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(The Atlantic)   Spiffy: New law will let prisoners get an writ of Habeas Corpus to get a hearing to challenge convictions involving expert testimony they believe was based on "junk science". Strange: in Texas. Scary: It is the only law of its kind in the US   (theatlantic.com) divider line 60
    More: Interesting, Texas, convictions, expert testimony, forensic pathologists, criminal procedure  
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2872 clicks; posted to Main » on 28 Feb 2014 at 1:32 PM (43 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-02-28 12:06:59 PM  
Too bad they already executed that one guy because of it. But he wasn't white so it really doesn't count..
 
vpb [TotalFark]
2014-02-28 12:33:21 PM  
Challenge the conviction in a Texas court.  Good luck with that.
 
2014-02-28 12:39:36 PM  
how hard is this people?

1) do not talk to the police, other than to ask "Am I under arrest? Am I free to go?"
2) do not sign ANYTHING, ever

the police are not your friends.
the police are the devil
 
2014-02-28 12:45:16 PM  
"an writ"?  Is that a typo, or like a British thing or something?
 
2014-02-28 12:59:55 PM  
Is this just a preemptive move in case they start imprisoning people over CO2 emissions?
 
ZAZ [TotalFark]
2014-02-28 01:00:42 PM  
Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)
 
vpb [TotalFark]
2014-02-28 01:15:57 PM  

ZAZ: Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)


Generally illegally obtained evidence is not admissible in the first place.  I can see a need for this in Texas though.
 
ZAZ [TotalFark]
2014-02-28 01:23:45 PM  
vpb

The federal exclusionary rule applies specifically to Fourth Amendment violations (and a related rule to Fifth Amendment violations). It does not cover, for example, using radar without a license.
 
2014-02-28 01:34:11 PM  

Three Crooked Squirrels: "an writ"?  Is that a typo, or like a British thing or something?


Trolling is a art in Limeyland.
 
2014-02-28 01:35:23 PM  

Fano: Three Crooked Squirrels: "an writ"?  Is that a typo, or like a British thing or something?

Trolling is a art in Limeyland.


Being pillaged by everyone will cause that.
 
2014-02-28 01:39:41 PM  
Anyone else?
076dd0a50e0c1255009e-bd4b8aabaca29897bc751dfaf75b290c.r40.cf1.rackcdn.com
 
2014-02-28 01:40:03 PM  

namatad: how hard is this people?

1) do not talk to the police, other than to ask "Am I under arrest? Am I free to go?"
2) do not sign ANYTHING, ever

the police are not your friends.
the police are the devil


Someone sounds guilty.
 
2014-02-28 01:40:14 PM  

vpb: ZAZ: Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)

Generally illegally obtained evidence is not admissible in the first place.  I can see a need for this in Texas though.


Yes, but in most states the judge rules what is admissable, and you can't mention that there was an argument about that in front of the jury.  The jury is supposed to treat the evidence before them as valid.  It looks like this law would allow a defendant to argue that the evidence was obtained under dubious circumstances, and should never have been admitted.  Thus giving the jury some leeway to treat it with skepticism or to ignore it all together,


/I'm not a lawyer
///Did play one of the jurors in a High School production of Twelve Angry Men once though
 
2014-02-28 01:42:01 PM  
1) Persuade evangelical judges to declare biology "junk science" because it is based on evolution.

2) Invalidate convictions predicated on medical forensics because of its foundation in biological science.

3) Profit!
 
2014-02-28 01:43:37 PM  
This is stupid.  Their opportunity to challenge the junk science was at their trial either on cross examination of the junk scientist or through use of another expert that is a real scientist.
 
2014-02-28 01:44:44 PM  
So this law will enhance things?
 
2014-02-28 01:45:31 PM  
i.imgur.com
 
2014-02-28 01:46:06 PM  
Is it really that strange? Most people here are anxious to write off several branches of science as junk and replace it with creationism. Even a dumb Texan will accidentally say something smart once in a while.
 
vpb [TotalFark]
2014-02-28 01:46:55 PM  
DrunkWithImpotence:

Yes, but in most states the judge rules what is admissable, and you can't mention that there was an argument about that in front of the jury.  The jury is supposed to treat the evidence before them as valid.  It looks like this law would allow a defendant to argue that the evidence was obtained under dubious circumstances, and should never have been admitted.  Thus giving the jury some leeway to treat it with skepticism or to ignore it all together,


That's what I mean when I say I can see a need for this in Texas.

The judges in Texas are politicians.
 
2014-02-28 01:47:27 PM  

DogsInBathtub: This is stupid.  Their opportunity to challenge the junk science was at their trial either on cross examination of the junk scientist or through use of another expert that is a real scientist.


A lot of arson "science" that everyone swore by for years was actually complete garbage.  The whole field was in on it, you couldn't find a real scientist
 
2014-02-28 01:47:47 PM  

Baz744: 1) Persuade evangelical judges to declare biology "junk science" because it is based on evolution.

2) Invalidate convictions predicated on medical forensics because of its foundation in biological science.

3) Profit!


really you could tie pretty much any investigation back to set theory.
 
2014-02-28 02:01:19 PM  

lemonysprite: Is it really that strange? Most people here are anxious to write off several branches of science as junk and replace it with creationism. Even a dumb Texan will accidentally say something smart once in a while.


This has nothing to do with creationism.  This has already been implemented at the Federal level.

ShadowKamui: A lot of arson "science" that everyone swore by for years was actually complete garbage. The whole field was in on it, you couldn't find a real scientist


This is what it's aimed at.  The FBI used to claim it could identify which batch of bullets a particular bullet came from based.  Junk.  In fact, a lot of forensic "science" is junk, in that it's never been independently verified.  And that includes fingerprints.  It turns out that fingerprint matching is more an art than science.  Sorry to disappoint all you CSI junkies.
 
2014-02-28 02:01:26 PM  
It's Texas. The idiots running this state consider anything not in the Bible to be junk science
 
2014-02-28 02:02:35 PM  

namatad: how hard is this people?

1) do not talk to the police, other than to ask "Am I under arrest? Am I free to go?"
2) do not sign ANYTHING, ever


That's what all my police collegues say.  They can't understand why anyone would talk to a cop.  They also say more people have talked themselves into a conviction that ever have talked themselves out of one.
 
2014-02-28 02:03:28 PM  

Peter von Nostrand: It's Texas. The idiots running this state consider anything not in the Bible to be junk science


In this specific case, Texas is the only sane state government out there right now.
 
2014-02-28 02:04:01 PM  

ShadowKamui: DogsInBathtub: This is stupid.  Their opportunity to challenge the junk science was at their trial either on cross examination of the junk scientist or through use of another expert that is a real scientist.

A lot of arson "science" that everyone swore by for years was actually complete garbage.  The whole field was in on it, you couldn't find a real scientist


Don't discredit my narrative!
 
2014-02-28 02:07:12 PM  

DrunkWithImpotence: vpb: ZAZ: Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)

Generally illegally obtained evidence is not admissible in the first place.  I can see a need for this in Texas though.

Yes, but in most states the judge rules what is admissable, and you can't mention that there was an argument about that in front of the jury.  The jury is supposed to treat the evidence before them as valid.  It looks like this law would allow a defendant to argue that the evidence was obtained under dubious circumstances, and should never have been admitted.  Thus giving the jury some leeway to treat it with skepticism or to ignore it all together,


/I'm not a lawyer
///Did play one of the jurors in a High School production of Twelve Angry Men once though


Admissibility of evidence is a question of law, and is therefore a question for the Trier of the Law, aka the Judge, and is handled pre-trial.  The admissibility of expert or scientific testimony is included in that, and in general it is evaluated on the standards set forth in  Daubert v. Merril Dow , a Supreme Court Case that created to modern test for how reliable a piece of scientific evidence has to be before being allowed at trial.   The Jury is the trier of fact, so you are correct that they don't get to hear the arguments over the  basic scientific reliability of the evidence, however  one lawyer is allowed to cross-examine  the expert of the other side and can try to convince the jury to discount his conclusions by discrediting the witness or his methods

This is a little different,  as I read it, it says that after conviction, one legal basis for asking for a new trail, (technically a hearing to determine whether your constitutional rights were violated in your first trial, entitling you to a new one) is that the expert scientific evidence presented at trial was either wrong or based on since invalidated science-even if you did not challenge that evidence at your first trial

That last part is huge because ordinarily, any objection not raised at trial is considered waived for purposes of appeal.   This is a huge obstacle for say, a poor defendant who had an overworked PD who didn't do his job properly at the first trial.  A claim of  "ineffective assistance of counsel" can basically UN-waive those objections, but the bar is VERY high, particularly in  TX to win on those grounds (they denied an IAC claim against a lawyer who FELL ASLEEP during a trial)

Now  a very narrow category of objections founded on fundamental Constitutional rights are considered to be so important that they can NEVER be waived, and it appears that TX is adding "Convicted based on improperly admitted/flat out wrong evidence" to that list


I would guess this a backlash against the Todd Willingham case where a man was executed based almost solely on the "expert " testimony of an arson investigator, all of whose claims about how fires behave were SOUNDLY debunked by a physics professor who got interested in the case.   TX courts denied the "junk science" appeal and executed Willingham anyway, but even in TX that seemed a bit much for many people to stomach and Perry had to set up a blue-ribbon commission to look into (cover up wrongdoing) in the case
 
2014-02-28 02:12:20 PM  

vpb: ZAZ: Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)

Generally illegally obtained evidence is not admissible in the first place.  I can see a need for this in Texas though.


I'm actually ok with letting in illegally obtained evidence, as long it's VALID evidence.  However, if evidence has been illegally obtained is used at trial there should be mandatory criminal and civil cases against those who gathered the evidence.

(civil penalties if it was an accident or technical violation, criminal if it was a knowing and deliberate violation)
 
2014-02-28 02:13:08 PM  

Three Crooked Squirrels: "an writ"?  Is that a typo, or like a British thing or something?


The 'w' and the 'r' are silent.
 
2014-02-28 02:23:53 PM  

Galloping Galoshes: lemonysprite: Is it really that strange? Most people here are anxious to write off several branches of science as junk and replace it with creationism. Even a dumb Texan will accidentally say something smart once in a while.

This has nothing to do with creationism.  This has already been implemented at the Federal level.

ShadowKamui: A lot of arson "science" that everyone swore by for years was actually complete garbage. The whole field was in on it, you couldn't find a real scientist

This is what it's aimed at.  The FBI used to claim it could identify which batch of bullets a particular bullet came from based.  Junk.  In fact, a lot of forensic "science" is junk, in that it's never been independently verified.  And that includes fingerprints.  It turns out that fingerprint matching is more an art than science.  Sorry to disappoint all you CSI junkies.


A short list of "Junk forensic science" from my days doing criminal defense work:

"hair matching": Utter garbage.  You can MAYBE tell what race a hair came from but nothing more, and most tested experts couldn't distinguish a Caucasian pubic hair from the hair form the head of an African American male

"Fiber Matching" sorry CSI fans: no such database exists and it would be useless even if it did

Fingerprint matching:  again garbage.  The BASIS of it, that we all have a unique pattern on our fingers is pretty sound.  However in practice it is useless. Prints are almost never pristine when lifted from surfaces. they have been smudged warped, even faded  due to evaporation.  Therefore the CSI fantasy of having a computer overlay them and seeing an exact match from somebody's fingerprint card is nonsense.  All a fingerprint examiner can honestly say is that in his opinion the lifted print and the sample had enough points of comparison to be a match.  And what is the standard for how many points that need to be?  Why there is none,  it is COMPLETELY up to each examiner to make his own rules.

Handwriting maple matching:" like fingerprints but far worse as far as subjectivity goes

and this one may surprise you, but: DNA analysis

DNA is VERY good at EX-cluding someone,but nowhere near as reliable for saying a person is a match to a sample.  This is because a limited number of alleles  are tested, not the whole genome.   So if one of the alleles does NOT match, you obviously have the wrong guy.  But if they all match, well scientists on the stand will tell you that there is only a one in 32 billion chance that you have the wrong guy, but quite obviously that is a proposition for which there is no experimental proof.   And the statistical basis for the assumption is being called into question.  In the last decade or so, we've learned more about how genes propagate across a given population group, and how homogeneous most Human's DNA really is.  For example we are pretty confident that  99.9% of the people in the world, we now know, are descended from one small family group/tribe of 200 people that migrated out of Africa only about 50,000 years ago.(and a big chunk of the remaining .1%, the San people of the Kalihari, may be as well given some new research published in the last few months))

Add to that the fact that most crime labs are private labs working under contract to the state, and those contracts include a BONUS for each conviction the lab helps create, and you have really good reason to question almost all "forensic science-based  evidence"
 
2014-02-28 02:24:09 PM  
John Edwards better hope they don't pass a law like this to challenge civil judgments in North Carolina.
 
2014-02-28 02:29:16 PM  

Galloping Galoshes: lemonysprite: Is it really that strange? Most people here are anxious to write off several branches of science as junk and replace it with creationism. Even a dumb Texan will accidentally say something smart once in a while.

This has nothing to do with creationism.  This has already been implemented at the Federal level.

ShadowKamui: A lot of arson "science" that everyone swore by for years was actually complete garbage. The whole field was in on it, you couldn't find a real scientist

This is what it's aimed at.  The FBI used to claim it could identify which batch of bullets a particular bullet came from based.  Junk.  In fact, a lot of forensic "science" is junk, in that it's never been independently verified.  And that includes fingerprints.  It turns out that fingerprint matching is more an art than science.  Sorry to disappoint all you CSI junkies.


My comment wasn't about the article. It was about subbby's headline. There is a backwards logic to associating Texas and suspicions of junk science.
 
2014-02-28 02:32:58 PM  

Satanic_Hamster: vpb: ZAZ: Texas also lets defendants argue to the jury that evidence was illegally obtained, unlike most or all other states, and its exclusionary rule is broader than the federal rule because it includes evidence obtained in violation of statute. (Code of Criminal Procedure article 38.23.)

Generally illegally obtained evidence is not admissible in the first place.  I can see a need for this in Texas though.

I'm actually ok with letting in illegally obtained evidence, as long it's VALID evidence.  However, if evidence has been illegally obtained is used at trial there should be mandatory criminal and civil cases against those who gathered the evidence.

(civil penalties if it was an accident or technical violation, criminal if it was a knowing and deliberate violation)


That was the State of the law prior to   Mapp v. Ohio. When few states had "exclusionary laws" and the federal one was held only to apply to federal prosecutions, so fed agents that illegally obtained evidence simply handed it over to local law and let them file the case.  The theory wa that the person from whom the illegal evidence was obtained always had recourse in civil or criminal court against the cops.

The Court in that case recognized that no prosecutor is going to bring charges on behalf of a criminal against the cops, nor is any jury likely to award them any sort of real redress based on their status as a criminal.   Therefore to allow illegally seized evidence to be used at trial at any level, effectively rendered both the 4th AND 5th Amendments dead letters

(in the Mapp case BTW police broke into a woman's house falsely claiming to have a warrant to look for her boyfriend who was a fugitive.  In the course of their search, they broke the lock on a small suitcase in her basement, found a dirty magazine inside and charge he with possession of obscene materials)
 
2014-02-28 02:40:32 PM  

Baz744: 1) Persuade evangelical judges to declare biology "junk science" because it is based on evolution.

2) Invalidate convictions predicated on medical forensics because of its foundation in biological science.


Hmmm, that's close to what I was thinking.  I figured a Texan could challenge DNA evidence because the same "science" that links him to the incriminating sample also says that chimpanzees are 99% related to humans, so clearly "DNA" is just something that godless liberuls dreamed up to promote the junk science of evolution.
 
2014-02-28 02:48:06 PM  
So presumably any evidence depending on a 'lie detector' will be thrown out in future (or is it already inadmissible?)
 
2014-02-28 02:51:22 PM  
My theory is that Texas only passed it because they think *all* science is junk...
 
ZAZ [TotalFark]
2014-02-28 02:54:45 PM  
Tillmaster

According to the internet, which matches my recollection, you can't be forced to take a polygraph test in a criminal case and if you take one you will normally be able to get the evidence excluded.

They are still used for persuasive effect, like convincing the police you're innocent or the DIA investigator that you're not a security risk.
 
2014-02-28 02:58:08 PM  

Tillmaster: So presumably any evidence depending on a 'lie detector' will be thrown out in future (or is it already inadmissible?)


lie detectors are completely inadmissible in court for either side.  Have been ofr a long time
 
2014-02-28 02:58:50 PM  

Magorn: TX courts denied the "junk science" appeal and executed Willingham anyway, but even in TX that seemed a bit much for many people to stomach and Perry had to set up a blue-ribbon commission to look into (cover up wrongdoing) in the case


The blue ribbon commission actually found that there was no basis for an arson conviction. But Perry fired the head and 2 other members of the commission right before the election, so the report was delayed until after the election. The commission was going to discuss the report on 10/2/2009. Perry fired those members 2 days before that date.
 
2014-02-28 03:03:40 PM  
Good thing this law passed when it did considering that judge Cathy Cochran of the Texas Court of Criminal Appeals isn't running for reelection and she has been a leader in the area of junk science.

It wasn't that long ago that some jurisdictions in southeast Texas were using scent-lineups .... in a normal lineup the alleged victim is asked to pick the perpetrator out of a group of suspects... the scent lineup, they take a bloodhound to the scene of the crime and then take him to the suspect... then an "expert" would somehow communicate with the dog and determine if the suspect had the same "unique odor" as the crime scene.
 
2014-02-28 03:11:52 PM  
Meanwhile, no remedy for the victims of the kid who got away with killing 4 people and maiming others because of some "psychologist's" claim of "affluenza."
 
2014-02-28 03:16:43 PM  

Galloping Galoshes: namatad: how hard is this people?

1) do not talk to the police, other than to ask "Am I under arrest? Am I free to go?"
2) do not sign ANYTHING, ever

That's what all my police collegues say.  They can't understand why anyone would talk to a cop.  They also say more people have talked themselves into a conviction that ever have talked themselves out of one.


http://www.youtube.com/watch?v=08fZQWjDVKE
 
2014-02-28 03:22:20 PM  

namatad: how hard is this people?

1) do not talk to the police, other than to ask "Am I under arrest? Am I free to go?"
2) do not sign ANYTHING, ever

the police are not your friends.
the police are the devil


I dunno,  that might be good advice if the cops are asking questions like "is this your bong?"   If theyr'e asking question about somethig a bit more serious, like a dead toddler, it might behoove you to be a bit cooperative.   Unless you are guilty.
 
2014-02-28 03:23:36 PM  

dsmith42: Magorn: TX courts denied the "junk science" appeal and executed Willingham anyway, but even in TX that seemed a bit much for many people to stomach and Perry had to set up a blue-ribbon commission to look into (cover up wrongdoing) in the case

The blue ribbon commission actually found that there was no basis for an arson conviction. But Perry fired the head and 2 other members of the commission right before the election, so the report was delayed until after the election. The commission was going to discuss the report on 10/2/2009. Perry fired those members 2 days before that date.


Bullshiat.  Their report said that some flawed evidence was admitted at trial but it did not say that all the evidence was flawed and it did definitely did NOT say that the fire was not arson or that Willingham had been wrongly convicted.  There was more than enough evidence of guilt even if you ignore the flawed evidence.  Even if you taking Willingham's explanation for what happened at face value, he was napping in the back room with his 3 year old daughter Amber when she woke him up because the room filled with smoke and then he got up from the bed, ran down the hall past the room where his twin infants were sleeping and then exited the front of the house without even trying to save his three children.  Willingham never offered much explanation for the half-dozen empty bottles of charcoal lighter fluid found on the front porch.
 
2014-02-28 03:29:55 PM  
Time for this one again - science doesn't establish facts - it simply doesn't work that way.

Science is a method of investigation where you develop a theory and then use observed data to either support or modify your theory.    You can then use these scienctific theories/models to do things like design TV sets or convict someone of murder - but at no time should anyone think that science has ever made an absolute determination of anything - it just doesn't work that way.

There is also pseudo-science, which uses scientific sounding processes and terminology to support non-scienctific positions - but this doesn't sound like psuedo-science.  It sounds like just science in progress - they developed a theory, had evidence to support it, and then further evidence came along that forced them to modify their theory.

/the system works
 
2014-02-28 03:32:02 PM  
As much as I came here to echo the notion that, in Texas, all science is junk, what TFA really points out is that medicine /=science and that doctors are not scientists.

/MD/PhD farkers-- present company excepted.
 
2014-02-28 03:47:38 PM  
Galloping Galoshes:

That's what all my police collegues say.  They can't understand why anyone would talk to a cop.  They also say more people have talked themselves into a conviction that ever have talked themselves out of one.

Partial threadjack:  I have actually seem multiple people talk themselves into getting  arrested.  At least once a year we'll kick someone out of the nightclub for fighting or some other wildly inappropriate behavior and that person will stand outside and call the police to complain about us.  Cops show up, the guy (or gal) tells them what happened, and then they end up getting arrested for the assault they just confessed to.
 
2014-02-28 04:03:44 PM  

AugieDoggyDaddy: I dunno, that might be good advice if the cops are asking questions like "is this your bong?" If theyr'e asking question about somethig a bit more serious, like a dead toddler, it might behoove you to be a bit cooperative. Unless you are guilty.


No, that's exactly when you want to shut up. Because you say the wrong thing ("oh, you mean that kid in the upstairs apartment that was always crying all night?"), and suddenly they've decided they have enough circumstantial evidence and now a motive so they go after you. Never talk to the police except on the advice of your lawyer.
 
2014-02-28 04:18:37 PM  

The Beatings Will Continue Until Morale Improves: Too bad they already executed that one guy because of it. But he wasn't white so it really doesn't count..


They've got no problem executing innocent white guys either.  See Cameron Todd Willingham.
 
2014-02-28 04:44:02 PM  

rich_mitch: Galloping Galoshes:

That's what all my police collegues say.  They can't understand why anyone would talk to a cop.  They also say more people have talked themselves into a conviction that ever have talked themselves out of one.

Partial threadjack:  I have actually seem multiple people talk themselves into getting  arrested.  At least once a year we'll kick someone out of the nightclub for fighting or some other wildly inappropriate behavior and that person will stand outside and call the police to complain about us.  Cops show up, the guy (or gal) tells them what happened, and then they end up getting arrested for the assault they just confessed to.


Alcohol impairs judgement, and if you never had much to start with...
 
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