Jonathan Salvador fallout: Two cases bookend range of options

A pair of notable cases related to the Jonathan Salvador DPS-Houston crime-lab fallout demonstrate the range of options for how thousands of affected drug cases might go. Salvador, readers will recall, was caught and fired for engaging in "drylabbing," or recording results without having performed the underlying testing.

On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine. Important case. Former DPS crime lab worker Jonathan Salvador worked on just fewer than 5,000 cases while he worked there. So, as of the Coty case, and contrary to the court's prior ruling, all those cases aren't automatically jeopardized. If evidence is available for retesting and the results confirm Salvador's findings, or if prosecutors possess other material evidence of guilt, convictions may be sustained by the CCA. At their weekly case summary, the prosecutors' association was clearly pleased:

With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction. Back in January in this case, the court gave us a new set of rules to follow in “bad scientist” cases that backed away from a “defendant always wins” approach. Now with this decision and with the new rules put into practice, the State has a clear roadmap to save an otherwise valid conviction. Thank goodness. The prospect of the finding of an automatic due process violation would have been devastating. The State is still going to have to do some work, as evidenced by this case, but at least now there is some hope.

Ah, hope springs eternal. Meanwhile, Fox-26 in Houston this week (June 12) reported on a Conroe man soon to be freed because of the Jonathan Salvador mess. According to that short piece by Isiah Carey:

It could be a matter of days before a Conroe man is free after being convicted on what prosecutors call shoddy crime lab work.

This comes two years after a Department of Public Safety crime lab employee was fired for falsifying drug test results.

Defense attorney Rick Brass says his client Diedrik Cavil was sentenced to 45 years on the evidence prepared by the now former worker.

Brass says there are at least 5000 cases affected in the two year old investigation. ...

Montgomery County prosecutors say they have about two hundred cases affected but they don't believe all of them will be dismissed like the Cavil case. [Ed note: See the CCA's May 7 opinion in that case.]

So, some convictions sustained from the Salvador debacle, some dismissed, what's the difference? What's happening here?

Partly, it's that drug evidence in Coty's case was still available in an evidence locker somewhere for re-testing. The state went through that process and the results confirmed Salvador's original findings. But that's not always the situation. The Texas Forensic Science Commission (FSC) estimated that evidence has been destroyed and is thus unavailable for retesting in a quarter to half of all cases, or approximately 1,250 to 2,500.

So you've got three categories of cases: Those where evidence exists and retesting confirmed Salvador's findings, those where evidence has been destroyed or is unavailable for retesting, and those where Salvador actually engaged in misconduct. (There's also a fourth group in some counties where no one has bothered to check or even notify the defendant about what happened and retesting may or more-likely may not occur.)

If all the defendants were notified and provided access to habeas counsel, one would expect 1,200 to 2,500 successful habeas claims, at a minimum, where evidence was destroyed, plus however many cases of actual misconduct are discovered. In reality, though, most defendants eligible for relief may not know about Mr. Salvador or, if they do, be able to afford a lawyer to pursue the case. They may or may not, for a variety of reasons, file pro se (on their own, without a lawyer) from their prison cell, much less while they're on probation or parole. In a few counties like Galveston, Montgomery, and Harris, defendants may be notified and, if eligible, promptly appointed counsel. But in other jurisdictions it's been much more hit and miss.

This is why Mary Ann Wiley, the new general counsel at the governor's office (congrats MAW, btw!), a few weeks ago suggested creating a public defender office for forensic writs. The Salvador episode should be a wake up call. The example offers the strongest possible argument in favor of such a post: The habeas corpus process isn't designed to carry such weight, especially if it's all done haphazardly via often imprisoned, pro se inmates. With many more Salvador-fallout cases likely to soon be filed (now that the case law is clear) and hair-and-fiber cases waiting in the wings, the Lege would do well to create a process in 2015 for handling this and similar situations. This won't be the last.

UPDATE: Just as a reminder, here's the distribution of Salvador's ~5,000 cases scattered across 36 Texas counties:

• More than 250 cases: Montgomery, Galveston, Fort Bend, Harris, and Liberty
• 101-250 cases: Brazoria, Chambers, Grimes, Hardin, Jasper, Matagorda, Polk, Walker, Waller, Wharton
• 10-100 cases: Austin, Jefferson, Newton, Orange, San Jacinto, Trinity, Tyler, Washington
• Fewer than 10 cases: Angelina, Brazos, Burleson, Colorado, Hidalgo, Houston, Jackson, Leon, Madison, Nacogdoches, Sabine, San Augustine, Shelby

Related Grits coverage:

• Should Texas create a statewide public defender for forensic writs
• Salvaging Salvador: Part Two 
• Salvaging Salvador: CCA reverses course in Salvador mess
• 'White paper' suggests systemic reforms to react to mass forensic errors
• CCA considers volte-face in DPS crime lab fiasco
• Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or questions of law
• TXCCA will overturn Salvador cases no matter what other evidence exists
• Nuther overturned case based on Jonathon Salvador crime lab fiasco
• Texas praised for response to DPS-Houston crime lab scandal, compared to Yankees
• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports