The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence-scientific evidence that will hold up under later scrutiny. I have previously expressed my concern about "the fundamental disconnect between the worlds of science and of law." Ex parte Robbins, No. AP-76464, ___ S.W.3d ___, 2011 WL 2555665 at *19 (Tex. Crim. App. June 29, 2011) (Cochran, J., dissenting).Grits cannot help but point out that saying scientific testimony in Robbins "was not fully informed" is quite the understatement. According to Judge Elsa Alcala's dissent in Robbins, the scientific findings in that case were "based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith." A lower-court judge had characterized the disputed testimony as "expert fiction calculated to attain a criminal conviction." The euphemism "not fully informed" soft-pedals state misconduct to the point of whitewashing it.
This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.
Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available
Similarly, another problem in Overton's case, unmentioned by Judge Cochran but reported by Pam Colloff at Texas Monthly, was that potentially exculpatory evidence about the victim's stomach contents wasn't turned over to the defense. In any event, Colloff concluded, "A more thorough investigation would have uncovered ample evidence to suggest that [Overton's son] had an undiagnosed eating disorder, raising the possibility that he had unintentionally consumed too much salt on his own."
Stepping back from the individual case, this is an example of the CCA struggling with the misbegotten progeny of Ex Parte Robbins (discussed by Grits here , by Liberty and Justice for Y'all here, and mentioned by Judge Cochran, who to her credit dissented, in the excerpt above). Cochran's order expressed the problem particularly powerfully and succinctly: The Robbins and Overton cases highlight how a "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." Well stated.
Judge Cochran's conclusion could apply equally well to the Legislature as to judges, both of whom must struggle to apply antiquated statutes and legal concepts to new scientific settings: "These are not easy issues," she wrote, "but fairness both to the applicant who is serving a sentence of life without parole and to the state and the memory of the child victim demands that our verdicts will withstand the rest of time such that the guilty are punished and the innocent are not. Further, public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence." (Thank you, Judge, for saying it.)
To justify that confidence, both the courts and the Legislature must focus more on reducing or eliminating the growing "disconnect between changing science and reliable verdicts," as Cochran put it. It's good when courts acknowledge that disconnect; the question now becomes how to rationalize the law so that legal and scientific truth don't so quickly and easily diverge amidst the vicissitudes of criminal prosecutions and appeals? On that subject, the law hasn't yet caught up to the science, at least regarding post-conviction habeas writs. Maybe the Overton case will give the CCA a chance to improve their pathetic stance from Robbins, but in the meantime the Lege in 2013 should step in to clarify in the statute that junk science can still be challenged post-conviction.
How many other situations are there where, in Cochran's words, the "verdict may look inaccurate, if not downright ludicrous," in light of modern science, "But the convicted person is still imprisoned"? Nobody knows for sure. Too often, nobody in power appears particularly anxious to find out. At least in this case the court ordered further inquiry, to their credit. And the inquiry raises the profile of this legal/scientific "disconnect" that's become a recurring theme in and perhaps the central challenge confronting 21st century forensic science.
MORE: From Pam Colloff at Texas Monthly, who writes that Judge Cochran's:
statement comes in the wake of a number of high-profile DNA exonerations and reflects the court’s growing unease with the capriciousness of scientific evidence in the courtroom.
It also shows an evolution in Cochran’s thinking. Her 2002 ruling in the case of former death row inmate Anthony Graves—who was released in 2010 after eighteen years behind bars for a crime he did not commit—set Graves’s appeals back years. In the Graves case, Cochran ruled that a defendant was entitled to a qualified court-appointed attorney, but not necessarily to one who performed well.
Clearly, Cochran is deeply troubled by circumstantial cases like Hannah’s that may rest on flawed science.