Rodney Balko: A massive mess of forensics

[Winehole23]

A Massive Mess of Forensics (http://www.huffingtonpost.com/radley-balko/a-massive-mess-of-forensi_b_2365141.html?utm_hp_ref=the-agitator)




The FBI's crime lab was at one point reputed to be one of the most elite, well-run labs in the world. Not so much anymore. For the last year, the agency has been embroiled in a huge and growing scandal in which its crime lab technicians have been found to have vastly overstated the value and conclusiveness of forensic evidence in criminal cases. The breadth and seriousness of the problem have only come to light in the last year or so, although there have been warning signs going back to the 1990s. The number of convictions affected is in the thousands, possibly the tens of thousands.


But as the Washington Post reported last week (http://www.washingtonpost.com/local/crime/review-of-fbi-forensics-does-not-extend-to-federally-trained-state-local-examiners/2012/12/22/b7ef9c2e-4965-11e2-ad54-580638ede391_print.html), that may only be the beginning.

In July, the Justice Department announced a nationwide review of all cases handled by the FBI Laboratory's hair and fibers unit before 2000 -- at least 21,000 cases -- to determine whether improper lab reports or testimony might have contributed to wrongful convictions.

But about three dozen FBI agents trained 600 to 1,000 state and local examiners to apply the same standards that have proved problematic.

None of the local cases is included in the federal review. As a result, legal experts say, although the federal inquiry is laudable, the number of flawed cases at the state and local levels could be even higher, and those are going uncorrected.

It would be difficult to overstate just how catastrophic this is. It's a scandal that strikes at the very heart of our democratic system of government, and it isn't getting nearly the attention it deserves. We're talking about one of the most basic functions of government -- the administration of justice. And we're talking about nationwide systemic failures in the way the government has been presenting scientific evidence in the courtroom going back 40 years, over tens of thousands of cases, all with the approval of the courts in which that evidence was presented.


Worse yet, the Justice Department had to be dragged kicking and screaming into conducting even the federal review. From the Washington Post (http://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_print.html), last April:


Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled. Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.


In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.


As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.


Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.


As I wrote at the time (http://www.theagitator.com/2012/04/17/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/):


I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law... But even beyond the problematic ethical requirements, I'm having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements -- to, you know, actually reach out to defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn't reaching the people who have an incentive to actually put it to use, (b) you're one of the few people who could make that happen, and (c) because the information was only available to a select group of people, if you or one of your colleagues doesn't act, no one else will?


http://www.huffingtonpost.com/radley-balko/a-massive-mess-of-forensi_b_2365141.html?utm_hp_ref=the-agitator

[Winehole23]

http://www.8newsnow.com/story/18886948/2012/06/26/nhp-troopers-sue-department-over-k-9-program

[Winehole23]

Red light camera ticket recipients in Tacoma, Washington are being told they need to buy $30 meals and $114 hotel rooms for employees of an Australian company if they want to exercise their rights under the Sixth Amendment. Motorist Kevin Schmadeka had gone to the courthouse to gather information to use to defend himself found out he was supposed to pay a total of $670 in travel expenses for an employee of Redflex Traffic Systems if he wanted to confront the witnesses against him.

"When I was at the clerk's office inquiring about chain-of-custody information, the employee at the counter mentioned that if I wanted to subpoena a camera company representative that there was a fee," Schmadeka told TheNewspaper. "Later on I thought about that some more and made another inquiry by phone, also requesting documentation about how such a charge was authorized. The clerk I spoke to at that time had no explanations to offer, but did send me the request form."

Redflex had mailed Schmadeka a ticket accusing him of running a red light at the corner of Pacific Avenue and 72nd Street in Tacoma on September 19. According to the form provided by the court (see source link below), the money must be provided in the form of a check payable to Redflex Traffic Systems, Inc. and mailed to the Australian firm's office in Phoenix, Arizona. The accused must also sign a statement accepting the charges.

"I acknowledge that the costs associated with subpoenaing the photo technicians are my responsibility and if payment is not received in 15 days -- NO technician will be subpoenaed for your court date," the court-provided notice states.http://www.thenewspaper.com/news/39/3968.asp

[Wild Cobra]

http://www.thenewspaper.com/news/39/3968.asp
He doesn't need to pay. He presents his case in court. If the opposing side isn't present, he wins. Right?

[spursncowboys]

Wow...Just wow

[boutons_deux]

http://www.huffingtonpost.com/radley-balko/a-massive-mess-of-forensi_b_2365141.html?utm_hp_ref=the-agitator

100s, probably 1000s, if not 10,000s (there are 3M+ in US jails. America is World Champion Jailer) falsely imprisoned.

Let me guess: nobody responsible for 10Ks of bogus forensics will go to jail, or be fined, or even be held accountable or lose a job.

[Winehole23]

Thousands of drug cases may be overturned because DPS lab worker allegedly faked results



Grits has already expressed amazement that a scandal involving a fired DPS crime lab worker who allegedly fabricated test results - and who performed controlled substances testing in nearly 5,000 drug cases - has received so little press attention, suggesting that the episode may result in the courts overturning hundreds of cases with sentences collectively totaling more than 10,000 years (http://gritsforbreakfast.blogspot.com/2013/03/dps-crime-lab-snafu-may-overturn.html). As it turns out, I may have underestimated the scope of this fiasco.


The Texas Court of Criminal Appeals recently began overturning old convictions based on this episode, starting with instances where evidence was destroyed post-conviction, making retesting impossible. The general counsel at the Texas Forensic Science Commission has estimated that evidence was destroyed in 25-50% of cases where Jonathan Salvador performed testing. In several cases, however, e.g., one styled Ex Parte Patrick Lynn Hobbs (http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=23849), the high court ruled that, "While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the lab technician in question. This Court believes his actions are not reliable; therefore custody was compromised, resulting in a due process violation. Applicant is therefore entitled to relief." In other words, it may not matter whether evidence is available for retesting or not.

If the court continues to apply that standard then virtually every case in which Mr. Salvador performed testing - some 4,944 cases in all from 36 counties - will be overturned because the evidence was tainted just by being in his custody! Truly, this is a mind boggling development, rivaling a similar episode in Massachusetts (http://www.boston.com/news/local/massachusetts/2012/12/20/indicted-drug-analyst-annie-dookhan-mails-reveal-her-close-personal-ties-prosecutors/A37GaatHLKfW1kphDjxLXJ/story.html) which has received much more publicity (http://www.npr.org/2012/09/20/161502085/state-crime-lab-scandal-rocks-massachusetts). The average sentence of defendants among the first 12 writs approved was eight years. If that average holds, nearly 40,000 years worth of drug sentences may eventually be overturned. Can you even imagine? How is it that Grits is the only media outlet covering this?

I'd earlier suggested (http://gritsforbreakfast.blogspot.com/2013/03/dps-crime-lab-snafu-may-overturn.html) that enough inmates could be released from Texas prisons as a result of this unmitigated mess to allow the state to close an additional prison unit. But if the Court of Criminal Appeals handles all of Salvador's cases like they did Mr. Hobbs', the state might be able to close three or four of them. Stay tuned. This astonishing debacle has only just begun to play out.http://gritsforbreakfast.blogspot.com/2013/03/thousands-of-drug-cases-may-be.html?spref=fb

[RandomGuy]

http://www.thenewspaper.com/news/39/3968.asp


Photo ticketing firms have been facing increased pressure since the 2009 US Supreme Court ruling in the case Melendez-Diaz v. Massachusetts (view decision), which dealt with laboratory analysis of drug evidence. A defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that such questioning of the evidence be allowed.

Tacoma sought to avoid the inconvenience by forcing defendants to pay for the cost of confronting the witnesses against them. Schmadeka added this to a long list of constitutional concerns he brought before a judge.

"If the city considers it too expensive and burdensome to fly a camera company representative to Washington every time a defendant wishes to cross-examine them, the city should consider this obligation when making their decision to outsource local law enforcement duties to privately-owned, for-profit out-of-state companies," Schmadeka said.

The judge singled out the Sixth Amendment issue and dismissed the charges against Schmadeka.

[RandomGuy]

He doesn't need to pay. He presents his case in court. If the opposing side isn't present, he wins. Right?


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Yes, essentially.

IF the state wants to convict you are have the right to confront your accuser.

Forcing you to pay that much, when you have not been convicted, is a fairly clear violation of that right. The judge in the case concurred.

[DMC]

I have inside knowledge of this so I cannot comment...

[DMC]

Yes, essentially.

IF the state wants to convict you are have the right to confront your accuser.

Forcing you to pay that much, when you have not been convicted, is a fairly clear violation of that right. The judge in the case concurred.

I haven't read USSC case law on this if it exists, but there could be a ruling that states the "accuser" is the state, not the lab. The lab is engaged in testing a substance, knows nothing of the defendant. The lab only issues a report.

Let's say the entire process were automated at the car of the DPS officer. Would the manufacturer of the analyzer be the accuser? Of course not. There can be a 2nd tier test to validate the prior test and that can be done at a different lab. Expensive? Sure, but make the penalty stiffer and you won't have to see the same ass cracker in 2 months.

[RandomGuy]

I haven't read USSC case law on this if it exists, but there could be a ruling that states the "accuser" is the state, not the lab. The lab is engaged in testing a substance, knows nothing of the defendant. The lab only issues a report.

Let's say the entire process were automated at the car of the DPS officer. Would the manufacturer of the analyzer be the accuser? Of course not. There can be a 2nd tier test to validate the prior test and that can be done at a different lab. Expensive? Sure, but make the penalty stiffer and you won't have to see the same ass cracker in 2 months.

Not my undesrtanding at all.

From what I understand of everything I have read the interpretation of "accuser" is anyone testifying against or about you. In this case, it would be the technician.

I am, not, however, a lawyer, merely fairly bright and well read.

Probably wouldn't be too hard to research however.

[Winehole23]

http://arstechnica.com/tech-policy/2014/02/feds-seek-contractor-to-build-new-federal-license-plate-reader-database/

[boutons_deux]

At Newark Airport, the Lights Are On, and They’re Watching You

http://graphics8.nytimes.com/images/2014/02/18/business/LED/LED-articleLarge.jpg

Visitors to Terminal B at Newark Liberty International Airport may notice the bright, clean lighting that now blankets the cavernous interior, courtesy of 171 recently installed LED fixtures. But they probably will not realize that the light fixtures are the backbone of a system that is watching them.

Using an array of sensors and eight video cameras around the terminal, the light fixtures are part of a new wireless network that collects and feeds data into software that can spot long lines, recognize license plates and even identify suspicious activity, sending alerts to the appropriate staff.

The project is still in its early stages, but executives with the Port Authority of New York and New Jersey, which operates the airport, are already talking about expanding it to other terminals and buildings.

To customers like the Port Authority, the systems hold the promise of better management of security as well as energy, traffic and people. But they also raise the specter of technology racing ahead of the ability to harness it, running risks of invading privacy and mismanaging information, privacy advocates say.

His concern derived not from the technology itself but from the process of adopting it, driven by, he said, “that combination of a gee-whiz technology and an event or an opportunity that makes it affordable.” As a result, he said, there was often not enough thought given to what data would actually be useful and how to properly manage it.

At Newark Airport, the Port Authority will own and maintain the data it collects. For now, it says, no other agencies have access to it, and a law enforcement agency can obtain it only through a subpoena or written request.

What began as a way to help governments and businesses save energy by automatically turning lights on and off has become an expanding market for lights, sensors and software capable of capturing and analyzing vast amounts of data about the habits of ordinary citizens.

http://mobile.nytimes.com/2014/02/18/business/at-newark-airport-the-lights-are-on-and-theyre-watching-you.html?from=homepage

[Winehole23]

sensors and software capable of capturing and analyzing vast amounts of data about the habits of ordinary citizens. would presumably be of commercial value to someone, no?

[boutons_deux]

[FONT=arial][SIZE=3] would presumably be of commercial value to someone, no?

of course, and [B]no doubt the PANYNJ has even stricter data security defenses than does the Snowden-raped NSA.

[RandomGuy]

He doesn't need to pay. He presents his case in court. If the opposing side isn't present, he wins. Right?

Opposing side can be "present" by a simple affadavit, to my limited understanding.

[ElNono]

Opposing side can be "present" by a simple affadavit, to my limited understanding.

That would be wrong. Due process means you're supposed to be able to challenge your accuser. You can't challenge an affidavit.

[Winehole23]

follow up on the still unfolding DPS drylabbing scandal:


A pair of notable cases related to the Jonathan Salvador DPS-Houston crime-lab fallout demonstrate the range of options for how thousands of affected drug cases might go. Salvador, readers will recall, was caught and fired for engaging in "drylabbing," or recording results without having performed the underlying testing.


On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion (http://www.cca.courts.state.tx.us/OPINIONS/PDFOPINIONINFO2.ASP?OPINIONID=25592) in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine. Important case. Former DPS crime lab worker Jonathan Salvador worked on just fewer than 5,000 cases while he worked there. So, as of the Coty case, and contrary to the court's prior ruling (http://gritsforbreakfast.blogspot.com/2013/06/txcca-will-overturn-salvador-tainted.html), all those cases aren't automatically jeopardized. If evidence is available for retesting and the results confirm Salvador's findings, or if prosecutors possess other material evidence of guilt, convictions may be sustained by the CCA. At their weekly case summary (http://www.tdcaa.com/casesummaries/june-6-2014), the prosecutors' association was clearly pleased:


With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction. Back in January in this case, the court gave us a new set of rules to follow in “bad scientist” cases that backed away from a “defendant always wins” approach. Now with this decision and with the new rules put into practice, the State has a clear roadmap to save an otherwise valid conviction. Thank goodness. The prospect of the finding of an automatic due process violation would have been devastating. The State is still going to have to do some work, as evidenced by this case, but at least now there is some hope.


Ah, hope springs eternal. Meanwhile, Fox-26 in Houston this week (June 12) reported on a Conroe man soon to be freed because of the Jonathan Salvador mess. According to that short piece by Isiah Carey (http://www.myfoxhouston.com/story/25766264/false-drug-test-results-may-overturn-convicted-conroe-man-case):


It could be a matter of days before a Conroe man is free after being convicted on what prosecutors call shoddy crime lab work.


This comes two years after a Department of Public Safety crime lab employee was fired for falsifying drug test results.

Defense attorney Rick Brass says his client Diedrik Cavil was sentenced to 45 years on the evidence prepared by the now former worker.

Brass says there are at least 5000 cases affected in the two year old investigation. ...

Montgomery County prosecutors say they have about two hundred cases affected but they don't believe all of them will be dismissed like the Cavil case. [Ed note: See the CCA's May 7 opinion (http://law.justia.com/cases/texas/court-of-criminal-appeals/2014/wr-76-617-02-0.html) in that case.]

So, some convictions sustained from the Salvador debacle, some dismissed, what's the difference? What's happening here?


Partly, it's that drug evidence in Coty's case was still available in an evidence locker somewhere for re-testing. The state went through that process and the results confirmed Salvador's original findings. But that's not always the situation. The Texas Forensic Science Commission (FSC) estimated that evidence has been destroyed and is thus unavailable for retesting in a quarter to half of all cases, or approximately 1,250 to 2,500.


So you've got three categories of cases: Those where evidence exists and retesting confirmed Salvador's findings, those where evidence has been destroyed or is unavailable for retesting, and those where Salvador actually engaged in misconduct. (There's also a fourth group in some counties where no one has bothered to check or even notify the defendant about what happened and retesting may or more-likely may not occur.)http://gritsforbreakfast.blogspot.com/2014/06/jonathan-salvador-fallout-two-cases.html

[boutons_deux]

Salvador was fired, but I can't find that he's being indicted, punished?