Taking away freedom on the cheap

One of our worst nightmares is being wrongly arrested by the police and getting lost in the criminal (in)justice system. Thanks to a cheap drug test kit, many folks around the country have had the pleasure of being arrested, having their cars impounded, losing their jobs and their apartments for no reason at all.

Factor in the pressure some folks have to plead guilty by appointed attorneys in order to get out of jail quicker and you have a situation that should shock the conscience of our nation. Yet it's something we are more than happy to sweep under the rug.

Last week the New York Times Magazine ran an article about the real life aftermath of the cheap roadside test kit focusing on the ordeal faced by one Amy Albritton from Louisiana. Her nightmare occurred right here in my hometown, Houston.

She and a friend were stopped by officers when they were in town for her friend's job interview. One officer claimed to have found a syringe needle in the visor and a (coerced) search of the car then turned up a powder-like substance (that Ms. Albritton said was BC headache powder) and a grain of something on the floorboard.

The officer who broke open the test kit claimed it showed the grain of something was, in fact, a piece of crack cocaine. Ms. Albritton was arrested (her friend disclaimed any knowledge of the substance and, since it was her car, she took the ride downtown) and charged with possession of a controlled substance - a state jail felony punishable by up to two years in prison.

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

The next morning Ms. Albritton met with a gentlemen who told her he was her court-appointed attorney. While she claimed innocence, he told her that the prosecutor would offer her 45 days (under a provision of the Texas Code of Criminal Procedure that allows certain felonies to be punished as misdemeanors) and that she would be in jail for much longer if she actually chose to fight her case. She gave in and pled guilty before Judge Vanessa Velasquez.

A later test of the substances by the Houston Police Department Crime Lab (who apparently tested substances from closed cases on a regular basis but never notified anyone of the results - among other sins that have been documented previously) showed that the substance in question was not crack cocaine. The tests also showed that there was nothing in the needle and that the powdery substance was BC powder.

All of this was a day late and a dollar short for Ms. Albritton who lost her job and was now hamstrung with a felony conviction due to her wrongful arrest.

Now, if we know that these kits are inherently unreliable and that their accuracy is affected by light and temperature and other environmental factors, why do we allow these tests to be the basis of criminal charges that have serious ramifications for the people involved? Why aren't we waiting for the results of actual lab tests before we file charges against someone? Why are we holding folks in jail for non-violent drug offenses simply because they can't afford to post a bond? And why the fuck are attorneys pressuring their "clients" to plead guilty without the benefit of a lab report?

Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.”

Another question, posed by former Houston Police Chief Charles McClelland, is why do we allow the folks who want to arrest someone to run the test that determines if someone gets arrested? Shouldn't that testing be done by someone who is (nominally) not a part of the police department?

Yet another question is why we continue to charge people who possess trace amounts of drugs with felony offenses?

This is reality for a sizable portion of the population yet you will never hear a politician talking about how innocent people get caught up in our criminal (in)justice system. You will never hear then talk about the gross inequities in how different people are treated. Instead you will hear nothing but the common platitudes of those who claim to be tough on crime in order to please white suburbanites whose idea of a colorblind society is an all-white neighborhood.

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?

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.

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.

More fun with forensics

So, let's pretend that you're the head of a state forensic sciences board and you receive a complaint from an analyst at a laboratory that is "certified" by the American Society of Laboratory Directors. The complaint alleges that the lab has been using chemicals after the expiration dates on the bottles, that the lab is using outdated protocols and that analysts have been conducting tests without wearing gloves (among others).

Do you:

(A) Have the forensic sciences board look into the allegations?
(B) Have the ASLD look into the allegations that the lab they "certified" is not quite up to snuff? or
(C) Book a tee time.

Now, let's assume that the state board chose Option B and that now you're one of the higher-ups at ASLD. When the complaint is referred to your office, do you:

(A) Send out an audit team to conduct an inspection of the facility?
(B) Interview the person making the complaint?
(C) Pick up the phone and call up the head of the lab and ask him some questions? or
(D) Get a bunch of dollar bills and head over to the nearest strip club for lunch?

Stay with me here. Now let's say you've decided the complaint was without merit. You need to create a paper trail that shows you did something with the complaint. Do you:

(A) Release the report to the public?
(B) Quietly release the report to the forensics board? or
(C) Worry about the report after a trip across the Red River to a casino in Oklahoma? 

Of course we all know the answers to the questions. This is a lab that runs a whole bunch of tests for the benefit of prosecutors and we certainly don't want to do anything that's going to cause the prosecutors any problems. We certainly can't expect them to conclude that the lab wasn't operating properly and that the results of any tests might be compromised, can we?

ASLD took over 13 months to complete their "investigation." Their investigation consisted of telephone interviews with managers at SWIFS (Southwest Institute of Forensic Sciences) in Dallas. Not once did anyone from ASLD contact the individual who made the complaint.

After ASLD's report was issued, it took the Texas Forensic Sciences Commission another 13 months to forward the findings to the individual who made the complaint. As a result of the "investigation" by the body who had accredited the lab two years prior to the complaint, the TFSC found the complaint to be groundless.

In addition, according to my anonymous source, two members of the TFSC paid ASLD/LAB for accreditation of the labs they operated - Nizam Peerwani and Sarah Kerrigan.

Dr. Peerwani is the chief medical examiner for Tarrant, Denton, Johnson and Parker Counties.  Dr. Kerrigan is the director of the Sam Houston Regional Crime Lab in The Woodlands. In addition, Dr. Peerwani has entered into financial contracts for forensic services from SWIFS, as has Arthur Eisenberg of the University of North Texas Health Science Center.

Now I'm not accusing anyone of a conflict of interest in this matter - but there is, at least, the appearance that something might not be on the up-and-up when members of the state forensics board have outside business dealings with the organization that accredits and investigates crime lab facilities in Texas. It raises a few more eyebrows when at least two members of the board have financial dealings with the lab being investigated.

Dallas SWIFS Investigative Report - Wyckoff-1-2

Anatomy of a crime (lab)

A source who shall remain nameless provided me with some very interesting reading material after reading my post about the accreditation of crime labs. It would appear that the Nassau County Crime Lab is the model agency for how not to run a crime lab according to both ASCLD/LAB and the New York State Inspector General.

You see, the Nassau County Crime Lab managed to find itself on probation from ASCLD/LAB on not one, but two, occasions. They earned their spot in crime lab time out thanks to incompetence, lack of communication and non-existent leadership.

It is hard to comprehend the magnitude of the problems out on Long Island. And apparently no one at the crime lab thought to let the Nassau County DA's Office know about their transgressions (if the DA is to be believed). It goes without saying that defense attorneys handling cases were kept in the dark as well.

In large measure, the problems are rooted in the way crime labs operate. Far from being an independent testing body, crime labs are under the control of law enforcement agencies. Crime labs were set up so that the police could test evidence to assist in making their cases. There is no objectivity in a crime lab. The mission is to produce admissible evidence in order to obtain convictions.

The courts allow these purveyors of pseudo-science to peddle their wares to juries as if they are independent, objective analysts. Should the defense wish to provide a counter-point to the state's dog-and-pony show someone is going to have to foot the bill. Then the testimony is characterized as being bought and paid for by the defendant. The implicit assumption is that the evidence presented by the crime lab analyst is presumed reliable unless proven otherwise.

This report should open the public's eyes about that very dangerous presumption.

Investigation Into the Nassau County Police Department Forensic Evidence Bureau

You can get the gold plaque for a few dollars more

We're accredited, you see. That means what comes out of our lab is reliable. We have strict quality control regimens and we verify all our results. You can bet that if our analyst tells you that sample indicates the driver was intoxicated or that the DNA matches your suspect, that the result will stand up in court.

Maybe that's what the lab director says, and maybe it isn't. But you can bet the analyst and the prosecutor will tell your jury more times than you can recall, that the crime lab was accredited.

To which my response is "so freaking what?" Mr. Marvin Schechter, an attorney from New York, wrote a memo about the fallacy of accreditation to the members of the New York State Commission on Forensic Science. The report is an eye-opener.

Who is it that accredits these crime labs? It's some body known as the American Society of Criminal Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). In Texas, the Department of Public Safety accredits crime labs - but only if they have already been accredited by a "recognized accrediting body."

North Carolina's State Bureau of Investigation crime lab was accredited by ASCLD/LAB. But that didn't do Gregory Taylor much good. He was convicted of killing a prostitute in 1993. In 2010 he was exonerated when it turned out that his blood wasn't found at the scene of the crime. Nor was it any comfort to Derrick Allen who was freed after serving over a decade in prison after it came to light that the lab reports were inaccurate.

Those incidents had no impact on the crime lab's accreditation, however.

In 2008, an analyst at the ASCLD/LAB-accredited San Francisco PD crime lab mixed up samples of DNA evidence in a homicide case. Instead of having her re-run the tests, the lab supervisor ordered her to change the labels on the tubes. And then, in 2010, there was the lab tech who took drug samples home for a little "confirmatory testing."

ASCLD/LAB promptly re-accredited the lab.

As Mr. Schechter notes in his memo:

ASCLD/LAB has been in existence for over 28 years, in which time they have managed to corner the market on forensic laboratory accreditation.  For all their  experience, however, the record shows that an inordinate amount of lab incidents occur at their accredited facilities.  In fact  ASCLD/LAB could more properly be described as  a product service organization which sells for a fee, a “seal of approval,” covering diverse laboratory  systems which laboratories can utilize to bolster their credibility through in-court testimony by technicians plus  ancillary services such as protection from outside inquiry, shielding of internal activities and where necessary, especially in the event of public condemnation, a spokesperson to buffer the laboratory from media inquiry.

Crime labs aren't accredited because they do such marvelous work. They are accredited because they keep their paperwork in order. So long as their paperwork is in order and so long as the check clears, ASCLD/LAB will continue to accredit crime labs - regardless of how bad the "science" actually is.

Indiana crime lab miscues cast doubt on convictions

There's a tempest a-brewing in Indiana following the release of a report by the Indiana Supreme Court stating that the state's crime lab reported incorrect results in 500 cases. A panel headed up by two judges from the Court of Appeals found five tests in which the substance reported by the lab wasn't even in the sample. The panel also found about 500 other instances in which the samples were inadequate for retesting or showed the presence of other chemicals.

The Court did not, however, address whether the test results from those samples would hold up in court.

Up until last summer, the Indiana University School of Medicine was conducting an audit of the state Department of Toxicology's lab. That's when the governor decided to take over the investigation and appointed a panel who neither heard nor saw anything about the lab that gave them reason to be alarmed.

Funny how that works, ain't it? Who can forget Governor Rick Perry's assault on the state's Forensic Sciences Commission once it looked like folks would find out the state killed an innocent man? Gov. Perry's mouthpiece, Williamson County DA, John Bradly (who's looking more and more like he's on the way out courtesy of the voters), ended the panel's investigation of the Cameron Willingham case before expert testimony would be heard casting serious doubts on the junk science used by two "arson investigators" during the investigation of the fire.

Of the 500 cases reviewed, 497 of the defendant pled guilty and 18 are still in jail.

Some people may have pleaded guilty based on bad lab test results, said Larry Landis, executive director of the Indiana Public Defender Council. 

“Public defenders rely on those results,” he said. “You assume they are right.”Landis added that most public defenders and their clients don’t have the time, money or expertise to challenge lab results. 

“And until recently,” he said, “there was no reason to.”

Now while Mr. Landis is correct that most indigent defendants lack the resources to challenge the test results, he is wrong that public defenders lack the resources. It is the job of a defense attorney to defend his client vigorously. And that means not taking any piece of paper offered by the prosecutor as the gospel truth.

That piece of paper from the lab is nothing more than an allegation that something is what the crime lab says it is. It is no more or less credible than any other evidence that may be put on at trial.

Why didn't anyone file a discovery request for lab protocols? Why didn't anyone file a discovery request for the qualifications of the people performing the tests? Why didn't anyone file a discovery request for records of audits of the lab?

Is it because their clients were in custody and couldn't afford to post bail? Was it because it was easier to negotiate time-served-and-a-fine rather than fight the case? Was it because the public defender's office was under budgetary pressure to move cases? Or was it just because someone was too fucking lazy to do anything other than tell their client he needed to plead because of what was written on a piece of paper?

What happened in Indiana happens because we aren't doing our jobs. We aren't holding the state to their burden of proof. We aren't challenging scientific evidence at trial. We aren't getting the records for ourselves.

If we just accept the state's evidence at face value we are doing a disservice not only to our clients, but also to everyone else who might someday find themselves caught up in the criminal (in)justice system.

Mayor wants to build new crime lab

Harris County already has a crime lab. It's called the Harris County Institute of Forensic Sciences. It was created out of the old medical examiner's office. They have a brand new building and a staff of anthropologists, forensic pathologists and lab techs in various forensic fields.

The City of Houston, on the other hand, only has the long discredited HPD Crime Lab.

But now Annise Parker wants a crime lab of her own. She wants to create an "independent" crime lab headed up by an assortment of political appointees to oversee the testing of evidence in criminal investigations. She'll need a building and a staff as well as a board of appointees fitting every possible demographic.

Mayor Parker wants someone from an Innocence Project-type group on the board. Council member Larry Green wants someone from the NAACP or LULAC. And, so we don't forget the wingnut crowd, Michael Sullivan wants representatives from law enforcement, so-called victims' rights groups and Parents of Murdered Children.

Excuse me, Mr. Sullivan, the crime lab's only customer will be law enforcement. They will provide the expert witnesses at trial. They will bend the truth any way they can to convince that jury that the defendant is guilty as charged.

Any crime lab should be independent of law enforcement. The testing of evidence should be an exercise in science, not politics. The only agenda the board running the lab should have is how to improve the science.

With the IFS already up and running, there is no need for the city to build its own crime lab. The city should contract with the IFS to handle any evidence testing for HPD. Running two crime labs would be a tremendous waste of resources. There are better uses for city money than duplicating the services the county already provides.

So, Mayor Parker, just let it go.

H/T Grits for Breakfast

Working blind

Ask any scientist and she'll tell you that the best result from an experiment is often the one that disproves the hypothesis being tested. Why? Because such a result means there are more questions to ask - and more knowledge to be gained.

According to the scientific method, we first develop a hypothesis, then we conduct experiments. We observe the data obtained and compare the results to our hypothesis. If the data contradicts the hypothesis we must change our hypothesis. That, you see, is the recipe for scientific breakthroughs.

But such a scenario is anathema in a crime lab.

The last thing the police want is an inconclusive test. Analysts know this. Their supervisors know this. The people funding the lab know this.

And so the "forensic scientists" at crime labs across the country are made part of the criminal investigation. They are given the task of proving a link between the test result and the suspect. And, as many results are subject to interpretation, there is an inherent bias to be found.

Grits for Breakfast referenced an article in The Economist that when forensic scientists are given too much "contextual information," test results can be subject to a "cognitive bias."

As Grits points out medical trials work because the doctors conducting them don't know who's receiving the actual treatment and who's receiving the placebo - and neither do the test subjects. Without that knowledge there is no pressure (whether real or imagined) to make the results fit the desired outcome.

In the criminal (in)justice context, however, the forensic scientists, or lab technicians, running the test are told they are testing something that came from the suspect. They are told what that person is suspected of doing. They are told they're part of the team. Their mission, in other words, is to provide the evidence the government needs to obtain a conviction.

They are neither neutral nor unbiased. Just think what role that ideology played in the expansion of forensic analysis into the analysis of tire tracks and foot prints. Fingerprints and bite marks. Ballistics and lead analysis. Arson investigations.

If we are going to call these glorified lab techs "forensic scientists," then we should at least expect them to play by the same rules other scientists follow. It's the least we should demand when people's lives are on the line.

Crime lab loses federal funding

The honeymoon for Sam Houston State's Regional Crime Lab in The Woodlands is now over.

The lab was opened with the help of a federal grant and the understanding that the lab would become self-sufficient after three years. Owing to the iron law of budgeting (he who holds the iron makes the budget), that three year window ended about two years early.

The lab had charged Montgomery County, its largest customer, $200 for every drug or alcohol test in DWI cases. Without the funding from the feds, MoCo will pay $386 for alcohol tests and $290 for drug tests. Due to the increasing costs of operating the lab, all controlled substance evidence tests will be handled by the DPS. The switch will increase the wait time for test results.

But how to pay for the increased cost of testing is the question. The original idea was that MoCo would pay for the tests through sentencing fees for those who plead guilty or are convicted at trial. But that only covered about 3% of the cost. MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

In the meantime, however, defendants in MoCo will have to wait longer for lab results to come back in drug cases as it can take up to nine months for the DPS lab to release test results. In the meantime that's nine months of missing work to take yourself to court (if you're on bond) or (if you can't make bond) the prospect of sitting in a cell for nine months waiting to fight a case.

Some of the lessons from MoCo's crime lab are obvious. First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime.

Into the belly of the beast

The other day I had the opportunity to go on a tour of the DPS Houston Crime Lab up on the northwest side of town. I would like to thank Mr. Robert Prince, Jr. for taking me around, not just the facilities in the new building, but also through the old lab next door.

We started off in the old work area. The lab moved earlier this year but there is still some equipment and furniture left across the parking lot (in the blue building you can see from 290). With the dim light and the old equipment lying around, the room looked like the perfect setting for a horror movie or a chase scene in some thriller -- you know, the scene where the girl finds herself running from the bad guy in the abandoned building.

We took a look at the old gas chromatograph which Mr. Prince opened up so I could see the columns inside. He pointed out the injector port, the Y-splitter and the flame ionization detector. I've read about the machines and I've seen pictures in both lectures and in books, but this was the first time I'd ever seen one up close.

As an aside, I'm always amazed when I see a machine that performs a complex task and think about how someone dreamed it up. There is an elegance to the machine. If you understand how it works, when you look at the components you can see a genius at work.

We looked at the old refrigerator where blood samples were stored. We went to the intake room. We saw the room where samples were stored after they were tested. Then it was on to the new building.

As it turns out, through coaching soccer I know a couple of guys who work at the architecture firm that designed the new building. It is a stunning building both inside and out.

Since my ticket to the tour was a court order allowing me to see the machine that my client's blood sample was tested in and the room in which the machine was housed, I didn't get to see the storage areas in the new building.

Mr. Prince showed me how the biological hood worked -- it's almost like something out of Get Smart. I saw the autosampler and he showed me how he seals the vials that are placed in the autosampler for testing. Again, you can read about the process all you want and look at pictures until your heart's content, but it's no substitute for actually looking at the equipment.

Contaminated with bias

After you consume alcohol, your body begins the process of absorption and then elimination. The alcohol is absorbed by the blood through the intestinal tract and is eliminated through excretion (sweating, exhaling) and metabolism.

Breath test machines work on the principle that the amount of alcohol you excrete through exhalation can be used to estimate the amount of alcohol in your blood. It is an indirect method of determining whether someone is over the legal limit of .08 grams per 100 milliliters of blood.

The more direct method, of course, is blood testing. Even blood testing is not a direct method, however, because what's actually tested in the chromatograph is the headspace gas in the blood tube.

As blood is fragile, care must be taken to preserve samples. Anticoagulants are added to the tubes to prevent clotting and an antiseptic cleaner is used around the blood draw site to prevent bacteria from infecting the person or the blood sample. The blood must also be refrigerated to prevent the growth of little yeasts called candida albicans which can cause the blood sample to ferment in the tube.

What can't happen in that blood tube, though, is the elimination of alcohol for there is nothing to metabolize it. If the blood is collected and stored properly, the sample should yield approximately the same result any time you choose to test it. It is in a state of vacuum.

Unless, of course, you're the Texas Department of Public Safety and you have to explain why some blood samples that tested over the legal limit later yielded results (when tested by a private facility) that were below the legal limit.

Deviation-2010-02-23

Keith Gibson, the Quality Manager for the DPS lab on Jones Road in Houston had a problem. It seems that when a private lab retested a sample of blood from a DWI case, the result came in quite a bit below what the DPS test said. Mr. Gibson wrote that he didn't want to issue a Quality Assurance Report because one of the samples came out below the legal limit on retest. He just wanted to draft a "deviation" so it could be brushed under the rug.

Forrest Davis, the Quality Assurance Coordinator for the DPS, agreed. He didn't like the idea of a Quality Assurance Report because the data from the retests would be included in it. Better just to pretend it never happened, right? Interestingly enough, Mr. Davis did note that the retest did not include any volatiles that would have suggested a degradation of the sample.

Junk science is still junk science, no matter what you call it.

Crime labs should not be under the control of the police or any agency involved in the investigation or prosecution of crime. These labs should be under independent control to remove the inherent bias found in crime labs run by the police.

North Carolina crime lab withheld test results in over 200 cases

Never forget who runs the "crime labs" in most jurisdictions. In most instances they are under the control of a local or state policy agency. In North Carolina they're run by the State Bureau of Investigation.



An audit conducted on the North Carolina crime lab in 2010 found that between 1986 and 2003, there were over 200 cases in which the lab had withheld blood test results. One of those cases involved Mr. Greg Taylor who sat in prison for 17 years for a crime he didn't commit.

According to Chris Swecker, a former FBI assistant director hired to conduct an audit on the North Carolina crime lab:

"There were over 230 cases where reports were not complete. Or reports didn't actually correspond to the laboratory notes, or information was not presented in the report that was in the laboratory notes as to the results of the test. What we saw was ... just not right." 

It may not have been right but it is par for the course in the criminal courthouse.

The state brings charges against an individual through the office of the district attorney following an investigation or arrest by a law enforcement agency. If any tests are conducted on blood, fluids or other substances at a crime scene, those samples are sent to a crime lab operated by (in most cases) either a local law enforcement agency or the state police. The lab technicians were trained by the law enforcement agency, paid by the law enforcement agency and taught to testify by the law enforcement agency. The results of these tests are then accepted as gospel by courts and force fed to juries. Should the defense wish to retest any samples, the defendant must cough up the money for another lab to conduct tests.

This is not unbiased science. This is "science" that is paid for and conducted for the same folks who are trying to lock our clients up. Tests are conducted and reports are written by folks who consider themselves part of the prosecution's team at trial. These same labs then require defense attorneys to issue subpoenas or obtain court orders in order to get copies of reports and test results.

Until these labs are separated from law enforcement and placed under the authority of those not involved in the investigation or prosecution of crime there will be more stories like that of Mr. Taylor.

City to spend $3 million to study police fingerprint unit

Updating a post from earlier this month about problems with the Houston Police Department's fingerprint unit, Houston City Council has approved $3 million (out of a request for $4 million) to pay consultants to review some 5,000 violent crime cases that have already been reviewed once. After that there are thousands of other cases involving violent and property crimes to be reviewed. Outside consultants have been running the fingerprint unit since the results of the audit conducted this fall were released.

While HPD was thrilled to be showered with taxpayer dollars, one city councilman was a bit more concerned about the situation.

Said Peter Brown: "If something is going wrong here, what else is going wrong in the Houston Police Department?"

I concur with Mr. Brown. Maybe now is the time to explore the creation of a regional forensic lab that is not under the control of law enforcement.

Former Dallas crime lab employee to file whistleblower suit against lab

A former forensic biologist in the Southwestern Institute of Forensic Science (SWIFS) lab in Dallas has announced he will file a "whistleblower" lawsuit against the institute, alleging that he was fired in retaliation for pointing out problems with Dallas County's crime lab.

"The evidence may have blood flakes on them or hair and fiber on them," Nulf explained. "If you have a box fan going in the background, those fibers could be blown across the evidence, lost forever or cross-contaminated into someone else's evidence."

According to Dallas County officials, Chris Nulf, Ph.D., was fired from SWIFS for insubordination, unsatisfactory progress, being unproductive and not following procedures. Dr. Nulf begged to differ.

Dr. Nulf, in a lawsuit to have been filed today, noted the following problems in the lab:

• an outdated protocol manual used by analysts to conduct their daily work;

• equipment that isn't calibrated;

• analysts using expired chemicals;

• criminal case files stored in an unsecured hallway; and

• a box fan which blew over areas where evidence is examined.

Dr. Nulf and his attorney, Raul Loya, believe that cross-contamination and improperly maintained equipment raise questions about convictions obtained largely as a result of testing performed at SWIFS.

A couple of random thoughts

The Detroit Police Crime Lab has been shuttered after the Michigan State Police exposed serious problems with the firearms lab.  Detroit's lab is not the first to be shut down and won't be the last. The fundamental problems facing police-sponsored crime labs are the same from city to city and state to state.  These crime labs aren't meant to carry out fact-finding missions; as arms of the police department, the role of these labs is to produce evidence that can be used to convict citizens for criminal acts.  As such, once a suspect is in custody there is pressure to produce evidence that will lead to his conviction.  This means that any uncertainties that might result from the analysis are not resolved in the accused's favor.  Could this be why when a third party conducts an audit the error rates in police-sponsored crime labs fall outside the norm of acceptable lab work?

This past week the Harris County Commissioner's Court met to discuss a proposed public defender office in Harris County.  Complaints about the expense of the current appointment system and favoritism are being used as justification for the office.  However, the public defender office would be under the control of Commissioner's Court which means the attorneys working in the office would be serving two masters: their clients, the defendants, and the State - the same State that would be trying to restrict the freedom and liberty of their clients.  The State can, thus, pressure public defenders to plead out their cases by threatening to reduce funding and increase case loads.  The better option may be to create an Office of Indigent Defense and have that office manage a wheel system that assigns attorneys randomly to represent those citizens who the courts determine are indigent.  This would, at least, take the power to appoint attorneys out of the hands of the judges.