Saturday, November 16, 2013

Dallas DA pledges to review convictions based on junk science

Assuming he wins a third term as Dallas District Attorney, which without opposition in the Democratic primary appears increasingly likely, Craig Watkins said recently he wants to expand the work of his Conviction Integrity Unit - which spearheaded his office's review of old DNA cases, leading to numerous exonerations - to include arson and shaken baby cases. Reported the Dallas Morning News ("Craig Watkins says he still has big plans for DA's office," Nov. 14):
Dallas County District Attorney Craig Watkins has gained a national reputation for spearheading prisoner exonerations.

As he prepares to seek a third term, Watkins said Thursday he wants to expand on that role and add a few others. ...

Watkins, a Democrat who was first elected in 2006, gained attention for using DNA tests to overturn convictions, and he said his office has a few more such cases pending.

When prosecutors finish with those next year, Watkins said, he wants his team to take another look at people convicted of arson and those accused of shaking their babies to death. Watkins said he has concerns about the science used in the prosecution of both types of cases.

“The science has changed. We need to revisit it,” Watkins said without elaborating.
With the passage of SB 344 by Whitmire/Turner, people convicted based on junk science now have a clear path to pursue habeas corpus writs to challenge their convictions, with old arson and shaken-baby cases high on the list of bad science likely to be challenged. It will be welcome news if Watkins takes leadership and gets out in front of those issues the way he did on DNA testing. The main difference will be that, until the Legislature changed the law in 2011 (SB 122 by Ellis), DAs could prevent DNA testing in old cases if they chose, just as Williamson County DA John Bradley thwarted testing in the Michael Morton case for many years simply by objecting. By contrast, the passage of SB 344 means junk science cases can now get back into court via habeas writs on their own, so Watkins and other District Attorneys will be forced to revisit them whether they want to or not. Still, it's refreshing to see a DA willing to seek out false convictions in junk science cases instead of reflexively fighting tooth and nail to keep them intact.


Anonymous said...

That would be a good start .What about conviction based on cops and "forensic" lab workers testilying Brady Violations . secret deals mad between a snitch and prosecutor . Lying to obtain a warrant and the list goes on and n . The Conviction Integrity Unit should and can if the political will existed can look into all other misconduct and constitutional violations they are not technicalities as the prosecution and cops love to call them minimizing that they violated our rights to secure a conviction . They are all of our rights if the state can violate one group or person they can and will violate every ones . guilty or innocent . If they did not there would not be as many incet people in prison ? intentional or unintended . There's s lots of those also ? If they are looking for junk science the allegations of child abuse might be a good place too look along with arson and voice print analysis along with most of the evidence fond by dogs .
I'm sure he will be called soft on crime for even trying ot be sure some innocent humans are not incarcerated .How is that soft on crome ? it sitre istough on our wallets even if you do not live in Dallas hell even if you do not live in TX all those federal grants for fi9gting the"war on crime " He could also pledge to make sure cops who break the law spend a very long time in TDC On a A rock and roll unit in population doing every day flat would be n good start. I doubt he will go that far yet maybe some one in 2016 or 2020 when demographics make it possible . By 2016 it might be possible to begin the of the end the drug prohibition and look at how to release those incarcerated on a drug changed or the arrest was based on drugs .There's a whole long list .I'd vote for him despite his flaws if I lived in Dallas County . It a lot better than going back in time .

Anonymous said...

Already an outcast because of his skin color and the work he has done with the despised enemy of all district attorneys, the Innocence Project, this new mission will end any chance of him ever winning Prosecutor of The Year. In fact, if Watkins keeps this up he'll likely have his TDCAA membership rescinded.

BTW, the Bexar county DA has decided not to retry the cases of the San Antonio women who were convicted of child sex crimes based on junk science and it looks like they'll finally be going home on Monday:

dfisher said...

Watkin has been doing the right thing when freeing the wrongly convicted from past DA's misconduct, but is he doing the same thing they did with his conviction?

The answer is yes.

In May 2010 the former Dallas CO 1st Assistant DA Teri Moore admitted to me the Dallas CO ME's office was illegal. I gave her one year to fix that problem. In May 2011 I had Dallas Chief ME Barnard challenged in a federal court deposition as to his position as chief ME. Barnard testified that in order to be the Dallas CO medical examiner he had to hold two "appointments", one with the UT Southwestern Medical School and one with Dallas CO. Both appointments are paid appointments.

The TX Constitution, Article XVI, Sec. 40 forbids holding two appointments for profit at the same time,unless the person is exempted under sec. 40. Neither medical examiners nor professors are exempted. In 2002 John Cornyn as Ag issues opinion JC-0557 ruling professors at state universities cannot hold two paid positions at the same.

The TX Supreme Court has ruled that any person holding two paid positions, not allow, in violation of Art. XVI, Sec. 40 may not be paid for either, and all official acts are void.

Dallas CO Chief ME Barnard has been holding two paid appointments at the same time since 1991.

When Dallas CO First Assistant Teri Moore learned of the federal court deposition of Barnard, she and the head to the Dallas DA's public integrity unit both resigned.

In May of this year I had the Ector CO medical Examiner removed for hold two paid positions at the same time.

All Watkin's convictions where the Dallas CO ME's office was involved are as illegal as Anderson's conviction of Michael Morton.

Anonymous said...

If one were so inclined to perform a statistical analysis from the National Registry of Exonerations, of the 1242 exonerations in the United States, 22% involved "false or misleading forensics evidence" (F/MFE). In Texas, this number jumps to 28.6%. However, the F/MFE number for the State of Texas would actually be higher if Dallas County is removed from the analysis because the statistics for F/MFE is unusually, if not suspiciously, low -- 12% in Dallas County. Of the exonerations under Craig Watkins' leadership, the F/MFE drops even further to 7%.

Conversely, the percentage of exonerations whereby "mistaken witness identification" (MWID) was involved is 38.2% for the nation. In Texas, the MWID is 47.4%. In Dallas County alone, this number is 71%. Of the exonerations under Craig Watkins leadership, 75% are due to MWID.

Why the skewed statistics for Dallas County vs. the Nation? Were the police agencies that poor at performing correct police line-ups in Dallas County? Is the forensics that good as to never make a mistake? Or could it be argued that Dallas County (and Watkins' Conviction Integrity Unit) only goes after the "low hanging fruit" for post-conviction investigations?

Regarding the exonerated's civil remedies, eye witnesses who mistakenly identify the wrong person ("oops!") can't be sued. However, crime labs and their employees can (as State actors).

Also, a mistaken eye witness only affects a single criminal proceeding. Conversely, if a crime lab or M.E. is found to have made a mistake, hundreds if not thousands of adjudicated cases can be challenged (depending on the number of cases the forensic analyst or M.E. handled for the County -- e.g. Fred Zain, Jonathan Salvador, Annie Dookin). There's a huge financial and time-consuming burden for the Counties to perform root-cause analysis of the mistakes/problems and subsequent "duty to correct" actions. Not to mention, the embarrassment to the crime lab's or MEO's integrity inside (or outside) the court room. (Prosecutor's can't get the easy plea bargains if their expert witnesses have been known to get the science wrong.) Thus, there's much less incentive for a prosecutor to investigate claims of wrongful convictions based on flawed forensics.

While Watkins may have created something noble with his Conviction Integrity Unit in Dallas County, statistically the numbers suggest that he doesn't (or hasn't) practice what he preaches.

Gritsforbreakfast said...

dfisher, what evidence can you provide that any ME issues were why Moore and Ware left? And besides your say so, what evidence do you have that Moore agreed with your legal opinion? There are a lot of assumptions embedded in your comment that you assert but have not proven, not here, anyway.

@2:35, I'd argue that virtually all of Texas' exonerations so far amount to the "low hanging fruit." Looking at junk science will get them a little higher up the tree, but still, nobody's breaking out the ladders yet unless they're absolutely forced to do so.

Watkins deserves credit for moving the ball forward in Dallas more than other Texas DAs, but that's a pretty low bar.

Anonymous said...

Watkins is picking different "low hanging fruit" relative to the rest of Texas, or the County for that matter.

dfisher said...


My conversation with Moore came after I tried to file a complaint with the DA Integrity Unit, but was put on hold, that's when Terri Moore came on the line.

We discussed the ME issue for over an hour before she relented and agreed the Dallas Co ME's office was illegal. It was at this point we came to an agreement that if she called the McLennan CO DA and told them the Matt Baker Autopsy was illegal, I would not take any action against the Dallas CO ME's Office for one year. If at the end of that year the problem wasn't fixed, then I would move against the DA and the ME. On May 27, 2010 one of the Waco Matt Baker prosecutors posted this question on TDCAA bolg:

"Toxicology and Hearsay"

"The autopsy reports we received from Dallas contain toxicology results of the victim. The testing is done by a toxicologist. In the past, the Medical Examiner has testified to both the autopsy and the toxicoloty results. Since the toxicology results are performed by the toxicologist on substances sent to him by the M.E., can the M.E. testify to the results or are the results subject to a Crawford confrontation objection which requires calling the toxicologist as well? The M.E. is most likely not present when the toxicology is run and quantified."
Posts: 2 | From: Waco, Texas, USA | Registered: 05-27-10, Susan

This post confirmed Moore had held up her end of the agreement.

On May 2, 2011 I had Dr Barnard questioned about his appointment as Dallas Co ME in a federal court wrongful death suit. This was my warning to Terri Moore and Barnard that the time was up.

Barnard's holding two appointments for profit that conflict at common-law is fatal to the Dallas Com ME's Office as it is a constitutional violation.

Terri Moore resigned on June 9, 2011. Whether she will admit to any of this, I don't know. You should ask her.

Anonymous said...

(Dis)Honorable mentions for the work of Dallas County's Craig Watkins and his Conviction Integrity Unit (CIU)include,

...In 2011, Dale Duke was exonerated in part due to prosecutorial misconduct (Brady Violations). Yet, no criminal action has been taken against the prosecutor who withheld the material favorable to the Defense.

...In early 2012, Richard Miles Jr. was exonerated in part due to prosecutor misconduct (Brady Violations) and faulty forensics including misleading expert witness testimony. Again, no criminal actions taken for the misconduct of either the original prosecutor or the forensic analyst.

...In May 2012, Ricky Dale Wyatt was exonerated after 31 years. DCDAO states it was prosecutorial misconduct (Brady Violation). According to the writ, the forensic expert for the State also provided false and misleading testimony (her lab notes did not fit her scientific conclusions). Did Watkins pursue a criminal investigation? Nope.

As a reminder of what Watkins promised (a H/T back to you Grits),

Since 2007, about 44% (n=13) of the exonerations in Dallas County were, in part, because of "official misconduct", mostly Brady Violations.

Although he stated in 2007 that he would, Craig Watkins has yet to address the prosecutorial misconduct of these cases. Also, he has yet to address his crime lab about the possibility that those lab analysts or MEs involved with the wrongful convictions may have contributed to other wrongful convictions (not yet identified). That is, no retrospective audits performed. (The director of the crime lab and M.E., Dr. Barnard, is a member of the Texas Forensic Science Commission. So, good luck getting the FSC to investigate thoroughly...or at all. And the State Bar is a moot point.)

Obviously, he has the means to execute his "Big Plans", but without the numbers to back up his past work, they are just more political posturing of smoke and mirrors.

Anonymous said...

According to the AG's 2012 guidance document to local governments on dual office holding, the restrictions of Art 16 Sec 40b would apply to local governing boards and bodies. The office of the ME doesn't seem to meet the definition of a governing board or body. Also, according to the AG's guidance document Art 16 applies to dual civil office holding, not dual employment. A faculty position at a university doesn't meet the definition of a civil office, apparently.

Anonymous said...

One good thing regarding Watkins' tenure as DA is that law enforcement in the county have been charged when they commit crimes. One of the very few counties in Texas where the DA isn't afraid to step on the toes of cops and hold them accountable.

Anonymous said...

Grits, I was asked to pass along a question regarding - Junk Science & Technology based Evidence.

Considering that the alledged contents (spreadsheets) of a Laptop's hard drive is entered as a State's Exhibit and the Laptop is allowed to be improperly stored prior to a Jury Trial, where the battery is drained resulting in the Laptop being declared as 'inoperable' by the ADA of record.

Would this be considered as Junk Science and qualify for a Review, if its presented to a jury as being in 'it' but we can't retrieve 'it', take our word, 'its' in 'it'. Thank you.

dfisher said...

@09:28:00 AM,

Gregg Abbott most probably the squirreliest and most dishonest attorney general in the history of Texas. Below is part of Abbott's 8-9-2011. Article XVI, sec 40 has two parts, (a) for civil officers and (b) for state employees. To this issue Abbott wrote:

{Opinion No. GA-0874
You also ask whether subsection (a) of article XVI, section 40 is applicable to the school district police chief irrespective of subsection (b). It is not. Subsections (a) and (b) of article
XVI, section 40 are not in conflict. Subsection (a) applies to persons who hold a "civil office
of emolument." Subsection (b), which was added to the constitutional provision in 2001, by its terms applies to persons "who are not State officers." We conclude that subsection (b) is
an independent provision that addresses prohibitions and exceptions applicable to "State
employees or other individuals who receive all or part of their compensation either directly
or indirectly from funds of the State of Texas and who are not State officers." See Tex.
Const. art. XVI, § 40(b).}

Additionally, AG John Cornyn ruled on 11-19-02, in Opinion No. JC-0577 that:

The term "schoolteacher" in article XVI, section 40 of the Texas Constitution does not include instructors or professors employed by a state university. Thus, a university professor may serve on the governing board of a local governmental district, but may not receive a salary for such service."

In Abbott's guidance document you cite he writes:

"The factor which differentiates an officer from an employee is whether the person is empowered to exercise a “sovereign” function of government that is largely independent of the control of others."

The TX Code of Criminal Procedure, Art. 49.25, sec 6(a) sets the duties of of medical examiners and their deputies:

"Death investigations
Sec. 6. (a) Any medical examiner, or his duly authorized deputy, shall be authorized, and it shall be his duty, to hold inquests with or without a jury within his county, in the following cases:"

The Medical Examiner Statute imposes the duty of conducting "Inquests" not autopsies on the ME, so a medical examiner is a magistrate. Only a magistrate can issue subpoenas and empanel a jury, and place them under the Rule.

Clearly, medical examiners exercise a “sovereign” function of government that is largely independent of the control of others, so are officers as defined under art. XVI, sec. 40(a).

This is the reason the Forensic Science Commission cannot review that part of an autopsy performed by a medical Examiner or licensed physician under the TX Code of Criminal Procedure, Art. 38.35, sec. 5(2)(f). Medical Examiners are part of the Judiciary and licensed physicians perform autopsies under orders of JP's, also judicial officers.

findings and orders of the judiciary can only be challenged by an appeal to a higher court, so are not subject to challenge by a panel like the Forensic Science Commission.

Based on the above can you still argue medical examiners are not forbidden under Art XVI, sec. 40 (a)to hold dual appointments and salaried professors at state universities are likewise forbidden to hold dual appointments under sec. 40(b)?

Anonymous said...

Dfisher: i'm not arguing anything. i'm just pointing out the the AG has provided guidance to local governments that is different from what you say.

Anonymous said...

Has anyone heard of Craig Watkins investigating claims of wrongful convictions that HIS OWN own office prosecuted?

And, why doesn't the Public Defenders Office have control over the responsibility for investigating claims of wrongful convictions? Intuitively, they have the motive and reasoning for defending their clients and pursuing innocence without the political or financial ties to any other adversarial agencies. The PDs have nothing to gain by covering-up wrongful convictions. Why not divert taxpayer money from the Conviction Integrity Units to the Public Defenders?

The District Attorneys Office is the wrong agency to investigate wrongful convictions.

Thomas R. Griffith said...

Hey 9:29PM, you up there, just may have come up with a great idea.

*Consider re-posting this idea often in multiple venues when it's appropriate. Since you didn't put your name on it, I'm forced to present it to Mr. Alex Bunin of the Harris County PD, as being from 'someone' in the GFB readership. Maybe your idea will inspire someone with juice to create a bill aimed at diverting the so called - Integrity Units ability to cover up the uncovered via ignoring.

The idea of allowing the D.A.s' offices' to police their own conduct (past, present & future) is and has always been a bad idea. Just ask anyone that's submitted a Request to Lykos's fake Unit.