False or Flawed Forensic Evidence Raises Questions About Two Texas Capital Convictions

Two recent appel­late deci­sions by the Texas courts have thrust into the nation­al spot­light the con­tin­u­ing con­tro­ver­sy over the use of false or flawed foren­sic tes­ti­mo­ny to secure con­vic­tions in death penalty cases. 

On October 18, the Texas Court of Criminal Appeals ordered a Travis County (Austin) tri­al court to con­duct a hear­ing to con­sid­er evi­dence that the Austin police crime lab had botched its analy­sis of DNA evi­dence and pre­sent­ed sci­en­tif­i­cal­ly false DNA tes­ti­mo­ny lead­ing to the con­vic­tion and death sen­tenc­ing of Areli Escobar in 2011. The same day, the court reversed an order of a Harris County (Houston) tri­al court that had grant­ed Arthur Brown a new tri­al after the low­er court had found that pros­e­cu­tors had pre­sent­ed false bal­lis­tics tes­ti­mo­ny in secur­ing Brown’s con­vic­tion and death sen­tence in 1993. 

In his peti­tion for relief, Escobar argued that he was enti­tled to a ​“com­pre­hen­sive, inde­pen­dent review” of the sci­en­tif­ic evi­dence pre­sent­ed in his case because his cap­i­tal con­vic­tion ​“rests on foren­sic evi­dence devel­oped by incom­pe­tent sci­en­tists using bad sci­ence.” The Austin crime lab has come under fire dur­ing the past few years as a result of improp­er pro­ce­dures and poor qual­i­ty con­trol — prob­lems that ulti­mate­ly result­ed in the clo­sure of the lab and dis­missal of almost all its employees. 

The court of appeals direct­ed the tri­al court to exam­ine Escobar’s claims that the lab staffed his case with poor­ly trained ana­lysts, cross-con­t­a­m­i­nat­ed sam­ples, prac­ticed ques­tion­able ana­lyt­i­cal meth­ods, and pro­vid­ed false and mis­lead­ing DNA tes­ti­mo­ny that taint­ed his pros­e­cu­tion for the sex­u­al assault and mur­der of a neigh­bor. The appeals court also ruled that Escobar was enti­tled to review of a claim that pros­e­cu­tors had pre­sent­ed mis­lead­ing foren­sic tes­ti­mo­ny about his prox­im­i­ty to the mur­der scene based on false or mis­lead­ing cell-tow­er location information. 

The same day that it grant­ed Escobar fur­ther review of his claims, the appeals court over­turned the deci­sion of a Houston tri­al court that had grant­ed Brown a new tri­al based on the pros­e­cu­tion’s pre­sen­ta­tion of false or mis­lead­ing bal­lis­tic expert tes­ti­mo­ny at his tri­al. In secur­ing his con­vic­tion and death sen­tence for four drug-relat­ed mur­ders that he and two accom­plices alleged­ly com­mit­ted in south­west Houston, pros­e­cu­tors relied on the tes­ti­mo­ny of a firearms expert who said ​“absolute­ly” that the bul­lets recov­ered from the vic­tims matched two guns that were linked to Brown. 

Brown’s exe­cu­tion had been stayed in October 2013 to allow for addi­tion­al review of that evi­dence. After review­ing the new bal­lis­tic evi­dence, the tri­al court deter­mined that the state pre­sent­ed foren­sic tes­ti­mo­ny that was ​“plain­ly wrong and false” with respect to one of the guns and that was ​“plain­ly false” with respect to the oth­er gun. However, the appeals court ruled that, even if the foren­sic evi­dence was false, it did not enti­tle Brown to a new tri­al because the jury could have still con­vict­ed him under Texas’s law of the par­ties, a broad rule that makes a defen­dant crim­i­nal­ly liable for the actions of his accomplices. 

Judge Elsa Alcala dis­sent­ed, reject­ing the major­i­ty’s con­clu­sion that guilt was a fore­gone con­clu­sion and not­ing that ​“oth­er evi­dence of guilt was exceed­ing­ly weak when exam­ined with­out the sup­port of the erro­neous firearms evi­dence.” She not­ed that the tes­ti­mo­ny from the two wit­ness­es at the crime scene had cred­i­bil­i­ty issues, and Brown’s sis­ter recant­ed her tes­ti­mo­ny that Brown had told her he shot and killed six peo­ple, say­ing she had been coerced into tes­ti­fy­ing false­ly. Given these facts, Judge Alcala con­clud­ed that knowl­edge that the foren­sic tes­ti­mo­ny paint­ing Brown as the shoot­er was false and unre­li­able may have affect­ed the jury’s deter­mi­na­tion of guilt or the sen­tence it imposed in the case.