Texas needs process to vet convictions based on forensic hokum

It's time to put in place a process for reviewing convictions when key forensic testimony that helped send people to prison turns out to be a bunch of hokum. The FBI's response to cases involving bullet-lead analysis, while too leisurely by far, provides a starting point if Texas can decide who's going to carry the ball. According to AP ("FBI reviews cases where flawed evidence used," Jan. 18):

Nearly five years after the FBI abandoned its so-called comparative bullet lead analysis, the FBI has yet to complete its review of nearly 2,500 cases where law enforcement used such evidence to investigate a case.

So far, the agency has found 187 cases where so-called comparative bullet lead analysis evidence was not only used in the investigation, but came into play at trial where FBI experts provided testimony. It has notified prosecutors in those cases where testimony from its experts "exceeds the limits of the science and cannot be supported by the FBI," one agency letter says.

At least three convictions — that of a Colorado man who served 12 years in prison for a double slaying, a Florida man who served 10 years after being convicted of killing his wife, and an Oregon man convicted of a triple slaying — have recently been overturned.

All three men are now free.

Comparative bullet lead analysis was based on the theory that lead bullets pick up trace elements such as copper, antimony, arsenic, bismuth and silver during manufacturing. When the soft metal is shaped into bullets and packaged, bullets in the same box would contain similar amounts of the trace elements, the theory went.

FBI lab technicians compared bullet fragments from a crime scene with bullets possessed by suspects. If the trace elements closely matched, prosecutors — backed by FBI testimony — would argue the suspects' guilt.

Defense attorneys say the analysis appeared to be a miracle of science: It required a small nuclear reactor, once housed at an FBI lab at the Hoover Building in Washington, D.C., and relied on the expertise of only a handful of qualified FBI agents.

FBI experts wowed jurors by explaining how gamma rays, energy released from bombarding a bullet with neutrons, could be measured to make a match.

"Sure, you have this whiz-bang, whipper-dipper machine that looks at all the elements of the universe, but it doesn't mean anything," said attorney Dave Wymore, a former director of the Colorado public defenders office who fought successfully to exclude such evidence in a triple-murder case and won an acquittal in 1999.

The FBI began the tests in the mid-1960s. It quit in 2005, after the National Research Council of the National Academy of Science concluded that while its methods of measuring trace elements were sound, its conclusions were flawed. Millions of other bullets could contain trace elements in identical quantities, the council said. That rendered the FBI's box-by-box conclusions meaningless.

This type of review should be triggered whenever older, flawed forensics are discredited by modern science, though obviously it needs to occur with much greater alacrity than is happening at the FBI. It would also behoove the feds to send notice to defendants, as well as prosecutors, and to provide notice in cases that resulted in a plea bargain. In the face of damning but false forensic evidence, an innocent person may take a plea to avoid the steep "trial penalty," which is to say the much higher sentence defendants receive if they take their cases to trial. We know from the stories of DNA exonerees that it's not unheard of for an innocent man to plead guilty under those circumstances.

There's an immediate need for Texas to figure out how to vet old cases with faulty forensics. For example, Fort Bend County Sheriff's Deputy Keith Pikett announced he's retiring this month soon after the Court of Criminal Appeals agreed to hear a case evaluating the validity of his work with bloodhounds performing "scent lineups" for prosecutors all over the state, including for the Attorney General's office. Recent DNA exonerations of men accused by Pikett's dogs - including a police officer falsely accused of murder - combined with national dog experts' criticisms of his methods and the deputy's exaggeration of credentials in trial testimony, have made Deputy Pikett a statewide poster boy for the kind of shoddy, less-than-reputable forensics that Texas' weakened standards for forensic evidence have come to routinely allow.

Looking forward, let's assume for the sake of argument that the Court of Criminal Appeals concludes later this year that Pikett's methods don't pass muster. Nobody knows how they will decide, of course, and the CCA's track record leans toward admitting such evidence. But my sense is the Court took the case to overturn precedents allowing Pikett's testimony, based in part on apparently perjured testimony about his credentials, especially since he's the only person in the state who performed this procedure.

If Deputy Pikett's work with dogs is declared invalid by the court, somebody needs to step up and take responsibility for vetting those old cases and notifying prosecutors (or better yet, both parties) in cases where Pikett performed lineups.

Deputy Pikett boasts that his dogs have performed scent lineups in some 2,000+ cases over the last 20 years. Vetting them is not an insurmountable task if somebody like the Attorney General decided to staff the project. I'm willing to bet this cop cleared by DNA wasn't the first person Pikett's dogs falsely accused, and it wouldn't surprise me if there are a significant percentage of false or questionable convictions in cases where Pikett testified or his "evidence" was used to pressure a plea bargain.

The Fort Bend Sheriff could perform this task--it was his employee engaging in junk science--but the Sheriff has consistently defended Pikett's work. That's why it makes more sense to set up the review process in an office independent of the original investigation.

So far Attorney General Greg Abbott has also balked at undertaking this responsibility, even in cases where his own prosecutors used Pikett's dog-scent evidence. Maybe that will change depending on the Court of Criminal Appeals' ruling (or perhaps after the November election).

Old arson cases based on unscientific, since-discredited folklore in my opinion deserve the same kind of comprehensive review. Again, we're talking about a finite, identifiable number of cases. It would be a large job but not an insurmountable one. Researchers in other jurisdictions are already developing a screening process to vet old arson cases, so nobody would have to reinvent the wheel. The Todd Willingham case got the debate over faulty arson forensics sidetracked into a death penalty dispute, but the truth is a lot of people have been convicted because an arson "expert" told a jury things were true about fire that science has since discredited.

This isn't going to be the last time this comes up. How should we respond when we discover innocent people were potentially sent to prison based on flawed forensics? With the exception of Dallas District Attorney Craig Watkins, so far the answer among Texas state law-enforcement leaders has mostly been to look at one another in embarrassed silence, hoping somebody else will step up first so they won't look soft on crime. But it's not "soft" to believe that innocent people shouldn't go to prison, or stay there, based on discredited forensics. And it only makes sense to develop systems to handle that eventuality instead of relying on underfunded nonprofits and law students to perform the task ad hoc.

If the AG continues to sit on the sidelines, the Legislature next session should consider assigning the task - with clear mandates and sufficient resources - to the Forensic Science Commission, which surely merits a dramatic overhaul, anyway, after the recent Todd Willingham fiasco. The agency should be empowered (and required - no malingering, JB!) to perform this type of review-and-notice function whenever courts or the Commission determine that modern science has rebutted older, discredited forensic methods.

Just like when DNA evidence first began exonerating defendants in ways Texas laws had never countenanced, we're at at a moment in history when there's an obvious need for a way to move forward but no existing process. Somehow, some way, the state needs to create one. Executive branch leaders could and arguably should take the lead on their own volition, but if they don't the Legislature should mandate their action, just like they had to require courts to allow postconviction DNA testing when prosecutors refused.