Sunday, February 28, 2016

Pluto, DNA and the Fool's Gold Standard of Science

The memories haunt. How many times did I discuss DNA findings with a tone of finality? Whether a client, a client's family member, another lawyer, it was always done in sacred tones. "The DNA does not lie" passed my lips more often than I now care to remember.

It turns out the DNA did lie, at least in mixture results, for years.

It has been close to a year since news broke publicly that DNA mixture protocols, or methodology, relied on for many years, changed within the scientific community. This change resulted in a major reduction in the statistical analysis of any given subject's DNA being present in a forensically tested mixture.

Like scientists declassifiying Pluto as a planet in our solar system, DNA interpretation changed. What was a once a high probability of a DNA match in a mixture is now, under new protocol, a possibility, perhaps even a remote one. Pluto did not change. Scientific interpretation of the data changed. Similarly, the DNA material in the mixture did not change, just the interpretation of the data coming FROM the DNA material.

Although the news itself is not new, it is no less disturbing now than when the news first broke.

Now news that interpretation of DNA data has become even more problematic because less and less DNA material is needed for DNA analysis. This means DNA analysis is possible though less DNA material is found on a piece of evidence. The problem? It creates a higher chance of erroneous conclusions because of what goes on both inside, and outside, the testing laboratory.

Carl Zimmer in his New York Times story dated February 26, 2016 explains:
In 1983, the NobelPrize-winning biochemist Kary Mullis sped up the process with a kind of photocopying machine for DNA called polymerase chain reaction, or PCR. Dr. Mullis showed the world how to make millions of copies of any particular genetic fragment.
PCR made it possible for scientists to work with DNA in smaller samples, since they could now make more of it. Over the past four decades, researchers have come up with ways to run ever-more-sensitive tests. In the most extreme of these, experts can reconstruct the entire genome using DNA fragments extracted from a single cell.
The problem?
But the more sensitive DNA tests become, the greater the risk that they will yield the wrong result. Even stray bits of DNA — from a lab worker’s skin cell or an airborne fungal spore — may contaminate the test equipment.
When scientists then run PCR reactions, they may make millions of copies of the contaminating DNA along with the genetic material they want to study. Even a little contamination can skew results.
Perhaps even more of a problem is what occurs before the evidence hits the front door of the testing laboratory. Zimmer's story framed this variant of problem:
But low copy DNA analysis can detect a mix of DNA from more than one person, and it can be hard to tell which of them is relevant to a crime.
'Maybe there’s not three people bleeding on a steering wheel, but there are three people touching it,' said Kirk E. Lohmueller, a geneticist at the University of California, Los Angeles. 'Before, you didn’t have to worry about that.'
People can even leave DNA traces on objects they haven’t touched. In the January issue of The International Journal of Legal Medicine, German researchers vividly illustrated this problem.
They rubbed a cloth on people’s necks, and then gave the cloths to a second group of people. The second group rubbed their hands on the cloth, picking up the DNA from the first group, then handled a plastic bag or a cotton cloth.
When the scientists examined the bags and cloths, they found DNA from the first group of subjects about 40 percent of the time.
DNA, like fingerprinting before it, was considered the gold standard of forensic evidence. What we know now is DNA analysis can be fool's gold. Just like my middle school science teacher was wrong, according to "modern" science, when she taught Pluto was a planet.

Wednesday, February 17, 2016

Keep College Station Weird

There are the many people in my town sporting "Keep College Station Normal" T-shirts or bumper stickers on their cars. It is meant to be a counterpoint to the Austin moniker "Keep Austin Weird," trumpeting that city's progressiveness, diversity and creativity. However, in at least one very important aspect, College Station has spadefuls more of those traits than Austin.

Fun For All Playground at Central Park is a special needs, sensory friendly playground designed with those with physical and cognitive disabilities in mind. From experience, I can give testimony to the difficulties in to using conventional playgrounds with a special needs child. These traditional playgrounds can be utilized, but having a park designed with special needs in mind is not only creative, but is tangible evidence of embracing our differences.

The Rotary Club of College Station conceived of the idea, and the City of College Station donated 2.5 acres of land at Central Park for location. Equipment will be dependent, in some part, on fundraising. The link on the planned design is here. So cool, is it not? Here is a list of 30 other cities around the world with this kind of inclusive playground. Only 1 is in Texas, in Frisco.

Brazos Valley Fashion Week, March 3, 4 and 5th, 2016 is a fundraiser for the Fun for All Playground. Please consider purchasing tickets, or contact me to contribute to the silent auction. All proceeds derived from the silent auction will go toward the playground. 

Let's keep College Station Weird in this very important way.

Tuesday, February 16, 2016

Confronting Nino

In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him - Amendment VI, United States Constitution
The death of Associate Justice of the Supreme Court, Antonin Scalia is national news. His influence, however, extended tangibly to my small corner of the world. This is because, almost single-handedly, Justice Scalia changed the practice of law in the criminal trial trenches. Nino Scalia may have been the bane of liberals, but his legal philosophy did not so easily fit in a box. Witness his opinion that changed the landscape of criminal trials: Crawford v. Washington.

Before Crawford, the Confrontation clause was a relic. It was measured by a standard similar to hearsay, an evidentiary rule in which the exceptions (I mean, what exactly IS a Present Sense Impression anyway?) have eaten up the rule of exclusion. BC (Before Crawford) the legal rule was if the out of court statement sought to be admitted into evidence bore sufficient indica of reliability constitutional requirements of confrontation were not offended.

This elastic standard meant, in practice, just about any third party statement made by an unavailable witness against a criminal defendant was going to heard by a jury.

Then came Crawford. Justice Scalia's opinion raised the Confrontation clause, like Lazarus, from the dead. The opinion declared that confrontation required more than a hearsay exception: If the statement sought to be admitted against the accused was "testimonial" the fact finder could not hear it without the opportunity for the accused citizen to confront the absent witness

Aye Gawd, the man reached back and used Sir Walter Raleigh as the beginning point of his constitutional argument.

Much litigation since his 2004 majority opinion has centered on what is, and is not, testimonial under Crawford, but that is of no moment. Justice Scalia's rhetoric and bombastic dissents may be the thing for which he is remembered, but those who speak ill of his legacy ought to confront their own bias and give the man his due.

Sunday, February 7, 2016

Getting High: Bail in Brazos County, Part 2

Recently I posted that bonds in Brazos County for misdmeanor cases were too high. In the post I compared them against published bond schedules for Harris County arrestees, revealing that in some instances, a misdemeanor arrest in Brazos County could mean having bail set 6 times higher for the same offense in Harris County.

This post explains several the problems and how they were created.

Bail is haphazardly set in Brazos County. The reason is in the history. When I began practicing criminal law here, 1 person was responsible for setting bail. Her name was Judge Carolyn Hensarling, and because her Justice of the Peace office was on the 3rd floor of the courthouse, she set bail amounts. At that time the Brazos County jail was located on the 4th floor of the courthouse. Each morning at 8:00 AM, jailers would bring the those arrested the night before down, line them up against her small courtroom wall, and she would read each their magistrate warnings and set bail.

It was a good system. Why? Because Judge Hensarling's was at the courthouse. She could, and would, sign off on agreed bonds, or if you showed up early enough, listen to argument that bond relief should be given. She would let you stand with your client while she read magistrate warnings. When you have been in jail overnight it can be a small, but important, comfort to have a lawyer next to you the first time you appear in front of a judge. For the lawyer, it solidifies the relationship just beginning. It was dependable, practical and generally fair system of setting bail amounts.

But Judge Hensarling did not win re-election one year and was replaced by a judge who was not as, well, collegial in the view of many. There was contention between the new JP, the DA's office, and other judges. It was decided sometime in the mid to late 1990's to rotate the job of reading magistrate warnings and setting bail amounts amongst all the JP's in the county. Initially, the JP's would travel to the jail, by then moved to a location outside the courthouse. Currently, arrestees from the 24 hours before are assembled in a room at the jail, read their magistrate warnings and bail affixed by a two way video link.

Gone are the days when a lawyer could appear with his client by getting to the courthouse early. A lawyer wanting to speak to the JP to try and have a say in the bond amount will have to find out JP setting bonds is that week (the JPs know, the jail knows, but practically no one else does), and attempt to get hold of them before they convene their morning, video "jail run." Even if an agreed bail is secured, getting it to the judge after the jail run is can be a problem depending on who the JP is.

The most systemic problem today is arrestees from College Station. Unlike every other law enforcement agency in the county, the College Station Police Department does not immediately take "on site" arrestees (arrests without warrant are called "on site") to the Brazos County jail. They take them instead to the College Station Police Department. At some point, they are transported as a group to the county jail, where, if they make it on time, have bail set along with everyone else arrested in the last 24 hours. If College Station transport is late, or if the arrestee does not make the transport, they will wait an additional 24 hours until the JP convenes their video jail run the following morning.

College Station makes most of the "on site" misdemeanor arrests in Brazos county for an obvious reason: Texas A&M University. DWI, Possession of  Marijuana (POM) are chief among these. Steps have been taken to lessen the problem, but the solution created another. POM arrests from College Station are allowed now to waive magistrate warnings (allowed in misdemeanor arrests) and make bail from the College Station city jail at the base $2000 bail amount for Class B misdemeanors.

DWI, however, is another matter. Brazos County is a no refusal jurisdiction. In other words, if arrested for DWI here, and the arrestee refuses to consent to a blood or breathe specimen for forensic testing, a warrant will be sought to secure it. Here's the rub: An arrestee refusing consent will be held and transported to the county jail. An arrestee who consents is allowed to waive magistrate warnings and post bail from the College Station city with the $2000 base amount.

I have not found evidence that an arrestee is told if they consent, they can make bail and therfore be released faster, but I know this procedure is or has been utilized. I have heard it too many times from potential DWI clients coming into my office after making bail after consent or refusal. I understand it is anecdotal, but I would invite someone in authority to get on the record and say it is not, or has not, happened in the past.

If true, it jeopardizes the validity of the consent to provide a breath or blood specimen. If an arrestee knows liberty is a "yes" away instead of a paddy wagon ride to county jail and potentially another 24 hour wait, most will understandably opt for consent. Second, and more fundamentally it is wrong to treat these folks differently. If one set of misdemeanor arrestee is eligible to make bail from College Station, then all should be. Finally bail is meant to assure later court appearance, not penaliize arrestees for not cooperating with law enforcement investigations.

Here are my suggestions:
  • Lower bail amounts for misdemeanors. Use the Harris County bail schedule as a guide. It would promote use of cash bonds, which can be refunded to the arrestee once court proceedings are finished. 
  • Make posting bail easier and uniform. Everyone goes to county, and all misdemeanor arrestees allowed to waive magistrate warnings and post bail according to schedule. If College Station continues to insist on transporting from the city jail, allow their misdemeanors arrestees to also waive and make bail as if they were in county.   
  • For that matter, lower bonds across the board. We have too many people locked up in Brazos County on pre-trial detention. It would save tax payer dollars and as a matter of principle, if an arrestee has not been convicted, and have no other holds, unless unique circumstances otherwise exist, they ought to have liberty. 
  • Publish the bail schedule. Let everyone know what it is going to cost.   
  • If the published bail schedule is deviated from, make the magistrate place in writing why. 
  • Instead of 4 Justices of the Peace rotating the setting of bail, have a single JP do the job. It promotes continuity. Better still, have one of the current associate judges do the job and increase their pay because they do it. 
Oh, and happy Super Bowl Sunday everyone. Go Broncos!