"Science is awesome. It’s also difficult and messy.
Science will occasionally embrace false hypotheses, but science also
corrects itself well. The scientific method can be short-circuited by
basic human cognitive biases, but it also offers the best corrective for
the resulting mistakes. When science is in the courtroom,
the awesomeness and difficulty and messiness gets amplified, both
because lives and livelihoods are on the line and because our
adversarial system does not easily accommodate the open-mindedness and
residue of uncertainty of science done well. The past few decades
have seen a series of revolutions in forensic evidence in criminal
trials. DNA evidence allows law enforcement to identify a suspect to
near-certainty, but that same evidence has proven that a troubling
number of people were wrongfully convicted. DNA evidence begat the
Innocence Project which is now forcing reassessment of large swaths of
forensic evidence. The cover story of this month’s ABA Journal
examines arson investigation, one area where science has forced a
drastic reassessment over the last few decades. The story also
demonstrates the difficulty of overturning convictions when the science
the prosecution relied on has changed. In most states, petitioning a
court on new evidence is exceedingly difficult. Court rules favor
letting verdicts stand. The ABA Journal story centered on the
case of Han Tak Lee, convicted of murder for setting the 1989 fire that
killed is mentally ill daughter. Lee was able to present evidence
challenging the arson forensics that convicted him upon filing a
successful habeas petition. The 3rd Circuit held that he had the right
to discovery and an evidentiary hearing, finding that if the state’s
fire experts testified based on incorrect science, admission of the
evidence “undermined the fundamental fairness of Lee’s entire trial.” But
it remains to be seen whether the Supreme Court would endorse such a
proposition. In part because of the toxic politics of capital
punishment, several of the more conservative members of the court are
increasingly hostile to considering new evidence post-conviction, even
when that evidence demonstrates actual innocence. The ABA Journal story mentioned in passing one innovation that may ease that difficulty – the Texas junk science writ statute. A
2013 Texas law – the first of its kind – specifically allows a
defendant to petition a court to overturn a conviction based on changes
in the science that convicted him. The Texas law allows a defendant to
file a petition – lawyers have adopted the term “junk science writ” –
when he can show that admissible scientific evidence that was not
available at trial and not ascertainable through the reasonable
diligence of the defendant, undermines the proof of guilt. The
evidence may consist of new tests that offer affirmative proof of
innocence, but also evidence that shows that the scientific theory
underlying the forensics that convicted him are now believed to be
false. The law calls on courts to overturn any conviction when, in light
of new evidence, the conviction cannot be sustained by a preponderance
of the evidence. The Texas legislature has since amended the law
to make it clear that it applies when an individual expert witness
changes his or her position regarding testimony given in the defendant’s
case. A similar law took effect in California earlier this year. Texas
passed the law as one of a set of reforms after the scandalous
execution of Cameron Todd Willingham. Willingham was executed in 2004
for setting the 1991 fire that killed his three children. In 2009 a
lengthy New Yorker exposé demonstrated that the fire almost certainly
was accidental. The scientific evidence introduced at his trial was
based on flawed beliefs among fire investigators....Science is reconsidering
other areas of forensics beyond arson evidence. The last few decades
have seen the rise and fall of recovered memories and the resultant
ritual sexual abuse prosecutions. Recent advances in pediatrics have
challenged the science around diagnoses of shaken baby syndrome. We have
ample reason to believe that bite mark analysis will be the next field
currently governed by educated guesswork that will be debunked. As
scientists improve and refine forensic evidence, courts need to find
ways to not only accommodate the new information, but also to reconsider
those erroneously convicted. Hopefully, more states will adopt laws
like Texas and California, affording defendants the opportunity to
challenge bad science. Hopefully Ohio will be one of them."
http://www.akronlegalnews.com/editorial/14203