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american society of crime laboratory directors 2015 Annual SYMPOSIUM Washington, dc The Bright Side of State Oversight: Lessons from the Texas Forensic Science Commission
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american society of crime laboratory directors2015 Annual SYMPOSIUM
Washington, dc
The Bright Side of State Oversight: Lessons from the Texas Forensic Science Commission
texas forensic science commission: the essentials
• 9 Commissioners appointed by Governor—7 scientists & 2 lawyers & 2 full-time staff
• Main job is to investigate allegations of negligence and misconduct against accredited crime laboratories as well as self-disclosures by those laboratories.
• Accredited disciplines include: drug testing; toxicology; forensic biology; firearms/tool marks; questioned documents; trace evidence, including fire debris, explosives, hair, fiber, GSR, glass, paint, filaments, unknown substances.
• Plus any other discipline approved by a recognized accrediting body and the DPS Director. List has not increased so far, though this may change.
texas forensic science commission: the essentials
• For all other disciplines NOT SUBJECT to accreditation, Commission may review cases but may not make determinations regarding negligence or misconduct.
• Reports are limited to: observations regarding the integrity and reliability of the forensic analysis; best practices; other recommendations by the Commission.
• Not an enforcement agency in traditional sense—no power to levy fines, penalties or subpoena parties.
• Commission does not weigh in on guilt or innocence, and our reports are NOT admissible in civil or criminal actions.
“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”
-Abraham Lincoln
Tfsc investigations: questions to ask
1. What happened?
2. Why? Why? …and More Why?
3. What has the lab done to assess scope of the problem and self-correct?
4. What is reasonable? When is it enough?
5. Do the stakeholders have the information they need?
6. What have we learned? How can we help?
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
What Happened?
• A drug chemistry analyst was troubleshooting an issue with his GCMS while Mr. Salvador was away from the bench assisting the section supervisor.
• In the process, the analyst observed an alprazolam sample in Salvador’s sequence log at Location 18. He retrieved the vial from Location 18, but noticed it was labeled with a different case # than what was in the log.
• Analyst checked to see if the evidence that should have been at Location 18 was misplaced in another location in the tray but could not find it anywhere in the tray.
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
What Happened?
• The analyst pulled the case folder for the alprazolam that should have been in Location 18 and noticed Salvador had trouble analyzing that sample.
• The case folder for the alprazolam actually in Location 18 was complete with a positive finding and needed no further analysis.
• Salvador did not correct the issue during the review process and the analysts reported it to the supervisor. He confirmed Salvador used the spectra from the completed case to support the results in the case he struggled with.
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
Why?--Why Did this Happen?
• Salvador’s explanation: complete denial; was no-billed by grand jury.
Explanation From His Peers:
• Had multiple recent corrective actions and “could not afford another one.”
• Combination of high “error rate” (case folders returned for corrections during tech review) and low case output.
• Couldn’t bear to ask for help again.
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
Why?---Why Didn’t Anyone See this Coming?
• Salvador well-liked; did all the jobs no one wanted to do.
• No one “ever in a million years” thought he was capable of something like this.
• Red flags not acted upon; peers were vocal and forthcoming regarding concerns about his competence.
• Salvador accepted criticism and dedicated himself to re-training; management overly compassionate; relied on tech and admin review as a “safety net.”
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
Why?--What About the System Failures?
• Lack of symmetry between what supervisors really thought and what the their evaluations said about Salvador’s performance.
• Perceptions regarding lack of institutional and managerial flexibility/empowerment to discipline, hire and train employees.
• Overwhelmed staff and management with little time to strategize for succession planning and talent management.
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
What Has the Lab Done to Assess the Scope and Self-Correct?
• Referred case to Texas Rangers; clear misconduct by analyst; resignation of analyst.
• Full disclosure and cooperation with Commission’s investigation.
• Contacted all submitting law enforcement agencies and district attorneys.
• Re-tested initial sample case group—90 days (148 cases).
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
What is Reasonable? When is it Enough?
• Extended re-testing of cases to ongoing process, indefinite future.
• Periodic reports to Commission on status of re-testing.
• Random re-analysis of cases without notice to examiners.
• Re-designed evaluation process.
• Emphasis on improved talent management.
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
Do the stakeholders have the information they need?
• Close to 5,000 cases worked in 36 counties.
• Huge notification challenges, and diverse responses from prosecutors (not everyone listens to TDCAA advice).
• Notification roundtable and TCJIU meetings held to address issues with notification.
• Distribution of sample notification letters and commitments from stakeholders for future cases.
“It never hurts to keep looking for sunshine.”
--Eeyore
EXAMPLE: DRUG CHEMISTRY CASE INVOLVING ANALYST JONATHAN SALVADOR
What Have We Learned? How Can We Help?
• Push for better crime lab funding.
• Host WVU Leadership Academies (Austin, Ft. Worth, Houston).
• “Ethics and Integrity in the Crime Laboratory: a Scenario-Based Discussion.”
• Root cause analysis training.
• Upcoming hands-on forensic academies (see proposal during this week’s NCFS meeting).
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
1. Survey the scene (i.e., how many? how much?)
2. Meet with the labs to request their buy-in.
3. Find practical approach to case identification that yields solid information (e.g., sub-sampling).
4. Develop data management system for cases.
5. Assemble a diverse review team. Emphasize shared values (i.e., trust and mutual respect)
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
5. Develop review flow chart, discuss openly and listen to feedback.
6. Identify review criteria. (Questions, not errors.)
8. Once positive, probative cases with convictions identified, prioritize cases and review transcripts.
9. Analyze transcripts closely; share concerns
openly; be curious; assume the best of and from each other.
10.Notify your stakeholders according to clear process.
KIRK ODOM
Exonerated in DC, July 2012 (22 yrs.)
Pictured here with his wife, Harriet.
Was raped, contracted HIV in prison, ongoing struggle with depression.
“Our lives begin to end the day we become silent about things that matter.” --Dr. Martin Luther King, Jr.
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
Review Criteria Questions:
• Did the testimony contain a statement of identification?
• Did the testimony assign probability or statistical weight?
• Did the testimony contain any other potentially misleading statements or inferences?
Our Challenges: • How should context be taken into account?
• What words really do signal individual identification?
• Identifying true error vs. terminology progress.
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
“The chances of the hair originating from anyone other than the defendant are Slim to None…and Slim just left town….”
“The questioned hair exhibits the same microscopic characteristics as the known hair sample and, accordingly, is consistent with originating from the source of the known hairs.”--July 2000
“The hairs from the questioned (Q) source exhibit the same microscopic characteristics as the hairs in a known (K) hair sample and can be associated to the source of the known hairs.” --July 2004
meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW
To: the FBI, the Innocence Project, and NACDLFrom: Professor Karen KafadarRe: the FBI hair review and re-reviewDated: March 10, 2014
“…it seems likely to me that affirmative statements by an FBI hair examiner that imply the “uniqueness” of the association (e.g.,… …that the questioned hair is consistent with coming from the known individual) could well be misinterpreted to imply a very small probability that the two hairs did not come from the same individual – an interpretation that would be unjustified given the lack of relevant data needed to assure such probabilities.”
“It’s when we start working together that the real healing takes place…it’s when we start spilling our sweat, and not our blood.”
-David Hume
Lynn Robitaille GarciaGeneral Counsel
Texas Forensic Science Commission(512) 936-0649
