Scottsdale Crime Lab: The Supreme Court's Statement of Issues

Posted on February 17, 2015 by Lawrence Koplow

Today at 11:00 a.m. the Arizona Supreme Court will hear oral arguments regarding whether to reinstate a trial court's finding that - blood alcohol measurements created by the Scottsdale Crime Lab are unreliable.  You can read a history of this litigation by clicking here.

A case being selected by the Supreme Court for review is a rare event.  Simple math shows it is unlikely that any particular case will be reviewed by the Arizona Supreme Court.   The Court receives a substantial amount of “Petitions” to review lower court decisions, but it only selects a small percentage of them each year.  However, because the issues in this case (it is actually a consolidation of 11 cases) will have wide-ranging consequences, it was an ideal case for the Court to review.  The final ruling by the Court, regardless of who prevails, will likely affect how scientific evidence will be handled by Arizona courts for years to come.

While both parties have their own opinions as to what the key issues are, the Court will provide a summary and statement of the issues from their perspective prior to the oral argument.  Last week, as expected, the Court issued its written statement.  Below are the issues as stated in the Court’s summary:

1. Did the Court err by holding that Rule 702(d) challenges are excluded from judicial gatekeeping scrutiny under Arizona law?

2. Did the Court err in using the accuracy of the results as the criteria for a gatekeeping analysis instead of using the trustworthiness of the methodology used to generate the results?

3. Did the Court err in substituting its own judgment for the trial court’s without finding that the trial court’s decision constituted an abuse of discretion?

After reading this statement of the issues, one could jump to a conclusion from the way the issues are framed, that the Court is leaning in a particular the direction.  A word of caution – no one knows how the court is leaning.  The Court’s final opinion could easily list a different set of issues.

Today’s oral argument is being held at Arizona State University Law School.  The argument is open to the public and starts promptly at 11:00 am.  Everyone is welcome to attend – regardless of which side of the argument you are on.

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The Scottsdale Crime Lab cases will be reviewed by the Arizona Supreme Court

The Arizona Supreme Court has decided to review the Court of Appeals' (COA) ruling regarding whether Scottsdale DUI results can be trusted.  

Our ongoing legal battle over the defective software used by the Scottsdale Crime Lab (SCL) to measure BAC levels begins its final stage.  The Supreme Court granted our request to review the COA's decision permitting prosecutors to rely upon the measurements generated by this software as a basis for a DUI conviction. 

WHAT HAPPENED?

Over three years ago a few chromatograms (a graphical representation of a blood alcohol measurement) escaped the Scottsdale crime lab (SCL).  It was something we had never seen before. The floodgates of evidence showing forensic malpractice soon opened.  

We learned, that for several years, the SCL had known of serious defects in the software used to measure BACs.  These malfunctions include assigning an incorrect result with the incorrect person (i.e. John gets Fred's result).  No one in the lab had the expertise to explain why this was occurring, or how to "fix" it.  According to an internal email we obtained from the SCL, they "buried" this from the rest of us.

Even after the defense brought this to light, the Prosecution continued to prosecute the public using this unreliable software.  The penalties for those convicted include mandatorily incarceration and significant monetary fines (a portion of which the crime lab receives).  They are currently still using these defective measurements to incarcerate people.

HOW DID WE GET HERE?

There were two primary venues for these debates: 

(1) Superior Court; and 

(2) Scottsdale City Court.  

The Superior Court (felony cases) is where these rulings originated.  The City of Scottsdale courts took a different approach.  That story will be addressed in a separate post.  In the Superior Court, the main case is State v. Herman (on appeal titled In Re Bernstein).  There were two challenges in "Herman" that ended up in the COA.  

Herman #1 (Re: Discovery) 

Because we only had access to the initial documents that appear to have been allowed out of the SCL by accident, we did not know the scope of the problem.  

We convinced two Superior Court Commissioners to hold a joint hearing.  They agreed with our arguments and issued an order to produce all chromatograms from 2011.  The Court also gave the Lab almost two months to provide them.  The deadline came and went.  The SCL admitted they did not even attempt to comply with the order.

We filed a Motion for Contempt.  The prosecution filed a Special Action asking the COA to reverse the order.  The morning before the contempt hearing, the COA stayed everything.   A few months later...

We did not get the data.  Today, the scope of the malfunctions still remains unknown. 

Herman #2 (Re: Reliability) 

After the COA's ruling, we requested a Daubert (reliability) hearing with the trial court.  This would be Arizona's first substantive Daubert hearing (fortunately, the evidence Rules changed in 2012 to permit such a hearing).   Combined, it lasted almost nine (9) months.  To our surprise, we ended up getting material information in the Daubert hearing (Herman #2) that we did not even think to request in Herman #1. 

At the same time, the Arizona Republic started to investigate our claims.  Through their public records requests (and later our own) a treasure trove of damming evidence was obtained.  

At the hearing, SCL personnel were testifying they understood the issues and put forth an “all was well” message.  However, in contrast to their testimony, the Arizona Republic obtained internal emails, that told a much different story than “all is well.”  Their "private" communications showed the court that the SCL personnel testifying, were less than forthcoming about the severity of the problems and their ability to comprehend them.

The combination of SLC personnel’s tainted testimony, and the testimony our forensic experts (including an independent forensic toxicologist, a certified quality assurance lab auditor, a and forensic software engineer), presented a powerful case that the SCL’s measurements and supporting testimony were not trustworthy. 

Arizona Court of Appeals 

As in Herman #1, the prosecution turned to the court of appeals for relief. 

Again, as in Herman #1, it was provided.  

Arizona Supreme Court

Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they: 

(1) review the court of appeals decision; 

(2) and reinstate the trial court's ruling.

A few weeks ago, the Arizona Supreme Court decided to review the matter.

WHAT'S NEXT.

The Court's decision merely means they granted part one of our request: they will hear the case. They have set oral argument on February 17, 2015 at 11:00 am.  It will be a road game for the Court, as it will be held at ASU Law School.  The oral argument is open to the public, but it is expected to be a full house.  If you want to attend, get there early.

Lawrence Koplow

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Scottsdale DUI: Home Detention Is Here (Almost)

Posted on July 9, 2010 by Lawrence Koplow

I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program.  It appears that they have finally implemented the program.  Here are the minimum qualifications based on the information I was given at court.

The date of your offense must be after May 27, 2010; andYou must start your self-surrender date on or after October 1, 2010

There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions.  In addition, keep in mind: (1) admittance into the program is not automatic.  The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program.  Thus, this program is for lengthier terms of incarceration.

If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

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DUI lawyer Scottsdale

The police shootings of an unarmed man in a St. Louis suburb and an unarmed man in South Carolina have both shown that video can provide valuable evidence for police and the public in cases that have few other witnesses, and prompted a Valley attorney to ask why more agencies don't use cameras.
Craig Rosenstein, a Scottsdale DUI attorney, said members of the public could be surprised how few police officers and deputies in Maricopa County use cameras in their vehicles.
"This is a widespread failure," said Rosenstein, who noted that other department's around the state might serve as a blueprint on how to implement the programs.
"The justice system is dogged because so many of these cases end up being a police officer's word against a defendant's word. There's no third party account," he said.
But more and more Valley agencies have started outfitting officers with cameras in recent years, including some forced to do so by courts and others who wish to avoid the same fate.
In 2013, U.S. District Judge Murray Snow ordered that the Maricopa County Sheriff's Office install cameras in every deputy's vehicle.
The reform was part of the federal judge's ruling that Sheriff's Joe Arpaio's office violated the constitutional rights of Latinos through many of its immigration enforcement efforts.
In September, the agency's court-appointed monitor presented a report indicating that the Sheriff's office was lagging in its compliance with the judge's reforms.
In a separate 2006 race-profiling settlement, the Arizona Department of Public Safety was ordered to install vehicle-based video systems in all of its patrol vehicles throughout the state.
The class-action lawsuit filed by the American Civil Liberties Union alleged DPS officers were discriminating against Hispanics and Blacks during traffic stops.
Some local jurisdictions are trying to avoid similar lawsuits by implementing camera systems now.
The Scottsdale and Gilbert police departments are testing cameras worn on patrol officers as part of pilot programs to decide whether to implement the cameras for permanent use. Scottsdale is testing ten cameras while Gilbert tests 32.
In Surprise, police officers have worn body cameras since August 2013. All patrol officers use the cameras while responding to investigations, traffic enforcement and contact with the community.
Some agencies have cited cost and budget concerns when defending their slow implementation of camera systems, but Rosenstein said cameras will save money in the long term.
"Police departments spend a ton of money defending themselves when people accuse them of wrongdoing," Rosenstein said. "A camera would bolster what they're saying is the truth."
The Phoenix Police Department does not use vehicle cameras, but is currently testing 55 body cameras as part of an Arizona State University study.
Phoenix police spokesman Sgt. Trent Crump said the department is already successful in prosecuting cases without video evidence.
"If the courts begin to dictate or request additional information, we'll comply," Crump said.
Rosenstein said that is a scary thought process for law enforcement to have.
"Just because juries convict doesn't mean we shouldn't have independent corroboration for all to see," Rosenstein said. "Juries are generally inclined to believe an officer over a person accused of a crime and has a different view of events."

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