Innocence Work for Lawyers Ebook

COURSE DIRECTORS:

Allison Clayton, Jessi Freud, Gary Udashen and Mike Ware

Innocence work for Lawyers August 4 - 5, 2022 • Austin, TX

Texas Criminal Defense Lawyers Project The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals.

ACTUAL INNOCENCE FOR LAWYERS SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

August 4-5, 2022 Radisson Hotel Austin, North 6121 N Interstate Highway 35, Austin, TX 78752 Allison Clayton, Jessi Freud, Gary Udashen, and Mike Ware 13.5 Ethics: 1.0

Thursday, August 4, 2022 Time

CLE

Topic

12:00 pm

Registration

1:00 pm

Opening Remarks

1:00 pm

1:45 pm

.75

1.25

3:00 pm .50

3:45 pm

1.25

5:00 pm

.75

5:45 pm

7:45 pm

Update on Legal Issues: Texas Wrongful Conviction Cases

Examination of the Allen/Mozee Cases. Moderated

By Gary Udashen.

Speaker

Gary Udashen

Gary Udashen

Russell Wilson, Patricia Cummings, & Cynthia Garza

Break

3:15 pm

6:15 pm

Daily CLE Hours: 6.0 Ethics: 1.0

Innocence Project: Recent Exonerations

Mike Ware, Allison Clayton, Jessi Freud, & Gary Udashen

Investigative Journalist Panel Discussion: The important role of investigative journalists in actual innocence cases and criminal justice reform. Moderated by Mike Ware.

Mike Ware, Keri Blakinger, Mike Hall, Maurice Possley, & Maurice Chammah

National Registry of Exonerations: How to navigate the National Registry of Exonerations with a focus on the causes of wrongful convictions & other information and data the registry has complied and analyzed.

Patricia Cummings & Maurice Possley

Adjourn 1.5

Dinner Program: Cory Session on the Tim Cole Case, Anna Vasquez to moderate the dinner program and guest speaker Johnny Pinchback.

Cory Session, Anna Vasquez, & Johnny Pinchback

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

ACTUAL INNOCENCE FOR LAWYERS SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

August 4-5, 2022 Radisson Hotel Austin, North 6121 N Interstate Highway 35, Austin, TX 78752 Allison Clayton, Jessi Freud, Gary Udashen, and Mike Ware 13.5 Ethics: 1.0

Friday, August 5, 2022 Time

CLE

Topic

Daily CLE Hours: 7.5 Ethics: 0 Speakers

8:00 am

Registration & Continental Breakfast

8:25 am

Opening Remarks

Allison Clayton

8:30 am

1.0

Litigating Junk Science

Chris Fabricant

9:30 am

1.0

Forensics in Innocence Cases: From bite marks to DNA mixtures, the role of forensic science in actual innocence cases.

Lynn Garcia

10:30 am 10:45 am

Break 1.0

11:45 am

Race in the Criminal Justice System

Eric Davis

Lunch Line

11:45 am

.75

Lunch Presentation: Thoughts on Criminal Justice in Texas

Judge Barbara Hervey

12:30 pm

1.0

Gunshot Defects in Clothing

Jamie Becker

1:30 pm 1:45 pm

3:15 pm 4:30 pm

Break 1.5

1.25

Forensic DNA Testing in Post-Conviction Cases: strategies and guidelines to maximize success with old, degraded, and limited quantity evidence

Angie Ambers

Forensic Genealogy

Colleen Fitzpatrick

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Actual Innocence for Lawyers Table of Contents

speakers

topic Thursday, August, 4, 2022

Gary Udashen Russell Wilson, Patricia Cummings, & Cynthia Garza Mike Ware, Allison Clayton, Jessi Freud, & Gary Udashen

Patricia Cummings & Maurice Possley

Update on Legal Issues: Texas Wrongful Conviction Cases Examination of the Allen/Mozee Cases.

Innocence Project: Recent Exonerations National Registry of Exonerations: How to navigate the National Registry of Exonerations with a focus on the causes of wrongful convictions & other information and data the registry has complied and analyzed Friday, August 5, 2022

Chris Fabricant Lynn Garcia Colleen Fitzpatrick

Junk Science and the American Criminal Justice System Texas Forensic Science Commission Primer Forensic Genetic Genealogy

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Update on Legal Issues: Texas Wrongful Conviction Cases

Speaker:

Gary Udashen

Board Certified in Criminal Law and Criminal Appellate Law Udashen | Anton 8150 N. Central Expressway, Ste. M1101 Dallas, TX 75206 Phone: 214.468.8100 phone Fax: 214.468.8104 gau@udashenanton.com www.udashenanton.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/2/2022

Presented by: Gary A. Udashen Udashen | Anton 8150 N. Central Expressway, Suite M1101 Dallas, Texas 75206 214-468-8100 214-468-8104 fax gau@udashenanton.com

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Free Standing Actual Innocence Claim: Ex Parte Elizondo, 947 S.W.2d 202 (1996) Applicant must show, by clear and convincing evidence, that newly discovered or newly available evidence of actual innocence unquestionably established innocence.

Newly discovered evidence is evidence that was not known to the applicant at the time of trial and could not have been known to him even with the exercise of due diligence. Brown, 205 S.W.3d 538 • Newly available evidence is evidence that may have been known to the applicant but was not available for his use based on factors beyond his control. Calderon, 309 S.W.3d 64 •

Recantation affidavit that was presented in motion for new trial was not newly discovered or available when presented again in writ application.

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Ex Parte Calderon, 309 S.W.3d 64 (2010) • Child victim’s recantation was newly available when it was unavailable to applicant at time of no contest plea • Child’s recantation was made prior to plea but was not available to applicant at the time of the plea.

• Court must examine the new evidence in light of the evidence presented at trial • To grant relief court must believe that no rational juror would have convicted in light of the newly discovered evidence.

Applies to: • DNA • New Scientific Evidence • Recantations • New Witnesses • Other New Evidence

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

Ex Parte Thompson, 153 S.W.3d 416 (2005)

Complainant, daughter of Applicant, provided affidavit and testimony stating that sexual abuse never occurred.  



Trial court found recantation credible Expert witness testimony supported the recantation

Ex Parte Elizondo, 947 S.W.2d 202 (1996)

Stepson recanted testimony that claimed Elizondo sexually abused him Father of child manipulated him and his brother into making allegations

Ex Parte Tuley, 109 S.W.3d 388 (2002) 

Recantation after guilty plea.

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Actual innocence claims are not barred by guilty plea.

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2015 – 68 out of 157 nationwide were cases where defendant pled guilty.

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Complainant’s recantation alone insufficient to prove actual innocence.

Court considers entire record in assessing actual innocence based on recantation, even if recantation itself is credible.

Newly discovered evidence supported actual innocence claim; eyewitness, who was the only witness to identify petitioner, recanted his identification of petitioner as shooter, two undisclosed police reports identified other possible suspects for the murder, an individual was identified as the source of a previously unidentified fingerprint at the crime scene, and gunshot residue expert stated that she would report petitioner’s test results as negative for gunshot residue under today’s standards.

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Defendant actually innocent of duty to register as a sex offender.

Ex Parte Harbin, 297 S.W.3d 283 (2009)

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Defendant not actually innocent of duty to register as a sex offender Ex parte Wahlgren, 2017 WL 1496966 (2017)

•

Cacy convicted of an arson murder based on false lab report that claimed there was gasoline on her uncle’s clothing.

•

Trial Court finds Cacy is actually innocent.

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State prosecuting attorney supports Cacy’s actual innocence argument.

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Court of Criminal Appeals Agrees

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   

Kristie Mayhugh Elizabeth Ramirez Cassandra Rivera Anna Vasquez Ex parte Mayhugh, 512 S.W.3d 285 (2016)

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Found actually innocent by Court of Criminal Appeals on November 23, 2016

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Two young girls testified that the four women sexually assaulted them

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One of the girls, now an adult, recants accusations

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Other girl does not recant

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Recantation supported by expert testimony

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State’s medical evidence, that one of the girls had physical signs of abuse, is recanted by doctor based on new science

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“We conclude that now, with this clear and convincing evidence establishing innocence combined with the lack of reliable forensic opinion testimony corroborating the fantastical allegations in this case, no rational juror could find any of the four Applicants guilty of any of the charges beyond a reasonable doubt.”

Court of Criminal Appeals, November 23, 2016

“It has been suggested that the term ‘actual innocence’ is inappropriate because applicants who are successful when raising a claim of actual innocence never truly prove that they did not commit the offense. But when the presumptions are reversed, the State does not have to prove that a defendant is definitively guilty. ...

Those defendants have won the right to proclaim to the citizens of Texas that they did not commit a crime. That they are innocent. That they deserve to be exonerated. These women have carried that burden. They are innocent. And they are exonerated.

This Court grants them the relief they seek.”

Court of Criminal Appeals, November 23, 2016

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Defendant found actually innocent of murder based on DNA identifying the true perpetrator.

True perpetrator confessed.

Multiple eyewitnesses erroneously identified Grant as person seen stabbing victim.

EX PARTE STEVEN CRAIG MALLET, 620 S.W.3d 797 (2021) Defendants found actually innocent of delivery of controlled substance.

Only evidence against the Mallet brothers was the testimony of disgraced Houston narcotics detective Gerald Goines.

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Defendant found actually innocent based on newly discovered evidence, including evolution of body of science of bitemark comparisons, undisclosed Brady material and postconviction DNA testing of evidence excluding defendant as contributor.

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Defendant found guilty of sexual assault of child under six.

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Two people testify that a third party said he was the person who abused the child.

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The child testimony.

•

“In an August 2017 hearing, Kelley’s legal team and a Texas Ranger said it was possible that one of three people assaulted the boy.”

Austin-American Statesman, Nov. 6, 2019

•

Kelley was one of the three people.

does

not

recant

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•

State prosecuting attorney supports finding of actual innocence by arguing, “If deference is given to the trial court’s credibility determination about (JM’s) confession, then actual innocence has been established.”

•

CCA finds actual innocence.

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Defendant convicted of manufacturing or delivering cocaine.

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CCA finds Harris actually innocent.

•

Judge Yeary argues he should instead be found “presumed innocent.”

Four Defendants Three Pled Guilty to Sexual Assault One Found Guilty of Capital Murder Insufficient evidence supported finding that habeas corpus petitioners, one of whom was convicted of capital murder and three of whom had pled guilty to sexual assault and had testified against the one who was convicted of capital murder, were entitled to relief under the actual-innocence standard, despite new DNA evidence favorable to petitioners.

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The petitioners who had pled guilty, and who claimed that they had been bullied and coerced to confess, had failed to withdraw their pleas when the promises of leniency and threats of the death penalty were no longer on the table, counsel for one of the petitioners could not recall petitioner making any claim that the authorities had forced his confession, and prosecutor testified that he had had no complaints that the pleas had been coerced.



Online solicitation of a minor statute declared unconstitutional in Ex Parte Lo, 424 S.W.3d 10 (2013)

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Writs granted under Lo are not “actual innocence” findings. Ex Parte Fournier, 473 S.W.3d 789 (2015)



Fournier actually engaged in the conduct, so no new evidence of innocence.

The term “actual innocence” only applies in circumstances where the accused did not actually commit the charged offense or any possible lesser included offense.

• Subsequent lab testing on drug case showing no drugs does not prove actual innocence.

•

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Schlup v. Delo, 513 U.S. 298 (1995) Actual innocence itself does not provide basis for relief • Actual innocence is used as a gateway to raise otherwise barred claims • Lower burden on applicant: requires preponderance of the evidence instead of the clear and convincing evidence standard on freestanding actual innocence claim •

Art. 11.07, Sec. 4(a)(2), C.C.P. allows subsequent writ when, “by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt.”

Allowed subsequent writ raising an otherwise procedurally barred ineffective assistance of counsel claim on basis that Allen proved he was actually innocent under Schlup and Art. 11.07, Sec. 4(a)(2)

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A person has been exonerated if he or she was convicted of a crime and later was either (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action.

As of June 2022 

3,172 exonerations nationwide since 1989



426 exonerations in Texas since 1989



Exoneration refers to more than just actual innocence finding

A person is entitled to compensation if: • He served in whole or in part a sentence in prison, and • He has received a full pardon on the basis of innocence for the crime for which he was sentenced, or • He has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced, or

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

He has been granted relief in a writ of habeas corpus and the state district court has issued an order dismissing the charge and the dismissal order is based on a motion to dismiss in which the state’s attorney states that no credible evidence exists which inculpates the defendant, and the state’s attorney states that he believes the defendant is innocent.

Tex. Civ. Prac. & Rem. Code §103.001 to 103.154

The amount of compensation paid to a wrongfully convicted person under this statute is $80,000.00 per year multiplied by the number of years the person served in prison in a lump sum and the same amount in an annuity for the rest of his life. Tex. Civ. Prac. & Rem. Code §103.052 and 103.053

The board will recommend the governor grant a pardon on the basis of innocence upon the receipt of: (1) a written recommendation of at least two of the current trial officials of the sentencing court, with one trial official submitting documentary evidence of actual innocence; or (2) a certified order or judgment of a court having jurisdiction accompanied by a certified copy of the findings of fact and conclusions of law where the court recommends that the Court of Criminal Appeals grant state habeas relief on the grounds of actual innocence.

Tex. Admin. Code 37 §143.2

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Inaccurate Eyewitness Identification

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False Informant Testimony

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False Confessions

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Invalid Scientific Evidence

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Ineffective Assistance of Counsel

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False Testimony From State Witnesses

Tillman v. State, 354 S.W.3d 425 (2011) The court held that expert testimony on the reliability of eyewitness identification is admissible.

“Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations-At a Glance (2011), http://ipoftexas.org/index.phd?action=at-aglance.”

Court of Criminal Appeals’ Opinion

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Photographic and Live Lineup Procedures Requires every law enforcement agency in state to adopt a written policy regarding photographic and live lineup identification procedures.

Policy must be based on •

Research on eyewitness memory

•

Best practices

•

Evidence based practices

Charles Chatman Cornelius Dupree Jerry Lee Evans Wiley Fountain Larry Fuller James Curtis Giles Donald Wayne Good Andrew Gossett Eugene Henton Raymond Jackson EK Johnnie Lindsey Thomas McGowan Steven Phillips

Johnny Pinchback David Shawn Pope Billy James Smith Keith E. Turner James Waller Patrick Waller Gregory Wallis James Curtis Williams James Lee Woodward Billy Wayne Miller Anthony Massingill Michael Phillips Ricky Wyatt

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EX PARTE PATRICK WALLER, 2008 WL 4356811 (2008) 

Two men and two women kidnapped and taken to abandoned house where the women are sexually assaulted and men pistol whipped.

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Three of the four victims identified Waller as assailant.

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Fourth victim unable to make identification.

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Waller cleared by DNA.

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True assailant identified by DNA and confessed.

Ex Parte Johnny Edward Pinchback, 2011 WL 2364318 (2011)  

  

Two teenage girls sexually assaulted.

Girls later saw a man in apartment complex parking lot they thought was the assailant.

They picked Pinchback’s picture from photo lineup.

Pinchback convicted and received 99 years in prison.

DNA proved that Pinchback was innocent.

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Suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Brady v. Maryland 373 U.S. 83 (1963)

Opening files of old convictions revealed many cases with withheld exculpatory evidence: - State failed to disclose two police reports that identified two other possible suspects.

Ex Parte Miles, 359 S.W.3d 647 (2012)

- State withheld photograph and police report which support defendant’s defense of misidentification.

Ex Parte Wyatt, 2012 WL 1647004 (2012)

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   



Stanley Mozee and Dennis Allen Writ Relief Granted January 10, 2018 (2018 WL 345057 and 2018 WL 344332) Mozee and Allen convicted largely on the basis of jailhouse informants.

Informants testify at trial that they had no deal with state, had not asked for a deal and did not expect a deal.

Letters to prosecutor found in District Attorney’s file from informants, written prior to trial, asking when the prosecutor was going to follow through with the deals he had promised them.

Giglio v. U. S., 405 U.S. 150 (1972) Agreement between state and informant for consideration of leniency to informant is Brady material Napue v. Illinois, 360 U.S. 264 (1959) Prosecutor’s failure to correct false testimony from informant that he had received no promise of consideration in return for his testimony violates due process

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Duggan v. State, 778 S.W.2d 465 (1989) No difference between express agreements and “those agreements which are merely implied, suggested, insinuated or inferred.”

Both are covered under Brady and must be revealed.

State failed to disclose that, contrary to the prosecution’s assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would “talk to the D.A. if he told the truth.”

Corroboration of Certain Testimony Required (a)

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b)

Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

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(c) Evidence of a prior offense committed by a person who gives testimony described by Subsection (a) may be admitted for the purpose of impeachment if the person received a benefit described by Article 39.14(h-1)(2) with respect to the offense, regardless of whether the person was convicted of the offense.

Tracking Use of Certain Testimony Requires attorney for the state to track the use of jailhouse snitch testimony, including any benefits offered or provided to a person in exchange for the testimony.

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Art. 2.1397, CCP. Duties of Law Enforcement Agency Filing Case (b) A law enforcement agency filing a case with the attorney representing the state shall submit to the attorney representing the state a written statement by an agency employee with knowledge of the case acknowledging that all documents, items, and information in the possession of the agency that are required to be disclosed to the defendant in the case under Article 39.14 have been disclosed to the attorney representing the state.

(c) If at any time after the case is filed with the attorney representing the state the law enforcement agency discovers or acquires any additional document, item, or information required to be disclosed to the defendant under Article 39.14, an agency employee shall promptly disclose the document, item, or information to the attorney representing the state.

•

•

•

False confessions are one of the leading causes of wrongful convictions analyzed in a recent report released by the National Registry of Exonerations The Registry reports that the primary reason for false confessions is coercion – occurring in at least 60% of the false confession cases analyzed.

According to the Registry, 75% of documented false confessions occurred in homicide cases.

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Why do innocent people confess?

Some reasons include: • • • • • • • • •

Duress Coercion Diminished Mental Capacity Mental Impairment Ignorance of the Law Fear of Violence Actual Infliction of Harm Threat of Harsh Punishment Promise of Benefit

Christopher Ochoa, Travis County Sexual Assault and Murder in Austin  After lengthy interrogation, Ochoa confessed  Another man later confessed  DNA matched the other man  

  

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Stephen Brodie, Dallas County Five year old girl abducted from her home and molested Brodie, who was deaf, was interrogated, without a sign language interpreter, for 18 hours over 8 days and confessed Fingerprint found on the window screen matched a convicted child rapist who was suspected in similar assaults Dallas County Conviction Integrity Unit agreed Brodie was innocent and conviction vacated

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Electronic Recording of Custodial Interrogations Requires audio visual or audio recording if audio visual recording is unavailable of custodial interrogation of person suspected of committing certain serious offenses.

QUESTION: HOW SHOULD COURTS RESPOND TO CHANGES IN SCIENCE UNDERLYING CONVICTIONS

Art. 11.073. Procedure Related to Certain Scientific Evidence. (a) This article applies to relevant scientific evidence that: (1) was not available to be offered by a convicted person at the convicted person’s trial; or (2) contradicts scientific evidence relied on by the state at trial:

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(b)

A court may grant relief if . . . : (A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

(B) the scientific evidence would be admissible under the Texas Rules of Evidence . . . ; and (2) the court . . . finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. (c) For purposes of a subsequent writ, a claim or issue could not have been presented in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application , as applicable, was filed.

(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since . . .

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

Ex parte Robbins, 360 S.W.3d 446 (2011)

Court concluded that Robbins “failed to prove that the new evidence unquestionably establishes his innocence.” Actual innocence claim rejected



Despite all experts agreeing that Dr. Moore’s findings and testimony were incorrect, majority refused relief because none of the experts affirmatively proved that “Tristen could not have been intentionally asphyxiated.” Majority concluded Robbins did not “have a due process right to have a jury hear Moore’s reevaluation.”



Robbins case reconsidered under Art. 11.073 and relief granted

Medical Examiner’s reconsideration of her opinion was new scientific evidence that contradicted scientific evidence relied upon by the state at trial.

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•

Relief granted under 11.073 on murder case based on change in body of scientific knowledge in field of bitemark comparisons

•

Experts opinions that human bitemarks were unique and an individual could be identified as source of bitemark discredited by new science.

•

Relief granted under 11.073 to four defendants, three who pled guilty to sexual assault, and one who was convicted of capital murder

•

Y-STR DNA testing results were exculpatory to all four defendants and constitute new scientific evidence

A showing by a mere preponderance of the evidence that an applicant would not have been convicted if exculpatory DNA results are obtained is not sufficient to warrant relief on the basis of actual innocence, but statute governing procedure on new scientific evidence (Art. 11.073) affords an avenue for relief under the preponderance standard.

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Child dies of head injury.

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Henderson says she dropped child.

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Medical Examiner testified that it was impossible for child’s brain injuries to have occurred in the way Henderson stated. Medical Examiner says child’s injuries resulted from a blow intentionally struck by Henderson.

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Henderson submits evidence that recent advances in biomechanics suggest that it is possible that child’s head injuries could have been caused by an accidental shortdistance fall. Additionally, Medical Examiner submitted an affidavit which recanted his testimony.

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Court finds new scientific evidence shows that a short distance fall could have caused the head injury.

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Court finds new scientific evidence did not establish that Henderson was actually innocent but that it did establish a due process violation.

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“. . . scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” “. . .dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.”

In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012) 65% accuracy rate not sufficient reliability for admission in evidence.



Strickland v. Washington, 466 U.S. 668 (1984), test requires Applicant to show: 1.

Counsel’s performance was deficient. Requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.

2.

The deficient performance prejudiced the defendant.

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Due process violated by state’s unknowing presentation of perjured testimony in murder prosecution.

Ex Parte Chabot, 300 S.W.3d 768 (2009)

Expert testimony that there was only one to a million chance that someone other than defendant was source of bitemark on victim’s forearm was false.

1. Evidence was false.

2. False evidence was material to conviction.

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Texas Leads the Country Legislative Actions Art. 2.023 – Tracking of Jailhouse Informants • Art. 38.075 - Corroboration of Jailhouse Informants • Art. 38.075 – Impeachment Testimony Regarding Jailhouse Informants • Art. 2.32 – Electronic Recording of Custodial Interrogations • Chapter 64 – DNA Testing • Art. 39.14 – Michael Morton Act •

Texas Leads The Country Legislative Actions • • • • • • • • • • •

Art. 38.43 – Retention of Biological Evidence Art. 38.01 – Forensic Science Commission Art. 38.20 – Photographic and Live Lineup Procedures Art. 38.141 – Corroboration of Testimony of Undercover Informant Art. 11.073 – Writs Based on New Science Tim Cole Advisory Commission on Wrongful Convictions Tim Cole Exoneration Commission Compensation For Wrongfully Imprisoned Tex. Civ. Prac. & Rem. Code 103.001, et seq.

Art. 38.075 – Corroboration of Jailhouse Informant Art. 2.32 – Recording of custodial interrogations

Texas Leads the Country Judicial Actions • Tillman v. State - expert testimony on eyewitness identification • Winfrey v. State – dog sniff lineups • Ex parte Henderson – child head injuries • Ex parte Elizondo - actual innocence as ground for writ • San Antonio Four – actual innocence finding • Ex Parte Chaney – actual innocence finding • Ex Parte Miles – actual innocence finding

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Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Examination of the Allen/Mozee Cases Speaker:

Russell Wilson II

Speaker:

Patricia Cummings

Board Certified Criminal Law Russell Wilson Law 1910 Pacific Ave #15100 Dallas, TX 75201 Phone: 469.573.0211 Fax: 972.704.2907 russell@russellwilsonaw.com https://www.russellwilsonlaw.com/

Executive Director of the National Registry of Exonerations Firm or Company name Gothic 10 pt.

405 Round Rock Ave. Round Rock, TX 78664 Phone: 512.706.5168 Fax: 512.671.9791 RegistryDirector@law.msu.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Speaker:

Cynthia Garza

Moderator:

Gary Udashen

Special Fields Bureau, Chief Conviction Integrity Unit, Chief Dallas County District Attorney's Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Phone: 214.653.3772 Cynthia.Garza@dallascounty.org

Board Certified in Criminal Law and Criminal Appellate Law Udashen | Anton 8150 N. Central Expressway, Ste. M1101 Dallas, TX 75206

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Innocence Project: Recent Exonerations Speaker:

Mike Ware

Speaker:

Allison Clayton

Professional Title Century Gothic 10 pt.

Firm or Company name Gothic 10 pt.

Address Century Gothic 10 pt.

City, State Zip 555.555.555 phone 555.555.555 fax email@emailaddress.com email www.website.com website

Professional Title Century Gothic 10 pt.

Firm or Company name Gothic 10 pt.

Address Century Gothic 10 pt.

City, State Zip 555.555.555 phone 555.555.555 fax email@emailaddress.com email www.website.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Speaker:

Jessi Freud

Speaker:

Gary Udashen

Criminal Defense Attorney Freud Law P.C. 100 N 6th St. Ste. 902 Waco, TX 76701 254.307.3384 phone 877.726.4411 fax jessi@freudlaw.com email https://www.freudlaw.com/about website

Board Certified in Criminal Law and Criminal Appellate Law Udashen | Anton 8150 N. Central Expressway, Ste. M1101 Dallas, TX 75206 Phone: 214.468.8100 phone Fax: 214.468.8104 gau@udashenanton.com www.udashenanton.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Innocence Project of Texas Recent Exonerations MICHAEL LOGAN WARE Adjunct Professor Texas A&M School of Law Executive Director of Innocence Project of Texas Law Office of Michael Logan Ware 300 Burnett, Suite 160 Fort Worth, Texas 76102 (817) 338-4100 mike@ipoftexas.org

LYDELL GRANT

Witnesses outside Club Blur, at the corner of Pacific and Crocker, saw the victim, Aaron Michael Scheerhoorn, rush to the door of the club on foot, pleading for help. He said he was being chased and had been stabbed, then Grant arrived and stabbed him several more times in front of the club-in the chest, abdomen, forearm, left side and hand, authorities said.

Scheerhoorn collapsed in the parking lot and police said Grant fled the scene, running on foot down Pacific.

Grant had chased Scheerhoorn down Crocker before they arrived at the club about 11:40 p.m Police tracked Grant down through a Crime Stoppers tip. ee

https://www.chron.com/news/houston-texas/article/Suspect-arrested-in-fatal-stabbing-outside1699301.php Houston Chronicle, December 15, 2010

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“He looked very determined, which is the reason I have no problem recognizing his face because I’ve never seen a look like that on anyone’s face” -Witness B.W. “Well when I first see it my eyes go straight to number two, but I did not make my decision at that time. I looked at every photo and then I made a conclusion that number two was the guy” -Witness C.W.

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“You don’t forget stuff like that” Witness D.W. (describing recognizing suspect’s face) “I’m certain, I was hesitant yesterday because, I mean, it’s been two years and it looks like he’s gained a little weight and he’s wearing glasses” -Witness A.V. on his previous day’s inability to id Grant

“Oh, I made sure I seen who it was” -Witness A.G. “At first I was not (able to make an identification), but then I just really thought about it and I tried to picture it back in my mind and the guy that stuck out the most was the one I picked” -Witness L. M.

“Just reaction, I don’t know (why I would focus on his face). I figured a face is pretty, you know, not many people have the same looking face. It’s pretty particular to a person. So, if I would have needed to, you know, point him out, the best feature would be the face to look at” “100% positive” (certainty of suspect identification) Witness R.R

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No conclusions will be made regarding Lydell Grant as a possible contributor to this DNA mixture

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LYDELL GRANT

• The trial court shall order the District Clerk to forward a copy of Jermarico Carter’s videotaped interview with the Houston Police Department. The District Clerk shall forward the copy within thirty days from the date of this order. Any extensions of time must be requested by the trial court and obtained from this Court. Filed: April 1, 2020

•On April 1, 2020, we directed the trial court to order the Harris County District Clerk to forward a copy of Jermarico Carter’s videotaped interview with the Houston Police Department. We believe that the record should be further developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d).

The trial court shall order the District Clerk to forward photographs, if available, of Jermarico Carter taken shortly before or after 2010, the year of the offense. The trial court shall also order the witnesses, if available, who identified Applicant in a photospread and at trial to respond in affidavits to Applicant’s actual innocence claim.

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• To be honest, the day the police officers came to me with the lineup and asked me to pick someone, I told them I didn't see the guy, but they said to look again, because he was in there and three other people had already picked him. I picked Mr. Grant, even though I did not really feel he was the guy. However, I talked to my coworkers afterward, and they were all sure Mr. Grant was the person, so I agreed. Because my co-workers believed it was Mr. Grant, I thought I was the one making a mistake.

Proposed rule and comment • https://www.texasbar.com/cdrr/participate

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Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: The National Registry of Exonerations Speaker:

Patricia Cummings

Speaker:

Maurice Possley

Executive Director of the National Registry of Exonerations Firm or Company name Gothic 10 pt.

405 Round Rock Ave. Round Rock, TX 78664 Phone: 512.706.5168 Fax: 512.671.9791 RegistryDirector@law.msu.edu

Investigative Journalist and researcher Maurice Possley Investigates Phone: 312.208.0357 mauricepossley@gmail.com http://www.mauricepossley.com/

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/2/2022

The National Registry of Exonerations

Navigating the Registry

COUNTING EXONERATIONS

Our Definition of Exoneration • In general, an exoneration occurs when a person who has been convicted of a crime is officially cleared based on new evidence of innocence.

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Defining Exoneration: Exoneration—A person has been exonerated if he or she was convicted of a crime and later was either: (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action.

The official action may be: (i) a complete pardon by a governor or other competent authority, whether or not the pardon is designated as based on innocence; (ii) an acquittal of all charges factually related to the crime for which the person was originally convicted; or (iii) a dismissal of all charges related to the crime for which the person was originally convicted, by a court or by a prosecutor with the authority to enter that dismissal. The pardon, acquittal, or dismissal must have been the result, at least in part, of evidence of innocence that either (i) was not presented at the trial at which the person was convicted; or (ii) if the person pled guilty, was not known to the defendant, the defense attorney and the court at the time the plea was entered. The evidence of innocence need not be an explicit basis for the official action that exonerated the person.

Registry Criteria:  Convicted of a crime  Officially cleared of all related charges  Based, at least in part, on new evidence of innocence  Without unexplainable physical evidence of guilt  A certificate of innocence or declaration of innocence

The Registry does not include:  defendants who take Alford Pleas,  defendants found not guilty at retrial (without new evidence), and  defendants cleared of some, but not all charges related to their original conviction.

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CODING EXONERATIONS

Possible Contributing Factors • Mistaken Witness ID • False Confession • Perjury or False Accusation • Official Misconduct • False/Misleading Forensic Evidence • Inadequate Legal Defense

Possible “Tags”

• Homicide

• Arson

• Innocence Organization

• Co-Defendant Confessed

• Jailhouse Informant

• Conviction Integrity Unit

• Misdemeanor

• Child Sex Abuse Hysteria

• No Crime

• Child Victim

• Guilty Plea

• Female Exoneree

• Posthumous Exoneration

• Federal Case

• Sex Assault • Shaken Baby Syndrome

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Official Misconduct Tags • • • • • • • • • • •

Prosecutor Misconduct Police Officer Misconduct Forensic Analyst Misconduct Child Welfare Worker Misconduct Withheld Exculpatory Evidence Misconduct That is Not Withholding Evidence Knowingly Permitting Perjury Witness Tampering/Misconduct Interrogating Co-defendant Misconduct in Interrogation Perjury by Official Prosecutor Lied in Court

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BEHIND-THE-SCENES

The Complete Data Set Our public site holds a fraction of the data that we code for every case.

For example, we have detailed codes for interrogations, false confessions, and recantations including codes that capture information on: • • • •

Violence Lying Feeding Details Recordings

• • • •

Polygraph Miranda Violation No Parent Length

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Official Misconduct Many of the public-facing codes have more detailed information behind the curtain, including official misconduct.

We work on empirical studies that often involve gathering more information and adding new coding (like on official misconduct this year).

Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement • This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019.

• Issued September 1, 2020

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Resources

Annual Reports & Infographics

Browse Cases

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Longest Incarcerations: More than 200 spent 25 or more years. Anthony Mazza of Massachusetts spent more than 47.

Pre-1989 Cases

The Groups Registry

Launched in October 2020. Existing cases are still being added.

This is our third registry. It joins our main archive and our pre-1989 archive of individual exonerations. This new registry focuses on groups of defendants tied together by a common pattern of systematic official misconduct in the investigation and prosecution of these cases that undermined confidence in the defendants' convictions.

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Texas cases…the latest • As of July 1, 2022: • 436 exonerations since 1989 (out of 3,176) Eleven were sentenced to death.

• 14 exonerations prior to 1989 (out of 439).

• Two in Groups—In 2003, 35 people received pardons for false drug convictions in Tulia, Texas. In 2013, at least 26 convictions were vacated after a Houston crime lab analyst, Jonathan Salvador, was caught dry-labbing.

Comparisons – A Thumbnail Sketch • 3,176 cases nationally

436 cases in TX – 14%

• 793 pleaded guilty – 25%

280 pleaded guilty – 64%

• 1,300 were no-crime cases – 41%

303 no-crime cases – 69%

• 641 CIU cases – 20%

202 CIU cases – 46%

• 856 Innocence Projects – 27%

48 Innocence Project – 11%

Comparisons – A Thumbnail Sketch II • 3,176 cases nationally • Murder/manslaughter 1,216 – 38% • Drug possession/sale 546 – 17% • Sex assault 350 – 11% • Child sex abuse 310 – 10% • Robbery 149 – 5% • Attempt murder/assault 183 – 6% • Total 2,754 – 87%

436 TX cases 54 – 12% 222 – 51% 43 – 10% 44 – 10% 18 – 4% 10 – 2% 391 – 90%

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Comparisons – A Thumbnail Sketch III • 3,176 cases nationally

436 Texas cases

• Black – 1,672 – 53% • White – 1,055 – 33% • Hispanic – 374 – 12% • Male – 2,896 – 91% • Female – 280 – 9%

220 – 50% 130 – 30% 78 – 18% 363 – 83% 73 – 17%

Contributing Factors 3,176 cases nationally

436 Texas cases

Mistaken witness ID – 841 – 26% False confession – 371 – 12% Perjury/false accusation – 1,962 – 62% False/misleading forensics 730 – 23% Official misconduct – 1,809 – 57% Inadequate legal defense – 825 – 26%

90 – 20% 15 – 3% 139 – 32% 179 – 41% 132 – 30% 81 – 19%

Conviction Review/Integrity Units • The Registry is aware of 95 conviction review/integrity units in the United States.

• To date, 42 of these 95 units have at least one exoneration—53 (more than half) have none. Some are still new to the table. These take time.

Some of these units have been around since 2014. There are units in Texas in Bexar, Dallas, Harris, Tarrant and Travis County.

• As of July 1, 2022, 222 of the 436 exonerations in Texas are the result of work by conviction integrity units. Bexar has 13, Dallas has 38, Harris has 148, Tarrant has 1, and Travis has 2.

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Conviction Review/Integrity Units Overall • 641 Nationally

100%

• 217 Cook (Chicago)

34%

• 148 Harris (Houston)

23%

• 38 Dallas (Dallas)

6%

• 33 Kings (Brooklyn)

5%

• 31 Wayne (Detroit)

5%

• 30 Philadelphia (Philadelphia)

5%

• Total of these units = 497

78%

Innocence Organizations • • • • • • • • • •

855 exonerations nationally 268 Illinois 54 New York 52 California 46 Texas 45 Michigan 34 Louisiana 27 Ohio 26 Pennsylvania Total 552

100% 31% 6% 6% 5% 5% 4% 3% 3% 65%

Using NRE Data to Effectuate Change • In Pleadings – “Indeed, the National Registry of Exonerations reveals that 38% of juveniles exonerated by DNA testing falsely confessed to the crimes for which they were convicted. Jeremy Jackson is one of those juveniles.”

• In Opinions – “Reeves would not be the first person to have falsely confessed to a crime. According to the National Registry of Exonerations, roughly half of individuals who have been exonerated following murder convictions involving DNA evidence in the United States since 1989, made a false confession.” Reeves v. Fayette SCI, 897 F.3d 154 (3rd Circuit July 23, 2018)(Concurring Op.).

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Using NRE Data to Effectuate Change • In Legislation – California Bill Regarding Jailhouse Informants, Illinois Bill Regarding Interrogation of Juveniles & Montana Bill Regarding Compensation • In Reports – “Police or Prosecutor Misconduct Is at Root of Half of Exoneration Cases” Government Misconduct and Convicting the Innocent; Samuel R. Gross, September 1, 2020 • In the Media -- Cited 200 times in 2021

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Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Junk Science and the American Criminal Justice System

Speaker:

Chris Fabricant

Director of Strategic Litigation Innocence Project 40 Worth Street, Ste. 701 New York, New York 10013 Phone: 212.364.5997 cfabricant@innocenceproject.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/2/2022

LITIGATING FORENSIC SCIENCE IN POST CONVICTION PROGRESS & EVOLVING STRATEGIES FROM THE 2012 FBI HAIR AUDIT TO THE 2016 PCAST REPORT TO THE LASTEST FROM THE TXFSC M. CHRIS FABRICANT DIRECTOR, STRATEGIC LITIGATION

First you need to eat your broccoli

Book Up!

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Must Reads 🞑

The President’s Council of Advisors on Science and Technology (PCAST) Forensic Science in Criminal Courts

🞑

The National Research Counsel, Strengthening Forensic Science in the United States: A Path Forward ("NAS Report”).

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Modern Scientific Evidence: The Law and Science of Expert Testimony by Faigman et al.

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Reference Manual on Scientific Evidence, Third Ed., Federal Judicial Center, National Research Council (the judge’s manual)

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Daubert v. Merrell Dow Pharmaceuticals (see Scientific Literacy Project)

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+ Junk Science and the American Criminal Justice System!

Book Up on the Experts ◻ Credibility 🞑 Google the experts! Search PACER re Lawsuits. 🞑 Is there something trial atty should have found (or the State should’ve turned over)? ◻ Proficiency Testing: Straight A’s are not acceptable! “Inconclusives” are WRONG ANSWERS ◻ Qualifications: Mail Order Board Certification? ◻ Scope of Expertise: Jack of all Forensics”?

Be Skeptical!

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Progress in Forensics (Slow, incremental, and insufficient but useful….)

Overdue Recognition of the Discredited and Unreliable Forensics and the Duty to Correct ⮚

Courts

Major decisions in hair microscopy, bite mark, arson, handwriting and Shaken Baby Syndrome (SBS) cases ⮚ Recognition of cognitive bias ⮚ “Individualization” & “zero error” rates rejected ⮚

⮚

Prosecutors ⮚

⮚

Defense Attorneys are on Notice ⮚

⮚

CIUs are investigating convictions resting on bite mark, hair comparison, arson and other discredited techniques

IAC findings re obligation to challenge unreliable science – including “as applied” challenges - and consult with experts

Experts ⮚ ⮚

Participating in retrospective case reviews Scaling back scientifically unsupportable conclusions

Significant Legislative/Quasi-Legislative Developments Useful for Post-Conviction Challenges ◻

FBI/DOJ Hair Comparison Audit

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Establishment of Organization of Scientific Area Committees (OSAC)

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Modification of FRE 702 (forthcoming)

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Passage of Discredited Science Habeas Statutes in TX, CA, CT & MI

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Publication of the PCAST Report (and of course the 2009 NAS Report)

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Texas Forensic Science Commission

Ban on bite mark evidence + audit of all TX convictions Review of hair comparison + DNA mixture interpretation cases Blood stain pattern analysis 🞑 Firearms and toolmarks (COMING SOON!) 🞑 🞑 🞑

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Leveraging this Progress in Postconviction Litigation Identifying & Generating Newly Discovered Evidence

“Newly Discovered” or “Newly Available” Evidence (1) the defendant could not, with reasonable diligence, have discovered the evidence at the time of trial; or previously known but was not available to use for some reason outside of his control (2) the evidence is material to the issue and not merely cumulative, impeaching, or contradictory; and (3) so material that it would probably produce a different verdict .

NOTE on Actual Innocence based NDE: When asserting such a claim, an applicant must prove by clear and convincing evidence that no reasonable juror would have convicted him based on the newly discovered evidence. Id. at 210. This is a Herculean burden.

The “Junk Science Writ” TEX. CODE CRIM. PROC. art. 11.073.

(1) Relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence l; (2) The scientific evidence would be admissible; and (3) had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.

“Contradicts” the State’s Expert: “The body of scientific knowledge underlying the field of bitemark comparisons has evolved since his trial in a way that contradicts the scientific evidence relied on by the State at trial. ” Ex parte Chaney, 563 S.W.3d 239, 260 (Tex. Crim. App. 2018)

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Ex parte Chaney an Example of Ev Used to Establish “change in science” To support "change in the body of the science" arguments, Chaney cites (1) excerpts from the 2009 NAS Report (2) an affidavit from Drs. Mary Bush, DDS, and Peter Bush; (3) an affidavit from Hales, who testified at trial; (4) a supplemental affidavit from Hales; (5) an odontology report written by Dr. Alastair Pretty; (6) a supplemental odontology report written by Pretty; (7) an affidavit from Pretty, (8) an affidavit from Drs. Cynthia Brzozowski, James Wood, and Anthony Cardoza (9) a supplemental affidavit from Brzozowski, et al.; (10) an affidavit of Dr. Michael Baden, M.D.; and (11) an amicus curiae brief filed by 38 "scientists, statisticians, and lawand-science scholars and practitioners. "

TXFS (quietly) Makes an Appearance “Although we note that, according to Pretty, after examining the current state of bitemark comparisons, the Texas Forensic Science Commission recommended that "bite mark analysis no longer be admissible in Texas unless and until certain foundational research is done."

Ex parte Chaney, 563 S.W.3d 239, 258 n.36 (Tex. Crim. App. 2018)(citing one of expert affidavits)

PCAST to Establish Relevance of NonForensic Expert Affidavit/Testimony ◻

“[T]he relevant scientific community for assessing the reliability of featurecomparison sciences includes metrologists (including statisticians) as well other physical and life scientists …. Importantly, the community is not limited to forensic scientists who practice the specific method” (fn. 90)

◻

“feature-comparison methods belong squarely to the discipline of metrology….” (P. 44)

◻

NOTE: Should Include Cognitive Bias Expert

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Due Diligence:

When Should Client Have Been Aware Science has been Discredited? ◻ ◻ ◻ ◻ ◻ ◻

When was critique first available?

Was critique accepted by the community/courts?

When did the expert witness recant?

Was there media coverage, e.g., FBI hair audit?

Pragmatic arguments, e.g., prison libraries When was client represented by counsel?

Due Diligence on 11.073 Claim Courts consider whether "the field of science, a testifying expert's scientific knowledge, or a scientific method on which the relevant scientific evidence is based" has changed since trial. 11.073(d).

"Scientific knowledge" includes a change in the body of science (e.g., the field has been discredited or evolved) and when an expert's opinion changes due to a change in their scientific knowledge (e.g., an expert who, upon further study and acquisition of additional scientific knowledge, would have given a different opinion at trial)

Three Related Categories of NDE in Pattern Ev Cases 1) Forensic Discipline Entirely Discredited: 🞑

Arson, hair comparison, bite marks, SBS, CBLA, Blood Spatter, etc.

2) Conclusions Proffered to Jury were Scientifically Invalid 🞑 🞑 🞑 🞑

Individualization & some probabilistic claims Zero Error Rates 100 % certainty/Reasonable Scientific Certainty Conclusion based on false premise, e.g., distorted photograph

3) Conclusion Simply Wrong, i.e., Not a “Match” 🞑 🞑

Reanalysis Necessary Argue Conclusion Likely Product of Cognitive Bias (more later)

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Developing Ev to Get Back into Court on a Discredited Science Argument ◻

Trial Expert Recantation - basis of recant informs legal theory

◻

Reanalysis by New Expert - dicey proposition in TX (IAC?)

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Bare Discredited Science Argument - 11.073

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Joining Claim with Alternative Forms of NDE (preferable)

◻

Strategies are (of course) not mutually exclusive

◻

Warning: Simply citing PCAST as “Contradicting” Ev in 11.073 or as NDE is a doomed strategy

Eliciting Expert Witness Recantations: Sources of Leverage Facts Developed in Your Case?

◻ Evidence of Innocence ◻ Better quality exemplars/photos, etc., i.e., was the conclusion based on false premise (probably not an 11.073 argument) ◻ Chaney court rejected reanalysis by shoeprint expert as NDE

Expert Witness’s Professional Organizations

◻OSAC: change in guidelines & research needs ◻AFTE/ABFO other professional orgs changing standards

Waiver of any Potential Civil Liability

Eliciting Expert Witness Recantation: Additional Sources of Leverage Duty to Correct 🞑

ABA Model Rules 3.8 (g) and (h) (implicates trial atty’s duty to act)

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FBI/DOJ Hair Audit

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ASCL-LAB Notice re ethical obligation to act

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NCFS Views Doc. Re Code of Professional Responsibility

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Int’l Assoc. Arson Investigators endorsement of “multidisciplinary science review panels” to review and correct past arson cases

NAS/PCAST/FRE 702/TXFSC for Admissions Re: 🞑

Individualization & Probabilistic Claims

🞑

Error rates/proficiency testing limitations

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Old Timers Rethinking Prior Testimony in Light of Contemporary Scientific Consensus Crystal Weimer

◻

🞑

🞑

◻

Alfred Swinton 🞑

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Dr. Gus Karazulas testified that NAS Report changed his understanding of bite marks; it is “junk science” New trial from the bench

Dr. Karazulas signed an affidavit recanting every word of his testimony

Joe Bryan (lost, because TX?) 🞑

80-year-old Robert Thorman signed an affidavit re blood spatter: “my conclusions were wrong!”

Judicial Recognition of New Scientific Consensus (Even in the Absence of Recantation/Change of Standards/Guidelines)

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Shaken Baby Syndrome

◻ ◻

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Toolmarks – Individualization rejected/compelled admission of error rates

🞑

◻

People v. Bailey, 144 A.D.3d 1562 (App. Div. 2016) (NDE); State v. Edmunds, 308 Wis. 2d 374, 392 (Wis. Ct. App. 2008)

United States v. Tibbs, 2019 WL 4359486, at *5 (D.C. Sup. Ct. Sept. 5, 2019) (“[T]he case law in this area follows a pattern in which holdings supported by limited analysis are nonetheless subsequently deferred to by one court after another …. On closer examination, however, these precedents ultimately stand on a fairly flimsy foundation.”)

NOTE: HANDHELD TOOLS CANNOT BE CONFLATED WITH BALLISTICS!! 🞑

Sexton v. State, 93 S.W.3d 96 (Tex. Crim. App. 2002)

Scientific Community’s Unanimity on Exaggerated Conclusions & Certainty ◻

NAS: “With the exception of nuclear DNA analysis...no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

◻

PCAST: Zero error rates – “scientifically indefensible” (p. 29); Individualization – “not justified by the science” (p. 30; p. 54. fn.

125); Reasonable Degree of Scientific Certainty – has no accepted meaning in science (p. 30); Training/experience: Training inadequate; experience is “even weaker”

◻

NOTE: one of few areas courts, particularly federal courts, are in agreement with the scientists.

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Dr. Tom David: A Cautionary Tale in Recantation ◻

ABFO changed guidelines

◻

Dr. David provided affidavit “amending” individualization conclusion

◻

Admitted could not/would not testifying as he did at trial

◻

Then he read our briefing…

Materiality (Or, sadly, bad facts trump bad science…)

Facts of the Case Prosecutor’s opening and closing statement Quantum of other evidence Interviews with former jurors Appellate opinions relying on discredited evidence Viable alternative defenses abandoned?

Jury deliberations

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Case Law & Scholarship, e.g., “CSI Effect” “[I]n evaluating newly discovered evidence, a trial court also may consider if or how that evidence would have affected the trial as a whole, including whether it would have influenced the defendant’s trial strategy” State v.

Krause, 2015 WL 7301820 (Ariz. Ct. App. 2015) Daubert, 509 U.S. at 595 (“‘Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.’”)

Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L. J. 1050, 1068 (2006) (“There is widespread evidence indicating that people already overestimate the probative value of scientific evidence.”)

PCAST on Materiality “testimony based on forensic feature-comparison methods poses unique dangers of misleading jurors for two reasons: 1) The vast majority of jurors have no independent ability to interpret the probative value of results based on the detection, comparison, and frequency of scientific evidence 2) The potential prejudicial impact is unusually high, because jurors are likely to overestimate the probative value of a “match”.

Cites to Koehler article ‘Intuitive error rate’ noting mock jurors believed 1 in 5.5 million for latents, 1 in 1 million for BMs!!! (fn. 99)

Using Cognitive Bias Research Where there is subjectivity there is bias.

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Cognitive Bias to Further Demonstrate Unreliability of Trial Expert’s Conclusions 1) Establish subjectivity of forensic technique 1) Develop record of “domain irrelevant”, Biasing (e.g.

Brady) information 🞑

Michael Morton Act; Ex parte Temple , No. WR-78,545-02, 2016 WL 6903758, at *3 n.20 (Tex. Crim. App. Nov. 23, 2016) ( "[t]he Michael Morton Act created a general, ongoing discovery duty of the State to disclose before, during, or after trial any evidence tending to negate the guilt of the defendant or reduce the punishment the defendant could receive"

1) Argue cognitive bias corrupted forensic test

George Perrot: Massachusetts On February 11, 2016, George Perrot walked out of prison after 30 years The court made unprecedented observations concerning the likely role cognitive bias played in the hair expert’s conclusions at trial.

To that end, it found that the evidence established that the prosecutor had great personal enmity for Mr. Perrot, which was communicated to the expert, causing him to “[u]nconsciously … depart[] from his role as neutral expert and slip[] into the role of a partisan for the government.”

Preserving & Constitutionalizing Argument False/Misleading Evidence Fundamental Fairness Ineffective Assistance of Counsel Brady

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Due Process/Fundamental Fairness in Discredited Science Cases Ege v. Yukins, 485 F.3d 364 (6th Cir. 2007) (admission of foundation-free expert testimony violated due process) Han Tak Lee v. Glunt, 667 F. 3d 397 (3d Cir. 2012) (fundamentally unreliable).

State v. Bridges, 2015 WL 12670468 (N.C. Super.)(admission of testimony which “exceeded the limits of the science and overstated the significance of the hair analysis to the jury” violated due process) (consent order) Ex parte Graf, 2013 WL 1232197, *1 (Tex.Crim.App. March 27, 2013)(unpublished)(arson testimony violated due process).

Armstead v. State, 342 Md. 38, 84, 673 A.2d 221, 244 (1996) (recognizing that part of the due process guarantee is that “an individual not suffer punitive action as a result of an inaccurate scientific procedure”

False Evidence in Texas Presentation of false/misleading/ unreliable scientific evidence violates due process.

DP is violated when a conviction is obtained using false evidence, irrespective of whether the false evidence was knowingly or unknowingly used against the defendant. Ex parte Weinstein , 421 S.W.3d 656 (Tex. Crim.

App. 2014).

■

PCAST on False/Misleading Ev ◻

Misleading Testimony re Error Rates 🞑

🞑

🞑

◻

“Closed set” proficiency tests show dramatically lower false + rates than those for the open design Proficiency tests that include “inconclusive” decisions, which overstate false + rates Zero error rates/100% certainty, etc.

Improper use of personal experience as a substitute for statistical database 🞑

🞑

“Frequency with which a particular pattern is observed is not a matter of judgment it is an empirical matter for which only empirical evidence is relevant” (p. 55) See also FBI hair audit

12

8/2/2022

PCAST/AAAS for False/Misleading Ev ◻

Latent Fingerprints: false-positive error rate “could be as high as 1 error in 306 cases,” based on an FBI study; or a rate of “1 error in 18 cases,” based on a study by the Miami-Dade police laboratory. 🞑

◻

Toolmarks 🞑

◻

See also AAAS Forensic Science Assessments: Latent Fingerprints: terms like “match,” “identification,” “individualization,” and other synonyms should not be used by examiners

“[M]any frequently cited studies seriously underestimate the false + rate” (p. 111)(toolmarks)

Shoeprints 🞑

Literature claims1 in 16,000 that two shoes would share 1 identifying characteristics and 1 in 683 billion that they would share 3. Such claims are breathtaking—but lack scientific foundation (p. 115)

Ineffective Assistance (trial & appeal):

Probably Most Viable DP Argument in Bad Science Cases

Harrington v. Richter, 562 U.S. 86 (2011) (“[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence”) State v. Fitzpatrick, 118 So.3d 737 (Fla. 2013) (failing to investigate and obtain expert assistance).

Ceasor v. Ocweija, 655 Fed.Appx. 263 (2016)(appellate counsel ineffective for failing to move for remand for hearing on counsel’s IAC in SBS prosecution)

Ineffective Assistance for Dumb Selection of Expert Witnesses Q: And you're just here as a completely unbiased expert to educate the jury.

A: Exactly.

Q: Is that why on the break you made the statement that they, referring to [co-counsel] and myself, could go fuck ourselves?

A: Right. That's an exactly correct quote.

Q: Okay. Thank you, sir. That's very helpful.

Jimenez v. Davis, 2018 WL 4344481 (Sept. 10)(Publications included “How to Turn a Homicide Into an Accident”) Hinton v. Alabama, 134 S. Ct. 1081(2014) (“inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available [for expert witnesses]”)

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8/2/2022

NDE in Relation to Constitutional Arguments ◻

In tandem with fundamental fairness/IAC 🞑 🞑

◻

In tandem with false evidence 🞑 🞑

◻

NDE established false/misleading evidence introduced Into of evidence precluded defense from rendering EAC Response to argument that critique was available at trial If prosecution argument is technique had been undermined by time of trial, prosecution knowingly presented false ev.

In tandem with Brady claim (maybe…) 🞑 🞑

FBI Hair Audit – FOIA doc shows knew of issues since 1991 Krause, 2015 WL 7301820 – FBI agent knew of CBLA problems before testifying

Preservation: Must Preserve & Exhaust Constitutional Arguments & Make Record in State Court Constitutionalize Your NDE Argument!

Exhaustion requires you to go to state court first and give it “a full and fair opportunity to resolve federal constitutional claims.” O’Sullivan v. Boerckel, 526 U.S. 838 (1999). ◻ If you bring your claims to state court and they are denied on procedural grounds, they are deemed exhausted but procedurally defaulted. See 28 U.S.C.A. § 2254(b)(1). ◻ ◻

That all sounds great, Fabricant

But will this work?

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8/2/2022

Collaboration Opportunities Strategic Litigation at the Innocence Project Using the Courts to Address the Leading Causes of Wrongful Conviction Co-Counsel Amicus Support Consultation All Stages of Litigation ----

🞂

CFabricant@innocenceproject.org

THANK YOU

15

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Texas Forensic Science Commission

Speaker:

Lynn Garcia

General Counsel at Texas Forensic Science Commission 1700 North Congress, Suite 445 Austin, TX 78701 Phone: 512.936.0649 Fax: 512.936.7986 Lynn.garcia@fsc.texas.gov

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TEXAS FORENSIC SCIENCE COMMISSION PRIMER The Texas Forensic Science Commission (“Commission”) is a nine-member panel consisting of seven scientists and two lawyers (one defense attorney and one prosecutor) appointed by the Governor. The Commission is tasked with improving the integrity and reliability of forensic science in Texas criminal courts. The Commission is administratively attached to the Office of Court Administration, a unique state agency in the Judicial Branch that provides resources and information for the efficient administration of the Texas court system.

I. HISTORY The 79th Texas Legislature created the Commission in 2005 after an independent audit revealed serious and systemic concerns regarding the work performed by the Houston Police Department Crime Laboratory.1 Initially, the Commission’s primary responsibility was to investigate complaints alleging professional negligence or misconduct that would “substantially affect the integrity of the results” of forensic analyses performed by Texas crime laboratories. The Commission receives complaints from a variety of sources (e.g., advocacy agencies, defense attorneys, prosecutors, former crime laboratory employees). The Commission also administers a self-disclosure program through which each laboratory is required to report significant nonconformities as they are identified and evaluated by the laboratory’s quality system.

Over time, the Texas Legislature further expanded the Commission’s jurisdictional responsibilities and authority to include accreditation of crime laboratories, licensing of forensic analysts and related training initiatives.2 II. ACCREDITATION JURISDICTION The Code of Criminal Procedure prohibits forensic analysis from being admitted into evidence in a criminal action if the crime laboratory conducting the analysis was not accredited at the time the analysis was performed.3 The term “crime laboratory” includes public and private laboratories and any entity that conducts a forensic analysis subject to the Commission’s jurisdiction.4 Originally, the Legislature assigned responsibility for accreditation oversight to the Texas Department of Public Safety (“DPS”), which has its own laboratory system with locations across the state. However in June 2015, the 87th Texas Legislature transferred responsibility for accreditation of crime laboratories from DPS to the Commission.

Pursuant to its accreditation authority, the Commission recognizes certain national accrediting bodies. Laboratories accredited by a recognized accrediting body are eligible for accreditation by the Commission.

1

https://www.bromwichgroup.com/wp-content/uploads/2014/04/Final-report.pdf See e.g., Acts 2013, 83rd Leg. ch. 782 (S.B. 1238) §§ 1-4 (2013); Acts 2015, 84th Leg. ch. 1276 (S.B. 1287) §§ 17 (2015); TEX. CODE CRIM. PROC. art 38.01 § 4-a(b).

3 TEX. CODE CRIM. PROC. art. 38.35 § (d)(1).

4 TEX. CODE CRIM. PROC. art. 38.35 § (a)(1).

2

RECOGNIZED ACCREDITING BODIES ANSI National Accreditation Board (ANAB), including for the administration of the American Board of Forensic Toxicology

FORENSIC DISCIPLINES Forensic Biology/DNA Firearms/Toolmarks Seized Drugs Toxicology Materials (Trace)

Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services (SAMHSA) College of American Pathologists Forensic Drug Testing Accreditation American Association for Laboratory Accreditation (A2LA)

Toxicology for Forensic Urine Drug Testing Only Toxicology Forensic Biology/DNA Toxicology Seized Drugs Materials (Trace) Firearms/Toolmarks

The Commission requires crime laboratories to report all communications between a laboratory and its national accrediting body, including copies of each annual accreditation renewal report or audit. The Commission may also establish standards related to timely production of forensic analysis, validate or approve specific forensic methods or methodologies, and establish procedures, policies and practices to improve the quality of forensic analysis.5 Additionally, the Commission has the authority to inspect or audit laboratory records, reports, procedures, or other quality assurance matters of laboratories as necessary.6 While accreditation under ISO 17025 is an essential component of a laboratory’s overall quality system, accreditation has limitations. Indeed, there have been many examples in Texas and elsewhere of accreditation not identifying core scientific deficiencies in accredited crime laboratories. The reasons for this are too complex to explore in this primer. However, it has become abundantly clear over the 16 years the Commission has existed that one of the most critical roles the Commission plays is to supplement the work of accreditation through rigorous investigations of key questions regarding the reliability and validity of analytical work performed by laboratories subject to the Commission’s jurisdiction.

III. INVESTIGATIONS OF NEGLIGENCE AND MISCONDUCT A. Investigative Process The Commission investigates allegations of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by a crime laboratory.7 The Texas Legislature defines the term “forensic analysis” as a 5

TEX. CODE CRIM. PROC. art. 38.01 § 4-d(b-1).

TEX. CODE CRIM. PROC. art. 38.01 § 4-d (d).

7 TEX. CODE CRIM. PROC. art. 38.01 § 4(a)(3).

6

2

medical, chemical, toxicological, ballistic, or other examination or test performed on physical evidence, including DNA evidence, for the purpose of determining its connection to a criminal action.8 The statute excludes certain types of analyses from the “forensic analysis” definition, such as latent fingerprint analysis, a breath test specimen, and the portion of an autopsy conducted by a medical examiner or licensed physician.9 The statute does not define the terms “professional negligence” and “professional misconduct.” These terms are defined by the Commission in its administrative rules.10 B. Accredited vs. Unaccredited Forensic Disciplines The Commission’s investigative jurisdiction is divided between forensic disciplines required to be accredited and forensic disciplines not required to be accredited. Forensic disciplines may be exempt from accreditation requirements either by statute or administrative rule. However, regardless of whether the subject of an investigation concerns an accredited or unaccredited discipline, all investigations conclude with a written report describing the Commission’s findings.

The law distinguishes the scope of findings that may be contained in a report depending on the accreditation status of the discipline, as described in the following table: SCOPE OF REPORT: ACCREDITED DISCIPLINES  Finding regarding professional negligence or misconduct  Observations regarding the integrity and reliability of the forensic analysis conducted  Corrective actions and other follow-up work required by the laboratory  Best practices identified by the Commission during the course of the investigation  Retrospective reexamination of other forensic analyses conducted and conclusions from the reexamination  Other recommendations as determined by the Commission

SCOPE OF REPORT: UNACCREDITED DISCIPLINES  No professional negligence or misconduct assessment  Observations regarding the integrity and reliability of the forensic analysis conducted  Best practices identified by the Commission during the course of the investigation  Other recommendations as determined by the Commission

8

TEX. CODE CRIM. PROC. art. 38.35 § (a)(4).

For complete list of statutory exclusions, See TEX. CODE CRIM. PROC. art. 38.35 § (a)(4)(A)-(F) and (f).

10 “Professional misconduct” means the forensic analyst or crime laboratory, through a material act or omission, deliberately failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis.

An act or omission was deliberate if the forensic analyst or crime laboratory was aware of and consciously disregarded an accepted standard of practice required for a forensic analysis. “Professional negligence” means the forensic analyst or crime laboratory, through a material act or omission, negligently failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the negligent act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was negligent if the forensic analyst or crime laboratory should have been but was not aware of an accepted standard of practice. 37 Tex. Admin.

Code § 651.302 (7) and (8) (2020).

9

3

C. Investigative Limitations The Commission’s investigative authority contains important statutory limitations. For example, no finding by the Commission constitutes a comment upon the guilt or innocence of any individual.11 The Commission’s written reports are not admissible in civil or criminal actions.12 The Commission has no authority to subpoena documents or testimony. Any information the Commission receives during an investigation is dependent on the willingness of stakeholders to submit relevant documents and respond to questions posed. Information gathered is not subject to the standards for admission of evidence in a courtroom. For example, no individual who speaks to the Commission testifies under oath, is limited by either the Texas or Federal Rules of Evidence (e.g., against the admission of hearsay) or is subject to cross-examination under a judge’s supervision.

D. Investigative Panels The Commission’s administrative rules set forth the process by which it determines whether to accept a complaint or self-disclosure for investigation as well as the process used to conduct the investigation.13 After Commissioners vote to conduct an investigation, the Commission’s presiding officer appoints at least three members to an Investigative Panel subject to the approval of a majority of Commissioners.14 The Investigative Panel coordinates the investigation, including establishing the focus of the investigation, communicating with the entities or individuals involved in the investigation, and collecting any appropriate records.15 An investigative panel may also initiate contact with any governmental agency, individual or entity to inquire about assistance in a full investigation.16 E. Document Review and Interviews Once an investigative panel is created, the panel’s process includes: (1) relevant document review; (2) interviews with members of the laboratory as needed to assess the facts and issues raised; (3) collaboration with the laboratory’s accrediting body and any other relevant investigative agency; (4) requests for follow-up information where necessary; (5) hiring of subject matter experts where necessary; and (6) any other steps needed to meet the Commission’s statutory obligation.17

11

TEX. CODE CRIM. PROC. art. 38.01 § 4(g).

Id. at § 11.

13 See, 37 Tex. Admin. Code § 651.304-307 (2018).

14 Id. 15 Id. 16 Id. 17 Id. 12

4

F. Appeals The Commission’s administrative rules include a process for appealing final investigative findings by the Commission and, separately, investigative reports that include disciplinary actions against a license holder or applicant.18

•Initiate first panel meeting •Establish focus of investigation and objectives •Determine appropriate parties to contact for interview •Determine documentation necessary

Investigation •Interviews •Document collection and review •Subject matter experts engaged •Collaboration with national accrediting body •Draft final report

Investigative Panel

•Review and adoption of final investigative report •Appeals process •Publication of final report and distribution to stakeholders

Full Commission

IV. LICENSING JURISDICTION In addition to its crime laboratory accreditation authority, the Commission serves as the forensic analyst licensing authority for the State which:   

establishes the qualifications for a license sets fees for the issuance and renewal of a license establish the term of a forensic analyst license.19

Texas law defines the term “forensic analyst” as “a person who on behalf of a crime laboratory [accredited by the Commission] technically reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory.20 The law requires any person who, on behalf of a crime laboratory accredited by the Commission, “technically reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory” to hold a forensic analyst license. The licensing requirement became effective January 1, 2019.21 To date, the Commission has licensed over 1,250 forensic analysts and technicians working for accredited crime laboratories in and outside of Texas.

18

37 Tex. Admin. Code § 651.309 (2020); Id. at § 651.216 (2021).

Id. at art. 38.01 § 4-a(d).

20 Id. at art. 38.01 § 4-a(a)(2).

21 Id. at § 4-a(b).

19

5

As part of its licensing authority, the Commission can take disciplinary action against license holders or candidates applying for a license where the Commission finds, at the conclusion of an investigation, that a license holder or candidate has committed professional misconduct or has violated the requirements of the Commission’s enabling statute or any other administrative rule or order published by the Commission.22 Disciplinary actions may include: (1) revocation or suspension of the license; (2) refusal to renew the license; (3) reprimanding the license holder; or (4) denying the person a license.23 The Commission may also place on probation a person whose license is suspended.24 Disciplinary proceedings and the process for appealing disciplinary actions are governed by the Judicial Branch Certification Commission.25 As part of its licensing authority, the Commission adopted a Code of Professional Responsibility for Forensic Analysts and Crime Laboratory Management. 26 A copy of the Commission’s Code of Professional Responsibility is attached as Appendix A. V. TRAINING INIATIVES Commission staff participate regularly in training programs offered by organizations funded by an education and training grant administered by the Texas Court of Criminal Appeals.

Examples include programs hosted by the Center for American and International Law, the Texas Center for the Judiciary, the Texas Criminal Defense Lawyers Association and the Texas District and County Attorneys Association. The Commission also supports training needs of laboratories.

Examples include training in human factors, DNA mixture interpretation and materials (trace) analysis. The Commission also requires all licensed analysts to participate in online training regarding the Texas Code of Professional Responsibility and the legal disclosure principles set forth in article 39.14(h) of the Texas Code of Criminal Procedure (Michael Morton Act), Brady v.

Maryland and related caselaw.

VI. OSAC ACTIVITIES The Commission works in partnership with the National Institute of Standards and Technology’s Organization of Scientific Area Committees (“OSAC”) on implementation of forensic science standards in Texas laboratories. Since its official inception in 2014, the OSAC has worked to advance the mission of strengthening forensic practice by facilitating the development of science-based standards through a formal standard developing organization (SDO) process, evaluating existing forensic standards published by SDOs for placement onto the OSAC Registry of Approved Standards, and promoting the use of OSAC Registry standards throughout the forensic science community.

As of July 22, 2022, there were 99 standards on the OSAC Registry. There are several hundred standards at some point in the OSAC or related SDO process. With the list of OSAC Registry standards growing exponentially, the Commission began a process of reviewing standards 22

TEX. CODE CRIM. PROC. art. 38.01 § 4-c; 37 Tex. Admin. Code § 651.216(b) (2019).

Id. at 651.216(b)(1)-(4).

24 Id. at (c).

25 TEX. CODE CRIM. PROC. art. 38.01 § 4-c(e); 37 Tex. Admin. Code § 651.216(d) (2019).

26 See, 37 Tex. Admin. Code § 651.219 (2020).

23

6

and guidelines in collaboration with the Texas Association of Crime Laboratory Directors and making recommendations with respect to laboratory adoption in Texas. The Commission’s initial focus is on encouraging a period of voluntary adoption of standards by Texas accredited crime laboratories.

The Commission is also in the process of publishing the OSAC Registry standard-adoption status of each Texas-accredited crime laboratory. This information will provide the criminal justice community with an understanding of what level of OSAC Registry implementation to expect from laboratories in various disciplines.

Finally, the Commission will work collaboratively with the various grantee organizations of the Texas Court of Criminal Appeals to offer virtual training for the Texas legal community on the OSAC Registry, with the goal of assisting the ultimate end-user (the criminal justice system) in understanding the purpose and scope of each standard.

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8/2/2022

Texas Forensic Science Commission Innocence for Lawyers Seminar Lynn Garcia August 5, 2022

OFFICE of COURT ADMINISTRATION

TFSC: Overview • Created in 2005.

• 7 scientist, one defense attorney, one elected prosecutor • Mission: To improve the integrity and reliability of forensic science in Texas criminal courts • Administratively attached to Office of Court Administration, a state agency in the Judicial Branch (TFSC Website) OFFICE of COURT ADMINISTRATION

TFSC Legal • Enabling Statute: Article 38.01 CCP • Admissibility of Forensic Analysis Statute: Article 38.35 CCP • Administrative Rules: 37 Tex. Admin. Code Ch 651.

• • • •

A. Accreditation B. Accreditation Related Actions C. Forensic Analyst Licensing Program D. Procedure for Complaints/Self Disclosures

OFFICE of COURT ADMINISTRATION

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8/2/2022

Primary Responsibilities • Investigate Allegations of Professional Negligence or Misconduct (2005) • Accreditation Authority Over Crime Laboratories (2015) • Licensing Authority Over Forensic Analyst (2019)

OFFICE of COURT ADMINISTRATION

Analyst Misconduct Findings • 19.12: Analyst failed to run a required semi-annual performance check, lied about it, and claimed to have found the missing PC “plate” (which was never used).

Resigned License • 19.46: Analyst learning a new method “manually integrated” a peak of a control sample on a competency test. Revocation • 20.13: Evidence Technician back dated chain of custody document and evidence tape on a sex assault. Never licensed.

OFFICE of COURT ADMINISTRATION

Analyst Misconduct Findings • 20.20: Analyst lost a hair, and then adjusted bench notes, LIMS entries, and placed a known hair with questioned hairs to conceal the loss. Expired License not renewed.

• 20.48: Analyst in training cheating on test. Expired license not renewed.

• 21.17: Analyst used erasable pen in bench notes.

Erased and obscured entries to make corrections then made false statements when questioned. Expired license not renewed.

OFFICE of COURT ADMINISTRATION

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8/2/2022

Analyst Negligence Findings • 19.03: Testimony of analyst regarding DNA testing and procedures inaccurate; lack of preparation issue.

• 19.04: Testimony of DNA analyst stating the results were “inconclusive” when the data clearly supported an exclusion of the suspect; lack of preparation issue.

• 21.32: Analyst failed to obtain accreditation in canine DNA as required by law.

• Note: also, a misconduct finding because failed to give statistical weight to her findings even though she was a published author on paper addressing the need for such a statement.

OFFICE of COURT ADMINISTRATION

Smiley (Travis Co.) (21.54) • 21.54 Manual Interpretation of Complex DNA Mixture • “Inconclusive” or “Unsuitable for Comparison” because of number of contributors • Analyst did not examine data for possible exclusionary data • Recurring Issue • (See, e.g., Lydell Grant)

• Analyst need to be directed to review otherwise uninterpretable data for possible exclusionary information OFFICE of COURT ADMINISTRATION

Colone (Jefferson Co.) (22.18) • At the last quarterly meeting, the Commission moved to investigate a self-disclosure by a HFSC lab analyst who provided testimony at a capital murder trial.

(22.18) • The analyst no longer worked at the DPS lab where he worked as a forensic biology screener. He did not review any of the bench notes he made related to the analysis.

• Trial Testimony was essentially that nothing was “awry” with the evidence as received in the lab.

• “It would be in my notes” if there was a problem.

OFFICE of COURT ADMINISTRATION

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8/2/2022

Colone (Jefferson Co.) (22.18) • In 2017, Defendant convicted and sentenced to death.

• OCFW obtained the bench notes • Analyst had 47 pages of bench notes related to his screening/presumptive testing • On Page One: • Note: Despite stickers indicating to “refrigerate on arrival”, I pulled this item from a regular shelf in the vault. The packs were room temperature, the Fed Ex envelope is damp and soggy, and there is a fouls smelling water/liquid along the bottom of the container.”

OFFICE of COURT ADMINISTRATION

Colone (22.18) • The “damp and soggy” Fed Ex Envelope contained a glove and towel discarded by the suspect at the scene of the murder.

• The glove and towel DNA results were the “centerpiece” of the State’s case. (masked gunman) • Trial Court issued a 54 page “Agreed Findings of Fact and Conclusion of Law” focused on the analyst’s trial testimony and post-trial deposition.

OFFICE of COURT ADMINISTRATION

Colone (22.18) • The only items that linked the defendant to the crime scene were left in a warm, wet, foul-smelling container before DPS obtained the DNA results.

• Raises issues about degradation and carryover contamination. (cutting from defendant’s shirt also in the fed ex envelope) • Neither the State or the defense ever obtained, reviewed, or produced the bench notes related to the DPS testing in the case. They operated at trial based solely on the official DPS reports.

• The hard copy of the entire file was present during the testimony of two other laboratory employees OFFICE of COURT ADMINISTRATION

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8/2/2022

Colone (22.18) • “The DPS analyst’s testimony created a false and misleading impression about the evidence’s preservation” • “Testimony was misleading, evasive, not candid, and false” • “The analyst’s Post conviction testimony lacked credibility, was evasive, misleading, and false” OFFICE of COURT ADMINISTRATION

Colone (22.18) • Currently under investigation, but: • Lawyers should obtain and review (or have expert review) all bench notes and other data underlying the conclusions contained in the official reports • Often contains exculpatory or impeaching information • The Commission trains analysts on Brady and the MMA and our training contains multiple examples of cases where exculpatory information was in the bench notes.

• Greg Taylor example OFFICE of COURT ADMINISTRATION

Other Recent & Upcoming Reports • ExperTox • Friction Ridge Complaint • Firearms/Toolmarks Complaint

OFFICE of COURT ADMINISTRATION

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8/2/2022

Key Laws • Texas Accreditation Requirement (5 disciplines) • 37 Tex. Admin Code 651.5 (2020)

• Texas Forensic Analyst License Requirement • 37 Tex. Admin Code 651.203 (2020)

• Texas Code of Professional Responsibility for Forensic Analyst and Crime Lab Management • 37 Tex. Admin. Code 651.219 (2020)

OFFICE of COURT ADMINISTRATION

Key Documents • Laboratory Quality Incidents/Corrective Actions

HFSC DPS

• Laboratory Analyst Documentation •

performance evaluations

•

performance improvement plan

•

quality incidents involving analyst

• Internal communications regarding the case • Laboratory SOP related to the analysis • Quality Assurance SOP • Accreditation and audit reports • Proficiency testing results • Internal validation studies • Bench Notes • Electropherograms • Calibration Reports • Etc.

OFFICE of COURT ADMINISTRATION

OFFICE of COURT ADMINISTRATION

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8/2/2022

OFFICE of COURT ADMINISTRATION

OFFICE of COURT ADMINISTRATION

Contact Info TFSC: 512.936.0770

General Counsel: Lynn.Garcia@fsc.texas.gov Associate General Counsel: Leigh.Tomlin@fsc.Texas.gov Staff Attorney: Robert.Smith@fsc.texas.gov

OFFICE of COURT ADMINISTRATION

7

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 4-5, 2022 Radisson Hotel Austin North 6121 N Interstate Highway 35 Austin, TX 78752

Topic: Forensic Genetic Genealogy

Speaker:

Colleen Fitzpatrick

President and Founder of Identifinders International 18198 Aztec Ct Fountain Valley, CA 92708 Phone: 714.296.3065 colleen@identifinders.com https://identifinders.com/

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/2/2022

Forensic Genetic Genealogy Colleen Fitzpatrick, PhD President Identifinders International

Texas Criminal Defense Lawyers Association

5 August 2022 Austin, TX

The Revolution Begins 2005

Seattle PD May 2011 Y-DNA = Family Name Use genealogy!

Oh, OK I get it…

Detective

Detective Jodi Sass DNA Analyst

Me

1

8/2/2022

The Revolution Continues

2011 – 1st attempted 1991 Sarah Yarborough Federal Way, WA

2015 – 1st solved 1992-1993 Phoenix Canal Murders

2018 – 1st case solved using SNP testing 2002 Joseph Newton Chandler Identity Fraud

2018 – 2nd case solved using SNP testing 1981 Buckskin Girl

The Beginning of the OMG Era

April 25, 2018

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8/2/2022

== FGG & CODIS == What’s the difference?

Law Enforcement uses CODIS Markers

• 20 pieces of well characterized “Real Estate” • Autosomal STRs – Short Tandem Repeats • Used as a legal form of identification

Genetic Genealogy uses Autosomal SNPs

• FGG uses 1.2M SNPs • SNPs are “points” on the genome, S = Single • How many SNPs shared  Relationship estimate

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8/2/2022

CODIS versus Autosomal SNP Testing CODIS

SNP Testing

20 STRs

1.2M SNPs

Immediate relatives w/ familial searches

> Fifth cousins or more distant

Legal identification

Lead generation

Match or exclusion only

Ethnicity, geographic info, family history, and more

Don’t forget Y-STRs! Paternal Grandparents

Maternal Grandparents

Father

Mother

• Genealogy “borrowed” Y-STRs from forensics • No need to retest the evidence • Y-STR genetic genealogy => paternal ethnicity, nationality, and a possible last name • Beware of “non-paternity events”

Y-DNA & Family Name

A Match Identifinders Possible Last Proprietary Name for Search an Unidentified Software Male ~ 8,000 Genetic Genealogy DNA Studies

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8/2/2022

Online Genetic Genealogy Y-STR Database Statistics January 2022 No. Y-Profiles:

~ 250,000

No. of databases:

~ 8,000

Ethnic Database

Scottish

Surname Project

Smith

12,608 4,814

== FGG & CODIS == Better Together?

== An Epiphany == 1991 Sarah Yarborough Homicide Federal Way, WA

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8/2/2022

There are legal reasons why certain offenders are not in CODIS • Served time in prison for attempted rape < 1983 - Before CODIS was adopted in WA State • Arrested in 1993 for child molestation - Pled down to gross misdemeanor assault • Brother Edward in CODIS for 1st degree rape - WA state does not practice familial searching Patrick Leon Nicholas

CODIS Requires Investigative Leads CODIS Suspect

One to One Y Y

Y

CODIS

FGG

Y

Y

Suspect

Many to One to One

Use of Genetic Data – The Old Days

Y Y

Y

CODIS Y

Y

Suspect

Public

Law Enforcement

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8/2/2022

Use of Genetic Data – The Present

Y Y

Y

CODIS

FGG

Y

Y

Public

Law Enforcement

It’s All about Data • Who controls data availability?

Y Y

Y

- Upload to GEDmatch in voluntary

FGG

Y

Y

- GEDmatch opt in/opt out - FTDNA opt-in default • Who controls how the data is used?

- DoJ Interim Guidelines

Public & Law Enforcement

- Maryland & Montana Legislation

How Effective is FGG in Generating Investigative Leads?

Y Y

Y

Y

Y

CODIS

FGG Suspect

Suspect

Many to One to One

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8/2/2022

Informal Survey • Based on 100 cases solved with FGG • Categories - No known criminal history - Crimes pre-date CODIS < 1995

1994 - DNA Identification Act

- Non-felony offenses, traffic tickets, etc - Felonies

Keeping it simple. Collection laws vary across states and have expanded over time.

- Known to have slipped through the cracks • Based on - OSINT techniques - TLOxp & IDI Core databases - Media reports and public records

Case Study No. 1 - Suspect had no prior known offenses

Murder of Jack Fay Warwick, RI 17 May 2013

Michael Anthony Soares, Jr.

Jack Fay

Case Study No. 2 - Offenses committed before CODIS

The Murder of Mary Silvani aka Sheeps Flat Jane Doe Lake Tahoe, NV 1982

James Curry

Mary Silvani

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8/2/2022

James Curry 1946 - 1983

Case Study No. 3 – Misdemeanors only, DNA collection not required

The Murder of Gwen Miller Rapid City SD 1968

Eugene Carroll Field

Gwen Miller

Case Study No. 4 - Some People Just Slip through the Cracks Joseph Deanglo was arrested for allegedly robbing a gas station in Sacramento in 1996 - He spent several hours in the Sacramento jail, but charges were dismissed - He filed a $1M lawsuit against the gas station owner for false arrest - He received an undisclosed settlement in 1998 - Sacramento PD was not routinely collecting DNA samples at the time

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8/2/2022

How Effective is FGG in Generating Investigative Leads?

Y Y

Y

Y

Y

CODIS

FGG Suspect

Suspect

Many to One to One

Survey Results

No known criminal history

15

Crimes predate CODI < 1995

22

Non-felony offenses, traffic tickets, etc

45

Felonies

12

Known to slip through the cracks

37% only solvable by FGG

Many could have been solved thru expansion of DNA collection laws and through “lawfully owed DNA” programs

7

100

How Does FGG Support CODIS? • Identifies offenders with no criminal past • Identifies offenders who were pre-CODIS • Identifies witnesses from crime scene evidence that is not eligible for CODIS upload • Can generate SNP profiles with degraded samples • Can rule out candidates via target testing • Provide exclusions through ethno-ancestry, phenotype, etc

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== Practical Application == What can I expect?

Based on 24 cases solved out of 54 total June 2019 - April 2021 • Both Suspect and Doe cases • Many not solvable by other vendors • Cases considered “solved” even if: ‒ Wrong DNA sample sent to us by the lab ‒ DNA was the result of crime scene contamination ‒ DNA was planted to stage crime scene ‒ Mom was identified in abandoned baby case but not dad

Disclaimers Figures do not take into account that: - FTDNA upload was not available before Feb 2019 - GEDmatch opt-out default as of May 2019 - GEDmatch opt-out removed for Doe cases in Jan 2021

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> 200 days

> 100 days

Average Solve Times All Cases Identifinders

73

Omit > 300 days Omit > 200 Days n/a

59

Could be tied to size of top match, use to predict solve time, prioritize cases

Why is the solve rate ≈ 50%?

• Big issue is under-represented ethnicities & nationalities in database - Yemen - Cape Verde - El Salvador - Greece - Puerto Rico - Native American - African American

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Why is the solve rate ≈ 50%?

• Recent immigration - Poland - Ireland - Nigeria - Dominican Republic

Why is the solve rate ≈ 50%?

• Endogamy or large families among certain populations - French Canada - West Virginia - Southern Louisiana - Four Corners Area - Jewish Communities

Why is the solve rate ≈ 50%?

• Non-paternity events (NPEs) - Adoptions - Illegitimacies - Name changes

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Perp adopted > 200 days

Portuguese/Lebanese Hispanic Recent immigrants

== FGG Case Studies ==

Case Study No. 1 Buckskin Girl • Discovered 24 April 1981 • Troy, OH • Died by strangulation • Found within 36 hours

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8/2/2022

2016 – Pollen Analysis, Isotope Analysis, and New Artist Renditions

Riverside Cemetery, Troy OH

2018 - Forensic Genetic Genealogy to the Rescue!

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GEDMatch - Buckskin Girl’s Top “DNA Cousins”

GEDMatch - Buckskin Girl’s Top “DNA Cousins”

415.4 cM – What does this mean?

DNA Painter Shared cM Project Tool dnapainter.com/tools/sharedcmv4

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Half First Cousin?

X

SAM’s Grandparents 2nd

1st Wife

Wife

X SAM’s half aunt/ uncle

? X SAM’s half 1st cousin

SAM

First Cousin Once Removed?

Grandparents

Parents

Uncle/Aunt Mom

John

1st Cousin

SAM SAM

Wife 1

Wife 2

Sis 1

Sis 2

Sis 3

1st Cousin 1 x R

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Marcia Lenore Sossoman King 9 June 1959 – 22 April 1981

NAMUS Case Closed!

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Case Study No 2 Julie Hanson Homicide Naperville, IL July 7, 1972

Challenge: DNA from Panty Crotch

We hope for

Amount

DI*

1 ng

1-10

Sample 1

Sperm fraction

0.360 ng

Sample 2**

Epithelial fraction

0.115 ng

* Degradation Index ** Probably a mixture

Unmeasurable 27 Very low amount Highly degraded

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Decision: Send Sample No. 1 - Sperm Fraction • Probably all male – no mixture • Higher amount • Genealogy uses SNPs (Snips) - Very small markers - Might do better with smaller DNA fragments

Chronology November 18, 2020

Initial discussion on samples

November 23, 2020

Agreement to send sperm fraction

December 22, 2020

Naperville approves; sample shipped to lab

March 30, 2021

Lab processing complete

April 10, 2021

Two sets of genealogy data ready for GEDmatch

April 14, 2021

Kit #1 won’t upload – too degraded

April 21, 2021

We runs diagnostics => the data is worthless

April 29, 2021

Kit #2 uploads to GEDmatch successfully

April 29, 2021

Case is solved in two hours

How did we do it?

Wisconsin William H. b. 1943 WI 77.3 cM

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How did we do it?

Grace Agnes Whelpley Obit 1924-2021

How did we do it?

21

8/2/2022

Barry Lee Whelpley

Case Study No. 3 – 1961 Bibb Co John Doe • Hitchhiking near Pratt Ferry Bridge over Cahaba River, Centerville, Bibb Co., AL • Stated he was going to CA to join Marines • Car hit a guard rail, went into the river.

He broke his neck and drowned • Items found on body include: - Timex watch - US Army ring - Pack of cigs with a SC tax stamp - Picture of a girl - “RY + Love” carved on arm

• Buried by citizens of Centerville

The Power of Modern Technology Jun 2016

NCMEC sponsors exhumation Bibb Co Coroner sends three teeth and partial tibia bone to UNT. Extraction yields nothing.

Mar 2021

Identifinders sends tooth root & tibia bone to ancient DNA lab for advanced extraction. Results are spectacular.

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8/2/2022

The Power of Modern Technology Jun 2016

NCMEC sponsors exhumation Bibb Co Coroner sends three teeth and partial tibia bone to UNT. Extraction yields nothing.

Mar 2021

Identifinders sends tooth root & tibia bone to ancient DNA lab for advanced extraction. Results are spectacular.

About 1 to 2 ng is required for FGG

The Power of Modern Technology Jun 2016

NCMEC sponsors exhumation Bibb Co Coroner sends three teeth and partial tibia bone to UNT. Extraction yields nothing.

Mar 2021

Identifinders sends tooth root & tibia bone to ancient DNA lab for advanced extraction. Results are spectacular.

May 2021

DNA extract sent to lab to make genealogy data

Sep 2021

Data is ready, uploaded to GEDmatch.

Oct 2021

John Doe is identified as 15-yr-old Danny Armentrout.

The Story • Danny was the youngest of three brothers – David, Donald, and Danny.

• Abusive step-father; mother said she wished he had never been born.

• Donald joined the military in 1960; David & Danny ran away from home in FL in 1961.

• Donald has spent decades of looking for his two brothers.

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This is why we do what we do…

December 28, 2021

This is why we do what we do…

December 28, 2021

This is why we do what we do…

December 28, 2021

24

8/2/2022

This is why we do what we do…

December 28, 2021

Summary

25

8/2/2022

For further information, please contact:

info@Identifinders.com 714-296-3065 www.Identifinders.com

26

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

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