Sunday, October 04, 2015

Seven in September: First look at officer-involved shooting reports reveals incidents which escaped media attention

A new law requiring Texas law enforcement agencies to report officer-involved shootings to the Attorney General went into effect September 1st. There have been a couple of news reports about the publication of this data, but Grits thought it worthwhile to see what the new reports look like. So far, documentation related to seven different shootings has been posted online.

Even with just a few reports in, it's clear the law is already starting to do what its authors presumably intended - giving a fuller picture of the statewide frequency (too frequent) and severity (all over the map) of police shootings, which sometimes aren't even publicized in the local media. While most shootings do get local press coverage, few ever rise to state or national attention. But like the tree falling in the forest with no one to hear it, media silence doesn't mean the victims were less shot.

There are not enough cases yet to draw any conclusions about broad trends (right now, it's "anecdote" not data). And the reports don't list names for officers or victims. But the early cases are interesting. Here are summaries of the seven posted so far, two of which, interestingly enough, came from Freeport, TX:

Freeport: Officer mistook phone for gun
The very first report under the new law sounds like so many others: an unarmed black man was shot while sitting in his car after being stopped by police after what they say was a tip that the man had crack cocaine. The injured driver was eventually charged with evading arrest and his passenger with public intoxication, but no drug charges. A local news report filled in the story:
A Freeport officer spotted the vehicle and tried to pull the driver over. At first, the driver, identified as Mayberry, stopped, but then took off, leading police on a short chase.

The fleeing vehicle stopped in the parking lot of an apartment complex at 1010 Magnolia. The officer ordered the occupants to show their hands. As the officer approached, the driver reportedly turned his body towards him while holding a dark colored object. Fearing for his life, the officer fired, hitting the suspect in the shoulder.
A later news report provides this salient detail: "No gun was immediately found at the scene, but a dark-colored cell phone was on the ground outside the driver's door of Mayberry's car after the shooting."

Plano: Practice makes perfect
The next day, in Plano, it looks like a cop accidentally shot someone at the shooting range. Grits could find no press coverage of the incident.

Houston: A tragic 'change of heart'
Two days later in Houston, a 21-year old black male was seriously injured after police responded to an emergency call. This incident didn't get much local coverage but according to one report, the man was standing in the middle of the road shooting a gun. After initially complying with officer's commands, the HPD spokesperson said that the man "had a change of heart," reached into his waistband, and the officer shot him three times (in the back, groin and leg).

Freeport: A mysterious death
After that flurry of police shootings, Texas took a short breather, but the next incident report for September 13th raises more questions than it answers. Two officers from the Alvin, Texas police department apparently shot a 29 year old white male to death down in Freeport, nearly 40 miles away, while executing a warrant. According to the document filed with the Attorney General the man was armed. There appears to be no press coverage of the incident at all. There's also nothing over in the AG's "death in custody" database to match the incident.

Balch Springs: At least they didn't shoot the dog
On September 16th, in another unreported incident, a Balch Springs officer responding to a vicious dog complaint shot an unarmed white woman at a single family home on Marriott Avenue. She was not killed.

Dallas: Suicide by cop?
Then finally, Monday September 21 saw shootings in El Paso and Dallas. The Dallas incident garnered significant press coverage as bystander video shows a half undressed, drug addled Gerardo Ramirez running through an apartment complex parking lot shooting a gun. He was killed after shooting at officers on the scene. There has been speculation this was a case of suicide by cop.

El Paso: To prevent an escape
In El Paso on the same day, a 24-year old female officer shot a 21-year old burglary-of-a-vehicle suspect while the man allegedly was trying to escape in a car. According to the AG report, the man had a deadly weapon, but it may have been the vehicle. The El Paso robbery suspect was injured but not killed.

* * *

Perhaps Grits will make this a monthly feature. For now, journalists should be aware of this new resource; clearly there are untold stories about shootings by Texas police waiting to be unearthed which heretofore have not been reported.

Chief: Body cam vendors doing 'the Johnny Manziel money sign'

Dallas Police Chief David Brown made a wry observation that the push for police to wear body cameras will lead to some lucrative contracts: “'It makes me want to retire and buy body camera stock,' Brown told an audience at a Verizon Wireless conference Thursday. 'It makes me want to sit on the beach and do the Johnny Manziel money sign. Because it’s a seller’s market.'”

The Texas Legislature ponied up $10 million for body cams this year and local agencies and DA's offices have spent millions more equipping officers with cameras in the last 12 months.

See related Grits coverage:

More on blaming prosecutors for mass incarceration, or, Pfaff's pfigures pfit Texas' pfacts

When Grits wrote about a David Brooks' NY Times column the other day, I'd failed to make the connection that Prof. John Pfaff, whose name looks like he should hail from Pflugerville, is the fellow who wrote a series of posts on PrawfsBlawg in 2014 which I quite enjoyed critiquing the National Research Council report on mass incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5Part 6Part 7Part 8, and Part 9 look at the role of prosecutors. Part 10 considers red herrings surrounding private prison debates. Check them out.

This morning Grits spent some time reading this recent law review article elaborating Pfaff's views.

Some critics of mass incarceration will find Pfaff's work quite challenging. If you're Michelle Alexander and you come to accept Pfaff's premise, it would require rethinking big chunks of your analysis and underlying assumptions. For Grits, though, his work pretty closely jibes with my own observations over the years.

While this blog only tracks Texas closely and Pfaff is reviewing national data, I find myself largely in agreement with his analysis, if not all of the conclusions David Brooks would draw from it. Pfaff disputed claims that mass incarceration is primarily caused by the drug war. Instead, he pins blame on county-level actors, specifically local prosecutors, whom he demonstrates have used their discretion and increased power (boosted through a combination of mandatory minimums, enhancement mechanisms, and drug-war era SCOTUS decisions scaling back the rights of the accused) to file felony charges ever-more frequently, even as crime declined.

Grits has made similar calculations before for Texas with similar results. The rate of convictions here far outpaced arrests or crime rates since the turn of the century and the number of new direct sentences to prison continued to increase even as crime declined. So Pfaff's thesis mostly matches Texas' experience, in this author's view.

Pfaff discounts the drug war as a cause for mass incarceration to an extent Mr. Brooks perhaps overstates. There's no doubt the drug war accounts for some portion of mass incarceration, which Pfaff doesn't dispute. In Texas, the 16% of state prisoners with a drug offense as the primary charge would be about 24,000 prisoners, which is nothing to sneeze at. But the drug war accounts for an even greater portion of local arrests and disproportionately fills up local jails, court dockets, and probation rolls. And the contribution of drug charges to expanding the number of people with criminal records is greater than those offenders' representation in prison, where length of stay for user-level possession remains short. For police, county jails, and probation departments, the drug war remains a bigger driver of both volume and cost.

Even so, I agree with Pfaff that the empowerment of prosecutors to increase the number of felony convictions, even when crime declines, is a core driver of mass incarceration and remains the greatest barrier to rolling it back. A recent letter from the San Antonio city manager to uniformed police officers included the following data
Comparing 2015 YTD (year-to-date, Jan. 1 through May 23) to 2014 YTD:
  • Violent crimes are down 0.3%
  • Property crimes are down 10.5%
  • Drug arrests are up 8.1%
  • Weapons arrests are up 18.8%
These numbers show how, when actual crimes decline, it's still possible to boost arrests and convictions in America's 21st century justice system. Weapons arrests are mostly targeting people with criminal records in possession of a firearm, not people who fired a gun, while drug arrests are far and away mostly for simple possession, and mostly for pot. Previously convicted felons and drug addicts form a pool for potential arrestees whose offenses are basically status crimes and thus can be prosecuted even if there's no victim or harm.

Prof. Pfaff's right to look to county actors to explain mass incarceration. If Grits were to fault his analysis at all, it would be that he doesn't dig deep enough into county-level dynamics, where policing priorities play as meaningful a role as prosecution decisions and the drug war, which he discounts as a major driver of state-level incarceration trends, arguably has a more important impact than his writing portrays.

Pot poll: Texans split on legalization, back reduced penalties

The Texas Lyceum poll has a reasonably large sample size and comes from a neutral source, so in a world of politicized polling, Grits tends to hold it in higher esteem than published polls from advocacy groups. So I was intrigued to see that the result on their latest "legalize marijuana?" question was 46% "yes," 50% "no." The pro-legalization contingent surged by 13 percentage points since the group last asked the question.

Moreover, as the Dallas News reported, "Of the 50 percent of respondents who opposed legalization, 57 percent said they would support reducing penalties for possession of small amounts."

That means three quarters of Texans would "support reducing penalties for possession of small amounts" of marijuana, which perhaps bodes well for state Rep. Joe Moody's bill to that effect. Fewer than one in five Texans oppose both legalization of marijuana and reducing penalties.

Source: Texas Lyceum

Wednesday, September 30, 2015

Suicide attempts at TDCJ spiked so far in 2015

The average monthly number of suicide attempts among prisoners under TDCJ custody increased 28 percent so far in 2015, from an average of 81.7 attempts per month in 2014, to an average of 104.5 attempts per month, according to a document forwarded to Grits titled "Emergency Action Center, Select Statistics, August 2015." The number of completed suicides, however, stayed the same, at an average of 2.6 per month both years (from a low of 0 some months to a high of 5, system-wide). Thirty-one people committed suicide in TDCJ in 2014; 21 had done so as of this August 2015 report.

According to the same document, the ratio of suicide attempts in 2014 was the highest in recent history at 64.1 per 10,000 offenders, and the monthly totals are higher, even, this year. Before that, the ratio was 50.3 per 10,000 in 2013 and hadn't topped 50 the decade prior.

Use of force/assaults on staff
Major use of force by staff was slightly higher in 2015 compared to last year, and in 2014 the rate of major use of force by staff per 10,000 inmates reached a decade-long apex, at 512.6 per 10,000. The rate of serious assaults on both staff and offenders are down slightly.

Major use of force happens much more at some units than others. Some may report zero, one or two incidents per month for months on end, while others like Telford, Coffield, Stiles, Clements, Jester IV, McConnell, Connally, Montford, Smith, Hughes, Robertson, and a few others account for double-digit incidents every month.

The rate of serious assaults on staff per 10,000 prisoners in 2014 was 50 percent higher than in 2006 - 6.0 per 10,000 prisoners compared to 4.0 per 10,000. Serious assaults in this case are defined as incidents where the staff person needs medical attention beyond first aid.

Blaming over-aggressive prosecutors for mass incarceration

Following Prof. John Pfaff of Fordham University, New York Times columnist David Brooks laid blame for mass incarceration primarily at the feet of prosecutors for harsher charging decisions related to low-level offenses.

Grits agreed with much of his analysis and have made similar observations myself. But I'm less willing to dismiss out of hand the role of the drug war and longer sentences in expanding mass incarceration.

For example, while it's true that a relatively small percentage of prisoners are incarcerated for drug crimes (in Texas, 16% of prisoners as of 8/31/14), a significant portion of violent crime is related to smuggling and drug sales as a result of privatized protection services for participants in an illegal market. We're talking about vendors who would be protected - as are, for example, Budweiser, Miller, or Corona - if they sold a different product. (The TV show The Wire depicted the relationship between drug crime and murder rates pretty graphically over its 5-season run.)

You'll frequently hear local law enforcement claim all or nearly all crime they see is related to drug addiction - e.g., burglaries to pay for drugs, etc. - to the point where Grits considers such comments overstated, especially when estimates of drug-caused crime top 80 or 90 percent. But there's little question that the drug trade is responsible for layers of criminality beyond the 16 percent of Texas prisoners locked up solely for drug possession or sales.

Our pal Adam Gelb from the Pew Charitable Trust corrected another overstated element from Brooks' column in a comment at Sentencing Law and Policy:
time served did increase substantially. Our Time Served report found that across all crimes it rose from 2.1 to 2.9 years (36%) from 1990 to 2009. For violent crimes, it went from 3.7 years (37%); property crimes 1.8 to 2.3 years (24%), and 1.6 to 2.2 years (36%) for drug crimes. This doesn't mean longer time served is the only or even the most important factor in prison growth. It's one of many, and can't be ignored.
Similarly, neither can any data-driven analysis, certainly in Texas, ignore the role of the drug war when it comes to low-level offenders cycling in and out of county jails. A column in the Houston Chronicle today titled "Harris County should stop jailing small-time drug offenders" isn't wrong that drug-addicted offenders, along with the mentally ill and those with "dual diagnosis," in the bureaucratic lingo (both drug addicted and mentally ill), soak up a huge proportion of local criminal justice resources when at root what's needed to reduce addiction and low-level criminality is more akin to social work than traditional punishment.

Check out a new, related report from the Baker Institute at Rice University and the Texas Criminal Justice Coalition detailing "the economic and social benefits of expanding drug diversion programs in Harris County."

My own view is that, just as the big-picture reduction in crime over the last two decades has many causes, there are many reasons, not just one, that incarceration rates have remained stubbornly high and not declined as much as overall criminality. One reason is longer sentences, another is the war on drugs, another is more aggressive prosecutors, another is the substitution of criminal law for civil regulation, another is the generally low quality of indigent defense, and there are several other candidates besides. None of these are mutually exclusive. Rather, it's the confluence of multiple factors that makes the mass-incarceration nut so tough to crack.

MORE: From Doug Berman.

Packed agenda at TX forensic commission Friday

What a packed agenda at the Texas Forensic Science Commission on Friday in Austin! Take a look, there's a lot happening. Here's a non-comprehensive taste of the issues they'll cover:
  • Two new lab disclosures and five new complaints
  • Discuss crime-lab accreditation program (shifted from DPS to FSC this session)
  • Discuss status of forensic licensure requirement (must be implemented by 2019)
  • Updates from two investigative panels on toolmark cases
  • Update from investigative panel on digital forensics
  • Update from bite-mark panel
  • Update from hair microscopy panel
  • Update from DNA mixture panel
  • Update on arson case review and implementation of recommendations
  • Update on status of Morton/Brady training for forensic scientists
And more ... It's going to be a long day.

Meanwhile, on Thursday (tomorrow), an FSC committee on DNA mixtures will reprise the agenda for which they could not obtain a quorum in Dallas two weeks ago.

FSC General Counsel Lynn Garcia may be the busiest mother of a two-year old I know.

Grits has complained for years that a lot of important stuff happens at the FSC and almost nobody in the media covers it. At the last FSC meeting there were two reporters there (Michael Hall from Texas Monthly and Brandi Grissom from the Dallas News), which is a lot for these events. And a third, the Texas Tribune's Terri Langford, showed up at the DNA-mixture meeting in Dallas. So given the extensive agenda and the unusual level of recent press interest in forensics, Grits will put the over-under on how many reporters will be there Friday at 2.5. Which is good, usually it's zero. There's a lot going on at this small agency for their activities to be as routinely ignored as they have been these last few years.

Bystander deaths from police pursuits significantly undercounted

High-speed chases by police are more common and more deadly than previously thought, reported USA Today in a story which opened (Sept. 29):
The U.S. government has drastically understated the number of people killed in high-speed police car chases, potentially by thousands of fatalities over several decades, a USA TODAY investigation shows.

The National Highway Traffic Safety Administration overlooked at least 101 motor-vehicle deaths in 2013 that were related to a police chase, according to a USA TODAY review of police reports and internal documents, court records, police-car videos and news accounts based on police statements.

NHTSA's count of 322 chase-related deaths in 2013 — the most recent year for which its records are publicly available — understates the total by at least 31%, the investigation shows.

NHTSA's undercount suggests that the actual number of people killed in police chases since 1979 could be more than 15,000 — far more than the 11,506 chase-related deaths found in the agency's public records — and that chases result in a death much more frequently than studies have stated.

The findings expose potentially major flaws in how the federal government tracks motor-vehicle fatalities and, to a lesser extent, how police document high-speed chases, which often result in innocent people being killed and have been sharply restricted in some cities.
An earlier report from USA Today in July was titled "High speed police chases have killed thousands of innocent bystanders."

Tuesday, September 29, 2015

Short shots on forensic error

Grits ran across a site with an excellent list of press clippings about crime lab problems and found several items I hadn't seen before.

Interviewing Brady Mills
Here's an interview with Brady Mills, the man in charge of all Texas DPS crime labs, from Forensic magazine in May on the topic of confronting flawed forensic science. Grits learned from the article that Mills is past president of ASCLD-LAB, a crime-lab accrediting body, and sits on their board. Note to Brady: You have a standing invitation to come do an interview/podcast on Grits. We could find a lot to talk about.

Rapid DNA and 'black box' software
In that interview, Mills discussed "rapid DNA," which refers to systems where a machine analyzes a swab and spits out a result without human interpretation. The other day, some of the nation's leading experts cautioned against using "black box" software systems alone to analyze DNA, insisting that human interpretation was required to understand where certain assumptions may lead to error. (Once assumptions become embedded in code, they become invisible and thus harder to detect and correct.) Rapid DNA sounds like it's headed in the black-box direction, perhaps problematically automating judgments that require more nuance than code can afford. That's certainly a concern on mixture cases, given what we now know about them. So far, no Rapid DNA system has been validated for use in forensic labs, but several companies are trying.

Indulging schadenfreude, or, we're screwed up but we're not Massachussetts
The Annie Dookhan fiasco in Massachussetts, where a crime lab worker intentionally framed defendants through faked forensic results, depicts the worst case scenario for a crime lab, with thousands of defendants potentially eligible to have their convictions overturned. Now, it turns out another forensic chemist in Massachussetts stole drugs and replaced them with counterfeit, potentially calling into question thousands more cases. These episodes call to mind the Jonathan Salvador mess in Texas, but that was on a much smaller scale. He handled about 5,000 cases and only a quarter to half of those were called into question. As that debacle demonstrated, though, just because hundreds or even thousands of people are eligible for relief doesn't mean that many will eventually get it. The systems for notifying defendants and getting them lawyers just aren't there.

Not West Virginia, either
In the New York Times Magazine this week, Emily Bazelon previewed a case at the West Virginia Supreme Court which will determine whether the state is obligated to turn over exculpatory DNA evidence after a defendant has entered a plea. Under Texas statutes and case law, the answer would clearly be "yes," there's an obligation to turn it over under the Michael Morton Act. Moreover, a guilty plea would not preclude a future innocence claim (Ex Parte Tuley). But Bazelon mentioned that, "The U.S. Court of Appeals for the Fifth Circuit [which includes Texas] has repeatedly ruled that 'a guilty plea waives the right' to claim that your right to exculpatory evidence has been violated." So maybe it's not perfect, but thank God for the Michael Morton Act, and in the case of Ex Parte Tuley, the Texas Court of Criminal Appeals!

Might flawed field tests contribute to Harris County drug exonerations?
Texas has witnessed dozens of cases out of Harris County where defendants are exonerated months or years after they plead guilty because a crime lab determines the substance they were charged with possessing wasn't drugs. Nobody knows for sure why this is happening, except that people plead guilty - often to time-served or probationary sentences - because they can't afford bail to get out of jail. But why are so many falsely accused in the first place? A theory presents itself from a couple of stories about erroneous field test results. One test can confuse soap or candy for drugs, while in Australia, a man was jailed when epsom salts were confused for meth. I wonder if faulty field test results help explain the rash of Harris County drug-case exonerations? They're up to more than 80 so far and insiders tell Grits to expect dozens or even hundreds more before the situation is resolved.

Monday, September 28, 2015

TX CCA candidates no longer need sigs from 14 appellate districts

Like most people, apparently including Court of Criminal Appeals candidate Sid Harle, Grits was unaware that the Legislature this year had removed a requirement that CCA candidates get 50 signatures in each of Texas' 14 judicial districts, a burden universally acknowledged as difficult given how little money is raised by CCA campaigns. Nearly everything they raise is spent traveling around the state by car to party events and forums where they'll get to speak for 2 minutes, half of which is spent explaining that Texas has two high courts and this is the criminal one. But the main purpose for traveling to those events is not to whip votes but to garner those signatures, which is no longer necessary.

Bruce Davidson at the SA Express-News called this a return to the "bad old days." He declared that:
Before legislators passed the law requiring the signatures in 2003, Texas Court of Criminal Appeals races were crowded free-for-alls featuring candidates hoping to get elected with an easy-to-pronounce or familiar name and nothing more.

“This court used to be a $3,000 lottery,” Justice Cheryl Johnson said in 2004. All that was required was paying a filing fee. Qualifications didn’t matter.

The signature requirement trimmed the horde of candidates to a handful who were reasonably qualified and willing to work hard enough to gather signatures. The laziest and least qualified candidates were culled from the ballot.

Still, the campaigns have remained the least visible political races in Texas. Few Texans can name a member of the state’s highest criminal appellate court, and the candidates can’t raise enough money to make a blip on the political radar.
I don't agree with that. For starters, the races were hardly free for alls. In the GOP primary in 2002, the year before the law changed, there were two candidates in each of the three CCA races. Dems had four candidates running for three seats that year. In 2000, the GOP field was more crowded, with 14 people pursuing three seats. Barbara Hervey and Sharon Keller pulled off come-from-behind wins in the runoff after trailing the day of the primary. But even then, Dems fielded only three primary candidates - one in each race.

To be fair, Judge Johnson's campaign in 1998 competing to run against and defeat Charlie Baird was one of the most hotly contested CCA races in memory, with Johnson facing seven primary opponents. And she's right that some of those weren't seriously campaigning but merely hoped to use the ballot to get their name out there, essentially seeking free advertising. But those folks don't win, and they didn't in her race. Meanwhile, to my mind, the additional candidates force everyone to do a better job of communicating with the voters and distinguishing themselves.

I'm not worried that Sid Harle won't stand out from the crowd in a CCA race, as Mr. Davidson feared. He's a super-qualified candidate and would make a fine CCA judge. But that doesn't mean he should get to stroll into the position without campaigning. We have elections in America, not coronations. And the changed rules make it less onerous for qualified candidates to sign up for the job.

While reserving the right to change my mind (I didn't know about it when it happened during session so haven't considered it before), for now I think I'm fine with this. I'm not at all sure those signatures did anything but empower a few party insiders and keep good people off the ballot.

Court okays voice recognition testimony 20 years after fact

When stare decisis and science conflict, case law tends to trump.

A case in point: The Texas Fourteenth Court of Appeals upheld a capital murder conviction (life sentence) in August in which the main inculpatory evidence was a voice identification made by a witness 20 years after the crime occurred. Since the standard of review was "abuse of discretion," the justices felt compelled to defer to the trial judge's ruling, which relied on a 1972 Supreme Court precedent, Neil v. Biggers. But Chief Justice Kem Thompson Frost offered up a concurrence suggesting the law and science are out of whack:
In  the  forty-three  years since  the Supreme Court of the United States articulated the Biggers factors, scientists have been studying whether these factors accurately predict the reliability of a witness’s identification. The findings raise concerns. Studies are ongoing, but the research results in hand tend to undercut confidence that the Biggers factors are truly indicia of reliability. The scientific literature suggests that though some of the Biggers factors relate to the reliability of a witness’s identification, others do not. Empirical research seems to be revealing that some of the factors may not be good indicators of reliability.
Chief Justice Thompson Frost adumbrated a sampling of research demonstrating why the factors judges are told to consider in Biggers don't jibe with modern science, much of which also relates to shortcomings in eyewitness testimony. In the end, though, she concluded that "Even though the scientific literature calls into question the validity of the Biggers factors, this court is bound to consider them" and, ultimately, to defer to the trial court. There's little question, though, that the Chief Justice has identified a rather junky brand of evidence which deserves closer scrutiny than it has heretofore received.


Texas' civil-commitment program still flailing; violating its conditions no longer a crime

Despite all the changes to Texas' sex-offender civil commitment process this spring, most of which were necessary to comply with various court decisions, the program continues to look like a hot mess.

The state is still working out kinks in its revised program at the recently un-shuttered prison unit in Littlefield, where dozens of offenders have been moved. But to the extent that change solved any problems, it has also created new ones. Reported the Houston Chronicle (Sept. 27):
Since Sept. 1, as part of reforms to Texas' nearly 16-year-old program, from which no one had never graduated to freedom, the state has moved more than 180 offenders from halfway houses in Houston, Dallas, Fort Worth, El Paso and Austin to a re-purposed private prison in Littlefield, about 40 miles northwest of Lubbock. Even as it's getting started, substantive questions loom about whether the new program can be as effective as envisioned.

In relatively short order, officials concede the program struggled for months to find a site where it could operate, creating a new regimen program that will withstand mounting legal challenges. Officials' latest difficulties include how to provide effective mental health and therapy services, as well as jobs and resettlement programs, in a remote community in West Texas where those opportunities are mostly non-existent.

Most of all, the therapeutic program that's housed in a former prison, must not be a prison.
Littlefiled is in the middle of nowhere, so the chances of those sorts of treatment or reentry services cropping up there are slim and none.

In related news, recently Texas' Eighth Court of Appeals ruled that, based on new amendments to the law passed this spring, it is no longer a crime in Texas to fail to follow complete treatment under a sex-offender civil commitment plan. Moreover, the changes in the law are retroactive for all cases which have not resulted in a final conviction. In that case, the 8th Court of Appeals overturned a life sentence assessed for violating civil-commitment rules. And it probably won't be the last time that happens.

Silence on Twin Peaks massacre may 'blacken' reputation of Waco justice

Since the Twin Peaks massacre in May, officials in Waco have mostly succeeded in keeping biker-related criminal cases out of the press. But the silence has grown deafening, prompting AP, the Atlantic, and even the Waco Tribune-Herald opinion editor to call for transparency and lifting an ill-conceived gag order.  The Texas Criminal Defense Lawyers Association last week filed a complaint with the State Commission on Judicial Conduct against the Justice of the Peace who set million dollar bails for the 177 people arrested that day. More than 2/3 of those arrested that day had no criminal record, reported AP. Trib opinion editor Bill Whitaker fears that the official silence, based on a gag order which only applies to one case, "has the power to blacken for decades the reputation of American justice in Waco. It may already be too late."

To my mind, the Twin Peaks episode couldn't worsen Grits' view of Waco justice, but it surely confirms it.


Saturday, September 26, 2015

Texas prison population decline modest, however you measure it

At the Texas Tribune, Julie McCullough has an article titled "Dip in Texas prison population continues trend." In it, she uses numbers from the DOJ to say that:
the state's prison population fell by more than 2,200 inmates, or 1.3 percent, between 2013 and 2014, according to new data from the U.S. Bureau of Justice Statistics. The decline was slightly larger than the national drop of one percent.
When 2014 ended, 166,043 prisoners were in TDCJ custody, the lowest number since 2002. It was the state's fourth largest annual decline in more than 35 years. (The largest drop came in 2012, when the population fell by nearly 6,000 prisoners from 2011.)
The small downward shift continues a trend that began in 2010, when the number of men and women held in Texas prisons peaked at 173,649.
Those numbers differ from those in TDCJ Annual Statistical Reports (available here).  Here are the annual TDCJ "on hand" population totals as of Aug. 31 from '08-'14:
2008: 156,126
2009: 155,076
2010: 154,795
2011: 156,522
2012: 152,303
2013: 150,784
2014: 150,361
Comparing these data to the chart in this post, one sees that the parole board reacted to the state's highest prison population of all time in 2011 by boosting the total number of prisoners released in 2012 by a whopping 9%. That was the year the Trib said witnessed the "largest annual decline in more than 35 years," according to federal data.

Bottom line: According to TDCJ, 2014's prisoner number was a .3% reduction from 2013 and about a 4% drop from the 2011 high. The feds say Texas recorded a 1.3% drop last year, and a 4.4% drop from our peak, which they place a year earlier than TDCJ does. Either way you look at it, these reductions remain on the low side, in the nanoreform range.

Grits has parsed the differences between TDCJ and DOJ numbers in detail in the past, for those interested. Bottom line, TDCJ is counting the number of prisoners "on hand" while the federal number counts prisoners based on their legal status at the time of custody, not whether they've formally entered the prison system or not. So, for example, a prisoner convicted in district court and sentenced to TDCJ may sit in the county jail for three or four weeks awaiting transfer. Texas counts her as a county jail inmate; the feds would consider her a state prisoner. These are differences in definitions. Neither is right nor wrong, they just count different things, as though one were measuring an object in yards and also in meters.

If Grits were a betting man, in the near term I'd expect a continued, modest decline, particularly among the state jail felony population, in part due to the adjustment for inflation of property crime thresholds and the creation of diligent participation credits for state jail inmates (see here and here), and in part because crime remains at historic lows. It's possible Texas could even close another unit or two.

Going much beyond that, however, will require additional legislation reforms and further state investments in treatment, supervision, and mental health services. Whether that will happen is anyone's guess. All one can say for sure is that it can't happen before 2017.

Friday, September 25, 2015

Should police get to review video before Internal Affairs interviews?

The policy of allowing police officers to view video from incidents involving complaints against them before being interviewed by Internal Affairs drew fire this week from an editorial in the Corpus Christi Caller-Times (9/24). which opened:
There are compelling arguments for and not many against letting police officers see video and hear audio before being interviewed by internal affairs. This is a new policy included in the contract approved earlier this month between the city and the police union, but it also is a national trend.
Perhaps the only meaningful argument against this policy just happens to be the big one — that it gives officers a special privilege not extended to persons of interest in a police investigation.

It's important to note the distinction between an internal affairs inquiry and a criminal investigation. An internal affairs investigation focuses on officers' behavior as employees answerable to their employer and to the public. That's a marked difference from an investigation into whether officers violated the law while on the job and should be charged with a crime.

But what if an officer ends up being investigated in both contexts? The officer has had the opportunity to get his or her story straight based on the video/audio evidence he or she was allowed to see and hear.

Needless to say, that's not an opportunity extended to civilians questioned in criminal investigations — even those who haven't attained the status of person of interest. The potential discrepancies between their stories and facts not revealed to them before being questioned, including video not shown to them, are considered part of the evidence-gathering — a valuable part because discrepancies can make someone appear guilty. Discrepancies can be portrayed as lies because sometimes they are.

That so-called game of gotcha is exactly what the proponents of the new video preview policy for officers say shouldn't be part of the internal affairs process. They want a level of fairness that isn't extended to civilians questioned by police.
The opinion piece concluded by decrying a similar provision in Texas' new body cam legislation, whose regulation of camera use Grits has also criticized.
A new state law providing grants for body cameras includes a provision that officers view a video before giving a statement. The law could be touted as an all-around victory for transparency. It encourages more body cameras and therefore more video evidence, and it is the pinnacle of openness with the involved officers.

But defense attorneys whose clients are civilians are duty-bound to ask, why them and not us? It doesn't take a legal scholar or an oracle to foresee one of these defense attorneys winning a Miranda-like victory at the Supreme Court level someday based on that question. "They didn't show me the video" could supplant "they didn't read me my rights" as a prosecution-killer.

The arguments in favor of police having this privilege are no different for anyone else.
Unfortunately, the paper's disapprobation comes too little, too late. The city and police union have already adopted the language governing bodycams in the recently signed meet and confer agreement, which would have benefited from media scrutiny as it was happening instead of after the fact. At this point, the Legislature could take up the matter before the City of Corpus gets the chance to revisit the issue, which can't happen until the meet-and-confer agreement expires.

Thursday, September 24, 2015

Odds and ends from the Texas Judicial Council

The Texas Judicial Council met last week. See:

Wednesday, September 23, 2015

Baker's dozen advocacy groups detail post-Sandra Bland reform agenda

Check out a letter from the Texas Criminal Justice Coalition and a dozen allied groups to DPS Col. Steve McCraw and the Waller County Sheriff calling on them to:
  • Ensure use of force is only applied as a last resort
  • End racial profiling
  • Implement pre-booking diversion
  • End arrests for non-jailable offenses
  • Reform the bail system
  • Provide sufficient defendants attorneys at magistration
  • Improve mental health training for law enforcement and jailers to prevent suicide
  • Better fund the Texas Commission on Jail Standards to inspect more jails more often
Obviously, different suggestions apply to one or the other of those two recipients. See the full letter for more detail.

Visitation, risk assessment, fines, indigency, and prosecutorial overreach

Here are a few items which deserve readers' attention even if Grits hasn't had time to focus on them:

Travis Jail may lose exemption from in-person visitation requirement
"The Texas Commission on Jail Standards is re-evaluating its decision to grant the Travis County sheriff’s office an exemption from a new state law requiring jails to allow in-person visitation for inmates’ friends and family," reported the Austin Statesman. "The new law ... exempted counties that had already spent a significant amount implementing a video-only system," but our friends at Grassroots Leadership are "questioning whether the county should have been granted the exemption because the Securus contract said that the company, not the taxpayers, was on the hook for the program."

Risk Assessment and Criminal Sentencing
Whenever Jennifer Skeem writes on risk assessment, I learn something. So her new paper with John Monahan, "Risk Assessment and Criminal Sentencing," gets added to Grits' "to read" list.

Fines, court costs, and the 'cycle of indigency'
The Texas Supreme Court yesterday heard a case which may determine whether court fees can be assessed against indigent clients. The case is on the civil side (a divorce proceeding), but "The case is being closely watched by legal advocates because it is the civil court bookend to its criminal counterpart: the role of fines for minor crimes that keep the poor locked in a cycle of indigency."

State asked to pay costs for prosecutorial overreach in McLennan County
McLennan County wants the Governor's office to cover costs stemming from the trumped up prosecutions in the Twin Peaks massacre. First things first, they should be required to disclose how many of the victims were shot by police and how many were shot by bikers. Given how local leaders have behaved throughout this mess, there should be some explicit accountability measures attached to any money given.

Forensic commission re-sets DNA mixture hearing
The Forensic Science Commission's committee to investigate the DNA mixture issue will meet October 1st to address the issues they didn't get to last week in Dallas for lack of a quorum. See the agenda here, and prior Grits coverage. I'm still not sure yet this will end up amounting to much. But it's a fascinating issue (to me, anyway) on several fronts, from the role of subjectivity in science, to the relationship between basic research and the practices of working analysts at the forensic lab bench, to the role of judges (inadequately) vetting science for the courtroom.

On the etymology of mass incarceration
From FiveThirtyEight. See a prior, related Grits post.

The 'war on police' that wasn't
After Lt. Gov. Dan Patrick declared there exists a "war on police," it was good to see a several rebuttals in the media of this odd, fact-free meme beyond Radley Balko's initial retort. Regardless, it's increasingly clear that this is a debate wherein facts don't matter. One can lament that situation, but lamentations won't change it. Even so, it's worth repeating at least once more: The "war on police" is not a thing.

Deitch on jail safety, oversight

Michele Deitch, a lecturer at the LBJ School of Public Affairs and long-time observer and participant in Texas criminal justice politics, spoke at yesterday's Senate Criminal Justice Committee hearing on jail safety, mental health treatment, and suicide prevention. But Grits would have liked to hear her expand on the themes she quickly rattled off to the committee, so I asked Michele if I could reprint her full written testimony. She graciously assented, so find it published in full below the jump.

Tuesday, September 22, 2015

Senate committee to discuss jail safety

The Texas Senate Criminal Justice Committee this morning will meet to discuss jail safety and suicide in the wake of Sandra Bland's untimely death. Here's the agenda listing invited testimony; they'll also hear public testimony. Go here to watch the hearing.

Grits has to work and can't attend, but I'll try to listen in.

RELATED: 700 inmates took ill over the weekend at the El Paso County Jail.

MORE: I've had this hearing on in the background while working, not paying close attention, but perked up when Chairman John Whitmire said the Lt. Governor asked him to work on developing a list of ten "dos and donts" to teach the public about how to deal with police officers at traffic stops. The Lieutenant Governor wants to train the public, he said, on the assumption that officers already get training on how to deal with the public. The chairman asked Kim Vickers of the Texas Commission on Law Enforcement if his agency would be the right one to work on that. Vickers replied that it would be an excellent job for the public schools.

AND MORE:  According to the Department of State Health Services, about 76,000 inmates who require mental health services are booked into jail each year, some of them many times. About two thirds of them are already accessing mental health services in the free world before they're arrested.

SEE ALSO: Coverage from the Texas Tribune, the Austin Statesman, KVUE-TV (Austin), KLBK-TV (Abilene), and (behind paywall) the Express-News, Chuck Lindell at the Statesman quoted Tony Fabelo getting off a couple of strong points:
Among the invited witnesses was Tony Fabelo, research director for the Council of State Governments’ Justice Center, who pointed out a large hole in the oversight system. While county jails are required by law to screen new prisoners for mental health problems, city jails do not, he said.

“If you are looking at a policy to identify them early to connect them to treatment, you are missing a gigantic step,” he said.

Fabelo praised a Texas law that requires prisoners identified as having a potential mental illness to receive a clinical assessment, with the results sent to a judge to decide if jail release is appropriate.

The problem, he said, is that there is no record of any such hearings being held.

“Nobody knows what (that type of) hearing is. Nobody,” Fabelo said.
Fabelo also praised mental-health diversion programs in Bexar County, reported Mike Ware in the Express-News:
said the Bexar County program is proving successful at removing thousands of offenders who otherwise would clog jail cells. New assessment and screening procedures took effect Sept. 1 that could lead to even better outcomes, he said.

Under Bexar County’s program, law enforcement officers screen people when they’re arrested to determine if they need to go to jail or a treatment center. If they go to jail and exhibit signs of mental instability, they again are assessed to measure whether they are suicidal or need to be placed in a mental health hospital.
AND MORE: See Deitch on jail safety and oversight

Sunday, September 20, 2015

The arithmetic of de-incarceration: TDCJ edition

For long-term de-incarceration strategies to work, in the near term, while crime is low, prisons must release more inmates than they receive. Here are the Texas Department of Criminal Justice's aggregate receive/release figures from FY 2007-2014, the most recent full year available from the TDCJ Annual Statistical Reports.

Since Texas' much-ballyhooed 2007 probation reforms (which arguably impacted parole revocation rates more than probation's), Texas has only released more prisoners than it received two years - 2012 and 2013.

Over this period, the total number of inmates on hand declined from 152,661 to 150,361, but not until after briefly bulging past 156,000 in 2008.

In a nutshell, the push for de-incarceration is about driving that red curve upward on the Y axis and driving the blue curve down, focusing in particular on situations where that can be accomplished without compromising public safety. Simple, right?

Saturday, September 19, 2015

Labs must correct wrong DNA mixture analyses, learn when not to analyze 'crap'

Yesterday for work I attended a Forensic Science Commission committee meeting in Dallas on DNA mixtures where the agenda had suggested they'd be parsing prosecutor disclosure obligations and mapping out a path toward reviewing old cases. Instead, the committee couldn't field a quorum, so four scientists brought in to advise them were left to field a lengthy panel-discussion/Q&A which clarified some issues and on others, only emphasized how muddy much of this remains.

Terri Langford at the Texas Tribune was the only reporter there, here's her story. In general, she correctly summarized:
experts tried to temper the expectations about DNA testing that were built over more than a decade.
"One of the problems was DNA was called the gold standard," Bruce Budowle, director of the University of Texas Health Science Center's Institute of Applied Genetics, said. "Big mistake."
Budowle said DNA deserved gold-standard status when it came to a single DNA sample compared to a single suspect, or even in rape kits where there are two samples and one (the woman's) is known. But when analyzing mixed DNA samples where no one is definitively known, or even where labs can't tell precisely how many DNA contributors there are, analysts engage in interpretation which has not always been informed by best practices. Cutting-edge science takes too many years to trickle down from the research labs to the crime-lab work bench, the panelists repeatedly emphasized.

Budowle said the 2009 National Academy of Sciences report "gave DNA a pass" and it shouldn't have - interpretation of DNA mixtures has a subjective human element just like other comparative forensics.

We learned a bit more about how all this came up: When Galveston DA Jack Roady asked for DNA results to be reinterpreted in one of his cases, the probability the DNA matched their defendant went from more than one in a billion to one in 38.

But that was the FBI lab, having already corrected their method.* Yesterday we learned more about recent changes in DPS' DNA mixture interpretations. Again, from Langford:
Crime labs have recently adopted the new “mixed DNA” standard. The DPS switched to it on Aug. 10. The move has prompted prosecutors like [Inger] Chandler to resend evidence in pending cases to the lab to have the data analyzed using the new standard. In Houston's Harris County, that's about 500 pending cases where DNA evidence will be introduced at trial.

In addition, DAs are notifying defendants who are already convicted about the new standard. For example, Harris County prosecutors have already notified those convicted of capital murder and awaiting execution. It is not known how many of the 253 inmates on Texas’ death row were convicted with mixed DNA. Of the 253 inmates on Texas death row, 90 are from Harris County.
The new standard at DPS deserves further elaboration because the expert panelists universally agreed that the old method was wrong and improperly interpreted results.

After yesterday, I understood for the first time (perhaps it was said before and didn't penetrate my notes/consciousness/thick skull) that DPS' DNA labs had not changed their protocols until this issue came up while your correspondent was on vacation last month. And the details of the change were significant.

First, a bit of background. DNA testing looks at two metrics on X and Y axes: Whether alleles are present at various loci, and the quantity of DNA available for testing at that spot. (The latter is complicated by allele drop-in, drop-out, and stacking, terms I'm only beginning to understand.) When examining the peak height of DNA quantity on the test results, DPS' old method did not impose a "stochastic" threshold, which as near as I can tell is akin to the mathematical sin of interpreting a poll without ensuring a random sample.  (The word "stochastic" was tossed around blithely as though everyone knew what it meant.) Basically, DPS did not discard data which did not appear in sufficient quantity; their new threshold is more than triple the old one.

That new methodology could change probability ratios for quite a few other cases, the panel predicted. One expert showed slides demonstrating how four different calculation methods could generate wildly different results, to my mind calling into question how accurate any of them are if they're all considered valid. Applying the stochastic threshold in one real-world case which he included as an example reduced the probability of a match from one in 1.40 x 109 to one in 38.6. You can see where a jury might view those numbers differently.

Not every calculation will change that much and some will change in the other direction. The application of an improper statistical method generates all types of error, not just those which benefit defendants. There may be folks who were excluded that become undetermined, or undetermined samples may become suspects when they're recalculated. The panel seemed to doubt there were examples where a positive association would flip all the way to excluded, but acknowledged it was mathematically possible.

DPS has identified nearly 25,000 cases where they've analyzed DNA mixtures. Since they typically represent about half the state's caseload, it was estimated, the total statewide may be double that when it's all said and done. Not all of those are problematic and in some cases the evidence wasn't used in court. But somebody has to check. Ch. 64 of the Code of Criminal Procedure grants a right to counsel for purposes of seeking a DNA test, including when, "although previously subjected to DNA testing, [the evidence] can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." So there's a certain inevitability about the need to recalculate those numbers.

Making the situation even more complex, next year DPS will abandon the updated method and shift to "probabilistic genotyping," which has the benefit of using more of the DNA data but asks a mathematically different question than the old method. Instead of calculating how many people in the population share DNA traits with the sample, the new method calculates, e.g., how likely it is that two patterns match the suspects compared to any other two random people.

That's a subtle difference, but it means the new DPS method is not a direct refutation of the old one, prosecutors exasperatedly realized upon questioning the panel. Going forward, it's probably best to shift to probabilistic genotyping until something else comes along, they were told. For older cases, though,labs would probably need to calculate both. That stickies the wicket quite a bit - they can't just wait and issue results under the new method in old cases, as some labs had been advising. They'll have to recalculate them using the new stochastic threshold.

Another interesting side note: the old method always generates the same result. Because of statistical modeling, probabilistic genotyping will get a different result every time (presumably within a valid range of error). That made me wonder about the wisdom of moving to a system where results are not entirely replicable. That's an issue for the courts, one supposes, which will ultimately need to decide which approach they prefer. All this will end up before the Texas Court of Criminal Appeals sooner than later, most observers agreed.

Even when labs shift to a new method, though, the software implementing these models cannot be treated as a black box, the panel emphasized. There's inherently an interpretation element and without understanding the different statistical methodologies, they warned, crime labs could still get into trouble, a likelihood which became increasingly apparent as the hours-long session progressed. "All models are wrong but some are useful," one panelist quipped. Each are a different tool and one uses different tools for different things.

One final takeaway: Labs not only need to update their methods for performing statistical calculations, just as importantly they need to create standards for when they should make no calculation at all. One panelist gave an anecdote from a 2013 study: 108 labs were given a sample he'd created using four DNA sources, but for context he told them the names of three people, only two of whom were actual sources. Amazingly, 75 percent of labs mistakenly said the sample came from three people and included the person who wasn't a source. Only 20 percent said they couldn't make a calculation. If that's not a red flag, I don't know what is!

Budowle, who for 26 years worked for the FBI and was their lead expert on these topics, said that when there are too many DNA sources to make an interpretation, as is increasingly the case with touch DNA samples, the scientific term for what one sees in the test results is "crap." They'd operated in the past on the assumption that examiners could recognize crap, he said, but it's becoming apparent guidance needs to be developed because people are busily applying these statistical  models in invalid and problematic ways. All the other panelists agreed.

Finally, everyone agreed, this is not at all  just a Texas issue but is a national and even international problem. Everywhere DNA analysis is used for crime fighting, courts and labs eventually must grapple with these issues, and many jurisdictions have yet to do so. Texas crime labs weren't acting in bad faith on this; this isn't a drama with a villain. As science advanced, past errors became known, it's nothing nefarious, however problematic it may be for the justice system to have replied on unproven science. Texas is just confronting the issue first in large part because of leadership from the Forensic Science Commission. Their executive director Lynn Garcia has ably pieced together stakeholders and generated a meaningful, high-level conversation among decision makers, even if few decisions have been made yet.

The committee will meet again before the next Forensic Science Commission meeting Oct. 2, perhaps the day before, to take up the agenda they didn't get to yesterday in Dallas. Fascinating stuff. What a mess!

* CORRECTION: A commenter correctly noted Roady's sample was retested by DPS, not the FBI. See here.

Thursday, September 17, 2015

Roundup: Jails, crime stats and disputed statutes

Here are a number of stories this week which merit Grits readers' attention, even if I don't have time at the moment to elaborate on them:

Jail suicides
See coverage here and here of legislative initiatives on jail suicide in the wake of Sandra Bland's death. And here's coverage of another, earlier jail suicide which received far less attention. MORE: Here's another.

Sheriff values profit over pot busts
In Hudspeth County, the Sheriff will stop arresting people for low-level pot possession at the Sierra Blanc Border Patrol checkpoint because he "he rents that jail-space for profit to other paying counties" and so doesn't want a bunch of marijuana arrestees to take up space and drive down profits. The checkpoint has famously busted celebrities from Snoop Dogg to Willie Nelson.

Sometimes crime pays
At least it does when you're a corporation accused of medical fraud. Johnson and Johnson marketed the drug Risperdal for ailments beyond what it could cure and, in the process, "also turned to corporate welfare: It paid doctors and others consulting fees and successfully lobbied for Texas to adopt Risperdal in place of generics. This meant that the state paid $3,000 a year for each Medicaid patient taking it, rather than $250 a year for each."

Fudging camera data
In Dallas, police are overstating the effectiveness of surveillance cameras by conflating data reported about them with license plate readers. The latter are used to hunt for drivers with warrants in a day and age when more than 10 percent of Texas drivers have outstanding warrants. So of course those generate arrests (if not necessarily any real public safety benefit). But that doesn't speak to the usefulness of stationary cameras, which numerous studies have shown generate few arrests and have little demonstrable effect on crime.

Judge laments demise of key-man system for grand juries
A judge in Waller County issued strident criticisms of Texas' new statute eliminating the key man system and moving toward random selection of grand jurors. Ironically, he thinks the new system leaves judges with too much discretion. See Texas Tribune coverage and the judge's exchange of letters with Texas Senate Criminal Justice Committee Chairman John Whitmire. These critiques offhand seemed strained and odd to me; they may have applied to an earlier version of the bill, but not so much to the version that finally passed.

Civil commitment program unraveling
A judge refused to order five sex offenders into the state's revamped civil commitment program, reported the Houston Chronilce. It's possible the state will "have to operate two separate treatment programs for offenders in the civil commitment program," and it's unclear "what authority does the state have to continue to confine the five men?" The five were "were among 97 who were sent to court for hearings because they refused to sign waivers agreeing to voluntarily enter the new program. Another 85 civil-commitment offenders signed the waivers."

A (soon to be dead) fool for a client
A capital murder case in Smith County where the defendant has been representing himself sounds like a complete zoo. Unlike Scott Panetti, James Calvert has not been diagnosed as mentally ill. But it all sounds pretty out there. Judge Jack Skeen ultimately terminated his self-representation after zapping the guy with a shock belt.

Cleaning up crime reporting
In an underreported change, "House Bill 11 will require all local law enforcement agencies to switch from the old system of Uniform Crime Reporting, which categorizes eight index crimes and 21 other offenses, to the new National Incident-Based Reporting System, which includes eight index crimes and 49 other offenses." Some jurisdictions made the switch more than 15 years ago. Once everyone does, crime stats will be reported in more of an apples-to-apples fashion around the state, which is a good thing.

CORRECTION: An earlier version of this post mistakenly reported that a judge declared Texas' new online solicitation of a minor statute unconstitutional. My bad, he was ruling on the old version of the law. Grits regrets the error.

Chasing justice in Smith County

The Innocence Project of Texas and the national Innocence Project have filed a new habeas corpus writ in Smith County on behalf of Kerry Max Cook. Check out initial news coverage:

Wednesday, September 16, 2015

Top 5 Junky Forensic 'Sciences,' or, 'Why are forensics under fire now?'

It's been said that any field with the word "science" appended to its name is "guaranteed thereby not to be a science." With few exceptions, most forensic sciences fall into that category.

There are a few hard sciences like toxicology and DNA. But even DNA has subjective elements, we're learning, when lab analysts interpret DNA mixtures.

I've found myself explaining to several different folk recently why so many forensic disciplines all of a sudden find themselves questioned, so thought I'd share that spiel with readers. The debate really took hold after 2009, when the National Academy of Sciences issued a major report titled "Strengthening Forensic Science: A Path Forward." That expert review called into question numerous forensic disciplines in a fundamental way, particularly undermining the scientific credentials of comparative forensic disciplines from fingerprints to tool marks.

Of the comparative forensics - where somebody sits with a microscope and compares two bullet casings, hair follicles, bite marks, fingerprints, etc. - these are mostly not fields developed through application of the scientific method. Indeed, many of them have little formal scientific underpinning at all. They're just things cops began doing at some point in history (principally post-Arthur Conan Doyle) to accuse people of crimes.

No one develops expertise comparing hair follicles under a microscope, for example, unless they're paid by the state to try to match evidence to suspects in criminal cases (though they're not supposed to say "match"). It's not like there's an independent source of expertise defense attorneys can turn to in such instances - nobody does that work except other crime labs, whose analysts were probably all trained at the same FBI schools as the state's expert.

That's not to say that, being unscientific, these comparative disciplines are necessarily invalid. They're just more craft than science. Experienced, expert examiners can tell a lot about the evidence they look at. But it's at root a subjective, not a scientific process, regardless of the trappings. The NAS report laid that history bare.

Then there are other disciplines - like arson investigation and diagnoses of "shaken-baby syndrome" - where prior conclusions have been abandoned in light of more recent scientific developments. Texas' new and improved junk science writ makes this state an important site for litigating these issues over the next few years, so expect to hear about these topics more in the future. We're at the front end of a period when traditional forensics are being reevaluated, in many cases for the first time.

Here is Grits' list of top five junky forensic "sciences," all of which are either currently under scrutiny or predictably will be in the near future, with a few dishonorable mentions tacked on since five is awfully short for this list. They're in no particular order and represent my own opinion and no one else's. I could probably even be convinced to drop one or two off the list and add others (make your case in the comments). I offer the following up only as an off-the-cuff thought experiment, not a definitive account. With that said:

Bite Marks
Bite marks have been known to be on the junky end for a while, so they're only rarely used. However, prosecutors bring them in when they need that little extra push to get over the hump in a tough-to-prove case. Texas' review of bite marks cases (aka, "forensic odontology") kicks off in Dallas when a committee of the Forensic Science Commission meets in Dallas today (Wednesday) to consider the issue.

Hair Microscopy
This field arguably is more valid than bite marks - a compliment akin to "prettier in a dress than Dennis Rodman" - but was made nearly anachronistic by mitochondrial DNA testing, which is far more precise. Now, modern science and statistics have demonstrated that many analysts, particularly in older cases, routinely overstated the extent to which they could match suspects to evidence in court (for instance, they can't say "match" or even estimate statistical probabilities, since that overstates what could really be known about individualization of evidence from even the most expert review). The Texas Forensic Science Commission has begun reviewing old cases, mirroring a similar effort reviewing hair microscopy at the FBI. But the going is slow and made more difficult by problems getting transcripts from the appellate courts; there's a significant number of these cases out there.

Shaken Baby Syndrome
The New York Times called it "A Diagnosis that Divides the Medical World." Biomechanical research has debunked many of the early claims, but proponents remain dug in. Emotions run so high whenever someone thinks a caregiver murdered a child that science can become lost in the shouting. The Washington Post published a major piece this spring examining the state of the debate. These cases aren't legion but neither are their numbers insignificant. And the defendants are disproportionately women.

Handwriting Analysis
Another science-free field whose validity has been long debated, you'd think this one may eventually go extinct altogether. Analysts' associations are 95% accurate when they have four-page documents to compare, but who writes that much anymore? OTOH, when it comes to identifying forgers from signatures on checks: ''Even in laboratory settings, there is no evidence they can do it."

Abel Assessment/Penile Plethysmograph
These gems are used particularly on the parole side: They show alleged sex offenders dirty pictures and measure their responses, in the case of a plethysmograph by attaching measuring devices to the penis. Various studies have estimated the error rate on the Abel Assessment at 35-48%. One study found "a 42 percent false-positive rate when non-molesters were tested."

Dishonorable mention:
  • Dog-Scent Lineups (defunct in Texas, last known uses in Florida, communist Cuba). Former Ft. Bend Sheriff's Deputy Keith Pikett's dogs supposedly performed scent lineups in many hundreds of criminal cases, but nobody's ever tracked them all down.
  • Comparative bullet-lead analysis (defunct). As it turned out, an Aggie helped kill it.
  • Arson (older cases - Grits readers will recall the problems with arson science raised in the Todd Willingham case, the FSC, and the State Fire Marshall's arson review). Modern, 21st century arson investigation is much more science-based, derived after burning down hundreds of test buildings and gathering evidence. Under modern standards, arson investigators are also more likely to label a fire "inconclusive" than "arson"; many of the old indicators have been debunked but not always replaced.
  • Footwear and Tire Tracks 
Finally, as I publish this, I do so knowing that among the first comments will be defense attorneys suggesting Grits should have included proprietary breathalyzer software/equipment like the Intoxilyzer 5000, or some such, to which I'd reply, "I know virtually nothing about it, convince me." So if that was your first thought, get thee to the comment section and do so, with links, please. Otherwise, the above seem to me more like the sort of immediately emerging issues identified in 2009 by the National Academy of Sciences.