The challenge of notifying defendants in large-scale forensic-error cases

The Annie Dookhan case in Massachusetts is an even bigger mess than was the Jonathan Salvador debacle in Texas. If you don't remember Ms. Dookhan, she was the ultimate cop-in-a-lab-coat, to use Sandra Guerra Thompson's phrase. Dookhan worked on many more cases than Salvador and her malfeasance allegedly involved explicitly manufacturing evidence and falsifying documents for the purposes of framing people.

By contrast, Jonathan Salvador apparently copied results from old MDMA evidence because he wasn't technically competent to process the pills and feared his supervisors might fire him for not understanding the basic chemistry underlying his job five years in. So the instances of faked results were less widespread, less malicious in intent, and less likely to occur in cases where the true results were exculpatory.

Nonetheless, when one reads the Boston Globe saying, "It's time to clean up Annie Dookhan's drug lab mess," some of those same criticisms apply to Texas' handling of L'Affaire de Salvador. That article opened:

Imagine, for a moment, you are one of the thousands of defendants whose cases were sullied by Annie Dookhan’s drug-lab skulduggery.

Shouldn’t someone let you know?

But who? Should it be the prosecutors who made cases using evidence her actions tainted? Or, less plausibly, the overburdened defense attorneys whose clients were harmed by her?

Incredibly, more than four years after Dookhan’s crimes were first uncovered, this simple question of justice remains unresolved. Thousands of those whose lives were affected haven’t been notified of their rights, including the possibility of a new trial. Many still have no idea they are Dookhan defendants.

That's true in Texas, too. Most prosecutors did eventually send notices to either last known addresses of defendants or to defense attorneys. But defense attorneys who were appointed to take a case won't see some potential post-conviction claim as falling within their obligations. And, except for defendants still in prison, there's little certainty and much doubt regarding whether most defendants were actually notified. In fact, most folks are pretty sure that many were not.

That's important because the Texas Court of Criminal Appeals has said defendants in the Salvador case are entitled to relief if evidence in their cases had been destroyed and could not be retested. Best estimates given to the Forensic Science Commission were that that was the situation in between a quarter and half of the nearly 5,000 cases Salvador worked on in a DPS crime lab in Houston. But we've not seen remotely that many writs coming through the CCA. Grits thinks that's largely because of breakdowns in the notification process, with a secondary cause of defendants who were notified having no resources for an attorney. (In most cases, there's no right to counsel for habeas corpus writs.)

So, while prosecutors have done more in Texas than in Massachusetts, by no means does Texas have this figured out. Unlike in Massachusetts, Texas courts and prosecutors have granted that notification in these cases is necessary. But nobody has yet figured out how to perform that function effectively.

Similar issues inevitably will arise in the hair microscopy and DNA mixture reviews: How do you effectively notify defendants beyond a pro forma, sure-to-be-returned letter to the last known address? Perhaps there are big data solutions to finding folks, or other methods which haven't been tried yet. But notification never received is hardly superior to no notification at all.

See prior Grits coverage of the Jonathan Salvador case:

• Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years
• Jonathan Salvador fallout: Two cases bookend range of options
• Should Texas create a statewide public defender for forensic writs?
• Salvaging Salvador: Part Two
• Salvaging Salvador: CCA reverses course in Salvador mess
• 'White paper' suggests systemic reforms to react to mass forensic errors
• CCA considers volte-face in DPS crime lab fiasco
• Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or questions of law
• TXCCA will overturn Salvador cases no matter what other evidence exists
• Nuther overturned case based on Jonathon Salvador crime lab fiasco
• Texas praised for response to DPS-Houston crime lab scandal, compared to Yankees
• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports

Packed agenda at TX forensic commission Friday

What a packed agenda at the Texas Forensic Science Commission on Friday in Austin! Take a look, there's a lot happening. Here's a non-comprehensive taste of the issues they'll cover:

• Two new lab disclosures and five new complaints
• Discuss crime-lab accreditation program (shifted from DPS to FSC this session)
• Discuss status of forensic licensure requirement (must be implemented by 2019)
• Updates from two investigative panels on toolmark cases
• Update from investigative panel on digital forensics
• Update from bite-mark panel
• Update from hair microscopy panel
• Update from DNA mixture panel
• Update on arson case review and implementation of recommendations
• Update on status of Morton/Brady training for forensic scientists

And more ... It's going to be a long day.

Meanwhile, on Thursday (tomorrow), an FSC committee on DNA mixtures will reprise the agenda for which they could not obtain a quorum in Dallas two weeks ago.

FSC General Counsel Lynn Garcia may be the busiest mother of a two-year old I know.

Grits has complained for years that a lot of important stuff happens at the FSC and almost nobody in the media covers it. At the last FSC meeting there were two reporters there (Michael Hall from Texas Monthly and Brandi Grissom from the Dallas News), which is a lot for these events. And a third, the Texas Tribune's Terri Langford, showed up at the DNA-mixture meeting in Dallas. So given the extensive agenda and the unusual level of recent press interest in forensics, Grits will put the over-under on how many reporters will be there Friday at 2.5. Which is good, usually it's zero. There's a lot going on at this small agency for their activities to be as routinely ignored as they have been these last few years.

Resources on Texas and federal hair microscopy reviews

Today I compiled these resources for a colleague on Texas and federal reviews of flawed forensics in hair microscopy cases and thought there may be other Grits readers who're interested:

• Texas Hair Microscopy Review- Forensic Science Commission
• FBI/DOJ Microscopic Hair Comparison Analysis Review
• NACDL's The Champion, "The Microscopic Hair Comparison Analysis Review Project: A Milestone in the Quest for Forensic Science Reform"
• Sept. 2014 letter from DOJ to then-Attorney General Greg Abbott notifying him that Texas cases were included in the review.
• DOJ, Office of Inspector General, "An assessment of the 1996 Department of Justice Task Force Review for the FBI Laboratory."

There's also a good discussion of the limitations of microscopic hair analysis with useful footnotes in this fat but useful reference book, which sits on a shelf above me but is also available online. And the problems with hair microscopy share themes with other non-scientific comparative forensic disciplines critiqued in Chapter 5 of this 2009 National Academies of Science treatise; here's a link directly to the subset of that discussion on hair analysis.

Judge skirts DWI bust, new guidelines for certifying juveniles, what crime really pays, and other stories

Busy day today but here are several items that merit Grits readers attention, even if I don't have time to fully adumbrate them. 

DA does favor for appellate judge on way out door
Hidalgo DA Rene Guerra is on his way out the door (following 32 years in office and a primary defeat this spring) so there's probably little that can be done in response to his abuse of discretion declining DWI charges against 13th Court of Appeals Justice Nora Longoria. It turned out, though he said no video recorded at the stop, that was a falsehood and the contents were damning. See coverage from Texas Monthly and ValleyCentral.com.

CCA: Judges must better explain reasons for certifying juvies as adults
The Texas Court of Criminal Appeals today established stricter criteria for certifying juveniles to be tried as adults, requiring that judges better articulate their reasons for such decisions. See the majority opinion and coverage from the Houston Chronicle. Earlier, the paper reported that this was "the first certification overturned in Texas in a quarter century." That's an amazing statistic! "'It's potentially a really big deal, because there's not a lot of appellate guidance on this issue,' state District Judge Michael Schneider noted." The boy's attorney "hopes the landmark ruling spurs lawmakers to make changes to the practice of certifying certain juvenile offenders as adults, a process criminal justice advocates say has been reduced to a 'rubber stamp.'"

Reflection follows tragedy in death of mentally ill Midlander
A mentally ill man was shot and killed in Midland after he threatened police officers with a machete when they visited his home for a "welfare check." They'd first tried and failed to take him down with bean-bag rounds. The Midland Reporter-Telegram followed up with a story titled "Mentally ill often end up in criminal justice system" that merits Grits readers' attention.

Update on feds' hair and fiber review
See a letter from the USDOJ to Attorney General Greg Abbott from September regarding the review of flawed hair and fiber analyses by the FBI crime lab, which were used in some 20,000 cases. Most of these are from the '90s and earlier before DNA analysis supplanted these now dated and discredited techniques and the overstated conclusions drawn from them. Even more hair and fiber analyses were performed at the state level by crime lab analysts the FBI trained. The Texas Forensic Science Commission has launched its own, similar review which is only just beginning to pick up steam. Before long, perhaps we'll see Texas' new junk science writ used to overturn convictions which were principally based on hair and fiber analysis.

Crime does pay, but wages are crappy
A new study finds that street-level drug dealers make about half the minimum wage and that the disparity between front-line workers and management in drug organizations is greater than at US corporations.

FBI accused of dragging feet on hair and fiber review; Texas plugging along

As the Forensic Science Commission this week in Fort Worth discussed Texas' nascent review of convictions involving possibly erroneous hair-and-fiber testimony, the FBI drew fire for dragging its heels on similar reviews at the national level, especially in death penalty cases, allowing three inmates including one in Texas to be executed without coming forward to say testimony in their cases was flawed. See the recent 146-page report (pdf) from a DoJ Inspector General at the center of the recent controversy.

New Scientist mentioned that New York and North Carolina have also launched state-level reviews and that, "of the 10 per cent of cases reviewed so far, the 'vast majority' contained errors. As a result, 136 defendants, including two on death row, will receive letters informing them of their right to DNA testing as a means of proving their innocence. This is in addition to 23 letters that went out last year, including to 14 people on death row." The magazine reminds us that:

hair analysis is just one of many forensic disciplines that hinge on using a microscope to visually compare two samples and declare a match. Ballistics, fibre analysis, tyre and shoeprint comparison and tool and bite-mark analysis all take a similar approach. All came under heavy criticism in a landmark report on the state of forensic science published in 2009.

"This review is likely to have an effect on any discipline where they didn't have a statistical reference to estimate the chances of another person being a match," [national Innocence Project cofounder Peter] Neufeld says. He believes it could even filter across to disciplines with a more robust statistical basis such as fingerprinting, but which have been exposed as flawed in recent years.

Roundup: Expensive jails, paid-for pols, broken grand juries, and flawed forensics

Here are a few odds and ends that haven't made it into full, individual posts since my return from Mexico City but which still deserve Grits readers attention:

This week in Cow Town: Hair microscopy and other forensic conundrums
The Forensic Science Commission will hold meetings of its hair and fiber microscopy panel (2 p.m.) and the Complaint Screening Committee (4:30 p.m.) in Fort Worth this afternoon, with its main, full committee meeting tomorrow morning. Go here for the agendas and a livestream of each event.

Contract jail scheme failed to turn profit because of high jailer pay
El Paso county commissioners say they have the most expensive jail in the state because of high jailers salaries that start at $37K and rise to $60K after eleven years, which is certainly the highest I've heard of in Texas. The county takes in $10-11 million per year in revenue for federal prisoners they house but can't turn a profit (I know Grits readers are surprised) because of high overhead costs.

John Wiley Price: Federal defendant
So much to say ... so little of it fit for polite company. In Dallas, county commissioner John Wiley Price has been arrested on federal corruption charges and hauled away in irons. He has been "indicted on 11 bribery- and conspiracy-related charges that allege that he took things of value to influence his vote on business matters," reported Texas Lawyer. Price for years acted as a self-appointed czar of the Dallas County Jail as well as the county bail bond board, so there's a particular irony in his present situation. I don't know much about the specifics of the feds' case against Price beyond published newspaper reports, but it'd be hard for any allegation to surprise me. The feds and Price have been dancing around the issue for years, so I'd be surprised if the US Attorney failed to come loaded for bear. If this fiasco ends with Price rising from the political grave, vampire-like - or worse, Messiah-like, stronger than before - it will balkanize and poison Dallas politics for years. So if they've got him, I hope it's dead to rights.

'Is the grand jury system broken?'

At Texas Monthly, Dan Solomon followed up on Lisa Falkenberg's reporting about grand jury misconduct with a short essay titled, "Is the grand jury system broken?" Good question. IMO the answer is, "There's no way to tell." Last session, state Rep. Bryan Hughes filed an unsuccessful bill to require recording of witness testimony in addition to suspects. That'd be a start, and even better would be for those proceedings to be recorded and turned over to the defense prior to trial, just like Brady material. At a minimum, the information should become public after conviction, like other materials in police and prosecutors' possession that becomes public under Sec. 552.108 of the Government Code when a conviction is final.

Rising law enforcement costs in Montgomery County
The Sheriff's office accounted for the bulk of a recent budget increase in Montgomery County.

Make death-in-custody reports more easily available
I wish the Attorney General would link copies of death in custody reports to the names on their macro list published on their website. It's all public record and doing so would make them a lot easier to use without wasting everyone's time with pointless bureaucracy. According to the list, there have 1,736 deaths in custody at TDCJ between 2005 and so far in 2014.

Consensus on privacy of cell-phone location records?
I agree we are approaching a national consensus that cell-phone location records should be private, but unlike this author I'm not sure all the evidence so far blows that direction. If the Texas and California Legislatures pass warrant requirements, it would be hard for SCOTUS to deny there's a significant national trend. The array of less populous states whose legislatures have so far acted may not yet count as a consensus, particularly when federal circuit courts are split on the question and mine in particular (the 5th) is on the wrong side of history.

A big advocate for bail reform
Times have changed when New Jersey Gov. and presidential hopeful Chris Christie feels politically comfortable getting out in front of bail reform. He wants to give judges discretion to deny bail based on dangerousness and to have most release decisions governed by risk assessments instead of the ability to pay a bondsman.

Should Texas create a statewide public defender for forensic writs?

Texas should consider creating a statewide public defender office to handle habeas corpus writs related to flawed forensics, an adviser to Gov. Rick Perry told the Court of Criminal Appeals' Criminal Justice Integrity Unit Thursday afternoon.

Judge Barbara Hervey convened the meeting to discuss "Notification in the wake of an 'irregularity' in a criminal case," a reference to forensic snafus like the Jonathan Salvador fiasco and the ongoing hair and fiber review by the Forensic Science Commission. Out of those situations, the question arises, how should affected parties be notified of large-scale forensic errors and who should represent defendants in the habeas corpus process? (See Grits coverage of a "white paper" on the topic from the integrity unit and the Forensic Science Commission published last year.)

It's impossible to rely on defendants' original attorneys, most participants agreed, particularly in older cases and where lawyers represented them on an appointed basis, often for just a few hundred dollars. And even if you're able to find defendants and notify them, without representation that won't get their cases re-opened.

At present, these decisions are made on a completely ad hoc basis. In the Jonathan Salvador situation, which involved cases in more than 30 counties, judges in some jurisdictions appointed habeas counsel in every affected case while, in others, it's unclear if defendants were even notified and for most, counsel was never appointed.

Regular readers know Grits considers this one of the most vexing issues facing the criminal justice system. In the wake of the 2009 National Academy of Sciences report calling into question the scientific basis for many traditional forensic disciplines, it's clear this issue isn't just a one-off related to Jonathan Salvador, arson cases or hair-and-fiber cases but is something that will come up again and again over the next decade or two. But Texas and other states, and for that matter the feds, don't have systems in place to deal with correcting errors in old cases, Judge Hervey told the packed courtroom today.

This is uncharted territory and nobody has a clear idea how to handle such situations or what mechanisms should be created to process such cases en masse. In the Salvador case, potentially hundreds or even thousands of cases were processed based on analyses by a discredited lab analyst, but the evidence is now unavailable to be retested. The Court of Criminal Appeals has ruled that Salvador's work should be presumed invalid, but said the presumption could be rebutted by new testing or additional evidence. But outside of Harris and Galveston counties, few such cases are going forward and there's no standardized process for how to deal with them.

Integrity unit member Mary Ann Wiley from the governor's office surprised many in the room by suggesting that the state should consider creating a public defender office to handle such writs modeled on the successful Office of Capital Writs that handles habeas corpus in indigent death-penalty cases. That would solve a ton of problems, centralizing the process and guaranteeing someone takes responsibility for notifying defendants and filing habeas corpus writs where appropriate.

Indeed, there's an argument that a public defender for writs is needed for cases beyond just forensic issues. Bob Wicoff of the Harris County Public Defender Office pointed out the need for writ representation to challenge convictions based on the recently-deemed-unconstitutional online solicitation of a minor statute. And Judge Hervey pointed out that there could be Brady issues where large-scale notice and representation may be needed.

Few criminal defense lawyers have experience with habeas corpus processes and the Court of Criminal Appeals is all but overwhelmed with the volume of writs they receive, mostly from pro se (self-represented) prisoners, often hand-written and inexpertly crafted. Professionalizing that process would be a boon on many fronts. It may be politically impractical to provide a public defender for all habeas writs, but for situations affecting multiple defendants, whether over forensic issues, Brady violations, or other large-scale "irregularities," or it makes a lot of sense.

Today's meeting was one of the most productive, probative sessions of the CCA's integrity unit I've attended, which is nearly all of them. Judge Hervey got a good group together and led a meaningful discussion that could result in real change down the line. Texas is way ahead of other states on this topic, as far as I can tell, and this meeting offered some meaty suggestions for the Legislature to consider when it convenes again in 2015.

Texas' review of faulty hair and fiber forensics underway

Jordan Smith at the Austin Chronicle has a brief story (Jan. 13) on the review of potentially faulty forensics in older cases using hair microscopy before the advent of DNA, a topic addressed at last week's quarterly Texas Forensic Science Commission. It opens:

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing. ...

Twenty labs across the state do hair analysis, FSC general counsel Lynn Robitaille Garcia told the commissioners, including 12 Department of Public Safety labs and eight additional public labs (generally county or police department crime labs). The labs are currently in the process of going back and "identifying hair cases" to submit for possible review, she said. So far, four labs – including the Southwestern Institute of Forensic Sciences in Dallas and the Bexar County lab – have supplied lists of cases, she said, totaling "a few dozen" where "positive association" was made between a defendant and crime scene evidence. Garcia said a database review of appeal court decisions that mention hair analysis yielded a list of some 85 cases. Those cases will be sorted by jurisdiction and supplied to county prosecutors and to participating labs to help them cull through relevant records.

My colleague Nick Vilbas from the Innocence Project of Texas told the FSC that, so far, they've identified 20-25 names out of those 85 cases who've contacted IPOT in the past requesting help to prove their innocence, and they haven't finished vetting the list. Without exculpatory DNA evidence, there was little IPOT could do for those folks in the past. But between the FSC review and Texas' new junk science writ that became law September 1st, the landscape has changed. So there's a decent chance this undertaking may result in viable innocence claims and future exonerations, though right now the process remains in the early stages.

Between changes to the habeas corpus statute, the new focus on hair-and-fiber analysis and the ongoing arson review, Texas has lept to the forefront nationally among states confronting junk science that may have resulted in wrongful convictions. Not many years ago, it would have been hard to envision the day when one could say that with a straight face, but there it is.

See related Grits posts:

• Federal hair microscopy review should be replicated at the state level
• Texas should conduct review of hair and fiber forensics comparable to feds
• Hair and fiber review needn't center on death penalty debate
• Faulty hair forensics used to convict executed defendant
• Hair analysis technique that was 'judicially accepted for decades' called 'highly unreliable' 
•  'White paper' suggests systemic reforms to respond to mass forensic errors

'White paper' suggests systemic reforms to respond to mass forensic errrors

How should the criminal justice system respond when forensic errors or malfeasance occur on a large scale, affecting hundreds or even thousands of cases? Texas courts, prosecutors, defense counsel and crime labs already are struggling with these questions, and it appears the Texas Legislature may need to take up the issue when they re-convene in 2015.

Late afternoon the day before Thanksgiving (Nov. 27), the Texas Forensic Science Commission and the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit issued a little-noticed joint "white paper" (pdf) based on a stakeholder "roundtable" held earlier this year. (In the interest of full disclosure, your correspondent participated in that roundtable on behalf of the Innocence Project of Texas.) Suggestions in the white paper could have big implications for the justice system when large-scale forensic SNAFUs arise like the DPS-Houston crime lab fiasco where lab worker Jonathan Salvador was caught drylabbing evidence, casting doubt on a large number of convictions where he'd performed testing.

Between the Salvador mess, the discrediting of dog-scent lineups and hair-and-fiber analyses, and scientific debunking of now-outdated arson indicators used to secure convictions for decades, in recent years Texas and indeed the entire, national criminal-justice system has had to come to grips with the fact that many past criminal convictions have been secured using what's now known to be junk science. The Texas Legislature passed a landmark statute in 2013 allowing habeas corpus relief in such cases, creating a vehicle for revisiting convictions based on bad science and overturning them if the conviction couldn't have been obtained without the faulty forensic testimony. But there are still no processes in place for identifying those old cases, notifying affected defendants, or creating a vehicle to ensure that meritorious cases actually get a chance to seek relief in the courts. Those are the issues about which this white paper offers some first, tentative suggestions, though there's still a long way to go to turn the ideas into a workable blueprint, much less a functioning, effective system.

First things first, the paper confronts the issue of how to give effective notice of such errors to defendants in a way that would allow them to seek relief where appropriate. In the Jonathan Salvador case, in particular, "because so many different counties were affected, it was extremely challenging to determine whether affected defendants have received notification consistently, or whether notice varies from county to county depending upon local resources and other factors. It is also difficult to assess the extent to which prosecutors themselves understand the nature and scope of the forensic misconduct and potential ramifications." For example, despite advice to the contrary from the state prosecutors' association, the Fort Bend County District Attorney balked at notifying defendants whose cases were implicated in the Salvador SNAFU until finally cratering under media pressure.

The white paper praised the Texas District and County Attorney Association for advocating on their website that prosecutors provide notice, but recognized "that TDCAA cannot force its membership to check its blog regularly or to follow its recommendations." Instead, participants in the roundtable "emphasized the importance of notice redundancy," noting that "making several layers of contact with various affected parties is critical."

The paper also suggested that the lab identifying "nonconformance" should hold a "technical briefing" where stakeholders may ask questions ... so they may understand the scope of the problem accurately." But depending on the circumstances, the agency where the problems originated may or may not be the best source for a thorough, honest technical briefing. Grits would suggest that, at a minimum, representatives from the Forensic Science Commission should participate in such presentations so  labs won't gloss over important details in ways that minimize their own culpability. In the Salvador case, the DPS officials IMO behaved with great integrity and that wouldn't have been necessary. In other instances - as with dog-scent lineups performed by the Fort Bend County Sheriff's Office - the agency promoting faulty forensics wouldn't have been nearly so forthcoming. And for hair and fiber analyses, there is no single agency implicated but an entire forensic field that's been called into question. I'm not sure how the white-paper briefing model would work in that sort of scenario.

The white paper suggests the Forensic Science Commission should be responsible for notifying individual District Attorneys offices with affected cases, as well as notifying leadership at the Texas Criminal Defense Lawyers Association, the Texas Center for the Judiciary, the prosecutorial assistance unit at the Texas Attorney General, and regional presiding judges via the Office of Court Administration. (Right now the FSC has no statutory duty to perform those tasks but there's also nothing stopping them from doing so, resources permitting.) The paper also suggests the FSC "should consider establishing a centralized Internet-based repository accessible to everyone in the state with basic information on pending forensic complaints and disclosures, including a FAQ section and other guidance.

All that, however, doesn't ensure defendants whose cases may be affected will be notified. The paper points out that "prosecutors have an obligation to make a good faith effort to contact defendants. However, they cannot track individuals beyond their last known address." That's definitely an issue, but Grits would suggest a few possible avenues for followup. For starters, when the address in prosecutors' files are outdated, the US Postal Service may have change-of-address information if anybody bothered to check. For that matter, commercial list brokers often have more and better updated information on addresses even than the post office, as any political consultant or professional marketer would tell you. For large-scale notification projects like the ones being discussed, following up with those sources would be well worth the cost, given the stakes involved.

As for the content of such notifications, "prosecutors should provide a resource for defendants to inquire about any re-testing or potential writ process. This prevents prosecutors from being placed in the impossible position of advising defendants who contact their office with inquiries." That suggestion doesn't go as far as the advice from TDCAA regarding the Salvador scandal. They suggested that, for any defendant with viable habeas claims, prosecutors should "request that the court appoint an attorney to take the case through a writ process." TDCAA's advice represents a stronger, more pro-active approach than suggested in the white paper. Telling them to ask the courts to appoint an attorney to me makes more sense than vaguely telling DAs to "provide a resource."

Which brings us to the question: Once defendants are notified, what happens then? For indigent defendants who originally had appointed counsel, the lawyer assigned to them on the front end has no continuing duty to assist them in filing habeas corpus writs after the fact, particularly if they're not being paid for it. (Plus, habeas corpus writs a relatively specialized field and most attorneys taking appointed cases wouldn't be competent to handle them.) It's at this stage in the process that legislative action would be required to implement the course of action outlined in the white paper, as well as rule changes by the state bar:

The majority of stakeholders felt the Commission on Indigent Defense should be responsible for these cases by appointing attorneys on a temporary basis to address the claims. The Commission on Indigent Defense should work with the State Bar, TCDLA and Texas law schools to obtain effective and targeted representation where possible. The attorney group would be appointed only for the purposes of dealing with the forensic nonconformance at issue and would be disbanded when the cases have made their way through the appeals process. Absent a statewide solution, local counties should consider creating “consortiums” with their neighboring counties so that attorneys capable of handling appeals and writs may represent defendants in these cases across multiple counties. The Commission on Indigent Defense could in turn fund the local consortiums. Form pleadings should be created and distributed to help attorneys represent clients efficiently in these cases.

If laws need to be changed to permit the Commission on Indigent Defense to fulfill this role, they should be changed during the next legislative session. The Governor’s office and/or the Attorney General’s office should be consulted regarding access to emergency funds for these cases.

Finally, the State Bar should consider developing guidelines for professional responsibility in cases where a defense attorney who no longer represents a defendant receives notice from the prosecutor. Some further action should be taken by the attorney so the notice does not fall through the cracks.

At the roundtable, "Stakeholders felt the Commission on Indigent Defense (in partnership with the State Bar) is the best organization to handle this. ... Absent their assistance, stakeholders will continue to rely on TCDLA, the Innocence Project of Texas and a county-by-county approach," which is "inefficient and creates unequal results depending on what county a person lives in." If a statewide solution through the TIDC cannot be crafted, counties should "make the effort to appoint one or two competent and experienced appellate attorneys depending on the volume to handle all affected cases through the writ process." In addition, "The State could consider amending the post-conviction writ rules to make these types of cases more streamlined for all parties," though the white paper offered no specific suggestions in that regard.

This white paper made a good first stab at thinking through the problems surrounding how to respond large-scale forensic SNAFUs, but clearly there's much to be resolved and some of the suggestions would require legislative action and possibly clarification of prosecutor and defense attorney responsibilities through the State Bar. Some issues may crystallize to some extent when the Court of Criminal Appeals hands down its ruling in Ex Parte Coty, which is the key case parsing issues surrounding the Jonathan Salvador scandal (see Grits' coverage of oral arguments). But as yet, Texas is clearly on the front end of figuring out how to respond to large-scale problems with forensic science, even if in many respects we're far ahead of other states on the topic.

Still, I'm glad to see state leaders thinking about these subjects in terms of systems and processes instead of slogging through it all on a case by case basis, which is how the courts typically handle such matters. That approach makes a lot more sense and, once systems are in place, will prevent a lot of headaches down the line as scientific advances continue to call into question forensic disciplines that are turning out to be less reliable than most everyone thought in years past.

Hair and fiber review needn't center on death-penalty debate

It would be a shame if culture war debates over the death penalty were to overshadow an important inquiry by the Texas Forensic Science Commission into possible false convictions based on erroneous testimony by forensic analysts regarding hair and fiber comparisons. Yamil Berard at the Fort Worth Star-Telegram on Sunday offered up a story on the Forensic Science Commission's review of hair and fiber evidence (see here) for possible innocence cases, citing the case of a man executed in 2000 based solely on hair-comparison testimony. The article opened:

Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

The commission hopes that labs will self-report examples of miscroscopic hair analysis and dig up old reports, transcripts and testimony.

See a 2010 story from Dave Mann at the Texas Observer for more background on the Jones case. According to Mann, "His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones."

Long-time readers will recall how the commission's focus on the Todd Willingham case caused the Governor to intervene to stop the commission's review of old arson convictions. Rick Perry appointed since-ousted Williamson County District Attorney John Bradley to chair the FSC. Bradley immediately halted the arson inquiry, claiming it amounted to an end-run by death-penalty abolitionists. The episode delayed and nearly ended the arson review, which only resumed in earnest after the Texas Senate refused to confirm Bradley's appointment.

Really, though, the commission's inquiry into flawed arson science wasn't death-penalty specific and neither is the review of faulty hair analysis. Grits becomes frustrated that the media and some advocates prefer to frame every criminal justice issue in terms of the death penalty when the vast majority of convictions based on flawed forensics aren't capital cases. Mr. Jones' case may have been a travesty, but nothing the FSC does now will benefit him. The focus should be on boosting the integrity of the justice system in all cases, not rehashing tired culture war memes that distract from goals they can actually accomplish.

Read more here: http://www.star-telegram.com/2013/08/11/5071996/forensic-science-commission-to.html#storylink=cpy

Federal hair microscopy review should be replicated at state level

At last week's Texas Forensic Science Commission Roundtable (an event co-sponsored by the Court of Criminal Appeals' Criminal Justice Integrity Unit), presenter Norman Reimer from the National Association of Criminal Defense Lawyers offered a preliminary discussion of a project publicly announced today - a joint review between the US Justice Department, the national Innocence Project out of New York, and the NACDL of cases where potentially flawed microscopic hair analysis may have been introduced as evidence and produced false convictions. According to Reimer, out of 310 DNA exonerations nationally, 72 of them (23%) included faulty microscopic hair analysis, often layered on top of other flawed evidence as corroboration. I'd not seen that figure, but it's repeated in the press release below. That would make hair microscopy perhaps the most significant source of forensic science error in DNA exoneration cases. You can imagine that, layered on top of a mistaken eyewitness, such forensic corroboration could be very powerful testimony.

Unfortunately, this partnership will only review cases prosecuted in the federal system. However, there are many technicians at the state and local levels, most if not all of whom were taught by the same trainers as the FBI, said Reimer - whose cases won't be included in the federal review. Indeed, so far the working group doesn't even have a list of state and local technicians who the FBI trained on microscopic hair analysis. Once those names are available - and please, somebody involved in that project let's make that happen! - then states can begin conducting their own reviews of flawed testimony in state-level criminal cases, which are likely far more numerous and may have continued to be used in cases beyond the year 2000 when DOJ abandoned the technique in favor of DNA analysis.

Perhaps the Forensic Science Commission needs a formal complaint to stick its nose into this business, though arguably the bill that just passed expanding their jurisdiction (SB 1238 by Hinojosa) would allow them to investigate of their own accord after September 1st. Either way, the federal review won't get to cases in state district court and the FSC seems uniquely positioned to launch a parallel review of hair microscopy in state-level cases.

MORE: From the Washington Post, "the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases." AND MORE: From the Wall Street Journal.

Find the full text of a press release announcing the federal review below the jump:

Texas should conduct review of hair and fiber forensics comparable to feds

Excellent news for those concerned with the lack of rigor in certain forensic science disciplines, this time hair and fiber analysis. The Washington Post reported last week ("Justice Department, FBI to review use of forensic evidence in thousands of cases," July 10) that:

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said.

The review comes after media reports alleging that the agencies had known of flawed hair and fiber analyses and covered it up. Here's a little more detail

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

It also is unclear whether the review will focus only on exaggerated testimony by FBI examiners or also on scientifically unfounded statements made by others trained by the FBI, or made by prosecutors. Also unclear is at what point government officials will notify defense attorneys or the Innocence Project.

In past reviews, the department kept results secret and gave findings only to prosecutors, who then determined whether to turn them over to the defense.

To my knowledge the FBI has only done this one other time, and then they didn't do it very well, and certainly not quickly: When actual science demonstrated that FBI experts had been falsely claiming for years that they could differentiate bullets by their lead content (e.g., "this bullet came from the same batch at the factory as the ones found in the possession of the defendant"), they had to retract the testimony and systematically identified every case in which it'd been used, leading to several cases being overturned.

But lead-content testimony was relatively uncommon: The number of times it was used at trial ran to less than 200. Hair and fiber analyses have been much more common for much longer and done at labs across the country, not just at the FBI. Will other crime labs now begin similar reviews? There's no requirement they do so, and really no process for it.

Texas, to its credit, in some ways pioneered the concept that old cases need to be comprehensively reviewed when forensic errors are found. The watershed moment perhaps was Dallas DA Craig Watkins partnering with my employers at the Innocence Project of Texas (IPOT) to review old DNA cases and recommend which ones deserved testing, a process that led to numerous high-profile exonerations and landed Watkins a feature on 60 Minutes and other national acclaim.

Similarly, the Forensic Science Commission and State Fire Marshall have partnered with IPOT to review  arson cases of people currently incarcerated in TDCJ for errors that may have led to false convictions. And after incompetent drug analysts were discovered in El Paso and at a DPS lab in Houston, the agencies systematically notified defense counsel. After the incident in Houston, the DA's Association recommended that "For any case with a bad retest, or cases with now-destroyed evidence, [prosecutors should] request that the court appoint an attorney to take the case through a writ process if appropriate."

Still, though, that's happening only on an ad hoc basis. Fort Bend Sheriff's Deputy Keith Pikett for years used highly suspect techniques in "scent lineups" which Texas courts have now disavowed. Even so, Pikett claimed to have performed scent lineups with his dogs in more than 2,000 cases and testified in court many times, but there's been no official review - by the Fort Bend Sheriff, the Texas Attorney General, the Forensic Science Commission (outside their jurisdiction), or anyone else.

In this case, analysts from Texas crime labs including at DPS testified for years about hair and fiber evidence in similarly overstated ways as the FBI, recently reining in the language they use in court and relying more where possible on much more accurate DNA evidence. Pretty much everybody agrees such overstated analyses were both problematic and used for a long time. But there's no state-level review of hair-and-fiber testimony in past cases comparable to what's happening at the FBI, neither here in Texas nor to my knowledge in other states, even though it's obvious the same issues extend far beyond FBI analysts.

Grits has long insisted there needs to be a mechanism - arguably at the Forensic Science Commission, with expanded jurisdiction - for reviewing old cases when the science behind long-used forensics are called into question or debunked. We're starting to do that when new forensic errors arise, but for the most part haven't addressed the lingering old ones like flawed or overstated hair and fiber testimony. It's time to start.

See prior, related Grits posts:

• Texas needs process to vet cases based on forensic hokum
• What is state duty to inform defendants of flawed forensics in old cases? 
• What is the duty to notify defendants of past crime lab errors?
  
• Forensic commission urges review of old arson cases based on junk science
• The politics of reexamining flawed arson foresics 
• If arson science in Willingham case was 'flawed,' what about other, similar cases?
• How best to vet old arson innocence claims?
• Faulty hair forensics used to convict executed defendant
• Hair analysis technique that was 'judicially accepted for decades' called 'highly unreliable' 

Forensic technique that was 'judicially accepted for decades' called 'highly unreliable'

Having recently examined advice being given to judges on how to interpret the science or lack thereof behind ballistics evidence, I thought I'd continue in that vein with a discussion of "microscopic hair analysis" from the same source (see the online version here, beginning on p. 112). Both analyses are drawn from the third edition of the "Reference Manual on Scientific Evidence," produced by the Federal Judicial Center and the National Research Council of the National Academies of Science. While microscopic hair evidence has been "judicially accepted for decades," says the manual, you can add it to the list as "another forensic identification discipline that is being reappraised today."

The 2009 NRC-NAS report contained an assessment of hair analysis, says the manual, "observing that there are neither 'scientifically accepted [population] frequency' statistics for various hair characteristics nor 'uniform standards on the number of features which must agree before an examiner may declare a 'match'" The report concluded that "testimony linking microscopic hair analysis with particular defendants is highly unreliable," recommending DNA testing of the evidence where practical.

Hair analysis is better at excluding suspects than individuating them: E.g., they could tell if someone had blonde with straight hair vs. curly hair from an African American, whether hair had been dyed, etc.. But even the best estimates of the technique's accuracy say the possibility of a false match is 1 in 4,500 for scalp hair and 1 in 800 for pubic hair. Other proficiency studies, have found much higher "false positive" rates - sometimes above 12%. Even more damning, an examination of the first 137 DNA exonerations found that 38% included invalid hair comparison testimony, with most of the cases involving "invalid individualizing claims."

In the courtroom, prior to the US Supreme Court's Daubert opinion in 1993, "an overwhelming majority of courts accepted expert testimony that hair samples are microscopically indistinguishable." However, 1990 decision in North Carolina held it an error to admit testimony that"it would be improbable that these hairs would have originated from another individual." The court held that such testimony amounted "effectively to positive identification of the defendant."

The first, significant post-Daubert challenge to such evidence came in Williamson v. Reynolds out of Oklahoma in 1995, where a district court was "unsuccessful in its attempt to locate any indication that expert hair comparison testimony meets any of the requirements of Daubert." Before retrial, that particular defendant was exonerated by exculpatory DNA evidence.

The section of the manual on microscopic hair analysis concludes:

Post-Daubert, many cases have continued to admit testimony about microscopic hair analysis. In 1999, one state court judicially noticed the reliability of hair evidence, implicitly finding this evidence to be not only admissible but also based on a technique of indisputable validity. In contrast, a Missouri court reasoned that, "without the benefit of population frequency data, an expert overreached in opining to "a reasonable degree of certainty that the unidentified hairs were in fact from" the defendant. The NRC report commented that there appears to be growing judicial support for the view that "testimony linking microscopic hair analysis with particular defendants is highly unreliable.

RELATED: Go here to read the manual online or purchase a hardcopy. See also: Judges cautioned against reliance on overstated ballistics testimony.