The Arc of Justice bends towards fairness when law allows. In most cases, post-conviction review is out of step with the march of science. Even in the shadow of proposed legislative reforms, such as the Forensic Science and Standards Act of 2012 (S. 3378/H.R. 6106), scientific truth continues to take a back seat to legal necessity. Yet, relief from forensic injustice can be fashioned in the forge of executive clemency or tempered there for judicial review and legislative action.

If the tension between science and law were to be resolved in an archery contest, science would win by hitting the center of the target, while law would claim victory by painting a bull’s-eye wherever the arrow landed. Science is aimed at the truth, while legal outcomes are determined by policy and persuasion. The two are difficult to reconcile, which explains the slow acceptance of scientific challenges to legal presumptions.

Moreover, the benefits of new discoveries, including the unearthing of error-ridden forensics, are not automatically retroactive. Thus, yesterday’s evidence has to have a place where it can be re-evaluated by today’s science.

Supreme Exhaustion

In Cavazos v. Smith, 132 S.Ct. 2 (2011), a California woman convicted in her grandchild’s death, based on hotly debated shaken baby evidence, lost her appeal before the U.S. Supreme Court. Resolving the scientific debate against her, the justices felt compelled to acknowledge the limits of their power:

It is said that Smith, who already has served years in prison, has been punished enough, and that she poses no danger to society. These or other considerations perhaps would be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice is tempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course has been. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power is exercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.

Five months later, Governor Jerry Brown agreed to shorten her sentence. The Commutation Order for Shirley Ree Smith drew upon many factors, not the least of which was the dubious integrity of the verdict:

From my review of the information before me, including materials from the Los Angeles District Attorney’s Office, it is clear that significant doubts surround Ms. Smith’s conviction. In light of the unusual circumstances in this particular case, the length of time Ms. Smith has served in prison, and the evidence before me that Ms. Smith has been law-abiding since her release from prison, I conclude that reducing her sentence to time served is appropriate.1

In another high court action, the justices foreclosed review where new interpretation rather than new science was at issue, casting doubt on future appellate relief.

On May 10, 2012, the U.S. Supreme Court, specifically Justice Antonin Scalia, turned down the opportunity to clearly state when a prosecution expert’s recantation of her opinion can justify overturning a conviction.

In Robbins v. Texas, No. 11-777, the court was presented with this question:

Whether federal due process requires that a criminal defendant be afforded a new trial upon the revelation that scientific evidence necessary to his conviction was or has become unreliable as a matter of law or scientific fact.2

This issue arose from a Texas homicide prosecution in which Robbins had been charged with the death of a 17-month-old child. State court review of the conviction in Ex parte Neil Hampton Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), focused on the cause of death. The prosecution expert, an assistant county medical examiner, testified that the child died of asphyxia from compression of the chest and abdomen. However, after trial she recanted her opinion and emended her finding to read “undetermined.”

The debate over the cause of death, conducted post-conviction, resolved into a question over the definition of “false testimony.” Robbins’ habeas corpus action failed because the court treated the recantation like a reargument of the proof rather than a renewal action that involved new evidence or updated scientific theories.

When it comes to science, courts tended to conflate actual innocence claims based on newly discovered evidence (Herrera v. Collins, 506 U.S. 390 (1993)) or constitutional error (Schlup v. Delo, 513 U.S. 298 (1995)) with false testimony (Napue v. Illinois, 360 U.S. 264 (1959)) and with the right to a fair as well as accurate presentation of the evidence. The muddying of standards for evaluating the revision of expert testimony reveals a disconnect between science and law.

Dismissing the principal prosecution expert’s recantation and focusing instead on the remote possibility that her original belief was correct, the Texas courts ignored fundamental due process and medical certainty. No jury ever heard the recantation or had the opportunity to weigh this expert’s credibility or judge her conclusions based on the revelation.

Notably, one of the dissenters on the Court of Criminal Appeals, Judge Cathy Cochran, believed that an accuracy and fairness standard would ultimately prevail:

I suspect that the Supreme Court will one day hold that a conviction later found to be based upon unreliable scientific evidence deprives the defendant of a fundamentally fair trial and violates the Due Process Clause of the Fourteenth Amendment because it raises an intolerable risk of an inaccurate verdict and undermines the integrity of our criminal justice system.

Unfortunately, the Supreme Court did not pick up the gauntlet. Since the justices refused to quell the confusion in the lower courts,3 convictions based on junk science or old science or misinterpreted science will be inconsistently reviewed, if at all.4

Still, Robbins might consider a clemency petition in view of the judicial logjam,5 just as Shirley Ree Smith successfully pursued commutation upon losing in the Supreme Court. What these scenarios illustrate is the potentiality of appellate court review and clemency interacting.

Triangular Advocacy

Post-conviction relief can be had along two paths, the judicial or the executive. Thus, to resolve fundamental questions of justice, it is useful to view them in a strategic and interconnected way.

The interplay between courts and clemency is best demonstrated by a capital punishment case from Texas, Graham v. Board of Pardons & Paroles, 913 S.W.2d 745 (1996). Convicted of murder and sentenced to die, Gary Graham, in his post-conviction motions and clemency petitions, asserted actual innocence. At the time, this ground was not recognized in state court and yet to be acknowledged in federal courts. Meanwhile, the Supreme Court had admonished Leonel Torres Herrera (506 U.S. 390, 411-12) to pursue a clemency petition on a similar legal claim.

The Texas courts, however, understood the realities of state clemency, and while the chances of success on judicial review might have been thin, the clemency option held virtually no hope. Thus, they concluded that “actual innocence” should be reviewable by a state court in a habeas petition, forestalling the need for executive review.6

In fact, it was Graham’s simultaneous “actual innocence” claims before the judiciary and his clemency petition before the Board of Pardons that catalyzed judicial rethinking of precedent and opened a new pathway in the courts.

Contrariwise, before Ohio courts recognized the battered woman defense and the legislature enacted it into law, there was no forum for victims of domestic violence to present this defense except through clemency petitions.7 Indeed, the Ohio experience with battered women syndrome shows that the advancement of justice through advances in science can be embraced by the executive before any other branch of government.8

And sometimes the groundwork for a clemency petition might begin in court where post-conviction discovery, such as DNA testing, can lay a proper foundation for a convincing argument in the executive chamber.9

The executive can re-evaluate the scientific evidence in a case, open doors to discovery, and instill a degree of fairness into the application of forensics beyond the reach of the courts. Indeed, the executive can become the gatekeeper that the courts cannot be.

An analysis of 873 wrongful convictions over a 20-year period by the National Registry of Exonerations revealed that 69 cases nationwide led to pardons based on evidence of innocence.10

Significantly, many of the wrongful convictions studied were the result of problematic science. “False or misleading forensic evidence was used to obtain nearly one-fourth of the convictions that ended in exoneration.” The numbers uncovered by this survey represent a Nielsen-like sampling of cases yet to be addressed. Indeed, the authors concluded: “The most important thing we know about false convictions is that they happen on a regular basis.”

Systematic Review

The regularity with which forensic evidence is used, and the growing revelations of problems with and advances in our understanding of this type of proof, suggests the need for periodic executive review of convictions.11

No doubt many clemency petitions include arguments informed by developments in forensic science. Such claims might be based on newly discovered evidence (biologics) and advances in science (innovation); attacks on junk science and junk protocols (revisionism); misconduct by forensic investigators and laboratories (ethics); and overreaching by prosecutors as well as ineffective assistance of defense counsel (due process). Or in the case of Robbins, an expert might simply have a change of heart based on re-evaluation of the evidence.

For such cases, a systematic approach would be an effective response to the many unjust convictions in which forensics played a key role. When a significant portion of the population had suffered the yokes of punishment unfairly, executives like Presidents John D. Kennedy and Gerald Ford created new models for administering relief through systematic clemency—reviewing federal drug convictions and violations of the Military Selective Service Act, respectively.12

In the last few years, New York has seen a series of efforts aimed at preventing and remedying wrongful convictions,13 and law enforcement groups and scientific societies are also re-examining their roles.14 This groundswell of activity might lead to the type of reforms that will widen the avenues of relief.15

Indeed, the work of task forces, commissions, and conviction integrity units16 are creating an atmosphere for progress and a body of research that can provide important guidelines for swift review of clemency applications.17


In the century before the Bill of Rights, men and women were sentenced to death on the strength of spectral testimony.18 Ironically, it was this affront to justice that led the Rev. Increase Mather to sermonize: “It were better that ten suspected witches should escape, than that one innocent person should be condemned.”19

Time no longer sanctifies forensic practices, it deconstructs them. Still, it is cold comfort for the victims of fictions that have passed for forensic truth.

Cavazos and Robbins are expressions of judicial overdogmatism that interdicts new thinking in science or rethinking by experts. Nonetheless, a claim of innocence fortified by a second scientific look should move the levers of justice in at least one branch of government.

The inclusion of clemency in the founding charters of the nation and its states was in response to the inevitability of human error and misconduct in the administration of justice. As one scholar has observed:

History teaches that the demand for clemency increases when the legal system lacks other mechanisms for delivering individualized justice, recognizing changed circumstances, and correcting errors and inequities.20

Science is revealed in the nature of things, justice in the nature of man. While the language barrier that separates law and science continues to create confusion and injustice, the vindication of science should trump the vindictiveness of convictions.

Behind every unjust punishment and every clemency petition is a living, breathing reality on the last leg of an odyssey that can end in justice. The wrongly incarcerated should not be made to wait for the hindsight of history when relief is available now.

Ken Strutin is director of legal information services at the New York State Defenders Association.


1. Carol J. Williams, “Brown Commutes Sentence of Woman Convicted of Killing Grandson,” L.A. Times, April 7, 2012.

2. See Robbins v. Texas, SCOTUSblog, (collection of filings).

3. The briefs filed in Robbins revealed a 7-5 split among federal and state courts on this question. See Cert. Pet. At 2, 13-14; NACDL Amicus Curiae at 4-5; Reply Brief for Petitioner, at 4-9 (8-5 split with addition of Third Circuit case).

4. See generally Rachel Burg, “Un-Convicting the Innocent: The Case for Shaken Baby Syndrome Review Panels,” 45 U. Mich. J.L. Reform 657 (2012).

5. See Respondent’s Brief in Opposition at 33 in Robbins (“Having failed to establish his right to relief…, he may still resort to the ‘fail safe’ remedy of executive clemency.” (citing Herrera)).

6. 913 S.W.2d at 749-50; Graham v. Johnson, 94 F.3d 958, 967 (5th Cir. 1996); see “Death Row Man Executed,” BBC News, June 23, 2000 (discussing doubts about the verdict at the time of Graham’s execution).

7. Isabel Wilkerson, “Clemency Granted to 25 Women Convicted for Assault or Murder,” New York Times, Dec. 22, 1990.

8. Linda L. Ammons, “Discretionary Justice: A Legal and Policy Analysis of a Governor’s Use of the Clemency Power in the Cases of Incarcerated Battered Women,” 3 J.L. & Pol’y 2, 17-24 (1994).

9. Brief of Eleven Individuals Who Have Received Clemency Through DNA Testing as Amici Curiae in Support of Respondent, at 10, filed in District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (U.S. Feb. 2, 2009), (“[S]ince 1989, 232 inmates in thirty-three states have received clemency on the basis of DNA evidence.”).

10. Samuel R. Gross and Michael Shaffer, “Exonerations in the United States 1989-2012″ (2012), at 33. See generally National Registry of Exonerations,

11. See Cara H. Drinan, “Clemency in a Time of Crisis,” 28 Georgia State L. Rev. 1123 (2012).

12. See Charles Shanor and Marc Miller, “Pardon Us: Systematic Presidential Pardons,” 13 Fed. Sent’g Rep. 139 (2001) at 3; Mark William Osler and Matthew Fass, “The Ford Approach and Real Fairness for Crack Convicts,” 23 Fed. Sent’g Rep. 228 (2011).

13. See NYS Justice Task Force; Final Report of the NYS Bar Association’s Task Force on Wrongful Convictions (2009); A.G. Schneiderman Announces Landmark Initiative to Address Wrongful Convictions in New York, N.Y. Att’y Gen’l Press Rel., April 11, 2012.

14. See, e.g., Walter A. McNeil, “Our Recommitment to Addressing Wrongful Convictions, President’s Message,” 79 The Police Chief 6 (June 2012); “The Innocence Project: Science Helping Innocent People Proven Guilty,” PHYSorg Science News Wire, Aug. 20, 2012.

15. See Amy Maxmen, “Proposed Bill Calls for Better Forensic Science,” Nature News Blog, July 13, 2012 (discussing the Forensic Science and Standards Act).

16. See, e.g., Conviction Integrity Program (N.Y. County Dist. Atty’s Office). See generally Bruce A. Green & Ellen Yaroshefsky, “Prosecutorial Discretion and Post-Conviction Evidence of Innocence,” 6 Ohio St. J. Crim. L. 467, 485-87 (2009).

17. See generally Earl H. Nemser, “False Confessions: What Lies Ahead for the Wrongfully Convicted?,” N.Y.L.J, June 15, 2012; John Roman, et al., “Post-Conviction DNA Testing and Wrongful Conviction” (Urban Institute 2012) (“[N]ew DNA testing of old physical evidence from 634 sexual assault and homicide cases that took place in Virginia between 1973 and 1987.”).

18. Proof of deviltry found in dreams and visions. See generally Martha M. Young, “The Salem Witch Trials 300 Years Later: How Far Has the American Legal System Come? How Much Further Does It Need To Go?,” 64 Tul. L. Rev. 235, 242-45 (1989).

19. See Alexander Volokh, “n Guilty Men,” 146 U. Penn. L. Rev. 173, 183 (1997).

20. Margaret Colgate Love, “The Twilight of the Pardon Power,” 100 J. Crim. L. & Criminology 1169, 1209 (2010).