Saturday, March 12, 2016

Confronting junk science and judicial activism at the Texas Court of Criminal Appeals

The vicissitudes of judicial activism and politics continue to cloud the future of Texas' new junk science writ, with the Court of Criminal Appeals engaging in extremist political gamesmanship, hoping to keep from interpreting the 2015 amendments to the law until they get new allies on the court willing to issue a judicial veto and enforce their own political preferences over the Legislature's. In the meantime, history marches forward as do cases in which the court will be asked, with increasing frequency, to interpret the new law. A number of related, recent stories caught Grits' eye and merit readers' attention:

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.

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.
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.

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.”


Anonymous said...

Nearly a third of all exonerations in 2015 came out of Houston -- 42 were based on "false positives" for drugs. According to Radley Balko, "Of the 73 false confessions for possession in Harris County over the past two years, 41 were based on false positives from field tests...Harris County is still processing another 200 cases in which a defendant pleaded guilty to possessing a substance that lab results later determined wasn’t illegal." Has there been an investigation towards a scientific explanation for the false positive field tests? No? Are these same drug field tests being used today? How many false positive drug field tests occurred in the rest of Texas?

Maybe the false positive field tests are the product of a few bad apples trying to get a few more arrests to their credit. Tulia, anyone? I guess we'll never know because a root cause analysis won't be done anytime soon.

Instead, let's spend time and money on investigating a dead science. Dr. Nizam Peerwani, a [Texas Forensic Science] commission member and the chief medical examiner in Tarrant County, said his agency abandoned the practice [bite marks analysis] more than two decades ago. “We have no respect, absolutely no regard for bite marks,” Peerwani said. -April 2015, before the TFSC investigation started.

So, the TFSC (wielding a foregone conclusion) wasted a year investigating a discipline that should have been banned way before the CREATION OF the TFSC. Next on the list...pyrokinesis and spoon-bending. Uri Geller must be stopped!

Meanwhile, there were at least 9 complaints that were ignored by the TFSC in 2014 with "NFA" excuses (No Further Action, see the very last Table in the 2015 FSC Annual Report). Why NFA? As required by 38.01, where are the TFSC Reports describing the NFA? How many criminal cases were affected? How much evidence was compromised by poor forensics?

Gritsforbreakfast said...

@10:17, the TXFSC doesn't have authority to investigate field tests used by police departments, only crime labs, and the crime lab tests are by all accounts accurate and in fact are correcting the field tests. I agree that the field-test issue should be investigated, but the FSC's inaction stems from decisions by the Legislature, not commissioners. Perhaps the Lege should expand their scope of work to include forensic tools used by PDs as well as crime lab techs. (Paging Chuy Hinojosa!)

Also, if bite mark evidence "should have been banned" before the FSC existed, isn't it better that it happen now than not happen at all? Unlike spoon bending, bite-mark evidence still has an active professional society and paid experts still giving evidence in court who are willing to show up in public and defend it. If it were a "dead science," that wouldn't be true.

Anonymous said...

Legalize marijuana. All arguments against medical marijuana is "junk" science.

Anonymous said...

And the numerous NFAs that the public doesn't know about?

If the TFSC was doing their job, the problems discussed in those emails wouldn't have happened.

"When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle." -Edmund Burke, 1770

Isn't that right, Scott?


Anonymous said...

38.01 states, "...The commission may initiate for educational purposes an investigation of a forensic analysis without receiving a complaint..."

And, according to the AG,

"...Article 38.01 expressly incorporates the definition of "forensic analysis" from article 38.35(a) of the Code of Criminal Procedure:

(4) "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court..."

This, and the same reasoning for investigating arson investigations, are all that is needed.
So, it appears that they can-and-do have the authority.
They just won't.

Anonymous said...

In regards to the new Junk Science Writ, there is mention of an update or amendments by the legislature in 2015, what might that be? Also is the Writ typically used only in "Innocence Cases" or can it be used in a case where junk science was used to determine punishment when the person is guilty & signed a confession? I work on innocence cases but also look into other cases as well. I have a case where a man was offered a plea bargain of 25 years, but the PD with his request went back to the DA to request a better offer. They offered for the defendant to take a test, "The Abel Assessment" & if passed would render him a light sentence or probation. Later when the man failed the test & went before the judge for his sentencing hearing, he was told by his PD that he failed the test, & now the judge thinks you're a sociopath. Minutes later without much tadoo or admonishment for that matter the judge handed down a sentence of 45 years. The man has now served 18 years of that sentence. Theoretically could the "Junk Science Writ" be used in a case like this? What is a previous Habeas Corpus Writ was already filed, but in 2001, before any of the courts ruled on the inaccuracy of "The Abel Assessment?"

Anonymous said...

Hey, uh, Grits-

According to the NYT, "The commission has also started sorting through decades of trial records to identify past cases that should be reopened because they depended heavily on now-discredited bite comparisons. Dr. Di Maio said it has identified 35 convictions so far that involved such testimony, but had not yet determined those in which it played a critical role."

So, bite marks = two decades = entire State of Texas = 35 (maybes).
presumptive drug tests = two years = Harris County (only!) = 42 exoneratations, with 200 more cases waiting (not maybes).

Priorities, man.

And any prosecutor stupid enough to present bite mark evidence into trial (or and defense attorney who doesn't raise objection) should be immediately reported to the State Bar.