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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Category: Appeals

New Study Exposes How Texas Criminal Justice System Values Finality Over Accuracy

Chris Perri

 Photograph by  Stephanie Ezcurra

Photograph by Stephanie Ezcurra

In my post-conviction practice, I often feel like my clients don’t get a fair shake. Evidentiary hearings are rare, and the trial judge always seems to sign off on the State’s proposed findings of fact, which are critical when appealing an adverse ruling.

A recent study of Harris County death-penalty cases by Jim Marcus and the UT Capital Punishment Clinic confirms what I’ve suspected from experience: our criminal justice system values finality over accuracy. Judges are literally executing people without affording them the opportunity to fully present their claims. And the judges are pretty open about their bias, as they “rubber stamped” the State’s version of events in 95% of the cases studied. In fact, 34 out of the 40 judges adopted every proposed finding of fact presented by the State – that’s an astounding figure because it’s impossible for the State to be right 100% of the time.

In my practice, I’ve encountered the same difficulties in getting a hearing for my clients. Judges simply don’t want to re-open old cases, even though wrongful convictions are common. At a writ conference that I attended a few years ago, one judge described the general judicial attitude towards writs: they don’t like them. Why? Because writs open up old matters on their dockets, and judges don’t like seeing those cause numbers from a decade ago popping up. Also, due to the large number of pro se writs being filed by incarcerated inmates, the judges figure that if they start hearing every claim raised on every writ, they won’t be able to devote sufficient time to their trial docket.

For these reasons, it’s vital to have an experienced attorney present the writ in a manner that grabs the judge’s attention and shows the judge that the conviction is a gross injustice in light of the new evidence presented in the writ. However, even with a quality attorney, judges far too often deny evidentiary hearings and resolve the contested issues on the basis of affidavits. This deprives attorneys of the ability to cross-examine adverse witnesses, which is one of the only meaningful ways of uncovering the truth.

The new study is a groundbreaking because it provides the first concrete evidence of the widespread judicial bias against writ applicants in Texas’ criminal justice system, effectively denying them procedural due process. This issue can be litigated on appeal to the federal system when a defendant’s writ application is unfairly denied by Texas courts, and the study can serve as proof supporting a claim that Texas’ writ system violates the constitutional right to due process. 

All this said, awareness is the first step to change. This study brings to light an important injustice that we as a society must face. If our justice system values truth, then it must provide everyone an opportunity for a full and fair hearing. Liberty is too important for shortcuts.

If you do find yourself or a loved one wrongfully convicted, call Chris Perri Law at (512) 917-4378 for a free consultation to learn about your options. If you are my client, I will do everything in my power to zealously fight for your rights amidst a flawed system.

You’ve been found guilty – now what?

Chris Perri

 Photograph by  Stefan Kalweit

Photograph by Stefan Kalweit

Being convicted of a crime can have devastating consequences, including incarceration, loss of civil liberties, and difficulty finding a job. Yet the unfortunate truth is that people are wrongfully convicted all the time. That said, a guilty sentence doesn’t mean the fight is over. A major part of my practice focuses on post-conviction remedies, which can be categorized into two types: Appeals and Writs. Here, I’m going to explain the differences between these two procedures.

APPEALS:

Following a judgment of conviction, defendants have 30 days to alert the trial court that they want to appeal, so it’s important to quickly find a post-conviction criminal defense attorney. On appeal, the defense must argue that the trial judge erred in ruling on some issue in the case. For example, many defendants unsuccessfully argue to the trial judge that their vehicle was illegally searched during a traffic stop. If the trial judge rules that the search was legal, defendants can appeal this ruling to the Court of Appeals. The appeal proceeds “on the record,” meaning that no additional evidence can be presented in the appellate proceedings (the “record” is the transcript of the proceedings at the trial). A defendant cannot raise an issue for the first time on appeal, as there can be no error by the trial judge if the issue was never brought before that judge for a ruling. In other words, the error must be “preserved” in order for it to be considered on appeal.

Normally, an appeal is only available if the defendant lost at a trial or evidentiary hearing. When a defendant pleads guilty and the judge sentences that defendant according to a negotiated plea bargain, there’s nothing to appeal, even if the defendant is unhappy about the result of the case. In such a situation, a defendant should consider filing a writ, which is discussed below.

WRITS:

Sometimes, new evidence arises after a conviction becomes final. In order to present this evidence to the court, a defendant must file an application for writ of habeas corpus. In Latin, “habeas corpus” means “produce the person,”, and if the court issues the writ, it is directing the prison warden to release the defendant, usually for a new trial.

Writs are different from appeals because new evidence can be presented to prove the claim the defendant is making. For example, if the defendant believes there is new scientific evidence that proves their innocence, this evidence can be introduced through a writ. The most common claim on writs is “ineffective assistance of counsel,” meaning that the trial attorney committed some type of error or omission that deprived the defendant of their constitutional right to effective assistance of counsel and a fair trial.

The defendant carries the burden of proving any writ claim. “Innocent until proven guilty” no longer applies once a defendant is convicted, so the attorney handling the writ must use investigative tools to develop the claim. Writs are commonly used when a defendant pleads guilty based on bad advice from their lawyer, such as incorrect advice about the immigration consequences of a conviction. As explained above, an appeal is not available in those situations because the trial court never ruled adversely on an issue; however, a writ allows the defendant to develop a record regarding the trial counsel’s alleged ineffective assistance.

One of the most famous writs in Texas criminal law history involved Michael Morton, who was wrongfully convicted of murdering his wife in Williamson County and spent nearly 25 years in prison. Morton’s writ lawyers proved that the prosecutor hid evidence that a third party committed the murder, and Morton was ultimately set free.

If you or a loved one has been wrongfully convicted of a crime, contact an experienced post-conviction attorney for a consultation. Chris Perri Law has experience successfully overturning wrongful convictions and helping people get back their lives and liberties. Call Chris at (512)917-4378.

The Leading Causes of Wrongful Convictions

Chris Perri

 Photograph by  James Faulkner

Photograph by James Faulkner

No country locks up more people than the United States of America. Even worse, many of those in prison are innocent. According to The Innocence Project, an important criminal justice advocacy group, below are the four leading causes of wrongful convictions.

1. Eye Witness Misidentification is the single greatest cause of wrongful convictions. We know this because later found DNA evidence often proves a witness’s testimony to be inaccurate. Usually, eye witnesses are not trying to lie, but perhaps after viewing a lineup of suspects, they feel pressured to make a choice and then stick to it. Or sometimes, a case is very old, and it’s difficult for a witness to remember exactly how the defendant appeared and to know how they’d appear now. Still, confident eye witness testimony can be very convincing to jurors even though we all know memory is flawed.

2. Improper Forensics is another contributing factor. If a seemingly credible expert gets on the stand and spouts out questionable science, juries are likely to trust them. Further, the mishandling of scientific evidence can lead to major problems. Take for instance when mistakes at the DNA Lab in Austin put the credibility of nearly 5,000 convictions in question. Though forensic science has come a long way, it’s still administered and analyzed by people. Therefore, there is room for major error.

3. False confessions are another huge problem. It can be hard to believe, but many innocent people confess to crimes they did not commit. This is especially true with children, adolescents, and those with mental disabilities. Why do innocent people admit guilt? The reasons vary, but duress, coercion, confusion, or fear of a harsher sentence if they don’t plea are some of the most common reasons.

4. Incentivized Informants/Snitches is the fourth leading cause of wrongful convictions, and it’s easy to understand why. If a witness is paid to testify or is offered something in exchange, such as release from prison or a reduced sentence, their information is less credible. The informant is motivated to say what the prosecution wants to hear.  

Many other factors contribute to wrongful convictions, such as ineffective legal assistance, false reporting, and withheld evidence. The best way to avoid a wrongful conviction is to have a zealous criminal defense attorney by your side from the beginning. That said, if you do find yourself or a loved one wrongfully convicted, don’t lose hope. An experienced post-conviction appellate lawyer can still help. Though overturning a conviction is an uphill battle, it does happen. Chris Perri Law has successfully reversed convictions through both Appeals and Writs.

Whether you’ve just been arrested or just been sentenced, call Chris Perri Law at (512) 917-4378 to discuss your legal options.

Nearly 5,000 Austin Convictions in Limbo due to DNA Lab Errors, But Relief for the Wrongfully Imprisoned Still a Long Ways Off

Chris Perri

 Photograph by University of Michigan DNA Lab

Photograph by University of Michigan DNA Lab

The Austin American-Statesman has thoroughly covered the fallout from the Austin Police Department’s DNA lab closure, but if you haven’t been following the news closely, it’s difficult to find one article that provides the overall picture of what’s going on with the DNA issues in Travis County. Below, I’ve summarized the recent Austin DNA Lab scandal, along with providing a legal perspective on how these revelations might affect people who were convicted on the basis of false DNA evidence.

Recalculations vs. Retesting

In the summer of 2015, the FBI announced that errors in its database might have caused nationwide laboratory miscalculations of the probability that DNA found in evidentiary mixtures matched particular defendants’ known DNA profiles. Here is a blog post I wrote on the subject.

The important takeaway is that while the FBI’s database error affected cases nationwide, it only applied to DNA mixtures, which is a type of sample that contains two or more people’s DNA. If DNA mixture evidence contributed to a defendant’s conviction, then the defendant can request a recalculation of the probability that the mixture contained the defendant’s known DNA profile. Such recalculations do NOT involve any re-testing, as the lab simply uses the corrected database protocols to recalculate the probability of a match. The FBI database issues do not implicate the reliability of the actual testing conducted by the various forensic laboratories.

While government agencies argued that the recalculations would not materially affect any pending cases, these assurances became less credible when recalculations in a Galveston murder case drastically reduced the probability that the defendant was the perpetrator.

Meanwhile, the DNA retesting issue rocked the Austin Police Department (APD) last summer, and it could affect up to 5000 past convictions. The chaos began when the Texas Forensic Science Commission conducted an audit of APD’s DNA Laboratory last spring, and the Commission discovered a host of unreliable scientific practices pervading the lab. Among the highlights:

1.     Improper Stochastic Threshold: DNA labs must adopt guidelines to determine whether their interpretation of each DNA sample is scientifically reliable. The stochastic threshold is the point at which a scientist can reliably interpret DNA in a manner that’s not muddled by random effects, such as allele dropout. At APD’s lab, the scientists used a quantitative baseline (as opposed to a qualitative one) as its stochastic threshold, despite the fact that no peer-reviewed journal had ever accepted such a quant-based threshold. Without a valid stochastic threshold, the lab cannot be certain whether its testing results were merely a product of randomness, as opposed to sound scientific process. Because an improper protocol was used at the very beginning stages of all DNA testing, any of the final interpretative results are unreliable. Garbage in, garbage out.

2.     Suspect or Victim-Driven Testing: Sound scientific method requires that scientists select an unknown sample’s comparison loci (the particular segment of DNA material that will later be compared to the known DNA profiles) without knowledge of which comparison loci are clearest on the known DNA profiles. However, APD’s “scientists” were essentially cheating, as they used the known DNA profiles of suspects and victims in order to determine which loci to examine in the unknown samples. This practice created a bias towards finding a match.

3.     Unclear Use of Protocol Deviation: Lab technicians occasionally deviated from clear technical guidelines when it suited the particular needs of a case. Part of the problem stems from APD’s scientists not remaining independent from the investigative team, as the scientists often felt pressure from investigators to return favorable results. This collusion is one of the main reasons why I’ve advocated an independent lab, and the Travis County judges agreed in a proclamation last December.

4.     Contamination: In one egregious example of incompetence, the Forensic Science Commission observed carry-over contamination between the DNA on a victim’s vaginal swab and the DNA on a suspect’s penile swab, despite the fact that this suspect was later determined to be unrelated to the offense. It took re-testing by a different laboratory before this suspect was cleared for an offense he did not commit.

After the Commission’s report, there was also a revelation that a freezer housing hundreds of DNA samples broke down last spring for eight days, leaving officials uncertain whether evidentiary samples had been damaged.

Somehow, despite these systemic problems at APD’s DNA lab, it received annual accreditations for over a decade. A Statesman article revealed that the accrediting body "did not test if a lab’s scientific processes were appropriate for analyses." That seems like a pretty huge oversight in the accreditation process.

The Fallout

Since the revelation of these monumental problems at APD’s DNA Lab, it has closed down and the testing on all pending cases has been sent to independent labs. However, the problem remains of what to do about the convictions from 2005-2016 that were based on faulty DNA testing. Estimates on the number of cases that need to be reviewed range from 3,600 to 5,000.

The Travis County Commissioners and City Council have been considering options for implementing a materiality review to determine which cases need to have the DNA evidence retested, with cost estimates for this review ranging from $6 million to $14 million. However, as of today, the bureaucrats haven’t made a decision, and they appear to be leaning towards the least costly option. I’ve argued that at a minimum, this materiality review must be independent from the Travis County District Attorney’s Office, which has a conflict of interest by virtue of securing the convictions that are under review.

The critical point right now is that the essential independent materiality review of the thousands of cases hasn’t yet begun, and there’s no telling how long it will take to create an independent commission to conduct the review. Even then, a materiality review will only identify the cases in which DNA evidence was a material contributor to a conviction, and at that point, DNA re-testing will be ordered. Defendants will then have to wait for the DNA re-testing to be completed before they know whether they’re entitled to a new trial. And if they are entitled to a new trial, the defendants will have to wait even more time while an application for writ of habeas corpus circulates through the trial court and the Court of Criminal Appeals.

Given the lack of agreement in political circles about how best to conduct the review and the time lag to implement any proposed solutions, there’s no relief in sight for defendants waiting on Travis County to solve this mess.

How We Can Help

Chris Perri Law has over a decade of experience in reviewing post-conviction cases. If you or a loved one suffered from a conviction involving DNA evidence that was tested by the Austin Police Department, contact our firm to review the case. If your case was not in Austin but involved DNA mixtures, contact our firm about requesting a re-calculation of the probability that the DNA mixture matched the defendant. We advocate for our clients from the beginning stages of the process (DNA materiality review) through the final litigation of the writ of habeas corpus in order to ensure that wrongfully convicted people are set free. 

The Dirtiest Little Secret of Texas: Our Civil Commitment Law for Sex Offenders Raises Double Jeopardy Concerns

Chris Perri

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Recently, I read this article in the Fort Worth Star Telegram about Texas’ civil commitment law with respect to sex offenders and was left shocked.

While the article mainly concerns a technical change in the law regarding venue for civil commitment trials, hidden towards the end is the unveiling of Texas’ dirty little secret: Since 1998, more than 350 individuals have been civilly committed to a sex-offender treatment facility in Littlefield, Texas, following their completion of lengthy prison sentences. None have been released upon successful completion of the program, and nearly half were sent back to prison for violations of the treatment program’s rules.

For example, a defendant who is convicted of a sex offense might serve 25 years in prison. As his release date approaches, he discovers that the State of Texas wants him to remain incarcerated after the completion of his long sentence. As a result, a new “civil commitment” trial occurs in which the State seeks to prove that he “has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence.” This seems like a pretty easy burden to prove since the defendant has previously been convicted of a sex offense.

While this procedure might smack of double jeopardy, Tarrant County prosecutor Bill Vassar defends it by arguing: “During his 25 year imprisonment, [the defendant] never had sex offender treatment from a licensed professional. The jury’s verdict ensures that he will get the treatment he needs, and guarantees the citizens of Texas that he will be monitored 24 hours a day.”

This argument exposes two fundamental problems. First, any prosecutor should be ashamed of a criminal justice system that sends a sex offender to a penitentiary that fails to provide any treatment to that individual prior to release. Right there, Mr. Vassar has unwittingly indicted our entire prison system for ineptitude. Second, Mr. Vassar’s argument that the defendant “will get the treatment he needs” from the Littlefield treatment facility is disproved by the evidence that no one has ever been rehabilitated in the program’s 18 years of operation. Leave it to the government to equate success with this zero percent rehabilitation rate.

I sympathize with victims of sex offenses, and I do believe that offenders need to be punished. However, the proper forum for vindicating victims’ rights and punishing offenders is the criminal process. Once an offender has served his/her sentence, our Double Jeopardy Clause forbids further punishment for that offense. In effect, Texas’ civil commitment law allows Texas to circumvent the Constitution by imprisoning a person a second time for the crime. To continually operate such a “treatment” facility for 18 years despite its zero-percent success rate seems to be a brazen misuse of government resources. Moreover, Texans should be offended by the government’s attempt to disguise the civil commitment facility’s true purpose as rehabilitation. This current system serves no one: not the criminal, not the victim, and certainly not the taxpayer. Littlefield is the island where we send the undesirables to never be heard from again.  

Let’s start with some honesty, and then engage in a legitimate debate about whether the Constitution forbids this type of institution as an unconstitutional subsequent punishment.

For more information on this civil commitment trend for sex offenders, check out the Stateman’s recent write-up here.  

Finality Over Accuracy: America's Flawed Jury System Exposed in "Making a Murderer"

Chris Perri

Spoiler Alert: You do not need any knowledge of the Netflix documentary series, Making a Murderer, in order to read the following blog post, which contains details about the 2007 Steven Avery murder trial. However, if you’d like to watch the documentary without any knowledge of the events that unfold, then you should wait to read this post.

After watching Making a Murderer, Netflix’ ten-part documentary series about Steven Avery’s 2007 trial for the murder of Teresa Halbach, many viewers were understandably perplexed by the jury’s guilty verdict. Avery had previously been exonerated from a wrongful conviction for a 1985 sexual assault, and due to a pending multi-million dollar lawsuit against the county sheriff for its role in his wrongful imprisonment, the sheriff appeared to have a motive to frame Avery for the Halbach murder. Armed with evidence that strongly suggested such a framing, along with the apparent weakness of the State’s circumstantial case, Avery’s excellent defense attorneys cast considerable doubt on whether Avery murdered Halbach. At the very least, there appeared to be reasonable doubt. Yet, twelve people decided that Avery was guilty, and under our law, that verdict means that Avery was the killer.

To me, that’s the most difficult part of the law to grasp. Life is shrouded by nuance and uncertainty; in a close case, it’s hard to know exactly what happened. But as a society, we have decided that justice must prevail, so we assign the task of judgment to a jury of twelve random people. We tell ourselves that as long as each juror believes beyond a reasonable doubt that a defendant committed a crime, wrongful convictions won’t happen.

But they do happen. I’m not arguing in this blog post that Steven Avery was wrongfully convicted of murder. I don’t think that’s appropriate when my knowledge of the case is limited to a ten-hour series created by people with an obvious agenda to entertain by casting doubt on the Avery conviction (click here to view an article about the inculpatory evidence that the producers of Making a Murderer left out of their documentary). Instead, I’m using this case as a backdrop for questioning the fundamental tenets of our justice system.

As a society, we are comfortable locking people away because we tell ourselves that they were convicted of a crime beyond a reasonable doubt. This premise is upended if reasonable doubt is merely theoretical, a grouping of words that functionally is no different than a jury awarding money damages to a plaintiff under the civil standard of “preponderance of the evidence” (i.e., more likely than not). Disturbingly, the prosecutor in the Avery case stated to the jurors in closing argument: “Reasonable doubt is for innocent people.” Despite this statement’s obvious impropriety, it’s instructive because that’s how most jurors treat the reasonable-doubt standard. It’s mere fantasy to assume that jurors objectively consider all of the evidence through the lens of reasonable doubt. Instead, they usually vote with their gut, meaning that we cannot be certain whether juries convict the correct person.

The most haunting aspect of the criminal justice system is that twelve jurors, who deliberate in secret with no accountability regarding whether they actually follow the trial judge’s instructions, create the ultimate “fact.” Before the case goes to the jury, a defendant is presumed innocent. However, when the jury unanimously votes for guilt, the defendant is now a criminal, and our history books record as “fact” that this defendant committed the alleged crime. I recall stirring video footage of the 1995 Chyann Bratcher murder trial in federal court in the Texas Panhandle. It was a close case, built on the strength of a co-defendant’s dubious testimony. After the jury returned its guilty verdict, Ms. Bratcher screamed out that she was innocent. The federal judge immediately silenced her, stating something to the effect of: “Ma’am, that jury of twelve just said you were guilty, and that means you did it. You are not innocent.” But what if a different jury had found her not guilty? Would that change the facts? Of course, it wouldn’t change what actually occurred in the past, but it would alter how we perceive and judge the past from our vantage point in the present.      

How does this blind veneration of jury verdicts mesh with another fact – that humans are fallible? A by-product of our innate fallibility is that twelve people can, and sometimes do, get it wrong. Think about it. These juries usually consist of twelve very different people with a range of IQ’s, along with varying degrees of self-confidence in the serious task of judging another person’s fate. It’s easy for the more uncertain jurors to defer to the more vocal jurors who seem to grasp the intricacies of the case. Psychological group dynamics can create a demand to choose sides. Moreover, most jurors aren’t able to synthesize the mounds of information that are piled on them during a long trial, so they often make decisions on the basis of emotion rather than cognition. (Click here for an article teaching lawyers to use these jury traits to their advantage). 

The Avery trial provides a great example of how a jury might reach the wrong decision. The case was highly publicized, with Avery being vilified in the media due to the State’s frequent press conferences during the investigation of the case. Many of these jurors might have had problems going home to their families and explaining that they let a murderer off the hook. Equally compelling is the fact that when the jurors took their initial straw poll at the opening of deliberations, seven voted for not-guilty, two were undecided, and three were staunchly convinced of Avery’s guilt. These three guilty jurors ultimately convinced the rest of the group to convict Avery of murder. Considering that there was a seemingly inconsistent verdict of “not guilty” on the charge of Mutilation of a Corpse, it’s not far-fetched to speculate that some type of compromise or deal occurred in the jury room (such trading of votes is a flagrant violation of the law).

In the last few years, there has been a movement in the United States to hold public servants accountable by increasing the transparency of their duties. Civil rights groups have called for all police officers to wear body cameras that are automatically activated upon interaction with a subject. But aren’t jurors practicing the ultimate public service when they pronounce judgment on another human being? Why, then, are their deliberations secret, with zero accountability if they refuse to follow the judge’s instructions to consider only the evidence in resolving whether a defendant committed a crime beyond a reasonable doubt? Cameras in the jury room could potentially resolve questions about whether jurors engaged in misconduct, and they might prevent the type of bullying that often occurs during deliberations. I want my jurors to be on their best behavior, and the only way to ensure that they are fairly considering the evidence is to increase the transparency of their decisional process.

The takeaway from Making a Murderer is not that one individual might have been wrongly convicted. Rather, the import is that the jury system is flawed. Such a flaw might be less worrisome if we had an appellate system that could catch these human errors. However, our appellate system is a joke when it comes to considering a claim that the jury messed up. This type of claim is called “evidentiary insufficiency,” but it’s an impossible claim to win because the appellate standard of review requires judges to resolve all factual disputes in favor of the jury’s verdict – in other words, they review the case with a bias against the defendant. Thus, in the case of Steven Avery, he doesn’t get the benefit of any judge neutrally evaluating the strength of the evidence.

This appellate process perpetuates the criminal justice system’s goal of finality over accuracy. An inherent tension exists between the goal of justice and the goal of avoiding wrongful convictions. If it’s too hard to convict a defendant, then criminals will never be brought to justice. On the other hand, if a conviction is too easy to obtain, then our prisons will be populated by numerous innocent people. Either choice should be intolerable. But by instituting a criminal justice system that sends millions of people to prison, we have made a choice, and inherent within that choice is a margin of error because the juries who administer this justice consist of fallible humans who are prone to mistakes. No matter how hard we strive to reduce this margin of error to as low a level as possible, human fallibility remains. Instead of responsibly acknowledging this fallibility through an appellate process that operates as a check-and-balance on the jury process, we indulge in an irresponsible fantasy of certitude in order to sleep at night: the jury of twelve must have gotten it right, thereby delivering justice to the victim and convicting the correct person.  

Once the jury returns its verdict, the justice system doesn’t like the case to linger, as such would frustrate the goals of “justice” and finality for society. In service of these goals, the appellate system sets up such a gauntlet of procedural and substantive pitfalls that even meritorious claims often fail due to the alleged trial error being declared “harmless.” For example, if the appellate court found that the trial court erred in admitting certain evidence at a defendant’s trial, then the defendant doesn’t automatically obtain a new trial (such would frustrate the system’s ultimate goal of finality). Instead, the appellate judges reweigh the evidence, supposedly putting themselves in the shoes of jurors in order to determine whether a reasonable jury would have still found that person guilty beyond a reasonable doubt. Far too often, courts affirm convictions under this “harmless” error rule.

Turning back to the claim of insufficiency of the evidence (i.e., “How the heck did that jury convict that guy?”), appellate judges should ask whether a reasonable person could find that the prosecution proved its case beyond a reasonable doubt, just as they do when reweighing the evidence to decide whether an evidentiary error was “harmful” enough to merit a new trial. Instead, the prevailing standard directs the appellate judges to indulge all factual disputes in favor of the State before determining whether any reasonable person could have found that the State proved its case beyond a reasonable doubt.

This standard precluded Avery from receiving any kind of “fair” evaluation of his trial: if you resolve all factual disputes against him, then it logically follows that the State sufficiently proved its case. The primary controversy with respect to his trial is whether a reasonable juror could have found him guilty beyond a reasonable doubt. Besides the State’s overall case being fuzzy and circumstantial, there were substantial questions surrounding the acquisition (planting?) of key items connecting Avery to the murder. However, after resolving all the factual disputes in favor of the State, along with indulging all logical inferences in the prosecution’s favor, the evidence becomes sufficient. In a way, the appellate court’s standard of review creates this “sufficiency” as a result of the appellate mandate to review the evidence through a distorted lens.

Certain cogs in the criminal justice machine might respond that it’s inefficient and cumbersome for appellate judges to reweigh the evidence from a neutral perspective, as such a procedure invades the province of the jury. “We don’t want to sit as the 13th juror,” an appellate judge once told me in oral argument. This logic fails because, as explained above, judges already sit as the 13th juror when they reach to affirm convictions under the “harmless error” standard. Furthermore, given the tremendous importance of jury deliberations and their lack of transparency, a fair justice system has a duty to institute an appellate process that reweighs the evidence in order to determine whether the jury reached a just result. The situation might be different if jury deliberations were recorded, as a court could simply watch these recordings to determine whether any misconduct occurred. Until that happens, the only way to improve the accuracy of our criminal justice system is to audit the jury’s verdict through a revamped appellate process.

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An update on the recent DNA testing errors

Chris Perri

Update from previous post:

Last week, the Travis County District Attorney’s Office announced that it has formed a Conviction Integrity Unit in order to facilitate the comprehensive review of all cases that might have been affected by the miscalculations of probabilities related to DNA mixtures from 1999-2015. This is definitely a step in the right direction, as many experienced criminal justice practitioners are concerned that the miscalculations could have affected thousands of cases.

If you or a loved one suffered a conviction in a case involving DNA evidence, it’s important to retain an experienced criminal defense attorney to review your case. Chris Perri Law can determine whether your case was potentially affected by the DNA miscalculations and then assist you in obtaining a recalculation of the DNA evidence. Depending on the results, Chris Perri Law can then file a post-conviction writ of habeas corpus seeking to overturn your conviction. Chris Perri Law offers these post-conviction services on both state and federal cases throughout Texas.

Check out Chris Perri’s video interview with Austin’s Fox 7 News for more information about these mind-blowing DNA developments.

Recent Supreme Court Decision Protects 4th Amendment Rights During Traffic Stops

Chris Perri

Last week, in Rodriguez v. United States, the Supreme Court clarified that police officers may not prolong a traffic stop in order to conduct a dog sniff on a vehicle, unless there is reasonable suspicion to believe that the occupants are engaged in criminal activity.

In this case, the defendant was pulled over in Nebraska for illegally driving on the shoulder of the highway. About 20 minutes later, the police officer issued a warning ticket for the traffic infraction. However, the defendant was not yet “free to leave.” The police officer instructed the defendant to exit his vehicle and stand in front of the patrol car while they waited for another police unit to arrive. About seven more minutes elapsed before the arrival of the backup unit. At this point, the officer led a drug-detecting dog around the defendant’s vehicle. The dog alerted to the presence of drugs, and a subsequent search of the defendant’s vehicle revealed a large quantity of methamphetamine. The defendant was convicted and sentenced to five years in federal prison.

On appeal, the Government argued that waiting a mere seven minutes for the drug dog to sniff the outside of defendant’s vehicle constituted a de minimus (minimal) intrusion on the defendant’s Fourth Amendment rights, meaning that the intrusion was so minor that it was constitutionally permissible. Fortunately, our Supreme Court rejected this argument. The Court noted that certain intrusions, such as asking a person to step outside the vehicle during a lawful traffic stop, are “negligibly burdensome precautions” that allow an officer to complete the traffic stop “mission” safely. “On-scene investigation into other crimes, however, detours from that mission,” wrote Justice Ginsburg, who authored the majority opinion.

An officer may not prolong a traffic stop in order to conduct a dog sniff unless facts are developed during the traffic stop that support reasonable suspicion of drug activity. For example, if an officer smells drugs during the stop or notes a contradiction between the driver’s and passenger’s statements regarding their travel itinerary, the officer might have reasonable suspicion to prolong the stop in order to investigate drug activity. However, an officer can’t conduct a dog sniff on a car based on a mere hunch that’s not supported by actual observations of suspicious activity.

Even if the officer had conducted the dog sniff prior to issuing the warning ticket, the result would be the same: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop.’”

This recent case enhances Chris Perri Law’s arsenal for attacking unlawful searches at suppression hearings. We’ve begun 2015 with three victories on suppression issues, and we’ll continue to fight to protect our clients’ constitutional rights.

Recent U.S. Supreme Court Ruling Gives Cops Even More Leeway, But Chris Perri Law Will Strike Back

Chris Perri

Last month, the United States Supreme Court issued a surprising opinion that’s created waves of concern in the criminal defense circle. In Heien v. North Carolina, a North Carolina police officer noticed that one of the brake lights on the defendant’s vehicle was not working, so the officer pulled the defendant over believing that having a broken brake light was a violation of North Carolina law. A subsequent search of the defendant’s vehicle revealed cocaine, resulting in his arrest. The defendant attempted to suppress the evidence on the basis that he didn’t commit a traffic violation. The North Carolina courts reviewed the relevant traffic statute, and they determined that as long as one brake light is working, no crime has occurred.

Since the defendant didn’t commit a traffic violation, the stop was illegal, and the evidence of the cocaine should be suppressed. Seems simple, right? According to an 8-1 majority of the Supreme Court, that doesn’t end the inquiry, as courts must examine whether the officer’s mistaken belief about the law was reasonable. Here, the North Carolina law was somewhat ambiguous because another statute mandated that all “rear lamps” be functioning, and it’s not unreasonable to interpret a brake light as a type of rear lamp. Thus, even though the officer’s interpretation of the law was incorrect, this interpretation was reasonable at the time of the stop.

The Supreme Court’s analysis is problematic. Aren’t police officers supposed to know the law? And if they don’t know the law, how can anyone deem this lack of knowledge reasonable when the officers are trained experts on what’s illegal? If a medical doctor performing an appendectomy mistakenly removes your spleen instead of your appendix, we call that malpractice, and there’s no wiggle room for the doctor to argue that the mistake was reasonable. Apparently, cops get much more leeway.

Many defense attorneys are concerned that Heien might be a slippery slope. Will prosecutors now defend all unlawful stops on the basis that the officer’s mistaken belief about the law was reasonable at the time of the stop?

I say bring it on. I plan to argue that Heien applies to only a tiny set of scenarios: those in which the law is ambiguous and there’s no case precedent that clarifies this ambiguity. In Texas, most of the traffic laws are pretty clear cut. For example, it’s not a crime to swerve within your own lane as long as your car doesn’t cross into another lane. If an officer stops someone for swerving but the defense proves that the car never crossed into another lane, the prosecution won’t be able to argue that the officer reasonably believed that swerving within one’s own lane is against the law. That’s because, unlike the North Carolina law at issue in Heien, there’s no ambiguity in the law in my hypothetical example.

Still, I anticipate that prosecutors will attempt to use Heien as a tool to validate otherwise unlawful stops. As a result, it’s important to retain an experienced, knowledgeable defense attorney to persuade the courts that Heien doesn’t apply.

The 5th Circuit Invites Chris Perri Law to Present Oral Arguments Once Again

Chris Perri

It looks like I’ll be heading to New Orleans early next year! I just received word that the 5th United States Circuit Court of Appeals has granted me the opportunity to present Oral Arguments on a federal felony appellate case.

This will be my second time to argue in front of the Fifth Circuit. To read more about my previous 5th Circuit Oral Arguments, click here.

I’m looking forward to the chance to fight in court, and I’m grateful to the 5th Circuit for finding the appeal worthy of their time. 



Court of Appeals Grants Chris Perri Law Oral Argument on Felony Case

Chris Perri

The Corpus Christi Court of Appeals has granted me the opportunity to present formal Oral Arguments on a felony DWI case in which my client was convicted and sentenced to twenty-five years in prison. At trial, during which I was not yet his lawyer, the main evidence of my client’s intoxication came from a warrantless blood draw, revealing that his BAC was over the legal limit. Just a few months after my client’s trial, the U.S. Supreme Court ruled that it was unconstitutional for an individual’s blood to be drawn during a DWI arrest without a warrant—even if it was the individual’s third DWI. At the time of my client’s arrest, however, Texas law allowed the police to draw a person’s blood without a warrant if that person had two or more prior DWI convictions. However, due to the fact that the Supreme Court’s ruling occurred while my client’s case was pending appeal, I’m arguing that this ruling should apply to his case so that his conviction is overturned and he can be retried without the tainted evidence. The interesting issue on appeal is that because the trial attorneys did not object to the admission of the blood evidence, no error was preserved. Usually, objections are necessary to present an appellate issue because appellate courts require that the trial judge had an opportunity to make a ruling. I plan to fiercely argue that even though the error was not preserved, it represents such a fundamental miscarriage of justice that the appellate court should still reverse the conviction. 

Chris Perri Gives His Take on Life Imprisonment for Habitual DWI Offender

Chris Perri

A recent ruling by the Third Court of Appeals of Texas states that a life sentence can be a reasonable punishment for a third DWI felony conviction. 

In 2012 a woman in San Marcos was arrested and convicted for her third felony DWI—her sixth DWI conviction total. The case was tried in front of Hays County Judge Jack Robison, who found her guilty with a punishment of life in prison. The woman’s attorneys attempted to appeal this sentence, arguing that life in prison for a DWI violates the Eight Amendment—a cruel and unusual punishment. However, a three-judge panel of the Third Court of Appeals upheld Judge Robison’s sentence, holding that she had a dangerous pattern of behavior and was a habitual offender. (For more about the case, click here.)

“Though saddening that this woman got to this point, I don’t necessarily believe the sentence was a violation of the Eighth Amendment,” Chris Perri says. “I do, however, feel this highlights the importance of connecting first- and second-time DWI offenders to the appropriate resources and working with the prosecution to incentivize defendants to seek rehabilitation. I don’t know the details or history of this case, but I can’t help but wonder if in some way the system failed her.”

Professional drug and alcohol treatment is not a 100% guarantee for relapse prevention, but it definitely can help shift the odds in one’s favor. That’s why Chris Perri Law tries to find the best legal outcomes for its clients that lead to life successes and reductions of repeat-offenses. When appropriate, part of his services include linking clients to community resources or advocating for clients to be referred to the Mental Health Court.

“If we don’t look at the whole person—his or her story—nothing’s going to change,” Chris Perri says.

This sad case proves that having a strong legal advocate who cares about your future and wellbeing is crucial. If you or someone you know is in need, call Chris Perri Law at (512)917-4378 today. 

Chris Perri Plans to Use New Law to Overturn Wrongful Convictions

Chris Perri

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Recently, in two separate cases in the Central Texas area, several wrongfully convicted people have been released from prison on the basis of evidence that their convictions were founded upon false scientific testimony. Both cases involved the sensitive matter of child sexual abuse. To read about the “San Antonio Four,” click here. To read about the Keller case in Austin, click here.

This past legislative session, Texas adopted a new law (codified as Article 11.073 in the Texas Code of Criminal Procedure) that makes it easier for falsely convicted people to overturn their convictions on the basis of false scientific evidence. Prior to the passage of the new law, defendants had the burden of proving that newly-discovered evidence establishes their actual innocence. But now, defendants only need to show by a preponderance of the evidence that if the new scientific evidence had been presented at their original trial, they would not have been convicted. Essentially, this means that if defendants show that it’s “more likely than not” that they wouldn’t have been convicted, the court must overturn the conviction.

As an example, consider the case of Cameron Todd Willingham, who was convicted of murdering his three young daughters by burning down the house while they slept. At trial, an arson investigator testified that the burn patterns demonstrated that the fire was intentionally started with an ignitable fluid, such as gasoline or paint thinner. This scientific testimony definitively countered the defense’s theory that Willingham was asleep when the fire began, perhaps caused by faulty electrical wiring in the house. Over a decade later, scientific advances in the field of arson investigation revealed that the expert’s “burn pattern analysis” was based on an unreliable scientific theory. Thus, Willingham was convicted on the basis of false science. Even so, he was executed before the Texas Innocence Project could convince a court to overturn his conviction. The new law would prevent such a wrongful execution.

Chris Perri Law has extensive experience with criminal appellate litigation, and we’re prepared to use this new law to benefit our clients. If you or a loved one was convicted on the basis of questionable scientific evidence, there’s a chance that current scientific developments will undermine this conviction. Contact us at (512)917-4378 to take a look at your case.

Chris Perri Argues to the 5th Circuit why Colton Pitonyak Deserves a New Trial

Chris Perri

Last Tuesday, August 27th 2013, Chris Perri argued to a three-judge panel of the 5th U.S. Circuit Court of Appeals on why his client Colton Pitonyak deserves a new trial. This notorious case has received expansive media attention, and for good reason.

For the past four years, Chris Perri fought for the case to be reexamined due to an alleged Brady violation. For further background on the case, please view one of our older, informative blog posts here.

Intrigue and mystery have laced this case from the inception. Many have speculated who actually murdered and mutilated Jennifer Cave’s body. Though Colton Pitonyak was convicted of her murder, evidence withheld by the prosecution team points to Laura Hall as the actual killer.

Capturing the attention of the 5th Circuit, Chris stated that while in the Travis County Jail, Laura Hall confessed to two other inmates that she committed the murder. These inmates then told a counselor, who recorded the information in Hall’s electronic jail file. Chris argued that had this information been made available to the defense, Pitonyak’s trial strategy would have been entirely different and most likely led to a not guilty verdict.

The learned judges grilled Chris about whether any prior Supreme Court case had established a duty on the part of a mental-health counselor to disclose such exculpatory evidence to the prosecution team (and, thus, ultimately the defense attorneys).  While conceding that there was no such case, Chris persuasively argued that based on the Supreme Court’s Kyles v. Whitley case, the actual prosecutors had a duty to search Hall’s jail file due to the reasonable foreseeability of exculpatory evidence within that file.  After all, the prosecutors knew that Hall was talking to other inmates, including a cell mate who ended up being the prosecution’s star witness at Hall’s trial on Tampering with Evidence.  By turning a blind eye to the contents of Hall’s jail file, the prosecutors committed a Brady violation. 

Furthermore, even if the prosecutors had been blocked from accessing medical information within Hall’s jail file, they had a duty to obtain a court order or subpoena because the right to a fair trial trumps medical privacy laws. The State’s attorney countered that a subpoena for this information had been quashed, but Chris pointed out that this argument was disingenuous because it was Pitonyak who filed the subpoena while investigating the Brady claim in 2009.  The State, with the prosecutors’ blessing, actually quashed the subpoena in order to hinder Pitonyak’s ability to develop the claim.

The 5th Circuit should issue a ruling in the next month or two, though they have no official deadline.

See below to read a few noteworthy news articles and videos with Chris Perri featured:

Articles: 

Austin Chronicle article

Statesman article

The Daily Texan article

Videos: 

KXAN video 

My Fox Austin video

Keye TV video (1)

Keye TV video (2) 



 

 

 

 

 

 

Chris Perri convinces Appeal Courts to consider New Trial for Pitonyak

Chris Perri

The News of the 5th Circuit Court of Appeals’ Grant of Certificate of Appealability

About a week ago, I heard an exuberant scream coming from our home office late in the evening. As the wife of a passionate, half-Italian criminal defense attorney, I’ve heard this sound before. However, when I entered the room to inquire further, I quickly surmised from his face that the news he received was far greater and more meaningful than I first assumed.

The 5th Circuit Court of Appeals had granted Colton Pitonyak and his attorneys the opportunity to appeal the issue of a Brady Violation. Chris read to me the words from the Court that stated “the impact of the Brady Violation is perplexing and the claim deserves further review.”

After years of Chris working vigorously to get the Courts to recognize the need to explore the details of the Pitonyak case further, I knew how much this meant to him. To Chris, his legal assignments are not just a way to pay the bills, but a way to be a part of how we as humans decide to navigate the muddy trenches between right and wrong. And when Chris smells the possibility of infringement on freedom and justice, especially when it leads to someone spending a 55-year prison sentence behind bars for murder, potentially wrongfully so, like with Colton Pitonyak, he will not stop fighting for what he believes in.

What Does This Mean?

Brady Violation

After getting past the emotional impact this had for Chris and Joe Turner, the other attorney involved in the Pitonyak writ, I wanted to further understand what the 5th Circuit Court of Appeals’ grant really means. As a social worker by training, I take a lot of interest in the human stories told throughout the criminal justice system, as this system is partly a reflection of our society’s values.

I learned that firstly, one must understand that a Brady Violation occurs when the prosecution’s failure to disclose evidence to the defense deprives the defendant of a fair trial.

Overturn of Prior Federal Denial

I also learned that prior to applying for the right to be heard at the 5th Circuit Federal level, Chris first had to exhaust all claims at the state court level. The state courts denied Chris’ request and stated that “the admission [of Hall’s 2005 confession] would have no reasonable impact on the trial”. Chris then filed his writ in the federal district court, but they denied him as well. That didn’t stop Chris from persevering forward to the 5th Circuit Federal level, where Chris argued that the “federal court was woefully misguided” about the law. The federal district court had denied Pitonyak the right to appeal the case to the 5th Circuit, so Chris first had to get the 5th Circuit’s permission to hear the appeal. After hearing Chris’ motion, the 5th Circuit agreed that reasonable jurists could debate whether Pitonyak had demonstrated a Brady violation, which means that Chris overturned the federal court’s initial denial of his right to appeal the case.

Possibility of New Trial

What this all comes down to is that Chris’ request convinced judges at the 5th Circuit Court level to allow Chris to argue on Pitonyak’s behalf for a new trial that would include the previously withheld evidence of Laura Hall’s confession. The Evidence Withheld from Pitonyak Background Mystery and sensation surround this case, which has amounted to several TV documentaries and national interviews trying to tease apart an understanding of what really happened.

What we do know for sure is that in August of 2005, Jennifer Cave was found shot to death and chopped up into pieces, and left in the bathroom and in trash bags of Pitonyak’s apartment. After the incident, Pitonyak and Laura Hall fled to Mexico, where they were arrested by Los Federales and returned to U.S. Custody.

Although Pitonyak received a conviction for murder and Hall received only a ten year sentence and conviction for tampering with evidence and hindering apprehension, there has always been a major question of who really murdered Jennifer Cave. Pitonyak reports that on this night he was under the influence of xanax and alcohol to such an extent that he formed no memory of what happened. In Texas, voluntary intoxication is not a defense to a crime, but it can leave a lot unknown. The prosecution struggled to come up with a motive for why Pitonyak would want Cave dead, but what is known is that Pitonyak had a romantic relationship with both Cave and Hall.

The New Evidence In 2009, when Joe and Chris began working on Pitonyak’s appeal, they came across a record from Hall’s jail stay that indicated two other inmates informed a counselor that Hall was “acting crazy” and had confessed to killing Cave. Since then, these two women have provided sworn statements that this was in fact true. Others have come forward as well to say that Hall confessed to being the killer.

What Chris and Joe are trying to argue is that if this information had not been withheld from the defense team, then it could have been used at trial, giving the jury a lot more to chew on when deciding Pitonyak’s innocence or guilt.

Why This Matters

Whenever I hear this story, my heart goes out to the deceased victim and her family. I cannot imagine what this process has been like for the victim’s family, and how for them more than anyone, getting to the bottom of this matters most for closure and their grief process. The fact that Jennifer Cave died so gruesomely and prematurely will never be okay.

This also has an impact on all of us. We live in a country that says we each have the right to a fair trial and to be seen as innocent until proven guilty, beyond a reasonable doubt. If evidence this substantial was withheld from the criminal defense team, then there is an issue of personal liberty at hand. Pitonyak was not allowed the fair fight we have all been guaranteed.

Hearing this story and this new evidence doesn’t answer all the questions for me about the truth of Jennifer Cave’s devastating death. It doesn’t mean Pitonyak is innocent. Yet, it does mean we should all want to know more and take a closer look. Not just to find the truth in this case, but also to uphold the highest standard of fairness in our criminal justice system.

My hope, and I believe the goal of the system, is that if both sides – prosecution and defense – fight fairly but zealously, then the truth will ultimately be unveiled. That didn’t happen in this case, so we are left in the dark about why a young man is serving a 55-year sentence for a crime we can’t honestly say he committed.

I’m thankful that there are attorneys like Chris and Joe Turner willing to turn over every stone to make sure their clients’ rights are protected and the prosecution is held accountable. In the end, we all want justice to be served, but not at the price of the truth.

What’s Next

Chris and Joe have now been given permission to file a comprehensive brief to be turned in next month. If the 5th Circuit finds that the Brady evidence undermines confidence in the jury’s verdict, then a new trial in Austin will be ordered for Pitonyak.