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

This post has absolutely nothing to do with the law. However, it has everything to do with practice of law.

My wife finally lost her 8 year battle with cancer last month. Like so many other cancer victims I have known she suffered through chemotherapy, radiation and all the unpleasant side effects which no one ever tells you about. Pain was an something she dealt with every day; what would keep me home in bed was a good day for her. She was the epitome of courage, and a shining example of how to deal with adversity. Instead of lashing out and feeling sorry for herself, she always looked for ways to make the best of her situation. If you didn't know her you would have never known how sick she really was.

You might say I'm biased because I was married to her for the last 29 years - and you would be right. But I'm not the only one who felt this  way. Which gets me to the topic I want to address.

My wife was a teacher, and loved what she did. She taught at a private Catholic school - for a salary far less than she could have received anywhere else. But she didn't do it for the money; she did it because she loved what she did, and loved the children she taught. People frequently talk about finding your passion - and she certainly had a passion for children, and passing on her faith. She truly cared about all the children she taught. And it wasn't just the good ones; I think she worried more about the ones who gave her problems. She truly believed that God was present in everyone - even if they did their best to hide it. She always looked for the best in everyone, and nothing could make her angrier than someone not treating one of her students the same. She was the ultimate advocate, who stood up for her student's on more than one occasion.

When it came time for her funeral the church was packed. There were more students, former students and parents than I would ever have imagined. Two of her former students gave eulogies, and talked about what an impact she had on them. Many more have told me the same thing both before the funeral, and since. Although the stories are different, they are also  the same. They all know she wanted wanted was truly best for them, and didn't mind telling them when they were heading down the wrong path, or praising them for the good choices they made.

The older you get the more you realize that death is a part of life.  You also start wondering how people are going to remember you. Are they going to be happy you are gone, or grieve at your passing? Ultimately, your legacy is the impact you had on other people. Did you do something to make life better for others? In legal marketing terminology, the question might be if you add value. If you are passionate about what you do, and strive to help others, your life will be a success. Her job was a teacher - but it was more than a job to her. In my opinion she succeeded beyond measure.

Several years ago I read a book by Father Larry Richards called Be a Man. One of the things he suggested you think about was what you want people to say at your funeral. You then live your life with that in mind. Do you want people to say you made a lot of money, or you were on the first page of page of Google or had 1,000 facebook fans? You want people to talk about the impact you had on their lives - for the positive. As lawyers we deal with people in desperate situations, and literally hold their future in our hands. Recognize this and do everything you can to help, and they will be forever grateful.

I realize your former clients probably aren't going to come to your funeral - much less speak at it. But they are going to think about you. What's important is that you treat them just as you would a member of your family (hopefully you get along with them). If you do that you might not get rich, or be the number one lawyer on the internet, but you will have made difference. And that is what's really important.

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Earlier I wrote about a law review article that reviewed cases where defendants had been subsequently cleared by DNA evidence. I reviewed the types of evidence which  typically lead to wrongful convictions. In this post I want to review the failure of the post-conviction process to weed out innocence cases.

The study reviewed 200 cases; out of those there were a total of 133 defendants who received written decisions in their cases 60 of those defendants raised sufficiency.of evidence claims, and only 1 was successful. The most successful claims were ones raising a state law evidence claim - if you consider 8% successful. The second most successful claim was ineffective assistance - 11%.

Eighteen of the defendants received reversals, which is a 14% reversal rate. 12 of those were retried, some of them multiple times. In contrast, in the comparison group (similar cases where there was no exoneration) the reversal rate was not much different - 10%.

One fact I found interesting was the impact of harmless error, which means the court finds there was some error but it didn't contribute to the verdict. 32% of the decisions relied on harmless error in denying relief. In 10% of the cases the court referred to the evidence of guilt as "overwhelming"!

To be fair, not all claims involve claims of innocence. In the study 25% (33 defendants) of the defendants raised innocence related claims. Only 3 were successful, all on Brady claims. Sixteen of the exonerees raised claims of innocence based on newly discovered evidence - none were successful.

The study also reviewed DNA claims. Many of defendants who ultimately were exonerated had been denied DNA testing - some on multiple occasions. There were even some who obtained DNA results, and still had relief denied.

So what does all this mean? The obvious answer is that courts do a poor job of evaluating innocence.  The study notes that factual claims are not "privileged", and that the system is skewed toward procedural claims. Part of that is the court's reluctance to second guess jury verdicts; the fact is that once you are found guilty the courts presume you are guilty. Courts must look solely at the record, which may be incomplete. As it stands now, there is no way to fill in the gaps.

Even when a direct claim of innocence is not made, it is still an issue. To obtain relief you have to show harm, which means the error influenced he trial. As the study demonstrates, courts are not hesitant to evaluate evidence of guilty. I wonder if the judges who declared evidence "overwhelming" have second thoughts - or regrets.

What all this shows is a system biased toward affirming convictions. Until courts are willing to accept responsibility for ferreting out viable claims of innocence, there will be no change. Not only is a change in the mindset needed, procedural changes are also necessary so that advocates the resources and ability to raise claims of innocence. Something must be done, because no one deserves to remain in jail for years before his innocence is recognized.

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Thanks to the Charles Smith Smith blog I was able to read the keynote address to the 2010 Fire Investigation Science and Technology Conference. The address was given by a leading arson expert - Daniel Churchward - and titled "Fire Investigation is Still Art and Not Science".

Mr. Churchward pulled no punches, and I imagine was not the most popular person at the conference. Which I think make his remarks even more significant.

For starters, he criticized the training of fire investigators, noting that they don't have to meet any standards, nor do they need to show any level of competency. He also criticized the refusal to accept fire science by many veteran investigators because it was contrary to what they have always been taught. Much of what they have been taught is by people they respect and trust, and by accepting something different they have to accept that were misinformed, and have been doing it wrong for years. He quoted from Carl Sagan who said that "If we've been bamboozled long enough, we tend to reject any evidence of the bamboozle."

One of the more interesting subjects he addressed was the effect of not having understanding of the chemistry and physics as it relates to fire initiation and growth. He notes:

Without a rudimentary knowledge of such relationships, the fire investigator can only apply his acquired logic to what he sees. Logic is a terrible means to scientific thinking. It is what got us a flat earth, witchcraft and crop circles. This lack of scientific educational baseline creates the probability of considerable error in any hypotheses formed by this analysis

He criticized the so called tests or experiments they do at fire schools using the example of igniting a flammable liquid in a room and observing what happens. Without scientific knowledge you  have now way of determining what was observed was unique, or present in fires with no flammable liquids. He also notes that the lack of basic knowledge prevents investigators from being able to "kick the tires of some proposed theory they have just heard at a fire seminar."

Here's what else he has to say about the lack of basic knowledge:

The lack of knowledge of physical and chemical phenomena allows for the development of incorrect beliefs by fire investigators. It tolerates the creation of myths and rules of thumb. Further, it allows for the perpetuation of the process by letting that same investigator, as he gains experience, to “educate” his younger associates on the same misconceptions. It gives that poorly educated investigator the perception that he is knowledgeable and therefore correct in his determinations.

Mr. Churchward also talks about the concept of "negative corpus", which is the methodology whereby one determines the cause of fire by elimination of all identified or perceived ignition sources within an area of origin.  The problem -  among many - if what if you get the area of origin wrong?

Many of the problems can be traced to a lack of training. He describes a test he did at a training seminar where they asked attendees to determine what happened by looking at fire damage. The result was a 75% failure rate. In other words, the chances are way better than 50-50 that the fire investigator gets it wrong. It doesn't send shivers down your spine the next part should.

He talks about the inherent bias most investigators have, which causes them to focus on factors that have nothing to do with the fire's inception. Those include:

1. The fire victim was not financially secure

2. The home was either for sale or in need of repair

3. The fire victim been in the structure just prior to the development of the fire

4. The fire victim was either unsavory or had previous experiences such as another fire or previous arrests

5. The physical evidence from the fire cannot be explained by the investigator

As he notes, if you have a fire today and one of those circumstances exist you are going to experience a very unpleasant situation.

Mr. Churchward also notes the bias that fire investigators must have. Insurance companies want answers - preferably one that says arson so they don't have to pay. As he notes, telling a client you don't know what caused the fire is not going to get you much work.

He also lays the blame on the judges, noting that rarely will a fire investigator be declared unqualified. Most of those are in civil, and not criminal cases.

I'm sure Mr. Churchward's call for more training, and mandatory certification was not well received. My guess is that if you required certification exams which mirrored real world situations most would be out of a job. Nevertheless, it's nice to see someone who knows what they are doing addressing the problem - in hostile territory no less.

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I recently read a Law Review article titled "Judging Innocence", by Brandon Garrett a professor at the University of Virginia Law School. If you are so inclined, The article was based on a study of all the DNA exonerations, which was 200 at the time. The purpose was to review the claims made in the post-conviction litigation, and see how successful courts were at identifying factually innocent defendants. As you would guess, the answer is not too well. The author also identified a control group of similar cases to determine if there is any difference in how they were handled.

The article contains a lot of data, and enough tables to make a scientist proud. I cannot hope to cover everything in one post, so I thought I would divide it into several.

We already know the types of evidence used to obtain wrongful convictions. 79% involved eyewitness identification, 57% involved faulty forensics, 18% involved informant testimony and 16% involved confessions. Given the prevalence of eyewitness ID's, you would think that challenges in the post-conviction process would be fairly common. After all, you know you didn't do it, so the ID has to be bad. Only 28% percent of the wrongfully convicted defendants challenged the constitutionality of the identification though. That result is no doubt due to the difficulty of making such a claim; of those who made such claims, none were successful. In other words, there is almost no way to challenge a mis-identification on appeal.

Challenges to forensic evidence didn't fare much better. 32% of defendants challenged such evidence on some basis, and only 8% were successful. What I found interesting was how forensics were used. The study found that more than 1/2 of the cases involved improper testimony by the forensic examiners; in other words, it was improper based on the science known at the time. Even with that, challenges were rarely successful.

There was little new about hair evidence. It's not only unreliable; the experts also tended to say more than should have been able to.

Another interesting fact is that many of the cases involved more than one type of evidence. For example, there were cases involving both bad ID's and faulty forensics, as well as other combinations. The fact that the one corroborated the didn't make them reliable.

So what does this tell us? Among other things I believe it is that the post-conviction is not good at providing relief for innocent defendants. For those who faith in the justice to uncover mistakes, its misplaced. There a probably many reasons for that, will be discussed in future posts. Stay tuned.

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Those lawyers who regularly file post-conviction motions often wonder whether the court actually reads them before they deny them. The process in most Texas counties is for the District Attorney to prepare proposed findings and present those to the judge. In the majority of cases those findings are signed without revision. I'm sure there are judges who review them to some degree, but I've also seen cases where it is obvious they didn't do anything more than put their signature on it.

I always thought the process was different in federal court. After all, they have law clerks who review everything and write memos and that sort of thing. Those are usually the top law school graduates, so you would expect them to get things right. A recent case out of the Fifth Circuit has me wondering just how much they look at what they are doing.

The case is Arnold v. Thaler, No. 08-50181 (5th Cir., January 5, 2011) The facts were pretty straightforward. Two plea offers were made, which the lawyer never conveyed to the client. Meanwhile, the prosecutor learned more about the defendant, and increased the offer. That offer - 40 years - was conveyed to the defendant and rejected. When he learned there was an earlier offer of 15 years he filed a motion for new trial. Everyone agreed that the earlier offers were never conveyed, and Mr Arnold submitted an affidavit stating if he had known of the offer he would have "considered" it. Nevertheless, the Court denied the motion. The reason was that he thought Arnold had rejected the offer; he had rejected an offer, but it was the 40 year offer and not the earlier offers. In other words, he didn't understand the facts.

The court of appeals probably recognized they couldn't affirm on that basis, so they came up with a new reason. They held that the new facts discovered by the prosecutor "changed the premises" of  the original offer. I have no idea what that has to do anything, but they thought it was important. Not wanting to confuse things, they didn't address the period between the making of the offer and the discovery of the new information - in other words the time during which the offer could have been accepted.

So now we go into federal court, and file a writ of habeas corpus. In his petition Mr. Arnold stated that if he had known of the offer he would accepted. He also submitted an affidavit stating the same thing, and explaining that is what he meant in the affidavit that was submitted for he motion for new trial. In other words he alleged everything the courts have said you need to prove to obtain relief; an offer was made and not conveyed, and had it been conveyed it would have been accepted.

This time it was the federal court's turn to ignore the facts. They denied relief, holding that nowhere in the pleadings did Arnold say he would have accepted the offer. Huh...It was in his petition and his affidavit. Maybe it wasn't all in caps. Thankfully the Fifth Circuit finally came to the rescue. They held that the district court's finding was "clearly erroneous".

You have to wonder how so many courts got it so wrong. I haven't seen the pleadings, so I don't know if there is bad handwriting or what. To be fair, I get a lot of inmate mail, and much of it is barely difficult to read and understand. They may have a good point, but it's buried in 20 pages of stuff that makes no sense, or has nothing to do with the case. Somewhere  along the line though you would think somebody would catch it.

I tend to believe that part of the problem is the desire to deny relief; no court likes to overturn a conviction, and they look for ways to avoid doing so.In fact, the whole post-conviction system is designed to prevent overturning convictions. Even with that though, there are certain claims the courts generally take seriously; the failure to convey plea offers is one of them. Courts also usually take notice when the District Attorney agrees with something.  As you can imagine, that doesn't happen often.

Some might look at this at an example of how the system works. I suppose that's true in some respects. But is that enough. Is it too much to expect  courts to get it right the first time? There were a lot of resources wasted in this case that could have been spent doing something else. I realize all courts are overworked, and have limited resources. But hey, that's what they signed up for.

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The Texas Forensic Commission met last week, and as usual they provided a lot to write about. As usual, Dave Mann and the Texas Observer have by the far most complete coverage on the meeting.

Unlike prior meetings, there is more to talk about than what a complete lackey for the governor John Bradley is. Don't worry, He's still focused on making the governor look good - i.e. prove Cameron Todd Willingham was really guilty. He took the lead in grilling and ridiculing anyone who would suggest otherwise. But the real shocker came from the State Fire Marshall's office.

For some inexplicable reason they chose to send a lawyer - Ed Salazar. He proceeded to try and explain how the original investigators got it right. According to Mr. Salazar, the only thing they should have done differently was write a more detailed report. This was after the morning had been spent tearing apart every part of the original investigator by two of the leading fire scientists in the country - John DeHaan and Craig Beyler. Everyone except Bradley received the testimony with a heavy dose of incredulity. He stood firm though, and was followed by an investigator with the Houston Fire Department who had the major "Duh" statement of the day - there's some conflict between scientists and fire investigators.

To show how ridiculous their position was, here is how they explained their continued reliance on  pour patterns. They recognized that "fall down" debris could create the same impression. However, the first thing they did was sweep away everything to see if there any patterns - without documenting anything. So there is no way to tell if he debris could have created the pattern. I had thought that everyone - even non-scientist fire investigators - recognized that "pour patterns" couldn't tell you anything. Guess I was wrong.

Commission member Sarah Karrigan took the lead in asking whether there is any obligation to go back and review old cases. Mr. Salazar never answered the question, which means a big no. Of course, why would they need to go back and review old cases when everything seems to be just fine.

Unfortunately, this is not a knew situation. Despite the constant stream of exonerrations most of those in law enforcement refuse to recognize their is a problem. They may accept that someone else could get it wrong, but not them. When someone recognizes there might be problems - a Craig Watkins for example - look at what happens. Even if Dallas had problems no one else do you really think that if other DA's took that same approach he results would not be the same? Yet it is easy to go in blissful ignorance; as long as no one looks there aren't any problems.

It's pretty obvious that the Fire Marshall's obvious didn't know what they were doing then, and still don't. That should be major concern to everyone; if the leading agency in the State can't be trusted to get the right result, then how can we have confidence in any of the prior arson convictions. I think the obvious answer is no. There's no telling how many people are in jail for accidental fires; and we are never going to know until an independent review is done. One that the Fire Marshall is not involved in. I've said before that we need to do away with the State Fire Marshall's office - that should even be more obvious now.

As long as no one looks, everything is just fine. It's time to start looking.

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