New Jersey: Latest U.S. crime lab scandals? 'Over 20,000 DWI convictions could get overturned in NJ,' PIX 11 reports...Letter to anyone arrested for drunk driving between 2008 and 2016 in Middlesex, Monmouth, Ocean, Somerset or Union counties. “This letter is to inform you there may have been an issue in the proceedings of your DWI case,” the letter states. It points to the alleged missteps of a former coordinator in the Alcohol Drug Testing Unit, State Police Sgt. Marc Dennis. He is accused of improperly calibrating the Alcotest, New Jersey’s alcohol breath test device. He allegedly skipped setting the temperature at 100 degrees. "If that temperature is off, if it is below that benchmark or higher, the simulator will emit more vapor and the reading is not gonna be accurate,” said Jonathan Marshall, a Monmouth County defense attorney..."Earlier this year, a scientist in the state’s drug lab, Kamalkant Shah, was charged with falsifying marijuana tests. He reported that he processed almost 8,000 pieces of evidence that he allegedly never tested. A Sussex County attorney, George Daggett, has sent a letter of intent to sue the state on behalf of his clients who were convicted based on evidence processed by Shah. "Unfortunately, we are seeing break downs in the internal controls,” said Marshall. "People inundated with too much work, laziness, poor judgement - just a litany of factors that come into play for people to behave in this way. But obviously you see the end result could cost the state a ton of money." A retired state supreme court appellate judge has been appointed to review all 20,000 or more of the alcohol breath test cases. A hearing is set for Nov. 28, at which he will rule on whether Dennis’ actions undermined the test results."

STORY: "Over 20,000 DWI convictions could get overturned in NJ," by reporter Christie Duffy, published by PIX 11 on October 24, 2017.

GIST: "A letter has gone out to anyone arrested for drunk driving between 2008 and 2016 in Middlesex, Monmouth, Ocean, Somerset or Union counties. “This letter is to inform you there may have been an issue in the proceedings of your DWI case,” the letter states. It points to the alleged missteps of a former coordinator in the Alcohol Drug Testing Unit, State Police Sgt. Marc Dennis. He is accused of improperly calibrating the Alcotest, New Jersey’s alcohol breath test device. He allegedly skipped setting the temperature at 100 degrees. "If that temperature is off, if it is below that benchmark or higher, the simulator will emit more vapor and the reading is not gonna be accurate,” said Jonathan Marshall, a Monmouth County defense attorney. The letter states Dennis improperly calibrated the tests in Asbury Park, Long Branch and Marlboro on Oct. 6 and 7 in 2015, and this “may call into question all the calibrations performed by Sergeant Dennis over the course of his career as a coordinator, and might possibly entitle you to future relief.” Dennis reportedly denies any of the charges against him. PIX11 left a message for his attorney on Monday. The state could face a federal class-action lawsuit. This is not the only massive evidence mishap the New Jersey is dealing with right now. Earlier this year, a scientist in the state’s drug lab, Kamalkant Shah, was charged with falsifying marijuana tests. He reported that he processed almost 8,000 pieces of evidence that he allegedly never tested. A Sussex County attorney, George Daggett, has sent a letter of intent to sue the state on behalf of his clients who were convicted based on evidence processed by Shah. "Unfortunately, we are seeing break downs in the internal controls,” said Marshall. "People inundated with too much work, laziness, poor judgement - just a litany of factors that come into play for people to behave in this way. But obviously you see the end result could cost the state a ton of money." A retired state supreme court appellate judge has been appointed to review all 20,000 or more of the alcohol breath test cases. A hearing is set for Nov. 28, at which he will rule on whether Dennis’ actions undermined the test results."

The entire story can be found at:

 http://pix11.com/2017/10/24/over-20000-dwi-convictions-could-get-overturned-in-nj/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher;

New York Crime Lab: DNA: Major Development; ProPublica persuades federal judge to make a 'source code' public..." "We asked the judge make the source code public after scientists and defense attorneys raised concerns that flaws in its design may have resulted in innocent people going to prisoning to prison."..." Judge Valerie Caproni of the Southern District of New York lifted a protective order in response to a motion by ProPublica, which argued that there was a public interest in disclosing the code. ProPublica has obtained the source code, known as the Forensic Statistical Tool, or FST, and published it on GitHub; two newly unredacted defense expert affidavits are also available. “Everybody who has been the subject of an FST report now gets to find out to what extent that was inaccurate,” said Christopher Flood, a defense lawyer who has sought access to the code for several years. “And I mean everybody — whether they pleaded guilty before trial, or whether it was presented to a jury, or whether their case was dismissed. Everybody has a right to know, and the public has a right to know.”...". Similar legal fights for access to proprietary DNA analysis software are ongoing elsewhere in the U.S. At the same time, New York City policymakers are pushing for transparency for all of the city’s decision-making algorithms, from pre-trial risk assessments, to predictive policing systems, to methods of assigning students to high schools. DNA evidence has long been a valuable tool in criminal investigations, and matching a defendant’s genetic material with a sample found on a weapon or at a crime scene has impressed many a judge and jury. But as new types of DNA analysis have emerged in recent years to interpret trace amounts or complex mixtures that used to be dismissed as hopelessly ambiguous, the techniques are coming under fire as overly ambitious and mistake-prone."..." The American Civil Liberties Union and the Electronic Frontier Foundation intervened in a case in California’s appeals court on Sept. 13 in support of a defendant’s right to review the source code behind a commercially available DNA analysis program called TrueAllele. “It’s a major credit to the court, the parties and ProPublica that the source code used in Mr. Johnson’s case will now be subject to public scrutiny,” said Brett Max Kaufmann, a staff attorney for the ACLU who is working on the California appeals case. “We urge other courts to follow this example when hearing cases involving similar types of evidence.”

STORY:"Machine bias: Federal Judge Unseals New York Crime Lab’s Software for Analyzing DNA Evidence," by Lauren Kirchner, published by ProPublica on October 20, 2017.

SUB-HEADING: "We asked the judge make the source code public after scientists and defense attorneys raised concerns that flaws in its design may have resulted in innocent people going to prisoning to prison."

SUB-HEADING: "Investigating Algorithmic Injustice."

SUB-HEADING: "New York City’s crime lab has been a pioneer nationally in analyzing especially difficult DNA samples. But the recent disclosure of the source code for its proprietary software is raising new questions about accuracy."

SUB-HEADING:  ProPublica seeks source code for New York City's disputed DNA software: We're asking a federal court for the code behind a technique that critics say may have put innocent people in prison."

GIST: "A federal judge this week unsealed the source code for a software program developed by New York City’s crime lab, exposing to public scrutiny a disputed technique for analyzing complex DNA evidence. Judge Valerie Caproni of the Southern District of New York lifted a protective order in response to a motion by ProPublica, which argued that there was a public interest in disclosing the code. ProPublica has obtained the source code, known as the Forensic Statistical Tool, or FST, and published it on GitHub; two newly unredacted defense expert affidavits are also available. “Everybody who has been the subject of an FST report now gets to find out to what extent that was inaccurate,” said Christopher Flood, a defense lawyer who has sought access to the code for several years. “And I mean everybody — whether they pleaded guilty before trial, or whether it was presented to a jury, or whether their case was dismissed. Everybody has a right to know, and the public has a right to know.” Caproni’s ruling comes amid increased complaints by scientists and lawyers that flaws in the now-discontinued software program may have sent innocent people to prison. Similar legal fights for access to proprietary DNA analysis software are ongoing elsewhere in the U.S. At the same time, New York City policymakers are pushing for transparency for all of the city’s decision-making algorithms, from pre-trial risk assessments, to predictive policing systems, to methods of assigning students to high schools. DNA evidence has long been a valuable tool in criminal investigations, and matching a defendant’s genetic material with a sample found on a weapon or at a crime scene has impressed many a judge and jury. But as new types of DNA analysis have emerged in recent years to interpret trace amounts or complex mixtures that used to be dismissed as hopelessly ambiguous, the techniques are coming under fire as overly ambitious and mistake-prone. An article ProPublica co-published with The New York Times on Sept. 4 detailed the growing doubts about the Forensic Statistical Tool, which New York City created to determine the likelihood that a given defendant’s DNA was present in a mixture of multiple people’s genetic material. According to the crime lab’s estimates, FST was used to analyze crime-scene evidence in about 1,350 cases over about 5 1/2 years. It was phased out at the beginning of this year in favor of a newer tool. A coalition of New York City defense lawyers has called for a review of all cases that may have been affected by either FST or a second disputed analysis method, called high-sensitivity DNA testing. The state inspector general, which acts as the lab’s ombudsman, has received the lawyers’ request but has not yet announced whether she will launch an investigation.The crime lab, which is part of the Office of the Chief Medical Examiner, did not oppose ProPublica’s motion, but maintains its support of its technology......... See the Source Code You can see the code for the Forensic Statistical Tool on GitHub. ProPublica’s motion, filed on Sept. 25 with the help of the Media Freedom and Information Access Clinic at Yale Law School, argued that the judge should vacate that protective order because of “the profound importance of this technology to the integrity of the criminal justice system, and the overriding public interest in transparency.” “This ruling finally enables ProPublica to gain access to the code in order to report on this matter of vital public concern,” said Hannah Bloch-Wehba, a supervising attorney in the MFIA clinic, following the judge’s order. “As law enforcement agencies increasingly rely on algorithmic tools in the criminal justice system, it is all the more important that the press and public have access to the information critical to understand what the government is doing and hold it accountable.” FST was invented by employees of the crime lab and programmed by software consultants. The lab began using it in 2011 to analyze complex mixtures of DNA left behind at crime scenes. About 50 jurisdictions as far away as Bozeman, Montana, and Floresville, Texas, also sent samples to New York City for testing. When defense attorneys challenged FST’s results in court and sought access to the program’s source code, the crime lab has previously refused, saying it was proprietary. Although almost all judges have allowed FST results as evidence in court, one state judge, Mark Dwyer of Brooklyn, ruled them inadmissible in two cases in 2014. Dwyer, now presiding in Manhattan, excluded FST evidence from two more cases this week. While prosecutors in both cases said DNA evidence analyzed with FST showed that the defendants violated gun possession laws, Dwyer said in court on Oct. 16 that his doubts about the program’s acceptance in the scientific community persist, especially since the New York lab is no longer using it, and no other lab has adopted it. New information about the development of the FST source code and some of its purported weaknesses surfaced this past July in the cases before Dwyer in an affidavit by Eugene Lien, a technical leader in the DNA lab, whom the prosecution was using as an expert. After the lab started using FST for casework in early 2011, he and his colleagues discovered a problem with the program’s math that could skew a test’s results, according to Lien. “Because of this, the FST program was taken offline and portions of the software were re-coded,” he wrote. The lab did a “performance check” of the new version before resuming casework with it in July 2011, he went on, but lab officials did not inform the state oversight commission about the change, nor did they run another full validation study on the program. The letter to the state inspector general from the group of defense lawyers cited Lien’s account, saying it contained “damning admissions” about the lab’s lack of transparency. They also theorized that the recoding Lien described could itself have led to one problem identified by Adams — the exclusion of potentially valuable data from FST’s calculations of likelihood ratios. Characterizing Adams’ criticisms as merely cosmetic rather than substantive, the lab has contended that FST calculations were reliable. Besides ongoing criminal cases in New York City involving FST, Caproni’s decision to unseal the source code may also affect another legal fight for access to a proprietary DNA software system. The American Civil Liberties Union and the Electronic Frontier Foundation intervened in a case in California’s appeals court on Sept. 13 in support of a defendant’s right to review the source code behind a commercially available DNA analysis program called TrueAllele. “It’s a major credit to the court, the parties and ProPublica that the source code used in Mr. Johnson’s case will now be subject to public scrutiny,” said Brett Max Kaufmann, a staff attorney for the ACLU who is working on the California appeals case. “We urge other courts to follow this example when hearing cases involving similar types of evidence.” Outside the courtroom, some New York City lawmakers are seeking more public review of algorithms and their impacts. On Oct. 16, the New York City Council’s Committee on Technology held a hearing about a proposed bill calling for all city agencies to publish online the source codes for algorithms that they use in decision-making. As an example of the danger of relying on algorithms, witnesses and a committee report cited ProPublica’s 2016 investigation that found racial bias in a software program used by courts to decide whether it’s safe to let defendants out on bail. “These tools seem to offer objectivity, but we must be cognizant of the fact that algorithms are simply a way of encoding assumptions, and their design can be biased, and that the very data they possess can be flawed,” the bill’s author and the committee chair, James Vacca, said at the hearing. “I have proposed this legislation not to prevent city agencies from taking advantage of cutting-edge tools, but to assure that when they do, they remain accountable to the public.” The committee heard from defense lawyers and others who support the bill as well as representatives from Mayor Bill DeBlasio’s Office of Data Analytics and the city’s Department of Information Technology and Telecommunications, which both oppose it in its current form. After the hearing, Vacca told ProPublica that he would revise the bill to address criticisms he had heard about confidentiality concerns, and also to clarify that the proposal applies to both programs developed by third-party vendors and software developed in-house by city employees. Vacca said he is determined to pass a law on this issue before the end of his term."

The entire story can be found at:

https://www.propublica.org/article/federal-judge-unseals-new-york-crime-labs-software-for-analyzing-dna-evidence     

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

State Crime lab scandal: Massachusetts: Gloucester Times: "Our view: Another failure in the state crime lab."..." "First, it was revelations about scores of faked or tainted drug tests by the state drug lab that eventually sent a chemist to jail and threw hundreds of drug convictions into question. The damage done by poor supervision, substandard management and erratic practices at the lab continues to haunt the operation and cost taxpayers dearly for court appeals. Now, a report released Monday points the finger at the state Office of Alcohol Testing, leading to the immediate firing of the head of that office and again raising questions about whether justice was served or corrupted in thousands of drunken driving cases. In fact, defense attorneys were raising questions about the state lab that certifies alcohol breath-testing equipment several years ago. And in February, Judge Robert A. Brennan ruled after a 10-day hearing in Concord District Court that the method used by the Office of Alcohol Testing to certify the machines over a two-year period “did not produce reliable” blood-alcohol readings. At the time, Brennan ruled all readings in court cases between June 2012 and September 2014 should be excluded as evidence in drunken driving cases. In August, Daniel Bennett, secretary of the state Executive Office of Public Safety, wrote to all district attorneys in the state, telling them that the lab had withheld crucial evidence about the Alcotest 9510 breath-testing instruments from prosecuting attorneys in court cases, and said he was ordering an investigation of the process used by the Office of Alcohol Testing to calibrate the devices."

 

QUOTE OF THE DAY: "After the fiasco in the drug lab, we urged tight controls of the crime lab and serious oversight by the Legislature and outside agencies. With this report about damaging practices in the Office of Alcohol Testing, that oversight takes on new urgency. Local police and prosecutors need to know the evidence they collect and bring to court is accurate and reliable. And defendants should be confident they will get a fair trial with reliable evidence that stands up to scientific scrutiny. Without that, Massachusetts residents will lose faith, and the justice system will lose credibility."

EDITORIAL: "Our view: Another failure in the state crime lab," published by The Gloucester Times on October 18, 2017.

GIST: "First, it was revelations about scores of faked or tainted drug tests by the state drug lab that eventually sent a chemist to jail and threw hundreds of drug convictions into question. The damage done by poor supervision, substandard management and erratic practices at the lab continues to haunt the operation and cost taxpayers dearly for court appeals. Now, a report released Monday points the finger at the state Office of Alcohol Testing, leading to the immediate firing of the head of that office and again raising questions about whether justice was served or corrupted in thousands of drunken driving cases. In fact, defense attorneys were raising questions about the state lab that certifies alcohol breath-testing equipment several years ago. And in February, Judge Robert A. Brennan ruled after a 10-day hearing in Concord District Court that the method used by the Office of Alcohol Testing to certify the machines over a two-year period “did not produce reliable” blood-alcohol readings. At the time, Brennan ruled all readings in court cases between June 2012 and September 2014 should be excluded as evidence in drunken driving cases. In August, Daniel Bennett, secretary of the state Executive Office of Public Safety, wrote to all district attorneys in the state, telling them that the lab had withheld crucial evidence about the Alcotest 9510 breath-testing instruments from prosecuting attorneys in court cases, and said he was ordering an investigation of the process used by the Office of Alcohol Testing to calibrate the devices. It’s that investigation that brought the firing of Melissa O’Meara, head of the Office of Alcohol Testing, on Monday. Bennett vowed to hire a retired judge to “oversee determinations relating to future discovery obligations of the Office of Alcohol Testing and the larger State Police Crime Laboratory.” Monday’s report said leadership of the office “made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded” and “inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions.” In other words, managers in the Office of Alcohol Testing didn’t give accurate information needed to prosecute cases, raising doubt about whether hundreds of criminal cases are valid. “This is going to impact every single Breathalyzer test case,” Joseph Bernard, lead counsel in the case, told the Boston Globe. “Every single breath test from 2011 to the present will be impacted by this.” It’s shocking that the crime lab is again the source of bad practices and unreliable evidence that will likely cost millions of dollars in court time and appeals, and cast suspicions over the state court system. Anyone arrested on a drunken driving charge in Massachusetts has the right to refuse a Breathalyzer test – although that refusal comes with an automatic 90-day license suspension. Given this evidence of ineptitude or malfeasance by the Office of Alcohol Testing, why wouldn’t a driver take the test, knowing that a good defense lawyer will promptly challenge the validity of the test in light of the prior bad behavior by the state lab? After the fiasco in the drug lab, we urged tight controls of the crime lab and serious oversight by the Legislature and outside agencies. With this report about damaging practices in the Office of Alcohol Testing, that oversight takes on new urgency. Local police and prosecutors need to know the evidence they collect and bring to court is accurate and reliable. And defendants should be confident they will get a fair trial with reliable evidence that stands up to scientific scrutiny. Without that, Massachusetts residents will lose faith, and the justice system will lose credibility."

The entire editorial can be found at:

http://www.gloucestertimes.com/opinion/editorials/our-view-another-failure-in-the-state-crime-lab/article_2124acba-0e9f-5b3a-a22a-52bceebbdcce.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

Larry Swearingen: Texas's DNA testing statute: Grits for Breakfast (Scott Henson) wonders why the laws Texas has passed thus far are not being applied to Larry Swearingen..."All right. Moving on. Robert Pruett was executed recently without DNA testing having been performed that his attorneys hoped could prove his innocence, while the Texas Court of Criminal Appeals once again denied Larry Swearingen's request for additional DNA testing in a capital case. Mandy, fill in the blank."..."For that matter, if there's someone on death row who is innocent of the crime of which they were convicted, that means that there's an actual killer out in the world who has gone free. There really is no prosecutorial interest in doing this and yet they do it over and over again. So I agree, it's inexplicable to me. I don't understand why we keep having these fights and I don't understand why the laws that we have passed so far are not being applied to Larry Swearingen in particular."

PODCAST:  "Reasonably suspicious podcast," October 2017, featuring Scott Henson and Amanda Marzullo, with guest appearances by Sam Sinyangwe, Kathy Mitchell, and Sukyi McMahon."

GIST: Scott (Henson) : "It lives on and we'll always wonder, I promise you. Hello, boys and girls and welcome to the October 2017 of the Reasonably Suspicious podcast covering Texas criminal justice politics and policy. I'm Scott Henson, Policy Director at Just Liberty, here today with our good friend Amanda Marzullo, whose day job is Executive Director at the Texas Defender Service.

"All right. Moving on. Robert Pruett was executed recently without DNA testing having been performed that his attorneys hoped could prove his innocence, while the Texas Court of Criminal Appeals once again denied Larry Swearingen's request for additional DNA testing in a capital case. Mandy, fill in the blank. These cases show Texas DNA testing statute is?

Mandy: Misapplied. I think that if you were to look at the text of these statutes as well as the legislative history, it's very clear that the Texas legislature intended to create a very broad right for post-conviction DNA testing. That is not what is being applied or how it is being implemented by the courts. Their first duty in looking at these statutes is to discern legislative intent and implement it. That is not what's happening here. What we've had over the years is just a series of volleys back and forth between the courts and the legislature about when DNA testing is appropriate. I think this is another instance where we might see another revision to the DNA testing statute in response to recalcitrance from the court.

Scott: Right. Well, your comment about it going back and forth gets to my answer. I would say that it is inexplicably in flux. The first DNA statute we had was passed in 2001 and it was in reaction to the Court of Criminal Appeals denying DNA testing to a man who was eventually exonerated once the DNA testing was allowed. Since that time, we have gone back and forth over and over and over where the legislature passes a law, the Court of Criminal Appeals finds what they believe is a loophole to say that somebody shouldn't get DNA testing. Then the legislature comes back and changes the law and expands it to say, "No, no, that person does get testing." Then the Court of Criminal Appeals goes back and finds some other little narrow loophole that they think says that they can deny it to somebody and the legislature comes back again and we go back and forth.

It's become, actually, remarkably easy to pass some of these DNA testing laws at the legislature because they're getting used to having to correct the Court of Criminal Appeals. It's almost becoming a habit now and I don't understand why we're still doing this in capital cases. I don't understand why the Court of Criminal Appeals can look at this entire legislative history and still think, "Oh no, we we should have executions where there's DNA evidence that was never tested." What? Really? No one thinks that.

Mandy: Yeah, no one. And also it makes you wonder what the prosecutor's interest is in opposing DNA testing in some of these cases. Either they have a conviction and a death sentence that's supported by the evidence, in which case the DNA testing is only going to confirm that, or there is a problem and there's someone on the row who may innocent and testing would exonerate that person and prevent the state from carrying out a miscarriage of justice.

Scott: For that matter, if there's someone on death row who is innocent of the crime of which they were convicted, that means that there's an actual killer out in the world who has gone free. There really is no prosecutorial interest in doing this and yet they do it over and over again. So I agree, it's inexplicable to me. I don't understand why we keep having these fights and I don't understand why the laws that we have passed so far are not being applied to Larry Swearingen in particular."

The entire post can be found at:

http://gritsforbreakfast.blogspot.ca/2017/10/reasonably-suspicious-police-unions.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

State crime lab scandal: Massachusetts; Radley Balko: His heading says it all! "Another week, another crime lab scandal." This week it's "another forensics nightmare" caused by a Massachusetts state crime lab..." In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester. The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found. “We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found. The most important word in the above excerpt is “culture.” The drug tests scandal was blamed on a single analyst, Annie Dookhan. But these sorts of things rarely happen in isolation. Now we have an entire “office” within the crime lab accused of not turning over exculpatory evidence. At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here?"

PASSAGE OF THE DAY: "Meanwhile in Texas, the state’s highest court has ordered a hearing into whether the widening crime lab scandal in Austin may have tainted DNA test results in a death-penalty case. These scandals will continue until states and cities create systems that recognize and compensate for cognitive bias, and in which the incentive structure rewards accuracy above all else."

-----------------------------------------------------

COMMENTARY: "Another week, another crime lab scandal," by Radley Balko, published  by The Washington Post on October 20, 2017. (Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He was previously a senior writer and investigative reporter at the Huffington Post. He is the author of "Rise of the Warrior Cop: The Militarization of America's Police Forces," and his work has been cited by the U.S. Supreme Court and the Mississippi Supreme Court. He also writes about the music and culture of Nashville, Tennessee, where he lives. A graduate of Indiana University, Radley has also been a senior editor at Reason magazine, a policy analyst at the Cato Institute and an opinion columnist for FoxNews.com.)

GIST: "Massachusetts, which has already seen thousands of convictions overturned due to a crime-lab analyst faking the results of drug tests, looks to be in the midst of another forensics nightmare. The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions. In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester. The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found. “We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found. The most important word in the above excerpt is “culture.” The drug tests scandal was blamed on a single analyst, Annie Dookhan. But these sorts of things rarely happen in isolation. Now we have an entire “office” within the crime lab accused of not turning over exculpatory evidence. At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here? Crime-lab analysts should be neutral. Their job performance should be evaluated based on their accuracy. Clearly, something is making at least some of these analysts think there’s a “right” and a “wrong” answer when conducting these tests. Perhaps it’s right there in the name: the Massachusetts State Police Crime Laboratory. A forensic analyst shouldn’t be considered on the same side or team as the police. Hosting these labs under the auspices of police or district attorney’s offices is a big part of the problem." If the lab was indeed withholding exculpatory test results, that almost certainly means some people were wrongly convicted of DUI. In Massachusetts, a first-time drunk-driving conviction can bring a one-year suspension of your driver’s license, possible probation and a mandatory 16-week alcohol awareness class (that you’re required to pay for), and thousands of dollars in court costs, attorney’s fees and fines. The conviction remains on your record permanently. If you had a child in the car at the time, you’re looking at 90 days to two years in prison and a one-year license suspension. And none of this accounts for the harm done to your career and reputation. A DUI conviction can be used against you in divorce and child custody cases. It can be devastating if you’re on parole or probation. Given the stakes, and what we now know about the crime lab, if you find yourself pulled over on suspicion of DUI, you might be tempted to refuse to take a breath test. Generally speaking, unless you were driving really recklessly, or there are other signs of obvious intoxication, it takes a positive breath test to get probable cause to arrest you and subject you to a blood test. But refusing the test won’t help. Massachusetts is also one of the majority of states that mandates an automatic license suspension if you refuse to take a breath test. (Unless, of course, you’re a police officer, and have been extended “professional courtesy” by your fellow officer.) Meanwhile in Texas, the state’s highest court has ordered a hearing into whether the widening crime lab scandal in Austin may have tainted DNA test results in a death-penalty case. These scandals will continue until states and cities create systems that recognize and compensate for cognitive bias, and in which the incentive structure rewards accuracy above all else."

The entire commentary can be found at:

https://www.washingtonpost.com/news/the-watch/wp/2017/10/20/another-week-another-crime-lab-scandal/?utm_term=.72bddc9680ad
  
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

Areli Escobar: Texas; Court to determine if the Austin Crime Lab botched death penalty evidence. Reporter Chuck Lindell; American-Statesman..."In a brief order issued Wednesday, the Texas Court of Criminal Appeals directed state District Judge David Wahlberg to examine claims that the crime lab produced false or misleading conclusions from DNA evidence in the case, particularly on tests performed on the shirt, jeans and shoes that tied Escobar to the murder."..."Defense lawyers also argued that problems discovered at the crime lab after Escobar’s trial — including poorly trained analysts, reports of cross-contamination of samples and questionable analytical methods — tainted the DNA results used to convict Escobar of capital murder. “Areli Escobar’s capital murder conviction rests on forensic evidence developed by incompetent scientists using bad science,” defense lawyers with the state Office of Capital and Forensic Writs said in his latest appeal."..."The appeals court also ordered Wahlberg to examine two other claims raised by Escobar’s lawyers: Whether a fingerprint examiner relied on scientifically invalid methods to link a partial bloody print, found on a lotion bottle 2 feet from Maldonado’s body, to Escobar. • Whether prosecution experts overstated the significance of cellphone activity — said to put Escobar in the vicinity of Maldonado’s apartment when she was killed — based on calls and texts routed through nearby cell towers."

STORY: "Court: Examine if Austin crime lab botched death penalty evidence," by reporter Chuck Lindell, published by The American-Statesman on October 18, 2017.

PHOTO CAPTION: Death row inmate Areli Escobar, shown during a November 2014 hearing in Austin, is seeking to overturn his murder conviction. 

HIGHLIGHTS: "State’s highest criminal court orders examination of questions raised about DNA evidence in Austin murder. Areli Escobar was sentenced to die for the 2009 stabbing death of his neighbor, Bianca Maldonado, 17.

GIST:  "The state’s highest criminal court on Wednesday ordered a closer examination of death row inmate Areli Escobar’s claims that shoddy work by the Austin police crime lab compromised evidence in his case. Escobar is seeking to have his conviction overturned, and a new trial ordered, after a Travis County jury sentenced him to death in the 2009 sexual assault and stabbing of his neighbor, 17-year-old Bianca Maldonado, an LBJ High School student who was attacked at her East Austin apartment with her year-old son, who survived, nearby. In a brief order issued Wednesday, the Texas Court of Criminal Appeals directed state District Judge David Wahlberg to examine claims that the crime lab produced false or misleading conclusions from DNA evidence in the case, particularly on tests performed on the shirt, jeans and shoes that tied Escobar to the murder. Defense lawyers also argued that problems discovered at the crime lab after Escobar’s trial — including poorly trained analysts, reports of cross-contamination of samples and questionable analytical methods — tainted the DNA results used to convict Escobar of capital murder. “Areli Escobar’s capital murder conviction rests on forensic evidence developed by incompetent scientists using bad science,” defense lawyers with the state Office of Capital and Forensic Writs said in his latest appeal. Austin police officials closed the DNA portion of the crime lab in June 2016 after an audit by the Texas Forensic Science Commission, a state agency that includes leading forensic scientists, found that some staff members were not properly trained and that incorrect methods had been used to examine DNA samples. “In light of these developments, a comprehensive, independent review of … Mr. Escobar’s case is critical,” defense lawyers told the Court of Criminal Appeals. The appeals court also ordered Wahlberg to examine two other claims raised by Escobar’s lawyers:  Whether a fingerprint examiner relied on scientifically invalid methods to link a partial bloody print, found on a lotion bottle 2 feet from Maldonado’s body, to Escobar. • Whether prosecution experts overstated the significance of cellphone activity — said to put Escobar in the vicinity of Maldonado’s apartment when she was killed — based on calls and texts routed through nearby cell towers. The case next returns to Wahlberg’s court, where Travis County prosecutors will have a chance to respond to the claims raised by defense lawyers. Wahlberg can order hearings and briefings to help him form a recommendation on whether he believes the Court of Criminal Appeals should toss out Escobar’s conviction and order a new trial. There is no deadline for the judge to issue his findings or for the appeals court to issue its ruling. During Escobar’s 2011 trial, prosecutors argued that DNA evidence established his guilt after tests found Maldonado’s blood on his shoes and shirt. In addition, blood on the inside of the victim’s door was linked to Escobar, while tests on blood found in Escobar’s car could not exclude the victim as the source, prosecutors told the jury. However, tests performed last year on the same evidence were less certain — finding, for example, that the blood on the door could not be interpreted without additional testing, or the samples on the shirt and shoes were inadequate for comparison techniques, defense lawyers said. “In stark contrast to what the jury heard, the (new testing) demonstrates that the results for these items are inconclusive and do not connect Mr. Escobar to the crime,” the lawyers said. In addition, the lawyers argued that Escobar, 38, deserves a new trial based on recent information detailing “gross incompetence and negligence at the APD lab.” Documents showed 11 “contamination incidents” of samples at the lab between 2005 and Escobar’s 2011 trial, they said, including seven by the analyst who tested items in the Maldonado case and three by the forensic scientist who screened evidence for the presence of DNA. When combined with the forensic science commission’s criticism of the lab’s training and practices, the information raises significant doubts about Escobar’s conviction, they told the appeals court. “The widespread problems at the lab … call into question all of the DNA evidence in Mr. Escobar’s case,” the lawyers said."

The entire story can be found at:

http://www.mystatesman.com/news/court-examine-austin-crime-lab-botched-death-penalty-evidence/J6UzQpz2uxmzYYLPEJzVAJ/
 
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;

---

Larry Swearingen; Anthony Shore: Texas: "Texas inmate Larry Swearingen, who has been sitting on death row for 17 years, may have been plotting to avoid his date with the execution chamber in November by having a serial murderer take the fall for his crime, according to a county prosecutor. But an attorney for Swearingen denies such a plot exists with a second death-row inmate, Anthony Shore, and Shore has not tried to take the rap for Swearingen's convictions. The attorney said over the weekend that the county prosecution's collusion accusation is false and part of a series of blunders in a faulty prosecution."..."District Attorney Brett Ligon said in the letter his office had evidence that Shore would take blame for the Trotter murder and falsely claim responsibility. "We remain absolutely certain of Swearingen's guilt of Melissa Trotter's murder," Ligon said. On the day of Shore's execution, however, no such claim had been made and his court-appointed attorney said the allegations of a scheme to confess to the Trotter murder were unfounded."..."Lawyers for Swearingen for years have said he is innocent and that they have experts who can show he could not have taken part in the murder. The lawyers have argued there were serious flaws in his prosecution and no physical evidence tying him to the murder. James Rytting, an attorney for Swearingen, said there was no collusion with Shore and dismissed the allegation from prosecutors. "As far as I am concerned, they have bamboozled their way through this," Rytting said in a telephone interview."

PASSAGE OF THE DAY: "Swearingen for years have said he is innocent and that they have experts who can show he could not have taken part in the murder. The lawyers have argued there were serious flaws in his prosecution and no physical evidence tying him to the murder. James Rytting, an attorney for Swearingen, said there was no collusion with Shore and dismissed the allegation from prosecutors. "As far as I am concerned, they have bamboozled their way through this," Rytting said in a telephone interview."

-----------------------------------------------------------------------

STORY: "Strange twist in Texas murder case surfaces on death row, delaying execution," by reporter Jon Herskovitz,  published by WHTC on October 22, 2017.

GIST: "Texas inmate Larry Swearingen, who has been sitting on death row for 17 years, may have been plotting to avoid his date with the execution chamber in November by having a serial murderer take the fall for his crime, according to a county prosecutor. But an attorney for Swearingen denies such a plot exists with a second death-row inmate, Anthony Shore, and Shore has not tried to take the rap for Swearingen's convictions. The attorney said over the weekend that the county prosecution's collusion accusation is false and part of a series of blunders in a faulty prosecution. For Shore, with five murder convictions, admitting to one more killing would not change his death sentence. But for Swearingen, such a confession could spare his life. The questions about a confession led a state court to call for the postponement of Shore's planned Oct. 18 execution a few hours before his scheduled lethal injection until authorities can determine the facts. Swearingen was convicted of raping and strangling Melissa Trotter, a 19-year-old college student, with pantyhose in 1998 in an area north of Houston in a crime similar to murders that Shore has been convicted of committing. Shore has never said that he killed Trotter, which could take Swearingen off the hook. But the Montgomery County District Attorney's office said it believes the two death row inmates are perpetrating a fraud upon the criminal justice system. Dubbed the "tourniquet killer," Shore was known for using tourniquets to torture and strangle five girls and young women in the Houston area in the 1980s and 1990s. A folder containing information about the murder for which Swearingen had been convicted was found in Shore's cell in July, prosecutors said. It contained court crime scene photographs of the Trotter murder, court exhibits and a hand-drawn map where Trotter's body was found, prosecutors in Montgomery County, north of Houston, told Texas Governor Greg Abbott in an Oct. 16 letter. District Attorney Brett Ligon said in the letter his office had evidence that Shore would take blame for the Trotter murder and falsely claim responsibility. "We remain absolutely certain of Swearingen's guilt of Melissa Trotter's murder," Ligon said. On the day of Shore's execution, however, no such claim had been made and his court-appointed attorney said the allegations of a scheme to confess to the Trotter murder were unfounded. "Mr. Shore was not responsible in any shape or form with the Melissa Trotter homicide and any documents found in his jail cell related to the homicide were either given to him by Mr. Swearingen or openly attainable through public sources," K. Knox Nunnally said in a telephone interview. The Texas Department of Criminal Justice, which is investigating the case, said death row inmates are in single cells and do not have physical interaction. But they can talk to each other from their cells or when they are in recreation areas near one another. Lawyers for Swearingen for years have said he is innocent and that they have experts who can show he could not have taken part in the murder. The lawyers have argued there were serious flaws in his prosecution and no physical evidence tying him to the murder. James Rytting, an attorney for Swearingen, said there was no collusion with Shore and dismissed the allegation from prosecutors. "As far as I am concerned, they have bamboozled their way through this," Rytting said in a telephone interview."

The entire story can be found at:

http://whtc.com/news/articles/2017/oct/22/strange-twist-in-texas-murder-case-surfaces-on-death-row-delaying-execution/

 PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;