Sunday, December 17, 2017

Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs
Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

47 comments:

Gadfly said...

Something for your next roundup, perhaps? https://www.thenation.com/article/under-trump-the-private-prison-boom-shows-no-sign-of-slowing/

Soronel Haetir said...

Sorry I see the law of parties being fully justified. If you plan to take part in a crime I see any bad consequences of that offense coming down on you, whether or not that particular act was discussed as part of the plan, as being more than just reasonable, it's essential. I would extend this even to someone who is not in a position to change their mind and prevent the particular act, such as a getaway driver who can not know what is going on during a robbery.

Steven Seys said...

If the Law of Parties was only applied to the coconspirators in a crime your argument would be valid. However, Texas's practice of application of the law is to round up anyone, no matter how minor their role or even if they had an intended role, and convict them of the full offense. So if two people meet for the first time outside a store, enter it together, and one of them pulls out a gun to rob the store, killing the cashier in the process, Texas would make a plea bargain with the shooter for the lesser included offense of aggravated robbery and execute the innocent bystander under the Law of Parties. Now where is justice in that. This is not a hypothetical situation. This kind of thing has happened often.

Gritsforbreakfast said...

@Gadfly, I've got a copy of that book but haven't had time to read it. The author's going to be in Austin in January and I thought I'd try to use that opportunity as an incentive to read it.

I'm not as anti-private prisons as a lot of folks. We used them to create Intermediate Sanctions Facilities as part of the 2007 reforms and it contributed to decarceration. The bigger issues to me are 1) overall incarceration levels, which need to go down, a lot, and 2) contract oversight, which has often been terrible and is the source of many high-profile problems.

That said, in recent years in Texas, growth in private prison use has concentrated on immigration detention. For a while it was county jails, but they maxxed out that market. At the state level, we closed private prisons last session and will likely close more in the future.

Soronel, since you believe in executions for NON-capital crimes, your opinion is not surprising. But neither is it likely representative of most people's views.

BarkGrowlBite said...

As a supporter of the death penalty, I am also a supporter of the Law of Parties. If two robbers enter a convenience store and one of them kills the cashier the other robber should be held equally responsible and charged with capital murder. If a wife conspires with her lover to have him kill her husband, she should also be charged with capital murder.

Abolishing the Law of Parties would allow these crime partners to get off the hook of capital punishment.

Anonymous said...

I guess it depends on what you see the purpose of the Death Penalty as... Is it a deterrent to capital crimes? Because I think it would be hard to measure how many people choose not to commit a crime for fear of execution. Or is it the resignation of the state that they are unwilling to invest anything else in this perpetrator?

In the second case abolishing the Law of Parties makes sense because the accessory who did not choose to kill someone seems more "redeemable.". This would in effect be like putting down a rabid dog when you kill the killer.

I suppose as a "deterrent" the law of parties makes more sense since it certainly makes more of a statement. But I think execution as a deterrent is a pretty juvenile concept, we don't talk very openly about the people the state chooses to kill, it's more of a dirty open secret that some inmates are executed. And you can hardly say the courts are especially motivated to carry out these sentences.

Gritsforbreakfast said...

@BGB, now that we're down to 3-4 new death sentences per year statewide, virtually EVERYBODY "gets off the hook of capital punishment." Does that context change your perspective? If the death penalty is for the worst of the worst, and we're talking single-digits annually, do law-of-parties cases really belong in that category?

@2:41, because murders declined in tandem with the number of death sentences since the late '90s, and because states with active death penalties have higher murder rates than non-death penalty states, the deterrence argument is hard to make using data. Executions may make a "statement" but that statement pretty clearly doesn't deter other murders. It's more aimed at voters.

BarkGrowlBite said...

Scott, not at all. I am convinced without a reasonable doubt that the death penalty is a deterrent to premeditated murders and other killings not committed in the heat of passion. Back when I was a cop in California, we busted a lot of armed robbers who committed their robberies with an empty gun. When asked why they did not carry a loaded gun, they replied that in a moment of panic with a loaded gun, they might kill someone and they did not want to get topped (con lingo for executed). Of course that was before the era of endless appeals.

The death penalty abolitionists say that the murderers on death row and in prison prove that the death penalty does not act as a deterrent. That’s a gross con job. What they will not tell you is that countless murders are not committed because the person contemplating killing someone fears the death penalty.

And get off that 'states with active death penalties have higher murder rates than non-death penalty states' bullshit. That old con job is not worth repeating. Those stats were based on rural states like Minnesota and not on states with thickly populated urban centers. Try selling that line of garbage to the people of New York and Illinois, and to the people of California which in effect has no death penalty.


Anonymous said...

if a police officer signs a false or misleading statement after another officer shoots someone?

Anonymous said...

Did TDCJ understaffing allow rape of prison teacher? I guess the one who raped her had nothing to do with it.

Anonymous said...

Grits, you question the legitimacy of DP for the non-killer in a CP prosecution since they are not the worst of the worst. I say the punishment depends on the circumstances. If the non-killer was the mastermind, the provider of the weapons, and convinced the killer to commit the crime as well as had a substantial violent criminal record, I say maybe the non-killer should get the DP BC he probably is the worst of the worst. At the very least, I say let a jury decide if the DP is appropriate for the non-killer, which is what happened with Jeff Wood.

BGB, I think you’re pretty naive to think that countless murders are not committed BC that person contemplating the murder is concerned about the DP. IMO - and I’m in favor of DP - the only true deterrent effect of the DP is keeping the person receiving the death sentence from ever killing again.

Even so, why can’t DP be solely about punishing the offender? Does there always need to be a deterrent effect with punishment? If the people in the jurisdiction want the DP available, even if it’s in single digits annually, shouldn’t that community have that punishment option available?

Finally, about the law of parties, while it is true that some prosecutors’s use of the LOP is over the top, getting rid of LOP is short-sighted. If you assist, aid in, or encourage (or other LOP verb) a crime, all of them should be guilty of same crime. If the prosecutor is inappropriately applying LOP, then it ultimately becomes a question for the jury, which is there to keep the State’s discretionary charging decisions in check. You may not like the whole “you can beat the rap but not the ride” mentality, but that is the nature of the American justice system.

Anonymous said...

When you can convince me that Charles Manson wasn't the "worst of the worst" relative to the other members of the Manson Family who were acting at his direction, then I'll agree that the LOP isn't needed.

Gritsforbreakfast said...

@6:48, the rape victim herself blames understaffing. But I guess you don't have any respect for her opinion. Typical.

@4:30, you left out some context. I asked, in a world where we only sentence 3-4 people per death per year, should LOP cases be included. The LOP cases we're seeing in Texas - of which Jeff Wood is pretty typical - wouldn't seem to deserve it.

8:13, Manson was convicted of actually killing 2 people as well as orchestrating the killings of others. He'd have been eligible even without the LOP. False example. Try again.

BarkGrowlBite said...

@4:30, I don't think I'm being naive. At this very moment, there must be hundreds if not thousands of people seriously thinking about murdering their spouses. And there must be an equal number of people seriously thinking about killing someone for revenge or for monetary gain.

I'll grant you that not all of those people worry about the death penalty, but many of them do. And that's why I am convinced the death penalty is a deterrent to premeditated murders and other killings not committed in the heat of passion.

Anonymous said...

GFB, I actually don’t think I left out context. Your “question” is actually a suggestion or a masked opinion that a non killer capital murderer should not receive the DP. Then you apply this “question” to the Wood case to suggest that he’s not the worst of the worst when in fact you didn’t hear any of guilt and punishment evidence.

My attitude is to leave the question open for the jury. If the jury thinks life w/o parole for a capital murder non killer is more appropriate than the DP, then fine; but at least let the jury have the final say as opposed to taking away the DP as a punishment option.

BGB, while I agree that there are husbands wanting to kill their wives (and vice versa) or people wanting to hire someone for murder, it’s more likely that these spouses or murder solicitors are more concerned about getting caught and then going to prison, as opposed to fear of DP. They’re generally afraid of the public humiliation (e.g., my parents will be destroyed or my church friends will see me as a criminal) and then the life of incarceration which follows (like they see on tv).

4:30

Dallas Legal Aid said...

Grits, why bother Lynn Garcia with such trivial questions when the FSC has so many other complaints that they are busy ignoring?

According to the 6th Annual FSC Report, at least 30+ self-disclosures from crime labs have been ignored to date. No investigation, no FSC Report. Just a rubber-stamped "No Further Action". (For the regular non-lab disclosures, there's tmtc.)

I for one would like to know what in-lab incidents were so severe that the crime labs felt compelled to disclose "negligence and/or misconduct" to the FSC. I would like to know what the FSC did as part of it's minstrel duties to ascertain the damage done to the evidence, what the remedy was, and how is the negligence/misconduct prevented from reoccurring. Were all the attorneys within the crime lab service area notified of the Brady material from the lab?

I'm guessing no...because she lacks understanding of 38.01 and the Attorney General's Opinion KP-0055.

It would be funny if it weren't so sad.

Anonymous said...

re: Maybe they'll listen if they Rangers tell 'em

"Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School..."

Because they did such a whiz-bang job at investigating the Austin Police Dept. Crime Lab in 2010, right? They covered the spectrum from incompetence to cover-up for the DNA lab's poor scientific skills, only to have the crime lab shut down the DNA unit in 2016. Bravo.

Let's save some time and money by shutting down GSS now, because that is what is going to happen 5 years from now when it's discovered that the Texas Rangers fabricated documents and botched yet another investigation.

Anonymous said...

What is Dallas Legal Aid? I can’t find a website.

Anonymous said...

@Anonymous 7:37-

Call 1-888-296-4232, and ask for the person NOT doing their job.

Better yet...call Senators Hinojosa (512)463-0120, Whitmire (713)864-8701, or House Reps. Moody (915)751-2700, Smithee (806) 372-3327, or Canales (956)383-0860 and ask them why the Texas FSC is so lackadaisical and unable to abide by TCCP 38.01 give the clear and unambiguous language? For a scientific organization responsible for crime lab accreditation in Texas, NOT understanding basic protocols is NOT conducive for forensic reform.

Anonymous said...

@07:37 -

Sorry. I though "Dallas Legal Aid" was an organization that might be able to help me. I didn't realize it was just a pen name. I thought it had more significance than that.

Anonymous said...

@DLA,
You twice criticize Lynn Garcia and FSC, but you don’t give any specifics about their “lackadaisical” failure to abide by 38.01 or lack of understanding of KP-0055. If you truly knew all the things Lynn and her tiny staff do, you wouldn’t be critical. But then again, you might because you’re just that way.

No one needs to stand up to defend Lynn Garcia because she is an amazing attorney who works her ass off within the confines of her statutory mandate. Anyone who has dealt or had any contact with Lynn knows her dedication to the Commission and its mission.

So DLA, please give specifics of FSC’s failures. How about identifying their noncompliance with 38.01. Or explain your understanding of 38.01 and how FSC lacks the same understanding of that statute. Or did you just read the Annual Report and decide to just bitch about her based on that?

I would imagine you could request through a public information request to FSC to find out specifics about FSC’s involvement in the lab self-reports. Or you might even consider calling Lynn, if you truly care about the truth as opposed to just wanting to bitch.

Anonymous said...

About the rape story:

"It doesn't surprise me that an incident of a sexual assault occurred against staff," he said. "Staff are sexually violated just about every day as far as inmates exposing themselves."

Anonymous said...

I'm not part of DLA, but I think if you want specifics...just by reading DLA's comment (@11:20) you could start by confirming that, at least for the lab self-disclosures listed in the most recent Annual Review, the FSC declared "No Further Action" numerous times without any kind of actual investigation or full report from the FSC. TCCP 38.01 is exquisitely specific regarding the definition of an FSC investigation (shall, not may) and the requirements of the subsequent written reports (shall, not may). The whole point of an independent investigation is to confirm that the crime lab didn't downplay the problems self-reported and that the remedy was thorough enough to prevent replication and that the public (i.e. defendants) were notified of the problems and solutions that may affect their cases. Crime labs are notorious (well deserved) for not being transparent with their negligence or systemic problems. Hence, skepticism is absolutely necessary, and a requirement of an independent investigator. The public shouldn't have to resort to Open Records Requests to get the information from a "No Further Action" that would otherwise be included in a Final Investigative Report posted on their web page for everyone to digest.

Also, to have an understanding of KP-0055, you would have to know it actually exists. Most of John Q. Public doesn't know it exists. This most recent FSC Annual Review mentions nothing of KP-0055. It is strangely absent. Attorney General Opinions GA-0866 (2011) is mentioned and KP-0127 (2017) is mentioned, but not KP-0055. But then again, this KP-0055 opinion was dated January 2016, so it should have bee mentioned in last year's FSC Annual Review. Guess what? It wasn't. Is this omission just an oversight, or something more legally problematic?

For the large public population who don't know that KP-0055 exists, in 2015 "The Texas Forensic Science Commission ("Commission") asks [The Attorney General] about its responsibility to "notify relevant parties of exculpatory, impeachment or mitigating information" [which the FSC receives contained within submitted complaints and allegations] under the Code of Criminal Procedure."

This information is also know as Brady Material, especially if the info comes from inside the crime lab. Defense Attorneys need this information. Prosecutors are obligated to provide this information to Defense Attorneys.

The Attorney General responded, "article 39.14(h) imposes no notification duties on the Commission...We can advise you, however, that the lack of a duty under article 39.l 4(h) does not negate the requirement in article 38.01, §(4)(e) for the Commission to make its completed investigation reports available to the public."

I'm fairly certain that a "No Further Action" statement from the FSC does not satisfy this requirement. KP-0055 is missing, and maybe for a reason.

Arguably, the FSC has a plethora of Brady Material by way of submitted complaints. They just haven't acknowledged it through investigations and public reporting. It doesn't bode well that the General Counsel of the FSC has failed to include a rather important legal requirement within the responsibilities of the Commission, and she has failed to enforce it within the organization. If Lynn Garcia wrote the FSC Annual Review, which she probably did, she failed to include KP-0055 (maybe for a reason).

This is fun. Shall I continue?

Anonymous said...

@9:06 (again)

Let's ask the basic question of, "What are the metrics to base Lynn Garcia's success as a General Counsel?" Perhaps we should look at TCCP 38.01 where it describes her duties...???
Go figure, her position of General Counsel does not exist in 38.01. The Texas Legislature did not intend for her position to exist. It was not needed.

Her position was fabricated in 2010 by the since-rejected Nominee FSC Chair John Bradley because the FSC (comprised mostly of non-lawyers) early on was clueless about Texas law related to public open meetings, closed sessions, document retention, open records requests, conflict of interests, etc. Although, it is questionable as to why the two appointed lawyers to the Commission (an actual requirement of TCCP 38.01) didn't understand these basic laws or couldn't enforce the laws themselves within the organization. Even Grits questioned the need to spend an already limited FSC budget on the salary of another full-time administrative position when admin assistant Leigh Savage was doing just a fine job keeping things organized. In addition, at the time, Attorney Barbara Dean of the Texas Attorney General's Office provided (unpaid) the FSC with legal guidance for their actions and decisions.

Lynn Garcia has taken leadership of an Commission that she's not really part of. Why is the Chair of the FSC not taking a greater command of the organization? It is, after all, a "scientific" Commission, not a "legal" commission. And the appointed scientists of the Commission RUN LABS, MOSTLY CRIME LABS. Collectively, the 7 appointed scientists have decades of experience in forensics field. They know what the specific shortcomings are firsthand for each of the scientific disciplines, accreditation audits, certification, analyst training, analyst testimony, adherence to protocols, etc. The Forensics Community has problems with all of these. What was Lynn Garcia's scientific background prior to getting the job? She had a past life in big law helping corporate clients involved in securities and white-collar cases. Has she ever worked in a crime lab? Analyzed physical evidence? Testified as an expert? Unfortunately, it seems only recently (APD DNA Unit shutdown, 2016) that she figured out that lab accreditation audits may be less-than-efficient or forthcoming at identifying systemic lab problems (such as math, statistics, rampant contamination). The rest of the Commission has known this at least since the 2002 Houston Police Dept Crime Lab failure.

Speaking of, another specific example of 'lackadaisical" ...the APD DNA Unit audit and closure. What more needs to be stated other than the FSC was told about the numerous problems in the lab in 2010/11, they refused to perform an independent investigation at the time, and they created their own report regurgitating the (now known) fraudulent info from the Texas Rangers investigation and the APD's own "investigative" reporting. This cluster-oops from the FSC will cost the taxpayers upwards of $14 million dollars to assess the potential damages and extends turnaround times for DNA testing results as the biological evidence is shuffled from the closed APD Unit to other Texas crime labs in an already backlogged system. Nobody was fired for creating and propagating false and fraudulent reports from the Rangers, the APD, or the FSC. Nobody was disciplined for costing the taxpayers an additional $14 million dollars.

But it's not all teardrops and rain. Guess which FSC member benefited? The Chair Dr. J. Barnard. His lab in Dallas County got the additional money to perform DNA testing from the lab his Commission helped shut down. Hmmm. Ethics are not so tricky so long as you ignore them.

Want more? Because I have more...

Anonymous said...

@7:26/@7:43 -

It takes a real talent to use so many words and make so few truthful points.

Regarding the duties of the TFSC under TCCP 38, the Commission does not have the responsibility to investigate all complaints. It has the responsibility to investigate those complaints "that would substantially affect the integrity of the results of a forensic analysis conducted by a crime laboratory."

The legislature intentionally and explicitly did not require the Commission to investigate insubstantial, or patently frivolous, or obviously unfounded, or goofy-on-the-surface complaints.

That is the truthful reading of TCCP 38 that seems to have escaped you.

Anonymous said...

@8:24-

Where in 38.01 does it state that? Where does is state that the Commission may investigate those complaints "that would substantially affect the integrity of the results of a forensic analysis conducted by a crime laboratory."

The word shall is used.

You need to re-read 38.01. The language is plain and simple.

Anonymous said...

Need more examples of a lacksadaisical TFSC?

Did you know that in May 2014, the Austin DPS Lab Toxicology Section reported it had been quantitating drug amounts incorrectly in blood samples? Apparently 123 cases were affected, but there's no information within the self-disclosure from DPS indicating...

...How long this problems was occurring, when did the problems start, what specific drug was being miscalculated?

...Were these problems from a single identifiable analyst, many analysts, or a systemic problem because Management wrote the protocols incorrectly and the improperly trained lab analysts were just following the written protocols? Was this a problem that was reported (perhaps many times by the lab analysts) to the Management and summarily was ignored?

...How did these faulty lab reports pass technical review (i.e. multiple analysts reviewing the data)? Was it a problem with faulty instrumentation, and how did the instrument pass QC? Were the QC reagents at fault? Were the protocols scientifically validated properly?

...How many cases (defendants) went to trial with these false quantitiations? How many lab analysts/expert witnesses testified falsely (knowingly or unknowingly) about the incorrect drug quantitations? How many guilty pleas bargains were obtained because of these false lab reports? How many cases did NOT go to trial because of this problem?

...Why did the accreditation auditors not find these problems (DPS was the auditor!)? Have the false audit reports been corrected with an addendum? Were corrected lab reports provided to Defense Attorneys?

...What was the root-cause analysis of the problems? How do we know if all the problems were addressed? How do we know if there weren't associated problems with similar drug tests?

The Public will never know because the TFSC did not verify the information as reported, did not perform an investigation, did not ask questions of the lab manager or the analysts, and did not write a report for public consumption. The TFSC is satisfied with not knowing the answers.

It's a good thing that Pat Johnson wrote the self-disclosure "Notification of Corrective Action-TXDPS Austin ALI-051-T" to Lynn Garcia, because Pat Johnson is now an FSC Member. Maybe he can address these questions now.

Self-Desclosure by APD/DPS
https://anonfile.com/j11fq4dcb4/ALI-051_Disclosure.pdf

Disposition by FSC
https://anonfile.com/h11cq0d9b5/L_to_Johnson_NFA_08072014.pdf

More on the way...

Anonymous said...

Surely there can't be other examples of a lackadaisical FSC.

Yep! Here's yet another example...

Part 1

Did you know that in July 2007 a lab analyst at the Southwestern Institute of Forensic Sciences (SWIFS) reported the discovery of rampant blood contamination inside the lab? And did you know that the SWIFS lab management implemented a lab cleaning protocol, but despite best efforts, there was continued blood contamination events found within the lab? And did you know that the SWIFS lab management, contrary to best practices, DID NOT perform DNA testing on the discovered blood contamination to differentiate between evidence blood that originated at the crime scene versus blood originating within the lab?

Of course you didn't.
Because SWIFS Lab management did not report the contamination events to the accreditation agency (ASCLD/LAB).
It wasn't reported to the TxDPS.
It wasn't reported to the FSC.
In fact, most of the SWIFS lab analysts didn't know of the problems because SWIFS lab management didn't create the documentation of the numerous contamination events for another 16 months. This was because the lab was approaching the re-accreditation audit. And in no way was the SWIFS lab management going to reveal that they could not contain or identify the source of the blood randomly spreading through the lab and most likely contaminating evidence. The catastrophic discovery would have closed the lab until a source of blood contamination could be found. Lab Management's hubris supersedes wrongful convictions due to contamination inside the lab.

This would have been necessary information (Brady Material) for Defense Attorneys and Prosecutors to have known 16 months prior to the creation of the document (Corrective Action Request, CAR) describing the various contamination events. Then again, there's no indication that Attorneys were notified AFTER the creation of the CAR...

Anonymous said...

Part 2

However, in line with the curious documentation practices of SWIFS lab management (in addition to the 16 month delay), the dates of the identified contamination events were not included in the CAR. No case numbers, no items of evidence listed. No indication of how many times blood contamination was found after the discovery. And, given that the source was never identified and not rectified, these blood contamination events could have been occurring for years, or decades, before it was discovered by a lab analyst in 2007. SWIFS lab management performed no retrospective analysis on prior items of evidence, DNA testing or otherwise...because an official SWIFS lab report identifying blood on evidence (contamination or otherwise) can still coerce a guilty plea from the innocent.
(Alternatively, it can confound police investigators who may exert precious time, money, and resources pursuing the identification of these source of blood on evidence when the blood was actually not part of the crime scene but contamination inside the lab.)

Negligence is not having lab protocols written to avoid contamination events.
Misconduct is not performing DNA testing to identified contaminated evidence, not creating the documentation for 16 months, and not self-disclosing these events to the FSC.
Illegal Actions are the secreting this Brady Material from Prosecutors and Defense Attorneys for criminal proceedings.

There was no self-disclosure by SWIFS Lab Management to the FSC per the requirements of 38.01.
However, this CAR was brought to the attention of the TxDPS and FSC in 2010 by a
third-party.
The FSC still did nothing. The FSC did not even acknowledge the existence of the CAR.
The TxDPS still did nothing. The TxDPS, also, did not even acknowledge the existence of the CAR.

Which is why Defense Attorney and Prosecutors know nothing about it...which is why YOU (The Public) know nothing about it.

Dr. Jeff Barnard is the Chair of the FSC. He is also the Crime Lab Director of SWIFS. He knows all about it, but will say nothing.


SWIFS documentation describing uncontrollable and unidentified DNA contamination events -- DNA testing not mentioned:
https://anonfile.com/G4ber3d7b0/CAR_07-007_Trace_Evidence_Lab_contaminated_with_blood.pdf


The ultimate in lazy is coming up...

Anonymous said...

@8:24 / O' Clueless One,

For your limited vocabulary, you should check out the following. You might learn something.

The definitions as referenced in Texas Government Code 311.016
Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
...

The TFSC has a ministerial duty.

The real talent is to be oblivious to the English language and fabricating your own definitions to suit your own needs.

April Cunningham said...

Does the district attorney office have the authority to make a policy that instructs the assistant district attorney to exclude black or any minority jury selection panel?

Is an indictment unlawful if it is not signed by the grand jury forman nor endorsed by the district attorney (no signature)?

Anonymous said...

@6:43 -

The operative phrase regarding complaints in the TFSC’s authorizing legislation is “...that would substantially affect...” The adverb “substantially” here authorizes the Commission to evaluate complaints for substance prior to initiating an investigation. Complaints that fail to meet the threshold of “substantially affect...” need not be investigated. If you object to what the legislature has legislated, you need to take it up with the legislature.

Anonymous said...


"Substantially" has a legal definition? Where? What is the legal definition of "substance" per 38.01? Has the FSC ever dismissed allegations stating that the allegations would not "substantially" affect a criminal proceeding? Nope. The Commission itself does not use the word "substantial" to define it's responsibilities, stating in the 2017 Annual Report page 5, "The Commission is also charged with investigating allegations of professional negligence or misconduct against accredited crime laboratories involving accredited forensic disciplines." There is no mention of any "substantial" threshold.

"Substantially" is a subjective word that will have different meanings for each of the Commissioners, which is why it is NOT the operative phrase. And it is nearly impossible to ascertain if a complaint would "substantially" affect the outcome of criminal cases without actually performing an investigation into the depths of the allegations. (Rampant, undocumented, uncontrolled, unidentified blood contamination in a crime lab occurring over a decade comes to mind.)

By assuming that the Commission does not have to investigate those claims that do not meet your so-called threshold is to imply that the preceding "shall" in 38.01 is actually "may", which it clearly is not. The legislature purposefully differentiated between those allegations that "shall" be investigated (see Sec.4(a)(3)) to those allegations that "may" be investigated (see 4(a-1)). More to the differences, for those allegations that "may" be investigated there has to be a majority vote by the Commission to proceed. No vote is necessary for those allegations that "shall" be investigated given the imposed duty requirements of "shall".

If the FSC was acting scientifically, they would recognize that "evaluating complaints for substance" introduces bias (either consciously or unconsciously) by those Commissioners that may/may not want to investigate a particular complaint -- perhaps a complaint against his/her own lab, or a complaint against a crime lab that he/she has a financial contract, or a complaint against a rival competitor. (Again, I can understand why a particular Commissioner may not want to investigate allegations of rampant, undocumented, uncontrolled, unidentified blood contamination occurring over a decade in his lab.) Sure, there are Conflict-of-interest laws, but are they enforceable against a Commission that has essentially no oversight, either externally or internally (Lynn Garcia's failed job)?
(see related Grits post on the "Parole Board cannot be made to follow statutes" http://gritsforbreakfast.blogspot.com/2017/12/cca-parole-board-cannot-be-made-to.html)

Besides, if the Commission felt that, after an investigation, that the allegations are not "substantial", they can say so in the written report with a scientific explanation that they "shall" provide to the public per Sec4(b)(1). Much like a prosecutor is not able identify what is, or isn't, Brady Material pre-trial, the Forensic Science Commission is not able to identify complaints that would, or would not, substantially affect the integrity of results of a forensic analysis conducted by a crime laboratory without a thorough investigation first.

Or, we could always revisit the 2010/11 Austin Police Department DNA Unit allegations that the FSC didn't think were "substantial".

How'd that work out?

Anonymous said...

@1:14 -

The legislature enacted the bill authorizing the TFSC using the language “substantially affect,” and giving the Commission the authority to determine what “substantially affect” means. If that bothers you, take it up with the legislature.

Anonymous said...

@3:22-

Reiterating your argument does not make it more true.

You have failed to provide a legal definition of "substantially". Whereas "shall" and "may" have legal definitions. Ergo, you lose.

The FSC has never rejected a complaint for not being "substantial". You are making an argument that not even the FSC agrees with.

Besides, the FSC already demonstrated that it does not know what "substantially" means.

Perhaps you should take it up with the Attorney General.

Anonymous said...

@5:04 -

By “take it up with the Attorney General,” I presume that you mean that I should request an AG opinion. That is a curious suggestion. Since I am in agreement with how the Commission is interpreting its responsibilities to conduct investigations of complaints under the Texas Government Code, there is no obvious reason for me fo request an AG opinion on the matter. You, however, being in disagreement with the Commission’s interpretation of its responsibilities, would appear to have an excellent reason to request an AG opinion. The ability of anyone to ask for an AG opinion on anything is a great thing. I look forward to reading both your request and the AG’s response. They both should be highly illuminating.

Anonymous said...

@6.31-

I'm not sure that just anyone can ask.

Sections 402.042 and 402.043 of the Government Code list the officials who are authorized to request formal attorney general opinions on questions of law. The attorney general is prohibited by statute from giving a written opinion to anyone other than an authorized requestor.

As John Q. Public, I'm not authorized requestor, nor do I have easy access to an authorized requestor. Otherwise, I would.

I've written to the TFSC with my questions, concerns, and opinions. They have not responded or acknowledged receipt. I'm fairly certain they don't want to know the answer and would rather interpret the law as they always have.

Anonymous said...

@7:10 -

If what you alleging is correct, then communication with the AG is called for. I believe that your interpretation is incorrect, and I would expect that the AG would also find it to be incorrect. But you should definitely communicate your concerns to the AG.

Anonymous said...

@4:25-

Would the incident described at 7:52PM...

https://anonfile.com/G4ber3d7b0/CAR_07-007_Trace_Evidence_Lab_contaminated_with_blood.pdf

...constitute "substantial"?

The FSC has this doc, but did not investigate. As far as we know, the lab is still having uncontrolled blood contamination events inside its doors. But I suspect the FSC first recognized (pre-investigation) the potential to devastate a crime lab and upset decades worth of convictions if the lab was investigated. So, it does not investigate and buries the doc away from the public.

Anonymous said...

@2:36 -

@4:25 here.

You have demonstrated to my satisfaction that you are unwilling or unable to accurately and objectively represent the clear and plain meaning of Texas code as it applies to the responsibilities of the FSC. At this point, I have to assume that you are going to be consistent in your unwillingness or inability to accurately and objectively represent any and all matters pertaining to the Commission. Like I said before, communicate with the AG. And sign your name to it, if you have any confidence at all in what you are saying. Then let us know how that works out for you.

Anonymous said...

Have you been paying attention to the information presented in these comments?
Have you read TCCP 38.01?
Have you read the Attorney General's Opinion KP-0055?
Have you read the Attorney General's Opinion GA-0866?
Have you read the Policy and Procedures for the FSC?
Have you read any of the Annual Reports of the FSC?
Have you read any of the MSM news regarding the activities of the FSC in the past 10 years?

Can you read?
You have demonstrated to my satisfaction that you are unwilling or unable to read.

I can explain it to you. But I can not understand it for you.

Sigh.

Sally J said...


@10:43-

Ignore 4:25. They're nothing but a troll.

Anonymous said...

Ultimate in lazy.

From 2005-2017, the Texas DPS Crime Labs (in total) had more than 2500 "Quality Incidents" documented. ("Quality Incidents" are documented when any aspect of the testing and/or calibration work, or the results of the work, do not conform to it's own procedures. i.e. "oopsie-daisies", mistakes, errors, negligence, etc.)

Their Austin Lab had more than 650 "quality Incidents"...more than half of those incidents were in the DNA Unit, and most of those were due to self-contamination by the lab analysts or unknown origins.

The Houston DPS Crime lab had over 600 "Quality Incidents". Over 400 were in the DNA Unit. Again, these were mostly DNA contamination from the analysts or unknown origin.

There has only be 14 self-disclosure from DPS labs since 2005.

Only 2 have been accepted for investigation by the FSC.

The remaining were classified as "No Further Action".

Anonymous said...

@9:43 -

If you believe these allegations (in my opinion aspersions is the more correct word) have merit, communicate them to the AG.

Anonymous said...

For the logic-impaired SFB 7:25/7:07/4:25-

That word doesn't mean what you think it means. The 2500+ "Quality Incidents" are posted online: https://www.dps.texas.gov/CrimeLaboratory/qualIncidents.htm
These are facts, not aspersions.

And,
https://www.texasattorneygeneral.gov/faq/what-the-attorney-general-can-do-for-you

"Under Texas law, however, we cannot give you legal advice or answer questions about particular laws or statutes."

"I have a complaint about another state agency. Can your office contact the agency on my behalf or take action against it?

The policies, procedures and actions of other state agencies are overseen by the administrators of those agencies and are not subject to review by our office. You may want to continue working with the agency in question regarding your complaint. Many agencies have ombudsmen or complaint resolution procedures available to Texans."


Please, 7:25, the next time you have a thought...let it go. Better to remain silent and be thought a fool than to speak out and remove all doubt.


Anonymous said...

@3:46 -

I had presumed that your "concerns" about the TFSC were serious enough to actually do something more than hang out on chat boards disparaging people anonymously. You certainly give the impression that these "concerns" are not merely concerns about effective policy, but actually concerns about illegal activities, which of course would need to be reported. It is never wrong to report illegal activities to the AG. Like I said, I believe you are incorrect - woefully incorrect, actually. And I believe that the AG would also tell you that you are incorrect. But that is just my opinion. And I am all for concerned people expressing their concerns in meaningful and effective ways. If the AG doesn't suit your fancy, certainly state legislators and even the governor's office would be other avenues for effective expressing of concerns. Again, I wouldn't expect them to agree with you, because I think you are woefully incorrect. And I would expect elected officials would also tell you are incorrect. But, even incorrect people get to communicate with elected officials. So I say, have a go at it. Like I said, anything along those lines be a more effective way to approach your "concerns" than disparaging people anonymously on chat boards. That is, if you have an interest in that sort of thing (i.e., effective expressing of concerns).

Cheers.

Sally J said...

at 9:05-

You have yet to demonstrate that the facts presented are "untruthful".
You have yet to present a single logical counterpoint to the facts presented.
You've presented no references of any kind to support your opinion, other than repetition of your own opinion.
And you seem to have a tenuous grasp of the facts presented.

Lynn, Stop Trolling.