Don't get hung up on innocence
Recent advances in science have created a problem in handling old cases where faulty science was used. A problem that is if you are interested in seeking justice. Unfortunately, justice is not the primary focus in post-conviction litigation. The system is far more concerned with protecting old convictions - "finality" is the catch phrase used to wipe problems under the rug.
The problem is highlighted in Scott Greenfield's recent post about problems with the Nassau county crime lab. The problem is what to after you discover the problem. As he points out, the fact that there was an error doesn't mean that a defendant is innocent. No doubt that will be the primary argument of the DA's office. After all, you wouldn't want to let a guilty defendant go just because the lab screwed up would you?
In some cases establishing error is the equivalent of establishing innocence. If the lab says the substance was cocaine and it was actually baking soda, then the defendant can't be guilty of possessing cocaine. However, the link is not so clear in other cases. Evidence - such as DNA - might place a defendant at a scene. There may be other evidence that puts the defendant at the scene, and in those cases he would probably have been convicted without it. But what if it's an important link?
Regular readers - all 2 of them - know I have been involved in several arson cases. In those there is no doubt the evidence establishing arson was faulty. However, in most cases you can never conclusively establish innocence. If it wasn't arson, it wasn't a crime. Proving a negative is always difficult - if not impossible - to do. Just because the State can't prove it was arson doesn't mean you can prove it wasn't. Circumstantial evidence is always an important part of those cases, and the State will still emphasize that - exhibit A is Cameron Todd Willingham.
Hopefully, the Texas legislature is going to address the problem in part by amending the writ laws. The goal is to make it easier to use scientific evidence; generally you need new evidence, and that is often a problem when alleging faulty science. the problem that still remains though is how to establish harm. If you have to establish innocence, there will be few defendants who benefit.
My solution is to shift the focus away from innocence. Instead, look at whether there is any doubt that the defendant would be found not guilty if the current science was used. In other words, if the State didn't have experts who could testify that the fire in Willingham was arson, would he have been convicted. No matter how much Governor Perry and his henchman scream, I think everyone else agrees the answer to that question must be no.
Innocence is great if you can prove it. It's not the controlling inquiry though. Sometimes justice requires releasing those who may not be able to establish innocence; if they never would have been convicted in the first place is it really fair to make them stay in jail? I think not.
