Execution Watch: 8/21/2019

Texas cranks up the death machine again on Wednesday night...

LARRY SWEARINGEN, condemned in the December 1988 slaying of a woman last seen on the campus of Montgomery Community College. The execution date is the sixth one Mr. Swearingen has received; the courts granted him stays of execution for the previous dates. He has steadfastly proclaimed his innocence and protested the lack of physical evidence linking him to the murder. Court-ordered DNA testing, some completed as late as 2019, has been inconclusive. Mr. Swearingen has challenged the use of questionable science in evidence presented at trial.

When asked how he squares his pro-life stance when it comes to banning abortion to his enthusiastic embrace of the death penalty, Texas Governor Greg Abbott hadn't the slightest clue what to say.

See also:

Blakinger, Keri, "'Death row inmate Larry Swearingen denied clemency before Wednesday execution," Houston Chronicle (8/19/2019)

Davies, David, "How 'Body Ranch' research impacts the appeal of a Texas death row inmate," Texas Public Radio (8/19/2019)

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Wednesday, August 21, 2019, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

A look into junk science

On the way home from the office the other night I caught the current episode of the Murderish podcast - "Lime Street Fire." The episode concerns an arson investigation in Jacksonville. Jami Rice also covered the Cameron Todd Willingham case earlier this year.

The episode is important because it looks at the evolution of arson investigation. As anyone who has looked into arson cases knows, most of the knowledge an arson investigator has is what has been passed down over the years. There are a number of old saws they pull out of the bag such as pour pattern and v-pattern which they use to peg arson as a cause of a fire.

This case is remarkable because fire experts were brought in to conduct tests to determine whether (1) whether these pour-patterns or v-patterns had any real meaning and (2) whether the fire could have started the way the suspect said it did.

The results were astounding. The investigators found an identical home to the one that burned, set it up just like the home that got burned (down to the brand of furniture) and set it on fire -- not once, but twice. What they found was that the presence of v-patterns had nothing to do with where a fire was started and many so-called pour patterns were the result of flashover.

This episode also illustrates the problem with the introduction of new "forensic sciences" in criminal cases. Over on the civil side judges have no problem deeming scientific evidence inadmissible after Daubert  and Frye hearings. In the criminal courts, however, judges have never been all that keen on performing their gatekeeper roles with regard to scientific evidence.

For far too long the state has been able to introduce so-called scientific evidence without regard as to whether the new science has been thoroughly tested. We've seen bullet alloy analysis, tire track analysis, bite mark analysis and arson investigation, just to name a few, that have all been debunked for the junk they were. It is frightening that judges seem to be more concerned with saving insurance companies money than they do in protecting the rights of criminal defendants.

Junk science and guns

Are the ejector marks from a handgun unique?

How many handguns would you have to fire in order to make that conclusion?

The Bureau of Alcohol, Tobacco, Firearms and Explosives would like you to believe the answer to the first question is yes and that the answer to the second question is irrelevant.

Back in 1999 the BATFE (known then as the ATF) created the National Integrated Ballistics Information Network (NIBIN), a database of high resolution images of bullet casings. The database was used by forensic examiners to testify at trial regarding the likelihood of a particular gun being used in a crime. Thanks to the Department of Justice, local police departments now have access to the database for use in investigating gun crimes.

But has anyone bothered to verify that the assumption that every gun leaves a unique mark on a bullet casing accurate?

This is the problem we run into with every new "forensic tool" created by law enforcement. We've seen it with tire tread analysis, bullet composition, bite mark evidence, and others. A forensic "scientist" comes up with a theory - and without checking it using the scientific method - declares that this new tool will allow the police to catch the bad guys.

But what tends to happen is the police take whatever "evidence" they uncover and use it subjectively to create a narrative that their leading suspect is the bad guy - even if it leads them in the completely wrong direction.

If you've read The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington then you know where I'm headed. If you haven't read it, then stop what you're doing right now and get the book. In many investigations the police hone in on the person they think is the most likely culprit - often on little more than a hunch. They look for evidence that points to their suspect and ignore evidence that contradicts their narrative (one of the reasons that Brady material is withheld from defense attorneys). And if the narrative makes little or no sense, they bring in a forensic examiner who will gladly resort to pseudo-scientific methods to create evidence pinning the blame on the guy the police were looking at in the first place.

Just think about it, soon the local authorities will take a bullet casing and will compare the marks on it to the NIBIN database. As soon as the algorithm matches the bullet casing the police recovered with an image in the database, the police will go after the owner of that gun -- never once questioning the assumption that no other gun would leave the same mark.

In 2013 a Mississippi man's life was spared hours before his scheduled execution after the FBI said experts had overstated the science. In a note sent to the district attorney in that case, the bureau clarified that "the science regarding firearms examinations does not permit examiner testimony that a specific gun fired a specific bullet to the exclusion of all other guns in the world."

Should the case go to trial the court, which long ago ceded its gatekeeping role with regard to scientific evidence will allow the gun examiner to testify to the unique characteristics of the ejector marks without once questioning whether there is any science behind the assertion. Of course this might work out differently in civil court where judges are only too happy to exclude any new scientific evidence that might result in insurance companies having to pay off claims.

Every new forensic tool (for lack of a better phrase) wants to portray itself as some type of a "fngerprint" since we have all bought into the assumption that our fingerprints are unique. While fingerprints and DNA profiles may very well be unique to an individual, there is little or no evidence that anything else is. Tire treads and shoe soles might have unique wear patterns, but the surface in which the imprint is left and the means by which that imprint is transferred to the surface make the analysis anything but precise.

Just remember what they say about assumptions.

Blood spatter backlash

Before we begin, let us never forget that the foremost ethical duty of a prosecutor is to see that justice is done (whatever that means), not to obtain convictions.

Adam Sibley, the Bosque County District Attorney, is the latest prosecutor in a high-profile case involving flawed forensic evidence to have to make a choice to do what's right or what's necessary to maintain a conviction.

Joe Bryan, a high school principal in Clifton, Texas, was charged with murdering his wife, an elementary school teacher, back in 1985. Mr. Bryan steadfastly claimed he was at a conference in Austin at the time of the killing.

But with the help of some voodoo, I mean, blood spatter analysis, by a police detective who barely understood the principals of the so-called forensic science, Mr. Bryan was convicted. Despite the fact he had but 40 hours training in the discipline, Robert Thorman took the stand and testified that the blood found on a flashlight in the trunk of Mr. Bryan's car showed evidence of back spatter which, according to Mr. Thorman, was a telltale sign that the flashlight was used in a close range shooting.

Let's forget for a second that no one ever tied the flashlight to the murder. Let's further forget that the blood found on the flashlight was Type O which is found in approximately half the population. And let's not forget that no DNA testing was conducted on the blood specks found on the flashlight.

Last Friday, Celestina Rossi, a crime scene investigator for the Montgomery County (Texas) Sheriff's Office Crime Lab, testified before the Texas Forensic Science Commission and testified that Mr. Thorman's testimony was "egregiously wrong" in the Bryan case.

Ms. Rossi spent some 60 hours researching the case and concluded that Mr. Thorman "misstated scientific concepts, used flawed methodology and incorrectly interpreted evidence." She said Mr. Thorman's analysis was not scientifically accurate and could not be supported by any published data.

Driving another nail into the state's coffin, Ms. Rossi testified that the back spatter Mr. Thorman testified indicated the flashlight was used in the murder wasn't back spatter at all and that there was no evidence that the flashlight had been present at the murder scene.

Another problem for the state was a state crime lab technician by the name of Patricia Almanza who was allowed to give opinions during direct examination that exceeded the scope of her expertise.

Mr. Bryan's attorneys have been seeking to have DNA testing performed on the untested evidence for years. In 2017 a court ruled that the items were to be tested. Mr. Sibley appealed that decision.

And why would Mr. Sibley do everything in his power to block that testing? Simple. He wants to maintain the conviction and doesn't care who or what gets in his way. He will stand up on a table and shout to the rafters that it's about finality and respecting a jury's verdict - but that's bullshit.

Mr. Sibley, and most prosecutors, don't get their ethical duty. A defense attorney, by contrast, has no ethical duty but to provide a vigorous defense for his client and maintain his confidences. That's a lot different that seeing that justice is done.

If Mr. Sibley were really interested in seeing that justice is done, he would withdraw his appeal and allow the items to be tested. If the tests confirm that Mr. Bryan is the killer, so be it, but, if they don't, then someone got away with murder and walked around free for more than 30 years. Is that justice?

Next month, Mr. Bryan's attorneys will argue in an evidentiary hearing for a new trial for their client. The presiding judge will then send his recommendation to the Court of Criminal Appeals which will be the final arbiter.

Book review: The Cadaver King and the Country Dentist

I just finished an excellent book from Radley Balko and Tucker Carrington Sunday night as the storm raged around us. And by excellent I, of course, mean a book that got me so angry I wanted to hurl my phone across the room. The book is The Cadaver King and the The Country Dentist.

While the book focuses on Steven Hayne and Mark West, the book serves as a warning to all those out there who think judges in criminal courts are doing a good job of keeping junk science out of the courtroom. If you represent plaintiffs with claims against insurance companies and large corporations, then the judges act as stern gatekeepers of scientific evidence - doing all they can to exclude any scientific evidence that might cause someone to have to write a big check. But, when the actual lives of people are at stake, judges are only too willing to allow in any junk science sponsored by the State. Any problems with the testing or methodology, of course, goes to the weight of the evidence and not its admissibility.

Mr. Hayne was a forensic pathologist - at least that's what he called himself. Coroners throughout Mississippi were only too happy to farm out autopsies to him since he would do everything in his power to bend his findings to confirm what the police believed. By his own admission he would perform up to five autopsies a day - day after day after day. He gave expert opinions in fields in which he had no formal training or certification. And even after he was discredited, Mississippi prosecutors and the Attorney General still defended his opinions against attack on appeal.

Mr. West was a local dentist who passed himself off, with the help of compliant judges across the state, as an expert in multiple fields including bite mark analysis, tool mark comparison as well as others. Even after being caught on film jamming casts of mouths onto the skin of deceased victims, judges continued to allow him to testify.

Thanks to the testimony of these two, as well as the win-at-all-costs mentality of small town prosecutors, Mr. Hayne and Mr. West were responsible for sending two innocent men to death row -- Levon Brooks and Kennedy Brewer. And then, even after the evidence that convicted the men was discredited, prosecutors fought like hell to keep the two men behind bars.

One point the authors emphasize in the closing chapter of the book is something that we as trial lawyers need to sit down and digest. According to the US Supreme Court's Daubert ruling, scientific evidence can be admitted to court if the court finds the science is generally accepted. But what makes a field of scientific inquiry "generally accepted?" In the legal field we are looking for answers right now, but science isn't concerned with a timeline. Science is concerned with getting it right - regardless of how long the process takes. Just because some piece of scientific evidence is deemed to be generally accepted now, a few years down the road we may learn that the entire inquiry was flawed. What happens to those men and women sitting in prison based upon that evidence? And at what point does a field of inquiry cease to be generally accepted? Is it when the first critical analysis is published? The second? And how are we - and more importantly, our clients, to know?

The other big issue they touch on is the very nature of forensic science. Unlike so-called "pure science," forensic science is developed specifically for use in the legal system. There's no rigor of peer review. Frequently articles are published in magazines aimed at law enforcement or others in that field of inquiry in journals that don't require articles to be peer-reviewed. Is it no wonder, then, that fields of inquiry such as bullet composition, bite mark analysis, blood spatter analysis, tool mark identification and others have been shown to be nothing more than junk science?

What goes around keeps going around

In our digital world, nothing really ever goes away. That off-hand comment you made on Twitter or that snarky remark you made on someone's Facebook page will remain there years after the fact - just waiting for someone to stumble across it at a most inopportune time.

Alfred Swinton knows all about the vapor trails in the ether.

You see, Mr. Swinton was the focus of a 2002 episode of Cold Case Files. In 2001, Mr. Swinton was convicted for the 1991 murder of Carla Terry. Her murder was one of 15 similar murders in the Hartford (CT) area in the late 80's and early 90's. Police worked the case for almost a decade before arrested Mr. Swinton with the help of a pair of forensic bite-mark analysts.

A judge tossed the initial indictment in 1991 because prosecutors presented no evidence that a bite mark said to be found on Ms. Terry's body was made at or near the time she was killed. Seven years later the state hooked up with an outfit called Image Content Technologies who claimed they had a software package that could scan old photographs and find previously unseen details. The state also hired forensic bite-mark voodoo salesman Gus Karazulas who took a plaster mold of Mr. Swinton's teeth and "bit" himself and then timed how long it took for the "bitemark" to change color.

Of course the judge let it in (since about the only time a judge exercises his or her power as gatekeeper of scientific evidence is in civil cases) and the jury lapped it up like a thirsty puppy. Mr. Swinton was convicted and sent to prison. In 2017, after spending 18 years behind bars, his conviction was vacated based on DNA testing of biological material that excluded Mr. Swinton as a suspect.

But even though a judge ruled that Mr. Swinton was wrongly convicted of the murder, reruns of the episode still air occasionally on cable television without any notification to viewers that Mr. Swinton was exonerated or that the forensic bite-mark evidence was garbage.

Today there are internet firms that compile mug shot photos of folks who were recently arrested and post them online. The posts remain available to the public even if the case is dismissed or the accused is found to be innocent. The only way to get the company to take down the posts is to pay them an extortion fee. Some prosecutors' offices tweet or post Facebook messages about arrests made - but there is never a post to indicate when the police (and prosecutors) got it wrong.

Shows like Cold Case Files and Forensic Files showcase fields of forensic science that have since been shown to be junk science but never update their shows with a disclaimer that a particular technique or field of inquiry has been shown to be unreliable or fraudulent or that a person featured on their show was later exonerated of the crime.

Still the digital detritus keeps floating in the ether, like the space junk that orbits our planet.

h/t Radley Balko

There once was a lab analyst...

Oh the fun and games over at the Harris County Institute for Forensic Sciences never seem to stop. Last week a lab analyst was fired for not following proper lab procedure when testing a substance to determine if it was marijuana.

A lab analyst is supposed to perform both a chemical analysis as well as a microscopic analysis. Only after both tests have been run can the analyst record a positive result.

The analyst was discovered after the lab manager viewed high-resolution video of the analyst testing the substance.

It doesn't matter that when another analyst performed a microscopic analysis that the substance was found to be marijuana. The fired analyst "dry-labbed" the results which brings into question the results of any test performed by that analyst.

This episode points out (yet again) the difference between science and "forensic science."

Science is interested in answering the questions what? why? and how? A scientist observes a phenomenon and comes up with a hypothesis that answers one of the questions. The scientist then conducts experiments with the goal of disproving the hypothesis. If the experiments don't disprove the hypothesis then we may have a new theory. If the experiments disprove the hypothesis, then it's back to square one.

Science is replete with failures. In fact, it is through failures that we learn. Failures cause us to rethink our theories and to come up with new experiments. It's precisely because the failure rate is so high that scientific successes are celebrated as much as they are.

"Forensic science," on the other hand, isn't interested in discovering anything. The sole interest of the forensic scientist is to produce evidence that can be used by the state (or sometimes the defense) at trial. The junk science fields of dental recognition, tool mark analysis and bullet composition analysis, among others, came about because law enforcement needed ways to develop more evidence to support their arrest decisions.

They were allowed to proliferate because judges, who, for the most part, were not schooled in hard science, were appointed gatekeepers of scientific evidence. As a gatekeeper, the judge's role was to determine whether the offered scientific evidence should be admitted at trial. Unfortunately, most judges decided to let it all in and leave it up to the jury to determine what was junk and what wasn't.

The irony, of course, is that judges in civil matters, where money is at stake, tend to be much more strict in their decisions to allow, or disallow, scientific evidence to be presented than they are in criminal cases where the defendant's life is at stake. The results of this policy are illustrated by the large number of exonerations we have seen over the past decade or so. Juries across this country sent innocent men to prison (sometimes even death row) based on junk science that judges allowed into evidence.

So long as this divide exists between science and forensic science, we will continue to see more shenanigans in crime labs and more junk science presented to jurors.

An interesting little read for a Saturday morning

Here's a little something interesting to read related to the use of forensic science to determine just how a woman died. If more so-called forensic experts were interested in what the science actually showed rather than trying to help the state make its case, we'd all be better off.

Click here to read about how the death of an elderly woman in an Indiana barn was solved by spots.

h/t Deandra Grant

More fun with forensics

You can change the name of the lab. You can give them fancy new wraps on their SUV's. You can move them to another building in downtown Houston.

But apparently you can't change the culture of the crime lab itself.

Megan Timlin had been with the Houston Forensic Science Center for two years up until she was fired on January 31, 2018 for shredding her original field notes in a homicide case. During a technical review of her report in that case she was asked to return to the scene to correct some "administrative errors" that had been found in her report.

She returned to the scene, took more notes, amended her report and shredded her original field notes.

Oops. That wasn't the crime lab's policy now, was it?

As a result, Ms. Timlin was fired. The forensic analysis in the case will be redone and the lab will report Ms. Timlin's actions to the Texas Forensic Science Commission as suspected professional misconduct.

According to the lab, the only case affected by Ms. Timlin's actions were the homicide case she was working on, but Ms. Timlin's work on about 100 other cases will be audited.

Okay, in the grand scheme of things, this is a fairly minor problem for the crime lab. However, those original notes were discoverable and there is now no way to determine what may have been changed from the first visit to the second visit. That could be ripe material for cross-examination down the road.

What are the odds that this is the first time Ms. Timlin - or any of the other analysts - destroyed their notes? I suppose it's possible that it had never happened before and that she was just unlucky that her transgression was discovered. But it doesn't seem likely.

Rarely is anyone caught doing something the first time they do it. And if seemingly clear lab rules are being violated with regard to retaining copies of a report, what other lab rules are being flaunted?

As we know, a crime lab is nothing more than the arm of the police  that develops evidence to support arrest decisions and supports efforts to prosecute defendants. Errors in their work can send innocent people to prison. And the problem is only exacerbated by Harris County judges who seem to think that errors in testing and administrative procedures go only to the weight of the evidence and not its admissibility.

It's a sad state of affairs when the civil courts are stricter with regard to the admissibility of scientific evidence than the criminal courts are. I guess money is that much more important in Harris County than lives.

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

  Dr. Fessessework Guale Statement of Qualifications by Paul B. Kennedy on Scribd

Taking credit where credit wasn't due

Michael Phillips was arrested for the 1990 rape of a 16-year-old girl. Mr. Phillips, who maintained his innocence, entered into a plea agreement on the advice of his attorney after the white victim identified Mr. Phillips, a black man, in a photo line-up.

Mr. Phillips served 12 years in prison and then had to register as a sex offender after his release. As a result of not complying with the registration requirements he eventually went back to jail for another six months.

Earlier this year the DNA evidence in that rape case was tested - but not at Mr. Phillips' request. The kit was tested at the behest of the Dallas County DA's Office. The results of that test exonerated Mr. Phillips.

But why was the DA's Office testing a rape kit that had set on a shelf for more than two decades? Why were they testing a rape kit when the man convicted of the crime didn't request it?

Dallas County DA Craig Watkins would like you to believe that this was an incident in which his Conviction Integrity Unit was doing its job in making certain that no one was convicted of a crime they didn't commit. But that's not the reason the rape kit was tested.

You see Dallas County has a serious problem with its crime lab. Forensic work in Dallas County is performed by the Southwest Institute of Forensic Sciences. And SWIFS doesn't have a particularly good track record when it comes to DNA testing.

I have linked to a copy of an audit performed by the US Department of Justice in 2009 that paints a very disturbing picture of the crime lab.

Here is an excerpt from the report on the lab's compliance with CODIS protocols in the DNA section:

In our sample of 103 profiles, 2 profiles were inaccurate and 18 profiles were deleted from NDIS because they were unallowable, incomplete, or missing, and because of insufficient record retention, 15 of the Laboratory's files did not have sufficient evidence to determine if the profiles were obtained from a crime scene. The Laboratory deleted these 35 profiles from NDIS. The remaining 68 profiles we reviewed were complete, accurate, and allowable for inclusion in NDIS. However, 58 of the 103 profiles in our sample are not searchable at NDIS because they contain 9 or less core loci rather than the minimum of 10 loci required to be searchable at NDIS.4 Prior to January 2009, the Laboratory only attempted the analysis of 13 loci on forensic samples that did not have a standard for comparison, but in January 2009, the Laboratory began attempting the analysis of 13 core loci. However, 11 (30 percent) of the 37 samples analyzed between January 1, 2009, and May 13, 2009, contained less than 13 loci. The CODlS Administrator explained that it could be a matter of timing if the profile was run prior to January 1, 2009, or 13 loci were not run either because a suspect profile had already been developed for comparison or some of the sample was preserved for later use.

If this is the best that SWIFS can do, then Dallas County is in serious trouble. This, unfortunately, seems to be par for the course for crime labs run by and for law enforcement. These labs aren't meant to be independent. They are meant to generate evidence that the state can use against those accused of criminal acts. This mission encourages sloppiness and it encourages analysts to err on the side of law enforcement when making close calls.

The system is broken and it can't be fixed.

  Audit Compliance of CODIS at SWIFS December 2009 - Copy

Stop me if you've heard this before...

It seems that no matter how hard it tries, the Houston Police Department Crime Lab just can't keep itself out of the news. Peter Lentz worked as an analyst at the crime lab from 2012 until earlier this year when he resigned - after he was caught lying, using improper procedures and tampering with a government document.

Oops.

In every case in which an analyst testifies - from DWI cases to capital murder cases - the testimony reveals that the crime lab was certified by ASCLD and by the Texas Department of Public Safety. This testimony is supposed to convince jurors that the test results are accurate. Yet somehow the parade of problems continues.

Mr. Lentz worked on 185 cases, including 51 capital murder cases. The Harris County District Attorney's Office did send out a letter notifying defense attorneys about the issue after it arose as they should. In many of these cases there is still material that can be retested. However, the fact that Mr. Lentz was able to do what he did as long as he did it should raise serious questions about oversight at the HPD Crime Lab.

If the lab can pass its annual audits year after year but we still have problems with analysts making shit up, then there is something wrong with the audit process. Too much of the audit consists of a supervisor reviewing a file and signing off on the test results if all the paperwork is in order. There is no random retesting of material.

The list of past sins at the crime lab is well known in criminal defense circles. The lab has undergone numerous re-openings, re-toolings and re-marketing campaigns over the years. Nothing works. The culture at the crime lab is still - and seemingly always will be - to produce the best possible evidence for the government.

Because the mission of the crime lab is to assist the government in prosecuting cases, lab managers will never probe into the actual testing of material. What purpose would that serve? So long as the test results that come from 1201 Travis help prosecutors obtain convictions there is no reason for managers to do more oversight into the lab's operations.

While the misdeeds of Mr. Lentz only directly affect those cases on which he worked, the stench should cover each and every test result that comes from the HPD Crime Lab. When a culture is so ingrained in an institution that we keep coming across these stories year after year, that culture affects everyone who works in the crime lab.

As a postscript to the story, the Harris County District Attorney's Office presented evidence of Mr. Lentz' misdeeds to a grand jury that declined to indict the former analyst. My question is why was Devon Anderson's office allowed to present that case to the grand jury when almost every test conducted in the HPD Crime Lab (if not every test) is produced for the DA's Office?

There is a clear conflict of interest in allowing the Harris County DA's Office to investigate this matter. Ms. Anderson's office has an incentive not to prosecute Mr. Lentz as such a prosecution could put into question every test conducted at the HPD Crime Lab. By sweeping the matter under the rug, the DA's Office can pretend that Mr. Lentz was a "lone wolf" and that his actions aren't an indictment on the entire crime lab.

We'll let you know if it's something we think you should know about

Exactly how does a lab analyst, at an accredited lab, record the wrong name on at least 350 lab samples? How does that same lab analyst lose or destroy another analyst's worksheet? More importantly, what does that say about the quality of the work in the lab?

Those are the questions raised by a scandal involving Integrated Forensic Laboratories, LLC, a Bedford, Texas, lab that Bexar County contracted with to perform blood testing in DWI cases. Justin McShane, a Pennsylvania attorney and forensic science savant, posted an article from the San Antonio Express-News detailing the breadth of the scandal. A little anonymous bird pointed me to Mr. McShane's posting.

Cherrie Lemon was the analyst who lost her job on May 16 and whose work has now raised questions about the validity of tests performed on hundreds of DWI cases. The biggest questions are how she kept her job after the massive mislabeling effort and why the Bexar County DA's Office didn't notify defense attorneys of the problems at the lab until after news broke of her firing.

In an e-mail to Bexar County prosecutors, Dr. Nate Stevens, Ph.D., the lab director at IFL, pointed out that defense attorneys didn't need to know anything about their internal investigation unless any issues arose after the audit.

Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).

For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.

When a hand-held pipette in the HPD Crime Lab was found to be out of tolerance no one in the defense bar was notified. You only found out if you retained a certain expert who found the problem in the reams of paperwork turned over during discover. I only found out when I was handed a sheaf of papers five minutes before we were to resume trial.

In my case the lab analyst took the stand and told the jury, with a straight face, that it didn't matter if the pipette was out of tolerance. Forget about standard operating procedures - so what if we don't know what amount of blood or other substances were placed in the tube?

Any lab analyst worth his or her salt would be honest enough to admit that any test conducted using instruments that were out of tolerance would be compromised and should be re-run. Maybe it wouldn't make any difference - but what if it did?

This crap finds its way into our trials because we don't do a good enough job of fighting to keep junk science out. It also happens because criminal judges tend to disregard their roles as gatekeepers of scientific evidence. It would be funny, if it weren't so tragic, that judges in civil trials - where the only thing at stake is money - do a vastly superior job of keeping junk science out of the courtroom.

But hey, we're talking about criminal defendants here. We all know they did something wrong - even if it wasn't what they were charged with, don't we?

Oh what a relief it is (finally)

Now I don't usually take to these pages with a self-congratulatory blog post after getting a positive result. That's self-serving and doesn't serve the purpose for which I started up this blog almost six years ago.

But yesterday I got to do something pretty damn cool. I got to call up a client and tell him that his felony dope conviction was overturned by the Court of Criminal Appeals. After almost two years and two previous denials of relief, the CCA granted our writ on the third attempt.

Our work to reverse the conviction came about when it was revealed that a DPS lab analyst, Jonathan Salvador, had been caught faking test results in drug cases. At first the writs were being granted and convictions were being reversed - until someone in Austin realized just how many cases were affected. We certainly couldn't have a bunch of judges in Austin reversing thousands of felony drug convictions just because the lab analyst was caught cheating now, could we?

The Court tried to make it harder to obtain relief by making applicants show a pattern of misbehavior on the part of Mr. Salvador. That hurdle was overcome when it was discovered that there were other tests that appeared to have been faked over the years.

Credit must also go to Galveston County District Attorney Jack Roady who made a decision that his office would be more interested in seeing that justice was done than in preserving convictions. Assistant District Attorney Virginia Jones who is a fellow marathoner (but a whole lot faster than me) and works in the appellate division of the office also deserves credit for the integrity she displayed during the entire episode.

And, while I'm doling out huzzahs, a final one goes out to the Honorable Bret Griffin, the Presiding Judge in the 212th Judicial District Court in Galveston County. When we sat back in his chambers a few months ago after our second request was denied by the CCA, he told us that he thought the Court's decision in the Coty case was wrong.

In the end my client is happy now that this five-year long roller coaster ride is over. And that's one of the reasons we do what we do.

More problems for the HPD Crime Lab

Could the news be any better for the Houston Police Department Crime Lab? After having its DNA lab shut down due to faulty storage and testing issues and after cutting loose a technical supervisor who had the nerve to say that the intoxilyzers in HPD's batvans were faulty, now comes word that an analyst has been cut loose for not following procedures.

According to this story from KRIV-26 in Houston, an analyst who had been with the lab for two years resigned in mid-March amid allegations he (or she) mishandled evidence. The situation was so bad that Irma Rios, the lab's director, wrote in a memo that she would not recommend the worker be rehired.

Unfortunately the station declined to name the analyst leaving us all in the dark as to who mishandled the evidence and whose cases were affected. None of the local news operations seem to have any qualms about putting the names of those arrested for alleged criminal activity all over the television and newspaper, but heaven forbid we publish the name of a crime lab analyst whose work may have tainted dozens or more criminal cases.

Interestingly enough the resignation of this analyst and the sudden departure of Michael Manes, the lab manager at the HPD crime lab, seem to have fallen into the same window of time. Mr. Manes, who had been with the lab in its various incarnations for around 30 years, has left the building and is now working in Montgomery County with the Sheriff's Office or as a forensic-analyst-for-hire depending on who you talk to.

It's all a bit interesting considering that a current case of mine has a lab report that was Mr. Manes performed the technical review (looking at the paperwork) last summer but was was suddenly re-reviewed by a new supervisor in mid-March with no apparent explanation.

This latest incident is just one more reason that crime labs need to be taken out of the hands of the police departments and be run as independent labs with no loyalty to any agency or office. If the purpose of scientific evidence is to get us closer to the truth, then we need to end this cozy arrangement between crime labs and law enforcement agencies.

Scientific fraud in Massachusetts affects over 40,000 defendants

If ever more evidence was needed that scientific evidence in criminal cases needs to be scrutinized more than it is, we have the story of Annie Dookhan, a chemist with the state of Massachusetts who is heading off to prison for at least three years.

Ms. Dookhan was a real go-getter, running tests at three times the rate of her colleagues. The only problem is she wasn't running the tests. She tampered with evidence, forged signatures and lied about her qualifications as an expert. All in all, at least 40,000 cases have her fingerprints on them.

Auditors found that she was analyzing samples at a rate vastly superior to her fellow analysts but that didn't raise any red flags. Even after she was suspended after admitting she forged another analyst's initials on paper work she continued to testify in court. Finally, over a year after she was caught falsifying documents, she confessed to investigators that she "screwed up big time."

Prosecutors were asking for a sentence of between five and seven years but the judge handling the case, Carol S. Ball, thought a sentence of three to five years was more appropriate because Ms. Dookhan was, according to the judge, "a tragic and broken person undone by her own ambition."

That may be well and good but it doesn't even begin to address the people whose lives were turned upside down by Ms. Dookhan's actions. While the New York Times article takes the obligatory paragraphs to list how bad some of the defendants were, there is precious little space spent on the other victims of her crimes.

But the bigger question is whether or not we've learned our lesson on scientific evidence. It is ironic that in the civil courts, where money is the only issue, that scientific evidence is treated much more seriously than it is in the criminal courts. While civil trials often come down to a battle of the experts on the interpretation of medical or scientific evidence, in the criminal courthouse the judge usually waves off any challenge to the evidence claiming any questions go to the weight, not the admissibility, of the evidence.

So, instead of holding the state to its burden to prove that evidence was obtained and tested according to scientific protocols, the courts punt and let the jury make the decision. Judges would rather risk a few innocent folks getting convicted than do their jobs as gatekeepers of scientific evidence. It's more about judicial economy and not raising red flags that could affect other cases than it is about ensuring that the due process rights of criminal defendants are protected.

The problem is exacerbated by the fact that most judges come to the bench straight from the prosecutors' office.

It is time that scientific evidence in criminal trials was treated with the same degree of seriousness as it is in civil court. If this means the courts should provide more funding so that criminal defendants can afford to have evidence re-tested or to retain outside experts, then so be it. We should all be much more concerned with protecting the rights of a criminal defendant than in protecting the bottom line of an insurance company.

If we can't trust the outside auditors, if we can't trust the internal reviews, if we can't trust the analysts, then who can we trust when it comes to scientific evidence in the criminal courthouse?

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.

Slicing and dicing away in the Magnolia State

By all accounts Dr. Steven Hayne of Mississippi worked his butt off. For a period of almost 20 years, Dr. Hayne performed about 1700 autopsies a year as a contract medical examiner for the state. According to a New York Times article, for a long period of time, if a body were discovered in Mississippi, the odds were 4 in 5 that Dr. Hayne would be doing the cutting.

Now there are questions about the good doctor's work. It seems that while he was collecting his $500 per autopsy, he created some theories of his own about what he observed. Questions have also been asked about his workload - on average, Dr. Hayne performed more than 4 autopsies a day (some seven times the recommended work load), in addition to the work he performed in his private practice.

In 2008 the State of Mississippi cut off Dr. Hayne's gravy train after several murder convictions supported in large measure by his testimony and report were overturned.

Dr. Hayne made out like a bandit even though he wasn't board certified in forensic pathology.

But still he kept cutting up dead bodies, writing reports, testifying at trial and collecting checks.

A physician and pathologist, Dr. Hayne, now 71, began performing autopsies in Mississippi in the late 1980s. He served briefly as interim state medical examiner though he was not, as state law required, board certified in forensic pathology. From 1989, when he left the interim post, to 2010, the office of medical examiner was unfilled for all but five years. Dr. Hayne, working as a private contractor, almost single-handedly picked up the slack. 

By his own count, he performed as many as 1,700 autopsies some years, in addition to having his own pathology practice. Dr. David Fowler, the chief medical examiner in Maryland and a former chairman of the standards committee for the National Association of Medical Examiners, called the number “beyond defensible.”

Dr. Hayne is just the latest example of the ways in which our courts have failed in their role as gatekeepers to scientific and expert testimony. Junk science (and theories that are but flights of fancy) finds its way into our courtrooms because judges don't understand the science before them. It finds its way into our courtrooms because judges love witnesses who have a bunch of letters after their names. It finds its way into our courtrooms because we have failed to do our job as defense attorneys.

Juries love to have someone tell them how to decide a case - it beats sitting back in that jury room arguing back and forth for hours about whether the state has proven its case beyond all reasonable doubt. Just bring in a witness with a bunch of letters after his name and a folder full of certificates printed on fancy paper and let him tell the jury that the defendant is guilty.

They will rarely question his opinion because he's an expert. Hell, they don't understand what he's up on the stand talking about. The prosecutor knows it. We all know it. And once those magic words "In my expert opinion..." come out of his mouth it's all over.

It's not until years down the road when the so-called expert has a track record on paper and transcripts that anyone can put together the errors, lies and fictions he created out of whole cloth. It's not until someone has the money to bankroll the research that the extent of the injustice is exposed.

We will never know how many innocent folks ended up behind bars in Mississippi because of Dr. Steven Hayne. Worse yet, there are hundreds of mini-Dr. Haynes out there that will never be exposed.

Dry labbing it, baby

Science.

Chemistry.

Laboratory.

When you see or hear those words you think of folks with advanced degrees wearing smocks and goggles huddled over test tubes or microscopes looking for the next big breakthrough.

We are taught that science is value-free. In other words, science is about what can be tested and proved or disproved through the scientific method. You make an observation. You think up a hypothesis, or theory to explain what you saw. You design tests to disprove your hypothesis. If the hypothesis cannot be disproved, then a new scientific theory emerges.

Science doesn't care about your political views. It doesn't care about your religious beliefs. it doesn't care about your agenda. It doesn't care who funds the lab. It doesn't care where you come from, where you live or where you went to school. It doesn't care about the consequences (be they good or bad) of your experiments.

Science only cares about that which can be observed and tested. The answer is what the answer is - regardless of what you were hoping it would be.

At least that's what we're taught to believe.

Annie Dookhan thought differently. She wanted to get ahead. So she worked hard. She performed more tests than any other analysts at the Hinton State Laboratory in Jamaica Plain, Massachusetts. Over the course of nine years she performed some 60,000 tests in 34,000 cases.

But that's not the whole story. You see, Ms. Dookhan was creative in her methods. She dry-labbed samples (eyeballing them instead of testing them with a color-changing chemical). She forged her colleagues initials on lab reports. She calibrated machines used by other analysts. She removed evidence from the lab. And she intentionally contaminated evidence to confirm her fraud.

It is unknown just how many people are in prison or on supervision because of her actions. It is also unknown how many defense attorneys advised their clients to plead guilty in the face of lab reports instead of fighting their cases.

Ms. Dookhan worked for a state lab that did work for law enforcement agencies until she resigned back in March. She worked for a lab that believed its job was to support law enforcement in prosecuting suspected wrong-doers. She worked in a lab that was accredited by the American Society of Crime Lab Directors/Laboratory Accreditation Board. She worked in a lab in which no one questioned how she was conducting an average of 18 tests a day, 365 days a year.

No one questioned her because this was "science." No one questioned her because no one wanted to believe that someone in the crime lab would fake it like there was no tomorrow. No one questioned her because too many defense attorneys are either scared to challenge scientific evidence or have no clue how to do it. No one questioned her because the judges who presided over the courts just blindly accepted the word of the government "scientist."

For all of this, Ms. Dookhan was charged with two counts of obstruction of justice and one count of pretending to hold a degree. Yep, that's it. Thousands of people whose convictions are now under a cloud of suspicion and she's looking at a couple of misdemeanor charges. The state couldn't even bring itself to charge her with perjury for lying in lab reports she knew were likely to be used in court.

I don't think I'm going out on a limb here when I tell y'all that this is far from an isolated event. I would even argue that it's to be expected whenever you have a lab that is operated for the benefit of law enforcement. The pressure is not to conduct good science, the pressure is to assist the state in the prosecution of alleged crimes. These labs are hardly independent.

The solution is to take the labs out of the hands of law enforcement and to change their mission statements to say the purpose of the lab is to test, in a reliable and accurate manner, items that might be evidence in a criminal prosecution - whether those items be supplied by prosecutors, the police or defense attorneys.

So long as law enforcement agencies pull the strings in these crime labs, analysts will always face a conflict of interest when it comes to the practice of good science versus assisting the prosecutor.

FBI to review thousands of cases for faulty forensics

Oops.

Now the FBI is reviewing thousands of cases dating back to 1985 to determine if anyone was wrongly convicted as the result of hair and fiber evidence tested by the FBI. The cases being reviewed include cases filed in state courts where the evidence was tested by the FBI.

According to The Washington Post, the FBI was aware of problems in their forensic unit but chose not to divulge that information to the defendants or their attorneys. The review is being conducted with the Innocence Project and the National Association of Criminal Defense Lawyers.

“These recent developments remind us of the profound questions about the validity of many forensic techniques that have been used over the course of many decades and underscore the need for continuing attention at every level to ensuring the scientific validity and accuracy of the forensic science that is used every day in our criminal justice system.” -- Michael Bromwich 

If that name sounds familiar it's because Mr. Bromwich conducted the investigation into the morass known as the HPD Crime Lab a few years back.

The root of the problem is the way so-called crime labs operate. These "labs" are arms of state or local law enforcement agencies - so the people testing the evidence are employees of the same entity that arrested the suspect in the first place.

The set-up creates a glaring conflict of interest that most criminal judges are loathe to do anything about. The analysis is passed off as valid science even though the analyst is employed by law enforcement. The employees of the crime lab see themselves as part of the same team as the police. And this creates a massive problem.

Over in the civil courthouse, such an arrangement would raise more than a few eyebrows. The civil courts are accustomed to arguments regarding the validity of a particular test or conclusion. Courts routinely conduct hearings to determine whether or not a particular expert witness will be allowed to testify. Conclusions, assumptions and observations are scrutinized by both attorneys and judges.

But over in the criminal courthouse, where lives, not dollars, are at stake, judges will rarely prevent an analyst from testifying for the state - even though all of his training was provided through the police department and is based on what another officer taught him. Judges in the criminal courts think nothing of allowing an officer to testify as to the validity of the horizontal gaze nystagmus test despite the fact the officer has no knowledge of how the eye works or why alcohol supposedly causes nystagmus.

Analysts with little or no scientific training are allowed to testify as to the results of forensic tests when they can't even explain why a certain procedure is followed.

Control of crime labs must be taken out of the hands of law enforcement. The labs must be accessible to both the defense and the state. Judges need to take another look at Daubert and Frye and, in Texas, Kelly and Mata to remind themselves what their role as gatekeeper means. Defense attorneys need to learn more about the science behind the testing and need to learn to question the analysts' basic assumptions.