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Harris County Institute of Forensic Sciences officially opens

Excellent news.

I still want one of these

The greater Houston region now has a sophisticated asset to investigate and solve crimes with the official opening of the new Harris County Institute of Forensic Sciences (HCIFS).

Harris County Judge Ed Emmett and other dignitaries, including Harris County Attorney Vince Ryan, attended a ribbon cutting ceremony at the new facility on Thursday March 16th.

The Institute is located in the Texas Medical Center and it is an impressive state of the art nine story building.

Funded by a bond that was approved by the voters back in 2007, Harris County has invested 75 million dollars in it.

The facility serves both as a crime lab and as the medical examiner’s office.

Among other tasks, its staff will perform autopsies for cases investigated by the Harris County Sheriff’s Office (HCSO) and the Houston Police Department (HPD).

Doctor Dwayne Wolf, deputy chief medical examiner at the HCIFS, explains that “about 11,000 deaths are reported to our office every year, of which we bring in 5,000 bodies for examination, either for autopsy or external examination.”

Construction of this facility was approved to begin in June of 2014, with an expected timeline of three years, so this was on schedule. I expect great things.

HPD wants control of crime scene forensics for officer-involved shootings

No.

HoustonSeal

Houston’s acting Police Chief Martha Montalvo, with the support of the powerful Houston Police Officers Union, has made a behind-closed-doors bid to take back control over the troubled Crime Scene Unit from the city’s independent forensic science lab.

The Crime Scene Unit is small but critical – its technicians gather and photograph evidence from all homicides, including incidents in which police officers use deadly force against civilians.

Montalvo’s move comes in the wake of a highly critical audit by three outside experts who concluded in July that crime scene investigators need increased independence from the Houston Police Department – not less – to objectively gather evidence in shootings involving HPD officers.

The audit focused on eight recent officer-involved shootings in 2016 and concluded that crime scene analysts had in some cases been influenced in their evidence collection decisions by statements made by other officers at the shooting scene. The audit found that analysts had failed to properly collect evidence, including bullets, photos and samples, and needed more training. The unit is currently made up of a mix of sworn officers, who are members of the police union, and civilian lab employees overseen by a civilian director.

Montalvo proposed taking back control over the unit at a private meeting earlier this summer with Nicole Casarez, a prominent criminal defense attorney who heads the advisory board of the independent crime lab, the Houston Forensic Science Center. Ray Hunt, the police union president, attended the meeting and fully supported the change. It’s on hold while lab operations undergo larger efficiency review ordered by Mayor Sylvester Turner, according to statements city officials have provided to lab board members.

“We have been in ongoing discussions with the Houston Forensic Science Center on HPD possibly taking back the Crime Scene Unit personnel, many of who are HPD officers who collect evidence,” Montalvo said Friday. “We’ve discussed some concerns on our end to help improve time efficiency on some crime scenes. It is important to note we continue to meet regularly, share dialogue on the matter and continue to have a good, positive working relationship among our agencies.”

The unit was split off from HPD two years ago when the department’s crime lab became independent – a change that at the time had the full support of former HPD Chief Charles McClelland as a way to build up public confidence in the quality of that lab, which had been involved in multiple scandals related to huge backlogs, untested rape kits and poor forensics.

McClelland, in an interview, said he did not think returning the unit to HPD was a good idea. “I don’t think it would build confidence in the public’s mind – absolutely not,” he said. “To solve the issue is to have extremely well-trained evidence technicians that are independent of HPD. … It doesn’t take an HPD officer to be an evidence technician – I think we can all agree on that.”

Casarez and other crime lab officials have said in interviews that returning the unit to HPD would likely hamper efforts to win its accreditation – and could undermine public confidence in the independence of the new lab itself, particularly in light of the recent audit.

McClelland and Casarez are correct, Montalvo and Hunt are wrong. Forensic investigations and evidence collections in general should be done by techs who are independent of law enforcement, so that no one has any reason to doubt their objectivity. This is doubly true for cases where police officers are being investigated, for the same reason why body cameras and recorded investigations benefit the police as much as they benefit the public. I hope Mayor Turner stands firm on this. Grits has more.

DNA mixtures

Grits reports on the latest developments in forensics at a hearing of the Texas Forensic Science Commission, and what it means to the legal system in Texas and elsewhere.

First, a bit of background. DNA testing looks at two metrics on X and Y axes: Whether alleles are present at various loci, and the quantity of DNA available for testing at that spot. (The latter is complicated by allele drop-in, drop-out, and stacking, terms I’m only beginning to understand.) When examining the peak height of DNA quantity on the test results, DPS’ old method did not impose a “stochastic” threshold, which as near as I can tell is akin to the mathematical sin of interpreting a poll without ensuring a random sample. (The word “stochastic” was tossed around blithely as though everyone knew what it meant.) Basically, DPS did not discard data which did not appear in sufficient quantity; their new threshold is more than triple the old one.

That new methodology could change probability ratios for quite a few other cases, the panel predicted. One expert showed slides demonstrating how four different calculation methods could generate wildly different results, to my mind calling into question how accurate any of them are if they’re all considered valid. Applying the stochastic threshold in one real-world case which he included as an example reduced the probability of a match from one in 1.40 x 109 to one in 38.6. You can see where a jury might view those numbers differently.

Not every calculation will change that much and some will change in the other direction. The application of an improper statistical method generates all types of error, not just those which benefit defendants. There may be folks who were excluded that become undetermined, or undetermined samples may become suspects when they’re recalculated. The panel seemed to doubt there were examples where a positive association would flip all the way to excluded, but acknowledged it was mathematically possible.

DPS has identified nearly 25,000 cases where they’ve analyzed DNA mixtures. Since they typically represent about half the state’s caseload, it was estimated, the total statewide may be double that when it’s all said and done. Not all of those are problematic and in some cases the evidence wasn’t used in court. But somebody has to check. Ch. 64 of the Code of Criminal Procedure grants a right to counsel for purposes of seeking a DNA test, including when, “although previously subjected to DNA testing, [the evidence] can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.” So there’s a certain inevitability about the need to recalculate those numbers.

See here for the Texas Tribune story that Grits references – WFAA also covered the hearing – and be sure to read the whole post. There’s a lot of scientific info out there if you google “DNA Mixtures”, but I’m not informed enough to point you to something useful. As noted, DNA is still very exact when comparing known samples, or in isolating a suspect from a rape kit. It’s when there are multiple unknown DNA donors that things get complicated, and there isn’t a single standard for that now. What we do know is that the method that had been used to provide match/elimination probabilities were not accurate, and some number of convictions in Texas and elsewhere will need to be reviewed in light of reinterpreted DNA evidence. Ultimately, questions about what the standards are and how the evidence should be analyzed will be settled by the courts, from the CCA to SCOTUS. This will be a long and occasionally messy process, and we’re at the very beginning of it. On the plus side, this should provide all kinds of fodder for mystery writers and TV showrunners. So at least there’s that.

Forensic Science Commission to examine bite mark evidence

Good.

The board charged with ensuring that reliable scientific evidence is used in Texas courtrooms agreed on Friday to investigate cases in which bite mark analysis was used to secure a conviction.

“We’re talking about the whole field, the validity of the field of bite marks,” said Dr. Vincent DiMaio, the chief presiding officer at the Texas Forensic Science Commission, and the former Dallas County medical examiner. “The problem justifies an investigation.”

The board voted to review bite mark cases to determine whether faulty evidence resulted in wrongful convictions after a presentation from Chris Fabricant, director of strategic litigation at the New York-based Innocence Project.

Last year, the American Academy of Forensic Sciences conducted a study of forensic odontologists and concluded that the analysis could not even accurately determine which marks were bite marks. In 2009, the National Academy of Sciences published a report that concluded there was insufficient scientific basis to conclusively match bite marks. Additionally, the Jo Handelsman, the White House Office of Science and Technology Policy, has said that bite mark evidence should be eradicated from courtrooms.

Bite mark evidence, Fabricant said, has contributed to 24 wrongful convictions nationally, including two in Texas.

“Overwhelmingly, it was the chief evidence in those cases,” he said. “Sometimes, it turned out they weren’t bite marks at all.”

[…]

The Innocence Project is urging the commission to institute a moratorium on the use of forensic odontology in criminal cases.

Dr. Nizam Peerwani, a commission member and the chief medical examiner in Tarrant County, said his agency abandoned the practice more than two decades ago. He recalled one instance in which a dentist identified a bite mark that turned out to be an injury from a crow bar.

“We have no respect, absolutely no regard for bite marks,” Peerwani said.

Grits has been on this for years. I’m a lifelong fan of crime fiction, and I know I’ve read more than a few examples of literary detectives using this technique. I’m surprised there are more cases that will need to be reviewed. Anyway, isn’t it amazing how much good work a body like the Forensic Science Commission can get done when people like John Bradley aren’t around to muck things up?

More on the new Crime Lab boss

Meet Dr. Daniel Garner, the CEO and president of the Houston Forensic Science Center.

Dr. Daniel Garner

Daniel Garner was ready to drift quietly into retirement after decades on the forefront in the field of forensic science.

The last part of his career had the 66-year-old on the go, traveling to foreign countries for the U.S. Department of Justice, helping to revamp struggling crime labs, sometimes in nations enduring political and economic hardships. Just on the short list, Garner helped build a crime lab in Kosovo from scratch, trained more than 1,000 forensic experts in Colombia in how to properly present evidence in court and helped make improvements in the Sri Lankan forensic laboratory that gained it an international accreditation.

While the work was rewarding, it was also hectic. Often he traveled in armed security details, had to undergo vaccinations and dealt with foreign authorities who searched his hotel room, suspicious of his visit to their country.

So when he gave his notice in 2012, he was ready to go.

He and his wife left Washington, D.C., for a small town on the outer banks of North Carolina. The couple started shopping for a home, preferably one near the river that would be perfect for a small pier. Garner imagined relaxing on the deck of his bobbing sailboat and taking in the local galleries during the town’s art walks.

Then, just months into his retirement, Garner was lured back to work as director of the Houston Forensic Science Center, the reincarnation of the once-beleaguered Houston Police Department crime lab.

The new lab is based on a concept that seems simple, but is revolutionary in the field: the lab will operate independently of law enforcement. If the model succeeds, Garner said, it could be a blueprint for crime labs across the country, letting labs operate with greater independence and away from the shadow of law enforcement influence.

“I know there are a lot of people watching Houston to see how this works,” he said. “It’s an extremely unique model and I wanted to be apart of it.”

Dr. Garner was hired a year ago to direct the HFSC, but as far as I know this is the first real story about his experience and background. He’s got an impressive resume, that’s for sure. I have a lot of hope for this project, so it’s good to know it’s in good hands.

Is there any valid evidence of Todd Willingham’s guilt left?

The Washington Post has a long piece examining the connection between the jailhouse snitch whose testimony helped send Cameron Todd Willingham to death row and the prosecutor who has long denied taking any action to influence that testimony.

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness was threatening to recant. (Jackson misspelled the rancher’s last name.) “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

Along with Webb’s account, the letters and documents expose a determined, years-long effort by the prosecutor to alter Webb’s conviction, speed his parole, get him clemency and move him from a tough state prison back to his hometown jail. Had such favorable treatment been revealed prior to his execution, Willingham might have had grounds to seek a new trial.

Read the whole thing, it’s well worth your time. I sadly disagree with the suggestion that this revelation will have any effect on public opinion about the death penalty. I think people have long since factored in this possibility in their thinking, and generally conclude it’s an acceptable cost. People have been making the argument about possibly executing the innocent without much traction yet. Maybe the recent ghastly news out of Arizona about horribly botched executions will help move public opinion, I don’t know. I just don’t expect this to do much on that score.

What I think this could do is spark a closer examination of how jailhouse snitches are used, much like the earlier revelations of bad investigative technique have spawned a real review of arson forensics and even a look at some other cases in which discredited methods were used to secure convictions. The cellmate to whom a defendant that is otherwise loudly proclaiming his innocence confesses fully to the crimes with which he is charged is practically a cliche, and often a too-easy convenience for overzealous prosecutors. If some kind of reform of that practice, or at least a heightened sense of skepticism when a jailhouse snitch is employed at trial, comes out of this, then at least some good will have resulted from Willingham’s needless and unjust death.

Actually, there is one more thing that can come of all this. I must have missed it in the WaPo story, but in this Chron story about Willingham’s stepmother and biggest advocate, there’s more to this than just information.

At 71, Eugenia Willingham has spent more than a third of her life trying to prove jurors were wrong when they condemned her stepson, Todd, for murdering his three young children in a deliberately set fire. Her faith in Texas justice fell as court appeals failed, then collapsed as ‑ after the 2004 execution ‑ seemingly well-crafted attempts to posthumously clear her son’s name were thwarted by the state.

Now, the Ardmore, Okla., woman’s hopes again are rising as lawyers for the New York-based Innocence Project target the prosecutor in Todd Willingham’s case in a complaint to the State Bar of Texas. The complaint alleges former Navarro County assistant District Attorney John Jackson arranged for a jailhouse informant to testify against Willingham in return of special consideration in his own case. Then he tried to keep the deal secret from the judge, jurors and the defense attorney, according to the complaint.

If the allegations are found true, Jackson, now in private practice, possibly could be disbarred.

[…]

Innocence Project Co-founder Barry Scheck said Willingham’s execution “would never have gone forward … if John Jackson had played by the rules.”

The complaint is the latest effort by Scheck’s organization to prove Willingham’s innocence.

All of the elements in the WaPo story are contained in the complaint, so do read them both. If Ken Anderson and hopefully Charles Sebesta can be held accountable for their unjust actions, I see no reason why John Jackson can’t be, too. Maybe, just maybe, they’ll serve as examples for others to learn from. Grits and PDiddie have more.

How much will science advance in the courts?

It’s up to the CCA to decide.

Texas’ highest criminal court will hear arguments Wednesday in a case that could affect how evolving scientific evidence is used in courtrooms across the state.

For Neal H. Robbins, the high court’s decision will determine whether he gets another shot at arguing his innocence.

In 1999, a jury convicted Robbins of killing his girlfriend’s 17-month-old infant. A key witness in the case was Patricia Moore, a Harris County medical examiner who ruled the child’s death was homicide by asphyxiation.

But in 2007, after a different medical examiner reviewed the original findings and disagreed, Moore recanted her trial testimony. In a letter to the district attorney, she wrote that while the infant’s death remained “suspicious,” she had come to believe that “a cause and manner of death of ‘undetermined’ is best for this case,” rather than homicide.

Robbins appealed, but in 2011, the Texas Court of Criminal Appeals, the state’s highest criminal court, denied a new trial by a vote of 5-4. In the majority opinion, Justice Larry Meyers wrote that despite her recantation, Moore’s original trial testimony had not been “proven false.”

Now, Robbins is hoping a new law passed by the Legislature in 2013 will cause the court to change course and give him another shot to prove his innocence. The law, Senate Bill 344, by Sen. John Whitmire, D-Houston, allows courts to grant post-conviction relief in cases where scientific testimony that was essential to a conviction has been contradicted. A lower court judge has recommended that Robbins be granted a new trial, but the CCA will make the final call.

Scott Henson, who was quoted in the story, adds some context.

[I]t was the CCA’s ruling in exactly this case that caused prosecutors to back off and agree to the bill’s passage. The court’s ruling in Ex Parte Robbins made clear the CCA would allow convictions based on junk science to stand if the Legislature didn’t change the law. After Robbins, the Harris County DA’s office (which had been the only significant opposition) acquiesced and helped negotiate the final language that’s now in the statute. It would be ironic if Robbins did not now prevail, since this particular case was the one that pushed the bill over the finish line at the Lege.

This is the same new statute under which the San Antonio Four and Fran and Dan Keller were released – they’re now out on bail though the CCA hasn’t given final approval in those cases yet. Those junk science cases are considered more likely to be easily approved, while the Robbins case – which involves an ME who gave erroneous testimony and changed her opinion after she learned more science – is considered the first test case that will provide an indication how the CCA will interpret the new writ.

He has more links and information in his post, so go read it. It’s clear what the CCA needs to do in this case, it’s just a matter of them doing it. I’m not sure what else the Legislature could do if they don’t do their job here. Hair Balls has more.

More evidence of Cameron Willingham’s innocence

The scientific evidence against Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three children, has long been discredited. The other piece of evidence used against him at trial was the testimony of a jailhouse informer, who said that Willingham confessed to him. Now that piece of evidence is under attack.

Cameron Todd Willingham’s stepmother and cousin, along with exoneree Michael Morton, joined the Innocence Project on Friday to call on Gov. Rick Perry to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Willingham, who was executed in 2004.

“We are forever passionately committed to the mission of clearing Cameron’s name,” said Patricia Cox, Willingham’s cousin.

[…]

The [Innocence Project] says it discovered evidence that indicated the prosecutor who tried Willingham had elicited false testimony from and lobbied for early parole for a jailhouse informant in the case.

The informant, Johnny Webb, told a Corsicana jury in 1992 that Willingham had confessed to setting the blaze that killed his three daughters. The Innocence Project also alleges that the prosecutor withheld Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Willingham.

Former Judge John H. Jackson, the Navarro County prosecutor who tried Willingham, said the Innocence Project’s claims were a “complete fabrication” and that he remained certain of Willingham’s guilt.

“I’ve not lost any sleep over it,” Jackson said.

[…]

During the trial, Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.

In a 1996 letter, Jackson told prison officials Webb’s charge should be recorded as robbery, not aggravated robbery.

But in legal documents signed by Webb in 1992, he admitted to robbing a woman at knife point and agreed to the aggravated robbery charge.

In letters to the parole division in 1996, the prosecutor’s office also urged clemency for Webb, arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.

In 2000, while he was incarcerated for another offense, Webb wrote a motion recanting his testimony, saying the prosecutor and other officials had forced him to lie.

That motion, [Barry] Scheck said, was not seen by Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Willingham’s innocence and prevent his death.

An investigation is needed, Scheck said, to improve the judicial process.

I’ve written extensively about the Willingham case. To me, the dismantling of the arson investigator’s evidence is more than enough to convince me that he did not receive a fair trial and very likely would not have been convicted – quite possibly, not even arrested – if valid investigative techniques had been used at the time. Having the non-scientific evidence called into doubt as well – surely there was a failure to disclose, at the least – makes me wonder what anyone might base a continued belief in Willingham’s guilt on. That doesn’t stop Rick Perry from keeping a closed mind about it, of course. Grits, who notes the story here, is clearly correct to say that the best chance for anything to happen with this case begins in 2015, with a new Governor. I personally think the chances are better with one candidate than with the other, but for sure there’s no chance with the current Governor. EoW has more.

Anthony Robinson named to crime lab LGC

Excellent choice.

Anthony Robinson

Anthony Robinson

The latest appointment to the city’s crime lab oversight board brings a unique perspective to the post.

Anthony Robinson spent 10 years in prison for a rape he did not commit before being exonerated by the kind of DNA testing the proposed new crime lab will perform.

“I am very sensitive to the errors made by the defense bar in the use, misuse, or failure to properly use forensics, particular when the evidence is presented (or not presented) by the state,” Robinson wrote in an email from Beijing, where he had traveled on business. “Science is objective when properly performed and utilized.”

The City Council approved his appointment by Mayor Annise Parker on Wednesday.

Parker said Robinson’s appointment to the board of Houston Forensic Science LGC Inc., the local government corporation created by the City Council last year to develop a crime lab independent of the Houston Police Department, was based on more than just his compelling personal history.

“He’s going to be an even better board member because he has skills as an attorney and his being very familiar with the criminal justice system,” she said. “And community contacts and ties, as well.”

My interview with Robinson from his campaign for District D is here. He’s an impressive person, and he will be an insightful and much-needed voice on the crime lab’s board. Well done.

Bite marks

Grits reminds us that not all forensic science is scientific.

I ran across an interesting article documenting critiques of forensic dentistry. In it, bite mark expert Dr. Gregory Golden:

concedes that there’s little scientific research to back claims from forensic odontologists in court — but he hopes to see that change. “What we’re trying to do,” he says, “is to develop proper, unbiased research techniques that take into consideration real-time mechanisms or setups for researching bite marks.”
The problem, he says, is that it’s difficult to conduct realistic studies on how bite marks injure living human flesh. In the past, studies have been conducted on cadavers and anesthetized pigs, with dental models mounted in vice grips. But such studies don’t accurately reflect bites on living human flesh, and Golden adds that “it’s almost impossible to find voluntary subjects offering themselves to be bitten severely enough to be wounded.”

In the meantime, though, he wants to keep drawing  his expert witness fees until the science either justifies or debunks his premises. While it’s understandable that few subjects would be willing to be seriously bitten in service to science, that’s not a good excuse for courts to admit unreliable evidence.

[…]

Unfortunately, as the National Academy of Sciences articulated in a 2009 report, many forensic disciplines aren’t really “science” at all and forensic odontology is one of them. Instead, like tool mark or hair-and-fiber analyses, the method of identification involves subjective comparison, not scientific proof.

Like many people, I suspect, I have gotten most of my information about criminal justice from pop culture – movies, TV shows, mystery and detective books. Needless to say, this provides a distorted view about how things really work. Part of the problem is that writers and fans love all that forensics stuff. Flashy technology, futuristic techniques, genius investigators – we eat it all up. Putting aside all the dramatic license and CSI-style distortion of timelines, excitement levels, and just plain frequency of usefulness, the fact remains that we’re no better at distinguishing the things that have solid scientific basis from those that turn out to be junk. And when we come across stuff like that in one of our favorite shows or books, it’s not like a correction gets issued later, or that we’d hear about it if one did. So people come to believe in these things, people who subsequently serve on juries. I’ve read about the problems with fingerprint analysis for years, and I still have more belief in in than doubt. It’s going to take a long time and a lot of updated information to clear things up.

Meet the new Crime Lab boss

He sounds impressive.

The fuzzy process of shifting the city of Houston’s crime lab from the Houston Police Department to an independent board got a little clearer Wednesday with the hiring of a president and CEO for the new operation.

The appointed board of the city’s year-old forensic science corporation selected Dr. Daniel Garner after a six-month search. Garner, whose hiring was announced at a press conference Wednesday, is coming off a U.S. Department of Justice effort to improve global forensics that took him to labs in 30 countries on five continents. He formerly was president of Cellmark Diagnostics Inc. and managed the forensics lab for the Bureau of Alcohol, Tobacco and Firearms.

“Dr. Garner is assessing what our needs are. There are areas in the lab that are centers of excellence. There are other areas in forensics that need some work, frankly,” said Scott Hochberg, who chairs the city forensics board. “We need to identify those and appropriate the budget to those. We’re looking forward to moving forward with creating the best municipal crime lab and regional crime lab in the country.”

Next, Hochberg said, Garner will hire three supporting managers and the board will continue figuring out how legally to make the transition from the police department.

See here and here for some background. The Houston Forensic Science Local Government Corporation has been moving in a positive direction since its creation, and this looks like another good step. I’m eager to see how they ultimately operate. In the meantime, we got a little bit more information about the long-discussed but so far not proposed possibility of the city and the county joining forces:

[Mayor Annise] Parker has said the city lab must make more progress before merger talks, and has said the county lab is not sufficiently independent of the Harris County Commissioners Court or the District Attorney’s Office.

Commissioners Court members have said they set the institute’s budget, but that it answers to its accrediting agencies, not the court. The sooner the city expresses an interest in joining, county officials have said, the better; the county is designing its new forensics tower.

“We’re in very fruitful discussions with Harris County about a joint (inmate) processing center; we are working closely on everything from Buffalo Bayou to building new libraries,” Parker said Wednesday. “I don’t think this will be any different. When we determine it makes financial and logistical sense to work together, we will do that, but I can’t give you a timeline.”

Well, at least they’re talking. Relations between the city and the county have never been better, so if this is going to happen, sometime soon would be nice.

Solving car crimes with DNA

This story is basically a commercial for Harris County’s crime lab – Did you know that since they have no testing backlog on personal crime cases they can focus on property crimes? It’s true! – but it’s still pretty cool.

But do they look this good doing it?

For the last few years, the Harris County Institute of Forensic Sciences aided area law enforcement in solving property crimes by testing evidence for “touch DNA” – microscopic skin cells containing DNA that naturally rub off when an object, like a car steering wheel, is touched. The technology can be used even if the suspect is wearing gloves because there’s a high likelihood the skin cells were transferred onto the gloves when the perpetrator was slipping them on.

“It was a pretty incredible tool for us to have to identify some of these suspects,” said Sgt. Terry Wilson, of the Harris County Sheriff’s Office auto-theft division. “These (burglary of a motor vehicle) cases are some of the hardest cases for law enforcement to solve because there’s almost never any eyewitnesses. There’s very rarely any good evidence left behind, fingerprint evidence and things like that, and once we started recovering some of this DNA, it was pretty exciting there for a while.”

DNA testing is a practice typically reserved for personal crimes like rape and murder. However, the forensic institute, formerly the medical examiner’s office, has also been performing DNA testing on evidence – containing either skin cells or bodily fluids, like blood and saliva – from property crime cases such as car break-ins and home invasions.

Since January 2008, the forensic institute made more than 3,000 matches to crime suspects in the FBI’s Combined DNA Index System database, or CODIS, a national database used to store DNA profiles. Of those, about 75 percent were for property crime cases.

I believe they call those “epithelials” on the “CSI” shows. This is a great use of the technology, especially since property crimes generally have a low solve rate. But – you knew there would be a but, right? – there’s one small problem:

[C]ounty budget cuts have suspended testing in the auto theft division for now.

Oops. Well, maybe with the budget picture improving for Harris County, they’ll be able to get this back on track soon. Try not to have your car broken into until then, OK?

Senate approves rape kit testing bill

Earlier this week I mentioned a bill, SB1636, by Sen. Wendy Davis that aimed at getting thousands of untested rape kits analyzed. I’m pleased to say that it was passed unanimously by the Senate today, and now heads to the House.

SB 1636 by state Sen. Wendy Davis, D-Fort Worth, would require a police department to submit a rape kit to a crime lab within at least 30 days of determining that a sexual assault has occurred. DNA analysis would have to be done no later than 90 days after the sexual assault was reported. After testing, the Texas Department of Public Safety would compare the DNA profile to those already in databases maintained by the state and the FBI. To the extent that funding is available, the bill also requires testing of untested rape kits in active cases since 1996.

Initially, an $11 million price tag on the rape kit bill generated concerns among lawmakers and law enforcement officials. Davis, however, changed the measure to require testing only when funding is available and ensure that no new money would be required.

Good. Some background on the bill is here, and a press release by Sen. Davis is here. I hope it will be swiftly passed by the House so the state can get to work on this important task.

Two forensic bills

Texas has thousands of untested rape kits in it, and a bill to try to make something happen with them.

The bill, by Sen. Wendy Davis, D-Fort Worth, would require a police department to submit a rape kit to a crime lab within at least 10 days, and complete the DNA analysis no later than 90 days after the sexual assault was reported. After testing, the Texas Department of Public Safety would compare the DNA profile to those already in databases maintained by the state and the FBI. To address the “backlog of evidence,” the bill requires — only to the extent that funding is available — that all untested rape kits from active cases since 1996 be tested by 2014.

According to a fiscal analysis of the bill, Houston, Dallas, and San Antonio alone have more than 22,000 untested rape kits.

[…]

DPS estimates it would cost Texas more than $11 million to outsource testing to crime labs with enough personnel to process all of the rape kits.

“It would be a tremendous unfunded mandate on our department,” Jim Jones, a sergeant with the San Antonio Police Department, told the committee. Departments don’t typically test rape kits when the suspect is known to the victim, because DNA testing only shows that a sex act occurred. It can’t determine whether the act was consensual, Jones said. If a suspect is convicted, their DNA profile will be compared to state and FBI DNA databases anyway, Jones said, leaving little reason for the department to incur the cost of testing the rape kit.

And 10 days isn’t necessarily enough time to determine whether a sexual assault actually occurred, Jones said. Submitting rape kits prematurely for testing — at about $1,000 each — would burden the state and local departments with undue costs.

Davis said she is willing to change the bill to give police more time for investigation, but the cost shouldn’t be an issue for local police departments. The bill doesn’t mandate testing, she said. It only requires testing if there are adequate financial resources and personnel. But she hopes the legislation will encourage city councils to appropriate funding to address the backlog.

The bill in question is SB1636. I don’t know how much effect this will have in the absence of an assured funding source. Frankly, the cost for this isn’t very much to potentially clear a bunch of violent crimes, but that isn’t in the cards. For reasons unclear to me, this isn’t enough of a priority to merit an appropriation.

The Senate is also pondering broadening the scope of the Forensic Science Commission.

Senate Bill 1658 by Sen. Juan “Chuy” Hinojosa would greatly expand the commission’s authority to investigate botched forensic evidence. The bill makes clear that the commission could investigate allegations of wrongdoing in any field of forensic science. (Some critics of the commission have argued that current law allows the commission to oversee only accredited crime labs. The commission is waiting for the Texas Attorney General to issue an opinion on these jurisdiction issues. The bill would clarify that dispute.)

The bill would also allow the commissioners to launch an inquiry on their own. As it stands now, the commission can investigate a case only if someone has filed a complaint. The provision, which would greatly expand the commission’s authority, drew criticism from Sen. Joan Huffman, a Houston Republican, at [Tuesday’s] hearing. She said she might oppose the bill if that provision remained. Hinojosa said he’d try to convince her over the next few days why the commission needed such power. “Good luck,” quipped Sen. John Whitmire.

Huffman wasn’t the only senator who had concerns. Houston Democrat Rodney Ellis questioned Hinojosa extensively. Ellis was suspicious of a provision that folds the commission into the Department of Public Safety. The governor’s office has tried in past sessions to house the commission within DPS—an idea Ellis and other supporters of the commission have successfully resisted. They want to maintain the commission’s independence, especially to investigate DPS crime labs.

Hinojosa assured Ellis that DPS would provide only administrative support for the commission and wouldn’t have any influence over which cases the commissioners look into—to “avoid a conflict of interest.”

This is more or less how I envisioned the Forensic Science Commission working when it was first created, and the expressed concerns aside I daresay it’s closer to what the Senate envisioned for it at the time. There’s plenty of stuff for them to look into and hopefully correct if they’re given the chance. As long as they can get a Chair that is interested in the truth and not in covering Rick Perry’s backside, I’d like to see them get it. Grits has more.

Some criminal justice quick hits

Some short commentary on a few articles that have appeared lately and were worth mentioning.

Murray Newman disputes the need for a public defender’s office in Harris County. I’m perfectly willing to accept the idea that there’s a better way to handle things, but only on the condition that some other alternative to the status quo, one that can be demonstrated to be better than what we’ve got now, is proposed. Newman doesn’t suggest an alternative, nor does he address the matter of the severe backlog in the criminal courts, which results in people spending a year or more in jail just to get their day in court, so I can’t say I’m persuaded by his argument. But read it and see what you think.

Grits has a thoughtful piece about the nature of the opposition to the Beyler report on Cameron Todd Willingham. I agree with basically everything he says, and I’ll add this: If people like Rick Perry and that Corsicana DA are not willing to admit the possibility of a mistake here, then the argument that our justice system is capable of correcting its mistakes is meaningless. I’m perfectly willing to accept the idea of capital punishment, but only in the context of a system that is extremely vigilant about getting it right, and you can’t get it right if you don’t admit when you’re wrong. The more that Perry and his ilk wage their baseless battle against the Forensics Commission and the Beyler report, the more convinced I become that we simply cannot have the death penalty in this state. It’s just too risky.

Speaking of Willingham and the science of arson, Dave Mann of the Observer spoke to NPR recently about recent events.

And speaking of Dave Mann, he notes that it just got a little harder for Rick Perry to claim that his little Saturday Night Massacre act on the Forensics Commission wasn’t all about political cover for himself. There’s not enough schadenfreude in the world if Perry goes down over this.

Finally, Lisa Falkenberg picks up on yet another frontier for criminal justice reform: the sorry state of doing autopsies, which are shockingly error prone in this state. Yes, sadly, the world of “CSI” really is make believe.

Yet another innocence frontier

Scent lineups.

The Innocence Project of Texas said Friday that scent identification lineups, in which trained dogs determine if a suspect’s smell matches the smell of crime scene evidence, are based on faulty science and have led to a number of wrongful convictions.

The group, which tries to free the wrongly convicted, said it will release a report next week detailing at least five cases in which innocent people were arrested following scent ID lineups conducted by a Fort Bend sheriff’s deputy who trains dogs. Two of the five were jailed for capital murder before the charges against them were dropped.

Deputy Keith Pikett has spent about 20 years training dogs named Clue, James Bond and Columbo to sniff out possible criminals in more than 2,000 scent identification lineups. But the lineups have come under attack from some in the legal community, and Pikett is being sued by two people who claim they were wrongly implicated in crimes because of Pikett’s scent lineups.

[…]

Texas and Florida are the only states that regularly use scent identifications, [Jeff Blackburn, chief counsel for the Innocence Project of Texas,] said. The Innocence Project of Florida is reviewing about 20 cases involving a now dead dog handler who worked on three cases that later resulted in exonerations. Florida has since begun to restrict the use of scent lineups.

During a scent lineup, an officer wipes individual pieces of gauze or cloth on a suspect and several other people, and then places them in separate coffee cans, according to the lawsuits against Pikett. A trained dog is presented a piece of crime scene evidence, and is then led by Pikett to each can for a whiff. The dog is supposed to signal Pikett if it sniffs a match.

[…]

The lawsuits aren’t the first time someone took action against Pikett. In 2008, a now former Harris County assistant prosecutor e-mailed his colleagues to warn them about the “unreliable evidence” that came from Pikett’s work with Houston police, according to an affidavit.

Dr. Alejandro del Carmen, the chairman of the University of Texas at Arlington’s criminology and criminal justice department, compared scent identification to primitive criminology theories that identified suspects by body type. The once-accepted theory was that skinny people were too shy and heavy people too lazy to commit crimes.

“As a trained criminologist and a Ph.D., I find it nerve-racking that the justice system would rely on the ability of a dog to predict someone’s guilt or innocence,” del Carmen said.

Go read about Clever Hans if you’re unfamiliar with the potential pitfalls of relying on animals in this fashion. Grits, who has been following this for awhile, has more. The fact that only Texas is doing this should raise red flags about this practice. Maybe when dogs can be called to the stand to be cross-examined it’ll be different, but until then I think they ought to stick to search-and-rescue and tracking fugitives.

UPDATE: More from Grits.

More on the Willingham report

Now that the Texas Commission on Forensic Sciences has received its report on the botched investigation of Cameron Todd Willingham and the likelihood that he was convicted and executed for a non-crime, will that help improve forensic standards so that tragedies like this can be avoided in the future?

Questions of investigators’ competence in the tragic case — and of Willingham’s possible innocence — vaulted to center stage last week when nationally renowned fire expert Craig Beyler blasted the accuracy of the early probes in a study commissioned by the Texas Forensic Science Commission.

Beyler’s review joins two earlier expert reports in faulting the work of Texas Deputy Fire Marshal Manuel Vasquez, whose testimony was key to Willingham’s conviction.

Barry Scheck, co-director of the Innocence Project, hailed Beyler’s findings as corroboration of a 2006 study sponsored by his group.

“There is a powerful case for those who have the stomach to look at it that an innocent man in Texas went to his death,” Scheck said. “This was not arson, much less an arson murder case.”

Scheck said he hopes publicity about the Harvard-trained Beyler’s report will boost congressional interest in a National Research Council call for a body to set standards for U.S. forensics laboratories and professionals and oversee education. The research council found serious deficiencies in the current system but stopped short of calling for old criminal cases to be reopened.

The commission could issue a final report in the Willingham case next spring. I can’t wait to see what they say, and if they go where the evidence takes them or if they try to weasel out of it. In the meantime, given enough resources, national standards for forensics (which, I must confess, it hadn’t occurred to me that we don’t already have) should be easy to sell. Just get some “CSI” actors, plus Abby from “NCIS”, and have them do a bunch of promos in favor of the idea. I bet they’d work cheap for something like this. Someone needs to make this happen.

Of course, you will have to overcome guys like this, who would surely become the Sarah Palin of archaic arson investigations if given the media exposure.

That question still stirs passions among those closely associated with the case. Most surprising is the view of Willingham’s first attorney, Waco lawyer David Martin.

“He’s a classic textbook psychopath,” Martin said of his former client. “He’s among the 6 percent of the population who don’t have a conscience.”

Martin, a former policeman, dismissed Beyler’s report. “Vasquez was one of the most competent and forthright witnesses I’ve seen,” he said. “He was an honest man. He did a good job.”

Martin said he examined the burned-out residence and found what he considered clear-cut evidence of arson. “It was quite obvious he poured accelerant on the floor and set the house on fire,” he said.

Yeah, all the experts are wrong and my dime-store psychoanalysis is all you need to know. And the more guys like him say stuff like that, the more they’ll be quoted as “the other side”, as if there were one in this. Grits and the Texas Moratorium Network have more.

CSI: Needs Improvement

Looks like Gil Grissom got out at just the right time.

Crime labs nationwide must be overhauled to prevent the types of mistakes that put innocent people in prison and leave criminals out on the street, researchers have concluded.

A 255-page report from the National Academy of Sciences is urging creation of national standards of training, certification and expertise for forensic criminal work, much of which is currently done on a city or state level.

The report’s authors say the lack of consistent standards raises the possibility that the quality of forensic evidence presented in court can vary unpredictably.

[…]

In particular, the report’s authors point out that, with the lone exception of DNA evidence, similar analysis of bite marks, tool marks, or hair samples, cannot provide a conclusive “match” in the common understanding of the term.

Such evidence can show similarities between a suspect and evidence left at a crime scene, but does not provide absolute certainty.

Peter Neufeld, co-founder of The Innocence Project which helps free wrongly convicted prisoners, said the findings marked nothing less than a “seismic shift” in criminal forensic science.

“It’s going to take a national undertaking, a massive national overhaul, to make our forensic science community sufficiently robust,” argued Neufeld.

Peter Marone, the director of Virginia’s forensic lab, acknowledged “there are some issues that need to be addressed” within the profession, but said by and large the report’s recommendations echo what he and other experts have been saying for years.

“We need better education, we need better standardization, and we do need accredited universities,” he said.

[…]

The NAS report recommends Congress create and fund a new, national institute of forensic science to help establish consistent standard for forensic science, certification of experts, and development of new technology. It also recommends that forensic science work be moved out of the offices of law enforcement agencies to foster more unbiased analysis.

Those recommendations were made for the HPD Crime Lab as well, and were an issue in the District Attorney’s race last year. It’s great to issue a report like this, and I agree it’s a huge shift in how we think about these things, but it’ll be little more than interesting bathroom reading unless there’s a federal funding mechanism to make this happen. It’ll also presumably require action in state legislatures as well, to create the replacement labs. So consider this to be the first step on the thousand-mile journey. Grits has more.

Report: Most elected officials refuse to contribute to their own prosecution

That’s what the headline to this story should read.

Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas — including representatives, senators, judges and commissioners — in which police on the scene asked for a sample to determine whether the driver’s blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

[…]

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

That’s one way of looking at it. Another is to note that most elected officials are knowledgeable enough to realize that breathalyzer tests have high rates of error, and consenting to take the test can only help the prosecution. Which, despite the fulminations of MADD and the TDCAA and Williamson County DA John Bradley is not something that anyone accused of a crime is required to do. In fact, as the original story notes, all of the elected officials in recent years who had been pulled over for DWI and refused to take the breathalyzer test wound up either being acquitted or having the charges dismissed. With a track record like that, who among us wouldn’t do the same?

Now, if you want to argue that there’s a certain hypocrisy here, especially with state legislators who routinely vote to get tuff on crime as long as it applies to someone else, I won’t dispute that. But as long as we still have the freedom to not make it any easier for the state to prosecute us, I don’t have any objection to those who exercise that freedom.

Innocence

Lisa Falkenberg examines what Circuit Judge Jacques L. Wiener Jr. referred to as “the elephant in the room” in granting a stay of execution to Larry Swearingen.

The nation’s highest court hasn’t directly addressed whether a claim of actual innocence can be made in late appeals, so federal appeals courts are left to their own interpretations. The 5th Circuit takes the easy route: it uniformly rejects them.

But, apparently, refreshingly, there’s at least one member of the court who disagrees: Judge Wiener.

In concurring with the stay, he wrote a special statement after Monday’s order to address what he called “the elephant” in the room.

Wiener writes that even though the U.S. Supreme Court never “expressly” recognized the right to claim actual innocence in late appeals, justices have made statements that suggest they view the truly innocent in the same light as the insane or the mentally retarded.

Wiener quotes Justice O’Connor: “I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution.”

One would certainly think.

There’s a very real possibility, Wiener writes, that the lower court to which Swearingen’s case was returned “could view the newly discovered medical expert reports as clear and convincing evidence that he victim in this case could not possibly have been killed by the defendant.”

That would represent a change in how the Court of Criminal Appeals has reacted to such evidence on Swearingen’s behalf previously, but I suppose one can hope. What else can you do?

I should note that when I wrote before about how our state leaders have always maintained that Texas has never executed a provably innocent man, there was already a strong possibility that they are wrong in this belief. There’s the case of Cameron Willingham, executed in 1991 for setting a fire that killed his three children. Except that the forensic science used to prove the charge of arson was based on discredited procedures, and multiple experts who have reviewed the evidence today have all concluded the blaze was accidental. In a matter of propitious timing, the Texas Forensic Science Commission is getting close to rendering a final judgment on the matter.

Fire scientist Craig Beyler has been asked by the Texas Forensic Science Commission to conduct an independent review of the case’s forensic evidence.

“He appears to be one of the pre-eminent people in the fire and arson investigation field,” Samuel Bassett, an Austin attorney and commission member, said of Beyler.

Barry Scheck of the Innocence Project, a non-profit organization responsible for scores of DNA exonerations, called the hiring of Beyler an “encouraging sign” and said he hoped Beyler would be able to “get to the bottom” of the case that sent Willingham to a lethal injection.

“It’s essential that this matter is resolved for the sake of those who have been wrongly convicted by unreliable arson evidence, as well as those under investigation in new arson cases,” said Scheck, the Innocence Project’s co-director.

[…]

The Forensic Science Commission was created in 2005 to investigate allegations of forensic error and misconduct in the country’s busiest death-penalty state. The Willingham case is its first capital case.

Bassett said he hoped Beyler would be able to complete his review by early April. Beyler will write a report and may make recommendations to the commission.

It is not clear whether Beyler would conclude whether Willingham was innocent. Even if he finds that the science used at the time was flawed, as the other experts have, he may not take the next step and say Texas was wrong to execute Willingham, though that would be the clear implication.

“If [Beyler’s report] is critical of the arson testimony,” said Bassett, “then theoretically it’s possible that could be the basis for a broader conclusion about the original conviction.”

That’s a fine distinction that unfortunately won’t do Cameron Willingham any good, but may perhaps spur the debate forward, and who knows, might even act as a catalyst for Larry Swearingen. The Chicago Tribune was the driving force behind the re-examination of Willingham’s case – you really should read their 2004 story, written ten months after Willingham’s execution, to get the full background. Thanks to Grits for the link to today’s story.