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.
Showing posts with label forensics. Show all posts
Showing posts with label forensics. Show all posts
Friday, January 27, 2012
Friday, January 13, 2012
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.
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.
Friday, November 4, 2011
Judge denies request to test evidence in death row case
That clock keeps a-ticking. That clock that's counting down the days, hours, minutes that Hank Skinner has remaining. Mr. Skinner has another date with the executioner next Wednesday. The State of Texas has another chance to murder Mr. Skinner. Of course it's probably too late for the latest state-sponsored killing to help Rick Perry's sinking presidential campaign.
Mr. Skinner was tried and convicted of the murders of his girlfriend and her two sons in 1993. The state introduced evidence that Mr. Skinner's blood was at the scene. An ex-girlfriend testified that he confessed to her; but, then, she recanted.
There was a great deal of biological evidence that was never tested because Mr. Skinner's attorney was afraid it would (further) incriminate his client. It was a valid fear and one that we have to deal with from time to time. Heads you win, tails you get the needle in your arm.
Among the items that were never tested were a rape kit, biological material found under the victim's fingernails, sweat from a jacket, a bloody towel and knives. To this day no one knows whose DNA will be found. And, thanks to Gray County District Judge Steven Emmert, we're not likely to know.
Judge Emmert, you see, denied Mr. Skinner's petition to have the items tested before his schedule execution. But why?
Why is the state so resistant to testing the items? Is it because someone's worried about what the results might be? Why didn't prosecutors test the items in the first place? If Mr. Skinner's DNA wasn't present, that would constitute Brady material.
The State of Texas is seeking to murder a man. Aren't we entitled to know whether the state is strapping the right man down on the gurney? We're not talking about a wrongful conviction in which an innocent man spends 10 or 20 years in prison (with no hope of ever getting that time back), we're talking about taking a man's life.
From the Texas Tribune:
The slavish adherence to artificial deadlines allows a judge to avoid making a real decision. Judge Emmert had the opportunity to do the right thing. He had the opportunity to say that if the State of Texas is going to mete out the ultimate punishment then the state needs to be damn sure they're killing the right person. Judge Emmert could have done that. But, instead, he passed the buck. All because a deadline was missed.
For all the talk of the need for finality, no one seems to appreciate that death is final. Once the drugs are pumped into Mr. Skinner's veins it's too late to make certain the state murdered the right person. Once the drugs start flowing, there is no exoneration.
See also:
"Next verse, same as the first," Gamso for the Defense (Oct. 6, 2011)
"To test or not to test," The Defense Rests (Mar. 24, 2010)
"Nope, no balm in Gilead. Sorry," Defending People (Mar. 23, 2010)
"Questions arise over DNA in death row case," Texas Tribune (Jan. 28, 2010)
Mr. Skinner was tried and convicted of the murders of his girlfriend and her two sons in 1993. The state introduced evidence that Mr. Skinner's blood was at the scene. An ex-girlfriend testified that he confessed to her; but, then, she recanted.
There was a great deal of biological evidence that was never tested because Mr. Skinner's attorney was afraid it would (further) incriminate his client. It was a valid fear and one that we have to deal with from time to time. Heads you win, tails you get the needle in your arm.
Among the items that were never tested were a rape kit, biological material found under the victim's fingernails, sweat from a jacket, a bloody towel and knives. To this day no one knows whose DNA will be found. And, thanks to Gray County District Judge Steven Emmert, we're not likely to know.
Judge Emmert, you see, denied Mr. Skinner's petition to have the items tested before his schedule execution. But why?
Why is the state so resistant to testing the items? Is it because someone's worried about what the results might be? Why didn't prosecutors test the items in the first place? If Mr. Skinner's DNA wasn't present, that would constitute Brady material.
The State of Texas is seeking to murder a man. Aren't we entitled to know whether the state is strapping the right man down on the gurney? We're not talking about a wrongful conviction in which an innocent man spends 10 or 20 years in prison (with no hope of ever getting that time back), we're talking about taking a man's life.
From the Texas Tribune:
For a decade, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. The high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law.
State lawmakers, though, made significant changes to that DNA testing law this year, expanding access and eliminating many of the restrictions the state had previously cited in denying Skinner's requests. In the letter, the group of officials said that change was designed with cases like Skinner’s in mind to eliminate procedural barriers to DNA testing that have “gotten in the way of the search for the truth.”
“That legislation passed with overwhelming bipartisan support, not least because polls show that eighty-five percent of Texans agree that prisoners should have broad access to DNA testing,” they wrote.
The slavish adherence to artificial deadlines allows a judge to avoid making a real decision. Judge Emmert had the opportunity to do the right thing. He had the opportunity to say that if the State of Texas is going to mete out the ultimate punishment then the state needs to be damn sure they're killing the right person. Judge Emmert could have done that. But, instead, he passed the buck. All because a deadline was missed.
For all the talk of the need for finality, no one seems to appreciate that death is final. Once the drugs are pumped into Mr. Skinner's veins it's too late to make certain the state murdered the right person. Once the drugs start flowing, there is no exoneration.
See also:
"Next verse, same as the first," Gamso for the Defense (Oct. 6, 2011)
"To test or not to test," The Defense Rests (Mar. 24, 2010)
"Nope, no balm in Gilead. Sorry," Defending People (Mar. 23, 2010)
"Questions arise over DNA in death row case," Texas Tribune (Jan. 28, 2010)
Thursday, November 3, 2011
New members appointed to Texas forensic science panel
It's out with the old and in with the new on the Texas Forensic Science Commission as the Fair-haired One appointed three new members and reappointed an existing member.
The new members are Tarrant County ADA Richard Alpert who replaces the governor's bagman, Williamson County DA John Bradley; Dr. Vincent DiMaio, former Bexar County medical examiner who replaces Dr. Norma Farley, chief forensic pathologist in Cameron and Hidalgo counties; and Mr. Bobby Lerma, a criminal defense attorney from Brownsville (and former president of the Texas Criminal Defense Lawyers Association) replacing Tarrant County defense attorney Lance Evans. Tarrant County medical examiner Dr. Nizam Peerwani was reappointed and will serve as the commission's chairman.
It's a damn shame, as Grits for Breakfast points out, that the commission has been emasculated by the governor in his quest to prevent any public proclamations that the State of Texas murdered an innocent man when Cameron Willingham was put to death.
Unless the commission is allowed to reopen old cases to determine whether proper safeguards were taken to prevent people from being convicted on the basis of junk science, there is little purpose for the body. I understand Gov. Perry's reluctance to allow the commission to look into old cases because news of another innocent man sent to his death as a result of bad science would be the final blow to his sinking presidential campaign.
There is no doubt that there are men and women behind bars who were convicted on the basis of junk science that should never have seen the inside of a courtroom. That is something that should never be allowed to happen again. There are too many "experts" in pseudo-scientific pursuits who are allowed to sit in the witness chair and tell a jury why they should convict the person sitting next to the defense attorney. This needs to stop now.
A properly functioning commission can educate judges on what distinguishes good science from bad science. But, in order to do so, the commission must be allowed to investigate old cases and non-accredited disciplines - after all, most of the junk science issues involve such "sciences" as bullet material analysis and tire track analysis.
The new members are Tarrant County ADA Richard Alpert who replaces the governor's bagman, Williamson County DA John Bradley; Dr. Vincent DiMaio, former Bexar County medical examiner who replaces Dr. Norma Farley, chief forensic pathologist in Cameron and Hidalgo counties; and Mr. Bobby Lerma, a criminal defense attorney from Brownsville (and former president of the Texas Criminal Defense Lawyers Association) replacing Tarrant County defense attorney Lance Evans. Tarrant County medical examiner Dr. Nizam Peerwani was reappointed and will serve as the commission's chairman.
It's a damn shame, as Grits for Breakfast points out, that the commission has been emasculated by the governor in his quest to prevent any public proclamations that the State of Texas murdered an innocent man when Cameron Willingham was put to death.
Unless the commission is allowed to reopen old cases to determine whether proper safeguards were taken to prevent people from being convicted on the basis of junk science, there is little purpose for the body. I understand Gov. Perry's reluctance to allow the commission to look into old cases because news of another innocent man sent to his death as a result of bad science would be the final blow to his sinking presidential campaign.
There is no doubt that there are men and women behind bars who were convicted on the basis of junk science that should never have seen the inside of a courtroom. That is something that should never be allowed to happen again. There are too many "experts" in pseudo-scientific pursuits who are allowed to sit in the witness chair and tell a jury why they should convict the person sitting next to the defense attorney. This needs to stop now.
A properly functioning commission can educate judges on what distinguishes good science from bad science. But, in order to do so, the commission must be allowed to investigate old cases and non-accredited disciplines - after all, most of the junk science issues involve such "sciences" as bullet material analysis and tire track analysis.
Thursday, October 6, 2011
Williamson County DA dragged kicking and screaming toward justice
John Bradley did his best to keep Michael Morton locked up behind bars. Even while presiding over the (emasculated) Texas Forensic Science Commission, the Williamson County District Attorney fought efforts by Mr. Morton's attorneys to conduct DNA testing on evidence introduced during in 1987 trial. Mr. Morton was charged with and convicted for the murder of his wife.
But it was all to no avail.
Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.
There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.
Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!
Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.
Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.
According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.
Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?
Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.
Morton Findings
See also:
"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)
"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)
"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)
"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)
But it was all to no avail.
Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.
There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.
Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!
Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.
"You do have my sympathies," Harle said. "We don’t have a perfect system of justice, but we do have the best system in the world."Unless you're behind bars for over two decades for a crime you didn't commit, I suppose.
Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.
According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.
Williamson County District Attorney John Bradley said that the new developments - which he said were a lightning bolt type of discovery - warranted a reversal of Morton's murder conviction.
"It is my just, as district attorney, to make sure that justice is done," Bradley said after the court action today.Well, I guess it's too late to worry about whether justice was served when Cameron Willingham was murdered by the state of Texas for a crime he didn't commit. After all, he was already dead, what good is justice when you're six feet under?
Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?
Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.
Morton Findings
See also:
"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)
"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)
"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)
"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)
Friday, September 2, 2011
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.
Tuesday, August 2, 2011
A recipe for reagent stew with expired chemical
It seems that it's always something with those folks up at the Southwest Institute of Forensics in Dallas. Our latest adventure in forensics has us making a reagent with an expired chemical. What could be the harm in that?
In today's story, lab analyst AML prepared a reagent for the entire lab to use. AML used an expired chemical in her concoction -- it's noted in the Lab Reagent Notebook entry dated August 28, 2009. AML seems to have no problem with breaking lab protocol by using an expired chemical in a solution that will be used to test evidence in criminal cases.
Lab analyst NV, on the other hand, wasn't so sure it was that great an idea. When she discovered what had happened, she reported it to the lab supervisor SM*. SM had the reagent QC'd (tested for quality control) and decided it was okay to use. (Interestingly enough, lab protocols do not call for this particular reagent to under QC testing prior to use.) This QC test wasn't run until after the reagent had been used for several months testing items of evidence.
*That couldn't possibly be our friend, Dr. Stacy McDonald, could it?
But, not to worry, we'll just give the chemical a new expiration date. See, that wasn't so hard, was it?
Now, what have we learned today?
In today's story, lab analyst AML prepared a reagent for the entire lab to use. AML used an expired chemical in her concoction -- it's noted in the Lab Reagent Notebook entry dated August 28, 2009. AML seems to have no problem with breaking lab protocol by using an expired chemical in a solution that will be used to test evidence in criminal cases.
Lab analyst NV, on the other hand, wasn't so sure it was that great an idea. When she discovered what had happened, she reported it to the lab supervisor SM*. SM had the reagent QC'd (tested for quality control) and decided it was okay to use. (Interestingly enough, lab protocols do not call for this particular reagent to under QC testing prior to use.) This QC test wasn't run until after the reagent had been used for several months testing items of evidence.
*That couldn't possibly be our friend, Dr. Stacy McDonald, could it?
But, not to worry, we'll just give the chemical a new expiration date. See, that wasn't so hard, was it?
Now, what have we learned today?
- It's okay to use expired chemicals for testing evidence in criminal cases.
- It's okay to ignore written lab protocols.
- It's okay to QC chemicals after they've been used to analyze items of evidence.
- It's okay to fabricate expiration dates on chemicals.
Monday, August 1, 2011
See no evil, hear no evil, speak no evil
What do you do when you're tired of the Texas Forensic Science Commission keeps sticking its nose into whether or not an innocent man, Cameron Willingham, was murdered by the State of Texas? You have the Attorney General issue an opinion that investigating evidence that the fire was not deliberately set is outside the scope of the Commission's duties.
The Commission was created under the authority of Art. 38.01 of the Texas Code of Criminal Procedure. Section 4 lays out the duties of the Commission:
The Attorney General takes this to mean that the Commission may not investigate any items or analysis entered into evidence prior to the effective date of the act.
Section 4 limits the scope of the Commission's inquiries to "accredited" entities - but does not define what constitutes an accredited entity. The acts also fails to state whether it mattered if the entity was accredited before or after the effective date.
The Attorney General then refers to Article 38.35(d)(1) to limit the scope of the Commission to entities that were accredited at the time the analysis took place.
Gov. Perry began his assault on the Commission when he placed Williamson County District Attorney John Bradley in charge of the Commission on the eve of a hearing in which an arson expert was going to testify that the fire in question was not deliberately set. Through Mr. Bradley, Gov. Perry did everything he could to prevent the Commission from hearing evidence, in public, that Mr. Willingham was innocent. The last thing he wanted was a public record of the murder of an innocent man. Now Greg Abbott is providing cover for the fair-haired one.
Let's think about this for a second. The Commission may only investigate evidence analyzed by forensic facilities that were accredited at the time the evidence was offered. The two bozos who investigated the fire that killed Mr. Willingham's children weren't accredited by the DPS. They had no scientific background at all. Yet, they were allowed to testify that (based on their "gut feeling") Mr. Willingham set the fire that killed his children. So, because the state was permitted to put junk science before a jury that didn't know better, the Commission is not allowed to examine whether or not the evidence should have been admissible.
The purpose of the Commission should be to seek the truth, not to provide political cover for a governor who wants to be president.
The Commission was created under the authority of Art. 38.01 of the Texas Code of Criminal Procedure. Section 4 lays out the duties of the Commission:
Sec. 4. (a) The commission shall: (1) develop and implement a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct; (2) require all laboratories, facilities, or entities that conduct forensic analyses to report professional negligence or misconduct to the commission; and (3) investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity. (b) An investigation under Subsection (a)(3): (1) must include the preparation of a written report that identifies and also describes the methods and procedures used to identify: (A) the alleged negligence or misconduct; (B) whether negligence or misconduct occurred; and (C) any corrective action required of the laboratory, facility, or entity; and (2) may include one or more: (A) retrospective reexaminations of other forensic analyses conducted by the laboratory, facility, or entity that may involve the same kind of negligence or misconduct; and (B) follow-up evaluations of the laboratory, facility, or entity to review: (i) the implementation of any corrective action required under Subdivision (1)(C); or (ii) the conclusion of any retrospective reexamination under Paragraph (A). (c) The commission by contract may delegate the duties described by Subsections (a)(1) and (3) to any person the commission determines to be qualified to assume those duties. (d) The commission may require that a laboratory, facility, or entity investigated under this section pay any costs incurred to ensure compliance with Subsection (b)(1). (e) The commission shall make all investigation reports completed under Subsection (b)(1) available to the public. A report completed under Subsection (b)(1), in a subsequent civil or criminal proceeding, is not prima facie evidence of the information or findings contained in the report.When the law was passed in 2005, the act was to apply to evidence tested or offered into evidence after September 1, 2005. The point, presumably, was to provide a safeguard against junk science being admitted into evidence after the effective date of the act by giving the Commission the power to regulate and investigate forensic facilities to ensure that proper scientific procedures were being followed.
The Attorney General takes this to mean that the Commission may not investigate any items or analysis entered into evidence prior to the effective date of the act.
Section 4 limits the scope of the Commission's inquiries to "accredited" entities - but does not define what constitutes an accredited entity. The acts also fails to state whether it mattered if the entity was accredited before or after the effective date.
The Attorney General then refers to Article 38.35(d)(1) to limit the scope of the Commission to entities that were accredited at the time the analysis took place.
Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the director under Section 411.0205, Government Code.Well, that's all well and good, Mr. AG, but we're not talking about whether any item of evidence is admissible. We're talking about reviewing an old case to determine whether an innocent man was executed as the result of junk science. Now I understand that Gov. Goodhair is worried that when the world realizes he sat on his hands while an innocent man was murdered by the State of Texas it might cause a bit of a problem for his presidential campaign -- but Gov. Perry's political aspirations are secondary to whether or not an innocent man was murdered.
Gov. Perry began his assault on the Commission when he placed Williamson County District Attorney John Bradley in charge of the Commission on the eve of a hearing in which an arson expert was going to testify that the fire in question was not deliberately set. Through Mr. Bradley, Gov. Perry did everything he could to prevent the Commission from hearing evidence, in public, that Mr. Willingham was innocent. The last thing he wanted was a public record of the murder of an innocent man. Now Greg Abbott is providing cover for the fair-haired one.
Let's think about this for a second. The Commission may only investigate evidence analyzed by forensic facilities that were accredited at the time the evidence was offered. The two bozos who investigated the fire that killed Mr. Willingham's children weren't accredited by the DPS. They had no scientific background at all. Yet, they were allowed to testify that (based on their "gut feeling") Mr. Willingham set the fire that killed his children. So, because the state was permitted to put junk science before a jury that didn't know better, the Commission is not allowed to examine whether or not the evidence should have been admissible.
The purpose of the Commission should be to seek the truth, not to provide political cover for a governor who wants to be president.
Friday, July 29, 2011
The wreckage of the batmobile
I've written at length about the problems with the Houston Police Department's BATmobiles and I've written about the departure of every technical supervisor from HPD's "Crime Lab." It would appear that our stories have intersected.
Amanda Culbertson, the former technical supervisor for HPD's breath test machines, told a judge on Thursday that she and the others left the city's employ because of their concerns with the BATmobile program. Ms. Culbertson said that she left because she feared retaliation from HPD over her criticism of the program.
According to the Houston Chronicle's Brian Rogers:
If Ms. Culbertson's story is true, I would like to know whether the folks charged with DWI who blew into machines in the BATmobiles were informed of her concerns over the accuracy of the test results. The prosecutors, as to be expected, threw up their arms and told the judge they had no knowledge of any of this.
As an aside, the article notes that the attorneys subpoenaed Ms. Culbertson after she finished testifying in another court. Well, that's not exactly true. While the attorneys may have drafted the subpoena, Ms. Culbertson was served by none other than my brother, Dan, who is a private investigator and process server.
And this brings us back to the bigger issue - why are the labs running these tests and maintaining these machines operated by the same folks who are out there arresting motorists for driving while intoxicated? There can be no objectivity in such a setting. What does it say when the person in charge of the machines feels so threatened by her employer that she walks away from her job? If the folks in charge of the crime lab were interested in the quality of the science, why would they ignore the concerns of Ms. Culbertson?
The folks in charge should have been happy that she came to them with her concerns. They should have welcomed the opportunity to correct problems with the program. Instead, because she wouldn't stick to the script, they ran her off.
This is not to absolve Ms. Culbertson from blame, however. If she was aware of the problems back in 2009, why wasn't she testifying that she had grave concerns over the accuracy of breath tests conducted in the BATmobiles? Why wait until she's taken another job as a technical supervisor overlooking machines used in the county?
The mission of science is to discover the truth. Science is misused when it's made to fit the facts of the state's case.
Amanda Culbertson, the former technical supervisor for HPD's breath test machines, told a judge on Thursday that she and the others left the city's employ because of their concerns with the BATmobile program. Ms. Culbertson said that she left because she feared retaliation from HPD over her criticism of the program.
According to the Houston Chronicle's Brian Rogers:
[Amanda Culbertson] and others worked to train technicians to keep air conditioning units on to regulate the temperature of the breath machine that measures blood alcohol levels in suspected drunken drivers. She also said an electrical glitch that was never fixed meant the sophisticated measuring machines would reset every time the van's air conditioner was turned on.
She said she supported the idea of a mobile testing site, but that HPD did not work to maintain the accuracy of the test results.
"In theory it's a great idea, but it depends on who is in charge of the environmental conditions," Culbertson said.
If Ms. Culbertson's story is true, I would like to know whether the folks charged with DWI who blew into machines in the BATmobiles were informed of her concerns over the accuracy of the test results. The prosecutors, as to be expected, threw up their arms and told the judge they had no knowledge of any of this.
As an aside, the article notes that the attorneys subpoenaed Ms. Culbertson after she finished testifying in another court. Well, that's not exactly true. While the attorneys may have drafted the subpoena, Ms. Culbertson was served by none other than my brother, Dan, who is a private investigator and process server.
And this brings us back to the bigger issue - why are the labs running these tests and maintaining these machines operated by the same folks who are out there arresting motorists for driving while intoxicated? There can be no objectivity in such a setting. What does it say when the person in charge of the machines feels so threatened by her employer that she walks away from her job? If the folks in charge of the crime lab were interested in the quality of the science, why would they ignore the concerns of Ms. Culbertson?
The folks in charge should have been happy that she came to them with her concerns. They should have welcomed the opportunity to correct problems with the program. Instead, because she wouldn't stick to the script, they ran her off.
This is not to absolve Ms. Culbertson from blame, however. If she was aware of the problems back in 2009, why wasn't she testifying that she had grave concerns over the accuracy of breath tests conducted in the BATmobiles? Why wait until she's taken another job as a technical supervisor overlooking machines used in the county?
The mission of science is to discover the truth. Science is misused when it's made to fit the facts of the state's case.
Monday, July 25, 2011
Covering one's backside - forensics edition
You run a crime lab forensics institute that specializes in assisting the state in gathering and analyzing evidence. On a logbook you see that a reagent used for blood testing was used for years after its expiration date. The notes indicating the expiration date aren't initialed and look like they were added after the original entries in the book. You determine that notes were written by the analyst. You speak with the analyst and ask him (or her) to initial the notes regarding the expiration date.
Voila! Job well done.
No need to request corrective action. No need to alert anyone that your lab techs were using chemicals that had passed their expiration dates. No need to inform prosecutors that there might be a problem with the analysis your lab performed. No need to inform defense attorneys that the tests might not be valid.
You draft a memo and attach it to the back of the logbook.
No e-mails to track down and preserve. No Corrective Action Requests subject to Open Records requests. No memo in a file that some pesky auditor might find.
Good work, Dr. Stacy McDonald. You've shown that you are more concerned about an analyst initializing notes about expired reagents than the fact that your lab was using expired reagents while conducting forensic tests that would be used by the state at trial.
Hmm. Dr. Stacy McDonald. That name seems familiar for some reason.
03 06 2009 Reagent Log Notebook Memo on Back Cover
Voila! Job well done.
No need to request corrective action. No need to alert anyone that your lab techs were using chemicals that had passed their expiration dates. No need to inform prosecutors that there might be a problem with the analysis your lab performed. No need to inform defense attorneys that the tests might not be valid.
You draft a memo and attach it to the back of the logbook.
No e-mails to track down and preserve. No Corrective Action Requests subject to Open Records requests. No memo in a file that some pesky auditor might find.
Good work, Dr. Stacy McDonald. You've shown that you are more concerned about an analyst initializing notes about expired reagents than the fact that your lab was using expired reagents while conducting forensic tests that would be used by the state at trial.
Hmm. Dr. Stacy McDonald. That name seems familiar for some reason.
03 06 2009 Reagent Log Notebook Memo on Back Cover
Thursday, June 9, 2011
More fun with science
Here's a document from the Southwestern Institute of Forensic Sciences in Dallas regarding an interesting finding on a proficiency test.
According to the supplier of the serology proficiency test (SERI), the test slide in question contained seminal fluid but no sperm cells. However, the lab tech said her test came back positive for both. The supervisor of forensic biology, Dr. Stacy McDonald, reran the test and claimed she, too, found a single sperm cell on the slide.
Now that raises an interesting conundrum - was the test supplier mistaken in what was on that particular slide or was the lab contaminated? Did SWIFS cover up an incorrect result on a proficiency exam? If SWIFS did cover up the test result, what was the source of the sperm cell on the test slide? If there was a contamination issue at the lab, when was it discovered? And what was done to resolve the problem? Were defense attorneys made aware of contamination issues at the lab?
According to this document, SWIFS did not implement an investigation to determine the source of the contamination. If there was no cover up, why didn't SWIFS notify SERI of the contamination of the slide in question?
CAR 06-006 FBU Proficiency Test Discrepancy
Sure, it was just a proficiency exam. But what if this had been an evidential sample in a criminal case? What if someone's life hung in the balance? How much confidence would you place in the lab?
According to the supplier of the serology proficiency test (SERI), the test slide in question contained seminal fluid but no sperm cells. However, the lab tech said her test came back positive for both. The supervisor of forensic biology, Dr. Stacy McDonald, reran the test and claimed she, too, found a single sperm cell on the slide.
Now that raises an interesting conundrum - was the test supplier mistaken in what was on that particular slide or was the lab contaminated? Did SWIFS cover up an incorrect result on a proficiency exam? If SWIFS did cover up the test result, what was the source of the sperm cell on the test slide? If there was a contamination issue at the lab, when was it discovered? And what was done to resolve the problem? Were defense attorneys made aware of contamination issues at the lab?
According to this document, SWIFS did not implement an investigation to determine the source of the contamination. If there was no cover up, why didn't SWIFS notify SERI of the contamination of the slide in question?
CAR 06-006 FBU Proficiency Test Discrepancy
Sure, it was just a proficiency exam. But what if this had been an evidential sample in a criminal case? What if someone's life hung in the balance? How much confidence would you place in the lab?
Tuesday, May 31, 2011
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.
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.
Thursday, May 26, 2011
A little of this and a bit of that
Here are a few odds and ends you might find interesting:
Bradley out as chairman of forensic commission
Williamson County District Attorney John Bradley's stint as chairman of the Texas Forensic Science Commission has come to an end as the senate concluded its session without voting on whether to accept Gov. Perry's nomination of Mr. Bradley.
Gov. Perry appointed Mr. Bradley to chair the commission in 2009 prior to a scheduled hearing in which the commission was to take testimony from Craig Beyler about the flawed science used by arson investigators that led to the execution of Cameron Willingham.
During his time as chairman, however, Mr. Bradley accomplished the fair haired governor's wishes to delay the release of the committee's findings until after the 2010 gubernatorial election.
Patrick cowers in fear
Texas State Senator Dan Patrick has once again proved himself to be a big bag of hot air as he withdrew his bill that would have criminalized groping by TSA personnel in airports. Mr. Patrick ran and hid in a closet after receiving a letter from the United States Attorney for the Western District of Texas threatening that TSA might cancel flights in Texas should the legislation pass.
Every year on the Fourth of July, Mr. Patrick rides in a car at the Memorial Villages 4th of July parade; and every year my wife gives me an ugly face when I mock Mr. Patrick in front of my daughters. Certainly my lack of civility and uncouthness is far worse than Mr. Patrick's demagoguery.
One wonders, was Mr. Patrick worried that the bill might actually pass?
If Mr. Patrick is so concerned about privacy issues for airline passengers, why isn't he concerned with the steady erosion of the 4th Amendment?
Wanted man
John Joe Gray is on the lam for allegedly assaulting a peace officer in December 1999. He was bonded out of jail a few days later and never appeared in court. He has lived on his armed compound in Henderson County, Texas with his family ever since.
Years ago he warned local law enforcement officials to bring extra body bags if they wanted to capture him. The local sheriff has said he's not risking the lives of any officers to bring in Mr. Gray.
Bradley out as chairman of forensic commission
Williamson County District Attorney John Bradley's stint as chairman of the Texas Forensic Science Commission has come to an end as the senate concluded its session without voting on whether to accept Gov. Perry's nomination of Mr. Bradley.
Gov. Perry appointed Mr. Bradley to chair the commission in 2009 prior to a scheduled hearing in which the commission was to take testimony from Craig Beyler about the flawed science used by arson investigators that led to the execution of Cameron Willingham.
During his time as chairman, however, Mr. Bradley accomplished the fair haired governor's wishes to delay the release of the committee's findings until after the 2010 gubernatorial election.
Patrick cowers in fear
Texas State Senator Dan Patrick has once again proved himself to be a big bag of hot air as he withdrew his bill that would have criminalized groping by TSA personnel in airports. Mr. Patrick ran and hid in a closet after receiving a letter from the United States Attorney for the Western District of Texas threatening that TSA might cancel flights in Texas should the legislation pass.
Every year on the Fourth of July, Mr. Patrick rides in a car at the Memorial Villages 4th of July parade; and every year my wife gives me an ugly face when I mock Mr. Patrick in front of my daughters. Certainly my lack of civility and uncouthness is far worse than Mr. Patrick's demagoguery.
One wonders, was Mr. Patrick worried that the bill might actually pass?
If Mr. Patrick is so concerned about privacy issues for airline passengers, why isn't he concerned with the steady erosion of the 4th Amendment?
Wanted man
John Joe Gray is on the lam for allegedly assaulting a peace officer in December 1999. He was bonded out of jail a few days later and never appeared in court. He has lived on his armed compound in Henderson County, Texas with his family ever since.
Years ago he warned local law enforcement officials to bring extra body bags if they wanted to capture him. The local sheriff has said he's not risking the lives of any officers to bring in Mr. Gray.
Monday, January 31, 2011
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:
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.
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.
Tuesday, January 25, 2011
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.
Subscribe to:
Posts (Atom)