Continued Scandals in Houston, Harris County Criminal Justice System Beg for Independent Regional Crime Lab
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The “crime lab” for the Houston Police Department (HPD) has become a hotbed of flawed forensic evidence. Earlier this year we blogged about a Houston Chronicle report that taxpayers would have to pick up an $80,000 bill to a Science Laboratory and Training Centre contracted by the city to clear up a backlog of 300 firearms forensic cases in the HPD crime lab. Just weeks earlier we had blogged about yet another Chronicle report that found taxpayers would have to foot a $3 million bill to Ron Smith & Associates, a Mississippi-based consultant firm, for its consultants re-examine some 4,300 fingerprint cases processed by the HPD crime lab between 2004 and 2009, including significant number of violent cases, because the crime lab’s initial examinations were flawed. More recently the Chronicle reported that while the costly re-examination of the fingerprint cases for that five-year period did not reveal any wrongly identified suspects, Ron Smith consultants did find that HPD crime lab analysts had made “technical errors” in 62 percent of the cases it had examined. And the price tag to Ron Smith may now even go higher. The City Council is debating whether to give HPD an additional $2.3 million to keep the outside consultants operating in the crime lab’s troubled fingerprint unit during the next fiscal year.
And the costs of the flawed fingerprint forensics could even go higher than the coming year’s fiscal projections. The Chronicle found a 1996 capital murder investigation case in which a suspect was wrongly incarcerated because of a misidentification by the crime lab’s fingerprint unit. The fingerprint analyst who made the wrong identification was issued a “written reprimand” the following year. The newspaper reported that the analyst eventually retired in 1998 after receiving yet another written reprimand for destroying “the original notes instead of keeping them as required during the examination or re-examination of fingerprint evidence.”
Tim Oettmeier, Executive Assistant of the HPD and who oversees the department’s fingerprint unit, told the Chronicle he was “unaware” of the 1996 case and would have to gather more information about it before “deciding whether to extend the review of fingerprint cases to the 1990s.” Oettmeier could not provide the newspaper with any reason as to why he was not aware of the 1996 case.
Attorney Bob Wicoff, a forensic expert who has handled many of the wrongly accused cases involving the HPD crime, said revelations about 1996 case were “alarming—it’s a pretty scary scenario.” Wicoff, who is also a member of the HPD’s crime lab review panel, added the following concern: “I think it might be a good idea for HPD to undertake a review of all the convictions touch by these fingerprint people to see if these convictions were compromised.”
City Council member and attorney Jolanda Jones agreed but went a step further, telling the Chronicle: “I believe we should go back and retest, but I don’t think they (HPD) should be in charge over who retests. It’s like letting the fox guard the henhouse.”
Houston Mayor Annise Parker and her newly-appointed HPD Chief Charles McClelland were conspicuously quiet about the latest HPD crime lab “forensic scandal.”
Law enforcement crime lab scandals are not a new phenomenon. Investigative reporters John F. Kelly and Phillip K. Wearne published a book in 2002 titled Tainting Evidence: Inside The Scandals at the FBI Crime Lab (Free Press, Jan. 15, 2002). The reporters defined “forensic evidence” as “the means of making physical evidence proof…, the application of science to legal processes, the application of science to crime-fighting. Together or apart the words ‘forensic’ and ‘scientific’ are today commonly used as everyday adjectives that imply definitive, detailed and comprehensive argued. It is an image burnished by popular television detective series …and the coverage of cases by CourtTV, an image epitomized by the source of the country’s most famous forensic science, the FBI’s crime lab.”
Against the backdrop of that illustrative definition, why then do we see so many “forensic evidence” scandals in law enforcement crime labs like HPD’s? Kelly and Wearne offered the best possible explanation that is still applicable today: They pointed out that forensic scientists are not “independent experts” as is commonly believe. 80 percent of the forensic scientists in North America are affiliated with either police or prosecution agencies. Most work in police crime labs and are actually policemen themselves. “The potential conflict of loyalties and interests is obvious,” the investigative reporters observed. “Scientists are expected to retain a critical sense to follow nothing but reason, to maintain an open mind. We expect the results, the science to bear witness in court unencumbered by any other considerations. Complete impartiality may be an aspirational [sic] ideal but what chance is there of coming anywhere near this ideal if the police or FBI pays your wages?”
Even aware of these obvious “conflicts of interest” in the forensic science field, too many judges and prosecutors take for granted, after perfunctory qualifying procedures, that these kinds of “experts” should be allowed to testify in criminal trials because at a minimum they understand the basic precepts of their respective fields of expertise. Nothing could be farther from the truth. As Kelly and Wearne discovered, many of these experts, even those from the prestigious “FBI crime lab,” know very little about their own field of expertise. “Court records throughout the country are littered with examples,” the reporters wrote. “In a recent aggravated assault and burglary trial in Montana, FBI fingerprint expert Michael Wieners asserted that a fingerprint experiment he had done was ‘scientific’ but not ‘completely scientific.’ It was not surprising he could not tell the difference. Challenged about his familiarity with peer-reviewed literature on fingerprints, Weiners replied: ‘Peer reviewed? Could you explain that?’”
Mayor Parker and Chief McClelland need to join forces with Harris County District Attorney Pat Lykos who states she is trying to establish an independent “regional crime lab” to process all DNA evidence gathered by HPD and the Harris County Sheriff’s Department. Currently the Harris County Institute of Forensic Sciences houses the crime lab used by the Sheriff’s Department to process its DNA evidence. This past May Lykos told Adela Uchida with Houston’s ABC affiliate KTRK that: “The city of Houston has certainly upgraded their crime lab, but again, their choice is: do you put officers on the ground to patrol or do you invest money in the crime lab?”
Lykos in effect told KTRK that HPD should do the latter because its crime lab lacks the ability to conduct Touch DNA exams, a process that identifies DNA from skin cells, and can handle only 50 of the 120 DNA cases it receives each month. A new “regional crime lab” would have a start-up cost of $1.3 million and rent cost to the city of about $500,000 a year. Such a lab would more than pay for itself. The city will ultimately have to pay $5.2 million to Ron Smith & Associates by the time the company completes its work that could not be properly handled by the HPD crime lab.
“We need to have an independent crime lab, that’s what the forensic scientific center is,” Lykos told KTRK.
The HPD, through Oettmeir, issued a “statement” to KTRK: “HPD is currently working to determine what type of working relationship we can have with the Harris County Institute of Forensics Sciences on how to best process DNA evidence. At this time, both sides are discussing the future project.”
KTRK said it contacted the Mayor’s Office but all the television station got was a staff relayed message that Parker has previously supported the concept of a regional crime lab.
The Mayor and HPD’s reaction to Lykos” proposed independent regional crime lab was so muted as to not offer must hope. It’s time for the Mayor and HPD to move beyond the “concept” and “discussion” stages about a regional crime lab. The time to act passed six “scandals” ago. The Harris County criminal justice system cannot be expected to continue to absorb HPD crime lab scandals. They are undermining the very integrity of our local criminal justice process. We are “scandaled out”—we’ve seen enough ballistic, fingerprint, serology, and evidence tampering scandals emanating from HPD crime lab to last three generations.
Dr. James Starrs is professor of law and forensics at George Washington University in Washington, D.C. As far back as 1971 he began to articulate and advocate a core set of ethics for forensic scientists. On personal conduct, Starrs suggested (as reported by Kelly and Wearne):
- No consideration or persona should dissuade the forensic scientist from a full and fair investigation of the facts on which opinion is formulated.
- The forensic scientist should maintain an attitude of independence, impartiality, and calm objectivity to avoid personal or professional involvement in the proceedings.
- A forensic scientist should not tender testimony that is not within his/her competence as an expert, or conclusions or opinions within the competence of the jury, acting as laymen.
On professional conduct, Starrs suggested:
- Utmost care in the treatment of any samples or item of potential evidentiary value to avoid tampering, adulteration, loss, or other change of original state.
- Full and complete disclosure of the entire case in a comprehensive and well-documented report to include facts and opinions indicative of the accused’s innocence and the shortcomings of his/her opinion that might invalidate it.
- Forensic scientists should testify to the procedures undertaken and the results disclosed only when opinions can be stated in terms of reasonable scientific certainty.
- That unless there are special circumstances of possible intimidation or falsification of evidence, a forensic scientist for the prosecution should permit the defense to interview him/her before the trial, an obligation that should not be contingent on the approval of the prosecutor.
These core ethical tenets have been incorporated in ethics code by forensic scientists associations such as the Northwest Association of Forensic Scientists. Had these ethical tenets been adopted, and practiced, by the HPD crime lab over the last two decades, the agency would not have experienced kinds of scandals it has endured because of flawed, and even criminal, evidence testing. To be fair, we must point out that this “forensic science” problem by no means has been endemic to the HPD crime lab. As far back as between 1974 and 1977, Kelly and Wearne said the Forensic Science Foundation examined the testing procedures of than 200 forensic labs in this country using 21 proficiency tests that covered a wide range of evidence analysis.
The Foundation found that 71 percent of the labs reported faulty results in blood tests, 51.4 percent had error in matching paint samples, and 68 percent failed hair tests. Some of the lads had significant failures in two mainstays of forensic science work: soil samples (35.5 percent) and firearms identifications (28.2 percent). Kelly and Wearne said these alarming failure results were caused by careless or untrained examiners misinterpreting tests results, use of inadequate databases, and faulty test procedures—all of which have underscored the consistent problem at the HPD crime lab.
As we prepared to post this blog, the Houston Chronicle reported that four years after the HPD became aware of the many serious problems in its fingerprint lab, the lab itself remains in “disarray” with counter tops rotting, faulty equipment does not work, and chemicals routinely leak out of their packets. In response to an “open records” request, the HPD furnished the Chronicle with documents that disclosed its commanders have let the problems “fester over the past decade.” As the Chronicle reported:
“In the last ten years, communication broke down between supervisors and ground level employees. Meanwhile, command staff failed to give employees adequate training, didn’t keep pace with technological advances and allowed the lab to physically deteriorate, according to audit reports.”
These systemic problems will not go away. The HPD is obviously incapable of reliable evidence management and testing. That’s why we wholeheartedly endorse the recent call in a Chronicle “guest column” by Patrick E. McCann, former president of the Harris County Criminal Lawyers Association, that law enforcement officers be removed from “forensic duties” and the task assigned to scientists. In his op-ed piece, McCann made this damning observation about the HPD crime lab:
“We have been subjected to a decade of unfolding scandals, on everything from DNA, to toxicology, to firearms, to outright falsification of lab results, to failure to even review evidence in capital and other serious cases. Now we discover that their fingerprint ‘identification’ section is not only unworthy of the name, but should be renamed the ‘mis-identification’ section, because their techs are unable to get it right even on a murder case where someone’s life could literally be at stake. Do get me wrong—the other labs run by law enforcement have all had their share of problems. The Department of Public Safety regional system was rocked by its own scandal a few years ago, and it now plagued by tremendous backlogs that result in justice being denied for the innocent and needlessly delayed for the guilty. The DPS actually hired a terminated DNA supervisor whom even DPS found was unsuitable after it was revealed she helped technicians ‘excel’ on their proficiency exams. In some of the surrounding counties, questionable dog-scent evidence is being used to convict people, and some of these defendants are now suing the counties that held them based upon this type of junk science [a subjected matter we blogged about here]. These mistakes cost the taxpayers millions in case reviews, and retesting and lawyer fees for cases that should have been done right the first time. They have also resulted in grave injustice and false imprisonment, as HPD’s own internal disciplinary records have shown.”
This kind of evidence compels us to call upon the Mayor’s office, the District Attorney’s Office, and the two main law enforcement agencies in this county to unify in a concerted political effort to do whatever is necessary to establish an independent regional crime lab run by forensic scientists and not law enforcement officers. The Harris County criminal justice system has had its fill of “crime lab scandals.” Unfortunately, none of our elected leadership seem to have either the moral courage or political fortitude to do anything about it, except talk.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair