
25 Years After Junk Science Conviction, Texas Admits Sonia Cacy's Innocence - finid
https://theintercept.com/2016/11/04/25-years-after-junk-science-conviction-texas-finally-admits-sonia-cacys-innocence/
======
seibelj
This is something I find extremely scary, because an unusual series of events
(accidental fire, accidental drowning, suicide) could be framed to look like
something entirely different (arson, murder), which could drag any one of us
into a nightmare. If you don't have the money to hire your own experts and a
strong legal team, potentially bankrupting yourself, you are at the mercy of a
motivated prosecutor with nearly unlimited resources.

In 2009 a scathing report was released by the National Academy of Sciences
that essentially says that blood spatter, handwriting, hair, fingerprints, and
bite mark analysis are all junk science[0]. If two "experts" can look at the
same evidence and come to entirely different conclusions, how is this science?
It's opinion wrapped up as scientific fact. Who knows how many people are
innocently convicted. It's terrifying.

An excerpt from WikiPedia about hair analysis:

 _The outcry from defense attorneys has forced the FBI to open up on disputed
hair analysis matches since 2012. The Justice department began an
"unprecedented" review of old cases involving hair analysis in July 2013,
examining more than 21,000 cases referred to the FBI Lab's hair unit from 1982
through 1999, and including as many as 27 death penalty convictions in which
FBI experts may have exaggerated the reliability of hair analysis in their
testimony. The review is still in progress, but in 2015, it released findings
on 268 trials examined so far in which hair analysis was used. The review
concluded that in 257 of these 268 trials, the analysts gave flawed testimony
that overstated the accuracy of the findings in favor of the prosecution.
About 1200 cases remain to be examined._[1]

[0]
[http://www.nytimes.com/2009/02/05/us/05forensics.html?pagewa...](http://www.nytimes.com/2009/02/05/us/05forensics.html?pagewanted=all)

[1]
[https://en.wikipedia.org/wiki/Hair_analysis#Microscopic_hair...](https://en.wikipedia.org/wiki/Hair_analysis#Microscopic_hair_analysis_in_forensics)

~~~
cstross
Something I really _don 't_ understand about the American system (I'm British)
is why _anyone_ could possibly think it's a good idea to make Prosecutors and
Judges elected offices!

The whole "tough on crime" narrative is toxic when it plays into electoral
politics because it gives prosecutors an incentive to pick fights they know
they can win (targeting vulnerable people with limited resources to hire an
effective defense) and it rewards judges for portraying themselves as the
vengeful defenders of the wronged by imposing unduly harsh sentences.

Seriously? Other countries do just fine with prosecutors and judges who are
unelected civil servants, and don't seem to have quite the same track record
of excessive victimization of the vulnerable.

~~~
s_q_b
In the United States, we do things a tad differently. The Federal government
here is not a government of general jurisdiction. It operates on the principle
of a social contract which reserves powers not specifically given to the
Federal government to individual provinces.

While this principle is far degraded these days, election of state officials
is still fully reserved to the states. Many states have decided that judges
are best chosen through election, and their constituents permit such action
through the democratic process.

In the Federal system, judges are appointed by the executive. Following the
same reasoning as you, Hamilton noted in the Federalist Papers, a series of
editorials published anonymously which outlined the reasoning that shaped the
constitution, that the executive appointing judges was the best method,
because the executive lacks the power of both the "purse and the sword."

Only when states act so egriously as to breach the United States Constition,
rather than state law, does the Federal government step in. Our most serious
problem is that we generally cannot sue law enforcement officers, prosecutors
or judges due to sovereign immunity, which provides almost absolute protection
from civil suit.

I believe we inherited "sovereign immunity" from a rather incorrigible
previous government. They believed that some sort of divine mandate somehow
exempted their highest government official from the law, a particularly absurd
idea which has had rather unfortunate consequences for several billion people.

~~~
raattgift
Funny that you should mention the system in what was then Great Britain; the
Constitution of the modern U.K. and its antecedents in English law are very
much part of a live constitutional crisis in the question of the power of the
executive versus the power of the legislature.

The ruling below contains in it an extremely fair overview of some of the
issues you mischaracterize in your last paragraph. I think it's understandable
that you got it wrong; comparative constitutional law is not an especially
popular thing, and there are further reasons I'll return to below.

Two of the most senior judges (by rank) in the UK and likely the most highly
regarded (by the legal profession generally) public law judge, wrote this
ruling that was handed down Thursday. The judges are also justices of the
Supreme Court of the United Kingdom, which will hear the appeal, although
nobody seriously expects that the UKSC will overturn the judgment unless the
parties agree to ask the Court for permission to consider some matters listed
in the judgment as "common ground" as in dispute. The parties are the national
executive (through a head of the new department for exiting the European
Union) and a mechanism which allows public interest cases to be brought
against the government by concerned citizens and residents; several
individuals are effectively the true claimants.

I'm going to make references to several numbered paragraphs in the ruling,
which you can read in full here. Unfortunately the source-text-with-markups
version is not yet online, but that will follow in due course as is general
practice. The parties agreed that drafts of the rulings would not be made in
advance because of the risk of leaks that might harm either party's interests,
and that they would agree to a true copy that would go online first, so that
there could be no question about the exact wording of the ruling, because the
matter was (and is still) virtually certain to be considered by the Supreme
Court in December.

[https://www.judiciary.gov.uk/wp-
content/uploads/2016/11/judg...](https://www.judiciary.gov.uk/wp-
content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-
the-eu-20161103.pdf)

The judicial review of executive authority is not novel; this judgment refers
(at paragraphs 26, 27, and 28) to case law established in the 17th century.

Just prior to the American Revolution the "Intolerable Acts" complaints made
frequent reference to the English Bill of Rights (1688) and most of the
American leadership made it abundantly clear before the Revolution began that
the unrest was founded in their desire to protect their rights as Englishmen.

What was eroding their rights was not the monarch (again, this was established
in the civil wars of the 17th century, and the Glorious Revolution (judgment,
para. 26)) but factional politics in the British Parliament. Rival factions
were vying for power, and the largest groups coalesced around Frederick North
and Charles James Fox. The former was strongly supported in the countryside by
rich land owners (with their wealth being generated by tenant farmers) and
professionals, merchants, and other cityfolk in the urban centres of the day.
As is common even today, the "country" party was highly conservative both
socially and economically, while the "city" party was keen on progressive
reforms to governance, extension of the franchise, and -- crucially -- equity
for Englishmen living outside England. The economic conservatives were trying
to preserve the balance of accounts available to the government in the ongoing
war with France and its allies and a few other parties (the Seven Years War,
which in U.S. history lessons tends to be called the French & Indian War) and
were hostile to spending money garrisoning the western frontier of the
colonies unless paid for locally, and they were thus intractably opposed by
interests in the colonies that favoured expansion Westward into the river
valleys that had been won from France, but knew there would be violent
opposition by the people already living there who had been France's allies.

The Foxite Whigs were very close with many Americans, especially Benjamin
Franklin, and were keen on breaking deadlocks in the British parliament on
this and other common matters. They essentially propagandized against the
Northites' insistence that the elected legislatures in each of the colonies
was the appropriate venue for discussing grievances and raising petitions to
the North-led government, with Charles James Fox himself proposing a system
whereby Englishmen living in the colonies could elect Members of Parliament
directly without owning land directly in metropolitan Britain and without
being physically present to cast a ballot. The Northites were intractably
opposed to this, as the Colonies would almost certainly provide the Fox
faction and its allies a clear and possibly even huge majority in the House of
Commons.

The only way the King was involved at all is that he stupidly -- or perhaps
because of the porphyria which clouded his mental faculties from time to time,
sometimes seriously enough that he went through periods of being called "mad"
\-- was playing favourites in pressing North to choose personal friends to
head up government departments. He even more foolishly pressured North to
formally recommend the appointment of a handful of his favourite courtiers as
(mostly, but not wholly, ceremonial) colonial governors.

However, that was essentially a Revolution-enabling error of judgment: Fox and
Franklin exchanged letters agreeing that because enough non-Englishmen were
living in the colonies, and had moved there to escape actual tyranny by
properly absolute monarchists -- especially in the German states -- they
should caricature the conflict as between Colonists and the King rather than
political factions jostling in the elected House of Commons, and engage them
as allies in the escalating political conflict, especially as outright armed
rebellion seemed likely. (There was of course a substantial history of armed
rebellions just prior to the English Civil War, and riots and other civil
disturbances in London in economic downturns as the one caused by the expense
of the Seven Years' War and preparing for the likely resumption of hostilities
with France, Spain and the Dutch Republic).

George III was also the monarch of a German state (Hannover), and that was
used to further convince immigrants -- especially German ones -- to support
the Revolution. The North government's decision to hire mercenaries from
Hesse-Kassel and other German states rather than draw down on reserves of
British soldiers -- it was essentially a cost-saving measure, and was quietly
opposed by the King because it significantly enriched German princes that were
in competition with his family's interests -- played right into that
characterization. (cf. Franklin's 1777 work, "The Sale of the Hessians").

So, the "sovereign" was at the time Parliament, and it was too factionalized
to protect itself from challenges in the courts, and that somewhat stayed the
hand of the North government -- and especially George Germain and the Earl of
Sandwich, who were the government officials in charge of dealing with the
rebellion in the Thirteen Colonies. However, it did in 1773-1774 make it even
more difficult to bring a lawsuit in a court against the government, so to
some extent you are right that 'sovereign immunity' was in play, although not
especially successfully. Had open warfare not broken out, it is very likely
that the North government would still have collapsed (resulting in a series of
uneasy coalition governments), that the Court of Appeal would have held that
the ex parte cases for relief against the British executive were in fact valid
(the British government mostly defaulted, deliberately, on several court
actions brought by Americans).

Additionally, one of the live constitutional issues -- especially in
Massachusetts -- was the primacy and authority of the executive of Britain
backed by the British parliament over the legislative assemblies of the
colonies. The Northites and their country-conservative allies were already
losing ground, with Parliament taking powers from the British executive and
delivering them to executive councils and legislative councils i many
colonies, starting with the Québec Act (1774).

Essentially the American Revolution was triggered by ineptitutes and
reactionary decisions taken by a weak proto-Tory government in a very divided
Parliament during a brief pause in a world war and in a period where trans-
Atlantic trade in raw materials was crucial to their pressing economic needs.
(By 1780, the British were again in active warfare, and without allies,
against five European powers, with fighting on four continents; they chose to
stop fighting in the American Revolution rather than risk losing possessions
elsewhere, especially the sugar and rubber plantations they controlled and
were fighting to protect from the Spanish and Dutch).

It was the failure of a government which barely controlled the elected House
of Commons, and yet was unable to bring itself to share power - even
temporarily and tactically - with other factions both in England and in the
English colonies.

~~~
s_q_b
That's a lovely bedtime story for children at Old Exeter, ending with a
British strategic withdrawal rather than humiliating defeat, but we prefer to
teach actual history on this side of the pond.

I think you're very confused about what sovereign immunity actually _is._
Sovereign immunity, also known as crown immunity, is the common law right of
the monarch not to be sued, from which judicial and investigative immunity
descend. My comment had nothing to do with the American Revolution, except to
note that the British imposed this terrible concept across their now-defunct
empire.

~~~
raattgift
Willion v Berkley(1561) 1 Plowden 223, 75 ER 339 (K.B.), "[it is a] difficult
argument to prove that a statute, which restrains men generally from doing
wrong, leaves the King at liberty to do wrong" (Brown J), with Dyer CJ
concurring.

Bracton, De legibus et consuetudinibus Angliae (c. 1235): "Quod Rex non debet
esse sub homine, sed sub Deb et Lege".

Case of Ecclesiastical Persons (1601) decided in Parliament, "the king is
bound by act of Parliament although he not be named in it, not bound by
express words; and therefore all statutes which are made to suppress wrong, or
to take away fraud, or to prevent the decay of religion, shall bind the King."

1615) 11 Co Rep 66, 72a, 77 ER 1235, Crown immunity from statute is confined
to what in modern terms is the Queen's Consent and the Prince's Consent, and
that there is no immunity from judicial review except with respect to the
monarch personally (i.e., it is a personal protection rather than a corporate
one).

Pawlett v Attorney-General (1688) Hardres 465; 145 ER 550, while consent of
the monarch (sua sponte or under formal ministerial advice) is required for
suits claiming money judgments against the monarch personally, equitable
remedies against the Crown do not require consent.

Pawlett remained the law of England through the American Revolution.

Even though there has been statutory reform recently, this is still reflected
in English law, and is one of the reasons why the recent headline
constitutional case was listed as R. (Miller et al.) v the Secretary of State
for Exiting the European Union.

Canadian law, incidentally, developed differently in the 19th century, and so
it would have been listed as Miller et al. v The Queen of Canada.

Indeed the British badly mishandled the fighting in the American colonies,
however that doesn't make your claims about the legal system of what was then
Great Britain was correct, and your recent argument on that front is not
supportable in English law of the time (and Scots constitutional law was not
effectively in play during the American Revolution). Neither could whatever
developed in the British empire after the Revolution was settled.

------
mabbo
> In an exceptional move by the notoriously conservative panel, the BPP agreed
> that Cacy should be paroled, just six years after she was convicted.

She served 6 years before parole, not 25 years behind bars

I'm far more concerned with Cameron Todd Willingham. Governor Perry had this
evidence, that much of the state evidence being used was junk science, and did
nothing while an innocent man was put to death. Shameful.

~~~
nostromo
The amount of junk science we allow in American court rooms is truly alarming.

I wish more people knew about the case you're reference. Here's an excellent
article:

[http://www.newyorker.com/magazine/2009/09/07/trial-by-
fire](http://www.newyorker.com/magazine/2009/09/07/trial-by-fire)

And here's a good description about how it's quite common for a "fire expert"
(which may simply be a normal firefighter) to misclassify an accidental fire
as arson, implicating innocent survivors as murderers:

[https://californiainnocenceproject.org/issues-we-
face/fire-i...](https://californiainnocenceproject.org/issues-we-face/fire-
investigation/)

~~~
yuhong
I also have been thinking of other examples. Imagine someone sued a vaccine
manufacturer claiming that the vaccine cause autism. Imagine also that years
later it turns out that vaccines can "cause" autism, but only in case of
things like leaky gut. Was the court and legal system designed for cases like
this?

~~~
ceejayoz
> Was the court and legal system designed for cases like this?

Yes. There's even a law that sets up a _specific_ court with special expertise
and powers in vaccine cases.
[https://en.wikipedia.org/wiki/Vaccine_court](https://en.wikipedia.org/wiki/Vaccine_court)

~~~
gizmo686
The fact that vaccines have their own court specifically specified by law
suggests that the legal system is not designed for that type of case, and
special provisions needed to be added to handle the more common instances.

~~~
ceejayoz
So the legal system's ability to adapt as necessary is thus evidence of the
legal system's inability to adapt? OK?

~~~
gizmo686
The legal didn't adapt in this case. The legislative system applied a
patchwork fix. Further, the fix is narrowly narrowly tailored to vaccines,
meaning that the legal system is still not equiped to deal with the same kind
of issue if it does not involve vaccines.

------
rdtsc
"Expert" witnesses for US courtrooms is a special kind of a parallel voodoo-
science world. Especially when it comes to arson.

Prosecutors like to pick the same people to testify as "experts" and their top
qualification is that they have testified before as "experts". I imagine many
have optimized putting up an act and throwing around fancy terms to make it
seems really precise and scientific. Their future employment depends on that.

~~~
tzs
In civil cases, where both parties often have a significant budget for hiring
experts, the experts often actually are top people from their fields but who
are retired.

I watched a patent trial, and an important part of one of the claims was that
certain data from a hard disk was cached in a RAM cache.

The side that wanted to see the patent invalidated brought up some earlier
patent that involved caching some data on a hard disk, and claimed it was
prior art that should have been considered. Their expert said that "RAM"
stands for "random access memory", and a disk is random access and it is
memory, so that any programmer or engineer who read the patent that called for
using a RAM cache would understand that caching that data on a hard disk would
count.

That, of course, was one of the most ridiculous things I'd ever heard.
However, the expert certainly was a real expert. He was a professor emeritus
and former head of the computer science department of a top CS school. In
fact, he had been the one who _started_ the CS program there and brought it to
its position as a top program. He was a fellow of the IEEE, and his published
papers back from when he was an active researcher were some of the seminal
papers from the beginning of the modern semiconductor and VLSI era.

So how the hell did this guy think that "RAM cache" is commonly understood to
include a cache stored on a hard disk?

I asked the lawyers for the side that was defending the patent, and their
expert (another retired professor emeritus, IEEE fellow, yadda yadda...) about
that. They explained to me that experts in a trial like this will get paid
$50-100k or more to testify in this kind of trial. They basically have to just
spend a few hours reading a patent, and then come up with an argument for the
side that is paying them that will sound good to a jury and that is not
provably a lie. Then they have to come and spend maybe a week at the trial
location, being there to help the lawyers out and to spend maybe an hour on
the stand. So basically $100k for a couple of weeks of not too strenuous work,
two plane trips, and a week in a hotel.

They don't have to worry that colleagues will find out about the dumb things
they said at trial and hold it against them or that it might tarnish their
legacy or reputation, because everyone in the field knows about these expert
witness gigs. When they hear that Professor Soandso said something really
stupid about RAM cache at a trial, they just think, "Oh...I guess Professor
Soandso wanted a new RV" or "Professor Soandso wanted a new boat". (In the
case of the expert for the patent owner, it was to be one of the earliest to
own a Tesla).

~~~
SilasX
I think you're being too uncharitable to the expert. It sounds like his point
was that caching on disk is _conceptually similar_ to caching in RAM, and that
therefore, for purposes of prior art, you should probably list inventions that
cached in this (similar) way. IOW, an engineer reviewing the literature should
have included inventions that cached on disk if they were otherwise similar.

Remember, prior art is intended to demonstrate the extent to which your idea
is new. It makes a big difference whether the inventor thought of caching _at
all_ vs whether they just used an existing caching scheme and swapped out the
implementation for a faster one.

Posters on HN make a big deal about obvious patents being granted because
someone took an existing invention and added "...on a computer/the internet".
Well, it's a similar problem when someone takes an existing mechanism and says
"... but on a faster storage medium instead".

------
garyclarke27
Similar junk in the UK has put many innocent parents away for "shaking baby
syndrome" just based on a theory, not proven by scientific evidence. Expert
witnesses who don't agree with the consensus establishment, have even been
banned from practicing medicine, thus most now refuse to testify.

~~~
DanBC
You might want to read the papers those banned doctors refer to, because the
doctors often mangle the science.

Here's one case of a doctor who had been struck off by the GMC. The judge
overturned that decision, but has maintained the ban on her acting as an
expert witness because she mangles the science so badly.

[https://www.judiciary.gov.uk/wp-
content/uploads/2016/11/squi...](https://www.judiciary.gov.uk/wp-
content/uploads/2016/11/squier-v-gmc-protected-approved-
judgment-20160311-2.pdf)

------
geff82
The nightmare is also that in some countries, when the police knocks on the
door to arrest you, you might get killed in a gruel archaic ritual called
"execution" at the end, even if you did nothing wrong, just the odds were
against you. Here in Germany I do not have to fear the police. If if the
judges wrongly sent me to jail "for life", at least I'd have some hope that
one day I can convince them they were wrong and get to freedom again.

~~~
zeveb
> If if the judges wrongly sent me to jail "for life", at least I'd have some
> hope that one day I can convince them they were wrong and get to freedom
> again.

Is your German government any more able to restore your lost decades than my
government is able to restore lost life?

For some crimes execution is unjust; for others it is just. It is just as
unjust to allow someone who deserves death to live as it is unjust to execute
someone who deserves life.

~~~
bzbarsky
> It is just as unjust to allow someone who deserves death to live as it is
> unjust to execute someone who deserves life

It's long been a general principle of criminal law, at least in the US, that
convicting someone who is innocent is in fact more unjust than acquitting
someone who is guilty. The sentiment has been expressed by Voltaire,
Blackstone, Ben Franklin, and a good number of others, going back to at least
the 18th century.

This is why (again in the US) conviction requires proof "beyond a reasonable
doubt".

------
rmchugh
The other case mentioned, the Willingham case is even more horrifying. A man
was convicted of murdering his children and sentenced to death on bogus
evidence. When presented with evidence to the contrary, the state of Texas
under Rick Perry ignored it and allowed the man to be executed. This is state
sanctioned murder of an innocent man. Why is the Governor not on trial for
this?

------
draw_down
We need a pretext for what we want to do, which in America is to lock people
up. If we can fool ourselves with something that sorta looks and smells like
science, that fits the bill perfectly.

~~~
aero142
I don't think it's fair to say we "want to lock people up". We need to believe
that we can make ourselves safe from criminals. We need to believe can do some
science magic and tell the difference between the criminals and the regular
people so we can sleep at night. Admitting we can't calls in to question the
whole premise of locking the bad people up. A judge or politician can't come
out and say, "we have no reliable way of deciding guilt or innocence." That is
reality but we can't allow ourselves to admit it.

~~~
draw_down
All I have to say is, look at our prison population vs any other country's.

------
metafunctor
Is junk science in court rooms a root cause or just a symptom?

~~~
notgood
I always despite this question so much; mainly because everything is a cause
of something and a symptom of something at the same time; there is nothing
isolated in this world. So you have to give a lot of context to see if -in
that context- it is a cause or an effect.

I'm this particular case you could say stupidity is the root cause, but saying
so it's too abstract to be usefu/actionable.

------
Tloewald
This reminds me of a New Yorker article on the same topic (covering an even
greater injustice, also in Texas -- in fact referred to in this article)

[http://www.newyorker.com/magazine/2009/09/07/trial-by-
fire](http://www.newyorker.com/magazine/2009/09/07/trial-by-fire)

------
johnhattan
Got a friend currently doing time in Texas for basically the same thing.
Here's hoping this gets the case some notoriety.
[http://thearsonproject.org/case-studies/curtis-
severns/](http://thearsonproject.org/case-studies/curtis-severns/)

~~~
Hondor
Wow. 27 years for burning down your business and claiming insurance, even when
it doesn't kill or seriously injure anyone, and the value is only ~$200,000.
Guilty or innocent, that's a completely obscene sentence!

How can anyone in Texas safely make an insurance claim for fire when the risk
of misunderstanding is so great?

In this particular case, it all seems to hinge on people's opinions of whether
a flying can could have jumped over some barrier or shot a plume of flame in
some direction and other subtle details about the scene that can't possibly be
known without actually reconstructing or simulating the whole thing.

------
finid
Somethings the main qualification of some so-called experts is a certification
from a 6-hour or 6-week class. From then on, they are eligible to testify as
an _expert_ in serious criminal cases.

------
edblarney
Question is: what is considered 'junk science' at the time it was used in
court?

Because I'm sure we are using some 'junk science' we just don't understand at
the present time.

------
lanius
Gerald Hurst and Chris Connealy are true heroes.

------
gourou
Making a Murderer season 2

~~~
mason240
Except this person appears to be innocent.

~~~
hueving
Uh, the whole point of making a murderer was to show that he could potentially
have been innocent as well.

------
yuhong
Anti-discrimination laws are even worse in that discrimination can happen with
no evidence at all. One of the methods used to enforce them (particularly in
things like hiring) is statistics, most of which assumes employees are
interchangeable commodities. They were designed back in the 1960s for things
like manual labor jobs. I am willing to suggest a compromise to limit them to
these kinds of jobs.

~~~
charonn0
I think you meant to reply to a different post.

