Green Defense Mandamus Brief

8/8/2019 Green Defense Mandamus Brief

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Nos. WR-75,015-01, WR-75,015-02

In the

COURT OF CRIMINAL APPEALS OF TEXAS

______________________________________________

In re THE STATE OF TEXASEX REL. PATRICIA R. LYKOS

Relator,

v.

HON. KEVIN FINE, PRESIDING JUDGE,177 DISTRICT COURT OF TEXAS,TH

Respondent.

______________________________________________

R EAL P ARTY IN I NTEREST J OHN E DWARD G REEN S

S ECOND B RIEF IN O PPOSITION TO M OTION FOR L EAVE

TO F ILE P ETITION FOR W RIT OF P ROHIBITION AND

P ETITION FOR W RIT OF M ANDAMUS

Richard Burr John P. Keirnan Robert K. Loper SBN 24001005 SBN 11184700 SBN 124562300PO Box 525 917 Franklin St., Ste 550 111 W. 15 Streetth

Leggett, TX 77350 Houston, TX 77002 Houston, TX 77008713-628-3391 713-236-9700 713-880-9000713-893-2500 (fax) 713-236-1802 (fax) 713-869-9912 (fax)

Counsel for Real Party in Interest, John Edward Green


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Table of Contents

Introduction and Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. M R . GREEN S CLAIM IS THE K IND OF CLAIM THAT THIS COURT HAS HELD CAN BEA VIABLE CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. T HE EVIDENCE GREEN HAS BEGUN TO PRESENT AND W ILL CONTINUE TO PRESENTIF HE IS ALLOWED TO R ESUME THE HEARING BEFORE THE TRIAL COURT ISR ELEVANT TO HIS CLAIM THAT THE DEATH PENALTY STATUTE AS APPLIED TOHIS CASE CREATES AN U NACCEPTABLE R ISK OF WRONGFUL CONVICTION . . . . . . . . . . . 6

A. The evidence presented thus far . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. The prosecutions case against Mr. Green . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Testimony from two different data collections about wrongfulconvictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Testimony concerning eyewitness identification, the lack of discovery, and a Texas legislative response to the concern aboutwrongful convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. Testimony concerning the use of informants as prosecutionwitnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. Evidence yet to be presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

III. T HE QUESTION PRESENTED BY MR . GREEN R EQUIRES A W IDE -R ANGINGEXPLORATION OF EVIDENCE TO ASSIST THE COURT IN DECIDING THE ISSUEPRESENTED BY THE PARTICULAR CIRCUMSTANCES OF MR . GREEN S CASE , ANDTHE EXPLORATION OF THIS EVIDENCE IS SQUARELY W ITHIN THE COURT S POWER AND DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35


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Table of Authorities

Cases

Atkins v. Virginia , 536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Buntion v. Harmon , 827 S.W.2d 945 (Tex.Crim.App 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Curry v. Wilson , 853 S.W.2d 40 (Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . 21

Morrow v. Corbin , 62 S.W.2d 641 (Tex. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Roper v. Simmons , 543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Scheanette v. State , 144 S.W.3d 503 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

State ex rel. Hill v. Fifth Court of Appeals , 34 S.W.3d 924 (Tex.Crim.App. 2001) . . . . . . . . . . . 1

State v. Patrick , 86 S.W.3d 592 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Trop v. Dulles , 356 U.S. 86 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

White v. Reiter , 640 S.W.2d 586 (Tex.Crim.App. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Woodson v. North Carolina , 428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33

Wright v. West , 505 U.S. 277 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Treatises and Articles

Alexandra Natapoff, Snitching (New York University Press 2009) . . . . . . . . . . . . . . . . . . . . . . 22

Bikl, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action , 38 Harv. L. Rev. 6 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


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Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011) (in press) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Chang Su, et al., Evaluation of Rarity of Fingerprints in Forensics , Proceedings of NeuralInformation Processing Systems, Vancouver, Canada, December 6-9, 2010 . . . . . . . . . . . . . . . 28

I.E. Dror, et al., Cognitive issues in fingerprint analysis: Inter- and intra-expert consistencyand the effect of a target comparison , Forensic Sci. Int. (2010) (in press) . . . . . . . . . . . . . . . . 28

National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


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Introduction and Statement of the Case

The Court is reconsidering its denial of Harris County District Attorney Patricia Lykos

motion for leave to file Petitions for Writ of Mandamus and Prohibition seeking to preclude the

trial court from continuing the evidentiary hearing on, and further entertaining, John Edward

Greens Amended Motion to Declare Article 37.071, 2 of the Texas Code of Criminal

Procedure Unconstitutional as Applied. To prevail, Lykos must meet two requirements: First,

she must have a clear and indisputable right to the relief sought. Second, she must have no other

available legal remedy to complain about the action the court at issue is taking. State v. Patrick ,

86 S.W.3d 592, 594 (Tex.Crim.App. 2002) (mandamus); State ex rel. Hill v. Fifth Court of

Appeals , 34 S.W.3d 924, 927 (Tex.Crim.App. 2001) (mandamus); Curry v. Wilson , 853 S.W.2d

40, 43-44 (Tex.Crim.App. 1993) (prohibition); Buntion v. Harmon , 827 S.W.2d 945, 947

(Tex.Crim.App 1992) (prohibition).

We argued in Greens Brief in Opposition to Motion for Leave to File Petition for Writ of

Prohibition and Petition for Writ of Mandamus, filed November 23, 2010, that Lykos meets

neither of these requirements. In response, the Court denied leave to file the petitions. The

Courts order did not mention whether, in its view, Lykos met the second requirement for

mandamus and prohibition whether she had any other available legal remedy but instead

focused entirely on whether she had a clear and indisputable right to relief. As to this matter, the

Court wrote the following:

According to relator, during the hearing, [r]espondent is to preside over thelitigation of the actual innocence of a Texas capital murder defendant [who] has

been executed. The substance of the evidentiary hearing is to provide the basis for the [r]espondents ruling on the defense motion to hold the Texas death penaltyunconstitutional.

According to the title of his amended motion, the defendant is challenging the


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constitutionality of Article 11.071 as it applies to him in his situation. In Paredesv. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004), Paredes made a similar challenge to the constitutionality of Texas Code of Criminal Procedure Article37.071. In our opinion, we recognized that while the execution of an innocent

person would violate due process, the risk that another person who may be

innocent will be executed does not violate appellants due process rights. Thus,it appears that much of the evidence respondent seems to want presented at thishearing is not relevant to the question at issue. However, because we cannotknow whether relevant evidence will be presented, we find that relator's requestthat this Court order respondent to withdraw his order setting a hearing is

premature and currently without a basis.

Order, at 2, State of Texas ex rel. Lykos v. Fine , Nos. WR-75,015-01, WR-75,015-02 (November

29, 2010) [hereafter, November 29 Order].

The evidentiary hearing on Greens Amended Motion commenced on December 6, and

continued through December 7, 2010. On December 7, Lykos asked the Court to reconsider on

its own motion the November 29 Order. At the end of the day on December 7, the Court agreed

to reconsider its order and stayed further proceedings in the District Court pending its decision in

this matter.

As we demonstrate in this brief, the pending motion and ongoing hearing before the

District Court do not present the issue Lykos says they present. Rather they present the very kind

of issue that this Court suggested in Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App.

2004), and later acknowledged in Scheanette v. State , 144 S.W.3d 503, 505-06 (Tex.Crim.App.

2004), could state a claim under the Due Process Clause of the Fourteenth Amendment and the

Eighth Amendment to the United States Constitution. The argument and evidence thus far

presented before the District Court establish this very point. Together, they demonstrate

indisputably that Green claims he is innocent and that, because of the nature of the evidence

against him and the procedures by which his case will be tried and subsequently reviewed, he


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faces a substantial risk of being convicted and executed despite his innocence. Green does not

rest his claim on the execution of one or more innocent people in Texas. He does intend to show

that two innocent people, who between them faced the same kind of evidence he faces fraught

with the risk of unreliability have been executed in Texas. However, he will present this

evidence solely for the purpose of demonstrating that the risk to him of wrongful conviction and

execution accruing solely because of the nature of the evidence against him and the procedures

governing his case is starkly real and not merely theoretical. For these reasons, the Court

should deny Lykos leave to file her mandamus and prohibition petitions and allow the District

Court to proceed to hear the evidence that is both relevant and necessary to a full and fair

decision on Greens Amended Motion.

Argument

I. M R . G REEN S C LAIM IS THE K IND OF C LAIM T HAT THIS C OURT H AS H ELD C AN BE AV IABLE C LAIM

The claim that the Court considered in Paredes was this:

[A]ppellant claims that the death-penalty statute is unconstitutional because itviolates the Due Process Clause of the Fifth and Fourteenth Amendments to theUnited States Constitution. Appellant argues that the risk of executing innocent

persons and the long delays in uncovering evidence of innocence, often only possible with the benefit of newly developed scientific techniques such as DNAtesting, compels a conclusion that our death-penalty statute violates due process.Appellant refers to reports, case studies, and court cases documenting theexoneration of actually innocent death row inmates.

129 S.W.3d at 540. The Court decided that this claim was without merit for the following

reason:

While execution of an innocent person would violate due process, the risk thatanother person who may be innocent will be executed does not violate appellant'sdue process rights. Appellant does not claim that he is innocent, and therefore


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As we demonstrated in Mr. Greens Brief in Oppo sition to M otion for Leave to File Petition for Writ of 1

Prohibition and Petition for Writ of Mandamus, filed November 23, 2010, his claim is also viable under relevantSupreme Court precedent. Id . at 8-15 (explaining that the claim is rooted in the Supreme Co urts jurisprudencesafeguarding capital defendants against the risk of unreliable determinations by juries in both the guilt-innocence and

penalty phases of capital cases, and demonstrating that the Supreme Court has no t held, as argued by Lyko s, that therisk of wrongful conviction in a capital case can never be so great as to violate the Eighth Amendment).

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complaining, precisely, about how [the] operation of [the death penalty] statute [i]s

unconstitutional as applied to [him] in his particular situation. Paredes , 129 S.W.3d at 540

(parenthetical concerning Cantu v. State ). As undersigned counsel explained at the opening of

the hearing before Judge Fine,

Your Honor, none of the claims described by [Assistant District Attorney] Curryare the claim we present. The claim that we present has not been decided by theU.S. Supreme Court. It is based entirely on the Courts jurisprudence since 1972which has a tremendous concern about the risk of unreliable decision making.Much of that risk has been focused on the penalty decision[]. But in Beck versus

Alabama , the Court made it very clear that the risk of an unreliable guilt phasedetermination is just as much a concern under the Eighth Amendment. Its aheightened risk. Its different from the risk in any noncapital case because of the

consequences of the capital conviction and sentence.

Thats the starting point. Mr. Green is at risk because he has pled not guilty. Hehas maintained his innocence, and he is innocent. He is at risk for a wrongfulconviction. The Eighth Amendment is concerned about that in a capital case morethan it is in any other context. The Supreme Court has made that clear time andtime again. Thats why this is an Eighth Amendment claim. The fact that other

people have been convicted, condemned and executed and in subsequent light of new evidence appear to be wrongfully convicted is a part of [the] relevantevidence in this case, but its not Mr. Green's claim. His claim [is] that as he sitshere today presumed innocent and actually innocent and facing evidence that isfraught with the possibility of mistake, he is at risk for a wrongful conviction anda wrongful sentence and a wrongful execution.

Reporters Record, Volume 2 [hereafter, RR 2], at 17-18, State v. Green , No. 1170853 (177 th

District Court).

Accordingly, Greens claim is viable as a matter of law under Paredes and Scheanette .1


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II. T HE E VIDENCE G REEN H AS BEGUN TO PRESENT AND W ILL C ONTINUE TO PRESENT IFH E IS ALLOWED TO R ESUME THE H EARING BEFORE THE T RIAL C OURT IS R ELEVANTTO H IS C LAIM T HAT THE DEATH PENALTY STATUTE AS APPLIED TO H IS C ASEC REATES AN UNACCEPTABLE R ISK OF W RONGFUL C ONVICTION

This Courts November 29 Order observed that if the hearing below were to focus

entirely or primarily on what the District Attorney claimed it would the actual innocence of a

Texas capital murder defendant [who] has been executed then this evidence would not [be]

relevant to the question at issue, because Green is challenging the constitutionality of Article

11.071 as it applies to him in his situation . November 29 Order, at 2 (emphasis supplied). Mr.

Green agrees with this, and the record of the hearing demonstrates his agreement, because the

evidence Green has presented and will continue to present applies to him in his situation.

Defense counsels preview of the evidence for the trial court demonstrated this explicitly:

Let me let me talk about why this case is about John Green and what he thecharges he faces and the procedure that is coming for him unless the Courtdeclares the death penalty unavailable in this case.

Because that is the heart of the case. Thats where the risk arises and its how therisk has to be judged. If we dont if we dont persuade you that there is asubstantial risk right now today of the wrongful conviction of this young man, welose. Plain and simple, we lose.

Our job is to present to you the case that he stands here today in substantial risk of being wrongfully convicted, wrongfully sentenced to death and later put to death.Thats our burden and we gladly take it on. Im sorry that the State doesnt seethis as a serious enough issue to stand in here and try get to the bottom of this. Ithink thats unfortunate.

But let me talk about the substantial risk for this young man. The case againsthim rests, as we understand it today, rests on three prongs. There is an eyewitnessidentification that we submit is a misidentification. There is a palm print, a partial

palm print from the door of the vehicle on the side of the vehicle where theinjured but surviving victim of the crime was, and there is informant there areinformant statements and presumably will be informant testimony. Byinformants, that is[,] people who are providing information in an exchange for


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some benefit to themselves.

Thats the case against Mr. Green. He made no inculpatory statement. There isno other evidence that we know of so far against him. We will present witnessesover the course of the next few days who will help the Court understand and see

and find, we believe, that each of these areas of evidence as they are particularlyconstituted in Mr. Green's case present a substantial risk of wrongful conviction.Each of these kinds of evidence [is] highly correlated with wrongful convictionsthat have been studied across the United States and in Texas. They are they aretremendous risk factors in and of themselves. Nestled into the factual context of this case, they are extremely relevant. We will demonstrate that to you. That's theheart of this case.

We will demonstrate[,] again[,] to show that this is a deadly risk that Mr. Greenfaces[,] that in the cases of two men who have been executed, Todd Willinghamand Claude Jones, together these same three risk factors were in their cases.

There was, in Mr. Willinghams case, informant testimony. There was forensicscience which has turned out to be flawed, as we think the fingerprint evidencehere, palm print evidence[,] will turn out to be flawed here. And in Claude Jonescase, it was an eyewitness misidentification. We have all three of those factorsthat this young man faces. Those two factors in Willingham and one factor inClaude Jones case, we believe we can show led to their wrongful conviction andsubsequent executions. Were not putting forward that evidence as evidence that

by itself is why Mr. Green should get relief. He shouldnt. Were putting thatforward to simply show the Court that the risk were talking about that accruesfrom these evidentiary factors is tremendous and is of a nightmare proportion.

You know, in the in the law we talk about prejudice and harm. The showingabout Willingham and Jones will be about the ultimate kind of prejudice and harmthat can come from a wrongful conviction.

What the Eighth Amendment is concerned about is the risk of a wrongfulconviction so great that something should be done to ameliorate that in a

particular case, and thats our claim.

RR 2, at 25-28.

In addition to the risk of wrongful conviction created by the prosecutions evidence

against Mr. Green, counsel explained,

There there are some other procedures that put Mr. Green at risk. Ivementioned the three evidentiary factors that he faces in the State's case against


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him. There are other there are procedural matters which are not unique to hiscase but which are procedures that are followed in capital cases here in HarrisCounty that [also] put him at risk or add to the risk.

RR 2, at 37.

The procedural factors noted by counsel for Green include the lack of complete

disclosure by the District Attorney of their files. Id . The defense will present evidence about

... inadequate discovery procedures generally contributing to wrongful convictions. Id . Because

of this, theres no full assessment of the weaknesses in the evidence, there's no full assessment

by everybody of the case against Mr. Green. Id .

These procedural factors also include the consequences of the process of death-qualifying

the jury in a capital case, which allows [prospective] jurors to be taken off for cause ... if they

cannot give fair and adequate consideration to death as a possible punishment. RR 2, at 38.

Counsel explained that the evidence will demonstrate that there are two relevant consequences of

the death qualification process. Id . One is[,] those who are left and sit on the jury are people

who tend to be biased toward conviction. Id . The other is that death qualification

communicates to prospective jurors that the person[] [is] guilty, that theres going to be a penalty

phase and thats the thing that everybody is concerned about so this guy must be guilty.... [This]

process ... distorts the fairness of the fact finding in guilt/innocence. RR 2, at 38-39.

Counsel explained that a third procedural factor adding to the risk of wrongful conviction

comes from the long history in the District Attorneys office of making ... racially based

peremptory challenges to prospective jurors. RR 2, at 39. The concern is that the Harris County

District Attorney has become adept at exercising racially-motivated peremptory strikes without

that motivation being exposed and precluded under Batson v. Kentucky , 476 U.S. 79 (1986), and


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A. The evidence presented thus far

1. The prosecutions case against Mr. Green

In the two days of evidence following the defense opening statement, counsel for Mr.

Green began to put on the case we told the court we would present. We called six witnesses.

Two, Brian Benken and Jim Willis, were Greens investigators and were called to establish the

facts of the offense and the nature of the prosecution case against Green. Benken established that

the crime with which Green is charged involved the armed robbery and shooting of two

Vietnamese women, Houng Thien Nguyen and her sister, My Houng Nguyen, as they were

sitting in their car in the driveway of Thiens home with her two young children at 1:00 or 1:30

am on June 8, 2008, after returning from a family reunion. RR 3, at 53-54. The assailant came

up to the passenger side of the car and demanded Mys purse and other valuables. RR 3, at 53.

Before she could comply, the assailant shot her twice with a pistol. Id . The assailant then went

to the drivers side of the car. RR 3, at 53-54. Thien opened the door and threw her purse out,

then closed the door. RR 3, at 54. The assailant then shot Thien though the door, ran away, and

got into a minivan and drove away. Id . Thien died, but My survived. RR 3, at 53-54. The

children, sitting in the back seat, were not shot or otherwise assaulted.

Benken testified that two descriptions were given of the assailant: one by Thiens

husband, who witnessed the incident from an upstairs window of their home, and one by My.

RR 3, at 56, 57-58. Thiens husband described the assailant as 5'9" and approximately 170

pounds. RR 3, at 56. My described him as a black male, 5'4", thin, and in his mid-30's, and

apparently also helped make a sketch of the assailant. RR 3, at 57-58.

Benken also testified that My Houng Nguyen was shown a six-person photo spread,


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Defendants Exhibit 11, on June 12, 2008, while she was still in the hospital recovering from her

wounds. RR 3, at 58. The spread included a photograph of Mr. Green when he was younger; Ms.

Nguyen identified Mr. Green as the assailant. RR 3, at 61.

Finally, Benken testified that five latent fingerprints were lifted from Thiens car. RR 3,

at 62. The Houston Police Department fingerprint examiner determined that there were

insufficient discernible characteristics in these prints to allow comparison. RR 3,at 63. The

District Attorney then engaged the firm in Mississippi which was involved in the examination of

fingerprints instead of the Houston Police Department crime lab when the crime lab was being

audited for unreliable procedures. That firm determined that one of the latent prints could be

compared and that it matched Greens left thumb and palm. RR 3, at 63-65.

Jim Willis testified that two or three informants had also provided information to the

police and prosecution. One, Kirk Felton, told the police, as he and his brother Kelly were being

arrested for an unrelated crime, that he had information that tied Green to the shooting of the

Nguyens. RR 3, at 75-76. The police then allowed Kirk Felton to go to the location where he

said the gun used in the crime was located, and he produced the gun. RR 3, at 76-77. Willis

testified that it appeared that both brothers were provided compensation in exchange for this

information, because both were released from jail soon after the gun was found. Id . Willis also

testified that a jailhouse informant, Brandon Zenon, told the police that Green made

incriminating statements to him. RR 3, at 72. Zenon was in jail for a felony probation violation

on a family violence charge and expects some form of benefit for his assistance to the

prosecution. RR 3, at 74-75.


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2. Testimony from two different data collections about wrongfulconvictions

In addition to setting out the facts of the prosecutions case against Mr. Green, counsel for

Green began to present evidence concerning the causes of wrongful conviction and how that

information related to Greens risk of wrongful conviction. Two witnesses, Richard Dieter and

Brandon Garrett, provided perspective on what is known about wrongful convictions on the basis

of two different collections of data concerning cases of wrongful conviction. Two other

witnesses, Sandra Thompson and Alexandra Natapoff, provided more in-depth information about

two of the evidentiary risk factors in Mr. Greens case, eyewitness identifications and informant

testimony. Because of this Courts stay order, no other witnesses were presented on behalf of

Mr. Green. A review of these four witnesses testimony demonstrates that they provided

evidence relevant to the risk of wrongful conviction in the circumstances of Mr. Greens case.

Richard Dieter is the director of the Death Penalty Information Center in Washington,

DC. The Death Penalty Information Center, or DPIC, is a nonprofit organization that does

research and reports on issues related to capital punishment. RR 2, at 54. It make[s]

information available to the public through reports, through contacts with the media, through the

Internet and any other way to help inform the public, educate the public about some of the

problems with the death penalty. Id . at 54-55. In 1993, a Congressman on the House Judiciary

Committee asked DPIC for a report on the risks of innocent people being executed in capital

cases. Id . at 58. DPIC came to the conclusion that the best way to examine this question would

be to look at mistakes, wrongful convictions, people who actually were eventually exonerated

and freed from Death Row as examples of the kind of cases that might exist.... Id . DPIC


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DPIC lists a case as an exoneration if a person [i]s convicted and then through a court that conviction is2

overturned and then the charges against the person are dismissed either through an acquittal at a retrial or through theState dismissing all charges. Id .

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identified 48 case of death row exonerations and reported that information to Congress. Id . at 59.

Because of the continuing public interest in this question, DPIC continued to collect data

concerning death row exonerations. The number of such cases has now grown from 48 in 1993

to 138 in 2010. Id .2

While DPIC does not make a systematic effort to discern the causes of wrongful

conviction in the exonerees cases, Mr. Dieter is familiar with the various national studies of

exonerees in both capital and non-capital cases. The research shows the following about the

causes of wrongful conviction:

[T]he one which gets the highest percentage is mistaken eyewitness identification.Then there are other examples of scientific evidence that was faulty. Theresinformant testimony that was unreliable. There is the new information that hadnt

been handed over in the first place and theres even false confessions bydefendants in cases.

Id . at 71.

When asked, on the basis of his knowledge of the data on exonerations, to assess the

continuing risk of wrongful conviction in cases in which death sentences are imposed, Mr. Dieter

responded that he believed the risk still existed. Explaining, he noted that since the beginning of

his collection of data there has been a fairly constant ratio between the number of executions and

exonerations:

138 of these cases that have been found is a large number. One thing to compareit with is the number [o]f executions that have occurred during this same time.Theres been something, like, 1,233 executions in the time that theres been 138exonerations. And so being careful not to say that its from those cases [wherethere has been an execution] we find the mistakes, but just as a ratio for every nine


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executions that occur, there has been one exoneration found[,]... it does give ... asense of the gravity of the problem and that ratio, nine executions, and thenanother exoneration has remained steady throughout our ... research.... So I wouldsay the risk is still there.

Id . at 80-81. He also noted that fortuity has played a major role in many exonerations:

I observe the system as closely as I can and it causes me concern that thesemistakes, these exonerations so often are the result of unusual or fortuitouscircumstances. Its ... a concern that as far as the system working, clearly the trialsystem did not work in any of these 138 cases. Then we get to the appellate

process where ... the burden shifts and it takes extraordinary effort to be able toget a reversal and to get an ultimate exoneration in a case and sometimes that's theresult of a number of attorneys in a high-powered law firm donating thousands of hours equivalent to millions of dollars just to reinvestigate the case and they wereable to win the exoneration, but that certainly is not applied to the 3,300 people

on Death Row today. In some cases, its been the work of outside people like journalism students who happen to have time on their hands and were assignedthe case merely because the defendant got a stay to look at some mental healthissues.... So what I would conclude is that a lot of these exonerations were due tofortuitous circumstances....

Id . at 77-78.

The other person who has testified thus far about the causes of wrongful conviction based

on the study of cases of wrongful conviction is Brandon Garrett, a professor of law at the

University of Virginia School of Law. RR 4, at 23. Before he became a law professor, Mr.

Garrett represented several people who had been exonerated by DNA analysis, and he began to

wonder whether the cases that I had worked on were representative of a larger problem or

whether they were unusual accidents. Id . at 25. As he conducted his initial research, he began

to realize there wasnt enough data on DNA exonerations and wrongful convictions for me to

answer some of the basic questions that I had. And so, I started a project of trying to assemble as

much data as I could about these known DNA exoneration cases. Id . at 25-26. The result was


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Professor Garrett described his criteria for counting a case as a DN A exoneration in terms similar Mr.3

Dieter: An[] exoneration[] occurs if the judge, after hearing new evidence of innocence, vacates the conviction andthere is no retrial or there is an acquittal at a new trial or if the governor g rants a pardon, all on the basis of that newevidence of innocence. A DNA exoneration, as opposed to an exoneration not necessarily involving DNA, is onesubstantially based on post-conviction DN A testing. That's the definition I have used in my research. RR 4, at 31-32 .

Professor Garrett noted that, since February, 2010, there have been ten more D NA-based exonerations,4

raising the total to 260. RR 4, at 28.

40 of the 250 cases Professor Garrett studied are from Texas. RR 4, at 30. The Timothy Cole Advisory5

Panel on W rongful Convictions, established by the Legislature in 2009, examined the first 39 of these cases andfound that 85% of the Texas cases had eyewitness identifications, 46% had faulty or unreliable forensic evidence,and 13% had informant testimony and false confessions. Defendants Exhibit 10, at 3.

15

an in-depth study of the first 250 DNA exoneration cases, a series of law journal articles based3

on this study, and a book forthcoming from Harvard University Press about the study, Convicting

the Innocent: Where Criminal Prosecutions Go Wrong , based on data from these exonerations,

from 1989 through February, 2010. Id . 38-40.4

To conduct his study, Professor Garrett attempted to collect the trial transcripts from all

the cases that had gone to trial (as opposed to a plea of guilty). Id . at 42. He was able to get

transcripts in 207 of the 234 trial cases. For all 250 cases, he collected all the available judicial

opinions. Id . The most frequent crime of conviction was rape, 68% of the cases, while rape-

murders comprised 21%, and murder 9%. Defendants Exhibit 16 [hereafter DX 16], at slide 8.

The evidence supporting the convictions in these cases was eyewitness identification, in 76% of

the cases, forensic evidence, in 74% of the cases, informant testimony, in 21% of the cases, and

confessions, in 16% of the cases. RR 4, at 46-47; DX 16, at slide 14. 5

Professor Garretts methodology in analyzing the evidence in the cases was the following:

For each type of evidence, I wanted to go back and examine, to the extent possible, from the trial transcripts what went wrong. And I wanted to see whether the trial transcripts concerning eyewitnesses reflected the use of soundidentification procedures, or on the other hand the use of suggestive identification


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In 88% of the cases involving eyewitness testimony, the testimony revealed that the identification was6

unreliable or based on suggestive procedures. DX 16, at slide 33.

16

procedures. I wanted to see whether other aspects of eyewitness identificationsshould have suggested problems at the time or whether they did not suggest

problems at the time.

Similarly, I wanted to know whether the forensic testimony at the time suggested

problems or whether it was just that the technology at the time wasnt as good asthe technology we have now.

With the jailhouse informants and the confessions, I was interested in whether these innocent people had supposedly admitted details about the crime that onlythe perpetrator could have known since now that we know theyre innocent, weknow they couldnt have independently had knowledge of those inside crimescene details. So, I wondered whether these cases seemed powerful at the time,

but whether we might now suspect that the evidence had been contaminated.

RR 4, at 48-49. As to each of the three kinds of evidence involved in the case against Mr. Green

eyewitness identification, forensic evidence, and informant testimony Professor Garrett found

substantial reasons for the evidence leading to wrongful convictions.

With respect to eyewitness testimony,

the vast majority of these eyewitness[es] made identifications based on[6]

procedures that are now known to be suggestive. And these were also eyewitnesswho although certain at trial had expressed early [un]certainty or they hadidentified other people, or fillers for example, or they had admitted they couldnteven see their attackers face. And so, there was stark evidence at the time of trialof both suggestion and uncertain[t]y or unreliability, nevertheless, theseidentifications were admitted and supported these erroneous convictions.

RR 4, at 50. Another well-established source of unreliability in eyewitness identifications arises

when the perpetrator and the eyewitness are different races. Id . at 36-37, 71. Professor Garrett

found that the unreliability associated with cross-racial identifications explains the greater

proportion of African Americans, 62%, in the population of DNA exonerees, than is in the

population of persons convicted of rape, which is only 40%. Id .; DX 16, slide 9.


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With respect to forensic evidence, Professor Garrett found that in half of all the

exonerees cases, the forensic evidence was invalid, unreliable, vague or erroneous. DX 16, slide

49. Professor Garrett explained that unreliability infects all the forensic sciences except for DNA

typing including, as in Mr. Greens case, fingerprint comparison:

[A]s the National Academy of Sciences concluded in its landmark report from lastyear, there is no method aside from DNA typing that can reliably individualizeevidence and point to a particular individual person with any reliability. And so,for most of the techniques used in these cases, ... we don't know what frequency of the population shares certain hair characteristics or bite characteristics or what

percent has shoes that wear in a certain way, or even fingerprints with particular patterns. The underlying empirical research hasnt been done. And the limitedevidence that we have suggest that there are serious error rates using those kinds

of subjective comparisons where analysts can and do disagree about conclusionssince their analysis is ultimately subjective and based on their experience andlooking and comparing such objects.

Id . at 74-75.

With respect to informant testimony, Professor Garrett found as follows:

These informants claim that the defendants knew things about the crime and hadadmitted to things about the crime that only ... the true perpetrator could haveknown. So, you have the situation where the prosecutor would say: Look, this isa liar, this is a jailhouse informant, this is a person with a terrible record, but weknow this person is telling the truth in this case because the story that he says thatthis defendant told matches the crime scene evidence.

We now know that these innocent people couldnt have known how the crimehappened. And so, somehow these informant statements must have beencontaminated. All but two of the jailhouse informants said that the defendant said

admitted their guilt in some detail, and so making their testimony seem reliableand corroborated at the time, whereas we now know either they found out aboutthose details from police or prosecutors or through some kind of a jailhousenetwork or some other source. We don't know exactly how it happened. All weknow is that at trial they claim that the defendants admitted in detail. We nowknow that these innocent people couldnt have known these details. Often policeand prosecutors were quite clear that these details about how the crime happenedwere carefully blacked out and not made public precisely to avoid contamination,which we now know is likely to have occurred.


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Id . at 83-84.

Relevant to Mr. Greens argument that the post-conviction review process does not catch

wrongful convictions, Professor Garrett also examined what happened during the appeals and

post-conviction process before the DNA testing. Id . at 89. He found

that the post-conviction process did not effectively screen innocence in thesecases. And, in fact, fairly consistently courts would deny relief, saying theresevidence that we think these people are guilty.... Very few of the people whoattacked the evidence that we now know to have been flawed had any success.

Id . at 90-91.

Finally, counsel asked Professor Garrett whether the flawed evidence that contributed to

the wrongful convictions in the DNA exoneration cases which were mostly rape cases could

be expected to play a similar role in capital cases, where the Eighth Amendment requires greater

reliability. Professor Garrett responded,

[U]nfortunately, in capital cases, courts do not conduct an inquiry that is anydifferent when they evaluate forensics or eyewitness testimony or informanttestimony. The standards for admitting that evidence are the same in all criminalcases. So, there is no heightened reliability inquiry.... Nor is the harmless error test or prejudice test for Brady and Strickland claims any different incapital cases as opposed to other cases. So, theres no reason to think that in death

penalty cases post-conviction courts would do a better job of evaluating trialevidence, and certainly police departments dont use sound ... eyewitnessidentification procedures at the outset in capital cases, nor do they pay closer attention to the validity of the conclusions that they reach when they conductforensic analysis in a capital case.

So, these same problems would be expected to occur in any case where invalidforensics or unreliable forensics are presented, or in any case where there isntcareful documentation of informant testimony and scrutiny of their reliability, or any case where suggestive eyewitness identification procedures are used.

Id . at 93-94.


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The Co le Advisory Panel was established by the Legislature with the following mission:7

(d) The Task Force on Indigent Defense, with the advice and assistance of the advisory panel, shall conduct a study regarding:

(1) the causes of wrongful convictions;(2) procedures and programs that may be implemented to prevent future

wrongful convictions;(3) the effects of state law on wrongful convictions as determined based on state

statutes regarding eyewitness identification proced ures, the recording of custodialinterrogations, post-conviction DNA testing, and writs of habeas corpus based on r elevantscientific evidence; and

(4) whether the creation of an innocence commission to investigate wrongfulconvictions would be appropriate.

Defendants Exhibit 9, section 1(d).

19

3. Testimony concerning eyewitness identification, the lack of discovery,and a Texas legislative response to the concern about wrongfulconvictions

Sandra Guerra Thompson is a chaired faculty member of the University of Houston Law

Center and the director of the Criminal Justice Institute. RR 3, at 8. She is a nationally

recognized legal scholar on eyewitness identifications, and has published four articles on

eyewitness identification and is working on a fifth. Id . at 9. Because of her expertise in

eyewitness identification, she was nominated by the deans of the public law schools in Texas to

serve on, and was appointed to, the Timothy Cole Advisory Panel on Wrongful Convictions. Id .

at 9-10. Professor Thompson testified about the unreliability of eyewitness identifications, the7

reforms that can reduce their unreliability, the need to require fuller discovery by prosecutors

statewide, and the recommendations made by the Cole Advisory Panel.

Professor Thompson was asked whether, on the basis of her research, eyewitness

identifications were reliable or unreliable. Id . 20. She responded, [A] lot of my research

focuses in particular on violent crimes, that are stranger-on-stranger crimes. In those cases, I

would say they are very unreliable. Id . at 20-21. She explained that there are two sources of


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Blind procedures are necessary to eliminate the probability that the witness will look to the investigator 8

for clues. Because witnesses want to help the police. And so, they want to they view it as a test where they'resupposed to find the right person. And they will want to identify someone. So, if they dont know, there is atendency to loo k to the investigator for help, which they may sometimes actually get intentionally, or unintentionally,or they may just look to the investigator who do esnt mean to give clues, but somehow they may p erceive that they're

being helped. Id . at 27.

20

error in eyewitness identification estimator variables and system variables. Id . at 21-23.

Estimator variables are inherent to the witness as well as ... the situation under which the

witness observed the person in question. Id . at 21-22. Estimator variables include the age of

the witness, the witnesss mental state, factors affecting the witnesss ability to see the

perpetrator (such as lighting, distance, time available to view the person), the race of the witness

and the perpetrator, and the presence of a weapon. Id . System variables refer to the factors that

come into play when law enforcement become involved. Id . at 23. These include the method

of questioning the witness (whether the questioning is suggestive), the use of photographs in a

photo array (whether the suspects photograph somehow stand out), and whether confirmatory

feedback is given the witness after an identification. Id .

Professor Thompson explained that there is much agreement concerning the reforms

needed to reduce the risk of unreliable eyewitness identification. These include:

full documentation of police officers contact with eyewitnesses;

the elimination of any form of suggestion;

the conduct of procedures in a blind fashion, in which the witness is told that the

investigator presenting a photo array or lineup does not know the identity of the suspect, and in

fact the investigator does not know the identity of the suspect; and 8

the presentation of photographs (or live lineup participants) sequentially, one at a


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Sequential presentation addresses the pro blem social scientists ... have ... called relative judgmen t. Id . a t9

29. [R]ather than identifying a suspect based on actual recall, witnesses will tend to compare one suspect to another and through a process of elimination find the person who most closely looks like the person they recall. And the

problem with that is that if the suspect ... is not in the lineup, if the police have mistakenly arrested the wrong person,then the chances of those same witnesses picking one of those are one of those innocent peo ple is actually veryhigh. And, again, because they will pick the person who most closely resembles the true culprit. And once they havemade that erroneous selection, that person's face becomes their memo ry, their actual memory of the event. They willremember the innocent person's face in their minds and be convinced thats the right person. Id . at 29

21

time, rather than in the traditional six-pack, or groups of six. RR 3, at 25-32.9

Professor Thompson noted that the Cole Advisory Panel recommended that the

Legislature require a model policy to be developed addressing these safeguards, providing for

the use of cautionary instructions, filler selections, double-blind procedures, and documentation,

and any other best practices. Id . at 38; Defendants Exhibit 10, at 5-6.

Professor Thompson also testified that two additional safeguards are needed. The first is

that there must be corroborating evidence independent of the identification. Id . at 31. The

reason is to reduce unreliability due to estimator variables:

[I]f you have a case where you have a lot of estimator variables, which suggestthat the eyewitness was just not in a position to make an accurate identification,and especially if you dont have any corroborating evidence, then ... thats the sortof case that, per se, raises reasonable doubt and where the Court should screen outthe unreliable evidence.

Id . at 31-32. The second is that trial courts be required to hold reliability hearings before

eyewitness identifications can be admitted, parallel to the reliability hearings held with respect to

scientific evidence under Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993).

Id . at 32-33. Since social science research is really very solid in identifying factors that reduce[]

the reliability of eyewitness testimony, id . at 33, criminal courts should be able to develop

some tests for reliability and some competence on the scientific literature such that they should ...

develop pretty readily a competence to do a reliability screening. Id . at 34.


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The P anel found that inadequate d iscovery plays a significant role in wrongful convictions:10

Discovery as a component of effective counsel is especially important in helping to guard againstwrongful convictions. A relationship between discovery and wrongful conviction is sometimesdifficult to ascertain at first glance, but [t]he record of wrongful convictions has demon strated thatexculpatory evidence can be withheld for years, even decades, while an innocent person sits in

prison. In fact, seven of Texas first thirty-nine DNA exonerations involved suppression of exculpatory evidence or other prosecutorial misconduct. This statistic includes the case of TimothyCole, whose defense counsel was never informed that only one victim chose Cole out of a photolineup as the perpetrator of a rape on the Texas Tech campus.

Although the Supreme C ourts decision in Brady v. Maryland provides defendants with aconstitutional right of access to exculpatory information held by the State and in the possession of law enforcement, it is an insufficient tool to pr event wrongful convictions because Bradycomplaints are made post-conviction. Since a wrongful conviction cannot be retroactively

prevented once it has already occurred, other means of prevention must be explored. One way toreduce the potential for errors is to increase the scope of discovery, the process of pre-trialinformation exchange between prosecution and defense.

Defendants Exhibit 10, at 23-24 (footnotes omitted).

22

Finally Professor Thompson also addressed the work of the Cole Advisory Panel with

respect to discovery. The problem is that Texas does not have any state any state discovery10

requirements other than, of course, constitutional requirements under Brady . And Texas is in the

minority in this regard. Id . at 42. The Panels recommendation is for much broader discovery

and that it be made mandatory. So, things like police reports and witness statements would as a

matter of course in all jurisdictions in the state be mandatorily required to be produced for the

defense. Id .

4. Testimony concerning the use of informants as prosecution witnesses

The last witness who was able to testify for the defense was Alexandra Natapoff, the

person described by Professor Thompson as the leading scholar in the nation with respect to

informant testimony. RR 3, at 32-33. Ms. Natapoff is a law professor at Loyola Law School in

Los Angeles. RR 4, at 97. Her recent book, Snitching , published by New York University Press

in 2009, received an award from the American Bar Association. Id . at 97-98.


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Professor Natapoff described an informant as any criminal suspect or offender or

defendant who gives information to the government in exchange for benefit or the anticipation of

a benefit.... Id . at 103. Typically, the benefit is leniency for their own offenses, the dropping of

charges, the reduction of charges, the reduction in a sentence; but other benefits, informants are

sometimes paid, they may received improvements in their conditions of confinement. There are

a wide range of benefits that a criminal informant can provide information in the hopes of

getting. Id . Informants are the only witnesses that are testifying, in effect, on their own behalf.

They are there to obtain a benefit for themselves, to obtain leniency for their own offenses, their

own liberty may be on the line. Id . at 115.

Informants have been heavily demonstrated to provide unreliable testimony, in the

sense they lead to wrongful convictions, that their information is often false, fabricated, or

otherwise unreliable. Id . at 105.

[T]he first comprehensive analysis of all the wrongful conviction cases of whichwe know, not limited to DNA exonerations, ... in 2004 [by NorthwesternUniversity law School][,] ... concluded that of all the wrongful convictions that weknow about, in over 46 percent of them the wrongful convictions flowed in wholeor in part from the testimony of a lying criminal informant. That mak[es] criminalinformants the largest single source of unreliability and wrongful convictions inthe U.S....

Id . at 113-114. The Los Angeles County Grand Jury in 1989 conducted a far-ranging inquiry into

the use of jailhouse informants. The Grand Jury found that informants were often unreliable,

because they

would tailor their information to what they thought the government wanted tohear, knowing that the only way that they would ever get benefits is if they

provided information that was useful to the government. So, in effect, the deferralof benefits was an incentive not to the tell the truth, but to tell information thatwould be would be beneficial to the government. And the Grand Jury expressed


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its concern that this was a recipe for fabrication of precisely the kind that they sawin Los Angeles in the 1980s.

Id . at 109.

Despite its pervasive unreliability, informant testimony is extremely difficult to challenge,

because the use and creation and reward of informants is so secretive[,] [i]ts very difficult after

the fact, even in our most regulated settings, which is, of course, the trial setting, to go back and

figure out what actually happened, what the informant knew, what he said to the government,

what the government said to him, what kind of deals were offered or promised or implied.. Id .

at 107.

Informant testimony has devastating effects on the ability of criminal prosecutions to

focus on the real culprits. The first consequence is the diversion of police officers and

prosecutors from their duty to prosecute the right people:

[T]he use of criminal informants can change the very nature of the case. It canchange the direction of an investigation. It can mean that police will notinvestigate additional suspects because a criminal informant will make a particular suspect look more attractive as a suspect.

Professor Ellen Yaroshefsky, who is a law professor at Cardozo Law School, hasinterviewed prosecutors as to their relationships and the use of criminalinformants. And the prosecutors themselves have relayed how their cases arechanged by reliance on a criminal informant, that they themselves start to adoptthe stories of the informants because their cases start to become reliant on those[stories].

Id . at 126-127. The second consequence is that informants strengthen otherwise weak cases.

[W]e have seen in the capital context[,] because jailhouse informants in particular have this entrepreneurial culture of coming forward sua sponte on high-profilecases or homicide cases, one of the great dangers of the use of criminal informantsis that they bolster what would otherwise be weak cases. And we have seen now anumber of examples where jailhouse informant information has come to lightafter the fact and becomes a kind of a filler to make cases that would otherwise


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25

look weak or otherwise might not look as strong to the government, to make thosecases look much stronger.

Id . at 127.

The ability of an informant to bolster a weak prosecution case often rests on the ability to

tailor information so that it connects to the otherwise independent evidence associated with the

case providing the much-needed link between the informants incriminating account and

apparently independent evidence that corroborates it. As Professor Natapoff explained,

We know from the Los Angeles Grand Jury report[,] from the KaufmanCommission, from the Northwestern University Law School report, and frommany other reports and journalistic accounts of wrongful convictions that

informants, jailhouse informants in particular, but also other kinds of informants,have developed tactics by which evidence is fabricated and used by the system.And often these tactics involve getting information about high-profile cases fromthe media, obtaining information from outside sources about cases, asking friendsand family to obtain court records, stealing information. In other words,informants have developed quite sophisticated methods of getting informationabout suspects to bolster their own informant credi[]bility. And so, because thesekinds of fabricated evidence, particularly fabricated confessions, by definition are

piggy-backing off of evidence that may be in the public record, they are in somesense always going to be corroborated. They're built to be corroborated.

Id . at 121.

Professor Natapoff explained that a new set of safeguards is needed to reduce the risk of

wrongful conviction in informant cases, because the exiting safeguards have proven inadequate

to the task. In particular,

the prosecution cannot discern whether informants are truth-tellers because they

are relying on the informants to make their cases, id . at 129;

the lack of discovery hampers defense counsels ability to get access to

information that would facilitate effective investigation, id . at 130-131;


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criminal informants are deeply invested in the consistency of their own story

because it is on the basis of that story that they anticipate being rewarded[,] [s]o, cross-

examination has ended up being a weaker tool than it's supposed to be to actually discern

whether informants are lying or not, id . at 131; and

the great bulwark against a lying witness, of course, is the jury[;] [a]nd we've

seen time and time that jurors are not very good at telling the difference between the lying

informants and a truth-telling informant. Id . at 131-132.

Since our great procedural mechanisms for protecting the trial process, prosecutorial

screening and ethics, the adversarial system, defense discovery, and cross-examination, and the

jury itself, have shown to be poor safeguards against the very powerful phenomenon of the

motivated compensated criminal witness, systematic reforms are needed. These include:

(1) make more transparent the use and creation of informants, id . at 134;

(2) curtail[] the ability of informants to get informal deals long after theyve

testified, id .;

(3) write down all benefits that informants were to get..., in effect making

discoverable those deals, id .;

(4) heighten discovery requirements, id .;

(5) hold [r]eliability hearings, id ., in which the court screens the reliability of

the criminal informant to ensure that unreliable evidence does not go before the jury, id , at 116;

(6) have corroboration requirements, id . at 134;

(7) allow juries to hear from experts at trial about the kinds of tactics that different

sorts of informants use, id .; and


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I.E. Dror, et al., Cognitive issues in fingerprint analysis: Inter- and intra-expert consistency and the effect 11

of a target comparison , Forensic Sci. Int. (2010) (in press) [Ap pendix 1]; Chang Su, et al., Evaluation of Rarity of Fingerprints in Forensics , Proceedings of Neural Information Processing Systems, Vancouver, Canada, December 6-9, 2010 [Appendix 2].

28

the evidentiary weight of the fingerprint evidence in such cases as Mr. Greens. Two recent

publications, one by a member of the NAS Report panel, attached to this application as

Appendices 1 and 2, provide a roadmap to the kind of research that is ongoing and the way11

fingerprint evidence will be presented statistically in the future. Indeed, what can be stated with

certainty today is that the evidentiary weight of the fingerprint evidence in the Green case will be

significantly different ten years from now than it is today. This is true not just because the

general and applied research called for by the NAS, and being undertaken today, will totally

change the way the evidentiary weight of fingerprint evidence will be conveyed to juries but

because the fingerprint evidence in this case is in dispute based on the analyses of the

prosecutions own experts. In a case where the prosecutions own experts disagree as to whether

there is enough fingerprint information (referred to as minutiae) to make a determination that

the partial latent prints match Mr. Green, it is entirely conceivable that ten years from now,

using scientifically valid methods, fingerprint analysts might provide a statistical analysis of the

print evidence here that concludes a match to Green is unlikely, much less not uniquely his

print.

The fact that we know the evidentiary weight of fingerprint evidence will change

dramatically in the next decade has special implications in a capital case in Texas, as will be

illustrated by Mr. Greens proof with respect to Cameron Todd Willinghams case. In

Willingham the fire marshals testimony that the fire at Willinghams home was incendiary was


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offered just after the publication of National Fire Protection Association 921, a seminal report

that changed the way arson evidence was analyzed among fire scientists. Mr. Green will show

that despite submission of an affidavit from a leading arson expert, Dr. Gerald Hurst, just prior to

Mr. Willinghams execution, demonstrating that the arson evidence used to convict Willingham

had been discredited as unreliable for a decade, the Texas courts, the Board of Pardons and

Paroles, and the Governors office all failed to investigate, much less acknowledge the truth of,

Dr. Hursts analysis. Mr. Green will, in fact, prove that given the weaknesses in the post-

conviction capital safety net in Texas, he is in danger of being convicted and executed based

upon unreliable fingerprint evidence in the same way Willingham was convicted based upon

unreliable arson evidence.

In addition to the fingerprint evidence, counsel for Mr. Green intend to bring forth

additional information the trial court must have to fairly assess the various factors that contribute

to the risk of Mr. Green being wrongfully convicted. If allowed to proceed, counsel will be able

to produce additional evidence relevant to the following:

(a) the factors identified in the social science research that make eyewitness

identifications unreliable (though Jennifer Dysart, Ph.D.);

(b) the evidence that death-qualified juries are conviction prone and less able to

scrutinize guilt-innocence evidence critically (Wanda Foglia, Ph.D.);

(c) the Harris County District Attorneys historic pattern of exercising peremptory

strikes against minority jurors in an effort to secure all-white juries, the diminished ability of the

resulting all-white juries to resolve factual issues accurately, and the measures which must be

taken by an office such as the Harris County District Attorneys Office to change office culture


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and practice so that it avoids the racial exercise of peremptory strikes (Christina Swarns, director

of the Race and Criminal Justice Project of the NAACP Legal Defense and Educational Fund;

Samuel Sommers, Ph.D., social scientist and jury researcher; Bryan Stevenson, director of the

Equal Justice Initiative);

(d) the ineffectiveness of Texas habeas corpus and clemency procedures in

discerning and remedying wrongful convictions (University of Texas School of Law professors,

Jim Marcus and Maurie Levin);

(e) the lessons learned from the most comprehensive data base of DNA and non-

DNA wrongful conviction cases in the United States, together with evidence of the public and

legislative response to these lessons (University of Michigan School of Law professor Samuel

Gross);

(f) the evidence concerning the risk of wrongful conviction where the prosecutions

case rested, as it does in Mr. Greens case, on eyewitness identification, informant testimony, and

faulty forensic evidence, in two cases in which people have been executed in Texas, the cases of

Cameron Todd Willingham and Claude Jones (various law enforcement witnesses, arson experts,

and DNA evidence);

(g) the case history of Ernest Willis, which rested on evidence nearly identical to the

evidence in Mr. Willinghams case, focusing particularly on how Mr. Willis came to be

exonerated to show that the difference between exoneration and wrongful conviction and

execution is not due to the safeguards in the criminal justice process but to luck (University of

Texas School of Law professor Rob Owen, counsel for Mr. Willis); and

(h) former Texas Governor Mark White, who will testify about the need for certainty


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about guilt before anyone sentenced to death is executed.

III. T HE Q UESTION PRESENTED BY M R . G REEN R EQUIRES A W IDE -R ANGINGE XPLORATION OF E VIDENCE TO ASSIST THE C OURT IN DECIDING THE ISSUEPRESENTED BY THE PARTICULAR C IRCUMSTANCES OF M R . G REEN S C ASE , AND THE

E XPLORATION OF THIS E VIDENCE IS SQUARELY W ITHIN THE C OURT S POWER ANDDUTY

The question presented by Mr. Green whether in the circumstances of his case there is a

sufficiently high risk of wrongful conviction to violate the Eighth Amendment rests on the

Eighth Amendments concern about the need for heightened reliability in the jurys

determinations in a capital case. This rule is a rule of general application, a rule designed for

the specific purpose of evaluating a myriad of factual contexts, Wright v. West , 505 U.S. 277,

308-09 (1992) (Kennedy, J., concurring). When interpreting and applying such a rule, a court

cannot proceed in the routine manner that is suited, for example, to deciding under Federal Civil

Rule 12(b)(6) whether the allegations of a complaint state a claim under a federal statute first

spelling out the rules of legal liability enacted by the statute in the abstract without reference to

the facts, and then determining whether the alleged facts bring the case within those rules.

Rather, when the application of a rule such as the Eighth Amendments concern for greater

reliability is at issue, the analysis and exposition of the constitutional rule are themselves

informed by the factual circumstances to which they are being applied, in the manner classically

described by Henry Wolf Bikl, who said about courts making constitutional rulings that if this

requires, as a condition precedent, the resolution of some issue of fact, this also the Court must

undertake. Bikl, Judicial Determination of Questions of Fact Affecting the Constitutional

Validity of Legislative Action , 38 Harv. L. Rev. 6, 23 (1924).

The trial court here is required to determine the meaning that must be given to the Eighth


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1897, by North Carolina in 1949, and by Congress for the District of Columbia in1962.

As we have noted today in Gregg v. Georgia , ante , 428 U.S. [153], 179, 181[(1976)], legislative measures adopted by the peoples chosen representatives

weigh heavily in ascertaining contemporary standards of decency. The consistentcourse charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penaltystatutes is shared by society at large....

It is now well established that the Eighth Amendment draws much of its meaningfrom the evolving standards of decency that mark the progress of a maturingsociety. Trop v. Dulles , 356 U.S., at 101 (plurality opinion). As the abovediscussion makes clear, one of the most significant developments in our societystreatment of capital punishment has been the rejection of the common-law

practice of inexorably imposing a death sentence upon every person convicted of a

specified offense. North Carolinas mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting theimposition of the punishment of death and thus cannot be applied consistentlywith the Eighth and Fourteenth Amendments requirement that the States power to punish be exercised within the limits of civilized standards.

428 U.S. at 293-295, 301.

In determining whether capital trial procedures which create a risk of wrongful conviction

are violative of the Eighth Amendment, therefore, the trial court must examine, at least in part,

what degree of risk of wrongful conviction in a capital case is acceptable under the evolving

standards of decency, as measured by current legislative reforms, public opinion, and trends in

death sentencing. To be able to assess this matter, the trial court must have as much evidence as

possible about wrongful convictions and public concern about them and what is being done to

minimize the risk of such errors.

Viewed from this perspective, as well as from the narrower confines of Mr. Greens case,

none of the evidence that has been presented by Mr. Green or that will be presented on his behalf

is irrelevant to the issue he presents. The 177 District Court is plainly acting within its power th


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and complying with its duty in hearing this evidence. See Morrow v. Corbin , 62 S.W.2d 641,

650 (Tex. 1933) (the jurisdiction of our trial courts embraces not only the power and duty to

hear causes, but the power and duty to pass upon the facts and law and enter final decrees in

accordance therewith; and then to execute their judgments, without interference by any other

tribunal, except and until the appellate power of a revisory court is invoked). The mandamus or

prohibition powers of this Court cannot, and should not, be employed to interfere with the 177 th

Courts quintessential exercise of its inherent responsibilities. See White v. Reiter , 640 S.W.2d

586, 593-594 (Tex.Crim.App. 1982) ([i]t is ... well settled that mandamus will not issue to

compel a particular result in what is manifestly a discretionary decision).

Conclusion

For these reasons, the Court should deny Ms. Lykos leave to file the petitions for writs of

prohibition and mandamus.

Respectfully submitted,

Richard Burr John P. Keirnan Robert K. Loper SBN 24001005 SBN 11184700 SBN 12562300PO Box 525 917 Franklin St., Ste 550 111 W. 15 Streetth

Leggett, TX 77350 Houston, TX 77002 Houston, TX 77008713-628-3391 713-236-9700 713-880-9000713-893-2500 (fax) 713-236-1802 (fax) 713-869-9912 (fax)

By

Counsel for Real Party in Interest, John Edward Green


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Certificate of Service

I hereby certify that the foregoing pleading was served by mail on counsel for Relator,Allen Curry , Assistant District Attorney, 1201 Franklin Street, Ste 600, Houston, TX 77002;and on Respondent, Honorable Kevin Fine , Presiding Judge, 177 District Court, 1201 Franklinth

Street, Ste 1900, Houston, TX 77002; Greg Abbott , Office of the Attorney General, PO Box12548, Austin, TX 78711; and Jeffrey Van Horn , State Prosecuting Attorney, PO Box 12405,Austin, TX 78711, this 22 day of December 2010.nd

Counsel for Real Party in Interest John Edward Green


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Appendix 1


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Cognitive issues in ngerprint analysis: Inter- and intra-expert consistency andthe effect of a target comparison

Itiel E. Dror a ,b ,*, Christophe Champod c, Glenn Langenburg c,d , David Charlton e ,f , Heloise Hunt a ,Robert Rosenthal ga Institute of Cognitive Neuroscience, University College London, London, United Kingdomb Cognitive Consultants International Ltd., United Kingdomc Ecole des sciences criminelles, Institut de police scientique, University of Lausanne, Lausanne, Switzerlandd Minnesota Bureau of Criminal Apprehension Forensic Science Services, St. Paul, MN, United Statese School of Applied Sciences, Bournemouth University, United Kingdomf Fingerprint Bureau, Sussex Police, United Kingdomg

Department of Psychology, University of California Riverside, United States

Cognitive processes underpin much of the work carried out inmany forensic disciplines which require examination of visualimages. Fingerprints, bite and shoe marks, tire tracks, rearms,hair, handwriting and other forensic domains all hinge oncomparative examination involving visual recognition. Althoughhuman experts are the instrument in judging whether twopatterns originate from the same source, understanding the factorsthat shape such judgements in forensic science has been relativelyneglected. In the past it has been misconceived that ngerprintidentication is an exact science ( [1] p. 8); and this perceptiongoes across all forensic disciplines [2] . The recent NationalAcademy of Sciences report further highlights that the ndingsof cognitive psychology... the extent to which practitioners in aparticular forensic discipline rely on human interpretation... aresignicant and that ...Unfortunately, at least to date, there is no

good evidence to indicate that the forensic science community hasmade a sufcient effort to address the bias issue ( [3] p. 89).

The task demands imposed on the examiners require them tosearch through a rich stimulus, lter out noise, and determinecharacteristicsand signals for comparison (see [4,5] for discussionof signal detection theory (SDT) applied to ngerprint evidence).This initial analysis and determination of signals can take placebeforethe actualcomparison between stimuli (e.g.,the latentmarkleft at a crime scene and the comparison print of a known suspect).Scientists have long accepted that observations, including those intheir own scienticresearch, encompass errors. A study examining140,000 scientic observations reported in published research notonly revealed that erroneous observations were made, but thatthey were systematically biased in favour of the hypothesis beingresearched [6] . Many different forms of contextual and cognitiveinuences affect our perception and bias it in a variety of ways [7] .Previous research on ngerprinting specically examined poten-tial cognitive contextual inuences on comparing prints anddecision making as to whether or not they originated from thesame source [820] .

Forensic Science International xxx (2010) xxxxxx

A R T I C L E I N F O

Article history:Received 24 June 2010Received in revised form 4 October 2010Accepted 9 October 2010Available online xxx

Keywords:Latent ngerprintingHuman cognitionFingerprint analysis

A B S T R A C T

Deciding whether two ngerprint marks originate from the same source requires examination andcomparison of their features. Manycognitive factors playa major role in such information processing. Inthis paper we examined the consistency (both between- and within-experts) in the analysis of latentmarks, andwhetherthe presenceof a target comparison print affects this analysis.Our ndings showedthat thecontext of a comparison printaffectedanalysisof the latent mark, possibly inuencing allocationof attention, visual search, and threshold for determining a signal. We also found that even without thecontext of the comparison print there was still a lack of consistency in analysing latent marks. Not onlywas this reected by inconsistency between different experts, but the same experts at different timeswere inconsistent with their own analysis. However, the characterization of these inconsistenciesdependson the standardanddenitionof whatconstitutes inconsistent.Furthermore, these effects were

not uniform; the lack of consistency varied across ngerprints and experts. We propose solutions tomediate variability in the analysis of friction ridge skin. 2010 Elsevier Ireland Ltd. All rights reserved.

* Corresponding author at: Institute of Cognitive Neuroscience, Department of Psychology, University College London, London, United Kingdom.

E-mail address: [email protected] (I.E. Dror).

G Model

FSI-6238; No. of Pages 8

Please cite this article in press as: I.E. Dror, et al., Cognitive issues in ngerprint analysis: Inter- and intra-expert consistency and theeffect of a target comparison, Forensic Sci. Int. (2010), doi: 10.1016/j.forsciint.2010.10.013

Contents lists available at ScienceDirect

Forensic Science International

j ou rna l homepage : www.e l sev i e r. com/ loca t e / fo r sc i i n t

0379-0738/$ see front matter 2010 Elsevier Ireland Ltd. All rights reserved.

doi: 10.1016/j.forsciint.2010.10.013
http://dx.doi.org/10.1016/j.forsciint.2010.10.013mailto:[email protected]://dx.doi.org/10.1016/j.forsciint.2010.10.013http://www.sciencedirect.com/science/journal/03790738http://dx.doi.org/10.1016/j.forsciint.2010.10.013http://dx.doi.org/10.1016/j.forsciint.2010.10.013http://www.sciencedirect.com/science/journal/03790738http://dx.doi.org/10.1016/j.forsciint.2010.10.013mailto:[email protected]://dx.doi.org/10.1016/j.forsciint.2010.10.013


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Bias in different aspects of forensic decision making has beenexamined in a number of studies (see review articles [21,22] ).Specically focusing on the initial analysis phase of the mark,before being actually compared to any prints, Langenburg [23]found that examiners generally reported more minutiae thannovice controls. Furthermore, although the examiners varied inhowmany minutiae they observed in theinitial analysis,they weremore consistent than the novice control group (in 8 out of the 10latent marks used in this study). These results were in agreementwith those of Evett and Williams [1] . Following Langenburg study,Schiffer and Champod [24] found that training and experienceincreased the number of characteristics reported, and at the sametime reduced the variability among observers. Schiffer andChampod also reported that the number of characteristicsobserved during the analysis phase was not affected by contextualinformation about the case or by the presence of a comparisonprint. Consequently, they concluded that the initial analysis stage(pre-comparison) is relatively robust and relatively free from therisk of contamination through contextualisation of the process.

Although Langenburg [23] andSchiffer and Champod [24] showthat these inconsistencies decrease with training and experience, 1

they also make the point that quite important variations dosubsist between examiners ( [24] p. 119). All the studiesconsistently show that there is variability in the number of minutiae observed in the analysis stage, and that these incon-sistencies are attenuated but not eliminated, during the initialtraining and experience in ngerprint examination. Furthermore,as reported by Schiffer and Champod [24] , even in the relativelyrobust stage of analysis a clear subjective element persists. Afurther study [25] suggests that the combined presence of contextual pressure and availability of the target comparisonprint inuences the evaluation stage (following the analysis andcomparison), but this effect varies among different marks.

Dror et al. [11] suggested that as nger marks are more difcult(bottom-up), the more inuence external factors (top-down) haveon the observations. Bottom-up refers to the incoming data, whereas top-down relies on pre-existing knowledge [26] . Top-down has

many forms and manifestations, which include the context inwhich the data are presented, past experiences and knowledge,expectations, and so forth. Expertise is top-down, and as suchexperts rely more on top-down information. This allows efcientand effective processing of the bottom-up data, but also means itcan distort and bias how the data are processed [27] . Variations inobservation among different observers (inter-observer differ-ences) and variations in observation for the same observer for thesame task, taken at different times (intra-observer differences)are a well-known phenomenon in other elds involving expertdecisions,such as radiologists or other medical technicians [28,29] .

In the research reported here we examined three main issues:

1. The potential effect that a target comparison ngerprint mayhave on the analysis of the latent mark.

2. The consistency in analysis among different examiners.3. The consistency in analysis within the same examiner.

This paperfurther investigatesand contributes to thestudies onthe analysis of ngerprints in the following ways:

1. Using actual latent ngerprint examiners, rather than forensicscience or psychology students (such as in [11,25] ).

2. Applying a within-subject (intra-observer) experimental design.This allows us to measure consistency in analysis, as we compareexaminers to themselves. Such intra-observermeasurements areextremely accurate and informative because they are not onlystatistically more powerful then inter-observer measures, butthey allow us to condently draw conclusions because the datacannot be attributed to individual differences, such as visualacuity, experience, strategy, cognitive style, and training.

3. Subjecting the experimental data to statistical procedures andstandards(e.g., retest reliability) thatquantify the consistencyof latent ngerprint examiners in the analysis of latent marks.

4. Statistically differentiating between factors that contribute toinconsistencies in latent mark analysis; thus determining whatportion of the variance is attributed to the examinersperformance and what portion is attributed to the latent marksthemselves (using statistical effect sizes).

5. Suggesting a number of recommendations for dealing withissues surrounding latent mark analysis.

1. Effects of a target comparison

The human cognitive systemis limited in its capacity to processinformation. The information available far exceeds available brainpowerand cognitiveresources, andtherefore we canonly process afraction of the information presented to us. This mismatchbetween computational demands and available cognitiveresources caused the development of cognitive mechanisms thatunderpin intelligence. For example,we prioritize what informationto process according to our expectations (e.g., [30] ). Expectationsare derived from experience, motivation, context, and other top-down cognitive processes that guide visual search, allocation of attention, ltering of information, and what (andhow) informationis processed. These mechanisms are vital for cognitive processes tobe successful. Expertise is characterised by further developmentand enhancement of such mechanisms [26,27,31,32] .

Therefore, there are good scientic data showing that thepresence of any contextual information may affect cognitive

information processing. Various factors and specic parametersdene the context, whom it may affect, how, and to what extent.Understanding these factors and parameters will help developscience-based training and best practices that will enhanceobjectivity in ngerprint analyses, as well as in other forensiccomparative examinations involving visual recognition.

In the rst experiment reported in this paper we used 20experienced latent ngerprint examiners, to investigate whetherthe presence of a comparison target print would affect thecharacteristics they observe in the latent mark. Each of the 20experts received ten stimuli: ve latent marks by themselves (solocondition) and ve latent marks with the matching target print(pair condition). All the participants were instructed identically,requiring them to examine the latent marks and to count all the

minutiae present in the image. The experimental conditions werecounterbalanced across participants using a Latin Square design tominimize any affects due to the order of presenting theexperimental trials [33] .

We found that the presence of the accompanying comparisonprint affected how many minutiae were perceived by the expertlatent print examiners. Th

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