THE CRUEL REALITY OF CRIMINAL EVIDENCE: ITS JUST

NOT THAT RELIABLE

EVIDENCE IN CRIMINAL CASES CANNOT BE BLINDLY TRUSTED: TEXAS CRIMINAL EVIDENCE ISNT
LIKE IT IS ON TV
Written by: Michael Lowe, Esq. on 02-01-2014
On television, an amazing number of cop shows succeed in drawing large audiences: series and
spin-offs where handsome men and beautiful women work hard in scientific labs to produce
iron-clad evidence that convicts the bad guy. They rival the popularity of courtroom dramas
where dedicated district attorneys battle the odds to put evildoers behind bars. Often, youll
see the criminal defense lawyer portrayed as absent, incompetent, or unethical.
Its all great entertainment, but its not reality.
Here in Texas, theres lots of real-life drama in our criminal courtrooms, because right now
Justice is endangered. Why? Unlike television fiction, the reality in Texas is that evidence used
in criminal prosecutions is often unreliable and in some shocking instances, either faked or
hidden by the very prosecutors who are sworn to honor the system and pursue justice.
All too often, evidence offered up to charge or convict people in Texas is simply untrustworthy
and not deserving of any assumption of reliability. As most experienced Texas criminal defense
lawyers know, evidence used to meet the burden of proof in a criminal case can be faked,
hidden, missing, or tainted.
Todays reality is that evidence collected at a crime scene by law enforcement doesnt
guarantee reliability or accuracy in criminal defense trials.
DNA EVIDENCE CAN BE FAKED
Few realize that DNA evidence can be fabricated. However, its a scientific reality that DNA can
be located on a database and then replicated in a lab.
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Recently, fake DNA evidence was not only proven, but demonstrated, in an Israeli study where
scientists in Tel Aviv not only (1) created brand new samples of both blood and saliva that had
the same DNA as Person B, while they got their original blood and spit samples from Person A;
they also (2) showed how they could look up someones DNA profile in a database, and using
that info they could then create a DNA sample of that exact same DNA, while never having any
real, human tissue from the person whose DNA profile they had obtained from the database.
FINGERPRINT EVIDENCE CANNOT BE TRUSTED
In 2009, the Houston Police Department was investigated for incompetency in its fingerprinting
comparison unit, with one employee being investigated for misconduct involving how a piece of
evidence was handled. The investigation began after questions were raised and an audit
revealed over 50% of the randomly selected cases where HPD fingerprint analysis was involved
had problems.
Houston Mayor Bill White announced that criminals may have gone free because of fingerprint
errors within the HPD fingerprint lab; however, no one was pointing out at the time that the
fingerprint unit may have overlooked fingerprints or wrongfully analyzed fingerprint evidence
that resulted in wrongful convictions.
As part of this investigation into the Houston Police Department fingerprint analysis
department, the Houston Chronicle interviewed a fingerprint evidence expert at the
University of California at Los Angeles law school, who shared:
1. Fingerprint analysis has few national standards to be used by all forensic labs, which means
that one lab may conclude one result and another lab might look at the same fingerprint and
reach a different result.
2. Strangers can have almost identical fingerprints. It is a fallacy that every individual has a truly
unique fingerprint, and there is not enough research done at present to determine exactly how
similar the fingerprints of two strangers can be.
3. Fingerprint labs are not the same as other kinds of scientific laboratories and do not need to
have the same accreditation. Only a handful of Texas fingerprint labs have been certified (as
ASCLD-LAB).
HOUSTON DPS CRIME LAB ANALYST TRADING OUT LAB RESULTS PUTS
1000S OF CONVICTIONS INTO QUESTION
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One man working in one crime lab can cause tremendous damage. This has been proven in the
example of a single crime lab analyst named Jonathan Salvador, who worked for the Texas
Department of Public Safety crime laboratory in Harris County. His work has been investigated
and findings about the harm that Salvador has brought to the entire Texas criminal justice
system was delineated in an official report from the Texas Forensic Science Commission with
contributions from the Texas Rangers and the Office of the Inspector General.
There, crime lab analyst Jonathan Salvadors forensic lab results, which were used as evidence
in lots and lots of criminal trials, were deemed unreliable and flawed, putting thousands (1000s)
of convictions into question. Now, the Texas Court of Criminal Appeals is dealing with the
aftermath of this forensic fiasco, with convictions being overturned because of files showing
that Salvadors forensic crime lab results were part of the prosecutions case, resulting in a due
process violation (see, e.g., Ex Parte Junius Sereal.)
What is the problem with Jonathan Salvadors lab results? By the time that he was suspended
as a state forensic scientist in February 2012, Salvador had worked on 4900 different drug cases
in 30 different Texas counties. It was discovered that Salvador had replaced the results of one
test with another, unrelated lab test in one criminal case. This brought all his other work (the
other 4899 cases) into question and while he was investigated by a Harris County Grand Jury,
Salvador was not indicted.
PROSECUTORS AND DISTRICT ATTORNEYS HIDING EVIDENCE OR
INTRODUCING FALSE EVIDENCE TO WIN THEIR CASE
The exoneration of Michael Morton here in Texas has made the national news for a while now,
as Mr. Morton has become a national voice warning about the real dangers of prosecutorial
misconduct in Texas and elsewhere.
Morton served many years in a Texas prison for the murder of his wife and mother of his young
son before he was freed. Key evidence in Mortons case was kept back from the defense team,
and this was done intentionally by District Attorney Ken Anderson (who would later spend
several years on the bench as a state district judge).
Eventually, former prosecutor Ken Anderson was found guilty of wrongdoing by an official
Court of Inquiry after Morton was freed due to the zealous efforts of his defense lawyer.
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Image: State Senator Rodney Ellis, Michael Morton, staff, and supporters after Senate passage
of the Michael Morton Act, April 2013
However, Mr. Morton is far from the only victim of prosecutorial misconduct in Texas. Another
recent example is the November 2012 release of Kenneth Wayne Boyd, Jr., by the Texas Court
of Criminal Appeals after he was convicted of a triple homicide back in 1999. Boyd, like Morton,
maintained his innocence but he was freed only after it came to light that the prosecutor,
Karren Price, hid evidence that would have cleared him at his trial. Price has been found to have
withheld material, exculpatory evidence from the defense including (1) reports that another
person was really guilty of the murders; (2) letters sent by witnesses taking back their stories;
and (3) a failed polygraph test that implicated someone else for the three homicides.
Additionally, Shelby County District Court Judge Charles Mitchell in his exoneration order ruled
that this prosecutor intentionally introduced false evidence in Boyds trial as well as keeping
things from the defense (suppressing evidence). Judge Mitchell heard the case after the new
Shelby County District Attorney, Ken Florence, reopened the case after Boyds lawyer filed an
appeal, and the Texas Court of Criminal Appeals freed Boyd after a Petition for Writ of Habeas
Corpus based upon prosecutorial misconduct by Shelby County District Attorney Karren Price
was filed on his behalf.
OFFICE-WIDE SUPPRESSION OF EVIDENCE KNOWN TO BE UNRELIABLE
USED TO CONVICT DEFENDANTS IN TEXAS
In a criminal case, the prosecutor who is lead counsel in the courtroom where the case is being
tried makes the decisions on what evidence comes in and goes out; a rogue district attorney
doesnt mean that the entire District Attorneys Office (which can be a handful of prosecutors
or dozens of assistant district attorneys, depending upon the size of the community served) is
at fault.
However, all too often many people purportedly on the side of justice are aware or suspect that
evidence is flawed or faulty and fail to speak up. A recent example of this happened in Houston,
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where the Harris County District Attorneys Office faced a Grand Jury Investigation into how
much was known about the inaccuracy of laboratory tests being done for drunk driving by
traveling labs or BAT Vans.
BAT Vans were being used in Houston as part of a local campaign against drunk drivers, where
roaming mobile breath test labs that resembled recreational vehicles (RVs) were set up as
laboratories with seats for medical technicians, cops, or nurses and lab equipment to perform
drunk driving tests on the road. These RV labs are being used by law enforcement all over the
country to crack down on drunk driving even though they have a reputation for conducting
tests that can be flat out wrong. Apparently, these vans themselves can mess with the test
results due to electrical issues, mechanical problems, temperature changes, and other
problems.
Not long ago, three technical supervisors in the Houston Police Department Crime Lab quit their
jobs because no one was acknowledging their complaints and warnings about the BAT Van test
results being wrong. Soon their concerns were made public.
In response, then-Harris County District Attorney Patricia Lykos issued a media statement in
response to Culbertsons testimony stating, We sponsor the crime laboratorys scientific
evidence in our prosecutions. Accordingly, we have a responsibility to ensure that the
evidence was collected and analyzed properly.
The Houston Police Department responded:
At this time, HPD is not aware of any tests being compromised due to temperatures within the
BAT vans. We were alerted to past air conditioning problems within the BAT vans and have
worked to correct the issue by installing rear air conditioning units in the vans. Additionally, all
officers operating the BAT vans have been trained on the proper procedures to allow for air
conditioners to work properly. Vans not kept at the proper temperature settings do not cause
the instruments to give false readings. Instead, the instruments would not give a reading at all,
thus preventing any invalid tests.
A Harris County Grand Jury began investigating the BAT Vans, as well as the possibility that the
Harris County District Attorney had committed criminal acts, and a special prosecutor was
appointed. The scandal really exploded when two of the top deputies in the DAs Office and
two court reporters were subpoenaed before the Grand Jury to explain how secret grand jury
testimony transcripts somehow got into their hands. Soon, there was a second Grand Jury
investigating what was going on with the first Grand Jury.
Result of it all: no one got indicted, everyone learned about the problems of BAT Van lab tests,
and Pat Lycos served only one term as District Attorney of Harris County.
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JUSTICE DEPARTMENT AND FBI KNEWFORENSIC EVIDENCE WAS
UNRELIABLE BUT KEPT SILENT
Thanks to an expose written by Spenser S. Hsu for the Washington Post, we now know that the
U.S. Department of Justice has known for over a decade or more that forensic evidence coming
out of the FBI Lab was not trustworthy, but Justice Department officials as well as the FBI and
various U.S. Attorneys and federal prosecutors didnt bother to let anyone know that forensic
evidence wasnt reliable.
The Hsu expose is based in part upon a report published by the Office of the Inspector General
summarizing findings of its 9 year investigation into misconduct by the FBI Crime Lab and
complaints that the FBI Crime Lab was sending out flawed and faulty lab results. The IG Report
was completed in 2004 and shared internally with U.S. prosecutors. However, no one released
the report to the public nor did the report get circulated to members of the criminal defense
bar.
There are said to be 100s of people who have been convicted of federal charges based upon FBI
lab forensics (hair and fiber evidence) that have been wrongfully convicted because the FBI lab
work is erroneous. Not only does this mean wrongful convictions and lost years behind bars for
many people, it may mean some innocent people have been executed based upon the flawed
FBI lab results. Hsu reported that in 1997 a year into the DOJs investigation, when the issue
of flawed lab results was known or suspected as revealed in a prosecutors memothe State
of Texas executed Benjamin Herbert Boyle based upon evidence that may now be revealed to
be wrong.
FBI ANNOUNCES 2014 DISCOVERY OF DNA DATABASE ERRORS
In January 2014, the Federal Bureau of Investigation (FBI) announced that there had been a
discovery of numerous errors in its national DNA database, which is an unprecedented
revelation by the agency. It appears that lab technicians have made errors in interpretation or
handwriting, and the FBI has pointed to the discovery of errors within its DNA analysis as
leading to new suspects in old, cold cases. However, its not clear whether or not the flaws in
the FBI DNA database have resulted in any wrongful convictions at this point.
STEPS BEINGTAKENFOR JUSTICE INTEXAS CRIMINAL
EVIDENCE
In criminal proceedings, junk science is any scientific evidence that is used in a criminal trial
which is phony, fake, fraudulent or otherwise untrustworthy and unreliable. The incompetent
and sometimes phony lab results produced by Houston Crime Lab technician Jonathan Salvador
are a prime example of junk science that has resulted in thousands of criminal convictions
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being vulnerable to being overturned by the Texas appellate courts as violative of constitutional
due process.
The Texas Forensic Science Commission has been working hard in recent years to address and
solve the huge problem of Texas prosecutors using junk science to get convictions against
people wrongful convictions. Their 2013 investigative report (read it here), for example,
should help increase the fairness of Texas evidence collection and admission. However, junk
science remains a serious problem for criminal defense cases in Texas.
On September 1, 2013, a new law became effective in Texas designed to combat junk science
problems in Texas criminal cases. It provides for an Application for a Writ of Habeas Corpus to
be filed, where the reviewing court is asked to free the defendant from unlawful detention or
imprisonment because of junk science being a part of the prosecutions case.
This new law also allows Texas judges to overturn convictions upon a showing that junk
science evidence was used to get a conviction and simplifies the procedures that defendants
must follow in making arguments that there has been an injustice involving untrustworthy
scientific evidence in their case.
Additionally, other tools are being provided to defense lawyers seeking to suppress evidence
during the trial process or to overturn the admission of evidence during appellate review. One
of these tools is the ability approved by the United States Supreme Court in Melendez-Diaz v.
Massachusetts, 129 S.Ct. 2527 (2009). This High Court case allows criminal defense lawyers to
call and cross-examine police lab experts on the witness stand about the evidence that they
have created or analyzed.
However, Junk Science is only a part of the problem. Prosecutorial misconduct is
another.
The Texas Legislature has passed legislation in response to the Michael Morton case aimed at
thwarting future misconduct by state prosecutors. The Michael Morton Act has been passed
and the Texas Supreme Court has amended its Disciplinary Rules regarding prosecutorial
misconduct.
Key to these changes is the clarification that prosecutors can be punished for fraudulent
concealment of key evidence even if many years have passed after the trial itself if that
evidence is shown to have resulted in a wrongful conviction.
Steps are being taken to discover intentional wrongdoing by prosecutors in Texas and the
passage of new legislation as well as revamping the disciplinary rules that govern their licensure
to practice law are both good steps toward resolving this problem.
However, today in Texas there is a serious skew in how evidence is presented in criminal cases.
The scales of justice are tipped unfairly toward fake and false evidence being used against
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criminal defendants now as well as longstanding injustices remaining while men and women
wrongfully convicted by untrustworthy evidence are not freed.
Making sure the public at large is aware of this situation is important to righting these wrongs.
The naivety of those who watch television shows and enjoy movies where evidence is
presented with strengths and integrities that do not exist in the real world must be addressed,
and it is hoped that this short article helps in educating folk on how unfair the presentation of
facts can be, and has been, in Texas criminal court proceedings.
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About the Author: Michael Lowe is a Texas trial attorney practicing criminal defense law in the
Dallas area for many years after first serving as a felony prosecutor for the Office of the District
Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr.
Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.