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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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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 Tag: writ attorney

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.