Saturday, January 23, 2010

Texas needs process to vet convictions based on forensic hokum

It's time to put in place a process for reviewing convictions when key forensic testimony that helped send people to prison turns out to be a bunch of hokum. The FBI's response to cases involving bullet-lead analysis, while too leisurely by far, provides a starting point if Texas can decide who's going to carry the ball. According to AP ("FBI reviews cases where flawed evidence used," Jan. 18):

Nearly five years after the FBI abandoned its so-called comparative bullet lead analysis, the FBI has yet to complete its review of nearly 2,500 cases where law enforcement used such evidence to investigate a case.

So far, the agency has found 187 cases where so-called comparative bullet lead analysis evidence was not only used in the investigation, but came into play at trial where FBI experts provided testimony. It has notified prosecutors in those cases where testimony from its experts "exceeds the limits of the science and cannot be supported by the FBI," one agency letter says.

At least three convictions — that of a Colorado man who served 12 years in prison for a double slaying, a Florida man who served 10 years after being convicted of killing his wife, and an Oregon man convicted of a triple slaying — have recently been overturned.

All three men are now free.

Comparative bullet lead analysis was based on the theory that lead bullets pick up trace elements such as copper, antimony, arsenic, bismuth and silver during manufacturing. When the soft metal is shaped into bullets and packaged, bullets in the same box would contain similar amounts of the trace elements, the theory went.

FBI lab technicians compared bullet fragments from a crime scene with bullets possessed by suspects. If the trace elements closely matched, prosecutors — backed by FBI testimony — would argue the suspects' guilt.

Defense attorneys say the analysis appeared to be a miracle of science: It required a small nuclear reactor, once housed at an FBI lab at the Hoover Building in Washington, D.C., and relied on the expertise of only a handful of qualified FBI agents.

FBI experts wowed jurors by explaining how gamma rays, energy released from bombarding a bullet with neutrons, could be measured to make a match.

"Sure, you have this whiz-bang, whipper-dipper machine that looks at all the elements of the universe, but it doesn't mean anything," said attorney Dave Wymore, a former director of the Colorado public defenders office who fought successfully to exclude such evidence in a triple-murder case and won an acquittal in 1999.

The FBI began the tests in the mid-1960s. It quit in 2005, after the National Research Council of the National Academy of Science concluded that while its methods of measuring trace elements were sound, its conclusions were flawed. Millions of other bullets could contain trace elements in identical quantities, the council said. That rendered the FBI's box-by-box conclusions meaningless.

This type of review should be triggered whenever older, flawed forensics are discredited by modern science, though obviously it needs to occur with much greater alacrity than is happening at the FBI. It would also behoove the feds to send notice to defendants, as well as prosecutors, and to provide notice in cases that resulted in a plea bargain. In the face of damning but false forensic evidence, an innocent person may take a plea to avoid the steep "trial penalty," which is to say the much higher sentence defendants receive if they take their cases to trial. We know from the stories of DNA exonerees that it's not unheard of for an innocent man to plead guilty under those circumstances.

There's an immediate need for Texas to figure out how to vet old cases with faulty forensics. For example, Fort Bend County Sheriff's Deputy Keith Pikett announced he's retiring this month soon after the Court of Criminal Appeals agreed to hear a case evaluating the validity of his work with bloodhounds performing "scent lineups" for prosecutors all over the state, including for the Attorney General's office. Recent DNA exonerations of men accused by Pikett's dogs - including a police officer falsely accused of murder - combined with national dog experts' criticisms of his methods and the deputy's exaggeration of credentials in trial testimony, have made Deputy Pikett a statewide poster boy for the kind of shoddy, less-than-reputable forensics that Texas' weakened standards for forensic evidence have come to routinely allow.

Looking forward, let's assume for the sake of argument that the Court of Criminal Appeals concludes later this year that Pikett's methods don't pass muster. Nobody knows how they will decide, of course, and the CCA's track record leans toward admitting such evidence. But my sense is the Court took the case to overturn precedents allowing Pikett's testimony, based in part on apparently perjured testimony about his credentials, especially since he's the only person in the state who performed this procedure.

If Deputy Pikett's work with dogs is declared invalid by the court, somebody needs to step up and take responsibility for vetting those old cases and notifying prosecutors (or better yet, both parties) in cases where Pikett performed lineups.

Deputy Pikett boasts that his dogs have performed scent lineups in some 2,000+ cases over the last 20 years. Vetting them is not an insurmountable task if somebody like the Attorney General decided to staff the project. I'm willing to bet this cop cleared by DNA wasn't the first person Pikett's dogs falsely accused, and it wouldn't surprise me if there are a significant percentage of false or questionable convictions in cases where Pikett testified or his "evidence" was used to pressure a plea bargain.

The Fort Bend Sheriff could perform this task--it was his employee engaging in junk science--but the Sheriff has consistently defended Pikett's work. That's why it makes more sense to set up the review process in an office independent of the original investigation.

So far Attorney General Greg Abbott has also balked at undertaking this responsibility, even in cases where his own prosecutors used Pikett's dog-scent evidence. Maybe that will change depending on the Court of Criminal Appeals' ruling (or perhaps after the November election).

Old arson cases based on unscientific, since-discredited folklore in my opinion deserve the same kind of comprehensive review. Again, we're talking about a finite, identifiable number of cases. It would be a large job but not an insurmountable one. Researchers in other jurisdictions are already developing a screening process to vet old arson cases, so nobody would have to reinvent the wheel. The Todd Willingham case got the debate over faulty arson forensics sidetracked into a death penalty dispute, but the truth is a lot of people have been convicted because an arson "expert" told a jury things were true about fire that science has since discredited.

This isn't going to be the last time this comes up. How should we respond when we discover innocent people were potentially sent to prison based on flawed forensics? With the exception of Dallas District Attorney Craig Watkins, so far the answer among Texas state law-enforcement leaders has mostly been to look at one another in embarrassed silence, hoping somebody else will step up first so they won't look soft on crime. But it's not "soft" to believe that innocent people shouldn't go to prison, or stay there, based on discredited forensics. And it only makes sense to develop systems to handle that eventuality instead of relying on underfunded nonprofits and law students to perform the task ad hoc.

If the AG continues to sit on the sidelines, the Legislature next session should consider assigning the task - with clear mandates and sufficient resources - to the Forensic Science Commission, which surely merits a dramatic overhaul, anyway, after the recent Todd Willingham fiasco. The agency should be empowered (and required - no malingering, JB!) to perform this type of review-and-notice function whenever courts or the Commission determine that modern science has rebutted older, discredited forensic methods.

Just like when DNA evidence first began exonerating defendants in ways Texas laws had never countenanced, we're at at a moment in history when there's an obvious need for a way to move forward but no existing process. Somehow, some way, the state needs to create one. Executive branch leaders could and arguably should take the lead on their own volition, but if they don't the Legislature should mandate their action, just like they had to require courts to allow postconviction DNA testing when prosecutors refused.

19 comments:

Anonymous said...

Texas has a process. It's called the court system. You just don't like the speed and the results. But, that doesn't mean we jettison a proper judicial forum. You are looking for a place where you can see results you like. That is not a reasonable way to design a solution. Courts are capable of reviewing these cases. And citizens have a right to have someone (generally, prosecutors) protect the verdict until sufficient evidence exists to challenge it.

Gritsforbreakfast said...

I'm only advocating that the state NOTIFY parties in the court system when it learns bad forensics were used in their case. Do you have a problem with that? How can courts review them if they don't know about them?

Amerloc said...

I don't think "likable results" have any more bearing than "capable of reviewing."

Bullet-lead results don't hold up to scrutiny.

Sniffer-dogs don't hold up to scrutiny.

But no one should look at the convictions that prosecutors based on that "science."

Right.

Chances are, we'll never get this perfectly right. But we ought to try. I don't see how that happens without doing our best to avoid exceeding "the limits of science."

Robert Langham said...

The system is supposed to to be about justice, not convictions. I couldn't care less about hired and elected officials feeling and political careers. This needs to be fixed and let the cards fall as they may.

Gloria said...

I disagree that the Todd Willingham case derailed the issue of faulty arson science into a death penalty debate. The fact is that Willingham was executed and he is likely innocent. If he is, it is now too late to correct the "mistake" although I doubt it was a mistake that Perry didn't read or chose to ignore the papers on his desk before the execution. Just like junk science needs to be examined, so does the use of the death penalty.

Anonymous said...

If he is, it is now too late to correct the "mistake" although I doubt it was a mistake that Perry didn't read or chose to ignore the papers on his desk before the execution.

There is no reason for you not to believe that he read them, but for the fact that you disagree with the execution. Prior to the last minute submission to Perry, the federal courts also denied petitions/stays based on the so called Hurst report, but I don't hear you carrying on about how they didn't read the writs/briefs/evidence submitted to them.

Anonymous said...

The defense wins its share. They are still celebrating the OJ victory.

Nicholas said...

LAPD blew the OJ case. Great example Mr. No-name.

Thomas R. Griffith said...

Hey Grits,
Do you see any problem with vetting every single conviction (including non-DNA) obtained via a plea-bargain? By using law & psych students it's done for free and they get a grade with a life lesson. Those being truly not guilty....

Currently the so-called process aka: "court system" utilizes the incompetent jokers at the B.P.& Ps. to sytematically ignore these claims of innocence.

I only ask due to the fact that the 'King of Nolo Contendere' boasted that as a “former career prosecutor”, he witnessed three types of cases go to trial. 1.Very solid, 2.Very strong, 3.Very close, with the remaining 95% plea bargaining.

? He had a brain fart when asked to share the percentage of data in relation to the 95% that went to trial only to see their lawyers play footsey with him at lunch recess for decades.
Thanks.

Anonymous said...

5:41 - You always comment as a coward, so I'll reply by playing your game. *Even though it seems that Grits has already spanked your hiney good and proper.

Should you return, re-read the Post lil girl and you'll see that the courts are the problem and it is dim-wits like yourself that cash a check twice a month that just don't see it. The proper judicial forum you spew of makes you look like a complete ass-wipe.

BTW. You know there are blawgs where you Assistant District Attorneys can stroke each other without being called down. Just remember to bring a towel if you are going to get wet with the big girls. xxooxx

Anonymous said...

02:03 Who do we despise the most here - District Attorneys, cops, correctional officers, republicans, crime lab workers, judges, court officials, witnesses or dogs?

02:03 Do you always have a dirty mouth or just when you think about the above?

Anonymous said...

Mush, aka, Grits, seems to always taunt the anonymous blogger when he can't stand the heat. He resorts to some sort of claim that he is more of a man because he identifies himself when he makes stupid liberal statements.

Perhaps, Mush, you should read the concurring and dissenting opinion by Justice Clarence Thomas in the recent case overruling restrictions on corporate political speech. Justice Thomas explains quite well why we should protect anonymous speech against those (like you) who would punish the speaker simply for disagreeing.

For the opinion, go to: http://www.scotusblog.com/wp-content/uploads/2010/01/citizens-opinion.pdf.

Gritsforbreakfast said...

2:22: How am I going to "punish" you for disagreeing? Am I being "punished" by the anonymous trolls who spew insults and bile while hiding behind anonymity like their mommy's skirt? I never considered that "punishment," just an annoyance.

I allow anonymous comments because most people choose to participate constructively, but that doesn't obligate me to show respect for cowardly trolls who abuse the privilege.

TDCJ EX said...

Ironic the anonymous poster/trolls that comment on Grits are usually the same people who are currently screaming and hollering government ; is too big too, intrusive, taking away our rights creating new ones we are going to be communist, fascist and socialist all at once . We cannot be they are three different ideologies . Though communism and fascism have similar out comes

They are at the same time willing to surrender their every one else rights and give the state tremendous power to intrude into every aspect of our lives ,incarcerate and on occasion execute a person with total disregard for the rights of the accused and those who are suspects ; the euphemism for we don't have probable cause but want to harass , interrogate or detain you anyways person of interest . And too top it off when it comes to prison and executions the state is never ever wrong ? Did they not say the state is too powerful? So what is it ?

They should keep in Eventually the state will come for them after they have come for every one they are not or do not like

A few well taught history courses are in order . They might learn that what they are asking for is in fact fascism

Nicholas said...

All Hail Clarence Thomas!

Anonymous said...

Putting JB or the Ag in charge of this issue is putting the fox in charge of the hen house. They are driven by an agenda in an election year. They care nothing about justice, and "conviction integrity" means something else to them entirely.

Anonymous said...

2:21,
I'll be your huckleberry. Anon to Anon, you seem to be the one taunting Grits as you attempt to defend a broken system.

The rub:
ADAs working in tandem with either rogue cops or by utilizing "forensic hokum" the judges allow in, results in wrongful convictions of humans. These same ADAs have the power to "do the right thing" when it comes to their attention that a human has evidence showing a wrongful conviction.

The rock in the fan:
The Texas Board of Pardons & Paroles requires the claimants seeking (pardons for innocence)to get the unanimous recommendations of the current trial officials of the court of conviction. You guessed it, it is the ADAs that fires off motions to the ‘Board’ that results in denial letters. Exec. Clemency [Chpt.143., Sub. Chpt. A. - 143.2.] Grits has Posts available on the subject of pardons & they have not one damn thing to with Democrats, Republicans, Guards, Snowmobiles and/or frigin dogs.

Stick this in your pipe:
So to answer your (goof-ball of a query), I’ll put the blame where it belongs missy and that’s with Rogue cops, Bad ADAs, and Judges playing politician. More so with Bad ADAs because they are the ‘current’ gatekeepers.

Who would think that an ADA would have a problem with "notifying all parties" and considers Ass-Wipe’ as naughty. Sorry I just spit on your shoes or am I.

Anonymous said...

Why is it forensic hokum if it is used to convict, but something else if it is inconsistent with guilt? No one wants good scientific evidence more than the cops and prosecutors.

Anonymous said...

"No one wants good scientific evidence more than the cops and prosecutors"

If that were true the Houston crime lab wouldn't be such a big mess, would it?