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THE CRUEL REALITY OF CRIMINAL EVIDENCE: IT’S JUST NOT THAT RELIABLE

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A Harris County Grand Jury began investigating the BAT Vans, as well as the possibility that the Harris County District Attorney had committed criminal acts, and a special prosecutor was appointed. The scandal really exploded when two of the top deputies in the DA’s Office and two court reporters were subpoenaed before the Grand Jury to explain how secret grand jury testimony transcripts somehow got into their hands. Soon, there was a second Grand Jury investigating what was going on with the first Grand Jury.

Result of it all: no one got indicted, everyone learned about the problems of BAT Van lab tests, and Pat Lycos served only one term as District Attorney of Harris County.

Justice Department and FBI Knew Forensic Evidence Was Unreliable But Kept Silent

Thanks to an expose written by Spenser S. Hsu for the Washington Post, we now know that the U.S. Department of Justice has known for over a decade or more that forensic evidence coming out of the FBI Lab was not trustworthy, but Justice Department officials as well as the FBI and various U.S. Attorneys and federal prosecutors didn’t bother to let anyone know that forensic evidence wasn’t reliable.

The Hsu expose is based in part upon a report published by the Office of the Inspector General summarizing findings of its 9 year investigation into misconduct by the FBI Crime Lab and complaints that the FBI Crime Lab was sending out flawed and faulty lab results. The IG Report was completed in 2004 and shared internally with U.S. prosecutors. However, no one released the report to the public nor did the report get circulated to members of the criminal defense bar.

There are said to be 100s of people who have been convicted of federal charges based upon FBI lab forensics (hair and fiber evidence) that have been wrongfully convicted because the FBI lab work is erroneous. Not only does this mean wrongful convictions and lost years behind bars for many people, it may mean some innocent people have been executed based upon the flawed FBI lab results. Hsu reported that in 1997 — a year into the DOJ’s investigation, when the issue of flawed lab results was known or suspected as revealed in a prosecutor’s memo— the State of Texas executed Benjamin Herbert Boyle based upon evidence that may now be revealed to be wrong.

FBI Announces 2014 Discovery of DNA Database Errors

In January 2014, the Federal Bureau of Investigation (FBI) announced that there had been a discovery of numerous errors in its national DNA database, which is an unprecedented revelation by the agency. It appears that lab technicians have made errors in interpretation or handwriting, and the FBI has pointed to the discovery of errors within its DNA analysis as leading to new suspects in old, cold cases. However, it’s not clear whether or not the flaws in the FBI DNA database have resulted in any wrongful convictions at this point.

STEPS BEING TAKEN FOR JUSTICE IN TEXAS CRIMINAL EVIDENCE

In criminal proceedings, “junk science” is any scientific evidence that is used in a criminal trial which is phony, fake, fraudulent or otherwise untrustworthy and unreliable. The incompetent and sometimes phony lab results produced by Houston Crime Lab technician Jonathan Salvador are a prime example of “junk science” that has resulted in thousands of criminal convictions being vulnerable to being overturned by the Texas appellate courts as violative of constitutional due process.

The Texas Forensic Science Commission has been working hard in recent years to address and solve the huge problem of Texas prosecutors using “junk science” to get convictions against people – wrongful convictions. Their 2013 investigative report (read it here), for example, should help increase the fairness of Texas evidence collection and admission. However, “junk science” remains a serious problem for criminal defense cases in Texas.

On September 1, 2013, a new law became effective in Texas designed to combat junk science problems in Texas criminal cases. It provides for an Application for a Writ of Habeas Corpus to be filed, where the reviewing court is asked to free the defendant from unlawful detention or imprisonment because of “junk science” being a part of the prosecution’s case.

This new law also allows Texas judges to overturn convictions upon a showing that “junk science” evidence was used to get a conviction and simplifies the procedures that defendants must follow in making arguments that there has been an injustice involving untrustworthy scientific evidence in their case.

Additionally, other tools are being provided to defense lawyers seeking to suppress evidence during the trial process or to overturn the admission of evidence during appellate review. One of these tools is the ability approved by the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). This High Court case allows criminal defense lawyers to call and cross-examine police lab experts on the witness stand about the evidence that they have created or analyzed.

However, Junk Science is only a part of the problem. Prosecutorial misconduct is another.

The Texas Legislature has passed legislation in response to the Michael Morton case aimed at thwarting future misconduct by state prosecutors. The Michael Morton Act has been passed and the Texas Supreme Court has amended its Disciplinary Rules regarding prosecutorial misconduct.

Key to these changes is the clarification that prosecutors can be punished for “fraudulent concealment” of key evidence even if many years have passed after the trial itself if that evidence is shown to have resulted in a wrongful conviction.

Steps are being taken to discover intentional wrongdoing by prosecutors in Texas and the passage of new legislation as well as revamping the disciplinary rules that govern their licensure to practice law are both good steps toward resolving this problem.

However, today in Texas there is a serious skew in how evidence is presented in criminal cases. The scales of justice are tipped unfairly toward fake and false evidence being used against criminal defendants now as well as longstanding injustices remaining while men and women wrongfully convicted by untrustworthy evidence are not freed.

Making sure the public at large is aware of this situation is important to righting these wrongs. The naivety of those who watch television shows and enjoy movies where evidence is presented with strengths and integrities that do not exist in the real world must be addressed, and it is hoped that this short article helps in educating folk on how unfair the presentation of facts can be, and has been, in Texas criminal court proceedings.


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