Tuesday, July 31, 2012

Does Tarrant ME deserve praise following FSC 'professional misconduct' finding?

The Fort Worth Star-Telegram today has a story on drylabbing at the Tarrant County Medical Examiners office and recent findings of professional misconduct by the Forensic Science Commission, which Grits reported last week. The FSC had commended the Tarrant ME for self reporting, however:
Critics, including some of the nation's forensic scientists, say "not so fast."  
"They are going to do a commendation to the lab for doing its job -- for doing the bare minimum?" said Amy Driver, a forensic scientist in Washington, D.C., who hosts a blog on the forensic science community.

A deeper examination is needed because the findings call into question the serologist's previous work, they said.

When someone has done something "grossly dishonest,'' said Maine forensic scientist Thomas L. Bohan, "you have to really suspect everything that person has done."

How can crime lab officials be assured that other problems don't exist?, they asked.

"If I was put in prison based on a test that guy had done and if I was the attorney who represented someone based on the DNA test, I'd be hammering down the door of the courthouse to get my appeal in,'' said Driver, who is a firearms examiner and an expert on crime-scene reconstruction."That's outrageous."

An investigative panel of the commission announced at the meeting Friday that the lab doesn't need to do further testing.
Grits can see both sides of the question: On one hand, labs are in a damned if you do, damned if you don't situation. You want agencies to self report when something goes wrong and it would be unfortunate if doing so means the good actors are punished more than those who conceal problems. OTOH, the FSC's fulsome praise of the Tarrant ME may stem to some degree from deference on the panel to their former chair, Dr. Nizam Peerwani. I too, during the discussion on Friday, felt that the ME was being praised too much merely "for doing its job." After all, labs have a self-interest in self-reporting, because a) it's required by law and b) managers will get into much more trouble after the fact if they don't. So yes, Dr. Peerwani acted quickly to suspend the employee and review his old cases, but isn't that what he's supposed to do?

In the big picture, it's part of the culture of law enforcement organizations (LEOs) that any time they're found to have engaged in misconduct, critics and the media are expected to frame their analyses to highlight everyone's good intentions. Otherwise, LEOs just become defensive and clam up (or sometimes counterattack). You see this repeatedly when police departments or District Attorneys are criticized, but the same dynamic goes on with crime labs at the FSC. The commission's reports tend not to soft-pedal the details of alleged negligence or misconduct in the cases before them, but they often go out of their way to praise agency managers for just "doing their job."

Maybe that's the most politically effective tactic: One catches more flies with honey, after all, than with vinegar. But especially when doing that with regards to an agency run by one of the commissioners, as in this instance, there's a potential for the appearance of whitewashing. It's certainly a fine line to walk.

Read more here: http://www.star-telegram.com/2012/07/30/4139295/state-panel-commends-tarrant-crime.html#storylink=c


dfisher said...

This post will be in two parts.

Until someone in the media opens their eyes and researches the law, the TX criminal justice system will continue to be mostly criminal...on the State's part, especially the Governor.

A little tutorial is need here.

The Forensic Science Commission was created under TX Code of Criminal Procedure, Art. 38.01.
Under the article the Gov. Appoints 4. of the members,

2. Must have expertise in the forensic sciences,

1. A defense atty. and

1. A prosecuting atty.

If you go the TX Forensic Science Commission's official web site, under members, you will find Gov. Perry appointing 5. of the 9. members.

The LT. Gov who under the statute is to appoint 3. members, but shows only 2 appointments.

Of the 5. Gov. appointments, 2. are acting county medical examiners (Dallas & Tarrant Counties) and 1. is a retired ME (Bexar Co)..

Here's the first problem, medical examiners are not experts in the forensic sciences under the TX Code of Criminal Procedure, Art. 49.25, they are acting "Judges" and are required to qualify under Art. XVI, Sec. 1. of the TX Constitution. The statute DOES require the MEs to be a licensed physician, but their duty is not medical. (It’s like a judge has to be an atty, but a judge can’t practice law) Being judicial officers required to conduct inquest under the statute, they can perform autopsies as part of the inquest.
Since all forensic autopsies are ordered by Judicial Medical Examiners or Justices of the Peace the autopsy reports are judicial reports and not evidence. As such may not be questioned or reviewed by the Forensic Science Commission. This is the very reason for section 5(f) of CCP, article 38.35, titled “Forensic Analysis of Evidence”, which states;

“This article does not apply to the portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician.”

Second problem, if you appoint a Judge to a commission that under statute is tasked with reviewing evidence presented in a criminal case, then their findings are "Judicial Findings" carrying the weight of law. They are not simple opinions of an expert.

dfisher said...

Third problem, Medical Examiners under the statute are required to conduct "Inquest", which is a judicial proceeding to determine if a death was caused by a criminal act. Medical Examiners are not allowed under the statute to perform autopsies, unless it is in connection with an inquest and all inquests must end with an inquest report being filed. An autopsy report doesn't qualify as an inquest report.

None of the three ME members of the commissions conducts or conducted inquest, yet all three ME’s offices filed briefs with the 1st Court of Appeals in 2008, claiming they were judicial officer tasked with conducting Inquest.

Fourth problem, the two Acting medical examiners on the commission (Dallas & Tarrant CO.) are actually independent contractors; they cannot be county appointed officers with powers of the judiciary. And since the former Bexar Co. ME DiMaio never qualified under the TX Constitution by filing the Anti-bribery Statement or taking the Oath of Office as required of all judicial officers in TX, all his work, as well as that of the two other ME’s, was, and is illegal. This makes them the poster children of what the commission is to expose and put out of business.

Fifth problem, the prosecuting atty. Perry appointed to the Forensic Science Commission is from Tarrant Co. and that DA’s Office has been telling the press since 1996, that Peerwani is an “Independent Contractor” and not subject to the Open Record Act.

This is the same DA’s Office that has decided not to charge the employee of the Tarrant Co. ME’s Office, but wait, Tarrant CO. can’t have a ME’s office since Peerwani is an Independent Contractor and the Tarrant CO. DA’s acts as the Tarrant CO. Atty. and whose office is complicit in all criminal acts flowing from the illegal ME’s office.

Bottom line here is the current makeup of Forensic Science Commission is in violation of the statute, being staffed by members whose past and current reports, and testimony are what the commission is tasked with exposing, and the Governor, in violation of the statute is illegally controlling the commission thru his appointments.

In MY opinion.

Today the El Paso Time has an article about their commissioner’s court meeting in executive session yesterday o

Anonymous said...

Moreover, several of the FSC Members have quid pro quo financial contracts with one

another and with the accreditation agency ASCLD/LAB.

None of these Conflicts-of-Interest have been disclosed, or explained, to the public.

They get paid to pat each other on the back (or cover-up each other's misconduct).


Gritsforbreakfast said...

SCP references a "quid pro quo financial contracts with one another and with the accreditation agency ASCLD/LAB"

This issue of contracts with ASCLD/LAB has bee raised in comments before: Apparently the reference is that labs pay the accrediting body for their own accreditation, which may create some weird incentives for the accrediting body but IMO is not a conflict for the agency, which is required to get accreditation.

David, some of the ME issues you've raised related to their role as judicial officers, the anti-bribery statute, etc., have were being litigated, if I recall. What happened in those cases?

Frankly I find some of your interpretations potentially compelling and others a little strange. E.g., you claim "if you appoint a Judge to a commission that under statute is tasked with reviewing evidence presented in a criminal case, then their findings are 'Judicial Findings' carrying the weight of law. They are not simple opinions of an expert." You caveat that by saying it's only your opinion, which is good because I can't think of anyone who would share it. The MEs appointed to the FSC (and I join you in wishing it weren't so ME-heavy) are performing a different function on the FSC than at their day jobs.

Anonymous said...

The above commenter, I think, was addressing the fact that ASCLD doesn't have incentive to investigate long-standing lab problems that should have been caught during the annual

audits or accreditations, especially if the problems are repetitive or old enough to have 3 or 4 audits occur without catching the problem. It only makes ASCLD look bad for not finding the problems sooner.

It's like my clunker car -- each year I take it to get inspected at the same service station because I know that the inspectors will only give it a cursory glance, ignoring the missing muffler and cracked windshield. I get the sticker, they get the cash. Everyone goes home happy (except for the bicyclist that gets run over because I can't see through the cracked windshield.)

Your previously H/T to Marvin Schechter's scathing review of ASCLD auditing practices points out the flaws...