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

Unless you've been up in the mountains without media access you know that an Italian Court found Amanda Knox not guilty. This verdict followed the original verdict where she was found guilty of murdering her room mate. While I don't know much about the Italian justice system, it appears the appeal goes to a panel of judges, who review the evidence, and can hear new evidence. It was during this process that the reliability of the DNA evidence was questioned.

So what would have happened to Amanda Know in the United States? Her case would have gone to a Court of Appeals, who would review the trial for legal errors. Their review would be limited  to the record of what happened at trial. They don't have authority to order new testing, nor do they have authority to hear evidence. If the reliability of the DNA evidence was questioned it would have been up to her lawyers to do that, and even if they produced the same evidence the Court wouldn't be able to consider it in the direct appeal.

A U.S. court also would not be able to decide whether she was guilty or not. Instead, they would review the evidence to determine if it was "legally sufficient", which basically means whether there was sufficient evidence to support the verdict. The court cannot make its own credibility decisions, but assumes the jury found the witnesses credible. Such review is extremely limited, and few cases are ever reversed on this basis.

So the short answer to the question is that she would still be in prison, and would probably be there for the rest of her sentence. Evidence of faulty test results could be presented in a writ of habeas corpus, but it is doubtful that would be enough - especially since the state still claimed there was nothing wrong with the DNA testing. The only time relief is granted in those situations is where the expert agrees they made a mistake, or there is no doubt about it. Clearly that was not the situation here.

It sucks to be convicted anywhere, but luckily for Amanda Knox she at least got convicted in a system that is designed to catch mistakes. We can probably learn a lesson from that.

 

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

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?

 

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

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.

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

Recently Chicago prosecutors agreed to dismiss charges against Maurice Patterson, who had been convicted in 2004 of murder and sentenced to 30 years. He was back in court because it was discovered that blood on a knife found near the murder contained the victim's blood, along with another person. That was important because at trial prosecutors claimed there was no blood on the knife, and therefore it was not connected to the murder.

in reporting the dismissal the State's attorney said the prosecutors acted in good faith, and noted that the judge found there was no intentional misconduct. They also took offense at any suggestion of misconduct, saying it was "wrong and unfair" to make such claims. They say that, without ever offering an explanation for what happened.

It appears that the lab reports showed blood, which was then tested. So did the prosecutors look at the lab report and mis-interpret the statement that blood was found on the knife? Did they not get the report? If they didn't have the report, then they were certainly reckless in saying no blood was on the knife - without actually knowing that. Did the police lie about blood being on the knife.  I don't know what happened, and while I can't think of a plausible excuse, maybe one exists. What bothers me is this is business as usual. Prosecutors are free to misrepresent evidence without any consequences. We've seen it time and time again.  The explanation that it was an honest mistake is accepted without question. Whatever the real reason in this case, at best the prosecutor  played fast and loose with the truth.

One thing is for sure - whatever the reason, Mr. Patterson spent six years in jail for nothing. At the very least, he should get an explanation.

 

 

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

I recently came across a story because it involved DNA evidence. Evidence had been tested 10 years ago, and the defendant - Stephen Meyers - was identified last year as a match. As is typical,  odds were provided - a  1 in 1.6 million billion chance that the evidence did not come from the defendant.  In preparing for trial, the evidence was retested - and guess what. That one in 1.6 million chance came true - the new tests excluded the defendant! As a result, the case was dismissed.

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing  but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test. Older tests were only able to look at several locations on the DNA molecule; results were given for each location. For example a person might be a type 1.1, 1.4 at location on 1.3, 1.5 at location two. If the defendant has the same types he is excluded. Newer tests look at more locations, which makes it more precise. If the defendant is excluded at any point, then he is excluded - i.e. cleared. Obviously, the more locations you look at, the better the chance of obtaining an exclusion.

What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

In my experience, prosecutors never challenge scientific evidence. If they have a 10 year old t est, they are going to run with it. If it's going to be challenged, it is up to the defense lawyer to do it. Kudos to the prosecutor here, who wasn't willing to blindly accept what the experts told him (even if they were just trying to make the case stronger)

I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

Before the retest there was already plenty of evidence to suggest Meyers was innocent. The description of the suspect was short, fat and balding, while Meyers was tall and skinny. Not to mention almost  no evidence to establish he was even in the same town where the assault occurred. You might thing that is enough, but I have seen far too many cases where defendants were convicted even though they didn't even remotely resemble the description provided. The explanations are usually that the victim was under stress, and that appearances change. In other words, if you are relying on a bad identification you are flirting with disaster.

Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

• Email This
• Print
• Comments
• 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

One of the common complaints I see from defendants is that one or more of the witnesses against them committed perjury. That generally means that they didn't testify in a manner favorable to the defendant. A common occurrence is where two witnesses disagree about a particular fact - the defendant claims the unfavorable witness committed perjury.

Perjury  does occur - probably with some regularity. But it is one of the most difficult claims to prove. You need compelling evidence to establish that someone testified falsely.

Even if you can establish perjury, the rule has always been that you must still prove the State/government was aware of it. In legal jargon, the claim is the knowing use of perjured testimony, which is a due process violation. A witness may perjure themselves, but unless you can prove the State knew about it, you are generally out of luck.

The Court of Criminal Appeals may have just changed the law on this claim - at least in limited circumstances. The case is Ex Parte Chabot., No. AP-75,940 (12/09/09). Chabot was convicted of murder, and the main witness against him was an accomplice, Gerald Pabst. He claimed he was an unwitting participant, and didn't leave because he was scared of Mr. Chabot. The victim was sexually assauted, and of course Pabst denied having anything to do with that.

Mr. Chabot was able to obtain DNA testing long after he was convicted, and lo and behold it turns out the person who did the sexual assault was Pabst. Therefore, he perjured himself at trial; arguably the state didn't know it, because they believed Pabst when he said he didnt do it.

The court found Chabot's due process rights were violated because his conviction and sentence was "most likely based on perjured testimony." In truth, the only substantive testimony against Chabot came from Pabst.

The court implicitly recognized that if Pabst perjured himself about committing the sexual assault then maybe he also perjured himself about Chabot committing the murder. The case would have been an easy one if Mr. Chabot had been charged with sexual assault. Instead, he was charged with murder, and the court could have easily said that just because he didn't commit the sexual assault doesn't mean he didn't commit the murder. That has been the normal response from the Court in the past, which is one reason why I think this is a significant decision.

The Court's holding is limited, and it probably should be. The convction must be based on the perjured testimony - if it is only a part of the State's case, that is probably not going to be enough.

No matter how limited the holding may be, it is still a step forward for a Court that will never be accused of being defendant friendly. It's also a step forward because its a recognition that innocent people are convicted - something the Court has been reluctant to acknowledge in anything other than slam dunk DNA cases.

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

The Supreme Court reversed the 9th Circuit again in McDaniel v. Brown. As with a number of other cases the 9th circuit found for a defendant in a writ of habeas case, and reversed the conviction. That seems to be the recipe for an almost automatic reversal. The opinion was unremarkable except for the discussion of a concept the Court acknowledged as the prosecutor's fallacy.

Mr. Brown was charged with sexual assault. The victim could not identify him, and the evidence was all circumstantial; the type where it could support innocence just as easily as guilt. The most compelling evidence was DNA recovered from sperm on the victim's panties. And it was the DNA evidence that was the focus of the writ proceeding.

Mr. Brown lived with his brother, and there was another brother that also knew the victim. They all lived in the same trailer park, so it was obvious that there would be an issue as to whether the DNA could be attributed to one of the brothers. The argument was over probabilities; according the State's expert, the probability that another person from the general population would have the same DNA profile was 1 in 3,000,000. The defense expert expert said it was more like 1 in 6,500.

The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant is the source of the DNA sample. In other words, you cant take that the above statistic and say the probability that someone other than the defendant committed the offense was 1 in 3,000,000; or that there is a 99.9% chance that the defendant is guilty.

In the end, the interpretation of statistics was not critical to the decision. Even with the lower estimates, the evidence was still sufficient to support the conviction. The case does point out the necessity to challenge State's evidence though. You may need a statistician to do it, but that may be necessary to explain what the numbers mean. After all, 1 in 6,500 is a heck of a lot easier to work with than 1 in 3,000,000.

 

• 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

The Texas Court of Criminal Appeals issued a significant opinion today on DNA testing. In Esparza v. State the Court reversed both the trial court and the Court of Appeals, both of which had denied his request under Chapter 64 for post-conviction DNA testing.

Esparza had been convicted of aggravated sexual assault. He met two women at a bar, and ended up giving them a rode home. On the way, he raped one, the other got away. The actual victim could not identify him, but the other woman did, as well as another person at the bar. Additionally,  he had given them a business card, with his name on it. He denied guilt at trial, and presented an alibi. The jury ultimately convicted him, and sentenced him to life.

In rejecting his request for DNA testing, the court focused on two things. One was that victim admitted she had sex 2 days earlier. The court concluded that because of that, evidence of a third party donor would be meaningless (the trial attorney actually admitted this at trial, although I can't come up with any rational explanation for making such admission). In other words, the court found that she had sex with someone else, if the testing excluded Esparza it must be the other person.

The CCA (yes, the one with Sharon Keller) found several problems with that argument. The most glaring was that it was based entirely on assumptions. One assumption was that  her partner ejaculated in the other incident. Another assumption was that she didn't do anything to clean herself up in the interim. And finally, there was no testimony that there would still be evidence to recover from an incident two days earlier. In other words, you have to more than guess; your guess has to actually be supported by the evidence.

The Court concluded that if the DNA tests excluded him, there is a reasonable probability he would not be convicted.

You still have the identification, which appears fairly supported because of the business card. (BTW - it showed him working as a paralegal for the lawyer who ended up defending him at trial) The court's rejection of this argument is truly astounding. They held that the eyewitness identification of the two witnesses was "of no consequence". They also held that:

In sexual assault cases like this, any overwhelming eyewitness identification and strong circumstantial evidence (e.g. Esparza's business card, light-blue four door car, age and the fireworks on the floorboard) supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exlculpatory DNA evidence would prove his innocence under Art. 64.03.

Maybe I'm reading too much into it, but to me that suggest the Court has finally recognized just how unreliable eyewitness testimony really. It's no longer enough to say you have an eyewitness ID, even if supported by other evidence. I think that has application in other cases; not just Chapter 64 requests.

I can't believe I'm happy about a Court of Criminal Appeal opinion. but I am. I'm not expecting this to be a trend though.

• 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

Dallas County is scheduled to release another person based on DNA evidence. The individual is the 19th person released since Dallas County started reviewing cases, and has been in jail for 26 years.

Unfortunately, this story is a familiar one. The victim identified the defendant, and that was all the evidence that was needed. The identification was questionable, since a lineup was mailed to the victim, and two of the pictures were of persons without a shirt, which was the description provided. Obviously, that was not enough to convince a jury.

It is also a familiar story of investigation. Not only did they conduct a questionable identification procedure, they also refused to look into what appeared to be solid alibi evidence. The defendant was ablet o produce a time card showing he was working at the time, and his employer testified for him.

it amazes me that even with all the exonerations, eyewitness testimony is still viewed as almost infallible. Jurors rarely question the identification made by a victim, especially when they point out the person. Even when they are told about the problems with such identifications, they still are not willing to reject it. There are no telling how many people are in prison because of bad identifications. The vast majority of those will have to stay there, because there is no physical evidence that will exonerate them.

We have to come up with a better way to handle these cases. Presenting expert testimony is a start; jury instructions may also help. The best way to deal with the problem though is to avoided it the first. Investigators need to stop blindly accepting eyewitness identifications, and look into evidence to the contrary. After all, that is what investigating is all about.

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

Everyone at some point says something you wish you could take back. You might say something without thinking, or it just comes out wrong. Prosecutors seem to do it often, perhaps because they get so carried away with preserving our way of life ;).

Williamson County District Attorney John Bradley definitely has to be in the running, for comments he made regarding a federal lawsuit recently filed by the Innocence Project.  They are trying to force Williamson County to let them test evidence from two murder cases, which they think are related. In one, someone was convicted, and is serving a life sentence. In the other, no one was arrested and the family wants the evidence tested (so much for representing the victims!).  In responding to the lawsuit, Mr. Bradley stated:

"Meanwhile, the public might want to remain skeptical of a defendant who to this day doesn't accept responsibility"

I guess what that means if is if you want to test evidence to prove you are innocent, you have to admit you committed the crime. Of course, if you admit you committed the offense, then you have no reason to test the evidence.

Let's hope he didn't think that one through. But then again, what reason is there to refuse testing in the first place, especially for a victim's family.

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

Over the last few years it has been common practice to take a DNA sample from persons convicted of certain offenses, and submit it to a national database. The obvious goal is have someone to compare unknown samples. The database has already produced several "cold hits", where previously unknown suspects were identified. Although there have been challenges to collecting the samples, those have not been successful to date, and probably won't be as long as it is limited to persons who have actually been convicted. What if you take samples from everyone who is arrested though? And what if you keep those samples even if the person is exonerated, or charges or never filed. That is the situation that currently exists in Britain and the process is being challenged in the European Court of Human Rights. DNA testing is not the foolproof system it was once thought to be; mistakes do occur, and people have been wrongly identified. How tragic would it be if an innocent person is dragged through the justice system again because of a faulty DNA hit? Let's hope the court does the right thing - otherwise we may be dealing with the issue here.

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