Thursday, June 13, 2013

A very dangerous opinion from the Second DCA

Kidder v. State:

DUI manslaughter case. Blood drawn from Defendant and FDLE determines 0.196 blood alcohol content. Defense participates in discovery. Defense has motion granted to send a blood sample to a lab for independent testing.

State then files motion in trial court to compel Defense to provide the results. Trial court grants the motion. Defense takes certiorari to the Second DCA.

Second DCA guts 40 years of practice and procedure in the State and upholds the trial court's order, despite acknowledging this is a really bad idea.

Everyone needs to read this.,%202013/2D12-3535.pdf

Tuesday, June 11, 2013

Another Forensic Lab Scandal

I found this article on the Huffington Post:

DENVER– Colorado’s legal-defense community is raising questions about “what appears to be a cover-up” of systemic problems at the state lab that tests evidence in criminal cases.
In a letter written Friday, Attorney General John Suthers disclosed the existence of a two-and-a-half-month-old, scathing report on the Laboratory Services Division of the Colorado Department of Public Health and Environment, the agency that does forensic testing of chemical samples used by prosecutors.
The March 18 report was the result of an investigation conducted by the Mountain States Employers Council. A redacted version, obtained by The Colorado Independent, shows a decline in training and oversight in the toxicology lab. It also finds it “more likely than not” that:
• “employees perceive they’re ‘not adequately trained to provide fact or expert testimony in court.’”
• “employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”
• “refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”
• A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during work hours.”
• That same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”
• And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”
Given that the problems began at least as early as August 2011, hundreds if not thousands of criminal cases could be affected by the allegations, says state Public Defender Doug Wilson.
Suthers wrote that the report contains “information that could be considered mitigating evidence in the prosecution of certain criminal cases in which the CDPHE lab was involved.”
The defense community is livid and wants to know how long Suthers, whose office represents the Health Department, knew about the report before disclosing its findings late on Friday. It also wants to know if the Attorney General — a former district attorney and former U.S. Attorney for the District of Colorado — had shared the report with prosecutors before telling defense lawyers who could potentially have used its findings to defend their clients. The report could be a basis to argue that test results and testimony in their clients’ cases are not, or should not have been, admissible as evidence.
In a letter Saturday, Colorado Criminal Defense Bar Executive Director Dan Schoen urged his members to attend a news conference Monday to make a “united statement” about the report and “what appears to be a cover-up surrounding it.”
The question, he wrote, is whether defendants have been deprived due process and convicted based on science that isn’t detached and neutral.
“Of great concern… is the timing of this disclosure and the source of the information. The information was provided by the Attorney General and not from any of the District Attorney offices that prosecute DUI cases,” Schoen wrote. “It is unknown at this time when prosecutors became aware of this information and what information had been disseminated to prosecutors. Exculpatory evidence and information is required by statute and case law to be disclosed to criminal defendants. Failing to disclose exculpatory evidence can cause the government to be sanctioned by a court which can include the suppression of evidence, or in the case of severe violations, dismissal of the criminal case.”
Defense lawyers for years have fought for information about Colorado’s forensic lab, long suspecting problems with training, procedures and management.
Wrote Schoen: “This is the evidence that shows what we have been seeking has been there all along.”
Health department Executive Director Chris Urbina is defending the lab. In an interview with the Associated Press, he noted its role in confirming listeria in cantaloupe in 2011.
The comment infuriated the defense community.
“I’m appalled that Chris Urbina is comparing listeria outbreaks to humans being incarcerated as a result of potentially faulty lab tests and clearly biased testimony,” Wilson said.
Wilson slams Suthers for “hiding the name” of the supervisor in question, who reportedly left the department last week. Wilson plans to ask Gov. John Hickenlooper for an independent investigative team to see how many cases may have been affected by lab mismanagement.
Attorney General Suthers’ cover letter and the Mountain States Employers Council findings released Friday afternoon:

Wednesday, June 5, 2013

Florida is no longer a FRYE State

Governor Scott signed HB 7015 today. Below is a summary.  This is potentially a very significant development for Florida criminal defense attorneys. I am working on an article/presentation to explain some of the changes.

HB 7015 — Expert Testimony

by Civil Justice Subcommittee; Rep. Metz and others (CS/SB 1412 by Rules Committee and Senator Richter)

This summary is provided for information only and does not represent the opinion of any Senator, Senate Officer, or Senate Office.
Prepared by: Judiciary Committee (JU)
Currently, Florida courts employ the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) to determine whether to admit expert testimony. Under the Frye standard, the methodology or principle on which expert opinion testimony is based must be generally accepted in the field in which it belongs. 
The bill replaces the Frye standard with the Daubert standard. Under the Daubert test, when there is a proffer of expert testimony, the judge as a gatekeeper must make a preliminary assessment of whether the reasoning or methodology properly can be applied to the underlying facts at issue. The bill adopts the Daubert standard by amending s. 90.702, F.S., to prohibit an expert witness from testifying in the form of an opinion or otherwise, including pure opinion testimony, unless: 
  • The testimony is based on sufficient facts or data;
  • The testimony is the product of reliable principles and methods; and
  • The witness has applied the principles and methods reliably to the facts of the case. 
Additionally, the preamble further states that the Legislature intends to adopt the standards provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and to prohibit pure opinion testimony as provided inMarsh v. Valyou, 997 So. 2d 543 (Fla. 2007). 
The bill amends s. 90.704, F.S., to prohibit the disclosure of inadmissible facts or data to a jury by the proponent of an expert opinion or by inference unless the court determines that their probative value in assisting the jury’s evaluation of the expert’s opinion substantially outweighs their prejudicial effect. As a result of the amendments, the effect of s. 90.704, F.S., is conformed to the effect of Federal Rule of Evidence 703.
These provisions take effect July 1, 2013.
Vote: Senate 30-9; House 70-41