Friday, June 07, 2013

TXCCA will overturn Salvador-tainted cases no matter what other evidence exists

The latest Houston Chronicle coverage of the Jonathon Salvador story out of the DPS-Houston crime lab (see "Drug convictions may be tossed," June 6) brought Houstonians the news that thousands of drug cases may be overturned because of Mr. Salvador's alleged malfeasance or incompetence. (Grits readers, of course, are well aware of that fact.) Here's how the Chronicle article opened:
Thousands of felony and misdemeanor drug convictions across Texas may be thrown out after the state's highest court ruled Wednesday that any case with evidence handled by a disgraced Department of Public Safety chemist is suspect.

The sweeping ruling is the latest chapter in a saga that began last year with an investigation into the shoddy work of forensic examiner Jonathan Salvador who handled nearly 5,000 drug cases, including about 400 in Harris County, from 2006 to 2012.

"What it means is that any of the cases that Salvador was responsible for are suspect, and the courts will not respect those convictions, and they'll be overturned," said Alex Bunin, head of the Harris County Public Defender's Office. "In Harris County, it could be hundreds."
Of course, back in March Grits was already predicting thousands of cases - potentially every one Salvador ever worked on - could be overturned, a possibility that seems ever-more certain with each passing Texas Court of Criminal Appeals ruling related to the case. Long before March, it was apparent that hundreds of cases may be overturned in instances where evidence had been destroyed and was unavailable for retesting. Then the CCA's sweeping judgment that any case was tainted in which evidence was at some point in Salvador's custody meant nearly 5,000 cases are in jeopardy.

The Coty case decided this week was one where the Harris County DA thought it had the best possible chance of winning in spite of the high court's anti-Salvador rulings. In an earlier report ("Crime lab analyst kept on job despite shoddy work," April 6), the Chronicle mentioned that:
In Leroy Edward Coty's case, Anderson said, there are videotapes and other evidence that could secure a conviction without using the drug results tested by Salvador.

Coty, 42, was sentenced to 10 years in prison in 2010 after pleading guilty to possession of more that 400 grams of cocaine, according to court records.
Coty could be retried using videotapes or other evidence, presumably, but the state can't use the allegedly tainted drugs as evidence.

Columnist Lisa Falkenberg had earlier published a one-off piece about the Fort Bend County District Attorney's lack of diligence in responding when he was notified that hundreds of old cases may be in jeopardy. But except for the above-quoted April 6 article, mostly the Chronicle has ignored the Salvador episode. Given how many cases will be affected, this mess would benefit from the sort of diligence the Boston Globe has applied to their higher profile but similar crime-lab imbroglio.

See the Forensic Science Commission's report (pdf) on this episode for more background.

MORE: In the Huntsville Item (June 7), Walker County DA David Weeks said his office would not attempt to retry Salvador's cases:
“It’s clear that all the cases (Salvador)  worked on are irreparably damaged,” Weeks said. “The defendants will be appointed attorneys and arrangements will be made for expunging their records. It blew up in our faces.”

At first, the offices tried to retest the available evidence in the cases. That didn’t turn out as expected either, according to Weeks.

“Those results were haphazard,” he said. “In a case where (Salvador) said there was drugs, there wouldn’t be. And when he said there were no drugs, there were drugs.”
Related Grits coverage:


john said...

Who was it you said pays for all that waste?? will this bozo be on paid leave until whatever?
Why would OTHER evidence, if acquired and processed away from that jackass, not be usable?
I find it off the courts would not rule with bias like they do in traffic and other cases.
Is there some higher oversight, or political pressure that causes them to toe the line?

ratsya, it's captcha!

Soronel Haetir said...

Evidence that was never in Salvador's sole custody can be used, but prosecutors have to go at it from the beginning rather than get the usual beneficial invocation of harmless error.

Gritsforbreakfast said...

Exactly, Soronel, you nailed it. If the drugs were at any time in Salvador's sole custody they can't come in as evidence. That ruling surprised nearly everyone not on the court - that it was a per curiam opinion with no dissents made it even more surprising.

John, the bozo resigned and a grand jury declined to indict him. I don't think it's any higher power making the CCA do this but, as they say, "judicial economy." The habeas process wasn't designed for this kind of mass appeal. Better to just cut their losses, or at least that appears to be the reasoning.

rodsmith said...

that's a very good possibility grits. But maybe not the whole thing. They have also be worrying if someone will demand an investigation in the other types of evidence this fuckup has worked with. That might expand the investigation into god knows how many other types of cases. i'm sure drugs were not the only evidence this criminal touched. So your right it comes back to cutting thier losses. They can give up and write off the drug cases he's touched or keep fighting and someone decides to look at all the other cases he's touched. Nothing has come out to show just how much of his time at work was spent on drugs as what % of his total time at work!

Anonymous said...

Is it strange that ASCLD/LAB was not asked to comment or investigate the DPS? Does the ASCLD/LAB share any of the responsibility for NOT finding the problems earlier? Do the taxpayers get their money back for ASCLD/LAB's so-called "accreditation"?

Anonymous said...

I'm not sure why there wasn't more fallout over the lack of managerial oversight in this matter. He was an known marginal employee, yet this employee was not more closely monitored? This debacle turned into a monumental embarrassment to the DPS Crime Lab, as well as a huge waste of tax dollars.

Sounds like heads all the way up the line should roll on this one.

Anonymous said...


Exactly! Lab management failed to create documents describing Salvador's perceived ineptitude (legally, Brady violations) and/or created false documents (e.g. lab audits and proficiency tests) to conceal Salvador's perceived ineptitude (legally, tampering with govt documents with intent to deceive). These are crimes and should be subjected to a grand jury investigation.

The fallout of this catastrophe is that crime labs will no longer self-report acts of accreditation non-compliance to the FSC and lab analysts will no longer report to their supervisors the problems they observe in the lab for fear of being blamed or fired.

That is, everything will return to the status quo of hiding mistakes and cover-ups.

Good luck, defendants!