SIXTH ANNUAL PRESCRIPTION FOR CRIMINAL JUSTIC FORENSICSFORDHAM LAW SCHOOL

JUNE 5, 2015

EMBRACING OUR COLLECTIVE DUTY TO CORRECT: LESSONS FROM TEXAS

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.

 

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.

HAIR MICROSCOPY REVIEW: BACKGROUND

• Spring of 2013: learned about FBI/NACDL/IP review of hair microscopy cases.

• FBI was concerned about the way the results of microscopic hair comparisons were described.

• July 2013: Texas Commission initiates conversation about how to approach statewide review.

• January 2014 TX directors: “we have an ethical and professional obligation as scientists, to take appropriate action if there has been a miscarriage of justice.”

OUR VALUES: SPIRIT OF COLLABORATION

• First, assess the scene. (e.g., How many CASES are out there? What resources do we need?)

• Meet with the labs to request their buy-in for process.

• Find practical approach to case identification that yields solid information (e.g., sub-sampling).

• Develop data management system for cases.

meeting BIG challenges TOGETHER: STATEWIDE HAIR MICROSCOPY CASE REVIEW

ORU VALUES: ENCOURAGE INTELLECTUAL OPENNESS

• Assemble a diverse review team.

• Develop review flow chart process, discuss openly and listen to feedback.

• Identify review criteria. (Questions vs. errors.)

• Once positive, probative cases with convictions identified, prioritize cases and review transcripts.

• Analyze transcripts closely; share concerns openly; be curious about your own assumptions, but assume the best of and from each other.

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.

OUR VALUES: HAVE COURAGE

OUR VALUES: BE A TRUSTWORTHY PARTNER

• What we say to the media matters; lawyers need to be responsible with their words in the same way we demand scientists be responsible with theirs.

• Take a moment to understand where the scientists are coming if you want to forge long-term change. Instill confidence and resist blame.

• Accountability is important, but there is a fine line between challenging people and bullying them.

• Resist rigidity; allow for opportunity to change course when needed.

meeting BIG challenges TOGETHER: HOW TO RESOLVE THE DIFFICULT ISSUES?

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/whether context should be taken into

account?

• What words really do signal individual identification?

• Distinguishing true “error” vs. progression in terminology.

meeting BIG challenges TOGETHER: TRANSCRIPT ANALYSIS

“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

lynn.garcia@fsc.texas.gov