The Supreme Court Splits the baby in the Scottsdale Crime Lab Cases.

The highly anticipated Arizona Supreme Court opinion regarding the Scottsdale Crime Lab scandal was issued yesterday.   In a very Solomon like decision, the Court granted both sides some relief.

 

The decision contains a lot of legal nuance requiring explanation. Here is a summary and a few thoughts:

 

Admissible Is Not The Same As Reliable

 

While the Court decided the blood alcohol measurements are admissible - they did not hold they are reliable. There is a big difference.  As a matter of fact, the Court expressed its concerns with the Scottsdale Crime Lab's "shaky" evidence. 

 

The Court merely held the prosecution may present the blood alcohol measurements to a jury and argue they are reliable.  The jury will make the final decision.

 

This standard is similar to a finding there was probable cause for a person's case to proceed to trial.  However, at trial, the same evidence will now need to exceed a much higher threshold - beyond reasonable doubt.

 

What Effect Did Yesterday's Decision Have On The Lower Courts' Rulings?

 

There were two lower court rulings: (1) the trial court's ruling suppressing the evidence; and (2) the Court of Appeals ruling reversing.

 
The Arizona Supreme Court vacated the relevant portions of the Court of Appeals decision and the trial court's ruling.  It then issued a new opinion which provided additional guidance on the admissibility of scientific evidence in a jury trial.
 
The Legal Boundaries Of The Supreme Court's Decision.
 
A few years ago, Arizona adopted something called the Daubert standard for the admission of scientific evidence. This was reflected by an amendment to Rule 702 of the Arizona Rules of Evidence.
 
The Court's holding here was limited to only one of the requirements of Rule 702.  Specifically the ruling is limited to subsection (d) of Rule 702, which focuses on the reliable application of a methodology to the facts.
 
What Did Each Side Get Out Of The Supreme Court's Decision?
 
The prosecution avoids mass dismissals of cases where they claim a driver was impaired, but now they have to persuade a jury in every case that the crime lab's forensic malpractice does not matter.
 
The defense is primarily benefited in two ways: (1) the right to present all the evidence of the crime lab's malpractice is firmly established; and presumably (2) the right to obtain evidence of software malfunctions and errors from the crime laboratory also appears to be affirmed. 
 
The Court's acknowledgement that the evidence presented at the 17 day pretrial hearing was both relevant and admissible at trial, implicitly holds that the defense has a right to this evidence in discovery.  This is a significant change.
 
The majority of the evidence presented to the trial court by the defense was not provided by the prosecution.  It was obtained through the collaboration of the defense community and through requests made pursuant to Arizona's public records laws.  
 
Moreover, before the pretrial hearing, there was a court order requiring the Scottsdale Crime Lab to provide the defense with all the data produced in 2011.  They were given a significant amount of time to comply, but did not even attempt to gather the information. Instead, the prosecution appealed the order, and the Arizona Court of Appeals reversed.  
 
The prosecution convinced the appellate court that the defense was merely on a "fishing expedition."  However, in hindsight, it turns out there were some pretty big fish in the pond. We can only imagine what we would have found if the yesterday's opinion had been in place at that time.
 
The holding also appears to clear the way for the defense to present a jury with evidence of the hundreds of catastrophic software malfunctions resulting in unreliable and misleading evidence.  The jury may now discover, that for years, the lab hid this damming evidence.  They may hear of internal crime lab emails from analysts admitting to deleting "incorrect results." 
 
And yes, prior to this decision, the prosecution vigorously argued the jury should not hear this evidence.
 
Does This Decision End The Debate Over The Scottsdale Crime Lab's Forensic Malpractice Issues?
 
Nope.
 
The issues will continue to be litigated - one case at a time. However, we now have some new rules of the road that empower the defense to present their case.  
 
In Sum
 
...the decision means we can't shop for justice at Costco. While there will not be a bulk dismissal of consolidated cases, we still get to present these issues one case at a time...jury by jury. 
 
This could take a while.
 
RELATED:
 
 

Measuring and Counting

 MEASURING

Measuring is the assignment of a number, and all the uncertainties of that of that number, to something.  The purpose of assigning a number is to give meaning to the object measured.

  • Uncertainty: A bag placed upon a scale shows its weight to be 41 pounds.  If the bag must be less than 50 pounds, then the number produced by the scale indicates it meets this requirement.  However, you must know how far from its true value might the 41 pound number be off by?  Uncertainty is the amount of doubt (e.g. the amount of possible variation) you should expect that number might be off.
  • Fit for Purpose: Assume there are two scales.  The same bag weighing 41 pounds is place on both scales.  However, it was determined that Scale A produces numbers that can be off by as much as 30 pounds.  It was also determined that the number produced by Scale B merely off by as much as 3 pounds.  Knowing the amount of uncertainty contained in the number helps distinguish counting from measuring.  Knowing the uncertainty allows you determine if the measurement is fit for the purpose of determine if the object exceeds 50 pounds.

Measuring relies upon estimation.  The choice of data, the methodologies employed, and level of quality measures used tells you how confident you can be in the estimation.  Once you have a reliable estimation of how close a number may be (or not be) to the true value, you can make informed decision as to what purposes the number can be used - and not used.  

 

COUNTING

Counting is not the same as measuring.  However, the two are often confused.  Counting is usually a technique within a measuring process (methodology).  Counting can result in an exact number.  However, measurement will never claim to represent a true value. Measurements are merely estimations.

Counting an exact amount of something is often not possible or practical.  The thing you are intending to measure (the measurand), the matrix it is found in, or the level of accuracy required may make counting impossible.   Thus a system is needed to provide a reliable estimation which you can rely upon.  

Some things to take into account when making an estimation:

  • Distinguishing: Some molecules are so similar to others that it is often impossible continuously distinguish them from each other.  Thus, they cannot be easily counted.
  • Location: Some substances are contained in places we cannot practically enter to count them.  The best way to know how much alcohol is affecting a person's brain at a particular time would be to take a sample of brain tissue.  However, society has not yet determined such a procedure falls outside the protections of a person's 4th Amendment rights.
  • Gas Chromatographs: The results of a gas chromatograph are often used to determine whether a person's alcohol concentration is above a legal limit in DUI cases.  However, the machine does not measure a person's blood alcohol concentration.  If properly used, the machine merely counts the number ethanol molecules in a gas portion of a headspace vial.  Thus, it indirectly counts a microscopic amount ethanol from a tiny sample.  

A measurement based upon a machine's indirect count of a substance results from combining it with algorithms, numerous assumptions, and historical data regarding the past performance of the machine (and software) used in the process.  This is known as an uncertainty calculation.

In this manner, measuring requires much more than counting.  Measuring requires more than merely assigning a number to an object.  More importantly, one can assign a number to an object but not create a measurement.  When this occurs it is not a measurement.  It is a misrepresentation.

 

Counting is what you do to get a number.  Measuring is what you do if you want to know the truth about the number.

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...

  • Result - COA reversed 

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.  

  • Result - COA Reversed.

 

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

You have a bandwidth problem

An analyst from a crime lab testifies that a defendant, who is charged with DUI, has a blood alcohol concentration of .120.  Despite the legal requirements that the state must prove the test is trustworthy, most jurors have made a blink judgement the that test is correct.  As is often the case, the appearance of science is a powerful tool of persuasion.  This is true  even when the opinion is based upon junk science.
 
Here, despite the claims of the analyst and unbeknownst to the jury, the test result was done using unreliable equipment relying on defective software.  Your challenge: undo the jury's initial judgments, demonstrate the analyst is too biased and lacking the qualifications to understand the severity of the equipment's defects, and show the result can't be trusted.  This is no small task.
 
This task will take time.  It requires a thorough understanding of the many underlying scientific disciplines involved.  Adequately educating the jury will require information from several different sources.  Each piece of evidence will present a different evidentiary challenge.  In short, beyond the inherent difficulties of such cases, you also have a bandwidth problem.
 
Bandwidth is the amount of data that can be transmitted in a fixed amount of time.  DUI trials have time and evidentiary limitations.  There are not intended to be semester long science classes.  There are practical realities inhibiting you from properly educating a jury with the knowledge they need to debunk these unsound claims.  If left unaddressed, a court may not even recognize this bandwidth dilemma.
 
Consider the problem in the following terms.  A presentation that does not reach the audience persuades no one.  If Netflix creates next years best new drama, but there is not enough bandwidth to stream it, then what was the point of creating it.  No one pays a subscription fee to see a "buffering" message.  Quality is meaningless without bandwidth.
 
Being right is does not convince a jury without an adequate opportunity to present it to a jury.   In these cases, you don't have a right or wrong problem - you have a bandwidth problem.  Accordingly, neglecting the bandwidth argument can be fatal.  If you don't sufficiently address this issue, then no one may hear how right you are.

Read the "Warning Label" of your blood test

When should you trust a blood test result that claims to measures an alcohol concentration?  Start by reading the test's "Warning Label."  Here is an explanation on my legalcoffee blog.

A reported result versus a complete result

 

In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample.   The measurement, which the machine prints at the end of the process, is called a reported result.  We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence.  The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement.

A complete measurement includes more than just a reported result.  As a matter of fact, simply providing a reported result is often misleading.  A reported result is only complete when accompanied by a “statement of its uncertainty.” See NIST Technical Note 1297, 1994 Edition.  No measurement is perfect.  The result of any measurement is only an estimation of its value.  A “statement of uncertainty” is the range of doubt that exists regarding a measurement.

A complete test result, must also include:

  • a “Range of Uncertainty” and;
  • “Confidence Interval.” 

To illustrate, let’s assume that a blood test result was .100.  Let’s also assume, based on a review of the machine’s prior performance, a “range of uncertainty” was determined to be ± 5%, with a “confidence interval” of 100%.  This means, the reported result could be as low as a .095 and as high as a .105.  Moreover, this also means, if the same blood sample were repeatedly tested on this equipment, the result would only be outside of the ± 5% range 1 out of a million times.  If this statistic were true, this would certainty be a reported result that you could trust.

On the other hand, what if for the same reported result of .100 the range was ± 30%, with a confidence interval of 50%?  Here, this means the reported result could be as low as .070 or as high as .130.   Furthermore, if you continued to test this sample on the same equipment, 300,000 times of out of a million, the reported result would be outside the range stated above.

When comparing the two complete test results, you can see that providing a mere reported result does not tell us the whole story.    Merely telling us the reported result can actually tell us a very misleading story.  Science will not accept incomplete measurements.  Why should the law?

 

The DUI With No Driving - Part 1

 

DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

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

Lawrence Koplow