Friday, December 28, 2018

Active death penalty explains efficacy of Texas' junk-science writ

There are three reasons that Grits expects the Lone Star State to emerge as the epicenter of forensic reform over the coming couple of decades. First, our Forensic Science Commission has altered the terms of debate among legislators and stakeholders about how to react when errors and bad science are discovered. I may not agree with everything they put out, but they've educated stakeholders here to a much greater extent than in most other states.

Second is Texas' junk-science writ, as discussed on Wednesday in the context of the Court of Criminal Appeals' Chaney decision invalidating bite-mark identification testimony. Texas and California are the only two states so far to expand habeas corpus in this way. (Comparable legislation has never been pushed in Congress, but that's a Texas innovation they should copy.)

These two Texas reform measures have been widely praised. But together they would be insufficient to rigorously reevaluate the array of questioned forensics identified by the National Academy of Sciences and the disbanded Obama-era president's commission on forensics. Texas courts have refused to exclude such testimony in front-end suppression hearings under the Daubert standard. And courts have discretion which habeas petitions to consider, so there's no way to compel them to take up these difficult cases.

The main reason Grits can confidently predict Texas will emerge at the forefront of forthcoming forensic debates is that we still actively use the death penalty. That's proven to be a critical factor because, as I'd observed previously:
In Texas, capital cases are the one sliver of indigent defendants whose appeals are all paid for by the state, meaning those defendants have access to attorneys to file a state habeas corpus writ. So it makes sense that many of the most high-profile, early uses of the junk-science writ would come in death-penalty cases. By contrast, plea the case to life without parole, and a defendant accused of the same crime with the same evidence would have no access to an attorney at the habeas corpus stage.
I discussed exactly this dynamic with Amanda Marzullo, the executive director of the Texas Defender Service, a nonprofit that represents capital-murder defendants, in a segment on the August episode of Just Liberty's Reasonably Suspicious podcast. Check out that conversation here:

This explains why California's writ hasn't as yet had as big an impact: Their capital punishment system is moribund and few executions are set, so there isn't the constant stream of deadlines requiring courts to act. These days, quite a few death-penalty cases include junk-science writ claims, and the Court of Criminal Appeals is required to consider all of them.

It's not inevitable that death-penalty cases will dominate the initial round of Texas junk-science writs. Instead, it's a function of which indigent defendants have access to counsel to challenge bad evidence in their cases.

Judge Elsa Alcala on the Court of Criminal Appeals has suggested the Legislature should extend the right to counsel to habeas corpus proceedings in ineffective assistance of counsel cases. If the Legislature were to do that for cases challenging old forensics under the junk-science writ, perhaps expanding the Office of Capital and Forensic Writs to take on the function, then junk-science writs would arise in a wider variety of cases.

Eight states, according to Judge Alcala's counting, appoint counsel for every indigent habeas-corpus petitioner. If indigent habeas petitioners in Texas had such access, capital cases wouldn't dominate the junk-science writ process.

As things stand in Texas, with forensics disproportionately being challenged in capital writs, Grits won't be surprised if it takes another 20 years or more for all of the dubious forensics identified by the NAS to be challenged and either confirmed or dismissed through the junk-science writ process. But at least we have a process. Most states and the federal government do not.


Steven Michael Seys said...

It has been my experience that every time an attorney is appointed to represent me in my case that person will sabotage my case before the court. This happened throughout the process from trial, where the defense attorney refused to investigate, call alibi witnesses, and point out the glaring holes in the State's case, all the way through my attempt to obtain post conviction DNA testing, where the attorney had the judge misconstrue my letter of intent in support of a motion for counsel as the actual motion for DNA testing even though it only showed probable cause instead of the required preponderance of the evidence. I don't see appointment of counsel in all phases of a criminal case as a panacea for protection of the rights of the innocent.

Anonymous said...

Sounds like 'junk-lawyering' to me Steven.
How about a term like 'New-science writ' instead of the inflammatory, alienating term 'junk-science writ'? Any real progress will require the cooperation, not alienation, of forensic scientists.

Gritsforbreakfast said...

I find it inflammatory and alienating that the system imprisons people based on bogus evidence, 6:41, but they haven't stopped to spare my feelings!

"New science writ" is certainly accurate. But forensic analysts after the 2009 NAS report must come to grip with the fact that many traditional forensics are indeed simply "junk." Mincing words doesn't change it; they're still going to have to come to grips with the fact that old methods aren't good enough, anymore.

@Stephen, sorry you went through that. The thing about this writ is it only has to work once for each failed forensic method. More petitioners with attorneys boosts the chances one will get through.

Anonymous said...

A lot of junk science should not be filtering through to the writ process but being excluded by the trial courts. As an appellate lawyer who handles criminal cases, I rarely see such challenges, even from supposedly first-rate criminal defense counsel. The judge is supposed to act as a "gatekeeper" for scientific evidence, but in reality they don't, and they're not going to because 99% of them are former prosecutors who like the "science" that previously got them convictions. Consequently, the burden falls on defense counsel

I'd therefore like to see a much more forceful emphasis on educating defense counsel about making appropriate Daubert/Kelly/Nenno challenges in the trial court. For example, make CLE on challenging/proffering expert testimony compulsory for people taking criminal appointments (and for public defenders, including the Regional Capital Public Defender Office). And not just a "sit at the back of the room and check your cellphone throughout the day" session, but an interactive training, followed by a compulsory test of some sort. As it is, most trial counsel do not invoke or implement the relevant rules of evidence (TRE 702 and 705) and the State continues to get away with garbage like blood spatter analysis.

Gritsforbreakfast said...

I agree that all of it should be excluded on the front end, 8:46. But I didn't see that happening, and still don't, so we created a new avenue. Now, it's starting to do the job on the back end.

Waiting on the criminal defense bar to confront the question via Daubert/Kelly/Nenno is a decision to do nothing. Even if they tried, the CCA wasn't having it. E.g., they re-approved bite-mark evidence as recently as 2012. Meanwhile, most of the disputed forensic disciplines have been around for decades and there are old, false convictions available to confront them via habeas.

I'm not saying it's ideal approach, it's just the only one that's empirically worked. When it comes to the fields criticized in 2009 by the NAS, Daubert is a joke.

Gritsforbreakfast said...

BTW, 6:41/12/29 - TCDLA took the same position on the writ that you did: They poo-pooed and naysayed the bill (registered "on" instead of "for" in committee) bc they said forensics should be challenged on the front end. Keith Hampton voiced those criticisms in The Atlantic, even after he used the writ to get Fran and Dan Keller out.

As it turned out, though, that was practitioners' myopia talking. It was already clear at the time front-end challenges weren't sufficient. In the case of bite marks for example:

2009: NAS calls out bite-mark testimony as baseless
2012: CCA re-approves bite-mark testimony under Nenno
2013: Junk science writ passes
2018: Bite mark evidence excluded from courts via junk-science writ; old convictions deemed subject to challenge.

So people did challenge bite-mark testimony on the front end after the NAS report, and they were rebuffed. Then we passed the junk science writ, and today it's banished from the courtroom. It's not that you're wrong about doing it on the front end. But the junk-science writ is a workaround for injecting truth into a broken system that doesn't generally care for it.

Anonymous said...

Grits, I don't think Daubert is a joke. What is a (sick) joke is the inability of the defense bar to actually read the law, come to grips with the science and get to the right result. 20 years of ineffective challenges to Dr. Coons left him testifying for huge sums as a prosecution witness in death penalty sentencings. The CCA bit the bullet and stated that his testimony had no scientific basis when presented with a clear and specific analysis of why his testimony did not meet Daubert/Nenno/Kelly in the case in question. Seriously - it's not the timing of the challenge that makes the difference, but how well it is done.