Beyond "aid" to law enforcement: Crime-lab independence speaks to scientists' differing priorities from cops

The debate over making Austin's crime lab independent from the police department - which the City Council will take up on Thursday - inadvertently helps demonstrate why such change is necessary.

Austin's city manager Spencer Cronk for years has balked at making the crime lab independent. Now that the community has made such "decoupling" a part of "reimagining" the police budget, he has had little choice but to embrace the idea. But he's doing so in the most tepid, pro-cop way imaginable.

Here's the proposed ordinance, which places the crime lab under control of the city manager with no independent oversight board. Check out the vision statement for the new agency, then let's compare it to Harris County's forensic science center.

The Forensic Science Department shall be engaged in the administration of criminal justice in support of state, federal, and local laws, and shall aid law enforcement in the detection, suppression, and prosecution of crime. In carrying out this purpose, the Forensic Science Department shall:

• Conduct objective, accurate and timely analyses of forensic evidence supporting the administration of criminal justice, and perform related services;

• Allocate substantially all of its annual budget to such criminal identification activities; and

• Be responsible for the following services in support of criminal justice: crime  scene investigation; evidence management; firearm/toolmark examination; seized drug analysis; toxicological analysis; latent print examination; DNA analysis; and related forensic services as may be now or later developed for public safety purposes.

 • Establish such policies, management control agreements, and procedures as necessary to carry out its purposes and activities stated above.

By contrast, here's the Mission/Vision statement for the Harris County Institute of Forensic Science:

The Mission of the Harris County Institute of Forensic Sciences is to provide medical examiner and crime laboratory services of the highest quality in an unbiased manner with uncompromised integrity.

Vision

To provide consistent, quality death investigation and laboratory analysis for the benefit of the entire community.

To create a technological strongpoint for legal agencies to facilitate justice in criminal and civil proceedings.

To establish an academic environment for training in the field of Forensic Science.

Notice the difference? In Harris County, the "mission" is about quality science that benefits everyone. In Austin, the proposed mission is to "aid law enforcement in the detection, suppression, and prosecution of crime" and to "Allocate substantially all of its annual budget to such criminal identification activities."

If the department allocates "substantially all" of its budget to "identification," will it be able to implement the sort of quality-assurance systems needed to prevent false convictions? Will the department spend adequately on scientists' professional development? They haven't in the past. Nothing in the proposed ordinance reflects any of the myriad problems that put the lab on the "decouple" list in the first  place.

In the Harris County example, scientists are encouraged to be scientists; in Austin, the city manager views them as an agent of law enforcement. 

These are quite different approaches, reinforced by different governance structures: The Austin City Manager has suggested the crime lab report to him just like other departments. By contrast, the Harris County lab director reports directly to the county commissioners court. The Houston lab - itself spun off from the police department - has its own independent board.

Several local civil-rights and victim advocacy groups are petitioning the City Council to change the proposed mission statement and "activities" before this comes to a vote on Thursday. The same groups aim to champion changing the lab's governing structure soon after the new department is created.

This debate has been a long time coming, and it speaks poorly of Austin PD's leadership that crime-lab independence hasn't happened before now. The lab has been a mess for a while now and independence from law enforcement has been considered a best practice for more than a decade.

UPDATE: The city council approved the ordinance separating the crime lab from APD, and changed some of the language I'd complained of in this post. It remains to be seen whether they will come back with more changes to create an independent board for the lab.

What the jury didn't hear, against SWAT raids for routine search warrants, bail explainers, courthouse architecture, and other stories

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

Margaret Moore, Rosa Jimenez, and what the jury didn't hear
Weird comments from Travis County DA Margaret Moore on the Rosa Jimenez case in The Appeal: “There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.” But here's the thing: The reason four judges have now said Jimenez is likely innocent and should be released is that the jury heard false, un-rebutted expert testimony that biased their view. When judges looked at all the same evidence, and also evidence to which the jury wasn't privy rebutting junk science in the case, they said Rosa didn't do it. So jurors didn't consider all the evidence. That seems disingenuous. (See prior Grits coverage, and listen to a segment on the case on the latest Reasonably Suspicious podcast, plus coverage from a Travis DA Democratic candidates forum over the weekend.)

Use of SWAT raids for routine search warrants creates needless risk
The practice of using SWAT tactics to execute routine search warrants continues to result in unnecessary deaths. A Waller County man was killed in a SWAT raid by police who wanted to seize a computer (someone else's) over alleged possession of child pornography. Can it really require a no-knock raid to seize a computer? This was unnecessary; the man's death was much more a predictable policy failure than it was an accident.

Fewer inmates beaten up more often at TDCJ
Recent inmate deaths at the hands of guards in Texas prisons highlights that use of force by staff has increased dramatically in recent years, reported the Texas Tribune, even as the number of inmates supervised declined and eight prison units closed.

Whistleblower gaining momentum in Sheriff's race
Liz Donegan, the Austin PD whistleblower who was removed as head of that agency's Sex Crimes unit because she wouldn't improperly classify cases as "cleared," is now running for Travis County Sheriff and, remarkably, earned the Austin Statesman's endorsement. Although Donegan was removed from her Sex Crimes post during Chief Art Acevedo's tenure, current Chief Bryan Manley earned ownership of the topic by blaming data errors on victims when the story came out. Him having her as a Sheriff-to-Chief peer would be deliciously awkward.

Bail explainers
Egged on by police, the Dallas Morning News has been blaming Dallas County DA John Creuzot for failures in the legacy bail system. But when they tried to do that in front of the City Council, staff gave everyone a primer on who is in charge of setting bail in Texas: Judges, not prosecutors. In Harris County, a judge demanded an explanation from prosecutors on why they blamed her in the press for a violent criminal's release when they'd never informed her of the details. Meanwhile, at the Paris News (TX, not France), a local reporter offered better explanatory coverage of the bail system than the Dallas News has yet.

Travis County judges dip toes in bail-reform waters
Travis County judges are saying they want to implement bail reform, including requiring defense attorneys at magistration, despite opposition from Travis County DA Margaret Moore. But the Texas Fair Defense Project and their allies say there would still be too much delay before release under the new proposal, and called for changes to the draft. Still, judges taking leadership on this is heartening news. They'd mostly dug in their heels before now.

No extra prosecutors for you, Kim Ogg
For the Harris County Commissioners Court, turning down District Attorney Kim Ogg when she asks for more prosecutors has become habit forming.

Houston crime lab to use disputed DNA mixture software
The Houston Forensic Science Center has begun using STR-Mix software for analyzing DNA mixture evidence. But last fall, a federal district judge in Michigan excluded such software from evidence after a "Daubert" hearing. DNA mixture analyses have been fraught with error for many years. Under the Michigan judge's ruling, based on recommendations from President Obama's forensics commission, STR-Mix software may be used when a) there are no more than three contributors and b) when DNA from the target makes up at least 20 percent of the sample. No word if HFSC intends to abide by those limitations.

Cherry picking data for scary headlines
The Austin Statesman issued a story with the headline: "Violent crimes with homeless suspects, victims went up in 2019, data show." The big news was that reported violent-crime incidents in the city increased by one percent last year, with a small increase attributable to the city's homeless population. What they didn't say was that Austin's population has been growing by 2-3% annually, so the rate likely decreased! Austinites were less likely to be victimized by violent crime last year than the year before. Why wasn't that the headline?

Defending Austin's federal courthouse architecture
The Department of Justice wants all federal courthouses to look like Roman temples and specifically criticized Austin's federal courthouse as an example of what they don't want. But I really like the federal courthouse in Austin. I was there recently for a hearing in the Rosa Jimenez case, then later to retrieve audio from the clerk. It's incredibly well-designed, with much more natural light and customer-friendly arrangement than most of them. Here's more on the Austin courthouse's architectural approach.

Fines and fees
Two essays on fines and fees for you:

• Marshall Project: The True Cost of Court Debt
• The Hill: Fees, fines, and the ability to pay

'Doing justice isn't left, it's right'
The Texas Public Policy Foundation's Marc Levin thinks progressive prosecutors are mis-labeled.

Texas' natural experiment on marijuana shows decriminalization brings relief to an over-strained system

The number of marijuana arrests in Texas has plummeted since June, when the state legalized "hemp" and, as a result, accidentally erected new barriers to prosecuting marijuana cases, de facto decriminalizing pot in some jurisdictions. At the time the law passed, Texas crime labs had no way to distinguish between legal hemp and illegal marijuana.

The result, reported Jolie McCullough at the Texas Tribune: The number of new marijuana cases filed by prosecutors plummeted by two thirds, from an average of 5,900 per month last year to 1,919 in November.

Think about that: Thanks to this happy accident, nearly 4,000 fewer people per month will be prosecuted. Less widely discussed: Texas crime labs will receive nearly 4,000 fewer marijuana samples per month for testing. That's roughly 48,000 fewer per year.

This reduction in volume comes at a time when Texas crime labs, especially at the Texas Department of Public Safety, face extreme backlogs, with the biggest backlogs by far in testing seized drugs and DNA evidence.

Last year, state Rep. Terry Canales voiced complaints about outlandish wait times for DPS to test evidence in the Rio Grande Valley, complaining that in many cases it takes years to test the evidence.

If justice delayed is justice denied, it's surely being denied in cases where crime labs require years to test evidence. Imagine you're a defendant awaiting trial who can't make bail. Who wouldn't accept a plea deal for anything other than a long prison sentence? Certainly for the 4,000 people per month who would have otherwise received a misdemeanor marijuana charge, there's an enormous incentive to plea rather than wait months or years for lab results to come back. 

Given the state of crime lab delays, Grits would argue it would be irresponsible to ramp up the number of user-level marijuana cases to past levels because it soaks up so many resources the crime labs need for more serious crimes. (There are other reforms needed to solve crime-lab backlogs, but if they're not going to embrace them, policy makers should embrace every opportunity they have to reduce the volume of crime-lab submissions.)

In addition, to the extent that a significant proportion of those 4,000 pot cases would have been people deemed indigent and entitled to have the county appoint them a lawyer, this happy development has reduced local indigent defense costs at a time when caseloads remain high despite dropping crime.

Prosecutors in Harris County and elsewhere have lately complained of high caseloads. Well, reducing misdemeanor caseloads by nearly 50K per year statewide surely helps with that problem.

In addition, since marijuana possession is a Class B misdemeanor, most of those 4,000 people per month would have been booked into the county jail upon arrest. (A few jurisdictions take advantage of police authority to cite pot possessors instead of arrest them, but overall, not many.) Local jail costs average around $60 per day, but that's somewhat misleading. Most people arrested for pot get out in a relative short time. However, the first day is more expensive because jail-intake processes require medical and mental health assessments, pretrial services questionnaires, immigration checks, DNA swabs, etc.. Estimates I've seen put first-day costs closer to $150-$200 than $60.

So reducing the number of marijuana prosecutions - and hopefully, also arrests - translates to significant, welcome relief for an over-strained system across many vectors.

This impromptu natural experiment has demonstrated that marijuana can be decriminalized in Texas with no noticeable detriment to the public weal. Certainly there's no evidence public safety has been harmed in the least by this radical reduction in pot prosecutions. Meanwhile, nearly 4,000 fewer people per month are subjected to the expense and indignities of arrest for a "crime" most Texans fundamentally do not believe should be one.

Grits would be interested in two datapoints that weren't covered in Jolie's story. On the first - which prosecutors are still pursuing marijuana cases - we got anecdotal info:

Without public lab testing available, some police agencies turned to private labs — but at a cost. In North Texas, Frisco and Plano police said last month that they continue to pursue all suspected marijuana offenses, submitting cases to private labs for testing. The Collin County district attorney now requires lab results for misdemeanor cases, according to Gail Leyko, the Plano Police Department’s legal adviser. She said all marijuana cases are still being prosecuted, but it costs the city hundreds of dollars more per test to go through private labs that can determine THC concentration.

Grits couldn't figure out how to query OCA data to identify which prosecutors are still pursuing pot cases, but I'd sure like to know. In an era when more prosecutors than ever are being successfully challenged at the polls, that's information voters could use to judge the wisdom with which prosecutorial discretion is exercised.

My second question about this news: Jolie is counting how many marijuana charges were brought by prosecutors. That's a different number from "how many people were arrested for marijuana?" Those arrest data aren't publicly available yet, but I wonder if folks are still being arrested and taken to jail over alleged marijuana possession in greater numbers than we see here, only to have prosecutors dismiss or refuse to file charges? 

Grits considers this welcome news, but there's still a lot we don't know: Who is still being arrested, and by whom? Who is still being prosecuted, and by whom? Who is being arrested but not prosecuted and what happens to them? ¿Quien sabe?

Finally, the question arises, how should the Texas Legislature respond to this from a policy perspective? Governor Abbott has made it clear we'll see no special session on the matter, so Grits would expect to see these low arrest numbers continue, or even drop further, in the near future, perhaps upticking later in the year as a few jurisdictions purchase the expensive equipment needed to distinguish "hemp" from "marijuana" (which, of course, are the exact same plant).

So by the time the Legislature convenes, we'll have been through 18 months of radically reduced marijuana enforcement, approaching zero in some jurisdictions, including some of the larger ones. If all the Chicken-Little Drug-Warrior proclamations turn out to be BS and the sky hasn't fallen, the 87th Legislature would be a perfect opportunity to shift pot penalties to either a civil penalty - as the GOP platform suggests - or a Class C misdemeanor, as Gov. Abbott has endorsed.

To be clear: Personally, I'm one of the 61 percent of Texans who would legalize pot tomorrow; this summer I witnessed the Canadian model first-hand and considered it a brilliant success. But Grits doesn't anticipate Texas' statewide leadership in 2021 will be ready to go that far.

Even so, it would be a mistake to go back to the bad old days of 6,000 pot prosecutions per month. Ramping marijuana prosecutions back up would put undue pressure on crime labs, boost counties' indigent defense costs, exacerbate high prosecutor caseloads, and incur unnecessary county jail expenses. Local officials should continue deprioritizing marijuana cases and, when they meet in 2021, the Legislature should simply take arrests off the table for such offenses altogether.

RELATED: From the SA Express News, DPS state troopers have inconsistent policies related to people for pot possession, arresting them in some counties and issuing citations in others.

CORRECTION/CLARIFICATION: This post has been edited to correct a mistake I made interpreting data on crime lab backlogs. The post originally estimated backlogs of 2.5 years for drugs and 3.5 years for DNA. But I had mistaken the number of backlogged cases for wait times in days. That said, the underlying news story from which the crime-lab backlog chart was drawn quoted the Texas House Transportation Committee Chairman Terry Canales declaring that, "Defendants are frequently and unnecessarily spending years in jail waiting for forensic evidence to be processed so that they can have their day in court." So the overarching point about crime lab backlogs remains valid.

Podcast: New evidence of Rodney Reed's innocence, first thoughts on the Atatiana Jefferson shooting, and the Mystery of the Disappearing Misdemeanor Arrests

Here's the latest Reasonably Suspicious podcast from Just Liberty:


This is the October 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice policy and politics. This month, my cohost Amanda Marzullo and I interviewed attorneys for Rodney Reed, who is on death row with an execution date of November 20th. We plumbed unknowable but interesting questions about misdemeanor arrests, discussed the sad, grim, story of Atatiana Jefferson's shooting in Fort Worth, and complained that the moments spent reading and talking about a new ACLU report on how to end mass incarceration are time we'll never get back. :)

Intro

Okay, it's probably a crime for a former justice of the peace to pimp slap a Yankees fan at an ALCS game in Houston and make him cry, but it's also pretty funny.

Top Stories

• First takes on the Atatiana Jefferson shooting in Fort Worth (2:34)
• Evaluating ACLU decarceration recommendations for Texas (8:34)

Interview

This month, Mandy and I spoke to Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer Brown in Houston on the Rodney Reed case. Reed is scheduled to be executed on November 20th. (14:38) This is excerpted from a longer conversation. I'll publish the full interview, which goes into more detail about debunked forensic testimony in the case, separately in a couple of days.

Suspicious Mysteries

Why have misdemeanor arrests declined? Why didn't they decline earlier when crime first dropped? What do we really know about why crime dropped or the relationship between crime and arrests? Mandy and I discuss some known unknowns. (27:15)

The Last Hurrah (36:40)

• Hard to reprimand Texas judges
• Years-long backlogs at crime labs
• Message sent by jury in prison-guard murder trial

As always, I've ordered a transcript and will add it below the jump when it comes back. Enjoy!

Fixing longstanding criminal-justice problems in a black-ink budget year

Comptroller Glenn Hegar gave the Texas Legislature some good news with a black-ink budget projection for the coming biennium, suggesting they may have more than $9 billion more to spend than in 2017. Some of that will go for Hurricane Harvey costs (thought the Rainy Day fund should also contribute to that), some will get gobbled up with increased costs for entitlement programs, and any school finance fix will almost certainly consume the lion's share of the rest.

But it's not inconceivable that the Texas Legislature could use some of that money to solve ongoing problems in the justice system. What might that look like? Here are some ideas Grits brainstormed; let me know in the comments if you think of others:

Eliminate the Driver Responsibility Surcharge: $300 million

Both Texas political parties and every politician under the Pink Dome you ask wishes the Driver Responsibility Surcharge weren't the law. But the program brings in roughly $300 million per year - half goes to the General Revenue fund, half goes to hospital trauma centers - and politically, the surcharge can't be repealed unless the state comes up with the money.

Raise the Age: $45 million

When the 85th Texas Legislature ended, Texas was one of seven states that prosecuted 17 year olds as adults. Today we're one of only four. There's a decent chance that, if the Lege doesn't change the law this year, we'll be the only one when the 87th Legislature convenes in 2021. The Legislative Budget Board estimated making the shift would cost $45 million during the first biennium of implementation, and $70 million per biennium after that, to send youth through juvenile corrections systems instead of the adult side. (There's some evidence these costs are overstated, under-estimating related savings.) The House has passed RTA legislation two sessions in a row, but senators and the Lt. Governor are unlikely to bite without a dedicated allocation in the budget.

Boost reentry funds: $30 million

Increasing funds to prisoners leaving TDCJ from $100 to $300 would cost ~$13 million per year, $26 million per biennium. Tack on another $4 million per biennium to make sure they have driver's licenses or ID cards when they hit the streets, and mandate that DPS issue them based on information provide by TDCJ. Neither of these were in the agency's appropriations request, but they should have been.

Crime labs: $8-10 million

The Legislature either needs to boost funding for crime labs by perhaps $8-10 million per biennium or start charging for services. The DPS LAR only asked for $5.8 million that was taken away from the agency in user fees. But that amount was insufficient to solve the months-long backlogs presently being experienced. Legislators should find out what would be needed to reduce backlogs to a reasonable period then fund DPS crime labs at THAT level. Or, alternatively, Grits supported the user fees the Governor rescinded in the interim and think they're a reasonable way to fund this service.

Prison costs soaring: Cuts needed

TDCJ's appropriations request asked for an increase of more than $700 million beyond what's already a $7.3 billion-with-a-b budget. The LAR suggests the agency needs $247 million over the next biennium to maintain current (low, perhaps even unconstitutional) standards for provision of inmate health care, and another $32 million for probationer treatment funds. They also asked for $156 million for staff raises and $146 million in facility repairs. These are not unreasonable requests, but Legislature should enact further decarceration reforms and close understaffed, rural prison units and those requiring costly repairs to pay for those requests and reduce upward cost pressures.

Indigent defense: Est. $10 million

Counties want the state to pay 100% of indigent defense costs. For reasons Grits has articulated previously, that's a specious and self-interested position that flies in the face of the traditional state-county roles in the justice system. That said, the state would benefit from additional, targeted investments in the indigent-defense system. They should prioritize Texas Indigent Defense Commission grants for public-defender officers, which are the most effective and efficient way to deliver legal services where they're needed most. They should finance a capital defender office to handle indigent death penalty cases. ($1 million per biennium.) They should boost funding for the Office of Capital and Forensic Writs. And they should take Judge Elsa Alcala's advice to fund counsel for indigent defendants filing habeas corpus writs related to ineffective assistance of counsel. Obviously, public-defender grants could be of any size, but $10 million added over the biennium to these priorities would make a big difference.

I didn't include an estimate for upgrades to mental-health services because a) I have no idea how to evaluate costs or need, and b) my sense is the state would be better off if these services were primarily utilized outside the justice system, breaking from past practices. But that's certainly another area in need of investment. And there are probably specific investments to reduce competency restoration waits and to better meet the mental-health needs of incarcerated people that deserved to make this list. The Lege could boost state investments well into the nine-figure range and it still wouldn't be enough.

Harris Sheriff's captain providing cover for Balch Springs shooter, the TX bail-reform roller coaster, and other stories

Here are a few odds and ends for Grits readers to chew on headed into the weekend:

Harris Sheriff's captain providing cover for Balch Springs shooter
A Harris County Sheriff's captain testified as an expert witness for the defense in the trial of Roy Oliver, the Balch Springs police officer who shot a fleeing, unarmed 9th grader to death in a nationally publicized episode that got Oliver fired and indicted. One wonders, does this mean we may expect the Harris County Sheriff's office to take a less strict view on when its officers may shoot at fleeing, unarmed suspects? The Dallas News reported that the Harris County Sheriff's captain, Jay Oliver Coons, "reviews use-of-force cases at the sheriff's department." Does Sheriff Ed Gonzalez agree that the shooting of Jordan Edwards was justified and it would be okay if his deputies did the same thing, or has his captain's testimony gone off the reservation? Inquiring minds want to know ...

Bail-reform roller coaster
August saw bail reform efforts take a gut-wrenching roller coaster ride. First, Gov. Greg Abbott joined legislative and judicial reformers in supporting bail reform, suggesting the bill be named after a murdered state trooper.  But then the Fifth Circuit Court of Appeals unexpectedly gutted the order governing Harris County bail policies, reneging on critiques of detention policies that discriminated based on defendants' wealth. Instead, they insisted that such discrimination is okay as long as defendants receive individualized hearings. That relieves some pressure on the Texas Legislature to pass bail reform, but does so just at the moment state leaders appeared to be reaching consensus on what bipartisan reforms might look like. Who knows where the issue goes from here?

Felony record not a bar to council candidacy
The Austin city clerk this week agreed that Lewis Conway, Jr., is eligible to run for office because, despite a quarter-century-old manslaughter conviction for stabbing to death a man who allegedly stole his drug stash. Conway is  now "off paper," having completed his parole requirements and regained his right to vote. The Texas Tribune reported that, "Conway's success Tuesday is unique for one big reason: He's a convicted felon." But "unique" is not the right word because in 2014, Bexar County elected a former drug dealer with a felony conviction as its District Attorney, so the precedent was already set. As with Conway, local officials and opposing candidates declined to challenge Nico Lahood's candidacy in a much higher-stakes race. Grits congratulates Conway on affirming that precedent, and I'm plesased he'll be on the ballot.

Management inattention to crime lab at Austin PD backfiring
Austin PD crime lab's DNA section may remain shuttered for many more years, judging by a report that the city may continue using an outside DNA lab through 2022. Although public debates and the local media have downplayed the culpability of APD managers, the unfortunate truth is that under the previous chief, Art Acevedo, the department largely ignored its civilian functions like crime-scene techs, victim services, and the crime lab. Instead, they focused every extra dollar on expanding the number of and pay going to officers on patrol. Just weeks after Acevedo left to take the reins at Houston PD, the crime lab debacle blew up under his successor's watch. Current Chief Brian Manley was one of Acevedo's commanders and has similarly prioritized budgets for sworn staff over improving the agency's civilian functions. Despite that, the city council could locate no other candidates to even consider; apparently Manley was the only qualified guy they could find. (There's no "Rooney Rule" for police chiefs; after Dallas hired a black woman as chief, for example, there clearly were no other minority candidates anywhere who might be worthy of consideration, hence Austin considered none [/sarcasm].) So I'm not surprised that officials expect the situation to linger on. APD hasn't prioritized its civilian functions in many years and it's hard to view Manley's hiring as anything more or less than an affirmation of the status quo.

DPS suggests closing license centers as long lines loom
As headlines continue about long lines at DPS driver license centers, the agency has suggested closing 87 smaller offices - many of which have only one employee and/or low customer volumes - in order to consolidate resources at the centers with long lines. That could be the right management move, but politically, Grits predicts it will be a non-starter. A few may be closed, but I'd be surprised if the number of closures reached double digits, much less 87. And anyway, closing small facilities won't solve the bigger problems exacerbating long lines at the DPS megacenters, which have more to do with legislative policy than agency-level logistics.

Junk science challenges proliferating
Many so-called "forensic sciences" are really non-scientific, subjective comparisons made by cops, not scientists, argued an editorial at The Legal Intelligencer. That was the reason Texas created a new form of habeas corpus writ - discussed recently in the Texas Tribune in the context of shaken-baby cases - to allow redress when the legal system bases convictions on junk science. The writ is also currently being used to challenge the validity of bite mark evidence as well as blood spatters, a topic Grits delved into in an interview with ProPublica reporter Pam Colloff (read her latest) for the podcast that will be out next week.  RELATED: Top ten junk forensic sciences challenged in Texas.

Cohen doesn't cotton to FIRST-STEP opposition
Check out Right on Crime Director Derek Cohen's rebuttal to U.S. Senator Tom Cotton regarding the latter man's opposition to the FIRST-STEP Act and sentencing reform. Wrote Cohen, "We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny. Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox." In recent days, we've seen President Trump first embrace the bill and then reportedly back off until after the election. From this remove, Grits can't tell who in D.C. is serious about reform or what chances it has in the current political environment. Whatever is the case now could change with the next presidential tweet. But I do know that reformers' opposition to the bill was ill-considered and based on partisan considerations, not #cjreform principles. Passing moderate bipartisan reform is clearly better than doing nothing, which is the alternative.

Police unions, the media, and me ... and other stories

Grits fell ill at the end of the holiday weekend, am only now really back on my feet, and find myself in a desperate need to clear my browser tabs. So, y'all get a roundup of all the stuff I don't have time to blog about right now.

Police officers indicted more often, but seldom convicted after shootings
More police officers in Texas are being charged after questionable shootings, but prosecutors who were able to convince grand juries to indict have been less successful at securing convictions at trial, reported Tasha Tsiaperas the Dallas Morning News (who has a really cool, bond-villain-type name!). In related news, Grits contributing writer Eva Ruth Moravec had a feature in the Houston Chronicle about a Freeport police officer acquitted by a Brazoria County jury for shooting his unarmed neighbor in the next apartment. It was as negligent a situation as one could imagine, so maybe civil court is still an option: The cop apparently slept with a loaded gun in his bed (and in this case, his finger on the trigger, safety off) and fired it through his headboard into the next door apartment. Attn: Texas Monthly, this is mandatory Bum Steer material.

Police unions, the media, and me
Most local media coverage of the Austin police contract has been dismissive of the push by the Austin Justice Coalition and their growing list of allies to get the city council to vote "no." This, despite opposition to the contract from hundreds of signators, more than a dozen groups, and even though, in a staunchly Democratic county, D precinct chairs unanimously voted for a resolution urging city council to kill the deal. Currently the vote is scheduled for December 14th. At the Texas Observer, Michael Barajas has a feature explaining more fully "How the expiration of Austin's police union contract could be a rare opportunity for reform." Former CLEAT mugwump and long-time police-union leader Ron DeLord, who was lead negotiator for the Austin Police Association on the contract, complained on Twitter that Barajas didn't talk to him. So I suggested DeLord do a podcast interview to air his views, and he agreed(!). I hope y'all are looking forward to that as much as I am. Mainly I want to talk to him about his books: See Grits' discussion of his latest one, and also the opening segment of our August Reasonably Suspicious podcast discussing his remarkably accurate prediction of Texas' police-pension crisis, which was a contentious legislative imbroglio this year resulting in outcomes with which no one is happy, but which brokered an uneasy, temporary truce among the parties. If the economy holds.

Evaluating police bodycams
Coupla items here: A new study found bodycams reduced use of force episodes at the Las Vegas PD while providing quality evidence that supported criminal convictions mostly of defendants, not cops. But many advocates, your correspondent included, believe the laws limiting transparency around footage reduce the accountability benefits. Supporting that claim, Nick Selby wrote on The Crime Report that, "In October of this year, the biggest-ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C." So the jury's still out on whether this will turn out to be an important accountability measure, as they were originally pitched in the hyped aftermath of the Ferguson protests.

With shortfall looming, a way to reduce DPS crime-lab volume
Plano PD is testing a device that can tell whether DNA exists on a piece of evidence before they send it to the lab instead of after. If this works as advertised, Governor Greg Abbott, his grants division, and DPS crime-lab folk should take heed. It might even be worth the Governor considering emergency grants to buy these for the biggest users of DPS DNA lab services to reduce the volume of cases. A lot of material sent has no DNA on it at all, and to screen that out up front would make a big difference on volume in a biennium when the Legislature told DPS to collect fees for part of their budget and the Governor has stopped them from doing it. That creates a shortfall unless they can find ways to reduce volume. This could be an important one.

Death penalty now mainly an LWOP plea-bargain chip
Texas will perform no more executions this year after the Court of Criminal Appeals issued a stay and halted Juan Castillo's planned trip to the death chamber. But expect life without parole sentences to keep stacking up as Christmas approaches. In 2016, according to the Texas Office of Court Administration, just three new death sentences were secured by Texas prosecutors, compared to 64 LWOP sentences. (A whopping 426 total capital cases were filed statewide last year, which was a ten percent increase from the year before, so many are called, but few are chosen.) These days, the death penalty is mostly a threat to get people to accept life without parole sentences in a plea bargain.

Harris judges sabotaging pretrial release order from feds
Harris County judges are sabotaging the pretrial release system mandated under a federal court order by refusing to release thousands of defendants who qualify, according to a report by the Texas Tribune (which doesn't use such strong language but supplies all the relevant details). Instead, the Sheriff has to release them outside of the purview of the Pretrial Services system, where they predictably have higher no-show rates. (One of the most important things pretrial services does to get them there are reminder calls and texts.) The key problem:

Defendants who are ordered for no-cost release by a judge or magistrate are entered into the county’s Pretrial Services department, which works to ensure those out on personal bonds know the date of their next court appearance and can provide additional conditions like drug testing, mental health services or GPS ankle bracelets. Those released by the sheriff aren’t monitored once they leave the jail.

On judges as gatekeepers, redux
Here's a law review article by Stephanie Damon-Moore on a question Grits has thought about a lot: "why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity."

Beyond mass incarceration: Felony sentences rose quicker than imprisonment rates
We've established that the War on Drugs contributed more to mass incarceration than critics like John Pfaff have claimed. But now the statistician who best proved that has come out with a new analysis demonstrating even deeper, more insidious aspects to the drug war's role. Compared to new prison sentences, which themselves skyrocketed, the number of total felony sentences (including probation, deferred adjudication, etc.) went up even faster! See here, and check out the whole analysis:

Reasonably Suspicious: Police unions, collective bargaining, and accountability

Check out the latest episode of the Reasonably Suspicious podcast from Just Liberty. You can listen to it here or access it on all the usual channels: iTunes, Google Play, YouTube, or SoundCloud. 

If you haven't subscribed yet, take a moment to do so now. I'm enjoying the format and am hoping to do some interesting things in the coming months heading toward the 86th Texas Legislature. If the Wall Street Journal's right that the next billion internet users won't type, relying on voice and video, then it behooves an old dog to learn new tricks. And having cool, original music wrapped around the conversation - thanks to producer/guitar virtuoso Gabe Rhodes and some of the finest musicians in Texas (which is saying something) - makes it fun to put together.

This month's episode features three segments on police union politics, including one focused on Austin's "meet and confer" contract presently under negotiation (these highlights from the negotiating table recently made the rounds among city insiders), and a discussion of what Grits had dubbed the police union playbook on spinning to the press in the wake of police misconduct or high-profile "critical incidents." I'm perhaps most excited about the interview with Sam Sinyangwe, Campaign Zero's data specialist who has now twice visited Austin to support including accountability measures in the police union contract (or scuttling it if they're not included). I'll publish the full interview in a few days (in the meantime, you can also check out the speech he gave in Austin in September). But the segment in the podcast on why police unions too often get a political pass was worth the cost of admission.

Lots of other good stuff sprinkled throughout. As always, find a transcript of the podcast after the jump below.

Top Stories: 

• The Police Union Playbook on reacting to critical incidents

• If Harris County prosecutors are screening arrests, why are so many people arrested for Class C misdemeanors?

Interviews:

• Sukyi McMahon and Kathy Mitchell on the Austin police union contract

• Scott Henson interviews Campaign Zero's Sam Sinyangwe on why liberals and conservatives are both reluctant to criticize police union excesses

Game segment: Fill in the Blank

• Bexar and Dallas Counties cease arrests for misdemeanor marijuana possession

• Court of Criminal Appeals still denying DNA testing to capital defendants

• Real costs of incarceration top $1 trillion nationally

The Last Hurrah

• Unions now a minority at Dallas police pension board

• Time to make the Austin crime lab independent?

• Bipartisan push in Congress for asset forfeiture reform

In favor of an independent crime lab for Austin

Grits contributing writer Jennifer Laurin made the case today in the Austin Statesman that Austin PD should spin off its crime lab as an independent entity like Houston did.

That was a central recommendation of the 2009 National Academy of Sciences report and is long overdue. After the fiasco with their DNA lab, you'd think APD would be anxious to take the crime lab off their plate.

Texas yet to 'turn the page' on police reform, and other stories

Lets's clear out Grits' browser tabs with a quick roundup of stories about policing which deserve Grits readers' attention:

Texas hasn't 'turned the page' on police reform just yet
First, The Crime Report had an interview with Texas state representative and House County Affairs Committee Chairman Garnet Coleman on passage of the Sandra Bland Act. Coleman's comments were more measured, but the story included an unfortunate headline: "How Texas turned the page on police reform." To be clear: Texas has done no such thing. Coleman's bill mainly addressed mental health issues and mandated Texas cops receive deescalation training. But Texas' big police reform bill died on the vine this year, and the most important reform elements in Coleman's bill - eliminating arrests for most Class C offenses and mandating bail for non-dangerous misdemeanants - were removed before passage. The Sandra Bland Act was significant, positive legislation and Grits doesn't want to diminish its importance, but let's please slow our roll on the whole dusting off our hands, problem-solved meme.

Austin PD crime lab blues

The Austin Monitor has a pair of stories detailing problems at Austin PD's crime lab which forced the closure of its DNA section:

• Austin's crime lab failure points to national crisis
• The implosion of Austin's crime lab: A timeline

Will legalized long knives change how Texas cops deal with knife wielders?

Now that Texas has legalized people carrying knives and swords of any size, perhaps the issue of how quickly police shoot knife wielding suspects will be revisited.

Public reverence for cops undermined by shoot-first ethic
This essayist in Slate makes a good point, with an homage to Dallas News columnist Steve Blow, disputing the adage that the “No. 1 duty of a police officer [should be] to go home to his or her family at the end of the shift.” Here's the money quote the writer pulled from Blow's March 2015 column.

But there’s the crux of the matter. They have willingly taken a job that involves personal risk. It also requires split-second decision making that must go beyond simple self-preservation 

If going home safely becomes the overriding priority, that can become another way of saying, “Shoot first and ask questions later.”

This modern dicta of 21st century policing ultimately undermines the public's faith in law enforcement as surely as do unfounded criticisms of racism with which police officials are so much more deeply concerned. After all, as the Slate author concluded, "The reason we revere cops isn’t their dedication to protecting their own lives. It’s their dedication to protecting ours."

More disagreement among law enforcement than portrayed
The Heritage Foundation has published an odd "special report" purporting to summarize a convening they sponsored of various law enforcement officials. However, upon looking at the stakeholders' disparate remarks appended therein, Heritage oversold any notion of consensus, and in fact revealed significant disagreement among its (one-sided) array of stakeholders. According to Heritage, "police have had few allies," and "anti-police rhetoric has left Americans, particularly those living in low-income communities and minority communities, more at risk." But they overstated the consensus. E.g., the explanatory text under a headline which read, "Allegations of 'Systemic Racism' Are False and Harmful," actually read, "Some attendees agreed that the concept of broad 'systemic racism' in law enforcement is a damaging, false narrative that undermines public support for policing. Others felt it important to acknowledge and address past wrongs and prior grievances in order to improve race relations." That range of views hardly supports the subhed! Regardless, Heritage warned darkly that "long-term declines in crime rates ... are now being threatened by some of the developments discussed in this Special Report." This deserves a more thorough vetting than Grits has time to apply at the moment, but I wanted to flag the link.

Recent policing scholarship

Here are several academic articles on policing which are getting added to Grits' to-read stack:

• Elizabeith Joh, "The undue interest of surveillance technology companies on policing."
• Frederick W. Turner II & Bryanna Hahn Fox, "Public servants or police soldiers?"
• Adam Gershowitz, "The Intake Prosecutor: Prosecutorial screening before police make warrantless arrests."

Texans opine at NIST "Error Management Symposium"

Check out video from the National Institute of Standards and Technology "Error Management Symposium" of presentations by Peter Stout from the Houston Forensic Science Center and Lynn Garcia of the Texas Forensic Science Commission:


See all the other speaker videos here. And here are their Power Point presentations:

• Peter Stout
• Lynn Garcia

This newsclip included quotes from Garcia's speech.

Interesting note from Stout's presentation: He said the HFSC has gotten along well with the Houston Police Department, but the police union had been the source of most of the friction. The union v. crime lab tension hadn't occurred to me before.

Garcia suggested that the adversarial legal system stands at odds with improving forensic science, citing the FSC's experience with the Todd Willingham arson case as a prime example. Her description of the DNA mixture issues we've been discussing recently begins at about the 1:41:00 mark.

RELATED: Forensic bite mark analysis takes another hit in an article using its failures to highlight "the weak scientific culture of forensic science and the law’s difficulty in evaluating and responding to unreliable and unscientific evidence."

Un-tested drug evidence likely conceals false drug convictions in Hidalgo County

Houston PD has stopped using flawed field tests responsible for hundreds of false convictions, but in most other Texas jurisdictions, nobody has even checked similarly situated cases for possible errors. (Only five counties have Conviction Integrity Units in the District Attorney's office, and of those only Harris County's has focused on drug cases.)

That's why Grits was interested in this article from July 28 in the McAllen Monitor on the Texas Department of Public Safety's retraction of a legislatively mandated decision to begin charging for crime lab services. Hidalgo County Sheriff J.E. "Eddie" Guerra told the paper that "HCSO frequently uses field testing on suspected controlled substances and only sends samples to DPS for analysis when an individual does not plead guilty to possession."

That's exactly the circumstance under which they found so many false convictions in Harris County!

More than 300 false convictions based on faulty field tests have been uncovered so far in Houston, and nobody thinks that's all of them. The typical situation involved field tests falsely accusing someone, then that person couldn't make bail and so would plead guilty to a crime they didn't commit in order to get out of jail on a sentence of "time served."

The only reason these false convictions were discovered was that, eventually, the now-independent crime lab in Houston would test the evidence, anyway. But in Hidalgo County, that doesn't happen. The samples are never sent to DPS, meaning false convictions remain concealed.

Which brings us to the meat of the issue: In the interests of justice, somebody needs to be testing this evidence when it's going to be used to justify depriving someone of their liberty. Whether it's the state or the county that pays for it, who knows? If the government doesn't pay for testing, it should be done on a defense motion. And if nobody wants to pay, perhaps those cases shouldn't be prosecuted at all, plea bargain or no.

* * *

On a tangentially related topic, in the same article, state Rep. Oscar Longoria made the case for charging local governments for crime lab services, making him to my knowledge the only legislator from the budget conference committee to do so:

“You’re going to have an issue when everyone sends stuff (to the lab) — you’re naturally going to have a backlog,” Longoria said. 

DPS averaged 87,642 testing requests from 2,310 law enforcement agencies in 2013 and 2014, according to a January Legislative Budget Board Staff Report. 

“(The DPS lab) should really only be used for major crimes like murder, homicide and aggravated robbery,” Longoria said. “But when we send Class A and Class B misdemeanors, we’re overburdening the (lab) technicians.”

That's a provocative position to many in Texas law enforcement, some of whom feel particularly entitled to get these services for free, even though most larger jurisdictions pay for their own. Lubbock PD is the biggest DPS crime lab customer, if "customer" is the right word for somebody getting freebies.

Reasonably Suspicious: Bethke leaves TIDC, cap-and-trade to limit incarceration?, DNA-mixture SNAFUs, and more

Just Liberty's latest "Reasonably Suspicious" podcast for August features discussions of important issues and fresh ideas confronting Texas' criminal justice system. (This is the last episode in our summertime "soft launch" before promoting the show more widely beginning in September.) Listen to the podcast here, or read a transcript below the jump:

Topics covered include:

• Jim Bethke leaving TX Indigent Defense Commission
• "Cap and Trade" proposal to minimize incarceration
• DPS crime lab fees on hold, but crisis lingers
• DNA mixture evidence and Texas courts
• What can judges do to minimize debtors prison practices?
• Brain science and capital crimes by young adults
• And more!

Governor: DPS crime lab fees 'premature,' but that doesn't mean 'unnecessary'

Texas politicians love to talk about cutting budgets and reducing taxes, but they never want any of the services that money pays for to shrink. Or at least, that's Grits' takeaway from the governor's volteface on Friday, when Greg Abbott rescinded the Texas Department of Public Safety's move to charge law enforcement agencies discounted fees for crime-lab services. For decades, DPS provided such services for free to  jurisdictions without their own crime labs. (Lubbock PD is the biggest DPS crime-lab customer, if "customer" is the right word for somebody receiving a freebie.)

This blog has argued for some time that the demand for free-as-in-beer crime-lab services would continue to outpace capacity and that charging for services is the only way to reverse the dynamic. So Grits was unfazed by this news (although everyone was surprised by it). It would have caused a temporary disruption because the locals weren't given time to plan, but in the long run it's a necessary adjustment that would make the system more stable. After all, the rates locals were being asked to pay were still discounted - subsidized fractions of the full cost of those services which are borne en toto in jurisdictions that operate their own crime labs.

But law enforcement and prosecutors howled like scalded cats. While the prosecutors' association admitted that "DPS has long had the statutory authority to assess these fees," critics focused more on the lack of foreknowledge. According to TDCAA, this was a "last-minute change made behind closed doors as part of the final conference committee budget, which is why no one knew about it until after it was done," which is a fair criticism.

That said, let's be clear: Gov. Abbot has resolved nothing; he has only kicked the can down the road. From the SA Express-News:

Abbott said that despite a tight fiscal situation in Texas, it would be premature to contemplate charging law enforcement agencies a fee for using the DPS labs, according to a letter he sent to DPS Director Steven McCraw. 

“Under no circumstances will I allow the 13 crime labs that DPS operates across the state to be underfunded. However, I firmly believe it is premature to charge a fee at this time,” Abbott wrote the DPS.

So he's saying 1) the crime labs won't be underfunded, and 2) DPS cannot right now begin charging a fee, but it possibly could in the future ("premature" is very different from saying it's a bad idea). That doesn't mean they can't do so in the future when state money runs out sometime in FY 2019. The problem is, if DPS implements fees right now, they can charge discounted rates over the course of the biennium. If they must wait until the money runs out to begin charging fees, they'd have to charge the full cost in order to provide the services.

In the perhaps-more-likely alternative, the Legislative Budget Board could authorize the money and the Lege could re-up it in a supplemental budget in 2019, but they do have to cut the budget somewhere if they don't want to raise more money. They can't all be phantom, I-didn't-mean-it budget cuts.

The notion that the governor will not allow the crime labs to be underfunded is a fascinating statement because he already has! Not only did he sign the budget which included the fees, DPS crime labs needed a substantial increase to keep up with skyrocketing demand for forensic services. However, the fees they were authorized to collect only got them to the budget total they spent in the last biennium. That's insufficient given that DPS crime labs cannot control demand for their services - locals decide the agency's workload, with the cost all coming out of the state budget (if the fees are not implemented).

So if it's "premature" right now, when might we expect DPS to begin charging fees for crime-lab services? From the same Express-News story:

Earlier this year, the Legislature set aside nearly $63 million for operation of crime labs for the next two years, an amount Abbott said is enough to ensure that the facilities can operate at full capacity “well into the next biennium” without a fee. 

DPS said lawmakers gave the department authority to charge enough in fees to collect up to $11.5 million for forensic analysis to bring the department to its full authorized funding level of $74.5 million. Its budget for the previous biennium was $74.7 million, according to the department.

If one assumes DPS crime labs will spend at quicker rates than last biennium thanks to heightened demand, we can expect them to run out of money more or less right as the Legislature convenes in 2019. That makes Grits think the supplemental appropriation is more likely than implementing fees during this biennium.

But at some point state leaders are going to have to address the conundrum caused by this disconnect between demand for crime lab services and payment for them. Now that the fees are delayed, the better public policy would be to implement them as soon as practicable - Grits would suggest Sept. 1, 2018, so that agencies would have time to include the change in their budgets - but not to wait for another legislative cycle. Even charging discounted rates would reduce waste and unnecessary or redundant use of crime lab services.

Finally, it should be said that DPS finds itself between a rock and a hard place. The Lege cut their budget 4% but won't let them reduce any of the services they provide. In addition to this flip-flop, the agency was also forced to rescind a reduction in hours at drivers license centers as a result of the new budget. That's fine - nobody like longer lines at the DMV. But if DPS has less money, what is it currently doing that it's now allowed to cease? Not border security. Not crime lab freebies. Not drivers license operations. Should the cuts come from (non-border area) patrol? Narcotics enforcement? Where, exactly?

The new crime-lab fees were actually a smart-on-crime budget cut, adjusting the financial burden for forensic services so that they're partly borne by the agencies directly benefiting from them. It may have been ham-handedly implemented, and because of that a short-term delay may even be warranted. But state leaders should let DPS pull the trigger on new crime-lab fees sooner than later. The problems caused by unlimited demand outstripping finite capacity at DPS crime labs aren't going away.

MORE: The Fort Worth Star-Telegram offered up a similar position in an editorial which linked to this blog post.

TX DPS ends freebie crime-lab services for law enforcement

Local governments complain near incessantly in Texas of "unfunded mandates" imposed on them by state government, but almost never acknowledge the unfunded mandates that operate in the other direction. For example, as Grits wrote in February:

The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.

Another big unfunded mandate from the locals to the state historically has been a longstanding requirement that DPS crime labs perform forensics for local agencies for free. Grits has been editorializing about the unsustainability of this model for several years. But now, DPS has announced it will require locals to pay for the services, albeit at discounted rates. This will be a big change, and will cause more than a few hiccups during the transition.

Larger agencies either have their own labs or have money to contract out, so the burden of this change will fall more harshly on rural and smaller agencies. And at the moment, many of those agencies - hundreds of them, in fact - don't have forensics budgets at all because they've always relied on DPS. (What they'll do until their jurisdictions get around to passing a new budget will be anybody's guess.)

There will be much weeping and gnashing of teeth over this change, but a socialized market for forensic services for too long has encouraged their overuse. If instead, local agencies must chip in for part of the cost, over time they will likely prioritize cases with the greatest impact on public safety and eschew the petty stuff.

That sort of use of discretion based on cost-benefit analysis is a good thing. We arguably need more of it in the justice system; the utility of the give-em-a-blank-check model has long ago reached its limits.

Junk-science based false convictions in Houston lampooned by comedian

Someone has finally grokked and managed to convey in an accessible, understandable way the unmitigated travesty of justice surrounding drug convictions based on junk science in Houston. Comedian Samantha Bee aired a devastating 7-minute segment on false convictions in H-Town based on flawed drug field test results.

Grits has covered it. The Austin Statesman has covered it. Pro Publica and the New York Times Magazine have covered it. But no one has so succinctly captured the full scope of how these innocence claims play out in a corrupt system that railroads poor, innocent defendants better than this piece from Bee's show Full Frontal. Go figure.

This story has implications far beyond the borders of Harris County, or even Texas, as these field tests are used all over. And in some jurisdictions, if a defendant pleads guilty like one of the men in this story, crime labs don't always perform the followup test because of backlogs and cost constraints. So the most amazing part isn't the disparate treatment between the two defendants, but that these false convictions were ever brought to the light of day at all. Give it a watch, they did a great job with it:



Kudos to Inger Chandler from the Harris DA Conviction Integrity Unit and James Miller of the Houston Forensic Science Center (the bowtie was a nice touch) for their frank assessments of the problems with these commonly used instruments of junk science, which have caused an eye-popping number of false convictions. And that's just the ones we know about. They've only just begun to address the problem in Houston and no other jurisdiction in Texas is undergoing a similar review of cases based solely on field tests.

Four final notes: 1) It's a sad commentary on the state of Texas journalism that no outlet in this state ever told this story in such a compelling fashion, though all the pieces were there long before a comedian from Canada picked it up. Texas broadcast journos need to pick up their game. 2) The point about differences between outcomes for poor defendants and those with means plays out in every type of case, not just ones where the defendant was framed falsely convicted. 3) Shouldn't police departments just stop using field tests until the science behind them improves? And 4) the story speaks to the tremendous importance of the work at conviction integrity units. They only exist in a handful of DA offices, but they're exposing flaws in the system that we know also occur elsewhere. Like in this story.

Watch this excellent video clip and share it. Great stuff.

MORE: Two things: 1) it should be mentioned that, hours after I posted this, the governor signed HB 34 which includes a requirement that the Forensic Science Commission study the field test issue and report back to the Legislature by Dec. 1, 2018. Grits will try to cover this process, but I'd hope the MSM will, as well. 2) Nicolas Hughes, the lawyer at the Harris County Public Defender Office responsible for filing habeas writs in these cases, emailed these thoughts on the use of unreliable field tests:

Questions regarding the war on drugs aside, field testing presents a complicated problem. I’m all for the preliminary drug tests over the alternative – the officer’s hunch.

The question to me is what does the criminal justice system do with the information it gets from the preliminary drug test, knowing that the information is imperfect? Given that there’s a non-negligible chance that the test result will come back negative or at least differently than expected, I would hope that people would be released on PR bonds and/or a citation at least until a confirmatory test came back. I would also hope that officers receive some annual training on the tests and that agencies implement some quality assurance programs involving the tests.

Forensic backlog at DPS due to free lunches for Lubbock, other freeloader PDs

There's no such thing as a free lunch, unless you're a police department in Texas looking for no-cost crime lab services. Then you can call DPS and by law they must provide services for free. The predictable result is a massive backlog. From the new Government Effectiveness and Efficiency Report prepared biennially by the Legislative Budget Board - the one the Lt. Governor didn't want released:

According to the Department of Public Safety, from calendar years 2010 to 2015, the crime lab’s forensic evidence backlog increased from approximately 22,000 to more than 33,000 submissions. Among respondents to a 2016 survey conducted by the Texas Center for the Judiciary, 96.2 percent indicated that the wait for lab results had led to court delays. 

The Department of Public Safety’s crime labs do not have standard procedures to ensure all forensic testing is necessary at the time testing occurs. There is also not a policy that allows the lab to halt testing determined to be unnecessary. As a result, unnecessary testing may occur, reducing resources that could be used to address backlogs. Implementing a process to systematically check the need for testing in certain circumstances could reduce crime lab workloads and enable them to operate more efficiently.

Further, "The Department of Public Safety crime labs complete all testing that has been started and do not have a policy to halt testing for certain situations, such as the requesting agency notifying the lab that testing is no longer necessary."

The caseload for drug evidence is significant, with waiting times, even nearly as long as for DNA. "DPS crime labs conducted 44,965 drug evidence tests in fiscal year 2015 with an average turnaround time of 123 days." The longest waiting time was for trace-evidence analysis, which on average takes nearly a year.

As regular Grits readers may recall, crime lab delays are a significant cause of delay in processing drug cases, causing defendants in some cases to languish in jail until results come back:

Furthermore, the nonprofit Texas Center for the Judiciary conducted a survey in January 2016 regarding sources of evidence delays that was sent to all active district and county court at law trial judges. The survey asked the respondents to identify sources of delay. Of the 130 individuals who responded to this question, 125 respondents identified crime lab results as a source of delay. Delays can result in issues including increased jail costs, attorney fees, and impediments for expert witnesses. DPS indicated delayed forensic testing results can affect plea agreements. For instance, local jurisdictions may not offer plea agreements in drug cases until lab results are received.

Some of this work turns out to be unnecessary:

In 2015, the DPS crime lab in Midland reduced its drug backlog 66.0 percent. The lab achieved this reduction by closing 1,641 cases without analysis as a result of communicating with district attorneys to determine whether testing was still required. DPS also reduced the drug backlog by 20.0 percent by working with local stakeholders who used the five labs with the majority of the statewide backlog to ensure forensic testing of the cases were still needed for prosecution.

Finally, this writer was unaware of the extent to which DPS crime lab expenditures subsidize Lubbock PD and a few other high-use jurisdictions:

In calendar years 2013 and 2014, DPS received an average of 87,642 testing requests each year from 2,310 law enforcement agencies. Approximately 22,000 of all testing requests in these years were from 25 users of the DPS crime lab, and the Lubbock Police Department (LPD) requested more testing from the DPS lab than any other agency. DPS reports that the criminal justice system requires a quicker response for many cases than the DPS crime lab can provide. LPD reports that it has had concerns with the timeliness of DNA and trace evidence testing for forensic evidence submission to the DPS crime lab. LPD reports an average wait time of two to three months for trace evidence and three to six months for DNA analysis. 

DPS' main problem is that it is not allowed to charge users a fee so departments who want to freeload off the state send their cases there instead of to a private lab or hiring their own experts. If the state created a reasonable fee structure charging market rates for testing, it would solve the problem entirely. It's one thing for the DPS to run crime labs for its own enforcement purposes and to let locals process cases there. But there's no good reason for the state to give everyone a freebie.

RELATED: DPS reaching limits to unsustainable crime lab model: Tells agencies to reduce DNA, drug testing requests.