Wednesday, May 06, 2020

CCA passes on judging forensic hypnosis, paroled but still imprisoned, Ken Paxton's 'lonely and misguided' crusade, and other stories

Here are a few odds and ends that merit Grits readers' attention:

On the absurdity of keeping 15k already-paroled prisoners in TDCJ so they can do treatment by correspondence
The Marshall Project's Beth Schwartzapfel has a story on an ongoing problem that's taken on new life in the coronavirus era: More than 15,000 Texas prisoners have already been paroled but can't leave prison because they haven't completed required treatment programming and the state underfunds it so badly there's a massive waiting list. This is pointless and stupid in the best of times, but at a moment when 1,299 TX prisoners have been diagnosed with COVID-19 and another 48,674 inmates are on precautionary lockdown because of the virus, it makes even less sense. According to the article, TDCJ has already stopped doing these treatment programs in person and has switched to correspondence courses where prisoners work on written packets in their cells. If that's the case, why not parole them and let them complete the packets at home?

Ken Paxton's 'lonely and misguided crusade' against Rosa Jimenez
Attorney General Ken Paxton won't drop his federal appeal in Rosa Jimenez's habeas corpus writ, even though DA Margaret Moore has finally, belatedly, acknowledged that the evidence used to convict her was flawed and she deserves a new trial. What a strange situation! Moore's position is hardly progressive. She insists she will retry Jimenez despite the fact that the forensics used to convict her was flawed and there was no other accusatory evidence in the case. But Paxton's position is nonsensical; a Statesman editorial dubbed it a "lonely and misguided crusade." All sides have briefed Judge Lee Yeakel, with Paxton arguing for maximum harshness. Her attorneys, by contrast, "urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Grits has no idea what Paxton thinks he's trying to accomplish here. It's one of the weirdest legal postures I've seen a Texas AG take in the three decades I've been following state politics.

Man exonerated of drug charges after DNA evidence disproved faulty eyewitness testimony 
In Houston, James Harris has been exonerated of drug charges eleven years after his false conviction based on erroneous eyewitness identification. DNA testing finally exonerated him. Long-time Grits readers know that the Legislature enacted solid guidelines for how police conduct eyewitness identification procedures, but Texas courts have ruled that such testimony still can be used to convict even if police do not follow them. Harris was both more persistent than most people, pursuing the case for years after he got out of prison, and also incredibly lucky that DNA evidence, which is unavailable in most cases, was able to exonerate him. Most people who're falsely convicted under these circumstances have no way to clear their name.

CCA judges decline to judge forensic hypnosis
The Texas Court of Criminal Appeals declined to rule on the merits of forensic hypnosis in the case of Charles Don Flores. Instead, they said he could not use the state's junk-science writ to challenge his conviction, but did not articulate a reason why - classic outcome-oriented judging to uphold an execution from the Government-Always-Wins faction on the court. See their ruling, coverage from the Dallas Morning News, and prior Grits coverage of forensic hypnosis rounded up here.

COVID cases in Texas jails continue to skyrocket
As the number of state prisoners diagnosed with COVID continues to rise, so too does the number in county jails. As of Monday, 5/4, Texas jails were up to 980 inmates diagnosed with the virus, according to the Texas Commission on Jail Standards, up from 142 on April 17. That's a 590% increase in about 2-1/2 weeks. Harris County, which leads the state in inmates diagnosed with COVID at 449, just reported its first inmate death from the virus.

Overdoses spike nationally
Grits had mentioned earlier Travis and Williamson Counties had seen a spike in opiod overdoses. It turns out, the same is true nationwide, in part attributable to lack of access to treatment services thanks to the COVID shutdown. This article from The Daily Beast provides more detail.


Anonymous said...

re: Forensic Hypnosis

EX PARTE FLORES No. WR-64,654-02. (May 2016)

KELLER, P.J., filed a dissenting opinion.

"I will assume that Dr. Lynn is an expert on hypnosis whose opinion constitutes newly discovered scientific evidence. I would nevertheless dismiss this application because applicant has failed to show that it is more likely than not that he would not have been convicted if Dr. Lynn's testimony had been presented at trial.

First, although Bargainer underwent hypnosis, no one suggested to her a physical description of applicant, and she had not seen a current photograph of him.1 This is not a case where someone described the defendant during hypnosis and that description became the basis of the identification. Before hypnosis, Bargainer said the Volkswagen passenger's eyes were dark, and after hypnosis she said that they were brown, but she said that other than that, she did not remember anything new as a result of hypnosis. Bargainer eventually identified applicant at trial, but it is not clear that Dr. Lynn's testimony about hypnosis has any bearing on that identification.

But second, even if Bargainer's testimony was tainted by the hypnosis, other testimony implicated applicant in the murder. The jury could have found applicant guilty by acting alone or as a party. In addition to Bargainer's testimony, our opinion on direct appeal set out these facts that implicate applicant, at the very least, as a party..."

It stands to reason that there needs to be considerable overhaul to the memorialization and documentation of jury deliberations. The names of the jury could still be anonymous, however there are just too many examples of judges assuming the thoughts of the jury based on the final verdict. The laundry list of "evidence" leading to a guilty verdict cited by Keller were circumstantial at best. There is no way of knowing if the Dr. who testified to the hypnosis procedure was unduly influential to a gullible jury. The defense attorney certainly was gullible.

Without scrutinizing the junk "science" of hypnosis in 2020, they've effectively just created a means of circumventing the law, and ignoring their responsibilities as gatekeepers.

Gritsforbreakfast said...

Huh, that's weird. Her dissent isn't linked on the hand down list. Thanks for sharing, 7:41.

Gritsforbreakfast said...

Ah, I see, the opinion you cited was from 2016. That explains it.