Recently as part of my effort to complete America's Executioner, I reviewed more than three hundred cases of people sitting on Texas death row. Previously, I had reviewed more than four hundred cases of people already executed by Texas. In each case, I was hunting for people who are (or were) probably or possibly innocent.
I approach the problem by first passing all cases through a coarse filter. I try to limit myself to fifteen minutes of research for each case. (Admittedly, I frequently find myself following link after link and losing track of my self-imposed time limit.) I keep a list of those cases that seem to justify further research. By applying this coarse filter technique, I can eliminate about 90% of the cases as having no reasonable possibility of factual innocence.
Note that I'm not searching for procedural flaws or technical reasons why someone shouldn't have been convicted. I'm searching for cases in which the convicted person had nothing to do with the crime.
After the coarse filter, I pass the remaining cases through a slightly finer filter. I allow myself an additional hour or two for each of the remaining cases to decide which of them are deserving of far more detailed research and evaluation.
With respect to those people currently on Texas death row, I found 24 cases that definitely deserve more detailed research.
In my previous post, Eddie Lee Howard: A Case for Your Evaluation, I provided you an opportunity to see that some cases are easily recognizable as a possible instance of wrongful conviction. You, at least those of you who commented on the post, had no difficulty finding problems with Howard's conviction, even though you seemed to limit yourself to 15 minutes as I suggested. You properly noted that the conviction relied heavily on bite mark testimony, that the bite mark testimony in Howard's case was troublesome, and that the bite mark expert had a history of questionable cases.
When I'm deciding whether or not to allow a case through my coarse filter, I'm on the lookout for warning flags. If I were to make a list of warning flags in the Howard case identified in the comments, that list would so consist of:
- Bite marks
- Dr. Michael West
In fact, if you were to go to Google Scholar and search for either or both of those terms, you would have no trouble finding many more troubling convictions.
Given that I've been employing this coarse filter technique longer than most of you, I noted more warning flags, even if I limited myself to just the appellate decision. Here are the flags I noticed in that decision.
- Bite marks
- Dr. Michael West
- Dr. Steven Hayne
- Alleged rape but no semen
- A dissenting opinion
If you were to search Google Scholar for Steven Hayne, you would find many more troubling cases than if you searched for Michael West. Also, there was a dissenting opinion in Howard's appellate decision that did a nice job of describing the problems associated with Dr. West's bite mark testimony.
One of the projects I am working on from time to time, when I have a moment, is to compile a list of warning flags such as I have discussed in this chapter. I won't reveal my list at this time, but I'll chum the waters with a few more:
- Snitch testimony
- Accomplice testimony
- Recanted testimony
- Hair and fibers "consistent with" the State's theory
I'd be interested in hearing from you about the types of evidence or the circumstances of a case that would cause you to suspect a wrongful conviction. Comments are open.