Everybody Loves A Good Inquiry!

Texas Justice Wallace Jefferson of the Texas Supreme Court wants his state to perform an inquiry into wrongful convictions.  Apparently, he’s worried about the crazy high number of overturned convictions they’ve had over the past couple decades:

Justice Wallace Jefferson of State Supreme Court called for a commission to investigate wrongful convictions, suggesting on Wednesday that faith in the legal system might be undermined given that Texas leads the nation in prisoners set free by DNA testing. Addressing the Legislature, the chief justice of Texas’ highest civil court said, “If innocent people are rotting in prison for crimes they did not commit, we certainly have not achieved justice for all.” He pointed to statistics showing that over the past 25 years, 117 Texans have been exonerated, 47 of them by DNA testing, the most nationwide.

The commission may want to start its inquiry with Ben Spencer, whose conviction was recently vacated, then reinstated by the Texas Court of Criminal Appeals:

Mr. Spencer’s 1988 conviction in the killing of Jeffrey Young was based primarily on the testimony of a jailhouse informer and three witnesses who claimed to have seen Mr. Spencer, who was then 22, and an accomplice in a dark alley. An expert hired years later by Mr. Spencer’s lawyers reviewed the crime scene and said that the witnesses could not have seen him. The informer has recanted his testimony.

Dallas County State District Judge Rick Magnis concluded that the conviction should be overturned. But three years later, in an unusual move, the Texas Court of Criminal Appeals rejected those findings, saying in part that the expert evaluation of the crime scene had not been reliable.

To get Mr. Spencer’s case back into court, his lawyers must find new evidence of his innocence.

Texas seems to have a lot of trouble trusting experts, at least when they testify for the defense.  Back in September of 2009, David Grann wrote a 17-page exegesis on the case of Cameron Todd Willingham, who was denied clemency by Governor Rick Perry’s Board of Pardons and Paroles despite the fact that a forensic expert named Dr. Gerald Hurst reviewed the evidence in Willingham’s case and essentially destroyed the entire case against him.  Dr. Hurst was able to demonstrate that much of the original case against Willingham was based on junk science.  Nonetheless, Willingham’s conviction was upheld, despite the fact that it rested largely on the junk science and—get this—his scary tattoo:

Though only the babysitter had appeared as a witness for the defense during the main trial, several family members . . . testified during the penalty phase, asking the jury to spare Willingham’s life. When Stacy was on the stand, Jackson grilled her about the “significance” of Willingham’s “very large tattoo of a skull, encircled by some kind of a serpent.”

“It’s just a tattoo,” Stacy responded.

“He just likes skulls and snakes. Is that what you’re saying?”

“No. He just had—he got a tattoo on him.”

It is difficult to see how Willingham’s tattoo was legally relevant with respect to whether he, standing as the accused, had committed a crime.  Nonetheless, the prosecution was allowed to put on an expert who connected the dots:

The prosecution cited such evidence in asserting that Willingham fit the profile of a sociopath, and brought forth two medical experts to confirm the theory. Neither had met Willingham. One of them was Tim Gregory, a psychologist with a master’s degree in marriage and family issues, who had previously gone goose hunting with Jackson, and had not published any research in the field of sociopathic behavior. His practice was devoted to family counselling.

So this expert offered testimony as to the psychological significance of Willingham’s skull tattoo.  He also offered testimony as to the significance of—get this—Willingham’s love of Led Zeppelin:

At one point, Jackson showed Gregory Exhibit No. 60—a photograph of an Iron Maiden poster that had hung in Willingham’s house—and asked the psychologist to interpret it. “This one is a picture of a skull, with a fist being punched through the skull,” Gregory said; the image displayed “violence” and “death.” Gregory looked at photographs of other music posters owned by Willingham. “There’s a hooded skull, with wings and a hatchet,” Gregory continued. “And all of these are in fire, depicting—it reminds me of something like Hell. And there’s a picture—a Led Zeppelin picture of a falling angel. . . . I see there’s an association many times with cultive-type of activities. A focus on death, dying. Many times individuals that have a lot of this type of art have interest in satanic-type activities.”

And there we have it.  The prosecution in Willingham’s case put on a witness that was allowed to testify to the jury that, in his expert opinion, Willingham was a Satan worshipper who was into “death” and “dying” because he had a Led Zeppelin poster on his wall.  If that’s true, then it seems every young man who’s ever experienced the exquisite transcendence that is Achilles Last Stand has a pact with the devil.

Willingham’s conviction was also helped along by the testimony of another expert witness: James P. Grigson, a forensic psychiatrist who came to be known as “Doctor Death” because he testified for the prosecution in capital cases so often:

The other medical expert was James P. Grigson, a forensic psychiatrist. He testified so often for the prosecution in capital-punishment cases that he had become known as Dr. Death. (A Texas appellate judge once wrote that when Grigson appeared on the stand the defendant might as well “commence writing out his last will and testament.”)

Grigson’s testimony condemned at least one man who came within 72 hours of being executed before new evidence exonerated him:

Grigson suggested that Willingham was an “extremely severe sociopath,” and that “no pill” or treatment could help him. Grigson had previously used nearly the same words in helping to secure a death sentence against Randall Dale Adams, who had been convicted of murdering a police officer, in 1977. After Adams, who had no prior criminal record, spent a dozen years on death row—and once came within seventy-two hours of being executed—new evidence emerged that absolved him, and he was released.

And what became of Grigson?

In 1995, three years after Willingham’s trial, Grigson was expelled from the American Psychiatric Association for violating ethics. The association stated that Grigson had repeatedly arrived at a “psychiatric diagnosis without first having examined the individuals in question, and for indicating, while testifying in court as an expert witness, that he could predict with 100-per-cent certainty that the individuals would engage in future violent acts.”

Fancy that.  After having one of Texas’s most popular expert witnesses expelled from his own professional community, one hopes that the appellate courts would be a little more sensitive to the issue during the appeals process.  Unfortunately, that doesn’t appear to be the case:

The Texas Court of Criminal Appeals was known for upholding convictions even when overwhelming exculpatory evidence came to light. In 1997, DNA testing proved that sperm collected from a rape victim did not match Roy Criner, who had been sentenced to ninety-nine years for the crime. Two lower courts recommended that the verdict be overturned, but the Court of Criminal Appeals upheld it, arguing that Criner might have worn a condom or might not have ejaculated. Sharon Keller, who is now the presiding judge on the court, stated in a majority opinion, “The new evidence does not establish innocence.” In 2000, George W. Bush pardoned Criner. (Keller was recently charged with judicial misconduct, for refusing to keep open past five o’clock a clerk’s office in order to allow a last-minute petition from a man who was executed later that night.)

And now it’s a bit easier to understand why Ben Spencer lost his appeal.

Wrongful convictions are much more common than people realize.  In 1996, a group of scholars demonstrated that even if you assume that conviction rates are 99.5% accurate, America still convicts roughly 10,000 innocent people every year.  Subsequent studies have confirmed this view.  A 2012 study by the Urban Institute found that the wrongful conviction rate for sexual assault crimes in the state of Virginia was between eight and fifteen percent.  A couple years prior, James R. Acker and Catherine L. Bonventre wrote in a 2010 law review article that even under “decidedly optimistic” assumptions about the accuracy of criminal convictions, we are still left with thousands of innocent people behind bars nation-wide.

The reason why Texas has a problem with wrongful convictions is the same reason that every state in the union has a problem with wrongful convictions: there are too many cases where trial courts allow prejudicial and unreliable evidence into the record because they believe it to be “in the interests of justice.”  When the Defendants appeal, they are usually denied on the basis that the trial court’s decision did not rise to an abuse of discretion.  Furthermore, far too many trial judges buy in to the fiction that juries actually pay attention to jury instructions.  Juries don’t just suddenly forget being exposed to prejudicial evidence.  Nor is it reasonable to expect that a jury will only consider a particular piece of evidence for limited purposes, i.e. “only to judge the credibility of the witness.”  Jurors are not lawyers, and they do not think in a technical fashion.  They want to get at the truth, and they don’t like being told they “can’t consider” something for a particular purpose when they think it’s relevant to determining the truth.

The reason we have rules of evidence is because we recognize that certain types of evidence can alter a normal human being’s propensity to objectively evaluate the facts before them.  Lawyers are taught to handle exhibits with care so the jury doesn’t accidentally sneak a peak of an inadmissible photograph.  Attorneys have sidebars where they whisper to the judge so the jury doesn’t hear about potentially inadmissible material.  We do all these things because we implicitly recognize that if the jury hears something they shouldn’t, that’s the ballgame.  A jury instruction isn’t going to erase this.  It won’t erase the image of a mutiliated human body, or knowledge of the Defendant’s 10 prior misdemeanor convictions, regardless of how legally relevant they may be to the proceedings.

I applaud Justice Jefferson’s desire to get to the bottom of wrongful convictions in his state.  But in order for the conversation to be productive, it has to be reflective, self-critical, and honest.  Any inquiry into wrongful convictions in Texas has to be willing to examine the threshold legal inquiries for admissibility of certain types of evidence that are regularly used to convict people who are not guilty of the crimes they’re accused of.  Cameron Todd Willingham was convicted on the basis of junk science and testimony from witnesses whose stories contradicted each other.  Despite this, a jury still convicted him of murdering his family.

I’m not going to sit here and pretend that there’s a silver bullet for this problem.  But maybe we can have a conversation about standards for expert witnesses.  Maybe we can have a conversation about what constitutes competent counsel in a death penalty case.  Maybe we can have a conversation about the realistic impact of jury instructions, and what actually constitutes grounds for a mistrial.  Maybe we can have a conversation about the cognitive limits of juries writ large, and how we can bolster procedural protections in other areas to account for the human error which inherently manifests itself when you ask 12 lay people to convict someone of a crime despite having seen or heard none of the events which allegedly comprise the offense.

No system will ever be perfect.  Utopianism is a recipe for disaster.  But it seems clear that there’s much which could be done to alleviate the problem.  Here’s to hoping Justice Jefferson finds what he’s looking for.

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