Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The Star Telegram had an article addressing the debate over the use of forensic testimony in criminal cases. They had the audacity to point out the conclusion of the National Academy of Sciences report that ballistics is not science - it's an opinion. Of course, that drew responses from crime labs, and those who regularly testify on such matters. The point of the article was not to answer the question of whether it's science or not, but point out the issues are currently being debated. In Texas, these type of issues were supposed to be addressed by the Texas forensic Science Commission.

Lawyers are known (despised) for arguing over words - yet we don't challenge the use of the term "science". So what is the definition? Here's one:

The word science comes from the Latin "scientia," meaning knowledge.

How do we define science? According to Webster's New Collegiate Dictionary, the definition of science is "knowledge attained through study or practice," or "knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world."

 As far as I'm concerned, a crticical part of science is utilization of the scientific method. What does that mean? While its been a long time since I was in school, it basically means formulating a hypothesis, and then testing to see if its true. Rigorous testing means attempting to disprove the hypothesis. If you can't disprove it, then it's probably scientific.

So how does this apply to fields such as ballistics, fingerprints and blood spatter? I don't think it does. The underlying assumptions for those disciplines  has never been established: i.e. there are no studies establishing that no two fingerprints are the same, or guns put the same marks on bullets to the exclusion of all other guns. Ultimately, all those fields are based on one thing - observation.

The problem with observation is that no matter what procedures you follow, the ultimate decision is subjective.That is the problem with those fields; if something is true, everyone that looks at it should reach the same conclusions. If you have two equally qualified experts reaching different conclusions, that's not scientific.

Another problem is determing who is an expert. Is it someone who looks at a lot of fingerprints or ballistics. Does that mean they are able to accurately look at something at make comparisons. Why don't we use artists - who have a discerning eye for detail? Also, if it's nothing more than making comparisons, why do you need an expert?

We need to start addressing this type of testimony for what it is - opinion. What's the answer? I don't know. Perhaps its the use of court experts, or perhaps its in limiting the use of such testimony, or providing limiting instructions. Something needs to be done, because there is no doubt that as long as you have competing opinions one of them is likely to be wrong - and it is justly likely to be the state's expert as the defense expert.

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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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Several weeks ago Randall Thompson's future was probably looking pretty good. He was scheduled to be executed, but the parole board voted to recommend a commutation to life. In Texas that's a rare thing - I'm sure his lawyers had to look several times to make sure they were reading it right.  If you compare it to the lottery, he was told all his numbers matched. All he had to do was collect his money - in this case get the approval of the Governor.

The governor of course is Rick Perry - who just happens to be engaged in a heated primary election. Never thought to be soft on the death penalty, Gov. Perry had commuted sentences before based on the parole board recommendation. Too bad he didn't do it in this case - Mr. Thompson was executed after Gov. Perry refused to follow the recommendation.

I'm sure Gov. Perry has his reasons - just like he continues to insist Todd Willingham is guilty. I think the truth is that he didn't want a commutation to be an campaign ssue. His base of support is to put it mildly "off the chart" on criminal justice issues. They believe in more crimes, and tougher punishments. Heaven forbid you suggest someone shouldn't be executed - even if there are doubts about their guilt.

The bottom line is that if Mr. Thompson's execution had been scheduled a few months earlier he would probably be spending the rest of his life in prison - just like his co-defendant.

This was upsetting enough; then I had to read Mark Bennett's comments, which included a post by Mr. Thompson's habeas attorney. It appears that Mr. Thompson was the victim of an all too often situation - bad lawyering. Any doubt is dispelled by looking at what happened to his co-defendant, who was represented by a good lawyer. In short, the justice system failed him.

I've written before about my belief that we are all going to be accountable for our actions some day. Most of us have a lot of things we aren't proud of - and aren't going to get off the off the hook for. Imagine having to explain why you thought it was better to let someone be executed so you wouldn't damage your re-election chances.

There has to be a better way to handle death penalty cases. Whatever it is, it's not leaving decisions in the hands of those who worried more about their own future - i.e. politicians. They are always going to be decisions with political ramifications. Any doubt - look at the the heat coming down on Mike Huckabee for reducing the sentence of Randall Clemmons (who recently gunned down four police officers). When a decision like that goes bad, it's easy pickings for your opponents.

Politics should not enter into decisions on clemency and communation. In fact, the political ramifiactions of a decision have nothing to do with the meritts. Unfortunately, as long as politicians are the ones making those decisions, it will remain.

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I attended the Senate hearing yesterday and listened to the new chairman of Forensic Science Commission - John Bradley - lay out his plans for the commission. Not surprisingly, the representatives wanted answers to two questions; when was the commission going to issue a report on Willingham, and was the late replacement of the commission chair designed to derail the investigation and work that already been done. Neither of those questions was definitely answered, but then what can you expect in a political arena.

Sen. Whitmire - chairman of the committee asked Mr. Bradley if his service as a prosecutor created a possible conflict. His reply was that he was probably more qualified than a defense lawyer, because  he had a statutory obligation to "see that justice is done." He also described himself as sort of a one man innocence project because of the number of cases he had dismissed before they were ever filed.

I've heard for years the argument that prosecutors have an obligation to see that justice is done. No doubt that is the law. The problem is how it is interpreted, and carried out. We know that too often that obligation is not honored. Is a prosecutor who hides evidence seeking justice? What about a prosecutor who has doubts about a case, but decides to "leave it to the jury"?

Most of the time the statement is made to divert someone away from the facts. The statement is really nothing more than "you can trust me to do it right". In other words, I wouldn't be doing this unless the guy was really guilty.

There's another problem with this argument. It creates an "us against them" mentality. Mr. Bradley followed up with the statement that defense lawyer's only have an obligation to their client. The insinuation is that they will do anything to get them off - ethical or not. The underlying argument is that they are on the side of truth and justice; the defense lawyer is on the other side, and you don't need to pay any attention to what they say.

As with any right in the criminal justice system, it is only as strong as the person enforcing it. It would be  nice if all prosecutors took that obligation seriously. There is no doubt that some do. Most of those prosecutors never have to remind people of their obligation - no one has any doubt because they carry it on a daily basis. If you have to remind people, you probably aren't doing too good of a job at carrying it out.

I'll wait and see how Mr. Bradley carries out his job as commission chairman. So far he hasn't done anything and he can't be held accountable for the manner in which he was appointed. I'll keep an open mind, but so far I'm not too hopeful.

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ne of the blogs I enjoy reading is Zen Habits. I've picked up some great tips organization, productivity and keeping things in perspective.  Sometimes there is also information that specifically apply to lawyers. recently he wrote about expertise, and how long it takes to achieve expert status - his answer was at least 6 years.

I'm sure that's not what new lawyers want to hear; they come out with a law degree, and consider themselves experts. Many aren't shy about telling you about their expertise; just google criminal lawyer or any variation thereof. There's no criteria for when you can declare yourself an expert - its up to each lawyer to decide themselves. Unfortunately, most of those who consider themselves experts aren't; and those who don't consider themselves experts really are.

I agree to a point with Zen Habits - you can't become an expert in anything less than 6 years. However, just because you've reached that mark doesn't mean you are instantly an expert. I wish that were the case - I've got 27+ years under my belt. That means I've been around, but doesn't make me an expert. I like to think I'm really good at certain things - but certainly not everything that relates to criminal law.

When I first started I had an older lawyer tell me it took at least 5 years to figure out what you are doing and get a practice started. I thought he was crazy, but he was absolutely right. I've seen it time and time again, and finally started giving the same advice.

Expertise requires more than knowledge. It also requires experience. More importantly, it involves perspective. Not only do you need to know how to do something, you need to know when to do it. Contrary to what most people think (especially defendants and new lawyers) practicing law requires more than knowledge. Good lawyers have intangibles that others don't possess. One of those intangibles is a passion for justice and a desire to ensure their clients are treated fairly; many times those desires conflict with economics. In other words, if your only interest is in making money, I don't think you are ever going to become an expert.

The internet is a great thing - but it can't make you an expert without experience and desire. you still need to put in the time. sorry - there is no short cut.

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