Tarrant medical examiner who led Forensic Science Commission found to have misled jury in murder case

After an initial, failed run led by a tough-on-crime prosecutor, Texas' Forensic Science Commission has oddly been led by medical examiners, even though the agency doesn't regulate that profession and their offices are separate from forensic analysis divisions in most counties. One of these was Tarrant County medical examiner Nizam Peerwani, so Grits was interested to see this news:

A man who was sentenced to death in a 2004 Fort Worth murder case should get a new trial because of false and misleading testimony by Tarrant County Medical Examiner Dr. Nizam Peerwani, a judge has ruled.

In a 51-page finding, Tarrant County District Court Judge Mollee Westfall said Peerwani made “false, inaccurate or misleading” statements in at least 10 crucial elements of the prosecution case.

The timing of the judge's ruling is remarkable because Peerwani recently placed his longtime former top deputy, Dr. Marc Krouse, on administrative leave after an audit of 40 death investigations last year found he made 59 mistakes. Krouse was barred from conducting autopsies in homicide cases in November.

In the the complex and multi-faceted world of criminal-justice reform, forensics and medical examiners are roughly a fourth-tier concern: Police brutality, mass incarceration, an impoverished indigent defense culture, pretrial detention, overcriminalization of juveniles, and myriad other topics grab a greater share of the public's and advocates' attention.

But forensic science is a mess and as the Forensic Science Commission has been larded with new responsibilities including professional licensing, it has become less aggressive over time in using its platform to confront bad science.

Texas has a long, misbegotten history with corrupt medical examiners giving false testimony. Perhaps Peerwani's fall from grace is a good opportunity to begin appointing forensic scientists to lead the FSC instead of politically connected medical examiners? It was always an odd fit.

Now the question is raised: If Peerwani was willing to give "false, inaccurate, or misleading" statements to a jury in a death penalty case, should we accept pronouncements from the FSC during his tenure that exonerated allegedly flawed practices? 

Your correspondent stopped tracking the FSC closely after I left my gig at the Innocence Project of Texas: Forensics reform is an issue that requires professional-level engagement; it's hard to do as a sideline. But my impression is that progress has stalled. They've addressed much of the low hanging fruit but elided calling more commonly used forensic methods into question. And even where they've rebuffed old, flawed, forensic methods, the Government Always Wins faction on the Texas Court of Criminal Appeals has frequently refused to then excise them from the courts.

Between the Forensic Science Commission and its first-in-the-nation junk-science writ, Texas has created the infrastructure needed to root out flawed forensics. But its political will to do so seems to have dissipated since the heady days when DNA exonerations seemed to be happening every other month.

That's too bad because the slowing of DNA exonerations isn't because innocent people aren't being convicted anymore. Only 10 percent or so of violent crimes involve DNA evidence, so finding those few doesn't help the other 90 percent convicted on the same bad evidence. DNA exonerations exposed flawed policing methods - including less-than-reliable forensics - but for the most part, the system kept using them.

To the extent that's been because the Forensic Science Commission has been led by medical examiners who're too embedded in the system to critique it, it's probably time for that to change.

Forensic hypnosis largely dead in Texas but junk evidence still travels like zombies through the court system thanks to the CCA

Exciting news: Texas DPS has ended the use of forensic hypnosis among the Texas Rangers, the Forensic Science Commission's Lynn Garcia told the Texas Homeland Security and Public Safety Committee yesterday. Your correspondent broke the news on Twitter; see Dallas News coverage here. 

The Dallas News had previously reported that the Texas Rangers and the Harris County Sheriff's Office were the last agencies in the state with peace officers carrying hypnosis certifications. Those must be renewed every two years. But Harris County Sheriff Ed Gonzalez said on Twitter his agency doesn't use it anymore, either, so it's possible the last practitioners of forensic hypnosis in the state are all now offline. Certainly the most prolific among them at the Texas Rangers have been permanently benched.

There was a time not long ago when this practice was more widespread; today, it's largely a source of derision and few if any agencies practice it any longer. It was the junkiest of junk sciences I've ever encountered, and Grits has seen some.*

Still, discredited though it was, Texas officials weren't about to ban this junk science technique from the courtroom. The Forensic Science Commission determined they had no jurisdiction to consider hypnosis. Legislation was filed in the Texas Senate in 2019  to banish the practice from courtrooms, but, the committee chair wouldn't give it a hearing. Then the technique was challenged under Texas' junk-science writ, which should have been the end of it. But it was a death penalty case and the Government Always Wins faction on the Court of Criminal Appeals flexed their muscle, declining to apply the writ without giving an explanation.

After the US Supreme Court declined to take up the issue - unsurprising, since the junk-science writ is a state law with no explicit federal skin in the game - efforts to banish forensic hypnosis appeared to be stymied.

The decision by DPS to end the practice came like a bolt from the blue; most folks thought they wouldn't end it unless they were forced to do so. Apparently, someone internally simply decided the technique could no longer be justified. I'd love to know the backstory (off the record tips welcome!). The hypnosis program apparently ended in January but the agency never announced it.

Your correspondent takes some pride at raising the profile of this issue. In the Texas political realm, the topic was first raised in a 2017 Reasonably Suspicious podcast segment brought forward by my co-host Amanda Marzullo on the Charles Don Flores case, the one that SCOTUS later declined to review.

This piqued my interest and Grits followed up with a research primer on the subject that exposed the charlatanism underlying the practice. I purchased a copy of the book used to train forensic hypnotists under TCOLE's training curriculum. It included favorable references to occult practices like "automatic writing," portrayed memory as the equivalent of a videotape that hypnotists could simply play back, and encouraged "age regression" to recall long-ago events. Mandy and I began to follow the Flores case on the podcast.

I pitched the story to Lauren McGaughy at the Dallas News who ably picked up the ball, first publishing a preliminary assessment in 2018. This raised the profile of the topic in state government - helping me convince state Sen. Juan "Chuy" Hinojosa to file his roundly ignored legislation in 2019. Meanwhile, the courts were mimicking the iconic monkeys who see, hear, and speak no evil. 

Then, last year, the Dallas News published a major two-part feature McGaughy co-reported with Dave Boucher called "The Memory Room." They spent months pursuing open records requests and dove deep into DPS practices and TCOLE records, revealing details no one outside those agencies knew. It was hard to imagine how responsible decision makers, after reading this damning assessment, could continue to let cops hypnotize witnesses.

Still, Grits wasn't sanguine the Legislature would even take up the topic; the same chairman who wouldn't give the bill a hearing still runs the committee, and the Court of Criminal Appeals' failure to take up the cause seemed to have shunted the issue to the back burner for state government. 

DPS ending its hypnosis program changes the landscape, surprising all observers and opening up new opportunities. If neither they nor HCSO any longer use hypnosis, Texas can now shut down the practice entirely. Reported McGaughy, "Texas remains the only state known to have an active certification program for law enforcement officers to learn hypnosis and is also the home to likely the nation’s only extant police organization for investigative hypnotists."

There's no need for that certification program now and the Legislature should eliminate it as part of the TCOLE Sunset bill. This is EXACTLY the sort of thing the Sunset process was created to do: Extinguish outdated, anachronistic, and unnecessary programs.

Here's the rub: Even if the Legislature ends the certification, there are still numerous cases - nobody knows how many, but including Mr. Flores' death-penalty case - marching forward through the system like zombies based on past convictions secured using this practice, and more people locked up in TDCJ or on parole whose convictions were tainted by the same junk science.

I'm not a lawyer but Grits doesn't know if there's any way to help those folks if the CCA won't apply the junk-science writ. I suppose the Forensic Science Commission's jurisdiction could be expanded to evaluate this now-mostly-dead forensic method so that courts would have a basis to revisit it. But that's an open-ended, speculative process that could take years. It seems like waste of time when the CCA could already have done the right thing, and still could.

Grits' takeaways: The Texas Legislature should both abolish the hypnosis-certification program (TCOLE's Sunset review is remarkably well-timed for this purpose) and expand FSC jurisdiction to evaluate forensic hypnosis. The Texas Rangers may have stopped using this particular junk-science technique, but the topic won't finally go away until the courts do.

* I was Policy Director at the Innocence Project of Texas for 8 years and conceived of and negotiated with prosecutors to pass Texas' junk-science writ. The only bogus "science" I've seen that's arguably as junky as forensic hypnosis was dog-scent lineups, and the CCA got rid of that abomination.

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.

Texas the 'epicenter' of forensic hypnosis, perhaps the junkiest of junk science

From "Zipping Along," Loony Tunes, 1953

Most Americans got their first sense of "hypnosis" from watching cartoons, where the mind-control trope has been a staple for decades. But it's no laughing matter when the practice enters the courtroom and people are sent to prison for decades, or even executed, based on such pseudoscientific foolishness.

Texas is the "epicenter" of forensic-hypnosis use in the United States, according to  a pair of investigative stories published this week at the Dallas Morning News by Lauren McGaughy and Dave Boucher. The feature was two years in the making. Check them out here:

• The Memory Room, Part One
• The Memory Room, Part Two

The title of the series comes from jargon used by forensic hypnotists at Texas DPS who tell witnesses to enter a "Memory Room" where they supposedly can review their memories as though watching a TV, hitting rewind, pausing, and generally treating one's memory as though watching a recorded video.

According to videos and documents The News obtained, police hypnotists use methods crafted at least as early as the 1970s and ’80s. Texas Rangers, among the most prolific hypnotists in the state, are still telling subjects to close their eyes, enter an imaginary “Memory Room” and watch their recollections on a television, as though they were a movie. It is an effort to find supposedly lost or buried clues, but experts refute this technique as dangerous and misleading.

Here's a little more detail:

This approach is still popular with the Rangers. In videos of some sessions The News obtained, hypnotists used the same method before instructing witnesses to imagine standing atop a staircase. As they walk down the steps in their minds, they are supposed to go deeper and deeper into a trance. 

At the bottom, they are told they see a door. A sign on or above that door reads “Memory Room.”  Upon entering, they are told to sit in front of a television. The hypnotist directs them to watch their memories on the screen.

In real life, scientists now understand that memories are recreated each time they are recalled and change substantially over time. The idea that a secret videotape is stored somewhere in the "subconscious" which may be reviewed during hypnosis has zero scientific credibility and, outside of law enforcement, has been relegated in the modern era to the realm of two-bit stage magicians. Even so, a Texas Ranger told the Morning News, "It's a very precise science."

These disproven misconceptions about memory are central both to the Texas court cases that approved this junk-science technique, as well as the state-approved training materials still used to this day training forensic hypnotists in Texas.

The Texas Court of Criminal Appeals has for a couple of years now had a death-penalty case before it which will revisit whether forensic hypnosis remains a valid technique in this state. With the Government Always Wins faction presently in firm control of that body, Grits fears the worst from this ruling. The fact that the case has taken so long to decide tells you there's a likely intense, behind-the-scenes disagreement among judges over how to proceed.

There's little scientific justification remaining behind the central tenets of Zani v. Texas, the 1988 decision in which the CCA first approved the technique's use, so it's possible that even the GAW faction of the CCA can't find enough meat left on that bone to continue the practice. The most detailed academic analysis I've seen of the pros and cons of admitting such testimony in court concluded, "Admitting hypnotically enhanced testimony into evidence creates grave dangers that miscarriages of justice will occur. The problems that arise from this practice are so great that hypnotically enhanced testimony should never be admissible."

Part one of the Morning News package includes an excellent graphic presenting data on every case they could document at DPS using forensic hypnosis going back to 1980 (a total of 1,789 cases). While not used as frequently as other forensic methods, it's often used in high-profile cases where little other evidence exists. Eleven people have been executed based at least in part on hypnotically-induced testimony.

The central example case, fleshed out in detail in Part 2, involved a black security guard convicted of assaulting a white woman in the 1980s. No physical or other evidence linked him to the case and the victim did not identify him in a photo array after the incident. But following a hypnosis session that experts say included leading questions from the hypnotist, she declared the security guard did it. He served 31 years of a 60 year sentence and to this day insists he was wrongfully convicted.

Here's hoping the Court of Criminal Appeals disallows this junk science going forward. The Texas Forensic Science Commission cannot study the question under its enabling statute because it relates to testimonial, not "physical" evidence. And though State Sen. Juan "Chuy" Hinojosa filed legislation last year to ban the technique from Texas courtrooms, Senate Criminal Justice Committee Chairman John Whitmire wouldn't give the bill a hearing. So if the CCA doesn't disallow such testimony, there appear to be no near-term options available for challenging the practice.

Read both the Morning News stories, they're easily the best thing I've seen from the MSM on these topics.

For more background, see:

• A brief primer on forensic hypnosis
• You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases
• Bill filed to eliminate forensic hypnosis from Texas courts
• Reasonably Suspicious podcast, Nov. 2017 (beginning at 28:10 mark)
• Reasonably Suspicious podcast, May 2018 (beginning at 21:19 mark)
• Here's Lauren McGaughy's earlier coverage. 
• Elizabeth Loftus, "The Reality of Repressed Memories"
• Gary Shaw, Marquette Law Review, 1991, "The Admissibility of Hypnotically Enhanced Testimony in Criminal Trials"

DNA mixture math errors discovered in 2015 weren't the first

Grits this week revisited the 2007 "Bromwich report" regarding what then was the Houston PD crime lab while researching DNA-mixture evidence issues and realized something I hadn't understood at the time - or perhaps just never connected the dots: Errors calculating DNA-mixture probabilities were at the center of the years-long crisis that engulfed the Houston crime lab's DNA section for most of the aughts.

Readers will recall, in 2015, we discovered that all Texas crime labs were miscalculating DNA-mixture probabilities - in one case, a sample jurors were told matched one person out of a billion really matched one out of 50. Well, the same thing was happening at the Houston crime lab. Check out this chart from the Bromwich report identifying cases where DNA analysts vastly over-estimated the probability ratios:

So in Houston, they discovered the crime lab was miscalculating probabilities in the aughts, updated the math, then in 2015 discovered that math was wrong and had to update it again. Wow! This '07 comment from Bromwich about the HPD lab would have applied equally to every Texas crime lab as recently as 2015:

It is clear that DNA analysts in the historical Crime Lab ... did not fully understand the scientific basis for calculating frequency estimates from DNA profiles obtained from evidence samples and that they were not trained in the methods of properly calculating statistics associated with DNA mixture profiles and partial DNA profiles.

Notably, the method Texas labs were advised to shift to in 2015 - "probabilistic genotyping," most commonly using equipment/software from a company called STR-Mix - lately has itself come under fire. A federal judge out of Michigan recently excluded such evidence in a Daubert hearing. So it's possible DNA analysts will need to re-do their math again.

Returning to the Houston PD crime lab example, these are in many cases radical downward adjustments. From one in 6.3 million to one in 30? From a one in 2.9 million chance to one in 5? Would juries have convicted if they'd heard the lower numbers? I wonder if other crime labs were using the same method as HPD's during this period?

Of the cases in this chart, Franklin Alix was executed despite DNA testimony in his case having been declared unreliable. Only Josiah Sutton was ever exonerated; 11 remain incarcerated. By all accounts, the criminal-defense bar in Houston failed to step up in many instances, leaving most of these folks un-or-poorly represented.

It's highly likely there are more actually-innocent people on that list, but we'll never know. The DNA lab's other big problem was that it had a leaky roof and most of the historical DNA evidence was destroyed and couldn't be re-tested.

See prior, related Grits posts:

• Digesting new Daubert opinion on DNA mixtures
• Most crime labs accused innocent person in DNA mixture study
• A reluctant scoop: Changing interpretations of DNA mixtures vex legal system
• Labs must correct wrong DNA mixture analyses, learn when to recognize 'crap'
• Resources on DNA mixtures
• The challenge of notifying defendants in large-scale forensic error cases
• Courts punt on forensics surrounding DNA mixtures
• Black box DNA mixture analysis method used in NYC turned out to be flawed
• Changes to DNA mixture software raise questions about old versions
• News flash: 'Touch DNA' doesn't necessarily require touching
• DNA mixture SNAFU a mess but don't expect 'deluge' of innocence claims

Meaty January episode of Reasonably Suspicious podcast: Hear federal judge scold Travis County DA; what's the remedy for school principal convicted based on junk science?; why DPS troopers' chase policy is a bad fit for urban policing, and more

Here's the January 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by me and Mandy Marzullo. We have a meaty, jam-packed show for you this month.


The Texas parole board is the last hope for Joe Bryan, the Bosque County school principal falsely convicted in 1985 based on erroneous blood-spatter testimony. Travis County DA Margaret Moore can't accept the results in an innocence case. And the Fifth Circuit Court of Appeals says Texas prison guards couldn't have known it was a problem to keep a prisoner naked sleeping in feces and urine for six days. (And really, how could anyone have guessed?)

Intro
Bail reform not responsible for alleged repeat-offender monkey in Galveston

Top Stories
Marijuana prosecutions in Texas declined by 2/3 since Legislature legalized hemp. Does anybody besides cops and prosecutors miss them? (2:20)

Home Court Disadvantage
This month, the cases highlighted found defendants and plaintiffs at extreme disadvantage:

• Joe Bryan (6:16): The Court of Criminal Appeals turned down the former school principal, who was the subject of a major New York Times Magazine/Pro Public investigation by Pam Colloff. Now, it's up to the parole board to free him, if it happens at all.
• Rosa Jimenez (10:10): Four different judges have found her innocent. But Margaret Moore and the Court of Criminal Appeals don't want her released. Hear audio from a disgruntled federal judge scolding the Travis County DA's office for their handling of this increasingly high-profile case.
• Trent Taylor (19:02): The Fifth Circuit won't hold TDCJ responsible for what they deemed deliberate indifference that put Mr. Taylor at risk of serious harm because the courts had never ruled that six days was too long to endure such conditions. Infuriating.

The Last Hurrah (25:49)

• DPS troopers' high-speed chase policies a poor fit for urban policing.
• Rejecting Reid technique no reason to criticize sex-crimes detective.
• Lege should rein in counties trying not to comply with jail investigations.

As always, I'll order a transcript and add it below the jump when it comes back. Until then, enjoy!

Federal judge annoyed with Travis DA for recalcitrance on innocence case

Rosa Jimenez, the Austin babysitter wrongly convicted of murdering a child in her care 17 years ago, is likely innocent and should be released, four different judges (two federal, two state) have now declared, despite a Texas Court of Criminal Appeals ruling to the contrary. But Travis County DA Margaret Moore insists she intends to re-try Jimenez, and with Attorney General Ken Paxton has petitioned the courts to stay her release. At the Austin Statesman, Chuck Lindell recorded part of the exchange:

the judge turned to Travis County officials in his downtown Austin courtroom.
“Is it my understanding that (District Attorney) Margaret Moore is hot to retry this case? Really?” [magistrate Judge Andrew] Austin asked. 

“We are prepared to retry the case and have informed the victim’s family of the potential of retrying the case,” said Beverly Mathews, director of the special victims unit in the Travis County district attorney’s office. 

“Has she read the four different judge’s orders who said they think it’s likely that an innocent woman has been sitting in jail for 17 years?” Austin asked, adding that the now-retired judge who presided over Jimenez’s trial, Jon Wisser, also concluded that there was a substantial likelihood that Jimenez was not guilty. 

“Margaret Moore really wants a retrial?” he asked again, shaking his head. 

“It is my understanding that she is willing to retry this case,” Mathews replied.
Such a trial would not expected to begin for at least a year, she added.

Grits was in the courtroom when this exchange occurred. Judge Austin was visibly surprised, bordering on amazed, that the Travis County DA wanted one last pound of flesh.

Soon after Lindell's story was published (KXAN was the only other media outlet there to cover it), a local criminal-justice reform advocate I know approached Moore about the case. She told him she planned to talk to the victim's family and there was more to the case than he knew.

My question: Is there more than the 4 judges knew, and if so, why didn't her office present that information in court? It's a 17-year-old case, what could they possibly be holding back?

Adding to Judge Austin's annoyance, an attorney for the AG's office (who represents the state in federal court) wanted to bicker with him about a technicality related to ICE holds. But Austin is a magistrate judge who hears immigration cases all the time. He is an in-the-weeds expert on the topic while the AG's lawyer admitted he had not investigated nor studied any of the processes on which he was opining. Finally, the judge gruffly told him to sit down and stop talking.

Judge Austin's order particularly singled out for disapprobation the Texas Court of Criminal Appeals, which had denied Jimenez's writ:

In doing so, it failed to recognize the extent of defense counsel’s errors and the significant reasons the jury’s verdict is not worthy of confidence. The Court of Criminal Appeals’ decision is both contrary to federal law and involved the unreasonable, if not outright incorrect, application of that law. Its decision was also based on several factual determinations that were plainly unreasonable in light of the record before the state court.

This, my friends, is what's known as a bench slapping.

At the state-habeas level, the district court had recommended approving the habeas petition, in part because of the evidence but also because of ineffective assistance of counsel. The latter was alleged because the defense did not put on expert witnesses to counter the team of expert testifiers put on by the state. But her attorney responded that that was because the judge wouldn't approve funds. In an affidavit submitted to the court, he wrote:

During my pre-trial preparations, I met with Judge [Jon Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and that I did not think that my current team was adequate to counter the State’s case. Judge [Wisser] told me that he had authorized more experts than usual in a noncapital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge’s ruling, I was forced to work within the constraints imposed by the Court. Ms. Jimenez was indigent, and I could not afford to hire these experts out of pocket.

So in this case, the defendant's inability to challenge what turned out to be flawed scientific testimony from the state was really an institutional failure of the indigent defense system as much as a failure of forensics per se.

Grits mentions this because, although DA Margaret Moore will draw most of the attention on this case because she's the one choosing to keep Jimenez incarcerated, the Texas Court of Criminal Appeals, the trial court in Austin, and really the entire system is culpable for what happened here.

The iceberg's tip: CA man walks free bc of DNA-mixture SNAFU

It's perhaps a testament to the reduction in size of and competition among MSM outlets that nobody has yet covered the problems with DNA-mixture forensics raised by federal District Judge Janet Neff of Michigan's Western District* (discussed by Grits here and on the latest Reasonably Suspicious podcast). That must change; some full-time reporter(s) must step up. These issues deserve high-level coverage and national context that this humble, regional blog cannot provide.

Once you begin to pay attention, these cases are cropping up everywhere. In San Diego, we have the case of Flamencio Dominguez. In 2011, he was convicted of a 2008 murder based on DNA mixture evidence and sentenced to 50 years, reported the San Diego Union Tribune. Months before the trial, the crime lab realized the mathematics behind their old DNA-mixture analyses used an invalid baseline. They decided to abandon their old approach and switch to "probabilistic genotyping" instead.

(Similarly, in Texas in 2015, crime labs discovered every lab in the state was using erroneous math in DNA-mixture analyses in ways that risked falsely accusing innocent people, see coverage here and here. In Travis County alone, 11 cases were found where suspect matches changed to "inconclusive." Our crime labs, too, were advised to switch to probabilistic genotyping.)

When the baseline issue was corrected in Mr. Dominguez's case, the new algorithm went from accusing him to "inconclusive." But prosecutors did not tell Mr. Dominguez's counsel about the change. The defendant was convicted based on what now is admittedly erroneous DNA math, and his lawyer wasn't aware of the flawed DNA-mixture protocols until six years later.

After his lawyer found out about the inaccurate math, Dominguez prevailed in 2017 on a habeas corpus claim and was released from prison. But prosecutors decided to try him again, this time using a tool from a company called STR-Mix based on probabilistic genotyping. That was the forensic tool Judge Neff evaluated in Michigan. The bottom-line assessment in Judge Neff's opinion was that:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if [the defendant] is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.

Courts in California were robbed of their chance to decide whether they agree. San Diego prosecutors essentially let Dominguez plea out to time served because the company STR-Mix would not allow the state courts to examine their source code without a slew of non-disclosure agreements the court deemed inappropriate, reported the Union-Tribune:

court records filed last month show that the company wanted Speredelozzi and his experts to sign a restrictive non-disclosure agreement and abide by other restrictions. on Oct. 23 [Judge Charles G.] Rogers declined to require the [defendant's] lawyer sign the agreement, and warned that if the company failed to comply, he might exclude the DNA evidence all together from the trial. On Nov. 7 a lawyer for the company wrote to Speredelozzi they would not provide the crucial source code for the software without the non-disclosure agreement.

So the company chose to let the case against an alleged murderer fall apart rather than let California courts review its source code. But Judge Neff in Michigan already had experts do just that! Is the company afraid other courts may reach similar conclusions and disallow or limit their product's use? The execs at STR-Mix must really be feeling the heat!

One also wonders if the good folks at the Houston Forensic Science Center, which late last month announced they would begin using the STR-Mix software, might now begin to consider that decision ill-timed? Certainly, after Judge Neff's decision, one would question using it for either mixtures involving more than three sources or three-source mixtures where the target makes up less than 20 percent of the sample. Lots of trace-DNA samples are submitted to crime labs that don't meet those criteria!

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed Judge Neff's opinion and its implications for crime labs interpreting DNA mixture evidence. I pulled out that segment as a stand-alone; you can listen to it here:

The news about Mr. Dominguez's case hadn't yet come out, so we didn't talk about that. But the segment discussed some of the recent history of ever-changing DNA-mixture math and explored the reasons underlying Judge Neff's decision.

IMO this is going to become a significant story with national and international implications (everybody relies on the same science) and lots of twists and turns over the next few years. We need some journalists with chops to jump on this coverage on the front end. Wrongful convictions have gone unchallenged simply because not one reporter in the whole country is covering this beat.

For more background on this controversy, see:

• National Institute of Standards and Technology: "DNA Mixtures: A Forensic Science Explainer" (April 2019)
• Ryan Forensic: "What in the world is going on with forensic DNA mixture analysis?" (April 2017)

*Except Techdirt, which picked the item up from Grits.

Bonus tracks from Reasonably Suspicious interview with #RodneyReed's attorneys: Why all the forensics from his case have been discredited

For the October Reasonably Suspicious podcast, my co-host Mandy Marzullo and I interviewed attorneys for death-row inmate Rodney Reed, who is scheduled to be executed on November 20th. Despite this apparent failure, Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer-Brown in Houston are in fact excellent lawyers, and their habeas-corpus-phase deconstruction has left little evidence remaining from the prosecution's case that convicted their client.

Regardless, Reed's execution looms.

We published the first part of the interview on the main, monthly podcast in October. Now, here's the full interview, including the final portion describing how all of the forensic evidence in Reed's case has evaporated.


If you already listened to the first part on the podcast, part two of the interview starts at the 11:40 mark.

Bottom line, the state's case hinged on two prongs: 1) forensic testimony that Reed must have had sex with victim Stacey Stites soon before her death, and 2) the fact that only friends of Reed, not Stites' acquaintances, corroborated his version that the two were engaged in an illicit affair.

Now, a re-investigation of the case by Quinncy McNeal has uncovered several additional witnesses who corroborate the relationship between Reed and Stites, none of whom had any relationship with Reed whatsoever. Indeed, after this interview was conducted, a witness came forward who says Stites' fiancee, Jimmy Fennell, confessed to killing her while in prison.

Meanwhile - and this is the portion of the interview that wasn't included in the October podcast - all of the prosecution forensics in the case have been discredited. The defense has secured retraction letters from the former Travis County medical examiner and the DPS crime lab saying the testimony provided against Reed at trial was wrong. If jurors had heard the corrected forensic testimony, much less the independent corroboration of his and Stites' relationship, Rodney Reed almost certainly would never have been convicted in the first place.

With evidence of Reed's likely innocence mounting, the decision whether he will live or die is up to Gov. Greg Abbott and the Board of Pardons and Paroles. They have less than two weeks to decide. Twenty-six Texas House members - 13 Rs and 13 Ds - have asked the Governor to commute Reed's sentence.

For more background, including the best exposition of recent evidence in the case, see Reed's "clemency petition." See also the Texas Tribune's latest coverage.

Find a transcript of our conversation below the jump:

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Digesting new Daubert opinion on DNA mixtures

Grits earlier referenced the opinion from federal District Judge Janet Neff, in Michigan's western district, who directly evaluated the most common, commercial DNA-mixture software using probabilistic genotyping under the Daubert standard for whether to allow expert testimony. Texas courts heretofore have let in such evidence but avoided a direct Daubert evaluation.

There was a Texas connection in the case. Dr. Michael Coble, of the University of North Texas Health Science Center, was the expert employed by the prosecution. He has been one of several key advisers to the Texas Forensic Science Commission and the legal system in general as the state has struggled with this DNA-mixture issue. The expert for the defense, whose arguments more frequently prevailed in Neff's opinion, was Dr. Dan Krane, from Wright State in Ohio.

Judge Neff evaluated each prong of the Daubert standard as it related to the STR-Mix DNA mixture-analysis software. This program employs high-end math that few DNA-lab practitioners can actually reproduce called "probabilistic genotyping." But programs are only as good as the assumptions that guide their work, and some of the assumptions in each case - e.g., the number of contributing samples - are inputted by the user. There are subjective judgment calls throughout the process. Further, because the math results from tens of thousands of randomized guesses, the results aren't replicable test to test.

Judge Neff was disquieted that, unlike for one-to-one DNA matching or two-source mixtures, as with a rape kit, there are no controlling standards for interpreting DNA mixtures, especially for samples with very small amounts of DNA - maybe only a few scattered cells.

The judge also made the interesting point that, even if the math behind the STR-Mix software is impeccable, there were international standards for coding such high-end math projects and the STR-Mix software didn't meet them all. Coble was dismissive that other fields might have standards to contribute, but the product in question is so obviously an intersection of an array of multidisciplinary work, the judge didn't buy it.

Further, the judge echoed concern that most validation studies on the software so far have been conducted by company principals. And while there was peer-reviewed support for STR-Mix (again, mostly for studies by people with a financial stake in the project), none of that peer-reviewed work focused on low-level samples as in this case, where just a few cells were found that were said to belong to the defendant.

One point that's always bugged me was raised in an expository section of the opinion but not included in her reasons for her Daubert denial: “[D]ue to the methodologies used in STRMix, '[t]he results of no two analyses will be completely the same',” she wrote. Elsewhere, she quoted an academic article noting that, "for a technique to be broadly applicable, it must be based on measurements that can be replicated." Supporters of the software, however, say replicability isn't necessary and it should be good enough if the results were all in some acceptable range. Regardless, while Judge Neff clearly observed this incongruity, it wasn't included in her final reasons for her ruling.

Clearly the most persuasive piece of evidence for Judge Neff was the 2016 PCAST report which expressly stated that STR-Mix was validated for up to three sources if the sample to be identified is at least 20 percent of the total. She did not find further validation regarding smaller samples, and the very small sample in this case, she believed, merited even greater caution. She essentially treated the threshold cited by PCAST as a bright line regarding the current state of the science. STR-Mix can be used for traditional one or two-source DNA matching, she ruled, and for three-source mixtures if the sample to be matched made up 20 percent or more of the whole. But otherwise, the estimates would be inadmissible.

One small upside for backlogged crime labs using STR-Mix: This would make it easier to screen DNA mixture submissions. Samples with more than 3 contributors should probably be rejected up front as unanalyzable "crap," to use the words of a prominent DNA expert who advised Texas crime labs on the topic.

Errors in such cases can cause false convictions, so Grits is glad to see this increasingly dirt-common evidence more carefully vetted. From the time probabilistic genotyping was first introduced to Texas crime labs in 2015, experts were warning against stretching the limits of the math (i.e., trying to analyze "crap"). Judge Neff would set a bright-line threshold, and given the current state of the literature, it's not an unreasonable choice. In many ways, it's the most defensible (it would probably be easier to get past it by improving the tech than defeating her arguments). But whatever threshold one chooses, her decision highlights that one must exist, even if courts haven't heretofore required it.

I'd quoted it earlier, but I loved Judge Neff's conclusory analysis of current DNA-mixture-evidence practices, so let's give her the final word here:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if Daniel Gissantaner is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.

Anyone interested should definitely read the whole opinion. This summary hardly does it justice.

MORE: From Techdirt.

See prior, related Grits posts:

• Most crime labs accused innocent person in DNA mixture study
• A reluctant scoop: Changing interpretations of DNA mixtures vex legal system
• Labs must correct wrong DNA mixture analyses, learn when to recognize 'crap'
• Resources on DNA mixtures
• The challenge of notifying defendants in large-scale forensic error cases
• Courts punt on forensics surrounding DNA mixtures
• Black box DNA mixture analysis method used in NYC turned out to be flawed
• Changes to DNA mixture software raise questions about old versions
• News flash: 'Touch DNA' doesn't necessarily require touching
• DNA mixture SNAFU a mess but don't expect 'deluge' of innocence claims

DNA mixture software widely used in Texas disallowed by MI federal judge

For some time, Grits has been skeptical whether DNA-mixture software would hold up to "Daubert" scrutiny if judges were to directly evaluate it. In 2015, this blog reluctantly broke the story in Texas about errors and uncertainties regarding how to evaluate DNA mixture evidence. (They were being openly discussed by the Forensic Science Commission and the Court of Criminal Appeals' Criminal Justice Integrity Unit when I worked for the Innocence Project of Texas, but reporters weren't covering the complicated, math-heavy story.) After that, I've followed the issue from afar even after I stopped tracking forensics in any professional capacity.

STR-Mix is one of a handful of companies selling their product as a solution to the conundrum of how to evaluate DNA mixture evidence. Now, a federal district judge in Michigan, Janet Neff, after an exhaustive review of the science, has ruled directly on the Daubert-based admissibility questions surrounding this product that Texas courts punted on. In particular, Judge Neff ruled in favor of defendant David Gissantaner, concluding that

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if Daniel Gissantaner is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more. 

It is the Court’s hope that this decision brings to light the shortcomings or, at the very least, points of inquiry necessary in evaluating this advancing technology as a tool in forensic DNA analysis. There must be a dialogue among key players in the general interest of the development and refinement of the technology, the software and its application by the individuals charged with its use in the field, rather than post-hoc testing of its reliability in the context of a criminal prosecution where the ultimate question is the freedom and guilt or innocence of the person of interest. 

Here, because the sum of the parts simply does not add up to a reliable whole, the DNA analysis/likelihood ratio resulting from the use of the STRmix probabilistic genotyping software must be excluded. Defendant’s motion to exclude evidence is granted. An Order will enter consistent with this Opinion.

Wow! Obviously, this doesn't apply in Texas nor anywhere in the 5th Circuit. But it's the first time to my knowledge that a federal judge has taken a deep dive into the science behind proprietary DNA mixture software and rejected it based on the Daubert standard. Welcome to the party, Judge! Grits was beginning to feel a bit lonely in that view!

In one-to-one DNA matches, or two-source matches like a rape kit where the DNA of the victim is known, DNA evidence remains the gold standard of forensic science. But analyzing DNA mixture evidence - e.g., "touch DNA" on a doorknob or DNA from a blanket on a couch - remains a more subjective process that's sometimes more of a guess than a "match."

I want to delve into the judge's opinion more deeply before commenting further, but this seems like a big development. We know at least some Texas labs use the same proprietary DNA software the federal judge in Michigan disallowed.

Clarification: More on this soon, but having now more closely read the opinion, Grits should clarify that the court recognized STR-Mix software results could be considered valid for distinguishing up to three-sourced DNA mixture samples, but only if the DNA one is attempting to match makes up at least 20% of the sample; in this case it made up 7%. So saying STR-Mix software was "disallowed" in the headline was too broad. Under this ruling, STR-Mix results for one and two source DNA samples would remain admissible, and for three sources, if the sample one wanted to identify made up at least 20 percent of the total. But it couldn't be used when there were only trace amounts from the third DNA source, or when there are four or more sources. Here is a spot where user expectations for forensics exceed the capabilities of actual science. In many ways, the judge's advice corroborates what experts have said in Texas since this issue first arose: beyond a certain point, DNA mixtures become un-interpretable "crap." You can push the math further, but the evidence doesn't therefore improve.

Policing policy, forensic follies, the high cost of treating Hep C in prison, and other stories

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

Lawsuit seeking Hep C treatment could come with BIG pricetag
More than 18,000 Texas prison inmates have been diagnosed with Hepatitis C - almost certainly an undercount since TDCJ does not do comprehensive testing - but only a tiny handful receive treatment. The Houston Chronicle reported on a new federal lawsuit demanding they receive treatment, which could cost up to $63,000 per person. See prior Grits coverage and video of testimony from 2014 regarding Hep C treatment in TDCJ.

Conservative think tank takes on police unions
In a significant development, the conservative Texas Public Policy Foundation published a new report criticizing police unions for undermining police accountability reforms. In Texas, conservative politicians in the 21st century have largely kowtowed to these groups. Maybe the state's leading conservative think tank can convince them that's a bad approach. In related news, in St. Louis, prosecutors voted last December to join the local police union in response to the election of a new, reform-minded DA. This academic article makes the case that "This complete and public union of prosecutorial and police interests represents a collapse not only of prosecutorial ethical standards, but also a very real threat against democratically elected prosecutors who would seek to enact the reforms that their constituents desire."

Deep data dive for Big D and H-Town
The project by the Texas Criminal Justice Coalition and January Advisors to publish "data dashboards" for Harris and Dallas Counties' arrest, dismissal, and conviction information allows for important analyses that have never been possible before from publicly available data. They just published this overview of the project, which includes links to the dashboards and a description of what's there.

Handful of police-officer indictments in Dallas stand out
The Dallas DA's office has indicted four police officers for murder in three years, with two of them convicted. The trial for another, Amber Guyger, begins Monday. Notably, the indictments came under both Republican and Democratic District Attorneys. The Dallas News has a story describing how rare this is at other agencies. Even in Dallas, only one officer was indicted this year out of 50 (!) officer involved shootings taken to grand juries. Despite the rarity of such developments, the head of the local police union was quoted saying the indictments were evidence of anti-police bias.

DPS out of Dallas, with mixed reviews
The Department of Public Safety has ended its deployment in Dallas launched by the governor earlier this year. According to an item from the Houston Chronicle's Austin bureau, "The influx of state troopers drew criticism from some residents and a city councilman, who called for the operation’s end after hearing complaints that enforcement was unfairly targeting people of color, The Dallas Morning News reported. In August, two troopers fatally shot a Dallas man who the agency said pulled a handgun after a traffic stop, the News reported." Despite these criticisms, DPS Col. Steve McCraw declared the operation a success, declaring  "Certainly there's been some that don't appreciate it, usually the ones that are arrested or have relatives arrested, and we understand that." That seems like an odd assertion when one of the most vocal critics is a city council member.

DNA analyst resigned over high-profile error
Grits had missed the news in August that a DNA examiner resigned at the Forensic Science Commission after a report by her employer found that she had testified incorrectly in a high-profile murder case in which a UT student was strangled, declaring the defendants' DNA could be excluded when that was not true. (She worked for DPS at the time she gave the testimony.) Though she told FSC investigators she "misspoke," she did so TEN times. The commission found that her error constituted professional "negligence," but not "misconduct." Whether or not there was any bad intention behind the mistake, it highlights the difficulties and pitfalls of interpreting DNA mixture evidence, which is more subjective and less definitive than one-to-one DNA matching.

Can refined patrol strategies free up more officer time?
A criminologist at UT-Dallas developed an algorithm to help the Carrollton PD refine its patrol strategies so officers waste less time in their vehicles. Notably, the recent staffing study for Dallas PD similarly recommended refining patrol routes to free up officer time spent driving long distances.

Does EMS need tactical teams? Montgomery County thinks so
The Montgomery County Hospital District has created a tactical team to join local police on SWAT raids. One paramedic said he joined the team because "There was more of the excitement appeal."

Alternative to police response for mental health, homelessness, substance abuse
Regular readers know that Austin recently funded a new program to have medical personnel respond to some mental-health calls instead of police. At the same time, the city has been engulfed in a debate over how to confront homelessness. A program out of Oregon called CAHOOTS demonstrates an approach that could address both issues with a non-police response. Medical teams in a van respond to mental health crises and provide services to people suffering from substance abuse or homelessness, leaving law enforcement out of the equation. That's a great idea.

Okies boost parole rates
Parole rates in Oklahoma are up 41 percent from last year, and commutations (which previously almost never happened) are up 1,300 percent, reported the Tulsa World. Texas parole rates remain stagnant in recent years at around 35 percent. Most offenders in Texas prisons are parole-eligible and could be released today if the parole board agreed.

Policing practices parsed in Congress
The US House Judiciary Committee held a four-hour oversight hearing this week on policing practices. Watch it here.

The public's cognitive dissonance over forensic science
A new academic analysis finds that the public is losing faith in the accuracy of forensic science, but still believe forensics over other types of evidence. As evidence of this cognitive dissonance, "Respondents still believe that forensic evidence is a key part of a criminal case with nearly 40% of respondents believing that the absence of forensic evidence is sufficient for a prosecutor to drop the case and that the presence of forensic evidence, even if other forms of evidence suggest that the defendant is not guilty, is enough to convict the defendant." (Emphasis added.)

A new constituency for  pot legalization?
Should convenience-store owners become marijuana legalization proponents? It might boost their sales. A academic analysis published in February found that legalizing recreational pot use resulted in increased junk food sales.

The eugenicist who gave us fingerprint identification
I didn't know that the original creator of fingerprint identification in the 19th century was also the enthusiastic progenitor of the eugenics movement. It doesn't sound like the fingerprint discipline has changed much since he first convinced Scotland Yard to undertake it.

The criminogenic effect of police stops on black and Latino boys
A study published in April found that "the frequency of police stops [of black and Latino teenage boys] predicted more frequent engagement in delinquent behavior 6, 12, and 18 mo later, whereas delinquent behavior did not predict subsequent reports of police stops." In other words, police stopping minority youth was predictive of future delinquency, but self-reported engagement in delinquency was NOT predictive of police stops! The implication is that proactive policing strategies like stop-and-frisk may actually cause juvenile crime instead of deterring it.

Podcast: Elsa Alcala says Texas death penalty unreliable; parsing new TX traffic-stop data; prospects for Lone-Star marijuana reform, and other stories

Here's the March 2018 episode  of the Reasonably Suspicious podcast, recorded last week on the SXSW Podcast Stage hosted by Cadence13. Former Texas Court of Criminal Appeals Judge Elsa Alcala was our special guest, focusing on junk forensic science and the death penalty.


Here's what's on this month's show:

Opening Riff
Would permanently shifting to Daylight Savings Time reduce crime?

Top Stories

• Prospects for marijuana reform in Texas
• New data on use of force at Texas traffic stops
• Legislative proposals to end the Driver Responsibility surcharge

Forensic Focus
Judge Elsa Alcala discusses junk science cases at the Texas Court of Criminal Appeals.

Death and Texas
Judge Alcala discusses the evolution of her views on capital punishment, from proponent to critic, and what the Texas Legislature should do to fix the state's unconstitutional laws on executing people with developmental disabilities.

The Last Hurrah

• More corruption revealed after botched drug raid in Houston
• Should stealing Amazon packages become a felony?
• Closing the "Dead Suspect" loophole to the Texas Public Information Act

Find a transcript of the show below the jump.

Funding needed to bolster Office of Capital and Forensic Writs

My Reasonably Suspicious podcast co-host, Amanda Marzullo, who is the executive director of the Texas Defender Service, asked me to publish this guest blog post she authored advocating for expanded resources for the Texas Office of Capital and Forensic Writs. Give it a read:

Members of the Senate Finance Committee’s Article IV Subcommittee should take a lead from their counterpart committee in the House  and adequately fund the Office of Capital and Forensic Writs (OCFW), which has been under-resourced since its inception in 2010.

The office represents people on death row in constitutional claims relating to their conviction or sentence. The post-conviction writs filed by OCFW, often composed of hundreds of pages and years of work, ensure our system is fair and helps us avoid the most serious of mistakes.

Importantly, counties are on the hook for most costs of post-conviction representation when OCFW is not able to handle a case. The OCFW seeks funding from the Fair Defense Account, a General Revenue-dedicated fund which can only be spent on indigent defense expenses.

Each session, the head of OCFW reports that staff is over worked and underpaid—even by government public service standards. Lawyers in this office handle 8.5 capital cases on average, which is about 70% higher than their counterparts in other Texas post-conviction entities, where attorney workloads are capped at 4 to 6 cases—depending on the size of a case’s record and the issues that require research and investigation. OCFW attorneys at this office are also paid significantly less than lawyers at other entities, which prevents the office from hiring and retaining experienced lawyers. For example, the State Prosecuting Attorneys Office, the Capital Habeas Units of the Federal Public Defender Offices in Dallas and Austin, and the Regional Public Defender for Capital Cases in Lubbock are all able to pay their lawyers 40-50% more on average than the OCFW.

Given this backdrop, it’s hardly surprisingly that the office struggles with high attrition rates. Since it opened its doors nine years ago, 27 staff members have departed from its payroll roster, which currently includes just 16 people. Such high turnover impedes their representation, and ultimately, may lead to a new grounds for appeal in federal court.

Finally, and perhaps most importantly, the House Appropriations subcommittee voted to provide funding for the office’s expansion into forensics writs.  Readers of the blog will remember that legislature directed the office to handle non-capital junk science cases that are referred by the Forensic Science Commission two sessions ago through legislation sponsored by Senator Hinojosa. Yet, to date, the legislature has not allocated one iota of funding for these cases. Funding for these cases and the OCFW simply makes sense.

Podcast: Taking a bite out of junk science, update on bail-reform litigation, and much more

The January episode of Just Liberty's Reasonably Suspicious podcast was delayed a bit by my co-host's enviable trip to Vietnam at the beginning of the year. But the results were worth the wait. You can subscribe to the podcast on iTunes, GooglePlay, or SoundCloud, or listen to this month's episode here:

We've got a good show this month, featuring a review of bail-reform litigation around the state and how it might influence legislation in Texas. We updated listeners on criminal-justice reform bills, including many with bipartisan support in both major Texas party platforms. And we talked through the Texas Court of Criminal Appeals' Chaney decision invalidating bite-mark evidence and debating innocence standards, plus much more. Here's what we discussed this month:

Top Stories

• Bail reform (2:00)
• Texas #cjreform legislation with bipartisan support (6:55)
• Policing bills to watch (14:20)

Home Court Advantage

• Bite marks, junk-science and innocence: The Court of Criminal Appeals' Chaney decision (20:00)

Fill in the Blank

• Prison healthcare budgets (32:00)
• First Step Act (36:00)
• Rape clearance rates and the Austin police chief (39:30)

The Last Hurrah (43:55)

• Convict leasing victims found in Sugar Land
• Forensic commission suggests using high-error-rate drug field tests
• 'Dead Suspects Loophole' to the Public Information Act

Find a transcript of the show below the jump. Enjoy!