Lurching toward precedent
The indefatigable Brandi Grissom reported in the Dallas News this week (March 10) that the CCA agreed to let a case go forward which challenges "shaken baby syndrome" type evidence and may be the one that gets the Court of Criminal Appeals to finally interpret CCP 11.073, Texas new "junk science writ," as amended by the 2015 Legislature. If so, the court has chosen a case of first impression which addresses only changes in overall scientific understanding, not recantations of bad science testimony proffered by individual scientists, which was the issue raised in the cowardly Ex Parte Robbins decision recently where the court punted instead of interpreting the new law.
Texas death row inmate Rigoberto Avila will get another chance to prove to an El Paso court what he’s been saying since 2000: that he did not kill the 19-month-old son of his girlfriend and that the child’s death was a tragic accident.
The Texas Court of Criminal Appeals agreed this week that scientific developments Avila presented would contradict evidence El Paso County prosecutors used to obtain his conviction. Nearly three years after Avila requested a ruling, the state’s top criminal court has ordered a lower court to review scientific evidence that the inmate says shows he is innocent in the death of baby Nicholas Macias.
Avila’s lawyers said they were “tremendously pleased” with the decision.
“We remain confident that a full examination of the case will ultimately spare an innocent man from execution,” lawyers Robert Owen and Cathryn Crawford said in an emailed statement. ...
In 2013, new lawyers for Avila asked scientists to review the evidence in his case. The scientists, using new developments in biomechanical science, concluded that a child falling from no more than the height of a bed onto an infant could have fatal consequences.See the CCA's opinion authorizing the trial court to investigate this alleged junk science, past coverage from the Austin Chronicle, and a 2014 article in The Atlantic about the Avila case.
That year, Texas legislators approved a first-in-the-nation law that allows courts to re-examine cases in which scientific developments could call into question a jury’s original verdict.
Under that law, the Court of Criminal Appeals agreed that Avila’s case should get new consideration. Now, the lower court in El Paso will schedule future hearings on the case.
Bite mark ban praised
Despite the Court of Criminal Appeals' craven failure to acknowledge legislative actions with which the Government-Always-Wins faction of the court disagrees, in the scheme of things it appears the state may be approaching a consensus that courts should provide redress for junk science evidence in the courtroom. The SA Express News offered up an editorial recently (March 9) titled "Purge junk science from courtrooms," calling for "Texas district attorneys, not just the ones who have established conviction integrity panels, to review claims of wrongful convictions and to revisit any cases in which bite-mark evidence was used." See more background on challenges to bite mark evidence and the recommendation by the Texas Forensic Science Commission to ban such testimony in Texas courtrooms. A decade or two ago this would have been a controversial stand; today such views quite literally pass without comment (zero comments on the Express-News editorial as of this writing). The public accepts that these problems must be addressed, even if at least four members of the Court of Criminal Appeals do not.
Travis DA main impediment to compensating Fran and Dan Keller
Fran and Dan Keller had their false conviction overturned in part because of debunked junk science in their case, but the courts and Travis County DA Rosemary Lehmberg have refused to acknowledge their innocence so they may be compensated. The Austin Chronicle provided an update on the status of the case and Lehmberg's (sober?) reasoning for refusing their petition - she wants the Kellers to prove a negative, that the phony accusations against them, which included alleged satanic rituals performed at a day care, could not have happened. Though his record so far does not leave one sanguine that this may happen, the Board of Pardons and Paroles and Governor Abbott should step in to pardon the Kellers for innocence. This episode has been a disgrace for Texas law enforcement and the inability of courts to exonerate them amounts to a black eye for the CCA's actual-innocence jurisprudence.
Kudos for Conviction Integrity Units
In related news, the Texas Tribune published a story from the Medill News Service (March 12) about the rise of Conviction Integrity Units at local prosecutors offices, which have become the center of gravity for exonerating falsely convicted defendants to an even greater degree than innocence projects, judging by the numbers, though innocence projects' work are still super-important in contested cases. The first such unit was founded by former DA Craig Watkins in Dallas but, "Today there are 24 county conviction integrity units within district attorneys’ offices nationwide — including those in Bexar, Dallas, Harris, Tarrant and Travis counties in Texas — that work to identify and correct false convictions."
While they exist in less than 1 percent of the nation’s 3,007 counties, such units were responsible for 39 percent of overturned wrongful convictions in the U.S. last year, according to a report by the National Registry of Exonerations. That’s 58 of the record-high 149 exonerations in 2015.
The work of reporters and innocence projects has led to a series of exonerations involving the misuse of forensic information by law enforcement, said James Liebman, director of the Center for Public Research and Leadership at the Columbia Law School.
“There is a huge sensitivity now to the misuse of prosecutorial and police processes to convict people who are innocent,” Liebman said. “Officials have become sensitive to those (innocence) claims and are taking responsibility to do something about it.”
As a result, more district attorneys are starting their own units, said John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.
“As information has spread and (units) have gotten more praise and done more good, you see a rapid uptick,” Hollway said. “More than half of them were started in the last 24 months.”