Monday, May 05, 2008

Brown v. Farwell (9th Cir. - May 5, 2008)

This is definitely a powerful way to begin an opinion:

"At Petitioner Troy Brown’s trial for sexual assault, the Warden and State’s (“Respondents”) deoxyribonucleic acid (“DNA”) expert provided critical testimony that was later proved to be inaccurate and misleading. Respondents have conceded at least twice that, absent this faulty DNA testimony, there was not sufficient evidence to sustain Troy’s conviction. In light of these extraordinary circumstances, we agree with District Judge Philip M. Pro’s conclusions that Troy was denied due process, and we affirm the district court’s grant of Troy’s petition for writ of habeas corpus."

It's a little less strong, however, when you read on, because at that point you realize that that "inaccurate and misleading" nature of the testimony at issue doesn't actually go to the merits of the DNA analysis, but instead relates to how those findings were presented. True, these facts were presented in an erroneous fashion -- in a manner called the "prosecutor's fallacy" -- that wrongly conflates guilt and match probabilities. And that's error, to be sure. But that a much weaker claim than I was expecting based upon the opening paragraph.

Here, for example, is the money paragraph of the opinion: "Romero initially testified that Troy’s DNA matched the DNA found in Jane’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random
match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula. Significantly, another factor is the strength of the non-DNA evidence. Here, Romero improperly conflated random match and source probability, an error that is especially profound given the weakness of the remaining evidence against Troy."

That's a fair piece weaker than the opening paragraph, eh? At least for me, I read the outset of the opinion as saying that there might well be an innocent person in prison. But when I read the rest of the opinion, I thought: "Well, yeah, I guess in theory there might be an innocent person in prison, and apart from the DNA evidence, there are indeed some holes in the case, but even after I've heard a perfectly accurate articulation of the DNA evidence, I think that Troy looks pretty darn guilty of the offense." That's a fair piece different than my reaction after the first paragraph.

Mind you, I disagree with Judge O'Scannlain, who dissents from Judge Wardlaw's opinion and concludes that even with an accurate recitation of the facts "no rational trier of fact would have changed its mind." Maybe I might not have changed my mind (maybe), but I'm not convinced that's true for everyone. It's tough, I concede, to be convinced yourself that X is true beyond a reasonable doubt and yet admit that you might be wrong: that other rational parties might find the other way. And that's a global problem whenever you're doing harmless error review, and is especially difficult in habeas cases, in which you have to add to this difficult mental gymnastics the required deference to state court findings. But, here, I think that even though I -- an alleged rational actor -- might have still voted to convict, a parallel rational actor might well have gone the other way. Which means a retrial is required.

Only when we're darn confident that a retrial would come out the same way as the originally flawed proceeding should we allow the latter to stand. I don't think that's the case here. Sure, Troy may well be convicted again at a trial in which the facts are accurately explained. But that is a result that's far, far from meaningless.