Criminal Law Band-Aids


Houston DWI lawyer Paul Kennedy notes that Harris County DA Pat Lykos has ordered DNA testing in every case in which testing is available and relevant.

The Chronicle says:

Harris County District Attorney Pat Lykos will require prosecutors to test DNA evidence in every case where it is available and relevant to prevent miscarriages of justice such as that which led to an innocent man spending more than five years in prison.

Okay, it’ll help prevent miscarriages of justice like the one that put RR in prison for five years (RR, you’ll recall, was the distinctive-looking guy who got convicted of a child rape that — DNA evidence proved six years later — he didn’t commit). If the DNA in that case had been tested, Mr. Rachell would not have spent six years behind bars.

But miscarriages of justice come in more than one flavor. The failure of everyone involved to get the DNA in RR’s case tested was an aberration. Most cases don’t involve DNA. Most rape cases don’t involve DNA. Most child rape cases don’t involve DNA. That there was DNA to be tested in RR’s case was a curiosity.

RR would still be in prison if it weren’t for the freakish circumstance that biological material was recovered; this is how most rape trials go:

  • Complainant: He raped me.
  • Accused: No, I didn’t.
  • Prosecutor: Ladies and gentlemen of the jury, why would the complainant say it if it weren’t true?
  • Defense lawyer: Because . . .

The defense depends on the believability of the denial and the plausibility of the explanation for why the complainant is mistaken or lying.

Judge Lykos, interested in preventing miscarriages of justice, is going to have to look at more than just DNA cases. The number of miscarriages of justice that might be prevented by
testing all DNA in all cases in Harris County is pretty darn near zero.

To figure out what might drive false convictions, Judge Lykos and her assistants could look at cases in which people were convicted, but many such cases involve defendants who actually did what they were charged with. There might be more lessons in acquittals.

A defendant who goes to trial always risks conviction. How close a defendant came to being convicted can be roughly approximated with a single variable — the length of deliberations. The defendant acquitted after six minutes of jury deliberation probably wasn’t at great risk of wrongful conviction. The defendant acquitted after six hours of deliberation, however, came closer.

As a starting point, I’d like to suggest that Judge Lykos and crew look at the aggravated sexual assault trial that ended March 4th in Judge Ruben Guerrero’s 174th District Court. The accused in that case was acquitted following a trial in which the prosecutor had fought like hell to keep out of evidence the fact that the complainant (fresh out of the mental hospital and still on psych meds at the time she first made the accusation) had lied twice before about being raped by other men. The State managed to convince the judge to conceal this evidence for several days of trial, but the judge eventually changed his ruling and allowed it in after the government had rested its case. (He allowed the prosecutor to reopen, tell the jury that she had decided it should come in, and offer the evidence himself instead of having the defense reveal it, but that’s a different matter.)

The accused was represented by top Houston criminal-defense lawyer Vivian King; if it weren’t for Vivian’s persistence (Vivian got up one more time than the State and the judge could knock her down) the jury would never have learned of these allegations. It took the jury six hours to acquit as it was; had the State continued successfully to suppress the complainant’s prior lies and mental-health history, the result might very well have been different, and the accused might have wound up a convicted felon, in prison for a long time and reporting as a sex offender for the rest of his life.

If you want to figure out how a system is going to fail, you can wait for it to break and try to figure out what broke it. Or you can stress the system till cracks appear, and figure out how to relieve the stresses causing the cracks. In this case in the 174th, cracks definitely formed. It’d be a good place to start to figure out how to prevent miscarriages of justice.


0 responses to “Criminal Law Band-Aids”

  1. Why did the prosecutor fight to create a false impression that his witness was more credible than she really was? Restated, why did the prosecutor want to mislead the jury? Is winning at the HCDA’s office that important? And why won’t you tell us poor saps outside of Harris County who the prosecutor was?

  2. [Allegation about two of the participants deleted because anonymous author using fake email address. Go post on Murray’s blog with the rest of the Chronicle rejects.]

  3. Michael asks why the Da would want to make his/her witness look more credible? The answer is simple. Sex offenders are the new road to perpetual election. Convict a person of a sex offense and you’ve just bought votes, another, even more votes..

    it does matter even that several people have been exonerated from charges they were innocent of. Just so long as ‘we get another sex offender off the streets’ .. Save The Children, but reelect me too…

    So it is in the DA’s best interest to get someone convicted of a sex offense, if not, you cannot get as much funding, national acclaim for violating rights of others, and the witness cannot earn the title of ‘victim’.

    The Crusade against those accused of sex related offenses is what is going to created the class based system, similar to segregation. Elected Officials want this to happen, and it seems cops and DA’s are happy to tag along. If the system was actually trying to help, and protect innocent people, it would be individually based, where each person tried and convicted of the crime would be individually assessed for traits of re-offence that would allow law enforcement to track the dangerous ones and allow the ones with NO want to re-offend re-intergrate into society.

    I do agree with Mark. It doesn’t matter who the DA was. on this topic every stinking one of them are the same John Doe (Johnette Doe)…

  4. Great article, Mark. Lykos’ position is akin to saying “let’s not wrongfully convict anyone in cases where it can be proven that we wrongfully convicted them; short of that, all bets are off.”

  5. After reading this post, and semi-recognizing its subject matter, I feel compelled to correct some of its assertions.

    Although I am not a frequent reader of this blog, I realize that it has a point of view, and that it sometimes uses anecdotes for illustrative purposes. However, in this case, the anecdote regarding the recent (non-aggravated) sexual assault trial in the 174th District Court is factually incorrect. I know that this is due, in large part, to the fact that the happenings in the Harris County Criminal Justice Center are often like the childhood game of “Telephone”: Things tend to be altered and sensationalized in the retelling. As you were only in the courtroom for a few moments during the trial, I recognize that your assertions are based on the stories others have told. However, since your blog appears to prize logic and rationality, I believe that is is appropriate to correct these statements, and to do so in a manner that the trial’s record (if anyone ever bothers to read it) will support.

    First, I believed, and still believe, my complainant. Four other prosecutors believed my complainant. Two police officers interviewed and believed my complainant. A counselor and a therapist believed my complainant. It was appropriate to try this case.

    Yes, the complainant in the case did make prior allegations: one of molestation and one of sexual assault (rather than the “two rapes” mentioned in your blog). It should be noted that the victim never recanted these prior incidents. It was my position that these prior sexual experiences should not be litigated as part of this trial, and my position was supported by the Texas Rules of Evidence and the case law. This was not a decision made lightly; in fact, the issue and relevant law were thoroughly discussed with another felony prosecutor, a district court chief, a senior appellate attorney, and an expert in the field of child abuse cases. Furthermore, my position always allowed for the fact that if “X” happened (“X” being the introduction of some evidence that the complainant recanted or lied about whether one of the prior allegations occurred), then the prior allegations should come into evidence. Throughout the trial, “X” did not happen, and the prior allegations were appropriately kept out of evidence.

    However, after both sides rested and closed, “X” happened at 5:00 on a Friday afternoon during one of the Defense’s bills of exception. At the conclusion of the bill of exception, I immediately stated on the record that I would consult with my office’s appellate division, but that I believed “X” had occurred. Over the weekend, I contacted one of the defense attorneys and explained that the State believed that the door was opened to the prior allegations and that the State would join the Defense in a motion to reopen the case. I also explained to the defense attorney the reason that the State should go first: The Defense was seeking to put on impeachment evidence, but could not do so without putting the complainant on the stand first. Furthermore, the complainant could not be put on the stand for the sole purpose of impeachment. Therefore, it seemed reasonable for the State to call the complainant, put the prior allegations out there for the jury to see, and then let the Defense impeach the witness. I understand that the Defense might not have agreed with this position, but there was not a legal argument supporting the contrary position.

    I also disagree with the impression you leave regarding the complainant’s mental health. However, due to the sensitive nature of the subject, I do not think that this is the appropriate forum to discuss this matter. I will simply state that the issues the complainant dealt with are the same things that probably plague half of the people in the courthouse (attorneys included), albeit, to a greater degree. I did not have qualms about letting the jury hear about the complainant’s mental health, however, (prior to the reopening of the case) I did believe that the medical records should be redacted to comply with the Motion in Limine, obviously a sticking point in the case.

    Clearly the State and Defense did not agree on the facts, the law, and the application of the law to the facts, but that’s alright: This is why we have trials and motions to suppress. This is why we have bills of exception and, in the event of a conviction, the remedy of appeal. Each side fought hard for their respective positions, and there is something noble in that. In fact, while the jury was out deliberating, Ms. King approached me and asked me if “we could be like men” when the trial was over and leave our differences and disagreements in the courtroom. I would like to think that we can, and that we will, and that someday these rumors will seem as inconsequential as a game of Telephone.

  6. . . . and, Michael, that is why I won’t tell you poor saps outside Harris County who the prosecutor was: because there are two sides to every story, and I wasn’t there.

    Thanks, prosecutor, for the other side.

  7. A witness can be REcalled for purposes of impeachment only; as a matter of fact, that happens routinely. This witness had already testified. I participated in one trial where the CW was recalled four times by the defense, for different impeachment purposes each time! So the claim that there is no legal argument for allowing Vivian to have recalled the CW is absolutely false. There is no legal argument that the witness could not be recalled for purposes of impeachment.

    Clearly, the State wanted to appear to have been taking the high road — even if it meant misleading, or even lying to the jury. Fortunately, the jury saw through those smokescreens.

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