Junking Junk Science?

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Still, the measure – which, notably, passed without opposition from the prosecutors' lobby – does nothing to stop the use of junk or questionable science in the first place. And the language in the final bill provides that after all the hoops are cleared – demonstrating due diligence at the trial level to ferret out updated science, for example, and that had that newer evidence been presented at trial the defendant, "on the preponderance of the evidence," would not have been convicted – the CCA may, not shall, grant relief. In other words, whether the law has any teeth – any real meaning for defendants perhaps wrongfully convicted based on questionable science – remains to be seen.