This opinion piece was published in the Houston Chronicle under the names of several authors, but the Amarillo Globe-News version simply mentions Jeff Blackburn, so I am assuming he is the author.   “Stop presenting ‘junk science’ in capital trials” Blackburn says.  You can find the heart of his argument pasted at the end of my remarks. 

The focus here is on Texas, but the problem is nationwide.  In the most recent Curtis Flowers trial, one ballistics expert testified that he could say with 100% certainty that the gun stolen from Doyle Simpson’s car was the murder weapon.  A second expert restricted himself to the obvious: the evidence didn’t lend itself to 100% certainty about anything.  All any competent ballistics expert could say for sure was that the evidence found at the crime scene was consistent with the .380 pistol allegedly stolen from Mr. Simpson’s car, but the shell casings could also have come from a similar weapon. 

Blackburn concentrates on expert witnesses who don’t know what they are talking about; but a lot of expert testimony is biased in favor of the prosecution because that’s where the money is.  Indigent defendants rarely have the money to hire their own experts and most capital defendants are indigent.  

In Blackburn’s opinion, the Cameron Todd Willingham case isn’t primarily about the execution of an innocent man; it’s about junk science. 

Do we really have to choose here?  The concern, I think, is that if death penalty opponents put all the emphasis on the execution of the innocent, no one will notice the manipulative use of junk science.  I’m not sure that’s true.  If Willingham died because a bogus expert lied, the abuse of expert testimony stands out in sharp relief.  

Opposition to the death penalty is a minority position in America, and this is especially true in the state known as death penalty central.  No one, on the other hand, is going to argue in favor of junk science.  

But this contrast is misleading.  You rarely hear people arguing for the death penalty and yet it enjoys wide support.  True, no one argues in favor of junk science per se, but any attempt to tighten the rules will slam up against massive opposition from prosecutors and the general public isn’t likely to care.  

Public apathy is the biggest challenge criminal justice reformers face.  In a recent study, participants were asked to reevaluate their support for the death penalty after being exposed to this statement: “Some people say that the death penalty is unfair because too many innocent people are being executed.”  Support from black respondents dropped by sixteen percentage points.  White opinion didn’t budge.  In another study, both supporters and opponents of the death penalty, on average, estimated that 10% of the folks being executed are innocent.  Apparently a 10% failure rate is deemed acceptable. 

We’ve got to fight the reform battle on all fronts at once.  The goal should be to abolish the death penalty and to end mass incarceration.  We’ve got to change the prevailing consensus.  When people are afraid they are down with prosecutorial misconduct of any description so long as it makes it easier for the state to nail the bad guys.  That won’t change until the consensus shifts. 

That said, Blackburn makes the case against junk science with characteristic eloquence. 

Blackburn: Stop presenting ‘junk science’ in capital trials

The Cameron Todd Willingham case has raised serious questions about the Texas criminal justice system. To many, the issue is whether Texas executed an innocent man. To the Innocence Project of Texas, the questions raised by this case are much bigger. To us, the real issue brought up by the Willingham case is the ongoing use of junk science to falsely convict the innocent. 

What is junk science?

There are few things more convincing to a jury than scientific evidence presented by expert witnesses called by the state in a criminal case. Sometimes, however, the “science” used by prosecutors isn’t science at all. 

Many Texas citizens have been convicted when fraudulent or invented forensic techniques were presented as scientific truth at trial. Others have gone to prison as a result of genuine science being twisted into false accusations of guilt. From the Houston crime lab disaster to the discredited testimony of “experts” like Ralph Erdmann and Fred Zain, Texas leads the nation in scandal over this problem. The Willingham case, in which discredited arson “science” was used to get a conviction, is only one of many examples of the use of this kind of “evidence.” 

Just last year the Innocence Project of Texas exposed the work of Keith Pikett, a Fort Bend County Sherriff’s deputy, who made use of “dog-scent lineups” to link suspects to evidence retrieved from crime scenes. The IPOT report, entitled “Dog Scent Lineups: A Junk Science Injustice,” called attention to the numerous wrongful accusations and convictions that resulted from this form of junk science. Even though the self-trained deputy did not have a scientific background, he was allowed time and time again to testify in criminal trials about the “science” behind his line-up procedures. Pikett’s “expert testimony” was all junk and no science- and it was used repeatedly by prosecutors. In an encouraging move, the Court of Criminal Appeals recently reversed a case based on Pikett’s testimony. That move aside, prosecutors are still allowed to use charlatans like Pikett in Texas courtrooms. 

The technique of using phony “experts,” unscientific evidence, or just plain fraud dressed up as “expert testimony” is known as the use of “junk science.” It is being employed to get convictions in courtrooms all over the state to this day. 

How we can fix it

There are solutions to this problem. Innocent citizens who have been convicted in the past because of junk science need to have a fair day in court to prove that they were wrongfully convicted. Forensic labs need to be separated from law-enforcement agencies and made fully accountable to the scientific community. Trial procedures need to be improved so that innocent citizens will not be victimized by junk science in the future. 

It will take a concerted effort by state agencies and lawmakers to make these changes in Texas.