Thursday, May 12, 2016

'Negligent' ballistics ID, indigent defense overviews, Texas' 'merry-go-round for the criminally insane,' and other stories

Here are a few odds and ends which merit Grits readers attention:

Reentry resources
Check out these excellent resources on reentry from the Texas State Law Library, including pages on housing, employment, "community resources," and "practice aids." Lots of useful information there. Also, for details on county-level reentry services, see TDCJ's Reentry Resource Guide.

Jails and mental health screening
Here's an interesting TV news story out of San Antonio about new mental health screening procedures at the county jail.

Texas' 'merry-go-round for the criminally insane'
The Star-Telegram had a good story Sunday about an Arlington man who'd bounced back and forth between the county jail and a state hospital seeking competency restoration, stuck on "the state’s merry-go-round for the criminally insane."

'Professional negligence' found in ballistics misidentification
The Forensic Science Commission last month found "professional negligence" occurred in the ballistics analysis at the Southwest Institute of Forensic Science (SWIFS). The examiner attributed too much significance to small striations on a bullet and inappropriately chose different ammunition for test firing. SWIFS believes that "confirmation bias" and "expectancy bias" contributed to errors by both the examiner and the technical reviewer.

Crime lab accrediting bodies merged
Two of the largest accrediting bodies for US crime labs have merged. See the press release and a FAQ about the merger. I haven't seen any coverage on this but it's a pretty big deal. Here's a list of accredited labs in Texas.

TX indigent defense surveyed
Take a look at a presentation on "The State of Indigent Defense in Texas" from the Indigent Defense Commission at a conference last month on pretrial services. And here's a different presentation to the Panhandle Criminal Defense Lawyers Association focused more on caseloads and trends. Finally, TIDC published an interesting-looking document last September which Grits hadn't seen before titled "Effective Indigence Screening," which may merit further attention from you correspondent in the near future.


Anonymous said...

Meanwhile, the Texas Forensic Science Commission, from April til now, has had 6 different meetings, and released 3 different reports.

Not a blip on the news front.

Another moot commission.

Sunset Commission, where are you?

Gritsforbreakfast said...

Why is it the FSC's fault that the media does a crappy job?

Anonymous said...

It's the FSC's crappy job that fails to present credibility (as news-worthy) to the media.

In response to the Murdock Report, the Commission’s initial finding ["forensic negligence"] and the laboratory’s root cause analyses, the laboratory has taken the following corrective action:
1. Removed the Examiner from active casework involving microscopic comparisons pending finalization of the Commission’s investigation. (The laboratory developed a technical remediation program that required the Examiner to perform and document examinations of known non-matching fired bullets)...



BTW, the "forensic negligence" was because of Heather Thomas (Examiner, employed in 2002), Raymond Cooper (technical reviewer), and Dr. Tim Sliter (Supervisor, Chief of Physical Evidence, employed 1998). They have been responsible for a very large number of ballistics cases, for a number of years at SWIFS.

Who wrote the Corrective Action...Dr. Tim Sliter.
Who is Dr. Tim Sliter's boss? Dr. Jeffrey Barnard, TFSC Member.
Where was the so-called Accreditation Agency responsible for "quality assurance" oversight?

None of the root causes identified by Dr. Tim Sliter or the TFSC included "poor training of examiner by Supervisors". This, of course, minimizes accountability for those primarily responsible and diverts blame back to the forensic analyst. How about the other examiners at the lab? Are they making the same mistakes as the "forensically negligent" examiner?

Anonymous said...

Was the "forensically negligent" forensic examiner interviewed by the TFSC, or allowed to comment regarding SWIFS conclusions or the conclusions of the TFSC? Was her opinion taken into considerations regarding her ballistics training or quality assurance protocols required of the forensic examiners at SWIFS? Did she have criticisms?

Or, in exchange for her continued employment, was she silenced?

The new media should definitely scrutinize this report and vet the possibilities that this crime lab has been scraping the bottom of the barrel regarding evidence analysis for a very, very long time.

The problem with Ballistics and Tool Mark analysis is exactly the same as the Hair Comparison problem plaguing the FBI and responsible for numerous wrongful convictions -- subject visual interpretation. If the TFSC had any credibility, they would initiate a massive review of ballistics evidence like they did (rather, pressured to) with arson investigations, hair comparison evidence, and bite-mark analysis.

Anonymous said...

According to the "Murdock Report"
The laboratory utilized the “pattern matching” approach in reaching the identification finding. The lab did not utilize the Quantitative Consecutive Matching Striae (QCMS) approach described by Murdock in his report.

[QCMS ID has been around for at least 20 years. Why was the crime lab not utilizing this method? Too advanced.]

Photographs were not taken at that time for the purpose of providing a full and convincing justification for the identification...It is very apparent that SWIFS firearms examiners take very few photographs of firearm related toolmark comparisons...Today, it is a simple matter to take high-quality digital images of toolmark identifications. There is simply no good reason for not doing so.

[Why was SWIFS not taking photographs of evidence? Because it gives Defense Attorneys easier opportunity to scrutinize evidence/photographs with their own experts. Drawings are subjective and easier to argue discrepancies in the courtroom for the prosecution's forensic witnesses.]

Anonymous said...

According to the "Murdock Report"
...Implemented a procedure for blind verification of microscopic comparisons that reduces the opportunity for expectancy bias on the part of the verifier/technical reviewer;...The fact that the 2010 verification procedure set up the very real possibility of confirmational bias has been recognized by SWIFS, and they have now drafted a blind verification procedure as a part of their CAR. I think this is a major step in the right direction, and I give them a lot of credit for not having to be prompted to take it....

[Yeah for SWIFS!! Confirmation Bias has been recognized as a known problem in forensic science for decades, and easily rectified by "blind" analysis by a second examiner. The fact that procedures to minimize bias wasn't included in SWIFS protocols prior to 2010 is ridiculously ignorant, if not entirely stupid.]

So, of course, for white-washing purposes, no names are to be announced by the FSC in their reports. No penalty for "failure to run a crime lab scientifically, appropriately, intelligently."


Anonymous said...

From memo written by SWIFS Quality Manager Jim Dempsy to SWIFS Crime Lab Director Dr. Jeffrey Barnard regarding the 2001 Annual Review of Quality System, dated 03/13/2002...
"Due to logistics, our laboratories have chosen not to participate in a blind testing program." (Of course, those "logistics" were not defined.)

From SWIFS’s Re-accreditation (ASCLD/LAB) Inspection Report, dated 09/13/2008…
"The laboratory should conduct annual proficiency testing in each discipline using re-examination or blind techniques. (I) Does the laboratory conduct proficiency testing using re-examination or blind techniques? NO (check marked)."

Recommendation 5: The National Institute of Forensic Science (NIFS) should encourage research programs on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analyses are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with its advisory board, NIFS should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the greatest extent reasonably possible, potential bias and sources of human error in forensic practice. These standard operating procedures should apply to all forensic analyses that may be used in litigation.

Dr. Barnard and Dr. Sliter have been very adamant about disregarding the possibility of confirmation bias in their lab and have foregone implementing "blind" analysis in their protocols.

Lab analyts' concerns regarding the lack of 'blind' secondary review or protocols was submitted as a complaint before the TFSC in 2009. However,the FSC ignored the complaint because the lab analyts reported it, not a Defense Attorney.


Anonymous said...

The entire travesty is presented...

Someone should alert District Attorney Susan Hawk as to what she's dealing with in Dallas County.


Bill Habern said...

If some journalist really wants to dive into an ineffective public defender program in Texas (I am not talking about the young lawyers that work there, but rather the program's operation and policies). Our law firm in the past has been made up of a a group of these folks who could no longer participate in the very limiting restrictions and policies the prison administration or board of directors imposes on this inmate legal assistance program, and left.

TOPIC INDIGENT DEFENSE__If this program had a meaningful and advocacy inspired operation that was not controlled by the prison administration, it could be a very worthwhile program. Right now it is a serious waste of tax payers money. In fact, the Texas Criminal Defense Lawyers Asso this past year past a resolution that young lawyers seeking employment in the business of criminal defense should not apply or accept work at this program.


Any young lawyer anticipating employment with this organization should talk to any one of several lawyers working in our office who have worked there in the recent past.

Bill Habern
Habern, O'Neil and Asso
Not a partnership
Houston, Texas

Anonymous said...

In blatant disregard for scientific protocols and failure to maintain unadulterated evidence, SWIFS Dr. Tim Sliter (including Dr. Jeffrey Barnard) have already stated (August 27-28, 2009 Memorandum to ASCLD/LAB):
“…The Serology Procedures Manual specifies that condoms should be stored in a freezer until analysis…The Institute is in agreement with the Trainee that the manual requires updating to reflect the practices of the laboratory...
“...The Trainee correctly notes that in the protocol for performing microscopic examination of sexual assault kit smears, the category for estimating the approximate number of spermatozoa on smears does not include the range of 8-14 spermatozoa…In the revised protocol (effective 2/13/209) the category now covers the ranges of 1-10 (Rare) and 11-20 (Occasional)...”
“...The Trainee is correct that the practice of the laboratory regarding storage of swabs from autopsy sexual assault kits differs from the guidance given in the manual...The manual was subsequently revised to reflect this practice in February 2009 as part of a broader revision of the manual...”
“...The Trainee is of the opinion that a statement in one of the serology protocols that describes the placement of an “Item Stored” label on the packaging of evidence items that have been stored does not reflect current practice...The Committee agreed that the practice of placing an item stored sticker was not current and that the manual needed to be revised to remove this...”
“...The Institute agrees with the Trainee that certain retired procedures can be removed from the Serology Procedures Manual...”
“ was determined that analysts in the laboratory had been conducting the lot QC test in variance of the written protocol, and had been substituting buffer for water in the negative QC test of new lots of test cards...”

Key statements provided by ASCLD/LAB representative Mr. Don Wyckoff in his June 18, 2010 “review” include,
“...While on-site, the 2008 ASCLD/LAB inspection team observed SWIFS serologist manipulating slides/smears without gloves…” (this violation was not mentioned by auditors in any official report from 2008 or any other prior audit report. That is, no one knows of this lab practice.)

Faking lab protocols -- Scientific negligence or scientific misconduct? No one has been held accountable lack of lab supervision or blamed for these inexplicably poor scientific practices (except for the analysts).


Anonymous said...

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F07-00813-P
"...Several days later, after the results were complete, a second hearing was held outside the presence of the jury. At this hearing, Dr. Timothy Sliter, the SWIFS technical manager of DNA testing, testified he had taken five swabs from exhibit 124-one each from the ear, nose, and base of the statuette and two from an area adjacent to the palm print. He cut each swab in half, kept one half, and sent the other half to Cellmark. Using standard protocol to test the items, Dr. Sliter testified he could not detect any genetic markers in the individual swabs or even perform confirmatory blood testing because the amount of material was insufficient. However, Dr. Sliter testified he then varied from standard protocol and pooled the two samples taken from the area near the palm print. After testing the pooled samples, he found genetic markers consistent with Oscar's DNA profile with a match ratio of one in 876 persons . Dr. Sliter testified the pooling method was a modified procedure not approved by SWIFS..."

That is, anything for a conviction, even if it means fabricating protocols per Dr. Tim Sliter.

Ladies and Gentlemen, I present the next recipient of the "Fred Zain Lifetime Achievement of Forensic Fakery Award"...Dr. Timothy Sliter (SWIFS)".


Anonymous said...

"...The Commission commends SWIFS for developing and implementing a thorough corrective action and retraining program..."
It's this type of shit-sandwhich that TFSC Lynn Garcia force feeds the public that has the MSM gagging.

Also curiously absent from the TFSC's report about the "forensic negligence" at SWIFS, did Forensic Science Commissioner Dr. Jeffrey Barnard (Director of SWIFS) recuse himself from discussions pertaining to "forensic negligence" from his lab?

No mention of it, and probably not.

I guess you can't let conflict-of-interest get in the way of a good whitewash.

Anonymous said...

A painful reminder as to the stupidity of long-standing unaddressed systemic problems...

Anonymous said...

"The Commission encourages SWIFS to work with the Dallas County District Attorney’s (DA) office to ensure attorneys understand the corrective actions and remedial measures taken. If the DA’s office requests a retroactive review of the Examiner’s casework, SWIFS should work collaboratively with the DA’s office to develop a plan to implement the request in a resourc-efficient manner."

Because the DA's Office did such a whiz-bang job identifying the "forenisc negligence" during the original trial (and conviction) that they would be able to identify other acts of "negligence" in other cases related to the the so-called crime lab.

Wanna bet that the Dallas County DA's Office doesn't find any other cases to investigate?
Wanna be that they don't even look?
Wanna bet that SWIFS doesn't look either?

There's no penalty for being inept or stupid.

Right Dr. Timothy Sliter?
Right, Mrs. Lynn Garcia?