The Houston Chronicle reports that in Texas
thousands of cases are being reviewed for testimony about DNA odds that may have been given using outdated guidelines that inflated the likelihood a defendant had touched a murder weapon or another piece of evidence.
Developments in DNA technology had revolutionized the use of DNA evidence in criminal trials and had played a major role in the efforts to uncover wrongful convictions.
Although those involved in innocence litigation know that Texas has a very bad record in wrongful convictions, particularly based on DNA, in the words of Barry Scheck (a co-founder of the Innocence Project), “Texas is the only place that’s systematically trying to correct it.”
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
On June 25, 2014, the Office of the ICC Prosecutor formally established a Scientific Advisory Board to assist the Office in its investigatory and prosecutorial work. The Board will consist of sixteen forensic experts whose task will be to inform the Office of scientific and technological developments helpful to the Prosecutor’s capability to collect and analyze scientific evidence.
The establishment of the Board represents an effort by the Prosecutor’s Office to upgrade the quality of evidence it presents to ICC Pre-Trial and Trial Chambers. In recent years, scholarly commentators have criticized international courts and tribunals, including criminal courts and tribunals, for failing to require and utilize fact findings based on scientific examination.
In its October 11, 2013 Strategic Plan, the Prosecutor’s Office noted that ICC judges were requiring “higher evidentiary standards” and “more and different kinds of evidence” from the Office. In response to this demand, the Plan stated that the Office’s Investigative Division will, among other things,
enhan[ce] its capabilities to collect other forms of evidence … in particular scientific evidence [and will] validat[e] its investigative standards with a panel of international experts.
In a June 27, 2014 press release, the Prosecutor’s Office stated that
[t]he work of the Board will be crucial to the Office’s efforts, as reflected in its new Strategic Plan, to strengthen its investigative capabilities and enhance the quality of its deliverables when it comes to scientific evidence collection and analysis.
In the effort to carry out its mandate under the Rome Statute, the Prosecutor’s Office has to work with limited resources in very difficult environments. It is to be hoped that the establishment of the Scientific Advisory Board will assist the Office in the challenges it faces.
Commentators criticizing fact applications by international courts, including criminal courts and tribunals:
On February 27, 2014, the NY Appellate Division, First Department, unanimously affirmed a prior judgment entered in Bronx County of New York (Clark, D.), vacating Tyrone Hicks’ conviction for Attempted Rape in the First Degree (PL § 110/130.35) and Attempted Sodomy in the First Degree (PL § 110/130.50), based upon his presentation of DNA evidence that had been unearthed by his lawyer, Professor Adele Bernhard of New York Law School. At trial, the only evidence linking Hicks to the crime was the uncorroborated eyewitness identification by the victim. The jury rejected Hicks’ alibi defense, which consisted of testimony from his son-in-law, who claimed that Hicks was home when the attack occurred.
In 2009, Professor Bernhard, who directs the NYLS Post-Conviction Innocence Clinic, successfully obtained testing of genetic material found under the victim’s fingernails that had been collected shortly after the crime. The results of such testing concluded that there was male genetic material recovered from the victim’s fingernail scrapings that did not match the defendant’s DNA. Professor Bernhard petitioned the court to vacate Hick’s conviction based upon both the DNA results, and the likelihood that Hicks had been misidentified as the assailant.
In vacating Hicks’ conviction, the Bronx County Court concluded that a new trial was warranted under CPL § 440.10 (1) (g), since the results of the DNA testing “could not have been discovered prior to [Hicks’] trial,” and were “unquestionably material to the issues of identity” – undermining the “sole evidence connecting [Hicks] to the crime.” The court observed that “the DNA test results ruling out the defendant’s genetic profile [had] pronounced forensic value where there [was] multiple differing descriptions of the perpetrator by the sole identifying witness and no physical evidence linking the defendant to the crime.” Id. at 4. The court explained that the jury may have seen it to be “a particularly powerful piece of evidence, especially where the identity of [the] attacker was the primary issue at trial.”
The Appellate Court upheld the lower court’s decision to vacate the conviction based upon the defendant’s showing that the DNA results created a “reasonable probability that he would have obtained a more favorable verdict.” The Court also concluded that “the DNA evidence [was] material and exculpatory because it support[ed] identifying someone other than defendant as the attacker.” Notably, the Court rejected the government’s claim that the DNA results were cumulative, and not newly discovered under CPL 440.10 (g). Specifically, the Court noted that given the recent amendments to CPL 440.10, namely CPL 440.10 (1) (g-1), the defendant “no longer ha[d] to show that the results of [DNA] testing is newly discovered evidence in order to seek vacatur of a judgment of conviction.”
The Federal Bureau of Investigation has undertaken a review of convictions where FBI forensic experts may have exaggerated scientific testimony regarding hair analysis. In other words, agents may have claimed that similarities between compared hairs had much greater significance than was actually warranted by the facts. How many convictions will be overturned is unknown. The FBI is conducting the review of convictions in conjunction with the Innocence Project and the National Association of Criminal Defense Lawyers.
Read the Washington Post story.