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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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Good Deeds

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Criminal defense lawyer extraordinaire Mark Bennett has done his fair share of good deeds. As he can tell you, no good deed goes unpunished.

A true defender, Mark often comes to the aide and defense of his brethren in and around Harris County. He is head of the HCCLA Strike Force and responds to a “bat signal” whenever distress rears its ugly head.

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assessing the situation

Fairly recently (recent being a relative term when waiting on the State Commission on Judicial Conduct), a local judge was issued a private sanction after improperly detaining a colleague who was simply wanting to communicate with her client. Mark, and many others, rapidly appeared to assist. Mark took the lead, assessed the situation, and worked out an appropriate settlement. The judge withdrew her order of custody and released our colleague.

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researching remedies

In the aftermath, the State Commission on Judicial Conduct completed an investigation and issued a private sanction. During that investigation, the Commission took statements from those who witnessed the incident in whole or in part. (I know because I spoke to executive director, Seana Willing, who asked for my statement. I also spoke to the private investigator working for the judge’s attorney regarding the judicial complaint.) At the conclusion, the Commission determined a private sanction was appropriate.

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everyone willing to help

Fast forward: good deed done, now comes the punishment. Just last week, Mark had a case in said judge’s court. He took on this case last minute (yet another good deed) after the death of a colleague. He had a legitimate reason to request a very short continuance to cover a legal matter that could substantially affect his new client. His request was met with hadn’t he “just asked her for another day yesterday” and he “was losing credibility.” In Mark’s explanation about just taking over the case in an unforeseen tragic circumstance, the judge responded, “well, no good deed goes unpunished.”

And there you have it. Mark performed a series of good deeds only to have his credibility attacked. Retaliation for his assisting colleagues and providing a truthful statement to the Commission. Oh, and did I mention, when he wrote about all this, he learned just a little bit more about the judge and retaliation.


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Can My Client be Impeached with Prior Juvenile Adjudications?

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Well, generally, no, but it depends. (Don’t you just love that answer!)

 Texas Rules of Evidence, Rule 609(a) speaks generally to impeachment with criminal convictions. Juvenile adjudications are not criminal convictions, and are therefore, generally not admissible for impeachment purposes. Rule 609(d) specifically addresses juvenile adjudications:

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

A close reading of Rule 609(d) allows a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial, but it does not extend to non-juvenile proceedings. In other words, the prior juvenile adjudication cannot be used to impeach an adult in a criminal proceeding.

Notice the distinction: a prior juvenile record cannot be used for general character impeachment of a witness. However, pursuant to 609(d)(2) the Constitution may require a prior juvenile adjudication to be admitted for impeachment purposes. For example, if a witness is currently on juvenile probation that record might be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony). Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000).

So, for a juvenile on trial in a juvenile proceeding, his own priors can be used to impeach him. Outside of this situation, it will require a Constitutional issue such as bias or prejudice before a prior juvenile adjudication will be admissible for impeachment purposes.


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Right to Bear Stun Guns

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Yesterday, the U.S. Supreme Court ruled a Massachusetts woman just might have a 2nd Amendment right to carry a stun gun. She was originally arrested, charged, and convicted of carrying a stun gun in violation of Massachusetts’s law. All agreed she bought and carried the stun gun for protection from her abusive ex-boyfriend. The Court, setting aside her conviction, essentially expanded the 2nd Amendment “right to bear arms” by suggesting a woman has a right to carry a stun gun, or taser, in public to defend herself.

A few states, including Massachusetts, New York, New Jersey, Rhode Island, and Hawaii, as well as several cities have passed laws that generally forbid the carrying of tasers or other similar electronic shock devices. Now, those laws are in question. Without specifically saying stun guns are specifically protected by the 2nd Amendment, the per curium opinion (an opinion in the name of the court rather than a judge or judges) held the Massachusetts court misunderstood the Supreme Court’s prior rulings on how to determine whether a particular weapon is protected or not. In short, the Supreme Court told Massachusetts to come up with a better reason for its prohibition if it wants to keep the prohibition.

The Massachusetts court made three arguments for upholding its law which forbids carrying stun guns in public.

First, Massachusetts said stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The Supreme Court found this theory unpersuasive and against its prior rulings. Just because a particular technology was not available or common in the 1800’s, does not mean the 2nd Amendment cannot protect it. Specifically, in its prior rulings, the Supreme Court has said the 2nd Amendment extends to arms that were not in existence at the time of the founding of our Amendments. (Heller court opinion)

Next, the Massachusetts court relied on its position that stun guns were dangerous and unusual as a reason for upholding its ban. The Supreme Court again found this theory without merit. The Supreme Court said Massachusetts equated “unusual” with “in common use at the time the 2nd Amendment was enacted.” And again, the Supreme Court stated the state could not rely upon only those arms that existed at the time of the Amendment.

Finally, the Massachusetts court stated stun guns were not of the type of weapon which would be readily accessible to the militia. Massachusetts based this on the 2nd Amendment itself and its language regarding a well regulated militia being necessary to justify the right of the people to keep and bear arms. Again, the Supreme Court took exception and reminded Massachusetts that its prior rulings did not limit the 2nd Amendment protection to only those weapons used in warfare.

Finding each of Massachusetts’ reasons flawed, the Supreme Court vacated or cancelled the woman’s conviction and directed the Massachusetts court to reconsider in light of the Supreme Court’s rationale and prior rulings.

With the Supreme Court issuing a very brief opinion, Justices Alito and Thomas entered their own concurring opinion to better explain their position. After detailing the events surrounding the abusive ex-boyfriend and the state of Massachusetts failing to protect her, they take Massachusetts to task for failing Ms. Caetano yet again:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.

It is clear from these opinions that the 2nd Amendment is alive and well in the United States. The Supreme Court is unwilling to change its prior positions and looks for the states to get in line with the right to keep and bear arms.

 


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Unforeseen Consequences

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Criminal convictions have intended consequences. They carry punishments that include life and liberty. Convictions can cause someone to be jailed for a period of time. They can cause payment of fines and participation in rehabilitative programs. But what happens when the punishment is over?

After the punishment comes the collateral consequences – the unforeseen consequences that can haunt the rest of someone’s life. I’ve touched before on this before as I covered whether one’s debt to society is ever truly paid in full. But now I want to focus on some of the very real and very specific consequences that are indirect but just as important.

Financial Consequences

Financial consequences include employment restrictions, licensing for specific jobs, financial aid and government assistance, educational benefits, social security benefits, asset forfeiture, and surcharges.

Employment is the most commonly recognized consequence. Certain convictions can cause employers to simply pass on hiring or fire a particular employee. This could be simply because the employer chooses to base employment on certain criteria or because particular licenses are required for employment.

The Texas Occupations Code sets general rules for the licensing of plumbers, cosmetologists, boxing promoters, pawn shop owners, air-conditioning contractors and so many more. Depending upon the type and severity of the conviction, licensing may be denied or suspended. This leaves these folks out of work and unable to meet their financial obligations. Additionally, some specific professions require their own licenses or accreditations such as lawyers, architects, dentists, doctors, engineers, social workers, therapists, and more.

Financial aid and government assistance such as grants, government loans, and even food stamps are tied to collateral consequences for those convicted of certain crimes. Any possession or distribution of a controlled substance (including marijuana) can temporarily or permanently bar students from federal and state educational grants and loans.

Social security benefits are stopped for a person incarcerated more than 30 days on a conviction. Though this makes some sense, it also sets up additional financial obstacles for that person’s family.

Federal law imposes a lifetime ban on food stamps and federally funded public assistance for drug felons. And Texas follows the federal law. This is another example that harms not only the convicted felon but his entire family.

Creating large financial hardships, the government will often forfeit assets such as cars, homes, and cash. Understandably, felons should forfeit illegal proceeds and the assets purchased by such illegal proceeds, but our broad system of forfeiture allows the government to cast a much broader net. Did you realize the government can seek to forfeit the car used to flee the scene of a crime? Did you know some jurisdictions go after the personal homes of those convicted of sexual offenses committed inside the home.

Rounding out our financial consequences are the surcharges placed on licenses such as a drivers license. In a DWI conviction, the Department of Public Safety assess a $1,000 -$2,000 per year, for three consecutive years, surcharge on your right to drive.

Other Consequences

In addition to financial consequences, there are a great variety of other consequences which include deportation, restrictions on possession of firearms and ammunition, inability to hold public office, loss of voting privileges, and even restrictions on child custody and conservatorship.

Restrictions on custody and conservatorship are often overlooked or unknown. A protective order in place for family or domestic violence will prevent a parent from being a joint managing conservator of his own children. Additionally, for safety reasons, access to one’s own children may be restricted or supervised based on prior abuse.

With all of these consequences and more, it is imperative that lawyers understand these consequences and fully explain them to clients deciding whether or not to “take a deal” in their criminal accusations. With all these lasting consequences, it is clear that most people cannot truly pay their debt to society in full and move forward.

 

You can look up specific collateral consequences by state here


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Affluenza Teen Corrections

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Sadly, so much of what I have read in the media regarding Ethan Couch, the notorious “affluenza teen,” is just legally wrong.

Now, I am not advocating for more or less punishment or trying to guess the merits of the State’s case or the defense. But, I do know juvenile law, and many things quoted in the media do not add up.

According to a NPR report today quoting The Dallas Morning News, the teen faces 120 days to 180 days in jail in addition to other probation conditions such as and ankle monitor and curfew. It is reported that because the teen’s case is being transferred to adult probation, the new district court judge can set/add conditions of probation for the teen.

It will be up to a state district judge in adult court to determine what the terms of his probation will be, such as an ankle monitor or curfew. A judge can decide if he will spend a minimum of 120 days in jail, but the maximum that he could get is 180 days in jail, Couch’s attorney Scott Brown said.”

When a juvenile determinate sentence probation is transferred to adult probation, the case is literally transferred from the juvenile court to a district court. And while it is true that the district court sets the conditions of probation, the district court is limited to those conditions consistent with the previously set juvenile conditions. So, unless the juvenile court had already ordered an ankle monitor, the district court cannot simply add this new condition. Similarly, the district court cannot simply assign jail as a condition, even though such jail time would be required for an adult placed on probation for intoxication assault and manslaughter.

Here’s the legal reason:
Under Family Code §54.051(e), the district court exercising jurisdiction over a child transferred under §54.051(d) shall place the child on community supervision under Code of Criminal Procedure Art. 42.12 for the remainder of the child’s probationary period and under conditions consistent with those ordered by the juvenile court. None of the restrictions of CCP Art. 42.12 apply to a case transferred from juvenile court.

So, one of the requirements of CCP 42.12 (for adults placed on probation for intoxication manslaughter) is that the defendant serve a minimum of 120 days in jail with a maximum of 180 days in jail. This is where the criminal practitioner usually errs. The requirements of CCP 42.12 do not apply to the juvenile being transferred.

Whether or not the teen deserves or needs jail time or an ankle monitor or even other conditions, his own attorney should be making the judge follow the law instead of telling the media the kid will do at least 120 days.

Now, if the teen violates one or more conditions of his probation, then after a hearing, the judge would be justified in either revoking his probation and assessing prison time or modifying the conditions of his probation to include jail time or an ankle monitor among other modifications.

Sadly, throughout this case, lawyers and the media just keep getting it wrong. Next time, consult a board certified juvenile lawyer!

*UPDATE*

Since posting, an additional question has come up – so I thought I should amend and add this question and explanation.

Many have asked if Couch could be facing a “violation/modification” of his probation for the alleged violations of probation that occurred previously. In short, I believe the answer is no.

Under the juvenile code which authorizes transfer of a determinate sentence probation to adult court and probation, the receiving district court can proceed on a violation of a condition of probation under 2 circumstances:

  1. the violation occurs after transfer
  2. the violation occurred prior to transfer BUT the violation was NOT KNOWN to the State prior to the transfer.

The rationale is that if the violation was discovered while still in juvenile, then the juvenile court should address it. If the State knew of the violation but choose not to proceed on it, then the State is thereafter barred from proceeding on that violation. In other words, the State should have availed itself of the remedies in juvenile court rather than ignoring it until the juvenile reached adult court.

The Law:

Family Code 54.051 (e-2)
If a person who is placed on community supervision under this section violates a condition of that supervision or if the person violated a condition of probation ordered under Section 54.04(q) and that probation violation was not discovered by the state before the person’s 19th birthday, the district court shall dispose of the violation of community supervision or probation, as appropriate, in the same manner as if the court had originally exercised jurisdiction over the case. If the judge revokes community supervision, the judge may reduce the prison sentence to any length without regard to the minimum term imposed by Section 23(a), Article 42.12, Code of Criminal Procedure.


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Mentoring Should Be Mandatory

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In the practice of law, mentoring should be mandatory. This is especially true in criminal defense where life and liberty are on the line in each and every case.

Some lawyers practicing criminal defense simply hung a shingle and opened a practice. Others are former prosecutors. In either instance, mentoring is key.

Prosecutors know how to prosecute. They get on the job training. They step in to try cases immediately. This gives them the practice in front of the court and jury. This gives them confidence in their trial skills. But, it doesn’t teach them to defend. It doesn’t necessarily teach them to preserve error. It doesn’t necessarily teach them to think outside the box. And it certainly doesn’t teach them compassion for situations and circumstances.

I was a prosecutor for over 5 years. I knew how to try a case. I knew how to present arguments. I knew how to talk to a jury. But, that doesn’t mean I knew how to defend people accused of crimes. Sure, I knew the law. Sure, I knew how to research. I even knew how to write trial briefs. But did I know how to defend? Not really.

I was fortunate though. I had many great mentors willing to help me. I was able to call upon those who had been practicing defense for years and seek their input and assistance. Great lawyers like Nicole DeBorde, Stanley Schneider, and many others helped me. I also attended (immediately) my first of many TCDLA defense CLEs.

At the time, I’m not so sure I recognized it as mentoring, but the defense lawyers I immersed myself with certainly were mentoring me. They opened my mind to a different thought process. They taught me nuances I had never considered. And, they taught me to do it all without the use of a “badge” since no one wants to help a defendant.

Last week, the Texas Indigent Defense Commission and National Legal Aid & Defender Association published their report on Indigent Defense Mentoring in Texas (below). Their report highlights the importance of mentoring and the available programs in Texas. I have been fortunate enough to participate in both of the Harris County programs as a mentor. Serving as a second-chair mentor and as a FACT mentor not only helps the younger lawyer but raises the bar for criminal defense – indigent or otherwise. I am also fortunate to assist with TCDLA’s training through speaking and course directing. Training on the “law” is one thing, but training in “defense law” is completely different.

Having been mentored and now mentoring, I can say without a doubt mentoring should be mandatory. And, luckily I was fortunate enough to have had great mentors!

You can download and read the Mentoring report here: tidc-nlada-attorney-mentoring-report

Not only do I believe mentoring should be required, but also there is an argument to be made that it is required under the State Bar Disciplinary Rules. In a recent guest blog on the State Bar Blog, Rehan Alimohammad explains:

Why should we mentor or help other attorneys? The Texas Disciplinary Rules of Professional Conduct states, in the first paragraph of the Preamble, that a lawyer has a special responsibility for justice. In the fifth paragraph of the Preamble, there is more specificity when it states, “… a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” Is there a better way to impact the quality of the entire legal profession than mentoring or giving advice to a young attorney? The Preamble does state later that use of the word “should” in the rules means the lawyer has professional discretion. So, there may be no violation of the rules for failure to mentor.


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The File: Whose is it?

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Important information for attorneys and their clients. Clients: know the file is yours and you are entitled to it (with a possible exception for some materials). Attorneys: know what to turn over and when.

Common Attorney Questions: My client (or former client) wants a copy of his file, can I charge him copy fees to make a copy? What if he didn’t finish paying, can I hold the file until he does?

Texas Disciplinary Rule of Professional Conduct Rule 1.15: Upon termination of the attorney-client relationship, a lawyer must take steps to protect the client’s interest including surrendering papers and property to which the client is entitled.

Texas follows a rule that the “file” belongs to the client, thus it must be surrendered to the client upon request. Lawyers may make a copy for their own files, but the file must be surrendered to the client upon request. Ethics opinion 610 makes it clear that lawyers may not hold a lien on the file, thus, regardless of whether the client has fully paid his bill, the lawyer must turn over the file.

Exception: Under the Michael Morton Act, a lawyer is prohibited from providing copies of the discovery provided by the state to the defendant (or others). The rule specifically states that a lawyer may allow a defendant (or certain others) to view the material but may not allow that person to have copies. Before allowing a defendant to view the material, a lawyer must redact identifying information. Because this material is excepted from disclosure to the client, a lawyer must keep this information separate so that it is not provided to the client in the event the client requests his file.

New legislation (HB 3791) clarifies the recent open question on whether a lawyer can turn over a DWI video to his client. Some lawyers believed the video could not be turned over to the client under the MMA because it was discovery received from the state under the MMA. Some believed it could be. The legislator cleared up the inquiry by amending CCP 2.139 to state specifically that DWI videos are available to the person stopped or arrested on suspicion of intoxication offenses. The DWI video includes video of the (1) stop, (2) arrest, (3) conduct of the person stopped during interaction with officer including SFSTs, or (4) procedure in which a person’s breath or blood is taken.

CAUTION FOR LAWYERS: Be careful with requests from subsequent attorneys for the client’s file. Only the client may request transfer of the file to the new counsel. In an interesting case, appellate/habeas counsel contacted former counsel for the client’s file. The former counsel refused to provide the file absent the client’s consent. The trial court then ordered former counsel to turn over the client’s file, over the client’s objection. In In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013), the Court of Criminal Appeals issued a mandamus to prohibit the trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file.


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Use of Juvenile Priors

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One of the questions I’m asked most frequently is whether a particular juvenile prior adjudication can be used to enhance a new adult criminal charge and bar probation eligibility.

Under Penal Code §12.42, felony offenses can result in enhanced punishments for those previously convicted of felony offenses. When looking at a prior juvenile adjudication, certain adjudications are counted as “convictions” for purposes of PC§12.42.

For purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission [now Texas Juvenile Justice Department] under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

The important distinction is that the adjudication is only treated as a conviction for purposes of certain subsections of 12.42; not for all purposes. So while punishment may be enhanced by a prior juvenile adjudication, that adjudication does not bar consideration for probation under CCP Art. 42.12.

Because §12.42 applies only to first, second, and third degree felonies, juvenile prior adjudications cannot be used to enhance punishment for state jail felony offenses.  State jail enhancements are governed by §§ 12.35 and 12.425, neither of which defines prior juvenile adjudications as convictions.

When dealing with first, second, and third degree felonies, a prior juvenile adjudication for felony conduct which resulted in confinement in TYC or TJJD is treated as a conviction for enhancing the punishment range in the current charge. Because §12.42(f) limits the use of juvenile adjudications to sections (a), (b), and (c)(1), juvenile adjudications do not count towards habitual status which is governed by §12.42(d).


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DNA Errors: Big Deal or Not?

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Have you seen the news? The FBI has announced errors in its database which is used across the nation and in Texas. In two prior blog posts (on separate sites), I addressed this issue.
August 7, Just How Accurate is DNA?, HCCLA.org (with memo downloads)
September 18, FBI DNA Calculation Errors, HCCLAtv.com

Today, Fox 26 News visited with me to get a perspective on just how big this problem is.
As I told Andrea Watkins, Fox26 News, the problem will be large simply because each case will have to be identified and then reviewed to see what impact the DNA results may have had on a particular plea-bargain or jury verdict. Ultimately, this will amount to thousands of cases locally as the errors have existed and been perpetuated since 1999.

The problem is that errors in the statistical database could have caused an inflated reliance on a match. For example, instead of the probability of a particular DNA sample matching a suspect or defendant being 1 in 1 billion, it could be that it is only a 1 in 100 chance of belonging to the same person. This certainly changes the landscape and statistical chance of the DNA being left by the same person.

This problem is compounded in “mixture” cases. A mixture case is where two or more persons have contributed to the sample. We often see swabs collected from crime scenes where the analysis reveals the DNA of two individual people. The statistical errors, once corrected, can cause a scientific result which once included a suspect to now exclude that same person because of the lack of strength in the probability of the result matching. (I hope that makes sense. Essentially, science sets limits. If the probability falls below the lower limit, it is no longer considered a scientific match; so if the recalculation falls below, it is no longer considered reliable.)

Of course correcting each DNA statistical calculation will not ultimately help every defendant or suspect. But i will change the scientific reliability in some cases; therefore, each case will have to be analyzed to see whether or not it is affected.

This is a huge undertaking. It will take time. And, it will certainly add to the backlog in crime labs and the overall turn-around on testing old as well as new evidence.

In any event, I’m staying on top of this and will continue to report what I can.


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