SA4 to walk free: New Texas statute combats injustice caused by junk science

The Bexar County DA apparently has decided not to re-prosecute the "San Antonio Four" - four women convicted of child molestation now-acknowledged junk science and a pair of child witnesses, one of whom, now grown, has recanted saying her testimony was manipulated by a relative. Reported AP's Nooman Merchant (Nov. 15):

Three of four San Antonio women imprisoned for sexually assaulting two girls in 1994 could soon walk free after their attorney and prosecutors agreed that a key expert witness' testimony is now discredited.

Bexar County prosecutor Rico Valdez and defense attorney Mike Ware told The Associated Press on Friday that they agree the convictions of the so-called "San Antonio 4" should be vacated. A judge on Monday is scheduled to review findings of fact that will be sent to the Texas Court of Criminal Appeals.

The women may be able to obtain a bond to allow them to walk free that day, Ware said.
Elizabeth Ramirez, Kristie Mayhugh and Cassandra Rivera remain imprisoned. The fourth, Anna Vasquez, was paroled last year, but under strict conditions.

The four women:

were convicted in 1998 based on an expert's testimony that the 9-year-old girl had a scar in her vaginal area caused by the tearing of her hymen — which could only have been caused by a painful attack. According to a petition filed by Ware, the expert, Dr. Nancy Kellogg, also testified that the injury in question happened around the time of the alleged assaults.

Ware's petition cites a 2007 study by the American Academy of Pediatrics that found that "torn or injured hymens do not leave scars as a matter of scientific fact." Valdez said Friday that the mark Kellogg observed "would be identified as non-specific if she were testifying today," not as evidence of trauma.

The Bexar DA won't agree to the women's actual innocence but will agree to granting new trials, which ironically their office apparently will not pursue:

Prosecutors don't agree with Ware that the women should be declared formally innocent — a distinction that would allow them to collect money Texas pays to the wrongfully imprisoned. But Valdez said the women should be granted new trials "at minimum."

"Realistically, given the age of the cases, given the position as far as it's been related to us that one of the witnesses is recanting, it would be impossible for us to try to seek additional convictions," Valdez said. "And I'm not sure, based on what I know at this point, that that would be in the interest of justice anyway."

So the DA agrees retrials are warranted, but won't pursue retrials "in the interest of justice" but won't acknowledge their actual innocence claims. That's a CYA maneuver if I ever heard of one, allowing the DA to continue denying they secured false convictions against innocent women, even if that's how the evidence now reads. Still, it's great news that the three remaining women will soon be released.

The Wall Street Journal published a story today ("Gathering of forensic evidence goes on trial in Texas," Nov. 15) featuring the San Antonio Four case, attributing their release to a new Texas statute that your correspondent helped promote at the Legislature as part of my work on behalf of the Innocence Project of Texas. Reported Nathan Koppel, the new

Texas law, which took effect in September, is part of a nationwide push to give convicted inmates a way to challenge forensic evidence presented as ironclad at trial—such as fiber particles and bite marks—but then deemed questionable by more-advanced analysis.

While people found guilty of crimes in Texas and other states have long been able to challenge their convictions by claiming new evidence demonstrates their innocence, judges often haven't regarded evolving scientific standards as grounds to review convictions. The Texas law specifically allows people convicted of crimes to bring fresh appeals by claiming that new science contradicts forensic evidence used in past trials.

The drive to retroactively challenge forensic evidence is still in its infancy nationally, but some legal experts believe it could eventually lead to the reversal of many convictions, as has happened with the use of DNA evidence to challenge past prosecutions.

Forensic evidence has come under greater scrutiny nationwide following a 2009 report from the National Academy of Sciences, which concluded that no forensic method, with the exception of DNA analysis, has been proved to reliably allow crime-scene evidence to be linked to a particular suspect. This past summer, the Federal Bureau of Investigation agreed to review more than 2,000 cases to determine whether hair analysis conducted by its experts was used properly in cases.

 Koppel added these observations about the new statute:

"If we possibly have a wrongfully convicted person in prison based on faulty science, we have a duty to review that," said Texas state Sen. John Whitmire, a Houston Democrat who wrote the law.

Robert Kepple, executive director of the Texas District and County Attorneys Association, said many prosecutors have grown more aware of the limitations of science.

"I thought hair and fiber stuff was terrific when I used it," he said. "We find out now, maybe not so much."

The Texas law has already prompted a number of appeals.

Last month, a judge in Conroe, near Houston, recommended a new trial for Neal Robbins, who was convicted of murder in 1999, after a prosecution expert admitted that her inexperience in the field of forensic pathology played a role in her mistakenly concluding that he had asphyxiated his girlfriend's 17-month-old child.

Brian Wice, Mr. Robbins's lawyer, said the new law gives defense lawyers a weapon to counter the "CSI effect," in which jurors raised on TV crime dramas regard forensic evidence as truth, even when it arguably rests on suspect science.

Mr. Robbins remains in prison. Bill Delmore, an appellate lawyer with the Montgomery County district attorney's office, said prosecutors remain convinced of his guilt and believe he shouldn't be allowed to appeal just because an expert changed her opinion.

The San Antonio Four may be the most high-profile case to date impacted by the law.

The Montgomery DA may not think Mr. Robbins should get to appeal, but that's exactly what the new statute requires. Indeed, the trial judge not only thought Robbins should be allowed to file a new writ but recommended a new trial, which makes the DA's procedural complaint seem petty and self-serving, at best. It'll be up to the Court of Criminal Appeals - who narrowly declined Mr. Robbins relief in 2011 by a 5-4 margin before the new law was passed - to decide whether the trial judge is right that Robbins' conviction should be overturned. But at least now, thanks to Texas' new junk science statute, prosecutors won't be able to prevent the courts from considering habeas writs when new science contradicts expert testimony presented at trial. It's a big step forward.

MORE: Find below the jump the text of a just-released press statement from my employers at the Innocence Project of Texas related to the San Antonio Four case:

The Innocence Project of Texas (IPTX) is proud to announce that on Monday, November 18th, 2013, the “San Antonio Four”, Elizabeth Ramirez, Cassandra Rivera, Kristie Mayhugh and Anna Vasquez expect to be released from prison on bail. Bexar County officials and defense attorneys for the women agreed that a key expert witness’ testimony is now discredited.   

The four women were wrongly convicted for multiple accounts of sexual abuse in trials held in 1997 and 1998 and have maintained their innocence. The women all turned down favorable plea-bargains because they refused to plead guilty to crimes they did not commit. Elizabeth Ramirez received a 37 and a half-year sentence and will not be eligible for parole for several more years.  While Anna Vasquez made parole last November and has advocated for the release of the other three since, they have all experienced delays in parole because they refuse to “admit” to crimes they didn’t commit. 

Widespread public support led to sponsorship by the National Center for Reason and Justice (NCRJ) and IPTX involvement in the case since 2010. An expert legal team headed by Mike Ware, an IPTX Board Member, recently filed writs of habeas corpus on behalf of the women. Along with the discredited expert medical testimony, one of the two alleged victims, now in her twenties, has come forward and confirmed that the crimes she and her sister accused the women of, never occurred.  

In addition to other new evidence of innocence, all four women have passed polygraph tests, administered by a highly respected examiner, establishing their innocence.  All four women have also submitted to psycho-sexual evaluations which have established that none of them are pedophiles nor are they predisposed to committing any sex offense. “In other words, not only did they not commit this offense, they would not have committed this offense,” Ware said. 

The writs are also among the first filed invoking the new “junk science” bill supported by the Innocence Project of Texas and passed in the 2013 Texas Legislature. 

"This is an historic case", said Jeff Blackburn, Chief Counsel of the Innocence Project of Texas. "This is one of the first examples of how Texas' new approach to reviewing old cases based on junk science will work, and one of the most significant. That is because it involves an area of forensic science that has not been looked at before and also because it opens the door to a review of other such cases statewide, just as we are doing in arson cases", according to Blackburn. "Texas is leading the nation by passing laws like the one this case has been brought under – a law IPTX championed – and allowing cases like this to be reopened. This is the beginning of a new chapter in the history of criminal justice in Texas and the nation.”

Although prosecutors are not ready to declare the women formally innocent, they do agree that the women should receive new trials. “It’s not the end...we have a ways to go in the case,” Ware said.  “It will be a huge day for all four women, and in particular, the three that are still incarcerated.” 

There will be a press conference on Wednesday, November 20th, where the four women will be available for comment.  For more information, please visit our website at www.ipoftexas.org.