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?

A look lack at the 82nd Texas Legislature

Here's an update on matters affecting lawyers and the criminal (in)justice system that were introduced into the recently completed regular session of the Texas Legislature that were mentioned in this blawg.

HB1173: This bill would give the state 36 hours to hold a probable cause hearing in counties with more than three million residents (Harris County) instead of having to hold the hearing within 24 hours. The bill passed both the House and Senate and was sent to the Governor on May 30, 2011.

SB1879/HB3807: This bill would have allowed the City of Houston to use recording devices instead of court reporters in trials in municipal court. The House passed its version but the bill never got out of the senate committee.

HB243: This bill would make it a criminal offense to text while driving in Texas. The House passed the bill but it never came up for a vote in the Senate.

HB96: This bill would have allowed the prosecution's chief investigator to set in the courtroom and listen to testimony - even if "The Rule" were invoked. It passed the House but never came up for a vote in the Senate.

HB1072: This bill would have waived State Bar dues for lawyers employed by the State of Texas. It passed the House but never came up for a vote in the Senate.

HB189: This bill would have made first-time DWI offenders eligible for deferred adjudication - but not for an order of nondisclosure. The bill would also allow a DWI "dismissed" through deferred adjudication to be used for enhancement purposes. The bill passed the House but failed to get out of committee in the Senate.

SB152: This bill would have allowed for the admissibility of evidence of prior bad acts by individuals charged with certain sexual offenses. The Senate passed the bill but it never came up for a vote in the House.

SB232: This bill would have mandated the SCRAM device for certain probationers in alcohol-related cases. It failed to get out of committee.

SB1526: This bill would have mandated reciprocal discovery in criminal cases. It, too, failed to get out of committee.

A father's concern

My client's father was concerned.

He was concerned that the case hadn't been resolved.

He was concerned whether this case would cost his son employment opportunities.

He was concerned because the court had ordered his son to install an ignition interlock device in his car.

He was concerned because the DPS wanted to suspend his son's driver's license.

He was concerned because his son hadn't been convicted of anything but he was already being punished.

We're immune to it at times. We're at the courthouse most days and we're juggling dozens of cases at a time. We know how long it takes for a case to wind its way from arraignment to trial. We know that most of our court appearances are a colossal waste of time for everyone involved.

We know that this quaint notion of innocent unless proven guilty is often turned on its head at the courthouse. We're aware that most judges view a defendant as guilty until proven otherwise.

The only problem is we're inside the fishbowl. Our clients and their families are on the outside looking in. What we see as part of the daily grind they see as a monumental inconvenience.

I couldn't offer him any words to ease his concern. His son is being punished and he hasn't been found guilty of anything.

I don't have an answer.

Due process 101

H/T Judge Susan Criss

Twitter just says no

Which online organization actually has the balls to stand up and defend its users' privacy?

It's not Google. It's not Facebook. It's not Wordpress.

It's Twitter.

In the face of government subpoenas asking for users' information, Twitter has stood up and fought. When the US government served Twitter with a subpoena asking for information about four individuals allegedly involved with WikiLeaks, Twitter sought to have the subpoena unsealed so that the users could be notified of the attempts by los federales to access information.

Facebook and Google don't notify their users when they are requested to turn over information in response to a subpoena. So you may never know if you're one of the 4,000 folks the government is seeking information on every year.

And what has Twitter received for daring to stand for principle? Certainly not a lot of praise. The government wants you to believe that Twitter isn't being a good corporate citizen because it refuses to bend to the government's demands.

Twitter should be lauded for its efforts to protect our right to privacy. Twitter shouldn't be condemned, Twitter should be commended for fighting the government's exercise of power.

H/T to Kevin O'Keefe.

Survey says...

About a week ago I received the following e-mail from a lawyer in Paris working on a master's degree in something called Legal Sociology:

Hello Mr. Kennedy,  

My name is Marcela Monroy. I am a lawyer, currently doing a Master in Legal Sociology at the University of Paris II, Pantheon-Assas. I am currently working on a research on the impact of social networks (forums, blogs, chats, message boards, etc.) and the access to legal information. For this reason I am conducting an online survey. 

I am contacting you, to ask if you would be willing to post a blog item about my research. I am sending to you the link of the survey that I mentioned previously. 

Thank you in advance for the help and advice that you can provide me.  

Best regards, Marcela Monroy

From the looks of it she is researching the impact of social networks on the way people access legal information. It only takes a couple of minutes to complete and the results might just be a bit interesting.

To participate in the survey, just click here.

Diverted from justice

While I was sitting in a courtroom at the Harris County Criminal (In)justice Center the other morning I couldn't help but listen in on the proceedings at the bench.

It seems that a woman who was charged with driving while intoxicated chose to enter the DIVERT program. As part of her "probation" she had an ignition interlock device installed in her car. It appeared that there were a few incidents in which the device detected alcohol levels greater than .02 on her breath. Someone (the DA's office, the probation department, pretrial services?) wanted to terminate her participation in DIVERT.

The judge looked at the printouts and asked the woman a few questions before telling her attorney that he would allow her to withdraw her plea, enter a new plea and leave her on probation instead of sentencing her to 30 days in jail. The attorney asked the judge what he was supposed to do.

The attorney pointed out that the pretrial diversion agreement was between the defendant and the DA's office. The judge pointed out that she had entered a plea of guilty in exchange for 30 days in jail as part of her entranced into the program. Per the contract, the 30 days was probated.

The attorney said he didn't think the DIVERT program was even legal.

The judge told the attorney that he had raised concerns about the legality of the program on prior occasions and that he made no attempt to hide his concern about defendants entering pleas of guilty as part of the program.

Keep in mind that these were just allegations that she had consumed alcohol while on probation. There was nobody present to testify that the device was working properly on the days in question. There were no maintenance or calibration records. There was no expert to testify that the interlock device was reliable. There was no one to testify as how the little box even works. How does it clean itself after a blow? What is the scientific basis of the box? How does it calculate an alcohol concentration?

It's a little box with a tube.

But the defendant was boxed in. She had already plead guilty. She was, to put it bluntly, screwed.

I have written many times about my concerns with the DIVERT program - and those concerns have to do with the practice of the defendant entering a guilty plea before the court. As I have stated before, DIVERT is not a pretrial diversion, or intervention, program; DIVERT is deferred adjudication for first-time DWI offenders. The program is not legal and it is questionable whether anyone who participates will be able to expunge the arrest from their records.