About Victoria Erfesoglou

Victoria Erfesoglou is licensed to practice law in California and Texas. She practices criminal defense in Harris and contiguous counties. She is a proud graduate of Gideon’s Promise and Harris County’s FACT Program. Victoria is extremely please to serve as the Assistant Director of the Texas DNA Mixture Review Project. She is deeply committed to indigent defense and fighting the systemic failures of the criminal justice system. She has certification in the Greek language and degrees in Psychology and Philosophy.

Twitter: @VErfesoglou

Death and Taxes at the Harris County Jail

Wealth rather than culpability often determines outcomes in the criminal incarceration industry (and if you don’t think it is an industry, you’re not paying attention- and I encourage you to read Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness).

Recently, an acquaintance of mine, the same age as me, was found dead in the Harris County Jail. Vincent Young died in February 2017, after allegedly hanging himself with a bedsheet. He was a father of nine, was no stranger to the criminal justice system in Harris County, and had bruises and a busted lip at the time of death. Vincent knew the system. He had a history of being represented by one of the best criminal defense attorneys in Harris County. He had more than one criminal case dismissed against him in the past, and knew that while you may not be able to beat the ride, you can beat the rap.

A 2015 article showed that over a ten year period, approximately 200 people have died in Harris County Jail. Vincent is now another human life lost to this taxpayer-funded institution: a man who was constitutionally presumed innocent, and who had previously shown his willingness to show up to court dates and did not constitute a flight risk.

Despite numbers like these and the knowledge of how sour and squalid the conditions are at the Harris County Jail, there are still people arguing with a straight face that the reason poor people stay in jail is because they want to be there. How any human, let alone a lawyer, could argue in a court of law that people want to be in jail is beyond comprehension and defies human decency.

Alec Karakatsanis and his legal team at Civil Rights Corps, along with other counsel, began a hearing yesterday afternoon in Federal Court in Houston on their bail challenge lawsuit against Harris County.

Mr. Karakatsanis, the award-winning director and founder of Civil Rights Corps, is an advocate dedicated to “ensuring that the legal system protects the important principles of human and civil rights, equality and fairness.” Civil Rights Corps, and people like Mr. Karakatsanis, are tirelessly fighting against human caging and the inhumane bail-bond system, which is the modern disguise for debtor’s prison.

This epidemic of mass incarceration of the poor is not unique to Harris County.

Kalief Browder was 16 years old when he was detained on suspicion of stealing a backpack. He spent three long years waiting in jail for trial because he couldn’t afford bond but didn’t want to plead guilty, he wanted to stand on his rights. He spent two years in solitary confinement, suffering various beatings by inmates and guards. His family reported that his mental health condition deteriorated as a result of his incarceration. Two days after being released from jail, a free and innocent man, he hung himself. He held out because he was innocent. He remained captive, beaten, and mentally deteriorating because he was poor. And in the end he paid the ultimate price for his poverty.

As a criminal defense attorney, I frequently have to file motions, writs, and request hearings to reduce or eliminate bond or onerous bond conditions (such as expensive ankle monitoring systems, no-contact with a client’s own children, or a client being unable to return to their own home while on bond). In counties contiguous to Harris County, I have been appointed to represent a client days after they have already been jailed, and a bond amount has somehow been determined without any kind of defense counsel present. No one was there to argue for her bond amount (or against it), no one was there to say she wasn’t a danger to the community, or that she wasn’t a flight risk. No one.  Just a prosecutor telling a judge what to do.

On a non-violent misdemeanor offense a client may have already served several days in jail by the time I get the case because they are too poor to post the arbitrary and often oppressive bond, so they end up serving more days in jail waiting for their court date than they would eventually be sentenced to if they were found guilty. It is no wonder there are so many guilty pleas. In a system which prides itself on justice, this is appalling.

The lawsuit against Harris County brought to light many frightening allegations that criminal defense attorneys (and criminal defendants) have known for a long time. The Plaintiffs in this lawsuit are fighting to end the arbitrary and indiscriminate detention of the poor, but also to end the ridiculous waste of taxpayer funds that the current bail bond system represents.  Jailing people who represent little to no public risk and will likely show up to their scheduled future court dates is a colossal waste of funds and effort.

Thousands of video recordings show that hearing officers don’t let arrestees even speak, and then often punish them by setting higher bonds if they do. Hearing Officers even argued that they don’t allow arrestees to speak because they don’t want them to incriminate themselves, since they have no legal representation present. Finally and recently, under intense pressure and scrutiny, Harris County voted to fund defense counsel at these hearings- but it took a lot of money and time to get anyone to pay attention.

It should not escape notice that Kim Ogg, Harris County’s new District Attorney, has spoken out in favor of bail reform, and has supported the efforts of this groundbreaking lawsuit.

As the hearing continues, all citizens should be concerned. With so many Harris County residents being arrested and unconstitutionally jailed, all of our communities suffer. We might not be able to immediately stop the deaths in our jail, but we can support the fight to end the oppression.

The Federal Courthouse is located at 515 Rusk Ave, Houston, TX 77002.

 

“Report to the President Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods”

crime-sceneForensic science has been used in courtrooms across the country. Our criminal justice system uses forensic science to punish, convict, deprive freedom and destroy lives. Many times proponents of various areas of forensic science are not scientists; they are lawyers and judges with a limited understanding of methods of validity and reliability. But what if the forensic science that’s been used is really “junk science”? Oops. Turns out a lot of “science” that’s been used to convict people is “junk science.” Also, what if there are still courtrooms allowing this “junk science’” to be used in trials? Um, oops?

Examples of these sciences include, DNA mixture analysis, bitemark analysis, latent fingerprints, shoeprints, handwriting, firearm marks, footwear, and hair. Scientific validity within the legal system is necessary, but not yet attained in many areas.

Expert witnesses have been overstating the probative value of their findings, and of the reliability of methods used over and above what the relevant science can justify. The Supreme Court has ruled that judges must determine whether the reasoning or methodology supporting the testimony of such experts is scientifically valid. But there have been serious failings where science meets the law in criminal prosecutions.

The PCAST Forensic Science Report, available online, recently released in September 2016, details all of these failures, problems, and proposes solutions for the future of such scientific methods and expert testimony. The report also gives statistics and data for exonerations and wrongful convictions. Despite this data, and many problems pointed out in the report, government officials, like the FBI have responded stating they disagree with the report’s conclusions.

Whether government entities agree with the report, to deny that it highlights significant problems in many, if not all, of the forensic methods used in the criminal justice system, is alarming. For example, the report cites to objective and reliable methodologies used, say in DNA analysis of single source and simple mixture samples. But it also refers to Lynn Garcia, General Counsel for the Texas Forensic Science Commission (TFSC) in discussions of the recent problems discovered in Texas in the subjective analysis of complex DNA mixtures. The report discusses the background leading to this discovery, initiated by an internal audit by the FBI, which reported that it had identified and corrected minor discrepancies in its population databases used to calculate statistics in DNA cases. The FBI assured labs across the state, including Texas Department of Public Safety labs, that these errors were not significant. However, when some prosecutors requested recalculation based on this notice, a larger problem in said subjective interpretations were discovered which lead to a complete review of cases involving Combined Probability of Inclusion in DNA mixture evidence, including, potentially simple mixture samples.

The fact that government entities are responding that this report is unreliable and attacks even reliable methods in forensic science is short-sighted and hypocritical. These same government entities concede that the forensic sciences are ever-evolving and change based on new knowledge, and better more reliable methods and advancements. With all the data involving labs across the state, wrongful conviction data from across the country and the knowledge that many forensic sciences involve subjective interpretations by “scientists” or expert witnesses, how can a government entity so readily dismiss this report? Even though the TFSC recognized that some of the significant changes in interpretation results were independent of the FBI’s minor errors in its population database, to state with confidence that the forensic science expert testimony used to prosecute people is reliable in the areas outlined in the report, without further validation, is irresponsible.

You Can Beat the Rap, but There’s No Beating the Ride: When Getting Justice Ain’t Justice at All

Meet “Alexander,” which is of course a pseudonym for a young seventeen year old, black male client arrested while doing what many young people do throughout history, hanging out with friends he shouldn’t have. Alexander is young, bright, well-spoken, a high school student, and poor. He’s arrested with literally nothing to his name, no car, no money, and no house. But Alexander has managed to make it to seventeen, in a rough neighborhood, with meager means, without a criminal record, or prior arrest. His parents were not that lucky. Alexander’s parents both have experience with the Texas criminal justice system. Now both disabled, his parents heavily rely on Alexander for assistance at home, care for younger siblings, and for his income.

Alexander is arrested for offenses related to drugs and weapons. The officer who arrests him knows little to nothing about Alexander. The probable cause for Alexander’s arrest is a stretch, at best. Perhaps an officer with greater experience would have realized as much and refused to take him in at all. But alas Alexander is not so lucky, and he gets a ride to the jail. Even after a confession by Alexander’s friend admitting to all wrong-doing (that is ultimately not recorded by the officers’ video recording equipment). He is charged with two offenses, bonds out, and finds himself in court for the first time. Confident in his innocence, and with a false sense of security in a system he knows nothing about, he is sure that the truth-seeking prosecutor, whose role it is to seek justice, will quickly discern his lack of involvement in this mess and let him go. Alas, he is wrong.

When I met Alexander his cases had already been pending for several months. He had filled out plea paperwork for both cases without the representation of counsel, and at the last minute decided he did not want to plea. I quickly learned that he had in fact never been represented by counsel in the numerous times he had been to court, which sadly is not uncommon. He knew nothing about the evidence against him. He didn’t know what was happening with the co-defendant’s case, or what became of the car he was arrested in.

After reading the offense report and determining the lack of evidence against him, I pleaded with the prosecutor to dismiss the two cases against him. Of course, the prosecutor knew next to nothing about Alexander’s cases at the time, and for settings thereafter, for one reason or another, refused to dismiss his cases. Both cases were ultimately set for trial. For over one year, Alexander continued coming to court. Navigating court settings in which we waited for videos that were never found, even after subpoena duces tecums, for pictures of contraband not initially disclosed with the offense report, inspections of evidence, interviewing of witnesses and so on. All the while, Alexander would get better offers from the prosecutor, but never for a dismissal. To his credit, Alexander remained steadfast in his conviction that he was an innocent man.

His relationship with his family, his home-life, career, and schooling suffered as a direct result of the two ongoing cases. His parents and siblings couldn’t understand why Alexander wouldn’t just “get this over with.” They demanded him to explain what was taking so long. He lost his job when his employer found out of his two pending cases, and lost income that was very important to his family. But Alexander refused to give in, and his courage inspired me.

Preparing for Alexander’s trials was a difficult journey. Witnesses became hard to locate and secure. Co-defendants hid, and added new frustration to the process. I filed subpoenas and with Alexander’s help got ready for trial. The day before trial the prosecutor disclosed “new” Brady material that came from statements the officer conveyed to her. Statements that did not involve anything new, because they were descriptions of events that occurred on the night of arrest. Events that I had pointed out about a year earlier.

Ultimately Alexander’s two cases were dismissed. But the damage and havoc the system had imposed on his life were traumatic. He was able to graduate high school, but without the job he’d lost during the life of the cases, his family suffered. He lost a very lucrative promotion at a comfortable job, because of them. He was unable to save up to go on to higher education during this long journey, or save up for a car, or help provide for his disabled parents, or younger siblings. He beat two guilty convictions, but the process destroyed several components in his life.

He is not the only poor young minority client that has had this experience. Why is a system full of people who are supposed to be professionals allowing this kind of destruction to happen? A family shouldn’t be ruined, a young man’s prospects destroyed, all while he is presumed innocent, because he is trying to do the right thing and fight for his good name. The act of the State’s unfounded conviction in two cases that should have been dismissed on the first day, caused turmoil in a young innocent man’s life for reasons I still do not understand. Reasons I was never able to fully articulate to Alexander. It would have been so much easier for his immediate life, for him to agree to a plea early on; to accept the cookie cutter punishment dished out to him and move on down the road. But he refused to compromise his integrity and admit to being guilty of something he was not. I don’t know if I would have had the courage, and patience to withstand the pressures of that kind of home-life, those kinds of responsibilities, and the weight of the government at seventeen. Alexander is my hero, and a reminder of the toll this system of justice can have on a person’s life, even without a conviction.

Vice: Sexual Contact and Beyond “To Make a Case”

White_Lily_Spa,_Tisbury_Court,_SohoThe scene is a massage parlor. An undercover officer pays a $60 door fee to the manager and walks into a private room waiting to be taken care of. The manager has been arrested and released for charges related to prostitution more than once. The officer has a wire and a team of other officers in the area. A woman comes in. She speaks little English, is nervous and scantily dressed. She massages his naked body and then an agreement is reached to exchange sexual acts for money. At that point an arrest is made, right? Wrong. The officer touches her breasts and genitalia, and asks what he will get for all of his money. Sometimes the officer will say he was forced to sexually fondle the woman or have his genitals rubbed so that the woman wouldn’t suspect he is an officer. One would think that after he has made it through the “manager,” the locked entryway with bars on the windows, the waiting area, and into a private room where he is lying nude on a massage table; his concerns would be dispelled. But I digress.

Many male undercover officers are engaging in sexual acts with female suspects. Recently an officer (in Harris County) testified that he had to keep going so that he would not ruin his cover, even though he arguably had enough to make his arrest. Ironically, he also testified that his investigations, and thus his acts, are necessary to protect these woman and stop human trafficking. It is hard to reason how fondling a woman’s breasts, or private areas, or engaging in other sexual acts with her, is necessary to protect her. But, once again, I digress. As is often the case with male undercover officers, more is needed to conclude their investigation, at least according to them.

How do we want our officers to behave? Why are female undercover officers not engaging in sexual acts with male suspects, and still making arrests for prostitution? How much of a woman’s body can a male undercover officer violate, touch or fondle before the conduct is sufficiently outrageous as to violate the concept of fundamental fairness inherent in due process rights?

In 2015, Mary Moriarty, chief public defender in Hennepin County (Minnesota) denounced male undercover officers’ sexual contact with women suspected of prostitution. Her work, along with others, would later result in the Minneapolis police department discontinuing all prostitution undercover investigations pending a review of its policies. The Minnesota Court of Appeals addressed this conduct by undercover officers when it reversed a prostitution charge discussing pre-arrest sexual contact by officers. Moriarty’s office defended a woman with prostitution charges involving acts at a massage business. The acts included touching and exposure. The audio recording from the undercover officer portrayed about 30 minutes of small talk, compliments of the woman’s anatomy, and the officer flipping over and having his genitals touched as part of the massage before other officers were signaled to come in and make an arrest.

Minnesota Judge Amy Dawson condemned such behavior by an undercover officer, saying his conduct was outrageous when he “initiated sexual contact that [wasn’t] required for the collection of evidence.” The officer directed the woman to rub his genitals when she asked if there was an area she missed during his massage. A price was then negotiated for more acts “to take care of him.” The officer’s lawyer argued that though his conduct might be distasteful, it was not a due process violation.

Women in these environments are often traumatized, victimized and vulnerable. Allowing officers to engage in sexual acts with them, with immunity, “to take care of [the officers],” allegedly for their overall protection and to combat human trafficking, or for any other reason, adds insult to injury. It is gross, unnecessary, and probably not acts that civilized members of society want to think of their officers doing. This behavior is not unique to Minneapolis. It is alive and well in Harris County, Texas.

Conversely, female undercover officer stings are not unheard of, and do not involve sexual contact. Perhaps not surprisingly, female undercover officers do not behave similarly and do not engage in sexual acts with male suspects. In Watson v. State, 10 S.W.3d 782 (Tex. App.—Austin 2000), a female undercover officer acting as a decoy solicited a “john” to prostitution verbally. No sexual touching was involved and an arrest was made. Often, sexual touching is not necessary to make the encounter criminal, yet male undercover officers testify, with immunity, about such sexual acts, and claim they are a necessary part of their job. This immunity is not a creature of legislative creation.

For instance, undercover drug investigations involve statutorily sanctioned deception. Wilson v. State, 311 S.W.3d 452, 463 (Tex. Crim. App. 2010). Health and Safety Code § 481.062(a)(4) allows officers in the lawful discharge of their official duties, to possess controlled substances, without fear of penalty. Id. There is no legislative exemption for officers to commit prostitution, sexually assault women, compel prostitution, or engage in sexual acts with female suspects. Officers who participate in a crime in Texas may testify freely under Tex. Penal Code Sec. 43.06 as an accomplice. Officers in prostitution cases get immunity from prosecution under this theory as an accomplice witness furnishing testimony and/or evidence. George E. Dix & John M. Schmolesky, 6 Texas Practice: Criminal Law sec. 25.6 (2d ed. 2015).

Due process rights under the US and Texas constitutions protect people from abusive government action. U.S. Const. amend. XIV; Tex. Const. art. I, § 19. Even a predisposed defendant may have this kind of protection when police over-involvement reaches a “demonstrable level of outrageousness.” Hampton v. United States, 425 U.S. 484, 495 n. 7 (Powell, J., concurring). Continuing to allow these officers to freely engage in sexual contact with these women is outrageous.

Do we think it is acceptable, moral, and lawful for these officers to get “taken care of” while investigating female suspects? Are we comfortable with showing these woman, who are often victims of addiction and poverty, that officers can continue to engage in sexual conduct with them, with immunity, and no due process implications? Female undercover officers have shown that sexual contact is unnecessary to make an arrest. This sexual conduct by male undercover officers is despicable and continuing to allow these officers to engage in this conduct with immunity is tragic and arcane. It reeks of the continuation of the marginalization of women, and specifically, a group of women that is arguably already condemned by the legal system before they even reach a courtroom.

Evolving Forensic Science and The Texas DNA Mixture Review Project

“As far as the laws of mathematics refer to reality, they are not certain, and as far as they are certain, they do not refer to reality.” – Albert Einstein

We are a society proud of our technology. Much of our advancement is in forensic science. Since antiquity we’ve created methods to scientifically determine the invisible. Vitruvius tells the story of a suspected fraud. A king decreed a crown be made entirely of gold, and assigned an appropriate weight for it. When the manufacturer produced the crown, the king suspected it to contain silver. Archimedes was tasked with detecting the theft, while not destroying the crown. Eurhka! he exclaimed, when he used water to determine the different mass for silver and gold. He exposed the fraud, and his law of buoyancy followed.

Perhaps one of the strongest modern examples of our pride in forensic science is exemplified by the media. We have movies and television shows dedicated to people in labs finding fibers, fluids and DNA. Huge mathematical statistics are used to link suspects to crimes, and shed light on the “facts.” But, as most lawyers know, the reality of cases often varies from television.

The discovery of DNA, and the methods to detect it, is perhaps one of the most significant advancements of our time. The science of DNA is powerful. It can unite families, tie fathers to children, and help amplify the truth. However, because this science and the calculations around it are performed by humans, it is susceptible to human error, and so can be dangerous.

One example of the power of DNA comes from a very old case. In the early 1900s, a four-year-old boy went missing at a swamp in Louisiana. Eight months later, a parade was thrown when the boy was found in Mississippi, with Walters, a traveling handyman. Walters insisted the boy was not the missing child, Bobby Dunbar. He claimed the boy’s name was Bruce, and his mother, Julia, lived in North Carolina. Walters explained that Julia was in dire straits and gave him permission to travel with Bruce. Law enforcement brought the boy to Louisiana to visit with Mrs. Dunbar, who purportedly recognized him as her missing son. Julia too was brought to examine the boy, and insisted he was her son, corroborating Walters’ story. Julia tried to convince the court that the child was hers, but she had no lawyer and no money. The boy was claimed by the Louisiana family who won him in court and raised him as Bobby Dunbar. Walters persisted that he was innocent, and in 1914 went to trial on kidnapping charges. About twenty witnesses supported Walters’ story, but, alas, he was convicted. Decades later, a DNA test helped confirm the truth (as featured on This American Life). The science of DNA did not exist at the time of trial. But, a DNA profile showed Walters was innocent. The boy had been taken from his mother and given to strangers. In the end, the DNA test, helped give Julia her son back, in the form of reuniting his descendants’ with their blood family. DNA science can be powerful.

Recently, in 2015, the FBI notified labs around the country that the population database it used (since 1999) to calculate match statistics in criminal cases, contained discrepancies. DNA profiles in criminal cases often lead to “expressions of probability,” a reference to the odds that the DNA profile would randomly appear in a certain population (divided by race). DNA lab reports will typically list this information, and if there is a subsequent trial, a lab analyst will testify regarding this mathematical probability. For example, an analyst might testify to her findings by saying, “the probability of selecting a person at random with this DNA profile is 1 in 555,000,000 for (insert specific racial group).” Ultimately, this evidence can serve as the death knell for a client on trial. Often, this evidence is material to someone’s conviction. For example, it might be the only direct evidence in a case, or the supporting evidence used to corroborate an accomplice’s testimony. In any case, these huge statistical numbers often leave juries satisfied as to the link between a suspect, DNA evidence and the crime scene.

If, for instance, semen is collected during a sexual assault kit, and a DNA profile is determined that appears at random in 1 of every 225,300,000 persons, and the suspect has the same profile, it would be futile to argue against the characterization that there was a “match.” While the numbers for sole contributor DNA evidence are not affected, this example highlights another problem which appeared in DNA mixture cases.

A DNA mixture case involves a sample with the combination of biological material from two or more contributors. For the past few years there have been changes in this mixture interpretation with guidance from the Scientific Working Group on DNA Analysis (“SWGDAM”). In some cases of recalculation, like in a Galveston case, the statistical numbers made big jumps. For example, from 1 in 1.4 billion to 1 in 38. In other words, the probability that the DNA sample belonged to someone other than the suspect was 1 in 1.4 billion, linking that person to the crime scene. However, upon retesting with the new protocol, CPI (Combined Probability of Inclusion) was now 1 in 38, meaning there was a 1 in 38 chance the DNA could belong to someone other than the suspect. Considering the high burden of proof in criminal prosecution, beyond a reasonable doubt, these varying numbers matter.

Enter the Texas DNA Mixture Review Project (“Project”), whose director is Bob Wicoff, and funded by the Texas Indigent Defense Commission. With the cooperation of the Texas District & County Attorneys Association, information for people serving sentences in cases involving DNA mixture evidence is being gathered. The project has been tasked with determining which cases might benefit from recalculation (not retesting) in cases that have been disposed of using old protocols. With the help of lawyers and assistant directors, Scott Ehlers, Betsy Stukes and this author, cases from across the State are currently being reviewed. Different labs across the country use different protocols, so the effects will vary. Additionally, even though shows like CSI portray DNA evidence as being the ultimate factor in a criminal case, in reality, DNA evidence may not be as crucial. DNA mixture evidence may come from touch DNA, such as, off the handle of a gun, or door, and may be periphery to other direct evidence.

Thus, this project is focused on reviewing DNA mixture cases, that is, cases with a DNA sample that has more than one (preferably more than two) contributors, and in which there was a CPI issued (generally issued in DNA mixture analysis cases). During this review, the materiality of the DNA mixture evidence is assessed. More information can be found on the Texas Forensic Science Commission website.

A client who is potentially affected by this evidence is notified, and consents to this review. Once the initial phase of the review is completed, the client is notified of the Project’s findings. If recalculation is requested, then the case progresses to the next level of review. In any event, the Project is proud to be tasked with this process, and anticipates the numbers of cases needing review to climb. As a result, the Project will be seeking volunteer lawyers. If you are interested, or know someone who is, please feel free to email the author.