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.

DPS, private contractors, and the Great Public Relations Emergency of 2010

The Austin Statesman followed up on Tom Barry's piece at Alternet, discussed here, to provide more detail on the outsourcing of Texas border security to a private contractor called Abrams Learning and Information Systems Inc. (ALIS). Particularly fascinating in reporter Jeremy Schwartz's account is the rise of dissension within DPS as early as four years ago over the contracts, culminating in a budget request to replace them with DPS staff:

By 2008, at least some within DPS believed it was a bad idea — and too expensive — to give private contractors such responsibility over border security operations. In the agency's 2008 budget request to the Legislature, DPS asked for money to hire 19 state employees to replace the contract workers then staffing the border security operations and joint intelligence centers.

"It is more desirable and more cost effective to have state employees planning, coordinating, and evaluating joint state-local border security operations that involve more than $100 million in state appropriated funds," the document says.

Instead, the following year, Abrams received a $4.2 million contract in part to staff and provide "leadership" to the Border Security Operations Center, where it would produce plans, analyses and "decision support tools for Texas leadership."

That same year, 2009, the ALIS contract came under the purview of the Texas Rangers. By the next year, it was discontinued — because, officials said, the state could do the work itself for less money.

"The contract was coming to an end and when I looked at what (ALIS) was doing, I promoted people within the division to do the same jobs. It was more cost effective to do it ourselves," said former Ranger chief Tony Leal.

I also was unaware that in August of 2010 Texas faced a public relations "emergency," but that's the world the good folks at DPS apparently lives in:

In January 2010, DPS Director Steven McCraw told commissioners: "There's a tendency toward everything being an emergency. We recognize that's not the way to do business. We need to plan ahead."

But seven months later, DPS gave Abrams another emergency, no-bid contract, worth $1.4 million, in part to shape the state's public message on border security. ...

In August 2010, the DPS enlisted Abrams to develop a public and media outreach strategy to "position Texas border security efforts in a positive light," paying the firm to develop talking points, presentations, testimony and the "orientation" of senior government leaders. Abrams created a public relations campaign featuring 36 principal messages, including "The success of Texas border security and law enforcement efforts are critical to preserving you and your family's safety and way of life" and "Border Security is a Federal Responsibility but a Texas problem" — the exact language contained in an earlier Perry speech and a common refrain during Perry's presidential campaign.

A draft document obtained by the American-Statesman, titled "Border Security Public Outreach Themes and Messages," includes talking points that would seem to boost the firm's standing. In touting Operation Border Star, the state's principal border security strategy, the document says that law enforcement agencies "join with private companies" to "reduce border-related crime." The messages were meant to be used by the agency's public information department and to guide agency interactions with the media.

DPS officials say they contracted with ALIS on media outreach because they wanted the public to know about Mexican cartels recruiting Texas students to carry drugs and other threats such as smuggling operations and public corruption.

Sounds like the McCaffrey report and the recent Spring Break warning are all part of a broader public relations campaign. For that kind of money, there's likely more misinformation coming, or else this was the most expensive PR advice Texas taxpayers ever paid for.

DPS outsourced key border security tasks to shadowy private contractor

Here's a story that should have been broken by a Texas publication, but credit must instead go to Tom Barry at Alternet for a remarkable piece of reporting titled "Who Is Securing the Texas Border? How Private Contractors Mislead the Public, Then Get Rich Off Taxpayer Money."

Since 2006 many of the key figures in state-led border security operations and information campaigns have identified themselves as DPS employees or part of the Texas Rangers to the public, policy community and the media, disguising their true identities.

The business card he handed me during the sheriffs meeting identified Sikes as the director of the Border Security Operations Center (BSOC) – which is a type of fusion center for border-security operations in Texas. It’s a project of the Texas Rangers Division, which in turn is a branch of the Texas Department of Public Safety (DPS).

However, Mac Sikes is neither a Texas Ranger nor a DPS employee. Like most of the other key figures behind the Lone Star State’s border security campaign, Sikes is a contract employee.

A “senior operational analyst” at Abrams Learning & Information Systems (ALIS), Sikes became director of BSOC as part of the firm’s $3-5 million annual contracts with DPS since 2006. The recent DPS decision -- in response to a public records request -- to release the ALIS contract revealed the true identity of Sikes.

The Border Security Operations Center is the nexus of the Texas’ own border security initiatives, collectively known as Operation Border Star. ALIS, a homeland-security consulting firm with offices in Arlington, Virginia, was founded in 2004 by Ret. Army Gen. John Abrams to cash in on the billions of dollars in new government contracting funds that started to flow after the creation of the Department of Homeland Security in 2003.

Since 2006 ALIS functioned as the hidden force behind virtually all non-federal border-security operations in Texas. Whether it’s strategy formulation, border crime-mapping, operations management, or public relations, ALIS and its team of consultants have been closely involved in creating what Governor Rick Perry calls the “Texas model of border security.”

Says Barry, "It would be hard to exaggerate the degree to which Governor Perry and DPS Chief McCraw have outsourced state border-security, homeland-security, and public-safety programs to Washington Beltway contractors." Further, and this is certainly accurate, "There has been absolutely no review by policy makers or by the public of DPS outsourcing of border-security strategy and operations." Maybe now it will come.

In addition, wrote Barry, a February report (pdf) from the Texas state auditor found a number of irregularities with federal grant spending:

The audit reviewed a representative selection of cases among the $265.9 million in federal grants and subgrants to DPS -- in the areas of homeland security, border security, emergency management, and law enforcement interoperability.

Among the findings of negligence and incompetence were these startling instances:

• A draw-down of $755,509 in federal funds to issue a duplicate payment to one subgrantee.
•  Five of the six procurements (83%) examined by the auditor in the cluster of federal grants for homeland and border security were not bid competitively as required.
• DPS categorized four of the five procurements examined by the auditor as “emergency procurements,” and in three of those four DPS was unable to document why they were processed as “emergency” contracts.
• DPS has no system to track, administer, monitor federal subgrants – as federal guidelines require, leading to routine occurrences of duplicate payments, dipping into one federal fund to pay for unrelated programs, and failure to submit required reports and audits.
• Complete failure to track interest rates on unused federal funds and to remit those funds, as required by federal grant guidelines.
• Access to law-enforcement databases by contract programmers who lacked proper authorization or clearance.

This is a good example why Grits is under the impression that Texas would benefit from more original reporting on criminal-justice topics. Our media should have picked up on the outsourcing of border security operations long ago, but not a single reporter (MSM or otherwise) regularly attends meetings of the Public Safety Commission, much less covers the agency in remotely the level of detail, say, that the Austin Statesman's Mike Ward does for TDCJ. There's just a vacuum of coverage on the agency's activities that journalism should but doesn't routinely fill. I'm happy Mr. Barry wrote the piece, but every political or crime-beat reporter and editor in Texas should be kicking themselves for having missed the story for the last half-dozen years until after the practice is a fait accompli.

See more at Barry's blog, Border Lines.

MORE: From the Austin Statesman.

Montgomery Sheriff crashes drone into SWAT vehicle

One of the first civilian law enforcement agencies in the country to purchase an aerial surveillance drones last fall, the Montgomery County Sheriff's Office yesterday crashed a drone into one of its SWAT team's armored personnel carriers during a practice run. (Please let there be video!) Further, it wasn't just surveillance equipment crashing into the SWAT vehicle which IT World reports was "being loaded with weapons and ammunition for a training exercise."

Notably, DPS at one point was using unarmed drones both along the border and elsewhere in the state, but according to the Electronic Frontier Founation DPS recently canceled its drone program because of maintenance issues with the high-tech craft. (I'd not seen that widely reported.) DPS shut down its program, they told EFF, because, "drones did not offer Texas significant advantages over the agency’s existing airplanes and helicopters."

Despite costs and crashes, though, the Obama Administration is pushing ahead to approve drone use by many more civilian agencies on US soil by this summer, reports IT World:

Expensive, crash prone or not, unmanned aerial vehicles will become far more common in the U.S. following legislation signed by President Obama ordering the FAA to approve more UAVs for law enforcement and fire/emergency uses beginning in 90 days.

The FAA has restricted use of drones domestically due to concerns that UAVs flown by untrained operators would become a hazard to other aircraft and danger to people on the ground.

The Obama order gives the FAA until Sept. 30, 2015 to make legal drones that are lighter than 4.4 pounds and fly lower than 400 feet.

They won't just be for police, though. The legislation doesn't limit the uses for which its drones can be used, which will almost certainly make life much easier for paparazzi, stalkative exes and hordes of the intrusive, nosy and curious.

It will also make life much less private for a population struggling with the loss of privacy online and, very possibly, not yet ready to give it up in their backyards to crash-prone, high-maintenance r/c helicopters that may be relatives of the Predators and GlobalHawks of the world, but without the reliability, trained operators and reason for poking their noses into someone else's business in the first place.

If the Congress and the Obama Administration are pushing drones, might a Texas Legislature that last year battled the TSA over intrusive personal searches decide to regulate them, and if so would they have any authority to do so? For that matter, do cities have authority to regulate low-flying commercial drones, or is that strictly an FAA responsibility? ¿Quien sabe?

We seem to be at a "leap before you look" moment regarding drone technology. I'm sure there are benefits, but it looks like we'll be finding out the detriments the hard way.

The newest toy in the box, part two: DPS deploying military-style gunships in Rio Grande

The Texas Department of Public Safety will soon deploy its own mini-navy along the Rio Grande consisting of gunboats armed with automatic weapons, according to KHOU-TV, which reported that:

next month it's about to launch its own fleet of gunboats.

"It sends a message: Don't mess with Texas," said Jose Rodriguez, Texas DPS Regional Commander.

The state is spending almost $3.5 million in tax money for six 34-foot gunboats, each which can operate in as little as two feet of water. The vessels are outfitted with automatic weapons and bulletproof shielding.

The state's first boat is scheduled to be launched next month to operate alongside the Border Patrol.

"One agency cannot do this alone," Rodriguez said.

The gunboats will be looking for suspicious scenes, like another one the DPS helicopter captured in December showing 10 men riding down the river and sitting on bundles of drugs that were no doubt destined for the U.S.

Anytime someone in law enforcement says they're doing something to "send a message," much less in the same breath with the slogan "Don't Mess With Texas," that's a red flag for spending on worthless pork and PR-driven policing. The vast majority of contraband comes in through the checkpoints, not across the river. (According to a recent report by the Texas Border Coalition, "There is a mere 28 percent chance that a smuggler will get caught at the nation’s ports of entry, compared with a 90 percent of being detected between the ports of entry.") So why double down resources on the parts of the border - i.e., the stretches of river between the checkpoints - where smuggling has mostly been successfully restrained?

There's also real potential for creating unnecessary problems, starting the first time somebody fires off those automatic weapons toward the Mexican side of the river.

"Send a message" is code for "just for show." Patrolling the Rio Grande in crafts outfitted like Swift Boats headed up the river in Vietnam won't make anyone any safer or reduce the availability of drugs in the US, but the boat sure looks cool pictured there in the newspaper, doesn't it? And I suppose for the troopers it's more interesting duty than making traffic stops.

Few defendants getting surcharges waived by judges based on indigence

Thousands of  Texas drivers have successfully applied for waivers of most of their Driver Responsibility surcharges under new rules implemented by the Public Safety Commission last year. But only a handful of defense attorneys have asked judges to declare their clients eligible to have their surcharges waived entirely after a little-publicized law took effect September 1 empowering judges to order surcharges in new cases waived for indigent defendants.

According to Tom Vinger with DPS' media relations, the agency began receiving court orders from judges waiving surcharges based on indigency (under an amendment authored by state Rep. Sylvester Turner) in October 2011, and despite their earlier representation, DPS now says they "process the court order once the conviction is placed on the record. There have only been 29 orders received and 13 processed." That's discouraging. I'm certain there have been many more DWIs pled out than that with clients who qualified for indigence waivers. I'm not an attorney and certainly no expert on what constitutes a successful bar grievance, but IMO it borders on ineffective assistance for a defense attorney not to apply for an indigency waiver on DWIs or other surcharge-eligible offenses when their client qualifies - even though surcharges are technically a separate, civil matter, it's a direct collateral consequence of the conviction.

In any event, where the real action has been is under the Indigence rules created  (to their credit) by the Public Safety Commission. As of January 9, DPS had received 19,668 applications for reduction of surcharges under DPS indigence rules, and had approved 18,249 of them, or 92%. In addition, more than 100,000 drivers - about one in seven of those eligible - applied for and received amnesty last spring, so the new rules pushed by Grits and the good folks at the Texas Fair Defense Project so far have helped more than 120,000 people regain their drivers licenses.

Why aren't appointed defense attorneys asking judges for a waiver of surcharges for their indigent clients when they're eligible? I have no idea but it surprises me so few have done so. The statute has been on the books since 2009, though it only took effect Sept. 1, 2011, so the defense bar should have had time to educate themselves and prepare to use it. By contrast, I'm glad to see significant numbers of people are successfully applying for surcharge reductions (to $250 or less) under the (relatively) new DPS rules.

Grits also asked DPS for more information on when the "Incentive" rules - mandated by the Lege to be implemented sometime this biennium - might take effect. (They're already on the books, the Public Safety Commission just needs to pull the trigger and make them take effect.) More on that when I hear back.

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.

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.

Lege raided red-light revenue, shorting trauma center hospitals

Money from red-light cameras designated for Texas trauma hospitals isn't actually making it to the intended recipient, the Dallas News reported yesterday ("Texas lawmakers sit on red-light revenue dedicated to trauma centers"):

The law directs a portion of fines generated by the cameras toward trauma centers. But instead of helping hospitals, the money is simply piling up in Austin.

The $46 million pot earmarked for hospitals is helping lawmakers certify a balanced budget even though much of the money in state accounts can’t be used for general expenses. It’s an accounting trick that has been used for years and defended by budget writers who say such maneuvers are necessary in lean times.

Budget writers face a choice: They either have to cut spending or reduce appropriations, said Steven Polunsky, spokesman for Sen. John Carona, R-Dallas, who wrote the bill that set aside red-light camera funds for trauma centers.

“In the past, the state has appropriated trauma funds,” Polunsky said. “However, the state was in a difficult budgetary situation.”

In their last session, lawmakers set a record by refusing to spend $4.1 billion raised from earmarked fees and taxes. The programs that suffer include electricity discounts for the poor and, in the case of red-light ticket revenue, trauma centers.

While Greyson was among those who lobbied for red-light cameras, critics of the law say the state’s refusal to let go of the money is another reason for repeal.

“This is just another lie we were told,” said Byron Schirmbeck of Baytown, who successfully petitioned to get the cameras removed from his city. “They sell the system to the public by saying that all this money will come back to the community — to the trauma centers. But the state is holding on to the money.”

The Lege cut its line-item appropriation for trauma centers by 23% in 2011, so the loss of red-light camera revenue pales in comparison to their overall shortfall (and likely is a subset of the larger number), but it's still notable that they hijacked a dedicated revenue stream. This is one of the valid reasons why the "no new taxes" crowd opposes tax hikes, etc., across the board. Even when the supposed justification is "dedicated" to a good cause, like trauma centers, in practice they divert the money whenever they want.

Grits queried DPS this a.m. to clarify the precise extent to which the Lege did the same thing with revenue from the Driver Responsibility surcharge, so stay tuned for a followup on these themes.

DPS, border violence, and the boy who cried 'wolf'

Last month when two former generals issued a report (pdf) commissioned by Texas DPS and the Ag Department claiming massive rates of violence on the Texas side of the Rio Grande, Grits responded with a post titled  "Lies, damn lies and border security rhetoric: New study aims to fabricate fear."

In a similar vein, yesterday the Austin Statesman definitively debunked that report, showing that border crime including murders has declined during the period that violence on the Mexico side of the river has surged.  Indeed, because reality doesn't support the politicized claims of "spillover" border violence, DPS has begun keeping its own list that appears to overstate cartel involvement in Texas-side violence:

An American-Statesman analysis of all 14 counties that share a border with Mexico and two dozen border cities shows that violent crime along the Texas side of the Rio Grande fell 3.3 percent between 2006 and 2010.

During the same period, the combined number of murders in the 14 counties fell 33 percent, to 73 in 2010 from 97 in 2006.

Further, most counties and cities situated directly across from the worst of the Mexican violence also saw their crime rates decrease, even as thousands were slaughtered on the Mexican side.

One reason for the gap between what state officials say and what the numbers show is that state agencies increasingly have moved away from using traditional statistics to describe the security situation along the border, and have instead begun using new categories of crime reporting that in some cases have raised questions about accuracy.

The Department of Public Safety, for example, has begun keeping a list of what it considers cartel-related killings in the state.

Yet two Austin-area murders on the list appear to have been caused by a fight over a cellphone, according to court records. The connection of murders in other parts of the state to cartel members have been questioned by border law enforcement chiefs as well.

There's a "boy who cried 'wolf'" aspect to these sorts of claims, particularly after the Governor and DPS overstated crime fighting benefits of nine-figure border-security efforts like Operations "Linebacker" and "Wrangler." I'm glad to see the MSM calling them on it.

Regular readers know the real "spillover" violence along the border is in the other direction, with American gang members crossing the river to commit literally thousands of murders in Mexico. Border security presents real problems, but if we don't define them accurately it becomes impossible to craft effective solutions.

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

Despite two years to plan, DPS won't yet process surcharge waivers for indigent defendants

Despite having two years to plan for the statutory September 1 implementation date, the Texas Department of Public Safety is not yet prepared to implement a mandated system for indigent defendants to have their Driver Responsibility Surcharges waived, I'm told by officials at DPS. Although the law took effect Sept. 1, 2011 (and was passed in 2009, giving them ample time to prepare), DPS is not able at this time to process  indigency waivers under Chapter 708.158 of the Transportation Code if a defendant today were to seek to have his or her surcharge waived, and they "do not have an estimated implementation date" as to when they'll be ready.

Notably, this is a different provision than the inidgency rules implemented by DPS earlier this year (see here), which reduced, but do not eliminate, surcharges for people who file an affidavit of indigency with the department. Instead, under this provision, drivers convicted of a traffic offense making them liable for the Driver Responsibility Surcharge after September 1, 2011 may seek to have their surcharge(s) waived outright by providing documentation of indigent status to the convicting court. Documentation to demonstrate indigence includes:

(1) a copy of the person ’s most recent federal income tax return that shows that the person ’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;

(2) a copy of the person ’s most recent statement of wages that shows that the person ’s income or the person ’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or

(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;

(B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;

(C) the medical assistance program under Chapter 32, Human Resources Code;

(D) the child health plan program under Chapter 62, Health and Safety Code; or

(E) the national free or reduced-price lunch program established under 42 U.S.C. Section 1751 et seq.

There is no requirement under the law for judges to hold a hearing, evaluate the evidence, or issue any formal declaration before a person’s surcharge(s) become eligible for waiver. Rather, “a person is considered to be indigent if the person provides the evidence described” in the statute, and DPS “shall waive all surcharges assessed under this chapter for a person who is indigent.” (Emphasis added.) In other words, simply providing said information to the court makes an indigent driver eligible for the waiver. No action by the court appears to be required other than receiving the documents, though in practice either the court clerk or the defendant would have to notify DPS. One would imagine if a defendant is eligible for appointed counsel they'd automatically be eligible to have their surcharges waived. But even those without appointed lawyers may be eligible if they fall into one or more of the categories listed above.

In what is perhaps a significant technical drafting oversight, the law does not require the court to notify the Department of Public Safety that such information has been provided.  However, once the information has been provided, the law requires DPS to waive the surcharge. The waivers only apply for convictions after Sept. 1, 2011. This will be perhaps most significant for DWI cases, where defendants are more likely to receive appointed counsel and where surcharges run $1,000 per year for three years on the first offense. But it also applies to surcharges for driving without insurance, driving without a license, and surcharges based on "points."

A few weeks ago I asked DPS about the implementation of this law, and yesterday finally go back this response:

For the reporting of the indigent status by the court, we are planning to incorporate a field in the current conviction reporting process for indigent status.  Section 15.07, Article 15, HB2730 provided that the indigency program applies only to surcharges assessed on or after the effective date of the law.  As you are aware, indigency can be a fluid status.  Because of this fluidity, the Department should only consider the court indigency on a per conviction basis.  The inclusion of the additional field will allow the court to easily report the indigent status for each conviction.
 
This programming has been included in our legislative projects, but I do not have an estimated implementation date at this time.

A followup email after I asked for clarification declared that:

The Driver License Division is still working to implement all legislative changes that impact our processes, and the electronic reporting capability has not been established at this time.  Unfortunately, I do not have an estimated date for implementation as all legislative changes are being evaluated for programming efforts, rule and procedural changes.

This is bizarre to me: The "implementation date" is in the statute and already has passed us by. What they're really saying is that, even though the agency had more than two years to prepare, DPS won't yet waive surcharges under this provision of the statute because they don't yet have their act together. State agencies don't get to ignore the law, or shouldn't, just because for two years they failed to sufficiently plan for its impact. They had plenty of time and I know for a fact the relevant DPS staff knew about the new law; they just did nothing before now to implement it.

What's needed at this point is a test case - someone who was convicted of DWI or another surcharge-generating offense after September 1 who qualifies for indigent status under the provisions above - to file the relevant documents with the court and seek a waiver from DPS, forcing them to expedite creating a process instead of taking their own sweet time. The law doesn't require electronic reporting by the court, so a defendant eligible for the waiver could provide documentation to the court then notify DPS by mail, fax, etc., and by law the surcharge must be waived.

If any attorney reading this who was appointed to represent an indigent client in a DWI case which pled out after September 1 were to seek such a waiver for their client, it'd be a great mitzvah to do so and force DPS to expedite creating a process. (Be sure to let Grits know if you do.) Indeed, to my mind attorneys appointed to represent indigent defendants for any surcharge-generating offense now pretty much have an affirmative duty to help their convicted clients get surcharges waived if they're eligible or risk future allegations of "ineffective assistance of counsel."

There's no excuse for DPS pretending they can forestall the implementation date beyond the timing dictated in the statute, but they clearly don't yet have their act together, even with more than two years to plan. Very frustrating. The defense bar needs to step up and force their hand.

'Rick Perry's Intelligence Overreach'

A reporter from Mother Jones contacted Grits recently with questions about Governor Perry's record on the TDEX database, which is Texas' homegrown version of the nixed "Total Information Awareness" initiative promoted by Adm. John Poindexter during the Bush II Administration. The resulting story, with the same title as this post, may be found here.

See related Grits posts:

• DPS spending millions on TDEX databases while drivers license lines lengthen
• The case of the missing data
• DPS: Open criminal case data given to Northrop Grunman, never given back
• Don't do it! Perry moves to consolidate intelligence gathering in Governor's office
• Farrar: HB 13 won't secure border, risks letting political concerns interfere with law enforcement
• Bad Big Brother bill just won't die
• The Governor's Great Border Security Power Grab
• Biometrics slope got slippery mighty quick

Lies, damn lies and border security rhetoric: New study aims to fabricate fear

In order to justify massive amounts of border security pork and to bolster the Governor's anti-immigration bona fides, since 2006 the Governor and his former homeland security director Steve McCraw, who now leads the Department of Public Safety, have consistently overstated the amount of crime in border counties, raising the spurious specter of "spillover" violence from the cartel wars in Mexico onto the US side of the river.

In reality, any close observer of border realities knows that the real "spillover" of violence along the border is in the other direction, with Texas-based prison gangs like Barrio Azteca serving as soldiers and assassins for feuding drug cartels. In rare moments of candor, DPS officials have told the Legislature that in many cases "command and control" of cartel activity has shifted to the US side, with cartel leaders themselves seeking safety from the chaotic and violent environments south of the Rio Grande.

So I wasn't surprised to see that DPS and (for some reason) the Texas Ag Department teamed up to hire two big-name ex-generals, including former Clinton-era "Drug Czar" Barry McCaffrey, to perform an anecdote-driven security study (pdf) released last week which contradicts all available data about crime on the US side of the border to falsely claim that violence on the American side poses as great a threat as in Mexican border towns. Reported the Austin Statesman ("Report cites anecdotes to claim spillover violence," Sept. 27), despite claims by the generals that South Texas has become a war zone:

Federal crime statistics from cities and counties along the Southwest border have not shown spikes in violence, and last year the Congressional Research Service found that FBI statistics do not indicate whether there has been spillover from the violence raging in Mexico. Officials along the border have presented differing accounts of drug cartel-related violence.

Indeed, the sourcing for the most serious allegations in the report turns out to be unbelievably sketchy:

During a news conference after the report was released, McCaffrey raised eyebrows when he spoke of "hundreds of people murdered on our side of the frontier," a statistic that far exceeded the 22 killings between January 2010 and May 2011 identified by the Department of Public Safety as being related to drug cartels. When asked about the number, McCaffrey pointed to statements from a Brooks County rancher, who told reporters that hundreds of bodies had been found in the county in recent years.

Most of the bodies were those of illegal immigrants crossing the brush trying to avoid the U.S. Border Patrol checkpoint in Falfurrias and not victims of direct assaults, according to the Brooks County sheriff's department.

So the bulk of US side deaths McCaffrey attributes to drug cartels a) stem from failed attempts at illegal immigration, not the drug war, and b) weren't actually murders according to law enforcement. Such obfuscations are regrettable if not surprising, as border security issues have become highly politicized. The Statesman reported:

The issue of spillover violence has increasingly pitted Republican lawmakers and leaders, including Gov. Rick Perry, against President Barack Obama's administration.

"Our pleas for help are being met with denial and lame jokes," Texas Agriculture Secretary Todd Staples said Monday. "The threat grows more violent every day, and more resources are needed."

In May, Obama traveled to El Paso and declared the border more secure than ever, accusing Republicans of using the issue of border security to delay discussion of immigration reform.

"Maybe they'll say we need a moat," Obama said at the time. "Or alligators in the moat. They'll never be satisfied."

Earlier this month, Perry blasted Obama during a presidential debate as either having poor "intel" or being an "abject liar."

But since law enforcement sources support President Obama's interpretation of what's happening on the border instead of Rick Perry's, McCaffrey and Co. relied on anonymous sources that blatantly contradict the law-enforcement interests who've received tens of millions in border-security grants from the governor. Apparently those folks are credible when it comes to doling out pork, but are all fibbing when they report the number of murders in their jurisdictions. How much sense does that make?

Anyone familiar with McCaffrey's record as Drug Czar won't be surprised by such fabrications. Indeed, as Drug Czar he was literally statutorily obligated to mislead the public about the drug war. Apparently old habits die hard.

Dismissals, case outcomes often don't make it into state criminal history database

The State Auditor's Office has released a report on criminal justice information systems at the Texas Department of Public Safety and the Department of Criminal Justice, raising questions about the accuracy of criminal history data at both agencies. The Fort Worth Star-Telegram has a brief story on the subject, but let's dig into the audit (pdf) in more detail.

The biggest issue at DPS is a failure to record more than 1/4 of "dispositions," i.e., outcomes, related to arrests logged into their system, primarily because "DPS does not have authorization ... to penalize" prosecutors and courts who don't submit such data. "As of January 2011, prosecutor offices and courts had submitted disposition records to the Computerized Criminal History System for 73.68 percent of arrests made in 2009.

Such omissions can lead to critical errors, as demonstrated by the case of Walter Rothgery, whose false arrest for being a felon in possession of a firearm (he had never been convicted) happened because the outcome of a prior case had never been entered into the system. Lots of people are arrested for things they're never convicted of, and failure to enter disposition data into the system means many of them will be blamed in the future for charges that were dismissed.

According to the audit, of records submitted to DPS between Sept. 1, 2009 and Nov. 30, 2010, an astonishingly low "47,051 (63.61 percent) of 73,967 records for criminal charges that prosecutors dismissed were submitted within 30 days as required." You'd think dismissals - clearing people's names from un-adjudicated charges - would be among the most important information to ensure gets into the system, but more than 1/3 of dismissals aren't reported in a timely fashion.

Poor information gathering on the front end leads to gaps in information for decisionmakers later in the process. Remarkably, examining a one month sampling of data, auditors identified 1,634 offenders who began serving sentences in prison, jail or on probation in November 2010 for whom the Computerized Criminal History System contained no sentencing information from courts or prosecutors. For offenders sent to jail or prison that month, a whopping 19.29 percent of records at TDCJ failed to include an "arrest incident number," meaning the state can't tell for sure the arrest event associated with their incarceration.

Prosecutors and courts, though, aren't the only ones failing to forward sufficient data upstream. The system "lacks arrest records to match with at least 65,424 prosecutor office or court records collected between September 1, 2009 and November 30, 2010. DPS could not match those records because law enforcement agencies had not submitted arrest records appropriately or because the prosecutor offices and courts submitted erroneous data that prevented DPS from matching records."

Counties recording complete data in less than 90% of cases are supposed to submit plans to DPS for improving their record keeping, but that relatively recent requirement doesn't seem to have resulted in substantial improvements in reporting local case data to the state.

Making matters worse, a majority of disposition data submitted by law enforcement is inaccurate. Auditors sampled records from four law enforcement agencies - Garland PD, Houston PD, and the Harris and Kerr County Sheriffs - and found that 59.55% of arrest records "incorrectly showed that the individual was held in the custody of the law enforcement agency when the individual had actually been released." So basically, once you're arrested, there's a good chance state databases will show that you're still caught up in the system even if charges have been dismissed, you've been released from custody, etc..

Other parts of the audit examined information systems at TDCJ and local probation departments that feed them data on community supervision. "Auditors reviewed the error logs for the five largest local probation offices. TDCJ identified errors in 415,453 (22.60 percent) of the 1,838,576 probation records those local probation offices submitted from September 1, 2009 through February 28,2011," meaning more than one in five probationer records contained errors. However TDCJ "was not able to determine how many of those errors remained and how many had been corrected."

I was interested to learn that "TDCJ submits the state identification number of probationers to DPS each day to determine whether probationers were arrested," but nearly half of Texas probation departments do not monitor that data. The notifications to probation departments of probationer arrests are called "flash notices," but "as of May 2011, users representing 120 (47.24 percent) of the 254 counties had not viewed arrest records associated with flash notices in at least 90 days. That included 56 (41.48 percent) of 135 total users in the 254 counties which had not accessed their accounts within a six month period. Those counties are listed in an appendix.

Bexar County, the audit noted, "had not viewed arrest records associated with flash notices in more than a year" and reviewed arrest data in a local system that includes only arrests in that county. "As of May 5, 2011, Bexar County's CSCD did not have a flash coordinator because it was not aware of the flash notice process," which it should be mentioned provides more fuel for critics of that often-dysfunctional department.

Concerns were also raised in the audit that both DPS and TDCJ had staffers authorized to access or alter data who didn't need it for their job description. At DPS, "Twenty-six staff had administrative access that enabled them to modify criminal records, security configurations, and application functionality of the Computerized Criminal History System," but "only one of those individuals required the ability to modify security configurations to perform the individual's job duties." Giving users inappropriate access, said the auditor, "increases the risk of fraud and unauthorized modification of criminal records."

Similarly, TDCJ does not adequately restrict access to its Corrections Tracking System, meaning "a risk still exists that unauthorized changes would not be detected or prevented. In addition, TDCJ does not adequately back up its system, so if "an unprotected database file was deleted, TDCJ could risk losing criminal data and disrupting the availability of the Corrections Tracking System."

Remarkably - and this should be worrisome to local probation directors - one of the auditors' recommendations was that "TDCJ should consider reducing the funds it provides" to probation departments that don't provide all the data on probationers they're supposed to. Somehow I doubt that will happen, but TDCJ said they agreed with the recommendation and at least in theory could do so. DPS, by contrast, has little if any leverage to force courts and prosecutors to improve their data collection.

This is a story reporters in regional markets could localize for the various agencies in their area. See the full report (pdf) and appedices with county level data for more information.