Posted on June 17, 2013 by Walter Reaves

New Hope for Bad Science

After having success snatched from the jaws of the victory the last two legislative sessions the third time was the charm. Convicted defendants will soon have a post-conviction remedy for claims that are based on the use of bad science, or where new science is available.

Senate Bill 344 adds Section 11.073 to the Code of Criminal Procedure. The new statute applies to relevant scientific evidence that:

(1) was not available to be offered by a convicted person at the convicted person's trial; or

(2) discredits scientific evidence relied on by the State at trial.

This has the potential to represent a huge change in the law. The Court of Criminal Appeals has taken different approaches to cases involving discredited scientific evidence. Recently, the Court has recognized a due process claim for cases where the conviction is based on false evidence - whether the State knew it or not. This bill goes at least that far - if not farther.

The burden is still on the defendant to that it is "it is reasonably probable" that he would not have been convicted. Sometimes that will be easy - such as arson cases - and sometimes it might be more difficult.

There should be no doubt that science has been used to convict people in thousands of cases. Science is not absolute, and continues to evolve as more knowledge is obtained. It is absurd to convict one using science, and then not grant relief when it is later proven the science was wrong. This bill goes a long way to addressing that problem.

Kudos to the Texas legislature....

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Posted on June 11, 2013 by Walter Reaves

Does the public still trust prosecutors?

 When I started practicing law over 30 years ago, most people had an unwavering belief in police officers and all those whose job it was to convict people. One of the standard questions we used to ask potential jurors was how they felt about police officers. More than a few would admit they would believe a police officer over any other type of witness. Most felt the same way about prosecutors - believing what they said over the defense lawyers.

The bias was more pronounced with judges. If you were a prosecutor you got the benefit of the doubt. Defense lawyers had to convince a judge the case would get reversed if they made a particular ruling. If the prosecutor said they did something - such as disclose evidence - a defense lawyer could never convince the judge otherwise.

Most jurors also believed that if someone was indicted they were guilty. After all, the police wouldn't arrest an innocent person - we trust them remember? Very few people believed that innocent  people get convicted. They trusted the system to get it right every time. Remember George Bush's insistence that an innocent person has never been executed?

I've seen that change over the last few years. We can thank DNA for that - and the constant parade of individuals getting out of jail after spending years for something they didn't do. It started off as a trickle, but quickly turned into a flood. Jurors have taken notice - and everyone now believes that innocent people get convicted.

Even though jurors believe innocent people get convicted, they still trusted prosecutors. They chalked up wrongful convictions to innocent mistakes. That may now be changing.

The poster child for unethical prosecutors used to be John Bradley. Now it may be Ken Anderson - who was responsible for the wrongful conviction of Michael Morton. Anderson - who went on to become a judge - now finds himself on the other side, having been arrested for his role in Morton's conviction.

Morton's case came out of Williamson County. Apparently it caught the attention of voters - they voted out Bradley in the last election. Normally voters know nothing about District Attorneys - if they know anything it isn't about how they do their job. That may have changed with Bradley.

The fallout over Michael Morton extends beyond the defeat of Bradley. Jury selection is currently taking place in a capital murder case that was transferred from McLennan County. So far a large number of jurors have been excused because of their opinions about the Morton case. Those jurors no longer trust prosecutors, or the system.

Is this an isolated incident - or something more pervasive? There probably is a disparate impact in Williamson County, but I don't think it stops there. Over the last couple of jurors I've seen jurors' attitudes change. Some are much more skeptical - and more willing to buy arguments like mistaken identification.

We still have  a long way to go - but at least we are headed in the right direction.

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Posted on May 29, 2013 by Walter Reaves

Telling prosecutors what to do - they don't like it

I recently had a conversation with an assistant district attorney; he was complaining about the new discovery statute they were going to have to start complying with. In case you don't know, Texas recently passed legislation requiring the state to provide discovery in criminal cases. The statute is referred to as the Michael Morton act – and is one of the few laws named after a person that is actually beneficial.

The complaint was about the burden that was going to be placed on the state to document what they turned over. I listened without much sympathy. I just had to point out that any burden being placed on them was of their own making. Four years they have fought discovery reform, and insisted on controlling what defendants can see. The last few years have shown what can happen when the decisions are left to the prosecutor – evidence favorable to a defendant is often withheld and innocent people - like Michael Morton - get convicted.  One of the consistent recommendations over the years for reducing wrongful convictions is providing full discovery.

It's not such a difficult concept to grasp. In civil cases both parties are allowed access to almost everything. Yet when your life is on the line, the information you get is limited. No one can even begin to argue that is fair. A number of prosecutors recognize that, and have an open file policy – some even routinely copy offense reports and discovery to make available to defense counsel. They can blame the few that refuse to do so for the Michael Morton act. Had they gotten on board years ago, there would be no reason for a law like this.

It's still early to see what impact this is going to have on the criminal justice system. The fact is the district attorney and the state still control the dissemination of evidence. They will continue to choose what to provide, and what to hide. Full discovery however cannot be anything but a good thing for everyone involved.

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Posted on May 9, 2013 by Walter Reaves

Your case is reversed - now what?

 

A case i have been working on for a number years demonstrates that what happens when your conviction is set aside is not necessarily what you would expect. Although it's clear to me - I guess those years in law school did really morph my brain into thinking like a lawyer - I realize how difficult it is to understand for the lay person who hasn't been corrupted by law school. The biggest reason is that the legal system is often counter-intuitive. Nowhere is that more apparent than in pot-conviction  cases.
 
Most people believe that if your conviction is reversed you get out; it makes sense - how could they still hold you. This is where legal "fictions" come into plea. In a writ of habeas corpus the positive action the court can take (other than finding actual innocence) is to set aside the conviction. That doesn't mean you are not guilty. Instead, it means you back to the position you were in before you were convicted. Basically it's a "do over". You are still under indictment, and your case is returned to the Court where the indictment is issued. That means the case goes back on the trial docket, and trial dates and court dates are set just like in any other case.
 
In this particular, the indictment was returned in 1987 - so it will clearly be the oldest case on the docket. The judge is retired. the DA gone, and the lawyers retired, so we will be starting over with all new players.

It's been a long road to travel so far - it looks like we may still have a ways to go.

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Posted on May 6, 2013 by Walter Reaves

Gaining a client's perspective - the hard way

I've been out of the office for the last 2 1/2 weeks.- Not because I've been on vacation or doing something fun. Exactly the opposite -  I live in West, and my house was one of those destroyed in the fertilizer plant explosion. For the first 10 days after the explosion I learned what it must be like for our clients, who are at our mercy for knowledge about what is going on in their cases.

Since my house was one of those in the most heavily damaged zone we were not allowed back in for almost two weeks. Most people - myself included - left with nothing more than the clothes on their backs. They couldn't go back to pick up things like a toothbrush, new underwear and socks, and all those other things we generally take for granted. They also were in the dark about how badly damaged their houses really were - few people spent a lot of time surveying the damage since there was raging fire a short distance. Many were like me, and had family members - for me my daughter - calling and yelling at me to get out. For 10 days we were basically in the dark about what was going on.

I was more fortunate than most since I'm also the city attorney  (somebody has to do it) and got to sit in on most of the briefings. Even with that knowledge I still didn't know when we were going to get back. I couldn't control it, and didn't really have any idea how they were going to make the decision. I was anxious to get back in and try to salvage what I could, and determine how bad things really were.

It occurred to me that is how our clients often feel. They are worried about what is going to happen, and usually stressed out. They don't really have any idea what is going on, and how their future is going to be decided. The less they know, the more they worry. It is up to us as lawyers to help them through that by providing as much as information as we can, and helping them understand the process. We all know that, but sometimes we forget just how important it is.

For me, I now have a new appreciation for how important information and knowledge is.

 
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Posted on April 4, 2013 by Walter Reaves

The highest bond for a misdemeanor ever?

 The purpose of bail is to ensure the defendant shows up for a court. After all, everyone is presumed innocent until found guilty - so you shouldn't keep someone in jail before trial unless you have to. Public safety can also be considered, but generally a bond must still be set.

As a general rule the more serious the offense the higher the bond. The theory is that someone facing a lengthy stay in prison might not have a lot of incentive to show up in court. On the other hand, people charged with minor offenses generally show up to take care of their cases since not doing so only makes things worse. Bonds vary from county to county, but generally bonds for most misdemeanors are in the range of $1,000 - $5,000. That is, unless you decide to threaten a public official in Kaufman County.

Not surprising, everyone in Kaufman County is on edge, and I don't blame them. I've been practicing more than 30 years and I've never seen anything like this. You  expect the crazies to surface, and apparently they have. Two men have been arrested for terroristic threat - One of them, Nick Morale apparently called a tip hotline and made a threat against public officials. Not the brightest move, but it's only a Class A misdemeanor. You wouldn't know it by the bond though.

Morale's bond was set at one million dollars!!! In a lot of places a bond for capital murder wouldn't be set that high. So what did officials have to say about the bond - officials say they want to send a message they aren't going to tolerate that kind of conduct. So whether he did it or not, and no matter what the circumstances, he's going to be punished before he even gets to court.

This may be a new record for a Class A misdemeanor. Has anyone ever seen a bond for a misdemeanor set that high?

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Posted on March 20, 2013 by Walter Reaves

Who owns the file?

The Court of Criminal Appeals issued an opinion in a mandamus action today that left me scratching my head. The case - In re Patrick McCann and Albert James Turner. involves an order that an attorney turn over his file to the lawyer who was working on a habeas application. What left me scratching my head was the way the case got to that point.

Apparently the habeas lawyer requested the file from the trial lawyer so he could prepare an application for habeas corpus. The lawyer refused to do so without a waiver signed by the client - nothing wrong with that, since you want to make sure the client consents. Apparently he didn't because he refused to sign the waiver.

Since he didn't have a signed waiver, the trial lawyer refused to turn over the file. The trial judge held him in contempt, and the mandamus was filed.

What left me scratching my head was why the client refused to authorize the release of his file so that the new lawyer could file his writ. Normally you want that information. After doing a little checking I may have found at least a partial explanation. It appears Mr. Turner was not happy with his trial lawyer, and moved to represent himself after he was convicted. According the lawyer Mr. Turner suffers from paranoia, which might explain some of his actions. In the meantime, the Court is going to decide issues that are going to have an impact. Here are the three questions they requested briefing on:

1. To whom does a client's file belong?

2. If the file belongs to the client (the defendant in the underlying case here), what are the possible consequences should the client refuse to turn over the file to subsequent counsel?

3. If the file belongs to the client and the client is unable or unwilling to decide whether to turn over the file, to whom does that decision fall (e.g. former counsel, subsequent counsel, trial judge, or guardian appointed for that issue)?
 

Stay tuned to find out the answers.
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Posted on March 6, 2013 by Walter Reaves

Even if the evidence still exists you can't trust it

Last week the Court of Criminal Appeals decided a case involving a discredited DPS lab analyst - Jonathan Salvadore. It had previously been discovered that Salvadore fabricated test results. In last weeks case the habeas applicant challenged the test results in his case - since it had been done by the same person. The Court granted relief, after sending the case back the trial court and learning that evidence had been destroyed, and therefore could not be retested.

This week they reviewed a case involving the same analyst, although in this case the evidence had not been destroyed. However, the result was still the same. The court held that since the evidence was still in the custody of the same analyst, custody of the evidence had been compromised.

These are significant decisions because of the assumptions used by the Court. Instead of having to prove the results were flawed in the case before them, they assumed any results would not be reliable. Not only that, they now assumed that they cannot trust the analyst  to main proper custody. This effectively means that any case involving Mr. Salvadore can be set aside.

Credit the court with doing what it can to maintain the integrity of forensic evidence. Hopefully decisions will have an impact on labs, and their personnel.

 

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Posted on February 24, 2013 by Walter Reaves

More thoughts from the AAFS convention

 It's easy to become optimistic after attending a convention like this. All the forensic scientists understand the problems with using science, and want to fix them. I also heard several judges who clearly get it; one even talked about the disparate treatment given prosecution and defense experts, and the overall lack of scrutiny given by judges to scientific evidence.

One of the stories I heard pointed out the problem we still have - incompetence on the part of both defense lawyers and prosecutors. The story involved an identification hearing before a federal magistrate - another state was trying to gain custody of the defendant, and he was claiming he was not the person named in the warrant. The only testimony came from a fingerprint analyst, who was limited to poor quality photographs on the documents. What was remarkable was that the defendant didn't challenge the evidence, and the prosecutor didn't seek additional verification. Instead, it was the magistrate who took it upon himself to appoint a court expert - something I have never seen.

The failure of the defense lawyer to challenge the fingerprint identification is difficult to understand. When the client claims it isn't  him, and the evidence is suspect, that should be the first thing you do. Add on the problems that have been identified with fingerprints in general, and it's a no brainer.

The prosecutor doesn't get a pass either. He has a duty to ensure he is presenting accurate evidence, and should not have simply accepted the file as it was given to him. Were it not for the judge, the case would sailed right through the system.

Unfortunately, I don't think this is an isolated. Even though the NAS report has been out for several years, most lawyers still don't know about it. And even if they've heard about, they don't know what to do with it. It's no longer good enough to know the law - you now need to keep up with the science, and know where the problems are.

The lawyers, judges and prosecutors who go to these conventions get it. Unfortunately, that's a very small number. We need to do better at the spreading this knowledge to others. 

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Posted on February 23, 2013 by Walter Reaves

Lessons from the 2013 AAFS convention

 I just finished attending my third American Academy of Forensic Sciences convention. As usual, there were too many presentations to attend, and most of the presentations are far too short. Unlike most legal CLE, most of the presentations are only 15-20  minutes, which just lets you hit the high points.

It's been a couple of years since the NAS report came out, and it looks like forensic scientists are no longer complaining about it - and have accepted its here to stay. People are still defensive though, and I observed several people comment when it appears their particular discipline was being attacked.

I've spent a lot of time thinking about this issue, and while I don't  have answers, I do have some general observations. First, I don't think most forensic scientists are bad people, and out to help the prosecution. There may be a few, but I think they are the exception. Instead, I believe almost all forensic scientists think of themselves as impartial, and try to do the best possible job. As a result, they take offense when lawyers attack them. At the core, I think this reflects a basic understanding of human nature and psychology.

The fact is most forensic scientists work for state labs - as a result, almost all of their contact is with the state, whether it be police or prosecutors. We all tend to relate to those we hang out with. For the most part, they know the officers and prosecutors, and probably have spent a lot of time talking with them. They may even know a few things about their personal lives. If you don't believe this, think about the people you work with. There me be someone you hate, but for the most part you consider co-workers at least casual friends. If there was a dispute involving them and someone you didn't know, you would probably identify with your co-worker.  It's not a conscious decision - instead, you don't give it a second thought.

Why should forensic scientists be any different - they are people just like anyone else. While I don't think they consciously set out to take sides, they can't help but do so. They identify with the prosecution, and I have seen that demonstrated time and time again. When you tell someone you are a defense lawyer, more often than not they make a comment about being on the other side.

The problem is not with the individual scientists, but with the system. The decision to separate crime labs from the police and make them independent is another discussion. But I still don't think that will completely eliminate the problem. Because they still are going to deal primarily with the police and prosecutors.

Everyone involved has the same objective - to seek the truth. While we all recognize that, I don't think we have come to grips with the human dynamics involved.

I've got some more thoughts - particularly on the caliber of the people that attend these conferences, but I'll save that for the next installment.

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