Sharon Keller, bite-mark evidence, and the end of innocence forestalled

The judges' conferences over the Steven-Chaney bite-mark case, according to reliable sources, was the most contentious at the Texas Court of Criminal Appeals since the fight over Ex Parte Robbins. Both those cases involved Texas' first-in-the-nation junk-science writ, for which Chaney's victory was a landmark event. See coverage from Texas Monthly's Michael Hall, the Texas Tribune, and the national Innocence Project.

It's significant that Judge Barbara Hervey wrote the majority opinion, which amounts to a straight-forward, by-the-book application of Texas' junk-science writ. Grits has criticized Hervey in the past for making public declarations about forensic science that put her on the side of reformers but routinely voting with the Government Always Wins faction in her court opinions. This time, however, the former member of President Obama's now-disbanded forensic commission came through, bringing Judge Keasler with her to split the GAW faction in two. (Keasler suffered a heart attack this year, btw; he will not finish out his term because of his age.)

Grits believes this case will prove important for a number of reasons, and not just for Mr. Chaney or others convicted in the past based on bite-mark evidence.

Taking a bite out of junk forensic science
There are two, major direct implications to the Chaney case: First, bite-mark testimony in the future may only exclude people, or say the result is undetermined. They cannot any longer imply bite-mark evidence points to a specific defendant. This is significant. Texas courts hadn't excluded such evidence via Daubert hearings, which evaluate the fitness of expert evidence at trial, despite the Texas Forensic Science Commission recommending courts abandon such evidence. In fact, the CCA had re-affirmed the use of bite-mark evidence as recently as 2012. So Chaney's case accomplished on the back end what Daubert could not on the front, evincing a new model for ridding the justice system of an unreliable forensic method.

Second, old cases where bite-mark evidence was central to defendants' convictions now also could be overturned. This won't be a huge number of cases; often other evidence existed that courts may still find sufficient to convict. But there's little doubt we'll see more bite-mark-based convictions overturned now that Chaney has discredited such evidence.

And there are broader implications. This was the first time the Court of Criminal Appeals has applied the junk-science writ to one of the more widely used, secondary forensic identification techniques criticized by the National Academy of Sciences in their 2009 report, Strengthening Forensic Science: A Path Forward.

We've seen outdated arson science debunked in Texas before the writ took effect, in part because the State Fire Marshal became an avid proponent for reform. Other forensic writs, as with Ex Parte Robbins, involved scientists recanting very specific scientific findings that applied to few other cases, not more common techniques like bite marks, blood spatter, hair-and-fiber analysis, ballistics, or fingerprints, even though all of those came up for criticism in the NAS report.

Now, the court has unanimously disallowed one of these second-tier forensic identification tactics, and they did so based on arguments primed to be applied to other comparative forensics.

For example, Judge Hervey's majority opinion made much of the fact that scientists cannot say for sure bite marks are unique, which is the basis for forensic dentists in the past claiming they could distinguish bite marks to the point of identifying an individual person. However, "Peer-reviewed studies conducted after the publication of the 2009 NAS Report ... now show that the uniqueness of human dentition can never be established within measurement error."

Well, guess what? There's also significant doubt whether firearms each provide a unique signature that ballistics analysts can effectively match. Indeed, it's unproven whether fingerprints are unique, but pretty clear that some partial prints - which is what examiners are usually matching - may not be unique enough to differentiate.

If and when scientists prove ballistics markings aren't unique - or for that matter, partial fingerprints - will the court still be as bold? If peer-reviewed studies begin to cast doubt on these cornerstone presumptions of uniqueness, how many forensic disciplines might fall?

These were not the elements of the Chaney decision being disputed in the concurrences. The entire court - including the whole Government Always Wins faction - was willing to throw out a brand of forensic analysis that's been in use in Texas and nationwide for many decades. That aspect of the decision likely will be overlooked in the wake of the court's debate over actual innocence, but it's important.

The end of innocence forestalled
The reason for the litany of concurrences in the case was Presiding Judge Keller's decision to take the opportunity in her concurrence to call for a new "beyond a reasonable doubt" standard in "actual innocence" cases - a burden only the prosecution must meet at trial. She thinks that, now that defendants have the junk science writ, and the court has recognized false-evidence claims it did not in the past, defendants have other avenues for relief and the bar for actual-innocence claims should be made more difficult to prove.

Only Judge Yeary was even interested in the idea, which was lambasted in separate concurrences from Richardson, Newell, and Alcala. Everyone concerned about these topics should read all these opinions; they're fascinating and my paraphrases won't do the detailed arguments justice.

As Judge Alcala pointed out, for years the "Elizondo" actual-innocence standard Keller wants to heighten was considered nearly insurmountable. But over time, between DNA exonerations and the rise of more sophisticated, persistent defense counsel in the innocence-movement era, more cases began to meet the court's high threshold. Judge Keller liked it better when almost none of them did.

Judge Richardson took the unusual step of calling out Judges Keller and Yeary by name for almost never agreeing defendants have met the actual-innocence threshold, even in instances like the Sonia Cacy arson case where Richardson considered the defendant clearly innocent. One rarely sees appellate judges confronting their peers so directly, but Richardson explicitly critiqued them in his opinion. Yeary responded, adding a second section to his concurrence that clearly was tacked on later in response to Richardson's criticisms.

Judge Keller has not claimed that Original Sin means no one can be truly innocent, but her legal reasoning leads to essentially that result. No one but DNA exonerees where an alternative suspect was identified and then confessed would qualify for an actual innocence designation in Sharon Keller's worldview, and then only if every detail of their story held up under a first-order assumption that all claims by them and any witnesses supporting their case are lies.

Here, Chaney had multiple alibi witnesses, but Keller refused to credit them, even after all inculpatory evidence put on by the state fell apart. There's something a bit mean-spirited and miserly (ungenerous is too tame a term) about Keller's take on Chaney's defense case. I have often portrayed Judge Keller and the GAW faction as wanting the government to win. But sometimes, as here, she almost seems more interested in making sure that the defendant loses - one of those moments, like declaring herself a "pro-prosecution" judge in past campaigns, that casts doubt on her ability to be a neutral arbiter. It's as though she can't stand for Chaney to receive state compensation due to exonerees, and is willing to upend 20 years of her court's own jurisprudence to try to stop that from happening.

If Keller's position prevailed, in a real sense it virtually would be the "end of innocence" in Texas. No one can say the number of exonerated defendants who would meet her new threshold, but it would be very low. The court considers meeting the current standard a "Herculean" task.

Seven other judges, however, were having none of it. Keller's opinions on innocence couldn't garner one additional vote. Even Kevin Yeary did not sign on. Her extremist stance left her weakened on the court as a result, with her core GAW-faction members abandoning her over the conflict and centrists on the court tag teaming to discredit her positions.

As a frequent critic of the Texas Court of Criminal Appeals, I must say, I'm proud of them all, especially Judge Hervey. She showed more leadership in this case than she has in years on the court; her majority opinion was strong. And while I agreed with her critics, even Presiding Judge Keller was expressing her true beliefs here, which I found distasteful but not disingenuous. (She believes some extremely regressive things about the law that even most conservative Republicans do not buy into, but they're her honest beliefs.) This was a good debate and a good outcome.

See prior Grits coverage of the CCA interpreting Texas' junk science writ:

• Bill would allow habeas appeal on discredited forensic science (2009)
• ME testimony false according to science but not Texas law (2011)
• CCA laments 'disconnect' between changing science and reliable verdicts' it helped create (2012)
• Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct (2013)
• Governor signs junk-science habeas bill (2013)
• Godsey: 'Texas now on cutting edge of efforts to free the innocent' (2013)
• Fran Keller released based on refuted junk science (2013)
• SA4 to walk free: New Texas statute combats injustice caused by junk science (2013)
• Interpreting Texas' new junk science writ (2014)
• CCA: Junk-science writ covers bad scientists as well as bad science (2014)
• Texas' new junk science writ called 'elegant' and 'phenomenally important' (2014)
• Backstory: Texas Observer on the San Antonio Four (2014)
• San Antonio Four case, Texas junk science writ lauded in national press (2014)
• Neal Robbins writ headed back to CCA after Lege ostensibly passed fix
• Podcast: Tweaking Texas' junk science writ (2015)
• Previewing oral arguments on Texas' junk-science writ (2015)
• Difficult-to-read tea leaves from oral arguments on Texas' junk science writ (2015)
• Abbott signs bill codifying broad reading of Texas' junk science writ (2015)
• Court of Criminal Appeals judges call out colleagues' judicial activism on junk science writ (2016)
• Confronting junk science and judicial activism at the Court of Criminal Appeals (2016)
• Texas, California 'junk science writs' should stir bills in other states (2016)
• Don't gloat that Texas is ahead on forensic science reform (2016)