Over a year ago, I complained about courts making the defense prove that the state’s deeply flawed scientific evidence, which you can show for a fact was not just flawed but verifiably false in similar situations, was in fact flawed in your client’s case before you are allowed to tell the jury about issues that came up in other situations. The problem is finally coming to the surface.
Imagine a situation where a particular gas chromatograph mixes up names and reference numbers of vials of blood being tested for blood alcohol content in DUI cases. It also stops running completely during tests and deletes baseline information. The state’s “expert” acknowledges those and numerous other problems, and he admits he has no idea why the problems happened. On top of that, he struggles to even describe the root of the problem. Nothing was done to fix anything. If the machine mixed up vials belonging to defendants with the same last name, they’d quit running vials belonging to defendants with the same last name. All of their supposed fixes were like that; they hadn’t addressed the real problem at all, and they didn’t even know its scope. They just assumed it didn’t affect your case because the machine failed to spit out something showing it was a problem in your case.
I’ve had success a few times where I was able to point out that the state’s magic machine, the one that magically produced a number that determined guilt or innocence, was not a reliable scientific instrument but rather a malfunctioning piece of junk. I could fill a dry erase board with bullet points about unsolved problems in some instances, but did judges take to heart the fact the state was convicting people based on a broken piece of equipment? Of course not.
What they did was to start precluding defense attorneys from introducing evidence of the problems in other cases unless you could show there was a problem in that particular case. To put that into perspective, not only would there have to be a problem with the machine at some point, which is a pretty likely thing given certain machines’ track records, but it would have to be apparent from the evidence in your case. The evidence the state gives you. The evidence that is so often incomplete. From that, you have to hope for some sort of internal inconsistency or other damning piece of evidence showing the machine that doesn’t work didn’t work that particular time. How often do you think that happened? How likely is it that a broken machine is going to work well enough to tell you it’s broken? How likely is it that the state’s going to disclose all of the machine’s problems?
Nowhere, it now seems, are these problems worse that they are in Scottsdale. This week, a superior court judge ruled that blood test results in several cases were inadmissible pursuant to Rule 702 of the Arizona Rules of Evidence, which states as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to
the facts of the case.
The problem was the last subsection, as principles and methods weren’t being applied reliably. The machine dropped data, and they never fixed the underlying problem. They thought it was loose caps, but they were wrong. A software patch didn’t help, yet they never took the machine out of service. The instrument continued to have problems starting and collecting data, and when the manufacturer wanted to install a second patch at a later time, Scottsdale declined to do so because it was merely an inconvenience due to the fact it occurred so infrequently. There were name problems, number problems, and skipped vials, but still no fix. There were missed injections, jams where samples weren’t analyzed, and incorrect labels on top of that, yet again no fix. No root cause analysis. It wasn’t until a newspaper requested information that emails discussing a lack of confidence in the people in charge and emails from the manufacturer about its “malfunctioning instrument” came to light. Scottsdale’s witnesses, of course, never mentioned any of that in their testimony. They must have forgotten, being the busy public servants they are.
Based on that, the exact same stuff that city court judges have been hearing for years and sweeping under the rug because the systematic mistakes of unknown origin can’t be proven in each and every case, a superior court judge held as follows:
The Court is convinced that the principles and in particular, the methods were not properly applied, as required under subsection (d).
The evidence is out because the experts hadn’t reliably applied the principles and methods to the facts of the cases. The machine didn’t work. Over and over again. Duh?
Luckily, the cracker jack deputy county attorney fighting the state’s good fight in those cases was able to put it all in perspective for us. The Arizona Republic reports:
Deputy County Attorney Aaron Harder said throughout the hearings that the equipment was in fine condition and that defense attorneys were trying to focus on technical aspects instead of their clients’ guilt or innocence.
And there you have it. That’s how the people who want to put you in jail look at things.
The machine doesn’t work a lot of the time. The people maintaining the machine cover it up or maybe even lie about it. The machine’s only job is to spit out a number. Sometimes, the broken machine lets you know it gave you the wrong number. If it doesn’t let you know, it’s anyone’s guess whether it’s right. The number the machine spits out, even if it spits out the wrong number but doesn’t give you enough data to know it’s the wrong number, is pretty much the only things standing between your life as you know it and jail, probation, classes, a MADD impact panel, thousands in fines, a license suspension, an interlock, and the stigma of a criminal conviction. The malfunctioning machine can send people to prison too, but questioning it is a “technical aspect” because you’re guilty. Aaron Harder knows it. Every prosecutor everywhere knows it because machines that may or may not be broken told them. Got it?
I’d be celebrating if it weren’t for the fact that the county attorney is going to appeal it to the same court of appeals that wouldn’t even let the defense in the exact same case obtain discovery from the state about mistakes the machine made in 2011. It doesn’t matter, they said. Evidence that machine that convicts doesn’t work isn’t Brady material, they said. The court of appeals and all those city court judges keeping the truth from juries seem to be using the same playbook. One judge saw it differently, but the buck ends with someone else. That someone else is a court that’s already shown its hand to some extent. What’s your bet about what happens?
Sometimes I worry that our courts work about as well as that gas chromatograph at the Scottsdale Crime Lab does. I sure do hope they prove me wrong.
UPDATE: Sadly, I was right. The Court of Appeals vacated the ruling making the blood test results inadmissible. Read more about it here.
Filed under: DUI · Tags: 702, BAC, blood, dismissed, driving under the influence, DUI, DWI, evidence, gas chromatograph, GCMS, herman, reliable, scottsdale city court, scottsdale crime lab, scottsdale DUI, thrown out