Salvaging Salvador: Part Two

The other day Grits linked to and offered initial thoughts on the unanimous Texas Court of Criminal Appeals decision in Ex Parte Coty, in which the court reversed course regarding how to handle habeas corpus writs related to drug convictions based on lab analyses from fired and discredited DPS crime lab worker Jonathan Salvador. As it turns out, a concurrence to that opinion by Judge Tom Price clears up some of the questions raised in that initial post, so here's Judge Price elucidating exactly what all this means:

Once the habeas applicant is able to establish a pattern of misconduct by an agent of the State (here, Salvador), then the burden shifts to the State to produce evidence to show that its agent did not behave in accordance with this pattern of misconduct in the applicant's particular case. In the absence of such a specific rebuttal, it may be said that the applicant has demonstrated that false evidence was used against him. But even if the State cannot satisfy this shifted burden of production, and the presumption of falsity therefore prevails, the due process inquiry is not over. It remains incumbent on the applicant, as a prerequisite to relief, to establish that the false evidence was material.

I write further only to caution that, on remand, the convicting court and the parties take care not to conflate the two issues - falseness and materiality. For example, it would be a mistake to believe that the state can satisfy its shifted burden to rebut the inference of falsification with evidence that Salvador's purported test results were later verified by [labworker Brian] Nacu. Later verification does not necessarily serve to rebut the inference that a State agent who has falsified evidence in the past also falsified evidence in the instant case. After all, the false evidence is Salvador's lab report itself, which falsely claims to have reached an accurate result from legitimate testing. Similarly, neither the fact that a drug dog alerted to the evidence and Officer Jacobs believed it to be cocaine, nor the positive results of the field test, say anything with respect to whether Salvador later falsified his own test results. That the drug testing letter issued by the Department of Public Safety and signed by Salvador was dated thirteen months prior to the applicant's guilty plea likewise fails to prove that Salvador did not report fraudulent test results. The right inquiry with respect to falsification would simply be whether the State can offer specific evidence to rebut the inference that, notwithstanding that he has falsified reports in the past, the State's agent did not likewise falsify his report in the instant case. An inquiry that is any broader than this - such as an inquiry into the ultimate accuracy of the State agent's purported test results, or whether they can later be verified by legitimate testing - is really part and parcel of the materiality analysis. And that analysis is distinct from, and comes after (or alternatively to), an inquiry into whether false evidence was used.

John Stride summarized the import of the concurrence in the Texas District and County Attorney Association's case summary thusly:

Rebutting the presumption of falsity is not as easy as it seems. For example, if a scientist had just guessed a substance’s type and weight without doing the tests he claimed he did, the State can’t show that evidence is not false by proving the guess was accurate. The actual evidence that the jury used to convict, the scientist’s report that claims he ran tests he never ran, is still a lie. And that lie is the source of the due-process violation. The fact that the guess was still accurate will go to the materiality of the evidence, not its falsity.  

Still, if the presumed false report is deemed immaterial, the conviction still stands. Bottom line, wrote Stride:

the CCA has taken a step back from a “defendant always wins” rule. Now, even if there was a bad chemist on a case, prosecutors can point out that the defendant had other, properly tested dope at the time of the arrest, confessed, etc., and perhaps save the case. But with a bad enough scientist, a defendant may be able to win in those cases where the bad science mattered to the case and we cannot retest the evidence.

That clarifies some of the questions raised in the previous post, but not all. In cases where evidence has been destroyed, I'm still unclear how a positive dog-sniff or preliminary field test would impact whether a presumed-false lab result was material. Such evidence couldn't provide a sole basis for securing a conviction beyond a reasonable doubt, so standing alone I still fail to see how it could be used to deny habeas relief unless, for example, the defendant confessed to police or a second, legitimate lab report confirmed the presence of illegal drugs. But then, IANAL; one suspects all will be made clear as various cases work their way through the pipeline.

There's a sense in which Judge Price's analysis, while making better sense of Judge Hervey's main opinion, reflects a distinction without a difference. Whether additional evidence overcomes the falsity or the materiality prong of the court's new test won't matter much to defendants. Bottom line, except for cases where re-testing shows Salvador falsified results, the only defendants likely to receive relief are those in whose cases the drug evidence has been destroyed, and even then the CCA has given prosecutors potential means to keep the convictions intact.