What is state duty to inform defendants of flawed forensics in old cases?

The Washington Post's Spencer Hsu tackles a subject at the federal level ("Convicted defendants left uninformed of forensic flaws found by Justice Dept.," April 16) with which Texas frequentlly struggles: What is the duty to inform defendants when faulty forensics are discovered to have been used in their case? Like most crime labs and other forensic experts, the FBI essentially contends the answer is, "none unless somebody makes us." The story opens:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.
Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

At the federal level, the decision whether to notify defendants in old cases of possible forensic errors resides with prosecutors. Perhaps predictably, among US Attorneys, "The Post found that while many prosecutors made swift and full disclosures, many others did so incompletely, years late or not at all." We see the same types of disparities in Texas state courts. In some instances, as in El Paso, the DA promptly notifies the defense bar when problems are discovered. In others - the Harris County BAT van fiasco comes to mind - prosecutors can be intensely reluctant to open such a can of worms.

The Post offers detailed descriptions demonstrating the long slow trajectory of truth when it comes to correcting inaccurate forensics, starting with the first World Trade Center bombing in 1993. According to a related Post article ("DOJ review of flawed forensic processes lacked transparency," April 17):

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of plotting the first attack on the World Trade Center.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,” Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It turned out he had written or passed along scores of memos over the years warning of a lack of impartiality and scientific standards at the famed lab that did the forensic work after the World Trade Center attack and in other cases.

With the FBI under fire for its handling of the 1993 trade center attack, the Oklahoma City bombing and the O.J. Simpson murder case, officials had to act.

After the Justice Department’s inspector general began a review of Whitehurst’s claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that “no defendant’s right to a fair trial was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found.

Those decisions more than a decade ago remain relevant today for hundreds of people still in the U.S. court system, because officials never notified many defendants of the forensic flaws in their cases and never expanded their review to catch similar mistakes.

The main flawed forensic method prompting the Post series involved microscopic hair analysis, a forensic method this blog has criticized in the past as little more than junk science. The stories also detail how those flaws have been known, and ignored, in law-enforcement circles for quite some time:

In 1974, researchers acknowledged that visual comparisons are so subjective that different analysts can reach different conclusions about the same hair. The FBI acknowledged in 1984 that such analysis cannot positively determine that a hair found at a crime scene belongs to one particular person.

In 1996, the Justice Department studied the nation’s first 28 DNA exonerations and found that 20 percent of the cases involved hair comparison. That same year, the FBI lab stopped declaring matches based on visual comparisons alone and began requiring DNA testing as well.

Yet examples of FBI experts violating scientific standards and making exaggerated or erroneous claims emerged in 1997 at the heart of the FBI lab’s worst modern scandal, when Bromwich’s investigation found systematic problems involving 13 agents. The lab’s lack of written protocols and examiners’ weak scientific qualifications allowed bias to influence some of the nation’s highest-profile criminal investigations, the inspector general said.

From 1996 through 2004, a Justice Department task force set out to review about 6,000 cases handled by the 13 discredited agents for any potential exculpatory information that should be disclosed to defendants. The task force identified more than 250 convictions in which the agents’ work was determined to be either critical to the conviction or so problematic — for example, because a prosecutor refused to cooperate or records had been lost — that it completed a fresh scientific assessment of the agent’s work. The task force was directed to notify prosecutors of the results.

So as it turned out, when problematic forensic testimony was found to have been used to secure convictions, most federal prosecutors sat on the news rather than turn over the new evidence to defense counsel in affected cases. A handful of actual innocence cases have already arisen from those identified.

Here in Texas, the Post reported, flawed evidence in one case came to light only after the defendant was executed. Wrote Hsu:

In Texas, the review of Benjamin Herbert Boyle’s case got underway only after the defendant was executed, 16 months after the task force was formed, despite pledges to prioritize death penalty cases.

Boyle was executed six days after the Bromwich investigation publicly criticized [Michael] Malone, the FBI agent who worked on his case, but the FBI had acknowledged two months earlier that it was investigating complaints about him.

The task force asked the Justice Department’s capital-case review unit to look over its work, but the fact that it failed to prevent the execution was never publicized.

There was other inculpatory evidence in Boyle's case - most prominently a fingerprint on the duct tape used to bind the victim - but the example further demonstrates, if more evidence were needed, the common use of uncertain forensic methods even (perhaps especially) in high stakes cases.

This question of how authorities should respond when flawed forensics are discovered will continue to come up, and not just at the federal level. Here in Texas when flawed arson science was uncovered in the Todd Willingham and Ernest Willis cases, the Forensic Science Commission partnered with my employers at the Innocence Project of Texas and the state fire marshal to reexamine old arson cases for possible false convictions. And when the El Paso crime lab was found to be employing an incompetent analyst, DA Jaime Esparza was praised for notifying local defense counsel. OTOH, when Texas appellate courts decided dog-sniff lineups weren't good enough evidence to support a conviction, nobody in officialdom ever tried to identify the 2,000 cases where Deputy Keith Pikett claimed to have performed the technique, much less instances where flawed testimony may have been central to securing a conviction. And the Texas Court of Criminal Appeals has generally refused to grant habeas writs based on debunked scientific testimony, even when it was central to securing a conviction. So as a practical matter Texas' response to flawed forensics, while superior in some cases to the feds', has overall been rather hit or miss.

Here are links to the stories in the Post's forensics package:

• Convicted defendants left uninformed of forensics flaws by Justice Dept.
• DOJ review of flawed forensics processes lacked transparency
• Forensic techniques are subject to human bias, lack standards, panel found
• D.C. man served 28 years. Then the evidence that sent him to prison fell apart.
• How accurate is forensic analysis?

RELATED: Last night (4/17), PBS' Frontline ran a feature on forensic science titled "The Real CSI."

Forensic commission will investigate Austin PD drylabbing allegations

Yesterday Grits offered up an account of the investigative panel on the El Paso crime lab at the Forensic Science Commission, and I chose that subject in part because Chuck Lindell at the Austin Statesman was there to cover the other big story of the day: The Commission's decision to open an investigation in response to allegations surrounding the Austin crime lab. (There appeared to be no MSM reporters, even from the El Paso Times, at the 7 a.m. investigative panel.) Reported Lindell ("State panel opens inquiry into Austin police crime lab," April 14):

The Texas Forensic Science Commission voted unanimously Friday to open an investigation into two complaints about the Austin Police Department crime lab's testing of drug evidence.

A three-member subcommittee will lead the investigation — holding meetings that will be open to the public — and report its findings to the full commission, which will conclude the case with a written determination.

The state commission, which investigates allegations of negligence or misconduct involving forensic labs, set no deadlines during Friday's meeting in Austin.

One complaint against the Austin police crime lab was filed by another facility, Integrated Forensic Laboratories in Euless, which questioned testing results or procedures used on evidence in three cases in which it followed up on work by the Austin lab. ...

The second complaint was filed by Debra Stephens, a scientist who worked for several years at the Austin crime lab until she was fired last year.

Lindell goes on to give topline accounts of the specific complaints being investigated, but the most interesting to me were allegations of "drylabbing" preliminary reports. The Austin PD crime lab told the Commission that retesting in one case out of the 23 identified by Ms. Stephens found a substance originally reported that was not there on retesting, but said it didn't affect the outcome of the case. The Commission will have to get to the bottom of that dispute. Stephens told Lindell otuside the meeting that the error "led to a charge being dropped." "I'd call that impacting the outcome of the case," she told him, alluding to discussions over the Commission's narrow definitions of negligence and misconduct.

One tidbit Chuck mentions only in passing deserves more explication. It came out in the discussion that, during the period under review, Austin crime lab workers would simply record results on scraps of paper - often sticky notes - then throw the only original documentation away after performing a test, merely entering the results into the computer system. In one instance, documentation provided by Ms. Stephens showed lab tests continued to be run six minutes after a preliminary report was issued to law enforcement. According to DPS, the practice did not meet ASCLD/LAB standards (they cited the specific regs, but I didn't jot them down), and APD said it changed protocols to eliminate the practice of issuing preliminary reports. They now require testing to be completed before reports are issued, though you'd kinda think that should have been obvious in the first place.

Another interesting allegation against APD came from a private crime lab in Tarrant County (the same one whose director is serving half-time overseeing the El Paso lab) involving whether to classify a substance as "marijuana" or as "THC" found in a substance "other than" marijuana, which receives a higher penalty. A rep from the Austin Bexar County crime lab was unhappy this allegation had been brought, declaring emphatically that the FSC wasn't the right place for resolving disputes between lab interpretations. But with so many other allegations bundled up in the same batch, his pleas not to examine the lab's practices on that score fell on deaf ears. It's possible, commissioners said, it could be a legal instead of a scientific dispute, but they couldn't make that judgment without digging into it further.

Obviously, Grits will continue to track this subject as the FSC inquiry moves along.

Ghost of John Bradley's chairmanship haunts El Paso crime lab inquiry

The ghost of John Bradley's Forensic Science Commission chairmanship rose from the grave to haunt another FSC investigation this morning, as the Commission relied on a narrow definition of "professional negligence," suggested and installed in agency policy by Bradley, to say the El Paso crime lab wasn't guilty of it.

The state law creating the forensic commission did not define negligence and did not give the FSC rulemaking power. But regular readers may recall Mr. Bradley pushed the commission at his first meeting to create supposedly nonbinding policies governing their activities, which he proposed whole hog without input from other commissioners. Under the definition of "professional negligence" which Mr. Bradley proposed and the commission regrettably adopted unedited (despite concerns raised by their Attorney General adviser that it was too narrow), the FSC may not issue a finding of negligence unless "the negligent act or omission substantially affected the integrity of the results of a forensic analysis" (emphasis added). According to new Chairman Vincent Di Maio, and the rest of the commission eventually agreed, that means that unless the results of a lab analysis were incorrect, they could not find negligence. In the end, the Commission interpreted the definition to say they could not hold the El Paso crime lab accountable for "negligence" because none of the samples processed by an incompetent analyst came up incorrect when retested - sort of the forensic version of "harmless error" in appellate court settings.

It's certainly comforting that no errors that we know of resulted in false convictions, but it's still negligent to employ incompetent staff, still negligent to disempower the Quality Assurance manager from improving practices. According to the accrediting body ASCLD/LAB (see their 2011 report [pdf]), the agency's division responsible for controlled substances testing employed incompetent analysts with inadequate supervision, overstated the thoroughness of testing, failed to follow their own laboratory policies, failed to base laboratory procedures on known standards, failed to document testing/calibration of instruments, allowed improper access to the lab by police officers and other personnel, and failed to require a written test to determine labworker competency. At one point, two different people independently believed they were the Quality Assurance manager (it's still confusing who was right). As a FSC commissioner said today, the lab was an "accident waiting to happen."

Now, to be fair, by all accounts the El Paso crime lab, particularly the division in question, has undergone massive change for the better. Two of the three analysts in the division are gone - including one deemed incompetent through proficiency testing - and the lab hired a private consultant from Tarrant County to serve as acting lab director on a half-time basis. At this point, said a DPS auditor, the lab is doing quality work in compliance with accreditation standards. El Paso PD and the District Attorney, who was present, were praised for their reaction to the situation, including their cooperation with regulators and the DA's notification of defense counsel in affected cases. EPPD told the commission they were trying to find a permanent lab director but may also yet decide to outsource controlled substance testing entirely. DA Jaime Esparza told the Commission he appreciated their hard work and believed their thoroughness would increase "community confidence."

So whether or not the FSC found negligence, the process clearly improved things for the better. ASCLD/LAB had taken the lab off probation in December, but a DPS audit commissioned by the FSC found more problems to address, with DPS suggesting "significant improvements" in February which have all since been adopted, the commission was told. The lab has undergone a "massive transition" since DPS visited, the auditor said, which made one wonder if their probation perhaps ended prematurely if there was that much more to be done.

What is negligence?
Regardless, the FSC is clearly using a flawed definition of negligence and misconduct. Commissioners should change it. As Dr. Sarah Kerrigan pointed out, under the interpretation propounded today one couldn't find misconduct in a "drylabbing" case (submitting reports without doing the testing). For example, a new, self-reported FSC case out of Tarrant County involves a crime lab employee who failed to test rape kits when the police report said no penetration occurred, claiming to have performed tests in at least five cases when he did not. When the kits were tested, indeed, they contained no semen, so the "results" weren't any different. But is that not still misconduct by the lab worker?

Di Maio insisted such a case of overt fraud was clearly "misconduct," but the FSC policy on misconduct policy contains the same language as the "negligence" definition about "results," so if they can't find El Paso negligent without an incorrect "result," it's hard to understand how a drylabbing case would be any different except in wrongful conviction cases where someone was falsely accused.

Even Di Maio, however conceded the El Paso lab as recently as last year faced serious problems before the recent shakeup, stemming he said mostly from administrative failures, failure to follow Quality Assurance guidance (again, not negligence?), and a lack of "scientific leadership." "Scientific problems, yeah,"said Di Maio, "but those were because of the management problems."

Praising ASCLD/LAB
I was especially interested and rather curious to hear Commissioner Sarah Kerrigan go out of her way to exonerate accrediting agency ASCLD/LAB in the El Paso incident, declaring that in this case the accreditation process was "working and functional." This struck me as an extraordinarily odd statement, and perhaps a bit of a forced one. Yes, it was ASCLD/LAB's report last year that brought these allegations to a head, and their investigation was much more thorough than, say, the one described in this Grits post, in part because the El Paso lab was transitioning off of its "legacy" accreditation to new international "ISO" standards just this month, requiring a much more complete vetting of the lab. But by all accounts, most of the same problems were raised by the accrediting body in 2006, and for five years ASCLD/LAB accreditation did nothing to fix them. Better late than never, I suppose, but for those five years that accreditation wasn't a particularly meaningful moniker. At best it's a mixed result for ASCLD/LAB.

By contrast, the Forensic Science Commission's vetting process, particularly when coupled with DPS serving as their audit arm, both investigated the case thoroughly - even if their judgment in the end was based on a skewed standard - and the process appeared to get the attention of city and county leaders in a way that the accrediting body could not in the five years after the problems were first identified in 2006. I expect this report, which will be vetted in full at the next FSC meeting, in that respect may end up a bit like the Todd Willingham arson report, making no misconduct or negligence finding but then describing at some length activities that seem, upon description, at a minimum negligent and which required extensive remediation. This process is opening up a unique and fascinating window onto crime lab problems and solutions, launching discussions that otherwise wouldn't or couldn't occur in a public setting.

Indeed, despite my complaint about John-Bradley-spawned problems with the FSC's definitions of negligence and misconduct, in general Texas' Forensic Science Commission appears to be finally hitting stride. Most commissioners seem to want to do a good a job, which is half the battle, and the staff have shown their competence at undertaking rather large-scale evaluations with impressive diligence and a fair but thorough approach. At times during the Willingham saga, many of us who work toward forensic reform have wondered if the agency would ever find its purpose and function, but they appear to have largely done so, even if the specter of John Bradley's chairmanship still looms over their work. The truth is, even if the FSC finds negligence or misconduct, there are no "teeth" to their authority. They cannot punish crime labs. They can only expose negligence, misconduct, and junk science to the light of day. And as long as they do that effectively, maybe for now it doesn't matter so much what they call it.

MORE: (4/14) Rereading this post, Grits should elaborate on the comment that the Attorney General legal adviser to the FSC worried the definition of "negligence" was too narrow at the time it was created. Grits was liveblogging that day's meeting back in January 2010 and wrote at the time:

(12:05): The AG rep described a "small gap" in the negligence and misconduct definitions (I don't have a copy so I can't be specific) that includes people who are aware of professional standards and fail to follow them but where the incident may not rise to the definition of "negligence" in the rules - a category the AG's rep said would likely make up a large number of cases submitted to the commission. The scientists on the committee didn't seem to understand the significance of what was being said to them on this score (and the defense attorney's rep isn't there), so they moved forward without changing the language or closing the "gap." Ouch!

Those definitions have remained the same in FSC policies as they were when Mr. Bradley forwarded them to commissioners the day before that meeting in Harlingen a little more than two years ago. Complaints arose at that 2010 meeting that the most controversial sections of Mr. Bradley's rules, including these definitions, were also the portions with no references to sources and did not rely on definitions and standards either from other jurisdictions or the feds. In the end, though, they adopted them anyway, a decision which rose up yesterday morning like some old, tired, poltergeist emanating from Bradley's misbegotten chairmanship, not as ominous or imminently scary as before, perhaps, indeed unseen by all but a few, but present nonetheless, hovering over the proceedings, smiling.

RELATED: Shortcomings in crime lab accrediting body supply role for forensic commission.

Probing probes by ASCLD/LAB: Conference calls substitute for investigation

Grits has discussed recently whether "accreditation" of crime labs provides meaningful oversight, citing an appeal last year to the New York Forensic Science Commission urging them to stop using ASCLD/LAB, which is also the main body that accredits crime labs in Texas. Attorney Paul Kennedy at The Defense Rests provides an example of ASCLD/LAB's oversight in the case of the Southwest Institute of Forensic Sciences in Dallas after allegations that "the lab has been using chemicals after the expiration dates on the bottles, that the lab is using outdated protocols and that analysts have been conducting tests without wearing gloves (among others)."

Their investigation method: They initiated two conference calls with lab management and issued a report parroting their responses as findings without even contacting the complainant. Writes Kennedy:

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

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

Not much of an inquiry if they never spoke to the complainant nor verified verbal responses from the lab. Then the Forensic Science Commission (belatedly) relied on the ASCLD/LAB findings - which really represented barely any investigation at all - to dismiss the complaint. (See the report [pdf].) Not encouraging, huh?

To be fair, the delay under the forensic commission occurred under John Bradley's chairmanship while the group was distracted, divided, and embroiled in the Todd Willingham arson controversy. And despite the poor quality of the Dallas investigation, Grits can't say for certain a more thorough one would have found anything. But this episode demonstrates why mere accreditation - or the say so of ASCLD/LAB - isn't necessarily sufficient to conclude a crime-lab complaint was unfounded. And if that's the case, what good are they?

MORE: The Forensic Science Commission's investigative panel on the El Paso crime lab meets tomorrow morning at 7 a.m. in Austin, for the early birds among you. See the agenda (pdf), as well as the one (pdf) for their regular meeting at 9:30. ASCLD/LAB took El Paso off probation, readers may recall, before all its problems had been addressed.

See related, recent Grits posts:

• Shortcomings at crime lab accrediting body supply role for forensic commission
• Is ASCLD/LAB crime-lab accreditation inadequate?
• The fundamental role of states in crime lab regulation

The fundamental role of states in crime lab regulation

Apropos of recent Grits discussions of crime lab accreditation and oversight, reader Ryan Goldstein alerts me to his student note in the Texas Law Review titled "Improving Forensic Science Through State Oversight" (pdf).

Goldstein says forensic science faces two core problems: "questionable validity and questionable reliability." The "questionable validity" speaks to fundamental concerns whether the scientific basis underlying many forensic practices is truly sound: E.g., whether tool marks, ballistic matches or tire track comparisons should be considered dispositive identification in criminal courtrooms? Goldstein's suggestions for a state-centered regulatory structure do not speak to "validity" questions, and IMO it probably is a federal role to fund the sort of research needed to move that ball forward in the way that science, for example, has improved eyewitness ID techniques and arson investigations over the last two decades.

On questions of "reliability," though, where the underlying science is valid, Goldstein rightly calls state regulation of crime labs "an ignored resource." States inherently have a role regulating forensic science because forensic evidence is most often used in state courts. So in each state, either the legislature does the regulating, it hands off regulation authority to some executive-branch entity, or else the courts must do it themselves on an ad hoc basis. But somebody at the state level must do it, and Goldstein points out that states are "well positioned to implement reforms ... that target reliability." He argues that:

The NAS Report charged the federal government with implementing its recommendations. But, as mentioned above, this ignores the direct control that states have over their laboratories and criminal justice systems. Furthermore, federal reform requires uniformity and ignores the benefits of state experimentation. It ignores geographic differences in values and the differences in the ways that states administer their systems of criminal justice and criminal investigation. Finally, with the current political climate in Washington, federal reform may be difficult to pass. And even if it were to pass, it may reflect a compromise between differing interests rather than the most robust oversight possible.

Goldstein thinks mandatory accreditation is insufficient (as do I) in part because "accreditation only addresses issues of compliance with existing scientific practices. It does not address the validity of the underlying science, identify cases of technician negligence or fraud, remedy past injustices, or necessarily advocate for the best possible laboratory practices." For those issues, he said, states have turned either to independent investigations in high-profile cases, a tactic made more attractive by the availability of federal funds for the purpose in recent years, or else some type of oversight board or independent investigative body like Texas' Forensic Science Commission or the North Carolina's Innocence Commission. Each has pros and cons, but these are all examples of state-level experimentation through which we're learning important overall lessons about what crime lab regulation should look like, argues Goldstein.

Prof. Paul Gianneli has a response (pdf) to this piece in the same issue of the Texas Law Review pointing out the need for federal support on improving forensic "validity" while agreeing that "The states are indeed responsible for their crimes laboratories, and it is a responsibility that they have often neglected." Meanwhile. CrimProf blog points to another response (pdf) by Jessica Gabel and Ashley Champion arguing that centralized federal oversight would be more "practical." Gianelli, though, notes the federal and state approaches are not mutually exclusive: "The proposed federal legislation ... would not preempt state innovation; it would fund accreditation, not require it. This funding, however, may never materialize, and the states (as Mr. Goldstein notes) are independently obligated to regulate their crime labs."

On one, key point, I wholeheartedly, vociferously disagree with Mr. Goldstein when he writes that "the NAS Report‘s call for the removal of laboratories from law enforcement is infeasible and unlikely to receive political support." That's a political assessment, not a data-driven one, and in my experience it's deeply flawed. The political class generally gets why it's a conflict for police to control crime labs, they just don't have a great set of options available to them or, at the moment, extra resources. But politicians in Houston, e.g., which is the central example in Goldstein's essay, mostly pay lip service to the idea of removing the crime lab out from under law enforcement, though the devil is of course in the details. Still, I've neither seen nor heard of opposition in the political sphere so intense that it makes me think the goal of separating crime lab management from law enforcement is categorically impossible. Certainly, can't never could.

That said, in all, this student note was a worthy contribution, locating the cutting edge of a debate that's presently very much a moving target. This post portrayed just a fraction of what's in these three pieces, so those with more than a passing interest in such matters should read them for yourselves.

Shortcomings at crime lab accrediting body supply role for forensic commission

As Texas' Forensic Science Commission evolves in how it does its work in response to the actual, real-world complaints it receives, it's increasingly clear one of its primary roles will be to plug the gaps created by shortcomings in crime labs' accreditation process. Last week, Grits posted a detailed critique (pdf) of ASCLD/LAB, the crime-lab accrediting agency, submitted last year to the Forensic Science Commission in New York by a prominent attorney who criticized the group for lax oversight. He recommended NY state find a new accrediting body, as the United States Army Criminal Investigation Lab recently did following problems at an accredited lab.

At the Texas Forensic Science Commission, the Willis and Willingham cases involved arson, which is not an ASCLD/LAB accredited discipline. But more recent cases demonstrate why the TX FSC and ASCLD/LAB may end up butting heads in some instances, perhaps sooner than later, over the same issues identified in New York.

The best example may lie in the FSC's investigation of the controlled substances division at the El Paso crime lab. At their January meeting, serious unresolved concerns were raised about the lab and the commission initiated a detailed investigation with the help of the Department of Public Safety. I've uploaded a copy of the letter sent to the EPPD crime lab detailing the extensive checks they demanded be run to ensure the problems had been solved. These included hiring a qualified lab director, retesting all lab work performed since November 2011, and retesting ALL the work ever performed by an analyst found to be incompetent to perform the job, "giving priority to the 60 cases on the DPS list with the greatest possible impact."

The El Paso crime lab was accredited under "legacy" provisions by ASCLD/LAB, meaning they didn't have to meet every last requirement for their initial accreditation. However in April their "legacy" status runs out and the El Paso lab must meet much more rigorous ISO standards or risk losing their accreditation altogether. Ironically, in that light, it came out at the FSC's January meeting that ASCLD/LAB had lifted the probationary status of El Paso's controlled substances division, despite all the looming questions remaining about their competence, lack of leadership, and apparent ill-preparedness to meet the new standards required of them next month. As Grits reported in January:

while most of the media attention has focused on a single lab worker who couldn't pass basic competency tests, Commissioner Sarah Kerrigan, to the nodding affirmation of her peers, strongly urged that that lab worker not be used as a "scapegoat" to avoid bigger changes. When the El Paso lab began its certification process in 2006, the accrediting body found a list of shortcomings they asked them to fix, and which the lab claimed to have resolved. In 2011, though, when the incompetent lab worker came to light, a new assessment identified virtually all the same problems at the lab, still unresolved, that were cited in 2006.

A representative of ASCLD/LAB told the commission that lifting probation didn't mean all the lab's shortcomings have been rectified, which left everyone in the room wondering exactly what it did mean. Looking at the FSC letter detailing the oversight which still hadn't been performed when the lab's probation was lifted, one wonders what regulatory benefit, precisely, that ASCLD/LAB is providing and whether it really has any teeth.

Texas is one of only a few states that requires accreditation of its crime labs, and certainly having some standards to follow is better than flying blind. But standards unenforced are mere suggestions, and it's unclear what besides suggesting the accrediting body does when the labs it regulates don't follow its rules. If the FSC becomes the primary entity regularly performing meaningful crime-lab oversight, it will create a lasting, important role for the commission, particularly over the next decade or so as Texas and the rest of country struggle to correct deficiencies in what has historically passed for forensic science in the courtroom.

The Texas Forensic Science Commission - which at times during the Willlingham/Willis saga seemed to struggle to define its mission - appears to be hitting its stride now that the Culture War circus has left town, they have a chair who actually wants the agency to succeed, and they've found a role to play that the crime labs' accrediting body seems unable or unwilling to embrace.

Is ASCLD/LAB crime-lab accreditation inadequate?

A reader forwarded me this remarkable 31-page memo (pdf) submitted last year to the New York Forensic Science Commission severely criticizing ASCLD/LAB, which is the primary accreditation body for American crime labs, including in Texas. The memo's' author was Marvin E. Schechter, who several months later was named chair of the criminal justice section of the New York State Bar. I've always thought ASCLD/LAB's approach seemed a bit squishy and lab-friendly, but Scheichter's memo questions whether lameness too often extends to complicity, and even whether it's appropriate to rely on the private accreditation body at all:

The repeated instances of nationwide lab failures at facilities under ASCLD/LAB accreditation combined with the severity, scope and magnitude of the North Carolina SBI Laboratory scandal, the pending legislative reforms in North Carolina and the San Francisco DNA mix-up/cover-up warrant that the CFS examine precisely what role ASCLD/LAB plays in forensic review, its methodology, the design of its model and the very integrity of the organization itself, including but not limited to potential, if not actual conflicts of interest. Further there must be a serious discussion of whether the CFS can continue to rely on ASCLD/LAB as an accrediting agency.

I certainly hadn't realized until reading this piece that ASCLD/LAB is no longer  the accreditation body for the United States Army Criminal Investigation Laboratory (USACIL), which dropped ASCLD/LAB after it was reaccredited despite one of its examiners having "engaged in repeated misconduct known to supervisors." ASCLD/LAB only required an internal audit in response and did not publicly acknowledge the problem until it was outed in a newspaper series years later.

Equally damning, as we debate prosecutorial misconduct and Brady issues here in Texas, is the accreditation body's lax attitude toward notification of defendants or sometimes even prosecutors when crime lab errors are discovered:

Transparency does not include notification to District Attorneys (San Francisco, Nassau County) when laboratories engage in misconduct. It does not mean notification to defense attorneys in cases where the representation of their clients is affected. It would appear to be ASCLD/LAB’s position that notifying anyone other than an affected laboratory is not how transparency, or for that matter accreditation, should be viewed.

Prosecutors can't hand over Brady material they never see, just as defendants can't challenge flawed forensic evidence if its imperfections are concealed.

I've heard bits and pieces of these critiques in isolation over the years, but it's stunning to see them all together marshaled into a coherent argument for the first time (for me, anyway). Given the weight afforded to private accreditation in Texas (and other states which have legislated crime lab reforms in the 21st century), anyone with more than a passing interest in crime labs should read the whole thing (pdf). The implications if ASCLD/LAB accreditation really is fundamentally inadequate are significant indeed.

'Science should be crime labs' client, not prosecutors'

Rick Casey says science should be crime labs' client, not prosecutors:

Don't politicize 'independent' Houston crime lab

In an incredibly frustrating development, Houston Mayor Annise Parker has decided to ignore Harris County's offer to partner on a joint, regional crime lab, instead suggesting the city create its own "independent" lab governed by a board of political appointees. Reported Chris Moran at the Houston Chronicle, "Under the mayor's plan, the crime lab would take the form of a local government corporation, a combination of nonprofit and government agency similar to the organizations that run the city's convention business, Parks Board and zoo."

What a waste from duplicated resources if they go this route! A regional lab operated jointly with the county would make far more sense, but the big barrier is the city and county politicians cannot work together on a personal level. Councilman C.O. Bradford, a former Houston police chief, expressed that sentiment: "It would be a sad day if we were to go and renovate some existing facility or acquire a new facility and the county were to continue building a new facility," he told the Chron. "To the extent that we can save public tax dollars and not duplicate equipment and not duplicate a facility, I think we will have scored a perfect score."

But that ship appears to have sailed and Mayor Parker now says a concrete proposal for a separate, independent lab may come before the council as soon as next month. She even suggested that one of the Innocence Project groups have a representative on the crime lab board (in the interest of full disclosure, your correspondent works for the Innocence Project of Texas), but this immediately turned the discussion to suggestions that would dramatically politicize the new entity.

District K Councilman Larry Green called for a place on the board for community groups such as the NAACP or the League of United Latin American Citizens.

District E Councilman Mike Sullivan said suggestions to have defense bar or civil rights representatives on the board "all sound like what I'll term, and I mean this with all due respect, kind of politically correct perspectives and points of view. I think that we need to be sure to have some representation by law enforcement, pro-victims' rights groups, Parents of Murdered Children, groups like that."

This are TERRIBLE suggestions, all the way around. If you're going to create an independent board, scientists, not political appointees, should run the lab, based on the interests of science and not the NAACP, victim's rights groups, etc.. For God's sake don't turn the friggin' crime lab into just another opportunity to feud over the culture wars! I could see designating one slot for a prosecutor and one for the defense bar - so that those with professional interest in the crime lab's functioning would have an avenue to express concerns. But most of the board should be chosen for their scientific chops and independence from the system. It would be a catastrophe if the board packed with a cadre of culture warriors.

To her credit, Mayor Parker said, "I clearly prefer to have our forensics sciences not under the influence of police, prosecution or politics," but designating spots on the board for special interest groups would run contrary to that goal.

Corpus crime lab expansion aims to reduce backlogs

The Caller Times reports today that DPS will open a new crime lab facility in Corpus Christi in April:

The Department of Public Safety will have a new crime lab next to the department's offices and existing lab at 1922 S. Padre Island Drive.

The new $10 million crime lab will be about 18,400 square feet, replacing the current 4,600-square-foot facility. In addition to testing drugs, blood alcohol and DNA, the lab will have equipment to analyze firearms and fingerprints.

Authorities said the new lab is much needed and are hoping it will bring quicker forensic results. The lab analyzes DNA evidence for 22 counties and conducts drug and alcohol screenings for 18 counties.

Valencia said police will investigate a crime, take statements and obtain physical evidence that connects someone to the crime. But they are forced to wait on results.

Cmdr. Todd Green said the police department cannot file cases to the district attorney's office until they get the lab reports from the Department of Public Safety facility.

"It causes a backlog," he said, "but its just something you have to work with."/

The testing of blood alcohol and drugs typically takes about 30 days, but DNA tests can take anywhere from eight months to a year, said Capt. William Edge, with the Nueces County Sheriff's Office.

RELATED: Upward budget pressure at crime labs.

Upward budget pressure at crime labs

A pair of stories from out of state underscore two sources of upward budget pressure at crime labs that Grits suspects apply equally here in the Lone Star State. Crime labs are expensive, labor-intensive operations, and Texas and other states have traditionally underinvested in them, leading to significant backlogs. Meanwhile, a combination of court rulings and technological innovation will ratchet up demand considerably for these services in the near term.

First, re: court rulings. In Melendez-Diaz and subsequent cases, Justice Anontin Scalia has led a US Supreme Court majority in reinvigorating the Confrontation Clause, requiring crime lab experts to testify in person (in order to be cross-examined) instead of simply sending written reports which cannot be interrogated. The inevitable result is crime lab scientists going to court more often, and in Arkansas, 42% of crime lab scientists' courtroom trips last year did not result in giving testimony, reported AP (Jan. 22):

The Arkansas Democrat-Gazette reported Sunday (http://bit.ly/wP2ZHQ ) that lab analysts such as DNA specialists, drug chemists and medical examiners traveled to county courthouses around the state but ended up not testifying 238 out of 573 times last year. That means 42 percent of the lab experts' court trips didn't yield any testimony in 2011.

I've never seen similar data regarding Texas crime labs, but I'll bet the Arkansas situation is not unique. After Melendez-Diaz (2009), it's almost inevitable crime lab scientists would go to court more often without testifying. Certainly the SCOTUS justices were aware of that fact during their discussion at oral argument. There's a pricetag associated with that judgment, however, and this story out of Arkansas is the first time I've seen somebody put a dollar figure to it.

Grits was also interested to see a story out of Connecticut, where the overwhelmed state crime lab established new guidelines discouraging agencies from submitting evidence:

Police agencies across Connecticut are now being asked for the first time to limit their submissions to the state lab under new guidelines that took effect Jan. 1. The state also plans to hire 25 to 35 new lab workers to reduce the backlog to a manageable level, but it may take two to three years before the new employees are trained and ready to work, said Michael Lawlor, criminal justice aide to Gov. Dannel P. Malloy.

The number of DNA cases that have not been started at the forensics lab in Meriden skyrocketed from less than 250 in mid-2006 to nearly 3,900 last year, according to the state Department of Emergency Services and Public Protection, which oversees the lab. During the same time period, the number of lab workers has decreased about 10 percent to 90. The wait for DNA testing in many cases is more than three years.

If no extra staff were added, officials say the lab's DNA unit by April 2013 would only be able to perform testing in felony cases that are reaching the statute of limitations for prosecution. The lab wouldn't be able to test samples in hundreds of other criminal cases.

The lab is also dealing with backlogs in other types of evidence testing, including nearly 1,700 firearms cases and 1,400 latent fingerprinting cases.

The state lab's backlog follows a national trend. DNA casework backlogs at labs across the country increased from about 38,000 in 2005 to nearly 112,000 in 2009, according to the latest available U.S. Justice Department statistics. In addition to an increase of samples from crime scenes, most states have passed laws requiring DNA testing of criminals, adding to many labs' backlogs.

The advent of "touch DNA" and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them.  Add to that forensic scientists spending more time in the courtroom away from the lab, and crime labs are being asked to do much more with fewer scientists available to perform the tasks.

This problem isn't going away: State budget writers will be grousing about crime labs as money pits for many years before lab capacity finally catches up to demand.

Feds nix grants subsidizing SHSU crime lab

Texas' newest crime lab, run by Sam Houston State University in Montgomery County, opened in 2010 with the promise of three years of federal startup funding. But after budget cuts associated with raising the debt ceiling, that funding dried up and the lab has had to nearly double some of its fees. Reported the Conroe Courier (Jan. 6):

The Sam Houston State University Regional Crime Lab, which is operated by the university’s College of Criminal Justice and located in The Woodlands, started taking evidence from five counties, including Montgomery, in November 2010. A $1.5 million federal grant got the lab up and running.

But those agencies using the lab had agreed to three years of federal funding, after which the lab would complete its transition to becoming self-sustaining through fees, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

Diepraam said District Attorney Brett Ligon and SHSU officials have asked U.S. Rep. Kevin Brady, R-The Woodlands, to help find additional federal funds to supplement the fees paid by agencies.

“We are hopeful some funding will be found,” Diepraam said.

Montgomery County supplied 86 percent of the lab’s business, and the lab was charging a $200 flat fee for all drug and alcohol tests, Diepraam said.

Now, with the cut in funding, the lab will charge agencies $386 for alcohol tests and $290 for drug toxicology tests used for driving while intoxicated cases.

From November 2010 to October 2011, the lab ran 1,034 drug toxicology tests and 900 of those were from Montgomery County, Diepraam said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

The Regional Crime Lab will continue to run the drug toxicology and blood-alcohol tests, but all controlled substance evidence tests now will be sent to the Texas Department of Public Safety lab in Austin.

The average length of time for the Regional Crime Lab to turn around controlled substance tests is about two weeks, while the DPS lab can take up to nine months because of the volume of cases it gets from across the state, Diepraam said.

So the the county can pay $290-$386 for testing at the lab and get results back in 2 weeks, or send the sample to DPS and have it done for free, but not see results for up to nine months.

Unaddressed in the story, though, are the costs of delay: If the defendant is unable to make bail, say, in a controlled substance case, that also tacks on thousands of dollars in additional jail costs while wating for tests to come back. When that happens, the overall cost-benefit analysis still favors using the local lab, even at the higher price. Problem is, different revenue streams pay for lab testing and the jail, with different elected officials managing each sliver of the process. So budget myopia may cause prosecutors to send out for testing, even if in the long run it costs Montgomery County more money.

Attorney Paul Kennedy at The Defense Rests adds an additional concern about a possible fix suggested by the local DA:

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.

For the reasons mentioned above, I understand why the DA would want to subsidize the lab. But I agree with Kennedy it's problematic to rely on asset forfeiture funds for any government entity's base budget. Back when Texas used grant money to prop up dozens of regional narcotics task forces around the state, many of those local entities used asset forfeiture funds to pay for local matching under their grants, leading to skewed enforcement priorities.

Grits' view: By the time you add in additional jail costs from delays, the county in most cases is still better off paying to process cases more quickly. Balking at a $300-$400 fee seems foolhardy when the result is $40-$50 per day extra jail costs for up to nine months. (The phrase "penny wise, pound foolish" comes to mind.) The criminal justice system is just that, a system, with a lot of moving parts, so one can never look at cost figures like this in isolation. It's common for "savings" in one part of the system to result in even greater costs elsewhere. So federal subsidies are nice, but if Texans want a massive criminal justice system that, at any point in time, supervises more than 3/4 million adults in prison, jail, on probation and on parole (roughly the population of Austin), then paying for ancillary services like crime labs is an unavoidable expense.

Kennedy suggested three takeaway lessons from the episode: "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." That pretty much sums it up.

Forensic commission reviewing Austin, El Paso crime labs

The Forensic Science Commission directed their complaint screening committee today to consider a new case out of the Austin crime lab, discussed here on Grits, in which a fired analyst claimed that reports were issued without performing the underlying testing. They will decide at a future meeting whether to form an investigative panel based on the Complaint Screening Committee's recommendation. The Commission also questioned why Austin or Travis County officials hadn't forwarded the allegations about "drylabbing," in the industry terminology, at the time they first heard of the complaint. (The City had requested the Department of Public Safety look into the allegations, so they were clearly aware before now and could have notified the FSC.)

In other developments at the FSC, most of their day was spent discussing management shortcomings at the El Paso PD crime lab, were a lab worker who analyzed controlled substances turned out to be unqualified and incompetent. About 7-8 folks were there from El Paso including the District Attorney, an assistant city manager and various crime lab personnel.

Bottom line, while most of the media attention has focused on a single lab worker who couldn't pass basic competency tests, Commissioner Sarah Kerrigan, to the nodding affirmation of her peers, strongly urged that that lab worker not be used as a "scapegoat" to avoid bigger changes. When the El Paso lab began its certification process in 2006, the accrediting body found a list of shortcomings they asked them to fix, and which the lab claimed to have resolved. In 2011, though, when the incompetent lab worker came to light, a new assessment identified virtually all the same problems at the lab, still unresolved, that were cited in 2006.

The biggest problems involved the culture of the lab, which until recently was run by a police sergeant with no scientific background who had ultimate decision making authority, including the authority to resolve conflicts among scientists. The Quality Assurance manager, until recently, was disempowered and couldn't stop work when something went wrong. Indeed, during one period in 2010, two different people both thought they were the official quality manager; one of them was mistaken, but clearly there was a lot of confusion.

At times, very junior staff newly qualified in their field were put in the position of doing technical reviews of others' work and performing other high-level functions that were likely over their head. Kerrigan likened it to someone just getting their drivers license and then being hustled off to race in a Grand Prix.

The lab's internal culture discouraged questioning other examiners: "trust the examiner" was the office philosophy, said Kerrigan, but unfortunately not all of the examiners were trustworthy. Kerrigan mentioned one staffer who at different times came back with positive and negative results from the same sample. At least one false positive has been identified - a case where the test came back negative 44 times and positive once, so the lab reported the result as positive without mentioning the 44 negatives.

Kerrigan said their review of more than 1,400 pages of records and interviews with numerous officials during a site visit had revealed a fundamental lack of scientific leadership at the lab. The lab in particular still cannot find a qualified manager. A recent job search turned up empty, and they're reposting the position on January 23. Another commissioner expressed that it sounded like the lab was staffed by technicians instead of scientists able to engage in independent thinking. Kerrigan noted that lab staff attended training that taught correct practices, but nobody ever connected the dots when they came back to El Paso and things operated in a more rudimentary, less professional way. Another odd red flag: Caseloads at the EPPD crime lab are exceedingly low and it's not clear everyone employed in the controlled substance testing division is really needed. In 2010 they processed 863 cases; in 2011 it was 504. By contrast, a crime lab chief sitting next to me at the meeting said his analysts processed 150-200 samples per month, apiece!

The El Paso crime lab was put on probation last year by the accrediting body, which extended probation in September but finally took them off two days before Christmas. A representative of the accrediting body, though, told commissioners that ending "probation" didn't mean all is well or that El Paso is off the hook. They only have until April 6, he said, to find a qualified lab director and fix the other problems identified by the accrediting agency.

The Department of Public Safety agreed to perform a fairly extensive audit of the EPPD crime lab's controlled substances division within the next 30 days, so there will be more to come on this story.

Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.

Turf wars may thwart justice solutions in Harris County

Turf wars may scuttle the idea of an independent crime lab in Houston separate and apart from law enforcement, to judge by the response to the mayor's inaugural address ("Parker wants HPD to give up control of crime lab," Houston Chronicle, Jan. 5):

Two of Mayor Annise Parker's goals for her second term, as outlined in her inaugural address this week, may hinge on the cooperation of Harris County.

Parker said she intends to take the city's long-troubled crime lab from the Houston Police Department and make it independent; she also wants to phase out the city jail and house offenders in the county jail instead.

The HPD crime lab has been a headache for city leaders since 2002, when an audit noted unqualified  personnel, lax protocols and shoddy facilities. Last month, HPD said its backlog of untested rape kits could be as high as 7,000. To date, six Houston men have left prison after retesting of evidence indicated they were convicted of crimes they did not commit.

Parker wants to make the lab independent of HPD and the city, overseen instead by a local government board similar to the Port of Houston Authority, whose members are jointly appointed by the city, county and other local municipalities. Mayoral spokeswoman Janice Evans said a proposal may come before City Council this spring.

County leaders say their Institute of Forensic Sciences already is independent, free from law enforcement influence. They point to its respected work and lack of a case backlog. Parker, however, said the city lab's future is not with Harris County.

"The area that I'm in control of is to have an independent crime lab," the mayor said Wednesday. "If that can become a regional crime lab where the county is a full participant, I'd love to see that happen. Sending all our work over to Harris County simply substitutes one government master for another government master."

County officials, by contrast, vowed to move ahead independently with rhetoric that smacks less of partisanship than old-school turf-war bickering, spiced with a smattering of juvenalia. (E.g., "Precinct 3 Commissioner Steve Radack said that if Parker thinks she has a better model than the county, she should pursue it on her own.") That said, I'm not sure how any entity with a taxpayer-funded budget can avoid a "government master," so short of creating some new taxing district or some such, your correspondent has difficulty imagining a solution which might please the mayor. Both sides seem entrenched, intractable, perhaps allowing soured personal relationships and partisan spite to interfere with their good sense and the public weal. It wouldn't be the first time, but it's not a great sign.

Meanwhile, Parker suggested phasing out city jails by creating a "sobering center," which sounds not unlike a suggestion from Harris DA Pat Lykos for "detox centers," as a front-end jail alternative:

Parker said the city jails could be phased out even without the type of joint processing center that bond voters rejected in 2007.

The city is negotiating to buy a property that would be used a "sobering center" to divert some inmates from the jail.

"If someone just needs a place to sleep it off, sober up, maybe get connected to some social-service help, we think we can accommodate that," Parker said.

Services, Evans said, could include help for the mentally ill, whom Parker said also must be diverted from jail.

Such steps could reduce the city jail population enough to allow the remaining inmates to be handed to the county, the mayor said.

The second idea makes sense to try, at least. On the crime lab, though, both sides sound needlessly obstructionist, driven more by the motive of defending political turf than improving science at the lab and in the courtroom.

Making crime labs independent is as important to unbiased sciences as "blinding" administrators of suspect lineups and photo arrays in witness identifications. You want crime lab administrators, much less line staff, outside the command and control of law enforcement because you don't want them to have a stake in the outcome. They're scientists; they're not (or shouldn't be) on one or another "side." Grits predicted a couple of years ago independent crime labs would become a political flash point, and it may remain so for the immediate future in Houston until the electorate changes some of the players and compiles a group capable of working together. Until then, without some pay-to-play beneficiary driving the train, an independent crime lab for now remains a good idea without a political constituency, and one that flies in the face of historic jurisdictional turf lines, to boot.

Never is the importance of money and self-interest in politics so apparent as when its absence hinders what everyone agrees are necessary and proper improvements.

Audit discovers thousands more unexamined rape kits at Houston PD

The more the Houston crime lab inventories its backlog of untested rape kits, they're discovering thousands of biological samples they didn't even know they had. Reported the Houston Chronicle ("More rape kits than thought remain untested at HPD," Dec. 15):

The Houston Police Department's backlog of untested rape kits totals between 6,000 and 7,000 - 50 percent more than what officials previously acknowledged, according to a memo from Chief Charles McClelland.

HPD for years has insisted that the backlog of untested rape kits was around 4,000. The details from the chief's memo confirm a Houston Chronicle report that the backlog likely was far greater.

The backlog also is likely to continue to grow. According to McClelland's memo, HPD receives some 930 new rape kits each year. HPD officials previously have said the department is able to test only 30 to 40 a month.

The data resulted from "a two-phase, $1.14 million award from the NIJ. The bulk of the money will go toward determining the reasons rape kits go untested and how to reduce the backlog more quickly." The Chron story, by Zain Shauk, reminds readers that:

The department conducted an audit that determined that between 16,000 and 17,000 rape kits dating back to the 1980s are stored in HPD's property division, the memo said. Of those, roughly a third, or between 6,000 and 7,000, have not been examined.

DNA testing at HPD's crime lab was temporarily suspended in 2002, after an independent audit revealed shoddy forensic work, including unqualified personnel, lax protocols and facilities that included a roof that leaked rainwater onto evidence.

Since the lab resumed operations five years ago, the roof and other interior problems have been fixed. The lab also has reduced or eliminated backlogs in areas such as narcotics and ballistics.

Cutting down the rape kit backlog has been a challenge because of a lack of resources and personnel, HPD officials have said.

I'm assuming, but am not certain, that the phrase "examined" in the story is a synonym for "tested." Conceivably, though, the department could "examine" a sample but decide not to test it - e.g., where it was contaminated by water damage from a leaky roof or where consent, not identity, was the central issue in a sexual-assault case. If "examined" and "tested" are not synonymous, the number of untested rape kits could be even higher than 7,000.

There have been mostly muted criticisms of the NIJ  grant to HPD, particularly from outgoing city councilmember Jolanda Jones, for merely assessing the reasons for the backlog instead of just paying for testing to clear it up (though there are also some testing funds included in the grant). But with similar backlogs cropping up all over the state and nation, this work is extremely important. Police departments and crime labs need to create practical protocols for when testing is necessary, when it's not, and what types of cases should be prioritized given scarce resources. That's what the Houston grant is working toward, and IMO it's important, cutting edge work. At a minimum, by focusing on assessment instead of just testing, now we know there are half again more unexamined rape kits than HPD knew about just a few months ago. That's a start.

It's the coverup that gets you: BAT van edition

In politics, often it's not one's sins that trip you up but the coverup afterward. That appears to be what's happening in Houston as a grand jury investigates whether DA Pat Lykos retaliated against a whistleblower from the Houston PD crime lab. Now, two Harris County prosecutors face contempt charges for obtaining secret transcripts of grand jury proceedings from which they were barred on threat of arrest. See:

• Houston Chronicle: Two Harris County prosecutors face contempt charges
• KTRK-TV: Judge threatens top DA assistants with jail time
• Murray Newman: An interesting docket entry

The whole episode drips with institutional arrogance. Houston PD ignored problems with mobile breathalyzer units until 2 crime lab supervisors quit because they wouldn't sign off on faulty breathalyzer results from Blood Alcohol Testing (BAT) vans. When defense attorneys subpoenaed evidence on the matter, Houston PD defied a court order to hand over documentation. The DA's office insisted that all is well, move along, nothing to see here, but then appeared to retaliate against one of the supervisors, prompting a grand jury investigation. As the grand jury looked into the conflict, they turned their sights on the DA's office and decided to conduct their investigation independently, threatening to have prosecutors arrested if they tried to enter the room. The DA appealed and lost, then appealed again, and lost: They couldn't hear the grand jury testimony. So now it appears the ADAs went directly to the court reporters to secure secret transcripts, thumbing their noses at the grand jury and the judge who empaneled it.

How much simpler would all this have been if, when Houston PD first discovered problems with the BAT vans back in 2010, they'd informed prosecutors and addressed the technical and training problems instead of blaming the messengers? What if, when the DA's office discovered HPD had concealed BAT van errors, they stepped up and took the hit on Brady violations (withholding exculpatory evidence) instead of blowing smoke and attempting to discredit the whistleblowers? And what if, once prosecutors were ordered out of the grand jury room, they'd just abided by the order and waited to see how things turned out?

Odds are, if the HPD crime lab had its house in order a year ago, this would all have been fixed behind the scenes and never been made public. If the DA had owned up to the problem after defense attorneys found out about it, this would have been a one-day story instead of an ongoing drama. And now that the DA's office appears to be defying/circumventing the grand jury, perhaps even illegally violating its secrecy provisions, they've opened up a can of worms that may end up taking DA Pat Lykos down.

MORE: Mark Bennett sees political machinations behind the "runaway" grand jury, with the investigation possibly serving as a stalking horse for Lykos' political foes. He suggests there's at minimum an "appearance of impropriety" from appointing a special prosecutor who was a major contributor to Lykos' 2008 primary opponent, Kelly Siegler, and who is known to have "bad blood" with the DA. That all may be true, but it's also true that if the situation had been handled more forthrightly earlier on, there would be nothing to investigate now. AND MORE: See a followup post from Bennett. Murray Newman predicts delay tactics.

Grand jury investigating BAT van coverup to question DA Pat Lykos

It seems that as a practical matter, examinations of flawed forensics in the justice system virtually never result from the mature, public exercise of judgment aimed at seeking scientific truth but inevitably are cinched up in some taut, emotional knot by whatever painful, uncomfortable or inconvenient memories or secrets may be exposed if the flaw were to come to light in a particular case. So when investigating flawed arson science, for example, the Forensic Science Commission gets sidetracked by death penalty politics. Similarly, flawed breathalyzer forensics at the Houston PD were only exposed when a crime lab supervisor quit rather than sign off on questionable results, then faced alleged retaliation from the District Attorney and the Harris County Commissioners Court, which eliminated her new job soon after she took it. So the question of breathalyzer mechanics gets wrapped up in a nasty employment dispute. For whatever reason, when flawed forensics are exposed the case is seldom as simple as the science.

In the Harris County B.A.T. van case, the Houston Chronicle today reports that DA Pat Lykos herself has been called to testify before a grand jury that's apparently investigating Brady violations (withholding exculpatory evidence) in addition to retaliatory termination regarding whistleblower Amanda Culbertson who exposed flawed forensics on mobile DWI testing units. Wrote Brian Rogers:

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests' accuracy while prosecuting past DWI cases but did not alert defense attorneys.

Culbertson resigned rather than sign off on flawed breath-test analyses and went public with her allegations, taking a job at Lone Star College which held a decades-old training contract for breath alcohol testing with Harris County. If not in response to Culbertson's disclosures then at least soon after them, DA Lykos successfully pressed the Commissioners Court to transfer the contract to the Texas Department of Public Safety. Lisa Falkenberg writes that, "Retaliation, and perhaps even intimidation, seem far more likely motives for the DA's office to want to end Lone Star's contract," but added that "we'd never know for sure without a thorough investigation."

It seems, at least, the grand jury is performing one. What a dramatic turn of events! I'd love to learn the backstory of how it was orchestrated. We could use grand jurors like that in quite a few other Texas counties. The Houston Chronicle has been covering this well, so far, but if you're interested in the straight-up schadenfreude angle on this juicy story, Murray Newman's your man.

See related Grits posts:

• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• 'We've had enough of courthouse cronyism'
• Holy junk science BAT van!  Houston portable breathalyzers' accuracy questioned
• Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Forensic technique that was 'judicially accepted for decades' called 'highly unreliable'

Having recently examined advice being given to judges on how to interpret the science or lack thereof behind ballistics evidence, I thought I'd continue in that vein with a discussion of "microscopic hair analysis" from the same source (see the online version here, beginning on p. 112). Both analyses are drawn from the third edition of the "Reference Manual on Scientific Evidence," produced by the Federal Judicial Center and the National Research Council of the National Academies of Science. While microscopic hair evidence has been "judicially accepted for decades," says the manual, you can add it to the list as "another forensic identification discipline that is being reappraised today."

The 2009 NRC-NAS report contained an assessment of hair analysis, says the manual, "observing that there are neither 'scientifically accepted [population] frequency' statistics for various hair characteristics nor 'uniform standards on the number of features which must agree before an examiner may declare a 'match'" The report concluded that "testimony linking microscopic hair analysis with particular defendants is highly unreliable," recommending DNA testing of the evidence where practical.

Hair analysis is better at excluding suspects than individuating them: E.g., they could tell if someone had blonde with straight hair vs. curly hair from an African American, whether hair had been dyed, etc.. But even the best estimates of the technique's accuracy say the possibility of a false match is 1 in 4,500 for scalp hair and 1 in 800 for pubic hair. Other proficiency studies, have found much higher "false positive" rates - sometimes above 12%. Even more damning, an examination of the first 137 DNA exonerations found that 38% included invalid hair comparison testimony, with most of the cases involving "invalid individualizing claims."

In the courtroom, prior to the US Supreme Court's Daubert opinion in 1993, "an overwhelming majority of courts accepted expert testimony that hair samples are microscopically indistinguishable." However, 1990 decision in North Carolina held it an error to admit testimony that"it would be improbable that these hairs would have originated from another individual." The court held that such testimony amounted "effectively to positive identification of the defendant."

The first, significant post-Daubert challenge to such evidence came in Williamson v. Reynolds out of Oklahoma in 1995, where a district court was "unsuccessful in its attempt to locate any indication that expert hair comparison testimony meets any of the requirements of Daubert." Before retrial, that particular defendant was exonerated by exculpatory DNA evidence.

The section of the manual on microscopic hair analysis concludes:

Post-Daubert, many cases have continued to admit testimony about microscopic hair analysis. In 1999, one state court judicially noticed the reliability of hair evidence, implicitly finding this evidence to be not only admissible but also based on a technique of indisputable validity. In contrast, a Missouri court reasoned that, "without the benefit of population frequency data, an expert overreached in opining to "a reasonable degree of certainty that the unidentified hairs were in fact from" the defendant. The NRC report commented that there appears to be growing judicial support for the view that "testimony linking microscopic hair analysis with particular defendants is highly unreliable.

RELATED: Go here to read the manual online or purchase a hardcopy. See also: Judges cautioned against reliance on overstated ballistics testimony.

'Missing evidence is among military crime lab's new problems'

Just a reminder that crime-lab woes aren't specific to Houston or to Texas, I was interested to read this report published yesterday by McClatchy Newspapers with the same title as this post on problems at the US military's most important criminal lab. The story opens:

The Army's crime lab, already beleaguered by multiple internal investigations, has something new to explain: missing evidence.

Examiners misplaced evidence in a possible suicide investigation and an assault case. One of the analysts didn't notify his superiors for months that a handwriting sample he was supposed to examine had been missing, a miscue that delayed an investigation into the matter until recently.

Meanwhile, two former senior employees of the lab's high-profile forensics testing in Afghanistan have accused their bosses of firing them in August in retaliation for complaining about mismanagement.

Their lawsuits are the latest in a growing list of employee complaints about the lab. In less than four years, at least seven internal investigations have been launched and eight complaints filed against managers. Employees say the turmoil has distracted them from their mission of analyzing evidence.

The U.S. Army Criminal Investigation Laboratory, near Atlanta, is the military's most important forensics facility, handling more than 3,000 criminal cases a year.

Now the lab is trying to determine how evidence that was supposed to have been tested was lost.

These aren't the first reports of problems with military crime lab work (see here and here). It's something we're witnessing at all levels of government: Forensic science has been treated for decades as a backwater of applied science tailored to meet the needs of police and biased as an appendage of law enforcement as opposed to an independent scientific arbiter. Now, the National Academies of Science and others have called for moving to a more independent role, but that bucks up against generations of institutional culture, not to mention historic funding relationships vis a vis whose turf you're on in which government jurisdiction. 

 

The growing pains so far haven't been pretty to watch. Between  the need to upgrade standards of professionalism, greater emphasis on evidence cataloging and retention, and bringing day-to-day practices and court testimony into line with scientific principles, crime labs are in for a rough decade or two before their profession settles down. Hopefully, after change shakes out, they'll find their work more professional, science-based and independent of law enforcement. We need crime labs, but we need them to be better.

That said, the magnitude of missing evidence in the military lab pales in comparison to the worst examples of evidence preservation in Texas, or the lack thereof, especially after police departments in the last few years "discovered" thousands of old, untested rape kits and other biological evidence, which some are now earnestly sorting through and which others are more or less ignoring. So I don't read this news as speaking (particularly) ill of the military crime lab so much as demonstrating that the industry, profession, whatever you want to call it needs to seriously up its game across the board.