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

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.

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Ask anyone in the criminal justice system what a plea of "not guilty" means, and they will probably tell you it means I am putting the government to it's proof. The first thing that happens after charges if filed is that  a defendant is arraigned, and asked to enter a plea. You don't expect anyone to enter a guilty plea at that point. It appears though that some people view a not guilty plea as a denial of guilt, and question the ethics of entering that plea when you are really guilty.

Scott Greenfield at Simple Justice provided his usual keen insight into the ongoing discussion about the "two most loaded words in the courtroom". He was responding in part to a post by a former defense lawyer turned prosecutor who argued that a defendant who actually committed the offense acts immorally by entering a not guilty plea. I can't add to Scott's discussion of the futility in trying to impose absolute moral guidelines onto an issue that is not absolute. I do want to pose some of my own questions though.

If we are to impose absolute morality into a criminal case, shouldn't it apply to both sides. Prosecutors know by now the problems with eyewitness identifications. At best, the far from accurate; at worst, they are no more reliable than chance. Does a prosecutor have a moral obligation to bring that information to a jury; does he violate some type of moral code when he argues that a defendant is guilty, where the only evidence is an eyewitness? What about where there are reasons to question the accuracy of the identification?

One of the legal obligations prosecutors have is to disclose exculpatory evidence. What is exculpatory is often in the eye of the beholder. Most prosecutors think there is nothing exculpatory in their file. In fact, at least under the legal definition, there is probably a lot; basically anything which points to someone else, or impeaches a witness's credibility can be exculpatory. Does a prosecutor lie when he says there is nothing exculpatory in the file?

Our system is an adversarial one. Many prosecutors take that to an extreme, and believe it is not their job to determine guilt or innocence, but it is up to the court or the jury. If they have doubts about a defendant's guilt, whether strong or not, do they act immorally when arguing for a conviction?

As Scott points out, there are few absolutes in the criminal justice. A person may commit an act, that may actually be less serious than what he is charged with. Does he have to admit to committing the act, and leave it up to the judge to decide what the appropriate offense is?

This is not something distinctive about the criminal justice system. The same process exists in the civil system. If you are sued, something like a general denial is entered. Is that immoral, if you actually did what you are being sued for?

Let's also look at the flip side of this. If a juror finds you not guilty, most people recognize that means the state didn't meet its burden of proof. However, under the morality approach, does it actually mean you are innocent.

As I stated before, our justice system is an adversarial one. It requires advocates on both sides. The day the defense lawyer becomes a representative of the prosecutor is the day our freedoms are lost. There are other systems that don't involve criminal defense lawyers - however, those trying to impose morality in this decision would never agree to live under those systems.

Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.

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I recently had a case where there was physical evidence that had not been tested. The police didn't test it because the case against the defendant seemed strong. The evidence could exonerate him, and my client insisted it be tested. We went over the risks, the biggest being that he was going to make the State's case for them if came back as him. Without DNA testing, we could still argue he was not involved, or at least that there was a reasonable doubt of guilt. With the evidence, there would be no doubt. We also went over the reliability of the tests, and how the odds weren't with him. He continued to insist he was innocent, and we sent the evidence off to be tested. It came back today, and sure enough, there is now no doubt whatsoever that he's guilty.

This is not the first time I've had this happen. I can understand rolling the dice with a polygraph. They aren't admissible, and if you fail, its not going to hurt you in court. With DNA tests though, the evidence is admissible. More importantly, its far more reliable than a polygraph. You aren't going to get lucky on a DNA test - they best you could for would that the results were inconclusive.

So why do people insist they are innocent, when there is no doubt they are guilty? I don't have any scientific support, but I think that are some people who can actually convince themselves of something. The more they tell themselves they aren't guilty, the more they believe.

Of course, I also think that are people who just don't believe their lawyer (yes, its really true). If you tell them the tests are accurate, and its going to prove their guilt, they aren't going to believe you. Maybe some just feel like they don't have anything to lose, and want to roll the dice - even the odds against them are astronomical.

I've resigned myself to the fact that this is something I will probably never understand. Maybe I don't want. to.

This situation also highlights something else we have to deal with - some clients seem determined to everything they can to sabotage their case. Unfortunately, they are often the first to blame everything on the lawyer. I guess if being a criminal defense lawyer was easy, everyone would want to do it.

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