Tuesday, November 01, 2011

New forensic commissioners appointed, but agency jurisdiction too limited

Gov. Rick Perry issued four appointments yesterday to the Forensic Science Commission. Reports the Fort Worth Star-Telegram:
Assistant District Attorney Richard Alpert of North Richland Hills will replace former board Chairman John Bradley, district attorney of Williamson County. Bradley's controversial appointment two years ago gave rise to criticism that the governor had hand-picked the prosecutor to block findings that Texas had executed an innocent man.

While Bradley was a lightning rod on the commission, Alpert said he is "hoping to be more weather-resistant."

Also stepping down from the panel is Lance Evans, a Tarrant County defense attorney appointed in 2009. He said this change will likely not make waves. "It's not going to have near the turmoil this time as it did last time," Evans said.

Evans is being replaced by Robert Lerma, a Brownsville attorney in private practice and former president of the Texas Criminal Defense Lawyers Association.

The Tarrant County medical examiner, Dr. Nizam Peerwani, appointed to the commission in December 2009, was reappointed and will continue to serve as chairman for "a term to expire at the pleasure of the governor," according to Monday's announcement.

The other new member is Dr. Vincent Di Maio of San Antonio, a former chief medical examiner for Bexar County. Di Maio replaces Dr. Norma Farley, chief forensic pathologist in Hidalgo and Cameron counties.
Coupla thoughts here: First, I'm glad to see Dr. Peerwani reappointed as chair, which signals the FSC likely won't radically change direction the way it did after John Bradley's ascension to the job.

That said, it's rather odd that two of the FSC members are medical examiners when the statute specifically excludes autopsies from the Commission's jurisdiction. I continue to hope that the Legislature in 2013 will expand the FSC's authority to include MEs and other forensic fields excluded under the statute and an Attorney General's opinion (pdf) issued this summer. Legislation to by state Sen. Juan "Chuy" Hinojosa to expand the FSC's jurisdiction came close to passing earlier this spring; the Senate bill died for time awaiting a vote on the House calendar when the session came to a close.

Also, though I've nothing against the new appointees, I'd like to see more consistency on the commission's membership instead of replacing folks every two years. These are complex topics on which it takes time to develop expertise. Indeed, FSC investigations so far have all taken longer than two years to complete. For those reasons, IMO the Lege should expand FSC terms at least to four years, preferably to six.

It remains to be seen what the Commission will be doing going forward now that the Attorney General has shut down all their active investigations. One situation likely to move to the front burner involves allegations by a national accrediting agency that controlled substance testing at the El Paso crime lab suffered from incompetent analysts; inadequate supervision; overstating the thoroughness of testing; failure to follow their own laboratory policies; failure to base laboratory procedures on known standards; inadequate intensity on their mass spectrometer; failure to document testing/calibration of instruments; improper access to the lab by police officers and other department personnel; and failing to require a written test to determine labworker competency. The national Innocence Project has filed a complaint asking the FSC to independently investigate.

Also, though the AG opinion precludes taking up new investigations in older cases or in non-accredited disciplines, the FSC report (large pdf) on the Willingham/Willis cases urged a "retroactive review" of old arson cases, urging the state fire marshal to formally adopt a "duty to correct" past errors and a "duty to inform" defendants when flawed science was used to secure their conviction. Dr. Peerwani has been working with the State Fire Marshal's Office and my employers at the Innocence Project of Texas to develop a methodology and protocols for such a review.

To truly reach its full potential, though, the Forensic Science Commission needs the Legislature to clean up its jurisdictional authority. They also need for politicians, particularly the Governor, to forswear interference in their work long enough for the FSC to complete investigations, which after the AG opinion must now all begin again at square one. The Commission's charge - to investigate flawed science used in criminal courtrooms - is particularly timely given the national re-evaluation of various non-science based forensics. But so far the agency has been blocked from reaching its full potential, and until the Lege expands the FSC's jurisdiction, I fear commissioners will continue to find themselves unduly hamstrung.


A Texas PO said...

Your suggestions on the length of term and expansion of focus for the FSC make a lot of sense. Texas has held on to this hatred of government (at least in statute, not in practice) for far too long.

Anonymous said...

Dr. Peerwani didn't make his money bucking the system, far from it.
He was given a platform and a forum to do the right thing and he shrunk from it. Par for the course for the good doctor.

Gritsforbreakfast said...

8:32, what are you talking about? Be specific. What would you have had him do differently on the FSC? He's a night and day difference from John Bradley.

Anonymous said...

One area that badly needs to be added to the FSC's job description is junk science mental health experts - Dr. Quijano, Dr. Coons et al. have made lots of $$$ over the years peddling their unfounded opinions, especially in death cases but in non-capital cases also. It's well past time for their work to be scrutinized by actual scientists.

Anonymous said...

Honestly, are you serious, John Bradley is where we set the bar?
I know you can do better than that.

Have you followed Peerwani and his contracts with Tarrant county at all?

To call him a medical examiner is a lie. His whole operation is a conflict of interest. It's pretty clear in his rulings of who he works for.

Anonymous said...

I am mystified at what 8:01 is trying to get at. Clearly, Peerwani is a competent forensic medical examiner. He is not a forensic scientist, but he manages an organization that includes forensic laboratory services and therefore has a professional understanding of those disciplines. For his actions on the commission to date, he is clearly a better choice to head the commission that any lawyer would be. For goodness sake, the commission is supposed to evaluate issues of science. Why are there lawyers on the commission at all.

My biggest beef with the commission has to do with the complaint process. Anonymous complaints ought not to be allowed, and it is absolutely goofy that the rules of the commission would permit and even encourage these sorts of complaints. This is not a reasonable due-process approach. To set in motion a complex investigative process without considering the credibility of the individual making the complaint is goofy.

For instance, everyone knows of the problems and injustices created by Fred Zain and Joyce Gilcrist and others of their ilk. Those are exactly the sort of people that you would have hoped would have been identified early on as problem employees, and then gotten rid of in a way that would have prevented them from being hired by another laboratory.

But today, if a laboratory were to identify someone like Zain or Gilcrist - someone obviously incompetent - and then do the right thing and get rid of him, then all that ex-employee would need to do would be to file an anonymous complaint with the TFSC, and then sit back and watch everyone jump through hoop after hoop after hoop. And all because of the anonymous nature of the complaint, when a cursory evaluation of competency and background of the complainant would have easily allowed the complaint to be dismissed at an early stage.

Anonymous said...

Well looks like Dr. Peerwani is now finding new avenues to mint more dollars from Uncle Sam -- this time its funding for a charter school