Wednesday, March 13, 2013

Thousands of drug cases may be overturned because DPS lab worker allegedly faked results

Grits has already expressed amazement that a scandal involving a fired DPS crime lab worker who allegedly fabricated test results - and who performed controlled substances testing in nearly 5,000 drug cases - has received so little press attention, suggesting that the episode may result in the courts overturning hundreds of cases with sentences collectively totaling more than 10,000 years. As it turns out, I may have underestimated the scope of this fiasco.

The Texas Court of Criminal Appeals recently began overturning old convictions based on this episode, starting with instances where evidence was destroyed post-conviction, making retesting impossible. The general counsel at the Texas Forensic Science Commission has estimated that evidence was destroyed in 25-50% of cases where Jonathan Salvador performed testing. In several cases, however, including, e.g., one styled Ex Parte Patrick Lynn Hobbs, the high court ruled that, "While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the lab technician in question. This Court believes his actions are not reliable; therefore custody was compromised, resulting in a due process violation. Applicant is therefore entitled to relief." In other words, it may not matter whether evidence is available for retesting or not.

If the court continues to apply that standard then virtually every case in which Mr. Salvador performed testing - some 4,944 cases in all from 36 counties - will be overturned because the evidence was tainted just by being in his custody! Truly, this is a mind boggling development, rivaling a similar episode in Massachusetts which has received much more publicity. The average sentence of defendants among the first 12 writs approved was eight years. If that average holds, nearly 40,000 years worth of drug sentences may eventually be overturned. Can you even imagine? How is it that Grits is the only media outlet covering this?

I'd earlier suggested that enough inmates could be released from Texas prisons as a result of this unmitigated mess to allow the state to close an additional prison unit. But if the Court of Criminal Appeals handles all of Salvador's cases like they did Mr. Hobbs', the state might be able to close three or four of them. Stay tuned. This astonishing debacle has only just begun to play out.

See prior, related Grits posts:

23 comments:

Anonymous said...

If this proves to be a far reaching as you predict, it's probably time for some heads to roll at D.P.S. for allowing this to happen. In addition, this should be a huge wakeup call to the legislature to realize how critically important these D.P.S. labs are and how essential it is that they adequately funded, managed and overseen.

MaxM said...

Is it safe to assume that some of these cases resulted in probation and will also get tossed out?

Gritsforbreakfast said...

This is such a weird situation, MaxM, I'm not sure it's "safe to assume" anything. But from the rulings so far I don't see how a probated sentence would make any difference one way or the other. If they continue to follow the pattern in these first 12 rulings, I'd guess that, if Salvador had custody of the evidence, they'll deem it unreliable, probated sentence or not.

12:37, a "huge wakeup call" is right! Problem is, I don't think it's even on legislators' radar screens ... except, of course, for the Grits for Breakfast readers among them.

Anonymous said...

Is the CCA taking these cases sua sponte? Because if not, I bet a lot of those convictions stand for lack of post-conviction representation. I think it would be a good project for a law school legal clinic to take on. No county will authorize funds to go and seek out exonerations unless they're forced to, and no court-appointed lawyer is likely to go back and review their cases, either.

Rage

Anonymous said...

Rage, these won't be exonerations. The cases will likely just be reversed on a due process type violation and dismissed by the prosecutor on the basis that they can no longer prove guilt beyond a reasonable doubt.

Anonymous said...

Imagine...a forensic analyst is told by a Prosecutor to fabricate test results to incriminate a defendant.
Imagine...a forensic analyst reports this unethical and illegal act to a forensic lab supervisor.
Imagine...a forensic analyst is told by a forensic lab supervisor to fabricate test results according to the Prosecutor.
Imagine...a forensic analyst reports this unethical and illegal act to an oversight watchdog agency.
Imagine...a forensic analyst is ignored by an oversight watchdog agency.
Imagine...a forensic analyst fabricating test results to appease the Prosecutor and the forensic lab supervisor.
Imagine...a forensic analyst keeping their job.
Imagine...a forensic analyst being told by two different Prosecutors to fabricate test results to incriminate two other defendants.
Imagine...a forensic analyst reports these unethical and illegal acts to a forensic lab supervisor.
Imagine...a forensic analyst is told by a forensic lab supervisor to fabricate test results according to the Prosecutors.
Imagine...a forensic analyst doing something...
Imagine...a forensic analyst doing something more unethical and illegal, this time without solicitation from a prosecutor or forensic lab supervisor.
Imagine...a forensic analyst choosing random items of evidence from random criminal cases and fabricating random test results for official forensic lab reports.
Imagine...a forensic analyst testifying in a court of law to these fabricated test results.
Imagine...
Imagine...a forensic analyst who nobody knows.
Imagine...a forensic analyst who can not be stopped.
Imagine...
Imagine...116 items of evidence, and counting...

Anonymous said...

Imagine .... there's no countries,
It isn't hard to do,
Nothing to kill or die for,
And no religion, too.

Man, I miss John Lennon!

Anonymous said...

You may say I'm a dreamer. But, I'm not the only one. I hope someday you'll join us. And, the world can live as one... John Lennon

Anonymous said...

Holding forensics hostage for a raise again, are they?

Gritsforbreakfast said...

Rage, in Galveston County the DA Jack Roady, to his great credit, reached out and got habeas lawyers for anyone with potential claims, and even assigned an ADA full time to process them. I understand a couple of other counties are being proactive - Montgomery has the largest number of cases - but there are 33 counties where no process has been set up.

The Innocence Project of Texas agreed at the last meeting of the Forensic Science Commission to "triage" the cases and I believe received the full list of them for the first time last week, but that was before anybody understood that ALL the cases may be eligible for review. That may be beyond the group's resources to handle.

I agree a law school clinic taking it up would be a good idea.

3:58, these convictions are all or mostly final, as I understand it. They cannot just be dismissed by the DA but must go through a habeas writ process. Even if they pled out and never used up their direct appeals, they wouldn't have preserved the issue for appeal and thus would have to use habeas to confront the collateral issue.

@5:09, 5:46, and 8:57, The thing about this case is I could never have imagined it. The scope of the clusterf*#k exceeds my imagination. We'll see how it plays out but for now I can only stand agog and wonder. I've said before it would be difficult for me to write fiction because reality is weirder than anything I'd ever come up with. This is one of those times.

Anonymous said...

Do you happen to know if they are granting relief only in cases where the defendant pled not guilty and went to trial or are they overturning any guilty pleas as well?

rodsmith said...

hmm intresting!

" In several cases, however, including, e.g., one styled Ex Parte Patrick Lynn Hobbs, the high court ruled that, "While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the lab technician in question. This Court believes his actions are not reliable; therefore custody was compromised, resulting in a due process violation."

i think someone said earlier that all these cases are done and should automatically have been canned....


think it was ME!

Gritsforbreakfast said...

Guilty pleas as well, 8:34.

Anonymous said...

Speaking of corruption:

http://goo.gl/p02Cs

Anonymous said...

Grits, do you know if Orange county is included?

Stephanie said...

Well, this is one way to reduce incarceration rates...

Gritsforbreakfast said...

@2:41: The counties involved are Angelina, Austin, Brazoria, Brazos, Burleson, Chambers, Colorado, Fort Bend, Galveston, Grimes, Hardin, Harris, Hidalgo, Houston, Jackson, Jasper, Jefferson, Leon, Liberty, Madison, Matagorda, Montgomery, Nacogdoches, Newton, Orange, Polk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, Walker, Waller, Washington, Wharton.

Anonymous said...

Absolutely mind boggling! What happens to all the conviction records and all the "public" information that has already been released about these "criminals" as the lock 'em up and throw away the key group would call them? How many years before these folks get their names cleared (assuming they only had these charges and no other criminal history)? What resources, if any, will they have access to in order to clear their names? Will the state have to pay them for their time incarcerated? WOW. Incredible impact!

Anonymous said...

Wow. In looking at the Massachusetts case, NPR reported today that in that analysts situation, a defense attorney recently argued successfully to get a guilty plea overturned, where the analyst was the "secondary" on the case. I'd imagine defense attorneys in Texas are watching that closely, so the number of cases impacted could climb significantly.

Anonymous said...

Is there any easy way to determine if this person was involved in a particular case?

rodsmith said...

Well 11:18 if the lab kept the records any real lab is required to. They know each and every case this fuckup every touched let alone did any work on!

Gritsforbreakfast said...

"d imagine defense attorneys in Texas are watching that closely"

Unless they're Grits readers they're not watching it at all. To my great frustration there's STILL been no MSM coverage of this. And with session on, I don't have time to do much more than I've done.

Anonymous said...

11:18 submit a public information request asking who worked on the case you have in mind.