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

As expected, the Texas Forensic Science Commission meeting yesterday has been extensively. I believe the initial strategy was to delay, and hope interest in Willingham would die down. Thanks to the efforts of numerous groups, that has not happened. Apparently the governor's office finally realized they were going to have do something - in other words, on to plan B.

I have always had serious concerns about the Forensic Commission taking up the Willingham case. I never for a minute thought the state would admit they executed an innocent person - no matter how obvious it is. Although I knew no one could attack the scientists who have critiqued the investigation, that has never stopped the State before. They are the State, and for many it's enough to say we don't believe it. I always thought the most logical approach was to admit there were problems, but claim they did the best they could at the time. In fact, that is exactly what they did.

For awhile I got my hopes up. The first Chairman  (or presiding officer) was Sam Bassett. He apparently didn't get the memo, and mistakenly thought the commission's job was to investigate, and uncover problems. They did that - and we all know what happened when they were close to discussing the report of Craig Beyler. What I didn't know before this week was some of the behind the scenes maneuverings.

I wrote last week about the memo that was prepared on the issue of jurisdiction. Sam Bassett submitted a response, which he was kind enough to share with me. Needless to say, he thought the commission's jurisdiction was not  so limited. He noted the memo was employing an extremely restrictive - and in some cases nonsensical - reading of the statutory language. He also pointed out that this discussion had already taken place. The following is from Mr. Bassett's memo:

In February 2009, when questions concerning the authority of the FSC to conduct the investigation on the Willingham and Moon case were raised by members of the Governor's staff, the undersigned personally contacted Senator Whitmire's office to ensure the FSC was not overstepping its authority. On February 26, 2009, Larance Coleman, who advises the Senator on criminal justice issues, stated to the FSC chair that the FSC was doing what it was supposed to be doing.

The focus on the recent memo was on ascertaining legislative intent. The memo did everything but to go the source - i.e. the legislators who passed the bill authorizing the commission.

Mr. Bassett also addressed Mr. Bradley's concern over defining professional negligence and misconduct. That had also been discussed, and decided. The previous commission recognized that professional organizations did not define those terms, and therefore there was no recognized definition. They concluded they would be overstepping their authority to define terms that the legislature itself had not defined. Of course, the lack of such authority was not impediment to the current commission.

I think the clear reading of all this is that the governor's office did not like the way the commission was operating, and tried to change it. When that didn't work, they did what only the governor can do - change the commission. There should be no doubt that the current chairman knows what the goal of the commission is. So far, he appears to be right on target.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I'm one of the newest members of the American Academy of Forensic Sciences, and was anxiously waiting for my first journal. It arrived several weeks ago - in 2 volumes - and I started looking at the articles. Most are highly technical - but there are a few that deal with criminal justice issues. I'll cover other topics in subsequent posts,  but thought I would start with an article on fingerprints.

The title is "Emotional Experiences and Motivating Factors Associated with Fingerprint Analysis", and was written by David Charlton, Peter A.F. Fraser-Mackenzie and Itiel E. Dror. They conducted a study to determine what impact emotional factors had on the typical day to day work of a fingerprint examiner. Despite what many believe, fingerprint analysis is not as objective - and cut and dried - as many people think. Other studies have shown that the same fingerprint examiner may not reach the same conclusion - depending on the background information provided. So what did they find out?

What is certain as a result of this study is that fingerprint examiners not only are emotionally driven and motivated to achieve results for themselves, their employees, police and wider society, but also are influenced by more subtle psychological factors such as need for closure that exert leverage upon the decision-making thresholds of examiners that may, in the right circumstances, lead to erroneous conclusions should the context and the motivation be strong enough.

So what does that mean? One thing they discovered was the need to close a case - which is strongest in high profile and serious cases - may result in the decision threshold being lowered. In other words, they are more likely to call a match. As you would guess, the examiners wouldn't be aware of such influences, and would probably feel they had been objective and reached the correct result.

This article is yet another attack on the sacred position of fingerprints. They are not the error proof - definitive evidence - that fingerprint examiners have always tried to convey. In other words, fingerprint examiners can be wrong. By identifying the potential for mistakes, not only can bad identifications be challenged, procedures can be put in place to limit mistakes in the future.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission.  Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Another thing that struck me, was  the definition of what is a forensic discipline. If it's not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature's exemptions - latent fingerprint examination and breath tests. If those two areas don't involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their "scientific" their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.

The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting - they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In this day of instaneous communication the news that the Supreme Court agreed to hear Hank Skinner's case is old news. in case you haven't heard, Skinner is sentenced to death, and has been requesting DNA testing which he claims will establish his innocence. Predicatbly, the State has opposed testing, and the courts have agreed.

I wrote before about this - in that post I compared Skinner's case with Cameron Todd Willingham, and wondered why the governor didn't learn anything from that case. You would think that with all the criticism and condemnation that case has created, you would want to avoid a repeat. Yet here we are again.

I think the vast majority of people believe that if there is evidence it should be tested. After all, what do you have to lose - other than time. If Skinner really is guilty is it all that important to execute him next month instead of next year? I understand there are some who think the process drags on too long, but look at the alternative. What if he is innocent - is speed more important than getting it right?

The only thing the State accomplishes by opposing testing is creating a controversy, and raising questions. Some will think they have something to hide - and maybe they do. Maybe they don't they grasp the concept that most of society actually believes that some people who are convicted are actually innocent. In fact, it has become common to see stories of people who have been exonerated after spending years in prison.

I realize the request in this case is being made at the last minute, and probably could have been presented earlier. Do some defendants play the system to buy time? Maybe so, but that doesn't mean they all are. Where the alternative is as final as it is here, I think you have to give the defendant the benefit of the doubt - at least where the request is not obviously frivolous.

What it really boils down to is that this is what is in the prosecutor's playbook. They have been conditioned to reject requests for testing - especially in death penalty cases. The reaction is almost automatic, and common sense is not going to get in the way. That is why it is up to the courts to occassionally legislate common sense. Let's hope they do so here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I can’t say that I’m surprised anymore by anything the Texas forensic commission does. To be fair, to be fair, it’s not actually the commission, but it’s chairman - John Bradley. So far the condition has not had a chance to do anything; not only they have not done anything, they can’t even talk about what they are not doing because Mr. Bradley has instructed them to not talk to anyone about commission business.

The latest news from the Texas Forensic Commission that makes you scratch your head is the decision to deal with the case of Cameron Todd Willingham. Those who have been following this know that it was the commission’s decision to hear evidence from Dr. Craig Beyler that caused the jet governor to jump in at the last minute and remove several of the commission members. Now Mr. Bradley has apparently decided that they will take up the case, and appointed a committee to do that. It should be no surprise that he is a member of the three-person committee. It also should be no surprise that they are going to meet behind closed doors next week. What is a surprise is that the confirmation of the committee appointments is on the agenda for the day after the scheduled meeting. In other words, they are going to meet before the full commission  has even approved the committee appointments.

Even those who harbored doubts initially now recognize that the committee’s actions are entirely political. Few doubted the governors last minute decision to replace committee members was meant to postpone consideration of the Willingham case. Some had doubts that there was any agreement with the chairman to delay the case, or scuttle it entirely. Those doubts have since been removed also. Almost everyone now agrees that nothing is going to happen until after the election.

What surprises me is that despite the consensus of opinion regarding the commission, Mr. Bradley is either oblivious to it, or doesn’t care. I sincerely doubt he is oblivious, since every major newspaper in the state has been critical of his actions. Not only has he done nothing to try and dispel the concerns, he appears to have gone out of his way to create new ones. You can only assume that both he and the governor shares the opinion that they simply do not care what everyone thinks.

I’ve said before that the commission has lost any credibility it may have had. As such, I wonder why we are even wasting time looking at what they are doing. No matter what they do it’s going to be suspect, and will not achieve the goals the legislature had in mind when they created the commission. Those goals were admirable ones, but like many good ideas it has gone terribly to astray. The best thing the legislature can do now is scuttle the current commission and go back to the drawing board

I doubt they will do that. Instead we will all watch what happens next week with the same morbid curiosity that draws people to slow down when they pass an accident. I admit, I’ll probably be one of those.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There's no shortage of criticism over the impending execution of Hank Skinner in Texas. The Medellin Innocence project has been pushing for new DNA testing. A number of people have come down on Skinner's side. For more information you can go to Stand Down Texas for links to resources and coverage.

The controversy exists mainly because Skinner's previous lawyers didn't request testing of all the evidence. The State did allow testing of some evidence in 2000, apparently believing that it would confirm Skinner's guilt - it didn't.  Instead the test results raised questions about Skinner's guilt.

What bothers me about me most about this case is the complete failure to learn from history. I'm certainly not the first to point out the similarities with Cameron Todd Willingham's case. Officials and courts refused to acknowledge questions of innocence, and the debate still continues. Does the state seriously believe that the thing is not going to happen with Skinner? The case will provide even more evidence to those who believe Texas is more interested in vengeance and  procedure than justice.

Governor Perry has a chance to step in and prove everyone wrong in this case; he can grant a stay, and allow the courts another opportunity to look at - and test - the evidence. If he doesn't, it is damning evidence of his true character.

Any person with a conscience would want to avoid at all costs what happened with Willingham. I realize he has stated how convinced he is of Willingham's guilt, but no rational person can seriously believe that. Even if you believe he is guilty, no one could seriously argue that he would be convicted today without scientific evidence that the fire was intentionally set. I can't imagine anyone living with that on their conscience; if it doesn't bother you, you have to wonder if there is a conscience.

I've talked before about my religious beliefs and convictions - specifically that we are all going to answer for the decisions we make on earth. I truly believe what we do now has eternal consequences. The sad thing is that most of those who support Governor Perry - and probably the governor himself - claim to believe the same thing. I don't think you get a  pass just because you are in politics - or "following the law" and accepting the judgment of the courts. In fact, I think the power you wield makes those arguments even less successful. They sound good, but the fact is he does have the power to question those decisions.

It's clear that the decision he made on Willingham hasn't effected his political future. If anything its enhance it; he was able to survive a primary without a runoff, and is now being talked about for national office. for his sake, I hope he has thought about his future beyond politics. I don't know how things work, and if you can redeem yourself for bad decisions. personally, I believe you can. The governor has a chance to prove he learned something from Willingham - let's hope he takes advantage of it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I really wanted to attend the annual meeting of the American Academy of Forensic Sciences last week. It wasn't just the presentations - I wanted to see the reaction to the "takedown" by the NAS report. By now everyone knows that report pointed out problems - some severe - with everything except DNA evidence. I expected an attack on the NAS report itself. Instead, it appears most agree with the substance of the report, and agree their are problems.

The them of the conference  was "Putting our house in order", which is telling. According the president-elect a nationwide critique is "long overdue". I was pleased to see that DOJ has already started funding research on fingerprint reliability and fire-debris analysis. Let's hope that  goes more quickly than the NAS report - which took almost 4 years to get out

One thing they don't agree with is the recommendation that forensic labs be independent of the police. I don't ever expect that to happen, but that was one of the more important recommendations. Too many problems arise out of close relationship between the police and the labs. That includes context bias - which is interpreting evidence in light of what you expect to find. The only remedy for that is for the scientist to have no information on the case - in other words, they won't know whether they helping or hurting the prosecution.

The jury is still out on what impact all this is going to have on criminal defendants. So far, things don't seem to have changed much. Questionable evidence is still being admitted, many times for no reason other than it has been admitted before.  It remains our obligation to challenge the evidence and educate judges on the issues. Who knows what we will accomplish if we keeping pushing.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Star Telegram had an article addressing the debate over the use of forensic testimony in criminal cases. They had the audacity to point out the conclusion of the National Academy of Sciences report that ballistics is not science - it's an opinion. Of course, that drew responses from crime labs, and those who regularly testify on such matters. The point of the article was not to answer the question of whether it's science or not, but point out the issues are currently being debated. In Texas, these type of issues were supposed to be addressed by the Texas forensic Science Commission.

Lawyers are known (despised) for arguing over words - yet we don't challenge the use of the term "science". So what is the definition? Here's one:

The word science comes from the Latin "scientia," meaning knowledge.

How do we define science? According to Webster's New Collegiate Dictionary, the definition of science is "knowledge attained through study or practice," or "knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world."

 As far as I'm concerned, a crticical part of science is utilization of the scientific method. What does that mean? While its been a long time since I was in school, it basically means formulating a hypothesis, and then testing to see if its true. Rigorous testing means attempting to disprove the hypothesis. If you can't disprove it, then it's probably scientific.

So how does this apply to fields such as ballistics, fingerprints and blood spatter? I don't think it does. The underlying assumptions for those disciplines  has never been established: i.e. there are no studies establishing that no two fingerprints are the same, or guns put the same marks on bullets to the exclusion of all other guns. Ultimately, all those fields are based on one thing - observation.

The problem with observation is that no matter what procedures you follow, the ultimate decision is subjective.That is the problem with those fields; if something is true, everyone that looks at it should reach the same conclusions. If you have two equally qualified experts reaching different conclusions, that's not scientific.

Another problem is determing who is an expert. Is it someone who looks at a lot of fingerprints or ballistics. Does that mean they are able to accurately look at something at make comparisons. Why don't we use artists - who have a discerning eye for detail? Also, if it's nothing more than making comparisons, why do you need an expert?

We need to start addressing this type of testimony for what it is - opinion. What's the answer? I don't know. Perhaps its the use of court experts, or perhaps its in limiting the use of such testimony, or providing limiting instructions. Something needs to be done, because there is no doubt that as long as you have competing opinions one of them is likely to be wrong - and it is justly likely to be the state's expert as the defense expert.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Wednesday afternoon massacre is now history, and the question is what's next for the Texas Forensic Commission. I'm referring to Gov. Perry's decision on Wednesday to replace 3 members of the commission -which included the chairman - two days before they were scheduled to meet and discuss the findings of Dr. Craig Beyler. If you've been on a deserted island for awhile, Dr. Beyler was hired by the commission to review the cases of Cameron Willingham and Ernest Willis. He reached the same conclusion all the other experts had, which was that fire was not inentionally set. Of course if there was no arson, there was no crime. The problem of course is that Cameron Todd Willingham has already been executed. To make things worse, he was executed even though Gov. Perry was furnished with a report from another expert which suggested the fire was not intentionally set.

I've said before that I never had much faith that the forensic commission was going to accomplish anything useful. After all, its a political body, which Gov. Perry so emphatically emphasized by his recent actions. The question now is how the commission is going to deal with the case.

No matter what his public remarks may be (i.e. the "air quotes" around experts), I don't think Gov. Perry is stupid enough to believe that the facts are going to miraculously change. The case has already been reviewed by all the leading experts, and they all reached the same conclusion. For anyone to contradict that now would be suspect to say the least. So I think you have to conclude that at a minimum the testimony that sent to Todd Willingham to his death was completely false.

Grits recently wrote about the question I have always had about this whole process; what can they really do. They aren't going to admit they killed an innocent person, and that is probably beyond the scope of their charge anyway. They could come up with guidelines for using expert testimony, and there certainly is room for improvement there. They could also make a statement about arson science, which I doubt that they will do because of the impact it could have on other cases. Grits suggests they will just take the case off the agenda, and I think he probably has a point.

Realistically, I don't think anyone expects the Governor's hand picked chairman to do anything that puts him in a bad light - especially in the middle of a contested election. There is no way to do anything on this case without doing that.  By keeping the case on the agenda it also keeps it before the general  public. And the more Gov. Perry tries to defend what he did the more he looks like an idiot. The best thing that could happen for him would be for the case to go away. While that might never happen, the next best thing for them would be to stop doing things to draw attention to it.

So my prediction is that the new chairman will take his time, and after the passage of sufficient amount ot time - to convince everyone they fully reviewed the matter - they will vote to remove the case from the commission's agenda. No doubt it will be accompanied by some statement that there are other more important matters for the commission to address that will have more of an impact on future cases. As for the latter statement, there is a lot of truth in it. The way courts handle forensic evidence does need to be overhauled.

I guess time will tell - I'm  not holding my breath for anything to happen soon though.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

My office got a call yesterday afternoon telling me the forensic commission meeting scheduled for Friday had been cancelled. Like most I was surprised. The meeting had been scheduled for months, an agenda had been set, and people had made travel arrangements. Later I found out why it was cancelled - Governor Perry decided to replace 3 of the members, including the chairman. The new chair was none other than the prosecution's "go to" guy - John Bradley.

I'm not sure whether Governor Perry thinks everyone is stupid, or he just doesn't care. You would think someone would have pointed out the ramifications of what he was doing. Last week he expressed his belief in Cameron Todd Willingham's guilt, and became the first person to question the expert's conclusions. Now, when Dr. Beyler is scheduled to come discuss the case with them he replaces the chairman, and has them cancel the meeting. Does he truly think anyone does not see this for what it is - an attempt to manipulate the outcome.

Surely he doesn't think this is going to fly under the radar. I can't remember a story that has generated as much coverage as Todd Willingham's. Every day there are several new stories or editorials across the country (and the world) talking about this. Everyone is following it - and now everyone knows what happened, because the cancellation of the meeting is sure to gain just as much press.

I said when they first started looking at this case that I didn't think anything was going to happen. It was a political commission, and I expected politics to influence the ultimate decision. I was as surprised as anyone when Dr. Beyler's report came out. The only person who may have been more surprised was Governor Perry. It obviously didn't turn out the way he wanted, and now he wants to change things. If you don't believe they have already discussed this case you have to believe that Governor Perry believes his new appointee is going to be an advocate of Todd Willingham's guilt.

One thing he did accomplish is to effectively negate the impact of the forensic commission. I don't see how anyone will take seriously anything they do from here on.

When I read the reports last night it reminded of the 6 year old who gets mad and takes his ball so they have to stop the game; if you aren't going to play the way I want we aren't going to play at all. I'm far from politically savvy, but you have to wonder if this may not turn out to be the signature on the Governor's death warrant for his campaign. After all, who wants a Governor who thows tantrums like a 6-year-old?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Judiciary committee held a hearing today on forensics in the criminal justice system. The focus was mainly on what to with the recommendations made by the National Academy of Sciences in their recent report.

One of the witnesses was the city of Houston's chief of police. In answering a question he suggested moving toward an increased use of DNA evidence. Specifically, he noted how much more reliable DNA evidence would be than fingerprints in prosecuting property crimes. He has a point - the question is whether state's will ever devote the resources necessary to processing all crimes for DNA evidence. As it stands now, "touch" DNA is almost never processed or utilized; the use of DNA is limited to serious crimes, which generally means rapes and murders. There's a backlog now - just imagine what it would be if you started routinely collecting DNA evidence.

I've written before about the increasing acceptance of the fact that fingerprints are not as reliable as people have been led to believe. There is no doubt that fingerprint identification is extremely reliable when you are comparing complete prints. The problem is with the type of prints usually left at crime scenes. If DNA was used more often we might find out just how unreliable (or reliable) they really are.

I'm sure its a long way off, but I think the police chief may be on to something; some day

there may no longer be a need to rely on fingerpints.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I've been at the Annual Conference on Actual Innocence at Plano - I lost count of how many I've been to. Generally, the focus of the conference is the same each year; we have a problem, and need to address it. So far, it doesn't look like we've come up with a good solution.

One of the biggest problems I see is the use of experts to obtain convictions. I'm not saying experts shouldn't be used in criminal cases; however, there use should be limited to corroborating other evidence. All too often prosecutors use experts to establish thier case.

There was a presentation on a bite mark case, where the defendant ended up spending 10 years in jail before DNA was able to exonerate him. As with many of these cases, the bite mark was the only evidence the State had that tied to defendant to the case. The situation was a familiar one; the so called expert went out of his way to identify the defendant, ignoring contrary evidence, and manipulating evidence where necessary.

There is no doubt that bite mark comparisons are essentially subjective. As a result, different people can look at the same evidence, and reach different conclusions. Too often it comes down to which expert makes a better presentation. In other words, a defendant's fate hinges on who is the better communicator. The possibilites for disaster are enormous, and all too often realized.

Assuming such evidence is admissible - which I am not ready to concede - it should not be used as the only evidence of guilt. Soo called experts are wrong far too often to leave such important decisions to them. They get to leave at the end of the day and go home, while the defendant's life may be destroyed.

Maybe we  need a corroboration rule, like we have for accomplice witnesses. Or maybe it's something that can be addressed through instructions. Whatever the approach, something needs to be done. Until we do, innocent people are going to continue to be convicted.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The use of fingerprints has been around for a number of years. If you have ever been in a court room, you've heard the statement that no two people have the same fingerprint. While that sounds convincing, there is no evidence or research to back it up. For the most part, fingerprint evidence has avoided scientific scrutiny. Instead, it has been accepted by all those involved, including defense lawyers, as accurate.

The reliability of fingerprints is questioned in the recent report by the national research Council, on strengthening scientific evidence. In their report, the Council examines friction Ridge analysis, which covers fingerprints, palm prints, and soul prints. The report contains several startling statements.

Before going further, the terminology used must be understood. The technique used to examine prints is described by the acronym a ECE -- the, which stands for analysis, comparison, evaluation, and verification. The Council notes that this mess did does not specify particular measurements or standard test protocol, and the examiners must make subjective assessments there out. The Council notes that the standards are deliberately kept subjective. We'll they also note that the outcome of friction Ridge analysis is not necessarily repeatable from examiner to the examiner, and cited research which shows that experienced examiners do not even agree with their own past conclusions when presented in a different context.

Over the last several years, some of the problems with fingerprint comparison have been discussed. The problem is not with comparing a set of ink fingerprints. Instead, the problem is in comparing prints left on a surface. As the Council notes, a small stretching of distance between two fingerprint features, or a twisting of angles, can result from either a difference between the fingers that left the prints are from distortions from the impression process, which means analysis must rely on subjective judgments. In other words, an examiner must not only determine what he is looking at, but how relevant the impression is.

In its summary, the Council concludes that the current methods do not guard against bias, are too broad to ensure repeatability and transparency, and do not guarantee that two analysts following it will obtain the same results. For that reason, merely following the steps of the excepted method does not mean an examiner is proceeding in a scientific manner, or producing reliable results. The Council also notes that it has reviewed the available scientific evidence on the validity of the process, and has found none. And a minimum, the Council notes that absolute opinions are not appropriate in this area.

The report is must reading for anyone who has a fingerprint case. We cannot accept the opinion or conclusion that a print belongs to our client. As with many disciplines, the problem will be finding someone who can explain the process. I suggest that will not be another fingerprint examiner, who will operate under the same old assumptions. This is not an exact science, and never should have been considered as such. Hopefully, courts will become more sensitive to the problems. It's our job to make sure that happens.
 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Last week Bridget Lee was released from prison after spending 9 months for murder. According to the pathologist, Corinne Stern, the infant was suffocated. It turns out the infant was stillborn - having died from complications caused by pneumonia.

Lee's attorney apparently did what all attorneys should do - he obtained his own expert to review the autopsy. He then presented his findings to the District Attorney, who to his credit took them seriously. He had other experts review the case; by the time it was over, six independent experts determined there was no murder.

There are couple of things that trouble me about this case. One is that Dr. Stern is still at work - she is now conducting autopsies in Webb County. The other is the apparent complete lack of review of such findings. The autopsy in this case was signed off by the other pathologists in the medical examiner's office. You would think that if they looked at the findings at all, they would have questions; one of her findings was bruising on the face and mouth, which turned out to be decomposition. Apparently the other signatures don't mean what you think. I guess they are signing off on the form of the report, and not the results.

This is simply one more instance of a scientist getting it wrong. No matter what their credentials, we cannot blindly accept the conclusions of someone who claims to be an expert, especially when their conclusion determines whether someone is guilty or innocent. Alabama authorities are reviewing the other autopsies she performed while there; let's hope there was an isolated incident, and there aren't others in prison who shouldn't be there.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

People love CSI - if you have any doubt, look how many different CSI shows there are - Las Vegas, Miami and New York. I  admit, I'm one of those people. Everyone who watches CSI knows how quickly they solve crimes, analyzing every piece of available evidence. Most shows include DNA evidence, where they quickly determine who has handled a piece of evidence.

It is possible to get DNA from an item even if there isn't blood. It's called "touch DNA", and tests epithelial cells that are discarded from our skin. As you can imagine, examining and testing every piece of evidence takes a lot of time, and money. While you can do it on TV, real life is different.

Criminal defendants and jurors also watch CSI. I can't tell you how many times I have had clients ask if an item was tested to see if there DNA was on it. Most of the time the answer is no, because DNA tests are generally only done in sexual assaults. Evidence in violent crimes may also be tested - generally it's blood that is left at the scene, or on an item of evidence. However, rarely will there be more than a few items tested.

The advent of touch DNA has caused concern not only over the lack of resources to test all the evidence, but also the lack of storage of space. The Integrity unit created by Texas Court of Criminal Appeals has expressed concern that storage capacity could be overwhelmed, both because of the amount of evidence, but also the longer wait times caused by the additional testing, which means evidence will have to be stored for longer periods of time.

On TV, every item of evidence is analyzed and tested. Crimes are often solved based on the minute or innocuous piece of evidence.. Don't expect the same in real life.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

How many times have you heard the statement that no two fingerprints are the same. Experts testify to that in courtrooms throughout the country on probably a daily basis. The validity of that assertion has been questioned in the last several years; as with other areas, it is a statement made without any scientific support.

No matter what your opinion of the validity of fingerprint analysis is, like anything else reliability is based on the person doing the examination. A report today issued by the Los Angeles police department details two cases involving faulty fingerprint analysis. In one case a person was charged with breaking into a store. In another case, a person was extradited from Alabama to face burglary charges after his prints were matched to those found at the scene. In both cases the analysis was reviewed and verified by another examiner.

According to the LAPD report, the fingerprint section was poorly run, and individuals were reviewing work and merely rubbers tamping it.Fortunately for the two individuals, the mistakes were caught. They must now try to determine whether other mistakes were made - common sense tells you there are probably other such errors.

This is one more incident which shows science is not infallible. Fingerprint examination is an entirely subjective discipline. As such, it hinges on the competence of the examiner. You would like to think all examiners are competent and take their jobs seriously, but we all knoow that is not the case in any profession.

The lesson from this story is that fingerprints, like anything else, should not be blindly accepted, even when they have been reviewed and verified by a nether examiner. If there is any doubt, an independent expert should be consulted. If we are going to send someone to prison based on the opinion of an expert, then we need to make sure it’s accurate

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In 2005 the Texas legislature created a Forensic Commission. Their job was to investigate complaints of forensic misconduct. Frankly, I didn't expect them to do anything, and I still don't have high hopes. However,  they at least got off to a good start - even if did take almost 3 years.

The commission voted on Friday to review two arson cases - Cameron Willingham and Ernest Willis. One was executed, and the other released, on almost identical evidence. The Innocence Project has already commissioned a report that was prepared by the leading experts in the country, so I don't know how much work is going to be required. Maybe that's why they took these two cases.

I'm not sure what they can accomplish, but hopefully this will raise awareness of the issue of flawed arson investigations. There are other cases out there, and people still serving  time for something that was not a crime.

I represented Cameron Willingham in the final stages of his appeals, and presented the evidence to the courts and the governor.  The response from the governor's office was that he "didn't see anything that would convince him he should postpone the execution". I'll never forget that statement - but I guess its too much to expect something like innocence to get in the way of an execution.  It's too late for Mr. Willingham, but maybe the commission can do something to prevent the same thing from happening to someone else.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Thankfully, we don't see bite mark testimony much anymore. Not so long ago, before the advent of DNA technology, this was the latest scientific fad. A so called expert would come in and say that bite marks on the victim were a match to the defendants teeth. Often, it was not even clear whether the marks were bite marks or something else. That didn't stop these so called experts from raking in thousands of dollars though.  One of those was a small town dentist in Mississippi. Dr. Michael West testified in two separate trials in 1992 and 1993. Fortunately for them, another person was recently addressed and ended up confessing to both cases. A panel of experts had been asked to review the evidence, and determined that the marks were caused by crawfish nibbling on the corpse and decomposition in one case, and scrapes in another case. In the interim, Dr. West resigned from the American Board of Forensic Odontology after several ethics complaints.

Forensic odontology is only one of the areas of junk science has recently been challenged. Unfortunately, similar types of testimony are consistently used to obtain convictions. The bigger issue is the use of science that is dependent on individual interpretation. Any time two people can look at the same thing and come up with different conclusions, that testimony does not belong in a criminal court. Unfortunately, jurors still believe the State experts. Our job as defense lawyers is to continue challenge the science, and not accept their opinions without scrutiny.

• Email This
• Print
• Comments
• Trackbacks
• Share Link