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

I've written several times about the use of forensics in criminal cases and the problems that result when you allow scientists to decide guilt or innocence. Most recently I noted the horrible decision from the Court of Criminals in Ex ParteRobbins that allows convictions to stand even when an expert admits they got it wrong.

The fact that the expert  in Robbins reviewed the case at  all  was amazing enough. Most of the time once a conviction is obtained everyone moves on to the next one. It is up to the defendant to initiate review, and since most defendants don't have lawyers at this point that means the chances of having the case re-reviewed are almost - zero. They  have to be lucky to enough to find a sympathetic lawyer, or have family who know what they are doing.

What  would happen if experts routinely reviewed their prior cases? Or had a duty to do so? Well apparently they do in most places - just not the United States.  I recently came across a blog post titled "Honesty in Forensic Science", written by Anna Sandiford. She had the following to say:

At the end of the day, lawyers are there to deal with the law; forensic scientists are there to deal with the science and it shouldn’t be left to defence lawyers (or prosecutors, come to that) to dig around to see if, on the off-chance, they can find anything amiss with the other side’s expert’s work.  One of the basic rules of examining witnesses is never to ask a question to which you don’t know the answer.

Many times I hear lawyers say how they hated science at school and how having to deal with forensic scientists makes them go cold at the thought – it has to be the duty of the expert to deal with the science and its meaning.  Of course, the reason that independent forensic scientists like me advocate for review of all science being presented in court is so that we can pick up problems like changes in findings that haven’t been notified to the court – not all scientists are transparent about what they do and there are also accidental errors and omissions – we are human after all.

Much to my surprise, she pointed to the guidelines for experts in England and New Zealand which place just such a duty on experts. Too bad we don't have that here.

While you might think this would create a tremendous burden on scientists I don't believe that would be the case. The situations where science changes to a significant degree are relatively few, and scientists know when that happens. They also know better than anyone what cases might be effected, so it makes sense to place the burden on them. And while it is a burden, is it really too much ask someone to go back and re-evaluate an opinion that put someone in prison, or got them convicted?

If experts don't do this, then its up to the courts, and maybe even the legislature. Unfortunately, we've already seen the court's are not the place to resolve the issues, and most representatives are far more concerned with getting re-elected than doing what is right. So perhaps that means the battleground is public opinion.

I'm not sure what the solution is, but the first step is in recognizing there is a problem.  Surely that shouldn't be that hard.

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If there is one thing DNA has done over the last several years it's demonstrate how unreliable eyewitness identifications are. Out of the 250 exonerations so far, 190 of them have involved mistaken identifications. Social scientists and lawyers have known for years that such identifications are not nearly as accurate as everyone believes. The human brain is not a camera, and identifications and memory are based on a number of external factors. I've written about this before - here and here and  for example, and will no doubt continue to do so.

Even with knowledge that eyewitness IDs are flawed, jurors and prosecutors continue to accept them without question. Courts likewise allow identifications, even when the circumstances surrounding the ID are suspect. Years ago the Supreme Court set out guidelines for challenging eyewitness IDs. Those guidelines done almost nothing to limit the use of eyewitness identification in court. The basic premise is that a suggestive identification violates due process. The problem has been in determining what is or is not suggestive. In practice if a witness comes into court and identifies the person, and claims that identification is based on what they saw, it is going to come in.

The Supreme Court may be stepping in.  Adam Liptak of the New York Times wrote about a case the Court agreed to hear earlier this year -  Perry v. New Hampshire. How far they will go is the big question. The question before the Court is extremely limited -  whether due process is only implicated when the suggestive circumstances are the result of police conduct.. As a result, the immediate impact of any holding may not be great. The court could have a huge impact by addressing the broader issues in eyewitness ID's, and emphasizing the role of the trial court as the initial "gatekeeper".

There is at least some hope that the tide is turning, and that jurors will be more discriminating in accepting eyewitness testimony. It's probably too much to ask that prosecutors and judges will follow suit, but you can always hope.

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It's no surprise that John Bradley - DA of Williamson County - is not popular among defense attorneys. It may be after his handling of the Willingham investigation that he's not popular anywhere outside the Governor's office. I'm sure he could care less, and nothing I - or apparently anyone else - can say would phase him. But I feel some obligation to point out the problems with his "innocence be dammed" approach to post-conviction cases.

Let's remember that this the person who is spearheading the effort to get defendants to agree to the destruction of evidence when they plead guilty. That would be all fine and good if everyone who plead guilty did it because they are guilty, but we know that's not the case. Many do it because they are offered too good a deal to pass up, or they are scared. But that's the point of this. Instead, the point is to highlight the dangers of his refusal to agree to post-conviction testing.

The reason for my current rant  is the recent developments in the case of Michael Morton, who has maintained his innocence for years. There are a lot of reasons to accept his claims, even though he was convicted. For starters, the State's theory was that Morton killed his wife because he came home and she was too tired for sex - Seriously. He was eventually convicted, and has been trying to clear his name ever since.

Mr. Morton has wanted to test a crucial piece of evidence - a bandanna found near the scene. It might not be signficant except for the fact that it had the victims DNA on it - along with someone else's.  Someone besides Mr. Morton. Were it up to Mr. Bradley we would never know that. He fought testing for the last six years, and it was only done over his objections. Bradly claimed Morton was "searching for a mystery man, and grasping at straws".  Were it not for the intervention of the Austin Court of Appeals, testing would have never been done.

No one expects prosecutors to be sympathetic to defendants. You should expect them to be concerned about getting the right person. For some - like Mr. Bradley - they refuse to admit that mistakes are made. It must be nice to be that smart and confident. Of course, maybe they aren't really that confident. Maybe they are just scared that they will be proven wrong.

We are dealing with people's lives. Mr. Morton might not be the only victim. If someone else really did commit the offense, he probably has other victims. Victims who may have been saved it the right person was convicted in the first place. The next time you oppose testing why don't you think about that?

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If you've read any of the posts on this blog you know I have an interest in how forensics are used in the criminal justice system. When I first started law school the standard joke was that you went to law school because you flunked science. Many lawyers took that to heart, and made no attempt to understand the science. Granted, it wasn't used that often. But when it was, everyone usually accepted what the "scientist" said.

There's no doubt that has changed over the years. We now know that just because someone is scientist, or has some advanced degree, doesn't make them infallible. We also know that much was portrayed as science is not as accurate as they claimed. There is a lot more subjectivity involved than anyone would have guessed.

Thankfully, education is now available. Texas has one of the best forensic seminars around, and it is put on annually by the Texas Criminal Defense Lawyers Association. The National Association also  has had several programs dealing with forensics in the last few years. What brought this to mind was seeing an article by an author with the Wisconsin Bar Association entitled Forensic evidence: Do criminal lawyers need science training on principles and methods? 

The answer is obviously year, and I hope all criminal defense lawyers are taking advantage of every opportunity they can to learn more about the forensic sciences. If they do, then the justice system may just work like it should  - and not blindly accept the opinions of the scientists who have for too long  have gone unchallenged.

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I've written before about how DNA has been held up as the "gold standard" - the standard against which all other forensic evidence should be measured. As many expected, that declaration was a tad premature.

The problem is not with the actual DNA results. If done properly, it is what it is. Anyone who has seen DNA results knows there is a sequence of numbers, and graphs from the actual tests. The problem comes when a human being looks at that data, and interprets it. At that point problems can arise - including subjectivity.

Itiel Dror and Greg Hampikian recently published a paper titled Subjectivity and Bias in forensic DNA mixture interpretation. They wanted to address the potential problems in interpreting evidence when there may be multiple suspects. The situation most commonly occurs in sexual assault cases where there are multiple perpetrators. There may not be enough to conclusively identify one person, but there may be enough to say an individual cannot be excluded - which in the minds of most jurors means you must have done it.

They obtained an actual case out of Georgia that involved a gang rape. One of the alleged suspects identified and testified against the others. The results of the DNA analysis - by examiners who knew who the suspects were - could not exclude the others, which corroborated the co-defendant testimony.

The actual data was submitted to 17 qualified analysts who routinely do forensic work. No other facts were sent, so the examiners did not know who the suspects were. The results obtained without that contextual information were startling. Only one of the 17 agreed with the original examiner. Even more startling is that 12 examiners would have EXCLUDED the suspect they looked at. The remaining 4 would have called the results inconclusive.

The implications are clearly serious - the corroborating evidence didn't corroborate the co-defendant, but actually contradicted him. Even more troubling though is the unmistakable conclusion that subjectivity does in fact play a role - even if not a conscious one. The probability that this was the result of a simple mistake is simply not believable. Perhaps if the consensus was the data was inconclusive you might chalk it up to a difference in opinion. But when so many examiners read the evidence the exact opposite something more is at play

How - or even if - the scientific community addresses this problem is an open question. The lesson for lawyers is clear. You cannot simply rely on the state's experts, who performed their analysis with knowledge of the facts and who the police were trying to build a case against. You must have someone else look at the evidence, and if their results are different challenge.

As for those already convicted, that will have to be a subject for another post.

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