Posted on April 28, 2011 by Walter Reaves

When is Science New?

The Court of Criminal Appeals recently attempted to answer the question of when advances in science can be used to obtain relief after conviction. The usual situation is that a defendant was convicted years ago, and a key part of the State's case was forensic evidence. Since science (or at least our understanding) evolves, what was once well established may now longer be. Exhibit A is arson. In the past the so called experts relied on pour patterns and other indications which we now know exist in almost every fire. The problem is what to do with this new evidence.

The Court of Criminal Appeals has held that a defendant can obtain relief through habeas corpus when they can establish actual innocence based on newly available evidence. You cannot simply argue you were actually innocent; which would basically be retrying the case. You must establish  there is new evidence available that establishes your innocence.

The court address the issue of "new evidence" in Ex Parte Spencer. There, the defendant presented a forensic visual expert (I haven't heard of one either -  it sounds pretty cool), who testified the witnesses could not have seen what they claimed they saw. The court held that was not newly available evidence. They focused on whether the evidence as it originally existed could be retested or reevaluated. Since the scene had changed, and conditions were different, that could not be done..

In my opinion, the court fell into the trap of evaluating everything against DNA evidence. There is no doubt that everyone considers DNA evidence to be the gold standard, and as a result everything has been compared to that. In DNA testing the original evidence is retested, and there is no problem in doing so. However, not all advances in science fit easily into that categorization. Arson is one that immediately comes to mind.

Under the test adopted by the court, the advances in our understanding of fire dynamics would not qualify as new evidence. The scene would have long been destroyed, and pictures would probably not be sufficient. I'm sure there are other areas that will pose the same issues.

As long as forensic science is used in criminal cases, the courts must be open to reevaluating those cases when necessary. Science, and our understanding of different things is constantly evolving;. what we hold as truth today, may deem be discredited tomorrow. To allow a conviction to stand on discredited terrorist testimony can certainly not be considered fair or just.

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Posted on April 17, 2011 by Walter Reaves

So now What?

The Texas Forensic Science Commission finished - at least for now - their review of the Cameron Todd Willingham case. The commission chairman - John Bradley - successfully discharged  his duty, which was to derail any inquiry into the innocence of Willingham. He was able to do so by seeking an attorney general opinion on the scope of their jurisdiction. His heavy handed tactics backfired in part though, as the commissioners staged a mini-revolt last year. The result of that was a hearing on Thursday and Friday.

While they did not make a determination on innocence, they did something far more significant. They acknowledged that arson science had evolved over the years, and  prior convictions may be in question. Review of those cases was suggested, although the scope of such review was not set forth. This is exactly what many - me included - have been requesting for years.

The task is daunting, since there may be thousands who have been convicted on faulty testimony. The first question is no doubt going to be who is responsibility for reviewing the case. In my opinion, it clearly should not be the State fire marshall's office. They have clearly demonstrated they are not competent to conduct such an investigation, since they still refuse to admit the testimony in Willingham was faulty. Scott Henson suggested the attorney general's office, and that would at least be a better choice than the State Fire Marshall.

One of the fundamental concepts of due process is that the State must disclose exculpatory evidence; that obligation should continue even after a defendant is convicted. If that is true, then the prosecutors who obtained the convictions have an obligation to review them. They should have records of those they have prosecuted for arson, and at a minimum notify those defendants or their lawyers.

I would certainly expect the Innocence Project to have a role, and no doubt they will assist in some cases - as they are already doing. Resources are tight though, and unless they State is willing to fund a full review, the burden should be on the state.

I sincerely hope this is a first step. Time will time how many people have been convicted on faulty testimony.

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Posted on April 1, 2011 by Walter Reaves

A step backward in holding prosecutors accountable

Last week I wrote about the Oklahoma Bar filing a grievance against a prosecutor for using a witness in a murder case that he should have known was lying. The following day the Supreme Court decided Connick v. Thompson, and limited the ability to sue a prosecutor for failing to turn over exculpatory. After  he had been convicted of robbery Mr. Thompson learned that the prosecutor had failed to turn over a lab report. He was able to get  his conviction overturned, and  then filed a sued against the Orleans Parish District Attorney. He alleged  that failure to train employees resulted in the violation citizen's constitutional rights.

The argument was basically over what had to be proved. The District Court had held that Thompson did not have to show a pattern of constitutional violations. The Supreme Court disagreed, holding that you have to prove that the DA's office ignored a known or obvious consequence - in other words, you have to show a pattern of violations, which was ignored.

There's a problem with that argument, which is that you generally don't know when evidence has been withheld - because you don't know it exists. It may happen far more than we know about, because there is no way to discover something you don't about it. Unless it's a death  penalty case chances are no one is going to go back and review the evidence.

I don't really believe training is the answer. All prosecutors know you are supposed to turn over exculpatory evidence. The problem lies in determining what is exculpatory and what is not. If you believe someone is guilty, the tendency is to view nothing as exculpatory. For example, the failure of a witness to make an identification just means they didn't have a good view. Some of the problems could be alleviated by turning over everything. But even then, the prosecutor doesn't always have everything in their file; some things be held by the police or other investigators.

Most prosecutors are good, honest lawyers, and they try to do the best they can. They do that because of their individual values and beliefs, and not because of any fear of getting caught. We don't trust everyone to do the right thing, and prosecutors should be no different. There should be some incentive for those who need it. Instead of creating incentives though, we tend to sanction bad behavior. This decision is just one more example of that.

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