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

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.

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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.

 

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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.

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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.

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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.

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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.

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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.

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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.

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