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.

Execution Watch: 2/28/2019

Tomorrow night the State of Texas will murder once again...

BILLY COBLE, 70. One of the oldest people on death row, he was sentenced to death for the 1989 murders of his estranged wife's parents and brother in Axtell. The brother was a Waco police officer. On appear, Mr. Coble asserted that his trial was tainted by perjured testimony, an unfair venue and junk science.

The death sentence was thrown out in 2007 because the Fifth Circuit Court of Appeals held that the trial judge erred in instructing the jury. A new sentencing hearing was held in 2008 and featured the testimony of Dr. Richard Coons who predicted that Mr. Coble would be a danger to those around him - even in prison. The only problem was Mr. Coble had no disciplinary reports after 18 years on death row. Dr. Coons later admitted that there was no peer-reviewed science behind his predictions and that he had his own methodology that he followed.

The state also relied on the testimony of prison investigator A.P. Merillat who regaled the jury with tales of how dangerous Texas prisons could be. He was later found to be an unreliable witness.

In 2010 the Court of Criminal Appeals agreed that the testimony of Dr. Coons and Mr. Merillat should not have been allowed, but upheld the sentence due to the harmless error doctrine.

See: "Texas is Planning an Execution Based on Fraudulent Testimony," ACLU, February 26, 2019, by Brian Stull

RADIO SHOW PREVIEW

EXECUTION WATCH

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

Thursday, February 28, 2019, 6-7 PM Central Time

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

http://executionwatch.org > Listen

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.

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.

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.

More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.

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.

Couldn't you just see it coming?

Law enforcement officers are highly trained professionals who routinely undergo continuing training and education in new areas in order to do their jobs more efficiently and effectively.

The command staffs are all very intelligent men and women who know what the job of a law enforcement officer entails. The days of the loose cannon sheriff is over. Police organizations are risk-adverse and have the institutional knowledge to be highly skeptical of wild claims.

Well, sort of.

I guess we can strike the Liberty (Texas) County Sheriff's Office from the list of highly accredited, professional law enforcement organizations across the state. Back in 2011 a self-described psychic, Presley "Rhonda" Gridley, called the Liberty County Sheriff's Office and reported that she "saw" a mass grave on a couple's property in rural Liberty County.

Except that, despite the media uproar, there wasn't a mass grave.

Oops. The Sheriff's Office told every media outlet that would listen about the extraordinary find. They gave out the name of he owners and their address. The Texas Rangers, the FBI and other local law enforcement agencies jumped on board. Print and broadcast media gave the story extended run

Except, there wasn't a mass grave.

Ms. Gridley has had a $6.8 million judgment lodged against her - a judgment that isn't worth the piece of paper it's printed on.

The owners of the property can't undo the damage that was done to them - not by Ms. Gridely, but by the Liberty County Sheriff's Office. I expect nothing less from those who prey on the ignorant, the poor and those with a void in their lives. Psychics such as Ms. Gridely can see the future - they can see some poor schmuck handing over cash for a made up story.

But there is no excuse for a law enforcement agency to fall for this sham. Who needs good old fashioned detective work when you can just call up the local huckster to solve a crime you didn't even know occurred?

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.

Judge tells state to just test the damn DNA

Jeff Gamso has been fighting the good fight for longer than I'm sure he cares to remember. As a blogger, his work is "can't miss" reading. And his calls to just test the damn DNA are loud and clear.

On Wednesday in Montgomery County, of all places, a newly elected judge, Kelly Case, told the state to just test the damn DNA in Larry Swearingen's case. Mr. Swearingen was scheduled to be murdered by the state of Texas on February 27.

Now that proposed execution date has been pushed back to allow DNA testing on evidence found near the crime scene. A motion to test the evidence, based on a 2011 statute, was filed by Barry Scheck and The Innocence Project.

Judge Case has given both the state and Mr. Swearingen 60 days to file responses to Mr. Scheck's motion.

Ironically enough, it was Judge Case's predecessor, Fred Edwards, who denied Mr. Swearingen's motion for new trial late last year. Mr. Swearingen's attorneys had filed a motion for new trial based upon newly discovered evidence regarding decomposition science. Mr. Edwards ruled that decomposition science was a novel scientific theory and needed to be proven reliable in a pretrial hearing before he would consider it.

And that's where the irony comes in. As anyone who has tried a criminal case can attest, the general rule regarding scientific evidence in criminal trials is if it benefits the state, it's in; but, if it benefits the defense, it's out. Judges have had no problem allowing junk science into evidence when it's offered by the state - just take a look at the Cameron Willingham case.

Bite mark evidence, bullet composition evidence, tire mark evidence, "scent" lineups, psycho-babble about someone being a future danger to society. The list goes on. It's all been allowed in in the past because it helped the state obtain convictions. But, when the shoe is on the other foot and it's the state's ox that might get gored - then the judges slam on the brakes.

What happened in Conroe should be the rule, not the exception. If we're talking about taking the life of another person then we better be damn sure it's the right person. If there is DNA evidence that can be tested to determine if the person sentenced to die really did the crime - it should be tested. The stakes are too high to let the state play games. Either you got the right person, or you didn't.

I understand the fears of the state. We like to pretend that our criminal (in)justice system is fair and that it works. The truth, of course, is that it isn't and it doesn't. But to allow the public to look behind the curtain and see an innocent man released from death row shakes the public's confidence in our system to its core. And the fact that the process may have been fair but the result was a miscarriage of justice is cold comfort to those affected by an wrongful conviction and imprisonment.

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.

One night in Hudspeth County

Rusty Fleming wants all you budding country and rock stars to know that they don't much care for drugs down in the Valley in Hudspeth County.

Willie Nelson and Snoop Dog found that out. And now Fiona Apple knows.

But this isn't about celebs with pot in their tour buses being nabbed by those eagle-eyed officers of the Hudspeth County Sheriff's Office. Nope, this is about that little thing we call the presumption of innocence.

Fiona Apple was performing in Houston the other night. While on stage she let the audience know what she thought of the hospitality she was shown down in Hudspeth County. Let's just say she wasn't altogether impressed with the accommodations.

That's where our friend, Mr. Fleming, comes in. He's not the sheriff. He's not the officer who took down the once famous pop star. Mr. Fleming is the public information officer for the department. He's a glorified P.R. man.

And he wasn't too happy with what Ms. Apple had to say the other night. He was so out of sorts he penned an e-mail to express his feelings.

First, Honey, I’m already more famous than you, I don't need your help. However, it would appear that you need mine.... 

Two weeks ago nobody in the country cared about what you had to say, -- now that you’ve been arrested it appears your entire career has been jump-started. Don’t worry Sweetie, I won't bill you... 

Next, have you ever heard of Snoop, Willie or Armand Hammer? Maybe if you would read something besides your own press releases, you would have known BEFORE you got here, that if you come to Texas with dope, the cops will take your DOPE away and put YOU in jail 

Even though you and I only met briefly in the hallway, I don't know you but I'm sure you're an awesome and talented young woman and even though I'm not a fan of yours, I am sure there are thousands of them out there, and I’m sure that they would just as soon you get this all behind you and let you go back to what you do best—so my last piece of advice is simple "just shut-up and sing." 

Sincerely
Rusty Fleming

Not so fast there, Mr. Fleming. Yes, Ms. Apple was arrested and charged with possession of marijuana (well, technically marihuana, since no one in the legislature knows how to spell) and hashish. Yes, the dope was found on her tour bus. But that's about all we know.

Ms. Apple is innocent unless the state can prove her guilt beyond all reasonable doubt. There are plenty of folks arrested for possession of marijuana every day in Texas that see their cases dismissed or hear two word verdicts from juries.

Besides, Mr. Fleming, the last time I checked we have this little thing called the First Amendment that protects our right to say anything we damn well please - no matter how much it pisses off those in authority. And so, if Ms. Apple wants to get up on stage every night and tell the audience what an awful experience she had in Hudspeth County, good for her.

Of course the one thing no one's talking about is the junk science surrounding drug-sniffing dogs. Their handlers will claim that the dog will alert them by sitting, barking, rolling, jumping and anything else a dog does on a regular basis. We all know that the handlers can make those dogs do whatever they want them to.

Ms. Apple's tour bus was stopped at a border crossing and the dogs were brought out to sniff around it. It was a drug dog's supposed "hit" that got the police entre into the bus where they found the goodies. And that raises another issue about the continued erosion of the Fourth Amendment.

Let's see, the police can't use a thermal imaging device to peek inside a home to see if someone's growing marijuana with the aid of heat lamps but they can run a dog around the outside of your car to see if the dog can "smell" some wacky tobacky. And when that dog scratches his back or licks his balls we'll call it probable cause to search the vehicle.

Hmm. Tour bus for a rock star? Do you supposed that there just might be something illicit in that coach? We'll just call out the dog and tug on his collar a bit. That ought to do it. No judge down here is going to question it.

Hudspeth County is but a microcosm of what's wrong with our criminal (in)justice system. And, just so no one thinks I'm picking on a rural county in the Valley - what happened down there the other day happens in every county across the country on a regular basis.

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.

And the news just keeps getting worse

Life's just not getting any easier for embattled Williamson County District Attorney John Bradley. Not only is he facing what appears to be an uphill fight to hold onto his office, he must also deal with complaints filed with both the State Bar and the Travis County DA's Office that he was negligent in his leadership of the State Forensic Sciences Commission.

Dr. Christopher Nulf, Ph.D., a former analyst with the Southwestern Institute of Forensic Sciences in Dallas, alleges that Mr. Bradley, while chair of the FSC, failed to notify his fellow committee members of any potential conflicts of interest and that he made false statements to the public.

Click here for the ethics complaint filed with the State Bar. 

Click here for the Dr. Nulf's letter to the Travis County DA.

Under Mr. Bradley's stewardship of the FSC, Dr. Nulf filed a complaint about the many problems he observed at the SWIFS facility. The Committee failed to conduct its own investigation into the allegations - choosing, instead, to allow ASCLD/LAB (American Society of Crime Lab Directors), the body that "accredits" crime labs, to conduct a series of telephone interviews with directors of SWIFS. He also allowed committee members who had conducted business with ASCLD or Dallas County (SWIFS), or who had entered into contracts with them, to vote and take part in commission discussions regarding Dr. Nulf's allegations.

More disturbing is the fact that these problems were occurring right under the nose of the organization that provide accreditation to the crime lab. The problems in Dallas, and the recent revelation that there have been problems in the DPS Crime Lab in Houston raise questions about just how thorough an audit ASCLD performs. We won't even mention the fact that the crime labs pay ASCLD for their accreditation audit.

Nope. No problems here.

Maryland court finds DRE to be unreliable

In 1979 two sergeants with the Los Angeles Police Department cooked up the Drug Recognition and Classification Program (DEC). The National Highway Traffic Safety Administration (NHTSA) climbed on board the bus and developed a standardized curriculum. The International Association of Chiefs of Police became the national certifying agency in 1990.

Police officers without formal scientific training sign up for a 72-hour (clock hours, not semester hours) course in which they learn about seven categories of drugs and are taught to administer a 12-step test (how tastefully ironic) to drivers suspected of being under the influence of drugs. Should they pass a test with a score of at least 80% they are certified as drug recognition experts (DRE).

And, in courtrooms across this country, police officers with no more knowledge than that are allowed to give expert opinions about what drug a motorist was under the influence of while driving. Jurors who have been trained since childhood to trust the police then take this testimony back into the deliberation room with them when deciding whether or not the government proved its case beyond all reasonable doubt.

It happens because judges are scared of their role as gatekeeper of what the jury hears and sees. Too many of the men (and women) in black dresses are fearful of their prospects for re-election should they actually enforce the Constitution and the rules of evidence.

Judge Michael Galloway of the Circuit Court for Carroll County, Maryland, wasn't afraid.

He was asked to determine whether such testimony was admissible in a DWI prosecution. He said it was not.

The state presented six expert witnesses who all claimed that the DRE program was valid, only one of whom was a licensed physician.

Dr. Karl Citek, an optometrist, did not attend medical school. He said he was an adjunct faculty member at the Institute of Police Technology and Management where he taught a three-day class on the medical and science background behind the DRE program. By his own word he stated that the officer conducting the DRE is "making a diagnosis of whether the person is impaired by a drug or medical condition." He also testified that the program does not provide for a set number of indicators that a DRE needs to observe to reach an opinion.

Ms. Michelle Spirk, a chemist with the Arizona Department of Public Safety, had been "heavily involved in the DRE program" for many years. She was only qualified to testify as to the possible effects of a drug and could not testify as to its effect on driving.

Mr. William Tower III, a law enforcement liaison with NHTSA, noted that officers entering the DRE program were not required to have had any prior medical training and that by taking the course and passing the test with a score of at least 80%, any officer could become a DRE. He claimed that the DEC program was designed so that officers could conduct a "systematic and standardized" evaluation to determine whether a person was under the influence of a drug. Then he went on to say that the opinion reached by the DRE would still be valid even if he didn't complete all twelve of the steps in the protocol.

Mr. Tower testified that even if no drugs at all are found in the subject's blood, the DRE is "not going to change [their] opinion after you get the blood. Mr. Tower stated that the reason there would be no change in the officer's opinion is that "you are limited on what the lab can test for." - State of Maryland v. Consolidated Cases

Officer William Morrison, coordinator of the Montgomery County Police Department's Chemical Test Unit, testified that the DRE is "specifically making a medical diagnosis during the examination by ruling out medical conditions during the examination." This from an officer with no medical training or background. He went on to say that he wasn't concerned about the individual indicators because he looked at the "totality of everything" in reaching his opinion.

Dr. Zenon Zuk told the court he had last read the DRE manual fifteen years ago - but that didn't prevent him from testifying on behalf of the protocol fifteen times. Interestingly enough, Dr. Zuk also works with the Western Branch of the U.S. Immigration Service sedating deportees with drugs. No one asked if he had a framed portrait of Dr. Joseph Mengele on his desk. His interest in the DRE program began with his fascination with Tharp's Equation. For those not up on their junk science, Tharp's Equation states that you can predict a person's alcohol concentration by subtracting the angle of onset of horizontal gaze nystagmus from 50 degrees. Just try finding that in a medical textbook or journal.

The defense experts were Dr. Fran Gengo, Dr. Neal Adams and Dr. Jeffrey Janofsky. Dr. Gengo is pharmacologist who has published 65 peer-reviewed articles, three of which dealt with drug-impaired driving. Dr. Adams is the chair of Ophthalmology at the Texas Tech Medical School. Dr. Janofsky is a professor of psychiatry at Johns Hopkins University School of Medicine.

Dr. Gengo testified that the DRE protocol uses tools used by the police in a "novel and unreliable way." He also testified that drugs can have a myriad of effects on an individual that aren't addressed in the DRE manual.

"[T]he data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." -- Dr. Fran Gengo

Dr. Adams testified that there was no validity to Tharp's Equation. He also had problems with the DRE matrix because it focused more on the category of drugs rather than the relative weight of the drugs and because police officers don't have the judgment nor experience that doctors have in making medical diagnoses. He listed a series of questions regarding nystagmus that are unaddressed in the DRE protocol.

"Medical judgment is using items that may be in a matrix and placing our own experience, our own understanding of the medical literature, placing the knowledge that we have gained into that matrix, understanding the relative weights of different items in that matrix and coming out with a judgment. So that even if we were using this matrix in its totality without anything else, there is an element of judgment that we as physicians would incorporate to assist us. And that is not present; that is, it is a very important component of the matrix that is not present in this matrix. And that is what I was trying to get at is how we as physicians interpret these." - Dr. Neal Adams

Dr. Janofsky was concerned that the DRE protocol had never been validated in any peer-reviewed scientific journal. He testified that the DRE protocol was neither a diagnostic test nor a standardized protocol because it required clinical medical judgment for someone to come to a valid conclusion. Finally, Dr. Janofsky testified that there is a difference between the presence of a drug and evidence of impairment by that drug.

In its review of case law from other states regarding the DRE, the court found instances in which DRE testimony had been permitted because it wasn't scientific evidence. The state argued that the DRE's opinion was formed on the basis of his knowledge and experience. Judge Galloway didn't bite at that apple.

The state wants to have it both ways. It wants to present the evidence as if it's the result of a scientific process but it doesn't want to have to meet the burden established by Daubert for the admissibility of scientific evidence. Prosecutors know that if they can have a police officer color up a protocol that lacks any scientific validity with some words and phrases that convey it as being valid and accepted, then a jury will eat it up like candy.

In the end, Judge Galloway found that the DRE protocol was a novel technique that was not generally accepted in the scientific community. He also found that, even if the DRE protocol wasn't scientific evidence, that a DRE "is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect."

Unlike many judges who are unwilling to upset the apple cart, Judge Galloway was swayed more by his concern over a defendant's right to due process than judicial efficiency.

DREOrderExcludingDREMarylandMarch52012

No means no, unless it doesn't

"Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes." -- Tennard v. State, 802 SW2d 678, 683 (Tex.Crim.App. 1990)

That pronouncement by the Court of Criminal Appeals seems to put the matter of the admissibility of polygraph examinations to bed. The Court was concerned about the lack of reliability of a "test" that relied entirely upon the interpretation of one person.

William Leonard pled guilty to felony injury to a child and was placed on five years deferred adjudication. In other words, Mr. Leonard entered a guilty plea before the bench and the judge deferred a finding of guilt until a later date. If Mr. Leonard could complete his probation successfully, the case against him would be dismissed.

But, since we're discussing Mr. Leonard's case in this forum, you know it did not end well for him. As part of his conditions of probation, Mr. Leonard was required to attend counseling sessions for sex offenders and to submit to polygraph examinations.

On several occasions the polygraph examiner determined that Mr. Leonard was being deceptive. As a result he was discharged from the counseling sessions. The state then filed a motion to adjudicate Mr. Leonard's guilt. For those of y'all not familiar with the peculiar ways of the Lone Star State, a motion to adjudicate guilt is the way in which a prosecutor seeks to have a judge enter a finding of guilt in the underlying case. At a hearing before the court, the state argued that Mr. Leonard had been "unsuccessfully discharged" from the counseling sessions and that he had failed to make satisfactory progress in his treatment.

At the hearing the state called George Michael Strain, the psychotherapist who booted Mr. Leonard from the program. Mr. Strain testified that he kicked Mr. Leonard out of the program due to his failing five polygraph examinations. Mr. Leonard objected to the admissibility of the tests. The court, overruling Mr. Leonard's objections, granted the state's motion and entered a finding of guilt in the case.

On appeal, the Eastland Court of Appeals, in Leonard v. State, 315 SW3d 578 (Tex.App.-Eastland 2010), reversed the finding of guilt and ordered the case back to the trial court on the grounds that the results of the polygraph tests were inadmissible.

Well, that didn't sit too well with the District Attorney who appealed to the Texas Court of Criminal Appeals.

Judge Lawrence Meyers wrote for the 5-4 majority that in an administrative hearing the results of a polygraph examination are admissible because the judge isn't determining guilt and because there is no jury to be confused by the evidence. The Court held further that the failed test results were admissible as they were the basis of an expert's opinion as to why Mr. Leonard was discharged from the counseling program.

There were a couple of things that struck me as odd in that opinion. First, the Court had made it crystal clear in 1990 that the results of polygraph examinations were inadmissible for "all purposes." Not much wiggle room in that now, is there? Even though Judge Meyers makes a distinction between a trial and an administrative hearing, the Court made no such distinction in 1990. The Court wasn't presented any evidence that the tests were any more reliable in 2010 than they were in 1990.

Second, Judge Meyers was just plain wrong when it came to his rationale for admitting the test results in a hearing on a motion to adjudicate. Yes, it's an administrative hearing. Yes, the state's burden of proof is much lower than at trial. But, and this is a very big but, the entire purpose of the hearing in Mr. Leonard's case was to determine whether or not he was to be adjudicated guilty of the underlying offense. In other words, the judge was determining guilt.

In her concurring opinion, Judge Barbara Hervey acted as a mouthpiece for prosecutors when she said that issues of admissibility of scientific evidence were the purview of the trial courts, not the appellate court. I guess she would just as soon sidestep the entire issue of court precedent.

Apparently she was quite upset that Judge Cathy Cochran dared to write about the dearth of evidence that polygraph exams are reliable. Of course Judge Cochran was just following the principle of stare decisis as the trial court had not conducted a gatekeeper hearing to determine the admissibility of the test results.

Apparently conservative judges can be quite the little activists when it comes to finding ways to affirm convictions.

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.