'White paper' suggests systemic reforms to respond to mass forensic errrors

How should the criminal justice system respond when forensic errors or malfeasance occur on a large scale, affecting hundreds or even thousands of cases? Texas courts, prosecutors, defense counsel and crime labs already are struggling with these questions, and it appears the Texas Legislature may need to take up the issue when they re-convene in 2015.

Late afternoon the day before Thanksgiving (Nov. 27), the Texas Forensic Science Commission and the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit issued a little-noticed joint "white paper" (pdf) based on a stakeholder "roundtable" held earlier this year. (In the interest of full disclosure, your correspondent participated in that roundtable on behalf of the Innocence Project of Texas.) Suggestions in the white paper could have big implications for the justice system when large-scale forensic SNAFUs arise like the DPS-Houston crime lab fiasco where lab worker Jonathan Salvador was caught drylabbing evidence, casting doubt on a large number of convictions where he'd performed testing.

Between the Salvador mess, the discrediting of dog-scent lineups and hair-and-fiber analyses, and scientific debunking of now-outdated arson indicators used to secure convictions for decades, in recent years Texas and indeed the entire, national criminal-justice system has had to come to grips with the fact that many past criminal convictions have been secured using what's now known to be junk science. The Texas Legislature passed a landmark statute in 2013 allowing habeas corpus relief in such cases, creating a vehicle for revisiting convictions based on bad science and overturning them if the conviction couldn't have been obtained without the faulty forensic testimony. But there are still no processes in place for identifying those old cases, notifying affected defendants, or creating a vehicle to ensure that meritorious cases actually get a chance to seek relief in the courts. Those are the issues about which this white paper offers some first, tentative suggestions, though there's still a long way to go to turn the ideas into a workable blueprint, much less a functioning, effective system.

First things first, the paper confronts the issue of how to give effective notice of such errors to defendants in a way that would allow them to seek relief where appropriate. In the Jonathan Salvador case, in particular, "because so many different counties were affected, it was extremely challenging to determine whether affected defendants have received notification consistently, or whether notice varies from county to county depending upon local resources and other factors. It is also difficult to assess the extent to which prosecutors themselves understand the nature and scope of the forensic misconduct and potential ramifications." For example, despite advice to the contrary from the state prosecutors' association, the Fort Bend County District Attorney balked at notifying defendants whose cases were implicated in the Salvador SNAFU until finally cratering under media pressure.

The white paper praised the Texas District and County Attorney Association for advocating on their website that prosecutors provide notice, but recognized "that TDCAA cannot force its membership to check its blog regularly or to follow its recommendations." Instead, participants in the roundtable "emphasized the importance of notice redundancy," noting that "making several layers of contact with various affected parties is critical."

The paper also suggested that the lab identifying "nonconformance" should hold a "technical briefing" where stakeholders may ask questions ... so they may understand the scope of the problem accurately." But depending on the circumstances, the agency where the problems originated may or may not be the best source for a thorough, honest technical briefing. Grits would suggest that, at a minimum, representatives from the Forensic Science Commission should participate in such presentations so  labs won't gloss over important details in ways that minimize their own culpability. In the Salvador case, the DPS officials IMO behaved with great integrity and that wouldn't have been necessary. In other instances - as with dog-scent lineups performed by the Fort Bend County Sheriff's Office - the agency promoting faulty forensics wouldn't have been nearly so forthcoming. And for hair and fiber analyses, there is no single agency implicated but an entire forensic field that's been called into question. I'm not sure how the white-paper briefing model would work in that sort of scenario.

The white paper suggests the Forensic Science Commission should be responsible for notifying individual District Attorneys offices with affected cases, as well as notifying leadership at the Texas Criminal Defense Lawyers Association, the Texas Center for the Judiciary, the prosecutorial assistance unit at the Texas Attorney General, and regional presiding judges via the Office of Court Administration. (Right now the FSC has no statutory duty to perform those tasks but there's also nothing stopping them from doing so, resources permitting.) The paper also suggests the FSC "should consider establishing a centralized Internet-based repository accessible to everyone in the state with basic information on pending forensic complaints and disclosures, including a FAQ section and other guidance.

All that, however, doesn't ensure defendants whose cases may be affected will be notified. The paper points out that "prosecutors have an obligation to make a good faith effort to contact defendants. However, they cannot track individuals beyond their last known address." That's definitely an issue, but Grits would suggest a few possible avenues for followup. For starters, when the address in prosecutors' files are outdated, the US Postal Service may have change-of-address information if anybody bothered to check. For that matter, commercial list brokers often have more and better updated information on addresses even than the post office, as any political consultant or professional marketer would tell you. For large-scale notification projects like the ones being discussed, following up with those sources would be well worth the cost, given the stakes involved.

As for the content of such notifications, "prosecutors should provide a resource for defendants to inquire about any re-testing or potential writ process. This prevents prosecutors from being placed in the impossible position of advising defendants who contact their office with inquiries." That suggestion doesn't go as far as the advice from TDCAA regarding the Salvador scandal. They suggested that, for any defendant with viable habeas claims, prosecutors should "request that the court appoint an attorney to take the case through a writ process." TDCAA's advice represents a stronger, more pro-active approach than suggested in the white paper. Telling them to ask the courts to appoint an attorney to me makes more sense than vaguely telling DAs to "provide a resource."

Which brings us to the question: Once defendants are notified, what happens then? For indigent defendants who originally had appointed counsel, the lawyer assigned to them on the front end has no continuing duty to assist them in filing habeas corpus writs after the fact, particularly if they're not being paid for it. (Plus, habeas corpus writs a relatively specialized field and most attorneys taking appointed cases wouldn't be competent to handle them.) It's at this stage in the process that legislative action would be required to implement the course of action outlined in the white paper, as well as rule changes by the state bar:

The majority of stakeholders felt the Commission on Indigent Defense should be responsible for these cases by appointing attorneys on a temporary basis to address the claims. The Commission on Indigent Defense should work with the State Bar, TCDLA and Texas law schools to obtain effective and targeted representation where possible. The attorney group would be appointed only for the purposes of dealing with the forensic nonconformance at issue and would be disbanded when the cases have made their way through the appeals process. Absent a statewide solution, local counties should consider creating “consortiums” with their neighboring counties so that attorneys capable of handling appeals and writs may represent defendants in these cases across multiple counties. The Commission on Indigent Defense could in turn fund the local consortiums. Form pleadings should be created and distributed to help attorneys represent clients efficiently in these cases.

If laws need to be changed to permit the Commission on Indigent Defense to fulfill this role, they should be changed during the next legislative session. The Governor’s office and/or the Attorney General’s office should be consulted regarding access to emergency funds for these cases.

Finally, the State Bar should consider developing guidelines for professional responsibility in cases where a defense attorney who no longer represents a defendant receives notice from the prosecutor. Some further action should be taken by the attorney so the notice does not fall through the cracks.

At the roundtable, "Stakeholders felt the Commission on Indigent Defense (in partnership with the State Bar) is the best organization to handle this. ... Absent their assistance, stakeholders will continue to rely on TCDLA, the Innocence Project of Texas and a county-by-county approach," which is "inefficient and creates unequal results depending on what county a person lives in." If a statewide solution through the TIDC cannot be crafted, counties should "make the effort to appoint one or two competent and experienced appellate attorneys depending on the volume to handle all affected cases through the writ process." In addition, "The State could consider amending the post-conviction writ rules to make these types of cases more streamlined for all parties," though the white paper offered no specific suggestions in that regard.

This white paper made a good first stab at thinking through the problems surrounding how to respond large-scale forensic SNAFUs, but clearly there's much to be resolved and some of the suggestions would require legislative action and possibly clarification of prosecutor and defense attorney responsibilities through the State Bar. Some issues may crystallize to some extent when the Court of Criminal Appeals hands down its ruling in Ex Parte Coty, which is the key case parsing issues surrounding the Jonathan Salvador scandal (see Grits' coverage of oral arguments). But as yet, Texas is clearly on the front end of figuring out how to respond to large-scale problems with forensic science, even if in many respects we're far ahead of other states on the topic.

Still, I'm glad to see state leaders thinking about these subjects in terms of systems and processes instead of slogging through it all on a case by case basis, which is how the courts typically handle such matters. That approach makes a lot more sense and, once systems are in place, will prevent a lot of headaches down the line as scientific advances continue to call into question forensic disciplines that are turning out to be less reliable than most everyone thought in years past.