Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.