Thousands Convicted in Cases Touched by Faulty Forensic Analysis
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
“It’s a mess,” as grandmother would say.
It really is, folks – a dirty, rotten scandalized mess. A Texas Department of Public Safety (DPS) controlled substances analyst named Jonathan Salvador, who worked in the agency’s Houston-based crime lab from 2006 to 2012, tested evidence in nearly 5000 drug cases, mostly in cases from the Houston area. The Texas District and County Attorneys Association says most, if not all, are now subject to reversal by the state’s appellate courts.
Because Salvador was a liar, a cheat, and a woefully incompetent employee who routinely lied, manipulated, and fabricated test results for prosecutors which resulted in dozens, even hundreds, of innocent people being sent to prison. There is no reasonable way an appellate court can sustain a conviction obtained as a result of Salvador’s test results even in cases where there may be sufficient independent evidence to support the conviction. Just because you wash your hands doesn’t mean your elbows are clean.
The instances of Salvador-like state crime lab scandals have come legion over the last two decades across the country. Between rogue prosecutors who routinely engage in unethical misconduct, corrupt police officers and lying crime lab analyst, there is no real way to measure just how many thousands of innocent people have been convicted and forced to serve decades behind bars in the nation ‘s prisons for crimes they did not commit. Even worse, it is now apparent that several wrongful executions have been based upon equally despicable conduct.
Reliable reports estimate that as many as 20,000 innocent people are currently serving time in prisons because of cheating crime lab analysts, lying police and rogue prosecutors—all of whom we have repeatedly written about over the last five years here. It is truly a disheartening, disgusting mess.
The tragedy about the crime lab scandals is that they could have been prevented with professional, competent supervision of the work conducted by forensic analysts. Despite unreliable, shoddy work performance during Salvador’s six-year employment with the DPS crime lab, none of his supervisors elected to question his work results until he had worked on nearly 5,000 cases.
Crime lab employees do not enjoy a margin for error in their work. Their work must be as precise and as exact as the latest forensic methodology permit. There mere failure to follow analytical protocols in the slightest way can result in an innocent person being sent to prison or a guilty one set free. With this in mind, and with all the scandals surrounding so many other crime labs across the nation, you would think that it would not take six years for DPS supervisors to discover all the “errors and mistakes” committed by Salvador. The following scandals are representative of those which have become so prevalent in the forensic evidence industry:
- West Virginia State Police: Fred Zain was hired by the West Virginia Department of Public Safety as a “forensic expert” in 1979 and rose to the position of Chief of Serology before being terminated in 1998. Zain was loved by prosecutors across the nation who frequently used him as an “expert witness,” including Austin and Bexar County, Texas prosecutors. Before his death of colon cancer in 2002, Zain is known to have falsified tests in as many as 134 cases. In the wake of a review of his work with San Antonio prosecutors, Zain was charged in Hondo, Texas with aggravated perjury, evidence tampering, and fabrication of evidence in the 1990 wrongful rape conviction in Gilbert Alejandro. A half dozen other Texas convictions involving Zain’s testimony were overturned, but Zain escaped responsibility with his 2002 death.
- Oklahoma City Crime Lab: Joyce Gilchrist worked as a “forensic chemist” for the Oklahoma City police department. She earned the moniker “Black Magic” for her testimony in 23 death penalty cases, which resulted in 11 executions. After participating in more than 3,000 cases during her two decades with the Oklahoma City crime lab (1700 of whose convictions were based primarily on her testimony), she was fired following accusations that she had falsified evidence. She adamantly denied the charges. However, Curtis McCarty was released from death row in 2007 where he had been confined for the previous two decades because Oklahoma courts found that Gilchrist either altered or lost evidence.
- Houston Police Department Crime Lab: In 2002 accusations began to surface that analysts with the Houston crime lab were either conducting faulty DNA analysis or presenting evidence in such a biased manner as to secure convictions. In 2003 a DPS audit confirmed the accusations. Re-tested crime lab evidence resulted in the reversal of at least six convictions. This led to a 2007 investigative report that found the crime lab had presented highly questionable evidence in more than 400 cases. In 2008, the crime lab’s supervisor and two analysts were forced to resign in the wake of yet another cheating scandal.
Jim Fisher is a former FBI agent and a professor at Edinboro University in Pennsylvania where he teaches criminal justice. He is also the author of a 2008 book titled Forensics Under Fire: Are Bad Science and Dueling Experts Corrupting Criminal Justice. “The CSI effect has caused jurors to expect crime lab results far beyond the capacity of forensic science,” he wrote. He charged that our 21st century criminal justice system is incapable of differentiating between “valid research and junk science.”
A 2009 report by the National Academy of Sciences agreed. The report, titled Strengthening Forensic Science in the United States: A Path Forward, sent a clear, unmistakable warning to all law enforcement crime labs across the country—a warning either not heard or heeded by DPS in the Salvador case. Jay A. Siegel, a member of the Academy, said people like Salvador are not “scientists” and do not know what validating evidence is, much less understanding what it means “to validate a test.”
It’s called “voodoo science” – and Siegel said that judges “just don’t understand a thing about it … that’s the sad fact.” Only 4% of the 400 state court judges who participated in a 2001 survey had a clear understanding of the science, including fingerprint, ballistics, voice, handwriting, chemical analyses. As the prominent Harry T. Edwards, a judge on the D.C. Court of Appeals, once observed: “The partisan adversarial system used in the courts to determine the admissibility is often inadequate to the task. And because the judicial system embraces a case-by-case adjudicatory approach, the courts are not well-suited to address the systemic problems in many of the forensic science disciplines.”
And that’s why we now believe the Texas courts of appeals should issue reversals in the 5000 cases in which Salvador participated. A post-mortem on these cases designed to find a way to validate the convictions would inevitably produce an unacceptable error rate, especially considering much of the evidence has probably been destroyed. Also, it is high time the law enforcement face some serious punitive action in response to the continual lack of professionalism in investigating cases and processing evidence. Reversal, thus, becomes the only sensible solution. And while Salvador is personally responsible for this mammoth problem, one or more DPS crime lab supervisor is also responsible. But for now Salvador gets a “get out of jail free” pass while the supervisor(s) avoid professional accountability—not even a Leroy Jethro Gibbs head slap.
We would suggest that DPS send some of its crime lab supervisors to the Dominican Republic to take a refresher course in elementary “voodooism” in order to fully understand the difference between “belief” and “science.” Perhaps that would prevent future Salvador disasters.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization