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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: Current Events

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.

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. 

Texas Law Fellowships Honors Chris Perri with Public Service Award

Chris Perri

At the Texas Law Fellowships' Excellence in Public Interest Awards ceremony, Chris Perri received The Excellence in Public Interest Award for his service. For the past two years, Chris has volunteered his time supervising law students running an expunction clinic for indigent clients in the community. Chris is considered a statewide expert on expunction law, and he believes anyone who has had their case dismissed should be able to clear it from their arrest record.

Remember, in the court of law, we are all presumed innocent until proven otherwise. An arrest is not proof of guilt, yet its presence on a background check can still create employment and educational obstacles. 

Chris was honored to be recognized along with these other outstanding members of the legal community: Claire Marie Bow, Paul Quinzi, Chris Roberts, and Bryan Zubay. 

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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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