Saturday, April 25, 2015

FBI Faked Forensic Science? No Big Deal!


It keeps getting worse. Ironically, this may be the problem.

Spencer Hsu broke yet another junk science story this week in the Washington Post. The story did not involve an unaccredited hick crime laboratory helmed by country bumpkins. No, this was the F.B.I.

Yes, the freakin' Federal Bureau of Investigation.

Hsu's lede:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Dahlia Lithwick in Slate, sub-headlined a story concerning these findings with "The F.B.I Faked an Entire Field of Forensic Science". The sub-headline is not hyperbole. In 258 of 267 trials, the FBI has confirmed their examiners overstated hair and fiber matches while giving expert testimony. All the testimony favored prosecutors. That would be 95% of cases reviewed, so far.

More chilling? 32 involved death penalty prosecutions. 14 of those 32 defendants now have been executed.

Digging deeper into Hsu story reveals additional, troubling junk science specific to Texas. In a graphic accompanying the Hsu's story, Texas (20) was behind only Florida (42) and Pennsylvania  (21) in the number of state prosecutions in which junk scientific testimony was given. 5 of those 20 cases in Texas were death penalty cases. All 5 defendants have been executed.

For those keeping track at home, that would be 1 in 4. In other words, 25% of cases in which FBI examiners testified, using science to convict and sentence a Texas defendant to death, it was junk. In all the cases in which this now debunked testimony was given, the defendant was executed.

How did Texas print and broadcast media outlets follow up on the Texas angle? In addition to running Hsu's story, The Dallas Morning News ran a good editorial. The DMN editorial contained this awful Texas centric illustration of the dangers of junk forensic science:
The erroneous evidence uncovered in this review is a painful reminder of the aftermath of the ghastly local murder of 7-year-old Ashley Estell, abducted in 1993 from a Plano park. Authorities thought they had the right suspect, but after Michael Blair spent 14 years on death row, the case against him came apart.
The weak link? Supposed expert testimony based on hair-fiber analysis produced damning trial evidence, but the findings were later discredited by newly developed DNA technology.
Did not read about it? The FBI fake field of science story was pretty much gone with the news cycle. It had no news legs. The public seems less outraged, not more, with each new flawed forensic science story.

How can this be? It is my view no personal resonance exists unless there is skin in the game. This became painfully evident to me several weeks ago when I mentioned Michael Morton to a jury panel in a DWI case I was trying. It was in the context of science and error analysis. Of the 27 panel members, I was astonished to find in my well educated county (a major university is located here), only a few hands went up.

Oh my lawyer bubble.

 It did get me to thinking. In her Slate story riffing on these disclosures, Lithwick wrote:
Since prison-crowding and justice reform are widely touted as issues that unite the left and the right in this country, going back and retesting the evidence of those who may well have been wrongly imprisoned should be a national priority. So far it isn’t, perhaps because the scope of the enterprise is so daunting. Or perhaps because nobody really cares all that much about people who’ve been sitting in jail for years and years. Says [UVA Law Prof Brandon] Garrett: 'These victims may remain unrecognized and in prison—if they still live—and the same unscientific testimony continues to be delivered without limitation. … But hey, these are just criminal cases right?' 
 There is the problem. As Walt Kelly's comic alter ego, Pogo, famously quipped in another context, "We have met the enemy and he is us."

Sunday, April 19, 2015

Two Days in April

It started as a beautiful April day.

I was driving back from the courthouse in Franklin, Texas when news broke over my truck radio of a fire raging at the Branch Davidian Compound near Waco. I remember thinking the north wind whipping those flames of death was carrying it's lurid work south to me as I drove.

I was in my office two years later to the day when an attorney I share office space with burst in and exclaimed the Federal Building in Oklahoma City had been blown up. I was in that city two years after and made a point of visiting the site and temporary memorial. I remember closing my eyes and imagining what had happened near where I stood.

Chaos, blood and death.

Then, four years and day after that awful April experience, more death at Columbine High School. I was a father by then, twice over. I remember thinking of the parents confronting it. Their children's lives ending, violently, unnaturally, before their own, and before their eyes.

Today is the 20th anniversary of the Oklahoma City bombing, but these three events on two successive days in April will always be tied together in my mind.

In a life where lessons contain many hues of gray, one lesson learned is evil does exist. For these two days in April, I especially hunker down and hope it does not rear it's ugly face.

Sunday, April 12, 2015

2015 TX Lege Update: Status of Expunction Legislation

UPDATE 07/01/2015: Governor Abbott vetoed HB 3579, which would have changed existing exupunction law by focusing the determination of the right to exupunction of an arrest on the offense for which the arrestee was later convicted, or placed on deferred adjudication. Current law does not allow expunction, in most cases, if the arrestee is convicted or placed on deferred for ANY offense arising from the arrest, even if the actual arrested for offense is dismissed. My blog post on the veto and the Governor's justification for it can be found here.  

Legislative efforts to reform expunction law in Texas is neither well covered by traditional media nor well understood among those who seek it. It is not sexy legislation, but in a digital age when virtually all personal history is available by keystroke, expunging an arrest can permit opportunities otherwise crushed.

Expunction requires government officials to destroy records associated with an arrest and resulting formal charge, if any. It also allows the person who has secured the expunction to deny being arrested.

Powerful stuff.

There was a time in the not so distant past when searching for criminal histories required a personal visit to brick and mortar county courthouses. Not any longer. Availability of criminal histories has proliferated with the advent of fee based public filing databases. I have written previously about the bulk sale of criminal histories to these databases by the Texas Department of Public Safety and individual district and county clerks.

In the Texas House, Rep. Terry Canales has introduced HB 1014 which would allow expunction of certain offenses which have resulted in deferred adjudication (DAJ). Deferred adjudication was originally conceived as an alternative to conviction of an offense that resulted in probation. No conviction resulted if the probationary term was successfully completed. The concept, though still in place, has been steadily chipped away in the years since it was conceived. As a result, employers, mortgage companies, and colleges, among others, now typically ask about whether an applicant has ever been placed on or completed a DAJ.

Canales' bill would allow expunction of a DAJ if the DAJ was non-violent, successfully completed, and the person seeking the expunction has no subsequent charge for anything other than a Class C misdemeanor (fine only offenses). From my admittedly biased standpoint, this approach restores the original intention of DAJ and recognizes in a world of internet dissemination, there should be expanded rights associated with non-violent DAJ's.

In the Senate, Sen. Royce West has two bills of note on expunction. The first, SB 1644 expands and clarifies the availability of expunction. The bill would make it more widely available and makes the remedy available sooner for those who qualify. SB 1644 also contains wording also in a separately introduced bill by West, SB 416, prohibiting waiver of the right to expunction.

Many prosecutors (or prosecutor office policy) require waiver of expunction rights as part of plea deals that involve reduction of originally charged offenses. Given the discretion afforded prosecutors, when reductions are offered, criminal defense lawyers and their clients are hesitant to make expunction waiver a deal breaker. Given the current state of the law, it makes little difference anyway: If the reduced charge is anything other than a Class C misdemeanor, expunction is almost impossible. That could change depending on when and how extensive the reform is to existing laws.

Rep. West's proposed legislation recognizes waiver of expunction rights could become more of a practical problem, and would eliminate it altogether. I am anxious to see how much push back to this proposed legislation there will be from prosecutors and law enforcement.

Tuesday, April 7, 2015

"The Rule" and Civil Penalties for Pot Get Public Hearings

UPDATED 05/06/2015 - Brian Rosenthal follows up his story cited below from the Chronicle with news of passage of Rep Moody's civil penalty bill, HB-507. With the full complement of the supporters present, including Rep. Terry Canales, the house Criminal Jurisprudence committee approved HB-507 by a 4-2 vote. The bill seems destined to die in the Calendar Committee without being brought to the floor for a full vote, says the story.

UPDATED 05/04/2105 - From a story from Brian Rosenthal of the Houston Chronicle, The House Jurisprudence Committee has voted not to refer Rep. Moody's civil penalty only bill, HB-507 out of committee. The same fate befell other decriminalization legislation from Gene Wu and Harold Dutton (reduction of 1 oz to a fine only). The vote was 3-2 with Reps Todd Hunter and Terry Canales not voting. Rep Canales was absent from the vote due to a dire family emergency. Moody is, however, quoted in story: "I'm hopeful that there will be a possibility to resuscitate it this session."

Godspeed Rep. Canales.

UPDATED 04/09/2015 - Mark Wiggins of KVUE in Austin attended the public hearing last night and has nice coverage here. Particularly liked former assistant Harris County D.A. (and candidate for Harris Co. D.A.) Kim Ogg's comments.
"Laws are like sausages. It’s better not to see them being made."
Or so says the the old saw most widely attributed to the German politician Otto Von Bismark. For Texas legislative geeks, I must say Grits for Breakfast is the best place to keep up with pending criminal justice legislation in the Texas legislature.

A good example is this post from Grits on April 6, 2015 relating to a scheduled public hearing on Wednesday April 8, 2015 on certain pending bills before the house criminal jurisprudence committee. I would never have known these bills were set for public hearing if not for Grits. The list is here. I did not know of the existence of one of the bills.

First up is the HB-95 by Rep. Allen Fletcher (R-Tomball). Texas Legislature Online attributes authorship to Reps. Villaba, Flynn, Moody and  Leach. All but Moody are GOP members. Moody, a Democrat from El Paso is the ranking Democrat on the committee.

HB 95 would amend Article 36.03 of the Texas Code of Criminal Procedure to allow a designated representative of the prosecution to be present during criminal trials. This individual could not be wearing a uniform or badge during trial proceedings. This would in practice typically mean the detective who worked the case.

Article 36.03 and Rule 614 of the Texas Rules of Evidence require the judge, if asked, to remove potential witnesses from the courtroom during the trial. These witnesses are instructed they cannot discuss their testimony with anyone other than the lawyers trying the case or their representatives. "The Rule", as it is called by lawyers, essentially is meant to prevent witnesses from tailoring their testimony based on what other witnesses have said from the witness stand.

I was originally taken a bit aback by this legislation. So, for example, does this designated prosecution courtroom representative get to sit at prosecution counsel table? I mean they are the "prosecution's designated courtroom representative." As such, why would they not?

The more I have thought about this, though, the less the bothersome the legislation is. Sure, the detective working the case gets to sit in, but they are typically prepared for testimony before The Rule is invoked. Second, they will still be tied to their originally generated reports on cross examination.

More important, it allows a defense lawyer to cross examine on the persistent Joe Friday "Just the facts, ma'am" illusion of objectivity. In other words, it aligns a supposed objective criminal investigator squarely with the State. For example, "Detective, you are the government's designated courtroom representative in this case, right?" coupled with something like, "You were the person most responsible for investigating facts in this case, right?"

Perhaps a small thing, but if used right, effective.

A law enforcement investigator's presence as a prosecution representative can also be used much the same way a prosecutors currently use the defendant's presence during testimony when a defendant elects to testify: "You've been present in the courtroom during all the testimony, right?"

The second bill is HB 507 by the previously mentioned Rep. Moody. This is the civil penalty only bill for possession of marijuana of less than a single ounce. I have previously written about the creativity of this bill and much better and extensive analysis has been given elsewhere.

 I write here because I wonder if Moody's name on HB 95 - the change to "The Rule" amendment from Rep. Fletcher - is meant to trade for GOP support on his marijuana legislation.

I am also curious about who will show up to oppose it. The public hearing should smoke out much of the real opposition to this bill. I particularly am interested about the Texas Criminal District and County Attorney Association and their views.

What says ye?

Sunday, April 5, 2015

An Easter Story

I have a well developed tactic when approached by panhandlers. It is so well developed, in fact, that I shift into auto pilot when a possible encounter is spied. When they slow to entreat, "Spare a dollar? or "'Cuse me, sir, any change?" I use their slowing to take a couple of quick steps to increase distance while throwing off a casual "No, not today."

Works every time.

Well, almost.

It happened a few blocks away from the office in my city's small downtown. My panhandling warning system suddenly engaged as a disheveled figured walked toward me. As we passed I felt their gaze, but the figure said not a word. I was silently thanking the gods for the painless encounter when two words stopped me in my tracks.

"Hey, Lane" the figure muttered.

I stopped and turned around. 

It was a former client, educated and well employed when I had represented them. It had been a less serious criminal charge by any metric, and had been favorably disposed of as I remembered.

The figure standing in front of me was a shell of the person I had known. They told of having fallen on hard times, and then hit me up for a couple of dollars.

I handed over a twenty, compelled to give something more than what they asked.
                        
A year or more passed. A few weeks ago I saw them again. 

I was in the reception area of my office when I spotted them walking up the sidewalk. It seemed wrong to flee to the safety of my office. I stayed put. 

"Hey, Lane." 

I looked down to glimpse a hand with a twenty dollar bill in it. 

"I need to pay you back." 

No was not to be taken as an answer. They were working again, and though the future was unknown, it was hopeful.

Can anyone ask for more?

I shake my fist toward the heavens at the unfairness of the world. I rail professionally against those I perceive ungenerous only to to be ungenerous myself. Being the father of a non-verbal son only serves to make this hypocrisy harsher when focused in self reflective light.

But thankfully, Easter came early this year. Rebirth and redemption in the form of a disheveled but clear eyed former client, with hope for a future.

Something more, I think, than what they asked.

Saturday, April 4, 2015

Crying Over Spoilt Evidence

Spoliation. Now there is a word lawyers love.

The legal profession feels compelled to use words like spoliation. A google search reveals use of the word peaked in the middle of the 19th century. That would be 1850, give or take a couple decades. For the Love of Pete, I do not know why the legal profession uses words that fell out of common usage around the time Charles Dickens penned Bleak House. I daresay it is a reason Mark Twain, the master of plain words, despised the legal profession.

 Spoliation in a legal context means the  intentional, reckless or negligent destruction of evidence. It occurs in both civil and criminal cases. The problem is what to do about it if a trial court has evidence it has happened.

In Texas criminal courts, the answer is straightforward: Unless the destruction is done in "bad faith", the party hurt by the destruction, inevitably a criminal defendant, is out of luck. This is essentially the result of the Supreme Court of the United States (SCOTUS) in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988).

Youngblood involved a defendant named Larry Youngblood, arrested in 1983 for the sexual assault of a 10 year old boy. The child described the assailant as having a messed up eye, which Youngblood had, and later identified Youngblood as the assailant. Serological evidence collected was not properly preserved and degraded before it could be tested. Youngblood was later convicted.

On initial direct appeal, Arizona state courts reversed based on federal due process grounds concerning the state's failure to preserve this evidence. SCOTUS reversed the Arizona state court. SCOTUS decided no federal due process violation occurs unless "bad faith" is proven in the failure to preserve the evidence by government officials.

In 2000, using more sophisticated technology, the degraded serological evidence was able to be tested. The Innocence Project tells the rest of this tragedy succinctly:
 In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and is currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to 24 years in prison. 
Sadly, Youngblood died in 2007, without receiving any compensation for his wrongful conviction. 
Bad faith is virtually impossible to prove. It requires not only intentional destruction, but an additional requirement of some knowledge the destruction is useful to the nonspoliating party. Several states responded to the Youngblood decision by allowing trial court jury instructions for spoliation based on independent state due process  constitution provisions.

Not Texas.

 Most often, in my experience,  spoliation shows itself in a destroyed law enforcement video or audiotape evidence. For example a DWI stop in which video of the field sobriety testing, blood or breath collection is not properly downloaded or is overwritten.

Spoliation is also a place in the legal road where civil systems and criminal systems converge. In July 2014, the Supreme Court of Texas (SCOTX), the court of last resort in Texas civil appeals, decided Brookshire Bros v. Aldridge, 438 S.W.3d 9 (2014). Aldridge involved the destruction of videotape of a slip in fall in a grocery store. SCOTX aligned civil spoliation with the SCOTUS decision in Youngblood, holding absent bad faith, no jury instruction may be given informing a civil jury it may hold the destruction against the party destroying the evidence.

One exception, according to SCOTX, to not instructing a jury regarding negligently destroyed evidence is if "a party's negligent breach of its duty of reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense." Aldridge at 25-26. An instruction in such a case would be appropriate because the destruction "could completely subvert the fact finder's ability to ascertain the truth." Id.

This exception is not currently part of the Texas criminal court system calculus. With apologies to the band Nirvana, it smells like due process to me.

With advances in technology there is less and less good reasons for loss of evidence. With bad faith as a yardstick, though, there is no real hammer to punish for negligent failure to so do.

Youngblood has always been a particularly sore spot. Part of the refusal of appellate courts to allow instructions to juries is the burden placed on law enforcement in preserving evidence and the confusion of issues when defense lawyers start try to make a trial about the evidence destroyed instead of the elements the state has or has not proven. This reasoning, to me, degrades the ability of juries to weigh evidence while following legal instructions.

Weighed against the harm to defendants like Larry Youngblood, it seems a fair trade.

When confronted with this eventuality at trial, criminal defense lawyers (and civil plaintiff lawyers) should always tender a proposed spoliation instruction. For criminal defense lawyers, cite the Texas due process clauses and open court provision of Art. I, Sections 10, 13 and 19. The Texas Court of Criminal Appeals may not bite, but you cannot change the law on appeal if you do not preserve it in the trial court.

While you are at it, cite the the federal due process clauses. SCOTUS may yet come around to the right side of history. Larry Youngblood deserves no less.