Justice through science

The Texas Legislature created the Forensic Science Commission (FSC) in 2005 in the wake of significant problems in the DNA/serology section of the Houston Police Department crime laboratory. From 2005–2007, the commission had no budget and no staff. It considered its first complaints in 2007. Controversy ensued almost immediately as the Commission reviewed a complaint challenging the science used in the arson convictions of Ernest Ray Willis and Cameron Todd Willingham.
    Investigating problems in forensic science is often controversial due to the inescapable tension between science and the law. Scientists readily accept that their understanding of certain principles may be subject to change and revision numerous times throughout their careers. In fact, the continuous search for new and better answers is at the heart of good science.
    The legal system, on the other hand, is poorly equipped to cope with evolving scientific principles. When an expert testifies about the forensic analysis performed in a criminal case, the trier of fact assumes the answer is as definitive as it can be, not that the expert will change her mind some years down the road when new scientific discoveries are made or when old principles have been debunked. Add to this the fact that scientists have an ethical obligation to notify stakeholders if they discover material changes, and we have the potential for conflict even years after a case is decided.

Our background
The commission is a small state agency physically located in the Stephen F. Austin building in Austin and administratively supported by Sam Houston State University in Huntsville. We have two full-time staff (the co-authors of this article) and nine commissioners (seven scientists and two attorneys). The nine commissioners serve staggered two-year terms and are appointed by the governor. The two attorneys represent both sides of the adversarial system, and the governor chooses them from a list of 10 submitted by the Texas District and County Attorneys Association (TDCAA) and the Texas Criminal Defense Lawyers Association (TCDLA).
    The commission has come a long way since its early days, and we are proud to have developed close relationships with many prosecutors in our state as we work on issues of concern to the entire criminal justice system.

What does the ­commission do?
The commission’s main job is to investigate allegations of negligence and misconduct involving accredited forensic disciplines performed by accredited crime laboratories in Texas.1 For a list of accredited forensic disciplines and crime labs, see www.txdps.state.tx.us/CrimeLaboratory/LabAccreditation.htm. We also maintain a system for laboratories to self-report instances of negligence and misconduct that they discover on their own. Our investigations typically entail extensive document review and interviews with crime lab personnel. We publish our reports on our website at www.fsc.state.tx.us.
    During the most recent legislative session, the Legislature clarified the scope of the commission’s jurisdiction, in part due to confusion that arose in the wake of the Willingham and Willis arson investigations. The commission is now permitted to review cases involving forensic disciplines and entities that are not currently subject to accreditation. However, these reviews are limited to making observations regarding the integrity and reliability of the science and suggesting recommendations for best practices. The commission may also initiate its own investigation of any type of forensic analysis (accredited or unaccredited) without receiving a complaint, but only if a majority of the commission believes the review would advance the integrity and reliability of forensic science in Texas.
    One example of a review initiated by the commission involves the discipline of microscopic hair analysis. The FBI recently informed the public that some of its examiners overstated the extent to which the science underlying hair microscopy allowed for a positive association between a known hair sample and crime scene evidence. The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas. Of course, this does not necessarily mean that state and local analysts in Texas made similar overstatements. The commission is working with all of the crime laboratories that engaged in microscopic hair review as well as TDCAA, TCDLA, and the Innocence Project of Texas to conduct a review of hair cases.

How does the FSC’s work impact pending criminal cases?
As of June 2013, the commission’s reports are not admissible in civil or criminal actions in the State of Texas.2 However, the reports we write should assist prosecutors in understanding the types of concerns that may be raised at trial when there are questions about the integrity or reliability of the science. We encourage prosecutors to read the reports and supporting documents on our website and to contact us with any questions you may have.

How will I know if one of the FSC’s discipline-­specific reviews affects me?
Because the commission has a partnership with TDCAA in working on discipline-specific reviews such as the hair microscopy cases, we are determined to ensure that prosecutors whose cases may have been impacted are closely involved in the case review process. The review panel may seek prosecutors’ assistance in locating critical documents in the case. After consideration of all available information, the review panel may reach a decision regarding the fundamental integrity or reliability of the hair microscopy used in the case. However, the commission’s role is limited to the forensic analysis, and it has no role in determining guilt or innocence. It will be up to individual prosecutors to assess whether any additional steps need to be taken in the court system depending upon the facts and circumstances of the entire case.

What is the status of the Salvador drug cases in Houston?
In February 2012, the Department of Public Safety (DPS) crime laboratory in Houston discovered that Jonathan Salvador, one of the examiners in its drug chemistry section, used the evidence in one alprazolam case to support the results in a separate case for which he was struggling to issue a positive finding. DPS immediately notified stakeholders, including the law enforcement agencies in 36 counties surrounding Houston that had submitted evidence in close to 5,000 cases worked by the examiner. The commission investigated the case and found that Salvador committed professional misconduct. The Texas Rangers also investigated, and the Harris County District Attorney empaneled a grand jury, but the grand jury ultimately no-billed Salvador.
    Initially, the Court of Criminal Appeals (CCA) held that any forensic testing performed by Salvador was unreliable, regardless of whether there was evidence left to re-test. In a case called Ex Parte Coty, the CCA reversed itself, asking the parties to brief the question of when the court should assume a due process violation in a case worked by an examiner when he committed misconduct in another case or cases. (See the article in this issue on page 12.) The CCA remanded Coty to the habeas court, requiring it to use a new legal standard in determining whether Mr. Coty is entitled to relief. Under the first prong, if the applicant demonstrates that the examiner’s work is unreliable, the CCA will infer the evidence in the applicant’s particular case is “false” under a line of cases generally referred to as “false-evidence claims.” To establish falsity, the applicant must show that:
1)     the examiner is a state actor;
2)     the examiner has committed multiple instances of intentional misconduct in another case or cases;
3)     the examiner is the same examiner who worked on the applicant’s case;
4)     the misconduct is the same type of misconduct that would have affected the evidence in the applicant’s case; and
5)     the examiner handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct.
    If the applicant establishes these five criteria, then the CCA will infer the evidence is “false,” and the burden shifts to the State to rebut the inference of falsity. To rebut the inference, the State must demonstrate that the examiner committed no misconduct in the applicant’s particular case.
    Assuming the applicant establishes the inference of falsity under the first prong and the State is unable to rebut the inference, then the applicant must meet a second prong of the test. Under the second prong, the applicant must show that the evidence in question was “material” to his conviction. This analysis will take into account the facts and circumstances of each case. Thus, when there is significant evidence beyond the laboratory report or analyst testimony to show the applicant committed the crime in question, the applicant will have a difficult time establishing materiality. However, in cases where the laboratory report or analyst testimony was the primary or only piece of incriminating evidence, the applicant may indeed be able to establish materiality.
    One issue that came up during the Salvador investigation is the significant challenge of notifying all stakeholders (prosecutors, defendants, defense attorneys, judges, etc.) in cases involving a high-volume forensic discipline with thousands of cases like drug chemistry. To address this issue, the commission and the Texas Criminal Justice Integrity Unit (TCJIU) convened a stakeholder roundtable in June 2013. The commission and the TCJIU released a report suggesting a roadmap for defendant notification in future cases involving high-volume forensic disciplines, which may be found on the commission’s website at www .fsc.state.tx.us.

What about that arson review?
In April 2011, the commission made a series of recommendations to improve the quality of fire investigations in Texas in response to a complaint regarding the science used in the criminal cases of Ernest Ray Willis and Cameron Todd Willingham. One suggestion was that the State Fire Marshal’s Office (SFMO) consider conducting an internal review of arson cases for which its staff provided testimony to ensure that outdated and/or invalid fire science principles were not used in the forensic reports or testimony. Over the last few years, fire scientists have recognized that some of the indicators once used to demonstrate that a fire was set intentionally should no longer be relied upon as conclusive evidence of an incendiary fire. The commission’s recommendation was consistent with the widely accepted ethical principle that forensic practitioners have a duty to alert appropriate stakeholders in the criminal justice system if they become aware of significant scientific changes or other factors (e.g., negligence, misconduct, etc.) that could have had a material impact on a criminal case.
    To date, there have been only a handful of cases (five or six) in the entire state where the SFMO issued a letter to a prosecutor notifying him of the agency’s concerns regarding the reliability of its investigators’ forensic analysis in the original criminal case. The SFMO’s letter intended to advise the prosecutor of the issue. It is then up to the prosecutor and/or a court of competent jurisdiction to decide what, if any, further action is appropriate within the greater context of the case.
    The District Attorney for Pecos County has filed an Attorney General opinion request asking whether the SFMO has the authority to review old arson cases and make determinations regarding the reliability of the science used in those cases. We look forward to the Attorney General’s decision. We also understand the SFMO has made improvements to the arson review process based on feedback from the District Attorney for Pecos County.

What is the FSC doing to prevent future problems?
The commission is committed to proactive training of forensic examiners, lawyers, and judges in our state. We have a partnership with the Texas Criminal Justice Integrity Unit through which we offer a variety of training courses. We also work closely with the Texas Association of Crime Lab Directors to identify training that is helpful to them. We try to participate as often as we can in continuing legal education programs around the state, and we are working closely with the forensic science community to ensure that all forensic examiners become certified in their forensic disciplines over the next 7–10 years.

What if I have
a question?
Please call us! Though we are a staff of two, we love our jobs and especially love talking to prosecutors about forensic issues affecting their lives. Feel free to email or call anytime. Contact Lynn Garcia at lynn [email protected] and Leigh Heidenreich at [email protected], or call us at 512/936-0770.

Endnotes

1 See Tex. Code Crim. Proc. art. 38.01.
2 Id. at §11.