Confronting SCRAM

With the US Supreme Court this week revisiting at oral argument the question of requiring confrontation at trial for lab reports (i.e., giving the defense the right to cross-examine the lab worker), I found this anecdote from DA Confidential a particularly compelling example of why the right to vigorously question forensic evidence is important, regardless of complaints about "inefficiency" and cost. The case involved a defendant required to wear a SCRAM device, which is an anklet commonly used for DWI probationers that purportedly monitors blood alcohol levels. As DA Confidential tells it:

Where was I? Ah yes, the gentleman wearing a Scram. I'll call him Mr. Smith. So his bond was revoked and he was put back in jail when his Scram showed he'd been drinking just before Christmas. He told his lawyer (a young man I checked with today, and who was too modest to allow me to use his name, so I'll call him Mr. Jones*) that he'd not been drinking. Insisted, in fact, that he'd not been drinking. So, doing his duty, Mr. Jones went before the judge and tried to explain that there'd been a mistake. So the judge, wanting to be fair, had the people responsible for the Scram come into court.

They showed him their proof, a print out of a black-and-white graph.

On that graph were two lines, one showing whether the Scram had been tampered with, one showing whether Mr. Smith had been drinking. Both lines spiked. Thank you Scram people, Mr. Smith stays in jail.

But Mr. Jones wasn't satisfied. Presumably because his client was less than satisfied and, oddly in the face of technical and scientific evidence, still claimed to have been at work and not drinking.

So Mr. Jones went back to the Scram office and obtained another copy of the graph. But he made to sure to get a print out in color, not just a photocopy. Lo and behold, the color graph contained three lines (as opposed to two), each a different color:

• one showing whether Mr. Smith used alcohol
• one showing whether Mr. Smith tampered with the Scram
• one showing Mr. Smith's body temperature

The spikes were in the bottom two lines, the ones showing body temp and tampering. The line showing his alcohol use was a flat-line at the bottom of the graph, and had been mistaken by everyone as the baseline, the line you'd draw at the bottom of every graph.

Ooops. Mr. Smith had not, it was now clear, used alcohol.

But that still left the tampering spike. Well, the ever-diligent Mr. Jones obtained the second page of the Scram report, which showed examples of spikes when the Scram had aluminum shoved under it, a wet cloth stuck under it, and when a sock got stuck under it.

Guess which it was? Right, the sock.

Finally, Mr. Jones obtained proof from Mr. Smith's employer that he'd been at work when he said he had. Even better, the hours he'd been at work were almost exactly the hours his sock had messed with the Scram.

Result: the judge commended the defense lawyer on his excellent work and politely requested the presence of the Scram people. I was not privy to all of what he said to them but I do know that they accepted responsibility for the mistake and it, hopefully, won't happen again.

As our correspondent notes, that was an especially fine piece of lawyering by a fellow later identified as Matt Dorsen, who works for lawyer Steve Lee. But the questions raised by the example have broader implications than just for this single defendant.

In how many previous cases, one wonders, have SCRAM employees misinterpreted a black and white graph to falsely accuse someone in court? How often has their word been taken over a defendant's, even in the face of adamant denials? Probably quite regularly. That's clearly what was happening here before the defense attorney's exceptional efforts. Will anyone now go back and look to see if something similar might have happened in past cases? No way. The judge just gave company officials a good talking to in private and the county will continue to use the device.

Cases like this show why, even when mistakes are discovered, we can't necessarily rely on judges or prosecutors to vet such forensic technologies properly - they don't have the knowledge or resources to do so and must rely on others to ensure they're not making decisions based on junk science. After all, as Williamson DA John Bradley pointed out to the House Criminal Jurisprudence Committee earlier this week, the reason they all went to law school is that they weren't any good at math or science.

That's why there must be an explicit right to confront forensic evidence and those who come up with it at the level of detail exhibited here, or else an affidavit purporting to interpret evidence becomes precisely as credible as the piece of paper which reads only "Trust us, we're the government." Misreading the graph because somebody was too cheap to use a color printer sounds like a segment out of Reno 911!, except this was a real defendant who a Travis County court tossed in jail over the error. I hope the guy didn't lose his job.

This SCRAM device, in particular, may not be ready for prime time, according to a recent story at The Crime Report:

many everyday products, such as hairspray and household cleaners, contain a type of alcohol that is detected by the bracelets. Exposure to large amounts of those products could trigger the monitor, leading some critics to charge that they produce false positives. Failing a test can mean being sent to jail.

“The problem is distinguishing the alcohol,” said Michael Hlastala, a professor of physiology at the University of Washington who has testified in several court hearings against the accuracy of SCRAM. “They don’t have a good way of separating out interference from drinking alcohol.”

“The device went to market before adequate scientific work was done. There are problems that have not yet been addressed experimentally,” he said.

Courts have yet to seriously address the reliability of SCRAM technology, according to The Crime Report:

Though the devices are widely used, it appears only a handful of cases have called their reliability into question. Kenneth Cooper claims in a lawsuit that he was jailed for 17 days in Henderson, Nev., based on several erroneous readings from his SCRAM monitor, which he was forced to wear after he pleaded no contest to driving under the influence. His attorney, James Dilbeck, said the time it takes for AMS to receive the data and contact law enforcement prevents wearers from effectively challenging what may be false reports.

“It sends a silent signal, and then a few days later someone comes and picks you up. By then you have no way to defend yourself other than your word,” he said. “This is an unregulated service, and judges are taking as gospel what these things report. And you cannot defend yourself. I think its garbage.”

Outside the courtroom, says Crime Report, "SCRAM has not been widely tested in independent, peer-reviewed studies. But in the testing that has been done so far, the devices have received mostly positive marks."

I don't know enough about the technology to assess its accuracy, but the story from Mr. DA Confidential doesn't inspire confidence. It does make me confident, though, that SCOTUS decided the Melendez-Diaz case properly last year when they found that defendants had the right to cross-examine lab workers whose reports are presented as evidence at trial. Without that right, in this instance Mr. Dorsen's client would still be sitting in the Travis County Jail based on a clumsy (and perhaps common) forensic error.