The StandDown Texas Project

Thoughts on the the Texas Legislature

Today is the 133rd day of the 140-day legisltive session.  Sine Die - aka, adjournment - is Monday, May 27.  You can view the various deadlines that limit legislative activity as the days peel off the calendar.

Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center.  He recently joined the Center as a Fellow.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

The Austin Chronicle posts, "Junking Junk Science?"  It's by Jordan Smith.

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.

Texas Legislation Introduced to Correct Briseno Standards

Brandi Grissom reports, "Bill Would Limit Execution of Intellectually Disabled," at the Texas Tribune.  Here's the beginning:

Before Texas executed Marvin Wilson last year for the 1992 murder of Jerry Robert Williams in Beaumont, his case generated headlines, reminding the nation of a rather unique corner of death penalty law here.

The standards used to determine whether a Texan convicted of murder is mentally fit to be executed are based in part on the fictional character Lennie from John Steinbeck’s classic novel Of Mice and Men, a fact that enraged the author’s son.

"I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic,” Thomas Steinbeck said, calling for a halt to Wilson’s execution. “I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

State Sen. Rodney Ellis, D-Houston, said Wilson’s execution and other cases left him feeling embarrassed for his home state. “It’s junk science. Its not a credible way of making a decision,” he said.

So Ellis filed Senate Bill 750, which would establish new — and, he argues, more scientific — standards to determine when a convicted Texan is too intellectually disabled to face the death penalty. The bill revives a decade-old fight with prosecutors, who argue that the current standards are adequate and that Ellis’ proposal would make it too easy for defendants to make a case that they are mentally retarded and exempt from the death penalty.

Coverage of Marvin Wilson's Development Disability and his execution begins at the link.  Related posts are in the mental retardation category index.

Some notable posts include:

• How Texas Applies Atkins
• Bad Science Behind Unconstitutional US Executions
• Texas's Death Penalty Machine Executing the Mentally Disabled?
• The Long, Questionable History of George Denkowski
• Cracked

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

CCA Orders Acquittal in Dog-Scent Lineup Conviction

TheTexas Court of Criminal Appeals ruling in Winfrey v. Texas is available in Adobe .pdf format.

"Appeals Court Issues Acquittal in Dog-Scent Murder Case," is the Texas Tribune report by Brandi Grissom.

The Texas Court of Criminal Appeals on Wednesday issued an acquittal in the case of Megan Winfrey, 24, who has been behind bars since 2007 in a murder case in which her conviction was based almost entirely on evidence from dog-scent lineups.

Winfrey, along with her father, Richard Winfrey, and her brother Richard Winfrey Jr. were charged with the 2004 murder of school janitor Murray Burr in Coldspring. Richard Winfrey Jr. was acquitted by a jury in 2009. Richard Winfrey Sr. was convicted in 2007, but the Court of Appeals acquitted him in 2009, ruling that the dog-scent evidence was insufficient for his conviction.

The court’s decision Wednesday in Megan Winfrey’s case was based largely on the one it issued when it acquitted her father, finding that the state’s evidence against her was insufficient. In her case, the San Jacinto district attorney had argued that along with dog-scent evidence, her suspicious behavior amounted to enough evidence to support her conviction. Prosecutors alleged, among other things, that she attempted to thwart DNA testing by shaving her pubic hair and that teachers at her school overheard her make threatening remarks about Burr and his money. The court disagreed with the prosecutors.

“Basing a finding of appellant's guilt on this evidence and all of the other evidence is, at best, ‘mere theorizing or guessing’ about [the] appellant's possible guilt rather than a reasonable inference based upon evidence and facts presented,” the court wrote in its majority opinion.

The Austin American-Statesman reports, "Court tosses dog-scent lineup murder conviction."  It's by Chuck Lindell.

Like her father and brother, Winfrey was identified as a murder suspect by bloodhounds owned and trained by Keith Pikett, a now-retired Fort Bend County deputy sheriff who claimed his dogs were nearly infallible in linking suspects to crime scenes based on the personal scent they left behind.

No physical evidence or witnesses tied the Winfreys to their neighbor’s murder. In addition, forensic evidence collected from Burr’s home — DNA from blood stains, fingerprints, hair and a bloody footprint — excluded the Winfreys.

Pikett’s findings, however, played a central role in separate trials for the three family members.

Pikett testified that his dogs indicated that they smelled the Winfreys’ scent on gauze pads that had been wiped on clothing Burr was wearing when he was killed. The pads were placed in unsterilized coffee cans about 10 steps apart in a field or parking lot, a lineup method Pikett said he developed in his spare time.

"San Jacinto County woman acquitted of life sentence for murder," is the Cleveland Advocate report by Melecio Franco. 

The Winfrey family was indicted in the murder but only two were convicted. Richard Winfrey Jr., the son, was found not guilty after only 13 minutes of jury deliberation, according to Baccus-Lobel. His father, Richard Winfrey Sr. and his sister Megan, were both found guilty in 2007.

The convictions were the beginning of a long legal battle for the family.

Baccus-Lobel and defense attorney Billy Ravkind fought for years to have the convictions overturned.

“There was no physical evidence, no forensic evidence — and there was tons of it — that connected any of these people to the crime scene,” said Baccus-Lobel. “Not Megan, her father or her brother.”

Baccus-Lobel noted that some of the physical evidence included a footprint found in the victim’s blood along with hairs and DNA evidence.

Earlier coverage of the dog-scent lineups begin at the link.  In 2009 the Innocence Project of Texas issued a report, Dog Scent Lineups: A Junk Science Injustice, available in Adobe .pdf format.

FBI to Launch Large Post-Conviction Review

Today's Washington Post reports, "Justice Dept., FBI to review use of forensic evidence in thousands of cases."  It's written by Spencer S. Hsu.

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

On Tuesday, the Justice Department announced that it will conduct the more expansive review.

“The Department and the FBI are in the process of identifying historical cases for review where a microscopic hair examination conducted by the FBI was among the evidence in a case that resulted in a conviction,” spokeswoman Nanda Chitre said in a statement. “We have dedicated considerable time and resources to addressing these issues, with the goal of reaching final determinations in the coming months.”

And:

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

The article states that DoJ and the FBI will be working with the Innocence Project and the National Association of Criminal Defense Lawyers in the review, though no details were provided.

Earlier coverage begins with the Post's April series on flawed forensics.  Related posts are in the forensics category index

National Registry of Exonerations

Today, the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law launched the first National Registry of Exonerations.  ExonerationRegistry.org represents the largest collection of such cases ever assembled and it will be continually updated.

The purpose of studying exonerations is to learn how to prevent and correct false convictions.

The Registry front page contains the report, Exonerations in the United States, 1989 – 2012.  You can also read an executive summary of the report.  The Registry contains a searchable, sortable database of exoneration.  You can view exonerations by state and by county.

News coverage of the National Registry of Exonerations in the next post.

The Long, Questionable History of George Denkowski

"Death Sentence Reviews Leave Unsettled Issues," is the title of Brandi Grissom's report in the Texas edition of the Sunday New York Times.  It also appears at the Texas Tribune.

Stanley Schneider was shocked last year when Texas’ highest criminal court sent his death row client an early Christmas gift of sorts, ordering the trial court to re-examine evidence from a psychologist who had decided that John Reyes Matamoros was mentally fit to face execution.

“We were hopeful their sending it back would mean something,” Mr. Schneider said.

But his hope flagged in March when, he said, two Harris County state district judges virtually rubber-stamped Dr. George Denkowski’s findings in the cases of Mr. Matamoros and a fellow death row inmate, Steven Butler. Dr. Denkowski, the psychologist who testified in the cases of 14 current Texas death row inmates that the convicted men were mentally fit for execution, was reprimanded last year after other psychologists and defense lawyers filed a complaint alleging that he had used discredited evaluation methods.

Lawyers for Mr. Matamoros and Mr. Butler, who have filed objections with the Texas Court of Criminal Appeals, say any findings by Dr. Denkowski should be disregarded. They said that the trial court judges — who are husband and wife — simply adopted Dr. Denkowski’s conclusions instead of examining reams of evidence from other psychologists that they said proved their clients were mentally retarded and ineligible for the death penalty.

“This is a perfect example of the state taking science and trying to prostitute it,” Mr. Schneider said, adding, “The role of the courts is to protect us from junk science.”

And:

The Supreme Court of the United States ruled in 2002 that states could not execute people who were mentally retarded. The court allowed states to decide on guidelines for determining whether a person was mentally retarded. Texas courts have adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since an early age.

Dr. Denkowski conducted tests to determine whether defendants who might face the death penalty aligned with those definitions. But other psychologists and defense lawyers complained that he artificially inflated intelligence scores to make defendants eligible for the death penalty. (Dr. Denkowski’s lawyer has said that he vigorously denies having violated any psychology board rules and that he used his best clinical judgment in making forensic evaluations.)

Last year, the Texas Board of Examiners of Psychologists agreed to a settlement with Dr. Denkowski in which it reprimanded him, but he did not admit guilt. He agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints.

Since that reprimand, the Texas Court of Criminal Appeals has asked trial courts to review at least six cases that included Dr. Denkowski’s work to determine what effect it had had on the case.

Defense lawyers argue that Dr. Denkowski’s conclusions should be completely excluded from those reviews.

“You can talk all day long about how you don’t want junk science used in these cases, but when you’re confronted with it, you have to take active steps to make sure it hasn’t contaminated the case,” said Kathryn Kase, executive director of the Texas Defender Service, which represents death row inmates.

The Butler and Matamoros cases are the first to be returned to the Court of Appeals.

Earlier coverage of George Denkowski and the Butler and Matamoros cases begins at the link.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

Washington Post Series: Investigating Flaws in Forensics

The Gallery for the series has an extensive group of photos.

"Convicted defendants left uninformed of forensic flaws found by Justice Dept.," is the first part of the series reported by Spencer S. Hsu.  Here's the beginning of this must-read:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

The case of a Maryland man serving a life sentence for a 1981 double killing is another in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for the man, John Norman Huffington, say they learned of potentially exculpatory Justice Department findings from The Washington Post. They are seeking a new trial.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

The review was performed by a task force created during an inspector general’s investigation of misconduct at the FBI crime lab in the 1990s. The inquiry took nine years, ending in 2004, records show, but the findings were never made public.

In the discipline of hair and fiber analysis, only the work of FBI Special Agent Michael P. Malone was questioned. Even though Justice Department and FBI officials knew that the discipline had weaknesses and that the lab lacked protocols — and learned that examiners’ “matches” were often wrong — they kept their reviews limited to Malone.

But two cases in D.C. Superior Court show the inadequacy of the government’s response.

Santae A. Tribble, now 51, was convicted of killing a taxi driver in 1978, and Kirk L. Odom, now 49, was convicted of a sexual assault in 1981.

"DOJ review of flawed FBI forensics processes lacked transparency," is part two of the series.  It's reported by Spencer S. Hsu, Jennifer Jenkins and Ted Mellnik.

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of plotting the first attack on the World Trade Center.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,” Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It turned out he had written or passed along scores of memos over the years warning of a lack of impartiality and scientific standards at the famed lab that did the forensic work after the World Trade Center attack and in other cases.

With the FBI under fire for its handling of the 1993 trade center attack, the Oklahoma City bombing and the O.J. Simpson murder case, officials had to act.

After the Justice Department’s inspector general began a review of Whitehurst’s claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that “no defendant’s right to a fair trial was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found.

Those decisions more than a decade ago remain relevant today for hundreds of people still in the U.S. court system, because officials never notified many defendants of the forensic flaws in their cases and never expanded their review to catch similar mistakes.

The series also contains "How accurate is forensic analysis?" examining different forms of forensic evidence.

Related posts are in the forensics category index.

The Morton Exoneration & Prosecutorial Misconduct

"Justice and Prosecutorial Misconduct," is the New York Times editorial from the December 29th issue.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

"Let Anderson's record be heard by a court," is the Austin American-Statesman editorial of December 27.

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

"Inquiry warranted in Morton case," is the Dallas Morning News editorial of December 23.

One thing is now cleared up for good in the Michael Morton murder case in Williamson County. He was proclaimed officially, unequivocally innocent this week.

One thing is far from being cleared up — whether the man who put him in prison for nearly 25 years, Ken Anderson, is a scheming, unethical district attorney. If there’s an explanation for why the defense never saw critical exculpatory evidence investigators collected before trial, for why the evidence stayed hidden for nearly all of the quarter-century that Morton was imprisoned, the state of Texas hasn’t gotten a straight answer. And it needs to.

Anderson, now a judge, should be held to account, just as Morton once had to defend himself against a far thinner dossier of evidence.

A request for a special court of inquiry in the Anderson matter is now before a state district judge, in a damning, 144-page report filed Monday by Morton’s attorneys. That special proceeding should be held to get direct answers from Anderson and weigh whether he should face charges.

"Stop the prosecutorial misconduct," is the title of an OpEd by Houston criminal defense attorney Robert Fickman in the Houston Chronicle of December 31.

It is past time for us to draw another line in the sand. Too many innocent men and women have had their liberty stolen by some puffed-up bureaucrat with a law degree. It's time to fight back and demand accountability.

What has become of the men who prosecuted Graves and Morton? What is their punishment for apparently fabricating and withholding evidence?

Have they been sent to jail, disbarred or hounded from our midst? No. Nothing has happened to them.

There is no punishment for them. Their lives go on unfettered. There is no accounting for their apparent raw inhumanity. None.

This needs to change. When a prosecutor willfully withholds exculpatory evidence in a murder case, he must be held to answer. When a prosecutor willfully fabricates evidence in a murder case, he must be held to account. Prosecutors who willfully falsify evidence to rob innocent men of their liberty must be held to answer under the law.

The next time the state Legislature meets we must demand accountability. The Legislature must enact stiff laws to punish those prosecutors who willfully break the law to rob men of their liberty. Nothing less is acceptable.

"Special holiday for lawyer John Raley, innocent client," is Patricia Kilday Hart's December 26th Houston Chronicle column.

Christmas, that celebration of miracles, new life and truth, can find expression in unlikely settings.

This year, for Houston attorney John Raley and his family, it arrived six days early in a nondescript Georgetown courtroom, when a state district judge stepped down from his imposing dais to declare the innocence of Michael Morton, a man who spent 25 years in prison wrongly accused of the murder of his wife, Christine.

And:

Raley's involvement in the case began when a mutual acquaintance in Houston's legal community suggested to Innocence Project attorney Nina Morrison that she solicit his help as a volunteer.

Morrison now laughs when she recalls the naiveté that Raley, a civil litigator with expertise in medical malpractice, brought to the criminal court arena: "He said, 'Of course the prosecutors will want to do DNA testing. Who wouldn't want to do DNA testing?' "

Morrison, jaded from years of fighting injustices that occur all too often in the criminal court system, knew better. Prosecutors do not like to admit mistakes.

Brandi Grissom wrote, "Murder Cases Put 'Junk Science' in the Spotlight," for the December 26 Texas edition of the New York Times.  It's also available at the Texas Tribune.  Here's an extended excerpt from this must-read:

Undigested bits of mushrooms and tomatoes from Christine Morton’s last meal — a celebratory birthday dinner she had with her husband — were still in her stomach when the medical examiner performed his autopsy in 1986.

Those remnants, the prosecutor told the jury during Michael Morton’s trial, “scientifically proved” that Mr. Morton had beaten his wife to death.

Twenty-five years later, DNA science revealed that someone else had actually killed Mrs. Morton and that her husband’s murder conviction and more than two decades in prison were a tragic mistake. His exoneration based on DNA evidence is the 45th in Texas.

Before he dismissed the wrongful murder charges against Mr. Morton last week, Judge Sid Harle recounted the faults the case exposed in the Texas justice system. Among them: the use of so-called junk science in the courtroom.

“The courts and the sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,” Mr. Harle said. “Your case illustrates the best and the worst of what can happen.”

Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can have life-or-death consequences.

“What passes for science in courtrooms is not always, in fact, science,” said Kathryn Kase, interim executive director of the Texas Defender Service, which represents death row inmates.

In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases that indicate it may also see a need to address the types of evidence that meet scientific standards.

In November, the state’s highest criminal court agreed to review the case of Megan Winfrey, who is serving a life sentence for murder. She was convicted largely on the testimony of a sheriff’s deputy who said his bloodhounds “alerted” to her scent on the murder victim’s clothing. The court has previously ruled that dog-scent evidence, used to convict Ms. Winfrey’s father for the same murder, was insufficient without corroborating evidence. The court acquitted her father on appeal.

This month, the court also agreed to review the cases of two men awaiting execution. Both men, convicted of murder, were sentenced to death after a psychologist who was an expert witness in several death penalty cases told jurors that they were mentally competent to face execution.

Earlier coverage of Michael Morton's exoneration begins at the link.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.  Related posts are in the prosecutorial misconduct index. 

There is also more in the junk science index.

Fairness in the Justice System

That's the title of an editorial in today's Austin American-Statesman on the Duane Buck case.

Once again, the most avid supporters of capital punishment in Texas should be pleased that a scheduled execution has been stopped, at least temporarily.

And:

Buck had consumed his last meal and was praying when prison officials notified him at about 7:40 p.m. Thursday that the Supreme Court had stopped his execution. The high court now must decide whether to review an appeal of the case. We see no reason why it should not.

"Praise the Lord!" Buck told the prison official who brought the news. "God is worthy to be praised. God's mercy triumphs over judgment. I feel good."

It is indeed difficult to feel good about what makes a murderer feel good. But all Texans — perhaps especially those who support capital punishment — should feel good about this decision. Those who favor the death penalty — a penalty we oppose because of the fallibility of our justice system and the humans who act within it — should live in fear of the execution of an innocent person or anything that inflicts noxious racial overtones.

What Cornyn said in 2000 rings just as true today:

"The people of Texas want and deserve a system that affords the same fairness to everyone."

Earlier coverage of Duane Buck's case and stay of execution begins at the link.

Editorial Comment on the Buck Stay

"Stay of Execution," is the title of the New York Times editorial.

After granting a stay of execution to Duane Buck just hours before he was to be put to death in Texas on Thursday, the Supreme Court must now review the case or, at the very least, order a lower federal court to consider Mr. Buck’s plea for a new sentencing hearing. It cannot allow a terrible injustice to stand.

Mr. Buck, an African-American, was convicted of murder in 1997. At the sentencing phase of his trial, a psychologist who was an expert witness said “yes” when asked if “the race factor, black,” increased the chances that Mr. Buck would do something dangerous again.

In Texas, this is a pivotal question: if the state does not prove “future dangerousness” beyond a reasonable doubt, it cannot sentence a convict to death. The prosecution got the answer it wanted and urged the jury to rely on this testimony. The jury sentenced Mr. Buck to death.

And:

The gross racism in Mr. Buck’s case is proof again that the death penalty is cruel and unusual because it is arbitrary and discriminatory, as well as barbaric, and must be abolished.

The Fort Worth Star-Telegram editorial is, "Texas death penalty case shows that details of fairness are crucial."

The Star- Telegram Editorial Board has repeatedly said that, because capital punishment is irreversible, the process that leads to it must always be as fair, thorough and constitutionally errorless as possible.

No system is perfect, and it would be unrealistic to assume that it would be, even in cases calling for the death penalty. That makes it all the more important that when it is obvious a mistake has been made that could determine life or death, we do all in our power to correct it.

A clear error occurred in Buck's case when improper testimony was included. A new sentencing hearing could correct it. And Texas and other states that continue to use the death penalty should continue working to make the process fair and error-free.

Earlier coverage of George Buck's flawed death sentence begins at the link.  I'll be posting a roundup of news coverage, tomorrow.

Supreme Court Stays Duane Buck Execution - UPDATED

The Supreme Court Order in Buck v. Thaler is available in Adobe .pdf format.  The Petition for Writ of Certiorari, upon which the Court acted, is also available in Adobe .pdf format.

UPDATE - Kate Black, Duane Buck's attorney, has issued the following statement:

 "We are relieved that the U.S. Supreme Court recognized the obvious injustice of allowing a defendant's race to factor into sentencing decisions and granted a stay of execution to Duane Buck. No one should be put to death based on the color of his or her skin. We are confident that the Court will agree that our client is entitled to a fair sentencing hearing that is untainted by considerations of his race."

"High court halts Duane Buck's Texas execution," is the AP report via CBS News.

The U.S. Supreme Court Thursday halted the execution of a black man convicted of a double murder in Texas 16 years ago after his lawyers contended his sentence was unfair because of a question asked about race during his trial.

Duane Buck, 48, was spared from lethal injection when the justices, without comment, said they would review an appeal in his case.

Two appeals, both related to a psychologist's testimony that black people were more likely to commit violence, were before the court. One was granted. The other denied.

"Praise the Lord!" Buck told Texas Department of Criminal Justice spokesman Jason Clark. "God is worthy to be praised. God's mercy triumphs over judgment. I feel good."

His lawyers called to tell Buck of the reprieve and the inmate was praying in his cell when Clark approached, Clark said.

The reprieve came nearly two hours into a six-hour window when Buck could have been taken to the death chamber. Texas officials, however, refused to move forward with the punishment while legal issues were pending.

A similar request for a reprieve was made to Texas Gov. Rick Perry. Perry is the Republican frontrunner for the GOP presidential nomination and his actions have now come under closer scrutiny. Perry, however, wasn't in the state Thursday and any decision on a reprieve from the governor's office would have fallen to Lt. Gov. David Dewhurst.

CBS Radio News senior legal analyst Andrew Cohen reports that the Supreme Court's move is a surprise because they rarely intervene in death penalty cases where the guilt of the defendant is not in doubt. The Justices were most likely concerned about the promises Texas had earlier made to defendants like Buck whose capital trials were tainted by racial testimony.

 The Supreme Court has only called for a stay in the execution. It has not yet given Buck a new sentencing trial, which is what his attorneys had sought after his first trial was tainted by unconstitutional testimony about his race. Even Texas had initially agreed his trial was unfair.

 Earlier coverage of Duane Buck's case begins at the link.  The Cert Petition and a Motion for Stay filed with the Supreme Court earlier today is available in Adobe .pdf format .

A Countdown for Duane Buck

Duane Buck's attorneys have filed a Cert Petition and a Motion for Stay with the U.S.Supreme Court.

With his execution scheduled to take place in just over an hour, there is still commentary being posted on the case for a halt.

Andrew Cohen posted, "Perry Fundraises in Iowa as Tonight's Prisoner Execution in Texas Moves Forward," at Atlantic three hours ago.

Twice in the past 20 hours the courts (state and federal) have rejected arguments to stop the execution. Buck's attorneys now have filed papers with the United States Supreme Court seeking relief from the justices. Emergency jurisdiction over matters emanating from the 5th Circuit are initially handed by Justice Antonin Scalia. He is the "circuit judge" for that judicial circuit. He will presumably pass around Buck's petition to his colleagues to see if there are enough votes for a stay. It is rare, but not unheard of, for the justices to intervene in Texas death penalty cases. They did so in 2009 in the case of Hank Skinner, a case involving DNA evidence, a matter which is still pending after the Supreme Court's ruling earlier this year in Skinner's favor.

Although the Texas clemency process has a disgraceful history -- again, I urge you to read Alan Berlow's memorable 2003 piece in The Atlantic on how Alberto Gonzales and George W. Bush fouled things up -- Gov. Perry and his colleagues have fought against making the vital process more transparent.

The updated AP report by Michael Graczyk is, "US Supreme Court asked to halt Texas execution amid questions about racial reference at trial," via the Washington Post.

Buck’s attorneys went to the Supreme Court after losing appeals in lower courts. A clemency request to the Texas Board of Pardons and Paroles, all of whom are Perry appointees, also failed.

Assistant Attorney General Edward Marshall told the Supreme Court Buck’s appeals were attempts to relitigate claims that every court, including the Supreme Court, already rejected.

“The record in Buck’s case reveals that no constitutional violation occurred during his sentencing trial,” he told the justices.

Perry was not in the state Thursday, meaning any final order to delay would technically come from Lt. Gov. David Dewhurst. However, Perry’s office frequently points out that he remains the governor and in contact with Austin while traveling.

Mike Walz, communications director for Dewhurst, said Thursday he would not comment “while any legal actions are still pending.” Perry generally has adhered to the same policy.

Also, this afternoon, the Washington Post has posted, "A victim’s plea for clemency for Duane Buck,"
by Phyllis Taylor, at its On Faith blog.  It's a must-read.  Here's an extended excerpt:

From the moment the crime happened, Duane has been deeply remorseful and taken full responsibility for the suffering he caused. Anyone who knows Duane understands that he was not himself on that terrible day in July 1995 when, under the influence of drugs and alcohol, he shot me and Debra Gardner and Kenneth Butler, who tragically did not survive.

Duane has been like a brother to me since well before the crime occurred. We spoke right after I was released from the hospital following the shooting.  Duane expressed profound sorrow and disbelief at his actions. My Christian faith has taught me to forgive even the most horrible transgressions, and so I did just that. I forgave Duane that very day.

Last week in Austin, Texas, I shared my story of forgiveness with Governor Rick Perry’s legal counsel. I asked Governor Perry to listen to my call for mercy and halt Duane’s September 15 execution. Duane must be held accountable, but he does not need to be executed for justice to be served.

While in prison, Duane has been a model prisoner who has not had one single disciplinary problem. He has spent his days reflecting, atoning, and deepening his faith in God.

Turning to God has also helped me deal with my own grief – grief that will only be worsened if Duane’s execution goes forward. My faith teaches me that we must love one another and honor all life. I hope that Governor Perry, himself a man of faith, follows these lessons and stops the cycle of violence from continuing.

Duane’s execution would be particularly unjust because Duane’s race played a role in why he was sentenced to death. The prosecution presented evidence to the jury that Duane would be a future danger because he is African-American. Indeed, Duane’s trial prosecutor also recently appealed to Governor Perry to halt the execution to ensure that Duane receives a fair sentence.

Earlier coverage of the Duane Buck case begins at the link.

If Buck's execution procedes, it would be Texas' 11th execution of the year.  It would be the state's 475th post-Furman execution since 1982.

Tonight's execution would be the 236th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

To date, there have been 33 executions in the nation this year; 1,267 post-Furman executions since 1977. 

Reprieve Request Filed For Duane Buck; Perry Out of State

The letter requesting a 30-day reprieve for Duane Buck is available in Adobe .pdf.

The updated AP report is, "Inmate's lawyers ask Perry to halt Texas execution."  It by Will Weissert, via CBS News.

If courts continue to reject Buck's appeals, only Perry could delay the lethal injection by invoking his authority to issue a one-time 30-day reprieve for further review. Perry's actions are being closely watched, particularly by death penalty opponents, after he said during a presidential debate that he has never been troubled by any of the executions he's overseen as governor.

"Perry won't preside over scheduled Texas execution," is the Los Angeles Times post by Molly Hennessy-Fiske reporting in Houston.

Texas Gov. Rick Perry apparently will not be the one to preside over Thursday's scheduled execution of an African American man who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck, 48, was convicted of fatally shooting two people near Houston in 1995. His attorney says he is entitled to a new sentencing hearing based on the racially charged testimony, but unless a final appeal attempt is successful, Buck will become the 11th inmate executed in Texas this year,  the Houston Chronicle reports.

Buck's stepsister, Phyllis Taylor, who was wounded in the shooting, has reportedly forgiven him and wants his death sentence commuted to life in prison. She met with staffers from Perry's office last week, according to Buck's attorney.

"We still are hopeful the governor will grant a 30-day reprieve to allow state officials time to work together to ensure that Mr. Buck receives a sentencing hearing untainted by issues of race,” said Kate Black, Buck's Houston-based attorney, in an interview with The Times. She is representing the inmate pro bono through the nonprofit Texas Defenders Service.

During last week's GOP presidential debate, Perry responded to a question about Texas'  234 executions during his tenure as governor by saying that he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place."

But Perry will not be presiding over Buck's execution, according to Lucy Nashed, a Perry spokeswoman.

Perry is out of state, so the responsibility falls to Lt. Gov. David Dewhurst, a Republican campaigning for the seat being vacated by longtime Republican Sen. Kay Bailey Hutchison, Nashed told The Times.

Dewhurst has presided over previous executions in the governor's absence, according to spokesman Mike Walz. Dewhurst declined to comment about the Buck case late Wednesday, Walz said.

The LA Times also has, "Texas Gov. Rick Perry Is Asked To Halt Execution," by David G. Savage.

Texas Gov. Rick Perry is being asked to stop Thursday's scheduled execution of an African American murderer who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck faces execution for shooting two people near Houston in 1995 while under the influence of drugs, but his attorneys say the racially charged testimony calls for a new sentencing hearing.

"No one should be executed based on a process tainted by considerations of race," Kate Black, a lawyer for Buck, said Tuesday. "The decision as to whether Mr. Buck's execution will go forward now lies squarely with Gov. Perry, who has the power to issue a 30-day reprieve."

Journalist Renee Feltz, who spent years in Texas, writes, "Will the Next Man Rick Perry Executes Die Because He's Black?"  It's at the Nation.

Harris County prosecutor Linda Geffin was working late last week when she took a break and saw a Facebook post from a Texas death row attorney whose client, Duane Buck, faced imminent execution. Geffin had been part of the team that helped send Buck to death row; it was the only capital case she'd ever worked on, and as she recalls, it “left a big impression on me.” More than a decade had passed since the case, so she decided to re-read the court transcripts, including a hundred or so pages of testimony from state psychologist Walter Quijano. Then she came across this passage:

    Q. You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?

    A. Yes.

Geffin thought, “that's pretty clearly inappropriate, not to mention morally and ethically wrong." Indeed, Buck's attorney was trying to save his life based on his unequal treatment on the basis of race. On September 9, Geffin wrote a letter [1] to Governor Rick Perry and the Texas Board of Pardons and Paroles calling for Buck’s execution to be halted. "No individual should be executed without being afforded a fair trial, untainted by considerations of race," she wrote.

On Tuesday, September 13, the Board of Pardons and Paroles rejected Buck's appeals for clemency. He is now scheduled to die on Thursday, September 15 unless Perry grants him a 30-day reprieve. It will be the 236th execution overseen by Perry during his tenure as governor.

There is also fresh commentary on the case. "Race-Based Execution: Rick Perry on the Spot," is by Jenee Desmond-Harris at the Root.

Perry, who is seeking the Republican presidential nomination, was asked during a GOP debate last week about Texas' 234 executions during his nearly 11 years as governor. He said he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place." It's hard to imagine how he could possibly have to struggle to see that the process he admires so much has gone outrageously wrong in this case.

"Man To Die Thursday Partially Due To Race," by Deborah Mathis at Black America Web.

Unless Justice swoops down from the heavens like a Texas tornado, the Lone Star state is going to kill again tomorrow.

Unless Gov. Rick Perry can put his presidential travels on hold long enough to sign a sheet of paper that will stay the executioner's hand, this will be Duane Buck's last day on Earth.

Duane Buck was convicted in the 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Ray Butler, in Houston. Buck also shot his sister that morning, but she survived. His lawyers said he was out of his mind on drugs when he pulled the trigger.

Apparently, Buck's conviction is the only bottom line that matters to the Texans that hold his fate in their hands. How he landed on death row doesn't matter to them.

But it matters to the U.S. Constitution, which Perry and his Tea Party pals claim to love first and foremost. If there is one tie that binds the eclectic devotees of the Tea Party, it is their worship of the Constitution.

In Buck's case, as in others, one has to wonder whether Perry has ever read it or if he understands it because the Constitution has something to sobering to say about how Buck was sentenced to death. The Fourteenth Amendment guarantees equal protection and due process - rights that Buck clearly did not enjoy in that Harris County, Texas courtroom years ago.

In Texas, jurors may consider a defendant's potential for "future dangerousness," an assessment that, in itself, seems constitutionally iffy, since it is based on speculation and punishes people for what a group of strangers think - not know - will happen.

"Duane Buck, Rick Perry and the politics of death," by Alexander Cockburn is at First Post.

What mostly has people marveling is Quijano's career stint in the 1990s as an "expert witness". Buck's was the only case where he was called by the defence. Expert witnessing is a trade – often a very profitable one - in which by far the most desirable characteristic is predictability. A truly expert witness for the defence would have regarded it as his first duty to reassure the jury of Buck's lamb-like character, utterly inconsistent with possibly lethal recidivism.

"Expert" covers many a bizarre resume. One famous expert witness unearthed a few years back by the Chicago Tribune had made it her costly speciality to identify nose and lip prints – a forensic skill which apparently lacked any reliable foundation.

Juries like a well-spoken expert witness, flourishing forensic data. The popularity of shows like CSI has enhanced the reputation of forensic "experts", even though much forensic testimony, up to and including finger-prints, is disfigured by mishandled evidence, mendacity and incompetence.

Earlier coverage of the Duane Buck case begins at the link.

Andrew Cohen on the Buck Case - and What It Means

The noted legal analyst posts, "Coming Thursday: Another Texas Execution Under Perry," at the Atlantic.  As usual, it's a must-read.  Here's an excerpt from the beginning:

The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment.

Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck.

Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez.

Earlier coverage of Duane Buck's case begins at the link.

BPP Rejects Clemency for Duane Buck

Duane Buck's attorney, Kate Black with Texas Defender Service, has issued a statement following the action by the Board of Pardons and Paroles:

“The Texas Board of Pardons and Paroles’ recommendation against granting clemency to Duane Buck fails to recognize what the highest legal officer in the State of Texas had acknowledged: No one should be executed based on a process tainted by considerations of race. A trial prosecutor and the surviving victim have asked state officials to halt the execution. The decision as to whether Mr. Buck’s execution will go forward now lies squarely with Governor Perry, who has the power to issue a thirty-day reprieve, and District Attorney Lykos, who has the power to ask for a withdrawal of the execution date. We urge Governor Perry to grant a temporary reprieve to allow all parties involved to work together to ensure that Mr. Buck receives a new and fair sentencing hearing untainted by race-based testimony.”

The Board's notification that it rejected a clemency recommendation is available in Adobe .pdf format.

Allan Turner posts, "Panel refuses to commute Houston killer's execution," at the Houston Chronicle.

Houston auto mechanic Duane Buck moved a step closer to execution today as the Texas Board of Pardons and Paroles rejected his bid to commute his death sentence to life without parole.

And:

Buck's lawyers had asked the pardons board to recommend commutation or the granting of a 120-day reprieve to Gov. Rick Perry, who would have made the final decision in the case.

Earlier coverage of Duane Buck's case begins with the preceding post. 

You can read prosecutor Linda Geffin's letter to the Board of Pardons and Paroles. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

More on the Duane Buck Case

There is additional coverage today on prosecutor Linda Geffin's call for a halt to Duane Buck's execution, in a letter to the Board of Pardons and Paroles.

Allan Turner writes, "Houston killer should be spared, prosecutor says," for the Houston Chronicle.

With killer Duane Buck just days away from execution, a prosecutor who helped send the Houston auto mechanic to death row has joined clergymen, lawyers and one of Buck's shooting victims in demanding that his life be spared.

Linda Geffin, now chief of the Harris County Attorney's special prosecutions unit, was one of two assistant district attorneys who successfully argued against Buck in his 1997 trial. Buck, 48, was convicted for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck is to be put to death Thursday.

In a letter to the Texas Board of Pardons and Paroles, which is considering a petition to recommend to Gov. Rick Perry that Buck's death sentence be commuted to life in prison, Geffin said she "felt compelled to step forward."

Geffin cited a 2000 press release from then-Texas Attorney General John Cornyn stating Buck's case was among six that may have been tainted by punishment-phase testimony from psychologist Walter Quijano. Federal appeals courts ordered new punishment hearings for five of them because the expert witness made inappropriate assertions about race.

All ultimately were again sentenced to death and one has been executed.

At the time, Buck's case was still in state court and was never granted a new hearing.

"Mr. Buck committed a terrible crime and he must be punished," Geffin wrote in the Friday letter. "But the attorney general was right when he said that it is 'inappropriate to allow race to be considered as a factor in our criminal justice system.'"

"Duane Buck Prosecutor Urges Clemency," is the title of Brandi Grissom's Texas Tribune post.

"When a defendant’s race is introduced as a factor in guilt or sentencing – even inadvertently – the integrity of the case is compromised," said Mark MacDougall, a pro bono lawyer at Akin Gump, who often works with indigent defendants in death penalty cases. "The only remedy is a new trial. This is never more critical than in a capital murder case."

As his execution date approaches, Buck's lawyers are calling on the Texas Board of Pardons and Paroles and Gov. Rick Perry to grant clemency and allow a new trial to determine his sentence. Last week, one of Buck's surviving victims urged clemency on his behalf.

Today, Linda Geffin, who served as second chair during the initial Buck prosecution, wrote a letter calling on Perry and the parole board to halt the execution and allow for a new trial untainted by racial questions.

"It is regrettable that any race-based considerations were placed before Mr. Buck's jury," she wrote. "No individual should be executed without being afforded a fair trial, untainted by considerations of race."

Earlier coverage of Duane Buck's race-tinted sentence begins with yesterday's post.

Buck Prosecutor Calls for Execution Halt

The prosecutor's letter to the Board of Pardons and Paroles is available in Adobe .pdf format.

Texas Defender Service has issued a news release, "Prosecutor in Case Where Government Relied on Race Testimony at Trial Urges Texas Officials to Stop Duane Buck's Execution."

Houston, Texas, September 12, 2011 - Today, a former Harris County Assistant District Attorney who prosecuted Duane Buck is urging state officials to halt Mr. Buck's execution next week because "[n]o individual should be executed without being afforded a fair trial, untainted by considerations of race." Linda Geffin, who served as second-chair prosecutor in the State of Texas vs. Duane Buck in 1997, sent a letter this morning to Governor Rick Perry, the Texas Board of Pardons and Paroles, Attorney General Greg Abbott, and Harris County District Attorney Patricia Lykos, urging them to intervene and stop Mr. Buck?s September 15 execution.

In her letter, Ms. Geffin says she "felt compelled to step forward" after reading about the clemency petition and a motion in federal court recognizing that former Attorney General John Cornyn had previously acknowledged the "improper injection of race in the sentencing hearing in Mr. Buck's case."

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not want him executed.

During Mr. Buck's trial, psychologist Walter Quijano testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future. On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future. The State urged the jury in its closing argument to rely on Dr. Quijano's testimony. The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck's trial, but while his case was pending on appeal, on June 9, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing. The Attorney General identified Mr. Buck's case as one of those six cases, stated that Texas would not contest federal appeals in those six cases, and that if the attorneys for the six identified defendants raised claims challenging the government's reliance on race at sentencing, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the government's reliance on Dr. Quijano's testimony in the case of Victor Saldaño. The Attorney General stated: "As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone."

Despite this concession, the improper racial testimony in Mr. Buck's case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.

The clemency petition, which was filed on August 31, asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: "Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings. Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual?s race, particularly where this State?s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case."

Ms. Geffin?s letter concludes: "I now join Phyllis Taylor, the surviving victim, in asking for the intervention of the Board of Pardons and Paroles, Governor Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos. All of these parties should be motivated, as I am, to do everything within their power to ensure that our justice system is not tainted by unconstitutional considerations of race."
- - - - -
 
The clemency petition and an interview with surviving victim Phyllis Taylor can both be viewed.at: 

Steven Kreytak posts, "Harris County prosecutor asks for halt to execution," for the Austin American-Statesman.

A prosecutor who worked to secure the death sentence against a Harris County killer scheduled to be executed on Thursday is asking officials to stop the execution.

Linda Geffin, who was the second chair prosecutor in the 1997 prosecution of Duane Buck and is now a supervisor in the Harris County Attorney’s office, has joined Buck’s lawyers in declaring that his sentencing hearing was unfair because of racially tinged testimony.

Buck was one of seven state death row inmates who then-Texas Attorney General John Cornyn in 2000 said received unfair sentencing trials because of the testimony of psychologist Walter Quijano. Quijano regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic, testimony he based on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state’s general population.

Six defendants identified by Cornyn as having their trials tainted by Quijano’s testimony have since received new sentencing trials. Each was once again sentenced to death. Buck, who killed two people, including his ex girlfriend, in 1995, has not received a new sentencing hearing.

Buck’s lawyers with the Texas Defender Service have filed a clemency petition with the Texas Board of Pardons and Paroles and have asked Gov. Rick Perry, current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to intervene and stop the execution. They have also asked a federal judge to intervene.

"Former prosecutor in Duane Buck case asks state to halt execution," is the title of Sommer Ingram's Dallas Morning News post.

A former prosecutor in death-row inmate Duane Buck's case is urging state officials to stop the execution scheduled for Thursday.

Linda Geffin, former Harris County District Attorney who served as second-chair prosecutor in Buck's case, this morning sent a letter to state officials saying that Buck's execution cannot go forward because of the racially-tainted testimony that was a part of his trial.

"No individual should be executed without being afforded a fair trial, untainted by considerations of race," Geffin wrote in the letter addressed to Gov. Rick Perry , the Texas Board of Pardons and Paroles, Attorney General Greg Abbott and current Harris County District Attorney Patricia Lykos.

Buck fatally shot two people and injured another in 1995. During his trial in 1997, psychologist Walter Quijano told jurors that Buck was more likely to be violent in the future because he was black. His case was one of seven that former Texas Attorney General John Cornyn wanted reviewed because of the state's unconstitutional reliance on race.

New punishment hearings were ordered for all six other cases, but Buck's slipped through the cracks in what his attorneys call another mishandling of the death penalty in Texas. They argue that Buck can't be put to death when being black is part of what secured his sentence.

Earlier coverage of Duane Buck's case begins with the preceding post.

More Commentary on the Duane Buck Case

Houston Chronicle columnist Patti Kilday Hart writes, "Where's justice in the execution process?"

Yet testimony about the "future dangerousness" of death penalty defendants still keeps the gears of Texas' execution machine turning. This week, Houstonian Duane Buck is scheduled for execution, partly based on testimony by Conroe psychologist Dr. Walter Quijano.

Ironically, Quijano was called to the witness stand by defense attorneys for Buck. Though he was found guilty of a deadly shooting rampage, his attorneys hoped to prove the tragedy, in which Buck's estranged girlfriend and another man were killed, was an act of rage not likely to be repeated.

But under cross-examination, Quijano acknowledged to prosecutors that certain factors are associated with violent crime. For instance, the prosecutor asked, "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

The jury concluded that Buck, a black man, would continue to be violent, and sentenced him to death.

And:

Last week, Buck's appellate attorneys filed a motion for clemency with the Texas Board of Pardons and Paroles, which could recommend that Gov. Rick Perry commute Buck's sentence to life without parole.

The case exposes structural flaws in our death penalty law. Testimony involving "junk science" regarding arson has been allowed, as demonstrated in the Cameron Todd Willingham case. There is mounting evidence that eyewitness testimony is unreliable.

Today's Chronicle also carries an OpEd by Thurgood Marshall School of Law prof Lupe Salinas, a former criminal district court judge in Harris County who assessed three death sentences. It's titled, "Race factors taint death case."

Our state could be on the verge of gaining the dubious distinction of executing a person based on the color of his skin. On Thursday, Texas is poised to execute Duane Buck unless the courts or state officials, including Gov. Rick Perry, intervene.

"The race factor, black … increases the future dangerousness for various complicated reasons." That is what a psychologist told a jury of 12 Texans at the capital murder trial of Buck. Such blatant racial prejudice may read like a relic of the past - but Buck faces execution in a matter of days, despite the racism that infected his case.

And:

Lawyers for Buck have asked Gov. Perry, the Harris County District Attorney's Office and the Office of the Attorney General of Texas to intervene.

All of these parties should act to ensure that an execution in Texas is not tainted by racism. It is important to guarantee that capital punishment is not applied in a discriminatory manner.

Attorney General Cornyn said it best: "The people of Texas want and deserve a system that affords the same fairness to everyone." Let us hope that our state officials and the courts act with these sentiments in mind and halt Duane Buck's execution.

Earlier coverage of Duane Buck's case begins at the link.

Halt Execution Where Race Tainted Judgment

That's the title of an editorial in today's Houston Chronicle. regarding the Duane Buck case.

The case poses a test of leadership for Texas governor and Republican presidential candidate Rick Perry. Will he do the right thing and stop the execution, either through clemency or a reprieve, or will he take the politically expedient course and let a judicial miscarriage roll forward?

Buck's guilt in the shooting deaths of his ex-girlfriend and her boyfriend is not in doubt. In Texas, however, homicides resulting from crimes of passion often result in life or lengthy sentences rather than the death penalty. A key issue in such death sentence cases is the likelihood of the defendant committing future violent acts, and it is on that point that Buck's sentence is irrevocably flawed.

Buck was one of six Lone Star capital murder defendants sent to death row using testimony from former Texas jail system chief psychologist Walter Quijano that blacks and Hispanics were more likely to become repeat offenders. In Buck's case, Quijano had initially testified that he would likely not pose a future danger to society. But under aggressive cross-examination by the prosecutor, he agreed that being African-American enhanced the possibility of future violence.

After the Texas Court of Criminal Appeals ruled that there was no fundamental error in admitting race-based testimony, John Cornyn, the Texas attorney general at the time and now a U.S. senator, filed a brief with the U.S. Supreme Court on behalf of defendant Victor Hugo Saldano. Cornyn argued, "It is inappropriate to allow race to be considered as a factor in our criminal justice system." The high court agreed, and the convict and four of the other defendants received new punishment hearings. In a legal oversight, Buck did not.

And:

As Cornyn said back in 2000, "The people of Texas want and deserve a system that affords the same fairness to everyone. "

We hope Gov. Perry shares those sentiments.

Earlier coverage of Duane Buck's case begins with the preceding post.

News Coverage of Duane Buck News Conference

Today's Dallas Morning News carries, "Lawyers fight racially based Texas death sentence."  It's written by Sommer Ingram.

Attorneys for a Texas man who was sentenced to death after a state witness relied on race in his testimony are fighting to get his sentence changed, or at least get him a new hearing.

When Duane Edward Buck was on trial for capital murder in 1997, a psychologist told jurors that because Buck was black, he was more likely to be violent in the future.

His case was one of seven that former state Attorney General John Cornyn wanted reviewed because of the state’s unconstitutional reliance on race.

New punishment hearings were ordered for the other cases, which were at the federal appellate stage. But because Buck’s case was still in state court, it slipped through the cracks.

He was never given a retrial and is scheduled to die Sept. 15 for the murders of Debra Gardner and Kenneth Butler.

He also shot Phyllis Taylor, who survived and is now asking for Buck’s life to be spared.

Attorneys for Buck call his case another in a series of chronic mishandlings of the death penalty in Texas, the nation’s busiest death penalty state.

“This case is an affront to justice,” Kate Black, a lawyer for Buck, said at a Capitol news conference Wednesday. “This is just another shocking example of the fundamental flaws in the Texas death penalty. Racism played an intolerable role in a life-or-death decision.”

And:

Anthony Graves, a Texas exoneree who spent 18 years behind bars for murders he didn’t commit, is speaking out in Buck’s favor.

“I am the perfect example of our flawed system in Texas,” Graves said. “This is a case of basic racial profiling, and I’m asking everyone who can to jump up and scream that this is enough.”

"Lawyers, Victim Seek Clemency for Death Row Inmate," is the title of Lara Lapin's Texas Tribune report.

Phyllis Taylor survived the 1995 shooting spree that ended with two others dead and Duane Buck on death row. Buck is scheduled to be executed on Sept. 15. Today, Taylor urged the Texas Board of Pardons and Paroles, Gov. Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos to halt the execution.

“This execution would only add to my pain, and it wouldn’t give me closure," said Taylor, who survived a shot in the chest. "I would ask that Duane Buck’s life be spared. I feel that he deserves a fair trial.”

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

And:

Buck’s lawyers asked Perry, Abbott, Lykos and the board to commute his sentence or grant a 120-day reprieve to allow time for the parties to work together.

Abbott’s office did not immediately provide comment. The Harris County district attorney’s office has said it would not intervene.

In the next post, the Houston Chronicle calls for justice in the case.  Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck Seeks Relief in Federal Court

Texas News Service reports, "New Filings in "Racially Biased" TX Execution Case."  It's written by PeterMalof.

Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

"Days from death house, killer seeks clemency," by Allan Turner in the Houston Chronicle.

In the summer of 2000, then-Texas Attorney General John Cornyn made an astounding admission: A psychiatrist's testimony in six capital murder cases - including that of Houston defendant Duane Edward Buck - wrongly had introduced race as a factor for consideration in the trials' punishment phases.

New punishment hearings were ordered for five of the men whose cases were on appeal in federal courts. But Buck, scheduled to be executed Sept. 15 for the July 1995 murders of his ex-girlfriend Debra Gardner and her friend Kenneth Butler, never got a new punishment hearing in what his lawyers contend was an oversight.

Now, Buck's Texas Defender Service Lawyers are asking the state Board of Pardons and Paroles to recommend that Gov. Rick Perry spare his life.

"The state of Texas cannot and should not tolerate an execution on the basis of an individual's race, particularly where this state's highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case," the clemency petition, by lawyers David Dow and Katherine Black, argues.

Alternately, the petition asks for a 120-day reprieve to pursue a new sentencing hearing. Although the other five killers received new hearings, all again were sentenced to death. One has been executed.

The problem in Buck's case arose when Dr. Walter Quijano, a defense psychiatrist, testified that the killer would not likely pose a future danger to society if imprisoned. "Future danger" is a key question jurors must consider before assessing a death sentence.

On cross-examination, however, the doctor agreed to a prosecutor's assertion that being African-American enhanced chances for future violence. That comment became a key factor in the state's push for execution.

Today's federal court filing is available via Sribd.

Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Bob Ray Sanders on the Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders writes, "Not a place for considering a person's race."

There is no question that Duane Edward Buck killed two people and wounded a third victim in a 1995 shooting in Houston.

But there are two nagging questions concerning Buck's case that we must ask:

1) Should he have received the death penalty for his crimes?

2) Would he have been sentenced to death had his race not become a major factor in the trial's punishment phase?

Buck, 48, is scheduled to be executed Sept. 15 in the Texas death chamber in Huntsville.

His is a unique case, one in which former Texas Attorney General John Cornyn (now a U.S. senator) supported a retrial on punishment because of the unfair testimony of a psychologist.

And:

Buck's lawyers also are asking that the Harris County district attorney's office and Texas Attorney General Greg Abbott intervene to have Buck's execution date withdrawn.

"This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles," said attorney Kate Black. "If Mr. Buck is executed, not only will Texas have violated the Constitution, it will have violated its citizens' basic moral values by permitting an execution to be carried out that is based on an individual's race."

Surely the state will not let this execution proceed.

Earlier coverage of the Duane Buck case begins at the link.  The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

News Coverage of the Duane Buck Clemency Petition

Today's Austin American-Statesman reports, "Petition: Condemned man's sentence racially tinged."  It's written by Steven Kreytak.

In 2000, then-Texas Attorney General John Cornyn said seven death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.

"It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

Six of those inmates later got new sentencing hearings. But a seventh — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not. Buck, 48, is scheduled to die Sept. 15.

On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.

"It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said. "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic. He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

His testimony was intended to inform the key decision by juries in assessing the death penalty in Texas: whether the defendant would be a likely future threat to society.

"Lawyers Seek Reprieve for Inmate Based on Race Testimony," by Brandi Grissom for the Texas Tribune.

When Duane Edward Buck was on trial for capital murder in Houston in 1997, Dr. Walter Quijano told jurors that the fact he was black meant Buck was more likely to be violent in the future.

The same psychologist gave similar testimony in six other death row cases. In each, the defendants were given new trials to determine their sentences.

Buck, though, has not received a retrial and is scheduled to die Sept. 15 for the 1995 shooting deaths of Debra Gardner and Kenneth Butler. Today, Buck's lawyers asked Gov. Rick Perry and the Texas Board of Pardons and Paroles to stop the scheduled execution to allow a new trial without racial references.

“If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race,” Kate Black, a lawyer for Buck, said in a statement.

In 2000, then-Attorney General John Cornyn admitted the state had erred in seven death row cases — including Buck's — in which prosecutors elicited testimony from Quijano indicating that their racial or ethnic background made them more inclined to commit more violent crimes.

And:

Cornyn’s office did not immediately respond to a request for comment on the Buck case.

Buck’s lawyers said that he has not received a new trial because of procedural stumbling blocks, and they asked Perry and the board to commute his sentence or grant a 120-day reprieve. “The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in thiscase,” they wrote in the petition filed today.

Earlier coverage of Duane Buck's case begins at the link.

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck & Tainted Future Dangerousness Testimony

Once again, expert witness testimony about future dangerousness provided during the sentencing phase of a Texas capital murder trial is at issue.

Texas Defender Service has issued a news release, "Texas Set to Execute Man Despite Improper Racist Evidence, Presented by Prosecution at Trial.  Attorneys urge prosecutors, courts, and Governor Perry to halt execution in case in which prior Attorney General John Cornyn admitted error."

Today, attorneys for Duane Edward Buck filed a clemency petition with the Texas Board of Pardons and Paroles urging the Board and Governor Perry to intervene and halt the execution of Mr. Buck, scheduled for September 15, 2011.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not wish to see him executed.

During Mr. Buck’s trial, psychologist Walter Quijano was called by the defense and testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future.  On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future.  The State urged the jury in its closing argument to rely on Dr. Quijano’s testimony.  The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck’s trial, but while his case was pending on appeal, on June 10, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing.  Mr. Cornyn identified Mr. Buck’s case as one of those six cases. Then-Attorney General (now Senator) Cornyn stated that Texas would not contest federal appeals in those six cases and that if the attorneys for the six identified defendants amended their appeals to include objections to Dr. Quijano’s testimony, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the testimony of Dr. Quijano in the case of Victor Saldaño. Attorney General Cornyn stated: “As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone.”

The six cases in which the Attorney General conceded error were those of Gustavo Garcia, Eugene Broxton, John Alba, Michael Gonzales, Carl Blue, and Duane Buck.  In the other five cases, courts granted new sentencing trials to the inmates to allow them fair trials untainted by consideration of race.

Despite this concession, Mr. Buck’s case has slipped through the cracks.  For complicated reasons related to the intricate litigation process in post-conviction proceedings, the issue related to the improper racial testimony and arguments in Mr. Buck’s case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.  Mr. Buck now faces execution on September 15, 2011.

The clemency petition filed today asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: “Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings.  Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case.”

Lawyers for Mr. Buck are also asking the Harris County District Attorney’s Office and the Attorney General of Texas to intervene and withdraw Mr. Buck’s execution date.  “This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles,” said Kate Black, counsel for Mr. Buck. “If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race.”

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

The Scent of a Dog

"Handlers' beliefs influence drug-sniffing dogs' performance," is the title of the San Francisco Chronicle report by Amelia Glynn.

The accuracy of drug- and explosives-sniffing dogs is affected by human handlers' beliefs, possibly in response to subtle, unintentional cues, UC Davis researchers have found.

The study, published in the January issue of the journal Animal Cognition, found that detection-dog teams erroneously "alerted," or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

"It isn't just about how sensitive a dog's nose is or how well-trained a dog is," says Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study's lead author. "There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog's performance."

And it turns out, these factors can be even more important than the sensitivity of a dog's sniffer.

"Dogs are exceptionally keen at interpreting subtle cues, so handlers need to be cognizant of that to optimize the overall team performance," adds Anita M. Oberbauer, UC Davis chair of the Department of Animal Science and the study's senior author.

To evaluate the effects of handler beliefs and expectations on detection-dog performance, the researchers recruited 18 handler-detection dog teams from law-enforcement agencies. All of the teams were certified by an agency for either drug detection, explosives detection or both drug.

The dogs all were trained to either alert passively at the location of a scent by sitting or laying down, alert actively by barking or by doing both. The teams included 14 male dogs and four female dogs, including Labrador retrievers, Belgian Malinois, German Shepherd dogs and Dutch Shepherd dogs. The dogs' level of experience ranged from two to seven years and their human partners had as many as 18 years of dog-handling experience.

A church was selected as the location for the study, since it was unlikely to have contained either explosives or drugs in the past. It was also a place where neither the dogs nor the handlers had been before. The researchers created four separate rooms for the dogs to examine or "clear."

The handlers were told that there might be up to three of their target scents in each room, and that there would be a piece of red construction paper in two of the rooms that identified the location of the target scent. However, there were no target scents — explosives or drugs — placed in any of the rooms.

And:

Although Lit is careful to note that her findings do not mitigate the abilities of handlers and their dog teams to perform successfully, she believes they are significant.

More on Texas' own brand of scent lineups, at the link.

The Continuing Saga of Steven Hayne

That's the title of Radley Balko's post at Reason.  It's subtitled, "The latest developments in the story of America's most industrious medical examiner."  Here's the beginning of the report:

Last week the Mississippi Supreme Court granted a new trial to Cory Maye, who is serving a life sentence for shooting and killing Prentiss, Mississippi, police officer Ron Jones during a botched drug raid on Maye's apartment. One of the key prosecution witnesses in Maye's case was Steven Hayne, an overworked, ethically dubious medical examiner who performed the overwhelming majority of criminal autopsies in Mississippi for two decades, from the late 1980s until 2008. Although last week's ruling did not address Hayne's work, it presents an opportunity to consider recent developments in Mississippi's slow evolution toward a more competent death investigation system.

It was through Maye's case that I began reporting on Hayne, which resulted in a 2007 feature story in Reason. I found that he was performing a staggering 1,500 to 1,800 autopsies a year and had given dubious pro-prosecution testimony in several cases. Hayne (who over the years has never responded to my requests for an interview) had also given questionable testimony in civil cases, usually testifying for plaintiffs in medical malpractice and consumer lawsuits. In April 2009 I wrote another feature for Reason about the work Hayne and his sidekick, Hattiesburg, Mississippi, dentist Michael West, did in the Louisiana murder trial of Jimmie Duncan, who was eventually convicted and sentenced to death for sexually assaulting and murdering 2-year-old Haley Oliveaux, the daughter of his then-girlfriend. A video showed West repeatedly pushing a dental mold of Duncan's teeth into Oliveaux's skin, a practice other forensic experts say is at minimum malpractice and may amount to criminal evidence tampering.

In August 2008, Mississippi finally barred Hayne from doing any more autopsies in the state, although he still testifies in court, due to the massive backlog of cases in his care when he was terminated. Several of the state's coroners and prosecutors, along with Mississippi Attorney General Jim Hood, mounted a brief campaign last year to reinstate Hayne, but that effort was defeated by the Mississippi legislature earlier this year.

Related posts are in the forensics index.  Some notable posts on medical examiners include:

• El Paso Fires County's Medical Examiner
• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

The Latest Commentary on Todd Willingham

If you missed Tuesday broadcast of the PBS Frontline documentary, "Death by Fire," you can watch the complete episode at the link.

"Junk science and the death penalty, a toxic combination," that's the title of an editorial in today's Houston Chronicle, and it begins the latest Todd Willingham news coverage.

It's been six years since Cameron Todd Willingham was executed at age 36 for the arson murder of his three young daughters at the family home in Corsicana in 1991. But his case is far from over. In fact, it has become a catalyst for an intense debate on Texas justice, on the prevalence of "junk science" in Texas courts and on the validity of the death penalty itself.

Willingham consistently protested his innocence, and even before his death in 2004, experts had raised serious doubts that he had set the fire that killed his children.

And:

If a court of inquiry finds Willingham innocent, it will be the first ruling in this country's modern judicial system that an innocent person has been executed for a crime he did not commit — which could have profound implications for the future of the death penalty, especially in Texas, the country's most prolific execution state.

But equally important is the issue of junk science, which is endemic in Texas courts, according to Jeff Blackburn, chief counsel to the Innocence Project of Texas. One solution he advocates is forensic labs that are independent of law-enforcement agencies - a policy wholeheartedly endorsed by Harris County District Attorney Pat Lykos, who has been fighting for just such a regional, independent lab in Houston.

The forensic science commission, created in the aftermath of the colossal scandal that caused the closing of the Houston Police Department's crime lab in late 2002, is a good idea. We need to let it do its job - which is not to pass judgment on Willingham's guilt or innocence, but to review the scientific integrity of the evidence in the case. And the sooner we can get that independent regional crime lab up and running, the better for all of us.

"Bradley continues to undermine forensic science commission's credibility," is the title of Colleen McCain Nelson's post at the Dallas Morning News Death Penalty blog.  She's an editorial writer for the News.

Before John Bradley took the helm at the Texas Forensic Science Commission, plenty of folks worried that he would simply do the governor's bidding -- especially in the case of Cameron Todd Willingham. Unfortunately, Bradley seems determined to prove his detractors right, as he continues to thwart efforts to examine the outdated arson science that was used to convict -- and execute -- Willingham.

Bradley recently declared that Willingham was a "guilty monster." Other members of the commission rightly cried foul, noting that Bradley's pronouncement undermines the panel's credibility and objectivity.

And:

Also worth noting is Bradley's word choice: guilty monster. As luck would have it, Perry declared that Willingham was a "monster" when questions began to mount about Willingham's conviction. I'm sure that's just a coincidence, though ... right?

In the next post, I'll link to fresh news coverage on the case.  Earlier coverage begins with this post. All Willingham coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Future Dangerousness - UPDATED

"Longtime expert witness unreliable, court says," is the report in today's Austin American-Statesman.  It's written by Steven Kreytak.

In his decades working as a forensic psychiatrist, Dr. Richard Coons of Austin has testified at dozens of death penalty trials across Texas in which he opined about how defendants would behave in the future.

In Travis County, prosecutors called him in the past year to testify during the sentencing trials of killers Milton Gobert and Paul Devoe. Coons pronounced that, in his expert opinion, both men would be a future danger. They both received the death penalty.

Coons' paid testimony at those trials and others could get new scrutiny after the Court of Criminal Appeals ruled last week — in a Waco death penalty case — that Coons' methodology for predicting future dangerousness is not reliable.

The court upheld Billy Wayne Coble's death sentence in the killings of his wife's mother, father and brother, ruling that other evidence presented at sentencing supported the McLennan County jury's findings.

The ruling, however, was a significant victory for capital defense lawyers statewide who for years have fought to persuade courts to prohibit the testimony of Coons and other forensic psychiatrists. The lawyers say such testimony offers nothing more than opinions.

"If you are going to be an expert, you should have some scientific basis of what you are testifying about," said Russ Hunt Jr., a Georgetown lawyer who represented Coble at trial. Coons "basically just says, 'Trust me. I'm a doctor. I know it when I see it,' " Hunt said.

And:

For someone to be sentenced to death in Texas, juries must find that there is a probability they pose a continuing threat to society by committing continuous acts of violence and that there are no mitigating factors to warrant a sentence of life in prison.

The U.S. Supreme Court ruled in 1983 in Barefoot v. Estelle that psychiatrists are competent to give opinions on the first question — the so-called future dangerousness of the defendant.

The testimony often comes after a psychiatrist interviews the defendant and evaluates pertinent documentation from the case, including their medical and criminal history. But even when the defendant is not interviewed, psychiatrists are sometimes allowed to give an opinion on a hypothetical scenario, usually one that matches the facts of the case at issue.

At Coble's trial, Coons testified that he has developed his own methodology to come to a conclusion on future dangerousness, one in which he considers factors such as the person's conscience, criminal history and attitudes toward violence.

"These factors sound like common sense ones that the jury would consider on its own," Judge Cathy Cochran wrote in the opinion for the court. Cochran noted that Coons could not show how his past predictions have fared or whether the factors he has considered are validated by any research.

In a dissenting opinion, Judge Sharon Keller said expert witnesses with some specialized knowledge should be allowed to testify about it to aid the jury in reaching a conclusion. Coons' experience and educational background "place him in a better position than the average juror."

The CCA ruling in Coble is available in Adobe .pdf format, as is the concurring opinion written by Judge Keller.

Texas is unique among the states with capital punishment upon its reliance of predictions of future dangerousness.  Earlier coverage of this critical issue begins with this post.

UPDATE with new document link -- In 2004, Texas Defender Service published Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness.  It's a must-read.

Todd Willingham, the FSC, and Junk Science

"Willingham hearing imperfect but important," is the title of a Dallas Morning News editorial.  It appeared in the Saturday edition.

The questions surrounding the Cameron Todd Willingham case have become a constant drumbeat in Texas' death penalty discussion. The underlying unknown: Did Texas err when it executed Willingham?

The case of a man who was put to death for arson murder of his three daughters has become the state's most discussed, most studied and most maligned capital murder case. But despite an array of efforts to re-examine the questionable science that sent Willingham to his death, no legal determination has been made on whether he was wrongfully convicted.

That's what state District Judge Charlie Baird aims to do, starting with a hearing on Wednesday.

This is a bold move by Baird – one that opens up the Travis County judge to plenty of criticism if he proceeds clumsily. But handled with care, this posthumous hearing has the potential to provide important information about the mistakes in this case and to expose weaknesses in Texas' approach to the death penalty.

And:

This hearing, which comes six years after Willingham's execution, is an imperfect approach. But perfection became impossible when the state executed Willingham with so many questions left unanswered.

This morning's Houston Chronicle carries Rick Casey's latest column, "Focusing on what's right, not just legal."

One of the highlights of my recently completed vacation was to read from afar that in a showdown between science and politics in a Texas state body, science had won a resounding victory.

It wasn't the State Board of Education, but one cannot expect miracles.

It was the Texas Forensic Science Commission, a fledgling body that I have covered with exuberance because it is one of the most promising efforts in the nation to deal with the widely recognized problem of the faulty use of science in the criminal justice system.

The commission's job is to determine when forensic science is poorly done in Texas, and to promote doing it right.

So it was delightful when the scientists on the Forensic Science Commission recently stood up as a body to the prosecutor whom Gov. Rick Perry made their chairman a year ago.

And:

What's more, and perhaps even more importantly for the promotion of good science, the scientists accepted the argument by the Innocence Project, which brought the Willingham case to them, that they need to address whether the State Fire Marshal's Office has a responsibility to notify law enforcement officials, district attorneys, judges and the governor when it discovers that people have been (and are being) convicted on faulty science.

Hundreds of Texans sit in prison for arson, possibly based on science discredited in the 1990s.

Bradley had ignored the issue, but the scientists insist on raising it with the Fire Marshal's Office.

Three leaders of the Innocence Project of Texas co-authored an OpEd that appeared in yesterday's Chronicle, "Time to ban junk science from Texas courtrooms."  It's by Jeff Blackburn, Gary Udashen, and Cory Session.

The Cameron Todd Willingham case has raised serious questions about the Texas criminal justice system. To many, the issue is whether Texas executed an innocent man. To the Innocence Project of Texas, the questions raised by this case are much bigger. To us, the real issue raised by the Willingham case is the ongoing use of "junk science" to falsely convict the innocent.

What is junk science? There are few things more convincing to a jury than scientific evidence presented by expert witnesses called by the state in a criminal case. Sometimes, however, the so-called science used by prosecutors isn't science at all.

Many Texas defendants have been convicted when fraudulent or invented forensic techniques were presented as scientific truth at trial. Others have gone to prison as a result of genuine science being twisted into false accusations of guilt. From the Houston Crime Lab disaster to the discredited testimony of experts like Ralph Erdmann and Fred Zain, Texas leads the nation in scandal over this problem. The Cameron Todd Willingham case, in which discredited arson science was used to get a conviction, is only one of many examples of the use of this kind of evidence.

Just last year, the Innocence Project of Texas exposed the work of Keith Pikett, a Fort Bend County Sheriff's deputy who made use of "dog-scent lineups" to link suspects to evidence retrieved from crime scenes. The Innocence Project report, entitled Dog Scent Lineups: A Junk Science Injustice, called attention to the numerous wrongful accusations and convictions that resulted from this form of junk science. Even though the self-trained deputy did not have a scientific background, he was allowed time and time again to testify in criminal trials about the alleged science behind his lineup procedures. Pikett's expert testimony was all junk and no science — and it was used repeatedly by prosecutors. In an encouraging move, the Texas Court of Criminal Appeals recently reversed a case based on Pikett's testimony. That move aside, prosecutors are still allowed to use charlatans like Pikett in Texas courtrooms.

The technique of using phony experts, unscientific evidence or just plain fraud dressed up as expert testimony is known as the use of junk science. It is being employed to get convictions in courtrooms all over the state to this day.

Fortunately, there are solutions to this problem. Innocent citizens who have been convicted in the past because of junk science need to have a fair day in court to prove that they were wrongfully convicted. Forensic labs need to be separated from law-enforcement agencies and made fully accountable to the scientific community. Trial procedures need to be improved so that innocent citizens will not be victimized by junk science in the future.

UPDATE:  The San Antonio Express-News, sister paper of the Chronicle, ran the OpEd as, "Junk science a pervasive problem in Texas," on Thursday, October 7.

Earlier Willingham coverage begins with this post; More from the IPoT, here.

All Willingham coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Texas Innocence Group Fights Use of `Junk Science'

That's the title of Jeff Carlton's AP report, via the Houston Chronicle.  LINK

A woman convicted of killing her uncle by dousing him with gasoline and setting him on fire asked the Texas Forensic Science Commission on Wednesday to determine whether a crime lab committed professional misconduct when it claimed to have found traces of gasoline on his clothes.

The Innocence Project of Texas, as part of its campaign against what it calls "junk science," filed the complaint on behalf of Sonia Cacy, 63. She has been free on parole since 1998 after the forensic evidence used to convict her was widely discredited.

John Bradley, the head of the science commission, said in an e-mail that "FSC policy is to avoid public discussion of pending complaints, especially those not yet reviewed or investigated." The medical examiner's office, which is in San Antonio, did not immediately respond to a message from The Associated Press.

The science commission is the same group looking into whether fire investigators were negligent in determining that arson was the cause of a 1991 fire that killed three young sisters in Corsicana. That arson finding helped convict the girls' father, Cameron Todd Willingham, of murder. He was executed in 2004.

Cacy was convicted of murder in the 1991 death of her uncle, Bill Richardson, at their Fort Stockton home. The key evidence came from the Bexar County Medical Examiner's office, which determined there was gasoline on Richardson's clothes.

That evidence was later debunked by nearly a dozen fire experts and numerous attorneys who worked on her case for free. As a result, the Texas Board of Pardons and Parole released Cacy after she had served six years of a 99-year prison sentence.

Her attorneys and many forensic experts say Richardson, a heavy smoker, likely died of a heart attack. They believe he dropped a cigarette that started a fire.

And:

Attorneys Jeff Blackburn and Gary Udashen, who are Innocence Project of Texas board members, said filing the complaint with the forensic science commission is the first step toward clearing Cacy's name.

"This is the most stark example of what junk science can do to someone," Blackburn said.

Blackburn and Udashen said junk science is most common in Texas in cases involving blood spatter patterns, arson investigations and dog scent identifications.

They unveiled a four-point plan designed to ferret out possible wrongful convictions caused by the use of such science: They are offering to assist law enforcement agencies in reviewing cases, file litigation involving such cases, bring appropriate cases to the science commission and offer a reform plan to the Texas Legislature.

Earlier coverage of Cacy is here; more on dog scent lineups, here.

Dog Scent Lineup Conviction Reversed

The Texas Court of Criminal Appeals reversed a murder conviction based upon a dog scent lineup run by a former deputy sheriff.  The opinion in Richard Lynn Winfrey v. State of Texas is in Adobe .pdf format.  Judge Cochran wrote a concurring opinon.

"Texas court reverses conviction in dog scent case," is the AP report via Google News.  It's written by Jeff Carlton.  Here's an extended excerpt:

A man convicted of murder after three bloodhounds allegedly matched his scent to the victim should be set free because the evidence against him was not legally sufficient, the Texas Court of Criminal Appeals ruled Wednesday.

The court acquitted Richard Winfrey Sr., reversing his 2007 conviction in the murder of high school janitor Murray Burr in the small town of Coldspring, about 60 miles north of Houston.

Under the ruling, prosecutors will not be allowed to retry the case.

Winfrey remained in state prison Wednesday. His attorney, Shirley Baccus-Lobel, said she planned to immediately file a motion for his release with the state appeals court. It is possible he could be freed by Friday, his 57th birthday.

"We thank God first and then Shirley second," said Vicky Winfrey-Daffern, the defendant's sister. "We are so overjoyed. Everybody's turning flips."

The main evidence against Winfrey in the 2004 murder was a positive scent identification from three bloodhounds named Quincy, James Bond and Clue. The dogs belong to former Fort Bend Sheriff's Deputy Keith Pikett, who retired earlier this year after being targeted by the Innocence Project of Texas, a group that claims the ex-lawman passes off junk science as legitimate investigative techniques.

Pikett is a defendant in at least three lawsuits from men saying they were wrongly jailed after his dogs linked them to crimes they did not commit. He did not return a message left by The Associated Press.

Trained dogs are routinely at border checkpoints and airports to smell for drugs, bombs or other contraband. They're used by search and rescue teams and in other police work, such as to chase suspects.

In Winfrey's case and other Texas cases, however, Pikett's bloodhounds use a "scent lineup" to link defendants to crimes.

Three years after Burr's death, Pikett's dogs sniffed clothing worn by the murder victim when he was killed. Authorities then took scent swabs from six individuals and placed them in separate coffee cans. The dogs alerted Pikett when they sniffed the coffee can containing a swab taken from Winfrey, the deputy testified.

The appeals court ruled that "scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction."

Today's New York Times runs an excerpt of the AP filing as, "Texas: Bloodhounds’ Evidence Ruled Insufficient."

Chuck Lindell writes, "Appeals court frees man convicted of murder based on dog scent lineup," for today's Austin American-Statesman.

Wednesday's decision means prosecutors can continue to introduce scent lineups at trial, but only if the conclusions are supported by other, corroborating evidence.

The Court of Criminal Appeals declined to delve into the bigger question of whether dog scent lineups should be admissible in court at all. Because Winfrey's lawyer failed to object to the lineup at trial, the issue was not eligible for review by the appeals courts, a concurring opinion by four judges noted.

Instead, the court ruled 8-0 that prosecutors had failed to present any credible evidence, beyond the dogs' identification, tying Winfrey to the crime.

"I am so glad to know that they saw that poppycock stuff," said Shirley Baccus-Lobel , Winfrey's appeals lawyer. She said the Winfrey family was "deliriously happy" to hear the news.

On their own, scent lineups do not provide enough evidence to support a conviction beyond a reasonable doubt, said the opinion by Judge Barbara Hervey . Scent is easily transferred and is "not proof positive that (Winfrey) came in contact with the victim," she wrote.

Several other justices, during oral arguments in April, also noted that prosecutors could not prove that Winfrey's scent, even if present on the victim's clothing, was transferred during the crime.

"We acknowledge the invariable truth espoused by (U.S. Supreme Court) Justice (David) Souter that 'the infallible dog, however, is a creature of legal fiction,'\u2009" Hervey wrote. "We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction."

The unanimous opinion overturned a lower court that affirmed Winfrey's conviction in the murder of Murray Burr, who was badly beaten and stabbed 28 times in his home. No witnesses saw Winfrey at Burr's house. He did not match DNA, fingerprints, a bloody footprint or any of the 73 hairs taken from the crime scene. None of Burr's possessions were found with Winfrey, Hervey noted.

And:

From 1993 to 2009, Pikett and his dogs conducted hundreds of scent lineups for about 20 Texas counties, the Texas Rangers, the state attorney general's office and federal agencies, court documents show. Pikett trained a half-dozen of his bloodhounds — sporting names such as Columbo, Quincy, James Bond and Clue — to conduct scent lineups using methods he created or learned from dog training seminars.

The Houston Chronicle reports, "Overturned Coldspring murder case muzzles canine lineups," by Mike Tolson.

Advocacy groups as well as other professional scent dog handlers have denounced Pikett and his dogs, which have proved useful in securing convictions in jurisdictions throughout the state over the last decade.

Last year the Innocence Project of Texas issued a scathing report on Pikett's work, calling it nothing more than "junk science." It cited cases in which Pikett's dogs found scent associations of suspects with crime scenes, only to have further investigation exonerate the suspect of any involvement. In some of those cases, the suspects were jailed and charged with the crime before being cleared.

And:

Jeff Blackburn, chief counsel of the Innocence Project of Texas, hailed the ruling as a big step toward eliminating dog scent evidence from courtrooms, even if the court did not go that far.

"I think we've done a lot of damage — and this case does a lot more damage — to the use of this nonsense in Texas courts," Blackburn said. "I think this is a real opening. With the Court of Criminal Appeals, you have to measure progress in baby steps. Anyone looking to them for big changes in the criminal justice system is looking in the wrong place. But if you understand that, it's a real big step forward. At the very least, I think we have effectively put this guy out of business."

The 2009 Innocence Project of Texas report, "Dog Scent Lineups: A Junk Science Injustice," is in Adobe .pdf format.  Earlier coverage of Pikett and his dogs begins with this post.

A Bloody Injustice

That's the title of Dave Mann's latest article on faulty forensics in the Texas Observer.  It's subtitled, "Warren Horinek was a vicious drunk with a history of threatening his wife. But his conviction for murdering her was based on junk science--like thousands of others."  Two brief excerpts from this must-read:

From the start, Warren Horinek has claimed his wife shot herself. As the police investigation unfolded, the people normally responsible for sending a murderer to prison—the crime scene investigator, the police sergeant who oversaw the homicide investigation, the medical examiner who performed the autopsy, even the assistant district attorney initially assigned to prosecute the case—all came to believe that Horinek was telling the truth.

When Horinek was tried for murder, they testified in his defense. Their testimony and expertise wouldn’t matter. Horinek’s fate would hinge on a few specks of blood found at the scene. A few specks of blood, that is, along with the testimony of a single forensic expert who may have misread the evidence. As a result, an innocent man may spend decades in prison. He won’t be alone.

And:

For most of his trial, Horinek’s attorney seemed prescient. The jury appeared to be convinced of his innocence. Later, when this anything-but-textbook trial was over, the foreman would say that the jurors were going to acquit Horinek. That was before the prosecution’s final witness took the  stand. This case, like hundreds of others, was decided by the testimony of a single forensic expert.

His name is Tom Bevel. He’s a private, Oklahoma-based expert in bloodstain patterns. The study of blood spatter has been around since the 1890s. But unlike other forensic evidence—DNA or fingerprinting, for example—blood spatter evidence rarely provides the sole basis for prosecution. Blood patterns—like those found on Warren Horinek’s Hard Rock Cafe T-shirt that night in 1995—can be used to augment evidence in a criminal case, but they’re rarely the only evidence. The reason is simple: Bloodstains can tell you only so much about who committed a crime, or how. Some experts, Bevel included, have tried to use blood-spatter forensics to reconstruct where blood came from and by what method. If that sounds fantastical, it sometimes is.

In recent years, flawed blood-spatter evidence has led to at least three wrongful convictions across the country, from North Carolina to Indiana. In 2009, the National Academy of Sciences released findings from the most extensive study ever conducted of forensic evidence in American courtrooms. The authors didn’t think much of blood-spatter analysis, writing that the “uncertainties associated with bloodstain pattern analysis are enormous,” and concluding that the opinions of blood-spatter experts like Bevel are “more subjective than scientific.”

In that respect, bloodstain analysis is similar to other kinds of forensic science. With the exception of DNA testing, much of the forensic evidence used in U.S. courts—including fingerprint matches, ballistics, and arson evidence—is based on junk science. CSI it ain’t. Contrary to what’s portrayed on television, bullets are regularly matched to the wrong gun, fingerprints are misidentified, crime labs botch their analysis, and accidental fires are misread as arson.

Most criminal-justice experts believe that flawed forensic evidence—and overreaching expert witnesses—have sent thousands of Americans to prison for crimes they didn’t commit. The solution is to ensure that forensic testimony is based on sound science.

Mann's earlier investigative journalism is noted here.

Tonight - ABC 20/20 Examines Texas, Indiana Arson Investigations

ABC News has issued a press release on tonight's segment on 20/20, "Burned: 20/20 Investigates Three Alleged Arson Cases with the Help of the Nation's Leading Fire Experts and the Latest Techniques."  It airs tonight at 10:00 pm, EDT (9:00 pm, CDT); check your local station for time in your location.

The only thing possibly worse than losing loved ones in a fire would be if you were falsely accused of setting the blaze. Yet, that is what some experts say happens around the country when the wrong fire investigator determines arson based on outdated techniques. Is it what happened to Amanda Kelley? Kelley’s world fell apart on a winter’s day in 2001 when she was charged with arson, accused of setting a fire that engulfed her Alexandria, Louisiana home, killing her three children. She faced the death penalty.

“20/20” takes this case apart, and examines others where people claim someone was falsely charged, convicted or even executed based on bad fire science. Experts involved say what happened to them, could happen to anyone. John Lentini, one of the nation’s leading fire experts says: “If you survive a fatal fire, you’ve got a very good chance of being charged with setting it.” Jay Schadler’s report airs on 20/20 on FRIDAY, MAY 7 (10:00-11:00 p.m., ET) on the ABC Television Network.

Other cases “20/20” investigates include: in Indiana, Kristine Bunch has already been behind bars for 14 years after being convicted of setting her mobile home on fire to kill her child; and in Texas, Curtis Severns is serving 17 years in prison for setting fire to his gun shop, even though no one was killed. 

Texas Observer journalist Dave Mann notes the program in his post, "ABC News Investigates Disputed Texas Arson Case." 

The ABC News program 20/20 will broadcast a report this Friday night about people wrongly convicted of arson.

The segment—which airs at 9 p.m. central time—will feature the case of Curtis Severns, who was convicted in 2006 of starting a fire in his Plano gun shop. He remains in federal prison in Beaumont for a crime he likely didn’t commit.

The Observer first reported Severns’ case last year as part of our series on false arson convictions. As in other cases, Severns was convicted by what some of the top fire experts in the country now say is flawed forensic evidence.

Leading into Friday’s broadcast, the ABC News site is featuring several online stories about discredited arson evidence this week. You can read those pieces here and here.

Federal prosecutors and investigators with the Bureau of Alcohol, Tobacco and Firearms contended that Severns must have set the fire in his gun shop because they found what’s called multiple points of origin at the scene. This typically indicates the work of an arsonist because accidental fires almost never start in more than one place.

But two of the most respected fire scientists in the country—Gerald Hurst of Austin and Florida-based John Lentini—believe the fire was accidental. They say a frayed electrical cord found at the scene ignited a small fire on a workbench that caused a nearby case of aerosol cans to explode and spread flames all over the shop. In essence, they say, an aerosol can explosion caused the appearance of multiple points of origin. And a recently discovered video of a test fire—run by the ATF itself—shows that aerosol cans can spread fire and make an accidental fire appear like an arson. "Spray cans can create the illusion of multiple origins," Hurst told the Observer last year.

Even the prosecution’s star witness—when questioned by the Observer about the new evidence—conceded that the aerosol-can scenario was possible.

Here’s the opening to our investigative report from April 2009:

And:

Severns' original 30-year sentence has since been reduced. A federal appeals court last year determined the sentence was egregious. But even so, Severns has been in prison for nearly four years now and still has more than a decade left to serve—10 years away from his wife and children, sitting in a cell for a crime he almost assuredly didn’t commit.

Mann's enterprise reporting has brought this and other arson cases to the public view.  Earlier coverage of Mann's reporting begins with this post.

An earlier reference to tonight's program is here.

More on Scent Lineups, Junk Science, & Science Based Forensics

Texas Monthly writer Michael Hall has another must-read article in the May issue, "Weird Science."  Here's the opening and a brief excerpt from the beginning of this lengthy article:

Testimony from forensic experts can be the most persuasive evidence presented at trial, but often juries don’t realize that the analysis of hair, fire, and even fingerprints may not be so scientific. And as the story of deputy Keith Pikett, master of the dog-scent lineup, shows, investigations can sometimes lead to the greatest crime of all: putting innocent people behind bars.

And:

Quincy, the amazing bloodhound, sniffed the air around the body of Sally Blackwell, who lay half-naked in a field just outside Victoria. Blackwell, a supervisor for Child Protective Services, had been missing for a day when a county-road crew found her in a brushy field on March 15, 2006. She had been strangled with a rope, which was still on her body. Quincy’s handler, Deputy Keith Pikett, held the leash and surveyed the scene, which was teeming with officers from the Victoria Police Department, the Victoria County Sheriff’s Office, the Department of Public Safety, and the Texas Rangers. It was almost seven o’clock and would be getting dark soon.

A few hours earlier, Sam Eyre, a sergeant with the Victoria police, had called Pikett, who lived in Houston and worked out of the Fort Bend County Sheriff’s Office, about two hours away. Pikett (pronounced “Pie-ket”) was something of a star in law enforcement circles. For years he and his dogs—Quincy, James Bond, and Clue—had helped find missing children and escaped convicts, and they had investigated murders all over the state, including one in Victoria in 2003. They had worked with the FBI, the ATF, the Texas Rangers, and the state attorney general’s office, and they had helped solve hundreds of crimes with Pikett’s version of a technique called a scent lineup, in which his dogs matched an odor found at a crime scene to the person who left it. His dogs were so good at sniffing out the bad guys, he said, that they had made only five mistakes in fifteen years.

Earlier reports by Hall are noted here,  here, here, here, and here.  As I've noted before, Michael Hall and I are not related.

Earlier coverage of Deputy Pikett and his dogs begins with this post.  A report by the Innocence Project of Texas report on scent lineups is available in Adobe .pdf format.

Cracked

That's the title of Renee Feltz must-read report in the newly redesigned Texas Observer.  It's subtitled, "Despite a U.S. Supreme Court ban, Texas has continued to send mentally retarded criminals to death row. Will a Mexican immigrant's case correct this injustice?"  Here's a brief excerpt from this in-depth report.

In 2002, six years after Daniel Plata landed on Death Row, the U.S. Supreme Court ruled in a case called Atkins v. Virginia that “executions of mentally retarded criminals are cruel and unusual.” Even though mentally disabled people can understand the difference between right and wrong, the court reasoned that they are less able to control impulsive behavior or learn from mistakes. The court supported its decision by pointing to bans on executing the mentally retarded in 17 states and in federal cases as “evolving standards of decency.”

Like most of the states that had already passed bans, the justices used a clinical definition to establish the level of mental retardation that would exempt Daryl Atkins, the Virginia defendant, from death: below-average intellectual abilities defined by an IQ score of 70 or below and “deficits in adaptive behavior” such as practical and social skills. Both of these limitations, the court ruled, had to be present before the age of 18.

But the court left it up to the states to choose their own definitions of mental retardation. Since 2002, eight more states have passed laws that use the clinical definition cited in Atkins. Texas is not one of them. With bipartisan support, the Texas Legislature passed a law in 2001 mandating a life sentence for mentally retarded people convicted of capital crimes. But Gov. Rick Perry vetoed the measure, agreeing with critics that it was a “backdoor attempt to ban the death penalty.” Bans on executing the mentally retarded have been floated in every legislative session since but have never again come up for a vote.

In 2004, a Texas death row inmate named Jose Briseño contended that he was mentally retarded and shouldn’t be executed for murdering a Dimmit County sheriff. In the absence of legislative guidelines, the Texas Court of Criminal Appeals wrote “temporary judicial guidelines” that have guided Texas courts ever since. In its Briseño decision, the court called clinical definitions of mental retardation, like those used by the U.S. Supreme Court, “exceedingly subjective.” Texas added its own set of additional criteria in the form of seven questions, including: “Did the commission of that offense require forethought, planning and complex execution of purpose?” If a defendant didn’t address these questions to the court’s satisfaction, he could be eligible for execution even if his test scores showed he was mentally disabled.

Most of Texas’ questions emphasize the events of a crime in deciding whether a defendant meets a legal definition of mental retardation. “I think much of that emphasis is inappropriate because it embodies the stereotype of mentally retarded people as unable to do anything,” says Sheri Lynn Johnson, a professor at Cornell Law School and co-director of its Death Penalty Project. In Texas, under the Briseño standard, if you’re capable of committing a murder, it’s difficult to establish that you’re also mentally retarded. 

In other states, evidence of mental retardation is heard in pretrial hearings that decide whether a person is even eligible for a death sentence. In Texas, prosecutors have fought successfully to hold off evidence of mental retardation to the penalty phase of a trial, meaning that jurors consider it only after they have convicted a defendant of murder. Keith Hampton, legislative director of the Texas Criminal Defense Lawyers Association, says “the gamesmanship is this: I can make you hate this guy so much that you won’t care if he’s mentally retarded.”

Earlier reporting by Feltz on this topic is noted in this post.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, we continue to use the older term.

More on Texas Arson Cases From Dave Mann

The Texas Observer journalist writes, "Fire and Innocence," for the November 27th issue.  It's an extensive article and a must-read.  Here's the beginning:

Gerald Hurst is one of the nation’s foremost authorities on fire and explosives. At age 72, he’s tall and lean, with graying hair combed back on his head and a white beard—think Santa Claus after a Nutrisystem diet. Within minutes of welcoming me into his West Austin home in the fall of 2008, he had me hooked, recounting vivid, head-scratching stories of person after person who’d been wrongly convicted of arson.

That was what I’d come to hear. I had developed a fascination with arson cases—specifically, with the methods fire investigators used to distinguish intentionally set fires from accidental ones. Until recently, the process was more art than science. And in many places, it still is. Fire investigators long worked from a basic set of assumptions about how buildings burn—“old wives’ tales,” as Hurst calls them, passed from one generation to another. For decades, they walked into the remains of charred buildings in search of the same clues to arson: furniture and windows buckled by extreme heat; burn patterns on the floor caused by an accelerant like gasoline; and other markers that were supposed to indicate that a fire had spread, quickly and wildly. They took those markers to mean that a fire had been ignited on purpose. And then they used the evidence to send thousands of people to prison.

But many of the investigators’ assumptions have turned out to be wrong. Over the past 15 years, the forensic science of arson has undergone a revolution led by experts like Hurst. With nearly 800 people serving time for arson convictions in Texas prisons alone, the wider implications aren’t hard to grasp. It now appears that hundreds of Texans have been wrongly convicted on the basis of outdated and inaccurate forensic evidence. Nobody knows exactly how many, because no one’s looked comprehensively at the cases of those in prison for arson. I wanted to dig into as many of those cases as I could. Hurst liked the idea, and he offered to help examine any suspicious cases I could turn up through court documents and police records.

Hurst, who holds a doctorate in chemistry from Cambridge University, spent most of three decades working in the private sector as a fire and explosives expert. He also worked as an expert for hire in civil cases, usually insurance disputes over the cause of a fire. His first exposure to the shoddy forensic science being used as evidence in criminal cases came only about a decade ago. Hurst was asked to examine the evidence used to convict a Fort Stockton woman named Sonia Cacy, sent to prison in 1993 for allegedly killing her uncle in a house fire. Hurst and his wife drove to West Texas to meet Cacy. On the way, Hurst read through her case file. He was shocked to see the flawed, outdated forensics that had been used in this capital murder case. Cacy was innocent, and Hurst’s testimony ultimately helped exonerate her. She was released in 1998 after serving six years of a 99-year sentence. It also gave him a new mission. Since the late 1990s, Hurst has testified, pro bono, in dozens of arson cases around the country as an expert witness for the defense. In Texas, he helped exonerate Ernest Ray Willis, who spent 17 years on Death Row for a fire he didn’t start.

But Hurst has gained the most notoriety for his work on the now-infamous Cameron Todd Willingham case. Willingham was convicted of arson murder for allegedly starting a 1991 fire at his North Texas home that killed his three daughters. Just weeks before Willingham’s execution in 2004, Hurst was asked to look at the evidence. He saw immediately that investigators had used outdated assumptions to convict Willingham. Working against the clock, he hurriedly wrote a report that debunked much of the physical evidence. Hurst concluded in his report that “most of the conclusions reached by the Fire Marshal would be considered invalid in light of current knowledge.” (You can read the whole report here.) Willingham’s lawyer faxed the report to Gov. Rick Perry’s office hours before the scheduled lethal injection. Because the governor’s office has refused to release relevant documents, it’s unclear what, if anything, the governor’s staff did with Hurst’s report or whether Perry ever saw it. But the governor let the execution go forward.

Hurst was the first fire-science expert to review the case. Since Willingham was put to death, eight more of the nation’s leading fire scientists have examined the evidence. Every one of them has agreed with Hurst that the forensics were outdated and that the fire was likely accidental. That would mean Texas almost certainly executed an innocent man.

And:

The Willis and Willingham cases are not unique; they just happen to have gained wide public attention. Hurst has seen many cases in which the forensic evidence was as bad or worse. In the basement of his Austin home, he continues to dig through case files submitted by attorneys and families across Texas and the nation. In the last two weeks of October alone, he received requests to examine a half-dozen arson cases. Some of the defendants are obviously guilty, he says. Other cases have flaws that leave questions about the defendants’ guilt. But in about half the cases he sees, fire investigators have conjured arson evidence that is so obviously wrong—based on ludicrous theories and long-disproved methodologies—that it would almost be funny, he says, if someone weren’t sitting in jail because of it.

“Older cases, you can pretty much assume it’s probably a bad case,” Hurst says. “But new cases come in too, and only a small percentage of them are really good cases—I mean where they’ve done their homework, eliminated accidental causes and pretty well established arson. But I don’t see many. I see [investigators] doing some of the same things they were doing in the ’80s.”

The article contains the following chart:

Mann's earlier enterprise reporting begins with this post.  His coverage of the Senate Criminal Justice Committee meeting last month is here.

The Smell Test

That's the title of an editorial in today's Houston Chronicle.  It's subtitled, "Canine witnesses need tighter judicial leashes."

With very little science to back them up, so-called scent lineups have been used extensively to convict defendants in Texas courts.

Dogs sample the odor of a suspect and several other persons and sniff crime-scene evidence. Then they indicate to their handlers through signals whether there's a match. In many law enforcement jurisdictions, officers can use the evidence to justify a search, an arrest, even a criminal charge.

One of the leading practitioners and popularizers of the technique is Fort Bend County Deputy Keith Pikett, who has constructed a lucrative career testifying to the accuracy of his pack of bloodhounds, colorfully tagged with monikers like Columbo, James Bond and Clue. In testimony for prosecutors, Pikett has claimed that his dogs are almost never wrong in their determinations in thousands of cases.

That assertion is under fire in federal court in Houston, as three men wrongfully accused on the basis of Pikett's scent lineups are suing for damages after spending months in jail.

Cedric Johnson and Curvis Bickham were charged with capital murder after Pikett's hounds linked them to a charred gas can found at the scene of a triple killing. Johnson spent 16 months in jail and Bickham eight before all charges were dropped. Another litigant in the federal suit, Ronald Curtis, was incarcerated after the dogs implicated him in a string of cell phone store burglaries. He spent eight months in the slammer before the real thief was arrested.

As a report issued by the Innocence Project of Texas documents, the practice of using of dogs for scent lineups is unreliable and amounts to “junk science.”

And:

If the Texas Forensic Science Commission ever finishes up its delayed investigation of arson findings in the case of executed convict Cameron Todd Willingham, members should start sniffing up the trail of scent lineups.

The Innocence Project of Texas report is available in Adobe .pdf format.

Courthouse News Service distributes, "Cops' 'Scent Lineup' Called Junk Science," by Cameron Langford.

Three men say Houston police and Fort Bend County sheriff's officers used dogs in a "junk science" lineup technique to prosecute them for crimes they did not commit - including capital murder. Fort Bend County Deputy Sheriff Keith Pikett invented the technique in the 1990s, using bloodhounds to "match" crime scene evidence to suspects, according to the federal complaint. 

"Defendant Pikett never tested the dog scent lineups' accuracy, nor did he establish a set of standards under which to conduct the lineups," the plaintiffs say. "Instead, defendant Pikett repeatedly lied under oath about his qualifications, his training and the supposed infallibility of his dog identifications."

Plaintiffs Ronald Curtis, Cedric Johnson and Curvis Bickham say Pikett used the unreliable "dog scent lineup" techniques in thousands of criminal investigations. They say Houston police officers helped Pikett concoct the fraudulent evidence used against them.

Pikett's techniques were exposed as fraudulent in 2006 when his dogs implicated an innocent man in a murder in which the true perpetrator later confessed, the plaintiffs say.

Johnson and Bickham say they were wrongfully accused of capital murder when Houston police swabbed their faces with gauze and gave it to Pikett, whose dogs "confirmed" their scent on evidence from the crime scene.

Curtis says he was wrongfully convicted of robbing stores by Pikett's dog scent lineups, and he spent 3 months in jail before the charges were dismissed.

Earlier coverage begins with this post.

An Update on Scent Lineups

The Court of Criminal Appeals will be looking at one of the cases involved in scent lineups, that of Richard Lynn Winfrey from San Jacinto County.  His petition for discretionary review was granted by the Court today.  The appellant's brief is due December 4th.

Today's New York Times article is here.

'Scent Lineup'

"Picked From a Lineup, on a Whiff of Evidence," is the title of John Schwartz' report in today's New York Times.  Here's an extended excerpt:

A dog’s sniff helped put Curvis Bickham in jail for eight months. Now that the case against him has been dropped, he wants to tell the world that the investigative technique that justified his arrest smells to high heaven.

The police told Mr. Bickham they had tied him to a triple homicide through a dog-scent lineup, in which dogs choose a suspect’s smell out of a group. The dogs are exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

Dogs’ noses have long proved useful to track people, and the police rely on them to detect drugs and explosives, and to find the bodies of victims of crime and disaster. A 2004 report by the F.B.I. states that use of scent dogs, properly conducted, “has become a proven tool that can establish a connection to the crime.”

Scent lineups, however, are different. Critics say that the possibilities of cross-contamination of scent are great, and that the procedures are rarely well controlled. Nonetheless, although some courts have rejected evidence from them, the technique has been used in many states, including Alaska, Florida, New York and Texas, said Lawrence J. Myers, an associate professor of animal behavior at the Auburn University College of Veterinary Medicine.

In particular, the methods of the dog handler in Mr. Bickham’s case, and in a half-dozen others that are the basis of lawsuits, have come under fierce attack.

The handler, Deputy Keith A. Pikett of the Fort Bend County, Tex., Sheriff’s Department, is “a charlatan,” said Rex Easley, a lawyer in Victoria, Tex., who represents a man falsely accused by the police of murdering a neighbor. Deputy Pikett, the lawyer said, “devised an unreliable dog trick to justify local police agencies’ suspicions” for producing search warrants and arrests.

Deputy Pikett, who declined to be interviewed, works in the town of Richmond, southwest of Houston, but he has served as a busy consultant to law enforcement agencies around the state, using his home-trained bloodhounds — he has given them names that include Columbo, Quincy and Clue — to sniff out crime. A native of Buffalo, N.Y., he has by his own estimate in court testimony performed thousands of scent lineups since the 1990s. His lawyer said the techniques were effective.

Thomas Lintner, the chief of the F.B.I. laboratory’s evidence response team unit, said the agency used scents only to follow a trail to a suspect or to a place associated with him, and not to identify one person out of several. The 2004 F.B.I. report warned that dog scent work “should not be used as primary evidence,” but only to corroborate other evidence.

In several of the cases that were based on Deputy Pikett’s dogs, however, the scent lineups appear to have provided the primary evidence, even when contradictory evidence was readily available. Mr. Bickham spent eight months in jail after being identified in a scent lineup by Deputy Pikett’s dogs, until another man confessed to the killings. In an interview, Mr. Bickham scoffed at the accusation that he had taken part in three murders, noting that he has been hobbled by bone spurs and diabetes and is partially blind.

Ronald Curtis, another Houston man jailed on the basis of Deputy Pikett’s dogs, was released from jail nine months after being accused of a string of burglaries. Store videos showed that the burglar did not resemble him. “Nobody was listening,” Mr. Curtis said.

Both he and Mr. Bickham are filing civil lawsuits over their treatment in federal court on Wednesday.

The first person to file such a suit, in January, was Michael Buchanek, a retired captain with the Victoria County, Tex., Sheriff’s Department and a client of Mr. Easley. After Deputy Pikett’s dogs identified him, Mr. Buchanek said the police “just kept telling me, ‘the dogs don’t lie — we know you did it.’ ” After months of uncertainty, DNA evidence implicated another man who later confessed to the crime.

And:

Mr. Easley shared his findings with colleagues at the Innocence Project of Texas, a legal defense organization, which released a report last month that excoriated dog scent lineups as a “junk science injustice.” Jeff Blackburn, the chief counsel for the group, said Deputy Pickett merely gave the police the match they had hoped for.

Earlier coverage of the Deputy Pikett and his dogs begins with this post.

An Update on Anthony Graves

Even in the midst of all that surrounds the case of Todd Willingham, there are other Texas cases highlighting the failures of Texas' criminal justice system.

Jordan Smith reports, "'Junk Science' Emerges in Graves Case," in the current issue of the Austin Chronicle, our local, independent alt-weekly.  Here's an extended excerpt:

It's been 17 years since Bobbie Joyce Davis, her daughter, and four grandchildren were murdered inside their home in Somer­ville, about 70 miles east of Austin, and the home was set on fire in an attempt to cover the crime. It's been nine years since Robert Carter, the father of one of the children killed in the crime, was executed for his admitted role in the bludgeoning murders. And it's been three years since the 5th U.S. Circuit Court of Appeals overturned the conviction of Anthony Graves, who was sentenced to death for the murders based almost entirely on the word of Carter, who had fingered him as an accomplice. But if and when Graves will finally be retried for the crime remains unclear – and as time wears on, the state's case against Graves grows weaker and increasingly more disturbing.

Graves has maintained his innocence since the 1992 murders. He was tried in 1994, with Carter testifying to Graves' involvement. What Graves and his defenders did not know at the time, however, was that Carter had repeatedly recanted that assertion – both to Texas Ranger Ray Coffman, who was investigating the crime, and to then-Burleson Coun­ty District Attorney Charles Sebesta, who was trying the case. Indeed, Carter had recanted to Sebesta the night before testifying for the state against Graves. The 5th Circuit overturned the case in 2006, ruling that Sebesta had withheld statements from Graves and had elicited false testimony from Carter.

Since then the case has slogged strangely forward. Although Carter was executed in 2000 and is thus permanently unavailable to testify during any retrial, the state, through its special prosecutor Patrick Batchelor (who worked on the conviction of Cameron Todd Willingham, whose 2004 execution is now a matter of high-profile debate as a likely example of the state having executed an innocent man), sought to have Carter's likely perjured testimony allowed into evidence during Graves' expected retrial. How the defense could be expected to cross-examine a dead man is unclear – as is an explanation of how allowing that testimony into evidence wouldn't run afoul of Graves' Sixth Amend­ment confrontation right. Nonetheless, Judge Reva Towslee-Corbett (whose father presided over Graves' first trial) has said she would allow Carter's statements into evidence.

Graves' retrial date has been pushed back several times. And now, new developments have further derailed any hope for a "speedy" trial; Katherine Scar­dino, one of Graves' attorneys, says a Feb­ru­ary 2010 trial date is now also certain to be postponed to some unknown future date.

One sticking point is figuring out who will be in charge of trying the case for the state: Citing health issues, Batchelor has now filed a motion seeking to be removed from the case. An attorney from the Texas Attorney General's Office would be a likely candidate to take over the case, but at press time, the A.G.'s office had not responded to a request for comment.

Additionally, new "evidence" that the state is seeking to use against Graves will likely cause yet another pretrial hicc

Additionally, new "evidence" that the state is seeking to use against Graves will likely cause yet another pretrial hiccup. Specifically, prosecutors this summer brought in Fort Bend County Deputy Keith Pikett to conduct a "scent lineup" – a practice of dubious scientific validity that was recently the subject of a scathing report from the Lubbock-based Innocence Project of Texas. This type of lineup, with dogs supposedly matching a scent from a crime scene to a scent collected from a suspect, is junk science, the Innocence Project charges, while questioning Pikett's techniques in conducting the dog-led lineup. The procedure has indeed been implicated in a number of wrongful arrests and convictions. According to the report, released Sept. 21, Pikett has no formal training in the practice – nor does he apparently think any is necessary. Pikett has testified in court (in a matter unrelated to Graves) that there is no need for formal training or for scientific rules or protocols when conducting such lineups, and Pikett has rejected the importance of scientific studies regarding scent identification. Nonetheless, prosecutors across the state – including with the Texas Attorney General's Office – have relied on Pikett for "expert testimony" in a number of criminal cases.

In the Graves case, Pikett's dogs apparently "hit" on two items of clothing evidence taken from the scene of the 1992 murders – linking them to Graves' scent during a lineup conducted in a parking lot. But the validity of those results is hardly credible, says Scardino. For starters, the evidence was collected from a burned-out house 17 years ago and then was part of evidence that was "lost" for years, until the state finally found it among a host of evidentiary items that had been stored in a cell in the old and unused Caldwell jail. The notion that the evidence has not been compromised and that dogs could smell Graves on two of six items presented to them by Pikett is simply ludicrous, says Scardino.

Earlier coverage of the Graves case begins with this post; more on Deputy Pikett and his dogs, here.

More on the Hounds of Fort Bend County

Rick Casey, the Houston Chronicle award-winning columnist, writes, "Dog’s nose fallible as a crime lab."

DNA has shown conclusively that people are unreliable.

Eyewitness identification is often misidentification.

Hair matches? Too often they match too many heads.

Even fingerprints are not for sure, as the FBI learned when it falsely accused a Portland lawyer of being involved in a Madrid terrorist bombing that killed 191 and injured 2,000. The FBI issued a rare apology for jailing the man for two weeks.

Now two federal lawsuits involving a Fort Bend County deputy and his dogs say that bloodhounds may be man’s best friends, but they are not infallible detectives.

Back in February, Calvin Miller, a self-employed mechanic and laborer, was called into the Yoakum Police Department for questioning. He took his attorney, Bill Caraway, with him.

According to a lawsuit on Miller’s behalf, a police officer grabbed Miller’s arm, wiped it “forcibly” with a gauze pad, and said, “That’s all I need. Y’all can go now.”

The police version is less aggressive, but it is undisputed that the purpose of the encounter was to obtain skin cells that contained Miller’s scent so that one of Fort Bend County Deputy Keith Pikett’s trusty bloodhounds could check his scent against scents found on evidence connected with two crimes.

Pikett has received a fair amount of publicity for his hounds’ successes, going back to their involvement in the Olympic bomber case in Atlanta.

According to the suit, police told Caraway that “local dope dealers” said Miller had been buying a lot of cocaine and a local woman, 66, had reported being robbed by a tall, soft-spoken black man, a description that fits Miller and quite a few other black males.

A few weeks later, a 79-year-old Yoakum woman was raped, also describing her assailant as a tall, soft-spoken black man.

Miller was jailed March 4, based partly on a “scent lineup” conducted by Pikett in which he had his bloodhound compare Miller’s scent to scents found on the rape victim’s bedcover and items recovered from the robbery.

A DNA test excluded Miller as the rapist in early April, but he wasn’t released for more than a month, four days after both victims failed to identify him in a lineup.

Earlier coverage is here.

'Scent Lineups' Stink to Critics

That's the title of a report in today's USA Today written by Kevin Johnson.  LINK

Two federal lawsuits are casting a harsh spotlight on an investigative tool long beloved by American law enforcement: a bloodhound's nose.

Lawsuits filed in Victoria, Texas, allege that Fort Bend County Sheriff's Deputy Keith Pikett and his team of hounds — James Bond, Quincy and Clue — failed controversial sniff tests known as "scent lineups."

Much like in traditional lineups, the dogs link human scents left at crime scenes to samples from suspects.

In each case, the suits allege, Pikett's dogs called attention to the wrong person. Both former suspects have been cleared.

The legal challenges are "a first for us," says Randall Morse, an assistant county attorney who is representing Pikett. He says the hounds have worked about 2,000 cases across the country, including the search for Olympic Park bomber Eric Rudolph.

And:

Defense lawyers say the technique smacks of forensic voodoo and casts further suspicion on the broader use of scent dog evidence.

"It's a fraud on so many levels," says Jeffrey Weiner, former president of the National Association of Criminal Defense Lawyers.

Since 2004, two men in Florida and one in California have been freed after DNA evidence exonerated them. They had been convicted, in part, on the use of scent evidence, according to the Innocence Project, which uses DNA to exonerate the wrongly convicted. Pikett's dogs weren't involved in those cases.

National Police Bloodhound Association spokesman Dennis Guzlas says the association urges that scent lineups be used with caution.

Wisconsin Says 'We Told You So'

The state has no death penalty, and that's the subject of the editorial, "Case against death penalty gets stronger," in today's  Oshkosh Northwestern.

Ione Cyshosz, 62, of Milwaukee was brutally murdered in 1985. She was beaten, stabbed and bitten and her body was dumped in a vacant lot behind her home. Last week the man convicted of her murder walked out of prison, a free man after serving 23 years behind bars.

Robert Lee Stinson’s murder conviction was overturned by a Milwaukee County judge in part because of evidence uncovered by the Wisconsin Innocence Project.

Stinson had steadfastly proclaimed his innocence even when a behind bars admission would have improved his chances of parole. His release is the latest headline grabbing story from around the nation of convicted killers being set free because of improved forensic science.

His release also re-enforces the wisdom of Wisconsin’s resolve not to adopt the death penalty.

The topic of adopting the death penalty in Wisconsin comes up periodically when there is a particularly heinous crime, such as Steven Avery’s murder of Teresa Halbach or when a law enforcement officer is killed in the line of duty. Voters wisely rejected an advisory death penalty referendum as recently as 2006. And as long as death penalty advocate Sen. Alan Lasee of De Pere is in the state Senate, the prospect is never off the table. He has introduced death penalty legislation at least six times during his legislative career.

But the Stinson case is a textbook example of why the death penalty should never be an option in Wisconsin. Stinson was convicted primarily by matching teeth marks left on the victim’s body with photos and models of his teeth.

And:

Wisconsin is one of 14 states without the death penalty and the science used to free Stinson should serve as the bellwether argument against any future argument in favor of it.

Final thought: The latest high profile reversal of a murder conviction is another example of the wisdom of Wisconsin not adopting the death penalty.

Coverage of a 2006 non-binding referendum on capital punishment is noted in this post.

Future Dangerousness, Race, and Ethnicity

Texas is unique in its reliance on predictions of future behavior in determining death sentences.  To be sentenced to death in Texas, the jury must find that, "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

The state usually relies on expert witnesses who testify that the defendant will be a future danger.  Sometimes these expert witnesses are psychologist.  It should first be noted that the American Psychological Association rejects the notion, and has sanctioned members who have provided such testimony.

Taking the prediction to an even greater length, clinic psychologist Walter Quijano testified in a small number of Texas cases that since minorities comprise a disproportionately large percentage of the prison population that fact alone indicates they are likely to be dangerous.

The introduction of race and ethnicity into the mix was too much even for then-Texas Attorney General John Cornyn.  In 2000, amid protests from some district attorneys, Cornyn confessed error to the U.S. Supreme Court in one of those cases involving Texas death row inmate Victor Saldano.

Another of those Quijano testified against is returning to a state district court next year for a new punishment phase hearing.  "State AG to handle resentencing phase," is the AP headline via the Houston Chronicle.

The Texas Attorney General's Office will handle the penalty phase retrial of a man whose death sentence was overturned because an expert witness testified the defendant's ethnicity was one indicator that he was a future danger to society.

At the recommendation of the attorney general, the Ector County District Attorney's Office recused itself from the case of Michael Dean Gonzales, the Odessa American reported in a story for Tuesday editions.

District Attorney Bobby Bland had asked for the AG's advice because Ector County's first assistant district attorney was once married to the lead investigator in Gonzales' case. Bland said the request was prompted by a death penalty case under scrutiny in Collin County because the prosecutor and trial judge had an affair.

"The (attorney general) recommended that my office recuse itself from that case so there wouldn't be an affect on the case if it were to be appealed," Bland said.

Gonzales was convicted of the April 21, 1994, slaying of Manuel Aguirre, 73, and his wife Merced, 65, during a break-in at their Odessa home. The laborer and gang member was sentenced to death.

He is among a half-dozen Texas death row inmates to receive a new punishment trial because of testimony by Walter Quijano, former chief psychologist for the Texas Department of Criminal Justice. In those cases, Quijano cited race and ethnicity as among several reasons a defendant was a future danger to society. A jury must decide if a convicted murderer is a future threat to impose the death sentence.

In June 2000, the U.S. Supreme Court overturned a death sentence in another Texas case because Quijano made what the high court said was improper race-based testimony during the penalty phase of a trial.

More on the issue is in the post, Eric Nenno and Texas Clemency.  This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

Despite DNA Test, a Case is Retried

That's the title of an article in today's New York Times by Shaila Dewan reporting from Macon, Mississippi.  LINK

The scene in the tiny Noxubee County jail on a rainy afternoon has become almost commonplace. Kennedy Brewer, sentenced to death and locked up for 15 years for the rape and murder of a 3-year-old, was released on the strength of a DNA test showing that the semen in the rape kit was not his.

The bail bondswoman snapped a Polaroid.

Mr. Brewer’s sister, Martha, smiled and said, “I ain’t got to mow the lawn no more.”

Back home on Highway 388, two of Mr. Brewer’s nieces sketched out a T-shirt design to read “Welcome Home Kenny.”

But Mr. Brewer is not free and clear. He is only out on bail.

In a move that appears to be novel, prosecutors intend to retry him for the  crime.

Virtually no effort has been made to find the man who raped the girl, Christine Jackson, and dumped her body in a creek in Noxubee County, one of the most rural in the state.

This is the first time prosecutors have sought a new capital murder trial after a conviction was overturned by DNA evidence, said Peter Neufeld, director of the Innocence Project, a legal aid group based in New York that has used DNA testing to exonerate the wrongly convicted since 1992. Usually such cases are simply dropped.

But prosecutors are not convinced of the innocence of Mr. Brewer, a black laborer who is mildly retarded. Forrest Allgood, the district attorney who first tried the case, said his theory then was that Mr. Brewer, who was the boyfriend of the victim’s mother, acted alone.

At the trial, Mr. Allgood argued that the couple’s bedroom was “the killing field,” although traces of human blood found there were so small that they could not be tested.

His view has changed.

“I perceive that Kennedy Brewer assisted someone else in the killing of the child,” Mr. Allgood said. “Whether he actually penetrated that child or not functionally doesn’t make any difference if he was aiding, assisting and encouraging in her death.”

Mr. Allgood declined to offer a new theory of what occurred the night Christine disappeared, saying only that Mr. Brewer was the baby sitter that evening and that there was no sign of forced entry at the house.

The defense lawyers, including Mr. Neufeld, say the girl could have been abducted by way of a broken window in the bedroom.

And:

Modern forensic tools do not appear to carry much weight in Noxubee County. Mr. Allgood said DNA reversals — there have been more than 200 nationwide — did not prove innocence.

Prosecutors often drop such cases only because witnesses are no longer available or evidence has been lost, Mr. Allgood said, but “John Q. Public thinks another innocent man got convicted who would have been killed.”

After the DNA results from the rape here came back in 2002, Mr. Brewer was moved from death row to the county jail, where he stayed for five years. Because Mr. Allgood was still seeking the death penalty, Mr. Brewer was not eligible for bail.

Mr. Allgood tested the DNA found on the girl against that of two men who visited Mr. Brewer at the house the night of Christine’s disappearance. The men were not a match.

He also ran a second test that excluded Mr. Brewer’s male relatives. But he did not run the profile against the state’s DNA database, saying in an interview that no such database exists.

That was a surprise to John M. Allen, the assistant director of the state crime laboratory, who said, “We’ve been up and running on our DNA database for years.”

Mr. Allgood also said he had notified the sheriff’s office of the DNA results. But the sheriff, Albert Walker, said he had not received any official notification and had not reopened the case.

The article notes that the Allgood recused his office, and another Mississippi district attorney is now prosecuting the case.  The death penalty is not being sought in the new trial, which is expected to begin next year.  Brewer was convicted in part of the basis of bite mark analysis, the same "science" that led to the conviction of Ray Krone in Arizona.  Krone was the 100th inmate who had been sentenced to death to be exonerated, according to the Death Penalty Information Center.  Bite mark analysis was a technique widely used prior to the availability of DNA testing.

Michael Welner

Michael Welner is a psychiatrist who often testifies as an expert witness for the prosecution in death penalty cases.  While I was in Dallas, the Washington Post profiled Welner and his depravity scale - a topic for which I have added a new category.  Thanks to a loyal reader for sending this in.  The article is, "Giving Evil the Eye."

The search for absolute evil is as old as mankind. No one has ever pinned down what it is, either as a theological concept or as a physical act. Welner would like to pin it down as a legal concept.

The Bible posits it existed in the world with Adam and Eve but not much more is apparent. The New Catholic Encyclopedia: "There is no precise articulation of the nature of evil in the creeds of the church, nor is there any explicit or definitive doctrine of evil."

Descartes wrestled with the idea of the "Evil Genius" before deciding the only thing one could be sure of was consciousness ("I think, therefore I am"). Kant had the idea of "radical evil" corrupting the categorical imperative. Buddhism is non-dualistic, but still has Mara, the god of evil and destruction. Atheists generally say that evil is not due to God giving man free will (a popular explanation of the religious crowd) but because there is no God at all.

The theology department  at Georgetown University has a required course titled "The Problem of God." It asks the eternal question: "What is evil?" Department Chairman Terrence Reynolds says the question is more interesting than the answer, primarily because there isn't one.

"It's probably true that in the modern age we don't like behavior to go completely unexplained," Reynolds says in a telephone interview. "We like to reduce profoundly aberrant behavior to some chemical or neurological agent, but evil can transcend attempts to define it. . . . I'm not afraid of mystery in life, and evil to me is part of that mystery."

Welner is going to keep trying to solve that mystery, at least for the legal system.

Upbeat, enthusiastic, 42, handsome, cleanshaven, recently married, child of Pittsburgh, son of a nurse and an engineer. He's an associate professor of psychiatry at the New York University medical school and chairman of the Forensic Panel, a 30-member organization of medical and forensic scientists that consults on court cases.

His fascination with human evil started a decade ago, when he was editing a journal called the Forensic Echo, which tracked public policy, psychiatric research and court decisions. He noticed there was a steady stream of traffic from trial to appellate courts about what constituted the worst of crimes.

This matters because prosecutors and defense attorneys spar over technical matters such as jury instructions, and aggravating and mitigating circumstances -- all of which determine the punishment for the crime in question.