Thursday, February 09, 2012

CCA laments 'disconnect between changing science and reliable verdicts' it helped create

The Texas Court of Criminal Appeals yesterday ordered an evidentiary hearing in the habeas writ application of Hannah Overton, the Corpus Christi woman convicted of capital murder for allegedly forcing large amounts of salt down her son's throat. Her case was featured recently in Texas Monthly, where reporter Pam Colloff cited experts criticizing the forensics underlying the case and  concluded Overton may have been innocent. In a statement accompanying the order, Judge Cathy Cochran wrote:
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).

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
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.

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.


Miscellaneous Lawyer said...

Perhaps have a more stringent test for 'expert' witnesses?

The problem is that an 'expert' witness isn't there to tell the judge what the deciding fact is, they are there to assist the judge to find that themselves. So the judge (or jury) is asked to become an expert on the science before they make a decision.

IE: A forensic psychologist makes the following observations to the judge/jury. "The common signs of this mental condition are x, y, z, a, b, and c. I interviewed the defendant and he exhibited x, z, a and d. The normal course of the condition is consistent with those.
A person with that condition demonstrates these characteristics, which are not consistent with the mens rea required for the offence."

The judge/jury then have to decide whether x, z, a, and d are sufficient to prove the existence of the condition, and then decide whether that condition is sufficient to exculpate the defendant.

If there is any break in communication between the expert witness and the Court, there is a large opportunity for error.

Anonymous said...

As Miscellaneous Lawyer should know, the CCA in the 2010 Coble case showed a more robust approach to the admission of expert testimony in the past - that case, and Vela v. State are potentially extremely helpful to trial counsel IF USED. Why the caps? Because all too often defense counsel, even in capital cases, fail to file the necessary motions or do the preparation necessary to a comprehensive examination of an expert's qualifications and the reliability of the proffered testimony. Judge Cochran and some of the other more objective members of the court have helped enormously in clarifying the procedures for testing the reliability of scientific evidence by submitting it to the trial judge in a "gatekeeper" hearing before it goes anywhere near the jury. The tools are there - thank you, Judge Cochran - but counsel persist in leaving them in the toolshed rather than picking them up and doing some work.

ckikerintulia said...

Who is Judge Cochran? Several years ago I met a judge who was serving on CCA at a Methodist church where my niece was a member. She was so glad Gov. Perry pardoned the Tulia folk so that it was not a long strung out process for CCA. I was quite impressed with her and her sense of fairness. I'm wondering if that was Judge Cochran.

Anonymous said...

Greetings, Tulia:

The court's photo is on the CCA website, as are little profiles of the judges - that is one way to figure out who is who.

Phillip Baker said...

"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...."

Judge Cochran said a mouthful there. The public does, indeed, correctly perceive our justice system as often unjust and deeply flawed. Without the public's confidence in the judiciary, we have no real rule of law.

Today Judge Harle up in Georgetown is expected to hand down his ruling on Mike Morton's motion for a court of inquiry. This could be a big first step to starting a conversation all over Texas- and the country, since we are hardly unique in having sleazy DA's, judges, and appeals courts. Should he fail to grant, you can bet your boots there will be an explosion of outrage. This is where serious reform can start, along with a beefed up Forensics Science Commission. Then it is time for the coming Leg session to address the unbridled power of DA's and set some common sense and much needed limits. It is also imperative that all those local police and sheriffs associations be blocked in their attempts to weaken the coming guidelines on eye witness testimony.

Anonymous said...

The problems with this particular case do not really stem from a "disconnect" between science and the law. At trial the jurors heard two alternative explanations for the child's death - deliberate poisoning (the prosecution explanation) and unintentional poisoning due to pica (the defense explanation). The jury accepted the defense explanation. When they were polled, according to the article, none of the jurors believed that Overton had poisoned the child. So the jury rejected the prosecution theory that the child had been deliberately poisoned.

The jury did exactly what they were supposed to do - evaluate evidence and expert opinion, and then make a decision. And they made the correct decision. The state had not proven that Overton had intentionally poisoned the child.

The guilty verdict in this case has nothing to do with the scientific evidence in the case. Overton was found guilty because she failed to take the child to a doctor. That was the basis of the "guilt by omission" verdict, and there is was no scientific evidence that bore upon that question.

I agree that there is in general a disconnect between science and the law. But Judge Cochran's framing of this particular case as an example of that disconnect is not really on the mark.

ckikerintulia said...

Thanks anonymous 9:22. I'll check the website. I doubt if I would recognize the picture it's been so long.

dudleysharp said...

Thank you Scott and

thank you Anonymous 2/10/2012 12:51:00 PM

ckikerintulia said...

the judge I met was from Austin. Must have been Cheryl Johnson.