Criminal Defense Attorneys Must Request and Analyze Procedures for Testing, Accepted Protocols and Handling of Forensic Evidence

By: Houston Criminal Attorney John T. Floyd and Paralegal Billy Sinclair


A criminal defense attorney’s worst nightmare is that the prosecution will rely upon bad evidence to convict his/her client. Defending against relevant, admissible evidence is difficult enough, but there is no real defense against shoddy law enforcement’s collection, processing, and storage of the evidence the prosecution will rely upon in criminal cases. The Houston City Police Department (“HPD”) has a long, sordid history of destroying, botching, and even manufacturing false evidence in criminal cases. The HPD crime lab had to be shut down by the Mayor’s Office in 2002 in the wake of disclosures that lab analysts had mishandled DNA evidence, destroyed evidence, and misrepresented evidence in criminal trials. The fallout from the crime lab scandal still reverberates in our criminal justice system with the exoneration of at least six individuals.

Now the Houston Chronicle informs the public about the results of an adult released in October detailing how HPD’s fingerprint comparison unit mishandled fingerprint evidence in thousands of cases, many involving violent offenders, over the past six years. Taxpayers will now have to subsidize a review of at least 4000 violent crime cases. City Councilwoman Anne Clutterbuck told the Chronicle an amended contract with the firm that conducted the original audit, Ron Smith and Associates, could costs taxpayers between $2 million to $8 million.


This latest “bad evidence” scandal is having its own rippling effect across the political and criminal justice systems in Harris County. Houston Mayor Bill White told the Chronicle he believes criminals went free because of the deliberate mishandling and negligent ineptitude of the fingerprint comparison unit. “I think it’s unacceptable the quality of work the chief and the command staff found in the fingerprint unit,” the Mayor told the newspaper.

Harris County District Attorney Pat Lykos announced immediately after the fingerprint unit audit was released to the public that her office will undertake a review of all cases involving fingerprint evidence. District Attorney Lykos did not disclose any specific criterion to be used in the review process, particularly whether the review will direct attention at those cases where actual innocence may be involved.


Ron Smith, who supervised the fingerprint unit audit according to the Chronicle, tried to minimize the responsibility of those involved in losing fingerprint evidence or mishandling that evidence. “They were overwhelmed with work,” Smith told the newspaper. “As you are pushed harder to do more, there is a higher likelihood you may slip and miss prints.”

University of California law professor Jennifer Mnookin has studied the science behind fingerprinting. She found the HPD problems far more significant than Smith. “There certainly are other instances of laboratory practices that have created cause for concern,” she was quoted by the Chronicle.


You would think HPD fingerprint unit would have learned from the failures of the department’s crime lab, but police, like monkeys, do not learn from their failures. Frederik Joelving, writing in Scientific American (Nov. /Dec. 2009), reported that researchers found monkeys trained on a “two-choice visual task” could keep track of successes and failures. A correct answer produced an impressive result: “it improved neutral processing and sent the monkeys’ performance soaring in the next trial.” But even after mastering the task, monkeys who made a mistake in one trial were thrown off by the mistake rather than learning from it in another trial. “Success has a much greater influence on the brain than failure,” Massachusetts Institute of Technology neuroscientist Earl Miller told Scientific American.


Joelving reported that Miller’s monkey results apply as well to people in every day life “in which failures are left unpunished but achievements are rewarded in one way or another … The pleasurable feeling that comes with the successes is brought about by a surge in the neurotransmitter dopamine.  By telling brain cells when they have struck gold, the chemical apparently signals them to keep doing whatever they did that led to success. As for failures, Miller says, we might do well to pay more attention to them, consciously encouraging our brain to learn a little more from failure than it would by default.”

So despite the 2002 crime lab failure and the fact that the failure went basically unpunished (i.e., no one was convicted and sent to prison for wrongfully convicting innocent people), the “dopamine” of the HPD’s fingerprint unit continued to fuel a false “success” impression as it produced the “bad evidence” which served the District Attorney’s “convict-at-any-costs” political agenda.


“We may be understaffed,” the HPD beat cop would say, “but we are a tough, no-nonsense, kick-ass department that protects and serves the community by getting the bad guys off the streets.”


So long as the department’s collective neurotransmitter dopamine fed that false “success” impression, it was relatively easy for the department to ignore the failures associated with the gross negligence and ineptitude of its fingerprint unit. The Chronicle reported the unit had a backlog of 6000 cases which had not been reviewed. How could Police Chief Harold Hurtt or the District Attorney’s Office not be aware of this staggering backlog of cases? If Gary Blankenship, president of the Houston Police Officers Union, is to be believed, he told the Chronicle his union urged HPD “leaders” to conduct an audit of the unit a year and a half ago in an effort to correct the backlog and understaffing problems.


So why should we, or anyone else, believe Chief Hurtt’s disclaimer that a review of 548 random cases has not produced any evidence that a suspect was wrongly identified. At least Miller’s monkeys had the natural instinct to be confused by repeated failure.


Those kinds of official reassurances have repeatedly failed not only the Harris County criminal justice system but the entire Texas criminal justice system. We have written frequently about the perils of “bad evidence”: forensic “junk science” evidence (dog-sniffing IDs), suggestive police lineups leading to misidentifications, and false arson evidence which has sent at least one innocent man to his death in Texas.


Now we are informed by a recent Fort Worth Star-Telegram report that the National Academy of Sciences (“NAS”) has questioned the infallibility of ballistic evidence. This group, which serves as advisers to the President and Congress, has concluded that ballistics evidence is nothing more than opinion evidence, not fact. And to add fuel to this increasing fire of controversy, the NAS is currently saying most identification methods utilized by forensic scientists have not been validated.

The FBI and state law enforcement agencies have come to believe “forensic” evidence is the holy grail of evidence: ballistic matches, hairs linked to specific suspects, and blood splatter at crime scenes have been uniformly accepted by law enforcement and prosecutors as “air-tight” evidence, despite the fact that there are no protocols and standards which “legitimize such practices as ‘scientific,” reports the Star-Telegram.


The NAS has deep roots in American history. It was established by President Abraham Lincoln to advise the nation about science and technology. Jay A. Siegel is a member of the NAS. He is also chairman of the Department of Chemistry and Chemical Biology at Indiana University-Purdue University Indianapolis and Director of the Forensic and Investigative Sciences Program. The gentleman is a real “forensic” expert. He was quoted by the Star-Telegram as saying the FBI and law enforcement agencies are not scientists. “They don’t know what validation is,” he said. “They don’t know what it means to validate a test.”


Siegel pointed out that despite the fact that Texas crime labs every day make ballistic matches, there have been no studies conducted to determine the extent of uniqueness of firearms markings. “It’s not possible to state with any scientific certainty that this bullet came from any weapon in the world,” he told the Star-Telegram.


These findings by NAS were released earlier this year in a controversial report titled “Strengthening Forensic Science in the U.S.: A Path Forward.” In the wake of his controversial appointment this past September, Texas Forensic Science Commission (“FSC”) Chairman John Bradley announced through an e-mail by FSC member Sarah Kerrigan that the commission was committed to discussing the NAS report.


While we don’t believe the FSC has either the political will or moral courage under the leadership of Chairman Bradley to take on evidence so routinely relied upon by prosecutors to secure criminal convictions, the Williamson County District Attorney at least acknowledged through a second person e-mail that the commission will “discuss” the developing implications of the NAS findings.


But those individuals vested with maintaining the status quo—particularly those forensic experts with profit motives as “hired guns” for Texas prosecutors—have not been as receptive. For example, Texas criminalist Max Courtney told the Star-Telegram that while crime lab scandals in Houston and Fort Worth have given forensics a bad name, this did not mean scientific methods they employ are flawed. “These are all valid sciences,” he told the newspaper. “Just because someone does a bum rap somewhere doesn’t mean the science is flawed.”


Ron Fazio is director of Integrated Forensic Laboratories in Euless, Texas. He agrees with Courtney. “If somebody drives and drinks and kills somebody, that’s horrible, but that doesn’t mean that all driving is bad,” Fazio told the Star-Telegram. “The person who made the mistake needs to be dealt with, but that doesn’t mean we outlaw driving. Same thing with this. It’s not a failing of the discipline; it’s a failing of the individual.”


It would be nice if the frequent mistakes and massive ineptitude so routinely associated with the Texas crime labs could be so casually dismissed as suggested by Courtney and Fazio, but the complexity of the issue goes far beyond silly drunk driving analogies. For example, Professor Mnookin has written that law enforcement crime labs who conduct fingerprint analysis have an inherent conflict of interest. We agree. That rule should apply to any crime lab operated by a law enforcement agency that conducts forensic evidence analyses for criminal prosecutors. Irma Rios, director of the HPD crime lab and former supervisor of the Texas Department of Public Safety serology lab somewhat concurs. “We are concerned and we completely agree with that, that bias exists, absolutely,” she told the Star-Telegram.


While the NAS report has triggered nationwide controversy in the forensic science community, it has by no means been a death knell for the discipline. Siegel conceded that just because forensic tests have not been validated, this does not mean they should be completely discarded. “One of the confusions that occurred from the report is the assertion that since these tests haven’t been validated, they shouldn’t be used,” he told the Star-Telegram. “We’re not saying they are invalid and shouldn’t be used.”


The forensic expert added that the NAS report did not go so far as to label ballistic identification as “junk” or “flawed” science but rather only that it and other methods “just haven’t been subjected to testing that needs to be done in order that these conclusions can be scientifically supported. What we said is the report is [sic] the jury is still out there until scientific testing is done.”


The burden in Harris County courtrooms now shifts to the defense attorneys to not just question the credentials of forensic experts but to put their protocols and standards under the harsh light of rigorous cross-examination.


Pretrial discovery requests must now include specific requests for evidence backlog information, protocols and standards, the chain of processing and handling such evidence, and any disciplinary reports and/or violations of evidence review protocols by each analyst involved in the crime lab analysis process.


Forensic evidence is no longer the Holy Grail. It is a soiled blanket. Criminal defense attorneys now have the tools necessary to not only impugn but indict the integrity of the forensic sciences. The ole forensic dog will not hunt, or even sniff, in this courtroom anymore.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair