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

Going From 3 Years in Prison to Probation

I was working with a client who was facing a very serious felony charge that carried a mandatory five (5) year presumptive term in prison. When he first came into my office he asked the obvious question: What can you do for me?  This is the same question many prospective clients want answered.  Moreover, it is an appropriate question.

I always answer this question the same way: “I don’t know.” This is the only truthful answer that an attorney can give on the first day of a case. I use the following analogy to explain why I give this answer. You go to the doctor and ask him "can you cure me"? The doctor will tell you: “I need to do some tests first.” The same it true for a criminal case.  If an attorney tells you how your case will turn out on the first day, I advise that you run out of the office as fast as you can. Common sense tells you that such promises made on day one of a case are baseless.

I explained to the client how I would handle his case.  I also communicated to him my experience and my strategy to fighting criminal charges.  He retained me and I went to work on the case.

The prosecutor made it very obvious that she wanted my client to serve a long term of incarceration. She made us a three and a half (3½) year plea offer which I thought was unreasonable give the circumstances.  As the case went on, my client’s resolve started to weaken. He was considering taking the plea. I told him it was his decision, but I did not recommend taking the plea. While I advised him to seriously consider the plea before making a decision, I did not see the plea having a great benefit based on several weaknesses in the State's case.

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The Toughest Cases Can Have the Best Results

"If you are going through hell, keep going."
- Sir Winston Churchill (1874-1965)

The goal of every criminal defense attorney is to win.  However, in some cases the facts are so difficult to overcome, even an experienced defense attorney cannot envision winning.  This mindset is almost always fatal to a case. 

Nothing great ever came about easily.  You must believe that you can have success in order to be successful.  While you need to be realistic about the case to advise your client properly, you still must start the case with the mindset that you can win.  You cannot forclose on the possiblity of success.

Here is a real life example from one my cases.  The allegations were my client was driving a car and as it entered an intersection he struck a police officer.  Not a car carrying a police officer, but a police officer standing in the intersection directing traffic.  Prior to driving, it was also alleged that he drank a substantial amount of alcohol.  The police basically stated that he was so drunk that after the accident he was vomiting alcohol.

These are horrible facts.  It would be ridiculous for an attorney to think he could win this case.  Well I did have this case.  It may have been ridiculous for me to entertain the possibility I could win the case.  However, we did win.

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