Saturday, June 27, 2015

Bills focused on forensics, habeas, alter post-conviction landscape

Several pieces of legislation related to forensics and habeas corpus passed this session which collectively alter the landscape surrounding junk science and post-conviction writs.

Solidifying grounds for relief under Texas junk-science writ
Grits has described the importance HB 3724 by Herrero/Whitmire in defending the jurisdiction of the courts to provide habeas corpus relief to defendants whose convictions hinged on junk science, whether because the forensic field at the time got it wrong or because an individual scientist did. Its passage comes with a decision pending from the Court of Criminal Appeals in Ex Parte Robbins III, which is now (un)complicated by the passage of a statute codifying their ruling in Robbins II.

The upshot of HB 3724 is that Texas' junk-science writ will become a highly functional tool in the judicial arsenal to correct error in junk science cases, as opposed to a seldom-used one that ignores most erroneous expert testimony. As Judge Cheryl Johnson  pointed out in her concurrence in Robbins II, as a practical matter judges don't evaluate science but evidence, and in the case of forensics in particular, testimony. So HB 3724 ensured that judges could directly confront the most common source of false convictions based on forensics that the Texas Court of Criminal Appeals sees on a fairly regular basis.

This legislation in a way sets the framework for a couple of other important bills which have received less attention from this blog, mostly because their passage was less fraught with drama.

In defense of 'OCW Empire Expansion'
For starters, SB 1743 by Hinojosa/Herrero expanded the jurisdiction of the Office of Capital Writs to include forensics cases filed under the junk science writ being clarified in HB 3724 above. The agency's expanded mission comes with an expanded name; it will become the Office of Capital and Forensic Writs, empowered to accept (or refuse) cases referred to them by the Forensic Science Commission. A friend of mine who was critical of the move called this the "OCW Empire Expansion Bill," but Grits was more supportive. I want this to be somebody's job.

Unfortunately, it won't be Brad Levenson's job. The Court of Criminal Appeals relieved the OCW chief of his position recently (a fact which seemingly hasn't been reported anywhere, oddly). So there will soon be a new leader at that office whose job will include incorporating forensics cases into the already over-subscribed attorney staff's caseload.

This scenario also imposes a new responsibility on the Forensic Science Commission, which must choose which cases to formally refer. Eligible cases include those accepted through their regular reporting system, as well as allegations of professional negligence or professional misconduct that the commission has taken up of its own accord.

The (legitimate) fear would be that, because no additional budget appropriation was included for the agency to fulfill this new function, the Office of Capital and Forensic Writs could be swamped if, for example, the FSC referred something as large as the Jonathan Salvador debacle to them for representation, an instance where hundreds of defendants are likely eligible for relief. (In that case, the grounds would be Brady, probably not the junk science writ, so perhaps it wouldn't be referred in any event; I mention it because it shows how the scope of forensic error can mushroom as one analyst may handle many cases.) Since the agency's caseloads are already considered by some to be too high, the fear was the expanded mission could harm capital representation.

Regardless, as a practical matter, either the FSC must limit what it sends the OCFW or the latter group must be particularly discriminating regarding what it accepts, certainly until its budget issues can be resolved. One suggestion has been for the Texas Indigent Defense Commission to use some of its newly appropriated general revenue money - even a couple hundred thousand dollars would help - to facilitate the OCFW's transition to its expanded role. Or perhaps the Governor's Criminal Justice Division could identify grant money to support the new mission. For now, that's all speculation. But the agency will need additional resources from somewhere if it's going to take on any significant number of these new sorts of cases.

Expanding habeas representation in agreed cases
Another modest bill to provide habeas representation to indigent defendants, SB 662 by Rodriguez/Alonzo, will now guarantee a lawyer be appointed in cases where the state agrees habeas relief is merited. In particular, judges would have to appoint a lawyer, "If at any time the state represents to the convicting court that an eligible indigent defendant ... who was sentenced or had a sentence suspended is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This will have implications not only in some potential innocence cases, but also instances like the First Amendment cases Mark Bennett has worked on where people are convicted of an unconstitutional statute and become eligible for relief when the courts overturn it. This was among the legislative recommendations from the Texas Indigent Defense Commission.

Licensure coming for forensic analysts 
Finally, unrelated to habeas corpus but an important piece of the puzzle when it comes to forensics: SB 1287 by Hinojosa/Geren  requires the Forensic Science Commission to begin licensing all forensic analysts not already required to achieve accreditation by Jan. 1, 2019. They'll begin drafting rules much sooner than that: The whole process represents a significant expansion of the commission's role.

The bill defines a forensic analyst as anyone who "reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory" and requires than all such individuals be licensed by 2019 if they're not already accredited by an established body recognized by the state of Texas.

This change puts Texas at the cutting edge of the move toward professionalization in forensics fields which have avoided close scrutiny before now. The rule making process will be interesting to watch. What a big job!

* * *

So the grounds for relief under the state's new junk science writ have been clarified once and for all, unaccredited forensic analysts will soon be licensed, and the chances people may receive representation on meritorious habeas writs have improved at the margins. These are significant steps, taken together. They'll likely affect a relatively small number of cases, but these bills collectively give courts and agencies new tools to confront these bleeding-edge issues facing the justice system surrounding junk science and post-conviction relief for false convictions.


Anonymous said...

"..requires the Forensic Science Commission to begin licensing all forensic analysts not already required to achieve accreditation..."

The terminology can get a bit confusing. "Accreditation" applies to organizations not individuals and is granted by a non-governmental accrediting body. "Licensure" in this sense is a governmental authorization for an individual to provide a service or engage in an activity. The term you are looking for here imay be "certification" which is a recognition by a non-governmental certifying body that an individual has achieved a specified degree of competence in a particular area of activity. Certification and licensure are not the same, one being issued by a government, the other being issued by an NGO. Licensure may be granted in part based upon possessing a current certification. Or it may be completely separate.

Gritsforbreakfast said...

I'd encourage you to read the bill. The FSC will issue licenses to forensic analysts which aren't presently regulated. Analysts in already accredited fields wont' have to get them.

Anonymous said...

That is not a correct reading of the bill. It defines analyts as those working in DPs accredited laboratories. "A person may not act or offer to act as a forensic analyst unless the person holds a forensic analyst license."

Gritsforbreakfast said...

You're ignoring the part of the bill that says, "The commission by rule may recognize a certification issued by a national organization in an accredited field of forensic science as satisfying the requirements"

Yes, it's a "may," not a "shall," but assuming that's what they do, that's the basis for my reading.

If you disagree, articulate what you think is happening, don't just naysay.

Anonymous said...

Accredited field here means an area accredited by DPS. National certifying organization means e.g. American Board of Criminalistics which certifies individual analysts in specific disciplines. The FSC may grant licensure to an individual if that individual has been certified by a certifying body approved by the FSC. But all analysts will still have to be licensed by the FSC regardless. Certification will not substitute for licensure. At best it will be a way of demonstrating acceptable competence as an alternative to taking a state administered exam. A analyst may lose licensure while retaining certification from the national body.

Anonymous said...

It's impossible for me to give false testimony because I'm "certified".

It looks as ridiculous as it sounds.

Anonymous said...


There were really only two options for the state: 1) require analysts to be licensed by the state; and 2) require analysts to be certified by a non-governmental certifying body.

One argument for licensing and against certification was that, in the event of an allegation of ethical misconduct, the state should not be dependent upon an external body's evaluation of that allegation. The state should be responsible for the evaluation.

Anonymous said...


Why would the analysts have to be certified (or licensed)? Is that to say that the un-certified analysts for the past 40 years provided bad testimony? Just as ridiculous, why not make it a requirement that all forensic analysts have Ph.D/M.D.?

Certification/licensing means nothing if they make mistakes during analysis or lie during testimony. Only way to catch these problems are to put cameras in the labs, scrutinize their testimonies (by other forensic analysts), remove the incentives for pro-prosecution testimony, and pursue criminal charges for perjury.

Besides, the FSC is a hack organization, only looking out for their own. They're incompetent, to say the least. Why burden them with actual work?

Gritsforbreakfast said...

@7:01, how do you judge the FSC a "hack" organization? With the exception of the ignominious John-Bradley era, IMO they've usually made the most of the limited mission they've been given. I've no reason to think they won't do fine with their new responsibilities. I'd certainly bet on Lynn Garcia, if we're wagering whether they can pull off rulemaking and licensure in three years.

Also, re "mistakes during analysis or lie during testimony," on Friday I attended a portion of the FSC hair and fiber review and lo and behold, what were they doing? Reviewing testimony from forensic analysts in trial transcripts to see if it was accurate or exaggerated. IOW, exactly what you think needs to be done in addition to certification/licensing.

I get the sense you don't actually know much about what the commission does.

Anonymous said...

As a reminder, my cat can get "certification"

Certification, accreditation is garbage.

Anonymous said... - Part 1 - Part 2

The TFSC, which employed Lynn Robitaille Garcia at that time, never addressed the perjury/unethical lie.

The complaint mysteriously disappeared, never to be debated in public or addressed by the FSC.

You only see what they want you to see.