02 October 2009

Glenn W. Smith : Has Rick Perry Committed a Federal Crime?

Rick Perry fires investigators in Willingham case;
Is he guilty of obstruction of justice?

Gov. Rick Perry, like Pilate before him, washed his hands of any responsibility for the execution of a man experts say was innocent. And now Perry has fired three board members of the state agency investigating the controversial 2004 execution of Cameron Todd Willingham...

'Business as usual,' Perry told the Associated Press the firings were 'business as usual.
By Glenn W. Smith / October 2, 2009
Also see 'Perry terminates board members investigating execution,' by Glenn W. Smith, Below.
When Gov. Rick Perry obstructed an investigation into the execution of a man experts say was innocent, he committed a crime against all Texans. State executions are carried out in our names, collectively and individually. Subverting the truth in such a matter is a betrayal of the public trust that is difficult to describe or comprehend.

But Perry may have also committed a crime against the U.S., and I’m not talking about his secession threats. He may have violated federal law, U.S.C. 18.1001.

This is no trivial matter. An innocent man was executed. Federal laws and guidelines are in place to keep that from happening. Perry may well have violated those laws and guidelines, for which there are criminal penalties.

Last night, CNN commentator, Texas hero and political strategist Paul Begala wrote us at DogCanyon with the following observation about our post earlier yesterday (see below):
Glenn, thanks for this important post. The eyes of the world are upon Texas, which has almost certainly executed an innocent man. Bully for you for tying this outrage to Perry’s anti-government rants with the teabaggers.

Let’s see if I get this straight: Perry and the teabaggers don’t trust the government to write an insurance policy, but they do trust the government to lock a man in a cage for years, to strap that man down on a gurney, and fill his veins with poison – in the case of poor Mr. Willingham, for a crime he did not commit. I know a lot of principled conservatives who oppose the death penalty, based on their distrust of government. Perry, of course, is neither truly principled nor truly conservative. He is a small man, a moral coward, and a political opportunist of the worst sort. Thank you for calling this to my attention.
There oughta be a crime against hypocrisy such as Perry’s. It turns out there might be. Follow us on the jump for details on the statutes and guidelines Perry may have violated.
§ 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
Doesn’t the language seem like it was written with Rick Perry in mind: “falsifies, conceals, or covers up by any trick, scheme, or device a material fact”? But there’s even more to it than that.

Texas receives millions of dollars in crime-fighting money from the Coverdell Forensic Science Improvement Grants Program of the U.S. Justice Department. To receive that money, Texas had to create the Texas Forensic Science Commission. The applying and receiving agencies, including the governor, certify that an independent, external agency exists that will investigate “negligence or misconduct substantially affecting the integrity of forensic results.”

Now, read this special note attached to the Justice Department’s application guidelines, because they specifically invoke U.S.C. 18.1001 cited above:
Note: In making this certification, the certifying official is certifying that these requirements are satisfied not only with respect to the applicant itself but also with respect to each entity that will receive a portion of the grant amount. Certifying officials are advised that: (1) a false statement in the certification or in the grant application that it supports may be subject to criminal prosecution, including under 18 U.S.C. § 1001, and (2) Office of Justice Programs grants, including certifications provided in connection with such grants, are subject to review by the Office of Justice Programs and/or by the Department of Justice’s Office of the Inspector General.
In other words, the United States Justice Department tells its Coverdell Grant recipients that they’d better have an independent forensics agency of the highest integrity, and they’d better not falsify, conceal, or cover up by any trick, scheme, or device a material fact.

If firing three members of the commission and bringing to a screaming halt an investigation and hearing about the execution of an innocent man is not a trick to cover up material facts, nothing is.

By the way, it won’t be a defense for Perry to claim the agency once was independent, or once had integrity. Justice expects those to be ongoing conditions, so to speak.

Furthermore, the Office of Justice Program’s Standard Forms and Instructions specify that grant applicants must follow the granting agency’s rules and guidelines:
4. It will comply with all lawful requirements imposed by the awarding agency, specifically including any applicable regulations, such as 28 C.F.R. pts. 18, 22, 23, 30, 35, 38, 42, 61, and 63, and the award term in 2 C.F.R. § 175.15(b).
The Coverdell requirements clearly state (in a pdf link found in the eligibility section, “2009 solicitation document”):
A certification regarding external investigations into allegations of serious negligence or misconduct. Each applicant must submit a certification that “a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.”
The Justice Departement and its Office of Inspector General regularly investigate Justice’s grant recipients. If they are not already investigating Perry’s attacks on state Forensic Science Commission, they soon will be.

As noted yesterday, law enforcement agencies throughout Texas receive major grants from the Coverdell program, and all the grants are contingent on the federal government’s insistence that an independent investigating agency of the highest integrity be empowered to certify forensic labs and look into negligence and misconduct. Perry may have put that crime-fighting money in jeopardy. That in itself should be a crime.

I am no lawyer, so I will have to leave it to Justice Department investigators to decide whether to pursue a criminal case against Perry. The law clearly prohibits acts of the sort Perry just committed. By destroying the independence and integrity of a critical law enforcement agency to conceal material facts, Perry did exactly what the law told him not to do.

The laws are intended to clean up sloppy forensics work that leads to gross injustices. They are intended to guard against injustices committed by crime labs the Forensics Commission oversees. It is a peculiar circumstance when a governor subverts the functions of the watchdog agency itself. Once again, there’s nothing trivial about laws and guidelines intended to guard against the execution of the innocent and other injustices. In the end, we can only hope that justice, as they say, will prevail.

Source / Dog Canyon

Cameron Todd Willingham,with his wife, Stacy and their three children who died in a fire Dec. 23, 1991, at the family's Corsicana, Texas, home.

Perry terminates board members investigating execution

By Glenn W. Smith / October 1, 2009

Gov. Rick Perry, like Pilate before him, washed his hands of any responsibility for the execution of a man experts say was innocent. And now Perry has fired three board members of the state agency investigating the controversial 2004 execution of Cameron Todd Willingham. If ever there was a story that the Texas press corps should pursue to the point of saturation coverage, this is it.

“Business as usual,” Perry told the Associated Press the firings were “business as usual.” No kidding. Last time it was just some university regents who no longer supported him. This time it was a group of people investigating whether Perry’s government killed an innocent man.

This time it involves members of the Texas Forensic Science Commission investigating whether the State – let me emphasize this for Perry’s teabagger friends who rail about intrusive government – whether the State killed an innocent man, Cameron Todd Willingham. Willingham was convicted in the arson deaths of his three infant daughters. Killed by lethal injection, Willingham professed his innocence until the end. Perry denied a stay of execution, another way of saying the governor ordered the death of Willingham.

Three independent reviews say the deadly fire was not deliberately set. It wasn’t arson. Willingham was innocent. The most recent expert to criticize the original investigation, nationally recognized authority Craig Beyler, was scheduled to speak to a public meeting of the Forensic Commission on Friday.

So Perry fired the commissioners, and the meeting’s been cancelled. Perry no doubt feels like a little death penalty squabble will fire up his right wing base. His Republican opponent, Sen. Kay Bailey Hutchison, offered mild criticism of Perry, but stressed that she was a strong supporter of the death penalty. Such cowardice is business as usual with these two.

Here’s Perry’s thinking: His voters support the death penalty. Texans won’t learn enough about the details of the case to think it’s anything but an argument over the death penalty, and he’ll be on the right side of that argument. End of story. The great moral matters of innocence and death are reduced to insignificant little nothings. This is why it is deadly important that the press get the facts to voters.

Let me ask this question: Do we really want the State to take such a murderously cavalier and political approach to the killing of Texans? Many years ago, I covered Death Row as a reporter. Among the few sentenced to death at the time, there were none I ever wanted to see go free. However, investing the State – any state – with the power of death over its citizens seemed to me then and seems to me now a dangerous, democracy-threatening thing to do. Perry’s handling of the Willingham case proves the point.

Here’s how David Grann of the New Yorker described Beyler’s findings on the investigation that led to Willingham’s death.
In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.
And here’s how the Dallas Morning News describes Perry’s actions:
This week, the governor chose not to extend the terms of Austin lawyer Sam Bassett, former chair of the commission, as well as two others on the nine-member Texas Forensic Science Commission. The new commission chair promptly cancelled Friday’s meeting on the Beyler report.

The Willingham case, in which his three young children died in a 1991 Corsicana house fire, has drawn national attention. Anti-death penalty advocates consider it the likeliest case in recent decades in which an innocent man was executed.

Perry had denied Willingham’s request for a stay of execution five years ago. His lawyers asked the governor for the 30-day reprieve to give the courts time to review new reports that called the fire investigation into question. Willingham had always maintained his innocence.
Next time, it might be someone you love who is wrongly accused. It might even be you. The debate over the death penalty will go on. Meanwhile, the actions of Rick Perry must be judged within the context of today’s law. In that context, Perry’s actions are morally repugnant. Perry ought to want to know the truth of the matter. The truth won’t hurt him politically and it might save his soul.

I have no doubt Perry will try to make this a debate about the death penalty. It is not. At the core, it should be a debate about the governor’s moral judgment. He could probably fight that debate to a draw by standing up now for the truth. Instead, he’s managed to make the best argument to date for a moratorium on executions.

Hutchison’s weak statement on the matter serves her no better. Democratic gubernatorial hopeful Tom Schieffer was stronger, demanding today that the Forensics Commission reschedule the hearing Perry succeeding in obstructing.

Schieffer said, “No one in public life should ever be afraid of the truth. In the final analysis, truth is the only thing that serves justice.” Truth is damned important to justice in the initial analysis, too.

Perry was apparently acting within his legal authority when he refused to reappoint the Forensics Commission members. His action is obstruction of justice nonetheless.
Dog Canyon

Source / Dog Canyon
Perry’s obstruction of justice: It costs lives. Will it cost Texas money?

When Rick Perry blocked a state investigation into the 2004 execution of Cameron Todd Willingham, he subverted justice. He may cost Texas millions in federal dollars.

According to the Legislative Budget Board analysis of the 2005 bill creating the Texas Forensic Science Commission, a state must have an independent investigative process in place to look into “allegations of serious negligence or misconduct affecting the integrity of laboratories, facilities and other entities in the state that conduct forensic analyses used in criminal proceedings.” The LBB was quoting from federal law.

When the integrity of the independent agency is destroyed, what becomes of the federal funds to operate it? When Perry himself has committed “serious negligence or misconduct affecting the integrity” of investigations, what becomes of the federal money?

Read all of this story here: here.
Also see: Editorial: Perry's Willingham delay / Dallas Morning News / Oct. 1, 2009

The Innocence Project's Barry Scheck on MSNBC'S 'The Ed Show'

The Rag Blog

Only a few posts now show on a page, due to Blogger pagination changes beyond our control.

Please click on 'Older Posts' to continue reading The Rag Blog.