SA 4 may benefit from new habeas statute affording relief in junk science cases

It's gratifying to see that a new statute passed this session by state Sen. John Whitmire and Rep. Sylvester Turner may help free the so-called "San Antonio Four," who were convicted in part using what turned out to be flawed scientific testimony. (Full disclosure: Grits helped advocate for the new statute on behalf of the Innocence Project of Texas.) Reported the SA Express News' Michelle Mondo ("'S.A. 4' evidence now called flawed," Oct. 23):

All four women who say they were falsely accused in 1994 of child sexual assault could be out of prison by the end of the year following an acknowledgement by prosecutors Tuesday that faulty scientific evidence helped convict them.

The latest development in the so-called “San Antonio Four” case, which has garnered national attention, comes as attorneys for the women filed a series of court documents Tuesday seeking new trials.

The district attorney's office is in agreement that the evidence was flawed and plans to work with defense attorneys to bring to a judge a bail arrangement for Elizabeth Ramirez, 39, and her friends Cassandra Rivera, 38, and Kristie Mayhugh, 40, officials said.

See more background on the case from Mondo's prior coverage. A District Judge must issue findings of fact and then the Court of Criminal has final say, but prosecutors agreeing to bail for the defendants is positive sign. Even if the convictions are overturned the DA could still seek retrials, as only one of two alleged victims has recanted. But the state has now admitted forensic evidence in the case doesn't withstand scrutiny in light of subsequent scientific revelations:

Enrico Valdez, chief of the district attorney's appellate division, said Tuesday that while other aspects of the defense's arguments may need to be litigated, the state's expert witness confirmed that changes in how sexual abuse is diagnosed would have resulted in different testimony that wasn't as damaging.

Dr. Nancy Kellogg testified at both trials that a mark on the hymen of one of the victim's was a scar and indicative of penetration and trauma.

But, a 2007 study by the American Academy of Pediatrics “concludes that torn or injured hymens do not leave scars as a matter of scientific fact,” the recently filed documents said.

“Dr. Kellogg now affirms that her trial testimony was materially inaccurate,” defense attorneys said in the new documents.

Kellogg declined to comment about the case.

The court filings are among the first to use the state's new “junk science” law, which went into effect in September, defense attorney Mike Ware said in a news release.

The law allows for certain types of appeals when scientific evidence comes to light that wasn't available at the time of the trial. 

In addition to the San Antonio Four case, this week a District Judge in Montgomery County recommended relief for Neal Robbins based on the new statute in the case whose misbegotten outcome ultimately spurred the Texas Legislature to take action. See the findings of fact in Robbins and a discussion of how the case relates to the new law in this post.

For more background on the new law, see written testimony I submitted to the Lege last spring on behalf of the Innocence Project of Texas.

MORE: On the SA4 case from the local Fox affiliate.