Criminal Law Band-Aids

 Posted on March 12,2009 in Uncategorized

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:

1. Complainant: He raped me.

2. Accused: No, I didn't.

3. Prosecutor: Ladies and gentlemen of the jury, why would the complainant say it if it weren't true?

4. 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 bytesting 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.