Monday, July 25, 2016

FSC questions admissibility of unaccredited forensics

Here are a couple of items related to forensic error that merit Grits readers' attention:

Challenging admissibility of junk science
The Texas Forensic Science Commission's Lynn Garcia posed what to me sounds like a blockbuster question to the Attorney General about the admissibility of forensic analyses from non-accredited sources. (See the letter.) The issue arose because of the bite mark review, as the San Antonio Current noted, but her question was not limited to it.

There are a number of questions posed in the letter, but the one that caught Grits' eye was whether "unaccredited forensic analyses that are also not exempt from accreditation by statute or administrative rule are admissible under the Texas Code of Criminal Procedure?" If the AG answers "no," the implications would extend well beyond bite marks. There are quite a few other "unaccredited forensic analyses that are also not exempt from accreditation by statute or administrative rule." Some are unaccredited because they're obscure, seldom-used techniques adapted from lay experts. Others lack accreditation because they're junky, subjective stuff cops do to accuse people but which have no underlying scientific basis, like bite mark comparisons.

See the Texas Administrative Code 651.5-7 for details on which disciplines are accredited and which ones are exempt.

The AG wouldn't have the final word on this either way. The Court of Criminal Appeals would. So if the AG answers "no," somebody will still need to test that theory in court and see if Judge Keller and Co. agree. But it's a damned interesting question!

Understanding the DNA mixture debate
Since Grits first broke the story last year that DNA mixture evidence had been widely misinterpreted, journalists in Texas and other states were initially slow to cover the story. After all, Texas politics has a reputation as right-wing, pro-prosecutor, and anti-science. To outsiders or the uninitiated, it's odd that Texas would confront the issues before other, more "progressive" states or the feds.

For most journalists, either the science or the law involved in this story would be complex enough to prevent a thoughtful analysis, much less an area involving the cutting-edge intersection of both. So other states with the same problems haven't necessarily seen them exposed yet. (MORE: E.g., here's an example of a crime lab out of Fort Lauderdale, FL, that made similar errors.) Indeed, it's likely the same issues extend internationally. There's no reason to think Texas scientists - who were taking their sometimes-misinterpreted cues from the broader scientific community - were alone in their misunderstanding of this subjective, highly technical, and math-laden sub-specialty of DNA science.

So I was glad to see that the FSC will stage a continuing legal education course next month in San Antonio on these topics. This is a big story which has not gotten the attention it merits because of the complexity of the math and science involved. If I were a journalist anywhere in the country looking to play catch up on DNA-mixture errors, I'd be planning my trip to SA right about now.


Anonymous said...

Thanks to Grits for posting a story about the DNA Mixture problem. As director of the statewide Texas DNA Mixture Review Project, I am asking that anyone who would be willing to review a case to determine the role played by DNA mixture evidence in the conviction please contact me. We're up to 700+ cases statewide (Dallas and Houston have not even sent out their Brady notices yet). It is a project involving thousands of cases and we need help! I will provide anyone who volunteers a complete packet on how to evaluate a case.

Texas is indisputably first in the nation in being proactive about rectifying forensic problems. Please help us in this important effort.

Bob Wicoff
Director, Texas DNA Mixture Review Project
P.O. Box 283
Houston, Texas 77001
(713)-274-6781 (direct)
(713)-494-3169 (cell)

Board Certified-Criminal Law
Texas Board of Legal Specialization

Board Certified-Criminal Appellate Law
Texas Board of Legal Specialization

Anonymous said...

San Antonio Current link?

Anonymous said...

From what I've seen, crime labs aren't Self-Disclosing those scientific tests that fall under "accreditation", let alone "non-accredited" tests. Why would they? There's no penalty for not providing a Self-Disclosure to a mess up inside the lab. A Self-Disclosure only points out the gaping goatse flaws of Lab Management's leadership or inept scientific skills. They can't have that if they wanna protect their 6-figure taxpayer incomes.

Additionally, even if a crime lab DOES present a Self-Disclosure of a scientific problem, the TFSC hardly does anything anyway. No investigation, No report.
Proof: Just check-out the very last page of the 2015 TFSC Annual Report. There were 9 Self-Disclosures from crime labs in 2014 that were dubbed NFA - "NO FURTHER ACTION". Why?

IMO, Lynn Garcia and the rest of the cronies should thoroughly/competently/legally understand the original 38.01 before muddying it up with the whole non-accreditation thing.

Besides, doesn't the TFSC's prior investigation into the Willingham Arson Debacle already address the non-accreditation limitation issues?

Anonymous said...

Link to San Antonio Current article...

Anonymous said...

While, at one level, accreditation seems a great idea, what happens when a defendant has an out-of-state expert whose work was not performed at an accredited lab, but can be shown to be otherwise scientifically valid, and that critical evidence cannot be admitted because of the TX statute?

And you have to look at how short and Texas-o-centric the list of accredited labs is, to realize that there may simply, at a practical level, not be enough labs available.

Oh, and isn't it funny how there has been no real education/outreach for the defense bar about the accreditation statutes and rules? Funny, that.

He's Innocent said...

Mr Wicoff,

Are you saying anyone, even folks who are not in the legal or science fields can help you with your project?

Gritsforbreakfast said...

@4:51, the Willingham case didn't reach that broader question. Plus, the law has changed quite a bit since then.

Whatever one's opinion of Lynn Garcia, and mine is much higher than yours, the questions she's asking arise directly from the bite-mark analysis. I don't think she's overreaching here. It's a valid question, even if the answers have significant implications. She's not seeking to change the law, she's asking the AG to clarify it. And depending on the AG's answer, the CCA will ultimately make the call.

Thanks 12:58, I fixed the link in the post.

@6:58, wouldn't labs providing services to Texas LEOs inherently be Texas-centric? If they have to physically transport evidence in a secure fashion from cop-shop to lab and back, you can't really expect them to outsource to India.

Anonymous said...


Apparently you've never had the TFSC lie to you, costing you a job or prolonged incarceration due to forensic negligence and misconduct that was previously reported to the TFSC.

See...Cecily Hamilton

The TFSC should have performed an investigation 5 years ago, but didn't.
The APD should have provided a Self-Disclosure many years ago, but didn't.

Who is accountable?

Anonymous said...

Speaking of medical evidence can one say that Alzheimer like symptoms resulting from repeated concussion be considered a medical consideration? Is it true that guards at Skyview facility in Rusk like to administer their own unique therapy on sickly and defenseless senior citizens by banging their heads on concrete walls and floors? Perhaps, just suppose, some think that human hair will conceal swelling and bruises that might alert UTMB caregivers? Perhaps Grits would care to contact TDCJ and ask if such things are remotely possible? Perhaps the Justice Department in Tyler might deign to conjecture about such things with Grits?

Perhaps the WASHINGTON POST and it's millions of readers need to read the Grits blog?

Gritsforbreakfast said...

8:08, I hold you accountable for hijacking string after string to talk about your own, unrelated hobbyhorse. Cecily Hamilton did NOT identify the problem with DNA mixture analysis calculations being confronted now. It's just a different issue.

The FSC is not perfect. It has not always performed well. Sometimes it has performed quite admirably. And they're doing more than most other states. You're certainly right I've "never had the TFSC lie to you, costing you a job or prolonged incarceration due to forensic negligence and misconduct that was previously reported to the TFSC." I'm sorry that not every case went your way; certainly they haven't all gone mine. I just try not to let my disappointment blind me to the good the FSC also does, which is not insignificant.

Anonymous said...

Grits, of course the labs used by Texas LEOs are Tex-o-centric. The problem is, what happens when defense counsel wants to have their work critiqued? Who can we turn to, when the accredited firms are few, and so heavily State-affiliated?

Anonymous said...

12:56 -

Currently in Texas, there are two ways for defense counsel to obtain forensic science services:

1) They obtain the services from a Texas-accredited public laboratory that performs work for both prosecution and defense, whose work they trust. There are a number of these labs in Texas.

2) They obtain the services from a non-Texas-accredited forensic science provider.

While the second method would seem to preclude the results from being presented at trial (because the provider is not in a Texas-accredited lab), exclusion of these results at trial involves the prosecution making a motion to exclude. I am not aware of any case where a prosecutor has made such a motion to exclude the defense's forensic expert. With no objection from the prosecution, the defense's forensic testimony gets in, even though under the state laboratory accreditation law it should not be admitted.

Anonymous said...

And what would stop a prosecutor from moving to exclude? The statute has already been used against the prosecution, see the Hargett case out of Texarkana court of appeals, so it has some bite. And who wants to be the idiot defense counsel who spends money - their client's or the court's - on forensic work that is prima facie inadmissible?

Mark M. said...

Whichever anonymous person that is trying to go even-steven on the State / Defense efforts to admit evidence might want to consider that the Constitution protects Defendants, not the State. There is a due process right possessed by--you guessed it--Defendants to present a defense. The Constitution protects Defendants from the over-arching power of the State. So when the State brings voodoo or hokum to the jury in an attempt to put a person in a cage, it must pass constitutional and statutory muster (in theory) to get past the gatekeeper (the judge, in theory). Although the rules of evidence apply to the Defense, the Constitutionally-protected right to due process trumps the rules of evidence (in theory). Non-accreditation of the defense's evidence would merely go to the weight, not the admissibility, as long as the judge would preliminarily admit it under rule 104. any alleged problems with validity, reliability, or proper application could be argued to the jury by the State. Texas courts of appeal still occasionally reverse for the violation of the right to present a defense.