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.

Death sentence for DUI?

According to this report from WCGL-TV in Atlanta, that's exactly what Willie Sutton received when he was arrested for a second DUI.

Willie Sutton spent 14 hours tied to a restraint chair on the day of his death. And that's just the beginning of this horrible story.

CBS Atlanta has obtained disturbing video from inside the Coweta County Jail that tell the tormenting story of Willie Sutton's death. He was sentenced to 45 days of jail time as a repeat DUI offender. Eight days later, he was dead.

Mr. Sutton, who was suffering from severe delirium tremens as a result of alcohol withdrawal while in the Coweta County Jail, was strapped into a restraining chair that looked straight out of the 1940's for over 14 hours. At the end of the 14 hours, he was dead.

“Well, that's unfortunate there. Death doesn't stop because you come to jail.”  Coweta County (GA) Sheriff Mike Yeager.

While drunk driving is a crime, it's really a symptom of a much deeper problem. Alcoholism is not an issue that our criminal (in)justice system can expect to resolve; it's a medical condition that requires an entire support system. Mr. Sutton may have committed a crime, but he needed to be in a hospital, not in a jail cell.

Sure, there are plenty of folks who are arrested for drunk driving who aren't alcoholics and who don't have drinking problems. For the vast majority of them, a DWI arrest and the subsequent ordeal is enough to change their behavior - that's the reaction of a rational person to the introduction of incentives and disincentives. For the person addicted to alcohol, however, the strongest incentive may not be enough to overcome the addiction.

Willie Sutton needed help. Coweta County decided it would be more efficient to kill him, instead.

Guilty unless proven otherwise

Who among us hasn't commented about the "black-robed prosecutor" sitting on the bench or about having to try a case against two prosecutors - the one at the table and the one at the bench?

On numerous occasions I've sat in the courtroom while the jury was out of the room and listened as the judge advised a young prosecutor how to get a specific piece of evidence admitted or how to lay the proper predicate.  One judge even told a prosecutor while the jury was out to offer our client five days on a second DWI because, as the judge said, the conviction mattered, not the time.

Critics say the judicial system in the Khodorkovsky case worked just the way Prime Minister Vladimir Putin wanted it to. Days before Khodorkovsky's new conviction, Putin said on television that "a thief belongs in jail." It was almost as if he gave the judge a signal, instructing him on what to do.

According to a piece on NPR's Morning Edition, we're not the only ones playing against a loaded deck.

It seems that one is not presumed innocent unless proven guilty in the Russian Federation -- one is merely waiting to see how bad the sentence will be.

[J]udges seem to behave like they are an extension of law enforcement. Prosecutors file charges, and it's a judge's job to convict rather than interfere.

Wander in and out of enough courtrooms at the Harris County Criminal (In)justice Center and you may very well walk away with the same impression. During the recent election it was hard to tell whether some of the judicial candidates were running for the bench or for county sheriff.

One former judge, Alexander Melikov, told NPR that the judges are not bad people. It's just that many have a "mindset that a court is a law enforcement body; it is not an institution there to protect citizens." When he tried to work outside the system around 2003 and '04, his superiors complained that his decisions were too lenient — and he was fired.

It may attract votes to run on a platform of being tough on crime, but it's highly improper and might even be (gasp) unethical. A judge's sole role on the bench is to act as am impartial arbiter. His job is to listen to the arguments of counsel when deciding upon the merits of a motion or determining whether objections should be overruled or sustained.

And, should a defendant come before the bench for sentencing - either on a plea without a recommendation or as the result of a conviction, the judge is obligated to consider the entire range of punishment for that offense -- including probation.

I've asked the question before, and I'll ask it again, when a judge's campaign material says he's "tough," what does that mean? Is he going to hold the state to its burden of proof? Is he going to lend a critical eye to allegations that the police violated a defendant's constitutional rights? Or is he going to act as the second prosecutor in the courtroom?

That's what they do in Russia.

Does the State Bar even care about us?

I sat through three hours of CLE yesterday listening to the pros and cons of the State Bar's proposed changes to the Texas disciplinary rules.

First I listened to Amon Burton, Charles Herring and Jim McCormack tell me what was wrong with the proposed amendments. Well, to be honest, what was wrong with a small handful of them.

According to the State Bar, there will be no material changes to the rules as a result of the amendments. Mr. McCormack then asked the question that every lawyer in Texas should be asking: If you're not going to make material changes, why make the changes?

Just stop and think about that a bit. Let it sink in. So either the State Bar is proposing change for the sake of change or they're just plain lying about the effect of the changes.

As a rule of thumb, we make changes to address problems we encounter. If we're always late in the mornings we wake up earlier. If we think we weigh too much, we make changes in our diet.

In the context of the proposed changes, Mr. Burton wants to know what problem are these proposed changes meant to address. He also wants to know what goals the drafters of the proposed amendments had in mind. Finally he wants to know how much it's going to cost Texas lawyers to comply with the proposed changes.

Mr. Burton estimated that the 88,000 or so attorneys in Texas would each spend an average of 4.33 additional hours making sure they were in compliance with the new rules. He then estimated an average(?) billing rate of $262/hour for a total cost of $99,832.480. I'm not certain where he came up with his estimates, but I'm sure most of my colleagues on the defense bar would love to get a piece of that $262 an hour. It kind of puts into perspective how much counties car about providing quality representation for indigent defendants when the going rate in the Harris County area is anywhere from $50 to $100 an hour for appointed cases.

Then I listened to the State Bar's propaganda piece CLE and my head began to spin as I tried to keep up with the ball as it moved from cup to cup. First you had the State Bar's presenters tell us not to worry that the proposed changes differed from the ABA model rules. No one uses the ABA rules, they insisted. Then later on they said the State Bar used the ABA model rules as a guide or jumping-off point when drafting the rules. Then they told claimed there were no difference between the proposed changes and the ABA model rules.

Oh, lest I forget, the CLE began with an introductory video featuring the State Bar president, Terry Tottenham. And wouldn't you know it, the first thing out of his mouth was that it had been 20 years since the rules had last been changed and that was just too damn long. So that's your main selling point?

One of the presenters told us that some of the rules differed from the ABA model rules because the State Bar wanted the specifics of the rule to be found in the rule itself instead of being hidden in the comments. Then they all spoke of how we needed to read the comments for guidance in how to follow the proposed amendments.

We were told that attorneys who opposed the changes in the conflicts rules were probably acting unethically in the way they practiced. We were told not to worry about the changes in the confidentiality rule because Texas was already less stringent than the ABA on what constituted privileged communication between an attorney and a client.

And we were told it's not a good idea to sleep with a client or condition representation on the willingness of a client to sleep with you. Well, yeah, and if you juggle sharp knives you're likely to cut yourself to shreds.

The presenters also spent a good deal of time telling us how we needed to change the rules so we could show the legislature and the people of Texas that we could govern our profession ourselves. They seemed more concerned with the sunset review of the State Bar in 2015 than with how the rules affected criminal defense attorneys.

Interestingly enough, during the course of the entire three hours there was no one mention of the rules affecting  flat fees or IOLTA accounts. Not a one. Both presentations seemed geared toward attorneys working in large firms who might actually run across situations in which an attorney, or the firm, might be conflicted out of representation.

I really don't care about how large firms run conflicts checks when a prospective client walks in the door. I represent (for the most part) folks who are charged with committing criminal acts; and since I don't assist the state in its efforts to infringe upon the citizenry's rights and liberties, I have very little concern about being conflicted out of a case.

The State Bar of Texas doesn't care about those of who defend those accused of breaking the law. Is the self-governance of the profession really our concern?

I'm from the government and I'm here to help

Now we have a judge in Harris County who is concerned about the amount of time our clients miss from work or school as the result of appearing at court settings in criminal cases. At least that's the story going around.

In order to combat this problem, the Honorable Jay Karahan has decreed that there will only be three pre-trial settings in matters in his court: the initial appearance, a motions setting and a final setting either to plead the case or set it for trial. But will this "rocket docket" actually benefit our clients?

The answer is a resounding no.

Being required to make multiple appearances in court is an inconvenience for most of our clients. They have jobs. Or they're in school. Or they have family obligations. However, in some cases, multiple settings is the only way to obtain the evidence that is necessary to defend the case.

How long will it take to get that blood test result back? What about that lab report on that little rock in the floorboard? What about having to wait for an ALR hearing in a DWI case? How about obtaining maintenance records for a breath test machine?

Will the settings be 30 days apart? 45 days apart? 60 days apart?

Reducing the number of settings will benefit those attorneys who live by "churning and burning" their clients into quick pleas. No longer will they have to pretend to work a case to satisfy a client. Now they can scare their clients into pleading out by telling them that the case is bad and can't be won at trial.

The other result of the "rocket docket" will be more and more cases set on the trial docket. It takes time to prepare a case properly for trial, especially cases in which we're dealing with (pseudo)scientific evidence. It takes time to get an ALR hearing. It takes time to get lab results. It takes time to interview witnesses.

I can think of no reason a client in a criminal prosecution benefits by speeding up the docket - unless they're already in custody (in which case they aren't inconvenienced by multiple appearances). After all, every day that your client is out and about is a victory when you are up against the oppressive power of the state.

If the dockets have become unmanageable, maybe we should look to what's happening on the 6th floor at 1201 Franklin. Harris County District Attorney Pat Lykos operates her office using fear as a motivator. There are prosecutors who are scared to dismiss questionable cases out of fear of retribution by Ms. Lykos.

The "rocket docket" is not being implemented to benefit our clients. Nothing in the criminal courthouse is designed to benefit our clients. The purpose is to coerce more pleas and deprive more citizens of their right to a trial by jury of their peers.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.

The opposition grows

The number of organizations coming out against the State Bar's proposed changes to the disciplinary rules continues to grow:

• Texas Criminal Defense Lawyers Association
• Harris County Criminal Defense Lawyers Association
• Galveston County Criminal Defense Lawyers Association
• Houston Trial Lawyers Association
• State Bar of Texas Council of the General Practice, Solos and Small Firms Section (Props A,B,D and E)

If you know of any other organizations that have announced their opposition to the State Bar's proposals, please let me know so that I can add them to the roll.

Political propaganda disguised as education?

Not to be outdone by those opposing the proposed changes to the disciplinary rules, the State Bar of Texas has decided to bring out of retirement, a free two-hour CLE about the proposed changes. I'm sure that our dues money isn't being used for this propaganda push otherwise passing for continuing legal education.

According to the State Bar:

During this presentation on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct, the panelists will touch on the process of amending the rules but will focus mainly on four of the proposed new rules – Rules 1.00, 1.13, 1.14. 1.17 – and the proposed amendments to four conflict-of-interest rules – Rules 1.06 through 1.09 – that have sparked considerable debate during the amendment process. This webcast is intended to help lawyers understand the current content of proposed rules that will go to a referendum between January 18 and February 17. Take advantage of this opportunity to learn about these proposed rules before exercising your right to vote.

With a panel made up of a former chair of the State Bar's committee on the disciplinary rules, the current chair of the Supreme Court's task force on the disciplinary rules and the Supreme Court's rules attorney, I'm sure you will hear a balanced assessment of the proposed changes.

To the island and back

Here are a couple of interesting photos I took on my way back and forth to the island the other day. Yes, I took them while I was driving. I'm one of those folks who messes around with his cell phone while driving.

I was fascinated with that beam of sunlight making its way through the clouds. This is on my way down to the island.

I found the gradations of grey in the sky had a haunting beauty. This is on the way back to Houston.

Your state bar dues money in action

While killing time at the Galveston County Law Library, I came across this pamphlet on the proposed ethics rule changes. The pamphlet was produced using our dues money and toes the company line on the "need" for reforming the rules. There is no evidence in the pamphlet of any opposition to the proposed changes.

It's telling when the first thing the State Bar president mentions is that it's been 20 years since the ethics rules were last reviewed and changed.

In the January 2011 issue of the Texas Bar Journal Mr. Tottenham notes that "the practice of law has changed significantly over the past 20 years...For example, we did not use technology to the degree we do now." That's all well and good, but what on earth does technology have to do with trying to abolish the flat fee?

Mr. Tottenham, change for the sake of change is not only not a good idea, it's not good policy. If you can't come up with a better argument for changing the rules then I can think of no good reason the rules should be changed.

UT Law offers free CLE on proposed rule changes

For those of you who want more information on the State Bar's proposed disciplinary rules changes, the University of Texas is offering a free one-hour online CLE that addresses issues and problems with the proposed changes.

The CLE is free through January 29, 2011 and again from February 2-18, 2011. There will be a $35 fee for the CLE between January 30 and February 1.

The discussion is hosted by Amon Burton, Charles Herring, Jr. and Jim McCormack who have all spoken out against the proposals.

For more information, click here.