Podcast: Taking a bite out of junk science, update on bail-reform litigation, and much more

The January episode of Just Liberty's Reasonably Suspicious podcast was delayed a bit by my co-host's enviable trip to Vietnam at the beginning of the year. But the results were worth the wait. You can subscribe to the podcast on iTunes, GooglePlay, or SoundCloud, or listen to this month's episode here:

We've got a good show this month, featuring a review of bail-reform litigation around the state and how it might influence legislation in Texas. We updated listeners on criminal-justice reform bills, including many with bipartisan support in both major Texas party platforms. And we talked through the Texas Court of Criminal Appeals' Chaney decision invalidating bite-mark evidence and debating innocence standards, plus much more. Here's what we discussed this month:

Top Stories

• Bail reform (2:00)
• Texas #cjreform legislation with bipartisan support (6:55)
• Policing bills to watch (14:20)

Home Court Advantage

• Bite marks, junk-science and innocence: The Court of Criminal Appeals' Chaney decision (20:00)

Fill in the Blank

• Prison healthcare budgets (32:00)
• First Step Act (36:00)
• Rape clearance rates and the Austin police chief (39:30)

The Last Hurrah (43:55)

• Convict leasing victims found in Sugar Land
• Forensic commission suggests using high-error-rate drug field tests
• 'Dead Suspects Loophole' to the Public Information Act

Find a transcript of the show below the jump. Enjoy!

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.

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)

FSC questions admissibility of unaccredited forensics

Here are a couple of items related to forensic error that merit Grits readers' attention:

Challenging admissibility of junk science
The Texas Forensic Science Commission's Lynn Garcia posed what to me sounds like a blockbuster question to the Attorney General about the admissibility of forensic analyses from non-accredited sources. (See the letter.) The issue arose because of the bite mark review, as the San Antonio Current noted, but her question was not limited to it.

There are a number of questions posed in the letter, but the one that caught Grits' eye was whether "unaccredited forensic analyses that are also not exempt from accreditation by statute or administrative rule are admissible under the Texas Code of Criminal Procedure?" If the AG answers "no," the implications would extend well beyond bite marks. There are quite a few other "unaccredited forensic analyses that are also not exempt from accreditation by statute or administrative rule." Some are unaccredited because they're obscure, seldom-used techniques adapted from lay experts. Others lack accreditation because they're junky, subjective stuff cops do to accuse people but which have no underlying scientific basis, like bite mark comparisons.

See the Texas Administrative Code 651.5-7 for details on which disciplines are accredited and which ones are exempt.

The AG wouldn't have the final word on this either way. The Court of Criminal Appeals would. So if the AG answers "no," somebody will still need to test that theory in court and see if Judge Keller and Co. agree. But it's a damned interesting question!

Understanding the DNA mixture debate
Since Grits first broke the story last year that DNA mixture evidence had been widely misinterpreted, journalists in Texas and other states were initially slow to cover the story. After all, Texas politics has a reputation as right-wing, pro-prosecutor, and anti-science. To outsiders or the uninitiated, it's odd that Texas would confront the issues before other, more "progressive" states or the feds.

For most journalists, either the science or the law involved in this story would be complex enough to prevent a thoughtful analysis, much less an area involving the cutting-edge intersection of both. So other states with the same problems haven't necessarily seen them exposed yet. (MORE: E.g., here's an example of a crime lab out of Fort Lauderdale, FL, that made similar errors.) Indeed, it's likely the same issues extend internationally. There's no reason to think Texas scientists - who were taking their sometimes-misinterpreted cues from the broader scientific community - were alone in their misunderstanding of this subjective, highly technical, and math-laden sub-specialty of DNA science.

So I was glad to see that the FSC will stage a continuing legal education course next month in San Antonio on these topics. This is a big story which has not gotten the attention it merits because of the complexity of the math and science involved. If I were a journalist anywhere in the country looking to play catch up on DNA-mixture errors, I'd be planning my trip to SA right about now.

Forensic commission praised over bite-mark review

The Texas Forensic Science Commission received national kudos in Saturday's New York Times ("Lives in Balance: Texas leads scrutiny of bite-mark forensics") for its review of flawed bite-mark testimony and other questionable forensics. Grits readers have heard most of it before, but here are a few notable tidbits:

Forensic science more broadly is in turmoil as prosecutors, defense lawyers and judges confront evidence that many long-used methods, like handwriting analysis and microscopic hair comparisons, were based more on tradition than science and do not hold up under scrutiny. Even fingerprint and certain kinds of DNA matches are not quite as certain as many once believed, scientists say

But no lingering technique is under stronger attack than the analysis of purported bite marks, a method first thrust into fame in the televised trial of Ted Bundy in 1979.

The Texas agency has won national praise for its examinations of the reliability of all sorts of forensic methods and testimony. Initially it responded to complaints about evidence in individual criminal cases. It has moved on to also evaluate whole fields, like bite-mark matching.

“Some aspects of forensic science have never been validated,” said Vincent Di Maio, a retired doctor and medical examiner who has been chairman of the Texas commission since 2012. “That’s a problem that had to be addressed, and nobody else was going to do it for us.”

The commission’s recommendations, expected in February, will be the first formal finding by any state or federal agency on the validity of bite-mark evidence, said Chris Fabricant, the director of strategic litigation at the Innocence Project. He added that they might help speed up inquiries into hundreds more convictions around the country as well as discourage dubious testimony in the future.

Texas Monthly's Michael Hall has been nosing around a story on the Forensic Science Commission for the past few months which will give the agency an even higher profile in the coming year. Yes, they have their critics. And some of them inevitably show up in the comments on Grits whenever they're mentioned to flame them for all they haven't done. But what the have done IMO has been impressive, especially for a small, understaffed agency, and their policy of individual case reviews to identify discredited testimony in un-validated disciplines is light years ahead of what's going on in other states, or for that matter at the federal level.

Forensic dentists bite back, limiting media outrage as an innocence reform, and other stories

Here are a few items which merit Grits readers attention, even if your correspondent has no time to dwell on them:

New Hires
Shakira Pumphrey, former staffer on criminal justice issues for Texas House Speaker Joe Straus, has taken a position as Policy Director of the Texas Criminal Justice Coalition. Meanwhile, Empower Texas has jumped into the criminal justice arena, hiring Lawrence B. Jones III to rein in overcriminalization and limit asset forfeiture. Congratulations to both!

Forensic sciences taken down a peg
News first broken on this blog that DNA mixture evidence involved subjective interpretation by technicians using non-standard methodologies and often dubious probability calculations has completed the circle begun with the publication of the 2009 National Academy of Sciences report, "Strengthening Forensic Science: A Path Forward." That document called into question the scientific basis for most forensic evidence but gave DNA a pass. Now we know that much of forensics in recent decades has been "pseudoscience," as the Boston Review this week put it. And DNA mixture evidence, as described recently by a Boston University quarterly, "has never been about achieving certainty. It’s about partial matches, probabilities, big-time math, and a healthy dose of judgment calls by forensic scientists." Except that's not how it was portrayed in court. Together, those two articles provide a good, quick, backgrounder on the nascent crisis, really crises, undermining the credibility, if not yet the status, of traditional forensic science.

Forensic dentists bite back
At a Forensic Science Commission committee meeting in Dallas on Monday, forensic dentists tried to counter evidence with emotional appeals and pictures of dead children. Sounds like commissioners weren't biting.

Will post-pick-a-pal grand jury view officer shooting differently?
Parents of a teenager killed by an off-duty police officer want the case the case re-presented to the grand jury now that the pick-a-pal system has been abolished.

Media, outrage, and 'vigilante justice'
The Dallas News asked its readers what they'd do to prevent wrongful convictions. One raised an issue which isn't discussed as much as it should be: "public outrage fueled by emotion and often biased media, not to mention the mental stress of public officials, law enforcement and those connected to that sector of society ... can factor in to what appears in cases like this to seem like vigilante justice." Glad someone said it; glad they printed it. That's a common denominator in a large proportion of false convictions which result in exonerations.

The Dissenters
Here's an interesting piece on the politics of judicial dissents.

Cry me a river: PDs grouse about federal consent decrees
The Washington Post and PBS Frontline examined major DOJ interventions at police departments in a story which finds our old pal Vanita Gupta called to account for agency actions taken years before she assumed control of the Civil Rights Division. C'est la vie. That's the job you signed up for, babe! I could nitpick a lot with this story. They complain about costs of DOJ intervention but how do you quantify the costs of a corrupt or excessively violent police department? Are we really going to say New Orleans would have been better off if the feds let them stew in their own problems? We heard a lot of similar complaints back in the day when Texas prisons reported to federal monitors under Ruiz vs. Estelle. But in truth, those reforms are why Texas' prisons never became the overcrowded hellholes one saw, for example, in California before federal courts ordered them to cut the prison population. The reality is, departments typically don't reach the point of requiring DOJ intervention until they're wallowing in a full-blown crisis they clearly can't manage on their own. DOJ is looking to make examples of the worst departments, not those which are merely bad or poor. So while I'm sure it's true departments under consent decrees must endure some excessive bureaucracy and waste during the remediation period, it's hard for me to feel too sorry for them.

Forensic fails, and other stories

As your correspondent prepares for today's Exoneration Commission hearing, here are a number of items which likely won't make it into individual blog posts but which merit Grits readers' attention:

No clear way to track down junky bite-mark cases
The Dallas News has a high-powered team - Brandi Grissom and Jennifer Emily - covering the Steven Chaney bite mark case and the Forensic Science Commission review of bite mark cases. They reported Monday that "Tracking down dozens — maybe hundreds — of other potentially innocent victims of junk science won’t be ... easy. There is no central repository of cases in which bite-mark testimony was key. There’s no database of dentists who testified about bite marks. And the cases are mostly decades old, and experts, defense lawyers and prosecutors have moved on or died."

Bad Ballistics?
The Texas Court of Criminal Appeals ordered an examination into overstated ballistics testimony from an expert in Arthur Brown, Jr.'s 22-year old capital murder trial, in which he was prosecuted along with an already-executed accomplice for a quadruple killing in a botched drug transaction. Reported the Houston Chronicle:

Brown was scheduled for execution in October 2013 but received a stay to allow for forensic testing of evidence. An accomplice, Marion Dudley, 33, was executed in 2006.

On Wednesday, the appeals court judges acted on Brown's November 2014 appeal in which he asserted that Houston Police Department ballistics expert C.E. Anderson "testified falsely or in a materially misleading manner" in his case. Judges held that the claim met state standards warranting review.

See the court's order.

Paging Antonin Scalia: On the right to confront the boss of your accuser
The Court of Criminal Appeals also ruled that the requirements of the Sixth Amendment's "Confrontation Clause" may be met for "batch DNA testing" by a crime lab supervisor testifying based on computer printouts instead of the lab workers who conducted the analysis. Judge David Newell is of course correct that neither the CCA nor SCOTUS have ever "squarely answered this question." SCOTUS said that sworn affidavits are insufficient, but not whether a supervisor can testify based on the work of her subordinates. But one certainly wonders what Antonin Scalia might say about it. It's hard for this non-attorney to understand why relying on data generated by non-testifying lab analysts is different from relying on an affidavit to which they did not testify.

Are black-box calculations problematic for DNA mixtures?
Next year, the Department of Public Safety and most other Texas labs will shift to "probabilistic genotyping" to analyze DNA mixture evidence, a method which supposedly is superior even to the adjusted calculations which are currently available. However, that method relies on proprietary programs with black-box systems for which the makers will not release their code, similar to the situation surrounding proprietary breathalyzer algorithms which accuse defendants based on computer code which their attorneys and the court cannot see nor evaluate. See good discussions of the topic from Slate and Ars Technica. Moreover, as Grits reported earlier, because of the nature of the calculations, results based on probabilistic genotyping will be different every time - they're not replicable, in addition to not being transparent. So, while the fact that the DWI equipment is still in use makes me think Texas courts would ultimately find a way to allow this sort of proprietary opacity, Grits continues to wonder if probabilistic genotyping is the best tool for the job when it comes to providing courtroom testimony, given that there are other methods available where the calculations are both transparent and replicable.

Finding housing with a felony record
There's a good article in the Houston Chronicle on the struggles poor people have renting an apartment with a felony record. Houston is closing a dangerous low-income apartment run by a slumlord who they've sued over "atrocious living conditions." Reporter Emma Henchliffe decided to pay attention to what happened to the ousted tenants, finding that the ones with a felony record had a terrible time locating new places that would take them. "Individual owners have the right to accept and reject applications as they choose, but the lack of alternatives for tenants who do not meet owners' standards causes many former offenders to end up at places like Crestmont," she wrote. "Some apartments where [one tenant] applied took her application fee and never got back to her." When you consider the volume of felons Texas produces - we release more than 70,000 prisoners from TDCJ every year - this is a much more important issue than one would think from the amount of coverage it receives. I was glad to see this article.

No surprise: 'Stingrays' really do intercept content
Turns out, contrary to public assertions by law enforcement, Stingrays are indeed able to intercept calls as well as cell-phone metadata, it's now been proven. This was obvious to anyone who thought about it: The devices trick your phone into routing through a fake cell phone tower; clearly they were intercepting the whole call, not just metadata. And experts have been telling us this for a while. Still, nice to see it confirmed, it's one less thing to argue about.

NOTE: A brief item about a murder case in Denton was removed from this roundup after a commenter informed me that the underlying news article improperly attributed a court action to DNA mixture protocols when the real issue was unrelated. Grits apologizes for the error and will perhaps revisit the topic when more accurate information is available.

Packed agenda at TX forensic commission Friday

What a packed agenda at the Texas Forensic Science Commission on Friday in Austin! Take a look, there's a lot happening. Here's a non-comprehensive taste of the issues they'll cover:

• Two new lab disclosures and five new complaints
• Discuss crime-lab accreditation program (shifted from DPS to FSC this session)
• Discuss status of forensic licensure requirement (must be implemented by 2019)
• Updates from two investigative panels on toolmark cases
• Update from investigative panel on digital forensics
• Update from bite-mark panel
• Update from hair microscopy panel
• Update from DNA mixture panel
• Update on arson case review and implementation of recommendations
• Update on status of Morton/Brady training for forensic scientists

And more ... It's going to be a long day.

Meanwhile, on Thursday (tomorrow), an FSC committee on DNA mixtures will reprise the agenda for which they could not obtain a quorum in Dallas two weeks ago.

FSC General Counsel Lynn Garcia may be the busiest mother of a two-year old I know.

Grits has complained for years that a lot of important stuff happens at the FSC and almost nobody in the media covers it. At the last FSC meeting there were two reporters there (Michael Hall from Texas Monthly and Brandi Grissom from the Dallas News), which is a lot for these events. And a third, the Texas Tribune's Terri Langford, showed up at the DNA-mixture meeting in Dallas. So given the extensive agenda and the unusual level of recent press interest in forensics, Grits will put the over-under on how many reporters will be there Friday at 2.5. Which is good, usually it's zero. There's a lot going on at this small agency for their activities to be as routinely ignored as they have been these last few years.

Bad cops, bad puns, bad contracts, bad Democrats and other happy stories to cheer up your day

Here are several items which merit readers' attention even if I don't have time to blog on the topics:

• If coverage in the Express-News is indicative, a community forum on civil rights and policing in San Antonio didn't at all focus on the contract negotiations which just began between the city and the union. But that document and the state civil-service code which authorizes it govern SAPD disciplinary processes (read: what happens to cops who break the rules) to an arguably greater degree than the chief or DA. Campaign Zero has offered some thoughtful suggestions on reform provisions advocates should ask for in police contracts, many of which could apply to meet-and-confer contracts Texas.
• The screwups surrounding the case of Jerry Hartfield, a mentally ill man imprisoned in Texas  for 35 years after his conviction was overturned, are as mind boggling as they are banal. 
• Another suicide by an out of state motorist in a Texas county jail is being questioned by his family. This one likely won't receive the same attention as Sandra Bland. OTOH, without the uproar surrounding her case, one doubts it'd have been covered at all.
• Grits didn't realize they were still doing roadside cavity searches for drugs in Harris County in 2015. You learn something new every day. A bill passed this session and which goes into effect Sept. 1st would require a warrant for law enforcement to conduct body cavity searches. I wonder how many agencies will formally have to change their practices?
• The pun in this headline about bite mark evidence was as inevitable as it is inexcusable. See related coverage from Jordan Smith, formerly of the Austin Chronicle, and an op ed from the National Law Journal.
• Here's a reminder that Democrats sucked on criminal-justice policy in the '90s. Grits hasn't forgotten.
• Voters will decide bail reform in New Mexico.
• Here's a strident but justified call for more aggressive use of presidential pardon power. 
• Read Prof. Sam Gross on "The staggering number of wrongful convictions in America."

Roundup: Jail foibles, judicial elections, border security and bitemarks

Here are several items that merit readers' attention while your correspondent is focused elsewhere.

• Entrepreneurial jail building has left Waco with an empty jail downtown and no revenue stream to pay for the bonds issued to build an unnecessary extra facility. Faulty projections of increased immigration detention have left McLennan County and others seeking to rent out extra beds in the lurch. See prior Grits coverage.
• This month saw a rough start for video visitation at the Denton County Jail.
• I can't imagine Rep. Jason Villaba's bill disallowing straight ticket voting for judicial, DA and sheriff's elections will gain much traction, but it would be a step in the right direction. Personally I'd prefer such elections were entirely non-partisan, but eliminating straight ticket voting would at least cause voters to make a specific choice. For the most part there's scarce little vetting of any of these candidates in local races and little viable means for voters to evaluate them.
• The Austin Statesman has an editorial supporting legislation by state Sen. Rodney Ellis expanded access to post-conviction DNA testing.
• The editorial page editor for the Corpus Christi Caller Times argued Sunday that DPS should let local police patrol the Rio Grande Valley. Meanwhile, the Texas Border Coalition, representing cities and counties from El Paso to South Padre Island, is making the case that border security should be left to the feds. The Beaumont Enterprise argued that the National Guard deployment along the border is unjustified.
• In the context of proposals to further downsize the Texas Juvenile Justice Department, I was interested to read "How communities are keeping kids out of crime" from the Christian Science Monitor.
• Here are five states where Republicans are getting serious about criminal justice reform.
• Radley Balko has a good piece on how flawed bite mark analysis has sent innocent people to prison. See also this academic paper on the topic and prior Grits coverage.

Must-read: Michael Hall on the Lake Waco murders

On my to-do list this weekend is finishing Michael Hall's excellent story in Texas Monthly on the Lake Waco murders and the possibility that the men convicted of the crime - one of whom was executed - were actually innocent. Central to the convictions were statements from a jailhouse snitch and forensic testimony about bite marks, a discipline whose credibility in recent years has been seriously called into question. (At trial, jurors were told bite-mark evidence was as reliable as fingerprints.)

The missus left town for work on Wednesday and took the magazine with her for the plane ride, so I haven't yet finished the article. But TM has begun to serialize the lengthy piece on their website. Check it out. This is long-form journalism at its best.

Bite me: Validating research supporting forensic dentistry inhibited by lack of willing bite-mark victims

I ran across an interesting article documenting critiques of forensic dentistry. In it, bite mark expert Dr. Gregory Golden:

concedes that there’s little scientific research to back claims from forensic odontologists in court — but he hopes to see that change. "What we’re trying to do," he says, "is to develop proper, unbiased research techniques that take into consideration real-time mechanisms or setups for researching bite marks."

The problem, he says, is that it’s difficult to conduct realistic studies on how bite marks injure living human flesh. In the past, studies have been conducted on cadavers and anesthetized pigs, with dental models mounted in vice grips. But such studies don’t accurately reflect bites on living human flesh, and Golden adds that "it’s almost impossible to find voluntary subjects offering themselves to be bitten severely enough to be wounded."

In the meantime, though, he wants to keep drawing  his expert witness fees until the science either justifies or debunks his premises. While it's understandable that few subjects would be willing to be seriously bitten in service to science, that's not a good excuse for courts to admit unreliable evidence.

To me, though, the question posed in the headline - whether forensic dentistry should be "banned" - frames the issue too starkly. The real question is, "under what circumstances is its use appropriate?". Is there a role in the justice system for forensic odontology? Sure. As the article mentions, it has been useful in identifying victims in mass casualties, matching teeth to dental records. And it can play an important role in excluding suspects. But there's little basis for relying on such testimony to accuse someone -  certainly not as the primary evidence against them, as was done in the New York case resulting in a recent DNA exoneration that inspired the article.

Unfortunately, as the National Academy of Sciences articulated in a 2009 report, many forensic disciplines aren't really "science" at all and forensic odontology is one of them. Instead, like tool mark or hair-and-fiber analyses, the method of identification involves subjective comparison, not scientific proof. The justice system has so firmly incorporated these non-scientific disciplines into the marrow of its being that it would be unrealistic to argue all comparative disciplines should be abandoned - e.g., it's been shown that cognitive bias can produce errors in fingerprint comparisons but the likelihood that evidence will ever be excluded from court is virtually nil. But some disciplines are more reliable than others and forensic dentistry is definitely one of the shakier, less credible examples.