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25 Years After Junk Science Conviction, Texas Admits Sonia Cacy's Innocence (theintercept.com)
310 points by finid on Nov 4, 2016 | hide | past | web | favorite | 117 comments



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...

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


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.


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.


Sovereign immunity is a mixed bag. It protects police, judges, prosecutors, etc from having frivolous or retaliatory lawsuits filed against them by persons with a grudge. On the other hand though, it lessens accountability because someone who has been genuinely wronged by a malicious police officer, judge, prosecutor, etc has no real means to hold the individual accountable for their actions. Sure the departments can be sued, but that does little damage, harms innocents, and doesn't not bring the person accountable to justice. My gut tells me there is some acceptable middle ground here, but I have no idea what it is and I'm not sure anyone really does. I do think, if I only had the two options, that having immunity, while far from perfect, is a better option than the opposite because it protects innocents, which is more important than punishing criminals.


Sovereign immunity does not protect innocents. When officials have immunity, they target vulnerable people for prosecution and imprisonment, even if those targeted are innocents. In general, police and prosecutors do not care whether a person is actually innocent, they care only if they can convince a judge/jury to imprison the person. This is the opposite of protection innocents. Over time, "successful" police/prosecutors are the ones who imprison the most people, pushing out those who actually try not to imprison innocent people.

On the other hand, if officials did not have immunity and were held accountable for abusing the law, the incentives would be properly aligned.

The problem of 'frivolous' or 'retaliatory' lawsuits is a red herring. Sometimes the plaintiff might not have enough evidence to succeed in court but that is not frivolous, its simply insufficient. This is mainly an excuse people used to justify mass incarceration, probably to protect their conscience from making them feel guilty about what is actually done by their government. Perhaps, to appease those of your persuasion, there could be a government fund used to defend a lawsuit for the first $X to dis-incentivize retaliatory lawsuits.


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...

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.


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.


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.


Thank you for this overview of what was happening in London.


See the parallel "Democracy is broken" piece from the 1860's - it's precisely this that the author alludes to - that states grow more, not less divergent over time. I'm not sure that that's true, however, nor am I sure that it's a bad thing - we see devolution proactively happening elsewhere in the world.


39 of 50 US states select judges by election.

43 states elect "attorneys general" which are generally internal state counsel but sometimes also heads of the state judiciary.

Most states (counties therein) elect sheriffs, but the role of the sheriff's office varies greatly by state. Sometimes it's a purely administrative role.

My point being: there are some pockets of sanity in the US. But I agree -- law enforcement should not be a political office.

There might be some value to a putting candidates to a public vote though. If the alternative is an appointment by the state governor, the potential for less accountability exists.


The idea is that by making the position directly elected, those who hold it will more closely reflect the views of the electorate.

If it were an appointed or civil service position, then the position would only indirectly reflect current public opinion.

Now more direct democracy will always marginalize minority stakeholders, and those with little resources, but if this trade off is worthwhile is debateable.


I mean, obviously it's a system with problems. But it's an attempt to deal with the problem that the state can use the justice system in an arbitrary way to punish people it wants to go after for different reasons.


In my county, there were a number of incidents where some racial and other concerns came to the forefront.

One of the ADAs had enough, ran for DA, win and improved things substantially.


It holds the judiciary accountable to the people so we don't end up with self-sustaining tools of repression like the star chamber, though the feds have done a good job of setting up their own copy to rubber stamp warrants.


I share your outrage/fear, and I invite you to contribute to The Innocence Project like I do: http://www.innocenceproject.org/

They've already exonerated about 340 people, which likely amounts to many lifetimes of innocents' jail time avoided


The real scary thing is the reason these people have to "fight" so hard even with all evidence against the fake evidence and incompetence on theire side.

Jurys who fear the idea of having been fatally wrong more then they want too find out the truth. The idea that one could in his seemingly rightous wrath murdered someone innocent using a loaded state, seems so horrifying that more injustice has to be sunken into that fallacy.

Agencys who fear to be held responsible for the costs of incarceration and incompetence, on which whole carreernetworks where errected upon.

Finally a public, that all idealizations from the left and right, often consists of basically rage-foaming ill informed refusing the work-load of getting actually informed on a case.

Also the well sortedness a universe has, where for everyting bad that happens, there is a culprit, a actual blame person. So much more comforting to sleep at night with having propability in jail, instead of accepting the dangers that beeing alive inherits.


Easy to solve with accountability and its friend the chilling effect. Prosecutors should serve whatever wrongful time they put someone in jail for. I bet we would see wrongful convictions drop to zero.


But then prosecutors would be much less willing to take acceptable risk when called for because the punishments are so draconian. That being said, letting a dangerous criminal free is much better than having a single innocent incarcerated.


There is a concept I only just learned about yesterday which covers this idea:

https://en.wikipedia.org/wiki/Blackstone%27s_formulation


I know. I addressed the chilling effect as a net positive. Given the overwhelming power the state has in the trial process, it's the only check I find appropriately/equally as potent.


>If two "experts" can look at the same evidence and come to entirely different conclusions, how is this science?

Scientism is a mental disease perpetuated by people who seek social persuasion through whatever means convinces a person/the public rather than objective epidemiologically derived truth. It's easier to appear smart by accepting dubious "science" than rebuking it with skepticism.


What's more, the scientific field is full of (actual) experts looking at identical evidence, yet coming to different conclusions. That's the nature of inquiry.

The systematic enterprise that we refer to as "science" is inductive in nature far more often than most adherents to scientism tend to realize. Even deductive conclusions are ultimately reached with nearly endless (and often unstated or unrealized) assumptions, and assumptions don't always turn out to be correct.


But science is about creating and using tests for those assumptions. That's the part of the process that makes it science, as against philosophy.


The worst part is that we see people attempting to refute good science with poor science because of almost entirely political reasons such as the fact we're still having debates on the mere existence of climate change and unsupported or entirely debunked fears of GMOs and nuclear power.

Even worse, I don't think teaching science better in our schools will do anything to change this status quo due to the huge amounts of money poured into political agendas.


>>I don't think teaching science better

It is not about teaching science better, it is about teaching critical thinking at all.

Schools, especially primary schools, are devoted to conformity, social acceptance, and political correctness

They do not teach people to be critical of those in authority, or power.

This drives out the required critical thinking a person needs when they hear dissent on climate change, or how GMO's will be the end of humanity instead they just accept it as fact because a person of authority in their lives(be it a politician, preacher, or even simply an older adult they look up to) has told them it is fact so it is fact.


Schools, especially primary schools, are devoted to conformity, social acceptance, and political correctness

Bingo and well said! We condition our kids to accept everything they read in their textbooks as fact. Critical thinking is key and missing.

When I was in grade 3 on MLK day our teacher split our class into 'races' by eye color and gave blue eyes treats made the brown eyes do work, it's a known/controversial exercise meant to teach about discrimination, which it did, but also it made us question authority.

We should create exercises where teachers/staff purposely present incorrect or conflicting information to students, forcing them to regularly question the quality of the information and the motivations/agenda of the source.


In the UK basic level the English language exam sat by all 16 year olds did used to do this to some limited extent (you were given an advert and had to analyse it in terms of how it tried to persuade you etc).


A lot of critical thinking and questioning of authority without the proper framework of rationality and methodology can backfire into turning more people into paranoid tinfoil hatters rather than critical thinkers with a healthy skepticism of leaders.

Unfortunately, most of our current public education system was not designed to create thinkers as much as assembly line workers and this erodes the confidence in our education system by knee-jerk public institution haters that make up a great deal of the US population.

I don't particularly like public anything but the either-or mentality that pervades public discourse really needs to be addressed for progress in discourse to proceed. Talking about the same wedge issues like we did 50 years ago as if nothing's changed since the issue came up is not progress in discourse at all by definition. It's reminiscent of many long, bad marriages - the arguments are always the same.


Disease is going a bit far.

  Excessive belief in the power of scientific knowledge
  and techniques
https://en.oxforddictionaries.com/definition/scientism

Or to put it another way, too much logical positivism.

http://rationalwiki.org/wiki/Scientism

https://en.wikipedia.org/wiki/Scientism


Even DNA is suspect, if not because the base science is junk but simply because keeping some semblance of an "evidence chain" requires much more care than is presently taken.

German police was chasing the "phantom of Heilbronn" until it turned out that all the found DNA was actually of some laboratory assistant:

https://en.wikipedia.org/wiki/Phantom_of_Heilbronn

Just recently there was another highly dubious report of some DNA link between one high profile case and another:

http://www.dw.com/en/thuringia-to-check-potential-neo-nazi-c...


Not even a laboratory assistant.

It was a factory worker who manufactured the swabs that were used to collect the samples.


"Opinion" is a subjective judgment based on personal weighing of facts by priority and probability. We must rely on judges and juries and expert opinions to form opinions.

This junk forensics is just "guessing" and "prejudice".


> fingerprints are junk science?

Really? The seem to be fairly reliable: https://en.wikipedia.org/wiki/Fingerprint

Also with the other, it seems to me they are not 'junk science'. More they are indicators, not absolutes. So people are using them incorrectly, not they shouldn't be used.


The amount that money dictates outcome in matters of law should frighten us to the core.


This is one of my biggest fears about living in Texas. I've seen the justice system at work up close and it's just a mindless life crushing beast.

Furthermore in many counties there's two prosecutors in the courtroom, meaning the republican "tough on crime" judge is no more than additional help for the prosecution.


In defense of forensics, while not an exact science, accuracy increases when multiple forms of evidence lead to the same conclusion.

For example.... Finger prints match, DNA matches, hair sample match.... Likelyhood of three experts being wrong is statisticly extremely low....


Except those forms of evidence aren't independent.

Contamination affects all of them and on top of that most of the people analysing them know the results of the other methods.

It's a sham by design.

Reminds me of personality tests in custody disputes. Everyone making the evaluation demands to know the results obtained so far. What a joke.


> If two "experts" can look at the same evidence and come to entirely different conclusions, how is this science?

Happens all the time in science. You might be thinking of engineering, where opinions vary much less.


Yes, it is called Railroading. The prosecutors have a prewritten story and bus you through the system.


> 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.


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

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...



There was another one in TX where a father was jailed for arson/murder? thinking he intentionally set the fire which killed his sons, I think, eventually new science cast doubts on the conviction. In the second revisit of the case it seemed the children had been playing with incendiary devices and accidentally set fire to a shed they were playing in.

Most of the evidence against the father was circumstantial and inferential (divorce? time he arrived home, etc.)

Not sure if he was set free, but scary anyway.


He was innocent & executed.


Do you recall the case? I think it's one of the seminal cases that cast grave doubts on the accuracy of fire science as then and currently understood.


>Do you recall the case?

PBS to the rescue:

http://www.pbs.org/wgbh/frontline/film/death-by-fire/


Similar, but the case I recall was this one about mr Graf: https://wrongfulconvictionsblog.org/2015/08/20/modern-forens...

He's not the most sympathetic guy, given his peccadilloes, but the case was mostly circumstantial with some junk science thrown in for good measure.

However, the overturning of his conviction was due to the injustice carried out on mr Willingham and the exposition of the junk science behind it. The overturning of mr Graf's conviction was the first one based on what was learned from the Willingham case.


I was aware of that case when it was unfolding, but did not follow it until the end.

Surprised that they convicted and executed the guy. Sad case, but how many of those have taken place in Texas, or in the US as a whole?


It's actually discussed in TFA.


He was executed. His innocence has not been established but — based on what I've read — I suspect that he was, in fact, innocent.


Or to put it more appropriately, you are not convinced beyond a reasonable doubt of his guilt?


True. I wasn't on his jury, though, so my opinion isn't legally relevant.

If he were indeed innocent, then the Texas state justice system needs to do some long hard thinking about how he was indicted, convicted and executed.


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?


> 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


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.


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


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.


> There's even a law that sets up a specific court with special expertise and powers in vaccine cases

"Experts" or just special interests? ...


"Experts", as in the vast majority of all scientists and physicians with relevant credentials amongst whom there's a near unanimous consensus on their efficacy and safety.


Of course, I bet that astrologers are in near-unanimity about the efficacy of horoscopes!

Not that I think vaccines are either ineffective or unsafe — just that 'these conclusions are accepted by people who accept these premises' is hardly persuasive to those who don't accept those premises.


Scientists/physicians have done the necessary research studies to demonstrate both efficacy and safety. They are, in fact, legally required to do both before their products can even be administered to patients. Studies have been done involving tens of millions of patients, entire diseases have been wiped off the earth, etc.

Meanwhile, astrologers are in possession of plenty of empirical data that it's a bunch of hooey with no evidence supporting its efficacy. (It is, of course, generally regarded as safe.)


Horoscopes are extremely effective. I don't know anyone who reads horoscopes who doesn't get use out of them.

Is it your opinion that science fiction is "ineffective"?


Vaccines was used just as an example.


And it got an answering example.


The point is that the problem is likely more general.


Yeah, I got that you meant to be saying that. But you gave a specific instance, and in that specific instance, the problem didn't exist.

So: Could you give, say, ten more instances, and see in how many of them the problem exists? That way, we can all get some idea of how general the problem is.

But if you merely claim that "the problem is likely more general", with nothing behind that but your belief that your statement is probably true, well, don't expect to persuade many people that way...


I remember claims that some of John Edwards' fortune came from what turned out to be bad medical theories ( http://m.cnsnews.com/news/article/did-junk-science-make-john... ).

I don't know if there is a good solution to the problem. Some questions need to be answered "soon," while it's always possible that we'll eventually understand a problem well enough that we'll laugh at our earlier understanding.


The shame is on the whole system, not just on former Gov. Perry.

You see, here in the US, being "tough on crime" improves your odds of getting elected, or of keeping your position, if you're already elected.


> 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.

In his defence, how can Gov. Perry distinguish between the case of the state investigator utilising junk science and the case of the someone who uses junk science to allege that the investigator used junk science?

And of course there are plenty of other calls on a governor's time: his job was not to spend his entire term reviewing that one sentence. So of course he has to have panels of people he trusts are experts to review things for him. And they too have multiple items to consider.

Going by what I've read, I would not have made his decision. But I wasn't in his situation, and I don't have access to the experiences he's had. Perhaps he had good reason to distrust those who urged him to distrust the investigator.


> In his defence, how can Gov. Perry distinguish

As with most of his responsibilities, his job isn't to actually make the decisions, it's to appoint a panel of experts to do this for him. He is ultimately responsible for the decisions that panel makes, and should be judged based on the quality of people appointed and the level of work they did.

In this case, two panels would be relevant: The Texas Forensic Science Commission, and the Texas Board of Pardons and Paroles. It's not Perry's job to figure out the science or whether justice is being served, but it is his job to appoint people to do that.

And we know that these groups have failed horribly at doing so, and we know why: In large part because Perry purposefully stacked it with people who would reflexively side with prosecutors rather than pursue justice. (This was mentioned in the article, and they even linked to several sources that discuss this in much more depth.)

Or do you think the Texas Forensic Science Commission also shouldn't be expected to distinguish between good forensic science and junk forensic science?


> And of course there are plenty of other calls on a governor's time: his job was not to spend his entire term reviewing that one sentence.

Gosh, this sound in my eyes makes you sound like a monster.

You know that a living human being (innocent) life was forcibly stopped, correct? If this doesn't speak to you then imagine this could as well be your child, or parent, or spouse? I mean -- is there anything more important to anyone - whether politician or not - that live of another person, especially if you're in charge of keeping this human alive or putting stop to it.

Or maybe I'm simply being too soft. It might be - I know - I've been living in the USA for too long...


There's more than one person sentenced to death in Texas: it's thus mathematically impossible for the governor to spend 100% of his time on each capital case.

There's more than one person in prison in Texas: surely those prisoners deserve some thought too. Is the governor to personally rehear every case?

And then there are all of the other things a governor is elected to do on behalf of the other 25 million Texans.

It's just not possible to devote oneself 100% to everything. Heck, a system in which the executive rehears every judicial case personally would almost certainly involve quite a bit of injustice as well.

Willingham was convicted by a jury (presumably of his peers, although that guarantee has become ever more worthless over time); his conviction was upheld by numerous courts; the techniques which produced evidence against him were supported by the state forensics review board. He wasn't executed by a man: he was executed by an entire system.

So, if he was indeed innocent, then we should focus on the entire system. Do forensics techniques need to be improved? Do police investigating techniques need to be improved? Do judicial procedures need to be improved? Do board nomination procedures need to be improved? A commenter upthread notes that Governor Perry's nominees were reflexively pro-prosecution: were they; are there reasons why he felt he ought to nominate those people, or reasons why he felt he ought not nominate other people? Which of these things could be improved? Would those improvements themselves have negative side effects? Would the side effects outweigh the improvements?

Some folks say that our adversarial court system has problems, but I can easily see that non-adversarial systems have problems as well. Nothing's perfect, but can we be better?


This reply takes advantage of the opportunity of a dialectical opponent, represented by your comment, to address abstract issues alluded to by your words of choice. It is not intended to argue or refute your worldview directly.

> is there anything more important to anyone ... [than the life] of another person

Behind the veil of ignorance which equates all persons, things which might reasonably be considered more important include:

-the lives of more than one other person

-severe changes in the quality of life for many people

-significant environmental degradation, and other systemic alterations of sufficient scale

Allowing for the criteria to include the differences between individuals, the most immediate additions to the above list becomes:

-the life of oneself

-the preservation of the lives and quality of life of one's family members

Further, although our current legal system precludes it, the framework of thought exists for very fine grain gradations in the differing values considered inherent in different people, as expressed by e.g. the German weregild system [0]; under such precepts, allocations of attention would be prioritized following the accepted worth of each object of attention.

> maybe I'm simply being too soft

The perspective assuming a position of ignorance is often considered "soft" and idealistic, in contrast to the "hard", realistic, non-egalitarian stance here epitomized by the system of man-price. I propose that this is the common interpretation. However, I counter that the former is only effectively realizable by a juridical system of great strength and resources, before which all men can be operationally equated because the marginal burden any one case places on the faculties of the law is negligible. Therefore, perhaps you voice your position not from reasoning aligned with softness, but rather that aligned with awesome and as-yet-non-extant might.

[0] https://en.wikipedia.org/wiki/Weregild


Yes, and the number of death row inmate exonerated by DNA evidence (frequently after having fought a long battle to be able to use it) should convince anyone that the death penalty is putting innocent people to death.

http://www.deathpenaltyinfo.org/innocence-list-those-freed-d...


Only an idiot thinks that the justice system never convicts and punishes the innocent. Only an idiot thinks any justice system which convicts and punishes anyone will never make mistakes (the only process to never punish the innocent is to refuse to punish at all, which has its own downsides).

Innocent folks are executed. Innocent folks breathe their last breaths as life prisoners. Innocent folks die of hear attacks a year into their sentences. Innocent folks spend decades in prison. Innocent folks are forced to register as sex offenders. Innocent folks go into bankruptcy due to fines.

You can't get your life back whether you're executed or die in prison. You can't get your years back. You can't take back public humiliation. You can't restore lost opportunities.

That innocents suffer is not an argument against a justice system, because having no justice system at all is yet more unjust.

As an aside, I agree with you that it's despicable that inmates have to fight so hard to use exculpatory evidence, particularly when that evidence simply didn't exist when they were convicted. This is indeed a great problem.


We updated the submission title from “How junk science put a woman behind bars for 25 years”, which breaks the rules by being editorialized.


"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.


https://www.youtube.com/watch?v=sYqXlRQrBN4

Reminds me of this guy. Painful to watch, scary to imagine him in a courtroom.


Previous HN discussion (different link but same incident): https://news.ycombinator.com/item?id=10826028


Holy crap that's insane. Is this normal?


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).


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".


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

Maybe because he really did? To paraphrase you: How the hell did we arrive in 2016 where almost everyone believes "map/reduce" implies parallelism or where the inventor of the term "object orientation" permanently has to set the record straight about what he really meant and how far our understanding today diverges from that?


Integrity for sale.


This phenomenon exists everywhere. Who's an expert? A person with a history of being an expert, of course.

It's a socially distributed form of confirmation bias.


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.


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...


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.


After two or three decades behind bars, you don't care about your freedom anymore. (Watch "The Shawshank Redemption" and see what happens to Brooks, if you don't get what I mean.)

I really don't get where this ridiculous focus of human rights activists on the death penalty come from. Sure, death is irreversible, but so is locking someone away for decades. I actually think decades behind bars is more cruel than a swift death.

Which reminds me... why aren't the false experts who caused the convictions of innocents locked away themselves? How is killing a man by lying about evidence not murder?


You have to prove they lied and we're not simply dumb or mistaken, which is sadly often the case.


Indeed, but why?

Any professional is responsible for the damage they cause, whether on purpose or by neglect. These forensic "professionals" are not. And that's messed up. Besides, if you are both a professional and dumb or mistaken, you say that you don't know. Lying about your lack of confidence destroys human lives, and that's why I think bad "experts" should be tried for murder and probably convicted for (involuntary) manslaughter. Making expert witnesses responsible for the BS they spout would align their incentives correctly.


> 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.


> 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".


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

You get 25E per day[1] of unjust imprisonment. And it's not 25E you actually get, some amount is subtracted for "lodging and food". And when you need social benefits, you'll have to use that money first before getting them. But what the comment you were responding to said is true: At least you are not dead. Though I'm not sure there is much difference for those who have to suffer such injustice.

[1] (german) https://de.wikipedia.org/wiki/Haftentsch%C3%A4digung


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

No, it's not. For one thing, 50/50 guilty or innocent is nowhere near sufficient to qualify as 'proof beyond a reasonable doubt' that can convict someone - which is exactly what your moral equivalence implies.

There are plenty of arguments to be made about how convicting an innocent person creates far more injustice then not convicting a guilty one, the difference between a well-oiled, 'cool-headed' criminal system meting out injustice, compared to a crime of passion, systemic bias...


Your death penalty govermnent can't resurrect you from the deaths. And also most people stop caring if your sentence was correct after they killed you. Years behind bars are a horror, but at least you can do something about it. And in the US, they keep you behind bars for years anyway before you get murdered by the government. It is not like the judge wants to bring you to death and after a day or two your nightmare comes to rest (as will your life).


"Here in Germany I do not have to fear the police."

Really? That lesson didn't stick.


It never does, for some reason.


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?


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.


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.


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


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


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.


It's basically a symptom of a highly imperfect system, where few participants actually have the incentive of seeing justice done.


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


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/


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.


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.


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.


Gerald Hurst and Chris Connealy are true heroes.


Making a Murderer season 2


Except this person appears to be innocent.


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


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.


I think you meant to reply to a different post.




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