Source: scientificamerican.com 11/4/24
What was once fair under the law may become unfair when science changes. The law must react to uphold due process
It’s been an astounding couple of weeks in the world where science and law intersect. Robert Roberson’s execution is delayed because everybody but the highest courts in Texas and the U.S. now realize that the medical theory on which he was convicted—shaken baby syndrome—originally rested on bad science. The life-without-parole sentences for Lyle and Erik Menendez, convicted of killing their parents, are also in question because researchers at the time did not understand the mental health effects of the abuse they suffered as children.
Whereas the law seeks to provide fair process in a timely fashion, science seeks to discover truth over time. This means that what was once fair may become unfair; the justice of yesteryear may be unjust today. Roberson and the Menendez brothers are the victims of that very divide.
In both cases, scientific understanding changed years ago. Shaken baby syndrome was called into question in the early 2010s, and, years before that, psychologists identified the relationship between the trauma of childhood abuse and violence. Yet all three men have struggled to reopen their cases. An essential principle of science is that it might change as research accumulates. That is a principle that the law has largely failed to come to grips with. This failure threatens the constitutional guarantee of due process.
The Roberson and Menendez cases are not abnormal. The annals of the law are replete with examples of what we once thought was scientific truth, upon which judges and juries decided both civil and criminal cases, where we later understood the science to be wrong. In 2004 the state of Texas executed Cameron Todd Willingham for the 1992 arson murders of his family. At the time of his execution, the forensic science that linked him to the fire had been categorically invalidated. In a 2015 press release, the FBI reported that in their ongoing review of non-DNA-based microscopic hair identification, 90 percent of cases had errors. Similarly, prosecutors’ use of a questionable theory known as comparative bullet-lead analysis was eventually abandoned after scientific reports debunked its statistical bases. Even today, courts continue to allow bite mark identification testimony, even though people who say they are bite mark experts can’t even agree on whether a bite mark is from a person—or a dog. And what we know about firearms identification and fingerprints are changing— there could be scores of convictions based on what is no longer true.
Society shifts quickly when science changes. Once upon a time, scientists told us that butter was bad for us, and margarine was better; then we learned how much worse margarine could be and started eating more butter again. With lives at stake, justice demands we shift quickly. Indeed, the Constitution’s guarantee of due process is so important that it appears in both the Fifth and 14th Amendments, and promises that “life, liberty, or property” will not be deprived without “due process.”
This is a well-meaning article, but unless we are rid of the barrage of state and government lawyers who are able to convincingly circumvent the Constitution through so-called ‘case example’ and arguments from silence that is all this will ever be- a nice article and this is why we, and others are fighting for our Constitutional rights that have been seemingly stripped from us and are no longer guaranteed the same freedoms and protections that other American citizens have. Yes, it is a nice article, but sadly that is all that it is.
A strong, knowledgeable, and wise attorney would be able to say any prior case examples using the bad science or during the era of the bad science should be dismissed and ignored when looking at the new science in cases. Of course, the judge or justice has to be strong enough in their spine to understand the convictions of the new science and be willing to put their name on the line of accepting it. It only takes one to start that snowball rolling downhill in favor of the new science.
Our society assigns motivations, often blanketing whole groups of people with them, then refuses to tolerate any disagreement with the assignments! Any who dare to suggest that anyone did anything for unassigned reasons will be corrected, mocked, attacked, accused or ignored.
“All PFRs did what they did because ___!” No disagreement with this universal and eternal unquestionable State Truth will be tolerated!
As a society, we also “know for a fact”, that all attempts to “understand your real motivations” are just secret attempts to avoid responsibility for your actions. This will also not be tolerated! You will accept the assigned motivations for your behaviors as fact, or you will pay! Your Court Order “Treatment” provider made this clear to you?
Taken to the extreme, you get Shadow Prison “Treatment”: “You will stay here until we are certain you completely agree that it is far too dangerous to ever let you leave. Disagreement only proves that you need to stay here for further treatment.”
The Law never responds in favor of the registrant community, even if they know that they are in the wrong. With the new law (SB384), the Static 99R is now being used for adding those to the public registry who have a score of 6+, even when those persons have previously never been listed publicly, despite having had the same Static 99R score prior to the new law. As the name says, the score is STATIC. Yet they don’t consider the decline in risk that Karl Hanson himself (creator of the Static 99R) emphasizes over and over again, This is part of the coding rules that they should follow if using the Static 99R. In addition, they don’t take people off the public registry if they have a low score, which means “little to no risk” per their beloved Static 99R. They do as they please, no rhyme or reason, and no common sense, as we all know. They use the offense to place people into Tier 3, and if the offense itself would be a Tier 1, they now consider the Static 99R to add even more people to Tier 3 who previously were not publicly listed. The registry prior to the new law was lifetime, yet not all were public, so why change that part now? People can be Tier 3 and not be publicly listed. What changed???