The StandDown Texas Project

Opinion Roundup

Nebraska's Lincoln Journal Star carries the editorial, "Too fallible for death penalty."

The case of the crooked crime scene investigator in Douglas County provides another glaring example of why the criminal justice system cannot be trusted to apply the death penalty.

Humans not only make honest mistakes, sometimes they plant evidence and lie.

The conviction of former CSI chief David Kofoed for tampering with the evidence in a double murder case was upheld earlier this month by the Nebraska Supreme Court.

Kofoed was convicted for planting a speck of blood in a car belonging to a suspect in the case. His bogus evidence resulted in two innocent men being held in jail for several months. Police even wrung a false confession out of one of them.

Fortunately for the two men, the case against them unraveled before they were tried. DNA evidence found on a ring and marijuana pipe found in the home belonged to a pair of Wisconsin teens. They later pleaded guilty to killing a Murdock couple while looking for money during a road trip.

If you think the Kofoed case is one of a kind, think again.

Just do an Internet search for “crime lab scandal.”

You will be -- or should be -- appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence.

And:

The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future. If you don’t want blood on your hands, support repeal of the death penalty.

"End death penalty, says judge," is the San Francisco Chronicle OpEd by LaDoris H. Cordell, a retired Santa Clara County Superior Court judge.

After nearly 19 years presiding as a state court judge in Santa Clara County, I am certain that the SAFE California initiative to replace the death penalty with life without parole will pass in November.

Yes, there have been failed efforts to end the death penalty.

This time it is different because it's about our safety. Californians are facing a serious public safety gap. A shocking 46 percent of murders and 56 percent of rapes in California are unsolved. This means that murderers and rapists are on our streets because the money to pay for investigations to apprehend them is not there - it's in death row. Once we pass the SAFE California Act, we can fund investigations.

Public opinion has shifted, too. When offered a choice between the death penalty and permanent imprisonment, all recent polls show majority preference for life in prison without parole. The failed promise of the death penalty is now obvious to all. Death penalty cases in California take an average of 25 years from conviction to execution. A quarter of a century is not justice for the families of murder victims. It is agony, insulting and unacceptable.

The Arizona Republic publishes the OpEd, "Sentence must be fair," by Larry A. Hammond.  He's chair of the Arizona Justice Project.

Across the country, the death penalty remains very much in the news. Connecticut has just become the 17th state to abolish it. California soon will see a statewide referendum on this issue.

In Arizona we have seen no evident appetite to end capital punishment. To the contrary, the pace of executions seems to be increasing. But underlying what is happening here and what we can see across the country is a growing concern about whether we as a society are prepared to assure that the indigent accused are provided with competent counsel and the resources for an appropriate legal defense.

That concern is well worth examining. Why? Almost every politician, judge and commentator seems to agree that it is essential to provide good counsel at every stage of death-penalty cases. Nobody wants a system where those who are executed turn out to be those who did not have decent, competent lawyers.

Unfortunately, that is the system we have in Arizona, and it is this reality that has caused decision makers in other states to abandon the death penalty. We cannot pretend that those on death row have had and have today the lawyers we all believe they should have. The United States Supreme Court this spring has taken at least one step to do something about this. In a case from Arizona, Martinez vs. Ryan, the Court ruled by a 7-2 majority not to close the federal courthouse door to claims that a convicted defendant was denied effective assistance. This is good news in Maricopa County.

Earlier coverage from Arizona, California, and Nebraska begins at the links.

Bad Blood at the Dallas County Crime Lab

That's the title of Amanda Grimes report in the September issue of D Magazine.  It's subtitled, "Attention, all convicted rapists and murderers. Start filing your appeals now.."  Here's an excerpt from the introduction:

No matter how easy it looks on prime-time television, putting bad guys in jail isn’t as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot messier than that.

It’s so messy that, six years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.

The Dallas County Crime Lab—more formally called the Southwestern Institute of Forensic Sciences, or SWIFS—has yet to come under the commission’s microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas’ crime lab ever since. He is speaking openly for the first time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back five years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

“People’s liberties are at stake here,” Nulf says.

The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime lab is doing fine because it says it is.

Related posts are in the crime lab and forensics indexes.

The Latest on North Carolina's Crime Lab Scandal

"Strange lab 'secret'," is today's Raleigh News & Observer editorial.

The wheels truly must be coming off at Attorney General Roy Cooper's office. Public confidence already was on the rocks after a string of embarrassing disclosures about the State Bureau of Investigation's crime lab and its "creative" handling of evidence. Now it turns out that the man Cooper chose to start fixing the lab decided not to take the job after all - and Cooper apparently didn't want the public to find out.

Retired Court of Appeals Chief Judge Gerald Arnold certainly was entitled to change his mind before stepping into the post of interim crime lab director, as awkward as that was. When Cooper announced the appointment on Sept. 8, there was nothing to suggest that Arnold wasn't fully committed.

Yet on Sept. 16, as The N&O reported yesterday, Arnold formally notified new SBI director Greg McLeod to count him out because of all the time the lab position would take. That's strange enough - surely Arnold must have understood that he'd be busy. But what's even weirder is that Cooper's office treated Arnold's change of heart as something the public had no reason to know about.

The N&O inquired about Arnold's status on Sept. 24 and got the old "we'll check and get back to you" brush-off. There was no response until Arnold himself confirmed that interim SBI crime lab director would not become the latest entry on his resume.

Today's Carrboro Citizen carries the OpEd, "Time to commute N.C.’s death sentences," by Frank R. Baumgartner, UNC professor and co-author of The Decline of the Death Penalty and the Discovery of Innocence.

Across North Carolina, newspapers, defense lawyers, crime victims and even prosecutors are calling for a moratorium on the death penalty.

In light of revelations that the State Bureau of Investigation offered false or misleading evidence in hundreds of cases, a moratorium isn’t enough. All 159 of North Carolina’s death row inmates should have their sentences commuted to life in prison without parole.
It’s the only solution that makes sense in the wake of a scandal so messy it may never be fully sorted out.

It’s also a solution that would save North Carolina millions of dollars that could go to schools, social services – or cleaning up the SBI’s crime lab.

A study this year found that even though North Carolina has not executed a prisoner since 2006, the death penalty costs the state $11 million a year. Analyzing the role of the crime lab in each of these cases will likely add tens of millions of dollars to this cost and few people currently on death row will ever be executed.
Festifal 2010

Even if we don’t care about money, we should care about the truth.
A new state-commissioned audit shows that the SBI offered flawed evidence in seven capital cases. Three of those defendants have already been executed and another four remain on death row.

Now, North Carolina must grapple with the possibility that innocent men were executed because of false evidence from state investigators. It is hard to imagine anything more abhorrent in a justice-seeking society.

And those seven cases are likely only the beginning.

The News & Observer carries the news article, "SBI looking to private crime lab," by Mandy Locke and Joseph Neff.

The State Bureau of Investigation, with the credibility of its crime lab under fire, is starting work to sanction a private crime lab to analyze DNA evidence in criminal cases.

The move comes amid requests from prosecutors and defense lawyers to use private labs to do the work traditionally performed by the SBI. With approval from the SBI and a court order from a judge, private labs such as LabCorp could perform analysis that the SBI can then enter into a national DNA database.

SBI lab officials have received one such court order from Durham and have started approving LabCorp to perform the work. It is possible, but not certain, that they will use LabCorp on other cases, said spokeswoman Noelle Talley.

The SBI has been under fire since February, when three judges exonerated Greg Taylor, in part because an SBI analyst withheld test results indicating a substance on Taylor's SUV wasn't blood. The News & Observer reported last month that some SBI analysts push beyond the bounds of accepted science to deliver results pleasing to prosecutors.

An audit commissioned by Attorney General Roy Cooper found a longtime practice in the blood analysis unit of withholding results of more sophisticated blood tests in reports prepared for prosecutors.

A legislative committee is keeping tabs on problems and progress at the SBI. The group met Thursday to hear about crime lab accreditation and about national reforms in the field of forensic science.

Gary Robertson writes the AP report, "Lawmaker: NC lab still needs testing improvements," also via the News & Observer.

North Carolina's embattled crime laboratory appears better equipped to ensure test results for DNA, blood and other human material are accurate and complete compared to the findings of past work in an independent report, a key legislator said Thursday.

Rep. Rick Glazier, D-Cumberland, said presentations by State Bureau of Investigation lab officials to a legislative panel examining problems uncovered with how blood tests were reported over a 16-year period ending in 2003, gives him "a better certainty and confidence level" in the work going on today. The report found lab analysts didn't always include all blood test results on lab reports provided to courts, and it recommended local prosecutors re-examine 190 cases that were omitted or unclear and someone was arrested.

But he's not yet persuaded all rank-and-file lab workers have been trained well enough or use streamlined terminology to ensure the full science is presented to both defense attorneys and prosecutors.

"Clearly we're looking at a time frame that was different," said Glazier, the panel's co-chairman. "There are changes in protocol, there are changes in the number of requirements. Whether those changes have been fully institutionalized remains another question that we've got to have answered."

Earlier coverage begins with this post.  As always with North Carolina issues, thanks to Gerda Stein for forwarding.

Watching the Crime Labs

The News & Observer of Raleigh, NC reports, "Forensic groups' ties raise concerns," by Joseph Neff and Mandy Locke.  Here's an extended excerpt:

In a humble commercial strip mall in Johnston County, the nation's forensic science power players have built an empire.

In a single office, callers can reach the nation's largest accreditation group for forensic laboratories - and a for-profit consulting agency that coaches those labs on how to pass accreditation. Callers can also contact a trade association for forensic lab directors and the chief national forensic science lobbying group that helps shape the future of the field.

For some of the groups, correspondence is directed to suites that don't exist, but the mail ends up in the same office: headquarters for ASCLD-LAB, the accreditation group under scrutiny for missing problems at the State Bureau of Investigation.

The coziness of ASCLD-LAB and its affiliates is raising the question whether the groups have enough distance to be true to science, not to each other.

"I think it's questionable that they have all these organizations that claim to be separate running out of what appears to be the same office," said Amy Driver, a forensic scientist in Washington, D.C., who blogged about the issue this month. Driver, a Raleigh native, said she doesn't understand who is profiting and exactly who is involved in the groups.

Operations at 139 Technology Drive in Garner are claiming headlines in North Carolina, too, in the wake of problems at the SBI.

The News & Observer has reported that some SBI analysts and agents pushed past the bounds of accepted science to offer results pleasing to prosecutors. An audit commissioned by Attorney General Roy Cooper highlighted 229 cases from 1987 to 2003 tainted by analysts withholding results of more sophisticated blood tests in reports for prosecutors.

ASCLD-LAB certified the work of the SBI lab starting in 1988. It missed many problems in the blood analysis unit. Two leaders of the accreditation agency are retired SBI agents who had key management roles at the lab at the time problems persisted.

Some legislators suggested this month that the SBI shop for another accreditation group.

Coverage of the North Carolina crime lab scandal starts here.  Thanks to Gerda Stein for distributing.

Continued Coverage From North Carolina

Let's begin with two news items, before turning to commentary on the SBI lab scandal and what it means for capital punishment in North Carolina.

The AP brief is, "Moratorium supported for cases tainted by SBI crime lab," via the Charlotte Observer.

The president of a district attorneys' group in North Carolina says he supports a moratorium on the execution of any death-row prisoners whose cases include evidence from the State Bureau of Investigations crime lab.

The News & Observer of Raleigh reported that Seth Edwards says he still has faith in the state's judicial system but he knows others might have doubts after a scathing review of the state-run crime lab.

The Charlotte Observer also has, "Call for a halt rises," written by Michael Hewlett.

With questions continuing to surface about the SBI crime lab's credibility, local defense attorneys say that there should be a moratorium on executions in North Carolina.

"The criminal-justice system can fix all errors as they discover them, except for one -- when someone has been executed," said David Freedman, a criminal-defense attorney in Winston-Salem. "These are not fanciful doubts. The more people dig, they more they find out."

Over the past few weeks, the State Bureau of Investigation's crime lab has come under intensive scrutiny, first from a series of articles in the Raleigh News & Observer and then from a government-ordered audit done by two former FBI officials. The audit said that SBI agents helped prosecutors obtain convictions over a 16-year period, mostly by misrepresenting blood evidence and keeping critical notes from defense attorneys. The officials found 190 cases that should be examined.

Yesterday, Seth Edwards, the president of the N.C. Conference of District Attorneys, said that the four death-row cases included in the audit should get further scrutiny, but added that no other death-row cases should be reviewed.

He has also called for a comprehensive audit of the crime lab.

Today's News & Observer carries the editorial, "Death on hold."

With the credibility of the State Bureau of Investigation's crime lab in serious doubt, an unusual call for a moratorium on the use of the death penalty comes from Seth Edwards of Washington, current president of the N.C. Conference of District Attorneys. His words should be heeded.

That Edwards would cite the problems with the SBI lab (revealed in a News & Observer series and in an audit of cases involving blood analysis done for Attorney General Roy Cooper) as a reason not to execute, for now, any death-row inmates who were up against SBI evidence in their trials should be a statement of the obvious. But at least he said it.

There are other problems as well, with some minority prisoners protesting sentences they say were influenced by racial bias. And indeed, statistics showing that blacks have been disproportionately excluded from juries in capital cases and that a substantial percentage of death-row inmates were tried by all- or mostly white juries do raise questions.

And:

Trying to proceed with the ultimate end to the judicial process in such cases would be like trying to fly a kite in a hurricane.

"The last man to die," is the Greensboro Record-News editorial.

The last person executed in North Carolina was Samuel Flippen, put to death Aug. 18, 2006, for the murder of his 2-year-old stepdaughter.

It's possible Flippen forever will remain the last person executed in North Carolina. The state should make sure of that.

Capital punishment is on its last legs here. The only question is whether a handful of condemned prisoners will follow Flippen before the end or whether the practice officially will be brought to a halt.

A trend away from death sentences has been apparent for years. In 1999, 25 prisoners were placed on death row. Sixteen were added in 2000. The numbers have dropped to just two in 2009 and two more so far this year. Juries and even prosecutors by and large prefer sentences of life without parole.

That's not a soft-on-crime penalty. Locking someone up for the rest of his natural life -- often 50 years or more -- not only protects the public, it allows for errors to be discovered and corrected. Execution does not.

Many mistakes have been exposed lately. Not only have innocent men been released from prison when new evidence has surfaced, but recent reports reveal that shoddy and dishonest work was turned out for years by the State Bureau of Investigation's crime lab. In some cases, false evidence led to wrongful convictions -- and possibly executions. On Monday, the president of the N.C. Conference of District Attorneys conceded that executions in affected cases should stop pending further reviews of evidence.

A moratorium has been in effect anyway, for reasons that include opposition by the North Carolina Medical Society to lethal-injection protocols.

Another concern is inconsistency. Some death-row inmates are there for crimes less heinous than those committed by people who were given life sentences.

And:

Gov. Bev Perdue should stop further executions and, when it returns to Raleigh next year, the General Assembly should do away with an outdated death penalty.

Leave Samuel Flippen with his dubious distinction.

Charlotte Observer columnist Mark Washburn's latest is, "If it takes cheating, it's not justice."

You don't want me on your jury.

I should probably know better, but deep in my noodle is the belief that if the cops pick you up, the grand jury indicts you, the prosecutor builds a case and you wind up in court, you were probably up to something.

Introduce some scientist with a bulging forehead to testify that - after parsing evidence with magnifier and isotope - you were definitely up to something, and I'm about ready to vote.

Morons like me fill jury boxes across the land, and we're experts on crime. We watch forensic whodunits, common as car commercials on TV.

We know there is no higher calling than crime-scene analyst, those heroic - and occasionally buxom - nerds who can coax a blueprint for murder from a single strand of hair.

We know how they can drop a fingernail in an infallible machine and then, chonka-chonka-chonka, out spews an instant report pointing the finger at an unlikely suspect, who winds up in handcuffs and ultimately before the jury.

That's why this scandal in the state crime lab is a good thing.

It reminds us that there can be crooks on both sides of the law.

And:

No graver duty does our government perform than taking the liberty of a citizen, and there is no graver injustice than taking it from one who is innocent.

It doesn't matter that it might have been done for the best of intentions - that investigators need a little help from the referee to put away a defendant they are convinced is guilty.

Nor does it matter that it might have been done out of simple sloppiness.

Earlier coverage begins with this post.  Thanks to Gerda Stein for forwarding North Carolina coverage.

The Latest From North Carolina

Today's News & Observer of Raleigh carries the editorial, "DAs on board."

Even though a News & Observer series and a shocking audit of cases handled by the State Bureau of Investigation's crime lab have demonstrated that SBI analysts have long seen themselves as members of the prosecution "team" in court, those prosecutors recognize that tainted evidence undermines the entire system of justice. Therefore, the N.C. Conference of District Attorneys now has called for an independent audit of all parts of the SBI's forensic lab, which finds its credibility in tatters.

There should be no question of, or resistance to, such an audit. Already, more than 200 cases have been identified where SBI blood analysts didn't tell the whole story. The SBI lab's treatment of ballistics evidence also has been called into question.

And:

The manipulation of lab tests results naturally doesn't mean that in all the prosecutions involving tainted SBI lab work the defendants were innocent. But problematic evidence, before or after the fact, does damage a prosecutor's case. It also can affect plea bargains and sentences.

No wonder, then, that the state conference of district attorneys has in effect linked arms with defense attorneys and some judges who have questioned the SBI's lab work in the past.

The justifiable controversy that has arisen because of the mess in the SBI lab and the testimony based on that mess isn't in the end just about whether the lab is functioning as it should. It's about the integrity of the agency and the people who work in this critical area of investigative science. (And yes, it's unfortunate that those who are competent and do not see themselves as arms of the prosecution are hurt by recent reports, but they are.)

It is about the need to draw a line between prosecutors and laboratory science so that the first does not control the second.

Anne Blythe writes, "Put off some executions, DA agrees," also in today's News & Observer.

The president of the N.C. Conference of District Attorneys said Monday that he supported a moratorium on the execution of any death-row inmates whose cases include evidence from the State Bureau of Investigations crime labs.

Seth Edwards, head of the organization of prosecutors and a district attorney in Eastern North Carolina, said he still had faith in the North Carolina justice system. But he acknowledged that some might have doubts after a recent blistering audit of the SBI's blood analysis unit highlighted a common practice of withholding test results that might have helped defendants.

"Personally, I do feel like from a justice standpoint, we need to make sure the issues are resolved in the SBI crime lab," Edwards said. "I just feel like the public right now is skeptical."

Edwards comments came the same day that defense lawyers, scholars, a rape victim and two men who served time in prison for crimes they did not commit came together in Raleigh to talk about problems plaguing the justice system.

By highlighting the findings of the SBI crime lab audit and recent studies showing racial disparities in jury selection and sentencing in capital cases, the advocates for the wrongly convicted suggested a sweeping conversation about the role of race in the justice system and an overhaul of the SBI system.

The group announced that its members had joined the legal battle of Melvin Lee White, one of 152 death row inmates using the state's fledgling Racial Justice Act to challenge his sentence.

The year-old law, one of only two in the country, allows judges to consider statistics and anecdotal trends of racial disparities in death sentences, as well as testimony, to change a death sentence to life in prison without parole.

The editorial touched on the case of Derrick Allen, the latest case of injustice exposed by the News & Observer. "'Bloody' evidence put man in prison 12 years," by J. Andrew Curliss, is via sister-paper the Charlotte Observer.

In the summer of 1999, prosecutors were seeking the death penalty for high school dropout Derrick Michael Allen when they switched course and offered him a deal.

In exchange for guilty pleas to the murder and sexual assault of his girlfriend's 2-year-old daughter, they would spare his life but ensure he was in prison into his 60s.

The prosecutors trumpeted two powerful pieces of evidence: a pair of bloodstained panties and bloody pajamas, certified as such in a lab report by the State Bureau of Investigation that supported their theory that the girl was violently assaulted.

But records show that the SBI performed crucial, confirmatory tests on the clothing three times, and all tests were negative for blood.

A review of the case against Allen, which was built in large part on the work of the SBI, is a window into one of more than 200 criminal files across North Carolina in which the state agency's blood analysis work is in doubt.

A blistering audit made public Aug. 18 says that SBI lab agents misstated or overstated blood test results from 1987 until 2003, when their methods changed with new testing procedures.

Further, a series of reports in The News & Observer in early August showed that lab analysts have bent rules and pushed past the bounds of accepted science to deliver reports that bolstered prosecutors' cases.

The Rocky Mount Telegram combines a number of AP items under the headline, "Crime lab."

Misoncduct at the North Carolina SBI Forensic Lab

"Review finds flawed NC cases, including executions," is the AP report written by  Martha Waggoner.  It's via Google News.  Here's an extended excerpt:

Analysts at North Carolina's crime lab omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions and another where two men were imprisoned for murdering Michael Jordan's father, according to a scathing review released Wednesday.

The government-ordered inquest by two former FBI officials found that agents of the State Bureau of Investigation repeatedly aided prosecutors in obtaining convictions over a 16-year period, mostly by misrepresenting blood evidence and keeping critical notes from defense attorneys.

The review of blood evidence in cases from 1987 to 2003 by two former assistant directors of the Federal Bureau of Investigation calls for a thorough examination of 190 criminal cases, stating information that could have helped defendants was sometimes misrepresented or withheld.

"It impacted the decisions that were made — it could have," report author Chris Swecker said Wednesday. "Let me step back and make sure you understand: It could have resulted in situations where information that was material and favorable to the defendant was not disclosed."

The report does not conclude that innocent people were convicted, noting the evidence wasn't always used at trials and defendants may have admitted to crimes. But it states prosecutors and defense lawyers need to check whether tainted lab reports helped lead to confessions or pleas.

Attorney General Roy Cooper ordered the review in March after an SBI agent testified the crime lab once had a policy of excluding complete blood test results from reports offered to defense lawyers before trials. The existence of the policy was later confirmed by a former SBI director. Agent Duane Deaver's testimony led to the exoneration of a murder convict imprisoned nearly 17 years.

Cooper said Wednesday that he will send the cases cited in the report back to the counties where they were tried for review. "This report is troubling. It describes a practice that should have been unacceptable then and is unacceptable now," he said during a news conference.

The review found 230 cases in which eight SBI analysts filed reports that, at best, were incomplete. Of those, 190 resulted in criminal charges. The report says the lab may have violated federal and state laws mandating that evidence favorable to defendants be shared with their lawyers. It also bolsters defense attorneys' long-held argument that the lab is in the pocket of law enforcement.

Besides the executions, the report urged a closer look at the cases of four people on death row and one whose death sentence was commuted to life.

Today's News & Observer carries, "Under fire, SBI blood analyst suspended."  It's reported by Mandy Locke, Joseph Neff and J. Andrew Curliss.

Duane Deaver, a veteran SBI analyst at the center of a growing controversy on how the agency reported blood evidence, has been suspended pending further investigation.

The move came Wednesday afternoon, hours after Attorney General Roy Cooper revealed an audit of the crime lab's serology unit calling into question convictions in 230 criminal cases, involving 269 people.

Deaver performed the work in the five cases an independent auditor deemed most troubling.

Deaver's work - and the practices of the SBI - came under fire in February when Greg Taylor, a Wake County man, was exonerated after 17 years in prison. Deaver withheld results of more sophisticated blood tests that yielded negative results. He reported to prosecutors that Taylor's SUV gave chemical indications for the presence of blood.

Deaver testified in February that supervisors told him to report his findings that way. According to the audit released Wednesday, the practice was widespread. Eight analysts completed their reports in a similar fashion.

"This is a damning indictment of the entire serology section," said Mary Pollard, executive director of Prisoner Legal Services. Her agency will begin reviewing the cases of 80 defendants who are currently in prison. "It is absolutely horrifying."

The criminal convictions or sentences of three people who have since been executed in North Carolina, and four more cases in which the defendants are now on death row, are may be in doubt because of flawed reports.

Chris Swecker, a former FBI agent who audited serology work from 1987 to 2003 said in the report that the questionable work is the result of "poorly crafted policy; lack of objectivity; the absence of clear report writing guidance; inattention to reporting methods that left too much discretion to the individual Analyst; lack of transparency; and ineffective management and oversight..."

According to the review, the cases involved SBI lab reports that were overstated, misleading or omitted important information about negative test results that would have been favorable to the defendants.

The SBI's lab work is often powerful evidence in criminal cases, shaping decisions at the heart of a defense that include decisions about plea bargaining or how to cross examine witnesses.

The SBI has followed more updated procedures on blood analysis since 2003, and more recent work is not under scrutiny. "The tests that are examined in the bulk of this report are no longer in use," the agents wrote.

The serology unit has been under intense scrutiny since February when, in the case of Taylor, it was shown that SBI agent Duane Deaver reported to prosecutors that the fender of Taylor's SUV gave chemical indications for the presence of blood.

But according to lab notes discovered in 2009, Deaver had performed more specific tests, which registered negative results for the presence of blood. He never mentioned those results or the additional tests; at Taylor's hearing in February, Deaver testified that his superiors taught him to write his reports like that.

The new report says that Deaver gave "inaccurate" testimony before the Innocence Commission in the hearings that resulted in Taylor's exoneration when he testified that he was following policies. There were no such policies then, the report says, though it was the SBI's practice at the time to omit negative results in some cases. It became the agency's actual policy in 1997.

One of the defendants who has been executed is Desmond Keith Carter, who had confessed to a March 1992 murder. The report says Deaver in that case "confirmed the presence of blood despite a negative confirmatory test." The questionable evidence wasn't introduced at the trial, according to the report.

Preliminary, or presumptive, blood tests can give false reads; those tests often give positive results for substances such as metals, plants and animal matter. More sensitive tests are seen as confirmatory.

Swecker and Wolf examined more than 15,000 old cases involving serology work to identify the cases similar to the Taylor case.

The former agents said they could not conclude that each case has a wrongful conviction, but said each will need to be reviewed by defendants, prosecutors and, in some cases, the courts.

The Swecker-Wolf Independent Review of the SBI Forensic Lab is in Adobe .pdf format.

There are more news articles and editorials on the SBI Lab scandal, and I'll be updating with an additional post this afternoon.

Arson, Todd Willingham, & the FSC

Editorials in the Austin American-Statesman and Houston Chronicle this morning take on the Forensic Science Commission following its meeting last week.

"Science - like death - has its limits," is the Statesman editorial.

It is a finding that is at once exculpatory of individuals and damning of a system.

In a preliminary determination reached Friday, the Texas Forensic Science Commission said arson investigators used flawed — or at least now-outdated — science in their review of a 1991 Corsicana fire that killed three children and led to capital murder charges against Cameron Todd Willingham, their father.

Williamson County District Attorney John Bradley, the commission chairman, said at the meeting that investigators cannot be second-guessed for adhering to standards in place at the time of the crime.

"We should hold people accountable based on standards that existed when they were working on these things," he said.

It's hard to argue with that, just as it's hard to argue with Bradley's point that arson science — like much of forensic science — has made tremendous advances in recent years. But the updated arson science is of no use to Willingham because the state killed him in 2004.

And:

"There is always going to be an imperfect system," he said. "It doesn't matter if you are building a car or writing a newspaper article or prosecuting people. All you can do is apply the best methods you have available at the time."

Cars can be recalled. Newspaper articles can be corrected or subjected to lawsuit. Execution, however, carries a certain finality.

Bradley said death penalty foes operate on the "false premise ... (that) if you can't build a perfect system, you should abandon the criminal justice system ... ."

We don't think anybody is arguing that. All we seek is a system that offers ready remedy for inherent imperfection.

Bradley said the current system gives "every possible opportunity" for those charged with crimes to defend themselves and those convicted of crimes to use new evidence to establish their innocence.

But, as he also told us, science evolves. Please think about that as you mull the death penalty.

The Chronicle editorial is, "Questions of innocence."

In two very different venues in Houston last week, progress was made in addressing an endemic stain on Texas justice: the wrongful conviction of innocent people.

In an emotional courtroom scene, a teary-eyed state District Judge Joan Campbell announced she would recommend the release of 39-year-old Allen Wayne Porter, who has served 19 years of a life sentence in state prison for participation in a 1990 robbery-rape in southwest Houston.

I'll have more on the Porter exoneration in a subsequent post.  This, also from the editorial:

Ironically, a day later another district attorney was in Houston leading an effort to undercut the Texas Forensic Science Commission's ability to determine the validity of arson evidence that led to the execution of a Corsicana man, Cameron Todd Willingham. A national arson expert who consulted with the commission, Craig Beyler, concluded that the evidence was flawed and investigators should have known that.

The Innocence Project estimates that more than 600 inmates in Texas prisons were convicted using the same kind of questionable evidence.

Williamson County District Attorney John Bradley was appointed chairman of the commission by Gov. Rick Perry, who had refused a last-minute stay of execution request by Willingham. Bradley was part of a shake-up of the commission membership by the governor shortly before a scheduled presentation by Beyler to the group. Bradley canceled the meeting. Critics charged that Perry used Bradley to ice the probe and prevent political embarrassment to the governor before the November election.

Before last week's meeting, Bradley had issued a memo that if adopted would have restricted the commission's jurisdiction to evidence processed in state-accredited crime labs. That would have effectively taken the Willingham matter out of consideration.

Finally:

Most significantly, the commission voted 8-0 to reject Bradley's memo. Chronicle columnist Rick Casey called the vote a defining moment for the commission in asserting its independence and authority.

It was a good week in Houston for Texas justice. One DA did her job and helped free an innocent man, while another was prevented from sabotaging the commission created by the state Legislature to improve Lone Star forensic science.

Also today, Rick Casey takes another post-meeting look at the FSC and arson.  It's titled, "Of science, witches and arson trials."  His earlier column, referenced in the Chronicle editorial, is noted here.  It's a must-read:

According to the scientific standards of the time, the test for determining whether a woman was a witch was solid enough to justify her execution.

The test: She was shackled with weights sufficient to keep her down and thrown into a body of water. If she didn't bob to the surface, she was innocent.

If she did rise up gasping, she was obviously a witch and was hanged.

Science progresses.

Members of the Texas Forensic Science Commission disclosed they are wrestling with the issue of scientific progress in their investigation of the case of Todd Willingham, the Corsicana man executed for murdering his two daughters and a stepdaughter by arson.

Members said they unanimously agree with experts who have found that testimony given by a Corsicana arson investigator and by an expert from the State Fire Marshal's Office is contradicted by today's science.

Ironically, that science is codified in an extensive document put out within months of Willingham's 1992 trial. Assembled by a group of highly regarded arson scientists for the National Fire Protection Association, NFPA 921 asserts that such things as burn patterns on floors and in glass that formed the basis of testimony in the Willingham case could as easily have been produced in an accidental fire.

But NFPA 921 was not widely accepted for years, and the panel investigating the Willingham case agreed it could not find the two arson experts to have been guilty of negligence or misconduct for not following the report's recommendations. The members decided to further investigate the standards in Texas at the time of the investigation and the trial.

But attorney Barry Scheck, director of the Innocence Project which filed the Willingham complaint triggering the commission investigation, rose and, over the objections of commission Chairman John Bradley, reminded the commission that two years ago he had raised another issue.

The state Fire Marshal's Office would be negligent if it did not familiarize itself with NFPA 921, Scheck argued.

And:

Several years ago scientists convinced the FBI that it had for years relied on bad science in identifying bullets. After an exposé by the Washington Post and 60 Minutes, it agreed to work with the Innocence Project to identify hundreds of cases where faulty testimony had been given and to alert the courts and the defendants.

Here in Texas, hundreds of men and women may be sitting in prison based on the same bad science that helped convict Willingham and Willis. Shouldn't the Fire Marshal's Office follow the lead of the FBI? I called the office twice Tuesday, but didn't get my calls returned.

I hope the Forensic Science Commission will ask them the same question.

Earlier coverage begins with this post.  All Willingham coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

More on the FBI's faulty bullet lead analysis is here and here; related posts, the forensics index.

More on Familial DNA

Natasha Singer writes, "In Fighting Crime, How Wide Should a Genetic Net Reach?" for the Saturday edition of the New York Times.

Recently, forensic scientists in California used a genetic analysis procedure called “familial searching” or “kinship searching” to help the police identify a suspect in the “Grim Sleeper” serial murder case — and they did so by using a DNA sample collected for another purpose from the suspect’s own son. The Los Angeles police later arrested the father, Lonnie David Franklin Jr., who has since been charged with 10 counts of murder.

Forensic scientists routinely use a standard search method to try to identify a suspect who has left bits of DNA at a crime scene. They use a computer analysis to compare DNA from the scene to DNA profiles of known convicted offenders stored in a state database. When the profiles match exactly, genetic analysts call it a “cold hit.”

But the Grim Sleeper case (so named because of an apparent hiatus in a killing spree that dates back to 1985) is unusual because, after regular searches came up empty, officials at California’s Bureau of Forensic Services decided to use familial searching, a more controversial technique.

The procedure involved widening the genetic net to include convicted felons whom they knew had not committed the murders but whose DNA profiles were partial matches to the suspect — similar enough to the suspect’s that they might be related to him.

Lo and behold, Mr. Franklin’s son had recently been convicted on a felony weapons charge, and his DNA offered a partial match to crime-scene DNA. And for the first time in California, that kind of one-degree-of-separation search ultimately led to an arrest.

Although Britain has been using the technique for years, familial searching in the United States is the Botox of criminal investigation. Early-adopter states like California and Colorado have tried it, like it and plan, where appropriate, to use it again. The wait-and-see states are holding out while they consider the potential side effects and longer-term social ramifications.

Some critics have contended that the technique might lead to an abuse of the system or, over time, to the disproportionate arrest of African-American males because they have a higher incarceration rate than men in other ethnic groups.

But the immediate concern is that kinship searches could produce a long list of convicted felons who are only partial matches to an unidentified suspect. The risk is that the police, while looking for a suspect’s family members, might intrude on people who have not committed a crime. Some lawyers call it guilt by genetic association.

“Our concern is that the initial comparison that generates a list of partial matches does not narrow it down to a single suspect’s likely family member,” says Peter Bibring, a lawyer with the American Civil Liberties Union in Southern California. “It’s a list and, at that point, the invasion of privacy depends on how the police go about their business.”

And:

California, under its attorney general, Jerry Brown, has developed a precise set of guidelines

that limit the use of familial searching. A committee made up of forensic and legal experts must meet at each stage of the process to discuss the latest findings and decide whether the search should continue to the next step.

The familial search in the Grim Sleeper case began at a lab of the state’s Bureau of Forensic Services in Richmond, Calif., where forensic scientists came up with a list of 200 partial DNA matches from a database that contains 1.3 million profiles.

To narrow down their list of 200, they analyzed the Y chromosome, the male sex-determining chromosome that is passed from father to son. One person, a man who had recently been convicted on a felony weapons charge, was an exact match to the Y chromosome of crime-scene DNA. Next, using corroborating information like birth certificates and Google mapping, researchers figured out that the matching person’s father would be a viable suspect.

Now, the committee had to vote on whether to give that name to police detectives.

“We would all discuss, ‘Are we going to hand over that name?’ ” said Jill Spriggs, chief of the Bureau of Forensic Services. “In the Grim Sleeper case, we all voted to hand it over.”

WITH this one case, California has become the model in the United States for how to conduct a kinship search. But the model is based on guidelines, not laws.

The Daily News of Van Nuys carries the OpEd, "How familial DNA has become a key to building criminal cases.  It's written by Los Angeles County District Attorney Steve Cooley, the Republican nominee for Attorney General of California.

To fully grasp the extent of these achievements requires an examination of the relatively brief history of the use of "genetic fingerprinting" in the criminal justice system.

DNA evidence was first used in 1986 in Leicester, England, when detectives were unable to identify a suspect in the savage rape and murder of two girls. Police took blood samples from more than 4,500 males and compared them to biological evidence recovered from the crime scene. Based on this novel scientific technique, a popular 27-year-old baker was arrested and convicted of those crimes.

In 1989, then-Attorney General John Van de Kamp declared that DNA "was ready to go to court."

In the first criminal case in California, a Ventura County judge found DNA evidence to be compelling and convicted the defendant, Lynda Axell, of murder in a bench trial.

About the same time, Los Angeles County prosecutors were poised to introduce DNA evidence in the courtroom. After months of legal and scientific wrangling over the admissibility of this new scientific evidence, a judge ruled that DNA evidence had widespread acceptance by the scientific community and could be used at trial. That evidence was presented to a jury and, in March 1990, Henry Wilds was convicted of multiple rapes.

Over the next decade, DNA was increasingly used in criminal investigations and prosecutions.

In 1998, the state Legislature enacted Penal Code Section 296, establishing the first statewide database of DNA samples. Though limited to collections from those convicted of specific violent felonies, it marked another major achievement.

With the increased reliance on DNA evidence to solve cold cases and put away killers, Bruce Harrington launched a statewide campaign in support of Proposition 69, The DNA Fingerprint, Unsolved Crime and Innocence Protection Act.

Harrington hoped the creation of an all-felon database would increase the chances that he and other family members of murder victims and rape survivors might some day get justice.

Earlier coverage of familial DNA begins with this post.

Rick Casey Revisits the Forensic Science Commission

"Science defeats DA 8-0," is the title of his column in today's Houston Chronicle.

Here's the triumphant score from Friday's Texas Forensic Science Commission:

Science 8, District Attorney 0.

The battle was for the scientific soul of the commission. Chairman and Williamson County District Attorney John Bradley had distributed a "memorandum on jurisdiction" that concluded the Legislature authorized the commission to investigate only complaints involving crime labs accredited by the Department of Public Safety.

This would exclude the controversial case of Cameron Todd Willingham, who was executed for the arson murder of his two young children based on allegedly bad science.

In other words, Bradley was asking the members of the commission, seven of whom are scientists, to give up most of their power to investigate the questionable use of police science in Texas.

It would be a severe blow to one of the few statewide efforts in the United States to address what the National Academy of Sciences last year reported was an epidemic of bad police science.

The victory for science was so overwhelming that even Bradley voted against adopting his own "memorandum."

And:

He said the interpretation expressed in the memorandum would lead to "absurd consequences" that the courts would not uphold.

Then he moved that "we not adopt the memorandum," which passed 8-0.

By this time Bradley had almost comically backed off. He couldn't quite bring himself to confess to having written the memo but did admit that "I helped coordinate and was the finger that hit the keyboard the most times."

He repeated several times that the memo was not intended to be binding but was "merely for reference," whatever that means.

Bradley's retreat may have been partly forced by statements to the commission by two senators, including one who sponsored the bill establishing the commission, and four members of the House committee with jurisdiction over it that his memo was entirely wrong.

Later in the meeting Bradley said he and another member of the four-member panel screening the high-profile case Willingham case had found the argument that it didn't fall under the commission's jurisdiction "compelling and interesting." But he also said he had publicly committed to completing that investigation and would do so.

(Note: Bradley chairs the Willingham panel but did not appoint himself as I reported Friday. He was elected by other members in closed session.)

The Willingham case survives, but it is only part of the importance of Friday's meeting. In what was literally a defining moment, the commissioners decided it is their job to address the broad issues of forensic science, not just what happens in a limited number of labs.

News coverage of the Forensic Science Commission meeting is at this post.  All Willingham coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Todd Willingham and the Forensice Science Commission

As it has done before, the Innocence Project is webcasting today's Forensic Science Commission meeting at this LINK.

"Texans wonder if they executed an innocent man," is the CNN report posted as the Forensic Science Commission meets.

A Texas state board is set Friday to revisit questions surrounding a controversial 2004 execution, with supporters of the man's family warning the panel is trying to bury its own critical review of the case.

Cameron Todd Willingham was executed in 2004 for a fire that killed his three daughters. Prosecutors argued that Willingham deliberately set the 1991 blaze -- but three reviews of the evidence by outside experts have found the fire should not have been ruled arson.

The last of those reports was ordered by the Texas Forensic Sciences Commission, which has been looking into Willingham's execution since 2008. But a September 2009 shake-up by Texas Gov. Rick Perry has kept that panel from reviewing the report, and the commission's new chairman has ordered a review of its operating rules. Critics say that may kill the probe.

"They are attempting permanently to keep the investigation from continuing and moving on, and I do believe it's because they don't like the direction the evidence is leading," Willingham's cousin, Pat Cox, said Thursday.

At the Texas Tribune, Morgan Smith writes, "Forensic Science Commission Narrowing Its Jurisdiction?"

A memo from the Texas Forensic Science Commission circulated in advance of tomorrow’s meeting indicates the agency may believe it has no authority to consider the Cameron Todd Willingham complaint.

The document interprets the Commission’s enacting statute as limiting its jurisdiction to laboratories accredited by the Department of Public Safety. That could prevent it from taking up Willingham's case, which hinges on allegedly faulty testimony of experts at trial, not analysis conducted in a laboratory. Willingham was convicted of the 1991 arson deaths of his daughters and was executed in 2004.

The memo is unsigned, though it states that it “has been drafted, reviewed, and edited through the combined efforts of counsel for the Attorney General’s Office, the Office of Court Administration and the Department of Public Safety, along with the two members of the FSC who are lawyers.” (Those lawyers are Commission chairman John Bradley, the Williamson County District Attorney, and Fort Worth criminal defense lawyer Lance Evans. Both are on the subcommittee charged with reviewing the Willingham complaint.)

The sponsor of the bill that created the Commission, state Sen. Juan "Chuy" Hinojosa, D-McAllen, issued an open letter to the Commission disputing that interpretation, saying the agency’s scope “includes all forensic science analysis and procedures, which help the Commission identify best practices and eliminate the state’s use of ‘junk science.

And:

Update: John Bradley has just addressed the jurisdictional memo at the meeting. Bradley said the memo is a "legal description, not a legal conclusion" and was supposed to be a reference document for members, who are free to "come up with their own ideas as to how they should apply them." 

"This memo was not intended to stop [the Willingham] investigation" he said, though "certainly some of the issues that were raised in the memo could question whether the commission has jurisdiction over the Willingham case." He added that "whatever hindsight we might have" about those issues would not apply retroactively to the cases they've already decided to take up — meaning Willingham.

Rick Casey writes, "Dousing a troublesome arson probe," in his Houston Chronicle column today.

If you see smoke coming out of the Doubletree Hotel near Bush Intercontinental Airport today it won't be caused by arson.

It will be the eruption when Texas Forensic Science Commission Chairman John Bradley tries to end an investigation into whether the testimony of arson investigators that helped lead to a man's execution for murdering his children was "junk science."

Last fall, two days before one of the nation's top arson scientists was about to appear before the commission to explain his harsh criticism of evidence used to help convict Corsicana man Cameron Todd Willingham of deliberately setting the fire that killed his young children, Gov. Rick Perry abruptly named Bradley, district attorney of Williamson County, to replace the commission's founding chairman, Austin defense attorney Sam Bassett.

The matter was of some sensitivity to the governor. He had been asked by a prominent Texas arson expert to stay Willingham's execution based on a similar critique of the arson evidence against him. Perry ignored the request.

Bradley's first act was to cancel the meeting that was to hear arson expert Craig Beyler.

Bradley would later persuade the commission of seven scientists and two lawyers, which had previously pursued its work in public sessions as a body, to assign investigations to committees that would not be subject to the Open Meetings Act and could meet in secret.

Bradley named himself to chair the Willingham investigative committee.

Now Bradley has presented the commission with a legal memorandum that would severely limit the scope of its activities and would remove its authority to investigate the Willingham case.

The memorandum is peculiar in that it is neither dated nor signed. It says it was "drafted, reviewed and edited through the combined efforts of the two members of the FSC (Bradley and Fort Worth defense attorney Lance Evans), counsel for the Attorney General's Office, the Office of Court Administration and the Department of Public Safety."

And:

Hundreds of Texas inmates sit in jail based on arson investigations, and many more throughout the nation.

Texas is the first state to seriously address the quality of these and other forensic disciplines. If Bradley gets his way today, that experiment will effectively be over.

Earlier coverage of the Willingham case begins with this post; all coverage is available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

A Yellow Light to DNA Searches

That's the title of an editorial in today's New York Times on the issue of familial DNA testing.  LINK

For nearly 25 years, a serial killer stalked South Los Angeles, murdering at least 10 people. He was caught last week through the use of a much-debated DNA technique that involves tracking down relatives of convicted criminals. The technique, known as familial searching, has significant potential as a crime-fighting tool and is likely to spread to other states now that it has passed its first successful test in this country. But there must be stringent safeguards to prevent abuse.

And:

Using a partial DNA match this way could raise all sorts of privacy and civil liberties issues if not carefully controlled. Hundreds of people could fall under suspicion simply because they are related to someone in the criminal DNA database. Because blacks and Hispanics are disproportionately represented there, a first-time black offender has a better chance of having his DNA lead to a familial match than does a first-time white offender.

These concerns are serious but should not block the use of familial searching, which has led to several successful arrests in Britain. If other states want to proceed in this area, they need to follow the example of California, which has strict requirements for the use of the technique.

Under rules set up by Attorney General Jerry Brown, familial searching cannot be used unless all other investigative leads have been exhausted. The crime must be murder or rape, and the criminal has to be an active threat to public safety — still committing crimes.

A committee of lawyers and forensic experts in the attorney general’s office evaluates all requests to do a familial search and votes on whether to proceed based on those criteria, as well as the strength of the DNA match and several other factors.

Those procedures, however, are not codified into law, and they need to be, in California and in any other state that moves in this direction. (Currently, only California and Colorado have written policies.) Another attorney general could come along and loosen the procedures to allow abusive fishing expeditions.

Greg Miller posts, "Scientists Explain How Familial DNA Testing Nabbed Alleged Serial Killer," at Science Insider.

On Friday, Science Insider spoke with two scientists involved with the DNA search, senior criminalist Steven Myers and case-work laboratory manager Gary Sims, both based at the Jan Bashinski DNA Laboratory in Richmond, California. They explained that the searches initially focus on 15 regions of DNA on 13 chromosomes. These include the 13 regions used by the Federal Bureau of Investigation's Combined DNA Index System (CODIS) and two additional regions used in California. All of these regions contain genetic stutters called short tandem repeats, in which a pattern of base pairs repeats itself over and over. The number of repeats varies from person to person, and two people who are related are likely to have the same number of repeats at more of these sites. The lab's analysis also considers how frequently a given variation occurs in the general population: two people who share a rare variation are more likely to be related than are two people who share a common one.

Sims and Myers explained that the lab's software uses this information to generate a ranked list of the convicted felons in the DNA database who are most likely to be first-order relatives—parents, children, or full siblings—of the person a DNA sample came from. (The statistics aren't strong enough to identify more distant relatives, they say.) When both individuals in question are male, the lab also looks at a similar number of short tandem repeats on the Y chromosome, which should be an exact match between fathers and sons and between full brothers.

Earlier coverage of familial DNA testing begins here.

Additional Background on Familial DNA From Slate

Georgetown Law prof Jeffrey Rosen wrote, "Genetic Surveillance for All," for Slate, in March 2009.  Here is a small excerpt from this must-read:

Last March, at an FBI conference about genetic privacy, critics of familial searches made their case to the administrators of the national, state, and local DNA databases. Partly as a result, the FBI decided not to reconfigure the national CODIS software to allow familial searches. Nevertheless, current FBI policy allows individual states to decide whether to proceed with familial searches on their own. As a result, last April, California Attorney General Jerry Brown (who is considering a run for governor) began to allow familial DNA searching in the largest state database in the country. The decision may provoke precisely the legal and political backlash that Callaghan predicted.

The California DNA database now contains approximately 1.2 million convicted people. And it's about to grow dramatically. In January, Brown announced a "major expansion" of the California database, as the state began to add the DNA of arrestees. California expects this to increase the pool of new DNA profiles from 200,000 to nearly 390,000 a year.

All of this could mean a slew of legal challenges on the horizon—not only over familial searching but also over the decision to include people who have been arrested in DNA databases at all, as 14 states and the federal government have done. In December, the European Court of Human Rights held that Britain's decision to store the DNA of unconvicted people violates European privacy guarantees—throwing the future of the British database into question.

The legal limits on family searches and DNA databases are murky, but the political implications are explosive for one big reason in particular: race. African-Americans, by several estimates, represent about 13 percent of the U.S. population but 40 percent of the people convicted of felonies every year. The CODIS database of 6.6 million now includes samples from convicted offenders. As arrestees are added to this mix, CODIS may soon grow to 50 million samples, which might be even more disproportionately African-American. Hank Greely of Stanford Law School has estimated that 17 percent of African-American citizens could be identified through familial searches, as opposed to only 4 percent of the Caucasian population. Once the implications of the racial disparity become clear, there may be a reaction against ever-more-expansive forms of DNA collection that makes the debate about racial profiling look tame.

Last month, Slate posted, "O Brother, Where Art Thou?"  It's written by Natalie Ram and Michael Seringhaus.

But however elegant these techniques may seem, we should think long and hard before allowing the effective expansion of our DNA databases to include the relatives of profiled offenders. Using partial matches—whether deliberately sought or not—is problematic for several reasons.

First, these matches may not be legal. Courts have held that convicts and arrestees have a lower expectation of privacy than ordinary citizens and that the state has a weighty interest in identifying criminals and preventing recidivism. On balance, courts have determined, these factors permit offenders' DNA profiles to be stored in CODIS. But none of these reasons justifies collecting information about offenders' kin. Directly including the DNA of innocent family members in CODIS would be unlawful under existing statutes and likely prohibited under current Fourth Amendment jurisprudence. And if actually including them in the database is prohibited, shouldn't their effective inclusion be so, too?

The police may argue that familial searching and partial matching present no Fourth Amendment problems, since nothing has actually been seized from the relatives and they have not been personally searched. In a sense, they are correct—the family members aren't actually in CODIS—but they are nonetheless "reachable" through a profiled relative. Their inclusion is virtual, a product of biological happenstance. But this end-run shouldn't satisfy lawmakers: If offenders' relatives are to be treated like offenders, there must be a good reason to single them out. There is none.

Second, partial matching and familial searching will greatly aggravate the racial inequality already embedded in offender-based DNA databases. Certain racial and ethnic populations are already overrepresented in CODIS, owing simply to the reality of crime statistics. But implicitly expanding database coverage to include relatives will grossly and unfairly amplify this bias. By applying partial matching and familial searching to a database that includes anyone ever arrested—which seems to be where the system is headed—CODIS could one day approach universal coverage for some races and not for others.

Partial matching and familial searching are clearly problematic in their own right. In practice, they are doubly worrisome because many states are quietly implementing such policies without any legislative oversight. California and Colorado are known to use familial search, and these states have at least publicly announced their new policies. But new survey results reveal that many other states also have familial-search or partial-match policies that went unannounced and were never even publicly debated. Most of these policies exist only in internal laboratory manuals, if they are written down at all. Nebraska, for instance, authorizes familial search in an internal lab manual. This policy decision evidently occurred without public discourse and has thus drawn virtually no public attention.

In fact, no state has specifically authorized familial search through legislation. Only Maryland has addressed familial search by statute—and it banned the practice. State legislators need to address these aggressive search regimes right away, both to provide guidance to state crime labs and to subject these important policies to proper legislative oversight and debate.

Moving beyond deliberate familial searching, at least 16 states have now approved the use of fortuitous partial matches in some circumstances, with a 17^th—New York—poised to join this group. (Just 11 states have so far rejected partial matching.) Most of these states have drawn a line permitting the use of partial matches while at the same time prohibiting deliberate familial searching. These states presumably seek to have it both ways, occasionally exploiting the crime-solving potential of partial matching while limiting the legal pitfalls—or perhaps the bad publicity—associated with full-on deliberate familial searches.

Coverage of the Los Angeles case that has highlighted the use of familial DNA is the previous post.

Familial DNA Used in California Case

A high-visibility case is shining a light on a controversial new DNA testing technique.

The New York Times reports, "‘Grim Sleeper’ Arrest Fans Debate on DNA Use."  It's written by Jennifer Steinhauer.

The arrest in the case of the “Grim Sleeper” — a serial killer who terrorized South Los Angeles for two decades — has put one of the hottest controversies in American law enforcement to its first major test.

Only two states, Colorado and California, have a codified policy permitting a so-called familial search, the use of DNA samples taken from convicted criminals to track down relatives who may themselves have committed a crime. It is a practice that district attorneys and the police say is an essential tool in catching otherwise elusive criminals, but that privacy experts criticize as a threat to civil liberties.

This week, law enforcement struck a significant blow for the practice when the Los Angeles Police Department used it to arrest a man who they say murdered at least 10 residents here over 25 years. It is the first time an active familial search has been used to solve a homicide case in the United States.

Lonnie D. Franklin Jr., 57, was charged Thursday with 10 counts of murder and one of attempted murder after the state DNA lab discovered a DNA link between evidence from the old crime scenes and that of Mr. Franklin’s son, Christopher, who was recently convicted of a felony weapons charge.

The information developed from the state’s familial search program suggested that Christopher Franklin was a relative of the source of the DNA from the old crime scenes. The police confirmed the association of Lonnie Franklin through matching of DNA from a discarded pizza slice. The match provided the crucial link in a seemingly unsolvable crime that struck terror and hopelessness throughout one of the city’s poorest areas for years.

And:

In the case of a close but imperfect match between crime scene DNA and that of someone locked up, forensic scientists say, the person responsible in that crime may well be a relative of the person locked up. Through a software tool, scientists are then able to painstakingly parse the DNA to determine sibling or parent-child relationships, information the police use to pursue possible suspects.

While the practice is common in England, it has been limited largely to Colorado in the United States. But in 2008, the California Department of Justice began using familial searches — in the face of significant protests — to solve hard crimes. The state restricted the practice to major, violent crimes in which all other investigative techniques had proved fruitless.

Those who oppose the technique argue that there are inherent privacy concerns, and that it serves, in essence, as a form of racial profiling because a higher proportion of inmates are members of minorities.

“I can imagine lots of African-American families would think it is not fair to put a disproportionate number of black families under permanent genetic surveillance,” said Jeffrey Rosen, a law professor at George Washington University who has written about this issue.

Further, Mr. Rosen said, if other jurisdictions were not as strict at California about the technique’s application — expanding it to nonviolent crimes, for instance — the issue would be even more complex. “The technique is not inherently good or evil,” he said. “It all has to do with what crimes it is used for, who’s in the database, how the database is regulated and what is done with the samples.”

"'Grim Sleeper' case raises privacy concerns over use of DNA," by Daniel Wood is in today's Christian Science Monitor.

Here’s how the procedure works: Crime scene samples are compared to the DNA of convicted offenders in the state database to see if they match. Forensics experts examine how many of the DNA markers are shared and how rare the markers are.

“Now we’ve proven how important this forensic technology is by tracking down a suspected serial killer who terrorized Los Angeles for more than two decades,” said Attorney General Brown. Still, he acknowledges criticism of the technique based on privacy concerns.

“In the face of a multitude of objections, we’ve crafted a balanced policy to respect the rights of citizens and at the same time deploy the most powerful DNA search technology available,” he said, emphasizing that familial DNA searches are done under rigorous guidelines and that they are only allowed in major, violent crimes when there is a serious risk to public safety.

But law enforcement specialists around the country are wondering about the moral and ethical aspects of this new method of solving crimes.

“This does not violate the US Constitution’s Fourth Amendment protections against unlawful search and seizure,” says Tod Burke, professor of criminal justice at Radford University in Virginia. “But the bigger question is moral and legal: Is this Big Brother? And the answer really is, ‘Yes.’ ”

Professor Burke and others ask how far this kind of investigation will go.

“The government has justified the collection and retention of the DNA in the database on limited and specific grounds, but now they are pushing out into new, possibly unforeseen uses for the DNA,” says Anne Bowen Poulin, a professor at Villanova University School of Law.

“As science progresses, the government may find additional unforeseen uses, some with more negative impact on the source of the DNA,” Professor Poulin says. “Good police work? Most would probably applaud it. Risk to privacy? We probably won’t know until it’s too late.”

Ashley Fantz posts, "Accused serial killer snared using controversial technique," at CNN.

In 2008, California Attorney General Jerry Brown approved running familial searches through the state's DNA databank, the third-largest in the world with 1.5 million genetic fingerprints of state felons.

Then, last month, police said they found Franklin by running a random comparison search throughout the California prison system, which keeps prisoners' DNA. That search led detectives to Franklin's son Christopher, who had been convicted on a weapons charge.

"Here was a scenario where you had science and old-fashioned police work solving a crime," said Morrissey.

For the past several years, he has publicly urged the FBI to expand its capacity to search for familial matching in its Combined DNA Index System.

CODIS, as it's commonly known, contains more than 8.3 million offender profiles and 319,601 forensic profiles as of May, the FBI's website said.

The FBI has resisted collecting familial DNA, as have states except for California and Colorado, because there is fear that there would be a backlash by civil rights groups over privacy, said Jeffrey Rosen, a law professor at Georgetown University Law School.

Rosen wrote a comprehensive examination of the issue for Slate, the online newsmagazine. He explains the FBI is concerned that if it began collecting familial DNA from arrestees, the backlash could jeopardize its efforts to keep DNA samples from convicted felons.

Rosen says California is now being challenged in court for obtaining and testing familial DNA from people who are arrested.

"The state is really pushing the envelope legally," he said. "If you're convicted, then there's an understanding that you have limited your rights to privacy. To merely be arrested, some argue you should be able to maintain that privacy.

"DNA trial in LA serial killer case detailed, " is the AP filing by Gillian Flaccus.

California Attorney General Jerry Brown said it marked the first time in the nation that familial DNA had been used to break a case of such magnitude. He expects legal challenges but believes the case will hold up to the scrutiny, in part because officials only searched DNA from convicted felons and were careful to limit the search to a smaller universe of samples that bore certain pre-determined genetic markers.

Advocates of familial searches believe they will solve many more crimes in which there is DNA evidence. Others worry that it creates the potential for guilt by association: A person could come under suspicion simply if a family member's DNA is in a criminal database.

"There will be legal challenges," he said. "But I think this is an excellent case we've done under controlled conditions and the procedures have been run very carefully by our lawyers."

The first conviction using familial DNA is believed to have happened in Denver, when a man pleaded guilty in September to breaking into a car. He was nabbed during a research project conducted by Denver District Attorney Mitch Morrissey's office to test the effectiveness of software developed by his office to winnow down what could be long lists of suspects with similar DNA.

Using familial DNA, Morrissey said investigators have been able to trace DNA to its source in 12 cases, but only one resulted in charges. Other issues with the cases, including victims unwilling to participate in prosecution, meant charges were not filed in those instances.

"New Technique of Using Family's DNA Led Police to 'Grim Sleeper' Suspect," is the ABC News Nightline report by Lauren Sher and Neal Karlinsky.

Police said that the technique could prove more revolutionary than fingerprinting in solving crime.

"This is a landmark case. This will change the way policing is done in the United States," Los Angeles Police Chief Charlie Beck said at a news conference today.

The technique may also be controversial, and likely faces legal challenges.

"This arrest provides proof positive that familial DNA searches must be a part of law enforcement's crime-fighting arsenal. Although the adoption of this new state policy was unprecedented and controversial, in certain cases, it is the only way to bring a dangerous killer to justice," said Attorney General Jerry Brown in a statement.

The familial DNA program was enacted by Brown in April 2008 as a way to fight violent crimes when there is "serious risk to public safety," according to the attorney general's office. California is the first state to use familial searches. 

Austin PD Crime Lab Problems

Today's Austin American-Statesman reports, "Police DNA lab to be subject of external review."  It's written by Tony Plohetski and Steven Kreytak.

Austin's police DNA lab will be the subject of an independent review, potentially affecting thousands of criminal cases, following complaints about the lab's operations by a former employee.

Travis County prosecutors have begun notifying hundreds of defense attorneys about the allegations by former DNA analyst Cecily Hamilton, which included allowing workers to perform tasks they are not capable of doing, documents show.

Prosecutors are still seeking to confirm the number of affected cases — they think it could reach 2,000 — and how many have been resolved or are pending. The cases involve all classes of felonies in which DNA evidence is collected, including murders and sexual assaults.

"We have work to do, but we are doing it as quickly as possible and as thoroughly as possible," District Attorney Rosemary Lehmberg said. "Any time an allegation is made concerning the integrity of evidence in either a present case or a past case, we are required by law to turn that evidence over to the defense and let them see it and use it as they see fit."

Constitutional protections require defendants to receive all information that could raise questions about their guilt or impeach the credibility of prosecution witnesses.

The issue has been cited in at least one court case.

And:

Lehmberg and Police Chief Art Acevedo said they remain confident in the work of the Austin police crime lab. They said Hamilton's allegations were reviewed internally during the spring and that her complaints were deemed unfounded.

Acevedo also said that the crime lab has recently undergone reviews by the FBI and the American Society of Crime Lab Directors . Both found no deficiencies.

"With that said, we are going to, out of an overabundance of caution and in the spirit of transparency," seek the additional review, Acevedo said.

Authorities were still trying Wednesday to determine who to hire for the independent review but hope to decide this week. They have sought names of experts from defense attorneys, including those who specialize in forensic evidence.

Hamilton, who resigned in May, lodged multiple complaints in a lengthy Feb. 11 memo to the department, including a hostile work environment, retaliation and "quality assurance issues."

According to records, she said she thought the lab's training program was poor and needs updating, that the facility inconsistently handled technical issues among analysts and — one of the most serious charges — that a supervisor helped an analyst on competency tests.

Department officials said lab staffers began reviewing her complaints immediately and presented a final report to department officials in March.

"The quality issues have been investigated and there is no proof that these allegations have any validity," lab manager William Gibbens wrote.

Related posts are in the crime lab and DNA indexes.  The Houston Police Department's crime lab was involved in a years-long scandal; more here.  More recently, the San Francisco crime lab has been mired in problems.

Craig Watkins at Texas Tribune's TribLive

This morning's TribLive event hosted Dallas County District Attorney Craig Watkins.  There were extensive comments about Dallas County's Conviction Integrity Unit that has worked to exonerate individuals who had been wrongfully convicted and incarcerated.  The Tribune's Evan Smith interviewed Watkins.

Emily Ramshaw posts, "Watkins Plays Self-Defense," at the Tribune.

Dallas County District Attorney Craig Watkins, under fire at home for his handling of an investigation into Democratic county constables, played defense before an Austin crowd this morning in a TribLive interview with the Tribune's Evan Smith.

The Tribune should have video posted shortly.  Watkins is running for re-election in the November general election.

Crime Lab Scandals to Force Reviews in San Francisco & Nebraska

The Recorder reports, "1,400 Narcotics Cases to Be Re-Evaluated due to San Francisco Crime Lab Scandal," by Kate Moser.  

The San Francisco district attorney's office is combing through files in 1,400 cases -- the entire universe of open narcotics cases in the office -- to determine what can be saved and what needs to be dumped in the wake of an expanding scandal emanating from the police crime lab, a spokesman for the office said Monday.

"We're going through the police records that we have, test results, we're assessing everything," said Assistant District Attorney Brian Buckelew. "There's a taint here on this evidence. We're going to do the right thing and we're going to do it the right way."

The office will make a decision this week on what to do about those cases, he added.

Prosecutors have already dropped more than 350 narcotics cases since the crime lab scandal broke earlier this month. Police shut down the lab in early March amid allegations that a former technician had stolen and used cocaine from evidence samples she tested. The technician, Deborah Madden, has not been charged.

Since then, "the face of the investigation has changed," Buckelew said, given that police are now investigating additional crime lab employees.

Earlier coverage is here.

In Nebraska, AP reported last week, "Flood of appeals likely after Neb. CSI conviction," by Jean Ortiz, via Google News.

As the chief crime scene investigator for Nebraska's busiest county, David Kofoed spent more than a decade helping put away hundreds of criminals using cold, hard science. He developed a reputation as a man who could find things others couldn't.

That reputation was destroyed Tuesday when the Douglas County CSI director was convicted of planting blood evidence during a murder investigation. The conviction throws into doubt the legitimacy of other cases on which he worked, and some of those he helped put behind bars are likely lining up to appeal.

"I think that process has already begun," Clarence Mock, the special prosecutor in Kofoed's case, said Wednesday.

Douglas County prosecutors, wary of a potential flood of appeals, were quick to say they reviewed past cases and believe the 53-year-old Kofoed only planted evidence in the investigation for which he was convicted.

Still, one man convicted of murdering his young son already has challenged Kofoed's work. And Chief Deputy Sheriff Marty Bilek said sheriff's department officials are prepared to respond as criminal defense attorneys seek review of Kofoed's past cases.

"It's a very unfortunate circumstance, but it would behoove attorneys who have cases that involved Dave Kofoed to re-examine them and we'll cooperate with any attorney who wishes to do that," Bilek said.

And:

It's rare for prosecutors to allege evidence tampering, but it does happen.

In Texas' Harris County, four prisoners' convictions were overturned because of faulty work by the Houston crime lab. A 2002 audit found that lab technicians were poorly trained, had misread data, and kept bad records. Authorities reviewed more than 150 cases involving blood-typing evidence from the lab.

And this month, San Francisco prosecutors dismissed more than 250 drug cases because of accusations of evidence tampering in the city's crime lab.

Related posts are in the crime lab index; more on HPD crime lab problems, here.

Forensics Roundup

"US judge urges skepticism on forensic evidence," is the title of a report in today's Boston Globe written by Jonathan Saltzman.

“CSI’’ may make for gripping television, but US District Court Judge Nancy Gertner says forensic evidence isn’t everything it’s cracked up to be.

In a move that some legal scholars said may be the first by a federal judge, Gertner has ordered defense lawyers and prosecutors not to assume that evidence routinely accepted in the courts for decades is reliable. Defense lawyers, she wrote, should vigorously challenge fingerprints, bullet identification, handwriting, and other trace evidence, and prosecutors should be prepared to show it is valid.

“In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree — the fact that it had been admitted for decades,’’ Gertner wrote in a March 8 order. “As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited.’’

That needs to change, she said. A critique last year by the National Academy of Sciences, she noted, concluded that forensic evidence used to convict thousands of defendants for nearly a century is hardly the infallible proof of police procedurals on television. Too often, the study found, it is the product of sloppy practices that should be improved and standardized.

Spurred by the report and criminal cases she has presided over, Gertner wrote that the validity of such evidence “ought not to be presumed’’ and that defense attorneys should contest it at pretrial hearings, or explain why they do not. She will allow the evidence to go before a jury only if it meets sound scientific principles.

Defense lawyers and advocates for people who have been wrongly convicted of crimes welcomed Gertner’s order.

“It’s a wakeup call not only to other judges and to prosecutors but frankly to defense attorneys who for years — despite the rising tide of scientific reports indicating that many of the so-called tried-and-true disciplines were not in fact so true — rarely did their homework to mount serious challenges,’’ said Peter Neufeld, a cofounder of the New York-based Innocence Project. The nonprofit group uses DNA evidence to exonerate wrongly convicted prisoners.

Neufeld, who testified before the panel of scientific and legal experts that produced last year’s report on forensic evidence, said a recent study he co-wrote for the Virginia Law Review found that flawed forensic testimony contributed to 60 percent of 137 wrongful convictions later overturned through DNA evidence. That makes misapplied forensic evidence the second-leading cause of wrongful convictions, behind eyewitness misidentification, he said.

A spokeswoman for US Attorney Carmen M. Ortiz of Massachusetts declined to comment on Gertner’s order.

Jennifer Mnookin, a professor at UCLA’s School of Law and leading scholar on expert and scientific evidence, said she was unaware of any other federal judge who has issued such an order, although judges have refused to let shaky scientific evidence go before juries after pretrial hearings.

Mnookin said forensic testimony is highly persuasive to juries but that the February 2009 study by the National Academy of Sciences, the nation’s most prestigious scientific body, underscored that the evidence often does not meet the basic requirements of good science.

The Recorder, a Law.com member publication covering California, Kate Moser reports, "S.F. Public Defender Applies Pressure in Crime Lab Scandal."

San Francisco Public Defender Jeff Adachi on Thursday called for an independent crime lab in San Francisco in the wake of an evidence-tampering scandal at the police department's crime lab.

He also called on the district attorney's office to entirely drop cases touched by the scandal.

"I think these cases should be dismissed," Adachi said Thursday at his second news conference in a month dealing with the crime lab. "The prosecutors should move on."

The DA's office has already dismissed more than 350 narcotics cases since the crime lab scandal broke earlier this month, but prosecutors are hoping to refile them after drug evidence is retested.

"We will not be forced into dismissing cases because of timelines put in place by the defense bar or because of political expediencies," a spokesman for the office, Assistant District Attorney Brian Buckelew, said in an e-mail.

Adachi also contended that the DA's office has been slow to hand over information about what cases could be affected by Deborah Madden, the crime lab employee who allegedly stole cocaine from the lab. In particular, he wants a list of the cases with evidence that was analyzed by Madden.

Buckelew disagreed that the prosecution has been dragging its feet. In one narcotics case in front of Judge Anne-Christine Massullo, he said, the DA's office has turned over its entire file and the police department's file for in camera review. The office is also in the process of assembling a "voluminous" log of the crime lab documents it has provided to the court, he added.

Adachi drew a parallel to a similar San Francisco crime lab scandal that unfolded in 1994, when lab officials caught criminologist Allison Lancaster fudging drug test results.

Adachi has retained former crime lab Director Jim Norris, who was running the lab during the Lancaster scandal, to weigh in on what should be done now.

Norris said that it wouldn't be difficult to come up with a list of potentially tainted cases for the public defender.

"It's very easy to segregate these cases," Norris said. "You just have someone go through and pull all the cases where testing was done by the analyst in question."

Related posts are in the crime lab and forensics indexes; more on the NAS report, here.

Tonight's Democratic Gubernatorial Candidate Debate

Last month, the Texas Debates sponsored a debate among the three major Republican candidates for governor.  Tonight, organizers held a debate between the two major Democratic candidates, businessman Farouk Shami and former Houston mayor Bill White.

There was one question and a follow-up about their positions on the death penalty and a moratorium on executions.  You can watch the archived video at this LINK.  The moratorium question occurs at 36:05 into the debate.  Shelley Kofler's followup question begins one question later at 41:37 into the debate.  For best results, view the video full screen;  a time stamp appears in the lower left to aid you in fast forwarding through the video.

What follows is my transcription of the give and take: 

Citizen question:  Mr. Shami, due to the recent exonerations due to Dallas DA Craig Watkins' Innocence Project, do you think a moratorium should be placed on capital punishment in the state of Texas?

Shami:  Yes, mam.  A moratorium should be placed.  You know what we saw in the last few months and the last few years that (a) few people have been executed in our state of Texas and they were innocent.  We need to be 110% that that person really committed that crime and that they deserve death.  We cannot be just executing people without being sure.  It's just recent ... after 18 years, the man that the government approved the execution was an innocent man.  So we cannot ... so I will approve and I will support moratorium of death penalty for our state of Texas. 

We cannot be bragging how many people we execute and execute them innocently.  I am against that with all my heart.

Question.  Thank you Mr. Shami.  Now, Mr. White, same question to you: given the recent exonerations would you support a moratorium on the death penalty.

White:  No, not in all cases because that would disrespect the juries and the victims and the criminal justice where there is no question in those cases, where there is no question about the evidence used to convict.  I don't think you use it as a blunt tool.  I'll tell you what we did in Houston.  Where there was forensic evidence ... before my administration, there had been bad forensics and where we identified ... we identified cases in which that was critical to the conviction, and we spent millions of dollars going back through those cases, like the DA has  here and taking and working with Project Innocence to take a look at those cases to see whether there's a question about the innocence. 

But, I want to say also to the citizens of this state, I will never introduce politics into questions of life or death.  When I appoint a forensic science commission, I will go with the expert advice.  But Texans know that our criminal justice system -- our police, our law enforcement, our prosecutors, our juries -- by and large this is a just system.  Any injustice is unacceptable, but we also need to look after the rights of those victims.

After another citizen question, KERA news director Shelley Kofler returned to the issue and asked a followup:

Question:  Could we just nail down something that went by a minute ago.  Very briefly -- yes or no -- with respect to the death penalty, Mr. White, you support it.  Correct?

White: Yes.

Question:  Mr. Shami do you support the death penalty?

Shami:  The question was on ...

Question:  Yes, but my question is do you support the death penalty?

Shami:  If we are 110% sure that that person deserved death, I would support it.  Yes.

Question:  Do you support it as it currently stands?

Shami:  Not as it currently stands; absolutely not.

Question:  You oppose the death penalty?

Shami:  We have killed lots of innocent people.  That is human life.  We need to be sure.

The party primary elections will be held on Tuesday, March 2.

News Coverage of Briscoe v. Virginia

At issue is a defendant's right to confront witnesses.  In it's last term, the Supreme Court issued  Melendez-Diaz v. Massachusetts, making it clear that lab analysts must be available to testify and face cross-examination about test results.  Briscoe v. Virginia was argued yesterday in front of the Supreme CourtThe ScotusWiki page, with all briefing, is here; the oral argument transcript, here.

"With New Member, Supreme Court Takes New Look at Crime Lab Ruling," is the title of Adam Liptak's report in today's New York Times.

Just six months after a narrowly divided Supreme Court announced that crime lab reports may not be used against criminal defendants at trial unless the analysts responsible for them testify, the court heard arguments on Monday about how the new system is working and whether it needs to be refined or rejected.

The court’s membership has changed since the 5-to-4 decision in June in Melendez-Diaz v. Massachusetts, which said that the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him,” does not allow the mere presentation of a lab report to prove, say, that white powder found with a defendant was cocaine.

Justice Antonin Scalia, who wrote the majority opinion in Melendez-Diaz, said there was only one reason to revisit the issue so quickly.

“Why is this case here except as an opportunity to upset Melendez-Diaz?” he asked. After a lawyer tried to answer what was a rhetorical question, Justice Scalia made his meaning plain: “I’m criticizing us for taking the case.”

Melendez-Diaz involved unusual coalitions on both sides, and Justice David H. Souter, who retired in June, was in the majority. He was succeeded by Justice Sonia Sotomayor, prompting talk that the court could quickly reverse course.

But after Monday’s argument there was little reason to think that Justice Sotomayor was inclined to do anything particularly dramatic. She asked the first 10 questions, but she seemed focused on how to put the earlier decision into effect rather than whether it should be overruled.

“I trust the trial process,” she said, suggesting that the issues raised by Melendez-Diaz will largely be sorted out on the ground. Most prosecutors, she said, would rather put on live testimony from analysts because it tends to be more compelling than paper records.

Richard D. Friedman, a lawyer for two Virginia men convicted of drug crimes, said the law there placed an unfair burden on defendants regardless of the tactical decisions prosecutors may generally be expected to make.

The new case, Briscoe v. Virginia, No. 07-11191, involved two prosecutions. In one, prosecutors offered proof that the “off-white, chunky solid material” and “white, rock-like substance” that the police found in Mark A. Briscoe’s kitchen and shorts was cocaine by submitting “certificates of analysis” from a forensic scientist who did not testify. In the other, prosecutors submitted a certificate without testimony about cocaine found in Sheldon A. Cypress’s car after it was stopped for having improperly tinted windows.

The immediate issue in the consolidated cases is whether the prosecutors were permitted to do something short of calling the analysts as witnesses during the prosecution’s case. Under the Virginia law at issue in the case, at least as interpreted by the Virginia Supreme Court, prosecutors were allowed to present paper reports during their case so long as they produced the analysts responsible for the reports during the defense’s case if requested.

Most drug prosecutions do not require testimony from analysts. For starters, some 95 percent of all cases end in plea bargains. Defendants also often have good strategic reasons to stipulate to the accuracy of crime lab reports.

The harder questions involve the burdens that may be placed on defendants who do say they want the opportunity to question analysts. The court’s decision in Briscoe, expected by late June, will probably offer lower courts and state legislatures guidance on that question.

Tony Mauro writes, "High Court Justices Grill Both Sides in Confrontation Clause Case," for National Law Journal.

The U.S. Supreme Court's decision last year in Melendez-Diaz v. Massachusetts caused an uproar among prosecutors by interpreting the Constitution to require that forensic and other evidence be presented mainly in person, not by affidavit.

On Monday, the Court heard arguments in a case that could be a vehicle for reversing that 5-4 decision (pdf) less than a year after its issuance. But that outcome appears far from certain.

Justice Sonia Sotomayor, who was not on the Court for the Melendez-Diaz case, sent out mixed signals on whether she would provide the vote needed for reversal. (Her predecessor David Souter was in the majority.) As has become her custom, Sotomayor actively questioned both sides during Monday's argument in Briscoe v. Virginia.

Meanwhile Justice Antonin Scalia, who authored last year's ruling, fought vociferously to save it during the hourlong hearing, and he strongly implied that the four dissenters in Melendez-Diaz had voted to review Briscoe just to overturn the precedent. "Why is this case here except as an opportunity to upset Melendez-Diaz?" Scalia asked, later adding, "I'm criticizing us for taking the case."

In the case before the Court, Mark Briscoe and Sheldon Cypress were prosecuted in Virginia courts on drug charges based in part on "certificates of analysis" from the state laboratory attesting to the amount and type of drugs found during their arrests. They both invoked the confrontation clause of the Sixth Amendment, which gives defendants the right to be confronted with the witnesses against them. They argued that the drug evidence needed to be presented in person so it could be subjected to cross-examination. The Virginia Supreme Court upheld use of the written certificates because state law allows defendants to call the forensic analysts as witnesses, and Briscoe and Cypress had not done so.

The Court in Melendez-Diaz indicated that an approach like Virginia's, shifting the burden of calling the witness to the defendant, would not satisfy the Sixth Amendment.

Upholding the Virginia approach, said the defendants' lawyer Richard Friedman, would "severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years."

But a brief (pdf) filed by state attorneys general asking that Melendez-Diaz be overturned was on the mind of several justices. The brief said the decision has already had an "overwhelming negative impact" on drug prosecutions by requiring short-staffed and underfunded state labs to spend too much time in courtrooms.

NPR's All Things Considered on Monday afternoon carried Nina Totenberg's, "Court Revisits Ruling Forcing Lab Analysts To Testify." 

Until June, the vast majority of state and local prosecutors routinely
submitted notarized reports from crime lab analysts for evidence at trial. The
burden was on the defense to subpoena the state's forensic analysts if it
wanted to cross-examine them. But less than seven months ago, the Supreme
Court, by a 5-to-4 vote, said that procedure is unconstitutional and that the
burden is on the prosecution to produce its witnesses to testify live unless
the defense agrees to something less. The court's decision was written by
conservative Justice Antonin Scalia, over the strong dissent of four justices.

Since June, only one thing has changed: One member of the five-justice
majority - David Souter - has retired, replaced by Sonia Sotomayor, who served
for years as a prosecutor in Manhattan.

So all eyes were on Sotomayor on Monday as the court considered two drug
convictions based on affidavits from crime lab analysts as to what the
substance was that was found on or near the defendants. Sotomayor did not
disappoint, asking lots of questions. But at the end of the day, she was
noncommittal.

Virginia changed its law in August to comply with the Supreme Court's June
decision. The convictions at issue, however, were under the state's old law,
which allowed for affidavit testimony without the consent of the defense.

On Sunday, the New York Times carried the editorial, "The Right to Confront Witnesses."

Critics of the ruling last June argue that it imposes too great a burden and excessive costs on prosecutors. But in states where analysts have to testify, the burden is easily manageable. Ohio’s 14 forensic scientists appeared in 123 drug cases in 2008, less than one appearance each per month.

It is not clear why the Supreme Court is rushing to reconsider this issue. There are some differences in the rules on witnesses between Virginia and Massachusetts. But it may be that with Justice Sonia Sotomayor having replaced Justice David Souter, the dissenters believe they have a fifth vote to erode or undo last June’s ruling.

As a former assistant district attorney, some court analysts argue, she may be more sympathetic to the burden on prosecutors. As a circuit court judge, Justice Sotomayor did often rule for the government in criminal cases, but making predictions of this sort is perilous. Justice Antonin Scalia, one of the court’s most conservative members, wrote the majority opinion in Melendez-Diaz.

If the court changes the rule, it would be a significant setback for civil liberties, and not just in cases involving lab evidence. Prosecutors might use the decision to justify offering all sorts of affidavits, videotaped statements and other evidence from absent witnesses.

Earlier coverage of Melendez-Diaz begins with this post.

News From New Mexico

Today's Albuquerque Journal has two news articles of interest.  First, Scott Sandlin reports, "Court Adds Jury To Capital Cases."

New Mexico repealed the death penalty effective July 1.

But for the handful of existing or potential capital cases unaffected by the repeal, including Michael Paul Astorga, the New Mexico Supreme Court has ordered a new way of trying capital cases.

Apparently responding to concerns about the fairness of the process raised in a rash of recent briefs in death penalty cases, the court said a defendant may choose to have one jury for the guilt/innocence phase and, if there is a conviction, a separate jury for the penalty phase.

New Mexico is the first state in the nation to do so, according a leading death penalty defense attorney.

The draft rule was published Oct. 26 in the Bar Bulletin. Only two comments were received, from the New Mexico Criminal Defense Lawyers Association and the New Mexico Attorney General's Office, taking opposing positions.

The rule became final this week.

Gary Mitchell, the Ruidoso attorney defending death penalty defendants Astorga and William Watson already has filed notices in both cases anticipating the rule.

Astorga is accused of the March 22, 2006, fatal shooting of Bernalillo County Sheriff's Deputy James McGrane Jr. during a traffic stop in Tijeras. Watson is a Roosevelt County farmer accused in a 2005 murder conspiracy.

"This decision has national impact," Mitchell said. "It's the first time anybody has dealt with the problem."

The problem identified in research by the Capital Jury Project and other research is that "death-qualified" juries of people who can impose the death penalty are more prone to vote for conviction than a non-death-qualified jury.

"Under the old system that the Supreme Court is now changing you have people judging you who have sworn under oath that they could kill you," Mitchell said.

"What this means for Watson and Astorga, whom I believe are innocent of these charges, is they get a more balanced jury," he said.

District Attorney Kari Brandenburg, who was at the Legislature at the time the rule proposal was floated in October, said her office did not respond. She said even the Capital Jury Project research showed one of the reasons jurors gave for not imposing a death sentence was the information they gleaned during the initial trial.

And:

The first roll-out of the new procedure is now slated for Jan. 23, when Ninth Judicial District Judge Drew Tatum is scheduled to begin Watson's trial in Portales. It is currently scheduled for four weeks.

The Journal also reports crime lab problems in New Mexico.  The article is, "Lab Suspends DNA Testing," by Jeff Proctor.

DNA testing has been shut down at the State Police crime lab in Santa Fe for more than a month, leaving a backlog of 124 cases, officials confirmed Thursday.

The testing ceased after the New Mexico Forensic Laboratories' accreditation lapsed at the end of October, state Department of Public Safety spokesman Peter Olson said.

Olson said 48 cases have come in since testing stopped. Those are included in the backlog of cases, two of which will have gone past their court deadlines by the time officials hope to regain accreditation on Dec. 10.

Lemuel Martinez, 13th Judicial district attorney in Los Lunas, said he just learned of the shutdown from a Journal reporter on Thursday.

"This could be a blow to every district attorney's office across New Mexico, as well as law enforcement," he said. "To not have that service readily available will really be terrible for the entire criminal justice system. I just hope no cases fall through the cracks."

Bennett Baur, the Santa Fe district public defender and president of the New Mexico Criminal Defense Lawyers Association, called the halt in testing "concerning."

And:

The lab handles DNA evidence for every jurisdiction in New Mexico other than Bernalillo County — about 50 percent of the state's caseload, which comes from more than 200 law enforcement agencies.

Olson said the lapse in accreditation happened near the end of a yearlong process during which state officials were aiming for a more stringent, internationally accepted accreditation.

The accrediting body had required state officials to meet several "technical standards," he said. He did not elaborate on what the standards were, but said the lab didn't meet the auditor's deadline of Oct. 29, and the accreditation lapsed.

So, state officials decided to stop testing, Olson said, because the FBI requires labs to be accredited in order to enter DNA results into the bureau's Combined DNA Index System, or CODIS, database.

"We made the voluntary decision to cease testing because we want to be able to enter our results into CODIS," he said, adding that he wasn't aware of any state laws that require a lab to be accredited for DNA to be admissible in court.

Pat Davis, spokesman for the Bernalillo County District Attorney's Office, said his office typically doesn't accept DNA evidence from unaccredited labs.

The accrediting board meets on Dec. 10, Olson said, and state officials are "extremely confident" the lab will regain its accreditation after that meeting. DNA testing will resume at that point, he said.

More Problems at HPD Crime Lab

The Houston Police Department Crime Lab was the scene of a multi-year scandal in its DNA unit.  Problems were also reported in other units, as well.  Now, the Houston Chronicle reports, "HPD fingerprint unit is focus of criminal probe."  It's written by Moises Mendoza and Bradley Olson.  It appeared in Thursday's edition.

A Houston Police Department official confirmed Wednesday that a criminal investigation is under way into alleged wrongdoing at HPD's fingerprinting comparison unit, which is under scrutiny following an audit accusing it of shoddy work.

One employee, put on administrative leave with pay after the audit into the unit ended in October, is being investigated for alleged misconduct involving “handling a piece of evidence,” said Tim Oettmeier, an executive assistant chief.

Oettmeier declined to specify what the employee is accused of or name the individual involved.

But he said the allegations emerged after auditors asked employees to do additional work to understand why the unit had such a high error rate. More than half of 548 randomly selected cases involving fingerprints analyzed at the unit have turned up irregularities. Officials released details of the audit on Tuesday.

Meanwhile, Houston's mayor on Wednesday said that criminals likely went free because the fingerprint unit missed prints on evidence. At a news conference, Bill White said he hoped the review would determine how many criminals have been missed.

“I think it's unacceptable the quality of work the chief and the command staff found in the fingerprint unit,” White said.

Two other employees in the fingerprint unit are not accused of criminal wrongdoing but were put on leave as part of the investigation. A third part-time employee resigned under pressure from the department, Oettmeier said.

Consultants are temporarily doing their jobs while officials decide how to train new fingerprint analysts or hire outsiders.

And:

Because the audit found workers often overlooked fingerprints or wrongly determined fingerprints weren't able to be analyzed, authorities are re-reviewing more than 4,000 violent crime cases involving fingerprints from the last six years. They're also trying to work through a 6,000-case backlog that dates back two years and includes violent and property crimes.

After disclosing the results of the audit Tuesday, authorities emphasized that no cases have been found in which suspects have been wrongly identified because of faulty fingerprint analysis.

They have declined to release the audit publicly, citing the ongoing investigation.

Oettmeier said nobody knows what the six-year review will find, but officials could go back further if evidence of vast irregularities emerge, such as numerous cases of criminals going free or any misidentifications.

“We're not saying that we don't believe there will be false identifications. We are saying we don't know. We have an obligation to look,” Oettmeier said.

Also:

It has also spawned renewed discussion about the need for an independent center to analyze forensic work, possibly including fingerprints.

Much forensic evidence across the country, such as fingerprints or DNA, is analyzed by labs closely tied to law enforcement despite the inherent conflicts of interest, said UCLA law professor Jennifer Mnookin.

Another problem: There are varying standards for how fingerprint analysts are trained and prints are analyzed, meaning some labs are more accurate than others.

“This provides yet another example for why developing validated, research-based models for the field would be a very good idea,” Mnookin said.

Coverage of the DNA unit scandal begins here.  Related posts are in the crime lab category index, including more on fingerprint analysis, here. 

Right and Left Join Forces on Criminal Justice

That's the title of Adam Liptak's report in today's New York Times.  LINK

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

And:

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

New Clues for Forensic Panel Future

That's the title of Rick Casey's column in today's Houston Chronicle.  LINK

Gov. Rick Perry made a brilliant choice in John Bradley to head the Texas Forensic Science Commission — at least for his own purposes.

But after a two-hour hearing Tuesday before Sen. John Whitmire's Criminal Justice Committee in which legislators grilled the Williamson County district attorney on his plans regarding the commission, it's far from clear that the governor's choice will serve the justice system.

Perry abruptly replaced the previous chairman with Bradley two days before a nationally prominent arson expert was to present to the commission a report that was harshly critical of the methodology through which local fire and police officials found that Cameron Todd Willingham had deliberately murdered his own children by setting his house on fire.

Perry had good cause to be concerned, since he had been sent a similar report by an established expert in the days before Willingham's execution but denied a request to delay the execution so the matter could be further explored.

The expert's report expressed no opinion about Willingham's guilt or innocence, or even about whether arson had taken place. It just said that the investigators had used bad and/or outdated understandings of fire science to reach their conclusions. What's more, the report was only one part of the evidence the commission was set to consider.

But advocacy groups, many in the media and politicians on both sides characterized the report as a judgment on Willingham's innocence, and it wasn't hard to foresee problems for Perry as the commission pursued its work on the case over the next few months.

Bradley, a highly regarded prosecutor, offered a stout defense for delaying indefinitely — certainly until at least after the March primary — the commission's Willingham investigation.

And:

Bradley said he has successfully sought help from a highly regarded Texas Supreme Court staffer for help in setting up the rules, and from the Texas Rangers for help in setting up investigative procedures.

It's safe to say they won't be ready before the March primary.

Bradley's testimony raised other concerns.

It may be natural for a prosecutor to turn to the Texas Rangers to help develop investigative procedures for the commission. But the job of the commission is to investigate science, not crime. The investigative procedures for that should be developed by forensic scientists, not members of a police agency that will be subject to the commission's review.

Or will it? Of even more concern is Bradley's assertion, at least twice, that the focus of the commission should be on accredited police labs. The labs are important, and a scandal in the Houston Police Lab led to the commission's establishment.

But the law recognizes that labs are only one part of forensic science. It also calls for the commission to investigate complaints about any accredited “facility or entity.” That includes arson investigators, police detectives and others.

Earlier coverage begins with the preceding post.

Yamil Berard's Five-Part Medical Examiner Series Concludes

The Forth Worth Star-Telegram investigative reporter's series concluded with Saturday's report, "Tighter requirements on medical examiners are blocked in Texas."  Here's an extended excerpt:

An onslaught of news reports about mistakes in medical examiner offices is rattling the foundations of the U.S. criminal justice system.

Critics are having a field day pointing out blunders — children’s eyes misplaced, bodies mismatched, skeletal remains missing. "Abuses are going on all over the country," said Barry Scheck, co-founder of the Innocence Project.

Pick a state, find a scandal:

The Boston medical examiner’s office sent the wrong bodies to funeral homes and had a body cremated before police could determine whether a murder had taken place.

A Mississippi forensic pathologist is being sued over his testimony that was key in convicting two men later exonerated by DNA testing. The pathologist was conducting about 1,500 autopsies a year.

The Oklahoma City medical examiner’s office had its accreditation yanked this summer because of dozens of deficiencies, and a grand jury reported that the office mishandled items that could have been used as evidence in criminal cases.

The Tennessee Medical Board found a state medical examiner guilty of 18 counts of misconduct, potentially compromising hundreds of convictions. The violations included botched work, tampering with evidence and sloppy records, with a heap of callousness added to the mix.

A report by the National Academy of Sciences, presented to Congress this spring, found pervasive deficiencies nationwide. It recommends modernizing the medical examiner’s office by establishing performance standards and quality-control measures and testing the scientific validity of forensic methods. It also calls for creating a national watchdog agency that could set education standards, require certification of facilities, and develop and implement new technologies.

A group of medical examiners themselves recommended minimum national standards, calling for such changes as requiring that autopsies be conducted by those who have been trained in anatomic and forensic pathology.

But so far, the resources have not been available to implement major reforms identified by the scientific community. And in Texas, a lack of political will and divisions among pathologists have torpedoed efforts to make more basic changes.

As errors have come to light, some states are bringing more scrutiny to pathologists’ work. A new Tennessee law requires that autopsies be performed in medical examiner offices that conform to standards of the National Association of Medical Examiners. Washington state is looking at a proposal requiring such standards for autopsies of infants and other young children. Florida has a commission tasked with scrutinizing any abnormalities in the work of its medical examiners.

"It . . . is just a matter of having the political will and proper use of resources," said Dr. John Howard, NAME’s president.

Texas hasn’t budged, though. Accreditation is voluntary, and only six medical examiner offices in Texas have the nod.

This past session, the Legislature approved a bill that would have required that medical examiners and their deputies be board-certified in anatomic and forensic pathology. It also would have given medical examiners the say-so on who can attend autopsies and the power to subpoena law enforcement and medical records.

Sen. Jeff Wentworth, R-San Antonio, who introduced the legislation, cited a need for "more accurate, precise and reliable autopsies and evidence" in courts.

But even though the changes had support from the Texas Conference of Urban Counties, which had criticized past legislation affecting medical examiners, Gov. Rick Perry vetoed the bill containing the measure. His office did not respond to requests for comment.

"It’s back to square one," said Bexar County Chief Medical Examiner Randall Frost, who urged Wentworth to introduce the legislation.

In 2005, the state created the Texas Forensic Science Commission to hear complaints about shoddy work. But medical examiners do not fall under its jurisdiction, said Edwin Colfax at The Justice Project. Only crime labs do.

Medical examiners have "been given a pass because we’re dealing with doctors," Colfax said.

Berard also has this sidebar on accreditation results:

Harris County The county attorney said it didn’t have the inspection report on file and wouldn’t request it from the National Association of Medical Examiners, though the Star-Telegram made repeated inquiries over several months. "Based on your last transmission, I believe you did not understand my email (below)," Barbara Callistien, general counsel to the Harris County medical examiner’s office, wrote in an e-mail. The office "is not obligated under the law and is not going to request a report from another agency that is not in the HCMEO’s possession."

Dallas County The report shows that before Dallas was fully accredited, it was given provisional accreditation because it exceeded the maximum number of allowable autopsies and had one medical examiner who was not certified in anatomic pathology. Its chief toxicologist also was not certified by the American Board of Forensic Toxicology. And the office also had "substantially substandard" completion rates on homicide autopsy reports, wrote Dr. Randy Hanzlick, who performed the inspection. Those reports took 60 days to complete, the report shows. The morgue received full accreditation when it hired additional staff and improved the turnaround time on reports.

Tarrant County The district attorney’s office said the county didn’t keep a copy of its 2004 inspection report. After the Star-Telegram made a plea to Dr. Nizam Peerwani, he personally sought it from NAME and released it. The review described the office as an outstanding resource for the counties, but warned that the number of autopsies being performed exceeded the standard. The office’s accreditation was up in May; it has applied for renewal and is awaiting to be assigned an inspector.

Nueces County County officials did not respond to repeated requests by the Star-Telegram under the Texas Public Information Act. Its accreditation expires in November, said Chief Medical Examiner Ray Fernandez. The renewal is up in the air, he said. He performed 387 autopsies in 2008, in excess of the cap.

Bexar County The county did not have a copy of its assessment and was unable to obtain it from NAME, said Chief Medical Examiner Randall Frost. He was not the chief medical examiner when the inspection was conducted. The office is seeking renewal of its accreditation, which expired Aug. 29.

Travis County The medical examiner received provisional accreditation in November 2008 and received full accreditation in July after it hired additional staff. The report described the investigations staff as superior. "The chief investigator and the forensic nurse investigator are board certified.  . . .  This office is to be highly commended for this dedication to investigative excellence," it says.

Sunday's Star-Telegram carried the related report, "Most deaths still being reported using paperwork despite existence of electronic registry," by Bill Bowen.

Two years after Texas lawmakers mandated that doctors, funeral directors, medical examiners and others file death reports electronically through an Internet-based system, it is being used for fewer than half of the approximately 35,000 death reports filed each month.

Instead, many of the medical experts are falling back on the paperwork that doctors say takes a small fraction of the time consumed by the clunky, arcane and nonintuitive software adopted by the state.

The two-year struggle to get the Texas Electronic Registry up and running has prompted the state to spend $720,000 to hire a firm to manually enter the paper records into the database — more than twice what Texas paid for the software to begin with — and to catch up with its vital-statistics reporting to the federal government and to beef up training.

But as problems linger, families are complaining about delays in getting death certificates, which are needed to settle life insurance claims, gain access to bank accounts, and initiate inheritance and other probate proceedings.

And a rift has developed between funeral homes and doctors.

Parts 1-4 of Berard's Star-Telegram Series is noted here.

Yamil Berard on Texas Autopsy Controversies

Fort Worth Star-Telegram investigative reporter Yamil Berard has an outstanding series on one slice of forensics, autopsies.  Her five-part series began on Sunday and runs through Saturday.  It's a must-read, especially with other forensics-related news.  Here are excerpts from the first four parts of the series:

"With little oversight in Texas, autopsies often careless," is the first installment.  Here's the introduction:

The man almost took the dirty secret of his death to his grave. The Tarrant County medical examiner’s office said injuries from a pickup wreck killed him. But after a funeral director hundreds of miles away found a bullet in the man’s head, authorities realized a killer was on the loose.

Worse has happened in the autopsy suites of Texas medical examiners.

A child molester faked his own death and almost got away with it after the Travis County medical examiner mistook the burned body of an 81-year-old woman for the 23-year-old man.

A woman was on her way to Death Row in Alabama after a medical examiner now working in Texas said she had suffocated her newborn. The sad truth, other experts said, was that the baby was stillborn.

An Austin baby sitter has spent years on Death Row for a baby’s murder. The medical examiner whose testimony helped put her there now says the baby’s death may have been an accident.

The medical examiner is the doctor-detective who is supposed to extract truth from the hodgepodge of details about a death. By examining body tissues, organs and fluids, gathering data from a crime scene and examining lab results, the medical examiner provides insight into how and why someone has died. Those judgments are of consequence for violent or suspicious deaths, as well as for unexplained deaths and those that might result from negligence or improper care.

County officials say the state’s system works well by unraveling questions surrounding death at a reasonable cost to taxpayers. In the courtroom, much of the work, they say, stands up to scrutiny.

But over the years, Texas medical examiners have misidentified bodies, botched examinations and had to do a double take on cases of individuals later exonerated by law enforcement. That has opened the door for innocent men and women to go to prison and killers to go free. The slapdash work of some medical examiners could also allow public health threats, wrongful deaths and preventable medical errors to go undetected, experts warn.

"The work of the medical examiner’s office is just so slipshod," said Tommy Turner, the former special prosecutor who put a Lubbock medical examiner behind bars for falsifying autopsies.

Critics say the medical examiner’s office is "the last bastion of junk science." The problems, they say, are similar to those that plagued the state’s crime labs for years: lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight.

"The state does not keep track of MEs in any shape, form or fashion," Bexar County Chief Medical Examiner Randall Frost said. The state doesn’t even know how many certified forensic pathologists work in government offices, he added.

And a medical examiner doesn’t have to be trained in forensics or pass a specialty exam to do an autopsy. All that’s required is a state medical license. That’s akin to having your family doctor do brain surgery, says a growing chorus of medical examiners.

"It’s a travesty for Texas," Frost said. "Most people are horrified that there are no qualifications for this field under the law. They are shocked when I tell them that."

"Autopsy caseloads require stopgap measures," is part 2.

Around the state, some medical examiner offices have relied on the work of medical school interns and unlicensed doctors, as well as physicians who have repeatedly failed certification exams or been disciplined for poor work — even for complex capital murder cases.

Relaxing qualification requirements is one way the offices have tried to keep up with overwhelming caseloads and a shortage of forensic pathologists.

Some pathologists also operate what critics deride as "path mills." That can lead to significant errors, undermining the criminal justice system, some medical examiners themselves worry.

"Justice becomes secondary when too many bodies come into the morgue every day and when too few people are doing the autopsy," Galveston County Chief Medical Examiner Stephen Pustilnik said.

Professionals say medical examiners should have specific certification in anatomic and forensic pathology, even though the state requires only a doctor’s license. Without the certification, says Bexar County Chief Medical Examiner Randall Frost, "that’s like graduating from medical school and immediately going in and doing a heart transplant."

Dallas County Chief Medical Examiner Jeffrey Barnard agrees, adding, "The fact that someone is not alive doesn’t change the quality of the expectations of the medical practice."

Texas doesn’t keep track of how many certified forensic pathologists work in the dozen county medical examiner offices; some put the number at 50. That’s not enough to serve large counties, let alone the 200-plus smaller ones that turn to them for autopsies.

"There’s only a certain number of doctors out there," Lubbock County Medical Examiner Sridhar Natarajan said.

Because of the shortage, even some larger medical examiner offices use noncertified pathologists. Records that the Star-Telegram obtained from the American Board of Pathology show that the head medical examiner in Laredo for Webb County is not board-certified. Neither is the one in El Paso.

"Questions raised about the 'science' of autopsies," is part 3 from Thursday's Star-Telegram.

A particular concern to critics is that some medical examiners may tailor their findings to fit theories developed by prosecutors and law enforcement, compromising the integrity of the criminal justice system.

It can be a sticky relationship. Medical examiners, police and prosecutors work together, but the medical examiner is supposed to be independent, letting the chips fall where they may.

"It needs to be arm’s length because they are forensic experts. By definition, that is somebody who has prepared for court . . . information as the fact-finder with a neutral, nonadvocate opinion of what happened," said Doug Lowe, criminal district attorney in Anderson County.

Galveston County’s chief medical examiner, Dr. Stephen Pustilnik, said that’s how his office works. "The medical examiner is supposed to help convict the guilty as well as exonerate the innocent. Those are two equal mandates for us."

To avoid bias, most medical examiner offices have checks in place. Tarrant is among those that hire death investigators to gather information from crime scenes so they don’t have to rely on law enforcement. However, Peerwani said he has to rely on police reports and photographs for autopsies he is called to do outside the four counties he serves as medical examiner.

A number of cases over the years point to practices in which critics say a boundary between the scientist and law enforcement was crossed.

Eric M. Freedman, a professor at New York’s Hofstra Law School who specializes in criminal procedure and strategy, is among those who say that medical examiner opinions are sometimes twisted and turned to fit the theories of prosecutors and law enforcement. "The medical examiner considers it his job to support whatever series of theories the prosecutors decide to dream up rather than focus on the objective truth," he said.

"That’s what I see happening," said Richard Ellis, an attorney for a Sulphur Springs man on Death Row. "If you start off with a goal in mind, it’s kind of easy to get through only looking at signs that point to that preconceived notion to how death occurred."

Such criticisms were raised in the case of 18-year-old Daniel Rocha, who died after being shot in the back by Austin police in 2005.

An initial autopsy reported that his body had no cuts or bruises, though police said he had fought with officers. Travis County Medical Examiner Roberto Bayardo did a retake and found that Rocha had abrasions on his right knee and chin. On initial tests, the medical examiner reported that Rocha was drug-free. Police suggested otherwise. Tests were rerun, confirming traces of marijuana. Bayardo said the second test was run with more sensitive equipment. The changes angered both community members and police.

The police chief fired the officer, citing questionable judgment in the shooting, and Austin paid a $1 million settlement to Rocha’s family.

Former Harris County Associate Medical Examiner Patricia Moore had opinions changed on several cases of infant homicides and was criticized by both defense attorneys and former Medical Examiner Joye Carter as having a bias in favor of law enforcement and prosecutors.

"If the law enforcement officer said it was a homicide . . . Patricia Moore came back and said it was a homicide," said Charlie Portz, an attorney for a woman who got a 17-year prison sentence based on Moore’s autopsy of her 2-month-old son. Brandy Briggs was released in 2005 after Moore’s conclusions were overturned by Harris County Chief Medical Examiner Luis Sanchez, who classified the cause of death as undetermined.

Portz filed an unsuccessful innocence claim on behalf of baby sitter Cynthia Cash, who is serving an eight-year prison term after Moore said the baby was a homicide victim. Pathologists who reviewed the case for Portz say the baby died of shock triggered by a combination of vaccines. Last year, Sanchez amended the cause of death to undetermined.

"Had this death been ruled undetermined at the time of the trial," Portz said, "Cynthia Cash would not have been indicted and never found guilty."

Moore now works for the Southeast Texas Forensic Center, a private company that does business as the Jefferson County Morgue and handles autopsies for 16 counties. She could not be reached for comment.

Part 4, in the Friday Star-Telegram is titled, "Some medical examiners boost their pay by offering expertise for sale."

Unlike the glitzy offices of CSI: Miami, the typical U.S. medical examiner’s office is an unremarkable place where professionals tend to be underpaid and overworked. The medical examiner’s job, in fact, carries little glamour. It is work that few really want to do and governments are not eager to pay for.

In Texas, though, some medical examiners boost their pay by also performing autopsies for dozens of the state’s smaller counties, consulting for criminal defense attorneys and doing other side jobs.

And counties can get additional revenues to help pay for the medical examiner’s office.

Some see no problem with the arrangements. Small counties can select the medical examiner who does the best work at the best price, they say.

"It’s a marketplace," said Donald Lee, executive director for the Texas Conference of Urban Counties. "If you don’t like the price you’re getting from one, go to the next one."

The integrity of the medical examiners ensures quality, said Doug Lowe, district attorney for Anderson County, southeast of Dallas. "The people who do forensic work by and large are real serious about their ethics and do not accept cases where the money is about, 'I’m paying you to testify a certain way,’ " he said.

Others, though, are troubled by some of the financial arrangements, which they say can chip away at the integrity of the work.

"The incentive is to run as many bodies through your morgue operation as possible," said Dr. Stephen Pustilnik, chief medical examiner in Galveston. "The more you can do, the more money you make."

Side-business associations also can be rife with conflict, critics say. If a medical examiner’s opinions displease repeat customers — counties, police and prosecutors — they can take their business elsewhere. And it may be difficult to verify whether a medical examiner improperly uses county equipment or facilities for private business.

Dallas County Chief Medical Examiner Jeffrey Barnard says he doesn’t do private consulting for ethical reasons. "No way," Barnard says.

T. Gerald Treece, professor of law at the South Texas College of Law in Houston, likened the private work to a district attorney having a part-time private practice. Such work is forbidden by standards that say the prosecutor should devote his primary effort to his office and should have no outside financial interests that could conflict with his duty.

No such ethics code bans medical examiners from moonlighting.

"I guess the real argument is, Can a public entity run a for-profit concern? In my opinion, it violates the fiduciary duty that the public officials have to the citizenry that hires them," Treece said.

Still to come on Saturday, the final installation, "Texas reform efforts torpedoed."

Reforms are being recommended nationwide, but in Texas a measure to strengthen the medical examiner’s office was vetoed.

Related articles are in the forensics category index.  Earlier coverage of the Cynthia Cash case is here.  Coverage of the NAS report begins here.

Texas Put in Uncomfortable Spotlight

That's the title of Ted Oberg's report on a U.S. Senate hearing for KTRK-TV, the ABC affiliate in Houston.  LINK

On Wednesday in Washington, senators took a tough look at Texas justice. They are concerned bad science is getting into America's courtrooms. And they used two Texas examples to make their point.

More than a third of all U.S. capital punishments are handed down in Texas. So the possibility that an innocent man was killed here is getting nationwide attention. Some here in Texas say we can't solve the problem on our own.

"An innocent man may've been executed for a crime he did not commit," pointed out Senators Patrick Leahy (D) of Vermont.

An 18-year-old north Texas arson case and the Houston Police Department's crime lab issues put the Lone Star State in an uncomfortably lonely spotlight. Senators are asking if they need to get more involved to guarantee junk science doesn't come into the courtroom.

And:

"We need to make sure that we make it plain that we understand that mistakes and errors were made and we are taking the appropriate steps," said Houston Police Department Chief Harold Hurtt.

In Houston, lawyers are still reviewing convictions based on potentially flawed science from Houston's crime lab. It's too late to change the case of Cameron Willingham, a Corsicana father executed in 2004 for reportedly setting a fire that killed his three children in 1991.

Today, five years later, a scientist hired by the state of Texas says an arson claim could not be supported.

"This may the one. This may be the case where it can clearly be documented that an innocent person had been executed," said Senator Rodney Ellis (D) of Houston.

And:

"It is very difficult for Texas to police itself on the death penalty," said Senator Ellis.

That leads us to Washington for Wednesday's hearing.

"I found the article extremely disturbing and the findings of the National Academy's report terrifying," said Senator Al Franken (D) of Minnesota.

Peter Neufeld told Senator Franken a death penalty moratorium is in order nationwide. Chief Hurtt told senators national science standards may be enough to guarantee past mistakes won't be made again.

"We need the ability to increase capacity to train all the scientists in the state as well as develop a facility so that we can have the capacity to do more as far as DNA," said Chief Hurtt.

More on the hearing, "Strengthening Forensic Science in the United States," is at the U.S. Senate Judiciary Committee website.  You can watch the webcast of the hearing and read testimony submitted by the witnesses.

Dr. Eric Buel
Laboratory Director - Vermont Forensic Laboratory
State of Vermont Department of Public Safety; Waterbury, VT

Peter Neufeld
Co-Director - The Innocence Project
New York, NY

Harold Hurtt
Chief of Police - Houston Police Department
Houston, TX

Paul Giannelli
Professor - Case Western Reserve University
Cleveland, OH

Barry Matson
Deputy Director - Alabama District Attorneys Association
Chief Prosecutor - Alabama Computer Forensics Laboratories
Montgomery, AL

Matthew F. Redle
County and Prosecuting Attorney - Sheridan County
Sheridan, WY

Senators Patrick Leahy, the Committee Chairman, Russ Feingold, and Al Franken made statements at the hearing.  Here's an excerpt from Senator Leahy's statement:

In March, this Committee began our examination of the serious problems in forensic science that can go to the heart of our criminal justice system. Today, we hear from representatives of the professional communities that must work together to help solve these problems.

Much important work is done through forensics, and those with us today should be proud of their good work. Scientific advancements can help prove guilt and can also exonerate the innocent. We need to do all we can to ensure that forensic science rises to the highest scientific standards and has the maximum possible reliability.

Unfortunately, since the report and testimony from the National Academy of Sciences earlier this year, we have heard even more about the severity of the problems before us. The current issue of The New Yorker includes an article that presents strong evidence that in 2004 the unthinkable may have happened: An innocent man may have been executed for a crime he did not commit, based in large part on forensic testimony and evidence.

Soon this Committee will turn to reauthorizing and strengthening the Innocence Protection Act, which provides important tools to prevent that kind of tragedy. The key point for today's hearing is that the prosecution of Todd Willingham discussed in that New Yorker article rested largely on forensic evidence, in that case burn analysis, that may not have had any scientific basis. Our criminal justice system, particularly in the most serious cases, must rest on facts.

Also this summer, the Supreme Court held in the case of Melendez-Diaz vs. Massachusetts that forensic examiners must present evidence in court and be subject to cross examination, rather than simply submitting reports of their findings. This Supreme Court holding stems from a recognition that forensic findings may not always be as reliable as we would hope, or they might appear.

An excerpt from Senator Feingold's remarks:

Just recently, there have been extremely disturbing reports that faulty forensic evidence may have led to a conviction in a Texas capital case – one in which the defendant has already been executed. Cameron Todd Willingham was executed in Texas in 2004 after he was convicted of arson murder in 1992. In the years since his execution, multiple reports have concluded that the forensic science used to convict Willingham was erroneous. Indeed, there are serious questions about whether the fire was caused by arson in the first place. In a recent report to the Texas Forensic Science Commission critiquing the Willingham investigation, arson expert Craig Beyler concluded that "a finding of arson could not be sustained" using current professional standards or the professional standards in place at the time of the investigation. Willingham proclaimed his innocence until the day he was executed.

Mr. Chairman, one wrongful conviction is tragic. Hundreds of wrongful convictions are unacceptable. If a wrongful conviction leads to an innocent person being executed, it is a disgrace to our system of justice.

Earlier coverage of Todd Willingham begins here.  All posts are in the Todd Willingham category index.  Coverage of congressional hearings can be found in the federal legislation index.

Update on the Sonnier Case

"Inmate fighting to clear name leaves jail," is Brian Rogers updated report posted at the Houston Chronicle.

A Houston man sentenced to life in prison in 1986 walked out of jail today pending further investigation of the DNA evidence that put him away for aggravated kidnapping in the abduction and rape of an Alief woman more than 20 years ago.

Innocence Project lawyers for Ernest Sonnier won the 46-year-old's release on a personal recognizcance bond pending further investigation, a move that was not opposed by the Harris County District Attorney's Office, spokeswoman Donna Hawkins said.

DNA testing over the past 18 months implicated two convicted felons as the actual perpetrators of the 1985 crime, said Alba Morales, the Innocence Project staff attorney handling the case. He said the organization has conducted nine rounds of DNA testing since March 2008.

Standing in fron of the Harris County jail, flanked by friends and family, Sonnier said he spent years watching news accounts of innocent men who were freed and always wondered the same thing: "When's my turn coming?"

Today was the day.

In a hearing this morning, state District Judge Michael McSpadden ordered Sonnier's release while the legal process of exonerating him moves forward. He was freed early this afternoon.

Earlier coverage is here.

Another Texas Exoneration

Today's Houston Chronicle reports, "Inmate expected to be freed as DNA is reviewed."  It's written by Brian Rogers.

A Houston man sentenced to life in prison in 1986 is expected to be released today pending further investigation of the DNA evidence that put him away for aggravated kidnapping in the abduction and rape of an Alief woman more than 20 years ago.

Innocence Project lawyers for Ernest Sonnier are expected to ask for the 46-year-old's release on bail pending further investigation, a move that will not be opposed by the Harris County District Attorney's Office, spokeswoman Donna Hawkins said.

DNA testing over the past 18 months implicated two convicted felons as the actual perpetrators of the 1985 crime, said Alba Morales, the Innocence Project staff attorney handling the case. He said the organization has conducted nine rounds of DNA testing since March 2008.

State District Judge Michael McSpadden is expected to consider releasing Sonnier while the legal process of exonerating him moves forward.

In a statement released by the Innocence Project, co-director Barry Scheck called Houston “ground zero” of a national epidemic of faulty forensic science.

“This case is the latest in a well-documented and disturbing pattern of analysts making misleading interpretations to support the prosecution's case and explain away evidence that defendants may be innocent,” Scheck said. “There are still thousands of cases from the Houston Crime Lab that need to be reviewed, and that needs to happen quickly. In many ways, Houston is a symptom of the root problem, which is a lack of national standards and oversight for forensic science.”

To date, four men convicted in Harris County courts have been released from prison after faulty crime lab work on their cases was uncovered. A fifth has been released pending a final hearing.

Following revelations of problems in four divisions of the Houston Police Department crime lab — DNA, serology, ballistics and toxicology — the city hired a former U.S. Justice Department official, Michael Bromwich, to investigate the facility.

The investigation and report, which cost $5.3 million, exposed possible problems with numerous cases and prompted calls for the creation of an independent regional crime lab.

"DNA Testing Proves Houston Man's Innocence in 1985 Rape; Case Highlights Serious Problems with Forensic Science," is the title of the Innocence Project's news release.  Here's an excerpt:

New DNA test results show that Ernest Sonnier did not commit a 1985 rape for which he was convicted in Houston in 1986. The DNA testing implicates two convicted felons as the actual perpetrators of the crime. At a hearing Friday, the Innocence Project, which represents Sonnier, will ask a judge to release him on bond while the legal process of fully exonerating him moves forward.

“We fully expect Ernest Sonnier to be home with his family on Friday night for the first time in more than 23 years,” said Alba Morales, the Innocence Project Staff Attorney handling the case. “This is a complicated case, but the bottom line is simple: Ernest Sonnier is innocent, and his long nightmare is coming to an end. We have conducted nine rounds of DNA testing on multiple pieces of evidence for the last 18 months. Not a shred of evidence ties Ernest to this crime, but DNA testing has identified the two apparent perpetrators.”

And:

Earlier this year, the National Academy of Sciences released an unprecedented report finding serious problems in forensic science nationwide and calling for the creation of a National Institute of Forensic Science. This independent, science-based agency would stimulate research to strengthen forensic disciplines, set standards for what science can be used in the criminal justice system and how it should be used, and oversee enforcement of those standards. For more on the report and efforts to implement its recommendations, visit the Just Science Coalition website.

Among the nation’s 241 DNA exonerations to date, approximately 50% involved unvalidated or improper forensic science, according to the Innocence Project, which is affiliated with Cardozo School of Law. “Every time problematic forensic science implicates an innocent person, an actual criminal goes free. Our system of justice will be more accurate, fair and reliable once we make sure forensic evidence is based on solid science, and we hope members of the U.S. House and Senate from Texas will help lead the way,” Scheck said.

In Sonnier’s case, the Harris County District Attorney’s office cooperated on an extensive reinvestigation and review of the conviction. The Innocence Project began representing Sonnier in 2006 after thoroughly researching his case for two years. Once Harris County District Attorney Patricia Lykos was elected last year and created a Conviction Integrity Unit to look closely at cases like this, prosecutors assisted with DNA testing and other investigation that led to the two apparent perpetrators. “Before the new D.A. was elected, prosecutors dragged their feet on this case, but the new Administration has been cooperative and focused on getting to the truth,” Scheck said.

More on the HPD Crime Lab scandal, including links to the Bromwich reports, begins with this post; related articles in the crime lab and exoneration indexes.

Lab Analyst Decision Complicates Prosecutions

That's the title of a report in today's Washington Post on the aftermath of the Supreme Court's ruling in  Melendez-Diaz v. Massachusetts, last month.  Subitled, "High Court Requires Scientists to Testify," it's written by Tom Jackman.

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper.

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

And:

The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.

Last month's Supreme Court ruling emerged from a case in which Luis E. Melendez-Diaz allegedly stashed cocaine in a Boston police car while he was under arrest. The certificate of analysis, determining that the white powder found in the car was cocaine, was entered without a technician's testimony and with only minor objection.

Scalia wrote that Melendez-Diaz "was entitled to 'be confronted with' the [lab] analysts at trial."

The ruling was 5 to 4, and the dissent written by Justice Anthony M. Kennedy predicted a real-world disaster. "The Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear," Kennedy wrote.

Kennedy added, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision, adding nothing to the truth-finding process."

In Manhattan, a unique situation in the medical examiner's office could result in disaster for homicide cases, Chief Assistant District Attorney Mark Dwyer said. The personnel turnover in the medical examiner's office is so great that the pathologist who performs an autopsy on a victim often is not still employed there 18 months later, when the case goes to trial. So the accepted practice in courts has been to admit the autopsy report without any testimony by the person who determined the cause of death, Dwyer said.

In addition, New York's DNA lab uses an assembly line approach in which as many as 12 people have roles in breaking down and analyzing a piece of evidence for traces of DNA, Dwyer said. "We would be extremely concerned if the [Melendez] issue extended into DNA analysis and autopsy reports," he said. "That would have a major and negative impact on the ability to process serious cases."

Earlier coverage of Melendez-Diaz begins here.  Briscoe, et al., v. Virginia will be argued in the Supreme Court's 2009-2010 term which begins in October.

Colb on Melendez-Diaz

At FindLaw.com, regular columnist Sherry Colb writes, "The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms."  Here's the beginning of a must-read for those who want to dig deep into the ruling.

Last week, the U.S. Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts. The Court held that the prosecution may not introduce into evidence a sworn certificate showing the results of forensic analysis (specifically, the fact that a seized substance was cocaine) without triggering the defendant's Sixth Amendment right to confront the witnesses against him. This holding means that if the analyst who certified forensic test results will not appear at trial, then the trial court must exclude the certificate.

Though Justice Scalia's majority opinion expressed great confidence in this result, the dissenting opinion (which reflected the views of four Justices) was equally disdainful of it. The combination of the two exposes a startling lack of consensus among the Justices about the constitutional status of hearsay, a basic feature of interpreting a core protection in the Bill of Rights.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him." Two questions arise from this text: What is involved in being confronted? And, who counts as a "witness against" the defendant? The second question is the one that most occupied the majority's attention in the Court's recent decision.

No one seems to dispute that the category of witnesses that trigger confrontation rights includes, at the very least, the people who testify for the prosecution at a defendant's criminal trial. And for such witnesses, confrontation means availability for cross-examination. Thus, the defendant has a right to cross-examine every prosecution witness who appears at trial. If a witness dies of natural causes after testifying against the defendant, but before being subject to cross-examination, then the judge must (at a minimum) instruct the jury to disregard that witness's testimony. And if the testimony is necessary to prove guilt beyond a reasonable doubt, then the case must be dismissed.

But does anything or anyone else (aside from witnesses who testify for the prosecution at a criminal trial) count as "witnesses against" the defendant for Confrontation Clause purposes? One controversial possibility is that when the prosecution offers hearsay against the defendant, the speakers of such hearsay are always and necessarily "witnesses against" the defendant and must therefore also be subject to cross-examination by the defense, just as they would be if they had appeared as live witnesses.

Earlier coverage of the ruling is here; more at the Scotus Wiki Melendez-Diaz page.

The Charles Raby Case

"HPD crime lab back in the spotlight," is the title of Roma Khanna's report in today's Houston Chronicle.

A death row inmate from Houston, whose conviction is receiving new scrutiny after DNA tests contradicted evidence in his case, will return to court next week where his lawyer will seek his release or a new trial.

A Harris County jury sentenced Charles D. Raby to death in the 1994 murder of a 72-year-old woman assaulted and stabbed in her own home. It is a case that once again highlights errors in work from the Houston Police Department crime lab, with the city’s own expert calling the original testimony “incorrect … and not supported.”

State District Judge Joan Campbell on Monday is scheduled to resume a hearing that began in January when Raby’s lawyer presented new DNA tests on scrapings from the victim’s fingernails, which include no evidence from Raby. Since then, his case has stalled as prosecutors and the Houston Police Department sought expert opinions.

Raby’s lawyer, Sarah Frazier, goes so far as to call the crime lab evidence presented at trial false and claimed prosecutors failed to disclose information about the forensic tests that could have helped Raby before his 1994 trial.

“Trying to pretend that Mr. Raby’s trial was at all legitimate is becoming more and more strained,” Frazier said. “He clearly is entitled to a new trial after all this time.”

The Harris County District Attorney’s office has maintained that the new fingernail evidence is inconclusive and does not clear Raby. Prosecutors on the case were unavailable Friday and a spokeswoman for the district attorney’s office declined comment.

In January, Assistant District Attorney Lynn Hardaway said the new evidence should not affect Raby’s conviction because “the absence of DNA doesn’t mean he didn’t do it.”

And:

At Raby’s trial, jurors heard testimony from HPD crime lab analyst Joseph Chu, who told them that tests conducted on scrapings from under Franklin’s fingernails were inconclusive.

Years later, as revelations about chronic problems at the HPD crime lab came to light, Raby’s case received a second look.

Experts questioned Chu’s conclusions. Patricia Hamby, an expert hired by HPD, found that Chu had strayed from accepted procedures for body-fluid testing and had drawn faulty conclusions.

“The reporting of the blood typing of the ‘fingernails’ as ‘inconclusive’ … is contrary to and not supported by the recorded laboratory results,” Hamby wrote in a report last month to Irma Rios, HPD’s crime lab director.

In 2005, the Court of Criminal Appealsapproved DNA testing on the fingernail scrapings. A private lab in California last year completed analyses that revealed the profiles of two men. They matched neither Raby nor Franklin’s two grandsons.

“The grandsons’ exclusion is significant because these were the only individuals who had regular contact with the victim — a frail, malnourished woman in her 70s who rarely left her home or entertained strangers,” Frazier wrote.

In fact, a forensic expert hired by Raby’s lawyers testified in January that it is rare to find foreign DNA under a crime victim’s fingernails, and that if often can be traced to the person’s partner or attacker.

Khanna, who covered the HPD Crime Lab scandal for years, also wrote an earlier version for the Chronicle website, "Judge seeks expert testimony in Death Row inmate's case."

A Harris County judge wants to hear testimony from a forensic expert before deciding whether new DNA evidence is favorable to death row inmate Charles D. Raby, condemned in the 1994 murder of an elderly woman.

Raby’s conviction is receiving new scrutiny because DNA tests contradict evidence from the Houston Police Department crime lab in his case. His lawyer is seeking his release or a new trial.

On Monday, state District Judge Joan Campbell delayed closing arguments in an evidentiary hearing on the DNA evidence to allow testimony from the city’s expert, Patricia Hamby. She has called the original testimony and lab work by HPD analyst Joseph Chu “incorrect … and not supported.”

Hamby, who is based in Indiana, is expected to testify sometime next month. After her appearance, Campbell will decide whether the new evidence is favorable to Raby’s case, a decision that could provide an opening for his attorney to seek his release or a new trial.

The Houston Press has, "Death-Row Inmate Finally Gets A Break In Crime-Lab Case," by Mike Giglio.

An outside expert, Patricia P. Hamby, determined that the much-maligned Houston Crime Lab had been, at best, misleading in reporting its blood work during the original trial. Blood was found under the victim's fingernails, and it belonged to neither Raby nor the victim. Yet analyst Joseph Chu reported the results as "inconclusive".

It remained to be seen whether Hamby's conclusion would be relevant within the narrow confines of Raby's challenge. That question seemed to be answered this morning, when the judge decided to both accept Hamby's testimony into the record and hear from her in person.

That means closing arguments, scheduled for this week, will be put off indefinitely -- yet again -- until Hamby can appear before the judge.

"I don't know exactly who's going to pay for it. I don't know whose witness she's going to be. But one way or another Patricia Hamby is going to come down to Houston and tell us what she discovered," Sarah Frazier, Raby's lawyer, tells Hair Balls. "I think it's powerful stuff."

Related articles are in the crime lab category index; coverage of the HPD Crime Lab problems, here.

New Lab Report Case Granted - UPDATED

That's the title of Lyle Denniston's SCOTUS Blog post, concerning today's cert grant in Briscoe, et al., v.
Virginia, 07-11191.

The Supreme Court, in the final round of orders for the Term, agreed on Monday to review a sequel to its decision last week limiting the use of crime lab reports as evidence in criminal trials. The new case (Briscoe, et al., v. Virginia, 07-11191) involves the constitutionality of a procedure used in Virginia that requires an accused to assert a demand to question the technician who prepared the lab report. The state Supreme Court ruled that, if an accused does not follow the demand procedure, he surrenders his right to confront and cross-examine the report's author. 

UPDATED - Denniston's post has been updated and retitled, "Analysis: Is Melindez-Diaz already endangered?" 

"Forensic ruling adds burden for prosecutors," is the title of Tony Mauro's report on the Melindez-Diaz ruling in today's National Law Journal.

Both sides agree: The U.S. Supreme Court's June 25 ruling requiring that forensic evidence be presented at criminal trials by a witness who can be cross-examined will impose new burdens on prosecutors.

But initial reaction to the 5-4 decision in Melendez-Diaz v. Massachusetts was split over how big that burden will be — or whether it's a cost that just has to be borne to meet the requirements of the Sixth Amendment's confrontation clause. The Court said that written lab reports or affidavits alone won't suffice.

"I don't think there's any doubt it is going to be burdensome," said Sidley Austin partner Jeffrey Green, who wrote a brief in the case for the National Association of Criminal Defense Lawyers. "But so is a jury trial. All constitutional rights are burdensome to a degree, but it's difficult to imagine anything more critical to the outcome of a trial than examining whether a substance really is what it is."

Massachusetts Attorney General Martha Coakley, who argued and lost the case before the high court, said that "the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the commonwealth's courts." Prosecutors say laboratory personnel will be diverted to waiting for court appearances instead of processing drug and DNA evidence.

And:

Justice Antonin Scalia wrote the opinion, which flows from his 2004 landmark decision in Crawford v. Washington that breathed new life into the confrontation clause. That part of the Sixth Amendment gives a person accused of crimes the right "to be confronted with the witnesses against him." Luis Melendez-Diaz invoked Crawford to challenge his conviction on drug trafficking charges, which was based in part on a certificate presented at trial — but not by a witness — stating that the substance obtained from his car was cocaine. State courts upheld the conviction.

In the Melendez-Diaz opinion, Scalia said the confrontation clause allows no way of presenting such evidence other than by a witness who can be cross-examined. "The Confrontation Clause," wrote Scalia, "is binding, and we may not disregard it at our convenience." Scalia also displayed a measure of skepticism about forensic evidence in a passage likely to be quoted often by defendants on appeal. "Forensic evidence is not uniquely immune from the risk of manipulation," Scalia wrote, in explaining why it should be subjected to scrutiny at trial.

More at the Melendez-Diaz Scotus Wiki page; earlier coverage at StandDown, here.

Questioning Forensic Evidence

That's the title of a column in National Law Journal written by UC-Davis Law prof Edward J. Imwinkelried.  It's subtitled, "A recently released NAS report raises a host of issues."

The July 28, 2008, edition of this column highlighted a pending U.S. Supreme Court case, Melen­dez-Diaz v. Massachusetts, No. 07-591, which may have a major impact on the admissibility of expert testimony in federal court, especially in criminal cases. Of course, judicial decisions are not the only developments that can affect the future of expert testimony. In February of this year, the National Research Council of the National Academies of Science (NAS) released a long-awaited report, Strengthening Forensic Science in the United States: A Path Forward. Like the decision in Melendez-Diaz, that report could play a major rule in shaping the future treatment of expert evidence.

And:

It is far too early to make any confident predictions about the eventual impact of the NAS report. The proposal for the NIFS may prove to be only wishful thinking. Likewise, it is possible that the report will have little or no impact on the courts' treatment of expert testimony. After all, Federal Rule of Evidence 702 is worded in the alternative: "scientific, technical or other specialized knowledge." That statutory language permits the proponent to argue that, even if the expert's technique falls short of qualifying as "scientific...knowledge," the judge should characterize the testimony as "technical" evidence and use a relaxed admissibility standard.

The Supreme Court's 1999 decision in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), seems to foreclose that approach in federal court. However, the states remain free to interpret their version of Rule 702 in a different manner. E.g., State v. Fukusaku, 946 P.2d 32 (Hawaii 1997). The upshot is that the path forward may be neither straight nor short.

Earlier coverage of the NAS report is here.

'Dallas DNA' Premieres Tomorrow

Jennifer Emily writes, "'Dallas DNA' spotlights county's conviction integrity unit," for today's Dallas Morning News.

Some Dallas County courtroom dramas are going prime time.

A new television show, Dallas DNA, focuses on the work of local prosecutors to free the wrongly convicted and ensure convictions are fair. It premieres Tuesday night on Investigation Discovery.

The program features men exonerated for crimes they did not commit, the trial of a man linked to a rape and murder by DNA two decades later and people who claim innocence but are shown through genetic testing to have committed crimes. It also features Dallas County District Attorney Craig Watkins' ambivalence about capital punishment even as he participated in a death penalty case.

"I think a lot of people thought we were just concerned with the innocence side," Watkins said. "But you get to see the integrity side where we see how we're concerned with how our convictions are obtained."

Investigation Discovery will air six episodes of Dallas DNA on consecutive Tuesdays. Depending on response to the show, more episodes could be ordered.

The conviction integrity unit was formed after Watkins took office in January 2007 in response to the county's DNA exonerations. So far 19 men have been exonerated. That's more than any other county in the nation since 2001, when Texas began allowing post-conviction DNA testing.

Christo Doyle, executive producer of Dallas DNA, said Investigation Discovery was drawn to the "revolutionary" work of the conviction integrity unit.

"What I like most about this series is that every case is very unique," Doyle said. "The strength of the series is the variety."

Doyle said although he cannot pick a favorite episode, he is most drawn to the first, called "Sweet Justice." That episode features Johnnie Lindsey, who spent 26 years in prison for a sexual assault he did not commit.

"After you see him exonerated after 26 years, you literally see him coming to life," Doyle said.

The program's website is here.  Earlier coverage of the program is here.

NAS Report Released

"Study Calls for Oversight of Forensics in Crime Labs," is the New York Times report by Solomon Moore.

Crime laboratories around the country are grossly underfunded, lack a scientific foundation and are compromised by critical delays in analyzing physical evidence, according to a broad study of forensic techniques published Wednesday by the National Academy of Sciences, the nation’s premier scientific body.

Among its many criticisms, the study counted a backlog of 359,000 requests for forensic analysis in 2005, a 24 percent increase in delays since 2002. A survey of crime laboratories found 80 percent of them to be understaffed.

A new federal agency is needed to regulate these laboratories, standardize forensic techniques and pay for research, according to the report, which was financed by Congress in 2005.

The study recommends that an agency, to be called the National Institute of Forensic Science, be created and be independent of the Justice Department, which has traditionally been the nation’s primary forensics research agency. Crime laboratories should be managed separately from police departments to ensure that their findings are protected from bias, the report said.

“The potential for conflicts of interest between the needs of law enforcement and the broader needs of forensic science are too great,” the authors wrote.

The report, the product of a two-year review by the academy, an independent body, is not legally binding. But legislators from both parties have already committed to holding hearings on the study, and officials from all the federal law enforcement agencies are reviewing the document in anticipation of possible policy changes.

“I am troubled by the report’s general finding that far too many forensic disciplines lack the standards necessary to ensure their scientific reliability in court,” said Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the committee, said he was also troubled by the findings.

The report calls into question the scientific merit of virtually every commonly used forensic method, including analysis of fingerprints, hair, fibers, blood spatters, ballistics and arson. Only DNA, which the panel said had benefited from rigorous scientific scrutiny and peer review outside of the forensics discipline, escaped significant criticism.

“The fact is that many forensic tests, such as those used to infer the source of tooth marks and bite marks, have never been exposed to stringent scientific scrutiny,” the report said. The report highlights crime laboratory scandals involving hundreds of tainted cases handled by police agencies in Michigan, Texas and West Virginia, and by the Federal Bureau of Investigation. At least 10 wrongly convicted men have been exonerated as a result of those laboratory investigations, and the cases of hundreds of other people convicted with the help of those facilities are under review.

"Report: Real-world CSI's lack consistent standards," is the AP report by Devlin Barrett, via the Washington Post.

The report calls into question the scientific merit of virtually every commonly used forensic method, including analysis of fingerprints, hair, fibers, blood spatters, ballistics and arson. Only DNA, which the panel said had benefited from rigorous scientific scrutiny and peer review outside of the forensics discipline, escaped significant criticism.

“The fact is that many forensic tests, such as those used to infer the source of tooth marks and bite marks, have never been exposed to stringent scientific scrutiny,” the report said. The report highlights crime laboratory scandals involving hundreds of tainted cases handled by police agencies in Michigan, Texas and West Virginia, and by the Federal Bureau of Investigation. At least 10 wrongly convicted men have been exonerated as a result of those laboratory investigations, and the cases of hundreds of other people convicted with the help of those facilities are under review.

The panel also found that most of the nation is served by death investigation offices that lack accreditation. It cited an 18-year-old high school student in Indiana who was recently elected deputy coroner after a short training course.

The academy said that in addition, judges and lawyers generally lacked the scientific expertise necessary to “comprehend and evaluate forensic evidence in an informed manner.”

Attorney General Eric H. Holder Jr. said his office would be reviewing the report over the next several days.

“We have the potential to solve a lot of crimes, to find people who are guilty and to absolve a lot of people who are not through the use of these great forensic techniques,” Mr. Holder said.

"National report finds forensic science labs underfunded, understaffed and without proper oversight," is Marcia Coyle's web-only report at National Law Journal.

Among the recommendations in the report, which has been presented to Congress, are the following:

• Certification should be mandatory for forensic science professionals. Among the steps required for certification should be written examinations, supervised practice, proficiency testing and adherence to a code of ethics. Accreditation for laboratories should be required as well. Labs should establish quality-control procedures designed to ensure that best practices are followed, confirm the continued validity and reliability of procedures, and identify mistakes, fraud and bias.

• To ensure the efficacy of the work done by forensic scientists and other practitioners in the field, public forensic science laboratories should be made independent from or autonomous within police departments and prosecutors' offices.

• In addition to investigating the limits of the forensic techniques themselves, studies should also examine sources and rates of human error. As part of this effort, more research should be done on "contextual bias," which occurs when the results of forensic analysis are influenced by an examiner's knowledge about the suspect's background or an investigator's knowledge of a case. One study found, for example, that fingerprint examiners did not always agree even with their own past conclusions when the same evidence was presented in a different context.

• Standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as "match," "consistent with," and "cannot be excluded as the source of" — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.

• Any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible — quite the contrary, said the committee.

• The recommended new National Institute of Forensic Science should have a full-time administrator and an advisory board with expertise in research and education, the forensic science disciplines, physical and life sciences, and measurements and standards, among other fields.

The report was sponsored by the National Institute of Justice at the request of Congress. The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies. They are private, nonprofit institutions that provide science, technology and health policy advice under a congressional charter. The Research Council is the principal operating agency of the National Academy of Sciences and the National Academy of Engineering.

The report is available here; earlier coverage, here.

Science Found Wanting in Nation’s Crime Labs

That's the title of a news article in today's New York Times written by Solomon Moore.  LINK  Here's the top of this must-read:

Forensic evidence that has helped convict thousands of defendants for nearly a century is often the product of shoddy scientific practices that should be upgraded and standardized, according to accounts of a draft report by the nation’s pre-eminent scientific research group.

The report by the National Academy of Sciences is to be released this month. People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court. It concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies, say forensic professionals, scholars and scientists who have seen review copies of the study. Early reviewers said the report was still subject to change.

The result of a two-year review, the report follows a series of widely publicized crime laboratory failures, including the case of Brandon Mayfield, a lawyer from Portland, Ore., and Muslim convert who was wrongly arrested in the 2004 terrorist train bombing in Madrid that killed 191 people and wounded 2,000.

American examiners matched Mr. Mayfield’s fingerprint to those found at the scene, although Spanish authorities eventually convinced the Federal Bureau of Investigation that its fingerprint identification methods were faulty. Mr. Mayfield was released, and the federal government settled with him for $2 million.

In 2005, Congress asked the National Academy to assess the state of the forensic techniques used in court proceedings. The report’s findings are not binding, but they are expected to be highly influential.

“This is not a judicial ruling; it is not a law,” said Michael J. Saks, a psychology and law professor at Arizona State University who presented fundamental weaknesses in forensic evidence to the academy. “But it will be used by others who will make law or will argue cases.”

Legal experts expect that the report will give ammunition to defense lawyers seeking to discredit forensic procedures and expert witnesses in court. Lawyers could also use the findings in their attempts to overturn convictions based on spurious evidence. Judges are likely to use the findings to raise the bar for admissibility of certain types of forensic evidence and to rein in exaggerated expert testimony.

The report may also drive federal legislation if Congress adopts its recommendations. Senator Richard C. Shelby, Republican of Alabama, who has pushed for forensic reform, said, “My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs.”

Forensics, which developed within law enforcement institutions — and have been mythologized on television shows from “Quincy, M.E.” to “CSI: Miami” — suffers from a lack of independence, the report found.

New Concerns Over DNA Testing and Analysis

"The danger of DNA: It isn't perfect," was featured in Thursday's Los Angeles Times.  The article was written by Maura Dolan and Jason Felch.  Here's a brief excerpt from this must-read.

DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable.

But as the nation rushes to take advantage of DNA's powers, it is becoming clear that genetic sleuthing also has significant limitations:

* Although best known for clearing the wrongfully convicted, DNA evidence has on occasion linked innocent people to crimes. In the lab, it can be contaminated or mislabeled; samples can be switched. In the courtroom, its significance has often been overstated by lawyers or misunderstood by jurors.

* The rush to collect DNA and build databases has in some cases overwhelmed the ability of investigators to process the evidence and follow up on promising leads. Some crime labs have huge backlogs of untested evidence, including thousands of rape evidence kits. In some cases, criminals who could have been caught have offended again.

* Debates have flared over civil rights and privacy, presaging possible constitutional challenges to DNA collection and storage. Critics object, for instance, to storing DNA from people arrested but not convicted of crimes and from suspected illegal immigrants.

In Britain, which has the world's most aggressive approach to forensic DNA, a legal backlash has already begun. The European High Court of Human Rights ruled this month that the country's indefinite storage of DNA from people merely arrested for crimes violated privacy rights. Britain has until March to submit plans for destroying samples or to make a case for keeping them.

In the U.S., authorities are plunging ahead with a dramatic databank expansion.

A California initiative passed in 2004 will permit authorities, starting in January, to store DNA from anyone arrested on suspicion of felonies and serious misdemeanors, even if they are not ultimately convicted.

California's database is expected to swell by about 300,000 DNA profiles next year, bringing the total to 1.4 million.

The FBI's national database, which already contains 6.4 million profiles, is projected to add about 1.3 million annually from federal arrestees and illegal immigrants alone.

The DNA category index is here.  Dolan and Felch also collaborated on "How Reliable Is DNA in Identifying Suspects?"

Melendez-Diaz v. Massachusetts, No. 07-591

Yesterday, the U.S. Supreme Court heard oral arguments in the above-styled case.  The transcript is here.

"Court Weighs How Juries Should Hear Lab Evidence," is Adam Liptak's report in today's New York Times.

The Supreme Court heard arguments on Monday in a case that could have broad implications for how prosecutors present evidence from crime laboratories at trial.

Many states allow reports from crime laboratories to be submitted to juries through written certifications rather than live testimony. That practice is convenient, but it may run afoul of the Sixth Amendment’s “confrontation clause,” which guarantees criminal defendants the right to confront the witnesses against them.

Several justices seemed to struggle to find the dividing line between the kinds of information that must be presented through live testimony and those that are routine, reliable or tangential enough to require only a written certification. The justices also indicated that they were aware of recent scandals at major crime laboratories involving the flawed analysis of blood, hair, ballistics and other evidence.

Justice Stephen G. Breyer cited a supporting brief filed by the National Innocence Network in the case, Melendez-Diaz v. Massachusetts, No. 07-591. The brief, Justice Breyer said, “is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong.”

“They lost the results,” Justice Breyer said of the laboratories. “They got it all wrong.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Martha Coakley, the attorney general of Massachusetts, argued that requiring live testimony from laboratory analysts “would be an undue burden with very little benefit to the defendant.”

"Argument analysis: As Kennedy goes…," is Lyle Denniston's report at SCOTUS Blog.

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts  (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch.  Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

"Coakley: Forensics testimony a burden," is by Boston Globe correspondent Jenny Paul.

Massachusetts Attorney General Martha Coakley told the Supreme Court yesterday that requiring forensic scientists to testify at criminal trials where their reports are presented as evidence would place an undue burden on the state's already-backlogged drug testing system.

Misdemeanor drug prosecutions in Massachusetts "would grind to a halt," said Coakley, who was arguing before the Supreme Court for the first time.

The case centers on whether a defendant's Sixth Amendment right to confront witnesses against him applies to the admission of drug analysis certificates as evidence at criminal trials. If it does, the analysts who prepare the reports could be required to provide live testimony in court.

The case involves Luis Melendez-Diaz, who was convicted in 2004 of trafficking cocaine and sentenced to three years in prison. Boston police arrested Melendez-Diaz in 2001 and seized bags filled with powdery substances, later determined to be cocaine by chemists at the state Department of Public Health's drug analysis laboratory. The drug analysis certificates were presented as evidence at Melendez-Diaz's trial, but the analysts who prepared the reports did not testify. He is now appealing the verdict to the Supreme Court.

The justices acknowledged that their decision could have far-reaching effects on the backlog and workload at crime labs nationally.

"This is a very, very substantial burden" if the court rules that states must have analysts testify at trials, Justice Anthony Kennedy said.

"Court weighs nature of lab evidence," is Joan Biskupic's report in USA Today.

"Introducing forensic laboratory reports (without live witnesses) is the modern equivalent of trial by affidavit," said Stanford University law professor Jeffrey Fisher, representing Luis Melendez-Diaz, who was convicted of cocaine trafficking. Fisher challenged a Massachusetts policy, similar to others nationwide, that allows forensic analysts to submit certificates — here, a report on the authenticity and quantity of cocaine seized — without testifying.

Massachusetts Attorney General Martha Coakley countered that forcing lab workers to testify would be costly and time-consuming. "Misdemeanor drug prosecutions would essentially grind to a halt," she said.

The question is whether lab reports should be considered "testimonial," rather than objective public records. If they are testimonial, they would be subject to the Sixth Amendment right to confront witnesses.

In recent years, the court has more broadly interpreted the right to confront witnesses. Justice Antonin Scalia, who was among those sympathetic to Melendez-Diaz's claim, has taken the lead in making it harder for witnesses' statements to be introduced without testimony.

Thirty-five states are siding with Massachusetts. One of the groups backing Melendez-Diaz, the National Innocence Network, says forensic evidence is wrongly assumed to be infallible. The group asserts that in most of the exonerations it has obtained, forensic errors, such as blood type testing, played a key role in conviction.

As DNA Test Backlogs Soar, U.S. Cuts Funding

That's the title of a report in Sunday's Los Angeles Times reported by Benjamin Protess and Joel Rubin.  LINK  Here's an extended excerpt from the beginning of the article:

Last summer, the Los Angeles Police Department was dealt a rude shock.

Expecting nearly $1 million in federal grant money to help cover the cost of analyzing DNA evidence in rape cases and other violent crimes, the department was awarded only half that much.

U.S. Department of Justice officials, who distribute the money to police agencies nationwide, told LAPD staff that the fault was their own. The LAPD had been too slow to spend about half the DNA grant money awarded in prior years, so its 2008 allotment was reduced. Meanwhile, an audit found that more than 7,000 rape kits are waiting to be analyzed, the largest known backlog in the country.

As dire as LAPD's problem is, it is hardly unique.

The Justice Department cut backlog funding this year to crime labs in 17 states, including California, because they had not spent federal grants dating as far back as 2004. About a quarter of the 105 law enforcement agencies that receive these grants had their funding docked, Justice Department officials said.

The cuts coincide with a soaring national DNA backlog. Although the federal government hasn't estimated the backlog in recent years, Human Rights Watch, which advocates for rape victims among others, has put it at about 400,000 cases.

Smaller jurisdictions are not immune. In Erie County, N.Y., the year-to-year backlog increased from 620 to 920 in 2007. In Ventura County, the backlog increased from 53 cases to 156 during the same period.

"Potentially hundreds if not thousands of rapists nationally could be apprehended if the frozen evidence of their crime was analyzed," said Los Angeles City Councilman Jack Weiss, who has complained about the backlog for years. "It is the ultimate no-brainer."

Rep. Carolyn B. Maloney (D-N.Y.) wrote a letter last week to Atty. Gen. Michael Mukasey expressing her "strong concerns" about how the money is being spent. Maloney, who sponsored legislation that secured the funding, asked Mukasey for a detailed accounting.

"It would be outrageous if the backlogs are the result of the Department of Justice's negligent administration," Maloney said in a statement to The Times and ProPublica, a nonprofit investigative reporting newsroom.

It has been nearly a decade since Congress ordered the Justice Department to help crime labs reduce their backlogs. Since 2004, Congress has given the department $474 million for this purpose through the Debbie Smith Act, written by Maloney and named after a woman who advocates for eliminating backlogs. Smith was raped in 1989, but her attacker's DNA went untested for six years.

With this funding, the Bush administration said, the backlog would be eliminated in five years, a period that soon will expire.

But at the same time, an unprecedented number of DNA samples entered the nation's crime labs. New laws mandated that DNA be taken from more people, often including those arrested but not charged with a crime. Meanwhile, new technologies made it possible to analyze small or degraded samples.

Thanks to David Whettstone for circulating.

More Fingerprint Problems

"LAPD blame faulty fingerprint analysis for erroneous accusations," is the Los Angeles Times report by Joel Rubin and Richard Winton.

The Los Angeles Police Department has acknowledged in a confidential report that people have been falsely implicated in crimes because the department's fingerprint experts wrongly identified them as suspects.

The 10-page internal report, obtained by The Times, highlighted two cases in which criminal defendants had charges against them dropped after problems with the fingerprint analysis were exposed. LAPD officials do not know how many other people might have been wrongly accused over the years as a result of poor fingerprint analysis and do not have the funds to pay for a comprehensive audit to find out, according to police records and interviews.

"This is something of extraordinary concern," said Michael Judge, public defender for Los Angeles County. "Juries tend to accord the highest level of confidence to fingerprint evidence. This is the type of thing that easily could lead to innocent people being convicted."

The two cases were used by investigators to illustrate broader problems with shoddy work and poor oversight that have plagued the department's Latent Print Unit. Rhonda Sims-Lewis, chief of the LAPD's administrative and technical bureau, acknowledged the findings, but said changes to the unit's leadership and protocols were made last year after senior officials became aware of problems.

Internal discipline investigations led to the firing of one fingerprint analyst, who had been involved in both of the mishandled cases. Three other analysts received suspensions, Sims-Lewis said. In addition, two supervisors responsible for overseeing the unit were replaced, staff was bolstered and oversight tightened, she said.

"This is very, very serious," Sims-Lewis said. "We feel very compelled to take quick action when something like this arises. Guilty people can be set free and innocent people can be jailed."

There are 78 forensic print specialists assigned to the unit, according to the department's website. They are not sworn police officers but among the hundreds of civilians who fill specialty jobs in the department. After prints are lifted from a crime scene, the specialists run them through automated databases to find possible matches and then analyze those to seek a more precise match. Two other analysts are then supposed to check the work for accuracy.

HPD Crime Lab Seeks Funding for Outside Review

"HPD's crime lab asks for $1.25 million," is the report in today's Houston Chronicle.

The Houston Police Department is asking City Council to approve $1.25 million to hire outside scientists to review all tests done by the recently reopened DNA crime lab.

Limited DNA testing resumed at the crime lab in July, but the department still outsources the majority of tests to a Dallas firm.

The two consultants, Dr. Charlotte J. Word and Dr. Robin W. Cotton, would review every case involving DNA testing and check the processes and conclusions reached by HPD's in-house laboratory, according to Dr. Laura Gahn, the DNA lab's technical director.

The hiring of independent, outside consultants was a recommendation of the multi-year, $5.3 million probe of HPD's troubled crime lab, completed in 2007.

"Now, you have an extra level of oversight from outside, giving the public an extra level of confidence," Gahn said.

Gahn was hired in June to replace Vanessa Nelson, who resigned in January. Nelson left after HPD's internal investigators concluded she was feeding analysts answers needed to pass a DNA skills test in 2007.

Gahn said the lab is doing some DNA tests but cannot handle the required volume, yet, to end the outsourcing contract. Of the nine staff analysts, only five can perform DNA testing now; the rest are in training.

Earlier coverage is here.  All reports of the independent investigation conducted by Michael Bromwich are here.

Touch DNA

On Monday the Washington Post reported, "DNA Technology Moves Forward," on the latest advances in testing.

When the Maryland State Police lab told her that the evidence didn't contain enough bodily fluid for a complete DNA profile, Shelly Progovitz was crushed. A man who had brutally raped a 12-year-old girl behind a middle school in Waldorf in 1996 and then tied her hands and feet and forced a sock into her mouth would never be convicted for what he had done.

But Progovitz, a crime scene technician, did not let her disappointment keep her on the sidelines long. That night, she went home and searched on Google for something she had read about in scientific journals but had never used: "touch DNA."

In April, after Progovitz had resubmitted the case to a private lab in Virginia, she got a different kind of call. The lab had pulled a complete profile from clothing at the scene using touch DNA. It matched the DNA of the suspect whom police had in mind since rape, 12 years ago.

And:

Touch DNA -- using genetic material from skin cells left on an item -- is analyzed just like that from blood or semen. It's typically collected by scraping an object or placing tape on it, then lifting the tape up. The technique, in use for four or five years, gained some prominence this summer when it was used to exonerate the parents of JonBenet Ramsey, said Angela Williamson, director of forensic casework at Bode Technology, a Lorton-based DNA lab.

Many police department labs, including those used by the Maryland State Police and police in Anne Arundel and Montgomery County, also use the technique. Those labs, though, often have significant backlogs, forcing some work to be outsourced to private labs, officials said.

Touch DNA is just as expensive as other sorts of genetic testing, which can range from $1,300 to $1,500 an item, said Ernest Jones, a fingerprint specialist in the Charles crime lab. It also has a lower success rate.

Today's USA Today has, "'Touch' DNA offers hope in cold investigations."

The success of the little-known method in her case is triggering requests for the test from law enforcement officials seeking similar breakthroughs in unsolved crimes. Private and state-run laboratories report increases of up to 20% in use of the technique called "touch" DNA.

Analysts scrape or swab surfaces such as clothing or food to try to get enough microscopic cells to identify or rule out suspects in violent crimes, robberies and burglaries. Unlike other DNA methods, touch DNA is used on surfaces without a visible stain, such as blood, but that investigators suspect might contain genetic material.

And:

Though some laboratories have used touch DNA since early this decade, forensic analysts and police officials say investigators are just learning about it.

At Bode Technology Group, the Lorton, Va., firm that performed the Ramsey test, analysts are fielding about 30% more calls from investigators inquiring about touch DNA and about 20% more requests for testing, says Angela Williamson, Bode's director of forensic casework.

Since the Ramsey results were made public, Williamson says, touch DNA tests at her firm have advanced at least 10 "major cases." In half of those, the results helped rule out possible suspects. In the other half, profiles for potential suspects were developed, she says.

Orchid Cellmark, based in Princeton, N.J., also has seen a rise in touch DNA cases. Touch testing there jumped from about 3% of overall cases two years ago to about 15% now, says Robert Giles, executive director of research and development.

In Texas, the state Department of Public Safety has received dozens of requests, says Brady Mills, assistant director of its crime lab services.

The success rate is unclear.

The Justice Project's Latest Policy Brief

The National Law Journal has a web-only dispatch, "Report recommends independent forensics labs," written by Vesna Jaksic.

States should require forensic laboratories to be independent from law and prosecutorial agencies and create oversight commissions to enforce quality standards, according to a new report.

Those are among the recommendations issued in a new report by The Justice Project, a Washington-based nonpartisan organization that works to fight injustice. The report points out that forensic science can be a powerful tool in criminal investigations, but can also contribute to wrongful convictions.

“While errors in forensic analysis and forensic expert testimony are a leading contributing factor in wrongful convictions, a series of reform measures could dramatically reduce such errors,” the report said.

In addition, the report issued these recommendations:

• States should require all forensic science labs to develop internal structures and policies to prevent bias in testing and analysis.

• States should require that all forensic lab analysts receive proper training and certification.

• States should allocate funding sufficient to adequately implement these recommendations.

The policy review, Improving the Practice and Use of Forensic Science, is available in Adobe .pdf format.  Coverage of TJP's,  Improving Access to Post-Conviction DNA Testing,issued earlier this month, is here.

Forensics May Be the Best Defense

That's the title of an OpEd from the Hartford Courant written by Roger Koppl and Dan Krane.  LINK   Koppl is director of the Institute for Forensic Science Administration at Fairleigh Dickinson University; Krane is professor of biological sciences at Wright State University. 
Here are two extended excerpts:

A Mississippi judge has recently taken the unusual step of allocating several thousand dollars in county funds so a defendant, accused of murdering a Jackson State University co-ed last November, can hire a forensic expert to examine the evidence in the case, scheduled for trial in September.

With forensic evidence - fingerprints, DNA, ballistics, bloodstain patterns, footwear analysis and the like - a significant factor in more and more verdicts, let's hope Judge Swan Yerger's recent action sets a national precedent. Let us explain why.

In today's "CSI" world, forensic scientists, like the television character Gil Grissom, may have overtaken lawyers as the most influential players in courtroom dramas. The evidence they analyze and present as part of the prosecution team is often the deciding factor in whether a defendant is found guilty or innocent.

But research indicates that forensic evidence is often flawed. So, in fairness, defendants should have a right to forensic expertise, just as they have a right to an attorney.

Consider DNA profiling. A 2007 University of California study found that "DNA tests sometimes produce ambiguous results that are subject to multiple interpretations," thus introducing "subjective judgments" to the process. This may happen, for example, when the recovered DNA of criminals and their victims are mixed together, a frequent occurrence. In such cases DNA analysts typically have a suspect's DNA profile before them to help sort out the evidence "correctly." In other words, they go into to the test with a cheat sheet, sort of like a criminal lineup in which a potential witness is told, "Number 4 is our suspect, does he look familiar?"

And:

To make the forensic science used in American courts more reliable, efficient and fair, several changes are needed. For example, crime labs should be independent, not under the umbrella of law enforcement agencies. Despite everyone's best intentions, when crime labs work for the prosecution there is pressure to produce the incriminating evidence the police and prosecution need. Independent crime labs would be free of this potentially unhealthy influence.

In Gideon v. Wainwright, the Supreme Court recognized that our Sixth Amendment right to a fair trial includes the right to legal counsel. Today, we have no similar right to forensic expertise, though forensic scientists are often more important to case outcomes than defense lawyers. When crime labs work for the prosecution and an indigent defendant has no scientist to help him, the process lacks fundamental fairness.

The right to forensic expertise also would create the kind of checks and balances that will improve forensics. Here is how: In most criminal cases one side or the other will want the forensic evidence reviewed. That side will have an incentive to document forensic science's shortcomings and bring them to the attention of the court whenever it is strategically appropriate. Slowly, case by case, the system will improve.

Thanks to Jason Gilder for circulating.

The Long Term Value of DNA Evidence

"DNA evidence recommendations urge long-term preservation of biological evidence," is the title of a National Law Journal web only article by Vesna Jaksic.

The Justice Project has issued a set of recommendations to improve post-conviction DNA testing laws, such as that states should require preservation of biological evidence throughout a defendant's sentence and ensure inmates with DNA-based innocence claims may petition for testing at any time.

The Justice Project is a Washington, D.C.-based nonpartisan organization that works to fight injustice. Its new report, "Improving Access to Post-Conviction DNA Testing: A Policy Review," also gives these recommendations:

• States should devise standards regarding custody of evidence -States should require judges to grant post-conviction testing petitions when testing may produce new evidence of the petitioner's innocence

• States should ensure petitioners have access to objective and reliable forensic analysis

• States should provide counsel and cover costs of post-conviction DNA testing for indigent petitioners

• States should standardize post-testing procedures for cases that produce testing results favorable to a petitioner.

The policy review, Improving Access to Post-Conviction DNA Testing, is in Adobe .pdf format.  More on The Justice Project's policy briefs, here.

TJP's John Terzano posted, "Post-Conviction DNA Testing Shouldn't Depend on Miracles," at Huffington Post.  Here's a snippet:

By now everyone knows that DNA testing is a powerful scientific tool for proving guilt or innocence in our criminal justice system. Often post-conviction DNA testing provides the only evidence that can correct the injustice of wrongful conviction.

But what if all the biological evidence is destroyed while you're still in prison? What if there is evidence but it's not discovered until after state-imposed deadline for seeking DNA testing? What if the state denies your petition for testing because you accepted a plea bargain to avoid a harsher sentence for a crime you didn't commit? And what if you're indigent and can't afford an attorney to help navigate the complex legal and scientific issues involved in obtaining a DNA test?

The sad truth is that it often takes a series of miracles to gain access to post-conviction DNA testing. That's because our criminal justice system continues to place significant obstacles in the way of post-conviction DNA testing that could determine whether the wrong people have been convicted and punished for crimes they didn't commit.

StandDown's DNA index is here.

Melendez-Diaz v. Massachusetts

The National Law Journal has commentary by Matthew Kaiser, Washington, D.C. attorney, "Lab Technicians, Too."  It concerns the case of Melendez-Diaz v.Massachusetts, which will be herad in the Supreme Court's next term.  Here is an excerpt from the beginning:

The most important case for the future of our criminal justice system is going to be heard by the U.S. Supreme Court in its next term. In Melendez-Diaz v. Massachusetts, the court will decide whether a criminal defendant has the right to cross-examine a lab technician who tested evidence in a case. Though it isn't what the case is expressly about, Melendez-Diaz will determine how the courts handle DNA evidence; it is crucial to the future of criminal procedure. The court should reaffirm our collective commitment to a vigorous adversarial system, and hold that forensic evidence must be subjected to cross-examination.

The states and federal courts of appeal are split on whether a lab report can be presented to a jury in a criminal case without letting the defendant's lawyer question the person who actually did the testing. Analysts' reports are common for often uncontroversial parts of a case, such as whether the plant-like substance in the bag that the defendant was selling was really marijuana, or whether the blood-alcohol level of the driver who smelled like booze and repeatedly crossed the center line of the highway was above the legal limit. These reports are going to be a massive part of the landscape of criminal justice as DNA evidence becomes more frequently used in criminal prosecutions.

DNA is the future of our criminal justice system. The federal government, and many state governments, already collect DNA from anyone convicted of a felony. These DNA samples are increasingly used as an active part of the investigation of crimes. Already several states name DNA samples in charging documents to try to preserve the statute of limitations until the owner of the DNA can be located.

The ScotusWiki page for Melendez-Diaz v.Massachusetts is here.

HPD Crime Lab Soon to Resume DNA Testing

That's the title of Roma Khanna's report in today's Houston Chronicle.  LINK

The Houston Police Department crime lab is close to resuming DNA testing, officials told a City Council committee Monday, six months after the lab was forced to suspend such analyses for the second time in recent years.

Crime lab director Irma Rios introduced new DNA section leader Laura Gahn, whose hiring brings HPD in compliance with a state law requiring crime labs to have a supervisor oversee DNA testing. Gahn, who has more than a decade of leadership experience in private DNA labs, joined HPD earlier this month. After she recertifies analysts and equipment, DNA testing can begin, Rios said.

"Our number one goal is to get the DNA division back up and running as soon as possible," Rios told the council's Public Safety and Homeland Security Committee. She declined to give a specific date when testing will begin.

HPD shuttered the DNA division of its crime lab in January — the second such closure since December 2002 — after manager Vanessa Nelson resigned. HPD officials were poised to fire Nelson after internal investigators concluded she gave analysts answers they needed to pass a DNA skills test in 2007.

The skills test controversy is just one in a series that has plagued the HPD crime lab since 2002, when problems with its DNA testing first were revealed.

Since then, errors have been discovered in the work of four other crime lab divisions and three men, convicted with faulty evidence, have been exonerated.

Earlier coverage of the scandal, which first came to light in November 2002, is here.  All reports of the independent investigator Michael Bromwich, whose work is complete, are here.

Live Blogging the Summit

I'll be live blogging Senator Rodney Ellis' Summit on Wrongful Convictions.  It's just starting with Senator Ellis making introductory comments and recognizing the dozen or so House and Senate members attending the Summit.

The Summit is being webcast, here, on channel 1.

A group of nine exonerees is at a front table.  James Lee Woodard just started, as they introduce themselves.  Every one of these stories is a powerful testimony to flaws that led to wrongful convictons.

The thirty-one desks in the Senate chamber are filled with legislators, judges from the Court of Criminal Appeals, law enforcement personnel, staff from innocence projects, policy makers, judges, State Bar of Texas officials (former SBoT President Martha Dickie), and criminal justice reform advocates(Edwin Colfax and Andrea Marsh) .  District Attorneys Barry Macha of Wichita Falls and Craig Watkins are also present.  Travis County's next DA, Rosemary Lehmberg, is also here.

Exonerees are still talking on-by-one and discussing specific reforms such as eyewitness identification procedures and improvements to Texas' post-conviction DNA testing access that would have helped prevent their wrongful convictions or led to earlier exonerations.

Media outlets are present, including Elise Hu, KVUE-TV's Capitol reporter, so I expect to see lots of print and broadcast coverage.  News 8 Austin, Time-Warner cable's local Austin news channel is also here. (1:50 pm)

The exonerees have finished, and Senator Ellis is about to recognize Barry Scheck, co-founder of the New York-based Innocence Project, to speak. (2:01 pm)  Among other best practices, he just mentioned the Tarrant County District Attorney's office open-file policy and the need for better discovery in Texas. (2:11 pm)

Craig Watkins will be speaking after Scheck.  (2:05 pm)

Watkins is speaking now.  (2:23 pm)

Senator Ellis is now opening the forum to discussion and he's called on CCA Judge Barbara Hervey. CCA Judge Cheryl Johnson is also here.  (2:31 pm)

Senator John Whitmire, Dean of the Senate and Chair of Senate Criminal Justice, is speaking now. (2:33 pm)  He is delivering a serious, hard-edged message to his colleagues about the need to pass reforms, and urging his colleagues to do a better job of reading their mail and actively investigate credible cases that are submitted by constituents. 

He also expressed his frustration of being an official from Harris County who has been unable to prod the Harris County DA's office to become more active in examining wrongful convictions.  Assistant DA Roe Wilson is here from that office.  He lauded Craig Watkins for, "doing the right thing."  (2:43 pm)

New Austin Police Chief Art Acevedo is speaking now.  (2:44 pm)

Edwin Colfax of the Justice Project is talking about eyewitness id reforms.  (2:53 pm)  The last link is to a Justice Project publication on the topic.

Harris County ADA Roe Wilson is about to speak.  The office has had a very rocky road for years now, ever since the beginning of the HPD crime lab scandal.  Earlier this year, DA Chuck Rosenthal resigned in disgrace due to inappropriate e-mailing that involved his political campaign and non-office matters.  (3:03 pm)  She is describing the office's current relationship with the Innocence Project. She mentioned that the office has been reviewing all Chapter 64 (of the Texas Code of Criminal Procedure; access to post-conviction DNA testing) requests for post-conviction DNA testing, including those that had been rejecting by Texas courts.

Senator Whitmire is pressing her on the office's review of convictions where questions have been raised.  3:09 pm)

State Rep. Terri Hodge, a resolute advocate for the incarcerated, is speaking now about the problems of prosecutorial misconduct.  (3:10 pm)

Houston Police Chief Harold Hurtt just spoke.

I had to step away for a few minutes to answer some questions from a reporter.  Senator Bob Deuell just spoke.  A number of people are making brief comments now, including Walker County DA David Weeks and Innocence Project of Texas director Jeff Blackburn. (3:35 pm)

State Rep. Jim McReynolds is speaking now about working on legislation in the House last session.  (3:48 pm)

It sounds as if Senator Ellis hopes to close the Summit in about 15 minutes, at 4:00 pm.  A very powerful statement that the Legislature needs to do what's right.

Mary Anne Wiley, one of Governor Perry's key criminal justice advisors in his General Counsel's office, is speaking now about some past collaborative work involving the Governor's office, legislators, and advocates and looking to future work.  (3:51 pm)

An exoneree closed the Summit with a statement about the need for jobs and support.

The Summit should be available at Senate Media Services for archival viewing, here.

Summit on Wrongful Convictions

Senator Rodney Ellis convenes a Summit on Wrongful Convictions at 1:00 p.m. (CDT) today in the Texas Senate Chamber.

The Summit will be webcast by Senate Media Services, here.

Here's more from Senator Ellis' announcement:

As a result of the unprecedented number of exonerations in Texas, key leaders from across the state will gather in Austin on May 8 for a landmark Summit on Wrongful Convictions. Judges, lawmakers, defense attorneys, prosecutors, exonerees, professors and many others will come together for the Summit. The Summit will mark the first time any state’s criminal justice leaders have initiated a high-level meeting themselves to address wrongful convictions. Texas State Senator Rodney Ellis is spearheading the Summit, and Innocence Project Co-Director Barry Scheck will attend. The Summit will be open to the public.

“We’ve reached a tipping point on wrongful convictions in Texas. Nobody can seriously doubt that there’s a problem, and next week leaders from across our criminal justice system will come together to start solving it,” Senator Ellis said today. “We will bring a wide range of leaders, experts and exonerees together for a full day to develop concrete, common-sense remedies to make our system of justice more fair and accurate. We won’t solve these serious problems in one day, but we will make historic strides toward restoring confidence in our criminal justice system.”

Earlier coverage is here.