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.

Excited delirium: Cause or excuse for deaths in custody?

This NY Times piece on a Georgia death-in-custody didn't use the phrase "excited delirium," but it's precisely the type of circumstance from which that diagnosis can arise.

Grits' contributing writer Amanda Woog asked me recently about "excited delirium," having seen the term come up in death in custody reports she's curating as part of her Texas database project. (Look for a big announcement soon as she releases new datasets beyond just recent police shootings.) I first heard the term when I directed the ACLU of Texas' Police Accountability Project around the turn of the century and it represents one of the most curious and bizarre distortions of medical terminology in service to a political agenda I've ever personally run across. Really, excited delirium is not a diagnosis at all so much as an acknowledgement of the lack of other diagnoses. It's what authorities say when someone dies after being restrained or Tazed by police, they don't want to blame the officer(s), but there are no other explanations for the outcome. One often sees the term suggested in the press by unions before medical examiners ever release their findings.

Excited delirium is a medical condition which seemingly only manifests itself when the patient is being beaten, Tazed, or otherwise physically restrained by law enforcement, which makes it an atypical diagnosis, to say the least. Cynics contend it's a fake diagnosis created to cover up police misconduct. Among professional associations, those fields more closely associated with law enforcement - medical examiners and emergency physicians - accept the term, while the AMA, APA, the DSM, and the World Health Organization do not. The chairman of Texas' Forensic Science Commission, Vincent Di Maio, wrote the principal, professional text making the case for the diagnosis (though clearly it wasn't enough to convince the AMA, etc.).

Anyway, debates over the diagnosis reignited in the last year - with major pieces in the Washington Post,  Slate, and Vice/The Influence - in light of renewed interest in death-in-custody cases inspired by the rise of the Black Lives Matter movement. If someone as well-read as Amanda was unfamiliar with the term, then perhaps others aren't, either. So I thought it'd be good to compile some key links on the topic.

One of the earliest significant MSM pieces I remember on it was from 60 Minutes in December 2003; that sort of put the debate on the map, for me, anyway. Mother Jones in 2009 attributed the rise of the term to the company Taser International, which reportedly employed Di Maio as an expert witness and handed out free copies of his book at law enforcement trainings.

The website PoliceOne has covered the issue quite a bit over the years. Here are a few key items:

• Excited Delirium and its medical status (good summation)
• Is excited delirium a fake condition invented to whitewash abusive force? (response to critics)
• New study: Fast effective option for excited delirium cases (sedation)

Here's a white paper on the topic from the American College of Emergency Physicians, which recognizes the "syndrome."

The since-fired Austin officer who shot and killed David Joseph, a black teenager who was buck naked sprinting down the street, said he thought the young man may have suffered from "excited delirium."

Grits is very much a skeptic here. If we had people dying of excited delirium under other circumstances besides being taken into custody by law enforcement, I'd consider the idea to have more merit. But it's awfully convenient to blame some vague "syndrome" that can't be verified while ignoring violent actions immediately preceding a death as the most likely cause. No civilian would ever get such consideration.

OTOH, it almost doesn't matter. The truth is that police wouldn't be held accountable for those deaths even if no one had ever heard of "excited delirium." (Taser is probably the chief beneficiary of such blame shifting; they don't enjoy qualified immunity.) Meanwhile, pretending the syndrome exists may result in training recommendations for de-escalation techniques which are beneficial regardless of the terminology used.

For example, recently the missus ran across a case from 2015 in which Robert Brandon Edwards was restrained by police and died in transit to the hospital. See Statesman coverage from when the officers were no-billed, the APD incident report and autopsy report, which concluded that Edwards "died as a result of the combined effects of methamphetamine and phencyclidine toxicity and physiologic stress associated with restraint procedures." Though the medical examiner didn't cite "excited delirium" as a cause of death, the detective taking a statement from one of officers used the term to describe Mr. Edwards' condition.

If the department were to alter procedures aimed at preventing deaths like Mr. Edwards, the benefits would not be reduced because they adopted a trendy catch phrase.

These situations are arising and people are dying, whatever we call it. If it takes acquiescing to use of a pseudoscientific buzzword to convince police to embrace de-escalation and/or restraint techniques that minimize loss of life, I suppose we shouldn't mind. In the meantime, though, "excited delirium" still strikes me as less a diagnosis than a strained defense.

Houston chief says war on drugs a failure, and other stories

Here are a few items which deserve Grits readers attention as my own is focused for the moment outside the blog.

Houston police chief: War on drugs a 'miserable' failure
Houston Police Chief Charles McClelland on Friday called the war on drugs a "miserable" failure and suggested political attitudes have sufficiently shifted, even in Texas, to the point where altering marijuana laws could happen "soon." He declared that "people are beginning to think about this issue differently, and they know that we've got to do something different than what we're doing."

Prison doc: death by natural causes; ME: homicide
The Lubbock Avalanche Journal recently reported that "Six Montford Psychiatric Unit detention officers have not been reprimanded after using force to restrain a 63-year-old inmate who died shortly after the incident earlier this year." The episode may involve a coverup. The paper investigated "after a Lubbock County medical examiner’s ruling this fall contradicted previous rulings by the state." "A Montford doctor originally reported McCoin’s death as natural" but a Lubbock medical examiner declared the case a "homicide."

'Bad traffic law has to go'
The San Antonio Express-News had an editorial calling for abolition of the Driver Responsibility Surcharge.

Jail phones profit from a 'Captive Audience'
The Dallas Observer recently ran a cover feature on Securus and the rise of privatized jail phone service and video visitation at Texas county jails. The topic will be familiar to Grits readers but the coverage was thorough and reaches a new, different audience, one hopes, than this stodgy old blog.

Newspaper calls for mental health investments
The Houston Chronicle editorial board called for construction of a new state mental hospital in the Houston area. According to the paper, "When the Neuropsychiatric Center at Ben Taub Hospital in the Texas Medical Center is out of room, our law enforcement professionals must drive around in their squad cars with people suspected of mental illness, waiting for a bed to open up or looking for an alternative. This happens not infrequently, according to mental health professionals." They also complained of a shortage of competency restoration beds and the aging and outdated Rusk State Hospital, which is a three hour drive from Houston.

Juvenile justice and the arts
Ronnie Sanders, who serves on the Texas Commission for the Arts, wrote a column praising a Bexar County juvenile diversion program with remarkably low recidivism rates in which "Students who have often resorted to violence in the past are taught methods of conflict resolution through writing, acting, team-building and communication skills." Says Sanders, "We should all celebrate when people can be earnestly reformed through the arts," and "we should seek more opportunities and increase funding that could allow more young Texans to transform their criminal past into a life sentence of positive choices and a realization of their potential as a contributing citizen to Texas."

News flash: Crime labs screw up outside of Texas, too
The Jonathan Salvador fiasco was one of five recent misconduct scandals at U.S. crime labs described in this article from Chemistry World. Can you guess the other four? Perhaps, in the near future, Grits will compile Texas' own top five. Hard to believe we only got one in a national top five list on this topic; author Rebecca Tragle should Google "Houston police crime lab scandal" for the granddaddy of them all in Texas.

No way feds reimburse Texas on border security
Texas' request to the feds for reimbursement for the Great Border Security Boondoggle is a laughable exercise in hubris. Given that, IMHO, the entire spending program serves no real security purpose but instead is a political expenditure aimed at snubbing the Obama Administration, why would the feds ever consider paying for it. They're basically asking them to pay for an extended, years-long Rick Perry campaign commercial.

Ten predictions about police bodycams based on experience with dashcams
Having been deeply involved more than a decade ago in the effort to get dashcams in police cars in Texas, I find the description of their effects from The Atlantic to be fairly accurate. However, I disagree that past is entirely prologue when it comes to bodycams, which IMO may have greater deterrent effects for police misconduct because they're recording personal interactions, not just views from a distance. Time will tell. In practice, they support officers stories more often than contradict them and make report writing more accurate. There's as much incentive for police to adopt them as for reformers to support them.

Advice for 1Ls and lawmakers: Don't make laws you wouldn't kill to enforce
Yale law prof Stephen Carter in a recent column offered sound advice to law students that goes double or triple for lawmakers: "On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you."

Are MEs fudging cause of death for Texas prisoners?

If one person per day is dying in custody of state and local law enforcement in Texas, the next obvious question is, "What do those cases look like?"

Nicole Brambila at the Lubbock Avalanche-Journal over the weekend (Oct. 18) offered up a portrait of local death in custody cases, basing the story on the list compiled at the Attorney General referenced in this recent Grits post. Well done. This same type story can and should be localized by media in other jurisdictions around the state.

The most dramatic element in the article was the saga of Benjamin McCoin, whose death at the Montford psychiatric unit occurred due to injuries sustained while being restrained by guards. The Tarrant medical examiner called the death an accident; the Lubbock medical examiner labeled it a "homicide." TDCJ spokesflak Jason Clark understatedly told the paper, “It’s certainly a unique situation where you have differing causes of death between two medical examiners.” Indeed, isn't it?

Lubbock County Medical Examiner Sridhar Natarajan has reviewed four death cases from Montford in the past year. "In two of the cases the state said were natural deaths — including McCoin’s — Natarajan has changed the cause, out of concern," reported Brambila. Here are more details on the other case:

The second involved 27-year-old Marsele Dauntri Thompson, who in January was found unresponsive in his cell. Tasha Z. Greenberg, M.D., in Tarrant County reported finding “no evidence of trauma or foul play.”

And yet, the autopsy records evidence of a contusion on Thompson’s forehead in the process of healing, as well as abrasions around his eyes and and additional contusions on his arm and thigh.

Correctional officers were supposed to be conducting 15-minute checks on Thompson, a schizophrenic on water restriction for his personal safety. However, when officers discovered

Thompson sitting nude in his cell with his legs crossed, his body was cold.

Generally, a body is stiff and warm at two hours. It’s stiff and cool between four and six hours.

“When the body was found it was cold, in rigor,” Nataranjan said. “That’s not going to happen within a 15-minute check. It doesn’t match with 15-minute checks.”

Natarajan reported the death undetermined.

“If I’m not able to explain it, I’m not going to give a cause of death,” Nataranjan said.

The Texas Office of Inspector General is also investigating Thompson’s death, Clark said.

Excellent reporting. Nice to see local journalists following up on those death-in-custody reports. There's no way such stories get reported unless somebody's doing the grunt-work to follow up on the details of individual cases in the AG report.

These sorts of regional and local stories are low hanging fruit for reporters elsewhere, it should be emphasized. That AG death-in-custody list represents a huge cache of under-utilized story leads that typically aren't followed by local reporters because they require work and the government hasn't handed them the story on a platter. This article shows what's possible with just a little elbow grease. You never know what you'll find until you look. One hopes others follow suit.

Manuel Velez leaves death row: Case tainted by flawed forensics, ineffective counsel

Another questionably convicted capital defendant has walked off of death row a free man. Manuel Velez, whose capital murder conviction was overturned based on ineffective assistance of counsel and the state's use of a future dangerousness expert whose testimony was debunked, pleaded guilty to a lesser charge and was released based on time served. Reported the Houston Chronicle:

Manuel Velez, a 48-year-old construction worker from the Rio Grande Valley who had been on death row for the capital murder of his girlfriend's 11-month-old baby, was released Wednesday on parole.

"I'm very happy. I thank God for my lawyers, for my freedom, for getting me out of death row," Velez said as he left prison in Huntsville on his way to Brownsville to be with his family.

Velez was allowed to be paroled after pleading no contest to a lesser charge of injury to a child.

Summed up Huffington Post writer Saki Knato, "To Velez's supporters, his release on Wednesday is the culmination of a legal drama that exposed many of the broader problems plaguing the justice system in Texas and beyond. The case 'contained a litany of injustices, including police misconduct, prosecutorial deception, ineffectiveness of defense counsel, and untruthful witnesses,' said Richard Dieter, head of the Death Penalty Information Center, in a statement." The Cameron County DA, by contrast, insists Velez is guilty. Either way, today he's a free man and to judge from the forensic evidence - which showed the injuries at issue occurred while he was out of town - IMO quite possibly an innocent one.

Pam Colloff's Texas Monthly story on the case may be the best overview for those unfamiliar with his story, doing an especially good job vetting the flawed forensic testimony. See also the trial judge's recommendation that Velez receive a new trial based on having received ineffective assistance of counsel. And here's a statement from Velez's attorney from the national ACLU.

MORE: From the Texas Observer. AND MORE: From Breitbart Texas which prematurely (from a legal perspective) declared Velez "innocent" TDCAA tweeted in retort, "Release on parole, yes. Innocent, no."

Autopsy report from ME indicted for making false statements under oath can't come into evidence unless she testifies, except it did

Via TDCAA, somehow I'd missed that a now-former assistant medical examiner in Harris County, Dr. Luisa Florez, had been indicted for making false statements under oath, apparently related to a loan application. (See coverage here.) Her husband has since been convicted and sent to federal prison "for conspiring to obtain approximately $1 million in disaster relief funds by fraudulent means." Florez's case has not yet reached its denouement.

The issue arose because a Harris County district judge allowed a report from an autopsy she performed to be entered into evidence in a murder trial (Lee v. State). "The jury was not made aware of the indictment, however, because the State chose to have another medical examiner, Dr. Robert Milton, relay the findings of Dr. Florez‘s report." The Fourteenth Court of Appeals ruled this was a Confrontation Clause violation, holding "that autopsy reports are testimonial and the defendant must be allowed to cross-examine the medical examiner who created them." (Read the opinion.)

However, the court held that the error was "harmless" because "ample additional evidence established appellant‘s guilt" and Dr. Milton's testimony "was mostly undisputed." Further, "although the autopsy report might have added credence to Dr. Milton‘s testimony that wounds caused by appellant‘s rifle, standing alone, could have caused complainant‘s death, that determination was not important to appellant‘s liability as a party." Though IANAL, their conclusion seems a bit odd to me since Dr. Milton's conclusions, which the court said were allowable, were based on Dr. Florez's report. But I'm never surprised when a Texas appellate court overlooks constitutional errors as "harmless" to uphold a conviction.

Who knows how many autopsies Dr. Florez performed? In the future, at least within the jurisdiction of the 14th Court of Appeals, her reports can't come into evidence unless the state puts her on the stand to testify, which given her indictment for making false statements under oath seems unlikely, at best. According to TDCAA's case summary, "Take from this case the lesson that maybe the State can get another expert to present testimony, but that will not allow bootstrapping a report otherwise inadmissible under the Confrontation Clause."

DPS crime lab fiasco headed to CCA oral arguments, and other stories

Here are a few tidbits that caught my eye before Grits must leave town today for work:

Auditor critiques state LEO licensing agency
The state auditor has produced a new report on the Texas Commission of Law Enforcement Officer Standards and Education. They found, "The Commission on Law Enforcement Officer Standards and Education (Commission) reported unreliable results for all three key performance measures tested for fiscal year 2012 and the first two quarters of 2013." Two particular areas of concern:

• The Commission backdates the license award date in [its data system], rather than using the actual date on which the Commission issued the license. As a result, the Commission's licensing data may change frequently.
• The Commission does not sequentially number its licenses. As a result, the Commission cannot ensure that the licensing data is complete

Last session, the Legislature changed the name of the agency to the Texas Commission on Law Enforcement (TCLE, pronounced "Tickle").

High court set to hear arguments on DPS crime lab fiasco
Oral arguments have been set for October 23 in Ex Parte Leonard Coty, in which the Texas Court of Criminal Appeals will revisit their already decided opinion that evidence from discredited DPS crime lab analyst Jonathan Salvador is fundamentally unreliable because of his history of errors and drylabbing. The Harris County Public Defender Office has published their brief (pdf) online. Grits hopes to attend; it should be quite a show, with major implications for thousands of East Texas drug convictions.

Mugged (and extorted) by online mugshots
Good New York Times piece regarding one of the most cynical, sleazy business models Grits has run across in all my years working on criminal justice policy.

When crime-scene evidence crawls away
Interesting piece on practical problems for forensic scientists trying to date dead bodies based on maggots.

Floating prisons in the war on terror
The Obama Administration is beginning to house terrorist suspects in navy vessels outside of US waters so they won't be subject to protections in the US legal system, the same rationale for using CIA "black sites" for interrogations in foreign countries. Bryan Finoki predicted this some time ago, as Grits noted in 2008. New York City experimented with prison barges as recently as the '90s to handle overflow from Rikers Island and later juvenile offenders. Here in Texas, TDCJ considered but rejected similar plans back in the 1980s.

Neal Robbins writ headed back to CCA after Lege ostensibly passed fix

Few of the thousands of habeas writs filed annually get local TV news coverage when they're filed, but Ex Parte Neal H. Robbins is no ordinary case. The medical examiner recanted her trial testimony and the Court of Criminal Appeals majority ignored recommendations by prosecutors and Robbins' attorney Brian Wice that he deserved a retrial. See coverage from MyFox Houston, an item by Wice in the State Bar Journal, and related recent Grits coverage. Robbins' writ was denied 5-4 but Whuitmire/Turner's SB 344 should help reverse that ill-considered precedent. Grits knows he's not alone in closely watching to see which case the Court of Criminal Appeals chooses first to interpret SB 344 and what they'll say about it - especially the five in the Robbins majority - and whether they'll do it before or after three of them leave the court in January 2015.

Tuff-on-crime ideology should play no role in Williamson County forensic science

The Austin Statesman last week published an ill-considered op-ed by Williamson County Justice of the Peace Bill Gravell titled "Time to plan for medical examiner's office and crime lab" (Aug. 22) arguing that Williamson County should create its own medical examiner's office and crime lab instead of continuing to rely on larger Travis County. Here are the three reasons Gravell argues Williamson County should reject a proposal for joint expansion and chart its own path:

First, the Travis County project lacks clarity. The numbers were unclear and confusing. One supporter of the Travis County plan stated the project would cost between $400 and $600 dollars per square-foot simply for the bricks and mortar. Williamson County would be expected to contribute between $6- and $8 million, while continuing to pay the cost of each autopsy. The fine folks of Williamson County know the value of a dollar. We are fiscally very conservative. A project costing $600 per square-foot would put many of us in the morgue.

Second, we have different values than Travis County. People move to Williamson County because of our values. We like the tough on crime attitude and our small-town feel. Our elected officials have a strong track record of working together. Is it wise for us to collaborate on a multi-million dollar project when our political, financial and philosophical views are so divergent? I don’t think so.

Third, the plan lacks vision. We are a people from strong stock. It is time for us to be independent and be visionary leaders. Williamson County is one of the fastest-growing counties in America. Within the next 25 to 30 years, we will exceed Travis County in size.

Reasons one and three are essentially the same ("lacks clarity," "lacks vision") and the economics of the proposal are a judgment call, even if rhetoric like "put many of us in the morgue" sounds like silly hyperbole. On its face, one would think both counties would benefit from economies of scale and that it'd be cheaper in the long run to run just one shop, though the devil inevitably lies in the details. This is an area where skimping on costs up front can generate larger costs and delays on the back end. Running a crime lab involves ongoing investments in both lab tech and personnel. It's not something counties should try to do on the cheap.  The Houston Chronicle opined several years ago that, "In Houston, we're now paying a high cost for trying too hard to save money on forensics."

But it's reason number two that raises a big red flag. Whether Williamson County residents have a "tough on crime attitude" or a "small-town feel" should have zero implications for how a crime lab does its business. Crime labs operating essentially in the pocket of law enforcement have created big headaches for the agencies that run them - ask the City of Houston and most recently, the state of Massachusetts, where lab techs viewed themselves as part of the law enforcement team instead of acting as independent scientists rigorously evaluating evidence.

Notably, eliminating conflicts of interest and cognitive bias were big reasons the National Academy of Sciences in 2009 recommended making crime labs independent of law enforcement agencies. There's too much potential for cross-contamination when police and prosecutors are in a position to pressure scientists for the results they want.

The Michael Morton case out of Williamson County provides an excellent example of how biased science can lead to catastrophic results. Robert Bayardo, the Travis County medical examiner who testified in Morton's case, was exactly the sort of ME who viewed his role as an agent of the prosecution instead of an independent, objective scientist. (Bayardo notoriously never took notes during autopsies so that defense counsel couldn't later subpoena them.) Texas Montly's Pam Colloff described how Bayardo changed his testimony to implicate Morton after meeting with prosecutors:

Originally, based on his belief that she had eaten dinner as late as 11 p.m., Bayardo had found that Christine could have died as late as 6 a.m., a half hour after Michael left for work. But the medical examiner would later testify that he made that determination when “I didn’t know all the facts. I didn’t know when she had her last meal.” Bayardo changed his estimate shortly after [prosecutors] Boutwell and Anderson visited the City Grill and retrieved a credit card receipt showing that Michael had paid for their meal at 9:21 p.m. According to Bayardo’s revised time of death, Christine could not have died after 1:30 a.m.

This conclusion was based on an examination of her partially digested stomach contents, a notoriously imprecise method for determining the time of death that was not recognized, even 26 years ago, as sound science. Bayardo’s math also defied logic; although the time that the Mortons’ dinner ended had been revised by less than two hours, he had adjusted the estimated time of death more dramatically, by nearly five hours. Still, his conclusion was crucial to the state’s case: besides [Morton's son] Eric, the only person who had been with Christine between 9:30 p.m. and 1:30 a.m. was Michael.

Though Bayardo told Morton's attorneys he was "very much disturbed" that prosecutor (now judge) Ken Anderson misrepresented his forensic testimony to the jury, he never stepped forward to say so until DNA testing exonerated Morton a quarter-century later. Morton's exoneration was an internationally publicized disgrace for Williamson County, but it sounds like Judge Gravell is willing to risk replicating that approach.

From an economic perspective, one can debate whether Williamson County should own and operate its own crime lab. But to argue based on the county's "values" that it needs a pro-law enforcement crime lab and medical examiner's office defies basic ethics and common sense.  Science should stand on its own, independent of the values held by jurors who hear the evidence or the voters electing the judges and DA. It's fairly stunning to see that argument made in Williamson County so soon in the aftermath of the Michael Morton exoneration.

TX forensic commission chair among dueling experts in Zimmerman trial

Grits intentionally boycotted (to the extent humanly possible) press coverage of the George Zimmerman trial and so had not realized that Dr. Vincent Di Maio, the chairman of the Texas Forensic Science Commission, was a key witness for the defense among the dueling experts presenting evidence at trial, contradicting many of the findings of  Flordia medical examiners testifying for the state. Find below the jump an excerpt from the Business Insider identifying key elements of Di Maio's testimony:

Medical examiner issues dominate early criminal justice bills sent to Perry's desk

Not too many criminal-justice related bills of significance have finally passed yet and gone to the governor but here are three senate bills that came through  the House Criminal Jurisprudence Committee then out of Calendars remarkably quickly. They've all been approved by the lower chamber and are or soon will be on their way to Rick Perry's desk for final approval or veto:

SB 336 by Rodriguez/Moody on qualifications as a medical examiner, allowing a physician certified to practice in another state and who has applied for licensure in Texas to work as a M.E. with a provisional license. I don't care that much but it reads like a post hoc justification for a hire already made.

SB 387 by Nichols/Clardy would exempt a county from participation in an otherwise mandatory collections program "if the county has a population of 50,000 or more due to the inmate population of a correctional facility within its borders." This would only effect Anderson, Cherokee, and eventually Rusk counties, according to the bill analysis. One notices inmates count when legislators want them to and not when they don't. For example, one suspects those counties don't mind disproportionate representation in the state capitol because of prisoners counted in their number.

SB 457 by Rodriguez/Márquez makes autopsy photos closed records with two exceptions, according to the bill analysis: (1) under a subpoena or authority of other law; or (2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Let's hope the Calendars Committee expedites these bills just as promptly.

All that stands between the senate bills above and becoming Texas law is the Governor's signature so anyone with a dog in one of these fights, be sure to let him know if you like 'em, love 'em, or hate 'em.

Roundup: Criminal justice bills to watch

Let's highlight several pieces of Texas legislation filed recently that piqued Grits' interest.

There's HOPE for probation reform
HB 1242 (Geren/Carter): This is permissive legislation modeled on Hawaii's award-winning HOPE Court that would allow judges to utilize short jail stints instead of revocation for technical violations. Really good bill. And with House Criminal Jurisprudence Vice Chair Stefani Carter as a joint author it has a decent chance of moving this session. For more background on the HOPE program see this, this, this, this, this, this, and this.

Sentencing Commission proposed
Rep. Senfronia Thompson has filed  HB 990 to create a sentencing commission, which was a Legislative Budget Board recommendation. The commission would analyze sentences and recommend ways to reduce disparities among jurisdictions, compare Texas practices to other states, and "devise an approach that would allow the state to balance sentencing policies with correctional resources." Grits thinks this is a fine idea as a one-time re-evaluation of state sentencing policies, but would not want to see it become a standing entity.

Reducing barriers to ex-offender employment
HB 1188 is a good piece of bipartisan legislation by Reps Senfronia Thompson and Charles Perry that would limit the liability of businesses who employ people with criminal convictions. It would still allow suits for harms caused by negligent hiring, inadequate supervision, misuse of funds or property or other traditional torts. But under the bill, "A cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense."

Punishing prosecutors for witness tampering
HB 1163 by Moody would alter witness tampering statutes to include soliciting false testimony and encouraging witnesses to withhold information or elude appearing before the court. Punishments under the bill could be pretty harsh: "a felony of the second degree if the actor is a public servant acting or purporting to act in an official capacity or an attorney representing a party to the official proceeding, except that the offense is a felony of the first degree if the official proceeding is part of the prosecution of a criminal case in which the most serious offense charged is punishable as a felony of the first degree or a capital felony." There are exceptions for defense attorneys advising clients to exercise 5th Amendment and other legal rights. The problem is, who would prosecute cases against the prosecutors? Are DA's going to indict their own employees? Somehow I doubt it.

Studying Solitary
HB 1266 by Guillen would create an "Adult and Juvenile Administrative Segregation Task Force," made up of agency folks and various community stakeholders. It would review policies, make recommendations on ways to reduce the number of people in solitary confinement, improve programming and mental health services in ad seg. I actually think there are things they could do now that wouldn't require more study: E.g., requiring ad seg prisoners to be paroled one year before their full sentence is complete so they'll be under supervision during the reentry period. (If they complete their full sentence while in ad seg, they're dumped straight from solitary confinement back onto the streets - something that happened with 1,445 inmates last year.) Still, a task force study could raise the issue's profile and set the stage for changes down the line. Better than a sharp stick in the eye.

Don't lessen medical examiner qualifications
HB 1192 by Moody would lessen qualifications for Texas medical examiners, allowing any physician certified by the Texas Medical Board (or doctors licensed in other states) to do the job instead of requiring licensure through the Board of Medical Examiners. Seems like a bad idea to me. Perhaps I'm missing something, but surely we've had enough trouble with shoddy medical examiners in Texas that it seems foolhardy to reduce their specialty qualifications.

Limiting local limits on weapons
If HB 1299 by Stickland were to pass, "a municipality may not adopt or enforce an ordinance or other regulation relating to the private ownership, keeping, carrying, transportation, licensing, or registration of an electric stun gun, a knife, or a personal defense spray." Under the bill, they could still prevent folks from carrying those items past entrances to government buildings with metal detectors installed.

'Zero tolerance' for retaliation vs. inmate grievances
HB 968 by Sylvester Turner would require the Texas Department of Criminal Justice to "implement and enforce a zero-tolerance policy for failure to protect inmates from retaliation for filing a grievance" and begin annual reporting of grievance data, charging the agency with "identifying patterns of commonly recurring problems and making recommendations in regard to addressing those recurring problems."

Restorative justice pilot
HB 937 by Farias would establish a restorative justice pilot for juvenile offenders in San Antonio.

Innocence bills, redux
Finally, a pair of innocence-related bills that were filed in the Senate have also been filed in the House: Rep. Terry Canales has filed HB 1096 requiring police to record custoidial interrogations related to certain serious offenses. Sen. Rodney Ellis is carrying the bill in the upper chamber. And Rep. Sylvester Turner has filed the habeas corpus reform bill that Criminal Justice Committee Chairman John Whtimire filed in the Senate. The bill number is HB 967. (See Texas Tribune coverage of the recording interrogations and habeas reform bills.)

Tarrant defense lawyer seeks more info on drylabbing serologist

Not everybody in Tarrant County is pleased with the no-harm-no-foul outcome of the drylabbing episode at the Tarrant County medical examiner, the Fort Worth Star-Telegram reported ("Attorney seeks release of documents on serologist who falsified reports," Oct. 23). The article opened:

A prominent Fort Worth criminal defense attorney is seeking additional information on a county serologist, who was disciplined by the state's top forensic board for professional misconduct but was not prosecuted.

The serologist, who resigned in March after a supervisor discovered that he had fabricated test results for two unopened rape kits, may have "committed a crime" in the lab of the medical examiner's office, attorney Mark Daniel said.

He "knowingly falsified forensic laboratory results," Daniel said, and could be subject to a third-degree felony, such as making a false entry in a government record.

Tarrant County District Attorney Joe Shannon's office said it hasn't pursued an indictment because no one has asked it to.

"No defense attorney nor anyone else has presented a proposed criminal case to this office," spokeswoman Melody McDonald said. "If that is done, we will be happy to take a look."

The Tarrant County medical examiner's office reported the incident to the Texas Forensic Science Commission after the false reports were discovered. The serologist was immediately suspended and soon resigned.

It was later discovered that results of several rape kits had been falsified without testing. Such misconduct is called "drylabbing."

As this was described at the Forensic Science Commission this was basically a case of laziness. The labworker sometimes didn't test rape kits, for example, when the offense report didn't include penetration, drawing conclusions without performing examinations or testing. OTOH, while it's another example of corroboration inflation as it regards the victim account, one wouldn't necessarily see those sort of shortcuts as a practice likely to suborn a false conviction. But you never know, I suppose, until somebody takes a closer look.

Read more here: http://www.star-telegram.com/2012/10/23/4358517/attorney-seeks-release-of-documents.html#storylink=cpy

See recent, related Grits posts:

• No charges for lab worker drylabbing in Tarrant
• Does Tarrant ME deserve praise following FSC 'professional misconduct' finding?

Texas crime-lab capacity expanding slower than demand

Grits noticed a couple of recent stories I'll pass along about expanding crime lab capacity in South Texas. See:

• At the Bexar County Medical Examiner, via the SA Express News: "Help on way for crowded crime lab, ME's office," Oct. 15, and
• A new DPS facility in Laredo, as reported in the Laredo Sun: "Ground breaking ceremony for new crime lab," Oct. 7

Bexar County Commissioners in their latest budget approved "a $3.5 million renovation at the three-story medical examiner's office and criminal laboratory." Part of that is to expand space for much needed additional ME staff, reported the Express-News. "A dozen investigators who are licensed peace officers inhabit the first floor, where they each work about 1,100 cases a year. White lab coats hang in cubicles, decorated with yellow 'CRIME SCENE' scarves and mouse pads, where investigators receive calls alerting them to deaths. 'They are swamped,” Frost said. “We need more investigators, and the capital improvements will extend their offices.'” They're expanding the evidence vault and creating more space for autopsies and corpses, as well as adding room for growth in crime lab staff. That said, a bigger building may make room for additional analysts but that's a far cry from budgeting for their salaries. So the Bexar expansion won't expand capacity, per se, except for capacity to manage backlogs, unless county commissioners also approve hiring additional analysts and crime-scene investigators.

Meanwhile, in Laredo, reported the Sun, DPS's:

new Laredo crime lab will be 17,143 square feet. Completion is projected to be in September 2013. Initial staffing level is to be 10 lab employees with room to increase to 15 employees.

Services offered in the Laredo lab will be controlled substance analysis, firearms/tool mark examinations and serology/DNA analysis, all provided at no cost to law enforcement agencies.

Law enforcement officers served by the Laredo crime lab will no longer have to submit evidence for these services to existing labs located 100-150 miles from Laredo.

Congressman Henry Cuellar will also announce the secured funding of $250,000 federal dollars to be used for the new extended DPS Crime lab in equipment, as allocated by Webb County Sheriff Martin Cuellar.

In aggregate, the state recently lost some crime lab capacity when the fee for service lab run by Sam Houston State in Montgomery shut down this summer because of an issue with its lease. DPS crime labs in particular face backlogs so large they've begun to limit testing submissions, and overall capacity doesn't appear to be expanding nearly as fast as demand.

Does Tarrant ME deserve praise following FSC 'professional misconduct' finding?

The Fort Worth Star-Telegram today has a story on drylabbing at the Tarrant County Medical Examiners office and recent findings of professional misconduct by the Forensic Science Commission, which Grits reported last week. The FSC had commended the Tarrant ME for self reporting, however:

Critics, including some of the nation's forensic scientists, say "not so fast."  

"They are going to do a commendation to the lab for doing its job -- for doing the bare minimum?" said Amy Driver, a forensic scientist in Washington, D.C., who hosts a blog on the forensic science community.

A deeper examination is needed because the findings call into question the serologist's previous work, they said.

When someone has done something "grossly dishonest,'' said Maine forensic scientist Thomas L. Bohan, "you have to really suspect everything that person has done."

How can crime lab officials be assured that other problems don't exist?, they asked.

"If I was put in prison based on a test that guy had done and if I was the attorney who represented someone based on the DNA test, I'd be hammering down the door of the courthouse to get my appeal in,'' said Driver, who is a firearms examiner and an expert on crime-scene reconstruction."That's outrageous."

An investigative panel of the commission announced at the meeting Friday that the lab doesn't need to do further testing.

Grits can see both sides of the question: On one hand, labs are in a damned if you do, damned if you don't situation. You want agencies to self report when something goes wrong and it would be unfortunate if doing so means the good actors are punished more than those who conceal problems. OTOH, the FSC's fulsome praise of the Tarrant ME may stem to some degree from deference on the panel to their former chair, Dr. Nizam Peerwani. I too, during the discussion on Friday, felt that the ME was being praised too much merely "for doing its job." After all, labs have a self-interest in self-reporting, because a) it's required by law and b) managers will get into much more trouble after the fact if they don't. So yes, Dr. Peerwani acted quickly to suspend the employee and review his old cases, but isn't that what he's supposed to do?

In the big picture, it's part of the culture of law enforcement organizations (LEOs) that any time they're found to have engaged in misconduct, critics and the media are expected to frame their analyses to highlight everyone's good intentions. Otherwise, LEOs just become defensive and clam up (or sometimes counterattack). You see this repeatedly when police departments or District Attorneys are criticized, but the same dynamic goes on with crime labs at the FSC. The commission's reports tend not to soft-pedal the details of alleged negligence or misconduct in the cases before them, but they often go out of their way to praise agency managers for just "doing their job."

Maybe that's the most politically effective tactic: One catches more flies with honey, after all, than with vinegar. But especially when doing that with regards to an agency run by one of the commissioners, as in this instance, there's a potential for the appearance of whitewashing. It's certainly a fine line to walk.

Read more here: http://www.star-telegram.com/2012/07/30/4139295/state-panel-commends-tarrant-crime.html#storylink=c

No charges for lab worker drylabbing in Tarrant

The Tarrant County District Attorney will not impanel a grand jury to evaluate the actions of a lab worker in the medical examiners office who allegedly reported negative test results from at least five rape kits without having ever opened most of the evidence, the Forensic Science Commission was told yesterday by their general counsel Lynn Robitalle. (For whatever reason, I've not seen any press coverage of this episode besides a couple of mentions on this blog.)

The lab worker had failed to perform tests on five rape kits where the offense report said no penetration had occurred, simply reporting falsely that the tests came up negative without actually doing them. Dr. Sarah Kerrigan said she'd closely examined the reports themselves for any ambiguity, but the analyst had clearly listed all the unopened items of evidence specifically as having been tested.

There was some confusion as to whether the lab worker was allowed to resign instead of being fired for cause, but in any event, there apparently will be no legal consequences beyond termination of employment. The FSC found that this "drylabbing" episode amounted to "professional misconduct," though the finding brings with it no substantive punishment.

This type of fraud cannot be caught through regular "tech reviews," the commission was told, and as a result the Tarrant ME will begin doing periodic audits of case work in addition to tech reviews.

FSC members praised the Tarrant Medical Examiner's Office - which is run by Dr. Nizam Peerwani, a commission member who was not present at the meeting - both for diligently vetting the lab worker's old cases and for self-reporting the violation when it was discovered. But it's also notable that the commission didn't interview the employee in question because the Tarrant ME wouldn't give them his contact information. Robitaille said the former employee had told the Tarrant ME he didn't remember the cases in question. FSC Chair Vincent DiMaio said it may have been just as well, noting that 'Anyone with any intelligence would not talk to you," anyway.

Bad forensic science can come back to haunt you

Coupla Austin forensics stories caught my eye and may interest Grits readers:

First, a fired crime-lab scientist has sued Austin Police Chief Art Acevedo for defamation; see the Austin Statesman for details. Truth is a defense for libel, so this civil suit could result in a sterner vetting, even, than the Forensic Science Commission will provide regarding whether allegations of drylabbing are legit.

Meanwhile, here's an example of how one bad forensic scientist can come back to haunt counties for years: District Judge Jon Wisser has recommended that the Court of Criminal Appeals overturn another conviction because former medical examiner Dr. Robert Bayardo overstated and biased testimony to favor the prosecution. His unscientific zeal has led to more than one false conviction; the most recent one before this (to my knowledge) was Michael Morton. This time, the defendant, Cathy Henderson, was convicted in an infamous local child-abduction/death case that I remember well. She said the child died from a fall and panicked, burying it and running. Bayardo testified decisively that the injuries could only have come from a concerted blow. It was one of those super high-profile cases that was in the newspaper every day, involved movie-worthy drama, and there was an extraordinary amount of pressure on police, the DA and apparently the medical examiner to both convict and max out the sentence. Bayardo has now changed his opinion to conform to the defense experts, and without Bayardo's linchpin testimony, Judge Wisser found "no reasonable juror would convict her and he recommended that the Court of Criminal Appeals dismiss her conviction and return the case to Travis County to face whatever charges prosecutors may choose to pursue." Now this hairball has been barfed up into DA Rosemary Lehmberg's lap, and I suppose could end up back with another jury: Thanks Dr. Bayardo.

Hannah Overton prosecutor on the dock

I wouldn't do justice to the recounting, so interested readers should see coverage by Texas Monthly's Pam Colloff, from John MacCormack at the San Antonio Express News, and Michelle Villareal at the Corpus Christi Caller Times of day three of an extraordinary evidentiary hearing in Hannah Overton's habeas corpus writ. Suffice it to summarize, once Overton's attorneys interrogated the prosecution team on the stand, prosecutorial misconduct allegations are back on the table, even though the Nueces DA's office had successfully chipped away at the allegation the day before. For convenience, here's Colloff's complete coverage of the evidentiary hearing for Overton's habeas writ so far:

• Hannah Overton Hearing: Day One
• Hannah Overton Hearing: Day Two
• Hannah Overton Hearing: Day Three
• Hannah Overton Hearing: Day Four (added 4/27)

At the Caller Times, Villareal is liveblogging today's events at the hearing.

Of course, this development only reinforces Grits' sense that the Governor should pardon Hannah Overton if her habeas petition fails.

Governor should pardon Hannah Overton if habeas petition fails

Pam Colloff at Texas Monthly's Daily Post blog is providing blow by blows of Hannah Overton's habeas hearing evaluating allegedly flawed forensic science, as ordered by the Texas Court of Criminal Appeals. Here's what she's posted so far:

• Hannah Overton Hearing: Day One
• Hannah Overton Hearing: Day Two
• Hannah Overton Hearing: Day Three (added 4/26) 
• Hannah Overton Hearing: Day Four (added 4/27)

Attorney John Raley, who led Michael Morton's defense team, represents Overton, who was convicted of poisoning her 4-year old son with salt based on reportedly shoddy forensics. The San Antonio Express News, however, reports that defense claims that prosecutors withheld evidence in the case fell apart on the hearing's second day. Wrote reporter John MacCormack, whose writing first highlighted the case, "After two days of presenting evidence, Overton's lawyers appear to have made little headway in their quest to prove that her 2007 trial was unfair or that prosecutors cheated."

Whether the defense had access to contrary forensics or not, Grits still is troubled by some of the reported testimony indicating that at a minimum, forensic flaws were minimized if not intentionally concealed. A prosecution witness, Dr. Edward Cortes, testified that "“I told [then-assistant D.A. Sandra Eastwood], I said ‘I hope you’re going to come forward with some other charge other than capital murder ‘cause I don’t think this was capital murder. I don’t think there was intentionally,’" reports Colloff. Instead of changing the charges, though, the prosecution simply didn't call the witness.

MacCormack writes the wind was taken out of the sails of Overton's defense team when it was revealed Dr. Cortes was actually an uncalled witness on the defense witness list, which raises the question of whether the defense failed to adequately prepare. (It's possible, one supposes, courts could afford Overton relief based on ineffective assistance of counsel as opposed to "actual innocence.") But even if the defense could have interviewed Cortes (they did not), more concerning to me is that prosecutors heard that advice from a medical expert but ignored it, downplayed it, and plowed right ahead.

Overton's case demonstrates, as Judge Cathy Cochran wrote in the order granting this evidentiary hearing, how the "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." The stakes, as Judge Cochran put it, are high: "public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence," and that's seemingly not what happened here. Bottom line: Can habeas corpus rectify false convictions based on flawed forensics, or have recent court decisions and legislative interventions so restrained the Great Writ that it can no longer perform that function?

Experts seem to agree the forensics weren't legit in hindsight, but when matters of science are decided in the jury box, emotion can too often overwhelm expertise and non-scientist judges are frequently poorly positioned to perform a meaningful gatekeeper function. But when errors happen, one expects institutional actors to exercise their discretion to prevent injustice. To that end, the Express-News called on prosecutors to capitulate in a strong editorial this week which opined:

Nueces County District Attorney Mark Skurka should do the right thing and acknowledge that the sensational prosecution of Hannah Overton for the death of her son was a miscarriage of justice.

Instead, his office is wrongly fighting the exoneration of a woman who is innocent of any crime and is likely the victim of prosecutorial misconduct.

In 2007, a jury in Corpus Christi found Overton guilty of capital murder for forcing her 4-year-old foster son to ingest a lethal amount of salt.

She is serving a mandatory sentence of life without parole.

But as San Antonio Express-News staff writer John MacCormack has reported, the case against Overton — which was prosecuted by one of Skurka's predecessors — was deeply flawed.

His immediate predecessor, Anna Jimenez, who was a member of the Overton prosecution team, acknowledges that the conviction was “an injustice.”

If Overton's habeas petition does not prevail, Governor Rick Perry should pardon her.

MORE (4/26): From the Corpus Christi Caller Times, "Former Nueces County District Attorney: Lead Overton prosecutor had unethical tactics."  According to the Caller Times, "Former Nueces County District Attorney Anna Jimenez testified Wednesday that she thought Sandra Eastwood, the lead prosecutor in Hannah Overton’s case, resorted to unethical behavior during the 2007 trial." The former DA and prosecutor partnered on this case and their relationship has a complicated backstory:

Gerry Goldstein, one of Overton’s attorneys, showed Jimenez a section of a medical examiner’s report with supplemental information from the Police Department. According to the report, an officer was given a sample of Andrew’s vomit from an urgent care center.

Also in the report were photos of stomach content samples at the medical examiner’s office, where the contents were laid out and labeled.

Jimenez said the first time she saw the photos was about a week ago when Cynthia Orr, one of Overton’s lawyers, showed them to her.

Jimenez said the defense attorneys asked for the vomit several times, but Eastwood told her that it did not exist.

“She is not truthful,” Jimenez said of Eastwood.

She said there were several times that Eastwood violated court orders, wasted the court’s time with delays and wanted the jury to feel sympathetic toward her.

Prosecutor Bill Ainsworth argued that Jimenez has no solid proof that Eastwood withheld evidence from the defense.

Jimenez testified that she told Eastwood that Overton should not have been convicted of capital murder.

Jimenez, who assisted Eastwood in the prosecution of Overton, later served as district attorney and lost the election for the position in 2010. Jimenez fired Eastwood that year on unrelated issues.

See also from the Caller-Times, "Witnesses in Hannah Overton's hearing: Flaws in case."

Reaping what you sow at the body farm

I don't know what if anything it says about us, but there are five "body farms" in the United States where scientists perform real-world studies on how corpses decay, and two of them are in Texas, at Sam Houston State and Texas State Universities. AP has a story about the body farm in San Marcos (TSU), which has been studying the relation between vultures and decomposition, including findings that could have implications in possible innocence cases.

“If you say someone did it and you say it was at least a year, could it have been two weeks instead?” said Michelle Hamilton, an assistant professor at the school’s forensic anthropology research facility. “It has larger implications than what we thought initially.”

The vulture study, conducted on 26 acres near the Texas campus, stemmed from previous studies that used dead pigs, which decompose much like humans. Scientists set up a motion-sensing camera that captured the vultures jumping up and down on the woman’s body, breaking some of her ribs, which investigators could also misinterpret as trauma suffered during a beating.

Grits first heard about Texas' body farms last year from an SHSU prof who was excited by the work, and indeed, in its macabre fashion, this is important, cutting edge stuff, applying the scientific method to subjects about which medical examiners have given expert opinions for years with little hard data to support definitive conclusions. Fascinating stuff.