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

On Friday the Texas Forensic Commission held their first meeting under new chairman John Bradley. The fact that it was held in Harlingen should have told you everything you need to know. He wanted to make it as inconvenient as possible for people to attend - and it didn't take long to find out why.

Thanks to the Innocence Project the meeting was streamed live over the internet. For those able to stay awake they were able to witness a primer on how to abuse power and hijack a government commission for your own purposes. As usual, we could rely on Scott Benson and Grits for Breakfast for coverage. He has posts here and here.

As you remember, last year the commission was set to hear from Dr. Craig Beyler who had been hired to produce a report on the Cameron Todd Willingham Case. The day before the hearing Gov. Perry removed the chairman, and put Mr. Bradley in his place. His first action as the new chairman was to cancel the hearing. He then started talking about developing rules for procedures for conducting business - in other words, he didn't want to do anything substantive. So after several months we finally have the first meeting under chairman Bradley. He had rules all right - of course he didn't share those with the other members of the commission; no doubt because he didn't want them to have a chance to read them.

Before the meeting there had been a discussion over whether the commission even has the authority to enact rules. Most thought they didn't. The Innocence Project hired a prominent New York Law firm to furnish to an opinion. Their conclusion was that they had no such authority.

As it turns out, Mr. Bradley knew this all along. After forcing the new rules down everyone's throat - and demanding a vote even though they were looking at them for the first time - he acknowledged they weren't really binding. As Capt. Jack Sparrow said about the Code, they are really "more like like guidelines". That's not the only thing he backtracked on. He assured the members that the new rules wouldn't apply to pending cases. After they voted to approve them, he said they would apply to the pending cases. Of course I guess it really doesn't mean much since they are really only guidelines.

Mr. Bradley definitely showed his prosecutorial bent, and pulled out all the tricks. Prosecutors are used to getting want they want. They also control the information, and are prone to demanding decisions without allowing adequate time to consider the options. He certainly got what he wanted here - or did he really get what Gov. Perry wanted?

I have serious doubts that Mr. Bradley came up with those rules on his own. After all, he does have a full time job. The commission so far doesn't have a general counsel, and only has one staff person. So where did they come from? My guess is they came straight from the governor's office - although that is something we will probably never know.

So where does that leave the commission? The idea behind the commission was to create a forum to address problems with forensic science. It started with Williingham - which pointed out the problems with arson investigations. There have also been problems with labs, and individuals. The commission should be a forum to address those issues; to decide if there was a problem, and  how to fix it. That has to include what to do in those cases where mistakes have been made.

The Courts are not designed to referee disputes over forensic science. A commission - made up of scientists and lawyers - and without the political pressure judges face, is an ideal forum. A commission can hear from all sides, and consider more than one individual case. Unfortunately, it doesn't look the commission is going to do anything here other than waste a lot of taxpayer money.

I'm not sure what Mr. Bradley has in mind - once they actually get down to business. I have serious doubts that he wants to correct mistakes that have already been made. He has already indicated a desire to be prospective. What's more troubling is the rules he wanted to impose focused only on intentional acts. Most of the problems in forensic science aren't intentional. They are made because people don't know any better. If you address only intentional mistakes you might as well not even look at cases like Willingham - the investigators there were arguably applying the tactics that had been used for years.  We now know it was wrong.

The legislature is concerned about this, and there have already been two hearings held. I don't know what the answer is, but I do know It's not the current commission. We would be better off scrapping the whole thing and start over - and save a lot of money in the meantime.

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The Supreme Court recently decided a case which points out the Catch 22 faced by defendants trying to obtain relief through habeas corpus. The case is Wellons v. Hall. Like any good case it has great facts - which of course involve sex. The defendant wanted to explore contacts between the jurors and the judge and bailiff during trial. Apparently the jurors gave the judge a chocolate penis and the bailiff chocolote breasts. They also planned a reunion after trial with the bailff (maybe to make use of the gifts?) Natuarlly, this caused concern for Mr. Wellons and his lawyers.

Mr. Wellons attempted to find out exactly what happened, and got caught up in what the Supreme Court described as a "procedural morass". He tried to raise the claim on direct appeal but it was rejected because there was no record of  what happened - fair enough. He then filed a habeas petition and tried to develop the evidence. The court rejected the petition, holding it had already been decided on appeal. Not to be deterred, he sought relief in federal court, and requested an discovery and an evidentiary hearing. He was again denied, the court finding his claim was procedurally barred.

So in the end, Mr. Wellons was denied relief without the court ever actually addressing the evidence. You might find that strange - unless you are familiar with how courts handle habeas claims. Unfortunately, this happens all too often. Defendants are denied the right to develop evidence, and then the claim is denied because you have no evidence.

Mr. Wellons' case ended up as a debate over the Court's GVR (grant, vacate and remand) authority. In the end, a majority of the court vacated the decision, and sent it back to the Court of Appeals to determine whether Mr. Wellons should have been granted and evidentiary hearing. I'll leave that debate and discussion to the law professors. What I find important is the court's recognition of the procedural barriers faced by habeas petitioners.

The majority summed up the problem in a footnote:

Moreover, the allegedly “unequivocal” holding that JUSTICE ALITO quotes was preceded by a discussion of the deference owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the “Georgia Supreme Court’s judgment as to the substance and effect of the ex parte communication.” Id., at 937. This is the classic formula-tion of a decision of whether to grant habeas relief. Indeed, it would be bizarre if a federal court had to defer to state-court factual findings, made without any evidentiary record, in order to decide whether it could create an evidentiary record to decide whether the factual find-ings were erroneous. If that were the case, then almost no habeas petitioner could ever get an evidentiary hearing: So long as the statecourt found a fact that the petitioner was trying to disprove through the presentation of evidence, then there could be no hearing. AEDPA does not require such a crabbed and illogical approach to habeas procedures, and there is no reason to believe that the Eleventh Circuit thought otherwise.

Federal habeas all too oftens involves a perfunctory review of the State court decision. As long as they gave a reason that's not completely off the wall, that's good enough. Maybe the Court wants to remind Courts that review should consist of more than that. I certainly hope so.

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Last year the Supreme Court decided Melendez-Diaz v. Massachussetts, which held the State had to use a live witness to admit lab reports. The prosecutors immediately starting screaming about how much of a burden that was going to be - they were actually going to have to bring in witnesses to testify. There was some evidence that the decision was having an impact on the trial of criminal cases.

So when the Supreme Court decided to hear Briscoe v. Virgina, most assumed the court wanted to back off the holding, or do away with it entirely. There certainly was no other reason to grant review, since the decision was so new there was nothing that needed to be clarified. The only thing that happened since Melendez-Diaz was decided was that a new justice had been added to the court. Like most defense lawyers I thought the decision was going to be short lived.

You don't need a majority vote to grant review in the Supreme Court. Since Melendez-Diaz was a 5-4 decision, there were already 4 votes to overturn it. If Justice Sotomayor came on board, that would be enough to flip the case the other way.

Briscoe was argued only a view weeks ago. During the argument, justice Scalia wondered why there was any need to review the case. The court answered the question today, holding there was no reason to review the case. They summarily vacted the decision of the Virginia court, and send it back to review in light of the decision in Melendez-Diaz.

So what happened? Did Justice Sotomayor indicate she wasn't voting to overturn such a recent decsion? Did the Court second guess itself and decide it shouldn't overturn a case for no reason other than a change in membership. I'm sure we will never know. What we do know is that least for now Melendez-Diaz is still good law, and the confrontation clause is still alive.

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As you would expect, everyone is commenting on the Master's report on Sharon Keller. Judge David Berchelman found that Judge Keller's conduct was not exemplary, but she doesn't need to be sanctioned because of the humiliation she has been subjected to. At firtst I thought someone was joking - but sure enough that's what he found.

Others have already covered the bases on this, and there is no reason to say the same thing. I do have a couple of observations thought. The first is that he makes an assumption that I'm not sure is correct - he assumes Judge Keller has been humilated. I haven't seen any indication that she has an regrets about what she did - if fact, she  has said she wouldn't change a thing (which Judge Berchelman's concludes can't be true). All she has done is attack everyone else. I always thought you at least had to feel some responsibility before you feel humiliated.

If you are a defense lawyer how many times have you made - or seen - this eame argument. My client is a good person who made a mistake, and has already been punished enough. It might be the executive caught with his hand in the till, or the young mother who takes a couple of pieces of jewelry. You know how often that is successful - try almost never. I'm sure Judge Berchelman has heard it thousand's of times - and probably this is this is the first time he has ever bought it. What's the difference between a judge and some other member of the society - doesn't that say something about how judges view themselves in relation to everyone else.

Judge Berchelman aslo says Judge Keller is not responsible for Michael Richards execution. To a certain extent that's true - he probably would have been executed anyway. But he wouldn't have been executed that day. Doesn't that tell you something else how judges view criminal defendants?

If God came down today and told you that technically today was your day, but he might be willing to give you a few more months, what you give for that opportunity? The problem with executions is that they terminate possibilities - we don't know what Michael Richards might have done with his extra time. Maybe he might have done something that impacted another and changed their life for their better. Instead, their life takes a different path. I've lived too long to not recognize the ripple effects we have on others - most of the time we never even know it.

Maybe the humiliation Judge Berchelman is referring to is the effect on the judiciary. There certainly could be some truth to that; but if that is what he was worried about he's made the problem worse.

As I said, others  have already covered all the bases on this. My contribution to the debate is to collect those comments here:

Jeff Gamso - Still Fly Free: the Judge Sharon Keller story cont.

Jamie Spencer - "Judge Keller's conduct was not however exemplary of a public servant"

R.J. McReady - Judge Keller should not be punished

Scott Benson - Judge on Sharon Keller - Public Humiliation is Punishment enough

Dallas Criminal Lawyer - Judge Keller = Not exemplary

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A Texas house committee met last week to discuss changes for handling forensic evidence in court. In typical law professor fashion, a UT professor suggested that Texas adopt the Fry standard, instead of the Daubert standard which is currently used. To his credit, he admitted that the change may not make any practical difference. I concur. BTW - thanks to Scott Benson and Grits for Breakfast for reporting this.

I practice appellate law, and I have a special interest in this. Although I've read the cases numerous times I'm not all that sure what the difference between Fry and Daubert is, and I don't really care. No matter what the standard, the bottom line is that courts are going to admit scienfic evidence in criminal cases. The problem is not the test, but what the courts consider scientific evidence.

My friend - and head of the Innocence Project of Texas - Jeff Blackburn suggested that we reject the test adopted for "soft sciences" - which has been labeled the Nenno test. I agree that has some merit, and maybe thats the best we can hope for. However, I wish we address the question of whether the so called soft sciences should even be allowed in court. In my opinion the term "soft science" should raise a red flag.

I've written before about what science really is. We could solve a lot of problems by limiting scientific evidence to that which is based on scientific principals, and administered by persons with scientific backgrounds - i.e. not police officers. Maybe we could use a test - if two legitimate experts don't agree, its not science.

I know no court is ever going to go this far - and the result is we are going to continue admitting evidence without serious scrutiny. We would much better if instead of worrying about tests, we step back and decide what types of evidence we should admit in cases where a person's life and liberty are on the line.

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Whenever you mention good and evil the first thing that pops into a lot of people's minds is crime and criminals. After al, criminals are evil and the police and prosecutors are the good guys out to protect society. The whole criminal justice seems to focused on demonizing defendants and ignoring the fact that they are real people. That's not what I want to write about though; what I want to write about is the Massachusetts senate race - specifically, Martha Coakley.

I realize I'm a little late getting this to. I'm from Texas though, and my knowledge of Massachusetts is that its out east somewhere.

So what does a senate race have to do with criminal justice, and the battle between good and evil? Twenty years ago Coakley was involved in the prosecution of the Amirault family for child abuse. It turns out that the charges were instigated and conceived by the State. Everyone was convicted and sentenced to prison. Normally, that is the end of the most cases. Not so here, because the Amirault's lawyer, John Sultan wouldn't give up. He kept at it - probably without payment, and probably at great personal sacrifice. In the end, the case unraveled, and there was tremendous pressure from the public and the judiciary to do something about it.

Here comes the evil. Coakley didn't want to lose face entirely, so she placed Mr. Sultan in an impossible situation. She would agree to reduce the wife's sentence to time served if he would withdraw from representing the husband. Since Mr. Sultan was the only one fighting for them, I'm sure she thought that would be end of it. Mr. Sultan ultimately agreed - probably one of the most agonizing choices he ever had to  make.

I wish I could say that's never happened before, but it has. Ms. Coakley had no problems in using another person to further her own career. After all, she was an important person. He was nothing more than a convicted defendant. I don't have the words to express how despicable I think that type of conduct is. So what was her punishment - a stellar career and possible a United States senate seat.

Prosecutors are quick to label defendants as sociopaths - someone who has no concern for others. Someone who is only concerned about themselves. How does that definition not apply to  Ms. Coakley in this situation.

There was a battle between good and evil here - Mr. Sultan represented everything that is good about criminal defense lawyers; Ms. Coakley represented everything that is wrong with prosecutors. In my  mind - evil won.

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I was recently alerted to a situation that so far has been under the radar. David Fisher is somone who appears to be on a one man crusade against ME's offices. You might think he is a little off - but results speak for themselves. So far he has gone after Lubbock County and Travis County, and basically caused the reorganization of both offices. Now he has turned his sites toward Tarrant County.

The Tarrant County ME's office is headed by Nizam Peerwani - who is somewhat of an icon. I doubt there are many criminal defense lawyers who aren't familiar with Peerwani. He vaulted to national prominence when  the handled the Branch Davidian autopsies. As far as I knew, his reputation has never been seriously challenged.

The issue Fisher is going after involves the relationship between Peerwani and the County. ME's offices are unusual creatures - created by Texas statutes. The contract with Tarrant County and Peerwani is actually with Peerwani and his professional association. He is paid a fixed amount, and in turns has hired four medical examiners who work for him. Peerwani also  has a private firm - that firm does work for other counties, as well as private parties - including defense attorneys.

It appears on paper that there are problems with the agreement between Peerwani and Tarrant County.  Is it a problem that  defense lawyers and defendants need to be concerned with? - I don't know. Clearly, any times you have financial issues in play, there is the potential for problems. There is always the potential for choosing money over the truth; or at least the potential for cutting corners.

I don't think we have seen the end of this. How much of an impact it will have is something only time will tell.

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One of the common complaints I see from defendants is that one or more of the witnesses against them committed perjury. That generally means that they didn't testify in a manner favorable to the defendant. A common occurrence is where two witnesses disagree about a particular fact - the defendant claims the unfavorable witness committed perjury.

Perjury  does occur - probably with some regularity. But it is one of the most difficult claims to prove. You need compelling evidence to establish that someone testified falsely.

Even if you can establish perjury, the rule has always been that you must still prove the State/government was aware of it. In legal jargon, the claim is the knowing use of perjured testimony, which is a due process violation. A witness may perjure themselves, but unless you can prove the State knew about it, you are generally out of luck.

The Court of Criminal Appeals may have just changed the law on this claim - at least in limited circumstances. The case is Ex Parte Chabot., No. AP-75,940 (12/09/09). Chabot was convicted of murder, and the main witness against him was an accomplice, Gerald Pabst. He claimed he was an unwitting participant, and didn't leave because he was scared of Mr. Chabot. The victim was sexually assauted, and of course Pabst denied having anything to do with that.

Mr. Chabot was able to obtain DNA testing long after he was convicted, and lo and behold it turns out the person who did the sexual assault was Pabst. Therefore, he perjured himself at trial; arguably the state didn't know it, because they believed Pabst when he said he didnt do it.

The court found Chabot's due process rights were violated because his conviction and sentence was "most likely based on perjured testimony." In truth, the only substantive testimony against Chabot came from Pabst.

The court implicitly recognized that if Pabst perjured himself about committing the sexual assault then maybe he also perjured himself about Chabot committing the murder. The case would have been an easy one if Mr. Chabot had been charged with sexual assault. Instead, he was charged with murder, and the court could have easily said that just because he didn't commit the sexual assault doesn't mean he didn't commit the murder. That has been the normal response from the Court in the past, which is one reason why I think this is a significant decision.

The Court's holding is limited, and it probably should be. The convction must be based on the perjured testimony - if it is only a part of the State's case, that is probably not going to be enough.

No matter how limited the holding may be, it is still a step forward for a Court that will never be accused of being defendant friendly. It's also a step forward because its a recognition that innocent people are convicted - something the Court has been reluctant to acknowledge in anything other than slam dunk DNA cases.

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The Supreme Court reversed the 9th Circuit again in McDaniel v. Brown. As with a number of other cases the 9th circuit found for a defendant in a writ of habeas case, and reversed the conviction. That seems to be the recipe for an almost automatic reversal. The opinion was unremarkable except for the discussion of a concept the Court acknowledged as the prosecutor's fallacy.

Mr. Brown was charged with sexual assault. The victim could not identify him, and the evidence was all circumstantial; the type where it could support innocence just as easily as guilt. The most compelling evidence was DNA recovered from sperm on the victim's panties. And it was the DNA evidence that was the focus of the writ proceeding.

Mr. Brown lived with his brother, and there was another brother that also knew the victim. They all lived in the same trailer park, so it was obvious that there would be an issue as to whether the DNA could be attributed to one of the brothers. The argument was over probabilities; according the State's expert, the probability that another person from the general population would have the same DNA profile was 1 in 3,000,000. The defense expert expert said it was more like 1 in 6,500.

The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant is the source of the DNA sample. In other words, you cant take that the above statistic and say the probability that someone other than the defendant committed the offense was 1 in 3,000,000; or that there is a 99.9% chance that the defendant is guilty.

In the end, the interpretation of statistics was not critical to the decision. Even with the lower estimates, the evidence was still sufficient to support the conviction. The case does point out the necessity to challenge State's evidence though. You may need a statistician to do it, but that may be necessary to explain what the numbers mean. After all, 1 in 6,500 is a heck of a lot easier to work with than 1 in 3,000,000.

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