Friday, April 5, 2013

Shielding the truth

Later today the Texas Forensic Science Commission will meet in Austin. One of the items on the agenda will be the scandal at the DPS crime lab in Houston involving former analyst Jonathan Salvador who is alleged to have not followed accepted standards when testing for controlled substances. Mr. Salvador is alleged to have "dry-labbed" his tests (not actually running the samples through the gas chromatograph).

As a result of Mr. Salvador's actions, hundreds, if not thousands, of cases are being reviewed. For purposes of disclosure, I have filed two writs in drug cases involving Mr. Salvador.

Of course the DPS is portraying Mr. Salvador as a "lone wolf." That's in the playbook for government offices in which one or more employees have been caught doing something they really, really shouldn't have been doing. By claiming that one (or a small group of) bad apple broke the rules, the department can deflect attention from the signs of systemic problems. We've seen it with police departments when officers are alleged to have committed police brutality. We've seen it once before with the DPS with the Dee Wallace mess. You see corporations hanging executives and managers out to dry to preserve the stakes of large shareholders. We saw it with the bursting of the financial bubble back in 2007.

The problem is that Mr. Salvador was trained by DPS staff and was supervised by DPS staff while he worked at the crime lab off the Northwest Freeway in Houston. The story that it only happened once and that it was a mistake strains credibility. If we are to believe that the motorist charged with driving while intoxicated has done it some 80 times before getting arrested, the odds of Mr. Salvador getting caught the first time he faked a test result are astronomical (about the same as the Astros winning the World Series this fall).

And what are the odds that this problem exists in only one of the state's multitude of "accredited" crime labs? Let's be honest, these crime labs were created by and operated by state and local law enforcement agencies for the express purpose of aiding in the prosecution of crime. They are not independent bodies. They exist to build cases against folks charged with breaking the law. This mission bias covers every task performed in these labs.

The accreditation program was created in order to make it easier for analysts to testify in court as experts. Telling twelve jurors who have no idea how crime labs operate that the crime lab is accredited is a sure-fire way to get those folks believing that whatever test is being described is the "gold standard" in forensic testing.

We're not living in the world of Quincy, M.E. where Jack Klugman did his best to discover the truth without regard to where that path might take him. We live in a world in which the lab analyst gets his marching orders from a supervisor that is an employee of a law enforcement agency with a mission to support the officers' arrest decisions.

The Texas Forensic Science Committee has shown itself to be little more than a showpiece since Gov. Rick Perry emasculated the panel by placing the now-disgraced John Bradley at its helm. Mr. Bradley's sole duty was to bury the investigation into the wrongful conviction and execution (murder) of Cameron Willingham. The last thing the State of Texas wanted was for the public to find out that most of what passes for science in the criminal courthouse is nothing but junk.

It is ironic that over on the civil side of things the courts take scientific evidence very seriously. For the most mundane of cases there may be a Daubert hearing lasting several days before the judge makes a decision on what's coming in and what's not. Both plaintiffs and defense attorneys who try these cases keep themselves well abreast on the state of the science. After all, we're talking about a lot of money in some of these cases.

Over at the criminal courthouse if the state presents a witness as an expert, so long as he can state at some point in his testimony that he's "certified" by someone the judge will sit back, rub his temples with his fingertips and proclaim (like Solomon) that any question of the validity of the science goes to its weight and not its admissibility.

You don't know how the breath test machine works? No problem. So long as you were trained to turn it on and type in the suspect's name you're qualified to testify at trial as to the fact the machine was working. You don't know how that radar or laser device works? Who cares? So long as you were trained to turn it on and point it at a moving car you're qualified to testify that it was working just fine on the day in question. You never took any college level or graduate courses related to arson investigation? You never attended any seminars about the current science involved in arson investiation? So what. Feel free to get up on that stand and testify that the man sitting next to the defense attorney started the fire that killed his children.

All it takes is for one brick to crumble and the whole wall will cave in on itself. That's what the Texas Forensic Science Commission's job is to prevent.

1 comment:

Gritsforbreakfast said...

IMO this is a bit too cynical. Without the ASCLD/LAB accreditation, the lab would have had no requirement nor incentive to self-report. Without the FSC, the episode wouldn't have become public and certainly wouldn't have resulted in all these writs being filed.

Yes, the FSC is a toothless watchdog. But their reports on arson in the Willingham case was actually well-done and has been transformative at the state fire marshal's and, increasingly, often against their will, among local arson investigators. And their report on Salvador is the only way you're even aware of the DPS-Houston incident to criticize how it's handled or file writs on behalf of your clients. I too wish their pronouncements had more teeth, but as a body whose sole power is to investigate and recommend, they're doing a lot with a little.

BTW, were your writs in Houston or other counties? I understand most of them are outside Harris Co. because most cases there are processed through the HPD crime lab.