Texas habeas law needs updating to accomodating changing science

I ran across a Chicago Sun Times editorial from last month which recited a litany of examples of cases where a variety of different forensic errors led to false convictions, honing in particularly on the dubious "science" behind so-called shaken baby cases ("Disproving proven theories that led to injustice," Sept. 2). The article opened:

Too often, cutting-edge scientific theories send people to prison only to turn out to have more holes than Swiss cheese.

There was the medical theory — later discredited — that helped land about 30 adults from Bakersfield, Calif., in prison for sexually abusing children in the 1990s.

There were the arson theories that helped send Cameron Todd Willingham to a Texas execution chamber in 2004, only to be rejected later by other experts relying on advances in fire science.

There was the theory of identifiable unique shoe-wear patterns that helped send at least eight men to prison for life in the United States and Canada in the 1980s before scientists concluded the whole idea was fiction.

So when a case involving the theory of “shaken-baby syndrome” returns to the DuPage County courthouse this fall, the theory should be put under a microscope. Only proof that puts all doubt to rest will suffice.

A decade or so ago, many medical experts thought that a “triad” of symptoms in a dead infant — bleeding behind the retinas, brain swelling and bleeding on the brain surface — could be caused only by major trauma, such as a car wreck, or by violent shaking.

If those symptoms were found in a baby or young child who died — and no major trauma occurred — it followed that the baby died by violent shaking at the hands of a caregiver. No witness to the shaking was really necessary. Thousands of Americans have been sent to prison based on medical shaken-baby evidence.

But here’s where the doubt comes in. In the intervening years, some medical experts have traced the “triad” of symptoms to other causes. Even Norman Guthkelch, the Evanston pediatric neurosurgeon who was among the first to describe shaken-baby syndrome, has his doubts about how the diagnosis is used in court. Sometimes, he says, illness can cause the same symptoms.

Other scientists say the symptoms could even be caused by ordinary falls.

Regular readers know the National Academy of Sciences issued a report in 2009 calling into question the scientific basis of quite a few forensic disciplines - particularly those which rely on subjective comparisons by technicians as opposed to testable and demonstrable science. But in general, forensic errors are a less frequent cause of false convictions than, say, eyewitness testimony, IMO mainly because forensics are typically less likely to be the sole evidence against a defendant. That's in part because, in most cases where forensics are submitted into evidence, they play a corroborative role. Typically accusations are made by police and prosecutors early in the process, while forensics are frequently not analyzed unless closer to when a case is ready for trial. And since only about three percent or so of felony cases go to trial, it's not uncommon for convictions to be secured without forensics ever being tested or vetted by defense experts.

But in cases where forensic science forms the primary basis for criminal accusations - especially comparative disciplines like shoe-priint evidence or theories espoused by just a handful of physicians, as with "shaken baby syndrome" - there's a greater risk of false convictions based on erroneous forensics.

Making matters worse, after the Texas Court of Criminal Appeals last year approved Ex Parte Robbins (discussed here), as Judge Cathy Cochran lamented in her dissent, there is now more than ever in Texas  a "fundamental disconnect between the worlds of science and of law," particularly in post-conviction proceedings where junk science is most frequently challenged. Cochran expanded on that theme earlier this year in another case, opining that:

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.

Sometimes, Cochran noted, the problem "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." In such instances, following Ex Parte Robbins, there is presently no basis for relief via habeas corpus writs available under Texas law, at least as viewed through the narrow lens of the majority on the Texas' Court of Criminal Appeals.

In the past several sessions the Texas Legislature has taken a keen interest in innocence legislation, passing landmark reforms to improve procedures for gathering eyewitness evidence, expand access to post-conviction DNA testing, require corroboration for jailhouse informants, and approve the most generous compensation package in the country for exonerated defendants. This gap Judge Cochran has identified in the Court of Criminal Appeals' jurisprudence on challenging flawed science through habeas writs is arguably the most pressing innocence-related issue the Texas Legislature needs to address when it meets again in 2013.

State Senate Criminal Justice Committee Chairman John Whitmire has pursued legislation for the past two sessions to provide a vehicle for reconsidering flawed forensic evidence in habeas appeals, which was a recommendation of the Timothy Cole Advisory Panel on preventing false convictions. But that legislation faced opposition from district attorneys who considered the issue not yet ripe - before Ex Parte Robbins, the CCA had hinted that such appeals wouldn't pass muster but had never ruled on an on-point case. After that case, however, the ball is now squarely in the Legislature's court. If cases like those described in the Sun Times editorial are to get a fair hearing in Texas, the Lege must assert itself to insist on it.

RELATED: Northwestern's Medill Innocence Project turns attention to shaken baby cases.