Wednesday, January 15, 2014

Salvaging Salvador: CCA reverses course in DPS crime lab mess

Reversing course from its prior rulings that would have overturned nearly every conviction in which former DPS crime lab employee Jonathan Salvador analyzed evidence (nearly 5,000 cases), a Texas Court of Criminal Appeals ruling today cleared the way for many if not most of those convictions to be upheld.

The court established a two-part test, dividing the burden between the state and defendants. The court continued to maintain that, because of Salvador's egregious misconduct, his lab results should be presumed false. But now the state can overcome that presumption through re-testing. (According to the Forensic Science Commission, evidence is available for re-testing in about 50-75% of cases.) Further, it now falls to the defendant to show that the tainted evidence is "material."

Hard to bottom-line this ruling. In cases where evidence exists to be re-tested, convictions will likely be sustained unless it's discovered that Salvador actually faked the results. (Unlike the Forensic Science Commission, the CCA used the term "dry labbing" to describe Salvador's misconduct.) But the court also seemed to say other, weaker evidence may counter the presumption of falsity, such as a positive dog-sniff or a field test (reading footnotes 12 and 7, taken together). That part of the ruling seemed a bit flaky to me, indicating the court will bend over backward to keep these convictions intact. A dog sniff wouldn't be enough to secure a conviction beyond a reasonable doubt, so if Salvador's analysis is presumed false, how can it be sufficient to uphold one?

As a non-lawyer, it's also difficult for me to understand the issue of "materiality" as it pertains to these cases. If someone is convicted of drug possession, the lab test is presumed false, and the state has no other evidence indicative of guilt, I can't think of any circumstances where the presumed-false drug evidence could be considered immaterial. Perhaps I'm missing something.

In any event, it's clear the CCA intends to give the state plenty of wiggle room, even in cases where evidence has been destroyed and can't be re-tested. This was an enormous flip-flop by the court and a big win for prosecutors hoping to salvage convictions in cases worked by an incompetent and disreputable forensic analyst.

MORE: An attorney friend emailed to say it's possible the court opinion may have opened the door for Jonathan Salvador to be called to testify in habeas hearings, declaring "the only thing I might quibble with (or is still an open question) is your statement that “now the state can overcome that presumption through re-testing.” The decision said that the state must “offer evidence demonstrating that the laboratory technician committed no such intentional misconduct in the applicant’s case.” Will retesting alone get them there or does Salvador have to testify? I wouldn’t be surprised if the CCA would be happy with retesting alone, but Salvador could be called to testify at the writ hearing and impeached by the defense too and then it might come down to his testimony."

Good point! As I said, it's difficult to tell precisely what this ruling will mean on the ground. It would make for an interesting (and for prosecutors, a troublesome) development if Salvador's testimony were required to demonstrate his intent in every case.

AND MORE: See a followup post answering some of these questions.


Anonymous said...

All about money. This was going to cost the courts a lot of time and money so they figured away out. The system from top to bottom is corrupt.

Anonymous said...

@4:12 Very true... Also, as grits points out. This is Texas, where the drive to convict is priority and "the court will bend over backwards to keep convictions intact".

Anon by Choice said...

I believe this decision is so vile as to constitute criminal dereliction of duty!

Anonymous said...

Egads! The re-testing was performed in the exact same "DPS-accredited" Houston Police Crime Lab that gave Salvador two promotions and pay raises over a 6-year period! How do the defendants know that more "Salvador-types" aren't preforming the re-testing and aren't falsifying results to cover-up incompetence by employees and Management? (Accreditation standards require analysts to undergo proficiency testing yearly. Were the results of Salvador's 6 proficiency tests faked as well?)

If the CCA was taking the opinion of the TFSC seriously, they would have noted that the shoddy work product and drylabbing were in part a reflection of the lab management inability to, well, MANAGE.

According to the TFSC's report, "...Interviews with management further support the conclusion that the quality of Salvador’s work was not optimal. Issues with Salvador’s work were described as “very systemic.” At one point, the laboratory director maintained an error log to monitor the number of cases returned for correction per examiner. The log revealed that Salvador’s work was sent back for correction in more than 1 in 3 cases. Management tried to work with Salvador, conducting remedial training and providing coaching and counseling.

Salvador was very accepting of the criticism, and always corrected issues immediately and vowed to do better. When asked whether the quality of Salvador’s work was acceptable under DPS standards, management described the quality of Salvador’s work as “right on the edge” of acceptability.
When asked why Salvador’s written evaluations do not appear to fully capture the concerns about Salvador shared by employees and management, management explained they tried to note the concerns in the written section of the evaluation, but conceded the evaluations may have been “too polite.” When asked why he received “meets expectations” in the vast majority of the categories, the drug section supervisor explained that Salvador was always “on the line” between “meets expectations” and “needs improvement.” The laboratory manager also explained that he and the section supervisor struggled in deciding which of the two categories was appropriate. When asked why Salvador was promoted despite the concerns regarding his lack of attention to detail and understanding of the chemistry, the section supervisor indicated that promotions at DPS are standard based on years of service, and he did not feel it was appropriate to deny a promotion unless the person was totally inept, which Salvador was not. There was also a perception that forensic scientists at DPS are paid below their peers in the field, and thus they try not to deny people salary increases. The lab manager explained that in running a laboratory, management recognizes that “everyone has their strengths and weaknesses...”

This is, by definiton, according to the TFSC's report, a systemic failure within the crime lab.

Anonymous said...

IANAL..but it seems to me that any remaining evidence would have to be assumed to be possibly mis-mananged or tainted if it had ever been in the custody of the person in question. I mean if he was willing to fake test results, how can you still have confidence in his chain of custody protocol?

Anonymous said...

If decided to re-test who decides which are re-tested. Would this be for capital cases? What would the outcome be is samples have been destroyed?

Gritsforbreakfast said...

@9:56, that's exactly why the earlier cases were thrown out.

@10:59, these were all drug offenses; no capital cases. RE: Who decides to re-test? Some counties are having everything re-tested, others only when somebody files a habeas writ.

Anonymous said...

Commenting? Consider anon by choice due to DPS retaliation.

The CCA is comprised of attorneys.

The people running the show are attorneys.

This was basically attorneys covering for attorneys. Texas has been the front runner in the corruption game for quite some time now, the only difference is that it's being reported more often. I'm looking forward to the follow ups, this isn't the end of the show er circus. Sal just might end up being compensated for wrongful termination. If he doesn't sky up and go back home.

It'd be nice if someone were to publish the names of the CCA attorneys every time they conspire to cover up.

Anonymous said...

“offer evidence demonstrating that the laboratory technician committed no such intentional misconduct in the applicant’s case.”

Intent has nothing to do with the erroneous misconduct. At least two other lab personnel signed and dated the reports - technical reviewer and Supervisory Reviewer(accreditation requirement).

Did those other two signers intentionally conspire to submit an erroneous lab report to the courts? Will they be called to testify? What would be their defense? Incompetence?

The so-called "bad apple" becomes "bad appleS" PLURAL!

Anonymous said...

To Anon by Choice 9:48-

City of Canton, Ohio v. Harris - 489 U.S. 378 (1989). Failure to properly train city employees.

Imagine if Salvador testified that he was trained to, and it was acceptable to, ignore lab protocols.


Anonymous said...

4:50PM - good point made and it deserves to be considered. When two or more people commit the same crime and cover it up additional crimes are added to the list just as additional criminals are added.

Conspiracy to -

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