The StandDown Texas Project

FBI Malfeasance Undercuts Death Penalty

That's the title of an editorial published in today's Charlotte Observer, in North Carolina.  Here's teh beginning of this must-read:

The death penalty’s flaws have been well-documented. But a new report from the Justice Department’s Inspector General reveals some of the most troubling evidence yet, and provides a fresh reminder of why North Carolina and other states will forever be on shaky ground until they abolish it.

The FBI used flawed forensic evidence and overstated testimony by 13 lab examiners to help convict up to 64 murder suspects and put them on death row, the report said. Yet Justice and the FBI took five years to identify those suspects and delayed telling state prosecutors that it was reviewing the cases, so the states had no way of knowing that the convictions might be flawed.

At least three men were executed before a Justice Department task force fully reviewed those cases. In at least one, the defendant would not have been eligible for the death penalty without the FBI’s flawed work, the report said. (The Justice Department generally agreed with the report’s findings.)

Earlier coverage of crime lab problems begins at the link.

Read more here: http://www.charlotteobserver.com/2014/07/22/5060267/fbi-malfeasance-undercuts-death.html#.U8_A_rGqRad#storylink=cpy

Hank Skinner Evidentiary Hearing Concludes

Attorneys for Hank Skinner issued a "Statement at the Close of the Evidentiary Hearing Regarding DNA Test Results."  Skinner is represented by Robert C. Owen of the Bluhm Legal Clinic at Northwestern University Law School and Douglas G. Robinson of Skadden, Arps, Slate, Meagher & Flom LLP. 

Here's the full text:

“The State has not presented any dramatic new evidence confirming Mr. Skinner’s guilt.  On the contrary: the testimony confirmed DNA from an unknown person, along with Twila Busby’s blood, on a dishtowel that had been secreted in a plastic garbage bag at the crime scene.  Moreover, the DNA test results were at odds with the State’s theory of the crime.  If Mr. Skinner stabbed Randy Busby in the manner claimed by the State, Mr. Skinner’s blood should have been on the blanket of Randy’s bed.  It was not.  If Mr. Skinner’s hands were covered with the victims’ blood when he staggered out of the house, their blood should have been mixed with his on the doorknobs he touched.  It was not.  And Mr. Skinner’s DNA on the common kitchen knife used in the crimes could have come from his innocently using it as a resident of the house and being cut with it by the assailant.

“Furthermore, the DNA testing produced significant and exculpatory results that raise grave doubts about Mr. Skinner’s guilt and point to an alternate suspect.  The State’s expert analyst did not retreat from his conclusion that three of the four hairs found in Twila Busby’s hand – hairs with DNA consistent with a maternal relative of the victims –  were “visually dissimilar” to the victims’ own hair, and indeed confirmed that the differences were so obvious that he could see them without using a microscope. This result supports the conclusion that a maternal relative of the victims committed the crimes, not Mr. Skinner. Robert Donnell, who is Ms. Busby’s maternal uncle, was seen stalking Ms. Busby at a party shortly before her death, and the State presented no compelling evidence that the hairs could have come from another maternal relative.  In fact, Ms. Busby’s mother stated under oath before Mr. Skinner’s trial that she had not been inside the house in the preceding four months.

“A major piece of evidence, which the State claims it lost, could have corroborated the hair evidence pointing to Mr. Donnell. But no DNA testing will be performed on perhaps the key piece of evidence collected by the police at the crime scene: the sweat-stained, blood-spattered men's windbreaker jacket found next to Ms. Busby’s body. From the earliest days of his fight for DNA testing, Mr. Skinner has insisted that this jacket should be tested because it may have been worn by the assailant.

“At the DNA hearing, Mr. Skinner sought to present testimony from a witness who can positively identify the jacket as Donnell’s, and to have his DNA expert explain how testing could have confirmed Donnell’s DNA on the jacket.   The State fought to keep this evidence out of the record, and the court agreed with the State and excluded it.  We respectfully disagree with this decision.  In our view, this evidence is at the center of the case.  It shows why a jury that heard all the evidence, including DNA results, would have harbored a reasonable doubt about Mr. Skinner’s guilt.

“Excluding evidence about the jacket simply added to the overall unfairness of this process, in which Mr. Skinner was wrongly forced to wait thirteen years before obtaining DNA testing.  In the meantime, through bungling by the State, the evidence was being mishandled, damaged, contaminated, degraded, and lost.

“The doubts about Hank Skinner’s guilt are far too great to allow his execution to proceed, particularly where the State’s utter failure to safeguard key pieces of evidence may make it impossible to resolve those questions conclusively.”

The Texas Tribune coverage is, "DNA Hearing Brings Skinner Case Closer to Resolution," by Brandi Grissom.

Two days of painstakingly detailed testimony about DNA analysis have brought the 20-year-old case against death row inmate Hank Skinner closer to resolution.

DNA analysts for Skinner and for state prosecutors from the Texas attorney general’s office spent Monday and Tuesday in the historic Gray County Courthouse explaining to state district Judge Steven Emmert the significance of more than 180 tests on about 40 items of evidence from a 1993 New Year’s Eve triple murder. Prosecutors argued that the tests only confirmed Skinner’s guilt, while lawyers for the 51-year-old defendant said the results raised enough questions about the identity of the perpetrator that a jury would not have condemned him to death.

"Does DNA Testing Prove Skinner's Guilt?" by Jordan Smith at the Austin Chronicle.

Had the state of Texas actually safeguarded and properly preserved evidence collected as part of the investigation into the 1993 slaying in Pampa of Twila Busby and her two grown sons, Elwin and Randy, it is unlikely that questions would linger about who is responsible for the brutal and bloody crime.

But the state lost a key piece of evidence in the case – a sweat and blood-stained windbreaker found near Busby's body in the home she shared with her two sons and her boyfriend, Hank Skinner. And it failed also to properly package and store additional evidence, making DNA testing on an array of items impossible, according to Skinner's defense team.

Skinner was sentenced to die for the New Year's Eve 1993 triple murder. He has maintained his innocence and said that he was passed out on a combination of booze and pills at the time of the crime, awoke to find that the family had been slaughtered and cut his hand on a shard of glass before fleeing the home.

"Skinner's attorneys: state didn't present evidence to confirm death row inmate's guilt," is the AP filing, via the Greenfield Reporter.

The judge will rule once he has considered written arguments submitted by each side.

"Texas death row inmate pins hopes on DNA evidence," by AFP, via GlobalPost.

In a two-day hearing that ended Tuesday, his lawyer Robert Owen said "the DNA testing produced significant and exculpatory results that raise grave doubts about Mr. Skinner's guilt and point to an alternate suspect".

Four hairs were found in the hand of Busby at the time of her murder. The DNA tests show that in three of them there was a maternal link between the person the strands of hair came from and the three victims, the lawyer said in a statement.

An expert witness for the state testified that the hairs could not come from the victims themselves because their hair was "visually dissimilar".

The defense lawyer pointed to a maternal uncle of Busby, the late Robert Donnell. He was seen stalking Busby an hour before the killings and showed no remorse upon learning of the death of his niece, said Owen.

"Testimony ends in Hank Skinner's DNA hearing," by Jim McBride in the Amarillo Globe-News.

The hearing focused on whether it is “reasonably probable” that Skinner, now 51, would have been acquitted if all DNA evidence in the case had been presented at his 1995 trial, according to court records.

Skinner was convicted of capital murder and sentenced to die in the slayings of Twila Jean Busby, 40, and her sons — 22- year-old Elwin “Scooter” Caler and 20-year-old Randy Busby.

Skinner has claimed he was too intoxicated to have slain the Busbys because he drank vodka and took codeine on the night of the killings.

After the Texas Court of Criminal Appeals halted Skinner’s execution three times due to changing post-conviction law, prosecutors agreed to allow DNA testing, and both sides now have received the results.

"Consistency important with DNA evidence," by Dennis Palmitier and Timothy P. Howsare for the Pampa News.

Using exhibits from Hank Skinner’s own defense team, Assistant Attorney General Georgette Oden showed that Skinner’s DNA was a consistent match throughout the house of murder victim Twila Busby.

From 9 a.m. until a lunch recess at 1:25 p.m. Tuesday, Oden meticulously questioned Brent Hester, a DNA specialist from the Texas Department of Safety Crime Lab in Lubbock, on results of samples taken from the crime scene in 1994 and then retested by DPS in 2012.

The defense, in earlier testimony by their expert, Dr. Julie Heinig, had pointed out what they believed were inconsistencies with DNA matching.

New tests on one of the murder weapons, a kitchen utility knife, showed a DNA consistency matching Skinner’s and Busby’s two sons, who were also murdered on Dec. 31, 1993.

Another contention by the defense was why a quarter-inch blood stain on the carpet in the sons’ bedroom was not tested.

Earlier coverage of the two-day hearing begins at the link.

News Coverage of the Hank Skinner Hearing

"Hearing to Look at DNA Evidence in Skinner Case," is by Brandi Grissom for the Texas Tribune.

Lawyers for death row inmate Hank Skinner will tell a Gray County district court judge on Monday that had a 1995 jury seen the results of more than 100 DNA tests conducted since his conviction, it would not have sentenced their client to die.

Across the courtroom, state prosecutors will argue that the same DNA tests confirm Skinner’s guilt in the 1993 New Year’s Eve slaying of Twila Busby, his live-in girlfriend, and her two sons.

After more than a decade of fighting over DNA testing and nearly two years of analysis of two-decade-old biological material, evidence that Skinner says should prove his innocence will be the focus of court proceedings. Skinner, 51, has maintained that he was too inebriated from a mixture of vodka and codeine on the night of the crime to stab, strangle and beat the victims to death. 

Prosecutors from the Texas attorney general’s office agreed in 2012 to allow DNA testing in the case after years of fighting the requests. From 2012 to 2013, Texas Department of Public Safety laboratories conducted 188 DNA tests on 40 pieces of evidence, including fingernail clippings, a knife used in the murders, doorknobs, clothing and furniture. More than half of the tests, though, produced no usable results. One DPS analyst reported that many items had been stored haphazardly during the 18 years between the crime and testing and showed damage from rodents or insects.

AP coverage is, "Death row inmate hopes DNA will exonerate him," via the Longview News-Journal.

Forensic and DNA experts began testifying Monday at a hearing that could lead to the exoneration of a death row inmate convicted in the 1993 slaying of three people in the Texas Panhandle.

Attorneys for the state of Texas say in court documents that DNA present at the crime scene confirms that 52-year-old Hank Skinner is guilty. Defense attorneys contend more sophisticated DNA test results collected by an independent lab present doubts about Skinner’s guilt “too weighty” to allow his execution.

Each side will submit written arguments after the hearing. The judge will later release his findings.

"Defense rests in Skinner hearing," by Jim McBride in the Amarillo Globe-News.

The defense rested its case Monday in Hank Skinner’s evidentiary hearing after a judge ruled a key witness could not testify.

District Judge Steven Emmert ruled that the defense could not offer testimony from a neighbor of a relative of one of the victims of the 1993 triple homicide for which Skinner was found guilty and sentenced to die.

Robert Owen, one of Skinner’s attorneys, said the neighbor was prepared to testify that she frequently saw Robert Donnell wearing a windbreaker that was found next to the body of Twila Busby, Skinner’s ex-girlfriend.

The defense contends that Donnell, Busby’s uncle, killed her and her two sons on New Year’s Eve 1993 in Pampa.

Emmert ruled that the neighbor could not testify because her testimony exceeded the scope of the hearing that was established by the Texas Court of Criminal Appeals.

"Expert witness for Skinner defense claims evidence degraded over time while stored in plastic bags," is by Dennis Palmitier and Timothy P. Howsare for the Pampa News.

Defense attorneys representing Hank Skinner, the death-row inmate convicted for murdering Twila Busby and her two sons in 1993, said during an evidentiary hearing Monday morning that had all DNA evidence from the crime scene been properly stored and tested, their client might have been acquitted.

Skinner, now in his early 50s, has been on death row in Texas longer than any other inmate. He also is the inmate who has cost taxpayers the most money. The combined costs of his incarceration and legal proceedings has exceeded more than $2 million.

In testimony Monday morning, an expert witness for the defense said that evidence from the crime scene was stored in plastic bags. Julie Heinig, PhD, testified that samples in plastic bags can break down over time and create contamination, such as mold. She concluded that samples in the Skinner case degraded since 1994 and questioned the validity of the DNA tests performed by the Department of Safety Crime Lab in Lubbock in 2012. 

Earlier coverage of Hank Skinner's case begins at the link.

Lincoln Journal Star Editorial in Nebraska

"A welcome hiatus on death penalty," is the editorial published in today's Lincoln Journal Star.  Here's an extended excerpt from the beginning:

The state of Nebraska has not executed anyone since 1997, and it looks like it will be some time before another is carried out.

The state will be left without a method to carry out an execution because its supply of a lethal injection drug expires this month.

Nebraskans should welcome the hiatus. The arguments against the death penalty are gaining traction as more people begin to comprehend just how fallible the system is and how inequitably the death penalty is applied.

Nebraskans don’t need long memories to come up with two glaring examples of how the criminal justice system can go awry. In 2008 the so-called Beatrice Six were cleared of charges in the 1985 rape and murder of a 68-year-old Beatrice woman. DNA evidence showed the crime was committed by another man.

Last year Omaha CSI chief David Kofoed was convicted for planting a speck of blood that led to charges against two innocent men. DNA evidence linked the crime to a pair of Wisconsin teens.

The mounting evidence against the death penalty has begun to change public opinion. Support for the death penalty declined to 60 percent, its lowest level in 40 years.

Opposition to the death penalty has long been found on the liberal side of the political spectrum, but this year a boomlet of opposition surfaced among conservatives, led by Conservatives Concerned about the Death Penalty.

Earlier coverage from Nebraska begins at the link.

Judge Alex Kozinski: 'There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.'

That's the strong language in a dissent written by the Chief Judge of the 9th Circuit, Alex Kozinski.  You can read the U.S. Court of Appeals for the Ninth Circuit ruling, and Judge Kozinski's dissent, in USA v. Olsen, in Adobe .pdf format.

The ABA Journal posts, "‘Epidemic of Brady violations’ decried in Kozinski opinion," by Debra Cassens Weiss.

The chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals is taking a stand against failure to disclose exculpatory evidence in a case involving a ricin suspect and a lab analyst who was later fired for alleged incompetence.

Chief Judge Alex Kozinski highlighted the issue in a Dec. 10 dissent (PDF) to the denial of an en banc rehearing. He begins this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” His dissent was joined by four other 9th Circuit judges.

The defendant in the case, Kenneth Olsen, was convicted of developing a biological agent for use as a weapon, Kozinski wrote in the dissent. Olsen had admitted developing ricin, but said he did so only out a curiosity and had no intent to use it as a weapon. To show intent, the government tested some allergy pills in Olsen’s possession and determined they also contained ricin. Olsen contended there was contamination by a Washington state lab analyst who admitted examining the pills before sending them to the FBI.

The lab analyst was being investigated by state police amid allegations that his work helped convict three inmates who were later exonerated. The resulting police report criticized the lab analyst for sloppy work that appeared to be “built around speed and shortcuts.” A federal prosecutor never informed the federal judge presiding over Olsen’s trial about the scope of the conclusions, though the report had been completed at the time and was awaiting approval by a state decision-maker.

"Failure to Divulge Evidence an Epidemic, Judge Says," is by Tim Hull at Courthouse News Service.

Judges Harry Pregerson, Stephen Reinhardt, Sidney Thomas and Paul Watford joined Kozinski in a vigorous dissent to that ruling.

"Had Melnikoff been fully impeached, the only evidence from which the prosecutor could've proven Olsen's intent to use ricin as a weapon would have been a few Google searches and bookstore receipts," Kozinski wrote.

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice," Kozinski added. "It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

While Brady violations occur in all courts, Kozinski noted three recent cases in the 9th Circuit where the disclosure rule played a role, including United States v. Sedaghaty, Aguilar v. Woodford, and United States v. Kohring.

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities," Kozinski wrote. "The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

"Chief Judge For 9th Circuit Cites 'Epidemic' Of Prosecutor Misconduct," is by Radley Balko at Huffington Post.

Brady of course is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a decision released this week, the 9th Circuit court found extensive prosecutor misconduct on the part of Assistant U.S. Attorney Earl Hicks, who works for the Office of U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)

Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialist Arnold Melnikoff, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.

But at the time of the trial, Melnikoff was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly-chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."

AUSA Hicks knew about the investigation of Melnikoff, and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize is at as an "administrative" review that was limited to one case from 10 years ago.

"Judge Says Lazy, Unethical Prosecutors Across America Are Breaking A Basic Rule," by Erin Fuchs for Business Insider.

"I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country," Kozinski wrote. "But it wouldn't be true."

Related posts are in the prosecutorial misconduct category index.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Nebraska Settles Civil Suit Over Law Enforcement Misconduct

Today's Lincoln Journal Star carries the AP report, "Attorney General: State had to settle Murdock murder suit," written by Grant Schulte.  It's also available via the San Francisco Chronicle.

Attorney General Jon Bruning said Monday that the state had no choice but to settle lawsuits filed by two men who were falsely accused of killing a southeastern Nebraska couple in 2006.

Bruning defended the Nebraska State Patrol investigators who were involved in the case, but he argued that taking the suit to trial likely would have cost more than the nearly $1 million that the state agreed to pay. Bruning blamed David Kofoed, former Douglas County crime scene investigations director, who served prison time for evidence tampering in the case.

"This case was just poisoned by Kofoed's planting of evidence," Bruning said at a news conference on an unrelated subject. "We felt we had no choice but to settle it, to save the taxpayers' money. Had we gone to trial, the attorneys' fees that the state would have paid could have been a multiple of what we paid to settle the case."

Matthew Livers and Nicholas Sampson initially were charged in the 2006 shotgun slayings of Wayne and Sharmon Stock in their farmhouse in the town of Murdock. The men spent months in jail before being cleared of murder charges. Two Wisconsin residents — 24-year-old Jessica Reid and 26-year-old Gregory Fester II — were eventually convicted and sentenced.

Livers and Sampson sued the Nebraska State Patrol, state investigators, and local law enforcement officials with Douglas and Cass counties. The lawsuits said they were detained without probable cause and subjected to coercive interrogation that led Livers, who is mentally disabled, to falsely confess.

And:

Bruning said the state agreed to pay $600,000 in the Livers case, Cass County paid $1 million and Douglas County paid $50,000. In the Sampson case, the state paid $375,000, Cass County paid $515,000 and Douglas County paid $75,000.

"Men falsely accused in 2006 murders to get $2.6 million in settlement," by Joe Duggan in the Omaha World-Herald.

The cost of a murder investigation gone wrong: $2.6 million.

Matthew Livers and Nicholas Sampson have made the State of Nebraska and two counties pay for falsely accusing them of a 2006 double murder in rural Murdock. The case involved a rare combination of a coerced false confession and planted DNA evidence.

Livers agreed to a $1.65 million settlement; Sampson will receive $965,000.

The men were charged with the April 17, 2006, shotgun murders of Wayne and Sharmon Stock, a well-respected couple who farmed near Murdock. Two Wisconsin teenagers with no connection to the accused men later pleaded guilty to the slayings and are serving life in prison.

The men filed federal civil rights claims against sheriff's investigators for Cass and Douglas Counties along with investigators for the Nebraska State Patrol.

And:

Bruning insisted Monday that the two State Patrol officers who helped get the confession acted “honorably.”

“It frustrates me greatly that their efforts have been brought under suspicion because of David Kofoed's malfeasance,” Bruning said.

Attorneys for Livers and Sampson strongly disagreed with Bruning's description of the patrol investigators.

Video of Livers' interrogation shows that they threatened him with the death penalty and fed him details from the crime scene so he could make a confession, said Locke Bowman, a Chicago attorney who represents Livers. And they withheld for months the fact that Livers recanted the next day.

“David Kofoed's misconduct, which was deeply egregious, was just piling on after the Nebraska State Patrol and Cass County Sheriff's Department started the snowball rolling downhill,” Bowman said.

Earlier coverage of the Nebraska case begins at the link.

Federal Judge Allows Malicious Prosecution Suit in Nebraska

"Judge: Malicious prosecution lawsuits can proceed," is AP coverage, via the San Francisco Chronicle.

A federal judge has ruled that lawsuits by two men falsely accused of killing a couple near Murdock in 2006 can proceed against Nebraska law enforcement officials.

Matthew Livers and Nicholas Sampson sued state investigators and those with Douglas and Cass counties in 2008 and 2007, saying the officials violated their constitutional rights.

The two men were initially charged in the 2006 shotgun slayings of Wayne and Sharmon Stock in their farmhouse in southeastern Nebraska. The men spent months in jail before being cleared of murder charges.

A Wisconsin pair — 24-year-old Jessica Reid and 26-year-old Gregory Fester II — were eventually convicted and sentenced to life in prison for the killings.

On Friday, U.S. District Judge Joseph F. Bataillon rejected a request by the defendants for summary judgment in the lawsuits, the Lincoln Journal Star reported.

"Judge clears way for lawsuit filed by men falsely accused of Nebraska murder," is the Lincoln Journal Star by Nicholas Bergin.

A federal judge has again ruled that lawsuits against law enforcement officials filed by two men falsely accused of a 2006 murder near Murdock can move forward.

Authorities arrested and charged Nicholas Sampson and his cousin Matthew Livers seven years ago in the murders of Liver’s uncle and aunt, Wayne and Sharmon Stock of Murdock.

Charges eventually were dropped when Jessica M. Reid, 24, and Gregory Fester II, 26, of Wisconsin pleaded guilty to murder charges after admitting they shot the Stocks in the head at close range early on April 17, 2006.

And:

The defendants in the lawsuits -- Nebraska State Patrol Investigators Bill Lambert and Charles O’Callaghan, former Cass County Sheriff’s Detective Earl Schenck and his supervisor, Sandra Weyer, and the Douglas County Sheriff’s Office -- had filed motions asking for the cases to be partially or wholly thrown out.

U.S. District Judge Joseph F. Bataillon on Friday rejected their arguments, clearing the way for trial, which is to begin Oct. 21.

Bataillon noted Sampson has settled with the patrol investigators and the Douglas County Sheriff’s Office, but he said many questions remain and should be answered by a jury.

Livers’ suit alleges the violation of his constitutional rights, wrongful arrest and incarceration, as well as the improper training of Cass County sheriff’s officials in doing interviews. The suit seeks unspecified damages for the injuries he sustained because of the false charges, plus punitive damages for those responsible.

The Omaha World-Herald reports, "Federal judge: 2 men wrongly accused of murder can proceed with lawsuit," by Cody Winchester.

After the real killers were tried and convicted, Sampson and Livers sued officials in Douglas and Cass Counties and the Nebraska State Patrol on grounds that evidence was fabricated, Livers’ confessions coerced and key information withheld from defense attorneys.

Douglas County CSI Director David Kofoed later was convicted of planting blood evidence in Sampson’s car. Douglas County agreed to pay Livers $50,000 and Sampson $75,000 in separate settlements this year.

Friday, U.S. District Judge Joseph F. Bataillon rejected requests by the remaining defendents — Nebraska State Patrol investigators William Lambert and Charles O’Callaghan, and former Cass County Sheriff’s detective Earl Schenck and Deputy Sheriff Sandra Weyer — to toss the case.

The trial begins Oct. 21.

The Verdict on Capital Punishment System

That's the title of an editorial in today's Roanoke Times.  It's subtitled, "Virginia should take up the bar association’s reforms to ensure a fair and accurate death penalty system."

The American Bar Association spent two years studying Virginia’s death penalty and came up with a dozen recommendations that would lift the state’s thumb off the scale of justice.

The group does not address whether states should have a death penalty. Rather, the ABA acknowledges that prudence requires capital punishment to be administered justly. And all should favor ensuring that those the commonwealth executes truly merit the irrevocable penalty.

That cannot be said today. The Virginia Death Penalty Assessment Team weighed Virginia’s ways against the bar association’s protocols and found it deficient. Most of the recommended reforms would not cost the state much in the way of funding, but would require procedural changes.

And:

Virginia has, in recent years, gotten a few things right with capital cases: accreditation of crime laboratories and medical examiner offices and certification of their employees, and establishing regional capital defender offices that offer more experienced and qualified trial attorneys.

But Virginia still has at least a dozen reforms remaining before resting its case that it runs a fair and accurate death penalty system. Until then, reasonable doubt remains.

Earlier coverage of the Virginia report begins at the link.

The ABA Virginia Assessment on the Death Penalty is available at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Impact of New Texas Pre-Trial DNA Testing Being Felt

The Beaumont Enterprise reports, "Slaying case stuck in limbo," by Tim Monzingo.  It's via the San Francisco Chronicle.

Senate Bill 1292, passed by the state Legislature this year, makes it mandatory for all evidence containing DNA collected in a criminal investigation to be tested before a capital murder case goes to trial. Prosecutors must meet with the defendant and "agree on which biological materials constitute biological evidence," the law reads.

The bill was sponsored by Sen. Rodney Ellis, D-Houston, and had the support of Texas Attorney Greg Abbott.

And:

Some attorneys are concerned about the new law's unintended consequences, including a potential drop in the number of death-penalty cases prosecutors pursue and a delay in the handling of non-capital cases.

Shannon Edmonds, a staff attorney for the Texas District and County Attorneys Association, said one question is whether prosecutors might forgo a death-penalty case to speed up the trial process.

Edmonds said when the state adopted a life-without-parole option for capital offenders, prosecutors began turning to that more often than they sought the death penalty. He said only time will tell if this legislation has a similar effect.

Part of the concern, he said, is that all death penalty cases set to go to trial after Sept. 1, no matter how long they have been in the system, could be delayed by the additional testing.

Another issue is that testing evidence in capital punishment crimes will take priority. DNA samples from non-death penalty murders, rapes and other crimes will "go to the back of the line," Edmonds said.

Earlier coverage of the new Texas law begins at the link.  Related posts are in the DNA and Texas Legislature category indexes.

 

ABA Journal Examines Crime Lab Problems

The September 2013 edition of ABA Journal has an in-depth examination of crime labs, "Crime labs under the microscope after a string of shoddy, suspect and fraudulent results," by Mark Hansen.  For those interested in forensics, it's a must-read.  Here's the beginning:

In January, the New York City medical examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician who resigned in 2011 after an internal review uncovered problems with her work.

The review, then about half complete, had already turned up 26 cases in which the former technician failed to detect the presence of DNA evidence, including one in which the evidence has since led to an arrest in a 10-year-old rape case. The review uncovered 19 cases in which DNA evidence was commingled with DNA evidence from other cases.

A month earlier, a former chemist at a now-shuttered state drug lab in Boston was indicted on 27 counts of obstructing justice, tampering with evidence, perjury and other charges in connection with her handling of some of the tens of thousands of drug cases she worked on during her nine years there. “Little Annie” Dookhan is accused of faking test results, intentionally contaminating and padding suspected drug samples, forging co-workers’ signatures on lab reports, and falsely claiming to have a master’s degree in chemistry.

The ongoing investigation into her work—which could upend thousands of drug convictions—has already led to the closing of the lab, the release of hundreds of convicted drug offenders, and the termination of one lab official and resignation of another. It also led to the resignations of state Public Health Commissioner John Auerbach, whose office oversaw the lab, and Norfolk Assistant District Attorney George Papachristos, who was found to have had an inappropriately personal (albeit not romantic) relationship with Dookhan.

A few months before that, the St. Paul, Minn., police department’s crime lab suspended its drug analysis and fingerprint examination operations after two assistant public defenders raised serious concerns about the reliability of its testing practices. A subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles.

Related posts are in the crime lab and forensics category indexes.

ABA Virginia Assessment Released

The American Bar Association Death Penalty Due Process Project has released its Virginia Assessment on the Death Penalty.

The assessment is conducted by a state-based team responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of capital punishment in Virginia. It is the Virginia Assessment Team’s responsibility to determine whether the state is in compliance with the ABA Protocols and make any other additional recommendations it feels are needed to improve the fairness and accuracy of Virginia’s death penalty system.

"Report cites flaws in Virginia death penalty," is the AP report filed by Larry O'Dell, via the Roanoke Times.

A panel of legal experts says Virginia lawmakers should make several changes to ensure fairness and accuracy in the state's death penalty system.

The Virginia Death Penalty Assessment Team announced results of its two-year study Thursday in Richmond. The study is part of an American Bar Association initiative to examine procedures in a dozen states that have capital punishment.

The panel says one of the biggest problems in Virginia is an overly restrictive state appeals process. It recommends giving inmates more time to appeal and providing funding for their lawyers to hire experts.

The Richmond Times-Dispatch reports, "Study urges fairness reforms in death penalty cases," by Frank Green.

A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases.

The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups.

Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.

According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976.

The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.

And:

The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches.

The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.

Earlier coverage of ABA state assesments begins at the link.  The Death Penalty Due Process Project was formerly called the Moratorium Implementation Project.

Related posts are in the ABA category index.

Some Worry Over a Law to Increase DNA Testing

That's the title of a report by Brandi Grissom in the Texas editition of the Sunday New York Times.  An expanded version is posted at the Texas Tribune.  There is an interactive infographic at the Tribune page.  The article references the case of Hank Skinner.

In some Texas counties, it takes six months or longer to get DNA test results from the Department of Public Safety, says William Lee Hon, the Polk County criminal district attorney.

Now, Mr. Hon and other prosecutors fear that come Sept. 1, when a new law takes effect requiring DNA analysis of all biological evidence in death penalty cases, the wait could grow longer. “We’re not sure that D.P.S. has the resources currently to adequately comply with that legislation,” he said.

In Texas, there have been 54 exonerations based on DNA test results, including those of two inmates on death row, according to the National Registry of Exonerations. Lawmakers this year approved Senate Bill 1292, written by Senator Rodney Ellis, Democrat of Houston, which aims to prevent wrongful convictions. Many prosecutors say that the bill may go too far, and that the pursuit of testing in some cases could be used to delay a conviction.

Tom Vinger, a safety department spokesman, said it was too early to predict the law’s impact. Mr. Ellis, who is the board chairman of the Innocence Project, which is dedicated to using DNA evidence to exonerate the wrongfully convicted, said that if the state sought the death penalty, expedience should not take priority over certainty.

“If you’re going to ask for the death penalty,” he said, “you ought to be confident that you have the right person.”

The bill’s champions include Attorney General Greg Abbott, the leading Republican candidate for governor, who said the measure would save Texas years of appeals.

“There’s no reason to test these items more than a decade after the crime was committed,” Mr. Abbott said in March.

Earlier coverage of the DNA testing legislation begins at the link; also available, additional coverage of the Texas Legislature's 2013 regular session and  more on Hank Skinner's case.  Related posts are in the DNA category index.

NC Exonerations Update

"Men wrongly held for murder get millions, but no apology, from the state," by Mandy Locke and Joseph Neff for the News & Observer.

This summer, the state and its insurers will pay nearly $12.5 million for missteps that cost two men decades of freedom. 

Here’s what Floyd Brown and Greg Taylor won’t get from state leaders: an apology.

"NC man wrongly convicted of murder released from jail," by Mitch Weiss for the AP, via the News & Observer. 

A North Carolina man says he's excited about being released after spending 20 years behind bars for a homicide he didn't commit. 

A judge last week vacated Larry Lamb's 1993 murder conviction, and prosecutors dismissed the charges Tuesday, said one of Lamb's attorneys, Christine Mumma of the North Carolina Center on Actual Innocence.

"Man wrongly convicted of murder walks free from Wake prison," by Kevin Holmes for WRAL-TV.

A man imprisoned for more than 20 years for the murder of a Duplin County bootlegger was released Tuesday evening from the Wake Correctional Center in Raleigh. 

A judge on Thursday ordered that Larry Lamb be exonerated in the fatal shooting of Leamon Grady, who was robbed and found dead in his home in 1987. On Tuesday, the Duplin County District Attorney's Office dropped the charges against Lamb, clearing the way for his release.

Earlier coverage from North Carolina begins at the link.

North Carolina Settlement in Exonerations

"State agrees to $12 million settlement for two wrongly imprisoned men," by Joseph Neff and Mandy Locke for the News & Observer. Also a video of Floyd Brown and Greg Taylor attached to this story.

North Carolina’s State Bureau of Investigation and its insurers have agreed to pay $12.475 million to two innocent men who spent a total of 31 years behind bars.

The state agreed to pay $7.85 million to settle the state lawsuit filed by Floyd Brown, a mentally disabled man locked up for 14 years in a psychiatric hospital based on what his lawyers said was a false confession created out of whole cloth by an SBI agent. Brown has also reached a separate settlement with Anson County, whose sheriff’s deputies helped investigate the case. A federal judge has sealed the Anson County settlement; North Carolina law requires that all such court settlements be public records.

The state also agreed to pay $4.625 million to Greg Taylor, a Wake County man convicted in 1993 for the murder of a woman found beaten and abandoned in an East Raleigh cul-de-sac. Taylor spent 17 years behind bars before a three-judge panel declared him innocent in 2010, the first such exoneration by an independent innocence commission in the United States.

The settlements are not the first large payouts stemming from SBI misconduct.

Earlier coverage from North Carolina begins at the link.

Forensic Science Commission to Examine Texas Hair Cases

"Forensic science commission to review convictions based on hair samples," by Yamil Berard for the Star Telegram.

Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

Earlier coverage of the flawed testimony in microscopic hair analysis cases is at the link; also available, more on the case of Claude Jones.  Related posts are in the DNA and forensics category indexes.

Faulty Forensics

The Washington Post reports, "U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors," by Spencer S. Hsu.  Here's an extended excerpt from the beginning:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty. Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment. But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.

Earlier coverage of FBI forensic flaws begins at the link.  More recently, former FBI Director William Sessions wrote about the Mississippi case.  Related posts are in the forensics category index.

Ken Rose on North Carolina's Death Penalty

"Use resources on DNA tests, not death penalty," is Ken Rose's OpEd in the Salisbury Post.  He's an attorney with the Center for Death Penalty Litigation.  Here's the beginning:

Imagine your family member was the victim of a rape. Police arrested a man found near the scene and held him in jail for nearly two years before a long-delayed DNA test revealed that he was not the rapist. By that time, the chances of finding the true perpetrator were greatly diminished.

This very scenario played out in North Carolina last week, as the News & Observer of Raleigh reported. Elio Santos de la Cruz had been in the Johnston County jail since June 2011 while prosecutors waited for the State Crime Laboratory to return the results of DNA tests. The tests revealed that de la Cruz was not the rapist.

Defense lawyers say these kinds of wait times for DNA tests are the norm in North Carolina. This not only means that innocent people are sometimes held in jail for months or years, but that justice is delayed — or denied altogether — for victims.

This problem is epidemic in our state, even in cases of murder. About 12 percent of people who are charged with first-degree murder are eventually released without ever being tried. Many innocent people languish in jail for months or years before prosecutors discover they don’t have enough evidence to prosecute them. Meanwhile, the true killers continue to roam the streets.

Earlier coverage from North Carolina begins at the link.

David Protess on Texas Executions

"A Busy Year for the Texas Executioner, but Hank Skinner Eludes Death Again," is David Protess' latest essay at Huffington Post.  He's President of the Chicago Innocence Project.  Here's the beginning:

In the spirit of the holidays, Texas is taking a break from lethally injecting the residents of the Allan B. Polunksy Unit, better known as death row.

Executioners need time off, too, especially after a busy year that reduced the surplus population by 14 -- six executions ahead of its nearest rival, Oklahoma, and one-third of the total state-sponsored killings in 2012.

The Texas killing fields ended in controversy a week before Thanksgiving when Preston Hughes was executed despite compelling evidence of his innocence. Texas will officially welcome in the New Year when Kimberly McCarthy becomes the first woman put to death in two years, barring an unforeseen stay.

Of the 17 executions planned for 2013, eight will be in Texas. And, if Texas has its way, one of the newly departed will be Henry Watkins Skinner, a/k/a "Hank."

Executing Hank Skinner has presented a surprisingly stubborn challenge for Texas lawmen. Convicted of brutally slaying his live-in girlfriend and her two adult sons on New Year's Eve in 1993, physical evidence proved that Skinner was in the home at the time of the crime. Then he showed up, wearing bloodstained clothes, at a neighbor's residence and allegedly threatened her if she called the cops. A Panhandle jury did not take long to find him guilty and recommend the ultimate punishment.

Yet, on death row for 18 Christmases, Skinner has outlived more than 400 condemned men and women. How? Turns out the evidence was not what it seemed.

Earlier coverage of Hank Skinner's case begins at the link.

Update on Anthony Melendez's Case

"California judge orders DNA scientist to appear in Waco court," Cindy V. Culp's post for the Waco Tribune.

A California DNA scientist who has analyzed evidence from the decades old Lake Waco murders case has once again been ordered to appear in court here.

This morning, a judge in California’s Contra Costa County said Alan Keel must comply with an earlier subpoena from Waco’s 54th State District Judge Matt Johnson. The subpoena was issued in relation to a request for new DNA testing in the triple-murder case. Waco attorney Walter M. Reaves Jr., made the request on the behalf of Anthony Melendez, 53, the only living defendant from the 1982 crime that claimed the lives of three teens.

Reaves wants Johnson to order new DNA testing in the case. But Johnson has not been able to rule on the request because Keel’s lab has possession of DNA extracted from crime scene evidence and has refused requests to send it to another lab for further testing.

Keel was originally supposed to appear at a hearing in Waco this spring. But he failed to show up, saying Reaves didn't arrange his travel and pay his professional fees in advance as promised. Reaves contended there was never an agreement that the money had to be paid upfront.

With the help of an attorney in California, Reaves filed a motion asking for a contempt of court hearing. That was the hearing held this morning.

Melendez’ attorneys asked the California judge to order the lab to send by overnight mail all evidence it has related to the case. As an alternative, they asked the judge to once again order Keel to appear in Waco's court.

Mark Vermeulen, a San Francisco attorney who handled the California hearing, called the result a partial victory. The judge did not order the lab to immediately release the evidence because she felt the original Texas subpoena was not precise enough in laying out what evidence Johnson wants, Vermeulen said.

However, the judge said Melendez’ lawyers can ask Johnson to clarify the exact items Keel needs to bring with him to court. If such clarification is made, she told Keel, he will be at Johnson’s mercy if he decides to defy it.

KWTX-TV posted a preview of the hearing earlier today, "Hearing In Calif. Involves Tests Of DNA From Lake Waco Triple Murder Case."  It's by Paul J. Gately.

Two California scientists who refused to show up in Waco for a court hearing are due in court in California Tuesday to explain why they skipped the appearance.

Edward Blake and Alan Keel are scheduled for a contempt of court hearing Tuesday in Contra Costa County, Calif. over their refusal to show up for a court hearing last March in Waco.

The two men, owners of a California DNA lab, tested samples of DNA that local attorney Walter S. "Skip" Reeves believes might lead to the release of Anthony Melendez, who is the only surviving defendant in the murders of three teenagers in 1982 at Lake Waco.

And:

Melendez and his brother Gilbert were sentenced to two life terms after pleading guilty to charges stemming from the murders.

Gilbert Melendez died in prison in October 1998.

Spence, who prosecutors said was hired by Waco storeowner Muneer Mohammad Deeb to kill a female employee, Gayle Kelley, in order to collect on her insurance policy, but who mistook Montgomery for the woman and killed her and the other two teenagers in a case of mistaken identity, was executed in April 1997.

David Spence was twice convicted of capital murder in trials in 1984 in Waco and the next year in Bryan.

After the first trial, the Melendez brothers agreed to a plea deal that would spare them from the death penalty in exchange for their testimony against Spence in the second trial.

They both later said they had nothing to do with the murders of the teenagers and pleaded guilty because they believed they would have been sentenced to death if they had gone to trial.

Deeb was also convicted and sentenced to death, but won a new trial and was acquitted in 1993.

He died in Dallas County in November 1999.

Earlier coverage of this long-controversial case begins at the link.

An Update From Waco

The Sunday Waco Tribune-Herald reports, "New moves made to obtain DNA work product in Lake Waco triple murder case."  It's by Cindy V. Culp.

A California forensics association is investigating whether a DNA laboratory that analyzed evidence from the decades-old Lake Waco triple murders case is committing ethical misconduct by refusing to release all of the information related to its testing.

The investigation is the latest twist in a protracted effort to exonerate the only living defendant in the case, Anthony Melendez.

He and three other men were convicted in the 1982 deaths of three teenagers, whose bodies were found at Lake Waco. Melendez, now 53, is serving two life sentences.
 
The investigation into the Lake Waco murders evidence is an attempt to exonerate Anthony Melendez, the only living defendant in the case.

The exoneration push is being led by Waco attorney Walter M. Reaves Jr. and an author named Fredric Dannen. They previously worked together to free a Waco man wrongfully convicted of another murder.

And:

Austin resident Bernadette Feazell filed a complaint with the California Association of Criminalities. It is a professional organization for scientists who do forensics work.

Feazell is the ex-wife of Vic Feazell, a former McLennan County district attorney involved in the prosecution of the triple murders. In recent years, she has come to believe the wrong men were convicted of the crime and has worked to free Melendez.

In her complaint, sent in June, Bernadette Feazell asked the association to investigate the lab for refusing to turn over all evidence related to the case.

The head of the association’s ethics committee recently notified her that it has opened an investigation, which should be completed within 90 days.

The commission supplied Feazell with a letter it sent to Blake asking for information about the situation.

In that letter, ethics committee chairman Alicia Lomas-Gross said the lab may be in violation of several parts of the committee’s ethics code.

Earlier coverage from Waco begins at the link.  The Lake Waco Murders case has already produced one Texas death row exoneration; Muneer Deeb.

New Questions Raised in Long-Controversial Texas Case

"Former DA’s Ex-Wife Doubts Guilt Of Surviving Lake Waco Murder Defendant," is by Paul J. Gately of KWTX-TV.

A Waco lawyer who has waged a battle to free the last of the four men accused of participating in the 1982 murders of three teenagers at Lake Waco is getting support from a very unlikely source.

The ex-wife of the former prosecutor who won a conviction against Anthony Melendez his alleged role in the grisly murders of the three teens has contacted a California criminalists group and asked it to investigate why a California DNA lab is refusing to turn over its findings in the case.

Bernadette Feazell, the ex-wife of former McLennan County District Attorney Vic Feazell, asked the California Association of Criminalists to conduct an investigation of Edward T. Blake, owner of a California DNA lab, who has refused to turn over the lab's findings in relation to the triple murder case.

Walter M. "Skip" Reaves is representing Anthony Melendez, now 52, and the last surviving defendant in the case, who remains in state prison serving a life sentence.

In a letter to Blake dated July 24, CAC ethics committee chairwoman Alicia Lomas-Gross said the group is initiating an investigation into the lab and its practices and will complete a report on or before Oct. 22, unless a 60-day extension is granted.

And:

On Jan. 6 a Waco district judge cleared the way for Reaves to proceed with an effort to have further DNA tests performed on evidence collected during the investigation of the slayings of three teenagers.

Lab owners Blake and Allen Keel were subpoenaed to testify in the January hearing, but neither showed up, Reaves said.

State District Judge Matt Johnson issued an order of attachment for both men who failed to show up but unless one or both of them return to the court's jurisdiction, that order can't be enforced.

On the 30th anniversary of the murders earlier this month Reaves said the reason behind the lab's refusal to turn over evidence is "a million-dollar question."

Reaves said more money, perhaps as much as $40,000 more, might convince the lab to turn over the evidence they have.

Reaves has said he hopes the evidence will ultimately clear Melendez and perhaps identify the real killer.

Earlier coverage of the Lake Waco case begins at the link.

FBI to Launch Large Post-Conviction Review

Today's Washington Post reports, "Justice Dept., FBI to review use of forensic evidence in thousands of cases."  It's written by Spencer S. Hsu.

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

On Tuesday, the Justice Department announced that it will conduct the more expansive review.

“The Department and the FBI are in the process of identifying historical cases for review where a microscopic hair examination conducted by the FBI was among the evidence in a case that resulted in a conviction,” spokeswoman Nanda Chitre said in a statement. “We have dedicated considerable time and resources to addressing these issues, with the goal of reaching final determinations in the coming months.”

And:

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

The article states that DoJ and the FBI will be working with the Innocence Project and the National Association of Criminal Defense Lawyers in the review, though no details were provided.

Earlier coverage begins with the Post's April series on flawed forensics.  Related posts are in the forensics category index

DPS Lab to Get Evidence in Hank Skinner Case

"State to get Skinner evidence for DNA testing," is the title of Allan Turner's report in today's Houston Chronicle.  The items for DNA testing are due to be turned over to a DPS lab, today.

Henry Skinner is a small man with a crooked nose, acid tongue and keen mind. Convicted of fatally pummeling his lover with an ax handle and stabbing her adult sons in a 1993 New Year's Eve Texas Panhandle rampage, he has used his 17 years on death row to assail Texas' criminal justice system as "cunning and deceptive."

In a case that has become an international anti-death penalty cause célèbre, Skinner since 2001 has battled to obtain DNA testing of items he believes will clear him of the Pampa killings of Twila Busby and her sons, Randy and Elwin.

Skinner's campaign for more testing twice has prompted courts to stay his scheduled executions. His quest has been complicated by his first lawyer's decision to abandon DNA testing after examination of clothing worn by Skinner on the night of the killings revealed traces of the victims' blood.

And:

Even as Skinner's lawyers and supporters breathed a sigh of relief, though, it once again appeared the victory may only be partial. State lawyers admit that, after a thorough search, they cannot find the windbreaker, which Skinner attorney Rob Owen called a key piece of evidence.

Owen, a University of Texas law professor currently teaching at Northwestern University Law School, said that, based on stain patterns, a forensic expert for Skinner believes the jacket likely had been worn by the killer.

Although the jacket was not introduced as evidence at Skinner's trial, legal experts said the state should have preserved the garment pending the case's final resolution. "These issues come up all the time, sometimes 10 or 15 years later," said South Texas College of Law professor Ken Williams. "It's the responsibility of the state ... to put it away in a safe somewhere."

Said Skinner: "The state has a lot of explaining to do. ...That jacket is key to everything."

Owen said the importance of the jacket may grow if tests on other items prove "less illuminating."

"The jacket appeared to have sweat stains, human hairs," Owen said. "It was a rich source of DNA that could have been tested."

Earlier coverage of the Hank Skinner case begins at the link.

What's Next in the Hank Skinner DNA Testing

"Evidence Missing in Skinner Case," is Jordan Smith's post in the Austin Chronicle, our independent alt-weekly on the stands today.

Just two weeks after the state announced it would drop its opposition to the post-conviction DNA testing of evidence in the capital murder case that sent Hank Skinner to death row, comes news that at least one piece of evidence Skinner has been seeking access to for testing has been lost. Among the key pieces of evidence never before tested, and that Skinner has sought access to for more than a decade, is a blood- and sweat-stained windbreaker found near the body of his girlfriend Twila Busby. The windbreaker is now apparently missing. "We are pleased to have reached an agreement that finally secures DNA testing in this case, but there remains reason for grave concern," Skinner's attorney Rob Owen said in a press statement. "According to the State, every other piece of evidence in this case has been preserved. It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man's windbreaker. To date, the State has offered no explanation for its failure to safeguard the evidence in this case."

Indeed, in addition to 40 items of evidence that have never before been tested for DNA is the windbreaker found next to the body of Busby, who was slaughtered along with her two sons, in the Pampa home she shared with Skinner. There are photos of the windbreaker, a tan jacket with snap buttons down the front, but the windbreaker itself has disappeared – and no one seems to know how or when it was misplaced, or where it might've gone. The Gray County Sheriff's Office says it has never had custody of the jacket; Gary Noblett, from the Pampa Police Department, a 41-year law enforcement veteran who now manages the department's evidence, says that everything the Pampa PD had stored as evidence in the case was eventually transported for Skinner's original trial. After Skinner was convicted the evidence was moved back to Gray County, he said, but "somehow or another" the windbreaker never made it back. He says the PD has fielded questions about the missing windbreaker for three or four years – at some point including questions from the AG's office – but "as far as I know, no one's ever been able to find that thing."

And:

All evidence is to be transported to the Texas Department of Public Safety lab in Lubbock, where it will be inspected by lawyers for both parties before any testing begins. Any unknown DNA profile found as a result of the testing will be run through state and national databases, if possible, and followed by the issuance of a report by DPS documenting the test results and DNA comparisons. Forty-five days after all of the data has been reported to the parties a hearing on the matter will be held in Gray County.

Earlier coverage of Hank Skinner and the Joint Motion for DNA testing in his case begins at the link.

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.