Wednesday, July 27, 2011

What is the duty to notify defendants of past crime lab errors?

One issue where the new chairman of the Texas Forensic Science Commission, Dr. Neezam Peerwani, disagrees with his predecessor is on the duty for forensic scientists to correct past mistakes when science changes or documentable errors are made. The issue arose in the commission's report on the Todd Willingham case. After that investigation it became evident that many hundreds of old arson convictions relied on what now is all but universally acknowledged as junk science. (Many of those convictions are likely still legitimate, but there's also a significant chance of error.)

The same conundrum arises in Deputy Keith Pikett's 2,000 cases in which he presented evidence from so-called dog-scent lineups which even the Texas Court of Criminal Appeals recognizes has little evidential value. But should defendants in old cases be notified? By whom? Nobody knows. The National Academy of Sciences put the matter on the table in the grandest fashion in 2009 when it published a devastating critique of the subjectivity and unscientific nature of much of 20th Century forensic science.

The feds (and every other state) are struggling with this, too: When the FBI discovered that their supposed technique for identifying which batch from a factory a particular bullet came from was a bunch of horsesh#%, the feds contacted all the defendants in cases where the evidence was used at trial, but not where the cases resulted in plea bargains. Grits thinks they should notify every defendant and let the chips fall where they may. While there's some evidence that the proportion of innocent defendants who plea guilty is low, I suspect the number of guilty defendants who pled out who would turn around and contest their conviction would also, in practice, be low.

Past FSC Chairman John Bradley resisted the recommendation to review old cases, but Dr. Peerwani has said he thinks it's necessary and the rest of the commission so far appears to agree with him, though nobody has taken more than the first few tentative steps down that road. A profile of the new FSC chief last week by Brandi Grissom in the NY Times/Texas Tribune said that, in the Willingham case, "Dr. Peerwani agreed with other experts not only that the science was faulty but also that forensic examiners had an ethical duty to inform prosecutors of potential flaws in their work."

The same issue arises from a recent blog post about alleged problems at the Southwestern Forensics Institute in Dallas titled "Covering One's Backside - Forensics Edition," by Paul Kennedy over at The Defense Rests, which opens:
You run a crime lab forensics institute that specializes in assisting the state in gathering and analyzing evidence. On a logbook you see that a reagent used for blood testing was used for years after its expiration date. The notes indicating the expiration date aren't initialed and look like they were added after the original entries in the book. You determine that notes were written by the analyst. You speak with the analyst and ask him (or her) to initial the notes regarding the expiration date.

Voila! Job well done.

No need to request corrective action. No need to alert anyone that your lab techs were using chemicals that had passed their expiration dates. No need to inform prosecutors that there might be a problem with the analysis your lab performed. No need to inform defense attorneys that the tests might not be valid.

You draft a memo and attach it to the back of the logbook.

No e-mails to track down and preserve. No Corrective Action Requests subject to Open Records requests. No memo in a file that some pesky auditor might find.
An earlier Defense Rests post questioned whether the same lab director, Stacy McDonald, of covering up possible contamination at the lab, accusing her of a bureaucratic mentality that values form over function, "more concerned about an analyst initializing notes about expired reagents than the fact that your lab was using expired reagents while conducting forensic tests that would be used by the state at trial."

I don't know anything about Ms. McDonald and can't judge her motives, but surely the question arises: When expired reagents were used to analyze evidence for court, should the state notify defendants whose convictions were secured based on that evidence? What is the duty for post facto rectification of scientific errors? Answers to those questions will be forthcoming in the next 5-10 years or so as courts and policymakers struggle nationwide with reevaluations of forensic science, and Peerwani and the FSC could play a powerful role in shaping those answers in Texas.


ckikerintulia said...

I learned what little I know about criminal law during the Tulia fiasco and its aftermath. But it seems to me that not informing defendants of possible crime lab errors would be a Brady violation.

Prison Doc said...

I don't even know what a Brady Violation is but it seems like common law and common decency and common sense would dictate that all parties be notified.

Sandy said...

Bet those forensic 'specialists' wouldn't eat a bag of potato chips or drink a soft drink past it's expiration date. That expiration date is just a marketing ploy and means nothing about the integrity of the food product but the reagent expiration dates mentioned in this post affect lives forever.

What a travesty we've made of justice these days.

Gritsforbreakfast said...

Prison Doc, a "Brady violation" is when the state fails to hand over exculpatory evidence, from the SCOTUS case Brady v. Maryland.

Anonymous said...

I've worked at academic research labs for many years. The truth of the matter is that sometimes expiration/control dates on reagents mean something, and sometimes they don't much at all. Sometimes when a manufacturer puts an expiration date on a chemical reagent they do it because they have well documented empirical data that supports the expiration date, and sometimes they do it based upon no empirical data at all. Every guideline that I've ever read about best practices in laboratory science makes it clear that it is each laboratory's responsibility to establish its own empirical criteria for determining if a reagent is effective and useable. This is especially true because there is no reliable documentation of storage conditions for any reagent before it reaches the laboratory. And meaningful expiration dates only have meaning for a given set of storage conditions.

Anonymous said...

11:41 Anon-

Academia labs have the benefit of knowing/learning the error rates of their experiments because they're afforded repetition of experimentation, peer review, etc. Some academia labs even share reagents with each other. And most scientific literature will display the error bars in their reports.

Forensic labs don't have this freedom. They (most times) only get 1 shot at getting the correct answer (assuming that the evidence is used up during the testing). The answers are "Yes" or "No". In forensic labs, the Rules of Evidence for Experts states (something like) that the techniques used for testing must reliable and have known experimental errors of margin/error rates. (This might be a Daubert requirement...)

So unless the crime labs keep track of all their failures of their reagents (failures for passing QC, for example), then the safest and most scientifically assuring practice is to just toss the chemicals when they pass the manufacturer's recommended expiration date. The cost of new reagents is much cheaper than having to repeat years of work done with sketchy reagents.

Also, ask yourself...Can the State of Texas use sodium thiopental that is beyond its expiration date to execute someone? Nope, because the chemical might be unreliable at killing someone.

Anonymous said...

Prosecutors never notify defense counsel that medical examiners have cases that were overturned and they were shown to have committed perjury when they testified. It's up to the defense to research those like Dr. Joye Carter and Dr. Patricia Moore, previously with Harris county but both currently with other counties now.

I have learned never to accept the testimony of medical professionals testifying for the prosecution as reliable because too many begin the autopsy by embracing the theory of the police investigation then try to shape conclusions to bolster that theory instead of allowing the evidence to speak for itself as they were taught.

I realize that in many cases medical examiners rely on investigators as a part of the overall forensics involved at autopsy, but far too much weight is given in many instances where there are lingering questions which leads to false convictions.

One can only imagine the thousands of innocents who were wrongfully convicted of Shaken Baby Syndrome on the basis of some detective's hunch that formed the conclusion of the medical examiner's testimony that their conviction was based upon.

Anonymous said...

Before anyone challenges me about my previous post, here is a link to an article published in the Houston Chronicle back in 1994 confirming my comments:

Sandy said...

Anonymous 1:19 - we can't challenge your post because we don't know which one it was. That's one of the down sides to posting anonymously.

Thanks for the link, though :)

Anonymous said...

Concerning to so-called "evidence" that the proportion of innocent defendants who plea guilty is the comments on the article that you linked to...none of them are supportive of the thesis. In fact one guy writes that "Not quite ready for prime time, this one: Nearly every time I wanted to check a footnote for a source in this paper it was blank. There's an extent to which it's arguing against a unnamed, unquoted, uncited straw-man, debating an argument that they never quote anyone articulating. Few in the innocence movement would disagree that innocent people are less likely to plea guilty than guilty ones. Indeed, I know several exonerees who passed up chances at parole because they wouldn't say "I did it." But they portray the data as resolving some grand debate."

Anonymous said...

Hey Anonymous at 02:09:00 PM, that was Grits that posted the comment that you posted, go back and read the comments on the article. I agree, however, that there is a lack of footnoted sources with "proof" that only the guilty primarily plead guilty.

dfisher said...

Scott Henson, I try to get lawyers to verify the State's experts before they take the stand and never just accept that they must be qualified, because they have been testifying for years. In the case of the new Forensic Science Commission Chairman Nizam Peerwani, he is not a statutory medical examiner under the TX Code of Criminal Procedure, Art. 49.25. Peerwani is an employee of a professional association. The professional association has a contract to provide medical examiner services for Tarrant Co. Nizam Peerwani also owns the professional association. When Perry appointed Peerwani to the commission on Dec. 14, 2009, the professional association's State Charter had been revoked for 5 months, yet Peerwani continued to perform autopsies and bill in the association's name, which was illegal. The reason the Secretary of State revoked the charter of Peerwani's professional association was for defaulting on State Taxes. Under Texas Law all autopsies performed in Tarrant Co. from 1979 to current are void, or illegal as is all testimony in criminal cases where the so called ME's testified. So much for Peerwani's full disclosure. To verify this post check the Sec. of State's Corporate filings for the professional association, "Nizam Peerwani, M.D., P.A."

Gritsforbreakfast said...

Good stuff, David. I'm aware of the whole controversy over Peerwani's contract arrangement with Tarrant and the other counties he works in, but I didn't realize his corporate registration had lapsed at the time he was appointed to the FSC. That said, I'm not sure that discredits his viewpoint on scientific subjects nor speaks to the question posed in this post.

I know you've had some success in other jurisdictions going after MEs with bad credentials, etc., and I read the Fort Worth Weekly story a couple years ago about the issues you're discussing. But his autopsies aren't "void" until a court says so. Maybe they will, but not so far.

As I've written before, I don't agree with Peerwani on everything but on issues like this one he's an improvement from his predecessor. And for now on the FSC, he's who we've got. Thanks for chiming in; I know you're in the thick of it on ME matters.

The Homeless Cowboy said...

All I can say is the expiration date on milk means more to me than the expiration date on shaving cream.

Yes or No?????

Thomas R. Griffith said...

Hey Grits, now that we have this info. it makes me wonder how many current & former inmates pled No Contest to Possession of a Controlled Substance in cases where it was nothing more than frigin; sheet rock, Tide, Splenda, St. Augustine or Bermuda?

Regarding 'reagents'- After double shocking my pool to zap some algae and taking a sample to a local pool supply the next morning, I was told there's no chlorine. A

After being found guilty of not putting in enough chemicals, they recommended several product. I asked to see the reagent bottle and it was 2009. They said it was from the shelf (unsold product). We re-tested with the digital unit & the level was off the chart. Thanks.

Anonymous said...

Homeless Cowboy-

If that expired shaving cream put an innocent person in prison for 15-20 years, then that should be a concern.

If your job required you to NOT use expired shaving cream, and you disregarded that requirement, then the public should be concerned.

Anonymous said...

The Forensic Science Commission needs to step it up and start holding people names.

Or maybe the Feds need to be involved, say, by withholding grant money until Texas gets moving in the right direction (e.g. Paul Coverdell Forensic Science Improvement Grants Program).

John C. Prezas said...

This is a particularly interesting issue in light of SCOTUS' ongoing interpretation and reinterpretation of the Confrontation Clause. See my recent discussion of the Williams case here:

What happens when poor lab procedures aren't discovered because the State follows Sotomayor's concurrence in Bullcoming and has a second analyst testify based on the underlying data and the first analyst who used the tainted reagent or inappropriate procedure is never brought to court and cross examined?

phillip baker said...

Sorry to just be a cynic, but....I gave up any belief in justice or fairness in Texas law long ago. These kinds of things have been going on as long as I can remember. Nobody cares to correct it. So for someone who truly believes he is innocent of a crime, he has to hope for a good public defender, not an appointed one, enough money to hire a good atty, or plain luck. Nobody in the entire criminal justice system will look for truth. Truth, justice and the American way died with Superman. It died earlier in Texas.

dfisher said...

Gritsforbreakfest, Peerwani's professional association contract with Tarrant Co. violates both the medical examiner statute, TX Code of Criminal Procedure Art. 49.25, sections 2,3 & 4 as well as the TX Constitution Article 16. Under the statute, the medical examiner is a county appointed official who serves at the pleasure of the commissioners court and as a county appointed official, must sign the Statement of Appointment and take the Oath of Office required by Article 16. The 8th Court of Appeals held in Prieto Bail Bonds vs Texas, that failure to file the Statement of Appointment Voids all actions under the appointment. Peerwani did not file his Statement of Appointment and Oath of Office until May 5, 2009, 30 yrs. late and just two weeks before the "Dissecting The Evidence" article. This voids all Tarrant Co. autopsy reports and death certificates from 1979 to 2009. This very issue is now before the 409th District Court in El Paso. The article in the El Paso times is captioned "Lawyer files motion to disallow autopsy".

Anonymous said...

Wasn't Peerwani also appointed by the Governor? It seems that Mr. Perry consistently makes bad appointments. We all know Bradley's appointment was based on an agenda to cover up Perry's mistake in failing to review the Hurst report. Several years ago Perry appointed Jack Skeen to a vacant district judge slot in Smith County. It wouldn't have taken much checking to learn that as a DA Skeen had a reputation for using unethical and illegal tactics to get convictions. So, its no surprise that as a judge he's as unethical as they come. I suspect if one examined all of Perry's appointments we'd find a lot more like Bradley and Skeen. Yet, some think this genius should be president? I don't care whether you're a republican or democrat, conservative or liberal, integrity should matter. Perry has none.

shirley said...

are they going to retest people that are locked up that testing went through this crime lab and give names thanks shirley