Happy Mother's Day

Leroy Harris will be spending Mother's Day with his mom today for the first time in 29 years.

Last November, Mr. Harris was released from a Connecticut prison after being exonerated of a sexual assault. Unfortunately he was forced to make a Hobson's choice between entering an Alford plea to the accompanying kidnapping and robbery cases or sitting in prison and waiting.

The sexual assault conviction went the way of the dinosaurs when DNA testing revealed exculpatory evidence that ruled him out as the attacker. An investigation by the Innocence Project also turned up evidence of prosecutorial misconduct.

Mr. Harris was given the choice to stand in front of a judge and plead guilty even though everyone - the defense, the prosecution and the judge - knew the plea was a legal fiction. Unfortunately the state still held some of the cards after the DNA test results came back. They had the option to retry the case which meant Mr.. Harris would have to sit behind bars awaiting a new trial - a new trial in which the state would not have some of its critical evidence admitted.

“Given the egregious misconduct that denied Mr. Harris a fair trial combined with the fact that the identification evidence presented against Mr. Harris would be inadmissible at trial today on due process grounds, it is deeply disappointing that he has been put in the untenable position of taking a plea to gain his freedom." -- Vanessa Potkin, Innocence Project

So, Mr. Harris took the deal and entered an Alford plea. Now he would be free and the state would keep its conviction.

But why did prosecutors insist on his pleading guilty before agreeing to his release from prison? He had served almost 30 years. Evidence turned up during post-conviction appeals clearly demonstrated that he was the victim of a wrongful conviction in the sexual assault case. It would stand to reason that if was innocent of the sexual assault that he would also be innocent of the kidnapping and robbery charges.

But prosecutors have a hard time letting cases go - even when they know it's the right thing to do. The often must be dragged kicking and screaming into court when faced with exculpatory evidence that they either failed to turn over or did their best to keep from being admitted into evidence.

Maybe it has something to do with a victim of wrongful conviction having the right to sue the state for compensation for the years and experiences that were taken away from him. But that money is paid out by the state under a statutory scheme, not the county in which he was convicted.

Maybe it has to do with the god complex some prosecutors possess. You know the ones - every conviction is the result of the jury doing the right thing and every acquittal is the result of the jury getting it wrong. These are the same prosecutors who fight every attempt to conduct DNA tests on untested biological material. The same prosecutors who raise their arms to the sky and ask the court when is enough enough?

For all of those who say cases like that of Mr. Harris show how the system works (albeit in a very imperfect manner), I would point out that there are other innocent men and women behind bars who can't turn to DNA testing or examples of prosecutorial misconduct to reverse their wrongful convictions. For every Leroy Harris there is another poor soul who is stuck in his own private hell because a jury just got it wrong.

Here's hoping that Leroy Harris and his mom have the greatest Mother's Day ever.

Play ball!

In 1994, Antwinica Bridgeman disappeared after attending a party for her 20th birthday. Her body was found two weeks later by Nevest Colemen in the abandoned basement of the where he lived with his family. His mother called the police.

The police focused in on Mr. Coleman, a groundkeeper for the Chicago White Sox, and Darryl Fulton. There was no physical evidence linking either to the crime.

Both men eventually confessed after being questioned by police detectives with a history of allegations of misconduct and coerced confessions. Both men later recanted.

Despite the lack of physical evidence, the men were convicted in 1997 of raping and killing Ms. Bridgeman and were both sentenced to life in prison. Prosecutors sought the death penalty for Mr. Coleman, despite him having no criminal record. After a parade of character witnesses, including some from the White Sox, the jury declined to recommend execution.

On Monday, Mr. Coleman returned to his job as a groundskeeper at what is now called Guaranteed Rate Field on Chicago's South Side. He and Mr. Fulton were exonerated last November after DNA testing revealed the semen from a serial rapist on Ms. Bridgeman's underwear.

The exonerations are just two out of more than 160 from Cook County alone - a number that dwarfs most states.

Why wasn't the DNA tested back in 1997? Was it a decision by the defense not to have it tested or was it the prosecutor's decision? I don't know. If the defense chose not to have it tested, that would have been a justifiable decision attempting to maintain reasonable doubt. If the choice not to test was the state's, then there is little or no justification for it.

Whichever the case may be, once the DNA was tested two more names were added to the long list of men and women who have served decades behind bars for crimes they didn't commit.

We are kidding ourselves if we think our jury system is the best method to determine the truth of what really happened. The courtroom isn't so much the crucible for determining the truth as it is a theater of the absurd. Countless times juries have found people guilty on little or no evidence because they thought the prosecution had proven its case beyond a reasonable doubt only to find out that they were wrong. Regardless of how many times a prospective juror tells you they can presume your client innocent unless proven otherwise, their real attitude is that your client wouldn't be sitting next to you if he hadn't done something wrong. Add that to the courts and prosecutors telling jurors what beyond a reasonable doubt isn't (which serves to lower the state's burden of proof) and you have a recipe for false convictions.

And then there's the death penalty. Prosecutors sought it against Mr. Coleman. In an era in which the scab has been pulled off the criminal (in)justice system, it never ceases to amaze me how many folks still argue in favor of capital punishment. Ironically enough, a great many of those folks also fall into the camp of never believing what the government tells them.

Innocent people have been executed and innocent people have lost decades of their lives in prison because twelve people sitting in a box either failed to do their legal duty or just got it wrong. Mr. Coleman lost both of his parents while he was locked up for a crime he didn't commit and he missed watching his own children grow up. Nothing can ever make up for his losses.

h/t Dan Wetzel

Did Georgia just murder an innocent man?

On Thursday night the State of Georgia likely executed a man who was innocent of the crime for which he was convicted.

Carlton Gary died after suffering a lethal overdose of compounded pentobarbital at the hands of the state.

In 1986, Mr. Gary was convicted of the 1977 murders and rapes of three elderly white women in Columbus, Georgia. He was suspected of seven murders and rapes during an 8-month period between September 1977 and April 1978. He was dubbed the Stocking Strangler.

One of the witnesses against him was 71 year-old Gertrude Miller who was raped in her house but someone survived the attempted strangling. She testified that Mr. Gary turned on the light in her bedroom while raping her and that allowed her to identify him. It turns out that in Ms. Miller's first account of the rape there was nothing said about the light being turned on. She told police she didn't know if her rapist was white or black. She later identified another man as her rapist before trial.

Even though he was not charged with the rape of Ms. Miller, then District Attorney, Bill Smith, told the jury that the same man had committed all seven rapes. He told the jury that the reason Mr. Gary was charged with only three of the murders is because there were only three houses in which his fingerprints were (supposedly) found. As it turned out, this was a very dubious claim.

However, when, years after his conviction, the sheets from Ms. Miller's bed were tested, the DNA recovered from those sheets was not a match for Mr. Gary. So, if we believe the state's theory of the case, either Carlton Gary wasn't the stocking strangler or the stocking strangler didn't rape Ms. Miller.

But that's okay, said the state. You see, Mr. Gary wasn't on trial for raping Ms. Miller so whether it was his semen on her sheets or not, it didn't prove his innocence.

Oh, but then there was that semen sample taken from the sheets of one of the women whom Mr. Gary was convicted of raping and murdering that had never been tested. But in 2010 it turns out that the lab analyst who was tasked with testing the sample to determine if it was a match to Mr. Gary's DNA did something that can only be described as bizarre. Using his own semen as a "control," he smeared it over the sample to be tested -- and the test equipment.

I don't know. Maybe he got off on forensic science and came all over the lab at the mere thought of testing such an important piece of evidence. Or maybe he didn't want it tested for whatever reason. Now I can think of a lot of ways to get around the sticky situation of having a sample that doesn't match the DNA specimen you want it to, but smearing your own semen over the slide is a new one to me.

Prior to that episode, in 2009, when Mr. Gary was first scheduled to be killed, his attorneys sought a court order to test biological evidence from the original trial only to be told by prosecutors that all such evidence had been destroyed because it was a biohazard. But that didn't exactly turn out to be true.

After the "discovery" of the evidence, the state fought tooth and nail to prevent it from being tested. And why might the state object to the testing of evidence? Maybe because they are more interested in maintaining a conviction that seeing to it that justice is done? Maybe because once that floodgate opens, there would be more convictions that could be questioned with DNA testing? Maybe because the courtroom isn't the crucible of the truth that we are taught in civics class.

I could also mention that footprints found outside the window of one of the victims were too small to be Mr. Gary's and that bite mark evidence found on one of the victims didn't match his teeth.

But none of this matters anymore, because the State of Georgia said fuck it, we're killing him anyway -- and so they did.

There is no greater tragedy in our criminal (in)justice system than executing an innocent man. It's happened before. It will happen again. And it very likely just happened in Georgia.

At least it's not a needle

Police arrest suspect. Police take suspect to jail. Police take suspect's fingerprints when he is booked in for identification purposes. Police collect other scientific evidence for use in solving cold cases.

What's wrong with this picture?

According to Supreme Court Justice Anthony Kennedy and four of his fellow justices, not a damn thing. You see, there's nothing overly intrusive about it. Just take a giant Q-tip and roll it around inside someone's mouth and you have instant DNA sample. No one is getting strapped down. Nothing is being injected in someone's body. And, best of all, now you have a DNA sample you can enter into a database to see if your new guest is implicated in any other crimes that have gone unsolved.

It is so strange, at times, to agree with Antonin Scalia. But, when it comes to Fourth Amendment issues, his goofy textualist philosophy generally works in favor of the accused. Justice Scalia wasn't concerned with the intrusiveness of the collecting of the sample. He didn't care if it was convenient. Justice Scalia had a problem with the fact that the sample would be used as evidence in investigating other crimes.

Oh, did I forget to mention the samples in question were taken without a warrant?

Yesterday the Nine in Robes decided by a vote of 5 to 4 in Maryland v. King, 569 US ___ (2013), that there was no need for the government to obtain a warrant to collect a DNA sample from someone arrested for a crime. Not convicted, mind you, just arrested.

The decision raises questions on various levels. First, since when do we equate a DNA sample to a booking fingerprint? The purpose of fingerprinting those arrested and jailed is for identification purposes. Down the road, should that person be convicted and find themselves on the wrong side of the iron bars again, that fingerprint card from the first arrest and conviction can be compared to the new card to identify those folks who have prior convictions are who are subject to enhanced sentences.

The fingerprints are also loaded into statewide and nationwide data bases that allow law enforcement agencies to compare fingerprints found at the scene of a crime to those taken of folks charged or convicted of various crimes.

The DNA evidence in this case would constitute scientific evidence that could be used against the arrestee in any other case in which there is a hit on his sample. The sample isn't being used for identification purposes, it's being used for investigative purposes. It is being obtained without the slightest showing of probable cause.

This decision, and all the other 5 to 4 decisions in matters concerning our rights under the Bill of Rights, raises questions about the reverence judges pay to the principle of stare decisis. If we are going to use these cases decided by one vote as precedent on which to base our rights, shouldn't we be concerned that in this vast democracy, a right was defined by one person who was not elected and is not accountable to the citizenry?

Furthermore, if a case is decided by but one vote, what does that tell us about the strength of the precedential power of that case? Knowing that the same facts could just have easily led to a different decision if the composition of the court was changed by one justice, should we rely upon those decisions to the same extent we rely on unanimous (or near-unanimous) decisions?

There is nothing magical about the nine who sit in Washington. They are men and women who have decided, based on nothing more than their own political beliefs, that they each know the correct method of interpreting a document written in the late 19th century - a document whose authors could never have imagined how much things would change over the course of 200 years.

Who's to say that Justice Scalia's textualism is any better than the idea that the Constitution and Bill of Rights are living documents that must change with the times? And where does the doctrine of original intent fit in? Does it really make sense to try to analogize the items of our modern society to the items at hand in 1800?

Judge denies request to test evidence in death row case

That clock keeps a-ticking. That clock that's counting down the days, hours, minutes that Hank Skinner has remaining. Mr. Skinner has another date with the executioner next Wednesday. The State of Texas has another chance to murder Mr. Skinner. Of course it's probably too late for the latest state-sponsored killing to help Rick Perry's sinking presidential campaign.

Mr. Skinner was tried and convicted of the murders of his girlfriend and her two sons in 1993. The state introduced evidence that Mr. Skinner's blood was at the scene. An ex-girlfriend testified that he confessed to her; but, then, she recanted.

There was a great deal of biological evidence that was never tested because Mr. Skinner's attorney was afraid it would (further) incriminate his client. It was a valid fear and one that we have to deal with from time to time. Heads you win, tails you get the needle in your arm.

Among the items that were never tested were a rape kit, biological material found under the victim's fingernails, sweat from a jacket, a bloody towel and knives. To this day no one knows whose DNA will be found. And, thanks to Gray County District Judge Steven Emmert, we're not likely to know.

Judge Emmert, you see, denied Mr. Skinner's petition to have the items tested before his schedule execution. But why?

Why is the state so resistant to testing the items? Is it because someone's worried about what the results might be? Why didn't prosecutors test the items in the first place? If Mr. Skinner's DNA wasn't present, that would constitute Brady material.

The State of Texas is seeking to murder a man. Aren't we entitled to know whether the state is strapping the right man down on the gurney? We're not talking about a wrongful conviction in which an innocent man spends 10 or 20 years in prison (with no hope of ever getting that time back), we're talking about taking a man's life.

From the Texas Tribune:  

For a decade, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. The high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law.

State lawmakers, though, made significant changes to that DNA testing law this year, expanding access and eliminating many of the restrictions the state had previously cited in denying Skinner's requests. In the letter, the group of officials said that change was designed with cases like Skinner’s in mind to eliminate procedural barriers to DNA testing that have “gotten in the way of the search for the truth.”

“That legislation passed with overwhelming bipartisan support, not least because polls show that eighty-five percent of Texans agree that prisoners should have broad access to DNA testing,” they wrote.

The slavish adherence to artificial deadlines allows a judge to avoid making a real decision. Judge Emmert had the opportunity to do the right thing. He had the opportunity to say that if the State of Texas is going to mete out the ultimate punishment then the state needs to be damn sure they're killing the right person. Judge Emmert could have done that. But, instead, he passed the buck. All because a deadline was missed.

For all the talk of the need for finality, no one seems to appreciate that death is final. Once the drugs are pumped into Mr. Skinner's veins it's too late to make certain the state murdered the right person. Once the drugs start flowing, there is no exoneration.

See also:

"Next verse, same as the first," Gamso for the Defense (Oct. 6, 2011)

"To test or not to test," The Defense Rests (Mar. 24, 2010)

"Nope, no balm in Gilead. Sorry," Defending People (Mar. 23, 2010)

"Questions arise over DNA in death row case," Texas Tribune (Jan. 28, 2010)

Williamson County DA dragged kicking and screaming toward justice

John Bradley did his best to keep Michael Morton locked up behind bars. Even while presiding over the (emasculated) Texas Forensic Science Commission, the Williamson County District Attorney fought efforts by Mr. Morton's attorneys to conduct DNA testing on evidence introduced during in 1987 trial. Mr. Morton was charged with and convicted for the murder of his wife.

But it was all to no avail.

Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.

There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.

Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!

Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.

"You do have my sympathies," Harle said. "We don’t have a perfect system of justice, but we do have the best system in the world."

Unless you're behind bars for over two decades for a crime you didn't commit, I suppose.

Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.

According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.

Williamson County District Attorney John Bradley said that the new developments - which he said were a lightning bolt type of discovery - warranted a reversal of Morton's murder conviction. 

"It is my just, as district attorney, to make sure that justice is done," Bradley said after the court action today.

Well, I guess it's too late to worry about whether justice was served when Cameron Willingham was murdered by the state of Texas for a crime he didn't commit. After all, he was already dead, what good is justice when you're six feet under?

Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?

Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.

Morton Findings

See also:

"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)

"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)

"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)

"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)

Hear the one about the guy who thought he was innocent unless proven guilty?

Innocent unless proven guilty? Really?

Try telling that to Jose Torres. Mr. Torres was charged with aggravated sexual assault. It was alleged that he visited a house as a sales rep for a cable company and then went back two days later and raped a 14-year-old. The only problem was, he didn't do it.

The results of a DNA test confirmed that Mr. Torres was innocent.

But not until he had served two months in jail. No before he lost two jobs and his apartment.

Mr. Torres had never been arrested. He had a clean record. Like most folks, he just assumed that "the system" worked fairly well and he never worried about being falsely accused of a crime. No one does. That just doesn't happen to good people.

But it does happen. Our criminal (in)justice system sits logic on its head. Once you're arrested you ain't innocent unless proven guilty. No, you're guilty unless you can prove otherwise. Let's slap a high bond on you so that you can't fight your case from the outside. Let's put pressure on you to accept a deal for a crime you never committed. After all, how could the state and its allies, the black-robed prosecutors, possibly be wrong?

Mr. Torres is very fortunate. He is fortunate he is free and his case was dismissed. He is fortunate to have had  my colleague, Juan Guerra, as his attorney. He is fortunate that DNA tests were run. He is fortunate he didn't have to live the nightmare of so many other exonerees who stood and listened to juries pronounce them guilty and who sat in prison for years until someone took up their fight.

Once upon a time the grand jury system was devised as a way of protecting the reputations of those accused of crime unless there was sufficient evidence to warrant a trial. Nowadays the grand jury is nothing more than a de facto division of the DA's Office who takes its marching orders from the prosecutor presenting the case.

You could argue that in this case "the system" worked as it should. Just don't try telling that to Mr. Torres.

Book Review: False Justice

Jim Petro is a rock-ribbed Republican who is a former Attorney General of Ohio. He is the most unlikely person to get involved in the innocence movement -- but involved he is. In his book False Justice: Eight Myths that Convict the Innocent, Mr. Petro takes us on a journey that shows how innocent folks find themselves in prison and the struggle to exonerate them.

The eight myths to which Mr. Petro refers are:

1. Everyone in prison claims innocence
2. Our system almost never convicts an innocent person
3. Only guilty people confess
4. Wrongful convictions are the result of innocent human error
5. An eyewitness is the best evidence
6. Conviction errors get corrected on appeal
7. It dishonors the victim to question a conviction
8. If the justice system has problems, the pros will fix them

Mr. Petro spends a good deal of ink discussing the problems with eyewitness testimony. He points out that 25% of rape suspects are cleared when their DNA is tested against crime scene DNA prior to being indicted. He notes that 30% of witnesses choose one of the "fillers" in lineups.

In Manson v. Braithwaite, the US Supreme Court held that even if eyewitness identification process is unduly suggestive, the testimony will be heard if it meets a five point "reliability" test. Those five points are:

1. The witness' opportunity to view the suspect at the time of the alleged crime,
2. The witness' degree of attention,
3. The accuracy of the witness' prior description of the suspect,
4. The witness' level of certainty at the time of identification, and
5. The time between the alleged crime and the identification.

Ironically enough, research has indicated that the level of the witness' certainty at the time of the identification bears no relationship to the accuracy of the identification.

Another myth that deserves being addressed is this notion that somehow questioning the legitimacy of a conviction dishonors the victims of the crime. As Mr. Petro points out, if the person convicted of the crime is, indeed, innocent, that means the real perpetrator is still on the loose. A false conviction means that an innocent man suffers, a criminal walks free and other people may have been victimized.

Of course, because the book is also an autobiography, we are subjected to Mr. Petro's political exploits in stunning detail. But, I suppose, anytime the theme of your discourse is taking the other fork in the road, you have to set yourself for the great conversion. Just read the first half of The Autobiography of Malcolm X and you'll see what I mean. It is, however, just a minor quibble, because, no matter how Mr. Petro arrived at that fork in the road, he clearly took the right path.

As a postscript to the book, in December 2010, Dean Gillispie was once again denied a new trial.

Big Brother wants your DNA

"All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at the person's trial." -- Language in Harris County pattern criminal jury charge

No, the state should not be allowed to take a DNA sample from any person arrested for a criminal offense. The citizen accused is presumed to be innocent and if the state wishes to take a DNA sample, let them get a warrant and show probable cause.

Los federales and 20 states, including Louisiana, have enacted legislation mandating that DNA samples be taken from all persons arrested. Crime victims, law enforcement and investigators in Texas are pushing for similar legislation in the Lone Star State. The same folks who argue that the smaller the government, the better are pushing to expand the power of Big Brother to keep his thumb on you.

Everyday across this state men and women are released from the holds of the criminal (in)justice system via acquittal or dismissal. Those folks did nothing wrong, according to the law, yet there are those who are screaming that the state should have a sample of DNA to include in its database.

"...[O]ur courts upheld the law. Public safety trumped privacy rights." -- Pete Marone, head of Virginia's department of forensic science.

That statement alone should be enough to frighten the bejeebers out of anyone concerned about the Fourth Amendment. Our right to be free from unreasonable searches should not be subject to a balancing test between the interests of the state and the interests of the individual. Freedom is the essence of America and that means that sometimes the bad guy gets away. It's an unseemly reality; but put me on the side of allowing the guilty to go free rather than locking away one innocent man.

State Rep. Allen Vaught (D-Dallas) is an advocate of casting a wider net when it comes to procuring DNA samples from those charged with criminal offenses. When asked why Big Brother doesn't take more samples of arrestees he said it came down cost. That's right, folks, the only thing standing between the government and your right to privacy is the almighty dollar.

DNA databases, GPS monitoring devices and backdoor access to encrypted electronic communications are tools by which the government seeks to keep track of where you are, who you talk to and where you've been. They are tools by which the government seeks to do away with the legal presumption of innocence. After all, if you know where a person's been, who they've talked to and what they've talked about, there are no secrets left.

Convicted rapist exonerated by DNA

Ernest Sonnier who was released from prison last August when evidence surfaced that he had been wrongly convicted of a 1985 rape was exonerated when DNA tests results were released in court today. The tests results excluded Mr. Sonnier from being involved in a second rape that resulted in a murder.  Mr. Sonnier had been a suspect in that case.

For all the talk in law school and the media about how a trial acts as a crucible of truth, Mr. Sonnier's case is a terrifying tale of just what happens when the police are allowed to run the crime "lab" that tests physical evidence in criminal cases. The following excerpt is from The Justice Project's report of the Sonnier case:

Sonnier’s conviction was based largely on misleading forensic testimony and a mistaken eyewitness identification. The victim picked Sonnier out of a photo lineup almost six months after the crime occurred and later identified him in a live lineup. At trial, the victim again identified Sonnier as her attacker, but conceded that the photo of Sonnier looked more like her assailant than did the man in the courtroom.

In addition to the victim’s identification the jury was given faulty forensic testimony skewed to bolster the prosecution’s case. A Houston Crime Lab analyst testified narrowly about the rape kit slides, which evidence did not match Sonnier’s blood type, and affirmed a prosecution effort to explain away the lack of a match by suggesting that the victim’s blood type could have masked the perpetrator’s. In fact, lab records contain no indication of scientific testing or results to support this theory. The analyst also failed to disclose that additional semen evidence from the victim’s clothing was tested, and that all of it failed to match Sonnier’s blood type Jurors were left with an incomplete and misleading picture of the available evidence. Moreover, Sonnier’s attorney did not call a single witness in his defense.

Unfortunately with Williamson County District Attorney John Bradley presiding over the Texas Forensic Science Commission you have the equivalent of the fox guarding the hen house. Mr. Bradley has a vested interest in preserving the status quo and not looking into "old cases" for the more we find out about the shoddy "science" used to deprive people of their freedom (and lives, in the case of Cameron Willingham), the more the public will question the win at all costs mentality that infects too many prosecutors across this state and this country.

To test or not to test...

So the revolving door in the death house keeps a-spinning as one Hank Skinner is scheduled to be the next guest of honor at the Executioner's Ball tonight. Now I'm not going to try to lay out an eloquent argument that Mr. Skinner should not be murdered tonight because that has already been done by my colleague, Houston criminal defense attorney, Mark Bennett, Texas journalist Brandi Grissom and Canadian attorney Antonin Pribetic.

One of the criticisms of Mr. Skinner's trial attorney, Harold Comer (who ironically prosecuted Mr. Skinner for assault and theft) was that he never had DNA testing performed on biological material collected at the scene but never tested by the state. As Mark Bennett points out, it was probably because Mr. Comer was afraid of what the tests might reveal. However, by not having the material tested it becomes a flag you can wave at the jury.

"Why didn't the prosecutor test the material? If he had we would know for certain who committed this crime. Was it because he was afraid it would show someone else did it? Was it because he was lazy? If the existence of this untested material makes you think twice about whether Mr. Skinner committed this crime, that's called reasonable doubt -- and that means that Mr. Skinner is not guilty."

Is that what Mr. Comer did? No, it's not. He probably just assumed it would make things worse for Mr. Skinner (how it would make things worse, I'm not certain). My point is, though, that there are sound reasons for not testing, or retesting, evidence in certain cases.

In a DWI case, for instance, if a blood draw was conducted and the results of the blood test show your client had an alcohol concentration of over .08, do you really want to test the other sample? If you do and you don't put your expert on the stand to testify as to the result, the prosecutor will know why -- and, so will the jury. In most cases you're better off attacking the lab procedures, the chain of custody or the actual physical draw itself.

If the drunk driving case is based on a breath test I always ask the state's expert about the Toxitrap -- a device made by the manufacturer of the Intoxilyzer that can preserve a breath sample for retesting. The last thing I want is for the state to start using the Toxitrap. I don't want the breath sample preserved. I don't want to retest it on a gas chromatograph. I want to use the fact that the State of Texas won't spend $2 to preserve evidence in a criminal case. I want the jury to feel that it isn't fair that the state's breath test machine destroys the only evidence.

But back to Mr. Skinner for a minute, why is the state opposed to testing the biological material pursuant to Chapter 64 of the Texas Code of Criminal Procedure? The duty of a prosecutor is to see that justice is done -- when a man's life is at stake, shouldn't we be certain we're killing the right person?

Fun with forensics

Gov. Rick Perry's choice to head the Texas Forensic Science Commission received a slap in the face from the Austin Court of Appeal yesterday. Houston Chronicle columnist Rick Casey thinks the other members of the commission should have been pleased.

Almost twenty-three years ago Michael Morton was convicted of killing his wife in a fit of rage. A bloody bandana was found less than 100 yards away from the body. As Williamson County District Attorney, John Bradley fought for five years to avoid having to run DNA tests on the bandana.

“There are 155,000 inmates in Texas prisons,” he said. “Every single one would like to be somewhere else, and every single one under the standard (Raley) proposes would have the ability to test any piece of evidence they want. That's why the Legislature set up standards for post-conviction tests.”

A federal judge said he “questions (Bradley's) rationale for rejecting the plaintiff's offer to conduct DNA and other testing at their own expense, particularly in light of (his) duties to uphold the Constitution and seek and provide fair and impartial justice,” but it was a matter for the state.

And this is the man the fair-haired one thought would be a good person to preside over a committee reviewing the state of forensic sciences in Texas. This is the man who a Senate committee that he didn't think the commission needed to review past cases.

Needless to say, Mr. Bradley was unavailable for comment.

The DNA effect

Fearful that a jury will accept DNA evidence as definitive as a result of the so-called "CSI Effect?" 

New research indicates that your fears may be somewhat overblown. Jurors tend to be somewhat skeptical about the reliability of DNA evidence, but, when that evidence matches the defendant, guilty verdicts tend to follow.

Juror research demonstrates that the presence of DNA evidence tends to enhance the credibility of other evidence introduced during the trial. Thus we have the dreaded "feedback loop." We are then left with the question of which came first: jurors' reliance on DNA evidence to support a conviction or juror's reliance on the other evidence?

The studies also indicate that jurors give more weight to DNA evidence when it's couched in terms of percentages rather than ranges. In other words, a juror is more likely to accept the DNA evidence when the state's expert says there is a --% chance that the defendant committed the crime rather than there is a one in a -- chance that a person selected from the general population at random was present at the scene.

Given this, the way in which DNA evidence is presented at trial can affect the way in which a juror looks at the rest of the evidence presented.

Statistician anyone?

Giving credit where credit is due

Harris County District Attorney Pat Lykos blasted the Houston Police Department and her predecessor for their roles in the wrongful conviction and imprionment of Ricardo Rachell, who was exonerated in a sexual assault after DNA was (finally) performed on samples taken back in 2002. Mr. Rachell spent more than five years in prison.

Ms. Lykos called for DNA testing in every case in which testing is available and relevant. In addition, Ms. Lykos repeated her call for the shuttering of the HPD Crime Lab and the creation of a regional crime lab, possibly under the auspices of the Harris County Medical Examiner's Office.  The National Academy of Sciences called for the creation of regional crime labs in a recent report exposing problems in today's forensic sciences.

County Judge Ed Emmett, Houston Mayor Bill White and HPD Chief Harold Hurtt all expressed support for the proposal.

Mr. Rachell proclaimed his innocence before, during and after his trial, even going so far as to blame Andrew Wayne Hawthorne for the assaults. Mr. Hawthorne has since been charged with the assault. The DNA testing performed on the rape kit from 2002 excluded Mr. Rachell and pointed toward Mr. Hawthorne.

Ms. Lykos deserves credit for acknowledging that there are innocent people serving time in prison. She likewise deserves credit for her proposal to take the crime lab out of HPD's jurisdiction and put it under a department with no stake in the outcome of a criminal case.

DNA testing clears Texas man who died behind bars

Travis County District Judge Charles Baird has ordered the posthumous expunction of Timothy Cole's record. Mr. Cole died in prison while serving a sentence for a rape he did not commit. Judge Baird called the exoneration the "saddest case" he'd ever handled.

Mr. Cole, a student at Texas Tech with no criminal record, was charged with and convicted for the rape of fellow Texas Tech student Michele Mallin in 1985. Mr. Cole rejected the state's offer of probation in exchange for a guilty plea and refused to confess to the crime before the parole board. He died behind bars in 1999 as the result of complications from asthma.

Assuming that Mr. Cole received a fair trial, fairness does not equate to correctness. Juries get things wrong. It's yet another reason to question elected officials who have toiled to limit the right of inmates to seek post-conviction relief.

DNA tests conducted in 2008 linked inmate Jerry Wayne Johnson to the crime. Mr. Johnson testified in court on Friday that he was the rapist. He apologized to Ms. Mallin and to Mr. Cole's family. Mr. Johnson's attempted confession in 2001 was discarded because the court required physical proof of his involvement in the crime before anyone would consider the exoneration of Mr. Cole.

Ms. Mallin picked Mr. Cole out of a photo array. Of the six photos in the array, five were mug shots and one was a polaroid of Mr. Cole.

Mr. Cole's family, The Innocence Project and Ms. Mallin have all asked that Mr. Cole's name be cleared.

"No person deserves what that man got. He could have been a father, he could have been a grandfather right now." -- Michele Mallin

This tragic case brings up so many questions. Why wasn't the rape kit tested before Mr. Cole was tried? How reliable is eyewitness testimony? How much influence does the make-up of a photo array or lineup exert on the eyewitness or complaining witness? And, biggest of all, how many other innocent men and women are there locked behind bars in Texas?

See also:

• National Public Radio's coverage (Feb. 5, 2009)


• Grits for Breakfast (July 1, 2008)


• StandDown Texas Project (Feb. 4, 2009)


• Houston Chronicle (Feb. 6, 2009)


• Interview given by Judge Baird to PBS Frontline about the Roy Criner case