A Response to the HFSC Interview with Forensic Magazine – The Truth from the Defense Bar

In 2012, after numerous issues and concerns with the Houston Police Department Crime Laboratory, Mayor Annise Parker made the decision to approve an independent laboratory for the City of Houston.  Conveniently, the name of the laboratory changed but not much else. The laboratory is still located at the Houston Police Department Headquarters, the laboratory is still staffed by the same analysts and employees and many of the same issues we’ve been experiencing for years haven’t been corrected as evidenced in findings from a recent investigation by the Texas Forensic Science Commission.  Among the most chilling findings, the laboratory management namely William Arnold, still believes that errors and mistakes made during blood ethanol analysis should be dealt with informally to avoid disclosure to the defense. This includes errors as egregious as “accidentally” switching blood samples and reporting incorrect results on final lab reports used in trial against citizens accused of DWI.

I am afraid that Dan Garner, CEO and President of the Houston Forensic Science Center or Houston Police Department Crime Laboratory as it should be referred to, has caused a little confusion in the answers he provided Forensic Magazine.  Below you will find the interview along with clarification from the view of the defense bar:

Forensic Magazine: What were the biggest changes necessitated by the transition to an independent lab?
Dan Garner: There were significant cultural changes and physical changes involved with the transition. The physical changes included separating and securing space for the Houston Forensic Science Center from HPD, as well as separating networks and systems, etc. The cultural changes, which are ongoing, include thinking in terms of serving HPD, prosecutors, and the defense bar as equal customers. We are not on anyone’s team. So HFSC is now a science and technology-based company, not a component of a law enforcement organization. This cultural transition will take time to complete.

The truth:

To date, the Houston Forensic Science Commission is still located within the Houston Police Department in the exact same location as the Houston Police Department Crime Laboratory. The name has changed but the laboratory and its employees are the same. The Defense Bar has yet to be treated as an equal customer.  Laboratory employees speak directly to the District Attorney’s Office regarding all matters related to pending cases with no disclosure made to the defense.  Laboratory employees testify in court routinely and inform judges and juries that they do not follow standard operating procedures but that their failure to follow these important guidelines does not effect the results of the analysis in a case. The analysts testify using scientific theories without all the facts necessary to apply the theory to a particular case.  Refer to the Texas Forensic Science Commission’s Final Report at the link provided below for a more detailed description.

FM: What was the process used to transition to the new administration?
DG: Mayor Annise Parker had City of Houston attorneys draft incorporation papers for a Local Government Corporation under Texas law. She appointed an initial board of directors with City Council approval. The Board then recruited and hired the CEO who then staffed up a corporate staff to manage the forensic operations.
Our bylaws and the interlocal agreement that made this all possible can be viewed on our website.

FM: Has the transition necessitated any changes in workflow or operating procedures in the lab?
DG: Yes. For example, in the fingerprints division we have transitioned from using an outside contractor doing the identification to completing the work in house. In addition, procedures for working cases from non-HPD sources had to be established and integrating workflow between sections had to be revised. HFSC has also obtained international accreditation under FQS ISO/IEC 17025:2005 and FBI QAS (Federal Bureau of Investigation Quality Assurance Standards)

FM: Will the new processes require any changes to the lab facility? If so, what?
DG: Yes. HFSC is currently looking for additional off-site space for some its divisions, while it also explores building a completely new facility within four to five years. The goal is to be in a building completely separate from HPD, whereas at the moment HFSC is leasing several floors in HPD’s headquarters building in downtown Houston.

FM: What have been the greatest benefits to an independent lab?
DG: It’s too early to tell, but the goal is high quality forensic analysis without bias in a timely manner.

The truth:
There has yet to be any changes or benefit to HFSC becoming an independent laboratory.

FM: Has there been any pushback from law enforcement who are now working with an independent lab?
DG: No. HPD has been very supportive

FM: How has the interaction between law enforcement and the lab changed?
DG: The police department, prosecutors, and the defense bar are now all treating the Center as an independent member of the criminal justice system.

The truth:
The Defense Bar is not of the opinion that the HFSC is acting as a separate independent member of the criminal justice system.  The lab and its employees are biased witnesses on the side of the prosecution.  Analysts aid in facilitating convictions rather than testifying to the science behind the analysis.  As mentioned before, the laboratory and its employees continuously fail to disclose laboratory errors and continuously violate their own Standard Operating Procedures which are required to be followed in order for the laboratory to keep its accreditation.

FM: Would you recommend a similar transition to other cities?
DG: It should definitely be considered.

FM: What advice would you give on how to smoothly transition from a law enforcement run lab to an independent lab?
DG: Come and visit. There are a large number of issues dealing with people, space, and equipment that had to be addressed and we are now in a position to help others overcome some of the hurdles and ease some of the more difficult parts of the transition.

The truth:
Dan Garner chose to speak on behalf of the defense bar in this article instead of actually consulting with any members of the defense bar.  During the HFSC investigation by the TFSC, Dan Garner refused to respond to questions by the TFSC and did not participate in the investigation. Though Mr. Garner would like you to believe the HFSC is a more credible and reliable laboratory, we tend to disagree. We’ve tried numerous DWI cases in which HFSC performed blood ethanol analysis and analysts from the laboratory were subpoenaed to testify. Unfortunately, the testimony is continuously dishonest and the science is riddled with errors. Responses to discovery orders continue to be incomplete and we have yet to receive any corrective action reports (for known errors during the analysis and preparation procedures) from the HFSC as required by all accrediting bodies. Our hope is that one day crime laboratories become truly transparent to the defense. Right now…they lie!

Texas Forensic Science Final Report – Investigation Houston Forensic Science Center

http://www.fsc.texas.gov/sites/default/files/HFSC%20Toxicology%20FSC%20Report%20Final%20w-%20Redactions%20020215_Redacted.pdf

Houston Forensic Science Center Memo – addressing efforts to correct problems within the laboratory

http://www.houstonforensicscience.org/newsroom/articles/TFSC.pdf

Full Article – A Lab Apart – Forensic Magazine

http://www.forensicmag.com/articles/2015/04/lab-apart?et_cid=4510244&et_rid=770295805&type=cta

DPS Breath Test Technical Supervisor Glenn Merkord suspended

Here is a link to the Houston Chronicle article. A few weeks ago, I went to trial in Montgomery County on a breath test DWI. Thanks to the awesome investigative work of our expert Ray McMains (formerly with DPS and responsible for this (Read the Dee Wallace story), we hit gold when Merkord was posed this question: “Do you ever follow the rules?” His answer: “No.”

The questions referred to whether or not he followed the DPS Standard Operating Guidelines. Specifically, whether or not Merkord ever performed required quality control checks when removing when removing a machine from its current testing environment. The purpose of these checks is to insure that the machine can detect interferents in the air, like acetone, that could produce a false positive high result on a subject’s breath test. In other words, if the machine didn’t guard against interferents a person’s breath test could appear much higher than what it actually is and the evidence would be unreliable but could still be used against them in court.

Glenn Merkord, the man entrusted by DPS to oversee several breath test machines to insure their reliability and to insure proper scientific procedures are being followed, failed to do his job. He not only failed to do his job, he failed to READ the job requirements. The Standard Operating Guidelines consist of only 8 pages.

Breathilizer & SOGThe required acetone check procedure is right on the very first page. Glen Merkord said not only does he Never do this acetone check upon removal of a machine but that he didn’t even know he was supposed to be doing it. This testimony shined some unwanted light on Glenn Merkord from DPS. They began investigating him and they found out that he was improperly certifying breath test operators also. The result has been that Glenn Merkord is suspended, they took his keys from him and the breath tests of the wrongly certified breath test operators have been determined to be illegally obtained and the evidence will not be able to be used. The Montgomery County DA’s office is having to dismiss cases because of Merkord’s violations.

My concern is that how can we really know that Merkord wrongfully certified ONLY 2 breath test operators? If he isn’t familiar with the SOGs how can he be the one in charge of making sure the operators are following the required rules. I suspect that this is only the tip of the iceberg and that we will uncover more bad breath tests and more illegally certified breath test operators.

DPS has a person in charge of looking at Technical Supervisors. An auditor for DPS looks to other Technical Supervisors work to make sure they are doing what they are supposed to do. Follow the rules, insure compliance with the Standard Operating Guidelines, properly maintain and calibrate breath test machines. Where is the auditor in this mess? Either the auditor is doing their job and was aware of Glenn Merkord’s mistakes, violations and illegal certifications and covered it up or the alternative is that the auditor is not doing the job either and is completely unaware of renegades like Glenn Merkord.

I don’t know what is more disturbing.

 

DWI Cases Jeopordized

18 Day Period over Holiday Results in over 1,800 DWI Arrests in Texas

Over an 18 day “Special Enforcement Period” which included the Labor Day weekend, Texas DPS made 1,859 DWI arrests across the state.
Texas DPS received a special grant funded by the Texas Department of Transportation which allowed more patrolling hours concentrated in “high risk” locations during the times when alcohol-related crashes are most frequent.

This DPS effort also resulted in 25,000 speeding citations, 3,800 Seat Belt/Child Safety Seat citations, 1,190 fugitive arrests and 877 felony charges.

Texas DPS Amnesty Program Ends, Indigency Program is Born

Unfortunately, DPS has ended their Amnesty Program with no plan on offering another amnesty period in the future BUT you may still have a chance to catch a break on surcharge fees. The Texas Legislature recently authorized an Indigency program that will provide drivers with a chance to pay surcharge fees owed and maintain driving privileges. The Indigency program will not eliminate surcharge fees entirely but will reduce the surcharge fee amount.

The DPS Indigency Program was authorized for individuals living at or below 125% of the federal poverty level. All individuals interested in the program will have to complete an application with will include a signed/notarized affidavit.

Once an application is approved for the Indigency program, DPS will reduce the amount of surcharge fees owed by 10%, not to exceed $250. DPS will remove the suspension from the individuals driver’s license while payments are being made.

If you have any surcharge fees assessed on or after September 30, 2004, you are eligible for the reduction provided you are approved by DPS.

To Apply: Fill out and submit to DPS the application including the affidavit (affidavit must be signed and notarized) provided below. You can also call DPS at (866) 223-3583 and have the application mailed to your residence. I have also provided a link below to the DPS website which will provide you with addition, more detailed instruction.

NOTE: Inmates may also apply for the Indigency program. There is a link to an unsworn declaration (for inmates only) included on the DPS surcharge website and at the link below.

Poverty Level Chart (Health and Human Services Department):

Texas DPW Indigency Program

Important Links:

Texas DPS Indigency Program:

https://www.txsurchargeonline.com/Indigence.aspx

Texas DPS Indigency Application, Instructions and Affidavit:

https://www.txsurchargeonline.com/IndigencyAffidavitEnglish.PDF

https://www.txsurchargeonline.com/IndigencyInstructionsEnglish.pdf

https://www.txsurchargeonline.com/UnswornDeclarations.pdf

Texas DPS Surcharge Website:

https://www.txsurchargeonline.com/default.aspx

NOTE: Tyler Flood is a DWI Defense Attorney in Houston who is providing helpful information for individuals who may qualify for the Texas DPS Surcharge Indigency Program. The Firm, unfortunately, cannot help process applications or answer any further questions. Please contact the Texas Department of Public Safety Municipal Services Bureau (MSB) at (800) 688-6882. Agents are available from 8:00 am to 9:00 pm Monday through Thursday, 8 am to 6 pm Friday, and 8 am to 12 pm Saturday. You can also email the MSB by click on the link below and filling out the provided form.

https://www.txsurchargeonline.com/ContactUs.aspx

The Great Texas Warrant Round Up is Back!

Starting February 25, 2012, 260 law enforcement agencies around the State of Texas will be making visits to homes, businesses and schools to arrest people who currently have active warrants. Usually before a warrant round up agencies will have an amnesty period…not this time. Just a little heads up to get those warrants paid before you find yourself in handcuffs.