Wednesday, February 27, 2013

Conviction overturned based on DPS lab worker misconduct, hundreds more likely to be challenged

Hundreds of drug cases will likely be overturned via habeas corpus writs after it was revealed last year that DPS lab analyst Jonathon Salvador fabricated results while testing a batch of Alprazolam tablets. (See Grits' earlier discussion of the case, "Bad apple at DPS crime lab could spoil barrel of convictions.") In a per curiam opinion, the Texas Court of Criminal Appeals today overturned the conviction of Junius Sereal out of Galveston because evidence in the case had been destroyed and therefore cannot be retested. From the opinion:
Applicant contends that his due process rights were violated because a forensic scientist did not follow accepted standards when analyzing evidence and therefore the results of his analyses are unreliable. The State and the trial court agreed that relief was warranted before remand, but the record was insufficient to decide the case at that time. This Court remanded the application to obtain more information. Specifically, the Court needed three additional pieces of information to resolve this case: (1) a copy of the Department of Public Safety (DPS) report Applicant was relying on for his claim; (2) a determination that the lab technician named in that report was the only scientist that worked on this sample; and (3) a finding as to whether the sample was destroyed or could be retested. The trial court has now provided this Court with all the information necessary to resolve this case on the merits. The DPS report shows that the lab technician who was solely responsible for testing the evidence in this case is the scientist found to have committed misconduct, and the evidence in this case has been destroyed and therefore cannot be retested. Applicant is therefore entitled to relief.
Relief was granted in another Galveston case, as well, in a non-published opinion. What's most astonishing: At a meeting of the Forensic Science Commission last month, it was estimated that evidence had similarly been destroyed in 25-50% of the nearly 5,000 cases the now-terminated lab analyst had worked on, meaning hundreds more cases  may be overturned before all is said and done. The analyst performed tests in cases from 36 counties - 1,281 of them from Montgomery County alone.

This story hasn't received much traction in the MSM so far, mainly because the big papers no longer routinely send reporters to cover the activities of the Texas Forensic Science Commission, which has been reviewing details of the episode. I'll bet that changes, though, now that defendants are starting to walk out of prison based on the lab worker's alleged incompetence. What a fiasco!


Elizabeth said...

Questions raised by the lab scandal go beyond the performance of one person.

Optimists would consider the test-faking DPS worker a "bad apple" in a barrel full of good.

Pessimists would assume the other apples were similarly tainted.

I think it could go either way, but the evident dearth of controls supports the pessimist.

rodsmith said...

What's really sad is that each and every one of these people will first have to know about this to then find the money to get a lawyer. File the papers wait years for the cases to go through the diff lvl's of court.

It should be friggin automatic!

They know this fuckup messed up the cases. Go over the damn things and dismiss the ones effected.

Adam Poole said...

rodsmith, you cannot just dismiss a case that has already resulted in a conviction. There is a writ process.

Our office (Galv. Co. DA) sent notices to each Defendant effected and their trial attorney. We hired a specific prosecutor just to handle these writs and had each Defendant appointed an attorney. We drafted an 11.07 writ and gave it to the defense attorney to file, and then we agreed to the writ, as you can read in the cases posted in the article.

I do not know how other counties have handled this but we've done everything we can to give relief as quickly as possible to those effected.

Gritsforbreakfast said...

Rod, Adam's actually spot on. Galveston has moved more quickly than anyone else on this. I didn't give the DA credit for that in the post, but I should have.

Adam, thanks for the clarification as well as to your boss for modeling good prosecutor behavior in these cases.

thomas R. Griffith said...

Hey Grits, if Mr. Poole is spot on & being 100% truthful, the Galveston D.A. is a friggin hero to the criminal justice system reform movement (taxpayers & VOTS alike) and deserves more than just credit in a blog / blawg Post or two.

He / she deserves to have his / her image cast in a 10 foot tall bronze statue and displayed on a rolling semi billboard that travels across Texas to every courthouse for 24 hours. *Will someone please post his / her name. Thanks.

Thomas R. Griffith said...

Hey Mr. Poole, what's being done to prevent history from repeating itself?

As you know, this isn't the first time a Lab Tech was used as the scape goat in a system that requires checks & balances. Thanks.

Anonymous said...

The DA in Galveston County is Jack Roady.

Adam Poole said...

Mr. Griffith the DPS lab in Houston is a separate entity than our DA's office, or any other DA's office for that matter. We have no oversight in their lab and that is part of the checks and balances that you mention. They obviously have substantial oversight by the State of Texas in order to remain certified.

But I know that it was the lab that caught their own irregularities through their audits. I am also unaware of any other such problems like this ever happening with this lab. It is a gross misstatement to call Jonathon Salvador a scapegoat.

The DPS lab is of course not to be confused with the HPD lab which was not an independent lab like DPS.

Anonymous said...

The oversight or "checks and balances" of DPS, which extends to accreditation of Texas crime lab, has been miserably poor for a number of years. The inability (or unwillingness)of DPS to create protocols to prevent such events from occurring is widely known in the forensics community.
One simple, preventative step would be to perform random, blind re-testing of drugs. For the "real" scientist, this is called peer review. For DPS, this is called "costly", and introduces the possibility of "infallibility".

Gritsforbreakfast said...

Adam wrote that, "the lab that caught their own irregularities through their audits"

To be precise, that's not exactly correct as I understand it. In fact, according to the Forensic Science Commission investigation DPS would not have caught this through regular audit procedures. Another employee ran across the discrepancy and reported it.

That said, DPS then self-reported the incident and behaved quite forthrightly after the error was discovered, but one of the problems cited is that the regular "tech reviews" of analysts' work won't catch straight up fabrications, as allegedly happened in the instance that led to Mr. Salvador's termination. IMO it's accurate that lax management contributed to what happened, but after the error was discovered DPS did not cover it up and deserves credit for that. In that sense, they're a far cry from the HPD crime lab. Everybody makes mistakes - one judges character by how people react in the aftermath.

rodsmith said...

adman sorry but bull shit!

I'm talking about cases like this one. Where we KNOW the lab tech faked evidence and wrote up bogus reports. Once that was know EVERY case this fuckup worked on should have been pulled and rechecked. Any that had either no evidence or wrong reports should have immediately been reported to the court to have the individuals released.

In my book each of them knowing they are basically innocent had the legal right to escape using whatever violence was necessary.

Anonymous said...

Anonymous 6:44 wrote:

"One simple, preventative step would be to perform random, blind re-testing of drugs. For the "real" scientist, this is called peer review."

This is an interesting idea, and worth thinking about. But it is not simple, as 6:44 states. Nor is it a standard, generally implemented practice in any forensic laboratory that I am aware of. There are three basic problems with implementing this sort of system. First, many samples (perhaps most, depending on the type of testing) are de minimus samples, and retesting may not be feasible, or may only be feasible if the remaining sample is consumed. Second, consumption of sample is generally viewed as a very bad thing because it eliminates the opportunity for future retesting by the defense. Third, the evidence that the lab works on does not belong to the lab, and the lab is not free to do this sort of work on it without authorization of the owner. Depending upon the status of case, the "owner" might be the police agency, the district attorney, or the court with the agreement of the defense.

It is not uncommon ffor labs to implement replicate testing of samples when possible as part of their standard operating procedure. This is routine in areas like blood alcohol testing, where the standard sample size is large compared to the amount needed for testing. But implementing this sort of random retesting for quality control purposes is highly problematic.

A much better way to achieve the same goal would be for the state to adequately fund a vigorous defense retesting program. If each analyst knows that a significant percentage of his work will be redone by the defense, then he will be highly motivated to do the work correctly and competently on the front end. Retesting by the defense is fairly common in some disciplines, like DNA. But in other disciplines it almost never happens.

Gritsforbreakfast said...

Rod, that's all happening - rechecking old cases, etc. - but more slowly than one might like and at a different pace in different counties. I think a lot of folks were waiting to see how the CCA would rule on the first of these cases. Things should speed up now.

FWIW, my employers at the Innocence Project of Texas were asked to help vet cases in counties where no process has been set up. My understanding is they just recently received the list of cases, as in this week, and are starting to vet them to see which defendants claimed innocence, in which cases evidence was destroyed, etc.. Now that the CCA has demonstrated how they'll handle the cases, the blueprint has been laid out how to proceed. In the meantime, I wouldn't advocate any of those waiting for relief begin planning any prison breaks. Some of them are guilty, know it, and just won the Government Screwup Lottery.

BTW, there's a very similar situation, on an even larger scale, going on in Massachusetts, though that episode has gotten a lot more media play.

Gritsforbreakfast said...

8:09, that's a very interesting suggestion, using the adversarial system for the purpose it was intended - to test the government's case. As I understand it very few controlled substance cases are subjected to defense retesting. That might be a good way to go. Somebody'd have to fund it, though. Counties won't want to pay for it. OTOH, they surely don't want hundreds of their cases overturned, either.

Thomas R. Griffith said...

Thanks to everyone for clarifying everything & for taking time to offer up positive / plausible solutions to prevent history from rinsing & repeating. Believe it or not this crap is going on from coast to coast & begs for Federal intervention due the amount of humans' caught up the frame & blame game. Thanks for providing the DA's name.

*Note: Mr. Poole, you are right. I did make a "gross misstatement to call Jonathon Salvador (just another) scapegoat." When I meant to say - another lazy ass, lying piece of shit that deserves life in prison without parole along with any & all (rogue) public servants’ / employees’ charged with duties’ that affect the lives of other humans.

Termination(s) devoid of mandatory, immediate: arrest, indictment, license / certification revocation & lifetime ban along with fines (reparations) simply promotes carpet bagging over two counties like it never even happened.

Thomas R. Griffith said...

Hey Grits, I couldn't remember the most recent "Government Screw-up Lottery" via rogue lab Tech. Thanks for reminding us about the Baston Evidence Massacre.

Thomas R. Griffith said...

I was under the impression via Rules / Policies, that the IPOT considered non-DNA claims’' of: false arrests' & subsequent wrongful convictions’ - only if all appeals have been exhausted.

Grits, have the Rules / Policies changed or was the sheer amount of humans’ affected worthy of an exception? Thanks.

Gritsforbreakfast said...

Thomas, I have nothing to do with the legal side of IPOT's work and actually try to stay out of it. In this case, IPOT was already helping with the arson review by the State Fire Marshal and so had reps at the Forensic Science Commission meetings when the DPS issues came up. The FSC asked IPOT to help because a) there was gaping lack of leadership in some counties and b) they've got more experience than most folks with habeas work. IPOT ultimately agreed, but I don't know whether that implicates their overall intake policy. I suspect it will be treated as a one-off exception based on special circumstances.

Anonymous said...

The analyst has been with the lab since 2005. Thus, every annual lab audit report (required for accreditation status) or annual proficiency test (also required for accreditation status) that fails to report these inaccuracies -- is fraudulent and meant to deceive third-parties receiving theses reports (similar to perjury). See Texas Penal Code, Sec. 37.10.

Crime Lab Management is accountable for these annual audits and tests. Thus, should be prosecuted for these fraudulent reports.

BTW, proficiency tests may be another way of testing the analyst's knowledge. It's not actual evidence, so consumption is not a problem. However, proficiency tests typically are not disguised as routine evidence samples. The analysts know they're taking a test and may take extra caution when providing a result (i.e. may not take procedural shortcuts as they might when analyzing actual evidence.)

8:09's idea is also good. The Defense certainly needs to have funding for their own testing of evidence. If the State can use taxpayer money for evidence testing, so should the Defense. (The defendant is a taxpayer, no?)

Although, the State can still taint the evidence before the Defendant gets to test it...

rodmight said...

sorry grits but this!

" and are starting to vet them to see which defendants claimed innocence, in which cases evidence was destroyed, etc.."

tells me your missing the point.

The defendants should not need to claim SHIT!

Once this was discovered the STATE had the duty to pull each and every case this fuckup touched and review them immediately! At that point knowing which are fucked completely ... I. e. no evidence. Fake evidence whatever. Can make a damn list and walk to the nearest judge and just say. These cases of DEAD. Here are the orders to release the. Sign it NOW!

No months or years waiting on a private group! then a court date! then a hearing! then 5-6 months if not more for the judge to get off their fat ass and release a decision!

Adam Poole said...

rodmight there is no legal mechanism for a prosecutor to dismiss a case that has resulted in a conviction. If the court has not yet lost jurisdiction then a motion for new trial can be filed. If the Court has lost jurisdiction then an 11.07 writ must be filed. In the vast majority of the "Salvador cases" the court lost jurisdiction long ago. The State does not represent the Defendant and we simply cannot file an 11.07 writ on their behalf. So yes, legally, the Defendant does have to claim the relief and that's just the way it is unless the law is changed.

After the problem was detected and confirmed by DPS, the lab distributed a list to DA's offices that I believe listed ever case he ever touched. From my perspective, that was done very quickly. The immediate duty of the State at that point is to give notice to each Defendant.

rodsmith said...

I still say horse puckey!

Innocence trumps everything.

Doesn't matter they Might be guility. The state messed up the case there fore they are now legally innocent. As for the court having jurisdiction. Last time I looked the court was the ONLY thing that had jurisdiction over crime in this country. They may not like it and are dancing like a crazy person trying to dodge the responsibility. But real people know the truth.

Would only take one judge with the balls to announce that based on the fraud and total stupidity of the state in their selection of a lab tech any case that individual was involved with is now considered null and void and the individuals will be released immediately.

Then the shoe would be on the higher courts to see if they had any balls to reverse.

considering the mess. I'd bet money NONE would touch it!

rodsmith said...

Perfect example is a case we had here in florida like 15 years ago.

Guy got arrested in south florida. Had a PD and took a plea that was supposed to basically have him go to state prison system to be processed and then released so would only be in prison like 30 days. 3 YEARS and 2 separate court orders ordering his release from prison he finally got tired of waiting on the system to do it's damn job so he escaped. few years later he got caught up here where I am. Lucky this time he had a real private lawyer and hit the right judge. Judge took a look at the case file. the TWO orders from the original sentencing judge in south florida and then told the guy the original case was dismissed as was the escape charge. he then instructed the sheriff's deputy to take the guy across the street to the goodwill store and get him a set of clothes and then put him on a buss out of the state back to his home.

Then informed the DA that if FDOC had a problem with it. they were welcome to walk their ass into his court room where they could explain WHY they ignored 2 COURT ORDERS.

Far as I know he got out of the state safe and the case has never been mentioned again.

THAT judge had big brass balls!

Anonymous said...

They aren't legally innocent until a court determines that they are. Just like they weren't legally guilty until the original court determined that they were. That seems pretty basic.

rodsmith said...

Lord 4:49 is sure as hell hope your not a DA

because that was about the most ignorant statement I've seen in years!

"Anonymous said...
They aren't legally innocent until a court determines that they are. Just like they weren't legally guilty until the original court determined that they were. That seems pretty basic."

Hate to be the one to bust your bubble. But you might want to tell your fellow DA's that legally under our CONSTUTITION legally you are INNOCENT until a court proves your guilty!

What that means is when they walk into court legally they are NOT GUILTY until a jury says they are not!

But in these cases the evidence that is the foundation of any possible guilty verdict is tainted or FAKE. Therefore any guilty verdict from them is NULL and VOID!

In fact legally each and every one is looking at one hell of a check from the state.

Anonymous said...

You should not be required to hire a lawyer to get out of jail if you were wrongly convicted on evidence.

That is a doubly wrong. Simply because a bunch of lawyers put a system into place that they generate a cash flow from, does not make it just, nor moral.

Far, far too many people have already been forced to take reduced sentences when they are innocent of the charges, simply because they could not afford an attorney who would fight for them, and told them instead to plea the case out.

Anyone with an ethical or moral principle knows this already. If you argue for more paperwork just to clean-up the mess the state made, you're just another state-made drone.

Thomas R. Griffith said...

Grits, thanks for clearing that up.

A regular and passionate but yet identifiable Anon. 'rodsmith' has pointed out to the DAs' & ADA's in the room issues they couldn't refute so they simply left.

Sometimes an Anon. will say something that begs for a reason as to why they wouldn't take time to put their name on it. Some of the most valuable information comes from the shadows, as it leaves us wondering who in the hell is this person or I'd like to personally thank them.

One prime example would be - 03/01 2:00PM "8:09's idea is also good. The Defense certainly needs to have funding for their own testing of evidence. If the State can use taxpayer money for evidence testing, so should the Defense. (The defendant is a taxpayer, no?)

This comment has me asking the DAs & ADAs' that dare visit this Posting again to consider this -

*If you favor Reciprocal Discovery then it goes without saying that you'd favor the Defense & State being able to utilize the same Jury Trial Debit Card with equal (taxpayer) funding per case. Thanks.