In January 2012 the Texas Department of Public Safety realized it had a major problem with one of its employees—a forensic scientist named Jonathan Salvador who had been employed with the agency for six years. He was assigned to the Houston Police Department’s Crime Lab Division. He had difficulty maintaining his case load, with one out of three of his cases being returned to him for corrective measures.


Worse yet, the agency discovered that Salvador had engaged in serious misconduct by falsifying test results in narcotic cases. This discovery prompted the agency to suspend the technician and notify area prosecutors of the possibility that he had presented false evidence in cases.  DPS quickly determined that Salvador had worked on 4,944 cases during his employment. The agency re-tested the evidence in 440 of those cases and found an error rate of 2 percent.


These discoveries presented a tremendous challenge to the court system on just how to respond to the admitted misconduct by one of the State’s agents. The issue eventually worked its way to the Texas Court of Criminal Appeals which in 2013 issued a series of published and unpublished opinions in what became known as the “Salvador cases.” In these cases the court established a bright-line rule that there would be a “presumptive due process violation” in all these cases.


It didn’t take State prosecutors long to make their displeasure known about this position. They lamented to the court that Texas was “the only jurisdiction to embrace a per se presumption of prejudice when a forensic scientist commits misconduct in another case.” In light of this “persuasive” point of view, the court of criminal appeals decided to answer this question:  Under what circumstances, if any, should the court “presume a due process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case.”


This past January the court answered this question in Ex parte Leroy Edward Coty. In that case the State argued that the court should follow the lead of the courts in West Virginia and Washington State with the following test:


“The State argues that there should be a rebuttable presumption of invalidity ‘only when the misconduct is so persistent and pervasive that it shocks the conscience of the court[,]’ and that Salvador’s conduct did not rise to that level.


Second, it asserts that, even if this Court holds that there is a per se presumption of a due-process violation, courts should review a number of factors and the totality of the circumstances of the case to determine if the defendant was harmed. Specifically, the State suggests that deciding whether a due-process violation should be presumed when a laboratory technician has committed misconduct in another case should be a two-step inquiry:


‘(1) whether misconduct is so egregious that the defendant is entitled to a presumption that misconduct is present in his case; and (2) whether the defendant can demonstrate prejudice.’”


Attorneys for Coty argued for a more expansive, fairer test:


“Applicant responds that the State’s suggested standard of presuming a due-process violation only when the technician’s misconduct ‘shocks the conscience’ is arbitrary and fails to provide ‘guidance in approaching either the Salvador cases or future situations involving systemic misconduct.’ Instead, Applicant suggests that this Court continue to apply [the presumption of a due process violation]. Applicant cites a number of reasons for his position. First, using the State’s proposed test ‘unfairly shifts the burden from the party whose agent created the problem,’ and ‘expensive havoc’ would result in any trial courts in which defendants became aware of the misconduct. Also, Applicant asserts that the State could argue at a new trial that the ‘results in a particular case are reliable, and that a conviction is appropriate.’ Finally, Applicant explains that ‘[p]ost-conviction writ applications have been drafted and findings entered in reliance on this Court’s previous decisions[,]’ this Court’s granting of relief in the ‘Salvador cases’ sends an important zero-tolerance message, and ’a court disregards its own precedent at the risk of eroding the public’s confidence in its rulings.’


“Alternatively, Applicant argues that this Court should adopt a four-factor test to determine if a laboratory technician’s misconduct in another case should warrant a court to presume a due-process violation, and under that test, a defendant could be reprosecuted. Those proposed factors from Applicant include:


(1) ‘Whether prior decisions of this Court suggest that a due process violation should be presumed in the situation under review’;

(2)’”The number of cases affected and the relative seriousness of the errors or intentional misconduct that has been discovered’;

(3) ‘Whether presuming a due process violation would deliver a strong message to both crime labs and to the public that forensic misconduct will not be tolerated by this Court’ and;

(4) ‘Whether presuming a due process violation would promote judicial economy under the circumstances.’ Applying these factors, Applicant argues, must result in the conclusion that Salvador’s ‘negligent and intentional misconduct was significant enough that a due process violation should be presumed as to all of his cases.’”


The court elected to split the proverbial baby with this test:


“After thoroughly reviewing the record, the filed briefs, and cases from other jurisdictions, we hold that an applicant can establish that a laboratory technician’s sole possession of a substance and testing results derived from that possession are unreliable, and we will infer that the evidence in question is false, if the applicant shows that:


(1) the technician in question is a state actor, (2) the technician has committed multiple instances of intentional misconduct in another case or cases, (3) the technician is the same technician that worked on the applicant’s case, (4) the misconduct is the type of misconduct that would have affected the evidence in the applicant’s case, and (5) the technician handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct.


Once the applicant satisfies this initial burden by establishing the identified factors, the applicant has proven that the technician in question has engaged in a pattern of misconduct sufficiently egregious in other cases that the errors could have resulted in false evidence being used in the applicant’s case.


However, as part of this inquiry, it is incumbent upon the applicant to establish the extent of the pattern of misconduct the technician is accused of. If Applicant can establish the necessary predicate facts, then the burden shifts to the State to offer evidence demonstrating that the laboratory technician committed no such intentional misconduct in the applicant’s case. We realize that rebutting an applicant’s successful claim that we should infer falsity will be an onerous burden, but we believe the burden is appropriate considering the egregious nature of the actions of Salvador. We also note that the initial burden on applicants to establish an inference of falsity is also onerous, and that, although the State may not be able to rebut an inference of falsity easily, in many cases the State will readily prevail on the materiality prong of the two-part test.”


We appreciate that the court did not adopt the State’s draconian test, but we feel there should only be one test:  a judicial zero-tolerance for intentional misconduct by any State actor in a criminal case. A criminal conviction should never be allowed to stand if false, perjured evidence is used to obtain the conviction, regardless of whether there is other overwhelming evidence of guilt.