Parole board now Joe Bryan's only hope after TX CCA's shameful rejection of his habeas writ

The Texas Court of Criminal Appeals' rejection of Joe Bryan's habeas corpus writ may rank as its most embarrassing moment since the 1990s when they refused to recognize DNA evidence exonerating Roy Criner. That episode spurred the Legislature to intervene in 2001 to create a vehicle for DNA exonerations. Will their arrogant, unexplained rejection of Bryan's claims earn a similar backlash?

Bryan's case rose to national prominence after two key events: 1) in 2018, the Texas Forensic Science Commission used it to identify flaws in the overstated way blood-spatter evidence is presented to juries, and 2) Pamela Colloff, an already legendary journalist who cut her teeth covering Texas innocence cases, authored a 22,000 word, two-part cover story for the New York Times Magazine elaborating problems with Bryan's case in overwhelming detail.*

Indeed, Bryan's false conviction has become an important case study used to demonstrate problems with past investigative methods. Reported the New York Times:

Lynn Robitaille Garcia, the general counsel of the Texas Forensic Science Commission, said Mr. Bryan’s case had a significant role in inspiring the state to develop a new licensing program for analysts doing crime scene reconstruction. 

“Everyone now recognizes that was unsupportable work, including the expert himself,” she said in an interview Thursday.

This is an example of the Government Always Wins faction on the CCA exercising raw power to assert their own opinion about the best outcome over the rule of law without fear of significant consequence.

Bryan was in Austin when his wife was murdered 120 miles away in Bosque County in 1985, and the flawed forensic testimony used to accuse him at trial has been recanted as junk science. Had they considered the details, it would have been as obvious to the CCA as it was to New York Times Magazine readers that, without that forensic evidence, Bryan could never have been convicted. So any honest evaluation of the evidence would require they grant him relief.

That left only one option for judges in the court's Government-Always-Wins faction if they wanted the case to stand: Reject Bryan's claim without explaining why. And that's exactly what they did.

“It’s disgusting, really,” said a forensic scientist quoted by the Times. “Judges are not in positions to be arbiters of what’s good science.”

Now that the Court of Criminal Appeals has once again shown its colors, the 80-year-old Bryan's only hope of relief is the Board of Pardons and Paroles. He is up for consideration in April, according to TDCJ's website. In 2019, they rejected his parole, despite an exemplary behavioral record in prison, based on the "nature of the offense." But with credible evidence available that Bryan never committed the offense in the first place, combined with his advancing age and the length of time already served, the parole board should finally release Joe Bryan in the interests of justice.

Bryan's attorneys have requested folks write letters to the parole board in support of his release, hoping to get as many letters as possible by the first week in February. On Facebook, they wrote:

We need the parole board flooded with letters of support on Joe's behalf. You can either e-mail one or send a written letter to the options below: 

E-mail: paroleforjoe@gmail.com
Mailing Address: Place Law Office
109 S 7th St., Gatesville, TX 76528 

Address your letters to the Board of Pardons and Paroles and please send them by the first week of February!

Bryan's TDCJ number is 00419509; be sure to include it in your correspondence. Alternatively, you can send support letters directly to the parole board. It wouldn't hurt to let the Governor know your opinion, either.

Grits readers, please do this. Y'all know better than most Texans what an embarrassment our Court of Criminal Appeals has been over the years. Don't let their un-elaborated rejection be the final chapter in Joe Bryan's story.

* Grits interviewed Colloff about the case after her article came out.

The iceberg's tip: CA man walks free bc of DNA-mixture SNAFU

It's perhaps a testament to the reduction in size of and competition among MSM outlets that nobody has yet covered the problems with DNA-mixture forensics raised by federal District Judge Janet Neff of Michigan's Western District* (discussed by Grits here and on the latest Reasonably Suspicious podcast). That must change; some full-time reporter(s) must step up. These issues deserve high-level coverage and national context that this humble, regional blog cannot provide.

Once you begin to pay attention, these cases are cropping up everywhere. In San Diego, we have the case of Flamencio Dominguez. In 2011, he was convicted of a 2008 murder based on DNA mixture evidence and sentenced to 50 years, reported the San Diego Union Tribune. Months before the trial, the crime lab realized the mathematics behind their old DNA-mixture analyses used an invalid baseline. They decided to abandon their old approach and switch to "probabilistic genotyping" instead.

(Similarly, in Texas in 2015, crime labs discovered every lab in the state was using erroneous math in DNA-mixture analyses in ways that risked falsely accusing innocent people, see coverage here and here. In Travis County alone, 11 cases were found where suspect matches changed to "inconclusive." Our crime labs, too, were advised to switch to probabilistic genotyping.)

When the baseline issue was corrected in Mr. Dominguez's case, the new algorithm went from accusing him to "inconclusive." But prosecutors did not tell Mr. Dominguez's counsel about the change. The defendant was convicted based on what now is admittedly erroneous DNA math, and his lawyer wasn't aware of the flawed DNA-mixture protocols until six years later.

After his lawyer found out about the inaccurate math, Dominguez prevailed in 2017 on a habeas corpus claim and was released from prison. But prosecutors decided to try him again, this time using a tool from a company called STR-Mix based on probabilistic genotyping. That was the forensic tool Judge Neff evaluated in Michigan. The bottom-line assessment in Judge Neff's opinion was that:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if [the defendant] is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.

Courts in California were robbed of their chance to decide whether they agree. San Diego prosecutors essentially let Dominguez plea out to time served because the company STR-Mix would not allow the state courts to examine their source code without a slew of non-disclosure agreements the court deemed inappropriate, reported the Union-Tribune:

court records filed last month show that the company wanted Speredelozzi and his experts to sign a restrictive non-disclosure agreement and abide by other restrictions. on Oct. 23 [Judge Charles G.] Rogers declined to require the [defendant's] lawyer sign the agreement, and warned that if the company failed to comply, he might exclude the DNA evidence all together from the trial. On Nov. 7 a lawyer for the company wrote to Speredelozzi they would not provide the crucial source code for the software without the non-disclosure agreement.

So the company chose to let the case against an alleged murderer fall apart rather than let California courts review its source code. But Judge Neff in Michigan already had experts do just that! Is the company afraid other courts may reach similar conclusions and disallow or limit their product's use? The execs at STR-Mix must really be feeling the heat!

One also wonders if the good folks at the Houston Forensic Science Center, which late last month announced they would begin using the STR-Mix software, might now begin to consider that decision ill-timed? Certainly, after Judge Neff's decision, one would question using it for either mixtures involving more than three sources or three-source mixtures where the target makes up less than 20 percent of the sample. Lots of trace-DNA samples are submitted to crime labs that don't meet those criteria!

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed Judge Neff's opinion and its implications for crime labs interpreting DNA mixture evidence. I pulled out that segment as a stand-alone; you can listen to it here:

The news about Mr. Dominguez's case hadn't yet come out, so we didn't talk about that. But the segment discussed some of the recent history of ever-changing DNA-mixture math and explored the reasons underlying Judge Neff's decision.

IMO this is going to become a significant story with national and international implications (everybody relies on the same science) and lots of twists and turns over the next few years. We need some journalists with chops to jump on this coverage on the front end. Wrongful convictions have gone unchallenged simply because not one reporter in the whole country is covering this beat.

For more background on this controversy, see:

• National Institute of Standards and Technology: "DNA Mixtures: A Forensic Science Explainer" (April 2019)
• Ryan Forensic: "What in the world is going on with forensic DNA mixture analysis?" (April 2017)

*Except Techdirt, which picked the item up from Grits.

Funding needed to bolster Office of Capital and Forensic Writs

My Reasonably Suspicious podcast co-host, Amanda Marzullo, who is the executive director of the Texas Defender Service, asked me to publish this guest blog post she authored advocating for expanded resources for the Texas Office of Capital and Forensic Writs. Give it a read:

Members of the Senate Finance Committee’s Article IV Subcommittee should take a lead from their counterpart committee in the House  and adequately fund the Office of Capital and Forensic Writs (OCFW), which has been under-resourced since its inception in 2010.

The office represents people on death row in constitutional claims relating to their conviction or sentence. The post-conviction writs filed by OCFW, often composed of hundreds of pages and years of work, ensure our system is fair and helps us avoid the most serious of mistakes.

Importantly, counties are on the hook for most costs of post-conviction representation when OCFW is not able to handle a case. The OCFW seeks funding from the Fair Defense Account, a General Revenue-dedicated fund which can only be spent on indigent defense expenses.

Each session, the head of OCFW reports that staff is over worked and underpaid—even by government public service standards. Lawyers in this office handle 8.5 capital cases on average, which is about 70% higher than their counterparts in other Texas post-conviction entities, where attorney workloads are capped at 4 to 6 cases—depending on the size of a case’s record and the issues that require research and investigation. OCFW attorneys at this office are also paid significantly less than lawyers at other entities, which prevents the office from hiring and retaining experienced lawyers. For example, the State Prosecuting Attorneys Office, the Capital Habeas Units of the Federal Public Defender Offices in Dallas and Austin, and the Regional Public Defender for Capital Cases in Lubbock are all able to pay their lawyers 40-50% more on average than the OCFW.

Given this backdrop, it’s hardly surprisingly that the office struggles with high attrition rates. Since it opened its doors nine years ago, 27 staff members have departed from its payroll roster, which currently includes just 16 people. Such high turnover impedes their representation, and ultimately, may lead to a new grounds for appeal in federal court.

Finally, and perhaps most importantly, the House Appropriations subcommittee voted to provide funding for the office’s expansion into forensics writs.  Readers of the blog will remember that legislature directed the office to handle non-capital junk science cases that are referred by the Forensic Science Commission two sessions ago through legislation sponsored by Senator Hinojosa. Yet, to date, the legislature has not allocated one iota of funding for these cases. Funding for these cases and the OCFW simply makes sense.

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!

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)

El Paso 'shaken baby' conviction latest capital case challenged under TX's junk science writ

Texas' junk science writ continues to impact high-profile capital cases, this time causing re-evaluation of faddish "shaken-baby" science, which in recent years has come under fire. An El Paso judge recommended a new trial for Rigoberto Avila, declaring scientific testimony against him in his case "false and misleading." Now the Court of Criminal Appeals must decide his fate. Reported the Texas Tribune:

“The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony,” Avila’s attorneys, Cathryn Crawford and Rob Owen, said in an emailed statement. "After spending 17 years on death row – and facing four serious execution dates – for a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.” 

In August, podcast co-host Mandy Marzullo and I discussed how the junk-science writ has impacted death-penalty cases, and this story adds more context to that discussion.

The combination of Texas' Forensic Science Commission's work - along with the state's early adoption of the junk-science writ - has put the state at the bleeding edge of efforts to challenge faulty forensics. We have both a dedicated body charged with critiquing bad forensics and a legal means to challenge them that doesn't exist in other states. (Texas' near-term leadership on forensic reform was cemented after the Trump Administration nixed national USDOJ initiatives to update and improve modern forensics.)

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.

That's why the junk-science writ is being used disproportionately in capital cases. It's not that faulty evidence wasn't used to secure other convictions. It's that those other folks don't have access to attorneys or experts to challenge the false evidence.

The Daubert and Frye standards used by the courts have utterly failed to keep junk science out of Texas or American courtrooms on the front end. In the long run, Grits' hope is that the junk-science writ provides a back-door means to challenge shoddy forensics, and that, once discredited, courts will stop using that evidence going forward. That's what happened with scent lineups (using police dogs), and to me it looks like the most likely path for eliminating bad forensics in an era when judicial gatekeepers have utterly and profoundly failed us on the front end.

Podcast: Colloff on blood spatter, causes of long lines at DPS license centers, understaffing at rural prisons, and other stories

If you can get past a few bad puns in the intro, I think we've got a good show for you this time on the better-late-than-never August 2018 edition of the Reasonably Suspicious podcast, Just Liberty's monthly discussion of Texas criminal-justice politics and policy.


The segment I've been most looking forward to, of course, was the interview with Pamela Colloff, long-form journalist extraordinaire, who left Texas Monthly last year to write for ProPublica. We discussed her latest New York Times Magazine cover story about an apparent false conviction based on more-than-dubious blood-spatter evidence. (I'll publish my full interview with Colloff over the weekend.) But I was happy with the rest of the show, too. Here's what my co-host Mandy Marzullo, executive director of the Texas Defender Service, are discussing this month:

Top Stories

• Long lines at Texas DPS driver-license centers.
• Texas prison system can't keep rural prisons staffed.

Death and Texas

• Texas' junk-science writ revisiting dubious forensics in capital cases.

Interview:

• Scott Henson interviews Pam Colloff of ProPublica/New York Times Magazine on her latest feature on blood-spatter evidence and more.

The Last Hurrah

• Governor Abbott opposes red-light cameras.
• Healthcare funding beneath 'minimum standards,' say Texas prison docs.
• 5th Circuit scales back Harris bail-reform order.

One minor error I noticed when I was editing this together: I'd said during the Death and Texas segment that DPS licenses forensic hypnotists, when in fact it's the Texas Commission on Law Enforcement.

Find a transcript of the podcast below the jump.

Harris Sheriff's captain providing cover for Balch Springs shooter, the TX bail-reform roller coaster, and other stories

Here are a few odds and ends for Grits readers to chew on headed into the weekend:

Harris Sheriff's captain providing cover for Balch Springs shooter
A Harris County Sheriff's captain testified as an expert witness for the defense in the trial of Roy Oliver, the Balch Springs police officer who shot a fleeing, unarmed 9th grader to death in a nationally publicized episode that got Oliver fired and indicted. One wonders, does this mean we may expect the Harris County Sheriff's office to take a less strict view on when its officers may shoot at fleeing, unarmed suspects? The Dallas News reported that the Harris County Sheriff's captain, Jay Oliver Coons, "reviews use-of-force cases at the sheriff's department." Does Sheriff Ed Gonzalez agree that the shooting of Jordan Edwards was justified and it would be okay if his deputies did the same thing, or has his captain's testimony gone off the reservation? Inquiring minds want to know ...

Bail-reform roller coaster
August saw bail reform efforts take a gut-wrenching roller coaster ride. First, Gov. Greg Abbott joined legislative and judicial reformers in supporting bail reform, suggesting the bill be named after a murdered state trooper.  But then the Fifth Circuit Court of Appeals unexpectedly gutted the order governing Harris County bail policies, reneging on critiques of detention policies that discriminated based on defendants' wealth. Instead, they insisted that such discrimination is okay as long as defendants receive individualized hearings. That relieves some pressure on the Texas Legislature to pass bail reform, but does so just at the moment state leaders appeared to be reaching consensus on what bipartisan reforms might look like. Who knows where the issue goes from here?

Felony record not a bar to council candidacy
The Austin city clerk this week agreed that Lewis Conway, Jr., is eligible to run for office because, despite a quarter-century-old manslaughter conviction for stabbing to death a man who allegedly stole his drug stash. Conway is  now "off paper," having completed his parole requirements and regained his right to vote. The Texas Tribune reported that, "Conway's success Tuesday is unique for one big reason: He's a convicted felon." But "unique" is not the right word because in 2014, Bexar County elected a former drug dealer with a felony conviction as its District Attorney, so the precedent was already set. As with Conway, local officials and opposing candidates declined to challenge Nico Lahood's candidacy in a much higher-stakes race. Grits congratulates Conway on affirming that precedent, and I'm plesased he'll be on the ballot.

Management inattention to crime lab at Austin PD backfiring
Austin PD crime lab's DNA section may remain shuttered for many more years, judging by a report that the city may continue using an outside DNA lab through 2022. Although public debates and the local media have downplayed the culpability of APD managers, the unfortunate truth is that under the previous chief, Art Acevedo, the department largely ignored its civilian functions like crime-scene techs, victim services, and the crime lab. Instead, they focused every extra dollar on expanding the number of and pay going to officers on patrol. Just weeks after Acevedo left to take the reins at Houston PD, the crime lab debacle blew up under his successor's watch. Current Chief Brian Manley was one of Acevedo's commanders and has similarly prioritized budgets for sworn staff over improving the agency's civilian functions. Despite that, the city council could locate no other candidates to even consider; apparently Manley was the only qualified guy they could find. (There's no "Rooney Rule" for police chiefs; after Dallas hired a black woman as chief, for example, there clearly were no other minority candidates anywhere who might be worthy of consideration, hence Austin considered none [/sarcasm].) So I'm not surprised that officials expect the situation to linger on. APD hasn't prioritized its civilian functions in many years and it's hard to view Manley's hiring as anything more or less than an affirmation of the status quo.

DPS suggests closing license centers as long lines loom
As headlines continue about long lines at DPS driver license centers, the agency has suggested closing 87 smaller offices - many of which have only one employee and/or low customer volumes - in order to consolidate resources at the centers with long lines. That could be the right management move, but politically, Grits predicts it will be a non-starter. A few may be closed, but I'd be surprised if the number of closures reached double digits, much less 87. And anyway, closing small facilities won't solve the bigger problems exacerbating long lines at the DPS megacenters, which have more to do with legislative policy than agency-level logistics.

Junk science challenges proliferating
Many so-called "forensic sciences" are really non-scientific, subjective comparisons made by cops, not scientists, argued an editorial at The Legal Intelligencer. That was the reason Texas created a new form of habeas corpus writ - discussed recently in the Texas Tribune in the context of shaken-baby cases - to allow redress when the legal system bases convictions on junk science. The writ is also currently being used to challenge the validity of bite mark evidence as well as blood spatters, a topic Grits delved into in an interview with ProPublica reporter Pam Colloff (read her latest) for the podcast that will be out next week.  RELATED: Top ten junk forensic sciences challenged in Texas.

Cohen doesn't cotton to FIRST-STEP opposition
Check out Right on Crime Director Derek Cohen's rebuttal to U.S. Senator Tom Cotton regarding the latter man's opposition to the FIRST-STEP Act and sentencing reform. Wrote Cohen, "We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny. Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox." In recent days, we've seen President Trump first embrace the bill and then reportedly back off until after the election. From this remove, Grits can't tell who in D.C. is serious about reform or what chances it has in the current political environment. Whatever is the case now could change with the next presidential tweet. But I do know that reformers' opposition to the bill was ill-considered and based on partisan considerations, not #cjreform principles. Passing moderate bipartisan reform is clearly better than doing nothing, which is the alternative.

Judges rubber stamping capital writs, warrants now required for cell-phone location data, managed-assigned-counsel systems still suck, and other stories

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

Austin admits police oversight system didn't do much
Grits has said for years that Austin's civilian review panel for police was more or less worthless as oversight. They make fine recommendations, but none of them are ever implemented, as the Texas Criminal Justice Coalition demonstrated in a report last year. Now, a city auditor's report has agreed, finding that none of the civilian review panel's recommendations under the old system were ever implemented. See coverage from the Austin Monitor.

Lawsuit: Austin PD failed to properly investigate sexual assault cases
See coverage from the Daily Beast. Putting a pin in this one to look at later. Given that Austin PD's DNA lab has already been shut down because they were performing the tests wrong, it's not hard to imagine some cases aren't aggressively pursued when they should be.

Bexar should reject calls for managed-assigned-counsel
The SA Express News editorial board argued that Bexar County needs to a) spend more on indigent defense but also b) spend more on oversight to make sure it's getting quality defense for the money it's spending. They should stop promoting the Managed Assigned Counsel program, which has been a disaster in Austin. What Bexar County needs is a full-blown public defender office, and not just for mental-health cases.

Harris County judges rubber stamp DA findings in capital writs
In 96 percent of state capital habeas cases since 1995, judges in Harris County simply adopted proposed findings of fact written by the prosecution, according to this analysis from the Houston Law Review. See this summary of the analysis compiled by The Open File.

Paxton sides against local GOP judges in bail litigation
Positioning himself opposite the Republican judges who've spent more than $6 million fighting bail reform in Harris County, Texas Attorney General Ken Paxton is seeking to have lawsuits dismissed which were filed by Harris County magistrates against the State Commission on Judicial Conduct after that agency had sanctioned them. The judges in Houston fighting bail reform are becoming increasingly isolated. The bail bond industry is nearly their only remaining ally, given that statewide elected officials like the Attorney General and the Texas Supreme Court Chief Justice haven't backed their play.

Settlement in pool party police assault
The girl who was famously slammed down by police at a McKinney pool party has entered into a settlement with the city, reported The Root. " According to the Fort Worth Star-Telegram, under the terms of the settlement, ... plaintiffs in the case, were awarded a total of $184,850 last month, with $148,850 of that amount going to" the principle victim. ALSO: The Statesman has the story of another high-profile civil rights suit against a police officer out of Mesquite who tazed a teenager in the groin in a situation where the boy ultimately died.

SCOTUS: Protect cell-phone location data with warrant requirement
I haven't had time yet to read the new Carpenter decision from the US Supreme Court on when law enforcement must get a warrant to access cell-phone location data and when they don't need one. But the fact that Orin Kerr is grumpy means I'm likely to like it. Regular readers may recall that Grits had previewed the case around Christmastime with a poetic homage.

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:

"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."

However,

District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 

"We don't use the death penalty as a plea bargaining tool," she said.

Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."

Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 

"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."

So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 

"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

CCA: Parole board cannot be made to follow statutes

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Why an innocent person would plea bargain

The Atlantic has a good roundup of US Supreme Court cases related to criminal justice coming up in the term which just began, and Grits was interested to note Class v. United States (see the SCOTUSBlog preview), in which "the justices will ponder an unusual legal question: If a defendant pleads guilty to a crime, does he or she lose the right to challenge that crime’s constitutionality?"

In an era when 97% or so of criminal cases end in plea bargains, this is a significant question.

In Texas the issue of whether challenges to a conviction may arise from a guilty plea in state court arose in Ex Parte Tuley, a case decided in 2002 and which your correspondent hadn't considered in many years. The Tuley case challenged a conviction in which the defendant was in fact actually innocent, but pled guilty to avoid a much harsher sentence in the face of false accusations of sexual abuse by a child victim. The final ruling included a wonderful passage written by then Court of Criminal Appeals Judge Tom Price:

I think it is colossal hypocrisy to exclaim, “we are shocked, positively shocked,” that a person who has pleaded guilty pursuant to a negotiated plea bargain would never do so unless he were truly guilty and believed himself guilty. Who are we kidding? It is true that Mr. Tuley did sign and swear to a form stipulation that “the following facts [tracking the indictment allegations] are true and correct and constitute the evidence in this case.” He, of course, did not design the form. It is certainly accurate to say that there was some evidence already admitted in the original trial that would support a finding that the indictment allegations were true. 

It is also true that the trial judge asked the magic question:  “Are you pleading guilty because you are in fact guilty and for no other reason?” and applicant responded:  “Yes, ma‘am.” Does this make him a perjurer? A self-admitted liar? 

Suppose Mr. Tuley had been given a dose of truth serum. Now, in response to the magic question, he responds: 

Your Honor, I do not believe that I am guilty. In fact, I know that I am not guilty.   However, the present jury is deadlocked. Some of those jurors may believe that I am not guilty, but others obviously differ. A different jury could conceivably find me guilty and sentence me to life in prison. That is a very serious risk to me. Furthermore, I do not have enough money to pay my lawyer for conducting a second trial. I am worried that I might have to go to jail just to be entitled to an appointed lawyer for a second trial. I have a job. I would lose my job if I had to go to jail for months waiting for a second trial. Quite frankly, I am out of money and out of time. I just want to go home. The State has made a very attractive offer of ten years deferred adjudication. This is an offer I cannot refuse, given the obvious risks I face if I continue to maintain my innocence and insist upon a second trial. So, even though I am innocent of this charge, I want to plead guilty because I am making a fully informed, free, voluntary and rational choice among the alternative courses of action available to me. 

The trial judge, hearing this unusual response, is likely to say something along the lines of: 

How can you expect me to accept your plea of guilty? This is a very serious offense and it carries a potential life sentence if you should violate the terms of your community service. How can you expect me to accept a guilty plea to the first degree offense of aggravated sexual assault of a child if you say you are not guilty, but you want to plead guilty anyway? And besides, I heard the same evidence that the jury heard and I am not fully persuaded that the evidence is sufficient to support a conviction beyond a reasonable doubt. I refuse to accept your guilty plea and we will set this case for another trial. 

Mr. Tuley, then, is likely to say: 

Judge, whose side are you on?   Are you on my side? I just want to plead guilty.   I didn't do it. I know that, but I also know that the prosecution has a child complainant who says that I did. I have a drug problem and a jury is likely to hold that against me, and, frankly, I look dishonest. Nobody is going to believe me. Now, do me a favor and let me plead guilty and get my ten years deferred. This is a good deal. I want to take it. Don't stand in my way. 

But an honorable trial judge might reasonably respond: 

But, if you're not guilty, I cannot take your guilty plea. I am worried about this man pleading guilty to something he is not guilty of. That is just wrong, and I can't allow that kind of an injustice to take place in my court. 

Mr. Tuley's honest reaction might well be:  “Don't be my friend. With friends like you, who needs enemies?” Instead, Mr. Tuley's lawyer would probably yank him off to the corner and after a certain whispering back and forth, Mr. Tuley will see the light He will now respond appropriately to the magic question:  “Are you pleading guilty because you are guilty and for no other reason?” with the right answer:  “Yes, ma‘am.”

Reasonably Suspicious: Listen to the podcast, join us for our Launch Party!

After several months of working out the kinks in a soft launch, Just Liberty's Reasonably Suspicious podcast now is up and running on numerous platforms - iTunes, Google Play, YouTube, SoundCloud, etc..  Please subscribe and give it a try! I'm proud of the results so far, and we're improving every time.

We've now got a fresh new logo created by the legendary Guy Juke, plus original music by producer/guitar virtuoso Gabe Rhodes and some of the best musicians in Texas. I couldn't ask for a smarter, more able co-host than Mandy Marzullo from the Texas Defender Service. The excuses for failure are dwindling! :)

Just Liberty will host a podcast launch party in Austin on Wednesday, September 20th to celebrate the new project. Please join us if you can! See our Facebook event page for details.

You can listen to the podcast here, or as usual find a transcript with links to underlying documents and news stories below the jump.



Here are the topics covered in the September 2017 episode:

Top Stories

• Police-union pension crisis predicted by Ron DeLord
• Prosecutors ill-advised to withhold witness statements
• Big implications for Harris County bail-reform litigation

Forensic Follies

• Junk Science Writs and the Goldilocks Problem
• First DNA-mixture "black box" broken open

Last Hurrah (quick takes)

When does SCOTUS say it's okay for Texas lawyers to be ineffective?

Question: When is it okay for Texas lawyers to overtly provide their clients with ineffective assistance without it jeopardizing their conviction?

Answer (from the US Supreme Court in Davila v. Davis): During state-level habeas corpus proceedings under Ch. 11.07 of the Texas Code of Criminal Procedure. The client has no recourse, no matter how bad their lawyer screws up, under the Supremes' latest hit to defendants' ever-waning constitutional protections. Clarence Thomas wrote for the five-member majority, as quoted by Jolie McCullough in the Texas Tribune:

"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Grits finds this especially frustrating because it's not just death-penalty cases - where defendants receive automatic federal habeas corpus review - where lawyers might provide ineffective assistance. There's no right to counsel for any state habeas proceedings - including the junk science writ created in recent years by the Texas Legislature - meaning lawyers can be ineffective in that work without it weighing into the outcome. That's frustrating and upsetting.

Justice Breyer, in dissent, considered this a situation where “the framework of state procedural law 'makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.'” Under Texas law, as the court "pointed out in Martinez ... the 'initial' state collateral review proceeding [in Texas] 'is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.'" (It can also happen on direct appeal, but often the trial attorney files those and is unlikely to make an ineffective assistance claim about their own work.) In Martinez, Breyer added, SCOTUS said that in Texas, state habeas “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.”

So without a right to counsel at least for purposes of challenging ineffective assistance by one's appellate attorney through a habeas corpus writ, Texas' law and judicial practice have essentially extinguished defendants' rights to challenge it at all in many cases.  And five members of SCOTUS have now enshrined that perverse outcome into law unless the Legislature or state courts seek to change course.

The outcome reinforces the outcry from Judge Elsa Alcala in a separate case in which she called for providing counsel for state habeas claims in a notable dissent. Doing so would not only better protect defendants' constitutional rights, but also modulate and streamline the workload of the Court of Criminal Appeals, which is annually flooded with pro se writs. That would help weed out frivolous claims and make it more likely the CCA can spot the valid ones.

Make Grits Philosopher King and I'd suggest Texas should create a public-defender office for appeals and writs comparable to the Office of the State Prosecuting Attorney on the government's side, with a specific mandate for representing defendants' state habeas claims.*  But the Legislature this year balked even at spending a much smaller sum to cover direct appeals in death-penalty cases (HB 1676) - and failed to give the Office of Capital and Forensic Writs extra money to cover representation in junk-science writs - so at the moment, political will is lacking.

As a final, notable aside, McCullough pointed out that:

This was the third Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the first time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas’ method for determining intellectual disability for death row inmates was unconstitutional.

* Before someone suggests it, keeping the State Counsel for Offenders as an arm of TDCJ instead of making it independent, like the SPA, has prevented it from ever aspiring to play such a role.

Keller exoneration a warning parable about witch hunts

Congratulations to Fran and Dan Keller - an Austin couple accused of performing Satanic rituals and sexually abusing kids at their daycare a quarter century ago - on their formal exoneration nearly 30 years after their original false convictions.

The couple was released in 2013 and in 2015 their convictions were overturned. But the Texas Court of Criminal Appeals denied the couple actual innocence relief.

The difference came with a change in leadership at the Travis County DA's office. New DA Margaret Moore reversed her predecessor's stance and agreed to an actual-innocence finding, which is an alternative path to exoneration created by the Lege when Anthony Graves was exonerated but denied compensation because of the CCA's narrow definition of "actual innocence."

The CCA could have refused the agreement, but thank heavens they did the right thing and ratified it. It's long past time to make amends for one of the darkest, most surreal episodes Texas' justice system has seen in many a year. The outcome means the Kellers will each receive $80,000 per each year they were incarcerated, as well as a like amount distributed to them through a lifetime annuity.

In the wake of this happy news, the Dallas News editorial board took the opportunity to warn its readers that Texas and the nation still face dangers from "witch hunts" in the 21st century. Their editorial concluded:

All this matters, because new generations ferret out witches of their own. 

We are witness now to the blanket demonization of Muslims, of immigrants, of black drivers shot during police stops. And too often we rationalize our indifference with "better safe than sorry," or "if you didn't do anything wrong, there's no reason to worry." 

Try telling that to the Kellers.

Convenience vs. the Constitution: CCA habeas procedures value former over latter, says high-court judge

Thanksgiving is over, but Grits is grateful for Texas Court of Criminal Appeals Judge Elsa Alcala, without whom I wouldn't have been aware of this major problem with the court's habeas corpus procedures.

In an opinion released this week, Alcala pulled back the curtain on the court's internal policies to reveal how most habeas writs are decided by a single judge, in her opinion in contradiction to requirements in Texas' Constitution and statutes. This is a must-read opinion for anyone interested in Texas habeas corpus matters.

Basically, the CCA has identified entire classes of cases which are segmented out by staff and routinely denied by a single judge. Alcala agreed the writ in this case should be denied, but filed this concurrence to expose problems with the process.

In Alcala's view, "the Texas Constitution requires a decision by a quorum of judges on this Court, and thus a denial of habeas relief by a single judge on this Court fails to comply with this requirement." She believes that, "the Texas Constitution’s mandate that a quorum of judges decide this Court’s cases is not satisfied by what is effectively a standing order of this Court that permits an individual judge to act as a proxy for a quorum of the judges on this Court on the basis of a pre-vote on a category of cases that are never actually individually seen by any judge other than the proxy judge."

In non-death penalty cases, she points out, the Texas Constitution (Art. V, Sec. 4) permits a panel of three CCA judges to consider habeas writs, but not individual judges as is this court's practice. In a panel of three, two judges constitute a quorum. So by that reckoning, at least two judges must participate for these writ denials to be valid.

The Texas Constitution does give individual members of the CCA power to issue habeas writs, she argues, but not to deny them. And in any event, the court's authority "is subject to regulation by the Legislature, which has decided not to permit the exercise of that power for Article 11.07 writs," which is most of them. Those writs are issued through the convicting court and the CCA's statutory role only begins after that court does its work.

The issue is important because there are three, maybe four CCA judges who reflexively side with the government in all cases. These judges can be counted on to reject defense arguments not so much because they're wrong, but simply because they come from the defense, whom they like to blame even for problems that prosecutors cause. So any writ that goes to Sharon Keller, Barbara Hervey, Michael Keasler, and in non-death cases, probably Kevin Yeary, are apt to get rejected and round-filed no matter what the situation. The court remains sharply divided and the difference between how different judges might view cases is substantial.

In that light, requiring at least two out of three judges on a panel to consider a case provides at least some check on members of what Grits has dubbed the Government-Always-Wins faction on the court, which includes the Presiding Judge who assigns cases. If the answer to a habeas petition is just that "Michael Keasler said 'no'," it's hard to assess whether that's because the petition itself was inadequate, or just because certain judges walk into most cases having settled on a predetermined, pro-government outcome.

IANAL, so I'm not sure what recourse there is when a majority of high-court judges choose to disregard the law for their own convenience. (Maybe such things can get appealed to SCOTUS? Some more knowledgeable person, please enlighten us in the comments.) But Judge Alcala deserves thanks for making public an internal, procedural practice that violates the constitution and limits the application of justice. If she didn't say something, how could we know?

CLARIFICATION: The original post implied individual CCA judges could "grant" habeas writs when Alcala's opinion made clear they may only "issue" them, ordering a defendant to appear before a trial-court judge. In her view, individual CCA judges are not authorized to grant or deny 11.07 habeas writs under their own authority. Read Alcala's opinion for a more complete explication of these issues. Grits regrets any confusion.

Don't gloat that Texas is ahead on forensic-science reform

Meagan Flynn at the Houston Press is right that Texas is ahead of the feds and the rest of the country right now on forensic science reform, but that fact provides cold comfort. As Grits noted in an earlier roundup, this week the president's Council of Advisors on Science and Technology issued a harsh critique of a variety of common "forensic science" techniques as being, in fact, highly unscientific. (It's been rightly said that when one finds the need to append the word 'science' on a field - like forensic science, political science, military science, computer science, creation science, etc. - that the endeavor is thereby virtually guaranteed not to be science.) She writes:

Of the several methods reviewed, the only one the experts deemed trustworthy was your basic DNA testing, or analysis of simple mixtures of DNA when only two people's DNA is present. The other methods the council examined included bitemark analysis, complex DNA mixture analysis, footprint analysis like the kind you might see in some detective b-movie, microscopic hair analysis, firearms analysis and latent fingerprint analysis. And all of them were either in need of substantial improvement to be considered admissible in court or were considered basically useless.

Flynn offered a note of cautious optimism that, in large part because of the work of the Forensic Science Commission, Texas is in a better position than other states to weather the storm:

At least, however, there's some good news. Texas's own forensic science commission — which is not a common agency among all states — has already been studying these very issues in the past couple of years, and the White House findings mirror exactly what Texas experts have been saying.

"Texas has been really ahead of the curve in understanding that much of the pattern forensic evidence may be flawed," said William Press, vice chair of the council and a computer science and integrative biology professor at the University of Texas. "Texas is in a better position than most states to take the necessary steps to bring science into forensic science, and to make sure that we convict the right people."

The science and technology council's findings particularly line up with those of the forensic science commission on bitemark analysis, hair analysis and complex DNA mixture analysis.

It's true that Texas is ahead of the curve in understanding, if not stopping, the use of junk science in the crime lab and the courtroom. But we're all at the front end of an achingly long curve. This is not cause for optimism but instead means we're a little bit closer to the series of Class A Clusterf$@ks which are about to deluge the justice system over flawed forensics.

A prime case study in that regard may be found at the Austin crime lab, where the DNA section has been closed entirely and an FSC audit found the lab neck-deep in dysfunction. Police administrators quickly found themselves answering for past prevarications on the state of the lab, Chase Hoffberger at the Austin Chronicle reported:

The findings also bring into question why, when APD announced its shutdown in June, [Austin Police Chief Art] Acevedo led by saying the "voluntary" decision was the result of the death of an employee – only conceding ongoing conversations with FSC as a secondary reason. At the time, Acevedo said he'd been told "preliminarily" that the probability is low that an innocent person has been convicted as a result of APD's testing challenges. Asst. Chief Troy Gay doubled down on that assessment on Sept. 6 when he told members of the Public Safety Commission that the department and District Attorney's Office "have not located or identified any cases that have been impacted at this point."

The latter by now can be classified as an untrue statement: The contamination case specifically mentioned in the audit – flagged for contamination by the District Attorney's Office as early as 2009 – has still not gone to trial because of challenges at the lab. Any case that's been tried on DNA evidence processed through APD since April 2010, when APD adopted its stochastic threshold practice, could also be subject to retesting. As Ace­ve­do noted when he first announced the shutdown, "only time will tell" how many other cases have been affected.

Acevedo and Gay provide a good example of how NOT to handle these situations. Don't lie and pretend no cases are affected when they are; don't scapegoat your employees; don't downplay the concerns of rape victims who think their rape kits should be tested; don't conceal or whitewash a serious mess that will require community involvement and extra resources to fix. Own up to problems because they're not of your making: The whole field of "forensic science" is screwed up, from the FBI's labs preaching junk science at their national training center to the lowliest breathalyzer analyst interpreting black-box results from proprietary commercial software.

There is an ongoing existential challenge to whole fields of forensics which never emerged from the sciences. Instead, a scientific pretense served to gloss over questionable policing practices with a phony veneer, hoping a white lab coat could give them added credibility to gatekeeper judges when the actual scientific pedigree of the evidence could not justify it.

So look at what Austin PD is enduring at its DNA lab, assume most DNA labs face essentially similar challenges, then consider that nearly every other field of forensics crime labs undertake, according to this report and the earlier 2009 analysis from the National Academy of Sciences, essentially are based on subjective supposition rather than the scientific method. We're at the front end of a period of utter chaos in this nation's forensic labs.

Then there's the fact that, even where Texas law is ahead of the game, the Court of Criminal Appeals has abdicated its responsibility to interpret it as written to give it force: The Legislature created a "junk science writ" for wrongly convicted defendants to get habeas corpus relief when their conviction was primarily based on junk science. But four members of the CCA - Keller, Hervey, Keasler, and Yeary - have used every trick in the book to keep the court from interpreting the new law, causing Judge Elsa Alcala to lambaste them for disingenuity. With incoming members of the court likely to bolster those four's position on legislatively mandated habeas relief, and no guidance from the CCA at all on how to reform judicial gatekeeper functions in light of known flaws with commonly used forensic evidence, one realizes that Texas is not ahead of the curve at all when it comes to fixing these problems. We were just among the first to recognize them.

It's less like Texas is winning a race and more like we're the first dog to catch a car, or perhaps Patient Zero in a just-discovered pandemic.