Bradley to Governor - Mission on target,

As expected, the Texas Forensic Science Commission meeting yesterday has been extensively. I believe the initial strategy was to delay, and hope interest in Willingham would die down. Thanks to the efforts of numerous groups, that has not happened. Apparently the governor's office finally realized they were going to have do something - in other words, on to plan B.

I have always had serious concerns about the Forensic Commission taking up the Willingham case. I never for a minute thought the state would admit they executed an innocent person - no matter how obvious it is. Although I knew no one could attack the scientists who have critiqued the investigation, that has never stopped the State before. They are the State, and for many it's enough to say we don't believe it. I always thought the most logical approach was to admit there were problems, but claim they did the best they could at the time. In fact, that is exactly what they did.

For awhile I got my hopes up. The first Chairman  (or presiding officer) was Sam Bassett. He apparently didn't get the memo, and mistakenly thought the commission's job was to investigate, and uncover problems. They did that - and we all know what happened when they were close to discussing the report of Craig Beyler. What I didn't know before this week was some of the behind the scenes maneuverings.

I wrote last week about the memo that was prepared on the issue of jurisdiction. Sam Bassett submitted a response, which he was kind enough to share with me. Needless to say, he thought the commission's jurisdiction was not  so limited. He noted the memo was employing an extremely restrictive - and in some cases nonsensical - reading of the statutory language. He also pointed out that this discussion had already taken place. The following is from Mr. Bassett's memo:

In February 2009, when questions concerning the authority of the FSC to conduct the investigation on the Willingham and Moon case were raised by members of the Governor's staff, the undersigned personally contacted Senator Whitmire's office to ensure the FSC was not overstepping its authority. On February 26, 2009, Larance Coleman, who advises the Senator on criminal justice issues, stated to the FSC chair that the FSC was doing what it was supposed to be doing.

The focus on the recent memo was on ascertaining legislative intent. The memo did everything but to go the source - i.e. the legislators who passed the bill authorizing the commission.

Mr. Bassett also addressed Mr. Bradley's concern over defining professional negligence and misconduct. That had also been discussed, and decided. The previous commission recognized that professional organizations did not define those terms, and therefore there was no recognized definition. They concluded they would be overstepping their authority to define terms that the legislature itself had not defined. Of course, the lack of such authority was not impediment to the current commission.

I think the clear reading of all this is that the governor's office did not like the way the commission was operating, and tried to change it. When that didn't work, they did what only the governor can do - change the commission. There should be no doubt that the current chairman knows what the goal of the commission is. So far, he appears to be right on target.

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Attacking the principles of breath testing

This is my second post on articles from the American Academy of Forensic Sciences Journal. An article that jumped out immediately was "Paradigm Shift for the Alcohol Breath Test" by Michael P. Hlastala. 

Breath testing was developed to determine a person's blood alcohol level. All states define intoxication of terms of the level of alcohol in a person's blood. The best way to test is that is of course to take a  blood sample; however, that takes time; breath testing and easy and quick. Something that can be done by a police officer.

Breath testing is based on the scientific principle that there is an exchange between air and the blood system. You breath in air, which is transferred to your blood system in the lungs. Breath testing is based on the idea that you can estimate a person's blood alcohol content based on the levels in their deep lungs - alveolar air. A mathematical formula is used, which is recognized as being an assumption. The formula is basically an average, which does not apply to everyone.

For any test to be valid, the underlying facts must be valid. According to Dr. Hlastala, the facts supporting breath testing are far from settled. At the beginning of his paper he notes:

In spite of the considerable effort that has gone into the studies attempting to validate the breath test, forensic scientists and toxicologists still have only a basic understanding of the physiological aspects of the the alcohol breath test (ABT) and associated limitations.

The "old paradigm" assumes the amount of alcohol in the breath remains constant as it goes through the lungs. It turns out that is not accurate. In fact, the amount varies - sometimes significantly. The result is that the actual blood alcohol level may be over or under-represented.

The new paradigm recognizes that alcohol is deposited in the airway surfaces during both inspiration and expiration. It also recognizes that the alcohol that comes out in the breath test comes from airway surfaces rather than the alveolar region.

The conclusion reached in the article was:

It is time for forensic scientists to re-examine the ABT to consider the importance of alcohol interaction with the airway tissue during both inspiration and expiration. the result of this interaction is that the breath test is fairer for some subjects than others. Another consequence is that the BrAC continues to increase as the subject continues to exhale. The resulting end-exhaled breath concentration is only partially related to BAC. And, therefore, the ABT exhibits much more variability than previously recognized.

The author recommends decreasing the importance of relying on threshold levels - especially for determining penalties. he also recommends that some margin of error be recognized. Of course, that will never happen, but it something to consider when you have a client that is only slightly over the limit. Based on this research, they may or may not be legally intoxicated.

In Texas, limits are important for not only determining whether someone is guilty or not, but also for determining whether certain conditions are going to be imposed - such as a interlock device. The validity and accuracy of the breath test results is therefore critical.

This article does not break new ground - problems with breath testing have long been recognized. Those problems must be explored - especially in marginal cases. Where someone's future hinges on a machine, the least we can do is make sure the machine is accurate.

More problems with fingerprints

I'm one of the newest members of the American Academy of Forensic Sciences, and was anxiously waiting for my first journal. It arrived several weeks ago - in 2 volumes - and I started looking at the articles. Most are highly technical - but there are a few that deal with criminal justice issues. I'll cover other topics in subsequent posts,  but thought I would start with an article on fingerprints.

The title is "Emotional Experiences and Motivating Factors Associated with Fingerprint Analysis", and was written by David Charlton, Peter A.F. Fraser-Mackenzie and Itiel E. Dror. They conducted a study to determine what impact emotional factors had on the typical day to day work of a fingerprint examiner. Despite what many believe, fingerprint analysis is not as objective - and cut and dried - as many people think. Other studies have shown that the same fingerprint examiner may not reach the same conclusion - depending on the background information provided. So what did they find out?

What is certain as a result of this study is that fingerprint examiners not only are emotionally driven and motivated to achieve results for themselves, their employees, police and wider society, but also are influenced by more subtle psychological factors such as need for closure that exert leverage upon the decision-making thresholds of examiners that may, in the right circumstances, lead to erroneous conclusions should the context and the motivation be strong enough.

So what does that mean? One thing they discovered was the need to close a case - which is strongest in high profile and serious cases - may result in the decision threshold being lowered. In other words, they are more likely to call a match. As you would guess, the examiners wouldn't be aware of such influences, and would probably feel they had been objective and reached the correct result.

This article is yet another attack on the sacred position of fingerprints. They are not the error proof - definitive evidence - that fingerprint examiners have always tried to convey. In other words, fingerprint examiners can be wrong. By identifying the potential for mistakes, not only can bad identifications be challenged, procedures can be put in place to limit mistakes in the future.

Who accredits the accreditors?

I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission.  Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Another thing that struck me, was  the definition of what is a forensic discipline. If it's not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature's exemptions - latent fingerprint examination and breath tests. If those two areas don't involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their "scientific" their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.

The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting - they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.

What to Expect on a McLennan County DWI

You might think a DWI is a DWI no matter where you get it. To a certain extent that is right, but a post several weeks by Robert Guest started me thinking about  the differences in handling DWI cases among different counties. Robert was talking about DWI cases in Kaufman County, and Imuch of what he said applies to DWI case in McLennan County. Although I don't often travel outside McLennan County, I will occasionally go to Hill County, Falls County or Bosque County. And there are differences in the way DWI cases are handled.

If you get a DWI in McLennan County you can expect that you are going to either have to go trial or accept a plea - usually for probation. I know you can find all sorts of stuff on the internet from lawyers about getting charges reduced or dismissed. Generally that is nothing more than an attempt to get your money. Giving them the benefit of the doubt though, I know there are some counties where that is a realistic possibility. I have seen cases where someone has been able to get a DWI charge reduced - it used to be public intoxication, but the current trend seems to be reckless driving or obstruction. I can tell you that is not going to happen in McLennan County. That doesn't mean it never happens, but it's going to be an extremely unusual situation where that occurs.

The assistant District Attorneys in McLennan are competent, and don't mind trying cases. Most of them are fairly young, and the reason why they went to the DA's office was to get a chance to try cases. The thought that prosecutors don't want to try cases is a myth in most cases - they don't mind trying them, and certainly aren't going to bend over backwards to avoid doing so. Prosecutors in McLennan County try more than a few DWI cases - and they know what they are doing.


The biggest difference btween McLennan county and other counties is in discovery. Most counties now provide copies of the offense reports - and most importantly the video. There are some places that have gone to providing that information online - Tarrant County seems to be at the front on this - they have a system where local bar members can log in and get copies without leaving their office. In McLennan County your attorney has to physically go to the District Attorney's office and review the file and the video. Copies of the video will not be provided, so you  probably have to look at it several times. Because of the inability to obtain discovery many attorneys will request Administrative Law Hearings on the license suspension. DPS will send copies of the reports before the hearing, and a subpoena can be issued for the video. That must be done quickly - the ALR hearing must  be requested within 10 days after you are arrested.

In McLennan County DWI cases are processed like any other cases. They are filed in one of the two County Courts of Law. When you are released on  bond you will be given a date to appear in court. That date is basically an initial appearance. The purpose of the hearing is to find out if you are represented by lawyer, or if you are going to need appointed counsel. If you have hired a lawyer before the hearing date your lawyer will make an appearance for you, and you will not have to show up. You will be given a new court date, which will be approximately 60 days away. Before the next court you should have some idea of what you are going to do on your case - that is, whether you are going to enter a guilty plea or go to trial. If you decide to take the case to trial you will be given another date; this time for a pre-trial hearing. Any motions will be presented at the pre-trial hearing. Those motions could include a motion to suppress either attacking the initial stop or the tests performed.

In addition to hearing pre-trial motions the court will also a trial date. That is the date your case is scheduled for trial. In McLennan County DWI cases are no different from other misdemeanor cases - if you get a trial date your case will probably go. The docket is not so big that you have to wait for your case to move up the list.

Most of the time cases start on Monday. If the court is going to try more than one case you may start on Tuesday. The courts will rarely try more than two cases in a week. Pleas are done on Thursdays so the Court want to have trials finished before then.

The trial of DWI case is McLennan County is not much different than anywhere else. Most of the trials last no more than two days,and many are concluded within a day. As I said before the prosecutors here are competent, and know how to try cases. Since it's not a large county, the officers involved probably have testified before, so they know what to expect.

DWI cases are unique for several reasons. The most significant is that it is the only criminal offense established by an opinion. Whether or not someone is intoxicated is nothing more than an opinion, even when there are breath or blood test results. The second reason is the reliance on scientific evidence. Where a test is done, that is used to try and establish guilt. Other than blood tests though, the tests are not 100% accurate - breath tests rely on a series of assumptions that may or may not apply to the individual. In addition, there are a now a number of other tests whose reliability is questionable. What that all means is that you need a lawyer who understands those things, and can properly evaluate your case.

No matter county you are in, make sure you find a lawyer you can trust before you go into court.

Why innocence shouldn't be in the hands of politicians

I'm sure it was a nightmare, and the source of more than a few sleepless nights. The lawyer's client admitted a murder - a murder someone else had been convicted of, and was serving time. For obvious reasons, the client didn't want that admission disclosed - the lawyer - Thomas O'Toole -had no choice but to maintain his client's confidence. He did that until the client was killed in prison. He was then free to tell what he knew.

Fortunately it wasn't too late. William Macumber had been charged with the murders - based on estranged wife's testimony that he confessed. Even though there was almost no supporting evidence, the case went to trial.

What happened next is a textbook example of how innocent people get convicted. Mr. O'Toole offered to testify at Macumber's trial, as did another lawyer and psychiatrist who also had been told the same thing. Even though the physical evidence was lacking, the judge refused to allow it as unreliable! So without evidence that another person confessed to the murder, the jury did what you would expect - they convicted Macumber and sentenced him to prison - where he has remained for the past 35 years.

In 2003 the Arizona innocence project entered the case, and eventually made a presentation to the Arizona Board of Executive Clemency.They unanimously recommended that Macumber be released from prison "to correct a miscarriage of justice". So far so good - all the cards to be lined up.

There was one last hurdle though - the governor, Jan Brewer. She denied the recommendation, and announced for re-election the next day. If anyone thinks the decision was based on anything other than political considerations, I have some swamp land you might be interested.

This is Arizona, so you have to expect certain things - especially when it concerns criminal justice. What  happened here though could happen anywhere. There is a huge problem with leaving innocence decisions to politicians. They will never make a decision that doesn't align with their own interests. Unfortunately, most voters don't get upset denials - they get upset when inmates are freed - even though they know nothing about the case. When it comes down to a choice between doing the morally correct decision, and the political decision, you know where they are going to come down.

As you would guess, I don't have much respect for the moral compasses of most politicians. Some  have been in politics in so long, I'm not even sure they know what is right or wrong anymore. They simply know what is politically best. Many know doubt believe the excuses and explanations they advance for such decisions. In the end, Mr. Macumber gets to remain in prison so gov. Brewer can get re-elected. And he can't even vote against her.

There has to be a better way.

Don't rely on the DA to do your job

I recently came across a story because it involved DNA evidence. Evidence had been tested 10 years ago, and the defendant - Stephen Meyers - was identified last year as a match. As is typical,  odds were provided - a  1 in 1.6 million billion chance that the evidence did not come from the defendant.  In preparing for trial, the evidence was retested - and guess what. That one in 1.6 million chance came true - the new tests excluded the defendant! As a result, the case was dismissed.

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing  but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test. Older tests were only able to look at several locations on the DNA molecule; results were given for each location. For example a person might be a type 1.1, 1.4 at location on 1.3, 1.5 at location two. If the defendant has the same types he is excluded. Newer tests look at more locations, which makes it more precise. If the defendant is excluded at any point, then he is excluded - i.e. cleared. Obviously, the more locations you look at, the better the chance of obtaining an exclusion.

What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

In my experience, prosecutors never challenge scientific evidence. If they have a 10 year old t est, they are going to run with it. If it's going to be challenged, it is up to the defense lawyer to do it. Kudos to the prosecutor here, who wasn't willing to blindly accept what the experts told him (even if they were just trying to make the case stronger)

I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

Before the retest there was already plenty of evidence to suggest Meyers was innocent. The description of the suspect was short, fat and balding, while Meyers was tall and skinny. Not to mention almost  no evidence to establish he was even in the same town where the assault occurred. You might thing that is enough, but I have seen far too many cases where defendants were convicted even though they didn't even remotely resemble the description provided. The explanations are usually that the victim was under stress, and that appearances change. In other words, if you are relying on a bad identification you are flirting with disaster.

Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

How to know if you are a criminal defense lawyer

I am back from taking a long weekend to go bass fishing. Before I left I talked with friend who was heading to the annual Rusty Duncan Seminar sponsored by the Texas Criminal Defense Lawyers Association (who have a newly popularly elected president BTW). He was not enthusiastic - mainly because he's not too enamored with the new group of lawyers coming into criminal defense work. That got me to thinking about what it takes to be a good criminal defense lawyer - and what are the wrong reasons for getting into this type of work.

I know what is referring to. Working on post-conviction cases, as well as working with the Innocence Project of Texas, I get a chance to autopsy cases that have gone bad. Too often there was no reason for the case to end up with a guilty verdict. Sure, there are cases where the lawyer did everything possible, and lost. If that hasn't happened to you, you just graduated from law school. Many times though there was a lot that could have been. It's easy to identify the good lawyers - they are  usually the ones that tell you they are willing to do whatever they can to help, and don't mind admitting where they could have done things differently (again, if you tried a case and didn't criticize yourself at the end you just got out of law school, or never tried a case). If the lawyer tell you they did everything they could - they probably didn't.

Others have commented on the marketing push - including the need to use social media. For some, criminal defense work is an afterthought - something basically chosen by default. Their goal is to make as much as money as possible, and clients are merely an end to that. For those, I can save you the trouble. You are never going to become rich as a criminal defense lawyer.

If you have  been around for awhile, think about the really good criminal lawyers you have seen; how many of them for wealthy. Sure there are some who achieve fame and fortune, but the odds of doing that are probably less than a high school football player going on to become an NFL superstar. There are many good lawyers who make a decent living, but also many who barely scrape by.

Why is that? After all, we are always taught that hard work and expertise lead to success. I believe there are several answers - the most basic being one how you define success. As I started getting older, I realized that success is not related to your income. Rather, success is doing something you enjoy doing, and doing it well. If you don't really enjoy criminal defense - which means enjoying working with your clients - you shouldn't do it.

There are other reasons - ones I learned the hard way. Running and managing a law practice, and actually practicing law are two entirely different things. I am terrible at running a practice - which includes marketing - and for that reason have always struggled. You can't emphasize management over the actual practice of law, but you can't ignore it either. I'm still working on that.

Another reason is that good criminal defense lawyers are advocates - they don't like seeing people screwed around by the system. sometimes those people have money, often they do not. I don't know any good criminal defense lawyer who doesn't take cases from time to time for reduced fees, or no fee. They take things personally, and aren't going to stand on the sidelines. Unfortunately, your landlord, family and all the others who rely on you don't run on good intentions.

I finally came up with the answer to the question in the title. You know you are a criminal defense attorney if you would do it even if you didn't have to. If someone gave you millions of dollars today and you never had to work again, you would still go into the office tomorrow (well maybe not tomorrow, but eventually) It's in your blood, and you can't just walk away.

Sadly, I don't think there are many such lawyers around anymore. Clients have no way of determining who is good, and who is not. The often make decisions on what they read online - i.e. hype. Few good lawyers engage in such practices, although it is become more of a necessity just to survive.

THERE IS NO SUCH THING AS A TIME CUT!

Yes I know it's rude to type in all caps - but I want to make a point. One I've been trying to make for at least 20 years. There is not a week goes by that i don't get a letter from an inmate asking about time cuts. At first i thought it was just one of those rumors that circulate in prison. As the years rolled by though it became clear that it was something more than that.

Hope springs eternal - even in prison. When you pair hope with common sense, you get a creation that is immune to reality. It makes sense that if you can appeal, a court can consider everything - including the length of the sentence. It also makes sense to believe that there should be some way to reduce an excessive sentence. Sensible or not, there is no such authority.

So what are options? Basically there are no judicial options. The only option is commutation - which comes from the Governor. Despite what anyone may say, commutation is often a political decision. To obtain a commutation, you need to obtain the recommendation of at least two of the three trial officials - which are the judge, DA and sheriff. They have to agree that the sentence is excessive, and give a reason for that belief. Generally, it is something that comes out after the sentence was assessed.

So how many times would you expect the judge and DA will agree that a sentence is excessive? If you guessed almost never, you would be right. There are only a handful of commutations issued each year - and your chances of obtaining one are probably the equivalent of hitting the lottery.

The commutation process goes through the parole board, so if you want to pursue this option, you need a parole attorney. However, don't expect a good parole attorney to take your case without knowing a lot about it. They know it is the equivalent of hitting your head against the wall, and are not going to take a case unless they believe they is a realistic chance of success.

If your only complaint is that your sentence is too long, you are out of luck. The only legal remedy available is a writ of habeas corpus, and that is also extremely limited. It is only available to correct serious errors in a trial. And before you think that fits your case, that type of error also exists in only a  handful of cases.

If someone tells you to pursue a time cut - or that you can get a time - cut, you will now know that don't know what they are talking about. Spread the word.

 

Why do Courts have to force common sense on prosecutors

In this day of instaneous communication the news that the Supreme Court agreed to hear Hank Skinner's case is old news. in case you haven't heard, Skinner is sentenced to death, and has been requesting DNA testing which he claims will establish his innocence. Predicatbly, the State has opposed testing, and the courts have agreed.

I wrote before about this - in that post I compared Skinner's case with Cameron Todd Willingham, and wondered why the governor didn't learn anything from that case. You would think that with all the criticism and condemnation that case has created, you would want to avoid a repeat. Yet here we are again.

I think the vast majority of people believe that if there is evidence it should be tested. After all, what do you have to lose - other than time. If Skinner really is guilty is it all that important to execute him next month instead of next year? I understand there are some who think the process drags on too long, but look at the alternative. What if he is innocent - is speed more important than getting it right?

The only thing the State accomplishes by opposing testing is creating a controversy, and raising questions. Some will think they have something to hide - and maybe they do. Maybe they don't they grasp the concept that most of society actually believes that some people who are convicted are actually innocent. In fact, it has become common to see stories of people who have been exonerated after spending years in prison.

I realize the request in this case is being made at the last minute, and probably could have been presented earlier. Do some defendants play the system to buy time? Maybe so, but that doesn't mean they all are. Where the alternative is as final as it is here, I think you have to give the defendant the benefit of the doubt - at least where the request is not obviously frivolous.

What it really boils down to is that this is what is in the prosecutor's playbook. They have been conditioned to reject requests for testing - especially in death penalty cases. The reaction is almost automatic, and common sense is not going to get in the way. That is why it is up to the courts to occassionally legislate common sense. Let's hope they do so here.