The Contrarian

The Texas Senate didn’t distinguish itself on Wednesday. Senators managed to finally pass a two-year state budget plan after a week of stalled back-room negotiations. But it wasn’t pretty. 

Just to pass the bill, the Senate leadership—Lt. Gov. David Dewhurst and Finance Chair Steve Ogden—had to roll the chamber’s Democratic minority and, in the process, used parliamentary maneuvers to get around the Senate’s cherished two-thirds rule. And in an effort to win GOP votes, Ogden and Dewhurst decided not to tap the state’s Rainy Day Fund, a decision that leaves the budget’s finances somewhat nebulous. Removing the Rainy Day Fund money pissed off the Democrats—which led to the Republican leadership simply steamrolling them.

That was the just the procedural gamesmanship. The debate itself wasn’t much better. To be sure, some senators made excellent points. Laredo Democrat Judith Zaffirini constructed a strong case for why the Senate budget—while much better than the draconian House version—doesn’t spend enough money on education and heath and human services. Rodney Ellis spoke eloquently, and John Whitmire was fiery. (Whitmire made perhaps the best point of the day, telling Ogden that the Senate had passed a fiscally conservative budget two years ago. But the current budget spends $11 billion less. “So you either wasted a lot of money the last two years—which I know isn’t true—or we’re making serious cuts.”)

The rest of the debate was a fiasco. There was Mario Gallegos’ showboating; Florence Shapiro’s outright misrepresentations; Jane Nelson sounding like Neal Boortz and Ogden wrapping it up with a baldly political speech.

In the end, the Senate passed the damn bill. But it wasn’t a proud day for the Upper Chamber.

Some Like It Hot

Mario Gallegos isn’t always the most eloquent speaker in the Senate, but he does put on a show. On Wednesday, he outdid himself.

Like other Democrats, Gallegos spoke against the bill for cutting too deeply. He said the budget reduced state funding for two community colleges in his district by 54 percent and 34 percent respectively.

He then called the budget a giant “hot check.” This was partly a reference to the 2006 tax swap plan that didn’t balance—lawmakers instituted property tax cuts they couldn’t pay for, which created a structural deficit that’s still with us. (Then-comptroller Carole Keeton Strayhorn famously called the plan the largest “hot check” in Texas history.) Gallegos may also have been referencing the current budget’s questionable financing. By removing the Rainy Day Fund money, Ogden is betting that an improved economy will bring in enough money to pay the state’s bills. It’s a gamble.

Gallegos brought a prop to make his point. He unfolded an Ed McMahon-style giant check, with the words “insufficient funds” printed in red across the front. Gallegos then turned toward the cameras arrayed along the edge of the floor and held his giant hot check for the film at 11.

Ogden watched the scene unfold looking rather bemused.

Gallegos continued. In his Houston neighborhood, he said, stores paste hot checks on the counter. Customers who write them can no longer do business there. “Sen. Whitmire knows what I’m talking about,” Gallegos said.

We assume he meant Whitmire knows Houston businesses, not that he writes hot checks.

Child’s Play

A common theme in many Democratic speeches was that the budget doesn’t provide funding for the state’s population growth. Several Democratic senators contended it’s the first time Texas hasn’t paid for increased enrollment in its schools.

Eventually, Florence Shapiro had heard enough. The Republican from Plano rose to set the record straight.

She claimed the budget does pay for enrollment growth. All the new kids coming into Texas public schools will be paid for, she said. She wanted to make clear: No child won’t be paid for. “We are paying for every single student who goes to school in Texas,” she said.

This was a bit misleading. No one was claiming that school children won’t be paid for.

The issue is that because of a booming population, the state will have to pay less for each student. It isn’t rocket science. There will be more students attending Texas schools during the next two years. The budget doesn’t account for that growth. So schools will have to use the same amount of money (less money, actually) to pay for more students. That means less money for each student.

It wasn’t clear if Shapiro had missed the point or was just being misleading. But either way, her math wasn’t adding up. 

Producers vs. Leeches

If you ever tune into some of the more vile right-wing talkers on AM radio—Neal Boortz or Michael Savage for example—you’ll know that America can be neatly divided into two camps: the leeches and the producers. The leeches are worthless saps who do nothing but collect handouts from the government. Producers, on the other hand, represent everything that is good and right: hard-work, thrift, and personal responsibility. Producers pay taxes so that leeches can sit on their duffs. And so on….

Yesterday, Sen. Jane Nelson, a Lewisville Republican, indulged in a sanitized version of this vulgar sociology. “I truly believe that this bill addresses two sets of people that we need to keep in mind,” she said, “those people who depend on our state services and those people – we need to remember their faces – who are the taxpayers, who pay for these services. Let’s put a face on the taxpayer out there right now.”

Nelson is no Neal Boortz. She’s got way more class than that. But the ugly division is the same: One group uses government services; the other pays for them; and never the twain shall meet.

It’s not true of course. In Texas, sales taxes—notoriously regressive—constitute roughly a quarter of all revenues. Unless you’re the Unabomber, you pay a sales tax. In fact, if you’re poor, then you spend a much larger portion of your income on sales tax. Of course, many folks in need—children, the elderly, people with disabilities—may very well receive much more in government services than they’ve chipped in in taxes. But that’s just a fact of civilized society.

Sen. John Whitmire, a Houston Democrat, later took issue with Nelson’s comment.

“You’re right, he said, “we need to worrry about the taxpayers. Guess who are the taxpayers? Because of our tax system in this state, it’s the same people who need our services.”

Where Have You Gone, Steve Ogden?

Perhaps the most blatantly political remarks of the day came from the person you might least expect—Steve Ogden. The Republican from Bryan has been a consistent source of clear-thinking and moderation this session. (There’s a reason every speaker on Wednesday—both Democrats and Republicans—began their remarks by praising Ogden).

But just before he officially passed the Senate’s budget—and set up a tough conference committee fight with the House—Ogden made a closing speech that was oddly political.

He said he believed that during recessions, government must ensure continued economic growth in the private sector. Fair enough. And, he continued, that meant the state couldn’t raise taxes, especially taxes on business, without hurting the economy. He praised the budget plan for not raising taxes on business.

This was the same Steve Ogden who, back on the session’s first day, pleaded with his colleagues to address the state’s structural deficit by raising the business tax: “None of us were elected to go out and raise taxes on anybody, but the margins tax is different,” he said back then. Go figure.

When even Ogden’s contradicting himself, you know things have gone amiss.

The scandals over flawed forensic science in Texas seem unending. With the exception of DNA evidence, nearly every field of forensic science used to imprison people for decades—or even send them to death row—has endured scandal.

First there were the botched crime lab results. Then we learned of problems with ballistics and bloodspatter evidence. Rape kits went untested. Accidental fires were misread as arsons. And, perhaps most amazingly, dogs were allowed to not only identify suspects in clumsily arranged scent lineups, but also to “testify” against people in court.

The Texas Forensic Science Commission was created in 2005 to help address these problems. But in recent years, the nine-member commission has become politicized, largely because of its controversial investigation into the flawed arson evidence in the Cameron Todd Willingham case. The commission has become embroiled in debates over the death penalty, gubernatorial politics, wrongful convictions, open government and even its own legal authority to investigate certain cases.

The Senate Criminal Justice committee today heard a bill intended to reform the commission and refocus the panel on its original mission—improving forensic science.

Senate Bill 1658 by Sen. Juan “Chuy” Hinojosa would greatly expand the commission’s authority to investigate botched forensic evidence. The bill makes clear that the commission could investigate allegations of wrongdoing in any field of forensic science. (Some critics of the commission have argued that current law allows the commission to oversee only accredited crime labs. The commission is waiting for the Texas Attorney General to issue an opinion on these jurisdiction issues. The bill would clarify that dispute.)

The bill would also allow the commissioners to launch an inquiry on their own. As it stands now, the commission can investigate a case only if someone has filed a complaint. The provision, which would greatly expand the commission’s authority, drew criticism from Sen. Joan Huffman, a Houston Republican, at today’s hearing. She said she might oppose the bill if that provision remained. Hinojosa said he’d try to convince her over the next few days why the commission needed such power. “Good luck,” quipped Sen. John Whitmire.

Huffman wasn’t the only senator who had concerns. Houston Democrat Rodney Ellis questioned Hinojosa extensively. Ellis was suspicious of a provision that folds the commission into the Department of Public Safety. The governor’s office has tried in past sessions to house the commission within DPS—an idea Ellis and other supporters of the commission have successfully resisted. They want to maintain the commission’s independence, especially to investigate DPS crime labs.

Hinojosa assured Ellis that DPS would provide only administrative support for the commission and wouldn’t have any influence over which cases the commissioners look into—to “avoid a conflict of interest.”

Ellis was also concerned that the bill would exempt some documents from the Open Records Act. Hinojosa said the commission would still meet in public, but “what they’re trying to protect is their work product.”

“So they’d have a public meeting but whatever [documents] they’re looking at would be kept secret?” Ellis asked.

Hinojosa said documents used in public meetings would be released, but most documents would be kept from the public until after the investigation is completed.

Despite Ellis’ concerns, the Innocence Project of Texas supports the bill. Scott Henson—who testified on behalf of the group—said the bill may not be perfect, and that he has concerns about folding the commission into DPS. But he said the legislation would greatly improve the commission’s ability to unearth injustices caused by faulty forensic science.

The committee left the bill pending, but could send it to the full Senate later this week.

The moment had an air of finality to it.

In a small hearing room in downtown Austin, eight members of the Texas Forensic Science Commission voted this afternoon to adopt their final report on the long-disputed arson conviction of Cameron Todd Willingham. It was a moment five years in the making. The New York-based Innocence Project had originally asked the commission to investigate the case back in 2006. So when the final vote was taken to adopt the report, an Innocence Project staffer and members of Willingham’s family—who claim that Texas executed an innocent man—applauded from their seats in the front row.

It felt like an ending. But what exactly the end result was—like so much in the Willingham saga—seems unclear. If this was the end, it was a nebulous one.

The commission’s nearly 50-page report—the product of a high-profile, frequently stalled investigation—is an odd mix. It documents at length the flawed state of fire investigation in Texas and details in general terms the kinds of outdated evidence that led to Willingham’s 1992 conviction for starting the house fire that killed his three daughters and eventually led to his 2004 execution. In that sense, it confirms the opinions of nine national experts who have examined the case and found no evidence of arson.

The report also makes 17 recommendations on how to improve the level of fire investigation in Texas. And, most importantly, it urges the Texas Fire Marshal’s Office to reexamine older arson cases for similar flaws.

Yet for all its documentation of general problems with arson evidence, the report rarely connects these flaws directly to the Willingham case. In fact, the report sidesteps two of the central questions: Were the original fire investigators on the Willingham case negligent and did the Fire Marshal’s office have a duty to inform the governor or the courts prior to Willingham’s 2004 execution that the evidence in the case was no longer reliable?

The commission refused to address those questions because it’s not clear it has the authority to do so. In January, the commission requested an opinion from the Texas Attorney General’s office on whether it has jurisdiction to determine “professional negligence” in arson cases.

The AG’s opinion is due this summer. But the commission chose to issue a final Willingham report anyway. It’s not exactly clear why the commission was in such a rush, though it’s worth noting that this was likely the last meeting for controversial Chair John Bradley. The Texas Senate is unlikely to confirm Bradley before the end of the legislative session. Perhaps Bradley wanted to finish the Willingham report before he’s removed from the commission and returns exclusively to his day job as Williamson County DA.

But whatever the reason, by rushing out a report before the AG’s opinion, the commissioners put themselves in an awkward position. In the last two days, they tried to craft a final report that made strong recommendations but without inferring that the original fire investigators were negligent.

That was no easy task. In fact, at times it seemed the commissioners were trying to write a report with their hands tied. Whenever a commissioner tried to relate a piece of flawed arson evidence directly to the Willingham case, Bradley would caution that—without the AG’s opinion—they didn’t have the legal authority to “editorialize.”

As a result, the final report oddly makes almost no comment about the quality of the Willingham investigation, even while it condemns certain actions by the Fire Marshal’s office and makes numerous recommendations on how to prevent other people from being wrongly convicted of arson. (The final report hasn’t been posted online. I will link to it when it is available.)

So what do we make of this schizophrenic document?

Willingham’s relatives—his stepmother Eugenia Willingham and his cousin Patricia Cox—pronounced themselves satisfied with the commission’s work. “What this commission has done will have a significant impact on the justice system,” Cox said.

Stephen Saloom with the Innocence Project was clearly frustrated that the commission couldn’t address the negligence issue. But, he added, given that limitation, the commission did commendable work during the past two days. “It’s a good report,” Saloom said. “It makes clear that the old forms of arson evidence are not reliable and need to be corrected…and that the old cases that may have been tainted by this evidence have an opportunity for review. This gives a chance for justice for all those past cases where people may have been wrongly convicted of arson.”

Indeed, among the report’s 17 recommendations is much-needed reform. The commission recommends improving training and certifications for fire investigators and ensuring that training curriculum include fire science and fire dynamics. It recommends the Fire Marshal’s office conduct internal audits and create a peer review team to monitor the quality of its fire investigations. The report also recommends requiring lawyers and judges take continuing education classes focused specifically on forensic science.

Perhaps most importantly, it urges the Fire Marshal’s office to reexamine older cases. As I’ve written before, many of the 750 people currently in Texas prisons on arson convictions may be innocent. The state desperately needs an official inquiry into older arson cases.

The scientists on the commission fought hard against Bradley’s attempts to weaken the report’s language, especially on the recommendation for reexamination of past cases.

Of course, even in recommending an investigation of past cases, the report’s language leaves something to be desired. “The evolution of fire science standards and practices raises the question of whether an obligation exists to reevaluate cases,” the report reads.

And these are non-binding recommendations. It still falls to the Fire Marshal’s office—or other entities—to follow through on these reforms. It’s not clear if anything will come of these recommendations or if this report—watered down as it is—will simply land in a drawer and never be heard from again.

Willingham’s relatives said they hoped the commission would come back at its July meeting—after the AG’s opinion is released—and finally decide whether the Willingham investigation was negligent.

But it’s unclear if the commission will return to the Willingham case or if the matter is finished. The panel will likely have a new chairman at the July meeting—whoever Gov. Rick Perry appoints to replace Bradley.

Friday’s events felt like a milestone in the Willingham case. Seven years after his death and after five years of hearings, press conferences and national controversy, we finally have a government-produced report examining the flawed arson evidence in the case. But what it means and where the saga goes from here is anyone’s guess.

Updated below

The Texas Forensic Science Commission will convene this afternoon for a two-day meeting in Austin. It will mark not only the likely end of John Bradley’s controversial chairmanship, but also the conclusion of the commission’s long-running investigation into the Cameron Todd Willingham-arson case.

The nine commission members will meet today beginning at 1 p.m. at the Central Services Building—a squat state office building—in downtown Austin and gather again tomorrow at 9:30 a.m.

The commissioners are slated to begin discussing the Willingham investigation either late today or early tomorrow (you can find the agenda here). I hear they will devote most of Friday to finalizing their conclusions about the arson evidence in the Willingham case. (Willingham was convicted and executed for starting the house fire that killed his children. The evidence against him has since been debunked.) I’m told the commissioners will begin with a draft report on Willingham and go through their findings in detail. While the commission may not release a final report at this meeting, we will find out during the next two days what the final report is likely to say.

It also will likely be Bradley’s final meeting as chair.  Bradley must be confirmed by the Texas Senate before the end of the Legislative session in June to retain his position. That seems unlikely. His nomination has stalled, and unless several senators change their minds in the next few weeks, this meeting will be Bradley’s last.

It seems appropriate that Bradley’s tenure may be ending just as the commission is concluding the Willingham investigation. Many observers believe that Gov. Rick Perry installed Bradley on the commission in fall 2009 to slow-walk the Willingham inquiry until after the 2010 elections. If that was the case, then Bradley has been widely successful.  He has fought progress on the investigation at nearly every meeting.  

And his work isn’t finished. He will likely push to tone down the commission’s Willingham conclusions in the next two days.

The one thing we do know is that the commission won’t offer an opinion on Willingham’s guilt or innocence. That was never its mission. And as I’ve written before, we may never know for sure whether he was guilty or innocent.

Rather the investigation has always centered on the physical evidence of arson—or in this case—the lack thereof. The lingering question is how far the commission will go in its final report.  Will it call for a statewide investigation into past arson cases (as some commissioners have suggested) or recommend the State Fire Marshal review all its past cases for similar errors?

Will the Fire Marshal’s office finally acknowledge that its Willingham investigation was flawed and that other cases may have been too? The Fire Marshal’s office has stood behind its Willingham investigation—despite nine national experts concluding the evidence was flawed—which makes you wonder how many similarly faulty arson cases are out there.

As I’ve written before, there are potentially hundreds of innocent people still in Texas prisons on arson convictions. I uncovered three of them during an investigative series in 2009.

The number of flawed arson cases represents a gross injustice. In the next two days, we’ll begin to find out if the commissioners will help correct it.

Update: The commission spent three hours on Thursday working to finalize its report in the Willingham case. Commissioners started with a draft report and have been going through it section  by section, changing language as they go. They will reconvene at 9:30 a.m. on Friday to finish marking up the report. There are 15 recommendations in the draft report—most aimed at improving training and education for fire investigators (reforms that are badly needed). The contents of the report figure to change significantly when the commission continues its work on Friday morning. I’ll post on the finalized recommendations on Friday afternoon.

The Texas Senate usually conducts business behind closed doors. What happens on the Senate floor typically has been figured out beforehand. It’s the professional wrestling approach to lawmaking.

But today—as the Upper Chamber debated one of the session’s most controversial bills—we saw some unscripted debate and a rare public tiff between two senators.

The bill in question was Sen. Jeff Wentworth’s proposal to allow concealed handguns in college campus buildings. The San Antonio Republican brought the so-called “guns on campus” bill to the floor thinking he had the 21 votes needed for passage. But he left disappointed.

During the debate, Brownsville Democrat Eddie Lucio—an apparent supporter of the bill—got into a dispute with Wentworth, a rare publc fight between senators. Lucio claimed he was promised that Wentworth wouldn’t bring the bill to the floor until Monday—so Lucio would have a chance over the weekend to make sure certain language in the bill was OK with educators in his district. Lucio asked Wentworth to pull the bill down in good faith and wait till Monday. Wentworth didn’t see it that way. He twice told Lucio, “Let me refresh your memory.” He claimed he’d already satisfied Lucio’s concerns and intended to press ahead. This appeared to anger Lucio and several Democrats.

Without Lucio’s support, the bill lacked the 21 votes needed.

That was partly because Bryan Republican Steve Ogden—who represents Texas A&M—also opposes the bill. Ogden gave an eloquent explanation for his opposition. He said the majority of students and faculty at Texas A&M strongly opposes the bill. (In fact, many college students angrily testified against the bill in committee.)

Wentworth has claimed that guns on campus will make colleges safer and that he was inspired to pass the bill after the 2007 massacre at Virginia Tech. But Ogden pointed out that only 2 percent of all Texans carry concealed weapons, and the percentage is probably even lower on a college campus.

“So how can you argue that the campus would be safer when less than 1 percent of the people on campus have a concealed handgun?” Ogden said. If a deranged gunman did  attack a campus, it’s unlikely anyone with a gun would be in the vicinity. “The safety of the campus couldn’t be measurably improved.”  

Not long after, Wentworth learned that Lucio had pulled his support and the bill lacked the votes to pass. Wentworth decided to pull down the bill until Monday. The Senate adjourned until Monday at 1:30 p.m., when Wentworth will presumably give it another shot.