Junk Sciences and Scientists Strike Again in Texas
by Ed Lyon
It is an unfortunate byproduct in the age of mass incarceration in the United States that there are a great many wrongful convictions. Despite its negative reputation in the criminal justice area, Texas has been slowly reversing this disturbing trend. Dallas County was among the very first jurisdictions in the country to see its district attorney begin a convictions integrity unit.
At the state level, the 2005 legislature enacted statutes to create the Texas Forensic Sciences Commission (“TFSC”). This body is composed of one defense attorney, one prosecutor, and seven scientists. Its sole purpose is to assess the reliability of the forensic science(s) used by prosecutors to obtain convictions.
One of the TFSC’s pyrrhic successes was the determination that the arson sciences used in Texas death row prisoner Todd Willingham’s case was in the category of junk science and not reliable—after Texas executed Willingham.
Usually when the TFSC’s findings favor a convicted defendant, they are forwarded to the convicting court where a district judge weighs them and, if in agreement, sends a recommendation to the Texas Court of Criminal Appeals, which can reject the findings or accept them and reverse the conviction, freeing the defendant.
The case of school principal Joe Bryan exemplifies the TFSC’s focus on just the accuracy and legitimacy of the science without consideration for which party its findings may favor. Bryan was attending a convention for principals in Austin, Texas, some 120 miles from where he and his schoolteacher wife Mickey lived. Mickey was murdered late at night in the couple’s home while, as Joe has maintained for over 30 years, he was asleep in his motel room.
The case has been plagued with problems from the beginning.
A cigarette butt was found in the Bryans’ home but never tested for DNA, despite the fact that neither of the Bryans smoked. The primary police investigator claims to have contaminated the crime scene by tracking it into the home on his shoe heel. A rape kit collected from Mickey’s corpse was never tested.
Texas had to try Bryan twice, once in 1986 and again in 1989, before a conviction could be secured. At both trials, veteran crime lab technician Patricia Retzlaff testified for the prosecution. Retzlaff worked for the Texas Department of Public Safety, the state’s police, and was based in the Waco lab. The TFSC review of the 1989 trial surprisingly found there was [still] “ample DNA extract remaining” on the recovered cigarette butt and highlighted the untested rape kit. Focusing on Retzlaff’s testimony, the TFSC found she testified improperly that hairs collected at the Bryan home belonged only to the Bryans, basing her determination on a microscopic hair comparison that cannot yield that type of a definitive result. The TFSC unequivocally stated this was “misleading” and “scientifically unsupportable” testimony. She impermissibly bolstered the state’s case when she agreed that Bryan cleaned himself up and changed his clothing before he left, which is why his car’s interior was so clean.
TFSC’s Jarvis Parsons, its prosecution member, went on record stating “this is totally outside the realm of her [Retzlaff’s] expertise.” A blood-flecked flashlight found in the trunk of Bryan’s car by his brother-in-law, not law enforcement personnel, had fibers on it consistent with those in the car’s trunk, according to Retzlaff’s testimony. However, her lab records show no testing of any fibers. Finally, she did not do a thorough DNA analysis of case-related evidence in 2012 after being ordered to do so by a district judge.
District Judge James Morgan ordered testing on the cigarette butt and rape kit in 2017. Bosque County District Attorney Adam Sibley has fought tooth and nail against any relief for Bryan and appealed Judge Morgan’s order to Texas’ Eleventh Court of Appeals, where a decision is pending.
Culminating the TFSC’s hearing was blood-spatter expert analyst Robert Thorman, admitting that “My conclusions were wrong. Some of the techniques and methodology were incorrect. Therefore some of my testimony was not correct.”
Attorneys Jessica Freud and Walter Reaves have tirelessly championed Bryan’s case. They, along with Sibley, were present at the latest TFSC meeting where the TFSC informed Sibley for the “second time that there is compromised scientific testimony supporting Joe’s conviction,” stated Freud.
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