The Commission was created under the authority of Art. 38.01 of the Texas Code of Criminal Procedure. Section 4 lays out the duties of the Commission:
Sec. 4. (a) The commission shall: (1) develop and implement a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct; (2) require all laboratories, facilities, or entities that conduct forensic analyses to report professional negligence or misconduct to the commission; and (3) investigate, 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. (b) An investigation under Subsection (a)(3): (1) must include the preparation of a written report that identifies and also describes the methods and procedures used to identify: (A) the alleged negligence or misconduct; (B) whether negligence or misconduct occurred; and (C) any corrective action required of the laboratory, facility, or entity; and (2) may include one or more: (A) retrospective reexaminations of other forensic analyses conducted by the laboratory, facility, or entity that may involve the same kind of negligence or misconduct; and (B) follow-up evaluations of the laboratory, facility, or entity to review: (i) the implementation of any corrective action required under Subdivision (1)(C); or (ii) the conclusion of any retrospective reexamination under Paragraph (A). (c) The commission by contract may delegate the duties described by Subsections (a)(1) and (3) to any person the commission determines to be qualified to assume those duties. (d) The commission may require that a laboratory, facility, or entity investigated under this section pay any costs incurred to ensure compliance with Subsection (b)(1). (e) The commission shall make all investigation reports completed under Subsection (b)(1) available to the public. A report completed under Subsection (b)(1), in a subsequent civil or criminal proceeding, is not prima facie evidence of the information or findings contained in the report.When the law was passed in 2005, the act was to apply to evidence tested or offered into evidence after September 1, 2005. The point, presumably, was to provide a safeguard against junk science being admitted into evidence after the effective date of the act by giving the Commission the power to regulate and investigate forensic facilities to ensure that proper scientific procedures were being followed.
The Attorney General takes this to mean that the Commission may not investigate any items or analysis entered into evidence prior to the effective date of the act.
Section 4 limits the scope of the Commission's inquiries to "accredited" entities - but does not define what constitutes an accredited entity. The acts also fails to state whether it mattered if the entity was accredited before or after the effective date.
The Attorney General then refers to Article 38.35(d)(1) to limit the scope of the Commission to entities that were accredited at the time the analysis took place.
Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the director under Section 411.0205, Government Code.Well, that's all well and good, Mr. AG, but we're not talking about whether any item of evidence is admissible. We're talking about reviewing an old case to determine whether an innocent man was executed as the result of junk science. Now I understand that Gov. Goodhair is worried that when the world realizes he sat on his hands while an innocent man was murdered by the State of Texas it might cause a bit of a problem for his presidential campaign -- but Gov. Perry's political aspirations are secondary to whether or not an innocent man was murdered.
Gov. Perry began his assault on the Commission when he placed Williamson County District Attorney John Bradley in charge of the Commission on the eve of a hearing in which an arson expert was going to testify that the fire in question was not deliberately set. Through Mr. Bradley, Gov. Perry did everything he could to prevent the Commission from hearing evidence, in public, that Mr. Willingham was innocent. The last thing he wanted was a public record of the murder of an innocent man. Now Greg Abbott is providing cover for the fair-haired one.
Let's think about this for a second. The Commission may only investigate evidence analyzed by forensic facilities that were accredited at the time the evidence was offered. The two bozos who investigated the fire that killed Mr. Willingham's children weren't accredited by the DPS. They had no scientific background at all. Yet, they were allowed to testify that (based on their "gut feeling") Mr. Willingham set the fire that killed his children. So, because the state was permitted to put junk science before a jury that didn't know better, the Commission is not allowed to examine whether or not the evidence should have been admissible.
The purpose of the Commission should be to seek the truth, not to provide political cover for a governor who wants to be president.