CCA considers volte-face on DPS crime lab fiasco

Yesterday morning, Grits attended oral arguments at the Texas Court of Criminal Appeals regarding the pivotal habeas corpus writ for Leroy Coty, one of thousands of defendants, including several hundred out of Harris County, whose cases were tainted by having drug evidence evaluated by fired and disgraced DPS-Houston crime lab analyst Jonathan Salvador. Readers will recall that Salvador was terminated after he was caught drylabbing in at least two cases. An investigation by the Forensic Science Commission found Salvador was generally mistake-prone, possessing a poor understanding of the science underlying his job, and appeared to have falsified results to cover up his weaknesses. Between 2006 and 2012, he analyzed drug evidence in nearly 5,000 cases.

The posture of the case before the court was unusual, to say the least, because the CCA already ruled on these issues earlier this year in unanimous, per curiam opinions that declared defendants were entitled to new trials in any case based on Salvador's analyses. So far, 18 cases representing 141.5 collective years of sentences have been overturned. The lawyers arguing the case were Bob Wicoff from the Harris County Public Defender office and Joshua Reiss on behalf of the Harris County District Attorney. (There were no reporters at the hearing so that makes this account a Grits exclusive.)

Though Mr. Reiss left open the door for potential exceptions, both he and just about everyone else who has examined these cases agreed that habeas writs should be granted when drug evidence has since been destroyed because there's no evidence left to re-test. (He suggested other evidence like video, dog sniffs, and field tests might still be sufficient to uphold guilty verdicts.) But in Ex Parte Hobbs, the CCA earlier this year expanded the universe of defendants entitled to relief far beyond that threshold, declaring 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 [Salvador's] actions are not reliable; therefore custody was compromised, resulting in a due process violation. Applicant is therefore entitled to relief." In essence, they said defendants deserved a new trial in every case where Salvador analyzed evidence.

So why was Leroy Coty's case now before the court when the CCA had so recently decided the issue? Clearly some of the judges suffered from buyer's remorse. But it made for an odd hearing because the court was asking Mr. Reiss to argue against its own, recent rulings and asking Mr. Wicoff to defend them, with the panel fairly rigorously questioning both of them. Judging by the reactions from the bench, it's pretty certain Presiding Judge Sharon Keller, Judge Barbara Hervey and probably Judge Larry Meyers were among those questioning their earlier decisions. By contrast, Judge Michael Keasler most strongly advocated the stance the court had earlier taken: That any case Salvador worked on was suspect because Salvador had proven himself to be dishonest.

Ironically, Wicoff pointed out, that's also the stance the Harris County District Attorney had taken earlier this year regarding pending cases where Salvador analyzed evidence, dismissing all of them whether or not evidence was available for re-testing. The question before the court (again) was whether that same, per se rule should apply to those already convicted.

Responses to the Salvador fiasco have varied widely. In some counties like Fort Bend, Wicoff told the court, the DA had requested that every piece of evidence be re-tested (belatedly, Grits would add). In Galveston, DA Jack Roady early on agreed to relief in every case Salvador worked in that county. Similarly, Walker County DA David Weeks announced last spring that, “It’s clear that all the cases (Salvador) worked on are irreparably damaged. ... The defendants will be appointed attorneys and arrangements will be made for expunging their records. It blew up in our faces.”

In Harris, though, the DA requested re-testing only after defendants filed habeas writs - so far around 40 of them out of roughly 400 - and the state would like to keep the number of overturned cases to a minimum. Neither Reiss nor Wicoff had details for the court about what's going on in other jurisdictions, but Wicoff said most of the 40 cases being handled by his office involved low-level charges where defendants received community supervision. Only one of his 40 clients is currently in prison, he said, arguing that, in Houston, at least, ruling for Mr. Coty would not "open the floodgates."

Judge Cathy Cochran laid out the court's options: To establish a "per se presumption" that all of Salvador's cases are inherently tainted, as the court did in earlier cases, or to volte-face and declare the presumption "rebuttable," evaluating each case individually based on the "totality of the circumstances," a potentially daunting task given the volume of cases Salvador worked on.

Reiss, for his part, argued that the scope of Salvador's misconduct so far appeared limited. He said DPS had performed re-testing in 574 cases and thus far taken only eight corrective actions, a rate of just 1.3%. He cited the Forensic Science Commission report to say that evidence still existed for re-testing in 50-75% of cases. In Coty's case, he said, there is additional evidence including video, a "dog sniff," a cereal box where the drugs were allegedly found, and a "judicial confession" (read: a guilty plea). He said there was no basis to question the chain of custody or believe the evidence had been subject to tampering.

One aspect of Reiss' argument struck me as patently incorrect and went un-rebutted by Wicoff. Judge Elsa Alcala asked if there were any "pattern" to Salvador's misconduct, e.g., if his work had been satisfactory in the beginning and then some event changed his behavior. Reiss replied that was the case, pointing out that Salvador's poor employment evaluations did not begin until 2009. That seemed to imply Salvador's earlier work needn't be questioned. But as Grits reported in January, that somewhat misstates the situation:

The office suffered from a "culture" that "tolerated under-performance" because of high case loads, said Dr. Nizam Peerwani. DPS managers were hesitant to record problems in an employee's file for fear such blemishes would give fodder to defense attorneys to impeach testimony in court. Salvador's annual performance reviews identified recurring problems with low output, lack of attention to detail, taking shortcuts, and too many corrections in his tech reviews. But as a general practice, employees who made it through the one-year probationary period at the lab "were dug in," said a DPS manager. [Commissioner Sarah] Kerrigan said there was  a "perception among staff that termination was unlikely" regardless of performance.

Indeed, FSC interviews with Salvador's supervisors and peers indicated that his main problem was a failure to adequately understand the basic chemistry underlying the work he performed, leading to excessive errors (one in three cases he worked on was sent back by a supervisor for correction) and eventually, taking shortcuts including drylabbing. True, the first recorded drylabbing episode was in 2009, but it's difficult to imagine that from 2006 until then Salvador understood the chemistry but later he did not. And his peers told the FSC he had under-performed from the beginning. If the judges actually read the FSC report, which was included as an attachment to the state's brief, they should reach the same conclusion.

The decisive factor may end up being that Coty is not asking the court to render a verdict but simply to dismiss his case without prejudice. If he prevails, the state would still get an opportunity to re-try these cases, a fact in which the court appeared to take comfort. Wicoff argued that, because drug evidence was in the custody of the state and Salvador was their agent, the burden should fall on the prosecution to prove legitimacy of the evidence. The place to do that, he said, was before a "finder of fact" at the trial court level, where Mr. Salvador could be put on the stand, cross-examined, and answer questions about the chain of custody raised in the court's earlier rulings. Under questioning from Judge Cochran, Mr. Reiss said that burden should fall on Mr. Coty in his habeas application, comparing the situation to instances of juror misconduct. But the state's counterarguments didn't seem to satisfy the panel.

Guessing outcomes from oral arguments is generally a fool's errand, but to play the fool for just a moment, I'll try. To me, it's hard see how Judges Keller, Hervey and Meyers come up with five votes to reverse their earlier ruling without Judge Keasler, whose support for a per se presumption seemed resilient and unbent by the arguments presented. Judge Tom Price openly agreed with Keasler and Judge Alcala seemed to favor the per se rule unless there was reason to believe Salvador's earlier work was of acceptable quality. Judge Paul Womack expressed concerns that indicated sympathy for Mr. Coty's position. And Judge Cochran seemed reticent to accept the state's urging that every individual case be evaluated based on the "totality of the circumstances," which would lead to an open-ended process that could drag on for years and create a lot of extra work for the court. Judge Cheryl Johnson didn't participate as much in the questioning so it's hard to get a read on her stance, but it didn't seem to me there were five obvious votes willing to reverse the court's earlier decisions. Time will tell.

For detailed background on the case, see  Wicoff's brief, the state's response, and the Forensic Science Commission's report.