Post-Conviction Relief from Junk Science

On November 18, 2013, Texas freed three of the women referred to by the media as the “San Antonio Four.”  The women were serving fifteen year sentences (with one serving a thirty-seven and a half-year sentence concurrently) for the sexual assault of two young girls.

Attorney Mike Ware, director of the Innocence Project of Texas, filed a petition under a new Texas law, which went into effect on September 1, 2013, that allows convictions to be challenged where modern scientific knowledge controverts the validity of the scientific evidence offered at trial.  SB 344 [ftp://ftp.legis.state.tx.us/bills/83R/billtext/html/senate_bills/SB00300_SB00399/SB00344F.htm], commonly described to as a “junk science” law, enables a court to overturn a conviction where it is more likely than not that the jury would have acquitted the accused if modern scientific knowledge had been available and presented at the time of trial.  However, to prevent clever defense attorneys from getting a second bite at the apple, SB 344 cannot be used to file a petition where the defendant was aware of the superior scientific knowledge at the time of trial but failed to raise the issue.

The primary evidence offered at trial was comprised of the victims’ testimony and the testimony of a medical expert.  According to the victims’ statements, the four women had held each girl captive in a bedroom and sexually assaulted them over the course of two days.  Furthermore, it was alleged that one of the captors “had used a gun to threaten [one of the victims] not to tell any one about the assault.”  But the credibility of the victim’s testimony was seriously weakened when one of the victims later recanted [http://www.mysanantonio.com/news/local_news/article/Woman-recants-accusation-of-sex-assault-3868974.php#ixzz26dbVbncB] in 2012.

There is some suspicion that prejudice towards the four women’s sexual orientation may have played an unfortunate role in their convictions.  In addition to charges of homophobia, supporters of the jailed women had identified several issues [http://fourliveslost.com/evidence-of-innocence] that called into question the validity of the evidence offered against them.

The State’s medical expert, Dr. Nancy Kellogg, had testified that a scar on the genitals of one of the victims supported the conclusion that the victim had been sexually assaulted.  Kellogg had also expressed concern in one of her reports to police that the incident could be “satanic-related.”  The defense did not challenge the State’s expert with its own expert.

In a habeas petition made possible by SB 344, Ware offered a recent medical study to controvert Kellogg’s testimony.  In 2007, the American Academy of Pediatrics conducted a study of 239 female child sexual assault victims and concluded that despite the wide range of injuries suffered, “[n]o scar tissue was identified . . . in any of the patients.”  The report explained that “injuries in these prepubertal and adolescent girls all healed rapidly and frequently left little or no evidence of the previous trauma.”  Based on the study, there is little scientific evidence to suggest that sexual assaults cause scarring in young children.

At first blush, the study’s conclusion appears to controvert Kellogg’s testimony that the scar was one of several indicia of sexual assault.  However, the study can only be relied upon for the proposition that a medical examination of most victims will show “little or no evidence” of the assault.  The study does not establish that scarring is not possible, or that a scar, if present, is not indicative of sexual assault.

Assuming that many of the reported inconsistencies in the evidence are true, reversal is the outcome that best serves justice in the case—albeit almost too late to save any of the women from serving nearly all of their sentences.  However, in applying SB 344, the reviewing court reached a just conclusion but upset a jury verdict to do so.

SB 344 only permits reversal where “junk science” is the “but-for” cause of the conviction.  Because of a rapid healing rate, the presence or absence of a scar does not rule out the possibility of sexual assault, and the convictions are still supported by other evidence at trial, including the victims statements.  Although one of the victims recanted, recantation testimony alone may not be sufficient to overturn a conviction, with some courts favoring the original testimony at trial over the new.

SB 344 will likely serve as an important post-conviction tool to safeguard citizens from being deprived of their liberty because of unreliable scientific evidence.  However, courts should be careful not to discredit the judgment of twelve persons because the pendulum of scientific thought on a particular matter has swung the other way.

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