THE CRUEL REALITY OF CRIMINAL EVIDENCE: IT’S JUST NOT THAT RELIABLE

What is the problem with Jonathan Salvador’s lab results? By the time that he was suspended as a state forensic scientist in February 2012, Salvador had worked on 4900 different drug cases in 30 different Texas counties. It was discovered that Salvador had replaced the results of one test with another, unrelated lab test in one criminal case. This brought all his other work (the other 4899 cases) into question and while he was investigated by a Harris County Grand Jury, Salvador was not indicted.

Prosecutors and District Attorneys Hiding Evidence or Introducing False Evidence to Win Their Case

The exoneration of Michael Morton here in Texas has made the national news for a while now, as Mr. Morton has become a national voice warning about the real dangers of prosecutorial misconduct in Texas and elsewhere. Morton served many years in a Texas prison for the murder of his wife and mother of his young son before he was freed. Key evidence in Morton’s case was kept back from the defense team, and this was done intentionally by District Attorney Ken Anderson (who would later spend several years on the bench as a state district judge). Eventually, former prosecutor Ken Anderson was found guilty of wrongdoing by an official Court of Inquiry after Morton was freed due to the zealous efforts of his defense lawyer.

State Senator Rodney Ellis, Michael Morton, staff, and supporters after Senate passage of the “Michael Morton Act,” April 2013

However, Mr. Morton is far from the only victim of prosecutorial misconduct in Texas. Another recent example is the November 2012 release of Kenneth Wayne Boyd, Jr., by the Texas Court of Criminal Appeals after he was convicted of a triple homicide back in 1999. Boyd, like Morton, maintained his innocence but he was freed only after it came to light that the prosecutor, Karren Price, hid evidence that would have cleared him at his trial. Price has been found to have withheld material, exculpatory evidence from the defense including (1) reports that another person was really guilty of the murders; (2) letters sent by witnesses taking back their stories; and (3) a failed polygraph test that implicated someone else for the three homicides.

Additionally, Shelby County District Court Judge Charles Mitchell in his exoneration order ruled that this prosecutor intentionally introduced false evidence in Boyd’s trial as well as keeping things from the defense (suppressing evidence). Judge Mitchell heard the case after the new Shelby County District Attorney, Ken Florence, reopened the case after Boyd’s lawyer filed an appeal, and the Texas Court of Criminal Appeals freed Boyd after a Petition for Writ of Habeas Corpus based upon prosecutorial misconduct by Shelby County District Attorney Karren Price was filed on his behalf.

Office-wide Suppression of Evidence Known to be Unreliable Used to Convict Defendants in Texas

In a criminal case, the prosecutor who is lead counsel in the courtroom where the case is being tried makes the decisions on what evidence comes in and goes out; a rogue district attorney doesn’t mean that the entire District Attorney’s Office (which can be a handful of prosecutors or dozens of assistant district attorneys, depending upon the size of the community served) is at fault.

However, all too often many people purportedly on the side of justice are aware or suspect that evidence is flawed or faulty and fail to speak up. A recent example of this happened in Houston, where the Harris County District Attorney’s Office faced a Grand Jury Investigation into how much was known about the inaccuracy of laboratory tests being done for drunk driving by traveling labs or “BAT Vans.”

BAT Vans were being used in Houston as part of a local campaign against drunk drivers, where roaming mobile breath test labs that resembled recreational vehicles (RVs) were set up as laboratories with seats for medical technicians, cops, or nurses and lab equipment to perform drunk driving tests on the road. These RV labs are being used by law enforcement all over the country to crack down on drunk driving even though they have a reputation for conducting tests that can be flat out wrong. Apparently, these vans themselves can mess with the test results due to electrical issues, mechanical problems, temperature changes, and other problems.

Not long ago, three technical supervisors in the Houston Police Department Crime Lab quit their jobs because no one was acknowledging their complaints and warnings about the BAT Van test results being wrong. Soon their concerns were made public.

In response, then-Harris County District Attorney Patricia Lykos issued a media statement in response to Culbertson’s testimony stating, “We sponsor the crime laboratory’s scientific evidence in our prosecutions. Accordingly, we have a responsibility to ensure that the evidence was collected and analyzed properly.”

The Houston Police Department responded: “At this time, HPD is not aware of any tests being compromised due to temperatures within the BAT vans. We were alerted to past air conditioning problems within the BAT vans and have worked to correct the issue by installing rear air conditioning units in the vans. Additionally, all officers operating the BAT vans have been trained on the proper procedures to allow for air conditioners to work properly. Vans not kept at the proper temperature settings do not cause the instruments to give false readings. Instead, the instruments would not give a reading at all, thus preventing any invalid tests.”