Texas should protect every phase of the trial process from junk science

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.

SB 344 should be praised as a reasonable and just safeguard against Robinson failures (the Texas version of Daubert).  However, the relief afforded by SB 344 is limited to trial.  Unfortunately, junk science permeates more than just the trial phase.  For example, future dangerousness, which has largely been discredited as junk science [http://www.deathpenaltyinfo.org/node/1099], has often been used during the sentencing phase of capital crimes to justify the death penalty.  If junk science is a serious enough threat to permit convictions to be overturned (loss of liberty), surely it is a serious enough threat to justify thorough consideration of the credibility of scientific evidence presented during the penalty phase.  Especially where the death penalty is concerned (loss of life).


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.


SWIFS stands for the Southwestern Institute For Forensic Science which is a for hire lab that is used by Dallas County for processing forensic evidence. As part of the Citizen Prosecutor Academy I had the opportunity to tour the new facility in Dallas. Having not toured the prior facility I have no comparison but I do believe it is important for the justice system to know that the lab it is using is reliable and to that end I believe it is worth it to invest our tax dollars in an up to date facility and state of the art equipment as well as the best people we can find. Case in point would be the Houston crime lab which has come under great scrutiny starting in 2002 and continuing a decade later. The mayor of Houston declared her goal to make the Houston crime lab an independent facility extracting it from the Houston Police Department which makes a lot of sense. It could be seen as a conflict of interest for the crime lab to be part of the police department since results can effect the police department’s cases. Plus being a for hire independent lab would add income theoretically. The heat on the Houston Crime Lab is due in great part to the case of George Rodriguez which is credited with bringing to light a lot of issues in the lab from untested rape kits to mismanaged evidence and issues with how tests were done. Rodriguez was released in 2004 and sued the city in 2009 winning a $5 million judgement from a jury but settling on appeal for $3 million in early November of this year along with an apology from the city’s mayor. Rodriguez was released after spending 17 years in prison for allegedly kidnapping and raping a woman. His conviction was overturned when the forensic evidence out of the Houston lab that was used to convict him turned out to be flawed. To read more about this check out the Houston Chronicle article here.

New Approach to Identifying Remains Helps Solve Cold Cases

There are thousands of unidentified cold cases in the United States.  Too many Jane and John Does lay waiting for years in hopes of someone coming along to solve the mystery of who they are and how they died. At the Lawrence Livermore National Laboratory in California, a new technique called “bomb pulse” radiocarbon analysis is used to help solve these cold cases.  The scientists at Livermore National Lab use a “multidisciplinary” approach along with traditional Forensic DNA research.  They recently cracked a 41 year old cold case of a missing child.  Up until now, the only information known about the skull, first discovered in 1968, was that it belonged to a child between ages 7 and 9, and that the child had died about 4 ½ years before the skull was discovered.

Working with the Centre for Forensic Research, Simon Fraser University in Canada in Vancouver, Canada, researchers were able to determine that the skull belonged to a male.  They were able to further create a mitochondrial profile that then matched a living maternal relative to the presumed missing child.  Livermore Labs took over from there.  Scientists took skull measurements, determined the skull ossification (the amount of soft tissue that s into bone-like material) and looked at the skull’s dental formations.  Then they examined the enamel from two teeth using this new radiocarbon analysis.  This analysis helped the scientists narrow down the exact birth date of the skull to within two years.  Through this information, scientists were successfully able to make a legal match and close the case.

This new research technique has numerous implications for the identity of victims in mass graves or mass fatalities.  Combining DNA and radiocarbon analysis provides the additional benefit of distinguishing between maternal relations and helps make a clearer match to those cases that have sat on a shelf, a mystery, for so many years.

For more information, go to https://www.llnl.gov/news/newsreleases/2012/Oct/NR-12-10-03.html

A Novel Use for Entomology in Forensics

Many may have known or have heard about the use of maggots to determine the time of death. Basically, the species of maggot infesting the corpse can allow you to determine an approximate time of death when the person died more than 72 hours ago. A new study in The Journal of Forensic Science, however, documents how DNA recovered from maggots was used to identify a body for the first time. This marks a significant step forward in the use of DNA in solving criminal homicides.

Authorities discovered a badly burned body in a remote part of Mexico. Maggots extensively colonized both the face and neck. Circumstantial evidence, including a report by the girl’s father, pointed to the identity of the victim, but the remains were so badly decomposed that they could not be identified through conventional means. Scientists collected maggots from the victim’s corpse and extracted DNA from the gut of the maggots. Using a fairly standard polymerase chain reaction test, the scientists were able to identify pertinent traits used in paternity tests from the DNA of the victim and match it with the DNA of the victim’s father. The results showed a greater than 99% chance of identification.

As grisly as this study is, it shows the extent to which science can improve our ability to solve crimes. Although, to the CSI generation, DNA is often thought of a means for identification in homicides, this is a novel technique. Whereas these bodies were once too damaged for traditional identification, the scientists in this study produced a novel means for improving the viability of DNA genotype testing in identification of homicide victims. No doubt, this technique will eventually become useful to authorities around the world. Slowly but surely the ability of killers to hide the identity of their victims is being eroded by developments in forensic science. Now human beings have yet another use for maggots.

Thoughts on Criminal Defense and Forensics

Dr. Sliter’s presentation on forensics was both enlightening and thought-provoking. In addition to his advice that, as attorneys, we should be attuned to differences among laboratories with regard to instrumentation, DNA kits, and interpretation standards, it may be worth mentioning that defense attorneys should feel out whether there is any bias by lab workers or expert witnesses from the lab by virtue of a relationship with the DA’s office. Because it’s likely that the DA’s office will hire the same expert witness(es) time and time again, a relationship between the prosecutors and the expert witness can feasibly occur, which can potentially lead to bias against defendants or even misconduct. (The risk of this is obviously higher in smaller counties). In cross-examination, defense attorneys can and should explore this possibility before the jury if there is reason to do so. For example, the defense attorney can always ask the expert witness if he/she was ever told by the prosecutors what to say or do, specifically before trial or during recess.

On a more general note about bias, in the state of Texas, the Texas DPS Crime Laboratory System claims to consist of independent, accredited labs but also claim that it is a state system. Their webpage, which is part of the Texas Department of Public Safety’s website, explains that “[t]he Texas DPS Crime Laboratory system is the largest state system that has undergone this level of accreditation.” (Emphasis added). The laboratories work directly with law enforcement officers and prosecutors to have evidence worked. It could be argued that these laboratories are actually an arm of the state rather than independent entities in and of themselves, thus making the process fundamentally unfair to defendants.

Here’s a link to the Crime Lab site: