The Contrarian

The hearing room was packed for yesterday’s Senate Committee on Criminal Justice hearing, and it wasn’t difficult to figure out why. The committee heard one of the most high-profile and controversial bills of the session: a measure to allow concealed weapons on college campuses. The committee needed an overflow room to accommodate all the people who wanted to speak, and testimony lasted well into the evening.

But it was another measure the committee heard—Senate Bill 122 by Sen. Rodney Ellis (D-Houston)—that might have a more profound impact.

The bill would expand access to post-conviction DNA testing for inmates who contend they were wrongly convicted. The committee spent only a few minutes on the bill, and it received little fanfare. But if you listened to the testimony, it was clear why this legislation is so important.

Charles Chatman was imprisoned 27 years for a crime he didn’t commit. He was wrongly convicted of rape in 1981. He wasn’t released until 2008, after DNA tests proved his innocence. As Chatman told the committee, it took him seven years to finally obtain a DNA test. He said he began requesting DNA testing in 2001. He wrote letters to judges, prosecutors, the governor and many others requesting that someone—anyone—examine the biological evidence in his case. He was turned down every time. Often the response was a one-sentence rejection letter. It wasn’t until Chatman wrote district Judge John Creuzot in Dallas that he got access to the evidence that freed him.

Chatman was 20 years old when he went to prison. He got out at age 47. As bad as that seems, it could have been worse. “If Judge Creuzot hadn’t answered it, I’d still be locked up,” Chatman said.

Texas leads the nation in DNA exonerations—43 so far. There are almost certainly more innocent people in prison right now. Those are the people Ellis’ bill would help.

Texas has had post-conviction DNA testing since 2001. But, as Chatman’s story shows, some prisoners have trouble accessing the evidence.

The legislation clarifies prisoners’ rights to post-conviction DNA testing, and makes it harder for judges and prosecutors to reject requests out of hand. The bill states that a prisoner can access DNA if the evidence has never been tested or if new, more modern testing techniques have since been developed. The bill also requires law enforcement to compare the tested evidence with existing DNA databases to find the real perpetrator.

The DNA legislation was left pending in committee (so was the campus gun bill) but will likely soon head to the Senate floor. For those still in prison, the change can’t come soon enough.

The Cameron Todd Willingham story has been chronicled—in print, on television, and now on film—more times than I can count. You probably know the basics: Willingham was convicted and sentenced to death for starting the 1991 house fire that killed his three daughters. The physical evidence of arson that convicted him later turned out to be wrong, though the State of Texas executed him anyway. Willingham went to his death claiming his innocence, and many people believe him. We likely will never know the truth.

As I’ve written many times, the import of the case lies in what it can teach us about fire science and the flawed field of arson investigation. Yet many of the print stories and television features on Willingham—including in-depth treatments by ABC’s “Nightline” and PBS’s “Frontline”—have focused more whether Willingham was guilty or innocent, whether he beat his wife, whether he loved his kids, whether he received a fair trial, whether his case would impact the death penalty debate. Media coverage also centered on the political impact of the case for Gov. Rick Perry, who denied Willingham’s last-minute request for a 30-day stay of execution. These are all interesting angles. But too often, the most important part of the story—the science—has gotten lost.   

That’s why filmmakers Steve Mims and Joe Bailey Jr. are to be commended. Their new documentary on the Willingham case—Incendiary—which premiered this week at the South By Southwest film festival, focuses largely on the science.  

In fact, the first hour of the film largely consists of two prominent fire scientists—Gerald Hurst and John Lentini—explaining in detail why the blaze was likely accidental and why the arson evidence that convicted Willingham was—in the words of one lawyer interviewed in the film—”crap.”

I found it riveting. I should confess my bias: I’ve been fascinated with fire science and the field of arson investigation since 2007. In 2009, I wrote a four-part series on how outdated arson evidence has wrongly convicted hundreds of people in Texas. I investigated the cases of three men—Curtis Severns, Alfredo Guardiola and Ed Graf—whose arson convictions appeared flawed. (All three remain in prison, by the way.) I’ve spent many hours listening rapt to Hurst and Lentini talk about fire science,

I’ll concede that not everyone probably finds this stuff as fascinating as I do. But Hurst and Lentini are undeniably compelling. They’re both brilliant and have a knack for explaining the complexities of fire science in ways that non-science majors like myself can understand. I hope that viewers of this film walkout with a greater understanding of why the physical evidence in Willingham’s case was literally laughable, and  with a better idea of how so many innocent people could be wrongly convicted of arson. In that sense, Mims’ and Bailey’s decision to grant these scientists so much screen time is itself a public service.   

The other character who stars in the film is John Bradley. The surly prosecutor chairs the Texas Forensic Science Commission. Mims and Bailey devote significant time to chronicling the commission’s investigation into the Willingham case. They attended every commission meeting in 2010, and the film features testy exchanges between Bradley and nearly everyone—including Barry Scheck, the Innocence Project co-founder who Bradley sneeringly refers to as that “lawyer from New York,” fellow commissioners, the press, and even the filmmakers. At one hearing, Bradley ejects them from the commission’s meeting room, an apparent violation of the state’s Open Meetings Act.

The film ably chronicles how Bradley stalled the Willingham investigation until after Gov. Rick Perry had won the GOP primary and general election. Even for someone who followed the developments closely, it’s stunning to see all his machinations pieced together in a single telling.

But I suspect viewers will be more surprised by Bradley’s behavior at commission meetings. I’ve never seen a public servant badger people like Bradley does. For me, the frustrating part of covering the Forensic Science Commission is it’s nearly impossible to truly capture Bradley’s performances in print. You just have to witness the man in action. Anyone who sees this film will immediately understand why it appears the Texas Senate won’t confirm Bradley’s appointment, which would force him off the commission.

The film has a blockbuster ending. And I’ll give you a spoiler alert—if you don’t want to know the ending, stop reading now.

The final scene features David Martin, who was Willingham’s defense attorney at the original trial. Martin is a colorful quote—he supplies some of the best lines in the film—who has long contended in media interviews that his client was guilty. In the last scene, Bailey asks Martin if there’s any other reason, besides the evidence in the case, why he believes so strongly in Willingham’s guilt. There might be, Martin responds, but that involves attorney-client privilege.

The clear insinuation is that Willingham confessed his guilt to Martin during the 1992 trial.

I had never heard that tidbit before, and I have no idea what to make of it. Is Martin telling the truth? Or is he simply posturing?

These are questions—like so much of the Willingham case—we may never have answers for.

Did yesterday’s budget deal make things better or worse? Tough to tell.

The big news at the Legislature yesterday—as you probably know—was the agreement between House budget writers and Gov. Rick Perry to use up to $3.2 billion of the Rainy Day Fund to balance the state’s finances. The deal has to be considered a bit of progress. Without the Rainy Day Fund, the state had no way to pay its bills through the end of this fiscal year. Yet Perry had, until yesterday, refused to publicly endorse tapping the emergency fund. Under the deal, budget writers can keep the state functioning. In exchange, I believe, the governor’s office must be getting some piece of Jim Pitts’ soul.

Forgive me some dark humor. Despite yesterday’s small bit of progress, it’s hard to be optimistic about the budget situation. The deal keeps the state solvent for this fiscal year. (We have a $4 billion deficit for the rest of 2011, and lawmakers can’t cut their way out of it because, with just five months left in FY 2011, there’s not enough time to implement cuts. The Rainy Day Fund was the only option.)

But here’s the thing: The deal really does nothing to address the larger problem—the roughly $27 billion budget deficit we’re facing for the next two years. In fact, we now have $3 billion less in the Rainy Day Fund to deal with the huge deficit for 2012-2013.

And Perry seems opposed to using any Rainy Day Fund money for the 2012-2013 budget. I hope Perry is simply posturing. Because without the Rainy Day Fund, the 2012-2013 budget would implement cuts that might cripple the state.That’s not just my opinion. That’s what state officials are telling the Legislature.

While the House was negotiating with Perry yesterday, on the other side of the Capitol, a Senate budget committee was having a terrible time trying to close the budget deficit for the next two years.

A Senate Finance subcommittee—headed by Republican Jane Nelson—has been tasked with slicing $16 billion from the health and human services budget. That’s nearly impossible.

A string of state agency administrators pleaded with the committee to restore a handful of key programs that are cut in the Senate’s draft budget. And your heart would have to be made of stone not to want these proposed budget cuts undone.

For instance, the draft budget drastically reduces funding for prevention programs that help keep kids out of foster care, as officials with the Department of Family and Protective Services pointed out. That might expand the number of kids in foster care. At the same time, the budget slashes the rates the state pays foster care providers. Essentially, the foster care system would be caring for more kids with significantly less money. If that doesn’t sound like a chilling recipe for mistreated children, I don’t know what does.

Sen. Nelson observed that the state’s Child Protective Services department had made great improvements since its scandals from 2005 and 2006—when media reports of murdered children ignored by the state were popping up regularly. Nelson stressed that the state couldn’t “backslide” on that progress.

So that seems like a dire need. But so does mental health care. The next agency head before the committee—the Department of State Health Services’ David Lakey—pleaded    with lawmakers not to cut funding for community mental health centers. In the draft budget, these centers—which provide counseling and medications to severely mentally ill Texans—take a $75 million hit. That would deprive treatment from 20,000 people, who would be wandering the streets without their meds and likely end up in the emergency room or county jails. Or worse, commit some horrific act of violence. Lakey said restoring some funding for the community centers—like the one in San Antonio I recently wrote about—is “essential.”

Then there are in-patient crisis centers for the mentally ill, which are slated for a $9 million cut. That would eliminate 54 beds statewide, mostly in Harris and Galveston counties and in Lubbock, for people experiencing mental health crises. The state is already short on beds for mental health treatment. Removing 54 beds would mean that some people who are a danger to themselves of others would either remain on the street or be thrown in county jails.

That’s to say nothing of the huge Medicaid rate cuts for doctors and nursing homes in the draft budget that would do serious damage. Lawmakers need to find money to restore those rate cuts or we could see hundreds of nursing homes closing across the state and thousands of seniors with no place to go.

Listening to hearings like this is profoundly depressing. I’ve started imagining the state budget like a submarine that’s taking on water. There are many compartments filled with vulnerable people who will drown without help, but we can’t save everyone. And state lawmakers are trying to decide which people to save and which hatches to close off and let people fend for themselves.

Is that analogy over-dramatic? I don’t think so. A good number of these cuts could end lives.   

So, yes, lawmakers made progress on the budget yesterday. The deal had to be done. But there’s no reason to celebrate. If Perry holds firm to his no-more-Rainy-Day-Fund-use stance, then yesterday’s events might have actually made things worse.

Imagine knowing how to save people’s lives, but lacking the resources to do it.

This is the position Leon Evans finds himself in. Evans runs the Center for Health Care Services—a government-funded community center in San Antonio that treats primarily Texans with mental illness, and drug and alcohol addictions. State funds have always been short, but Evans and his staff have achieved some remarkable success keeping the mentally ill and the self-medicating out of the criminal-justice system. That saves taxpayers money in the end. Now, he’s hoping pending state budget cuts don’t wash away all the progress.

“Treatment works,” Evans says. That’s not just his opinion. It’s a conclusion reached by numerous studies and put into practice around the country. For instance, studies have shown that paroled offenders who receive treatment for their mental illness or substance abuse are three-to-four times less likely to commit another crime. Instead, they’re more likely to become productive members of society—holding down jobs and paying taxes.

We know how to turn people’s lives around—in many cases, we know how to treat mental illness, how to pry them away from addiction. The question we face isn’t how to accomplish these things. The question is will we pay for them.

Texas has never provided adequate funding to its community mental health centers. The state ranks 49th in per capita spending on mental health. Hundreds of thousands severely mentally ill Texans already go without treatment statewide. The Center for Health Care Services provides outpatient treatment—medications and counseling—for more than 6,000 people a month (that’s 2,000 people more per month than the state pays for). Still, the center has turn away hundreds of people each month—either by placing them on a waiting list or by referring them elsewhere.

Since 2003, the center has partnered with county and city officials to run a Crisis Stabilization Unit—a 24-hour inpatient clinic for people enduring a mental breakdown who might harm themselves or others. The center also helps run a substance abuse unit that provides treatment for addicts. The two projects help keep at least 600 people a month out of the county jail.

But it’s not clear how much longer the center can sustain these programs. In the draft state budget, community mental health centers are facing up to a 40-percent cut in funding. Evans says he’s expecting to lose $8 million to $10 million—out of roughly $25 million he receives in state money. He could lose a third of his staff or more. “These cuts are basically going to cost shift on to the counties and cities and the hospital districts—cause these people will end up in jail or emergency rooms or homeless on the street,” Evans says.

The average homeless person costs taxpayers $30,000 a year worth of run-ins with law enforcement, and trips to county jails and emergency rooms, Evans says. A few hundred dollars worth of treatment for someone’s mental illness or addiction could save taxpayers tens of thousands.

“Why wouldn’t you fund a cost-effective treatment alternative to improve the public-safety net and save taxpayers’ dollars? Evans says. “Why wouldn’t you do that?”

It’s a question lawmakers may want to consider.

The U.S. Supreme Court’s ruling this morning in the Hank Skinner case isn’t really about Hank Skinner.

The High Court’s decision, by a 6-3 majority, will allow Skinner to petition a federal court for DNA testing on evidence in his case. Skinner, who sits on Texas death row and came within hours of execution last year, hopes DNA testing will confirm his claims that he didn’t commit the gruesome 1993 triple homicide for which he was convicted.

But the ruling has much wider implications. It opens a new avenue for many inmates to obtain post-conviction DNA testing of evidence in their cases.

The legal issue before the Supreme Court had little to do with the details of Skinner’s innocence claims. Rather, it was about legal process.

Until now, Texas inmates who wanted access to DNA evidence had to file a writ of habeas corpus. In siding with Skinner, the justices ruled that prisoners can also use federal civil rights claims to obtain evidence for DNA testing.

Why does that matter?

As I wrote last year, when the Supreme Court took the case, “[T]here are quite a few restrictions on habeas petitions, according to legal scholars. For one, the statute of limitations is short. Second, you’re allowed to file only one habeas petition. So if you file once, and more DNA material surfaces later, you’re out of luck. And, third, federal courts are supposed to show deference to state courts in habeas petitions. That means, federal courts can only overturn state rulings when they’re clearly unreasonable. You could argue that the rulings by Texas’ Court of Criminal Appeals are frequently unreasonable, but it’s luck of the draw whether a federal judge will see it that way. In other words, your chances of winning a habeas claim to access DNA evidence aren’t good in Texas. And so it’s been so far for Skinner.”

Many of those issues have been mitigated now that the Supreme Court has ruled that inmates can pursue claims for DNA evidence with habeas petitions and under federal civil rights law.

That clears the legal barriers for Skinner to pursue his innocence claims. But it also opens a path for many other inmates who, for whatever reason, can’t file habeas petitions.

In short, many prisoners will have access to DNA testing that will confirm or overturn their guilt. It’s another way to catch mistakes in the system. And that can’t be a bad thing.