The most commonly used forensics that were questioned by the National Academy of Sciences 2009 report, "Strengthening Forensic Science: A Path Forward" - like fingerprints or ballistics matching - have yet to face concerted challenges. But quite a few second-tier forensic methods have begun to wilt under scrutiny.
Here's Grits list of the top 10 forensics challenged in Texas to date.
- Dog-scent lineups
- Outdated arson standards
- Hair comparisons
- Bite marks
- Blood spatter
- DNA mixtures
- Field tests for narcotics
- Future dangerousness testimony
- Shaken baby syndrome
- Forensic hypnosis
Honorable mention: Estimating suspects' height based on forensic video analysis.
Of these, only dog-scent lineups and flawed arson testimony have been eliminated, with hair comparisons mostly displaced by mitochondrial DNA testing in 21st century cases. A prosecutor in Collin County recently stipulated that bite-mark testimony is junk, so the Court of Criminal Appeals will soon get a chance to declare it non-viable. The rest are under dispute but still in use. Moreover, Texas has yet to figure out how to respond when forensic errors impact large numbers of already-decided cases.
That's why I've said before, Texas may be ahead of other states on forensic reform, but don't gloat. Most other states are behind because they never left the starting gate, and despite some notable progress, most of our needed forensic reforms remain in front of us.
That's why I've said before, Texas may be ahead of other states on forensic reform, but don't gloat. Most other states are behind because they never left the starting gate, and despite some notable progress, most of our needed forensic reforms remain in front of us.
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24 comments:
I wonder how the HB-34 study is coming along, hmmm?? December 1, 2018 is coming up mighty quick. The TFSC must have those reports nearly completed by now given that they have extraneous time to wade into the problems of a crime lab outside Texas and a court case that is 30-years old.
How 'bout something a little more contemporary and closer to home, huh?
@10:55, the FSC focuses on forensic techniques; if they're still in use today, and they are, it doesn't matter if they're 30 years old. Sometimes we learn lessons from old cases that help change practices, as was the case with decades-old DNA exonerations.
Also, I'd bet dollars to donuts they make their Dec. 1st deadline. I'm looking forward to that report.
Re the TFSC’s investigation of a lab outside of Texas, my understanding is that the TFSC’s investigative responsibilities extend to all labs that conduct testing for Texas courts. That is a statutory requirement, I believe.
Forensic scuence practitioners (experts )learn something new every day.
Do the best you can with what you know now. Don't shoot the messenger!
We need to applaud the forensic pioneers who paved the way for modern science techniques. There has been too much criticism of older scientists and very little praise for their discoveries and lifelong achievements!
Most of the old great ones are no longer alive. God bless you all.
@ 1.43-
Nope. You are incorrect.
38.35(d)(1) Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the commission under Article 38.01.
The lab in Pennsylvania was not accredited by the Texas FSC. And the FSC has rejected numerous pasts requests for investigations from states other-than-Texas citing jurisdictional reasons. If the FSC was following precedent, it would have rejected this investigation too. To investigate the complaint from Pennsylvania and not others like it, is to present bias and/or favoritism.
The FSC has become nothing more that a repository for allegations of professional misconduct. A sinkhole. They rarely perform their duties as required from 38.01.
According the Meeting Minutes (Quarterly Meeting) from August 18, 2017, no less than 10 complaints were dismissed by the FSC "based on the information provided by the lab (Director/Management/Supervisor), including the explanation of the non-conformance and/or including the explanation in the lab's corrective action and/or including the root cause analysis."
And if you pull this leg, it plays Jingle Bells! Because crime labs have no reason to lie, right? They have no reason to skew the actual events of the non-conformance. The crime labs have come to expect that the FSC won't perform an on-site visit, let alone an unannounced surprise visit.
1 meeting, 10 dismissals, all of which fall within their jurisdiction.
The purpose of an independent investigation is to validate, or invalidate, the statements made in the complaint and the subsequent lab's response. Were the details described in the complaint credible? Were the details in the complaint complete? Complainants, more than likely, don't have all the information necessary to provide a thorough complaint describing all the problems or possible problems. Did the lab director respond with all the information necessary to illustrate the entire scope of the problem, or was only a superficial amount of info provided to the Lazy-Boy scientists so they can feel good about the work they are eschewing. There's no reason to submit complaints to the FSC if they are simply going to rubber-stamp some uninspired and random reasoning for not taking action.
9/10 times, the problems in the lab are much, much worse than statements in a complaint. And 9/10 times the crime lab is hiding the remainder of the iceberg. The FSC is supposed to find these 9 other times.
And Grits, you stated "the FSC focuses on forensic techniques; if they're still in use today, and they are, it doesn't matter if they're 30 years old."
No. 17.34; Radke, Christopher (SWIFS; DNA/Serology)...According to the complaint, Mr. Bevel [out-of-state blood stain pattern expert] identified twelve high velocity bloodstains on the evidence (left leg of a pair of pants), and this conclusion contradicted a diagram drawn by former SWIFS analyst John Planz.
MOTION AND VOTE: Budowle moved to dismiss the complaint because the case was from 1997...Drake seconded the motion. The FSC unanimously adopted the motion.
Nothing to learn there, right? Awww, so close.
From the Meeting Minutes (Quarterly Meeting) from August 18, 2017...
No. 17.05; IPOT (DPS Austin/Orchid Cellmark; DNA/CODIS): This is a complaint by the Innocence Project of Texas alleging the DPS Austin CODIS Laboratory failed to comply with National DNA Index System (“NDIS”) procedures when uploading a DNA search profile into the Combined DNA Index System (“CODIS”) such that one of the obligate alleles would have excluded the particular defendant being compared had the profile been properly uploaded.
Budowle explained his reinterpretation of the DNA mixture data in this case. Ultimately, the reinterpretation would not have changed the conclusion that Mr. Millage was included as a possible contributor. Ware inquired about the exclusion of the other CODIS hit included in the search; Budowle explained the hit was against a forensic profile and the process DPS used to conclude the other hit was an exclusion.
MOTION AND VOTE: Parsons moved to dismiss the complaint based upon Budowle’s observations and reinterpretation of the key DNA mixture evidence. Downing seconded the motion. The FSC unanimously adopted the motion.
What? No sub-Committee? No vote? Surely Mike Ware had his own DNA expert to boldly help with the complaint. Was he called for questioning or interviewed? How many other times has there been a failure to comply with National DNA Index System (“NDIS”) procedures when uploading a DNA searches at the DPS Austin Lab?
There is probably more to the story, but we won't get it today or tomorrow.
Six years from now, maybe.
Also from the same Meeting Minutes (Quarterly Meeting) from August 18, 2017...
No. 13.06; Mireles, Gustavo (DPS McAllen; DNA/Blood Spatter): This is a complaint by inmate Gustavo Lopez Mireles and Private Investigator Daryl Parker alleging fundamental flaws in DNA interpretation by DPS as well as flaws in crime scene reconstruction with a particular focus on blood spatter analysis.
MOTION AND VOTE: Budowle moved to dismiss the complaint based upon the results of his review of the DNA analysis performed in the case. Parsons seconded the motion. The FSC unanimously adopted the motion.
I repeat...No Sub-Committee? No vote? No other expert's opinion of the DNA data? And I guess the blood spatter evidence wasn't worth the effort to investigate.
Apparently, Budowle is a one-man wrecking crew. There's no need to have any of the other 8 Commissioners. No one is enforcing the rules or the statute anyway.
This will save a lot of taxpayer money.
And again,
No. 17.46; Tran, Quang (SWIFS; Firearms/Tool Marks): This is a complaint by inmate Quang Tran alleging the firearm/tool mark analysis performed by SWIFS was flawed due to the fact that the work was performed by SWIFS analyst Heather Thomas who misidentified a firearm in a Grimes County case for which the Commission issued an investigative report.
MOTION AND VOTE: Drake moved to dismiss the complaint and refer it to the Dallas County DA’s Office and the Dallas County Conviction Integrity Unit for determination as to whether the case merits reanalysis.
When in doubt, shuffle the investigation to an opaque agency who will obfuscate any findings. Give the responsibility to an agency who has no interest in determining how many of their adjudicated cases were botched by the bad science in the crime lab. No need to know if Investigators are wasting time, energy, and resources chasing blind alleys of unsolved cases. No need to know if the analyst has a history of misidentifying firearms. No need to know if she acted negligently, or was taught poorly, or was directed by her Supervisors to fudge the results. No need (and no requirement) for a publicly available report. No need to abide by Attorney General's Opinion KP-0055. No accountability either.
The complaint disappears into the ether, like the wrongly convicted or the hapless victims.
@ 9:50
Here is the link to the page on the TFSC’s website with the list of accredited labs outside the state of Texas. The Pennsylvania lab (National Medical Services) is listed as an accredited lab. By my quick count, TFSC accredits about 50 labs outside Texas.
http://www.txcourts.gov/media/1441929/lab-accreditation-outside-texas-1.pdf
@8:31-
You are incorrect.
The link you provided is a list of accredited crime labs outside of Texas. But they are not accredited by the Texas FSC. Each State decides if their crime labs need to be accredited or not.
The 84th Texas Legislature passed Senate Bill-1287, signed into law by Governor Abbott on June 20, 2015. This bill transferred the responsibility for accrediting crime laboratories from the Texas Department of Public Safety (“DPS”) to the Texas Forensic Science Commission (“Commission”) effective September 1, 2015. See Tex. S.B. 1287, 84th Leg., R.S. (2015).
The Forensic Science Commission was created by Texas Law and does not have any authority in other states. Hell, they barely have authority in Texas.
But this should help you.
http://www.ncsl.org/Documents/cj/AccreditationOfForensicLaboratories.pdf
The accreditation source for the Pennsylvania lab was ASCLD/LAB. That is the agency that should have performed the investigation and should be, in part, to blame for the snafu in that lab.
The April 20, 2018 FSC Report NATIONAL MEDICAL SERVICES, INC. (NMS) DNA ANALYSIS IN CASE OF U.S. v. Torney actually states, "Typically, the Commission would not consider issues raised in a criminal case in a court outside of Texas. However, on January 28, 2015, the Honorable Herbert B. Dixon, Jr. issued an order in the Torney case (the “Dixon Order”) that if accurate, could substantially impact the reliability of other DNA cases analyzed by NMS, including Texas cases."
In their report the FSC made no connection between the protocols used in the Pennsylvania lab and the protocols used in the Texas lab. There was no indication that the DNA protocols are identical or similar. In fact, the investigation was not about the specific protocols, per se, but the DNA scientists in Pennsylvania disregarding the lab's own validation studies, lab DNA protocols, and poor lab management decisions. And, per the very detailed "Dixon Order" (2015), the matter had all but been decided, discrediting the DNA scientists and excluding their data from the case in Pennsylvania.
So why the investigation by the FSC? What is the connection?
Presented only in a footnote within the FSC's report, "Dr. Bruce Budowle...recused himself from this matter because he served as an expert for the Government in the Torney case."
Dr. Budowle (pre-FSC days) already had all this information back in 2015! There was no reason for the FSC to waste time on this investigation unless it was the intention of the FSC to gain national attention or to drag it's feet on more important Texas issues. But you won't find these excuses in the FSC Report.
@9:02 -
Admittedly, the rules related to the admissibility of evidence in Texas courts can be somewhat confusing.
However, regarding the admissibility of forensic science evidence, the Code of Criminal Procedure is clear: 38.35 states: "(d)(1) Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the commission under Article 38.01."
That is pretty plain.
The requirement for accreditation extends to both public and private laboratories, and to in-state and out-of-state laboratories.
In the case of the Pennsylvania laboratory (National Medical Services) it is doubly easy to determine that it is accredited by the Commission, because the laboratory says so on its website, and provides documentation. There is a page that lists all of the laboratory's accreditations, including accreditations by various state agencies, which includes accreditation by the Commission in the areas of DNA and Toxicology. NMS also nicely provides a link to a copy of the letter from the Commission that certifies that the laboratory is accredited by the Commission.
I hope this helps clear up the confusion.
By the way, it turns out that the Commission accredits more out-of-state laboratories than in-state laboratories.
@4:35-
ASCLD/LAB is responsible for the accreditation and the audits. The FSC, as a formality only, recognizes that ASCLD/LAB is a National accreditation agency for NMS, thus evidence from the Pennsylvania NMS lab is admissible in Texas courts. But other than this letter, the FSC does nothing to confirm that the lab is following accreditation guidelines and rules. The same occurs in Texas -- ASCLD is a recognized accreditation body, and the FSC's involvement is formality only. There is no actual oversight or accountability.
http://www.nmslabs.com/uploads/PDF/TX_FSC_DrugID_DNA_accreditation_062017.pdf
And, the link on the FSC webpage to the out-of-state accredited labs is the same link that the Texas DPS webpage had for years. Out-of-state accreditation is only a formality.
What is curious, but never explained in the FSC report, is that the "Dixon Order", which chastised the DNA evidence and the Lab Management at NMS Lab, was signed on January 2015. The Lab was in turmoil for the next couple of years, yet the FSC gave the NMS Lab a formal "accreditation" in September 2015. So the FSC gave "accreditation" to a crime lab that couldn't perform DNA testing appropriately and the combative lab management was in denial.
Fantastic.
Was there no vetting of the lab before the accreditation was granted by the FSC? What is the point of accreditation if there is no accountability? The FSC, in these cases, is nothing more than a certificate mill.
Most forensic scientists know that "accreditation" is a joke.
https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_train_memo_schechter.authcheckdam.pdf
It's only Prosecutors, Judges, Defense Attorneys, and Juries that don't know.
And the FSC.
@8:09 -
You seem to have come full circle.
You start by criticizing the TFSC for doing an investigation of an out-of-state lab that is not accredited by the Commission, saying that it is a waste of time and a distraction from what they should be doing, which is investigation of labs that it actually accredits. By all accounts, the investigation has resulted in major remediations by the lab.
Then it turns out that the laboratory is accredited by the Commission, so the investigation is entirely consistent with the Commission’s responsibilities under statute.
Then you say that accreditation doesn’t mean anything anyway, particularly accreditation by the Commission because it is a “formality” based on a lab’s accreditation by a nationally recognized accrediting body; and that accrediting agencies don’t do proper oversight of labs.
But the criticism of the Commission began with you objecting to the time and effort being spent by the Commission in performing an oversight investigation of a lab that it accredits, that resulted in major remediations by the lab.
So, to summarize your criticisms: the Commission is not doing what you think the Commission should be doing, except the Commission is doing what you think it should be doing, except you don’t think they should be doing it, except they really should be doing it, except they never do what they should be doing. Except, of course when they do do it, as in the case of the Pennsylvania lab.
Oh, and of course the Austin PD DNA lab. Let’s not forget that investigation, which was done as part of an accreditation oversight function.
I think that it is fair to say that there isn’t very much coherence to your criticisms.
@9:09-
Your reading comprehension skills need work. The points made were that Texas labs should be first priority, not out-of-state labs. The FSC should be responsible for accrediting crime labs by performing the on-site audits themselves, not trusting some third-party agency that is widely known to be incompetent. And, they should be performing investigations, not whitewashing the complaints.
If you were paying attention to the comments by Fauxrensics Expert you would have noticed that in his/her example 10 different complaints from Texas labs were dismissed at a single meeting - most without verifying the statements from the crime lab's management. Some complaints were dismissed as the FSC disregarded it's own policies. I'm sure if you looked at the meeting minutes from other FSC quarterly meetings, you would see the same...dismissals and whitewash of complaints from Texas Crime Labs which clearly fall within the FSC's jurisdiction.
And even the FSC was critical of "accreditation" after performing their investigation at the APD lab.
https://www.mystatesman.com/news/crime--law/austin-crime-lab-bucked-dna-standard-for-years-yet-got-passing-grades/MZBboOfzXWWgqlem6867TO/
Did the FSC perform an on-site audit of the Pennsylvania lab prior to granting it accreditation?
Nope. It was rubber-stamped. The FSC has performed enough investigations of accredited crime labs to know that accreditation is largely garbage. Yet, they are just as responsible for the poor accreditation oversight when they don't actually perform the audits themselves.
"...Oh, and of course the Austin PD DNA lab. Let’s not forget that investigation, which was done as part of an accreditation oversight function..."
The FSC was told by APD lab analyst Cecily Hamilton in 2010 about the same problems they found in 2016 during their audit. But because the FSC didn't do their job in 2010 when they were first alerted, 6 years of bad DNA forensics went through the courts, costing the taxpayer upwards of $14 million dollars, 100+ adjudicated cases were called into question, closure of the APD DNA lab which added more burden to other crime labs as the evidence from APD was re-routed to other crime labs, and at least 5 DNA analysts were fired because they were improperly trained by the incompetent APD lab management.
Was anyone at the FSC fired? Was anyone demoted? Chastised?
Nope.
They didn't even recognize within their "2016 Final Report on the APD lab" that they knew of the potential problems way back in 2010. Cecily Hamilton's name was not mentioned. That is some chickenshit reporting.
No accountability at the FSC.
So, yes, I can be critical of an oversight agency which isn't performing it's job according to TCCP 38.01 and is violating Attorney General's Opinion KP-0055. They don't get brownie points for doing half a job.
There doesn't seem to be a metric to determine if the FSC is doing a good job or not, other than the FSC stating it so.
@12:06 -
“The points made were that Texas labs should be first priority, not out-of-state labs.”
Except, of course, that is not what the accreditation statute passed by the legislature and signed by the governor says.
There is nothing confusing about what the statute requires. It’s plain meaning is clear.
@3:23pm-
For the arguments you're making, not even the TFSC agrees. Read the Final NMS report, read Ms. Garcia's quotes in the news articles. Hell, read the links from the previous comments in this blog post. Accreditation is nothing if there is no accountability behind the certificate. If the TFSC knows practically nothing about the lab, then they shouldn't be handing out accreditation certificates like candy. It's ironic that the TFSC does so, then criticizes accreditation standards.
And if you're arguing the clear language from the statute, TCCP 38.01 also states,
"Sec. 4a(3) The commission shall...investigate, in a timely manner, any allegation of professional negligence or professional misconduct..."
Shall(legal)=imposes a duty; i.e. required.
No mention of the need for a vote by the Commissioners.
This is not to be confused with,
"4(a-1) The commission may initiate for educational purposes an investigation of a forensic analysis...if the commission determines by a majority vote of a quorum..."
May(legal)= creates discretionary authority or grants permission or a power; i.e. optional.
In this case, a vote by the Commissioners determines if an investigation happens.
There is a difference between the two mandates. And the plain meaning between the two is clear. Yet, the FSC routinely disregards 4a(3), and instead acts as if all investigation fall under 4(a-1) with Commissioners voting for each investigation. This intentional disregard for the statute is either because the Commissioners are too lazy to perform the work, or they have some undisclosed conflict-of-interest which biases their vote - not unlike a forensic analyst drylabbing a report.
Unethical and illegal.
@8:21 -
So, it appears that you are now wanting the Commission to investigate problems at labs it accredits, which is what it was doing in investigating the Pennsylvania lab, which you originally were against.
Good to know.
1:19-
Good God are you dense.
You should really get a better understanding of what "accreditation" represents. And perhaps you should take a remedial reading comprehension class at your local community college, too.
What about the complaints from the 10 accredited Texas labs rejected back in August last year, hmmm? Shall we just ignore those complaints? Should we let the bad science percolate for the next 5-6 years? How about the numerous other complaints the FSC has ignored throughout the last decade? Really, what's another $14 million of taxpayer money spent to clean up another mess made by the FSC? Who cares if a couple more defendants are wrongfully convicted, or more violent offenders roam the streets because of piss poor inadequately trained forensic scientists?
Good to know that you just don't care, Lynn.
Next time you have a thought...just let it go.
anyone else notice that FSC accreditation for the Pennsylvania lab was retroactively dated by 2 years?
http://www.nmslabs.com/uploads/PDF/TX_FSC_DrugID_DNA_accreditation_062017.pdf
what? is this even legal?
The answer for those interested is in:
Texas Code of Criminal Procedure 38.35
(e) A forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not inadmissible in a criminal action based solely on the accreditation status of the crime laboratory conducting the analysis if the laboratory:
(A) except for making proper application, was eligible for accreditation by the commission at the time of the examination or test; and
(B) obtains accreditation from the commission before the time of testimony about the examination or test.
For those interested, the criminal case that the FSC butted into, US v. Torney, happened in Washington D.C...
NOT TEXAS.
https://eaccess.dccourts.gov/eaccess/search.page.3.1?x=f4Ymgh9LmruQJiw7w*A9Nl*OU85VWnrcWl4c2fLW2Liy-TEwtbuoqRkg2fWYxjcvz0OvHeFUwD1-zYYDSIC4rw
Since the evidence and testimony was not done in a Texas courtroom, no "accreditation" was necessary.
What a waste of taxpayer money.
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