Re: Timothy Brian Cole


Another case of Texas being uncharacteristically forward-thinking on criminal justice.

Posted by: knecht ruprecht | Link to this comment | 03- 1-14 6:48 AM
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Here the DNA corroborates what the rest of the evidence shows, including the recantation by the victim and the credible confession, the apparently remarkable worthiness of the accused, the determination of the family, everything. And that's from doing no further research in this case at all; the level of agreement is remarkable--and very nearly unreproducible.

There are lots of lawyers here more argumentative than I am, some of whom may make this case more passionately or more knowledgeably than I will, but I'm not inclined to think of DNA evidence as revolutionary. It's very helpful to have an objective test to seal the deal, but conditions, including the preserved specimens and whether or not specimens were ever taken are necessary. And results will often be inconclusive for positive id.

When fingerprinting was new, a hundred years ago, it was hoped, and there were fictional and real illustrations, that it would function in just this way, as it sometimes did and has.

In other words, I'm inclined to think of DNA here as a bit of a fig leaf to allow everyone to acknowledge without cavil an obvious miscarriage of justice.

Posted by: Idp | Link to this comment | 03- 1-14 7:10 AM
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Texas honors martyrs to the glorious institution of the death penalty.

Posted by: Minivet | Link to this comment | 03- 1-14 8:09 AM
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I think the big difference with DNA isn't its ability to uniquely identify an individual, it's that DNA is remarkably stable over time, which means that decades-old cases can be re-examined. The technology is getting way better and cheaper. As I see it, the big problems lie with how competent and honest the forensic analysts are and how carefully police collect samples. Contamination is a problem, and daily method validation on the sequencer is important but often seen as a waste of time, especially when technicians are dealing with large numbers of samples. (We found Neanderthal DNA - oh, wait, it's just the grad student's.)

I don't feel too sorry for prosecutors who argue that shows like CSI encourage juries to require fancy forensic evidence. I also hate that while the cost is dropping, it's a lot to ask for a defense to get independent analysis of samples and accurately characterize the error rate for DNA testing.

The Innocence Project says that there have been 312 DNA exonerations to date (18 on death row, 16 imprisoned for capital crimes but not sentenced to death), 153 of which identified the true perpetrator. I think that's pretty impressive. Average time served was 13.5 years.

Posted by: ydnew | Link to this comment | 03- 1-14 8:11 AM
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I thought current law (thanks Tony!) is that if appeals deadlines have passed the convicted has no recourse even if new evidence or technology invalidating old evidence becomes available. The only recourse in such cases is an executive pardon.

Posted by: SP | Link to this comment | 03- 1-14 8:11 AM
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Well excuse me for not wearing a hair net.

Posted by: Opinionated unfrozen caveman grad student | Link to this comment | 03- 1-14 8:12 AM
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Hard for me to see the Cole statue as anything but good, but I haven't lived in the area full-time for almost two years now, so I don't have much of a sense of sentiment on the ground.

Having said that, the role of art on the TTU campus is an interesting one. By rule, one percent of every new construction project or major renovation undertaken by the university is required to go toward the purchase of art. On the one hand, this leads to a campus with a surprisingly interesting collection of public sculpture. On the other, there is very often acrimonious debate about the nature of said sculpture, as in, for example, this case. I would not at all be surprised if a similar ugly, partisan debate erupted around the Cole statue, though I would be very happy to be proven wrong.

Posted by: Stranded in Lubbock | Link to this comment | 03- 1-14 8:16 AM
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I guess I should also say that I know very little about Todd Klein, the councilman who seems to be responsible for the statue initiative. While I support the public shaming of institutions that wrongfully convict people like Timothy Cole, it's also not hard for me to imagine other people abusing the awful facts of Cole's case for their own political gain.

Posted by: Stranded in Lubbock | Link to this comment | 03- 1-14 8:37 AM
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And speaking of Texas justice, a not very surprising revelation in the Todd Willingham case.

Posted by: JP Stormcrow | Link to this comment | 03- 1-14 8:37 AM
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8.last (and sorry for serial commenting): By which I specifically mean, I really hope this isn't a case of the political right trying to appropriate Cole as their own anti-government civil rights hero.

Posted by: Stranded in Lubbock | Link to this comment | 03- 1-14 8:45 AM
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9: Thought that was suspected/known but there was no evidence. I think the articles I read about the mishandling of the arson evidence touched on the credibility of Webb, at least implying that he'd gotten a deal that gave him incentive to lie.

Posted by: ydnew | Link to this comment | 03- 1-14 8:48 AM
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In the last few years the Justice Department has been pushing to make forensic science more rigorous.

In 2009, the National Research Council (NRC) released a damning report criticizing US forensics practices. According to the report, nearly every analytical technique, from hair-sampling methods to those used in arson investigation, is unreliable, with too much variability in test results. Only DNA evidence escaped condemnation.

Posted by: torrey pine | Link to this comment | 03- 1-14 8:50 AM
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5: Slightly more complicated than that. First, I suspect you're thinking specifically of federal cases, and you have to distinguish between state and federal law. Some states have procedures for reopening old convictions based on new evidence. I think there've been a number of statutes passed that particularly focus on the availability of new DNA evidence.

Second, even in the federal system, there is a special rule where a prisoner can provide evidence of "actual innocence" -- as opposed to mere legal error. But "actual innocence" alone isn't enough; it merely permits a late petition for a federal writ of habeas corpus even though you're past the deadline and even though your first writ has already been denied. So the prisoner still then also has to show some federal legal error in the conviction.

Usually the petitioner's lawyer tries to show either that the prosecution knowingly withheld exculpatory evidence or that defense counsel at trial was incompetent in failing to find the evidence that ultimately proved innocence. Either of those things would establish a federal constitutional violation that could then lead to the conviction being set aside. Both are very difficult to establish, though.

When I was more current on this area, there was also an unsettled question whether a showing of actual innocence would, in and of itself, be enough to establish a federal constitutional violation, especially in a case where the prisoner had been sentenced to death. I don't think that question is settled yet. Others may be more up on the recent cases than I am.

Posted by: widget | Link to this comment | 03- 1-14 9:07 AM
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7: This is getting to be more common in various locales and among large institutions. A friend has regularly served on his university's public art committee, and avers that if it were up to Facilities, every piece of public art would be a plain bronze half-sphere, which would take up the least amount of space and require the least amount of maintenance. Which actually seems like it could be kinda neat -- a nice little plaque commemorating whatever to go with each half-sphere, and you could put Santa Claus hats on them for Christmas and what-not.

Posted by: Natilo Paennim | Link to this comment | 03- 1-14 9:16 AM
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3: Justice demands sacrifice, and must be appeased!

13.2: It's unsettling that new evidence of actual innocence isn't sufficient. I can see reasons for it--those in prison for life or death have all the time and reason in the world to grasp for straws, which would increase load on the system--but that still sounds barbaric. I hope the issue you mentioned in .4 goes the right way.

Posted by: dalriata | Link to this comment | 03- 1-14 9:20 AM
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More directly to the OP (and 2 and 4), I am by no means an expert on DNA testing but I suspect that judges and juries tend to overestimate how reliable and conclusive it is. On the other hand, I also (strongly) suspect that judges and juries overestimate the reliability of eyewitness testimony, police reports, confessions under interrogation, and a lot of other things that prosecutors like more than they like DNA testing. So, on balance, go DNA!

Posted by: widget | Link to this comment | 03- 1-14 9:20 AM
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16: Agreed. It just concerns me that as noted by torrey pine in 12, it's a tool that lots of people really trust that can still be (either through innocent error or misconduct) be used improperly by the side that has more resources. Under perfect conditions, it's a nearly perfect tool. I think it's a great improvement compared to eyewitness reports in terms of reliability.

Posted by: ydnew | Link to this comment | 03- 1-14 9:26 AM
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Yeah, my glib reaction in 16 should in no way be taken to reflect lack of concern for the important goal of making forensic evidence more reliable, or lack of respect for people who are doing the hard work necessary to make that happen.

Posted by: widget | Link to this comment | 03- 1-14 9:35 AM
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This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing. considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

Posted by: Antonin Scalia | Link to this comment | 03- 1-14 11:07 AM
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I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them.

Posted by: Judge Smails | Link to this comment | 03- 1-14 11:10 AM
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Isn't the practice of trawling huge databases for partial matches bad for the integrity of DNA testing as well? Lots of false positives, easy credence with judges and juries who won't follow the statistics about why it's bad...

Posted by: Minivet | Link to this comment | 03- 1-14 11:39 AM
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Something that bothers me about the heavy reliance on DNA for proof of innocence, is that there are a lot of cases where there isn't any DNA evidence available, and there's no reason to think that those convictions were more reliable to begin with. False convictions where innocence is confirmed with DNA should be being used to cast doubt on the validity of the sort of evidence used to originally obtain those convictions generally.

Posted by: LizardBreath | Link to this comment | 03- 1-14 12:12 PM
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21: A quick and careless look through the literature says that it's a problem, but the issue is more that each test has an intrinsic error, which is small when comparing a suspect's DNA to evidence collected, but larger when looking at huge datasets, and both of which are small compared to errors in sample collection and by the technician performing the analysis. Nobody has numbers, though, as of 2014, how common either of the latter errors might be. Apparently, technicians are sometimes evaluated using blinded samples, but they are aware they're being tested, and testing is optional. Some researchers seem to have run the statistics on partial matches, and the biggest error is due to kinship, where there will be a higher than normal percentage match. They were using a Danish dataset, though, which means a fairly homogeneous population, so it's hard to extrapolate what that means to the US (also, too many statistics for me to follow). Their final analysis suggests that saying that either the individual or his/her siblings is a match covers 99.5% of circumstances where a match is identified. So, not perfect, but not too bad, really.

Posted by: ydnew | Link to this comment | 03- 1-14 12:21 PM
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I know I alluded to this in the good old days of constant Woody Allen threads, but in the next week I have to spend a day in court again listening to our former foster son testify against his dad. His dad was able to get a retrial on the grounds that if you abuse a kid to the point where he has complex PTSD, you should be able to tell the jury that he has complex PTSD and therefore is crazy and unreliable and shouldn't be believed. Obviously his lawyer didn't put it in quite those terms, but only the dissenting judges saw it that way and so here we are again. And I do think I'm pro-exoneration and all that and maybe it shouldn't matter that his dad took a guilty plea on other counts, but I think it should have that when the evidence of his unreliabiity is his allegations about other people maybe it's a mitigating factor that those people aren't just random names but actually overlap with people who also agreed to plead guilty and in at least one case to give evidence against his dad in the other cases. Like, how is that not a thing? I was sick for a week after reading the ruling and this is underlying a lot of his current dysfunction, and yet things could get so much worse so fast and I don't really know what to do except be there and be angry and witness for him. But fuck. Sometimes guilty people are guilty and I know you can't go to the appellate court and say, "Look, he's a really awful liar and these are his tells and it's so fucking obvious!" and yet that's part of what the case boils down to for me.

And while I'm totally unpresidential, this is not as bad as but not unlike having to sit through a long digression in my foster daughter's trial about whether statements she'd made about something she'd gone through were hearsay and who she might have said them to while hello, I was the person she said them to and so did multiple corroborating adults and I had to just sit there and watch them go back and forth and it was weird and scary even though the outcome there was never really in question.

Anyway, this is going to be awful. And I hate being in court for any reason, hate everything about court. And so of course all these trials are in the county that won't let you bring knitting through the metal detector. Maybe I can focus on that as the real injustice and not be so sad about the rest of it.

Posted by: So Totally Unpresidential | Link to this comment | 03- 1-14 6:47 PM
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My sympathies. That sounds really awful.

They don't allow wooden/plastic knitting needles, even? Assholes.

Posted by: x.trapnel | Link to this comment | 03- 1-14 7:02 PM
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Maybe you can do a really elaborate cat's cradle.

Posted by: k-sky | Link to this comment | 03- 1-14 7:32 PM
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You could knit your brows maybe.

Posted by: Sifu Tweety | Link to this comment | 03- 1-14 7:36 PM
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"When you going to jail my dad?"
"Soon son, soon."
Oh, the cat's in the cradle.....

Posted by: Moby Hick | Link to this comment | 03- 1-14 7:36 PM
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28: I had the dame thought but restrained myself out of human empathy kindness. And not coming up with the joke.

Posted by: JP Stormcrow | Link to this comment | 03- 1-14 7:46 PM
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Good luck, Totally Unpresidential. Hopefully this will be one of those unpleasant episodes that can be mostly forgotten after it's over...

Posted by: torrey pine | Link to this comment | 03- 2-14 1:45 PM
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