Friday, January 13, 2012

Forensic commission reviewing Austin, El Paso crime labs

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

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

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

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

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

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

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

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

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


Anonymous said...

The issue of scientifically untrained police officers managing highly trained scientists (as in El Paso) is a recurrent problem. As I recall, there was a time when the manager of the Fort Worth PD lab was an officer who had been transferred to the position from a position managing the vehicle impound lot. He was in over his head and knew it.

It would be a lot better if labs were taken out of police departments and established as independent, scientist managed departments. It is surprising that the legislature doesn't take this up. It is probably the best thing that could be done to fundamentally advance forensic sciences in Texas.

ckikerintulia said...

Science? We don't need no stinkin' science.

Anonymous said...

The culture of police departments is fundamentally incompatible with the culture of science.

Don said...

Charles, lol. You are right. One of the jurors in the infamous Tulia Drug Trials said to a BBC interviewer when he asked her how she "knew" one of the defendants was guilty since he steadfastly denied his guilt and had essentially been exonerated: "Ahm jest roil antooitive". (Ok, you can't really try to spell that bad of a Texas drawl). :) But, she didn't need no stinkin' evidence!

Anonymous said...

How many years back are they going with this investigation?

Anonymous said...

Corruption in crime labs is nothing new. And the corruption doesn't just involve the testing of drugs, as anyone who has lost a young child can testify. Anyone who has a young child die becomes immediately suspected of foul play by authorities. And these suspicions are passed along to the medical examiners conducting the autopsy. If the pathologist cannot determine a specific manner of death, many will revert to the detectives "gut hunch" and arrive at a manner of death that supports this.

Harris county has a long, long history of corrupt and incompetent medical examiners. And dozens of innocent defendants have been convicted of murdering children when no real evidence supported the findings of murder other than the "gut feelings" of mostly inept detectives, and an opinion of a pathologist who was cop-friendly and had long ago ruled out any possibility of natural death due to SIDS, anaphylactic shock (a severe allergic reaction to vaccines), or other manners that aren't obvious like rare diseases and complications due to premature birth among many others.

In 1998, Chief Medical Examiner Dr. Joye Carter (now with the Southeast Texas Forensic Center) fired an assistant medical examiner who had reported illegal activity at the Harris County Medical Examiner's Office. And no less than a dozen of the cases where Dr. Carter testified for the prosecution that a murder has indeed occurred have been overturned by appeals courts. Carter was soon sent packing when lawsuit awards began to be too expensive for the commissioner's court to pay.

Dr. Patricia Moore (also now with the Southeast Texas Forensic Center) was among the most "cop-friendly" medical examiners in Harris county. During her time in Harris County, Moore attributed infant deaths to shaken baby syndrome at a rate considerably higher than the rate at which it happens in the general population. Once even reprimanded for being "biased in favor of the prosecution" as the document reads.

Until we begin imprisoning those who would mock our justice system this type of corruption will continue.

Anonymous said...

If the accreditation agency is supposed to perform an investigation, and DPS is supposed to perform an investigation, then why does Texas need another Forensic Science Commission to perform an investigation? Seems like quite the redundancy.

What's the difference in responsibility (or accountability)of these different agencies?

Wasn't APD accredited?

Anonymous said...

1) ASCLD-LAB is a national accrediting body that establishes quality management standards, accredits laboratories according to those standards, and inspects laboratories for conformance to those standards.

2) DPS is the state agency responsible for state accreditation of laboratories, which is required in Texas by statute. As part of its accrediting authority, DPS is empowered to inspect accredited laboratories.

3) The Forensic Science Commission was created as an independent state agency to investigate a narrow subset of complaints regarding laboratories. Those are complainants of serious misconduct and negligence that would substantially affect the integrity of the results of a forensic analysis. It was created in part to provide for a independent state agency that could investigate complaints against DPS, since that is required by federal law.

Anonymous said...

Anony 3:13,

For the FSC, the statute TCCP 38.01 does not say "narrow subset" or "serious". Thus, just about anything the DPS investigates the FSC shall investigate -- both negligence and misconduct. (IMO, this should be an obligatory "shall" and not an optional "shall".)

Basically anything ASCLD investigates is a moot point since they get paid annually by the crime labs for accreditation. Not to mention, those investigations are not open to the public. (Anyone seen what they did at the SBI lab in North Carolina? Deny, deny, deny.)

Are those complaints and allegations that are sent to DPS ever discussed openly in the eye of the public? If we can't trust DPS to handle problems inside Texas crime labs, why should we trust the FSC to get the problems resolved?

What if the FSC finding disagrees with the findings of DPS, who wins? Who is accountable for rectifying the conclusions?

How about legal accountability?

Anonymous said...

All good questions. Clearly it is a system with multiple parts, cobbled together at different times by different groups with different objectives in mind. In regard to DPS's role in it all, that is something that was quite literally forced upon them by the legislature and the governor. I'm not thinking that universal trust in the process was part of the legislature's thinking in coming up with what DPS and the FSC do, since that is basically unachievable. And records related to investigations by DPS and the FSC are subject to open records requests, so it's clearly possible for people to get information if they want it. And it seems that having independent agencies look at things is good thing, since they may not reach the same conclusions.

dfisher said...

Anonymous 5:42...ASCLD is subject to Open Records Request.

The AG ruled any private company that derives its income from the government is subject to the Open Records Act.

Attorney General Opinion JM-821 found:

"The Open Records Act applies to governmental bodies as defined in section 2 of the act. Section 2(1)(A) describes the state agencies covered by the act. Sections 2(1)(B)-(E) list specific types of local governing bodies or their subdivisions that are covered by the act. A volunteer fire department does not fall within any of these specific descriptions.

Section 2(1)(F) provides that a "governmental body" also includes

the part, section, or portion of every organization, corporation, commission, committee, institution, or agency which is supported in whole or in part by public funds, or which expends public funds. Public funds as used herein shall mean funds of the State of Texas or any governmental subdivision thereof. (Emphasis added.)

Private nonprofit corporations can fall within this provision. See, e.g., Open Records Decision Nos. 302 (1982); 228 (1979)."

dfisher said...

Anonymous 10:56...

To my knowledge Joye Carter never worked for Southeast Texas Forensic Center, but Patricia Moore did.

The Pasadena Citizen published an article on Friday, Jan. 13, 2012 that I think you will find interesting.

"New legal challenge to Harris Co. medical examiner, could impact 55 years of criminal cases".

I also understand there will be a bomb dropped at the next hearing in the Larry Swearingen saga, who the State has tried to execute 3 time. Apparently the State had DNA evidence that would have acquitted him, but...

You know the rest.

Anonymous said...

11:44 - I don't think ASCLD-LAB would fit, any more than a vendor of pens bought by the government would. It is not providing a service on behalf of the government, thereby acting as a agency of the state of Texas. It is providing a service to the state of Texas as a vendor.

dfisher said...

Anonymous 07:11

ASCLD-LAB is a private nonprofit organization that primarily accredits government labs, be they city, county, state or federal.

Since they derive a majority of their funds from government, they meet the definition.

Anonymous said...

dfisher - I don't see that language "majority of funds from government" in the statute. Moreover, they certainly don't get the majority of their funds from Texas governments. So I don't agree with your assessment.

Do you have information that anyone has successfully filed for ASCLD-LAB records under the Texas open records act. I would bet, no.

Anonymous said...


Anonymous said...

These people move around. So if they are looking into Travis, they need to look into Bexar. And if they are looking into El Paso, then the state of Alabama should be paying attention. But then, perhaps they have nothing to worry about since DiMaio is on ethics commission. Texas does not want the system to change.

Anonymous said...

11:19 -

"Texas does not want the system to change."

Since 2000:

1) The state of Texas has made accreditation of forensic laboratories a requirement for the admissibility of evidence.

2) Created the FSC, and after a few years funded it so that it could do its job.

3) Changed the laws twice so as to make it possible for falsely convicted individuals to get retesting of evidence.

4) Changed the laws twice so that agencies would be forced to preserve evidence that could be used to exonerate falsely convicted individuals.