Criminal Defense Attorneys Must Question Findings, Conclusions of Forensic Experts

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


We have posted a number of blogs about the “junk science” associated with forensic evidence—a science popularized by network television with drams like “CSI” and its spin-offs. It would indeed by an ideal world if all the evidence-gathering and analysis reflected in these TV programs reflected the real world of crime and criminal prosecutions. The reality is that while these shows may entertain their legion of loyal viewers, they do a tremendous disservice to our criminal justice system. They contribute to the popular acceptance among most jurors that “forensic evidence” is infallible when, in truth, the evidence analysis methodologies used in most of this science have never been validated and the end results have been tragic. According to the New York-based Innocence Project, nearly half of all the DNA exonerations in this country involved “false forensics,” not to mention the horrific way this flawed process undermines the integrity of our truth-seeking, albeit adversarial justice system.


For example, KCBD television in Lubbock recently reported that Paul Shrode, the city’s former Deputy Medical Examiner, lied on his resume to secure the position of Chief Medical Examiner in El Paso County. The Texas Medical Board has indicated it will investigate the complaint filed by an Austin documents analyst named David Fisher (who frequently works with criminal defense attorneys) against Shrode with the medical board concerning the “resume doctoring”.


The Paul Shrode revelation comes on the heels of a series of fine investigative reports by Fort Worth Star-Telegram investigative reporter Yamil Berard about statewide problems dealing with medical examiners and the flawed nature of their forensic work, particularly when it comes to autopsies performed by these “medical forensic experts.” After Tarrant County District Attorney Joe Shannon told the newspaper that his office relied upon the county’s medical examiners “a great deal,” Yamil pointed out the flawed nature of the evidence analysis methodology of medical examiners:


“ … even though medical examiners rule as to how people die, that is an opinion based on interpretation of available evidence. In some cases, critics say, justice may be trumped by outside influences and by speculation that goes beyond hard scientific evidence. There are even questions about how much ‘science’ is in forensic science. In a report to Congress [last] year, the National Academy of Sciences said that there is a dearth of studies establishing the scientific validity of many forensic methods and that invalid interpretation of forensic evidence is a serious problem.


“One point of agreement: Neither the public nor judges, jurors and attorneys understand the weaknesses. They fall under the same spell, expecting bulletproof answers that tie the crime to the criminal. Jurors will expect the medical examiner to reveal shocking truths even when the case doesn’t hinge on the autopsy, said Ronald L. Singer, crime lab director in the Tarrant County medical examiner’s office. ‘Obviously, we’re not as good as they [the public] think we are,’ Singer said.

“Dr. Glenn Larkin, a former chief medical examiner in Pennsylvania, puts it bluntly: ‘We’re one step removed from God and St. Michael.’”


The Shrode incident and speculative nature of evidence analysis by medical examiners add to the mounting evidence that un-validated forensic science has no place in our courtrooms. The Houston Chronicle recently reported (Jan. 27, 2010) that the Houston Police Department has “developed a backlog of more than 300 cases in which firearms forensics have not been performed.” This marks the third backlog of evidence analysis by HPD’s crime lab which itself has been marred by a series of scandals dating back to 2002.


The Chronicle harshly but factually reported that “despite years of effort aimed at cleaning up [this] problem that led to the convictions of at least four men, backlogs for thousands of cases also have developed in rape kits and fingerprint analysis.”

HPD Crime Lab Director Irma Rios told the Chronicle that “we’re not sitting here and twiddling our thumbs … We’re accountable, we’re realize we have a tremendous responsibility … These backlogs didn’t occur overnight, they took many, many years.”


This bold admission of what can only be characterized as irresponsible official conduct in the HPD crime lab’s daily operation and management does not alleviate the problems these evidence analysis backlogs inflict on the county’s criminal justice system. JoAnne Musick, president of the Harris County Criminal Lawyers Association, told the Chronicle the backlogs cause two major problems:


“First, she said, because people often are arrested before evidence is processed, innocent people are jailed and forced into preliminary legal proceedings unnecessarily. Second, criminals who may be identified through forensic testing are able to remain on the streets and, potentially, commit new crimes.


“’Every time you turn around, there’s another backlog that’s either bigger or exists in another part of the lab,’ Musick said. ‘The fact that we’ve made improvements in DNA (analysis) meant that we allowed firearms and prints to sit on the back burner.’”


This latest crime lab debacle will cost taxpayers, through an $80,000 contract with Science Laboratory and Training Centre, to clear up the latest firearms evidence backlog. The last crime lab backlog which dealt with fingerprint analysis and was revealed late last year will cost taxpayers nearly $3 million to fix.


What particularly concerns us is that these repeated “backlogs” and the media exposure about them creates an official urgency to “clear the cases.” Experience has instructed us that when it comes to the HPD crime lab, this means cutting corners, fabricating evidence for the prosecution, and utilizing unreliable evidence analysis methodologies.


Given the overall state of dispute of forensic sciences (fingerprinting, ballistics, blood splatters, dog sniffing, to name a few), we have no reason to believe that the out-sourcing these “backlog” cases will produce more reliable results. It boils down to this: the most recent Paul Shrode episode, and the recurring problems with the HPD crime lab, convinces us that there is doubtful credibility in the field of “forensic sciences,” and for this reason, criminal defense attorneys must vigorously challenge every shred of forensic evidence presented in a Harris County courtroom for its reliability. Criminal defense attorneys can no longer accept “expert” testimony as per se reliable, regardless of whether the trial court accepts the witness as “qualified” to give the expert testimony in question.