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Finality in a criminal case? What's it worth?

In criminal cases, finality is important. From a prosecutor's perspective, there is a desire to close a case with a conviction or plea agreement, and send the suspect to jail or prison. On the defense side, obtaining acquittal, dismissal or a favorable plea agreement is equally important. But at a deeper level, it is more important to see that justice is done.

The problem with that is there are widely differing senses of when that occurs. But there can be little doubt that when a conviction is obtained by wrongful means, such as fabricated evidence, perjured witnesses, or faulty forensic investigation, justice has not been served. 

In Texas, an interesting struggle is going on between the Court of Criminal Appeals (CCA), their highest criminal court and the legislature. Texas has had issues with wrongful convictions, especially those involving capital crimes. The legislature passed a law that was designed to all defendants to challenge convictions where flawed forensic evidence used to obtain a conviction.

In a case applying that new law, the CCA ordered a new trial, but then membership on the court changed and they requested a rehearing. That rehearing was held yesterday, and it is unclear from oral arguments how the court may rule.

The case involved a death of a child, which at the time of the investigation was ruled a homicide by the medical examiner. Another examiner reviewed the evidence and found that injuries suffered were conclusive of a homicide determination. The original examiner has changed her testimony from homicide to undetermined.

Some of the judges on the CCA seemed to believe the law only applied to "junk" science, not matters of mistake or changes in opinion by experts. The legislature passed a second law that clarified the law to point out to the courts that, yes, in fact the legislative intent was to include mistakes by experts.

To further muddy the decisional waters, some members of the court appear to be upset by the legislature, viewing the law as a "power grab" and an intrusion on the court's authority. (Cont.)

Source:, "Old Convictions, New Science," Maurice Chapman, May 28, 2015

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Joseph S. Friedberg Chartered

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