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.
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.
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.