get ahold of me.
I don't know where I'll be, but if you would call back and ask them to call me,
then I'll return your call and we'll kind of go from there. Ah, are yawl goinq
to be down here next week?
R - I - I dont know.
O - Okay. Alright, let me ask you to do this. Would you please set down and write
a statement with the date and the time that you talked to Eric and put your full
conversation in there and sign it and date it in time and keep that for me so
when we - g o t in contact- - if I have to I'll run up there where yawl livc because
we definitely need to get this thing solved and get whoever this is off the
street.
R - I agree absolutely.
Alright. Thank you, Sgt.
D - Okay, Rita, we'll see you a little later then.
R - Bye bye.
D - Okay. Bye bye.
End of tape
EXHIBIT D
SUPPLEMENTARY OFFENSE REPORT
Ho
,i ci de
offense-----------:------.—.-------._.
W-0fia nsan County Sheriff's Dept.
Victim:
Gay____ at_
CbiS MartL n-_
^
^
?114 Hazethurs±__------ ____
_ ___.
Case he
B5- 08-126
---
I.oca . M. 911 6 Hazel burst
Dat
8-14-86
RESULTS OF r VESTIGATION
This reportinc Officer observed a Person standinc on the corner of Broadmeade and
'Iazeihurst at approximately 6:00 a.m. on the 14th. the subject was identified as
.Ulan Robinson of 9307 Tottenham Court who was waitinc for the. Austin Metro Bus.
=ie exclained that he waited for the bus at the intersection at that time every
morning. Fir. Robinson advised that he Drobably couldn't be of any help but his phone
numbers were recorded as: home 258-5503, work 463-2435. Later that morning a subject
--- r
street and he S tonoed to advise
-042- dor, l
that his wife and a Joni St. Martin from 1320 Adonis had on several occasions
observed a male Dark a preen van on the street behind the Hazelhurst address, then
the subject would net out and walk into the wooded area off the road. It was also
learned that several addresses on Hazelhurst receive the Austin American Statesman
which is delivered between 4:30 and 6:30 a.m.
The sub.iect from 13202 Adonis advised that from the way his wife talks. that he
believes Joni St_ Partin knows where the subject in the areen van lives.
=35 Traylor
Copies: Sheriff, CID. Wood. Traylor
cr_
J
u1QfL
MAM
U
t-
-I
Ith
'3Oow
-77i
0
Hi.
\)
I
I. CIO
EXHIBIT E
Texas Governor Defends Shakeup of Commission - Nilimes corn
hllp://www .nytiins.conV2OO9/ I O/O2/us/O21cxas.lin1? r= I &pagcwa..
This copy is for your personal. noncommercial use only. You can order preseo tat ion -ready copies for
distribution to your colleagues, clients or customers here or use the 'Rep Tints' tool that appears next to
any article Vicit'.w nytrepnnts corn for samples and additional information
ilr a reprint of this artide
fln'tx
October 2,
PRINTER
.rnin,io,..,
FORMAT
2009
Texas Governor Defends Shakeup of Commission
By JAMES C. McKINLEY Jr.
HOUSTON - Just before he was executed in
2004
for setting a fire that killed his three children, Cameron T. Willingham
declared, "I am an innocent man convicted of a crime I did not commit." Now his words seem to be echoing in the race for
governor of Texas.
In what some opponents say looks like a political move and Gov Rick Pert-v saw was "business as usual," the governor
replaced the head of the Texas Forensic Science Commission and two other members on Wednesday, just 48 hours before
the commission was to hear testimony from an arson expert who believes that Mr. Willingham was convicted on faulty
testimony, a conclusion that has been supported by other experts in the field.
Mr. Periy's decision to shake up the commission and put one of his political allies in charge has, at the least, delayed the
inquiry into the Willingham case. While Mr. Perry says he has no political motive for the move, his opponents have called
for the commission to finish its inquiry.
"If a mistake was made in this case, we need to know it," Tom Schieffer, a Fort Worth businessman and a Democratic
candidate for governor, said in a statement. "No one in public life should ever be afraid of the truth"
Mr. Peny's opponent in the Republican primary, Senator Kay Bailey Hutchison, also questioned what harm the hearing
could do. "[am for the death penalty," Ms. Hutchison told The Dallas Morning News, but always with the absolute
assurance that you have the ability to be sure, with the technology that we have, that a person is guilty."
Mr. Perry denied Thursday that the changes he had made at the commission were intended to quash the investigation. At a
news conference for his re-election campaign, he said, "Those individuals' terms were up, so we're replacing them "
He said the commission was "going to take a look at any new information that anybody has," adding that "to make a
statement now that it was not arson is a little premature."
The governor was in office when Mr. Willingham was executed on Feb. 17, 2004. He denied the condemned man a reprieve
even after a detailed report by an arson expert said the evidence that Mr. Willingham had set the fire was flimsy and
inconclusive.
Last month, Mr Perry expressed confidence that Mr. Willingham was guilty and played down reports casting doubt on the
original investigation, calling the authors "supposed experts," while making a quotes gesture with his fingers.
Mr. Perry, facing the primary challenge from Ms. Hutchison, has been working to shore up his support among
conservatives, who usually decide the Republican primary here.
Mr. Willingham, an unemployed auto mechanic with a history of petty crime, was convicted of setting his house in
Corsicana on fire in 1991. His three small daughters died in the blaze, and he maintained right up to his death that he had
fried to save them. The police doubted his story partly because his bare feet had not been burned.
1 of
10/9/2009 3:21 PM
Texas Governor Defends Shakeup of Commission - NYTimes.com
hu1p://www.n1inEs.co1nf2009/1 O/O2/us/O2tcxas.lml?r=1&pagcwa.
Local arson investigators testified at his trial that, judging by the charring and fracture patterns of broken glass left by the
blaze, someone had poured a flammable liquid under the children's beds, along the hallway and out the front door. The jury
took less than an hour to convict Mr. Willingham.
In 2004, however, Gerald L. Hurst, an Austin scientist and fire investigator working in Mr. Willingham's behalf, reviewed
the evidence and determined the investigators had relied on several outdated and discredited methods to reach their
conclusions. Most of the evidence could be explained by an accidental fire, Dr. Hurst said.
That conclusion was confirmed six weeks ago by an independent arson expert hired by the Forensic Science Commission,
which was created in 2005 to investigate mistakes in crime laboratories after scandals rocked the one in Houston. The
expert, Craig L. Beyler, of Baltimore, said in his August report that the investigators had a poor understanding of fire
science" and that the evidence they cited did not support a finding of arson.
Mr. Beyler was to testify before the commission in Dallas on Friday. But the newly appointed chainn an, John M. Bradley,
the district attorney in Williamson County, canceled the hearing, saying he did not know enough about the inquiry. "I felt I
had been asked to take a final exam without having an opportunity to study for it," he said.
Mr. Bradley said he did not know if he would continue the inquiry into the Willingham conviction that his predecessor had
started. He said he wanted to consult with the lawmakers who created the commission about its mission
The former chairman, Sam Bassett, anAustin lawyer whom Mr. Perry had twice appointed to the commission - and could
have reappointed - said the governor had not told him why he was replaced. Mr. Bassett said he had hoped to produce a
definitive report on the case by next spring.
"I hope they continue and complete the Willingham investigation," he said. "It's important for the future of criminal justice
in Texas to make sure good science is being used in the courtroom."
Copyright 2009 The New York Ti mes Cornpar
Prl%acy Policy
2of2
I
Terms of Sasice
I Seamh I
CeTec09ns
I
RS5
I
First Look
I t.Q I
Contact Us
I
Waic for US
I
Site Ma
10/9/20093:21 PM
Page 1 of 7
BI .... ­ I H
^
Select 'Print' in your browser menu to print this document.
Copyright 2009. Incisive Media US Properties, LLC. All rights reserved. Texas Lawyer
Online
Page printed from: http://www.texaslawyer.com
Back to Article
Fired Up: Changes Sought for Texas Forensic Science
Commission
Mary Alice Robbins
Texas Lawyer
11-05-2009
The prosecutor heading a commission at the center of a political firestorm will recommend
ways to improve the panel's operations at a Senate Criminal Justice Committee hearing
Nov. 10. The controversy ignited in September when Gay. Rick Perry abruptly replaced
two commission members two days before they were to review an arson expert's report in
the case of Cameron Todd Willingham, a death-row inmate executed in 2004 after Perry
declined to grant him a 30-day reprieve.
Anti-death penalty activists have contended that Willingham was innocent and that Perry
replaced the commission members to block a review of a report questioning whether the
fire Willingham was accused of starting was arson.
Williamson County District Attorney John Bradley, the new chairman of the Texas Forensic
Science commission, says he will recommend, among other things at the Senate
committee hearing, that during an ongoing investigation, the commission should be
allowed to meet in private to discuss the matter being investigated and that reports to the
commission on an investigation be withheld from public release until the commission
concludes its deliberations.
"It's not a good idea to conduct an investigation in a public forum," Bradley says.
Other agencies that have an investigative function, including those in law enforcement,
are protected from the Texas Open Meetings Act and the Public Information Act during
their deliberations, Bradley says. When investigations are conducted in public, it is difficult
to protect them from outside influences, he says.
Bradley says he also will suggest that commission members be appointed for three-year
http ://www. law. corn!] sp/tx/PubArticleFriendlyTX.j sp?id= 1202435231400
11/12/2009
Page 2 of 7
terms, not the two years currently provided under Texas Code of Criminal Procedure
Article 38.01, so that there is time to train members to carry out the commission's
mission.
"The commission's work is focused on investigating and then deliberating on allegations of
negligence and misconduct in the forensic science field," Bradley says.
Bradley says that when people act as investigators and judges, they typically should have
some background in that work. Most members of the commission don't do investigative
work and need training, he says.
One of the things the commission needs to do, Bradley says, is to develop and adopt
written policies and procedures, which it has never had.
But Bradley's proposed changes come as the commission's former chairman says the
governor replaced him when the commission started looking into the science that helped
convict a man of starting a fire that killed his three young daughters.
Perry appointed Bradley to the commission and named him chairman on Sept. 30 - two
days before the commission was scheduled to review the findings of an arson expert hired
by the commission to evaluate the methods and procedures used by fire investigators in
the arson case against Willingham. The Willingham case is one of three the commission
has looked into, but it is the first one to reach the report stage.
The Texas Legislature created the nine-member commission during the 2005 session but
did not fund it until 2007, Bradley says.
According to the Texas Forensic Science Commission's Web site, its mission includes
"investigating in a timely manner, any allegation of professional negligence or misconduct
that would substantially affect the integrity of the results of a forensic analysis conducted
by an accredited laboratory, facility or entity."
Under the 2005 statute, the governor appoints four members of the commission, including
a prosecutor, a criminal-defense attorney and two members with forensic science
experience. The lieutenant governor appoints three members and the attorney general
appoints two members, all from the forensic science field.
Bradley is not the only new appointee to the forensic science commission. Perry replaced
all four of his commission appointees - two on Sept. 30 and two on Oct. 9.
Perry is seeking re-election in 2010 and faces the prospect of a close Republican primary
race against U.S. Sen. Kay Bailey Hutchison, R-Texas. In 2004, Perry declined to grant a
30-day reprieve to Willingham after his defense lawyers submitted new evidence shortly
before the state executed Willingham.
Barry Scheck, co-director of The Innocence Project of New York City, says Gerald Hurst,
http://www.law.com/jsp/tx/PubArticleFriendlyTX.jsp?id=120243523 1400
11/12/2009
Page 3 of 7
an Austin-based chemist and fire expert, filed an affidavit with the governor's office
stating that fire investigators were incorrect in their finding that an accelerant was used to
start the 1991 house fire that killed Willingham's daughters. The Innocence Project
submitted the complaint that led to the forensic science commission's decision to
investigate the Willingham case.
After he was appointed, Bradley canceled the commission's Oct. 2 hearing with Craig
Beyler, the fire protection engineer and arson expert hired by the commission to evaluate
the science used by local and state arson investigators looking into the fire at Willingham's
home in Corsicana. Beyler concluded in a report the commission released in August that
the evidence did not sustain the finding of arson that led to Willingham's capital murder
conviction in 1992 and execution in 2004.
Bradley says he did not think it would be fair to hold the Oct. 2 hearing less than 48 hours
after he was appointed to the commission. At the time the hearing was scheduled, the
governor had not yet appointed two of the commission members, he says.
According to Beyler's report to the commission, the investigation of the fire in the
Willingham case did not comport with modern standards of care in such investigations or
with the standards of care at the time of the fire.
"It should, in my view, have been written up as cause undetermined," Beyler, technical
director of Hughes Associates Inc. in Baltimore, says of the 1991 fire.
State Sen. John Whitmire, D-Houston, chairs the criminal justice committee and was a
sponsor of H.B. 1068, the 2005 measure that created the Texas Forensic Science
Commission. Whitmire, of counsel at Locke Lord Bissell & Liddell, says he will ask Bradley
at the Nov. 10 hearing for a status report on the commission and for Bradley's
assessment of the scope and parameters of the commission's authority.
But Whitmire says he will also ask Bradley, "Oh, by the way, are you going to hear from
Beyler?"
Whitmire says he is not troubled by Perry's replacement of the commission members.
"My position is: He is the governor," Whitmire says. "He makes appointments."
But Whitmire says the timing of Perry's decision to replace these commission members
was unfortunate.
If he had made the decision a month earlier, this situation wouldn't be the way it is,"
Whitmire says.
Whitmire says the situation does not prevent a new set of members from doing their
work, which he says is "critical." He says the important thing is to learn from the forensics
and move forward.
http://www.law.com/jsp/tx/PubArticleFriendlyTXjsp?id=120243523 1400
11/12/2009
Page 4 of 7
Bradley declines comment on the investigation of the Willingham case because it is still
pending before the commission.
But Bradley says, "I do plan to recommend that the commission move forward and
complete a report in the Willingham case. I think it's in the best interest of the public to
have the report come out."
Referring to the Willingham case, Chris Cutrone, Perry's deputy press secretary, says,
"The governor has reviewed all the facts of the case. He has come to the same conclusion
that all the Texas courts and federal courts did - that he was guilty."
But Scheck says, "If there is no evidence of arson, there is no case as a legal matter."
Whitmire says the purpose of the Texas Forensic Science Commission is not to determine
whether the state executed an innocent man.
"That's why we have a trial jury; that's why we have the appellate system," he says.
"I do think it's fair to look at forensic science in any case, with the goal of having to do it
better in the future," Whitmire says.
Austin criminal-defense attorney Sam Bassett, the forensic science commission's former
chairman, says the commission paid Beyler about $30,000 to review whether appropriate
science was employed in Willingham's case and in the case of Ernest Ray Willis. Willis was
sentenced to death for the 1986 deaths of two women who died in an Iraan house fire
that was ruled an arson, but he ultimately walked out of prison a free man in 2004 after a
federal judge ruled that his due process rights were violated, among other things.
But most of the news media's attention has focused on Willingham's case.
Bassett, a partner in Minton Burton Foster & Collins, says he thinks it is within the
commission's statutory authority to evaluate fire investigators' techniques and testimony
in that case.
"I thought it was very appropriate to investigate that for the sake of the future, not to
second-guess anybody," he says.
For most of its existence the commission has worked in obscurity. In fact, the commission
was unable to do anything at all for a while.
Alan Levy, a Tarrant County assistant district attorney who served on the commission
from 2005 until late September of this year, says the commission did nothing in its first
two years of existence.
"We didn't have authority to meet at our own expense, so there were no meetings," Levy
says.
http://www.law.com/jsp/tx/PubArticleFriendlyTX.jsp?id=120243523 1400
11/12/2009
Page 5 of 7
Although he had served on the commission since 2005, Bassett says that before he was
replaced, he had asked the governor's office to allow him to remain on the commission
another two years.
"I wanted to finish the work we started," Bassett says.
Levy says he wrote a letter to Perry in support of Bassett's request for reappointment.
Bassett says he learned that he would not be reappointed in a call shortly before 5 p.m.
Sept. 29 from Doris Scott, a staff member in the governor's appointments office. As
Bassett recalls, Scott told him, "The governor wants to thank you for your service, and the
commission will be taking a different direction."
Levy, who also had been a commission member since 2005, says he received a similar call
from a woman in the governor's office in late September, notifying him that he was no
longer on the commission. While Levy cannot recall the name of the person who called
him or the exact date of the call, he says the message was that the governor's office had
decided to go in another direction.
Cutrone says the terms of the four commission members whom Perry replaced had
expired Sept. 1. The majority of the gubernatorial appointees whose terms have expired
are not reappointed, he says.
But Bassett says he believes the investigation of the Willingham case was the reason the
governor did not reappoint him.
The commission voted to investigate the Willingham matter at its Aug. 15, 2008, meeting,
according to minutes of that meeting. Bassett says the commission voted unanimously to
conduct that investigation after receiving the complaint from The Innocence Project.
Scheck says The Innocence Project had advocated for the formation of a forensic science
commission in Texas and testified in support of the bill that created the commission in
2005.
The Innocence Project's concern, Scheck says, is that best practices and valid procedures
have not been followed in some criminal defendants' cases.
Scheck, who also is a professor at the Benjamin N. Cardozo School of Law in New York,
says the issue in front of the Texas Forensic Science Commission is not and never has
been whether Willingham was an innocent man. The issue, he says, is whether the science
used against Willingham was valid science.
If the commission finds that bad science was used, it can make sure people no longer use
similar investigative methods and look at how many other cases those methods were used
in, Scheck says.
http://www.law.com/jsp/tx/PubArticleFriendlyTX.jsp?id=120243523 1400
11/12/2009
Page 6 of 7
But, according to Bassett, the commission's investigation of Willingham's case raised
concerns in the governor's office. Bassett says that in February, he discussed the
Willingham case at a meeting with David Cabrales, then the governor's general counsel,
and Mary Anne Wiley, deputy general counsel for Perry. The Willingham case also was the
topic of discussion during a meeting with Wiley in March, he says.
"It was clear to me they [Cabrales and Wiley] didn't think the commission should be
investigating the Willingham matter," Bassett says. "The stated reason was they didn't
think it was the type of investigation the commission should be in."
Cutrone declines a request to interview Wiley and Scott.
"We have a policy in the governor's office that only people in the press office speak to the
press," Cutrone says.
Cabrales, now a partner in Locke Lord in Dallas, did not return two telephone calls for
Comment.
Levy says he believes "things went south" for the commission after Bassett released
Beyler's report to the public in August "as he was required by law to do."
Bassett says, "I would have preferred to keep the report private until we finished our
investigation. I was advised by the attorney general's office I had no choice but to release
the report."
In an e-mail responding to Texas Lawyer's request for comment, Texas Office of the
Attorney General spokesman Jerry Strickland writes, "Our office provides Counsel to a
variety of clients every day; however, we are not at liberty to discuss attorney client
conversations."
H.B. 1068 requires the commission to make available to the public all reports on
investigations. That's one of the requirements that Bradley says he hopes to change.
Terry Jacobson, Corsicana's city attorney, questioned whether the commission has
authority to review the fire investigation in Willingham's case in an Oct. 7 letter to
Bradley. In the letter, a copy of which Jacobson provided to Texas Lawyer, Jacobson cited
a provision in §22 of H.B. 1068 that reads, "The change in law made by this Act applies to
evidence tested on or after the effective date of this Act." As noted in the letter, the
statute provides exceptions to that cutoff date for people confined in prison or in a Texas
Youth Commission facility after adjudication for conduct that constitutes a felony.
However, H.B. 1068 is the result of the Legislature combining two bills. The first part of
the bill deals with the Texas Forensic Science Commission and the rest of the bill deals
with forensic analysis of evidence and the admissibility of evidence under Code of Criminal
Procedure Article 38.35. It's unclear whether the §22 provision applies to the forensic
science commission.
http://www.law.com/jsp/tx/PubArticleFriendlyTXjsp?id=120243523 1400
11/12/2009
Page 7 of 7
But Jacobson says, "I think it's crystal clear it applies to the entire act."
Whitmire says he believes the forensic science commission has authority to look at
forensics in the past.
Bradley says he will seek clarification on what limitations there are to the commission's
authority. He says it is not clear in the statute whether the commission's investigations
can be retroactive from its Sept. 1, 2005, effective date or only prospective.
Notes Bradley, "If the conclusion is you can't look back 30 years, people need to be told."
%>
terms & conditions
I privacy I advertising I
about texaslawyer.com
About ALM I About Law.com J Customer SuQpy.t I R e prints
Copyright 2009. ALM Media Properties, LLC. All rights reserved.
.LM
http://www.law.com/jsp/tx/PubArticleFriendlyTX.jsp?id=120243523 1400
11/12/2009
Texas forensic science agency's new chief calls for changes as arson inquiry continues
I N... Page 1 of 2
Comments 14 1 Recommend 0
Texas forensic science agency's new chief calls for changes as
arson inquiry continues
12:00 AM CST on Saturday, November 7, 2009
By TERRENCE STUTZ I The Dallas Morning News
tstutz(ãldallasnews.com
AUSTIN - The new chairman of the Texas Forensic Science Commission has called for several key
changes at the agency, including new confidentiality requirements, to ensure that its future reviews of
criminal cases are credible.
John Bradley, the district attorney in Williamson County and chairman of the commission, also
promised that the panel will apply a "disciplined, scientific approach" to its continuing inquiry into a
flawed arson investigation that led to the 2004 execution of Cameron Todd Willingham of Corsicana.
"Those with agendas separate from the advancement of forensic science have made exaggerated claims
and drawn premature conclusions about the case," Bradley said in a commentary sent to newspapers this
week.
The prosecutor also pointed out that the commission was created in 2005 "to determine only whether
there was negligence or misconduct by an accredited laboratory" conducting forensic analyses of
evidence in specific cases.
"The commission does not decide whether persons are guilty or innocent of criminal offenses," he said.
A spokeswoman for the commission said Bradley would not speak to a reporter to elaborate, pending his
planned testimony next week to a state Senate committee.
Bradley said he will be seeking changes at the agency to improve its operations, including new written
policies and procedures, investigative standards to guide its work and new requirements to keep
information confidential until a final decision is rendered.
Implementing such changes could take months, and it's unclear how that would affect the commission's
work in the Willingham case.
"Most state agencies with investigative and deliberate functions are protected by laws designed to keep
such information confidential until a final decision is released," he said. "Unfortunately, the law creating
the commission does not include those protections."
Bradley said he would seek advice from the Attorney General's Office on how the commission can have
tighter control over its functions and protect against "interference and improper outside influences."
That suggestion drew a cool reception Friday from the Freedom of Information Foundation of Texas,
http ://www. dallasnews. com/sharedcontent/dws/news/texassouthwest/stories/DN-forensic.. . 11/16/2009
Texas forensic science agency's new chief calls for changes as arson inquiry continues
I N... Page 2 of 2
which pointed out that the Legislature had a choice whether to make the information public or private
when it passed the law setting up the agency.
"We prefer to think they wanted the public's business to be conducted in public," said Keith Elkins,
executive director of the foundation.
"If Mr. Bradley wants to have the public's business conducted in secret, the appropriate thing would be
to go to the Legislature to ask for a change rather than going around the legislative process and trying to
get it changed by the attorney general," he said.
Bradley also said he will seek additional resources from the Legislature in the next session "so the
commission can grow into a mature, well-respected entity." He noted that the agency now has one
employee to handle its administrative, legal and public contract work.
Last year, the commission hired a well-respected arson expert to review the Willingham case. He
concluded that no investigator could have determined with available evidence that Willingham started
the 1991 fire that killed his three children.
On Sept. 30, two days before the expert was to appear before the panel and present his report, Gov. Rick
Perry replaced four of the nine commission members, including the chairman. Perry, who approved the
execution, had questioned the direction taken by the commission in investigating the case.
http :/Iwww. dallasnews. com/sharedcontent/dws/news/texassouthwest/stories/DN-forensic.. . 11/16/2009
7/22/2010
Texas forensic panel's new chief says h...
Shocking
Up to $500K life Insurance,
no exam necessary
chron
joint relief
$500K life
insurance, no
exam
necessary
Not Logged In Login JSign-up
NOW
Houston & Texas News
89
NEWS
A.
0
flF-. ..........
14 Comments
I Recommend
Search
Reconsiand
advanced search iarchives
0 Web Search bY YAHOOI
® Chron.com
Forensic panel's new chief says he is not a pawn
By RG. RATCLIFFE Copyright 2009 Housotn Chronicle Austin Bureau
Share
film Del icio.us
Digg
Twitter
J
Facebook
Email
Reconirend
Yahoo! Buzz
AUSTIN - John Bradley, the new chairman of the Texas Forensic
Science Commission, declared he is not 'someone political pawn"
Tuesday as state lawmakers questioned whether he intentionally is
delaying a probe into the arson science that led to the conviction
and execution of Cameron Todd Willingham.
StumbleUpon Bradley, who is the Williamson County district attorney, told
members of the Senate Criminal Justice committee that Gov. Rick
Perry never asked him to slow down the investigation. Bradley said
Be the first of yourfriends to n if he is moving deliberately, it is because he believes the forensics
commission needs to develop rules and procedures forfair hearings.
"I done see myself as being someone's political pawn, 'Bradley
said, promising to call a commission meeting in January to discuss
rules and how to proceed.
The Senate panel chairman, Sen. John Whitmire, 0-Houston, told
Bradley he wanted the commission to move expediently on its study of arson science. Whitmire said he also
wants a new investigation launched into why there are 4,000 untested rape kits in the Houston Crime Lab.
HOUSTON;!1HRONICLE
Only
2,
No
Thanks to our employees,
volunteers, community supporters
and
our patients.
It is because of you that we receive
this honor.
-
-'--I
•
fi I.\ndcron
L*it•,
cntc
Bradley refused to discuss how he will proceed in the Willingham case. He also called backlogs in DNA testing
and rape kits a major problem, but did not commit to a new investigation.
Perry created a national furor in late Septemberwtien he replaced three members of the forensic science
commission, including the chairman, shortly before it was to hear expert testimony that bad science was used to
declare the 1991 fire that killed Willingham's three children was arson.
During Tuesday's meeting, Bradley tangled repeatedly with Sen. Rodney Ellis, D-Houston, chairman of the board of
the Innocence Project. The project in 2006 filed a complaint with the forensics commission that launched its probe
into the Willingham case, as well as that of Ernest Willis, who spent 17 years on death row before being cleared in
an arson murder by modem scientific techniques.
Under questioning from Ellis, Bradley kept referring to the Innocence Project as a "NewYork nonprofit" and implied
that its mission was to end the death penalty. Ellis responded that he presided overthree executions as the
Senate pro tem and just wanted to make sure "we get the right person."
Ellis said there are 742 people serving time in Texas for arson convictions and he wants to make sure none was
convicted on bad science.
Patrick weighs In
Bradley said the commissionis role is limited to studying science, not second-guessing judges and juries.
The commission is not charged with debating the death penalty. The commission is not charged with determining
whether people are guilty or innocent,' he said.
"Done put our state in the position that there is a perception that people are using junk science to get convictions,"
Ellis said.
State Sen. Dan Patrick, R-Houston, noted that one forensics expert who tried to get Perry to halt the Willingham
execution, Gerald Hurst, told the Fort Worth Star-Telegram on the day ofthe Govemor's Mansion ire in June 2008,
that it likely was a construction accident, not arson. A security videotape later showed a man lire-bombing the
mansion.
"Not one shred of evidence everwas presented that the man(Willingham) was innocent," Patrick told Bradley.
"Dont be bullied, and dont be swayed."
Perry called Willingham a 'monster who murdered his children, but anti-death penalty advocates questioned
whether he was trying to delay the investigation until after next March's GOP primary.
Arson expert Craig Beyler, who was hired by the commission to study evidence in the Willingham and Willis
cases, said the 1991 investigation into the Willingham fire used bad science, but Beyler said evidence at the
scene also could not rule out arson.
rg. ratcliffechron.co m
chron.com/diso/.../6714216,html
Texas mom tells 911 she used wire to kill children
Feds: Scammed dealers hire revenge squads in
Houston
Corpse flower Lois is bigger than Superman, at
least on South Main
Bahamas' biggest export to Houston:water. As in
rain, lots of it
GIM Moreywon't concede Rockets a done deal
Coy. Perrywants to talk border security with
Obama(1 93)
Don't be too quick to 'refudlate' new words(140)
Feds say scammed drug dealers using revenge
squads(114)
Man accuses HPD officer of fracturing eye
socket(106)
Texas mom tells 911 she used wire to kill
children(71)
Coy. Perry wards to talk border security with
Obama
Texas mom tells 911 she used wire to kill children
Bahamas' biggest export to Houston:water. As in
rain, lots of it
Corpse flower Lois is bigger than Superman, at
least on South Main
Houston man seeks to clear name in sex assault
case
Salad spimer-like medical gear could save
thousands of lives
Man accuses HPD officer of fracturing eye socket
1/3
7/22/2010
Texas forensic panel's new chief says h...
Comments
Readers are solely responsible for the content of the comments they post here. Comments are subject to the
site's terms and conditions of use and do not necessarily reflect the opinion or approval of the Houston Chronicle
Readers whose comments violate the terms of use may have their comments removed or all of their content
blocked from viewing by other users without notification.
Learn how to
the scammers before
it's too late
You must be logged in to comment. Login J Sign up
In partnership with Chronicle In Education
RevHortonHeat wrote:
He's not a pawn... he's just bought and paid for, there's a difference!
1/1012009 935:57 PM
Recommend
&
44(0)
(21)
(29)
[Report abuse]
HotDogs wide:
How can Texans allow this to continue; what is un-Texan about honest rules to judge us by?
11)1012009 9 13 59 PM
Recommend
(21)
27)
[Reprrt rbrrse[
,1 lucky1606 wrote:
Come on! Some would be exonerated and some would be convicted. Do we have the man power
and money to take care ofthis problem? Whetherit is the accused or the victim, they want it
addressed NOW, not 20 years down the line aterit has wined their lives.
44
1 4H
11/10/2009 1011 39 PM
Recommend
I
44
(17)
(24)
[Report abuse]
RevHortonHeat wrote:
The_Drug_Addled_Mind-Rush_Limbaugh, surely youe not trying to suggest that a dog sniftng
you out of a "doggy lineup" isnl just cause to execute someone are you?? }--11/10/2009 101154 PM
(26)
Recommend
(16)
(27)
[Report abuse[
pikecounty wrote
Re the furor over the 2-3 month delay to develop some rules: is no one concerned that the
Forensic Science Commission was created in 2005, 4 years ago, and never developed rules or
procedures, and only finally got around to commissioning one report with its first hearing in Oct.
2009? Also, what was so crucial about the Oct. hearing? The experts report was already
released to public and media and roundly embraced with probably 99% of public and media not
reading it, just going on Innocence Project spin. (Really, did YOU actually read the Beyler
report?) Admit it, that was going to be a platform for Innocence grandstanding, as we saw in the
press conference yesterday. Lastly, what is FSC doing focusing on the 1991 Willingham case
wit 4000 rape kits untested and a backlog of DNA cases (good science) to look at?
* ('3)
11/1 1/2009 12 00 56 P1st
Recommend
..
As
(1)
(2)
(Report abuse]
CAD1936 wrote:
He is NOT a pawn, just a lackey.
11/I 1/2009 ioi 27/W
Recommend
13)
(4)
[Report abuse]
44
.'
44
(0)
Deltablues wrote:
Transparency.
lfMr. Bradley thinks that the commission should only concern itself with "studying science, not
second-guessing judges and juries." then there is no need to develop closed-door, Texas Ranger
developed investigatory protocols. No individuals are subject to sanction. No criminal cases will
be overturned. Unless Bradley thinks that what the commission uncovers will result in referrals
for criminal charges, his position is an obvious stalling tactic.
Texans are overwhelmingly in support of strong punishment, including the death penalty.
However, there is credible evidence that innocent individuals are being convicted. Look at the
Dallas DNA scandal with 30+ offenders released when the SCIENCE revealed they were actually
innocent.
People! We must do better than that. Convicting people based on the testimony of a dog
handler, 'ole Blue says he smells Mr. Smiths scent at the crime scene, and he's never been
wrong, and that of a jail house snitch is NOT ACCEPTABLE. Junk Science at best!
You can support Perry all you want on guns, gay marriage, abortion, and government
chron.com/disD/.../6714216.html
213
7/22/2010
Texas forensic panels new chief says h...
spendngltaxes. You MUST NOTALLOW him to subvert the only safety valve that currently
exists in our Texas justice system to prevent innocent individuals from being railroaded. There is
so much more to this story than Todd Willingham.
li/i 112009 8 2816 AM
Recommend
2)
(8)
[Report abuse]
sdjwi92734 wrote:
01
4j
(0 )
In january he is going to call a meeting to begin discussing setting up the rules by which the
commission should hold hearings? What was stopping him from setting up that meeting in
October, November or December? Does it take three months for them to decide howto put the
agenda together? Are there no comperable commissions whose rules and procedures they
could leverage as a starting point? Common sense doesn't seem to play any role in this issue.
11/11120098 2025 AM
Recommend
(1 (1)
(8)
[Report abuse]
good
fellows
Won't you
please hem?•
Read all comments (14)
NousTON-cllRvNlctr
e
cheap Car Insurance - Sis / Month
Get Discount Car Insurance for Low Income
Low-Income-Cor-Trmurarocom
Online fleerees
Get Your AA, BA, Masters or PhD at a
Top
Education.Nextag.com/Online -Degrees
Military Education Online
Use Your Military Benefits & Earn Your
wN.CIassasandC6reers.com/Miidu
Health Insurance quotes
Get Free Health Insurance Quotes Online.
lndividualHealtliQuotes.com/OfficiaI
CHRON
Weather
Home
Chrori Cormiiuns
Houston & Texas
Traffic
Nation
TOPICS
Business
NEIGHBORHOODS
Aldine/North Houston
A)ief/Southw cot
Kingw (cd
Hunstile/Lake Houston
Bellaire/West Li/River liaKs
Memorial/Spring
Branch
Clear Lake
Pasaderrv/Bnnytow n
MEMBERSHIP
MARKETPLACE
SERVICES
Jobs
Help
Sign up
Ho use
Business din ectOr p
Log in
Cars
Legal notices
Classitieds
Constant us
OTHER EDITIONS
Send us tips
Home delivery
Sports
Smat Business
Conroe
Peanland area
Race a classified ad
Entertainment
PetoHouston
Cy-Fair
Opri rig /ts Ic in
Race a retail ad
About the company
Mobile
Contents
Hiuployrnent
opportunities
PBS feeds
Lite
Travel
Corrections
01095
MomHoustori
East End/Third V/aol
Tomball
HoutonBeIiet
Fort Bend
Magnolia
Gardening
Heihts/Neartow in
29-95
Katy
Advertise of
The \Noodlands
us
Bus a banner ad
LOCAL SERVICES
Houston Attorneys
Qurnriicre In Education
tn
Find Us
c-Edition
E-mail newsletters
Fouw Us
Houstou Salons
sidlorinpi
I
J1111,.i_
I
Copyright C) 2010 The Houston Chronicle
II E A R $ T newspapers
chron.com/disD/.../6714216.html
3/3
DAVE MCNEELY: 'Junk Science! on trial before Senate committee: Go San Angelo
Page 1 of 3
Standard-iimcs
GSSANANGELO
Read more at
DAVE MCNEELY: 'Junk Science' on trial before
Senate committee
By Staff Reports
Friday, November 13. 2009
SAN ANGELO, Texas - With almost as much tension and drama as a death penalty
court case, plus some politics, the Texas Senate's Criminal Justice Committee on
Tuesday grilled the new chairman of a state commission on forensic science.
John Bradley, the Williamson County district attorney who Gay Rick Perry named
Sept. 30 to chair the commission, is normally accustomed to being the prosecutor, and
asking the questions.
But in this hearing, with several death penalty opponents and more than a dozen
television and other journalists in the audience, Republican Bradley was on defense
more than offense.
The governor had put Bradley in a position where he felt called upon to defend what
many Democrats, including state party Chairman Boyd Richie, charge was to stall a
hearing on a reportedly mistaken death penalty until after the March 2 Republican
gubernatorial primary.
Perry had appointed Bradley to head the Texas Forensic Science Commission and
replaced two other members two days before an Oct. 2 hearing on the report it had
asked arson expert Craig Beyler of Baltimore to prepare.
The report is strongly critical of the arson investigation that led to the death sentence
carried out on Cameron Todd Willingham in 2004. Courts at all levels, and Perry, had
signed off on the execution.
Investigators who concluded Willingham set the 1991 fire that burned his Corsicana
house down, killing his three small children, had relied on faulty science, Beyler's
report says.
But new Chairman Bradley postponed the commission meeting indefinitely. He said he
and the other new commission members needed time to study the commission and its
duties.
Perry, who recently called Willingham "a monster," has refused to release information
hUn :Ilwww. osananelo.com/newsI2009InovI1 3/junk-science-on-trial-before-senate-corn... 11/24/2009
DAVE MCNEELY: 'Junk Science' on trial before Senate committee : Go San Angelo
Page 2 of 3
about his consideration of efforts to postpone the execution.
Bradley told the committee chairman, Sen. John Whitmire, D-Houston, that the
commission must write rules of procedure and adopt professional standards before
reaching conclusions on requested investigations.
He also said the commission should work to protect its image, and avoid a reputation
for second-guessing law enforcement and court officials.
The commission's initial inquiries should be behind closed doors, to protect whistleblowers, Bradley said, out of concern the commission's hearings could be "hijacked" by
people pushing other issues.
The commission 'is not charged with debating the death penalty," Bradley said. "It is
not charged with determining whether people are guilty or innocent."
But Whitmire insisted the process should be as open and transparent as possible.
Whitmire, who also chaired the committee when Bradley was its counsel in 1995,
pointedly asked if Perry or his staff had given him instructions.
"No," Bradley declared. He had been promoted from Williamson County assistant
district attorney to district attorney by Perry's appointment in 2001. He has since been
elected three times.
Sen. Rodney Ellis, D-Houston, who chairs the New York-based Innocence Project,
asked whether politics came into play in Bradley's appointment because "something
would come out to embarrass someone."
"It's not my job" to defend any person or party, Bradley said. "I don't see myself as
someone's pawn."
Bradley repeatedly refused, to the committee and to reporters later, to say when a
decision might come in the Willingham case.
"I'll give you the answer when the commission makes its decision," he told the
committee.
Ellis has heard from several people "who think it's a delaying tactic," he told Bradley.
"How long will this take?"
Bradley told Ellis that "when you hold your news conference" with Innocence Project
Director Barry Scheck, to remember that, as a prosecutor, he lets more people off
every year than "Senator Ellis' New York nonprofit."
"I'm for the death penalty," Ellis shot back, noting he'd signed off on three executions
htt ://www. gosanane1o.com/news/2OO9/nov/1 3/junk-science-on-thai-before-senate-corn... 11/24/2009
DAVE MCNEELY: 'Junk Science' on trial before Senate committee: Go San Angelo
Page 3 of 3
as acting governor while Senate president pro-tern. "I prefer we get the right person."
"Sometimes, mistakes are made, and that's why this commission was created," Ellis
said. He doesn't want Texas seen nationally as using "junk science to get convictions,"
he added.
Perry was within his powers in the abrupt replacement of commission members, Ellis
said, and it's not Bradley's fault, but there is "no question that a cloud has been put
over this commission."
Dave McNeely is a longtime Texas political columnist. Contact him at
davemcneelyl 11 aamail.com .
0 2009 Scripps Newspaper Group - Online
http://www. gosanangelo.comlnews/2009/nov/ 1 3/junk-science-on-tnal-before-senate-com... 11/24/2009
ONEWS
Judge Asked to Declare Executed Texas Man
Innocent
By JEFF CARLTON Associated Press Writer
AUSTIN, Texas October 5, 2010 (AP)
Prosecutors connected to the case of a Texas man
who was executed for setting fire to his home and
killing his three daughters are fighting a new effort to
clear him.
If the judge clears Cameron Todd Willingham, it will
mark the first time an official in the nations most
active death penalty state has formally declared that
someone was wrongly executed.
Ajuryin Corsicana, south of Dallas, convicted
Willingham of capital murder in 1992. He was
executed in 2004, after Gov. Rick Perry turned down
his final appeal despite evidence from a renowned fire
expert that there was not enough evidence to support
the arson determination.
Testimony from fire investigators was the primary
evidence against Willingham. The defense did not
present a fire expert because the one hired by
Willingham's attorney also said the fire was caused by
arson.
John Bradley, the top prosecutor in Williamson
Countywho also chairs the Texas Forensic Science
Commission, said he believes the effort by the New
York-based Innocence Project to have Willingham
declared innocent is not about justice - or even the
guilt or innocence of Willingham.
But the investigators' conclusions have been strongly
challenged by several fire experts. Craig Beyler, the
chairman of the International Association of Fire
Safety Science, wrote in a report last year that
investigators didn't follow standards in place at the
time and did not have enough evidence to make an
arson finding.
"What theyare interested in is finding the poster boy
for the abolition of the death penalty," Bradley said.
"And theywantto make Willingham that poster boy.
And they chose poorly, because Willingham is a
guilty monster."
The opinions of a state fire official in the case were
"nothing more than a collection of personal beliefs
that have nothing to do with science-based fire
investigation," Beyler wrote. The State Fire Marshal's
Office continues to stand behind the arson finding.
State district Judge Charlie Baird will convene an
unusual court of inquiry hearing Wednesday after the
Innocence Project filed a petition asking him to
"restore the reputation" of Willingham and declare he
was wrongly convicted. Stacy Kuykendall, who is
Willingham's ex-wife and the girls' mother, planned
to hold a news conference before the hearing.
The Texas Forensic Science Commission, headed by
Bradley, is separately looking into whether
Navarro County District Attorney R. Lowell Thompson
filed a motion late Monday asking that Baird recuse
himself from Wednesdays hearing. Thompson noted
that Baird previously ruled on the case as a member
of the Court of Criminal Appeals and questioned
whether he is impartial, noting he won a "Courage
Award" this year from the Texas Coalition to Abolish
the Death Penalty.
Baird declined to comment.
Adisputed arson finding made bya pair of fire
investigators following the 1991 deaths of
Willingham's daughters is at the heart of the case.
instigators were negligent in ruling the fire was
caused byarson. Commissioners last month rejected
Brad legs efforts to close the case and conclude that
fire investigators did not commit professional
misconduct.
10/28/2010
Crime and Safety
tar-Teiegram
I
News from Fort Wor...
Texas Forensic Science Commission members at odds over chairman's comment on
Willingham
Posted Saturday, Oct. 16, 2010
BY DAVE MONTGOMERY
dmontgomerystar-teIegram.com
AUSTIN - Texas Forensic Science Commission Chairman John Bradley's depiction of Cameron Todd Willingham as a "guilty monster
touched off heated exchanges at a meeting of the state panel Friday as some members said the remarks threaten the commission's
image and objectivity.
On Thursday, a Travis County judge conducted a rare court of inquiry to determine whether Willingham was wrongfully executed in the
deaths of his three daughters in a 1991 house lire in Corsicana.
The commission has been conducting a separate inquiry to explore fire experts' contentions that the arson investigation that led to
Wllingham's conviction was based on outmoded forensic techniques, raising the possibility that the fire may have been accidental.
Bradley, a Williamson County district attorney who was appointed chairman in a shake-up by Gay. Rick Perry last year, has been
outspoken in his criticism of the court of inquiry and has publicly echoed Perry's assertion that state and federal courts upheld
Wllingham's conviction. He told The Associated Press that Willingham was a "guilty monster."
Commission member Sarah Kerngan, a forensic toxicologist at Sam Houston State University, said statements about "guilt or innocence"
confuse the public and raise questions about the panel's integrity.
Bradley defended his remarks and accused Barry Scheck, director of the NewYork-based Innocence Project, of trying to use the
commission's inquiry as a forum to promote his own assertions that Willingham was innocent.
Without naming Scheck, Willingham referred to a NewYork lawyer who "clearly has jumped to a conclusion and is attempting to use this
body to support it."
"I don't hear you commenting on that," he shot back at Kerrigan.
Other members joined Kerrigan in saying the commission is responsible for determining not Willingham's guilt or innocence but the quality
of the fire investigative techniques used in the case.
Garry Adams, a Texas A&M veterinarian, said members "need to be careful" in their statements about someone they are investigating.
The dustup came after the Innocence Project's policy director, Stephen Saloom, wrote commission members criticizing Bradley's remarks
and suggesting that the panel consider whether there is "any appropriate action to be taken in the wake of the statement"
Saloom, who attended Fnday's meeting, wrote that Bradley's statement "raises questions about the propriety of his leading the
Commission's work through this investigation, and perhaps its work as a whole." The statement, he said, is "disturbingly similar' to
remarks by Perry, who has called Willingham a "monster."
Bradley maintained that his remarks were justified, noting that Texas Monthly magazine once used "Monster' on the cover of an issue
about serial killer Kenneth Allen McDuff, who was executed in 1998.
Bradley also accused the Innocence Project of taking advantage of the commissions inquiry to promote an anti-death penalty agenda.
'We're being used, and we should recognize that," Bradley said.
Scheck is a member of the legal team that initiated the court of inquiry in behalf of the Willingham family. Attorneys presented several
hours of testimony Thursday, but a ruling by Judge Charlie Baird was at least temporarily blocked by the 3rd Appeals Court in Austin.
The court granted a stay in response to a motion by Navarro County District Attorney Lowell Thompson. The prosecutor has called for
Baird's recusal, questioning his ability to be impartial in the case.
The forensic commission took no substantive action in the Willingham case but appointed member Lance Evans, a Fort Worth attorney, to
arrange for at least four experts to appear at a meeting this year as it looks into the forensics used in the case.
The best-known expert, Craig Beyler of Baltimore, wrote a report for the panel in which he said the 1991 investigation of the house fire did
not justify a finding of arson.
star-teleoram.com/... /texas-forensic-sci...
1/2
10/28/2010
Crime and Safety I News from Fort Wor...
Florida-based expert John Lentini was also under consideration as a future witness, but Ens said his appearance may not be
appropriate, as he was a witness at Thursdays court of inquiry
Others expected to be invited to the commission include engineer Mark Goodson, John DeHaan of California and Houston fire official
Thomas Wood. Kerrigan also requested the appearance of Ed Cheeer, a deputy fire marshal who assisted in the 1991 investigation but
has since been quoted as questioning the arson findings.
Dave Montgomery is the Star-Telegram's Austin bureau chief. 512-476-4294
Looking for comments?
star-telearam.com/ ... /texas-forensic-sci..
2/2
10/28/2010
d I a s news 10
The state forensic panel criticized their I...
'
13rQa1bs Tltorniaq rlus
The state forensic panel criticized their
leader for calling Cameron Todd
Willingham 'a guilty monster'
12:00 AM CDT on Saturday, October 16, 2010
By IRIN MULVAINEY [email protected]
AUSTIN - Members of the Texas Forensic Science Commission criticized their leader on Friday for calling
Cameron Todd Willingham "a guilty monster" while they are still investigaling the arson case that led to his
execution.
Chairman John Bradley, appointed by Gov Rick Perry last year, nevertheless defended his statement, saying it
was his First Amendment right.
The Willingham case has drawn worldwide attention and has become a key case for death- penalty opponents
since questions were raised about the integrity of the scientific evidence used to convict him in the 1991
Corsicana house lire that killed his three children. He was executed in 2004.
The board is scheduled to hear from lire experts in November as it seeks to determine whether fire investigators
committed professional misconduct in determining arson was the cause of lire.
Sarah Kerrigan, associate professor at Sam Houston State University; said Bradley's comment about Willingham
"muddies the waters for the public."
Bradley said Willingham was convicted on a host of evidence and his conviction was upheld through numerous
appeals.
'The focus of the commission should definitely not be on the agenda ofNew York lawyers," Bradley said. "It
should be on forensic science."
Stephen Saloom, policy director at the Innocence Proiect, the New York-based group that originally lied a
complaint about the case, said it is clear that Bradley has lost focus about the purpose of the commission, which
is to identify when bad science is tainting the criminal iustice system.
Bradley has sought to change the direction of the commission since Perry upended the board last year and
appointed new members, just days before it was to hear the Willingham case.
dallasnews.com/..JDN-willinaham 16te...
1/2
10/28/2010
The state forensic panel criticized their I...
During the meeting, board member Garry Adams, from the College of Veterinary Medicine at Texas A&M
University, said the commission has a commitment to do what is right regardless of outside factors.
'We are commissioners, and we need to be forthright, objective and neutral," Adams said. "In order to maintain
credibility and objectivity in the state we serve to be careful what we say on our own opinions when we are
investigating.
On Thursday, a special court of inquiry started hearing the Willingham case, and two lire experts testified that the
1991 lire was not arson. The judge presiding at the court of inquiry has the power to declare Willingham
innocent.
However, an Austin appeals court granted an emergency stay in the case to prevent the unusual inquiry from
moving forward. The court of inquiry judge has not ruled, and may not depending on the appeals court ruling.
If the judge decides to clear Wilhingham, it would be the first time an official in Texas has formally declared
someone wrongfully executed.
Bradley called the effort to clear Willingham through the court of inquiry a "sham."
"I think it's pretty ridiculous to have this court of inquiry at the same time we're doing this," Bradley said after the
meeting.
dallasnews.com/.../DN-willinaham 16te...
2/2
10/28/2010
Texas prosecutor denies showing bias i...
The original URL of this page is:
http://topnews360 .tmcnet.com'topics/associated-press/articles/l 09725-texas-prosecutor-denies-showing-biasarson-case. hti-n
October 18, 2010
Texas prosecutor denies showing bias in arson
By Associated Press,
AUSTIN, Texas (AP) A Texas prosecutor accused of bias for describing an executed man as a "guilty
monster" defended his comments Friday, while his colleagues on a commission investigating the case said he
might have jeopardized the integrity of their inquuy.
Williamson County District Attorney John Bradley said lawyers trying to clear Cameron Todd Wilhingham's
name are using the case to thither their effort to abolish the death penalty. He also argued that he has a First
Amendment right to state his opinion.
"We are being used, and we should recognize that;," Bradley said. "When do we get to respond to those lies?
Who is going to correct the record?"
Willingham was convicted in 1992 of capital murder in the deaths of his three daughters and executed in 2004
Bradley chairs the Texas Forensic Science Commission, which is investigating whether lire investigators
committed professional misconduct in determining arson caused the 1991 Corsicana house lire that killed
Wilhingham's daughters. At least nine fire experts have said the fire was an accident not arson.
Other commission members said Bradley's remarks to The Associated Press, in which he described Willingham
as a "guilty monster," misc questions about the impartiality and integrity of their inquiry.
'There is a difference between correcting the record and making the type of statement we are talking about;" said
Sarah Kerrigan, the laboratory director at the Sam Houston State regional crime lab.
But Bradley then referred to the Innocence Projects effort to clear Willingham as "politics and a circus
sideshow."
"Texans deserve to have a prosecutor's voice included in the discussion of fOrensic science, a voice that can
include concern for the victims of crime and itjust the perpetrators ofcriine," said Bradley, who was appointed
to the chairmanship last year by Gov. Rick Perry.
Stephen Saloom, the policy director of the New York—based Innocence Project, said Bradley shows "a critically
www.tmcnet.com/scruDtslorint-rJacle.asrL..
1/3
10/28/2010
Texas prosecutor denies showing bias i...
important lack of objectivity" in his approach to Willingham.
"His job here is not to be the DA and the friend of the governor," Saloom said.
Bradley, who raised his voice repeatedly, dismissed Saloom as a "New York lawyer" making "personal attacks
rather than legal arguments."
Bradley's leadership has been questioned since last year, when the governor sacked three members of the
forensic commissionjust days before it was to review reports that cast doubt on the arson finding. Perry installed
Bradley, a conservative ally, as the new chairman. Bradley canceled the subsequent meeting and since has sought
to close the inquiry.
On Thursday, two fire experts testified at a special court of inquiry hearing unrelated to the forensic panel's
inquiry, saying the Willingham fire was an accident. The judge overseeing that hearing has the power to declare
Willingham innocent.
An Austin appeals court, however, granted an emergency stay that will prevent the judge from ruling for at least
one week and could end the proceeding altogether.
If the judge clears Wilhnghani, it would mark the first time an official in the nation's most active death penalty
state has formally declared that someone was wrongfully executed.
The commission took no action Friday on Willingham. However, members are trying to arrange a November
meeting that would hear live testimony from lire experts who have studied the case.
Bradley continued to criticize the effort to clear Willingham after the meeting.
"I think it's pretty ridiculous to have this court of inquiry at the same time we're doing this," Bradley told
reporters. "I think the public can see it for the sham that it is."
View All Associated Press Articles
Related Articles
Drink, not drugs, sickened Central Wash students
NFL. Players responded well, played cleanly
Feds approve largest-ever solar project in Calif
Jones to AP: 'I really wish I wouldn't have lied'
Toronto Blue Jays hire John Farrell as manager
Prosecutors: police erred in Chandra Levy case
Report: I nd. pilot can't repay scammed investors
Home sales up in Sept. but more troubles ahead
Karzai says his office gets cash from Iran, US
AP source: anti-hunger group to sponsor Gordon car
www.tmcnetcom/scriDtS/Drint-nane.aSD...
2/3
10/28/2010
Texas prosecutor denies showing bias i...
view all
Featured White Papers
Most election races in Greene County are already decided
Clay County candidate files libel suit agarnst opponent over ads
Syniverse Technologies Shareholder Investigation by Briscoe Law Firm Regarding the Proposed Acquisition by
The Carlyle Group
Rewards Network, Inc. Shareholder Investigation by Briscoe Law Firm Regarding the Proposed Acquisition by
EGI Acquisition, LLC
Scripps Networks Interactive Establishes Headquarters in Knoxville
view all
Copyright 2010 Technology Marketing Corporation (TMC) - All rights reserved
www.tmcnetcom/scriDts/orint-oane.asr..
3/3
Not Logged In Login I Sign-up
'chron I Houston & Texas News
NOW
100
93
Reconnand
13 Comments
14
Dust-up at hearing could cost Perry nominee
Search
10 1
advanced search J archives
(D,chron.com () Web Search by () Businesses
YAHOO!
BY PEGGY FIKAC
Austin Bureau
March 11. 2011. 12:11PM
Delicious
- Digg
Twitter
Facebook
StumbleUpon
Recorrrrand
7 Email
14 people reconirend this. Be
the first of your friends.
AUSTIN à€ ltä€TMs not looking good for John Bradley, the toughtalking prosecutor named by Republican Gov. Rick Perry to head the
Forensic Science Commission †and not just because of
Democratic opposition to his appointment.
"The Democrats are not going to vote for him, and there are two
Republicans that are not," said Senate Nominations Committee
Chairman Bob Deuell, R-Greensille. It takes a two-thirds vote of the
Senate to confirm the gosemor's appointees. There are 19 Senate
Republicans and 12 Democrats.
"He probably thought he could talk a couple of Democrats into voting
for him. I don't think he can talk four" into it, Deuell said.
Bradley, who's Williamson County district attorney, has drawn
controversy since Perry appointed him commission head in 2009,
most notably over his handling of the high-profile Cameron Todd Willingham case. Perry had denied Willingham's
request fora stay before his 2004 execution in the fire deaths of his children. Critics have said the pace of work on
the case has been too slow and were dismayed when Bradley called Willingham a "guilty monster."
Bradley defended his work last Monday at a hearing under questioning by Sen. Rodney Ellis, D-Houston. who's
been critical of Bradley. Ellis isn't a Nominations Committee member, but senators are given the courtesy of asking
questions. The two had a dustup in which Bradley bluntly questioned Ellis' impartiality, noting that Ellis is chairman
of the Innocence Project.
Ellis in turn asked whether Bradley has a conflict as a prosecutor and called him "God's gift to us." Bradley called
Ellis' sarcasm "evidence of your bias."
Senators generally aren't addressed harshly by people seeking confirmation (or anyone else who testifies). Ellis
wasn't the only one who noticed. "1 think the committee hearing took some votes from him," Deuell said.
If there aren't enough votes to confirm Bradley, Senate leaders expect to let his nomination linger without a vote. His
appointment then would be valid through the end of the session.
Perry opening gambit?
Conservative taxpayer activrst Grover Norquist will join Perry to talk about the budget and taxes Tuesday. Perry will
attend a fundraiser in Dallas for Norquist's Americans for Tax Reform, and the two will have a press conference on
fiscal matters, according to Perry's office.
Perry will be talking about the same topic today when he meets with the House Republican Caucus. Perry is not
only opposed to new taxes, he says he's against tapping into the rainy day fund savings account.
The latter position puts him at odds with some other top GOP leaders and a number of GOP lawmakers. A GOP
LEARN MORE
Australian 'collar bomb' suspect ordered
detained
Reward offered in armed heist at Fort Bend store
Police: Target of Facebook hit fatally shot
Some prisoners stay in solitary for years in
Texas
Man found guilty in plot to kill Bellaire woman 3
times
In Iowa, Perry touts his military experience(623)
Immigrants plead for end to fingerprint sharing
(407)
Critics see red over traffic cams(387)
Rick Perry on the defensive in Iowa after
comments on Bernanke, Obama patriotism,
announcement in South Carolina(344)
Some prisoners stay in solitary for years in
Texas(248)
Die-hard Aggie Sharp looks forward to leading
system
House leader told my colleague, Gary Scharrer, that nearly all Republicans are ready to pull money from the rainy
day fund, and that Perry wants to meet with them to change their minds.
Annise Parker's critics see red over traffic light
cams
Some think Perry's talk against using the fund is his opening gambit in budget negotiations. If he started out saying
it was OK to use the fund, those who want to avoid painful cuts could concentrate on pushing for new revenue, and
maybe even taxes. At least one observer didn't want to comment, saying, "No one wants to back him into a corner,"
with the risk of hardening Perry's pronouncements into a veto threat.
Weekend gully-washer a relief for West Texas
ranch town
Taxes vs. revenue
Some prisoners stay in solitary for years in
Texas
Preaching to the choir? Sen. Judith Zaffirini, D-Laredo, a Finance Committee member who heads the Higher
Education Committee, said she got a visit recently from Baylor University President Kenneth Starr. The former
special prosecutor was part of a group opposing cuts in tuition equalization grants.
"There are many Republicans who have come to see us to ask us not to make certain cuts," she said. "My
response to them is that some of the Republican senators have stated that they believe that they have an election
mandate, and that that's why they're interested in cutting. So I say to them in every case that because of their
stature, because of their prominence, because of their activity within the Republican Party, that they are in key
positions to reach out to our statewide elected officials and to our Republican senators and representatives,
especially those who are most interested in cutting, and ask them not to, and ask them to look at new sources of
revenue."
There are already Senate subcommittees on school finance and Medicaid as senators wrangle with the daunting
budget shortfall. With a number of lawmakers saying they must look at new revenue to avid devastating cuts in
education and human services, word is that another panel could be created to look at non-tax revenue, to be headed
by Sen. Robert Duncan, R-Lubbock.
Man found guilty in plot to kill Bellaire woman 3
times
Cops need name for body that lay near Post Oak
for 9 months
Pasadena is selling off its extra cars and tires
riouse sonogram vote
The Texas House today is scheduled to take a final vote on its version of a bill requiring a sonogram before a woman
has an abortion, an issue declared an emergency by Perry.
The move sends the bill to the Senate, where negotiations will be needed on the issue because senators earlier
passed a less-stringent version.
No telling if Norquist will weigh in on whether the state's on its way to shrinking government until it fits into a
woman's uterus, as predicted by Sen. Leticia Van de Putte, D-San Antonio. It was a riff on Norquist's comment that
he'd like to cut gosemment to the size where he could "drown it in the bathtub."
pfikac@express-news. net
More from Chron.com:
Officials come
FBI: Missing
north of border Calif. toddler,
to lure tourists father found
south dead
Houston mom
gets 40 years
in death of
baby daughter
Heism an
winner says he
lost $2 million
in Texans
scam
or Pepper vs.
Or Pepper in
Court
The Wall Street
Journal.
More from Around the Web:
Judo master makes 10th degree black belt
8/6/2011 ?San Francisco Bay Area and California
Entertainment News ? ? sFlJate
Police: Girl, 16, faces 3 capital murder charges
8/13/2011 7 News Louisiana Heds
Japanese woman swept over Niagara Falls in
Canada
8/15/2011 7 sac Francisco Bay Area and California World
News ? ? SFGate
The voters consider some ethnic issues
7/8/2011 7 SFGate: Leah Garchik
Western Pa. town celebrates birth of the Jeep
8/12/2011 7 San Francisco Bay Area and California Nation
News 7 7 SFGate
Weak hiring Casts doubts on strength of
rebound
ADVERTISEMENT
7/8/2011 7 Business Heds Index
Add Your Comment
New to the site?
Already a member?
To use commenting,
you need to sign up.
Please log in.
Email
Password
E:JRemember Me
Most Popular Comments
Forgot Password?
2O
plus tn
I
%. Ov
CLEAR
Nip
Glenn Beak 8:11 AM on March 7, 2011
"The Texas House today is scheduled to take a final vote on its version of a bill requiring a
sonogram before a woman has an abortion, an issue declared an emergency by Perry."
So underfunding education to the point of cutting a third of the teachers in the state is not an
emergency worthy of tapping the rainy day fund, but abortions without sonograms is an
emergency.
For Perry, emergencies aren't defined by problems facing Texans. His idea of an emergency
is something that might keep conservatives from funding his future political ambitions.
REPLY
(33)
(7)
26
POPULARITY:
I
I
[Report Abuse]
I'
[Report Abuse]
2 replies
fenceSitter 7:26 AM on March 7, 2011
I would love them to back Perry into a corner.
Perry continues to lie, or at best distort the truth,
REPLY :-
(29)
(7)
POPULARITY.
22
I
2 replies
J
spritely 8:40 AM on March 7, 2011
** "shrinking government ... until it fits into a woman's uterus" as predicted by Sen. Leticia
Van de Putte, D-San Antonio." **
I realize it's no laughing matter, but this is one of the funniest quotes I've
REPLY i
(21)
(1)
POPULARITY:
heard in a while.
1 I0 [Report Abuse]
20
1 reply
View Comments (13)
Hot Gold Stock - GTSO
GTSO gold play in China as Precious
www.GTSOGold.com
LongTerm Bad Credit Loans
Have Bad Credit & Need Cash Now?
Secure Lin kCo rp .com
Mortgage Rate at 2.37%
Get the Best Mortgage Rates.
Mortg age. LeadSce ps .com
Money Market Accounts
Find the best yields in the US Plus calcs
Ban krate .com
CHRON
Weather
Horns
Chron Commons
Houston & Texas
Traffic
NEIGHBORHOODS
Aldine
Alief
Baylow n
Nation
Business
TOPICS
Bellaire
Sports
Small Business
Clear Lake
Entertainment
PatsHouston
Conroe
Life
tubmHoeston
Cy-Fair
Travel
HoustonBelief
East End
Corrections
Gardening
Fort Bend
Blogs
29-95
Heights
Kingw cod
Lake Houston
Magnolia
Memorial
tvbnlrose
Pasadena
Warland
MARKETPLACE
SERVICES
MEMBERSHIP
Find Houston jobs
Help
Sign up
Hones
Business directory
Log in
Cars
Legal notices
Classifieds
Contact us
OTHER EDITIONS
Race a classified ad
Sired us tips
Horns delivery
Contests
About the company
While
Employment
opportunities
Chronicle In Education
Race a Retail Ad
n-Edition
Advertising Services
Breaking news alerts
Spring
Tomball
West U
The Woodlands
Katy
LOCAL SERVICES
Houston Attorneys
Houston Salons
Houston I-h/AC Contractors
Fbivacy stateerrit
I Terms of server, I
About Our Ads
Copyright © 2011 The Houston Chronicle
RSS feeds
3/8/2011
Bradley is the wrong man for important...
stat
Print this page
Close
Bradley is the wrong man for important job
Editorial Board
Published: 6:43 p.m Wednesday, March 2, 2011
Williamson County District Attorney John Bradley's tenure as chairman of the Texas Forensic Science
Commission didn't begin auspiciously and has been marked by missteps since then. We believe it should
end sooner than its scheduled September conclusion.
The Senate should not confirm Gov. Rick Perry's selection of Bradley to lead this important commission
that reviews forensic science used in criminal cases.
Bradley's apparent lack of dedication to the state's open meetings lawand his use of overheated,
pejorative rhetoric relating to the most celebrated case before the commission add up to more than
sufficient reason to bust the nomination.
Texas lawmakers created the commission in 2005. Its tasks include investigating complaints concerning
science used to help obtain criminal convictions. The commission's marquee case involves Cameron Todd
Willingham, who was executed in 2004 for the 1991 Corsicana deaths of his three young children in a
house fire.
A wall-respected arson expert issued a report in 2009 concluding that scientific evidence at Willingham's
trial was flawed. Craig Beyler of Baltimore wrote that investigators in the case "had poor understandings of
fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of
fire indicators."
Two days prior to a commission meeting at which Beyler was to testify, Perry replaced three of his four
appointees on the nine-member commission and chose Bradley as chairman. The move delayed the
Willingham case, which remains pending at the commission.
Perry had the right to make the changes. The terms of the four members he replaced had expired. But the
timing was suspect, coming as Perry geared up to seek re-election.
All of this was prologue to Monday's Senate Nominations Committee meeting that featured Bradley and
Sen. Rodney Ellis, D-Houston, trading allegations of conflicts of interests. Ellis believes Bradley's
prosecutorial background makes him a flawed chairman We don't share Ellis' viewthat a prosecutorial
background is a bad thing for the chairman of this commission, which also includes a defense lawyer.
We do, however, believe Bradley is the wrong prosecutor to head the panel. His missteps as chairman
include allowing conTrission subcorririttees to hold closed-door meetings that should have been held in
public. That policy has been changed, and the subcommittees now meet openly.
We also were dismayed by a decision by Bradley - who cited limited space - to bar a camera crew from a
commission hearing in Harlingen. Bradley said Monday that decision was changed on advice from the
commission's counsel Heads of state commissions shouldn't need the advice of lawyers to do the right
thing, To his credit, Bradley now seems to get the message about open meetings.
We remain chagrined by Bradley's branding of Willingham as a "guilty monster." More than one court has
affirmed V\Mlingham's guilt. And if he did what he was convicted of doing, he is a monster.
But the name-calling should be left to folks other than the chairman of a commission reviewing the science
used to convict a man. Asked after the Monday meeting whether he regrets the choice of words, Bradley
statesman.com/... /brad lev-is-the-wrona...
1/2
3/8/2011
said, "My mom regrets that."
Bradley is the wrong man for important...
We're with Mom.
And, on one important point, we are with her son. At the Monday hearing, Bradley noted that Ellis is not an
impartial bystander in this matter. Ellis is board chairman of the Innocence Project, which is advocating on
Willingham's behalf. Ellis offered assurances that he could separate his duties as a senator from his role in
the Willingham case.
We hope so. It is vital for Ellis to remember that his allegiance in the confirmation process must be to his
constituents - not to the advocacy group involved in this case
Here's something else Ellis must remember: No matter how heated a hearing gets, witnesses are due
respect. Ellis forgot that Monday Men he scornfully referred to Bradley as "God's gift to us."
No witness at a legislative hearing - even one as challenging as Bradley - deserves that kind of
treatment.
But we are with Ellis on a larger point he made about confirmation of gubernatorial appointees
"The language in the Constitution is clear. It's advice and consent, not consent and consent," he told
Senate colleagues. "And we ought not just kiss these folks as they roll through the door."
Removing Bradley now night not be the best thing in terms of moving the Wllingham case to an overdue
conclusion But it is the best thing for the commission. And that makes it the best thing for the state and for
justice.
Texans would be hard-pressed to find a more effective prosecutor than Bradley. But we believe Perry can
find a more effective chairperson for this important commission.
And this article at:
Print this page
Close
http://www.statesman .comlopinion/bradley-is-the-wrong-ma n-for-important-job-1 293408html
statesman.com/.. /bradlev-is-the-wrona...
2/2
3/8/2011
Senate should reject Perry pick - San A...
Senate should reject Perry pick
Bradley is the wrong choice to lead Forensic
Science Commission.
Express-News Editorial Board
Updated 12:02 am, Thursday, March 3, 2011
Gov. Rick Perry appointed Williamson County District
Attorney John Bradley to be chairman of the Texas
Forensic Science Commission in late 2009. As a midterm appointment, the Texas Senate must confirm
Perry's action.
I n the face of Democratic opposition, Lt. Gov David
Dewhurst this week decided to delay action on Bradley's confirmation. But Dewhurst shouldn't stop
there. He should tell Perry to withdraw the nomination because Bradley has proven himself to be
unsuited for the job.
Perry put Bradley in charge of the commission as part of a shake up that disrupted a review of the
forensic work that sent Cameron Todd Willingham to death row for the murder by arson of his three
small children. In 2004, after Perry refused a stay, the state of Texas executed Willingham.
One arson expert has called the science used to convict Willingham "characteristic of mystics or
psychics." Another confirmed an assessment that the original investigation constituted negligence.
Serious questions about the forensic science led the commission - created to review cases of alleged
negligence or misconduct that leads to forensic errors - to take up the Willingham case in 2007.
Perry, who allowed Willingham's execution to proceed in spite of those questions, has a vested interest
in seeing the commission's work stalled or skewed.
Rather than fulfill the mandate of the commission to the citizens of Texas, Bradley, as chairman, has
done his best to serve Rick Perry. After a series of foot-dragging exercises over 15 months, Bradley
finally allowed initial testimony to be heard in the Willingham case in January - coincidentally, just
as the legislative session began.
Senators shouldn't be fooled, and this shouldn't be a partisan issue. Bradley has put the interests of the
man who appointed him over those of the commission he is supposed to lead. That should disqualify
him, plain and simple.
mvsanantonio.com/ . . /Senate-should -rel . -
1/2
3/8/2011
MYSA
Senate should reject Perry pick - San A...
Life
TOPICS
MARKETPLACE
COMMUNITY
ABOUT US
Home
Events Calendar
Community
Autos
SUBMITTED
About Us
News
Multimedia
Health
Classifieds
Calendar
Contact Us
Photos
Advertise online
Blogs
National/International
Living Green
Jobs
Business
Obituaries
SA
Real Estate
Sports
Politics
Military
Shopping
OTHER EDITIONS
Newspaper Delivery
Place a classified
ad
Advertise in print
Columnists
Travel
Outdoors
Business
e-Edition
Editorials
Traffic
Visitors'
Directory
Mobile
Education
Weather
Guide
Fan Shop
Entertainment
Food
SA Paws
Forums
Spurs
SA Cultura
Buy Photos
Do Good
Archives
Face book
EN Subscription
Follow us on Twitter
Services
Privacy Policy
Terms and
Conditions
anAna
s-eus
02011 Hearst Communications Inc.
N 1* lusT newspapers
mvsanantonio.com/.../Senate-should-rei...
2/2
3/8/2011
Editorial: Bradley's nomination not wort..
Editorial: Bradley's nomination not worth fighting for in Senate
Pu4 ishe,1 03 M&ch 2011 0347 PM
State Senate confirmation of John Bradley as chairman of the Texas Forensic Science Commission is not going smoothly, which isn't surprising, gien his prickly,
pugnacious, headstrong side that he doesn't hide wry well.
Those traits haw crimped his elctheness as chairman, and senators now haw a chance to force a change. We think they should open the door to new
leadership that can restore lost confidence in the commission's eer*iandedness.
Bradley's willfulness hasn't sered him well as chair of a commission that's dealing with the exploshe case of the executed Cameron Todd tMllingham. And it
didn't serve him well in dealing with tough questions this week on whether he ought to keep his job.
Bradley was testifying beforethe Senate Nominations CommitteA which reiews the goemor's appointments to boards and commissions. He tangled with Sen.
Rodney Ellis, D-Houston, at one point lecturing the senator for his in'olement in an adocacy group that works to oertum miscarriages of justice.
Ellis questioned the appropriateness of Bradley's comment last year that Willingham, executed in 2004 on an arson-murder con'iction, was a 'guilty monster."
Bradley then took one of many shots at Ellis, starting with this: 'What I felt was inappropriate was the manner in which adocacy groups were misleading the
public about the purpose of the Willingham case and whether or not the commission was looking at gulL or innocence.'
Bradley was right in pointing out that the Willingham inquiry is restricted to forensic work that helped send him to the death chamber. Experts haw said the
forensics amounted to voodoo quasi-science that didn't comply with protocols of the time. Some critics haw used that to conclude that an innocent man was
executed, which may or may not be the case.
Still, Bradley's 'monster' comment was ill-ad%ised at the time, gi'en the need to project objectiMty, and his sideways defense of it now is unseemly.
The core issue is whether he has tried to slow down or speed up the Wllingham matter to benefit Gov. Rick Perry, who placed him on the panel in a 2009
housecleaning. Last year Bradley argued for a draft report that essentially found that the forensics were Jawed but that investigators didn't know any better. Other
commissioners balked at those conclusions, saying due diligence demanded hearing expert testimony.
Senate leadership is balking as well. Committee members 'cited, 4-2, along party lines, to confirm Bradley's appointment. But in an indication that support is thin,
U. Gov, Da'd Dewhurst said he is holding back Bradley's name from consideration by the full Senate, at least for now. We hope this wrangle ends with a change
at the top. This nomination is not worth fighting for.
A testy exchange
Sen. Rodney Bus, D-Houston, is national chairman of the Innocence Project of New York. He asked John Bradley in a hearing whether he has "a problem' with
such groups becoming inded injustice reforms in Texas:
Bradley's response:
"I think I haw a problem when the achocacy presents a conflict of interest. .. You serve as chair of a corporation out of New York which has as its goal to advocate
in the Willingham case. That means you haw a duty to act on behalf of that company. .. I think that is a conflict between the duty you might have as a senator to
perhaps look at things in with more neutral light and be open-minded to other parties. You come here as an achocate for Mr. Willingham and a point of Mew about
how you want that case to conclude independent of allowing the commission to reach its own conclusion. I think I haw a reasonable concern for the conflict of
interest and for the bias that presents to the public, and how it allows you to ask pointed questions and word them any way you want to create a public
perception.'
dallasnews.com/.120 110303-editoria1-b...
1/1
5/26/2011
Texas Legislature
Star-Telegram
I
News from Fort Wor...
Texas forensic science panel chairman will be out of a job next week
Posted Wednesday, May. 25, 2011
AUSTIN - The controversial chairman of the Texas Forensic Science Commission will be out of the job next week.
The state Senate Nominations Committee has ended its work for this session without voting on Gov. Rick Penys appointment in 2009 of
John Bradley to chair the commission.
Bradley's term ends when the legislative session concludes Monday.
Perry appointed Bradley, the Williamson County district attorney, to lead the commission just days before it was to hear a report critical of
the original investigation of arson evidence in a Death Row case from Corsicana.
The inmate, Cameron Todd Willingham, was executed in 2004. Some arson scientists say that the evidence suggests that the blaze that
killed his children was an accident, not arson, and that, therefore, he was wrongly executed.
Bradley slowed down the panels work and pushed members to find no misconduct by fire investigators.
In April, after 2112 years, the nine-member commission stopped short of determining negligence or professional misconduct in the
Willingham case until Texas Attorney General Greg Abbott resolves jurisdictional questions about the inquiry.
But the panel made 16 recommendations that could collectively prod state and local lire investigators to adhere to modem investigative
standards.
One key recommendation could lead to a re-examination of old cases using never forensic techniques.
Other recommendations call for improved training and education, peer reviews, increased reliance on forensic laboratories, uniform ethics
standards and adequate funding for training. Some would require legislative approval.
Even critics of Bradley and the commission praised the report for addressing core issues of scientific responsibility.
This report includes material from the Star-Telegram archives.
Looking for comments?
star-telearam.com/ ... /texas-forensic-sci...
1/1