Waco Criminal Law Blog

Can you drive on the shoulder?

Walter Reaves — Sat, 12 May 2012 15:26:15 -0600

For the second week in a row the Court of Criminal Appeals reversed a driving while intoxication conviction based on a bad traffic stop. The case is Lothrop v. State. Mr. Lothrop was behind a car that slowed down at a railroad crossing, and he passed on the shoulder. He was stopped for driving on an improved shoulder, in violation of Transportation Code 545.058, and ultimately arrested for driving while intoxicated.

The Transportation Code allows a driver to pass on the improved shoulder in certain situations if it is "necessary and may be done safely". The statute lists several situations where a driver can pass on the shoulder, which includes passing another vehicle that has slowed on the main roadway. The Court of Appeals treated the statute as providing a defense, which must be established by a defendant. The Court held the defendant must prove the manuever was done safely, and out of necessity, and in one of the enumerated situations.

The Court of Criminal Appeals held the lower court improperly limited the definition of necessary to "absolutely necessary", which thwarted legislative intent. The plain language of the statute suggests passing on the shoulder is authorized, even when it is not necessary to avoid a collision. The court also held that driving on the improved shoulder is not prima facie proof of an offense; in other words, just because you are driving on the shoulder doesn't mean you have committed an offense.

In this case the officer saw the car in front of Mr. Lothrop slow down he passed, and therefore there was no reason to stop him.

Sometimes it appears that the police have almost unlimited authority to stop motorists, and they do have a tremendous amount of discretion. However, as this case shows that discretion is not absolute.

Standing up for your client - even after they are dead

Walter Reaves — Thu, 10 May 2012 13:18:30 -0600

Lawyers get a bad rap - sometimes its justified, and sometimes it is not. In these days of social media and internet marketing you might think all lawyers are interested in is bringing in more clients - and more money. For many that may be the case. But there are still a few lawyers who are in it for the right reasons.

One example is Scott F. Kaufman, a California lawyer who represented Dennis Lawley for 19 years. Mr. Kaufman came across evidence of his client's innocence, and presented that to the courts. Unfortunately, they took there time, and Mr. Lawley passed. You might think that is the end of it - but Mr. Kaufman is pushing ahead, and wants a ruling. He knows that it is important to bring the truth out. Even though Mr. Lawley won't directly benefit his family will, as well as his reputation.

With David Martin and Cameron Todd Willingham we saw an example of a lawyer trashing a client after their death. Here we have the exact opposite - which is what you should expect from a good lawyer.

I don't know Mr. Kaufman, but I commend him for sticking with it. We need more lawyers who want to do the right thing - even if its not financially rewarding.

Are there some cases we shouldn't trust to juries?

Walter Reaves — Wed, 09 May 2012 07:47:24 -0600

Most people will tell you that most important protection we have is the right to a jury trial. The right to have citizens from the community decide our fate, instead of leaving it to a judge or someone in political office.That system works reasonably well most of the time. But are some cases where a jury cannot be trusted - or cannot be expected to make a fair, rational decision.

The reason for asking this question arises out of recent case I saw tried. The defendant was charged with possession of more than 2,000 pounds of marijuana. He was a truck driver, and his story was that he was told to go pick up a truck and drive it to Dallas. A bill of lading was with the truck indicating the shipment was toys, and the delivery was to be made to a toy store. The truck was locked, and stayed lock until he was pulled over for traffic violations. He gave consent to search the truck, and after cutting the lock and seal the marijuana was found concealed in the truck.

The defendant testified that he didn't there was marijuana in the truck - he thought it contained what the bill of lading said it contained. His story sounded plausible, and it appeared to me that the State's case was weak. They had to prove he knew the drugs were in the truck, and the only evidence they had was that he was driving the truck. From a legal sufficiency point of view, I'm not sure they had - or have - enough to obtain the conviction.

The State made a smart move, and received permission to bring in the marijuana instead of simply relying on pictures. When they did it filled the courtroom. As you can imagine, it was quite the circus, with everyone coming by to take pictures. Apart from the novelty, the sheer amount was overwhelming, and in my opinion is what secured the conviction. The jurors could not accept that someone would not know they were carrying that much dope.

What I thought was a close case was anything but. The jury returned a guilty verdict in 15 minutes, and sentenced him - a first time offender - to 75 years.

Maybe that was the right decision, I wasn't there and don't know all the facts. But it certainly seems like there should have been more to it. Did the jurors gloss over the law, and focus only on the amount of marijuana? More importantly for us a defense lawyers - are these the type of cases we should trust juries with.

There is no doubt that juries are called upon daily to decide emotionally charged cases. Victims are involved, and jurors see things they never imagined. They are then asked to set that aside, and decide the case solely on the law and the evidence. Is that sometimes too much to ask?

When is a lane a lane?

Walter Reaves — Thu, 03 May 2012 15:58:06 -0600

The Court of Criminal Appeals recently decided a case based on the definition of what is a lane. You might not think there would be an argument about that, but whenever lawyers get involved there can be an argument about almost anything.

The defendant was driving on two lane roadway that merged into one lane. He was in the right hand lane, and when the right hand lane ended he merged into the left hand lane. He didn't signal before he did so, and was stopped for failing to signal before changing lanes. Unfortunately for him the officer decided he was intoxicated, and arrested him for driving while intoxicated.

The defendant filed a motion to suppress, arguing the police officer had no reason to stop him. The trial judge denied the motion, and the Court of Appeals affirmed that decision. The Court of Criminal Appeals originally reversed, and sent the case back to the Court of Appeals to decide if what the defendant did constituted a lane change. The Court of Appeals decided it did, and again affirmed.

Fortunately, common sense prevailed, and The Court of Criminal Appeals found the defendant didn't change lanes, because to change lanes you need two lanes. Once the lane markings ended the two lanes became one, so there was no need to signal.

So there you have it. If you merge when you are supposed to you don't have to change lanes.

The realities of plea bargaining

Walter Reaves — Tue, 24 Apr 2012 06:51:49 -0600

Most people who have never been involved in the criminal justice are shocked when they learn how the system actually operates. They have heard - or been taught - that the system is designed to achieve justice. Once they are in it they soon discover that justice is something people only talk about. The harsh reality is that the system is more concerned with expediency - which means disposing of cases. There are not enough resources to try every case, which means all but a few cases are disposed of by plea bargaining.

There are obvious benefits to plea bargaining in many cases. Since the outcome of any trial is never guaranteed, both sides have an interest in limiting their risk. Unfortunately, that is true even for defendants who are innocent. The choice they have to make is whether to go to a trial and risk a conviction and lengthy sentence, or work out a deal to limit their exposure. It's not surprising that process results in convicting innocent people.

Two recent stories brought this to mind recently. One was a post by Scott Henson, who was commenting on a Houston Chronicle article that described the Harris County Criminal Justice center as "Grand Central Station for Houston's Misery". The article addressed the "Hobson's choice" facing many defendants - plead guilty and get out of jail, or sit in jail for who knows how long waiting to go to trial. Prosecutors know this, and offer deals "too good to refuse", especially in cases where the evidence appears to be weak.

The other story that brought this to mind was actually a writ case out of the Court of Criminal Appeals. The defendant plead guilty to a drug possession case - probably to get out of jail. He did so before the results of the lab test came back. When they did, it came back that what he had was not a controlled substance at all. In the meantime he had to live with a felony conviction that he should never have had.

I can't estimate the number of clients who have made the statement that they thought the criminal justice system was concerned about justice. It's hard not to laugh, but I know they sincerely believe that. Unfortunately, they have to learn the hard way that justice is only an ideal.

You cannot fault defendants for taking deals to get out of jail, and in most cases you can't fault lawyers for cutting deals to limit a client's exposure. Most of the time you also can't fault prosecutors; but that's not always the case. When they have questions about a case, the easy thing to do is "plead it down". They never stop to consider that ramifications that has on someone's future. A conviction - no matter what for - is something you always carry with you. Unfortunately, many prosecutors are not old enough to fully understand this. And in most cases they only encouraged to move cases - which doesn't include dismissing them.

I don't have an answer, but whatever it is it has to start with an awareness that we are dealing with people's lives - not only theirs, but also those of their friends and families.

Forensics update

Walter Reaves — Thu, 19 Apr 2012 13:56:07 -0600

Here are some newsworthy items from the last few days:

If you want to add to your resume why not get certified as a forensic expert. A graduate journalism student was able to obtain certification as a Forensic Consultant by the American College of Forensic Examiner's International. All you need to do is pay for the course - $495 - take an exam and pay your membership dues - $165.00

The "weapon effect" is well understood in the context of eyewitness identifications - most reasonable people focus on the weapon and not the person. A recent study establishes that the presence of a weapon may influence a person to estimate the assailant's size as larger than they are really are.

And another study suggests that identifications are more reliable when the witness is forced to make the decision quickly, than when they are looking over the pictures as long as they want.

Finally, the Washington Post had an excellent article on the failure of the FBI to notify defendants on problems that were discovered during a lengthy investigation that ended in 2004. There was at least one defendant in Texas who was executed without being told about the problems with the hair analysis in his case.

Is certification the Answer?

Walter Reaves — Fri, 13 Apr 2012 20:22:31 -0600

I was at the Forensic Science Commission last week, which was the first meeting presided over by the new chairman - Dr. Vincent DiMaio. During the meeting there was a discussion about experts who do nothing but interpret what other scientists have done - i.e. defense experts. The gist of the discussion was the inability to sanction or control those experts who come in and present some opinion or interpretation that is outside the bounds of reason.

I don't agree that's a problem; the problem is who decides what is unreasonable - just because you disagree with the state's expert doesn't mean you are wrong. Defense lawyers have a duty to question the state's evidence, and that includes forensic evidence. I admit some expert testimony borders on ludicrous, but that's not reserved for defense experts. Just look at dog scent evidence - which was sponsored by the State. The discussion was nothing more than venting, since there is nothing the commission can realistically do. What struck me though was a couple of comments Dr. DiMaio made during that discussion.

The first was that certification would solve most of the problems. In theory that might be right. However, it depends on who administers the certification, and what they are certifying. There are a few organizations who exist solely to certify its members - such certification may have little to do with competency. There may be some certifications that really mean something - i.e. expertise beyond that possessed by most in the field. But certification is not an end in and of itself.

The bigger problem is that just because you are certified doesn't mean you can't make mistakes. I would hope every true scientist would admit that. I recognize that certification may carry some checks, which may be what Dr. DiMaio is referring to. In other words, if you make mistakes there is an entity to complain to, and someone who can revoke your certification. However, certification is not an end in and of itself.

I'm all for certification, and certainly don't wan't to discourage it. I simply want to ensure that certification - in whatever field it is - truly means something. And also that you aren't immune from scrutiny just because you have a certification.

His other comment was more of a criticism - of judges. He correctly noted that judges let almost everything in, no matter how ridiculous it might be. If you doubt that, just look at how many courts let dog scent evidence in. I've said before that this a big problem that needs to be addressed. It can be done - judges appear to be much more careful in admitting evidence in criminal cases. Maybe that's because the lawyers are better prepared - and funded. Maybe it's because it's easier to rule against a plaintiff or defendant, than it is to rule against the State. It's something we need to fix though, and thankfully I believe judges are being more discriminating, although there is a still a long way to go.

Overall, I was pleased with the commission. They clearly are taking their job seriously, and want to do it well. That's all you can ask of any public agency. I believe that as they move forward they are going to make a positive impact on the criminal justice system.

Time for other DA's to step up to the plate

Walter Reaves — Sun, 08 Apr 2012 19:09:52 -0600

Dallas was the scene last week of another exoneration. The case was unusual for a couple of reasons - perhaps the most significant one is that it involved three defendants. The three were convicted of robbery. Like many cases the evidence an eyewitness identification - which was wrong. That's not unusual - we now now that happens with some frequency. What was unusual was that the exoneration was not the result of DNA; instead, it was based on the actual robbers coming in and admitting their involvement.

Fortunately for the defendants - if you can say someone who spent 16 years in jail for something they didn't do is fortunate - they were convicted in Dallas county; the only county I know of where there is a District Attorney who is concerned with getting it right, and not simply getting convictions. When a lawyer representing the three presented the evidence, the DA's office actually listened. You might not think that is unusual, but it is.

The normal reaction in cases like this is that the new witnesses are merely trying to help their friend. If there isn't a prior relationship, they will point to the fact that they are convicted felons (which is usually the case), and you can't believe them. Or they might say they have nothing to lose if the statute of limitations has run and they can no longer be prosecuted. In other words, they look for everything they can to hold onto the conviction, and never even consider the possibility that they might have prosecuted the wrong person.

No one can refuse to acknowledge the fallibility of eyewitness identifications. The only question is how often it happens. Acknowledging the problem is not enough though - especially if you believe it could never happen in your jurisdiction. However, that is exactly the position taken by most DA's office. We can only guess at how many innocent people could obtain relief if other DA's would take the duty to do justice as seriously as Craig Watkins. So now it's time for them to step up to the plate. Craig Watkins thinks so too. At the exoneration hearing he stated:

Today was a breaking point for me,” Watkins told The Times. “My patience is worn thin. We have a responsibility, and that’s to seek justice.”

We just celebrated the most sacred season in Christianity. Most DA's profess to be Christian, and campaign on that position. Their view of Christianity is much different than mine though - focusing on punishing the evil doers. They forget the concept that all are created in the image of God, and entitled to dignity and respect - yes, that includes criminals and people convicted of crimes. I'm no theologian, but I have a hard time believing you are going to be getting points for the number of people you sent to prison, and how long you sent them down for. I also don't believe you are going to get a pass for those people who were wrongfully convicted - especially when you were presented with evidence of their innocence. If they spent a little more time thinking about that maybe Craig Watkins could cease being an anomaly.

Is there new hope for habeas defendants?

Walter Reaves — Tue, 03 Apr 2012 12:25:26 -0600

The Supreme Court recently decided a case that will undoubtedly impact cases across the country - the big question for me is whether it will impact cases in Texas. The case is Martinez v. Ryan. The situation was an all too familiar one - Mr. Martinez had post-conviction counsel who basically did nothing, filing a statement that she found no "colorable" claims to argue. The court agreed, and dismissed the petition. Sometime later Mr. Martinez got another lawyer, and filed a second petition, which contained several claims that his trial lawyer was ineffective. The Court dismissed the petition, relying on the rule that prevents a defendant from raising a claim that could have been raised earlier.

Martinez then went into federal court. He argued that even though the ineffective assistance claim had been defaulted because it was not raised in the first petition, there was cause for such default - which was the ineffective assistance of the first post-conviction lawyer. The Federal court rejected that claim, relying on the settled rule that since you have no right to the assistance of counsel in collateral proceedings you have no right to the effective assistance of counsel.

The Supreme Court granted review to decide whether you are entitled to the effective assistance of counsel when the post-conviction proceedings are the first opportunity a defendant has to raise ineffective assistance claims. Under Arizona law a defendant cannot raise ineffective assistance claims on direct appeal. The reason for that is fairly straight forward, and accepted in most states; the record on direct appeal is usually not adequate to resolve the issue.

The Court held that since the collateral proceeding was the first opportunity a defendant had to raise an ineffective claim it was the equivalent of a direct appeal. Unlike many states, Arizona actually appoints attorneys for the initial collateral proceeding. The Court held that made no difference though; a defendant is entitled to effective assistance whether counsel is appointed or not.

The question left open is how narrowly this decision will be interpreted? Does it only apply to jurisdictions where there is an absolute bar to raising ineffective assistance claims on direct appeal - such as Arizona. Or will apply to those states which discourage, or refuse to address such claims on direct appeal? Which leads to the question of how this applies in Texas.

Texas courts have consistently encouraged defendants to raise ineffective assistance claims in a writ of habeas corpus. However, they have also addressed such claims on direct appeal when the issue could be resolved solely on the record. Those are usually cases where there is no rational explanation for not doing something at trial. In all other cases the Court will presume counsel had a rational for what they did or didn't do, and will reject the claim on that basis; in other words, they assume the lawyer was effective.

I'm hopeful the decision will apply in the majority of cases, where the ineffective assistance claim cannot be raised on direct appeal. Unfortunately, we are going to have to wait and see.

Do you really want to go with the low bid?

Walter Reaves — Thu, 15 Mar 2012 11:33:34 -0600

I was on my way back last week from a spring break trip the coast. While driving north on Interstate 35 I noticed a billboard for a law firm. That's not that unusual - they seem to be everywhere, especially in bigger cities. What caught my eye was the statement - Federal Criminal Defense starting at $795.

I don't know whether this firm actually handles cases for that amount, or if its a trick to get people to call. My guess is that even they don't do the whole case for under a thousand dollars, they still do it pretty cheaply. After all, if you are going to advertise on price you need to be cheap. I've seen ads like this for DWI's and other misdemeanors but this is the first one I've seen for serious cases - especially in federal court.

What would you expect to get for $795. All the good lawyers I know wouldn't even open up a file for that. The reason is simple - no one can do a decent job for that amount of money. If you figure it up, you know you are going to have to go to court at least twice, and possibly more. Even you get in and out fairly quickly that's still several hours. You need to meet with the client several times - its always nice to know what they have to say, and to explain the case and the process to them. Again you are looking at several hours - or most likely a lot more. You also have to investigate and do research - again several hours. Before you long you've easily put 20 hours or more into a case, and that's a simple case. If you collect $795 you've made less than $40 an hour. That doesn't include your overhead - which you still have to pay. And remember this is all bare minimums. Most cases are going to require far more time to investigate and prepare - and explain.

Do you seriously want to pay your lawyer less than you pay your plumber or your mechanic? The old saying "you get what you pay for" can apply to lawyers just like anyone else. That doesn't mean you get a better lawyer the more you pay - it does mean that there some level where you have to start cutting corners. No one I ever represented wanted corners cut on their case. Instead, they wanted to leave no stone unturned. If that's what you want you have to pay for it.

The point of all this is that you shouldn't choose lawyers based on price. Would you seriously want the cheapest heart surgeon to operate on you. If you don't have the money go with a public defender - I can guarantee you are almost always going to be better off.

How many wrongful convictions could be prevented by a little common sense?

Walter Reaves — Thu, 08 Mar 2012 08:03:40 -0600

It appears that DNA is about to clear a man who was wrongfully convicted of rape based on an eyewitness identification. The Innocence Project Clinic at the University of Virginia recently filed a petition for actual innocence on behalf of Bennett Barbour. Mr. Barbour was convicted of rape back in 1978. The scenario was a familiar one - the victim identified Mr. Barbour in photo line-up. Was is also familiar are the facts that pointed to his innocence - facts that were ignored or dismissed by everyone. According to the article in t he Williamsburg Daily Press those those facts included":

DNA testing was not available at the time of Barbour's trial, but he had three witnesses backing up his alibi defense. Also:

• Barbour, who weighed 115 pounds, did not match the initial description the victim gave police;

• hair recovered from the scene did not match his; and

• testing failed to identify Barbour's type B blood, just type A blood, the same as the victim and her fiance.

The case is certainly far from unusual - eyewitness testimony trumps almost everything else. So what if the witness described someone with a beard and the defendant is clean shaven; or the description is someone over 6 feet tall and the defendant is 5'5". Alibis are seldom believed - after all it's easy to get someone to lie for you isn't it? In other words, discrepancies are ignored instead of being the spark for further investigation.

There's no telling how many people have been wrongfully convicted because of mistaken ID's. We can only guess at the actual number based on the extremely small number of cases where DNA is available. In the vast majority of cases there is no physical or scientific evidence available to counter the identification; it's simply the defendant's word versus that of the victim.

What would happen if police and prosecutors started looking at eyewitness testimony with a healthy skepticism. When the facts don't add it's probably because they got the wrong person. I'm sure it's hard to tell a victim you don't believe them, but until we start doing that we are continue locking up the wrong people.

The hard part is saying it with a straight face

Walter Reaves — Mon, 05 Mar 2012 12:43:23 -0600

Chuck Lindell with the Austin American Statesmen recently reported about a case in the Texas Supreme Court involving claims of both actual innocence and junk science. The headline dealt with the "pedophilia test," which is commonly referred to as the "Abel" test after its founder. It is administered by showing the subject increasingly graphic pictures involving children, and seeing how long they look at each picture. The test was never meant to diagnose pedophilia, and its use has been limited in recent years. The question was what that meant in this case.

Michael Arena had been charged with sexually assaulting his two cousins - one male, and one female. They have since recanted, and it appears there is evidence that their mother had a habit of having her children make allegations of sexual assault whenever it looked as if her custody was in question. Despite that, the trial judge found the recantation was not credible.

That left Mr. Arena's future dependent on his attack on the improper use of the Abel test. He was a sixteen old at the time who had no prior record and a promising football player. After his conviction the prosecutor urged the jury to send him to prison for a long time to protect society from someone who had been diagnosed as a pedophile. The jury agreed, and sentenced him to prison for 20 years.

None of that is all that unusual - unfortunately. What stood out to me though was the prosecutor's defense of the verdict, claiming Mr. Arena could not prove he was harmed by any error. Apparently in his world being falsely labeled as a pedophile is not that big a deal. That was a little much for the even the judges, with one justice (Eva Guzman) stating that's "a tough argument to accept".

Unfortunately this happens time and time again. Prosecutors are trained to defend the verdict at all costs - even when it is clearly nonsensical. They really have no reason not to, since courts go along with them far too often. If when they do something wrong it's excused more often than not as "harmless". Maybe this case is different because it ended up in the Texas Supreme Court (because it was a juvenile case) and not the Court of Criminal Appeals; Supreme Court justices don't see prosecutors on a regular basis, and perhaps expect them to act like other lawyers.

Another thing this case points out is the huge barrier a defendant has to overcome to establish actual innocence. A recantation is not enough, even when supported by the evidence. If the trial court doesn't accept it, that is generally the end of the case.Maybe that too will be questioned by the Supreme Court.

This is a sad case that cries out for relief. Mr. Arena's future can never be restored, and he will always be labeled as a sex offender. A good start though would be to let him out of prison. Let's hope the Supreme Court does just that.

If at first you don't succeed....

Walter Reaves — Sun, 26 Feb 2012 10:28:26 -0600

Every law,yer has had a case (probably more than a few) where they know the Court flat out got it wrong. The law was clear, but they managed to blow it anyway. No matter how experienced and knowledgeable judges are they still make mistakes and miss things. Sometimes they correct them, but more often than not they don't. They simply move on to the next case.

I've seen court's fix mistakes but I can't remember a case like this one - Ex Parte Moussazadeh, where the court went back and reconsidered a a case they decided 8 years ago. The defendant had plead guilty pursuant to an agreement in which his capital murder charge would be reduced to murder and he would testify against his co-defendants. The defendant - and everyone else believed he would be eligible for parole after serving 15 years. That would have been correct had he entered a plea 11 days earlier. Unfortunately the law had changed when he did so, and he was subject to the newer regulations - which required that he serve 30 years before becoming eligible for parole.

Moussazadeh filed a writ in 2003 alleging his plea was involuntary. The court denied relief, employing some tortured logic. They basically held that the plea was involuntary only if the plea bargain was not followed; they found parole eligibility was not part of the plea agreement (which it couldn't be) and therefore the plea was voluntary. Never mind the fact that the defendant - and everyone else - didn't know what the law was, and believed he become eligible in 15 years.

Fast forward to 2011. The defendant files a successor writ, relying on the holding in Padilla v. Kentucky. He also filed a suggestion for reconsideration, asking the court to reconsider it's previous decision. The court had no problem rejecting the Padilla claim, since it clearly did not fit within that holding. (Kudos to the lawyers for creatively using it to get the case back before the court) However they granted the suggestion for reconsideration, and ended up granting relief.

The court went back and recognized that if a defendant is mislead about parole "eligibility" his plea may be involuntary. It's a fairly complicated legal explanation, but the bottom line is that if it was important then your decision could not be voluntary. Think of the decision to buy a car - you believe its new, and has 35 miles. You later learn it was dealer demo and they rolled back the odometer. you wouldn't have bought it had you known that, so you are entitled to relief.

This is the second time in as many weeks that have had to acknowledge a positive from the Court of Criminal Appeals. They deserve credit for going back and fixing a bad decision. Let's keep it up.

Back from Atlanta - thoughts on AAFS convention

Walter Reaves — Sat, 25 Feb 2012 10:00:49 -0600

I just got back from attending the American Academy of Forensic Sciences Convention, which was held in Atlanta this year. This was my second year to go, so I knew more about what to expect. Last year the sheer number of people and presentations to attend was overwhelming. It was no different this year - and going in I knew there was no way I could attend everything I wanted to.

In future posts I may write about specific sessions, but here I wanted to set out some general thoughts. The first impression was the quality of forensic scientists out there. The people that attend these meetings take their job seriously; they are not the people who blindly follow whatever direction the police set out. They are aware of the criticisms that have been leveled over the last several years, and want to fix the problems. If you work with them consider yourself fortunate.

One of the concerns I have is the use of forensics to determine guilt or innocence - we have seen too often what happens when the testimony turns out to be wrong. I'm happy to see that the good forensic scientists appear to share the same concerns. They appear to be frustrated about the way their testimony is manipulated and interpreted to fit the theory of one side or another. There were a number of sessions on how such testimony should be admitted and used - unfortunately, I was not able to attend them all, since almost every discipline had sessions on the topic.

Several of the presenters addressed the way such testimony should be presented. Not surprisingly error rate and uncertainty was a frequent topic. One of the scientists wondered why others were so concerned about talking about error rates; it's a fact that exists. The real issue is what it means, and how to explain it. For example, what does an error rate of +/-5% mean for a particular result? It might mean that the odds that the true result is within that range is 68%; we've all seen the "bell curve", but how many people actually understand it. If that is understood, then the question is whether that is enough to make a test admissible, or to base a conviction.The use of statistics and how they can manipulated and misused was also a topic of concern.

I'm starting to believe that the problem with the use of forensics cannot be laid entirely on the scientists; it's on the lawyers. We not only have to understand it, but we have to understand it's limitations. Clearly the scientists have an obligation to make sure we understand the limitations, but its up to us to make sure they do. And it's also on us to make sure juries and judges understand it. If properly explained, then maybe judges and juries can make the right decision.

Why politics and prosecution don't mix

Walter Reaves — Tue, 21 Feb 2012 08:16:25 -0600

I admit I'm not a big fan of politicians. With a few exceptions I don't think they truly believe anything. Instead, they are more worried about what the general public thinks - or at least what they believe they are thinking. In the area of criminal justice that can lead to disaster. Everyone thinks they want to be tough on crime - until it's someone they know caught up in the system, or they discover they don't have money to lock up everyone.

Prosecutors have to walk a fine - and there are very who do it well. They are charged with the obligation to see that justice is done. Unfortunately, that is not so easy to discern, or do. Justice does not mean locking up everyone and throwing away the key. Punishment is appropriate, but justice requires more than giving in to the interest of victims and the general public. Justice also requires considering the individual defendant, as well as the interests of the general public and society.

Every case is different. Crimes are committed in all sorts of ways. There are also all types of defendants and victims - where you have a victim based crime. No one approach can ever hope to balance all the varying circumstances. To be fair, some consistency is required - if for no other reason than to know where to start at. When you try to pigeon hole all cases into one disposition though problems are bound to arise.

What caused me to write about this is a post in Grits for Breakfast about the policy of the McLennan County District Attorney - Abel Reyna - to impose an increased fine on all defendants convicted of DWI. He says all t he things you expect a District Attorney to say when pandering to the public; they should of thought about the consequences before they did it, etc.... No doubt he wants to appear tough on DWI's - and is quite proud of that. There's nothing wrong with that ; unless of course you let political considerations influence the outcome of cases - which is exactly what is happening here.

Over the years the legislature has jumped on the DWI bandwagon - and used defendants as a means to raise revenue. The $1,000 surcharge has been a disaster, with the result that the legislature has been forced to set up a procedure for handling those individuals who can't pay it. They recognized too late what every one told them at the beginning - not everyone can pay that, and you are going to end up with a lot of unlicensed and uninsured drivers who have no other choice. (BTW - Scott Henson aka/Grits has long been advocate of an amnesty program for surcharge payments and has covered that issue better than anyone)

Is is really in the best interest of society to saddle defendants with costs they can never pay? No doubt some may choose to sit out their time in jail - which taxpayers will pay for. They will then lose their license, and get caught in the vicious cycle of trying to work and support their family without having a way to get to and from work.

There is one important thing prosecutors fail to consider when implementing a "get tough on DWI" policy. Most DWI defendants are average hard working people who made a mistake. They will probably never do it again, and they learned their lesson when you put them in the police car and threw them in jail. They are the people who pay taxes, support their schools and civic organizations, and generally keep society thriving. And by the way - they also vote.

Continuing to hold prosecutors accountable

Walter Reaves — Sat, 18 Feb 2012 15:47:02 -0600

By the time the dust settles the case of Michael Morton may end up being one of the most significant in the history of Texas Criminal justice. On it's face, Morton's case does not appear to that much different from the scores of other exonerations over the last few years. What is different is the focus on how he got convicted in the first place - which was due mostly to prosecutorial misconduct. That involved not only withholding evidence at the first trial, but also fighting efforts to secure DNA testing.

The most recent development is the order granting a court of inquiry to look into the activities of the former District Attorney - Ken Anderson - who is now a sitting District judge. A court of inquiry is an unusual proceeding, which is aimed at investigating misconduct. They are seldom used, and I can't remember a situation where it has been used to investigate a prosecutor's actions in handling a criminal case. Instead, in the past prosecutors have essentially been granted a free pass, no matter how egregious the conduct.

I've written before about the lack of any meaningful sanctions for misconduct. If a defendant is lucky he might get a new trial, but that was not even a given. Prosecutors were rarely criticized, and if they were, nothing was done. The result was the creation of a culture of invincibility; they could do anything, and no one would question them. I'm hopeful that is starting to change, and this is one more more instance that gives me hope.

I don't know whether prosecutors are starting to take their duty to deal fairly with defendants more seriously; I can't imagine they aren't following these cases. Surely if a sitting judge can be called to task that would suggest no one is immune. We still have to see what the outcome is, but I think the message is clear. The attitude of obtaining a conviction at all costs is not without risks and that can only be a good thing.

Giving credit where it's due - Court grants writ on actual innocence

Walter Reaves — Thu, 16 Feb 2012 21:20:38 -0600

Normally I'm critical of the Court of Criminal Appeals - over the last few years they have issued some really bad decisions. If you are going to criticize you need to recognize them when they do something right. They did just that this week in the case of Richard Miles.

Mr. Miles was convicted of murder and attempted murder based mostly an eyewitness and a criminalist who testified that residue found on the defendant's hands indicated he had fired a gun. He had a good alibi, but as usual that was not enough; Eyewitnesses almost always trump everything to the contrary. Over the course of the last few years - and through repeated open records request - he was able to obtain two additional police reports. One confirmed that there were other suspects, and another concerned an altercation the victims had before the incident. He also eventually obtained a recantation from the only eyewitness, as well as a statement from the criminalist that she would not testify again the same way she testified at trial. For what its worth, he also passed a couple of polygraphs.

The new suspect came from his girlfriend, who claimed he admitted to shooting two people. He had a record of violence, and also matched the description given by the witnesses - which the defendant never did. There was also evidence about an altercation the victims had been involved with earlier, where one of them had to pull a shotgun. The criminalist testified at the original trial that under FBI guidelines she believed the residue was the result of firing a gun. She later admitted that guidelines of the lab where she worked were different - the amount was not sufficient to say it came from firing a gun, as opposed to picking it up from innocent sources.

What makes this case was unique is that it wasn't based on DNA. There was a recanting witness, but it was an eyewitness who was emphatic at the time of trial that Mr. Miles was the person he saw. The fact that he was shorter, lighter skinned and had different clothes on didn't phase him - or the police. Nor did the alibi - which was provided almost immediately. The evidence of innocence was compelling, but in the past that has not been enough. It was here though, and maybe it signals a change in the way the Court is going to handle these claims.

Prevailing on an actual innocence claim is next to impossible - especially when you don't have physical evidence like DNA. Even though the court has acknowledged the problems of eyewitness identifications, that hasn't been enough to grant enough relief. There was a Brady claim here, which has increasingly been the basis for granting relief. You also had unreliable scientific evidence, but the court all but shut the door earlier on that as the basis for relief.

This case had a little bit of everything, and maybe that makes it unique. There was a Brady violation, bad eyewitness testimony, and faulty forensic testimony. Unfortunately, that is not that unusual. It is often the case that a number of different things go wrong when someone is wrongfully convicted. The courts have tended to isolate each issue, and not view them together, as the jury would. To their credit, they did that in this case.

I'm not going to get overly optimistic - but I can't help but feel encouraged by this decision - even if it did them two years to deliver it.

How dare you!

Walter Reaves — Thu, 09 Feb 2012 15:23:56 -0600

The criminal justice system functions reasonably well in most cases. The problem is that it is administered by individuals, and human nature being what it is people don't always do the right thing. Prosecutors and judges have a tremendous amount of power; unfortunately they don't always exercise that power well. This is a real problem for prosecutors, many of who are young and don't have the benefit of wisdom that can only be obtained through living. The idea that a 26 year old prosecutor is making decisions that affect the rest of someone's life ought to send chills down the spine of most people.

But that's not the point of this post. With so much power it's easy to see how it can go to the head of someone who is not well grounded - as the old saying goes "Power corrupts and absolute power corrupts absolutely". The end result is that some prosecutors can come to believe they are the law. Which brings us to the subject of this post, which is the recent controversy in Dallas County.

It seems that the District Attorney - someone who has done a lot a good things for criminal justice - decided that the criminal records of police officers should not be disclosed. Julia Hayes is a county court judge who didn't believe that was the law - which is what judges are supposed to do. In a recent trial the defense lawyer asked for the criminal history of all witnesses - a standard request. The assistant district attorney - Keena Miller - refused to turn over records for the officers. She continued to refuse even after the Judge ordered her to do so. The judge then did what judges do - she held Ms. Miller in contempt.

If that was all that happened there wouldn't be much of a story. What happened next is the story. The District Attorney sent Judge Hayes a letter directing her to appear before the grand jury; and what's more, she was the target of an investigation into official oppression. By coincidence, she was asked to appear the same day - and before - the hearing she had scheduled on the contempt order.

This is definitely a new one for me. I didn't realize that if the DA didn't agree with a ruling you could indict them. I naively thought that's what we have appellate courts for. Apparently I forgot one thing - the District Attorney is the law; the argument is simple - we are right, and if you don't agree then you must be abusing your authority.

Craig Watkins has done some good things with his conviction integrity unit, but that doesn't mean he gets a pass. I hope common sense prevails, because this is not going to go well for him. If he doesn't believe he can be forced to turn over criminal histories, let him appeal and get a decision. Don't shortcut the process, and put yourself above the judicial system.

Fortunately, this is a rare exception. But is a symptom of a bigger problem that we need to be aware of, and guard against. The problem is making sure there are checks on authority - especially when peoples lives are at stake. The District Attorney is not at the top of the totem pole; they are simply one of the participants in the justice system, just like defense attorneys and judges.

Arson update - Are th e courts finally getting it?

Walter Reaves — Wed, 01 Feb 2012 08:01:29 -0600

Thanks in large part to Cameron Todd Willingham and the work of the Innocence Project the problems with arson investigations are now well known. Almost everyone now concedes that there prior convictions that are flawed by investigations involving false assumptions and bad science (if it can even be called that) While courts - and individual judges - have publicly acknowledged the problem, they have been slow to actually do anything about it. Hopefully that may be changing.

Several recent cases show that the courts may be starting to take this seriously. The Third Circuit Court of Appeals last week sent a case back to the District Court for an evidentiary hearing. In doing so the court suggested that a conviction based on faulty science might constitute a due process violation.

In another case a federal magistrate in California in considering whether George Soulitous' 1997 conviction should be set aside because it was based on a faulty investigation. According to a former ATF agent:

Steven W. Carman, a fire investigator for 20 years with the U.S. Bureau of Alcohol, Tobacco and Firearms, said Modesto investigators relied on fire patterns and other forensic evidence that amounted to "a laundry list of things we used to believe broadly in this profession that have since been widely discounted."

Finally, an Ohio inmate is challenging his arson conviction before the parole board.

There is no doubt that these attacks are going to continue, as more cases are identified. Let's hope the Court's are up for the challenge.

Just how far can the police go?

Walter Reaves — Mon, 30 Jan 2012 07:43:56 -0600

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.