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Comments on Criminal Issues
June 22, 2007
HOUSTON CRIME LAB NEEDS SPECIAL MASTER
Two years ago the “crime lab” for the Houston Police Department was a national scandal. Its shoddy analysis and unprofessional investigation protocol had apparently resulted in the conviction of scores of innocent criminal defendants. Mayor Bob White vowed to clean up the disgraceful mess and restore law enforcement integrity to the crime laboratory. Michael Bromwich, a former U.S. Justice Department inspector, was assigned the task of investigating the crime lab, its procedures, and issue recommendations. Bromwich fulfilled his commission on June 13, 2007 when he issued a 400-page report whose recommendations were not readily embraced by the very city officials who pushed for Bromwich’s investigation in 2005.
The most controversial recommendation in the Bromwich report was that a “special master” be appointed to review hundreds of criminal convictions now in legal jeopardy because of the crime lab’s professional incompetence or criminal negligence.
Mayor White, Houston Police Chief Harold Hurtt, and Harris County District Attorney Chuck Rosenthal collectively, and quite emphatically, rejected the call for the appointment of a “special master.”
"I guess you probably can't get much more official than the mayor, the police chief, the chairman of the Public Safety Committee, and the district attorney responding to a particular report," White said concerning the rejection of the special master recommendation.
Rosenthal was not so delicate.
"We have special masters," the district attorney said. "They're called judges in our building."
Faced with the prospect of seeing dozens, perhaps hundreds, of criminal convictions obtained by his office reversed and probably unable to retry, Rosenthal was notably concerned about the Bromwich report. He charged that the former Justice Department official had gone beyond his original mandate and produced a report “too broad” to be taken seriously.
"This investigation was (supposed to be) an investigation into the operation of the laboratory," the controversial DA was quoted by AP as saying. "It was not an investigation into the criminal justice system as a whole."
Chief Hurtt was more succinct on the special master recommendation, saying: "We don't think (a special master) is necessary."
Bromwich disagreed with these city officials, pointing out that he and his colleagues who assisted in preparing the report were "extremely mindful of the limits of our responsibility."
Bromwich also enjoyed prominent support for the report’s special master recommendation.
Patrick McCann, president of the Harris County Criminal Lawyers
Association, said: "(The city's) head is in the sand. It not only does not surprise me, it just saddens me."
Barry Scheck, co-director of the New York-based Innocence Project and the most prominent crusader for the wrongfully convicted, agreed: "The most efficient and direct way (to review the cases) is to appoint a special master."
In addition to the special master recommendation, the report underscored hundreds of “serious and pervasive” mistakes made by the crime lab’s DNA and serology departments in forensic cases. Bromwich’s investigation examined more than 3500 cases processed by the crime lab over the past quarter century.
"The crime lab's substandard, unreliable serology and DNA work is all the more alarming in light of the fact that it is typically performed in the most serious cases, such as homicides and sexual assaults," the report found.
The Bromwich investigative team specifically examined 135 DNA cases handled by the crime lab between 1992 and 2002. The investigators discovered “major issues” in 43 of those cases. More disturbingly, the investigators also found “major issues” in four of the 18 death penalty cases it reviewed.
The crime lab’s DNA/serology departments were shut down in 2002 after an audit raised serious questions about the reliability of their work. The findings of the Bromwich report were essentially the same: problems with blood-evidence analysis create a “major issue with the reliability of the crime lab’s work or the accuracy of its reported results.”
Since the 2002 audit, the crime lab’s budget has doubled and just last year the American Society of Crime Lab Directors accredited the lab. Bromwich acknowledged these positive efforts by city officials, saying: "It's very important to note . . . that the crime lab has made enormous positive strides over the last three and a half years. It bears little resemblance to the substantially dysfunctional institution of the past."
While he was strenuously opposed to the report’s “special master” recommendation, DA Rosenthal said his office had already begun responding to some of the report’s other recommendations:
"We're in the process of pulling files on all the people that they say had bad serology evidence, and what we intend to do is to notify those people that their serology evidence has been called into question and let them deal with a judge as to whether they want somebody to represent them or not."
But David Dow, director of the Texas Innocence Network was not impressed: "I don't want to have to rely on the district attorney's office to assess the importance of (untested) physical evidence in these cases."
Then there is the crucial issue of the costs associated with responding to the report’s recommendations. Mayor White addressed this financial issue of evidence retesting in as many as 850 cases:
"It (would) come from (the) public safety (budget). But if it is done under court supervision, and it's something that the district attorney's office and HPD believe is important to serve the ends of justice, then that kind of thing can be supported."
These costs will be in addition to the $5.3 million already spent on the Bromwich investigation as well as the substantial crime lab budget increased over the last four years.
Prosecutors, police, and crime lab technicians have learned over the past decade that the costs of convicting the wrong person – either by a knowing suppression of favorable evidence by the prosecution, or by a fabrication of evidence by the police, or by the criminal negligence of crime lab technicians – are staggering.
State Rep. Kevin Bailey, Chairman of the House Committee on Urban Affairs, was not impressed with the way Houston officials responded to the Bromwich report.
"It looks like to me that they're trying to sweep some of their final problems under the rug," he said.
Bailey said the “special master” recommendation should be adopted to restore the integrity of the criminal justice system in Harris County.
"That's why so many people don't have a lot of confidence in the judicial system in Harris County," Bailey said. "Not just because of the problems of the past, but (criminal justice officials) continue to not get it, and they continue to appear to ignore the facts and the proper way to resolve these cases."
At least two innocent persons were wrongfully convicted because of the criminal negligence of the Houston Crime Lab – one of whom served 17 years. The crime lab has improved its work and procedures, but that is not the real issue. The issue is that the only “review” will be conducted by the Houston Police Department and the Harris County District Attorney’s office. These are the two agencies that arrested and convicted the defendants involved in the 850 cases under “review.”
Can the self-serving interests of these law enforcement agencies give way to the interests of justice and fairness?
No.
It was these self-serving law enforcement interests that created the crime lab scandal to begin with.
The integrity of the Harris County criminal justice system demands that a “special master” be appointed to conduct any review of the crime lab “mistake” cases. An independent and fair eye is necessary to truly allow some justice in the Houston criminal justice system.
Otherwise, the $5.3 million Bromwich report will become just another byproduct of “government waste.”
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