Wednesday, July 25, 2018

Blood spatter backlash

Before we begin, let us never forget that the foremost ethical duty of a prosecutor is to see that justice is done (whatever that means), not to obtain convictions.

Adam Sibley, the Bosque County District Attorney, is the latest prosecutor in a high-profile case involving flawed forensic evidence to have to make a choice to do what's right or what's necessary to maintain a conviction.

Joe Bryan, a high school principal in Clifton, Texas, was charged with murdering his wife, an elementary school teacher, back in 1985. Mr. Bryan steadfastly claimed he was at a conference in Austin at the time of the killing.

But with the help of some voodoo, I mean, blood spatter analysis, by a police detective who barely understood the principals of the so-called forensic science, Mr. Bryan was convicted. Despite the fact he had but 40 hours training in the discipline, Robert Thorman took the stand and testified that the blood found on a flashlight in the trunk of Mr. Bryan's car showed evidence of back spatter which, according to Mr. Thorman, was a telltale sign that the flashlight was used in a close range shooting.

Let's forget for a second that no one ever tied the flashlight to the murder. Let's further forget that the blood found on the flashlight was Type O which is found in approximately half the population. And let's not forget that no DNA testing was conducted on the blood specks found on the flashlight.

Last Friday, Celestina Rossi, a crime scene investigator for the Montgomery County (Texas) Sheriff's Office Crime Lab, testified before the Texas Forensic Science Commission and testified that Mr. Thorman's testimony was "egregiously wrong" in the Bryan case.

Ms. Rossi spent some 60 hours researching the case and concluded that Mr. Thorman "misstated scientific concepts, used flawed methodology and incorrectly interpreted evidence." She said Mr. Thorman's analysis was not scientifically accurate and could not be supported by any published data.

Driving another nail into the state's coffin, Ms. Rossi testified that the back spatter Mr. Thorman testified indicated the flashlight was used in the murder wasn't back spatter at all and that there was no evidence that the flashlight had been present at the murder scene.

Another problem for the state was a state crime lab technician by the name of Patricia Almanza who was allowed to give opinions during direct examination that exceeded the scope of her expertise.

Mr. Bryan's attorneys have been seeking to have DNA testing performed on the untested evidence for years. In 2017 a court ruled that the items were to be tested. Mr. Sibley appealed that decision.

And why would Mr. Sibley do everything in his power to block that testing? Simple. He wants to maintain the conviction and doesn't care who or what gets in his way. He will stand up on a table and shout to the rafters that it's about finality and respecting a jury's verdict - but that's bullshit.

Mr. Sibley, and most prosecutors, don't get their ethical duty. A defense attorney, by contrast, has no ethical duty but to provide a vigorous defense for his client and maintain his confidences. That's a lot different that seeing that justice is done.

If Mr. Sibley were really interested in seeing that justice is done, he would withdraw his appeal and allow the items to be tested. If the tests confirm that Mr. Bryan is the killer, so be it, but, if they don't, then someone got away with murder and walked around free for more than 30 years. Is that justice?

Next month, Mr. Bryan's attorneys will argue in an evidentiary hearing for a new trial for their client. The presiding judge will then send his recommendation to the Court of Criminal Appeals which will be the final arbiter.

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