Texas Court of Criminal Appeals: Case of First Impression on Texas’ New Junk Science Law

Two years ago, we were optimistic about the efforts being made by many to resolve a huge problem of injustice here: the problem of “junk science.” All too often in this state, and across the country, “junk science” is being used to wrongfully convict innocent people of crime. Some are even sentenced to death based, at least in part, on this kind of evidence.

For more on that fight, beginning with the Texas Forensic Science Commission, read our January 8, 2014 post “Junk Science, Causing Wrongful Convictions In Texas: Will New 2013 Habeas Corpus Law Help Those Wrongfully Convicted In Texas?”

Texas Leads the Country in the Fight against Junk Science

Today, the state of Texas leads the nation in the fight against junk science evidence being presented in criminal courtrooms.

How? The Lone Star State has the first “junk science writ” law in the country.  

Passed in 2013, and amended in 2015 by the Texas Legislature, this law (Texas Code of Criminal Procedure art. 11.073) states the following:

PROCEDURE RELATED TO CERTAIN SCIENTIFIC EVIDENCE. (a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the convicted person’s trial; or (2) contradicts scientific evidence relied on by the state at trial.
(b) A court may grant a convicted person relief on an application for a writ of habeas corpus if:
(1) the convicted person files an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:
(A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and
(B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and(2) the court makes the findings described by Subdivisions (1)(A) and (B) and also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.
(c) For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.
(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since:
(1) the applicable trial date or dates, for a determination made with respect to an original application; or
(2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

What Does the Texas Junk Science Writ Law Do?

This law provides an avenue for criminal courts to take a second look at criminal convictions where questionable science was placed before a jury in order to obtain a verdict. Whether or not prosecutorial misconduct was involved or not is a different matter. The focus of this statute is to allow for appellate review of any scientific evidence used at the trial. The court can reverse a conviction when it finds that evidence, as it was provided to the jury, was purported to be reliable and trustworthy when it is not.

Junk Science is Very Popular with Prosecutors

Why is junk science such a huge issue? The problem with junk science, essentially, is this: way too many people assume that any evidence described as “scientific” means it’s foolproof and superior to other forms of evidence, whatever that might be.

It’s not just juries and police officers that almost revere anything presented as “scientific evidence.” The unwarranted high regard of anything offered as being “scientific” also extends to many lawyers, as well as trial court judges. Consider the following:

1.  Bite Mark Evidence as an Example of Junk Science

One great example of junk science being offered to Texas criminal juries by prosecutors is bite mark evidence, which is extremely controversial and considered unreliable by most. For details, read “Bite Mark Evidence Is Unreliable, But It Still Used against Defendants in Texas.”

2.  Dog Sniffing Searches as an Example of Junk Science

Another example of junk science being offered to juries by prosecutors in criminal cases is the use of canine evidence, or “dog – based “evidence, such as dogs being used to sniff for drugs.
“Sniff searches” for illegal drugs or contraband is used quite often by police in traffic stops.

However, dogs are notorious for “alerting” to things that aren’t really there. False alarms, or “false alerts,” happen all the time with “canine agents,” the drug-sniffing dogs. For more, read “Dog Sniffing Searches and the Fourth Amendment of the U.S. Constitution: Have Your Privacy Rights against Unreasonable Search and Seizure Gone to the Dogs in Texas?”

3.  Tainted Crime Lab Evidence as an Example of Junk Science

Another way flawed “scientific” evidence gets placed before a jury by prosecutors is when there is blind devotion to items provided by a crime laboratory as proof for the state’s case. Anything provided by a laboratory, regardless of what is presented by popular TV shows, is only as reliable as the human beings who have dealt with the materials involved.

Errors made by crime lab technicians will skew the results. Intentional actions by crime lab technicians are conscious acts to sway the case.

Think that crime lab evidence unreliability is a rarity? Nope:

• In 2013, the Houston Police Department’s fingered print comparison unit was investigated for “shoddy work” with over 600 cases involved in a backlog.
• Cameron Todd Willingham was executed for crimes he did not commit based on “arson” evidence that was flawed and unreliable.
• Texas Dept. of Public Safety crime lab analyst Jonathan Salvador is responsible for unreliable and flawed evidence that was possibly used to obtain thousands of convictions.
• And, of course, there is the Massachusetts example of crime lab chemist Annie Dookhan, whose misdeeds impacted an overwhelming number of people who were wrongfully convicted based upon her junk science evidence.

For more, read “Texas Criminal Defense Lawyers Do Not Trust Prosecutors Crime Lab Forensic Evidence, When Will Public Become Aware That Crime Lab Results Aren’t Like TV Forensics?”

Efforts to Remove Junk Science in Texas Criminal Cases

The precedent-setting Texas junk science writ law is still new on the books: the ink is still wet. However, the highest criminal court in the state, the Texas Court of Criminal Appeals, has recently ruled on a case involving Texas Code of Criminal Procedure 11.073, the new Texas junk science writ law, as it has been amended by the 2015 Texas legislature.

It is a case of first impression for the court.

Last week, the CCA agreed that the convicting court will hear arguments by Texas Death Row Inmate Rigoberto Avila, who maintains he is innocent of the crime for which he is been put convicted and sentenced to death, which is the homicide involving his 19-month-old infant son.

Read the CCA Order here. 

Mr. Avila maintains argues that his son tragically died from “shaken baby syndrome” and not from any action on his part. In 2001, El Paso prosecutors successfully convinced a jury that the father stomped his son to death. Nevertheless, Mr. Avila has never veered from maintaining that he went into the baby’s room to find the child was not breathing,

Here, the junk science writ law will challenge changes in the scientific viewpoint as new developments in science have advanced, which shed a new light on the science evidence presented at Mr. Aliva’s criminal trial. This is different from a direct challenge to prosecutorial evidence as being erroneous and inferior at the time presented.

The Court of Criminal Appeals has decided that the criminal trial court will hear from the Death Row Inmate’s attorneys that new scientific advances show that the evidence presented by prosecutors at the time of his criminal trial was inaccurate and wrong. The new scientific developments regarding “shaken baby syndrome” will support the defendant’s position that he is innocent of any wrongdoing in the case of his infant son’s death.

Why the Avila Case is Important

This is an important case for everyone in the state of Texas. The Court of Criminal Appeals has approved the re-examining of a criminal trial — and the original verdict entered in the criminal trial — because of new scientific developments that may refute evidence presented to the jury which convicted a man who was sentenced to death.

The CCA is bringing into question the veracity and trustworthiness of that jury’s verdict.

Granted, the Avila case is not suggesting that prosecutors provided substandard evidence inasmuch as they may have provided obsolete evidence given new scientific advancements.

The Court of Criminal Appeals had an opportunity to discuss junk science, and notoriously bad science offered in a criminal trial, in the recent case of Ex Parte Robbins. In that case, the court skirted the issue by ruling that the motion for rehearing in the case had been “improvidently granted,” leaving its interpretation of this brand new statute, as amended in 2015 by the Texas legislature to a later date. Like now.

Hopefully, the Avila case will help prosecutors and defense attorneys alike better understand how best to deal with and contain the use of unreliable and flawed evidence presented to the jury, under the banner of “science”. Stay tuned.

Fighting Against Junk Science In A Criminal Case: The Criminal Defense Attorney’s Responsibility

Right now, criminal defense attorneys in Texas have a big job finding the purported “scientific evidence” that the prosecutor wants to use against their client, and then mounting a case against its reliability and showing its characteristic as being “junk science” before it can be presented to a jury.

Motions to suppress the evidence as being unreliable can be presented to the trial court judge, and hopefully the jury is never aware that the prosecutor wanted to use the “junk” because the judge will not allow it to be presented at trial.

Having legal precedent in hand to demonstrate that certain areas of evidence are not be permitted, such as bite mark evidence, will help defense attorneys by barring this type of shoddy evidence as a matter of law, without the need of the lawyer proving its unreliability again and again in case after case.

Until then, each case is its own independent battle against inferior science being used by prosecutors to try and get a conviction.

For more information check our web resources as well as Michael Lowe’s Case Results, and read his in-depth article
THE CRUEL REALITY OF CRIMINAL EVIDENCE: IT’S JUST NOT THAT RELIABLE – Dallas Justice Blog