Junk science writs: Why Ohio should follow the example of Texas and legislate a junk science writ. Scott Piepho; "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." The Akron Legal News; (Must, Must Read. HL);

"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