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"Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008). But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009; http://www.t-mlaw.com/blog/post/the-elephant-in-the-crime-lab/
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STORY: "Making Crime Pay and Pay and Pay… In Texas, paying for cops, courts and prosecutors with fees from defendants has become more and more popular. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor?," by reporter Patrick Michaels, published by The Texas Observer. (Staff writer Patrick Michaels covers school reform and crime for the Observer.)
PHOTO CAPTION: "Salas was told to pay a $1,000 “donation” to the Brown County Attorney’s Office nine months after charges against her were dropped."
PHOTO CAPTION: "Since 2007, County Attorney Shane Britton has made costly “donations” to his office a regular feature of deals with defendants to avoid charges."
PHOTO CAPTION: "In his quest to keep Brown County government transparent, Joe Cooksey believes he unearthed evidence of questionable payments to the county attorney’s office."
PHOTO CAPTION: "After years of hands-off management, officials in the Brown County Courthouse have recently become suspicious of County Attorney Shane Britton’s “donation” fund."
GIST: "A little after 1 a.m. on a Sunday in March 2012, Charley Salas was driving some friends home after a night out in Brownwood, a rural town midway between Austin and Abilene. Five months pregnant, Salas was the designated driver. Earlier that night, a friend had spilled beer in the backseat, so when a cop pulled her over for making a wide right turn, the smell made him immediately suspicious. He checked her ID and discovered Salas was driving with an invalid license. Though Salas pleaded that she didn’t know, she was handcuffed and taken to jail, where she spent the night. At her court date in June, she faced either more jail time or a $2,000 penalty. As a 26-year-old single mother, Salas couldn’t afford either. But Brown County Attorney Shane Britton made her an offer: Salas could avoid the charge and go home that day if she took a “pretrial diversion,” a deal similar to probation except that the terms are dictated by a prosecutor, not a judge. Salas would have to avoid alcohol, drugs and “persons or places of disreputable or harmful character” for the next year, and pay monthly fees to the Brown County Court at Law, the Texas Department of Public Safety and to Britton’s office. Those fees added up to nearly $1,400, or about $116 a month. Salas had no idea how she’d pay, but she took the deal rather than risk a conviction, which would come with more state surcharges. “It seemed a lot cheaper to do so,” she said recently. “I didn’t have the money. I had to hurry up and go to work. I was like, ‘OK, probation period. Sign me up, let’s do it.’” Salas says she made her first payment, then began asking for extensions. She paid when she could, but then she lost her job and missed a lot more payments. She’d get letters reminding her to pay, and when she could, she’d drive to the courthouse with separate money orders for each of her fees. When she missed more than three months in a row, Salas says a woman in Britton’s office added late fees that weren’t mentioned in her agreement. At one point, Salas says, she took out a payday loan so she could afford her payments to the court. Around Christmas 2014, Britton’s office sent a letter demanding $1,000, and Salas asked for one last extension. In February 2015 — almost three years after her fateful right turn — she stood at the counter at his office and handed over two money orders, one for $600 and one for $400. About a year later, Salas got a call from a man named Joe Cooksey, who explained that he was investigating suspicious payments to Britton’s office. Her case had caught his eye. Salas didn’t know how much she’d paid over the years, but Cooksey found records showing at least her last $1,000 were deposited in two accounts designated for donations to Britton’s office. What’s more, Salas had made the payment nine months after her case had been dismissed. And there were others who had apparently been pressured into “donating” money to Britton’s office. Salas was stunned. Hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar. Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff. In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor? Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes......... Such a willingness to treat defendants as ATMs has become the norm since the 1990s, when lawmakers discovered their tough-on-crime policies cost more than they were willing to pay. In response, Texas and other states hiked the fees that local courts could charge defendants and encouraged counties to get creative in balancing their budgets with less help from the state. Soon Britton’s donation fund was taking in tens of thousands a year. But the fund benefited little from “grant writing” or “criminal justice-minded nonprofit institutions,” and almost entirely from misdemeanor defendants. Here’s how it worked......... I meet with Britton later that day in his conference room, which is lined with green bound books of case law. He explains that using the word “donation” was a mistake; the whole mess could have been avoided by simply calling it a fee. “I have no earthly idea where the word ‘donation’ came from,” he tells me, guessing it was either the Legislature or Locker’s idea. (Locker, now an assistant U.S. Attorney in Texarkana, declined an interview request.) “People that get their feathers ruffled about that program and those statutes — if it was any word in the dictionary other than the word ‘donation,’ I don’t think that they’d get upset about it.” Britton tells me his program was meant to reduce costs for poor Texans, given all the fees that come with a conviction. He points out that the Department of Public Safety’s Driver Responsibility Program demands that drivers with a DWI conviction pay $3,000 or more just to keep their license. “Prosecutors are kind of stuck in this quandary,” Britton says, “where poor people, college students, working-class folks, get these offenses and there’s really no creative way to punish them while, at the same time, not doing something to them that’s going to hurt them.”........ “Too much of our criminal justice system is funded by fees and costs assessed to the defendant,” says Mary Schmid Mergler, who directs criminal justice reform efforts at the advocacy group Texas Appleseed. “Many people just do not have the money to pay the fines and fees, and do not have a way to come up with that money. And it’s not because they’ve done anything wrong, it’s just because of where they are at that moment.” Despite the cautionary rulings from the attorney general’s office, lawmakers have actually been giving more prosecutors the right to collect donations. In January, prosecutors in eight counties will have the same gift-collecting authority that Britton does. None of these prosecutors were certain why; they told me it wasn’t something they’d asked for, nor did they plan to start taking gifts. “I could see situations where it would be helpful,” Guadalupe County Attorney Dave Willborn said, “but taking money from defendants is a different story. That’s just walking where I’d fear to tread.” In practice, the difference between a fee and a bribe can depend a lot on context. “Sometimes there can be an appearance of unethical behavior any time funds are exchanged contingent on the outcome of a criminal case,” explains Texas District and County Attorneys Association spokesperson Shannon Edmonds. Good judgment over who goes to trial and who gets a deal is part of a prosecutor’s job description. And sometimes it’s a power they abuse: In 2014, prosecutors in both El Paso County and Cameron County were sentenced to federal prison for taking bribes in exchange for pretrial diversion agreements. That same year, some Brown County law enforcement officials began questioning Britton’s motives as well......... An FBI spokesperson declined to comment, as did Texas Ranger Jason Shea. “The Texas Rangers are not a lead investigator in that deal,” he said, and suggested contacting the FBI."
