The StandDown Texas Project

Texas Put in Uncomfortable Spotlight

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

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

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

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

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

And:

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

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

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

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

And:

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

That leads us to Washington for Wednesday's hearing.

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

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

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

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

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

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

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

Paul Giannelli
Professor - Case Western Reserve University
Cleveland, OH

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

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

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

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

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

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

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

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

An excerpt from Senator Feingold's remarks:

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

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

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

Update on the Sonnier Case

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

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

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

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

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

Today was the day.

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

Earlier coverage is here.

Another Texas Exoneration

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

Lab Analyst Decision Complicates Prosecutions

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

Colb on Melendez-Diaz

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

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

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

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

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

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

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

The Charles Raby Case

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Lab Report Case Granted - UPDATED

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

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

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

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

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

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

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

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

And:

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

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

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

Questioning Forensic Evidence

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

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

And:

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

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

Earlier coverage of the NAS report is here.

'Dallas DNA' Premieres Tomorrow

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

Some Dallas County courtroom dramas are going prime time.

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

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

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

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

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

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

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

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

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

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

NAS Report Released

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The report is available here; earlier coverage, here.

Science Found Wanting in Nation’s Crime Labs

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

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

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

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

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

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

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

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

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

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

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

New Concerns Over DNA Testing and Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Several justices seemed to struggle to find the dividing line between the kinds of information that must be presented through live testimony and those that are routine, reliable or tangential enough to require only a written certification. The justices also indicated that they were aware of recent scandals at major crime laboratories involving the flawed analysis of blood, hair, ballistics and other evidence.

Justice Stephen G. Breyer cited a supporting brief filed by the National Innocence Network in the case, Melendez-Diaz v. Massachusetts, No. 07-591. The brief, Justice Breyer said, “is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong.”

“They lost the results,” Justice Breyer said of the laboratories. “They got it all wrong.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Martha Coakley, the attorney general of Massachusetts, argued that requiring live testimony from laboratory analysts “would be an undue burden with very little benefit to the defendant.”

"Argument analysis: As Kennedy goes…," is Lyle Denniston's report at SCOTUS Blog.

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts  (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch.  Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

"Coakley: Forensics testimony a burden," is by Boston Globe correspondent Jenny Paul.

Massachusetts Attorney General Martha Coakley told the Supreme Court yesterday that requiring forensic scientists to testify at criminal trials where their reports are presented as evidence would place an undue burden on the state's already-backlogged drug testing system.

Misdemeanor drug prosecutions in Massachusetts "would grind to a halt," said Coakley, who was arguing before the Supreme Court for the first time.

The case centers on whether a defendant's Sixth Amendment right to confront witnesses against him applies to the admission of drug analysis certificates as evidence at criminal trials. If it does, the analysts who prepare the reports could be required to provide live testimony in court.

The case involves Luis Melendez-Diaz, who was convicted in 2004 of trafficking cocaine and sentenced to three years in prison. Boston police arrested Melendez-Diaz in 2001 and seized bags filled with powdery substances, later determined to be cocaine by chemists at the state Department of Public Health's drug analysis laboratory. The drug analysis certificates were presented as evidence at Melendez-Diaz's trial, but the analysts who prepared the reports did not testify. He is now appealing the verdict to the Supreme Court.

The justices acknowledged that their decision could have far-reaching effects on the backlog and workload at crime labs nationally.

"This is a very, very substantial burden" if the court rules that states must have analysts testify at trials, Justice Anthony Kennedy said.

"Court weighs nature of lab evidence," is Joan Biskupic's report in USA Today.

"Introducing forensic laboratory reports (without live witnesses) is the modern equivalent of trial by affidavit," said Stanford University law professor Jeffrey Fisher, representing Luis Melendez-Diaz, who was convicted of cocaine trafficking. Fisher challenged a Massachusetts policy, similar to others nationwide, that allows forensic analysts to submit certificates — here, a report on the authenticity and quantity of cocaine seized — without testifying.

Massachusetts Attorney General Martha Coakley countered that forcing lab workers to testify would be costly and time-consuming. "Misdemeanor drug prosecutions would essentially grind to a halt," she said.

The question is whether lab reports should be considered "testimonial," rather than objective public records. If they are testimonial, they would be subject to the Sixth Amendment right to confront witnesses.

In recent years, the court has more broadly interpreted the right to confront witnesses. Justice Antonin Scalia, who was among those sympathetic to Melendez-Diaz's claim, has taken the lead in making it harder for witnesses' statements to be introduced without testimony.

Thirty-five states are siding with Massachusetts. One of the groups backing Melendez-Diaz, the National Innocence Network, says forensic evidence is wrongly assumed to be infallible. The group asserts that in most of the exonerations it has obtained, forensic errors, such as blood type testing, played a key role in conviction.

As DNA Test Backlogs Soar, U.S. Cuts Funding

That's the title of a report in Sunday's Los Angeles Times reported by Benjamin Protess and Joel Rubin.  LINK  Here's an extended excerpt from the beginning of the article:

Last summer, the Los Angeles Police Department was dealt a rude shock.

Expecting nearly $1 million in federal grant money to help cover the cost of analyzing DNA evidence in rape cases and other violent crimes, the department was awarded only half that much.

U.S. Department of Justice officials, who distribute the money to police agencies nationwide, told LAPD staff that the fault was their own. The LAPD had been too slow to spend about half the DNA grant money awarded in prior years, so its 2008 allotment was reduced. Meanwhile, an audit found that more than 7,000 rape kits are waiting to be analyzed, the largest known backlog in the country.

As dire as LAPD's problem is, it is hardly unique.

The Justice Department cut backlog funding this year to crime labs in 17 states, including California, because they had not spent federal grants dating as far back as 2004. About a quarter of the 105 law enforcement agencies that receive these grants had their funding docked, Justice Department officials said.

The cuts coincide with a soaring national DNA backlog. Although the federal government hasn't estimated the backlog in recent years, Human Rights Watch, which advocates for rape victims among others, has put it at about 400,000 cases.

Smaller jurisdictions are not immune. In Erie County, N.Y., the year-to-year backlog increased from 620 to 920 in 2007. In Ventura County, the backlog increased from 53 cases to 156 during the same period.

"Potentially hundreds if not thousands of rapists nationally could be apprehended if the frozen evidence of their crime was analyzed," said Los Angeles City Councilman Jack Weiss, who has complained about the backlog for years. "It is the ultimate no-brainer."

Rep. Carolyn B. Maloney (D-N.Y.) wrote a letter last week to Atty. Gen. Michael Mukasey expressing her "strong concerns" about how the money is being spent. Maloney, who sponsored legislation that secured the funding, asked Mukasey for a detailed accounting.

"It would be outrageous if the backlogs are the result of the Department of Justice's negligent administration," Maloney said in a statement to The Times and ProPublica, a nonprofit investigative reporting newsroom.

It has been nearly a decade since Congress ordered the Justice Department to help crime labs reduce their backlogs. Since 2004, Congress has given the department $474 million for this purpose through the Debbie Smith Act, written by Maloney and named after a woman who advocates for eliminating backlogs. Smith was raped in 1989, but her attacker's DNA went untested for six years.

With this funding, the Bush administration said, the backlog would be eliminated in five years, a period that soon will expire.

But at the same time, an unprecedented number of DNA samples entered the nation's crime labs. New laws mandated that DNA be taken from more people, often including those arrested but not charged with a crime. Meanwhile, new technologies made it possible to analyze small or degraded samples.

Thanks to David Whettstone for circulating.

More Fingerprint Problems

"LAPD blame faulty fingerprint analysis for erroneous accusations," is the Los Angeles Times report by Joel Rubin and Richard Winton.

The Los Angeles Police Department has acknowledged in a confidential report that people have been falsely implicated in crimes because the department's fingerprint experts wrongly identified them as suspects.

The 10-page internal report, obtained by The Times, highlighted two cases in which criminal defendants had charges against them dropped after problems with the fingerprint analysis were exposed. LAPD officials do not know how many other people might have been wrongly accused over the years as a result of poor fingerprint analysis and do not have the funds to pay for a comprehensive audit to find out, according to police records and interviews.

"This is something of extraordinary concern," said Michael Judge, public defender for Los Angeles County. "Juries tend to accord the highest level of confidence to fingerprint evidence. This is the type of thing that easily could lead to innocent people being convicted."

The two cases were used by investigators to illustrate broader problems with shoddy work and poor oversight that have plagued the department's Latent Print Unit. Rhonda Sims-Lewis, chief of the LAPD's administrative and technical bureau, acknowledged the findings, but said changes to the unit's leadership and protocols were made last year after senior officials became aware of problems.

Internal discipline investigations led to the firing of one fingerprint analyst, who had been involved in both of the mishandled cases. Three other analysts received suspensions, Sims-Lewis said. In addition, two supervisors responsible for overseeing the unit were replaced, staff was bolstered and oversight tightened, she said.

"This is very, very serious," Sims-Lewis said. "We feel very compelled to take quick action when something like this arises. Guilty people can be set free and innocent people can be jailed."

There are 78 forensic print specialists assigned to the unit, according to the department's website. They are not sworn police officers but among the hundreds of civilians who fill specialty jobs in the department. After prints are lifted from a crime scene, the specialists run them through automated databases to find possible matches and then analyze those to seek a more precise match. Two other analysts are then supposed to check the work for accuracy.

HPD Crime Lab Seeks Funding for Outside Review

"HPD's crime lab asks for $1.25 million," is the report in today's Houston Chronicle.

The Houston Police Department is asking City Council to approve $1.25 million to hire outside scientists to review all tests done by the recently reopened DNA crime lab.

Limited DNA testing resumed at the crime lab in July, but the department still outsources the majority of tests to a Dallas firm.

The two consultants, Dr. Charlotte J. Word and Dr. Robin W. Cotton, would review every case involving DNA testing and check the processes and conclusions reached by HPD's in-house laboratory, according to Dr. Laura Gahn, the DNA lab's technical director.

The hiring of independent, outside consultants was a recommendation of the multi-year, $5.3 million probe of HPD's troubled crime lab, completed in 2007.

"Now, you have an extra level of oversight from outside, giving the public an extra level of confidence," Gahn said.

Gahn was hired in June to replace Vanessa Nelson, who resigned in January. Nelson left after HPD's internal investigators concluded she was feeding analysts answers needed to pass a DNA skills test in 2007.

Gahn said the lab is doing some DNA tests but cannot handle the required volume, yet, to end the outsourcing contract. Of the nine staff analysts, only five can perform DNA testing now; the rest are in training.

Earlier coverage is here.  All reports of the independent investigation conducted by Michael Bromwich are here.

Touch DNA

On Monday the Washington Post reported, "DNA Technology Moves Forward," on the latest advances in testing.

When the Maryland State Police lab told her that the evidence didn't contain enough bodily fluid for a complete DNA profile, Shelly Progovitz was crushed. A man who had brutally raped a 12-year-old girl behind a middle school in Waldorf in 1996 and then tied her hands and feet and forced a sock into her mouth would never be convicted for what he had done.

But Progovitz, a crime scene technician, did not let her disappointment keep her on the sidelines long. That night, she went home and searched on Google for something she had read about in scientific journals but had never used: "touch DNA."

In April, after Progovitz had resubmitted the case to a private lab in Virginia, she got a different kind of call. The lab had pulled a complete profile from clothing at the scene using touch DNA. It matched the DNA of the suspect whom police had in mind since rape, 12 years ago.

And:

Touch DNA -- using genetic material from skin cells left on an item -- is analyzed just like that from blood or semen. It's typically collected by scraping an object or placing tape on it, then lifting the tape up. The technique, in use for four or five years, gained some prominence this summer when it was used to exonerate the parents of JonBenet Ramsey, said Angela Williamson, director of forensic casework at Bode Technology, a Lorton-based DNA lab.

Many police department labs, including those used by the Maryland State Police and police in Anne Arundel and Montgomery County, also use the technique. Those labs, though, often have significant backlogs, forcing some work to be outsourced to private labs, officials said.

Touch DNA is just as expensive as other sorts of genetic testing, which can range from $1,300 to $1,500 an item, said Ernest Jones, a fingerprint specialist in the Charles crime lab. It also has a lower success rate.

Today's USA Today has, "'Touch' DNA offers hope in cold investigations."

The success of the little-known method in her case is triggering requests for the test from law enforcement officials seeking similar breakthroughs in unsolved crimes. Private and state-run laboratories report increases of up to 20% in use of the technique called "touch" DNA.

Analysts scrape or swab surfaces such as clothing or food to try to get enough microscopic cells to identify or rule out suspects in violent crimes, robberies and burglaries. Unlike other DNA methods, touch DNA is used on surfaces without a visible stain, such as blood, but that investigators suspect might contain genetic material.

And:

Though some laboratories have used touch DNA since early this decade, forensic analysts and police officials say investigators are just learning about it.

At Bode Technology Group, the Lorton, Va., firm that performed the Ramsey test, analysts are fielding about 30% more calls from investigators inquiring about touch DNA and about 20% more requests for testing, says Angela Williamson, Bode's director of forensic casework.

Since the Ramsey results were made public, Williamson says, touch DNA tests at her firm have advanced at least 10 "major cases." In half of those, the results helped rule out possible suspects. In the other half, profiles for potential suspects were developed, she says.

Orchid Cellmark, based in Princeton, N.J., also has seen a rise in touch DNA cases. Touch testing there jumped from about 3% of overall cases two years ago to about 15% now, says Robert Giles, executive director of research and development.

In Texas, the state Department of Public Safety has received dozens of requests, says Brady Mills, assistant director of its crime lab services.

The success rate is unclear.

The Justice Project's Latest Policy Brief

The National Law Journal has a web-only dispatch, "Report recommends independent forensics labs," written by Vesna Jaksic.

States should require forensic laboratories to be independent from law and prosecutorial agencies and create oversight commissions to enforce quality standards, according to a new report.

Those are among the recommendations issued in a new report by The Justice Project, a Washington-based nonpartisan organization that works to fight injustice. The report points out that forensic science can be a powerful tool in criminal investigations, but can also contribute to wrongful convictions.

“While errors in forensic analysis and forensic expert testimony are a leading contributing factor in wrongful convictions, a series of reform measures could dramatically reduce such errors,” the report said.

In addition, the report issued these recommendations:

• States should require all forensic science labs to develop internal structures and policies to prevent bias in testing and analysis.

• States should require that all forensic lab analysts receive proper training and certification.

• States should allocate funding sufficient to adequately implement these recommendations.

The policy review, Improving the Practice and Use of Forensic Science, is available in Adobe .pdf format.  Coverage of TJP's,  Improving Access to Post-Conviction DNA Testing,issued earlier this month, is here.

Forensics May Be the Best Defense

That's the title of an OpEd from the Hartford Courant written by Roger Koppl and Dan Krane.  LINK   Koppl is director of the Institute for Forensic Science Administration at Fairleigh Dickinson University; Krane is professor of biological sciences at Wright State University. 
Here are two extended excerpts:

A Mississippi judge has recently taken the unusual step of allocating several thousand dollars in county funds so a defendant, accused of murdering a Jackson State University co-ed last November, can hire a forensic expert to examine the evidence in the case, scheduled for trial in September.

With forensic evidence - fingerprints, DNA, ballistics, bloodstain patterns, footwear analysis and the like - a significant factor in more and more verdicts, let's hope Judge Swan Yerger's recent action sets a national precedent. Let us explain why.

In today's "CSI" world, forensic scientists, like the television character Gil Grissom, may have overtaken lawyers as the most influential players in courtroom dramas. The evidence they analyze and present as part of the prosecution team is often the deciding factor in whether a defendant is found guilty or innocent.

But research indicates that forensic evidence is often flawed. So, in fairness, defendants should have a right to forensic expertise, just as they have a right to an attorney.

Consider DNA profiling. A 2007 University of California study found that "DNA tests sometimes produce ambiguous results that are subject to multiple interpretations," thus introducing "subjective judgments" to the process. This may happen, for example, when the recovered DNA of criminals and their victims are mixed together, a frequent occurrence. In such cases DNA analysts typically have a suspect's DNA profile before them to help sort out the evidence "correctly." In other words, they go into to the test with a cheat sheet, sort of like a criminal lineup in which a potential witness is told, "Number 4 is our suspect, does he look familiar?"

And:

To make the forensic science used in American courts more reliable, efficient and fair, several changes are needed. For example, crime labs should be independent, not under the umbrella of law enforcement agencies. Despite everyone's best intentions, when crime labs work for the prosecution there is pressure to produce the incriminating evidence the police and prosecution need. Independent crime labs would be free of this potentially unhealthy influence.

In Gideon v. Wainwright, the Supreme Court recognized that our Sixth Amendment right to a fair trial includes the right to legal counsel. Today, we have no similar right to forensic expertise, though forensic scientists are often more important to case outcomes than defense lawyers. When crime labs work for the prosecution and an indigent defendant has no scientist to help him, the process lacks fundamental fairness.

The right to forensic expertise also would create the kind of checks and balances that will improve forensics. Here is how: In most criminal cases one side or the other will want the forensic evidence reviewed. That side will have an incentive to document forensic science's shortcomings and bring them to the attention of the court whenever it is strategically appropriate. Slowly, case by case, the system will improve.

Thanks to Jason Gilder for circulating.

The Long Term Value of DNA Evidence

"DNA evidence recommendations urge long-term preservation of biological evidence," is the title of a National Law Journal web only article by Vesna Jaksic.

The Justice Project has issued a set of recommendations to improve post-conviction DNA testing laws, such as that states should require preservation of biological evidence throughout a defendant's sentence and ensure inmates with DNA-based innocence claims may petition for testing at any time.

The Justice Project is a Washington, D.C.-based nonpartisan organization that works to fight injustice. Its new report, "Improving Access to Post-Conviction DNA Testing: A Policy Review," also gives these recommendations:

• States should devise standards regarding custody of evidence -States should require judges to grant post-conviction testing petitions when testing may produce new evidence of the petitioner's innocence

• States should ensure petitioners have access to objective and reliable forensic analysis

• States should provide counsel and cover costs of post-conviction DNA testing for indigent petitioners

• States should standardize post-testing procedures for cases that produce testing results favorable to a petitioner.

The policy review, Improving Access to Post-Conviction DNA Testing, is in Adobe .pdf format.  More on The Justice Project's policy briefs, here.

TJP's John Terzano posted, "Post-Conviction DNA Testing Shouldn't Depend on Miracles," at Huffington Post.  Here's a snippet:

By now everyone knows that DNA testing is a powerful scientific tool for proving guilt or innocence in our criminal justice system. Often post-conviction DNA testing provides the only evidence that can correct the injustice of wrongful conviction.

But what if all the biological evidence is destroyed while you're still in prison? What if there is evidence but it's not discovered until after state-imposed deadline for seeking DNA testing? What if the state denies your petition for testing because you accepted a plea bargain to avoid a harsher sentence for a crime you didn't commit? And what if you're indigent and can't afford an attorney to help navigate the complex legal and scientific issues involved in obtaining a DNA test?

The sad truth is that it often takes a series of miracles to gain access to post-conviction DNA testing. That's because our criminal justice system continues to place significant obstacles in the way of post-conviction DNA testing that could determine whether the wrong people have been convicted and punished for crimes they didn't commit.

StandDown's DNA index is here.

Melendez-Diaz v. Massachusetts

The National Law Journal has commentary by Matthew Kaiser, Washington, D.C. attorney, "Lab Technicians, Too."  It concerns the case of Melendez-Diaz v.Massachusetts, which will be herad in the Supreme Court's next term.  Here is an excerpt from the beginning:

The most important case for the future of our criminal justice system is going to be heard by the U.S. Supreme Court in its next term. In Melendez-Diaz v. Massachusetts, the court will decide whether a criminal defendant has the right to cross-examine a lab technician who tested evidence in a case. Though it isn't what the case is expressly about, Melendez-Diaz will determine how the courts handle DNA evidence; it is crucial to the future of criminal procedure. The court should reaffirm our collective commitment to a vigorous adversarial system, and hold that forensic evidence must be subjected to cross-examination.

The states and federal courts of appeal are split on whether a lab report can be presented to a jury in a criminal case without letting the defendant's lawyer question the person who actually did the testing. Analysts' reports are common for often uncontroversial parts of a case, such as whether the plant-like substance in the bag that the defendant was selling was really marijuana, or whether the blood-alcohol level of the driver who smelled like booze and repeatedly crossed the center line of the highway was above the legal limit. These reports are going to be a massive part of the landscape of criminal justice as DNA evidence becomes more frequently used in criminal prosecutions.

DNA is the future of our criminal justice system. The federal government, and many state governments, already collect DNA from anyone convicted of a felony. These DNA samples are increasingly used as an active part of the investigation of crimes. Already several states name DNA samples in charging documents to try to preserve the statute of limitations until the owner of the DNA can be located.

The ScotusWiki page for Melendez-Diaz v.Massachusetts is here.

HPD Crime Lab Soon to Resume DNA Testing

That's the title of Roma Khanna's report in today's Houston Chronicle.  LINK

The Houston Police Department crime lab is close to resuming DNA testing, officials told a City Council committee Monday, six months after the lab was forced to suspend such analyses for the second time in recent years.

Crime lab director Irma Rios introduced new DNA section leader Laura Gahn, whose hiring brings HPD in compliance with a state law requiring crime labs to have a supervisor oversee DNA testing. Gahn, who has more than a decade of leadership experience in private DNA labs, joined HPD earlier this month. After she recertifies analysts and equipment, DNA testing can begin, Rios said.

"Our number one goal is to get the DNA division back up and running as soon as possible," Rios told the council's Public Safety and Homeland Security Committee. She declined to give a specific date when testing will begin.

HPD shuttered the DNA division of its crime lab in January — the second such closure since December 2002 — after manager Vanessa Nelson resigned. HPD officials were poised to fire Nelson after internal investigators concluded she gave analysts answers they needed to pass a DNA skills test in 2007.

The skills test controversy is just one in a series that has plagued the HPD crime lab since 2002, when problems with its DNA testing first were revealed.

Since then, errors have been discovered in the work of four other crime lab divisions and three men, convicted with faulty evidence, have been exonerated.

Earlier coverage of the scandal, which first came to light in November 2002, is here.  All reports of the independent investigator Michael Bromwich, whose work is complete, are here.

Live Blogging the Summit

I'll be live blogging Senator Rodney Ellis' Summit on Wrongful Convictions.  It's just starting with Senator Ellis making introductory comments and recognizing the dozen or so House and Senate members attending the Summit.

The Summit is being webcast, here, on channel 1.

A group of nine exonerees is at a front table.  James Lee Woodard just started, as they introduce themselves.  Every one of these stories is a powerful testimony to flaws that led to wrongful convictons.

The thirty-one desks in the Senate chamber are filled with legislators, judges from the Court of Criminal Appeals, law enforcement personnel, staff from innocence projects, policy makers, judges, State Bar of Texas officials (former SBoT President Martha Dickie), and criminal justice reform advocates(Edwin Colfax and Andrea Marsh) .  District Attorneys Barry Macha of Wichita Falls and Craig Watkins are also present.  Travis County's next DA, Rosemary Lehmberg, is also here.

Exonerees are still talking on-by-one and discussing specific reforms such as eyewitness identification procedures and improvements to Texas' post-conviction DNA testing access that would have helped prevent their wrongful convictions or led to earlier exonerations.

Media outlets are present, including Elise Hu, KVUE-TV's Capitol reporter, so I expect to see lots of print and broadcast coverage.  News 8 Austin, Time-Warner cable's local Austin news channel is also here. (1:50 pm)

The exonerees have finished, and Senator Ellis is about to recognize Barry Scheck, co-founder of the New York-based Innocence Project, to speak. (2:01 pm)  Among other best practices, he just mentioned the Tarrant County District Attorney's office open-file policy and the need for better discovery in Texas. (2:11 pm)

Craig Watkins will be speaking after Scheck.  (2:05 pm)

Watkins is speaking now.  (2:23 pm)

Senator Ellis is now opening the forum to discussion and he's called on CCA Judge Barbara Hervey. CCA Judge Cheryl Johnson is also here.  (2:31 pm)

Senator John Whitmire, Dean of the Senate and Chair of Senate Criminal Justice, is speaking now. (2:33 pm)  He is delivering a serious, hard-edged message to his colleagues about the need to pass reforms, and urging his colleagues to do a better job of reading their mail and actively investigate credible cases that are submitted by constituents. 

He also expressed his frustration of being an official from Harris County who has been unable to prod the Harris County DA's office to become more active in examining wrongful convictions.  Assistant DA Roe Wilson is here from that office.  He lauded Craig Watkins for, "doing the right thing."  (2:43 pm)

New Austin Police Chief Art Acevedo is speaking now.  (2:44 pm)

Edwin Colfax of the Justice Project is talking about eyewitness id reforms.  (2:53 pm)  The last link is to a Justice Project publication on the topic.

Harris County ADA Roe Wilson is about to speak.  The office has had a very rocky road for years now, ever since the beginning of the HPD crime lab scandal.  Earlier this year, DA Chuck Rosenthal resigned in disgrace due to inappropriate e-mailing that involved his political campaign and non-office matters.  (3:03 pm)  She is describing the office's current relationship with the Innocence Project. She mentioned that the office has been reviewing all Chapter 64 (of the Texas Code of Criminal Procedure; access to post-conviction DNA testing) requests for post-conviction DNA testing, including those that had been rejecting by Texas courts.

Senator Whitmire is pressing her on the office's review of convictions where questions have been raised.  3:09 pm)

State Rep. Terri Hodge, a resolute advocate for the incarcerated, is speaking now about the problems of prosecutorial misconduct.  (3:10 pm)

Houston Police Chief Harold Hurtt just spoke.

I had to step away for a few minutes to answer some questions from a reporter.  Senator Bob Deuell just spoke.  A number of people are making brief comments now, including Walker County DA David Weeks and Innocence Project of Texas director Jeff Blackburn. (3:35 pm)

State Rep. Jim McReynolds is speaking now about working on legislation in the House last session.  (3:48 pm)

It sounds as if Senator Ellis hopes to close the Summit in about 15 minutes, at 4:00 pm.  A very powerful statement that the Legislature needs to do what's right.

Mary Anne Wiley, one of Governor Perry's key criminal justice advisors in his General Counsel's office, is speaking now about some past collaborative work involving the Governor's office, legislators, and advocates and looking to future work.  (3:51 pm)

An exoneree closed the Summit with a statement about the need for jobs and support.

The Summit should be available at Senate Media Services for archival viewing, here.

Summit on Wrongful Convictions

Senator Rodney Ellis convenes a Summit on Wrongful Convictions at 1:00 p.m. (CDT) today in the Texas Senate Chamber.

The Summit will be webcast by Senate Media Services, here.

Here's more from Senator Ellis' announcement:

As a result of the unprecedented number of exonerations in Texas, key leaders from across the state will gather in Austin on May 8 for a landmark Summit on Wrongful Convictions. Judges, lawmakers, defense attorneys, prosecutors, exonerees, professors and many others will come together for the Summit. The Summit will mark the first time any state’s criminal justice leaders have initiated a high-level meeting themselves to address wrongful convictions. Texas State Senator Rodney Ellis is spearheading the Summit, and Innocence Project Co-Director Barry Scheck will attend. The Summit will be open to the public.

“We’ve reached a tipping point on wrongful convictions in Texas. Nobody can seriously doubt that there’s a problem, and next week leaders from across our criminal justice system will come together to start solving it,” Senator Ellis said today. “We will bring a wide range of leaders, experts and exonerees together for a full day to develop concrete, common-sense remedies to make our system of justice more fair and accurate. We won’t solve these serious problems in one day, but we will make historic strides toward restoring confidence in our criminal justice system.”

Earlier coverage is here.

Faulty Bullet-Test Cases Finding Way to Court

That;'s the title of an article in the current issue of the National Law Journal dealing with the now reputed bullet lead analysis, another one-time mainstay of forensic analysis now relegated to junk science status.  LINK

Martin Mcclain, a defense lawyer in Florida, says his client is on death row in large part due to unreliable science.

Derrick Smith was found guilty of a 1983 homicide in a trial involving "bullet lead analysis," a method the FBI acknowledged in 2005 is invalid. Florida v. Smith, No. 83-02653-CFANO-I (Pinellas Co., Fla., Cir. Ct.).

His case is a prime example of the kind that a new task force wants reviewed in hopes of reversing any wrongdoing that may have resulted from the faulty test. [NLJ, 4-4-05.]

"We're passing that [case] to the FBI and asking them to look at it immediately," said Barry Scheck, one of the two coordinators of the Joint Comparative Bullet Lead Analysis Task Force, which was formed last November by the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Network, a group of organizations providing services to those seeking to prove their innocence.

It looks like Smith will have plenty of company. Several years after the FBI admitted the bullet analysis test was invalid, cases in which the evidence played a central part are making their way through the courts. Also, FBI officials confirmed that they have identified cases involving the faulty testing from as far back as the 1970s.

And:

"Once these cases are identified, we're going to be working with law firms who will be providing pro bono services to review these cases," said Norman L. Reimer, NACDL's executive director.

David Koropp, a partner in the Chicago office of Winston & Strawn, said his firm is willing to offer as much of a pro bono commitment as necessary.

"It was something we thought we could bring the strength of a large law firm to," he said. "You're going to need a lot of people to review a lot of material."

Scheck expressed concern about identifying cases that date back as far as Smith's because they may lack documentation.

But special agent Ann Todd, a spokeswoman for the FBI laboratory, said the agency has already identified a few cases from the mid-1970s.

"FBI is in the process of identifying lab reports for all bullet lead examinations that resulted in matches and were used in successful prosecutions," she said, adding the agency will not have more detailed information until several months from now.

Last year, the FBI said it conducted bullet lead examinations in about 2,500 cases, but that results were introduced as trial evidence in less than 20% of them.

Compositional analysis of bullet lead or CABL — which is also called comparative bullet lead analysis or CBLA — tests the structure of a bullet used in a crime and matches it with others manufactured at the same time. The test raised major concerns in 2004, when the influential National Academy of Sciences cast doubt on it in a report. After its own review, the FBI announced in 2005 it would discontinue using such tests.

Earlier coverage is here and here.

DPS Crime Lab Makes Troubling Hire

Roma Khanna reports, "State crime lab hired DNA chief as cheating probe proceeded here," in today's Houston Chronicle.

The former DNA supervisor at Houston's troubled crime lab landed a job with the Texas Department of Public Safety even as she was under investigation — and likely to be fired — for improperly coaching analysts on proficiency tests, state officials confirmed Tuesday.

Vanessa Nelson, 33, resigned from the Houston Police Department's crime lab Jan. 10 to avoid being fired after an internal investigation concluded she had given crime lab analysts the answers they needed to pass a DNA skills test, HPD officials confirmed. Nelson led the lab's DNA division for more than two years when it reopened after the exposure of shoddy work forced its closure in 2002.

In her new job, she will run the DNA division of DPS' crime lab in McAllen, a facility with its own history of closure and deficiencies. Nelson, reached at her Houston home Tuesday, declined to comment.

Her departure forced HPD once again to suspend DNA testing, reversing years of work to bring the lab up to standard and restore public confidence.

Tela Mange, a DPS spokeswoman, said the department was aware of the alleged cheating but hired Nelson because she had worked for DPS before joining the Houston lab. "She was an outstanding employee then," she said, "and her supervisors expect that she will be again."

Joe Marchan, head of DPS' McAllen lab, sat on the panel of five that screened candidates for the DNA division job. He confirmed knowing about the complaint against Nelson, but said he was unaware that investigators had confirmed the allegations. "As far as we knew, it was unproven," he said. Marchan referred further questions to DPS headquarters in Austin.

State Rep. Kevin Bailey, who sat on a committee that investigated problems in the DPS labs in 2003, said he was troubled that the agency would hire Nelson before the HPD cheating investigation was complete.

"It is shocking, to say the least, that they would hire someone who was giving out test answers," the Houston Democrat said. "The integrity of these DNA labs is so critical. Their work has life-and-death consequences."

And:

The cheating probe is just the latest setback for the HPD crime lab. News reports and an audit uncovered poor training, lax protocols and inaccurate work in the DNA division. The division was shuttered in December 2002.

Since then, errors have been found in the work of five lab divisions, and three men — convicted with faulty crime lab evidence — have been exonerated.

After the DNA division's closure, HPD and the local criminal justice system began the long and painful process of rebuilding the lab. For the first time, the crime lab won national accreditation, a guarantee of minimum standards. HPD initiated a $5.3 million independent investigation that included reviews of thousands of cases with DNA, drug and ballistics evidence.

Earlier coverage of the HPD crime lab scandal is here.

Flawed Injustice

That's the title of a joint investigation conducted by the Washington Post and CBS News' 60 Minutes concerning flawed forensic testing of bullets by the FBI.  The series front is here.

The Washington Post is hosting a live chat, right now, at this LINK.

The Sunday article was, "FBI Forensic Test Full of Holes."  Today's article is, "A Murder Conviction Torn Apart by a Bullet."  An interactive map is here.

The transcript of the 60 Minutes report, with a video link, is here.

Here's a small sample from the beginning article:

Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes" has found.

The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau's managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.

"We cannot afford to be misleading to a jury," the lab director wrote to FBI Director Robert S. Mueller III in late summer 2005 in a memo outlining why the bureau was abandoning the science. "We plan to discourage prosecutors from using our previous results in future prosecutions."

Despite those private concerns, the bureau told defense lawyers in a general letter dated Sept. 1, 2005, that although it was ending the technique, it "still firmly supports the scientific foundation of bullet lead analysis." And in at least two cases, the bureau has tried to help state prosecutors defend past convictions by using court filings that experts say are still misleading. The government has fought releasing the list of the estimated 2,500 cases over three decades in which it performed the analysis.

For the majority of affected prisoners, the typical two-to-four-year window to appeal their convictions based on new scientific evidence is closing.

Dwight E. Adams, the now-retired FBI lab director who ended the technique, said the government has an obligation to release all the case files, to independently review the expert testimony and to alert courts to any errors that could have affected a conviction.

Review Continues in HPD Crime Lab Scandal

Roma Khana has, "More than 150 inmates want evidence reviewed," the Houston Chronicle.  Problems at the lab first surfaced in November 2002.

More than 150 inmates whose convictions may be based on faulty Houston crime lab evidence have asked that their cases be reviewed, a judge said Thursday.

Since Oct. 22, Judge Mary Bacon, a retired state district judge overseeing the review of 180 convictions with flawed blood-typing evidence, has conducted hearings with all inmates currently incarcerated in those cases. Of 160 inmates contacted at various Texas prisons via video conferences, all but four agreed to have their cases reviewed.

The hearings are the first step in a plan that Harris County's 22 criminal state district judges developed last month to review cases with problematic blood-typing evidence from the Houston Police Department's crime lab.

A team will review the 156 cases to determine how essential HPD's analyses were to securing the convictions, according to attorney Bob Wicoff. Wicoff will be joined by two other lawyers, who should be named next week, and volunteers including other lawyers, students and academics.

"I am trying to marshal all the help I can get for this undertaking," said Wicoff, who represented Josiah Sutton, the first man exonerated in the HPD crime lab scandal.

Earlier coverage is here.  The reports of the independent investigator Michael Bromwich, whose work is complete, is here. 

HPD Crime Lab - The Woes Continue

Steve McVicker had "County begins review of 180 HPD crime lab convictions," in yesterday's Houston Chronicle.

Harris County judges Monday began re-examining 180 criminal convictions involving problematic Houston crime lab evidence, asking inmates via video hearings if they wanted their cases included in the review process.

Of the 19 inmates questioned Monday, 18 said yes.

Because of a question of competency of the inmate who declined, it was decided to include his case, said Bob Wicoff, one of three defense attorneys who will be reviewing the convictions.

Wicoff said that the hearings took less time than expected, adding that the process of formally contacting each of the 180 inmates could end before Nov. 1, the originally scheduled completion date.

Wicoff said the details of the cases were not discussed.

"I just told (the inmates) that we weren't going to get into the facts of their case ... and that we just needed a yes or no, and then we'll get back in touch with them," Wicoff said.

The review follows a June recommendation by an independent investigator that a "special master" be appointed to review cases with questionable body fluid testing, known as serology, from the scandal-plagued Houston Police Department crime lab.

Since then, local officials had debated how best to address those cases.

The plan to appoint the review panel was approved earlier this month.

The morning hearings also included retired state District Judge Mary Bacon, who has agreed to oversee the review, and Harris County Assistant District Attorney Marie Munier, who has been involved in the HPD crime lab review since the scandal first surfaced almost five years ago. Two defense attorneys assigned to assist Wicoff this week also participated. The search for two more defense attorneys to work full-time with the review continues, Wicoff said.

And:

The review panel plan stands in contrast to the method used to scrutinize more the more than 400 cases with potentially problematic evidence that surfaced following an audit of the lab in 2002 that led to the closure of the DNA lab. For those cases, local judges appointed various attorneys who reported to the judge in whichever court heard each case.

That decentralized plan led to little action on many cases, the Houston Chronicle reported in September. Nearly two-thirds of defendants convicted with faulty DNA evidence received little legal help, according to a Chronicle review of those cases.

Today's Chronicle has a brief item, "County wants Houston to pay for crime lab probe."

The Harris County Commissioners Court voted Tuesday to ask the city to pay for a review of 180 cases with problematic HPD crime lab evidence.

Some important Chronicle stories not posted in the past week include, "Panel will review 180 HPD crime lab cases;" Rosanna Ruiz revisits the case of George Rodriguez in, "Freed man still awaits pardon, compensation," and; Roma Khanna adds new details to the events that led to Ronnie Taylor's wrongful conviction in, "Freed man's case forged by chain of errors."

The reports of the independent investigator Michael Bromwich, whose work is complete, is here.  It is, however, important to note that his final recommendations have not been fully acted upon.

Ronnie Taylor Freed

The Houston Chronicle has, "Wrongly convicted man finally free after 14 years."

Taylor had emerged from the Harris County Jail an hour earlier in clothes purchased the night before and with his only belongings — a Bible, court documents and toiletries — in a mesh sack.

He embraced his family, who had traveled from Huntsville to greet him, thanked his lawyers and went directly to City Hall to speak about his ordeal, caused by the faulty work of the Houston Police Department's troubled crime lab.

Mayor Bill White and City Council members attentively listened to Taylor's plea. Some offered apologies and vowed to devise a plan to quickly review 180 newly identified cases with crime lab evidence similar to Taylor's. But they stopped short of proposing a concrete plan for reviewing the cases or committing resources for the effort.

"If (speaking to the council) is going to help even one person, it's worth it," Taylor said as he left City Hall.

Lawyers from the Innocence Project, a legal clinic that works to free the wrongfully convicted, secured Taylor's release Tuesday morning during a brief hearing. State District Judge Denise Collins ordered him released on a personal recognizance bond.

During the proceedings, to which Taylor wore an orange inmate's uniform, his lawyers spoke of the significance of his case in the context of the years-long scandal at the HPD crime lab.

"There are a legacy of cases where the Houston Police Department did faulty serology," said Barry Scheck of the Innocence Project.

Harris County's top prosecutor, Chuck Rosenthal, appeared in court and expressed regret for Taylor's years of wrongful incarceration.

"I would like to apologize to Mr. Taylor," Rosenthal said.

After a two-hour wait, while jail officials processed his release, Taylor walked outside a free man for the first time in 14 years.

Joy Diaz has an exceptionally well done report at KUT-FM, with audio from a number of participants, including David Dow of the Texas Innocence Network and Harris County District Attorney Chuck Rosenthal.  You can listen, here.

The Innocence Project has this update at its website.

Ronnie Taylor Expected to Be Freed Today

The Houston Chronicle has, "Wrongly convicted of rape, Taylor may be freed today."

Fourteen years of wrongful imprisonment should end in freedom today for Ronald Gene Taylor after a judge Monday cut through the red tape that for days has delayed his release.

Taylor's lawyers and prosecutors last week announced that DNA testing cleared the 47-year-old of a 1993 rape. But until state District Judge Denise Collins stepped in, it appeared paperwork, background checks and other issues would keep him in prison until Friday.

"She wants this to move as quickly as possible," said Mona Natemeyer, the judge's coordinator. "She ordered him to be brought to Houston right away."

And:

Taylor was accused in 1993 of raping a woman who was attacked while sleeping in her Third Ward home. Police showed the woman a video lineup, which included Taylor because a neighbor had seen him in the area that night, and she identified him as her attacker.

The woman's testimony served as the primary evidence at trial. An analyst from the troubled Houston Police Department lab testified that it was impossible to offer DNA evidence because a sheet from the crime scene contained no semen that could be analyzed.

Jurors sentenced Taylor to 60 years in prison on May 2, 1995.

Twelve years to the day later, the sheet that HPD originally tested was sent to a private lab for re-examination at the request of the New York-based legal clinic The Innocence Project, which had taken Taylor's case.

The private lab found semen that yielded a DNA profile — but not Taylor's.

The analysis by ReliaGene Technologies identified the DNA profile of Roosevelt Carroll, a felon twice convicted of rape who is serving a 15-year sentence in a Texas prison for failing to register as a sex offender. Carroll lived within a mile of the victim's home.

Taylor is the third man exonerated after being convicted with faulty work from the Houston Police Department crime lab. The lab came under scrutiny in 2002, when news reports and an audit exposed shoddy work and poorly trained personnel, touching off a scandal that cast doubt on thousands of convictions and continues today.

The Innocence Project has this post at its blog.

Houston man set to be released today

Ronnie Taylor is set to be released from prison today in Houston, 12 years after he was convicted of a rape that DNA now proves he didn’t commit. A hearing is scheduled in front of judge Denise Collins in 208th District Court in Harris County at 11 a.m. CDT today. Taylor will join his family and his attorneys (Innocence Projesct Co-Director Barry Scheck and Texas Innocence Network Director David Dow) at a press conference outside the courthouse.

Earlier coverage of Ronnie Taylor's exoneration is here.

A Solution for the HPD Crime Lab

That's the title of a powerful OpEd by Barry Scheck and Texas state senators Rodney Ellis and John Whitmire in today's Houston Chronicle.  LINK

When Ronald Taylor walks out of prison this week, he will be a free man for the first time in 14 years. Because of faulty work at the Houston Police Department crime lab, he was arrested in 1993 and convicted in 1995 for a rape that DNA now proves he did not commit.

Taylor's case is a stark and deeply troubling reminder that there are hundreds of old cases from the HPD crime lab that need to be investigated and resolved. This must be done for the sake of innocent people who may still be imprisoned, for the law enforcement benefit of apprehending the guilty who committed serious crimes, and for the very integrity of the system, so it won't ignore its worst mistakes by claiming the criminal justice bureaucracy is just too intractable to correct them.

The independent audit of the HPD crime lab identified an extraordinary number of cases that involved questionable serology, bodily fluid typing that was a precursor to DNA testing. The report recommended that a Special Master be appointed to oversee a process of reviewing the cases and determining which ones should be subjected to new testing. Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal all rejected the proposal for a Special Master, suggesting that the Innocence Project and related organizations could look into the cases.

We cannot take responsibility for the massive problem of representing hundreds of people whose cases were affected by the HPD crime lab, but we do have a solution.

The Innocence Project has identified 419 serology cases from the audit that are the most likely candidates for retesting. Of these, 274 are cases where crime scene evidence tested positive for blood or semen but was never subjected to further testing, and 139 are cases where blood-type testing was performed on crime scene evidence but was never compared to the blood type of victims or suspects. These should be the top priority because they are precisely the kinds of cases where DNA testing can confirm guilt or innocence. (These 419 cases include 74 of the 180 cases identified by the independent audit as having "major issues." The 419 cases had incomplete serological testing; the 180 had serious errors and the overlapping 74 had both errors and incomplete testing.)

The first step should be to locate the evidence from these 419 cases. Next, for all of the cases where the evidence still exists, the defendants need to be contacted to see whether they want DNA testing to be conducted. Testing then needs to be conducted on the appropriate pieces of evidence and compared to samples from the victims and defendants. That's how we approach cases like this at the Innocence Project, and it is how we've helped use DNA to exonerate dozens of wrongfully convicted people in Texas and nationwide.

The crime lab index is here.

Exoneration Using DNA Brings Change in Legal System

That's the headline of a report in Monday's New York Times.  It's been a busy week, and this story fell off the desk.  LINK

State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.

All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.

At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. One of them, the California Commission on the Fair Administration of Justice, will hold a hearing this month on remedies for people who have been wrongfully convicted.

Laws in several states, including Illinois, New Jersey and North Carolina, have bipartisan backing, with many Democrats supportive on civil rights grounds and Republicans generally hoping that tighter procedures will lead to fewer challenges of convictions.

“Technology has made a big difference,” said Margaret Berger, a DNA legal expert who is on a National Academy of Sciences panel that is looking into the changing needs of forensic scientists. “We see that there are new techniques for ascertaining the truth.”

Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures.

Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions.

Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states.

“It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

Two states, Vermont and Maryland, passed laws this year to improve crime lab oversight to eliminate errors and omissions. Maryland recently passed a law that will hold its crime labs to the same standards as clinical labs, a much more rigorous requirement. Other legislative changes to crime lab oversight are pending in 21 states, including New York.

More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project.

The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor.

Advocates of efforts to use DNA to exonerate those wrongfully convicted say the changes in the state laws are welcome and long overdue.

And:

In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found.

DNA evidence was used to exonerate 144 of those inmates.

In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004

Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions.

“Of the 340 exonerations I looked at” in the 2005 study, Professor Gross said, “96 percent are for rape and murder.” He added: “Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes.” The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen Dail, who served 18 years in North Carolina for a false conviction of child rape. Prosecutors had used the victim’s identification of Mr. Dail and hair found at the crime scene to convict him. Years later, after repeated inquires from defense lawyers, the police found a box of additional evidence in the case that contained the victim’s semen-stained nightgown. DNA analysis ruled out Mr. Dail and implicated another man. Mr. Dail was released from prison in August.

More on the Taylor Exoneration in Houston

The Houston Chronicle has, "DNA tests point to sex offender as actual 1993 rapist."

As Ronald Taylor sat in prison for a rape he didn't commit, the man likely responsible for the crime was convicted of an assault and failed to register as a sex offender, adding to a rap sheet already filled with violent crimes.

Roosevelt Carroll, who had already raped two women when police began investigating a third attack in May 1993, lived less than a mile from Taylor. Police focused on Taylor. He was convicted and sentenced to 60 years in prison.

They had the wrong man.

Harris County District Attorney Chuck Rosenthal announced Wednesday that DNA tests performed this summer exonerate Taylor and point to Carroll as the 1993 rapist.

"It is awful that he (Carroll) committed other crimes and that this has created more problems for the citizens of Harris County," Rosenthal said Thursday.

The DNA tests performed at the request of the Innocence Project, a New York-based legal clinic, further discredit the work of the troubled Houston Police Department crime lab on the case.

Prosecutors are now working to secure the 47-year-old Taylor's release, which could come after a hearing before state District Judge Denise Collins scheduled for Oct. 12. They are not, however, working to prosecute Carroll, who is serving 15 years for failing to register as a sex offender in 2004. The five-year time frame in which charges could have been filed in the 1993 case has passed.

Carroll, 43, is projected to be released in 2010, according to Texas Department of Criminal Justice records, but could be held until 2019 — a possibility Rosenthal would like to ensure.

And:

The HPD crime lab has been under scrutiny since 2002, when news reports and an audit exposed poorly trained personnel and inaccurate work in the DNA division. Two other men, Josiah Sutton and George Rodriguez, were released from prison after new DNA tests discredited HPD's analyses.

Assuming that Taylor receives a pardon based on actual innocence, he could receive upward of $600,000 — $50,000 for each year of incarceration — from the state.

The faulty evidence in Taylor's case came from the crime lab's serology division, which types body fluids in a precursor to DNA testing. That division has been described as among the worst at the scandal-plagued lab. Independent investigators who studied the crime lab over 26 months ending in June identified at least 180 cases in which HPD serology work had "major issues."

Although Taylor's case was not among the 180, his lawyers believe it should demonstrate the urgency of creating an independent panel to review them.

"What more do we need to know before we develop an expeditious way to examine these cases?" said Barry Scheck, a founder of the Innocence Project.

Mayor Bill White has said no independent entity is needed to review the serology cases and on Thursday he reiterated that position.

"There are many ways within the system for someone who has been convicted to seek redress and it is done all the time," White said. "The district attorney and the judges are in the best position to determine how to move forward (with the serology cases.)"

Earlier coverage of Ronnie Taylor's exoneration is here.

Outside Review of HPD Crime Lab Cases Debated

Roma Khanna and Steve McVicker continue their reporting on problems at the HPD crime lab in today's Houston Chronicle.  LINK

A state legislator on Monday pledged to do whatever it takes to inject independence into ongoing reviews of problem cases from the Houston crime lab, rejecting local officials' assurances that police and prosecutors can handle the task.

"It is outrageous to expect the same players who may have mishandled these cases in the first place to be in control of the review," said Rep. Kevin Bailey after a legislative hearing on Houston's response to recommendations on how to improve its crime lab, which has been under scrutiny since its shoddy work was exposed in November 2002.

The final report on a $5.3 million probe of the Houston Police Department crime lab outlined reforms for completing a review of the lab's historical problems and for improving current operations. The investigation, which began in April 2005, was opened more than two years after revelations of sloppy science and poorly trained analysts at the lab touched off a scandal that cast doubts on thousands of cases and led to two men's release from prison.

Investigators' recommendations, released in June, included hiring an independent "special master" to review some 180 cases with problematic serology, or blood, evidence. They also proposed dozens of steps for enhancing training, equipment and procedures at the lab.

Local officials quickly rejected the special master proposal, but they have moved toward adopting other recommendations, officials told members of the House committees on urban affairs and general investigating and ethics who met in Houston.

Police Chief Harold Hurtt and Crime Lab Director Irma Rios detailed a series of steps HPD has taken, including adding quality control positions, increasing lab funding and building a new property room.

But Hurtt and Harris County District Attorney Chuck Rosenthal, who also spoke before the committees, remained resistant to independent investigator Michael Bromwich's proposal that an independent entity review the 180 problematic cases.

The reports of independent investigator Michael Bromwich are here.  Coverage of the latest problem, identified earlier this month, is here.  Coverage of massive problems in the DNA unit is here;  those problems first surfaced in November 2002.

Unsecured Evidence

That's the title of an editorial in today's Houston Chronicle about the latest problems with the Houston Police Department Crime Lab.  "Employee's suspension reminds Houstonian's of crime labs vulnerability to personnel problems.

Houston Police Chief Harold Hurtt recently rejected calls for a special master to finish reviewing about 600 cases that might have been tainted by improper or incompetent handling of evidence by the department's crime lab. Hurtt said he was responsible for the operation of the lab and didn't need a special master to do things right.

The recent suspension of a narcotics analyst reminds Houstonians how hard it is to get things right at the lab. The employee's alleged erratic behavior and inadequate securing of narcotics used as evidence alerted superiors to a problem. About 200 cases handled by the analyst this year will have to be reviewed.

At least Chief Hurtt's crime lab director, Irma Rios, and her staff detected the problem and decisively removed the cause. The employee was suspended, with pay, after he declined to give a formal statement and submit to a drug test. Hurtt's predecessor, Chief C.O. Bradford, knew of festering problems at the lab but did little or nothing to fix them.

The suspended lab employee, like all U.S. residents, enjoys the right not to incriminate himself. He can't be forced to make a statement or be tested. However, as crime lab employees are subject to random drug testing and testing for cause, an employee who refuses a test should be fired outright, saving the taxpayers the cost of his salary. It is unlikely the employee will be reinstated, threatening the integrity of more criminal prosecutions.

The Chronicle's reporting on the latest problem is here and here.  Earlier coverage of massive problems in the crime lab's DNA testing section, including reports of the independent investigation, is here.

HPD Analyst's Behavior Raised Red Flag With Bosses

That's the headline in today's Houston Chronicle about the latest problem in the HPD crime lab.  LINK

What the head of the Houston Police Department crime laboratory describes as "erratic behavior" was instrumental in the recent suspension of a controlled substances analyst.

The suspension has also triggered the review of about 200 HPD narcotics cases — the latest in a series of scandals that have plagued the crime lab for the past 4½ years.

Analyst James K. Carpenter was relieved of duty with pay Friday pending the outcome of an internal affairs investigation. The case has also been brought to the attention of the Harris County District Attorney's Office, according to crime lab director Irma Rios.

Attempts to contact Carpenter were unsuccessful.

Police say Carpenter previously had been warned about poor attendance, which they said he blamed on a back ailment. However, the situation recently peaked when lab supervisors questioned Carpenter about allegedly mishandling evidence, Rios said.

"Evidence should be stored a certain way," she said Wednesday. "We have a procedure. All evidence should be sealed following a certain procedure. And there was an item that didn't appear to be properly secured. The questioned employee didn't make sense — what he was saying, and (his) erratic behavior when you started talking to him."

Yesterday's report is here.

A New Problem at HPD Crime Lab

The Houston Chronicle has, "HPD crime lab worker out; 200 cases in doubt."

The Houston Police Department will review about 200 narcotics cases following the suspension of an HPD crime laboratory analyst accused of failing to properly secure evidence in drug investigations.

James K. Carpenter was relieved of duty with pay pending the outcome of an internal investigation, HPD officials said this evening.

The news comes in the wake of a two-year, multimillion-dollar independent investigation that reported widespread problems within the department's crime lab, including poor management, analysts who faked test results and others who tailored their findings to fit police theories of crimes.

According to an HPD statement, Carpenter worked regularly in the controlled substances section of the lab since October 2002 and was recently warned about his poor attendance record, which he blamed on a back problem.

Investigators with the Internal Affairs Division were called to the lab last week following reports that Carpenter "was not handling evidence in compliance with lab protocols." The criminologist was immediately relieved of duty after refusing to give a formal statement or submit to a drug test, police said.

Department spokesman Gabe Ortiz declined to comment Tuesday, saying "the investigation is in its early stages."

In the written statement, however, crime lab director Irma Rios said the department will coordinate with the Harris County District Attorney's Office to review all of Carpenter's work for the last six months — an estimated 200 narcotics cases.

Earlier coverage of massive problems in the crime lab's DNA testing section, including reports of the independent investigation, is here.

Trashing the Truth - UPDATED

That's the title of a must-read four-day series in the Denver Post.  Here's an introduction to ther series:

About the series

In the absence of governmental statistics on evidence destruction and loss nationwide, The Denver Post tallied cases from public documents, estimates of law enforcement officials, and data from DNA grant correspondence between states and the federal government. Also figuring into our totals is information from lawyers handling innocence claims and other legal actions across the country.

The first installment includes, "Bad faith difficult to prove," and "Telling traces."

The second installment includes, "Room for error in evidence vaults," and "Trail of two test tubes."

The third installment includes, "Missing Rape kits foil justice."  It also includes:

Statutes of frustration

Evidence blundered

DNA retention policies unclear, unwritten

"Every day was hell" for rape victim

Key evidence tossed in Colorado Springs

Mothers of victims face life without answers

The fourth and final installment appears Wednesday.

Crime Lab at a Crossroads

That's the title of Lisa Falkenberg's latest column in the Houston Chronicle.  LINK

We've come too far to turn back.

A few years ago, Harris County was the laughingstock of the criminal justice world, sinking further into a police crime lab scandal fraught with revelations of fabricated evidence, rape kits marinating in rainwater from a leaky roof, DNA evidence strewn about like your kid's old science fair exhibit.

Last week, former Justice Department inspector general Michael Bromwich completed an independent, taxpayer-funded $5.3 million review that Bromwich says was the most extensive inquiry in the history of forensic science.

The crime lab has achieved national accreditation, its funding has doubled and training has gone from substandard to rigorous.

Now, it seems, some people want to quit.

Or at least, they want to proceed in a way that could take us backward.

Houston Police Chief Harold Hurtt, Harris County District Attorney Chuck Rosenthal and Mayor Bill White want to ignore Bromwich's recommendation to hire an independent "special master" to oversee the last leg of the probe.

Bromwich recently discovered hundreds of cases from the 1980s and early 1990s that may have been tainted by problems with serology evidence, an obsolete science of typing body fluids that was a precursor to DNA tests.

Those problems could compromise about 180 cases, which must be reviewed to determine how vital serology was to the convictions and whether new testing is needed.

And:

Without an independent overseer prodding them, it's hard to say how aggressively local leaders will pursue answers. Or how quickly they'll lose interest in funding it.

Twice during Bromwich's probe, City Council members suffering from "investigation fatigue" considered cutting its funding.

Bromwich was there to talk them out of it. Something about finding the truth, restoring public confidence, making sure we sent only the guilty to prison.

Who will be there to remind them next time?

Earlier coverage is here and here.

Houston Crime Lab Woes Continue to Spark Debate

That's the title of an editorial in today's San Antonio Express-News.  LINK

Hiring a high-priced expert to review and diagnose a problem only to reject his advice is senseless.      

Houston and Harris County officials have rejected the recommendation of their crime lab's independent investigator to hire a special monitor to review hundreds of questionable criminal cases.

The city has spent $5.3 million over two years on the independent investigator and his probe of the crime lab and property room.

Last week, independent investigator Michael Bromwich released his final report in which he recommended free DNA testing in 413 questionable serology cases and the appointment of the master to review 180 serology cases with "major issues," the Houston Chronicle reported.

Houston Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal immediately rejected the hiring of a special master, the newspaper reported. They want to finish the job in-house.

That may be the cheaper solution, but it is not the wiser approach. Problems with the in-house operations created the problems in the first place.

And:

Harris County has 126 prisoners on death row; that's more than one-fourth of the total population awaiting execution in this state.

With the national focus on innocence and the Legislature's repeated failure to appoint an innocence commission, it is important for each county to do its best to ensure the integrity of the criminal justice system in this state.

More on the report is here.

Finishing Touches - UPDATED

That's the title of an editorial in today's Houston Chronicle on the final report of independent investigator Michael Bromwich and what's next.  LINK  A news article follows the editorial.

More than four years after the discovery of hundreds of incidents of mishandled evidence and botched testing at the Houston Police Department's crime lab, an independent investigator has completed a $5.3 million probe with a final report.

Moving to close the book on the scandal that tarnished the image of criminal justice in Houston and Harris County, the findings by a team headed by Michael Bromwich called for the appointment of a special master to complete the review of more than 180 convictions involving blood evidence tested with questionable accuracy.

Up to 850 cases might require some review of serology evidence. Other convictions involving DNA testing need a second look. In some cases evidence that was potentially exculpatory was never tested. HPD officials estimate the cost of the additional reviews will run more than $1 million. Brom- wich says the city and Harris County should share the cost.

Houston Police Chief Harold Hurtt agrees that the reviews should be completed at public expense but opposes naming a special master. Hurtt said the revitalized crime lab staff, police officials and the Harris County district attorney are capable and qualified to finish cleaning up the crime lab mess. He said he would also rely on the input of a stakeholder group appointed to oversee the crime lab investigation.

Hurtt said the interests of inmates whose convictions are in question will be adequately represented by the nonprofit Innocence Project co-directed by famed defense attorney Barry Scheck. The project receives the information gathered by the Bromwich investigation. Two men falsely convicted of rape after the crime lab mishandled evidence already have been freed.

The final report is here.  Yesterday's post is here.

The Chronicle's Roma Khanna and Steve McVicker have a news article, "Hundreds more cases in doubt at HPD lab."

Police and prosecutors must study hundreds of newly identified cases to determine whether anyone was wrongfully convicted with faulty evidence from the Houston crime lab, an investigator urged Wednesday in a report that some thought would signal the end to revelations of incompetence and shoddy work there.

Independent investigator Michael Bromwich outlined a series of steps he said officials should take to determine what role blood-typing and DNA evidence played in securing convictions against as many as 600 defendants — including 14 already executed — whose cases were processed at the Houston Police Department's crime lab between 1980 and 2002.

Police Chief Harold Hurtt, Mayor Bill White and Harris County District Attorney Chuck Rosenthal agreed that hundreds of cases will require further scrutiny and possibly new testing, but they rejected Bromwich's suggestion that a "special master" be appointed to oversee the process.

"We are committed to having a crime lab that the public and the criminal justice system can have confidence in," Hurtt said. "But we feel very strongly that ... we can accomplish what needs to be done without a special master."

Bromwich's recommendations were made in the final report on his sweeping $5.3 million investigation of the lab, where bad management, undertrained staff and inaccurate work — first exposed 4 1/2 years ago — has cast doubt on thousands of convictions and unsettled the criminal justice system in Houston and beyond.

A significant portion of the 332-page report is devoted to investigators' review of 850 cases from the 1980s and early 1990s that included serology, a process of typing body fluids that was a precursor to DNA tests. Investigators uncovered problems that raise serious questions about the reliability of evidence in 180 cases but also discovered that complete tests never were performed in more than 400 others.

"This is an extraordinarily high and extremely disturbing proportion of cases in which to find problems of this magnitude," the report says of the 180 cases.

Final Report in HPD Crime Lab Investigation Issued

Four and a half years after the first signs of problems in the Houston Police Department Crime Lab emerged, an independent investigator has issued his final report,  The Houston Chronicle has, "Investigators urge new tests in HPD crime lab final report."

DNA testing should be provided free to prisoners in more than 400 cases in which a substandard or incomplete serology work was originally performed by the Houston Police Department's crime lab, according to a report released today by the special investigator hired to examine HPD's much-maligned forensic work in thousands of cases.

The document, the final report filed in the $5.3 million independent investigation into the crime lab, also suggests that a special master be appointed to further review more than 180 of those serology cases in which "major issues" have been discovered.

The findings are included in Michael Bromwich's final report on the only comprehensive investigation of problems at the Houston crime lab, which have unfolded over the past 4 1/2 years, casting doubt on thousands of convictions and unsettling the criminal justice system in Houston and beyond.

The scandal also forced the city to conduct retesting of DNA evidence in 414 cases. Bromwich's team reviewed 135 of those cases, and found "major problems" in 43 — or 32 percent. The cases include those of four death row inmates: Franklin Dwayne Alix, Juan Carlos Alvarez, Gilmar Alex Guevara, and Derrick L. Jackson. With HPD's approval, the independent investigation forwarded information about each of these DNA major issue cases to the Innocence Project network that is exploring what additional steps, if any, should be taken on behalf of these defendants, according to a press release by Bromwich.

In his latest report, Bromwich recommends further testing in two of the 43 DNA cases — that of defendants Ronald Cantrell and Lonnie Van Zandt, both sexual assault cases.

However, Bromwich stressed that does not mean that others have not been unjustly incarcerated.

The final report is available here.

Death Row Exoneration in Oklahoma - UPDATED

UPDATE - The Innocence Project's news release is here.

Tainted forensics has resulted in Curtis Edward McCarty's exoneration in Oklahoma.  NewsOK.com has, "Inmate to be freed after murder charge dropped."

A judge dismissed this morning a 22-year-old murder charge against Curtis Edward McCarty, ruling the case could not escape the taint of former police chemist Joyce Gilchrist.

Oklahoma County District Attorney David Prater said his office will not appeal the decision.

Judge Twyla Mason Gray made the decision this morning in Oklahoma County District Court. McCarty, 42, who was twice convicted of the 1982 murder of 18-year-old Pamela Kaye Willis and sentenced to die three times, is expected to be released sometime today.

McCarty was originally convicted in 1986, but the Oklahoma Court of Criminal Appeals overturned that ruling based on Gilchrist's improper testimony about hair and semen evidence. He was convicted again in 1989; that conviction was overturned in 2005.

NewsOK also has a page for continuing coverage of disgraced former police chemist Joyce Gilchrist, here.

Gilchrist becomes the 124th person in America who was sentenced to death and to have later been exonerated.  Death row exonerations have occurred in 25 states.  The Death Penalty Information Center maintains a list of capital exonerations.  Eight men have been exonerated and released from Texas death row.

The CSI Effect

That's the title of Jeffrey Toobin's Annals of Law column in the May 7 edition of the New Yorker.  Full text is not available at this time, but the abstract is here.

ANNALS OF LAW about criminalist Lisa Faber and the N.Y.P.D. crime lab’s hair-and-fibre unit. On March 10, 2003, two New York Police Department (N.Y.P.D.) detectives, James V. Nemorin and Rodney J. Andrews, were shot and killed while undercover on Staten Island. The man charged with the murder, Ronell Wilson, faced the possibility of becoming the first person in over 40 years to be executed in New York State. Among the evidence retrieved from the crime scene were hundreds of hairs and fibres, and prosecutors enlisted Lisa Faber, the 38-year-old chief criminalist at the N.Y.P.D. crime lab’s hair-and-fibre unit, to testify at Wilson’s trial last December. Faber’s testimony indicated that the relationship between the fabric and the fibres was so uncertain as to be almost meaningless. Nevertheless, Wilson was convicted and sentenced to death. “CSI: Crime Scene Investigation,” the CBS TV series about forensic scientists, and its several spinoffs are among the most popular shows in the world. Faber’s profession has thus acquired an air of glamour and excitement, and its practitioners an aura of infallibility. Virtually all the forensic-science tests depicted on “CSI” were invented by police departments over one hundred years ago, and for decades they have been admitted as evidence in criminal trials. In the mid-1990s, however, nuclear-DNA analysis became widely available, prompting some legal scholars to argue that unverifiable tests, such as hair and fibre analysis, should no longer be allowed in court. Describes the history of the use of forensic science in law enforcement. Mentions Calvin Goddard. Many of the techniques the N.Y.P.D. crime lab uses haven’t changed in decades. Describes Faber’s background and education. She first became interested in forensic science because of the Atlanta child murders in 1979. Describes how the unit gathers evidence. When a garment arrives at the lab, an analyst drags a strip of clear tape over it to pick up any loose hairs or fibres. The tape strips are then placed face down on a plastic sheet, which is studied under a microscope and then prepared for analysis. The analysts study between twenty and thirty characteristics of each hair. Mentions FTIR and MSP analysis. Michael J. Saks, of Arizona State University, calls hair-and-fibre analysis “faith-based science.” There have been few attempts to assess the reliability of hair analysis, and the most ambitious study, by Bruce Budowle, of the F.B.I.’s Laboratory Division, showed a ten per cent error rate. In addition, incompetent or malevolent trace-evidence examiners in several states have produced scores of tainted verdicts, many of which have been uncovered by the Innocence Project. Mentions Biotracks, the new burglary program created by Faber and her team. As of March 1st, Biotracks had found DNA profiles in over fifteen hundred cases and almost three hundred suspects have been identified. Perhaps the best thing hair-and-fibre analysts can do is turn themselves into initial screeners for the test that really matters-DNA. The days when analysts offer, and judges allow, the kind of scientifically dubious testimony that Faber provided in the Ronell Wilson case may be limited.

Justice Isn't Free

That's the title of an editorial in today's Dallas Morning News focused on Dallas County's process for examining prior convictions.  LINK

Post-conviction DNA reviews have freed 13 men who had served a combined 185 years in jail for crimes that they didn't commit.

Now District Attorney Craig Watkins wants Dallas County commissioners to pick up a $358,876 tab for a special prosecutor, support staff and attorneys for DNA reviews of other convictions. His request unleashed a finger-pointing exchange between two Republican commissioners and Democrat Watkins over whether the district attorney's office or the Commissioners Court should pick up the costs.

We don't intend to get caught up in an argument over whether this could be done for less or who should write the checks. We've seen this sort of theater before – over funding for the county jail, Parkland Hospital and even the district attorney's office. Often the bigger picture has been lost in financial nitpicking that kicks problems down the road until they blow up.

Dallas County can't afford to nickel-and-dime the cleanup of this credibility scandal at the expense of further delaying justice.

The editorial notes that there are pending requests for DNA review in 440 cases.

More on the Todd Willingham Case at CNN

Last night CNN's Anderson Cooper 360 examined the case of Todd Willingham, executed by Texas in 2004 on discredited arson investigative procedures.  The Anderson Cooper 360 blog has more on the case.

Fire investigator and forensic scientist John Lentini studied the Willingham case and determined it was not arson that killed those little girls. He calls the original investigation B.S. - Bad Science.

Lentini told me, ''There's maybe 75,000 suspicious fires a year. That's 75,000 chances to get it wrong.'' We met Lentini at a Maryland lab so he could show us why he believes the relatively new arson science debunks the myths he says have been handed down for years. I was amazed at what I saw. I don't know if you've ever seen the show "Myth Busters" on the Discovery Channel, but I felt like I was in the middle of a "Myth Busters" episode.

One so-called "indicator" for those who originally investigated the Willingham case is something called "crazed glass." For years, crazed glass -- which has webbing or tiny cracks inside it -- was believed to be a sure sign of a very hot fire, one that likely involved an accelerant. But Lentini and the others showed us how "crazed glass" is actually caused by rapid cooling, not rapid heating. We sprayed a piece of hot glass with water, the same way a fireman would spray a window with his hose, and that is when the glass began to crack inside. It didn't crack at all when we heated it up.

Yesterday's post has links to the original Chicago Tribune article and other coverage.

Willingham Case Scheduled to be Featured on Anderson Cooper 360

Anderson Cooper 360 is scheduled to examine the Todd Willingham case tonight.  The program airs at 10:00 pm, EDT, 9:00 pm, CDT.

Willingham was executed in Texas in 2004.  Later that year the Chicago Tribune wrote "Texas man executed on disproved forensics."  More coverage of the Willingham case is here.

The Price of Innocence

That the title of a must-read article by Dave Mann in the current issue of the Texas Observer.  LINK

Cameron Todd Willing-ham professed his innocence to the very end. Belted to a gurney moments before the potassium chloride pumped into his veins and stopped his heart, Willingham told those gathered to witness his February 2004 execution, “The only statement I want to make is that I’m an innocent man—convicted of a crime I did not commit.” Willingham had been sentenced to death for starting a 1991 house fire that killed his three daughters in the North Texas town of Corsicana. From the beginning, he had maintained that the fire was accidental. He was convicted mainly on the testimony of a single arson investigator, whose forensic evidence has since been debunked. In Willingham, the state of Texas may well have executed an innocent man.

His execution is exactly the kind of case the Texas Forensic Science Commission is supposed to investigate. The Legislature created the nine-member commission—made up of prosecutors, defense attorneys, forensic science experts, and legal analysts—in 2005 to oversee and investigate the state’s troubled forensic crime labs. In the past five years, the Houston police crime lab and several Department of Public Safety labs have produced well-documented failures: tainted and lost evidence, poorly conducted tests, intentionally misleading testimony. The New York City-based Innocence Project, a major proponent of the commission, has uncovered seven cases in which Texas sent innocent men to prison because of faulty forensic evidence. Some have been set free; others, like Willingham, are already dead. Given the many crime lab controversies, Texas legislators saw a need in 2005 for a concept that few states have tried—an independent body that could investigate allegations of misconduct against crime labs and correct poor forensic practices. The bill that created the Forensic Science Commission—sponsored by Sen. Juan “Chuy” Hinojosa, a McAllen Democrat, and Rep. Joe Driver, a Republican from Garland—passed the state House and Senate unanimously. Supporters hoped the commission would free innocent men already in jail and prevent similar injustices in the future.

Freed Inmate Sues Over Conviction

That's the headline in today's Houston Chronicle reporting that George Rodriguez is suing the City of Houston and several individuals.  Rodriguez was released in 2004 after spending 17 years in prison.  LINK

The "near-total breakdown" at the Houston crime lab occurred because of inattention by the city, county and individual officers and analysts, a man who wrongfully served 17 years in prison alleges in a federal lawsuit.

George Rodriguez was released from prison in October 2004 after new forensic tests exposed errors in the analyses from the Houston Police Department crime lab that were used to convict him.

"Those tests demonstrated that every scientific conclusion rendered by the HPD crime laboratory ... in George Rodriguez's case had been utterly wrong and, in some respects, patently fabricated," he contends in alleging that his civil rights were violated. The suit seeks unspecified damages.

Rodriguez argues that his conviction was the product of deliberate indifference to problems within HPD and at the Harris County district attorney's office. The lawsuit names as defendants the city, the county, District Attorney Chuck Rosenthal, crime lab analysts including Christy Kim and Jim Bolding and 13 police officers.