Much of "Forensic" Science Unreliable

Juries are awed by forensic science in the courtroom. Fingerprint comparison, DNA, handwriting analysis, ballistics, blood-splatter, shoe print comparison, etc. Prosecutors across the county depend upon this evidence to obtain convictions and juries are conditioned by television shows, like CSI, to expect it. However, a recent report from the National Academy of Sciences says much of what passes for forensic "science" does not meet minimal scientific standards. Yet, when forensic scientists testify in court they are often shamefully overconfident about their "scientific" findings.

Following are several significant problems identified by the study:

1. Bias: Forensic scientists are often exposed to information which fosters bias in their stated opinions. That is, forensic "scientific" tests are rarely performed "blind." The examiner knows what they are supposed to find in the samples, which effect the outcome of their testing. Contrast this with doctors who test a new medicine. They are not told which patients are taking the medication and which ones are receiving placebos. This is appropriate "blind" testing and eliminates bias.
2. Error Rates: Most forensic sciences lack good information about how often examiners make mistakes - a basic requirement of any good science. Experts testifying in court often claim error rates for their technique is zero. Preposterous! Even the best of scientific techniques have an error rate. Without objective information about a technique's rate of error a jury cannot properly assess the credibility of the information.
3. Over-claiming: The only forensic science making regular use of probabilities is DNA profiling in which experts testify to the probability of a match. None of the traditional forensic sciences (ballistics, fingerprints, fiber analysis, or handwriting) currently have the necessary statistical foundation to establish accurate probabilities. Adding insult in injury, experts who testify are allowed to claim their methods are 100% accurate. Again, preposterous.
4. Structural Independence: The cops and prosecutors employ and pay the experts who testify in court. Do you believe these experts might have difficulty maintaining their professional independence from police and prosecutors who put food on their tables? I dare to say, yes.

So what can be done to control this "out-of-control" system leading to the condemnation of thousands of accused persons each year?

First, judges presiding over trials in which forensic evidence is used must exercise their role as gatekeepers to protect the integrity of our criminal justice system. They do this by requiring higher standards for forensic science when used as legal evidence. They should prohibit experts from testifying to impossibilities like "zero" error rates. They should compel the experts to establish the reliability of their scientific techniques with peer review and other methods establishing the credibility of their testimony.

Second, the criminal defense lawyers who defend the accused must object to the use of forensic evidence until the proponent proves its scientific reliability. That means the defense lawyers must learn about the forensic methods being used, learn about the scientific pitfalls, and raise objections in court based on established case law requiring judges to make findings of reliability. Finally, they must hire their own defense experts to dispute the prosecutor's evidence and cast doubt upon its credibility.

Our justice system demands no less.

Texas Criminal Appeals

Several new appeals came into the office this year.  Fortunately, my clients possessed the presence of mind to call early in the appeal process to preserve as many of their rights as possible. The appellate timetable is unforgiving and must be complied with strictly to preserve one's right to review.  Criminal defense lawyers, and prospective appeal clients alike, must be familiar with the time limits applicable to criminal appeals in Texas. 

A plea bargain, where the trial judge does not exceed the punishment recommendation from the prosecutor, usually waives the defendant's right to appeal except for matters raised by written motion and ruled upon prior to the plea.  Motions to suppress evidence, for instance, are examples of such appealable matters.  Most appeals, however, result when a criminal case is contested and fought-out before the trial judge or jury. The defendant appeals the conviction itself and errors committed during the punishment phase of the trial. 

One's sentencing date is the key point in the appeal process.  Most time limits imposed upon the defendant in a criminal appeal begin to run on the day a person is sentenced. In general, the defendant has 30 calendar days in Texas to file a motion for new trial or to file a notice of appeal which vests jurisdiction in the appellate court. 

A motion for new trial is the best way to develop non-record claims such as ineffective assistance of counsel, disproportionate sentences, or juror misconduct.  Other possible claims raised in a motion for new trial include the denial of counsel, the misdirection of the jury, defense witnesses prevented from appearing in court, or evidence tending to establish a person's innocence being intentionally destroyed or withheld.  Also, any time the verdict is contrary to the law and evidence a claim can be raised in the motion for new trial. 

The notice of appeal must be filed within 30 calendar days of sentencing unless a timely motion for new trial was filed. This extends the deadline for perfecting appeal to 90 days after sentencing. After the appeal is perfected the "reporter's record" (i.e. transcript) must be requested and a "designation for material" (e.g. exhibits) filed with the clerk.  Although the request for the reporter's record and the designation are not subject to the 30 day deadline, it's a good idea to file these papers early to assure the ball is rolling and the appeal is proceeding in a relatively rapid fashion. 

After notice of appeal is filed the defendant may request an appeal bond, provided his sentence did not exceed ten (10) years confinement.  Granting an appeal bond is discretionary with the trial judge.  The judge may also order the defendant comply with bond conditions like regular reporting , a curfew, or other reasonable conditions.

If you have any questions about appealing a criminal case in Bryan|College Station, or other jurisdictions in Texas, please contact the Texas Criminal Appeal Attorney immediately to discuss your case. 

Defending a Child's Accusation of Sexual Abuse

Defending a child's allegation that Daddy or Uncle Bill "touched my private" or "made me touch his bottom" is an incredibly daunting task. Prosecutors, police, child protective services, and the general public believe young children rarely conjure-up these allegations out of nowhere. However, there's a reservoir of research showing young children are susceptible to suggestive interviewing techniques by local child advocacy center employees, or even the police, who question a child once an outcry of this nature surfaces.

Research on suggestive interviewing techniques has identified six types of interview behaviors associated with false outcries of sexual abuse. These interview behaviors are as follows:

1. Positive Consequences - Giving, promising, or implying praise, approval, agreement or other rewards to a child, or indicating the child could demonstrate desirable qualities like helpfulness or intelligence, by making a statement to the interviewer;
2. Negative Consequences - Criticizing or disagreeing with a child's statements, or otherwise indicating the statement was incomplete, unbelievable, dubious, or disappointing;
3. Other People - Telling the child the interviewer has already received information from another person regarding the topics of the interview;
4. Questions Asked and Answered - Asking the child questions already unambiguously answered in the immediately preceding part of the interview;
5. Inviting Speculation - Asking the child to offer opinions or speculation about past events or framing the child's task during the interview as using imagining or solving a mystery; and
6. Introducing Information - Introducing information not previously mentioned by the child. The new information in either an interviewer's statement or question represents a substantial addition or discontinuity with the child's previous statements.

These six suggestive interviewing techniques are by no means an exhaustive list of all the different ways a forensic interviewer might impose suggestive questioning on a child. However, these techniques are typically the primary focus of forensic analysis of child "victim" interviews.

Sexual assault defense lawyers need training to recognize a suggestive child interview. The better practice is to hire experts in the field to evaluate and critique an interviewer's questioning of a child. If necessary, the experts can testify at trial, or inform prosecutors, that an interview was tainted by poor methods and technique.

Arrogance Raises Its Head Again in Brazos County

Precinct 3 Justice of the Peace, George Boyett, was recently admonished by the Texas State Commission on Judicial Conduct after taking the law into his own hands by ordering a Texas A&M student into his courtroom following a traffic incident involving the judge and student.  It was the third admonishment received by the judge from the Judicial Conduct Commission.  (read the full story in the Bryan Eagle)  Judge Boyett's jurisdiction includes much of the Texas A&M campus and students attending the University should be aware of his public record for violating provisions of the Texas Code of Judicial Conduct.  

During the investigation of the current incident, Judge Boyett was found to have "acted in a manner that failed to promote public confidence in the judiciary."  Further, he was found to have "used the prestige of his office to advance his private interests."  And finally, he "did not act in a 'patient, dignified and courteous' manner toward those in his courtroom."  

Several of the comments on the newspaper's story are worth repeating:

"This is the type of behavior that gives public officials a bad reputation in general. I think a 3 strikes and you're out rule should be considered by State Commission on Judicial Conduct. Boyett clearly does not show the restraint necessary for any Judge. Talk about road rage. I am delighted to say I have never met this man. I hope that remains the case." 

"I have known this jerk for more years than I like to mention. He was a jerk from the begining and is still a jerk. He does not belong in a position of authority at any level. have you seen him in the film for defensive driving? It is a total embarrassment." 

"Boyett needs to be removed from office. He's notorious for his abuse of his position. There's certainly conflict of interest, as his office deals with a lot of landlord-tenant issues and guess what? He's a major owner of rental property in the northgate area. "

"This judge needs a good strong opponent to run him in the next election. He needs to be removed from office.

JP Boyett thinks he rules the world, or the part near him, anyway. It's not surprising he did as described. The wonder is he didn't try to jail someone. "

A justice of the peace is a public servant and member of the judicial branch of government, not the executive.  The job of the judiciary is to interpret the law, not enforce it. The bottom line? Judge Boyett has built a track record and reputation for arrogance and discourteous conduct toward those appearing before him.  I agree a strong opponent should run against him in 201o and bring his record to light for the public's evaluation. I know Judge Boyett attempts to bring a sense of strength and accountability to his courtroom by being tough.  But violating the rules of judicial conduct goes over the line, especially the 3rd time around. 

Reversing a Bad Result - Ineffective Assistance of Counsel

Several prospective clients called me recently asking how they can appeal their criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). "With great difficulty," I say. A plea bargain accepted by the trial judge waives most of a defendant's rights to appeal. However, there are a few cracks in the armor which potential clients should be aware.

First, a defendant's waiver of rights and plea of guilty must be voluntary. That is, the person's plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant's plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client's case that, had the facts been known, would have created a "substantial likelihood" the defendant wouldn't have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client "if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently." (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client's guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That's an involuntary plea.

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an "involuntary plea" situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Texas criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

The Jury Expert

I am not a consumer of jury consultant services. However, for the well-to-do client, who has money to burn, a jury consultant might be an expense worth incurring on a big case. If you cannot afford the high-priced services of a warm-bodied consultant, then maybe reading a good journal on the subject might serve your interests, as well.

The Jury Expert is a publication of the American Society of Trial Consultants edited by Dr. Rita R. Handrich. Dr. Handrich's goal is to translate social sciences research findings into practical and relevant tools for the trial lawyer. To that end, the journal features articles by academics on their research areas. The journal then gets reactions to those articles by experienced trial consultants who translate the theory into practice. Trial consultant responses to the articles focus on how the research can be used in litigation advocacy.

In addition to articles by academics, The Jury Expert also features practice-oriented articles by trial consultants on a wide array of litigation topics. The journal publishes six times a year and subscriptions are free. Their current issue features articles on cross-examination of narcissistic witnesses; juror reactions to successful women; varying attitudes of liberals and conservatives toward punishment; conceptual persuasion; the relationship between juror damages awards and generation; and more.

The Hole In The Non-Disclosure Statute

Non-Disclosure is a great way for persons to get a fresh start after running afoul of the law, getting deferred adjudication, and completing the deferred successfully. Orders of Non-Disclosure seal those records from dissemination into the public domain by the custodian of records, the Texas Department of Public Safety. However, there's a hole in the statute resulting from DWI arrest records which remain available to the public, even when the person receives a "reduction" and completes a deferred adjudication successfully.

The hole involves cases of DWI arrests where a plea agreement is reached on a "reduced" charge of obstructing a highway, reckless driving, or a like offense in which the accused is eligible for deferred adjudication (DWI is not deferred eligible in Texas). In Brazos County, the usual course involves the prosecutor adding a "Count II" to the misdemeanor complaint alleging obstructing a highway, etc. Count I, the DWI, is waived and the accused pleads guilty to the obstructing count. The court grants deferred and the client goes their merry way, successfully completing the probation.

After successfully completing the deferred the client comes back to me and asks if they can get their records sealed using an Order of Non-Disclosure. Of course they can. However, only the obstructing count will be sealed. The Bryan-College Station DWI arrest will remain on their record despite the completed deferred. Why? Because only the obstructing count was deferred, not the DWI count. Even if the clever defense lawyer includes the DWI arrest information in the Order of Non-Disclosure, DPS will not seal the DWI arrest record.

What about expunction, you ask? Excellent point. However, the problem is Chapter 55 of the Code of Criminal Procedure which provides for expunction. Chapter 55 does not authorize expunction for an arrest "unless" there was no court ordered community supervision resulting from the arrest (except Class Cs). But we know there was court ordered community supervision for the obstructing a highway count. Consequently, the person is not technically eligible for expunction of the DWI arrest and the local prosecutors have been objecting to expunction petitions on this precise issue in Brazos County.

What's the net result of this hole in the Non-Disclosure statute? Presently, even though a good DWI defense lawyer may get the prosecution to reduce a DWI to a deferred eligible offense, the accused person is stuck with a DWI arrest record that can neither be sealed, nor expunged. A big problem for young persons having made a mistake in college and now trying to develop careers in corporate America. Hopefully, the Texas Legislature will eventually fix this problem since the spirit of the Non-Disclosure law is being thwarted by a hole in the statute resulting when DWIs are reduced to deferred adjudication eligible offenses.