Bench Notes: CSI Episode Reviews

Original article posted here.

A judge in Tucson has ruled that the Arizona Department of Public Safety’s practice of drawing blood from drunken-driving suspects on the side of the highway is unconstitutional.

Pima County Superior Court Richard S. Fields’ ruling came as he tossed out blood-alcohol evidence in a Tucson man’s drunken driving case on Wednesday.

DPS officials declined to comment until they studied the ruling.

Fields wrote in his ruling that blood draws carried out in roadside situations with poor lighting and in less than sanitary conditions subject suspects to an unreasonable risk of infection and injury.

The state failure to follow proper health procedures violates the Fourth Amendment right against unreasonable search and seizure.

Fields says law enforcement agencies have alternatives such as using breath testers or having medical providers draw blood.

A few weeks ago, on one of my many trips back and forth to southern California lately, my family and I were traveling west on I-8. Not too far over the border into California, we encountered an ICE (the new Border Patrol) check-point.

It was pretty early in the morning and traffic was light. So it didn’t have much of a line of cars. We waited patiently, my wife made a comment wondering how effective these things were.

We got to the front of the line and the agent waved us on by. As we slowly started to accelerate away we passed a car that was being ripped apart by agents.

Body panels were everywhere, and there were about 30 thin wrapped/plastic bagged bricks of unknown substance on the roof of the car.

As we drove off I said “Pretty effective it would seem.”

(1 votes, average: 5 out of 5)
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***Warning, Spoiler in Last Paragraph ***

I went out and watched The Dark Knight this weekend. Good movie. I’m not sure it’s as good as all the buzz surrounding it, but worth the ticket price.

Let me explain a little about my past experiences with Batman. I grew up watching the Adam West/Burt Ward 1960’s television series. I have a picture (and memories) of me getting to meet Batman and Robin at a very young age. My mom grew tired of me asking her to read me the same Batman books over and over again, so she recorded herself on a cassette tape so I could listen whenever I wanted. Funny anecdote - my grandmother was convinced I could read at about three because I recited to her my favorite Batman book that I had memorized from my mom’s tape. I read the comic books regularly from about the time the Joker killed Robin (Jason Todd), until the mid 90’s. My mom wrote me a slip to get out school to watch the first Michael Keaton Batman movie.

I’m not a Batman expert, but I have a deeper understanding of the character than most. Batman is a complex, multifaceted character. A victim at an early age. A driven student. A trained martial artist. A crime fighter. A super-hero. Most importantly, and most often over-looked in movies, a detective (he did originate in Detective Comics # 27). Remember that Ra’s al Ghul, perhaps Batman’s greatest foe, always referred to him as “Detective.”

It’s the detective aspect, specifically the forensic scientist aspect, of the character that I have always found the most interesting. Batman is a thinker. He analyzes the evidence, performs scientific testing, and then takes action. Or at least sometimes.

Adam West’s 1960’s Batman was a camp comedy, over the top, live action version of the Batman portrayed in the 60’s and 70’s comics. That’s not even a bad thing. What it did, better than any movie to date, was show the detective aspect of the character. Certainly it was devoid of any aspect of the brooding Dark Knight, but it showed Batman in the Bat-lab “doing science”. An ex-coworker of mine once joked about seeing a scene from the Adam West show where Batman was pouring a colored liquid from a flask into a beaker. The Bat-phone rang and Batman said, while in costume with a white apron and surgical mask, Robin get that “I’m trying to solve a crime.” The delivery was priceless, with enough dramatic pause to make William Shatner jealous. Throughout the series, Batman and Robin would figure their way through puzzles and riddles. Eventually they would meet up with the villain and the classic fight scenes would ensue.

In the comics, we would see the Batman using sophisticated equipment to solve crimes. Once again emphasizing his intellect. His brains were what made Batman a super-hero.

The Michael Keaton “Batman” movie did a decent job of portraying the forensic scientist aspect of Batman. They lightly glossed over Batman cracking the Joker’s binary personal hygiene product “Smilelex” poison. It didn’t highlight Batman solving the puzzle, but it had it in place as an important plot point.

Then Batman suffered through a series of three horrible movies. From Tim Burton’s criminal directing of the follow-up Michael Keaton movie “Batman Returns” all the way through “Batman and Robin” and “Batman Forever”, the forensic scientist aspect of Batman was absent. That, coupled with Tim Burton’s let’s-completely-divorce-ourselves-from-Batman-mythos-by-having-Batman-kill, Joel Schumacher’s campy-over-the-top-neon-inspired-shallower-than-a-Phoenix-rain-puddle vision of Batman, George Clooney’s craptastic acting complete with a let-me-smile-while-I-tell-Dick-Alfred-is-dying, and Val Kilmer’s…well…actually Val did a pretty good job, made for poor Batman movies.

The only redeeming non-comic book portrayals of Batman from 1992 - 2005 was in the various Batman animated series. Especially some of the Justice League series where Batman would forgo beating up bad guys in favor of figuring out a solution to the impending doom. Really, if you want a brainless super-hero who pounds bad guys go check out Superman.

Then in 2005 Christopher Nolan directed “Batman Begins” starring Christian Bale. While the forensic aspect to the character was somewhat transferred to Lucius Fox, it was still present when the antidote to the Scarecrow’s fear gas was developed (complete with a cameo appearance by a gas chromatograph - there’s science for you). This installment was the first, and only, movie to get by with the now tired two major Bat-villains per movie rule.

Really. Two villains per movie prevents any chance of having any serious character development. Major Bat-villains are complex, and worthy of spending some time in character development so we understand why they do what they do.

Finally The Dark Knight (TDK) was released in 2008, with the same director and Batman as “Batman Begins”. I haven’t made up my mind yet about this movie, but it’s certainly better than the three movies preceding “Batman Begins”.

TDK did a good job of highlighting the forensic scientist aspect of Batman. Getting 10 minutes alone in the crime scene before Gotham PD contaminated it was enough for me. Add to that the fantastic depiction of performing ballistic testing and I don’t even mind the implausibility of computers reconstructing a fragmented bullet and from that 3-D modeling being able to get an AFIS quality finger print from the guy who loaded the magazine (if you don’t know, firing a bullet will generally burn off finger prints).

***Spoiler Below***

Where TDK fell short was falling into the two major Bat-villains per movie rule. It would have been much better for the movie to end setting up the next movie with Harvey Dent/Two-Face to be the major villain. They could have done an excellent job expanding Two-Face’s psychosis, and having Batman solve various puzzles revolving around Dent’s obsession with the number 2, and that coin of his. As it was, they rushed through and killed off a major Bat-villain before his time, ala Tim Burton’s Joker, depriving the audience a potentially rich and rewarding future script.

(1 votes, average: 5 out of 5)
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I have a hard time believing what some attorneys testify to during trials. Well, I guess they aren’t officially testifying, but they are stating their opinion on the matter, and end their pontification with a seldomly agreed to, “Do you agree?”

Recently I was testifying in court, and I was asked by the prosecuting attorney if I agreed with the following statement:

Since all the quality assurance requirements were met, the results must be valid.

I replied with a statement to the negative. The attorney then asked if I was aware that another forensic scientist employed by the police routinely testifes that the regulations relating to this type of testing require the following things. The the attorney listed a series of regulatory requirements. I replied I was aware of those requirements.

I was finally asked if all those requirements were in place. I stated there was nothing to indicate they were not.

The unasked question of course was that if all the requirements are in place, does that gurantee accurate and reliable results. My answer being “no”, the inference being that the un-named police scientist routinely answers “yes”.

I really don’t know if there is a police scientist who testifies that way. If there is, I wonder if they truly believe it. If there is, I wonder about their training and understanding of their role in the criminal justice system.

A forensic scientist performs scientific testing to investigate legal questions. First and foremost that scientist should be concerned with the scientific aspects of their job. Any scientist who believes that reliable results can be obtained by merely meeting the legal requirements of a testing procedure is either grossly under-educated, or a biased witness.

Regulatory requirements are put in place by politicians (sometimes with input from scientists, sometimes without). Science is the pursuit of the truth. I find it hard to believe that any scientist would agree that politicians can legislate and regulate truth. Unfortunatly for some, reality is not determined by the democratic process.

State imposed regulations related to scientific testing are only minimum requirements, there help ensure the reliability of the results. If results are going to be valid, they must meet the state minimum regulatory requirements - true. But just because testing meets the regulatory requirements doesn’t mean the results are scientifically reliable - they must also meet the acceptible practices of the relevent scientific community.

That doesn’t even take into account errors that can occur that would never be detectable even with the best QA system.

A scientist should never let a politician tell them what makes for valid or reliable test results. Scientists should be concerned about the scientific validity and reliability of their opinion first, and then make sure legal requirements are met. Politicians can make rules about what are legal requirements.

As a forensic scientist, my job is to explain the science related to my opinion. I let the lawyers and the judge worry about the legality.

A valid forensic scientific conclusion also meets legal requirements. A conclusion that meets legal requirements is not neccisarily scientifically valid.

As soon as a forensic scientist accepts the legal requirements as the minimum requirements for scientifically valid testing, they stop being forensic scientists, and become Scientific Forensicists.

(1 votes, average: 5 out of 5)
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For years there have been rumors about the Arizona Department of Public Safety making the transition to a fee-for-service crime laboratory. With the state’s current budget shortfall, it seems the legislature is finally serious about shifting the expenses associated with forensic testing to local law enforcement agencies.

Details are spelled out in a document called “FY 2009 Enacted Budget July 2, 2008 - Updated” that can be downloaded and read here. On page 36 of the document, there is a line item budget reduction listed as :

“$(7.8) million for the department to charge local law enforcement agencies for crime lab services.”

For the state, gone would be the days of an overworked and underfunded crime lab. Rather than footing the bill for forensic testing to the more than 200 Arizona law enforcement agencies it currently supports, DPS would pass this economic burden down the line to the local level and start charging for their forensic services. Sections of the DPS crime lab system are developing fee schedules for their services.

Of course the goal is to reduce the economic burden on the state. But what happens if local law enforcement agencies simply can’t afford to pay for DPS forensic services? It would be economically responsible for law enforcement agencies to shop around and see if the private sector might not be able to offer more cost-effective solutions for their forensic needs.

DPS doesn’t have a monopoly on forensic services. Many private forensic professionals in the state are highly qualified, can perform analysis quicker and for less money than what a government agency would likely charge. There has been talk for years about a full-service private forensic laboratory in Arizona. I should know, I’ve been approached several times by different parties.

If the state crime lab does transition to fee-for-service, it’s an excellent time for those of us interested in an independent forensic laboratory to get the ball rolling. There are independent forensic laboratories all over the world, two of the closest are in California and Texas. An in-state independent laboratory could provide more cost effective and timely forensic solutions than either the DPS state crime lab, or out-of-state analysis.

The benefits of independent labs are numerous. Prosecutors are no longer locked into using the police lab’s expert simply because they did the original free analysis for the submitting law enforcement agency. Both prosecutors and defense attorneys could use the same forensic experts. It’s far less effective for a lawyer to infer the expert on the opposing side is unqualified if they have paid to use that same expert on past cases. Another benefit is the laboratory would be truly independent, and therefore more neutral. It’s hard to come across as a totally neutral forensic scientist if the ONLY cases you are allowed to work are cases submitted by police for purposes to prosecuting someone criminally. Being able to work cases on both sides of the aisle would give the analyst better perspective, and hopefully reduce the possibility of forensic examiners taking on the emotionally biased mindset that their job is to help get the “bad guy,” rather than analyzing the evidence and reporting the scientific facts.

For more information about the benefits to moving forensic labs out of police departments, review my post Reforming Forensics and Breaking Up the Forensics Monopoly.

(1 votes, average: 5 out of 5)
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Sometimes with a good DUI defense it isn’t about getting a “not guilty.” Sometimes it’s about explaining to the jury how poorly the government did their job, and let them decide an appropriate outcome for a case.

Recently I had the opportunity to work on a DUI case involving the US government against a member of the military. This is was first DUI trial in several years on that particular military installation, made even more unique for several reasons. This was the defendant’s first DUI charge, there was no accident, no fighting, no other aggravating conditions, just the DUI charge resulting in a court-martial hearing. It was the “public defender’s” first DUI trial, and probably a first for the government’s lawyer as well.

The military police officer who performed the investigation bragged about his 20 to 30 DUI investigations over the last six or seven years, unaware how little practical experience that translates to compared to your average “civilian” cop. Many police agencies in larger metropolitan areas would probably consider 20 to 30 investigations a light month, if their primary focus is DUI enforcement.

The military police officer’s lack of experience was easily exposed during a pre-hearing interview with the defense. He didn’t know what type of training he received on DUI field sobriety tests (mistaking them for State standardized field sobriety tests), which included the HGN, walk and turn, one leg stand, finger count, alphabet, and the finger to nose. The training he had actually received was the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Tests course, which includes the HGN, walk and turn, and the one leg stand.

During the actual stop and investigation, the officer didn’t indicate performing any of the pre-HGN tests designed to determine if there might be a medical cause for any nystagmus observed during the test. He demonstrated that he whipped the stimulus at about double the speed a trained police officer is supposed to, performing only half the number of required sweeps. Furthermore, the amount of time the officer held the stimulus to ensure observed nystagmus was “distinct” was under the required 4 seconds (both by demonstration and by his own verbal explanation of the test during interview and testimony).

Complicating the FST further, the police officer added his own personal instructions during the walk and turn test. If followed correctly, his faulty instructions forced the subject to take an incorrect number of steps during examination, always ending on the wrong foot. The officer then counted the incorrect turn and incorrect number of steps as two separate clues, even though one was caused by the other.

Making matters worse, the subject couldn’t complete the one leg stand. There was no arguing about it. That is until an examination of the police officer’s report showed subject had a bad achilles tendon and a bad knee at the time of the test.

Combine all of this with an incomplete deprivation period before the breath test and breath test operator was not present to testify, and I thought the results would have been kept out at trial. I was wrong. The military has their own requirements (or lack of) for such tests to be admitted. I was a little surprised, but the judge allowed it all. He *almost* admitted the PBT results, eventually agreeing to only allow the government to say a PBT was administered roadside, and not talk about the results. When in Rome…

The defendant pled guilty to the charge of DUI, but was going through the court-martial hearing to have the jury decide his punishment. The government’s offer was something akin to the civilian equivalent of “the max”: a long time in jail, being busted down some serious ranks, and assigned extra duty. So I offered what help I could by preparing a suggested set of questions with the defense attorney to show the jury that the military police in this case did not follow the training they had received.

I may not be familiar with military procedures, but I know enough about the military to know they are all about following procedure and training. This case showed the jury that the military police weren’t following their training. Training I was familiar with because I had the same NHTSA SFSTs training, and had received the same training on operating the breath testing device used in this case. The questions I penned helped the defense show the police didn’t follow their own training when it came to field sobriety tests and administering the breath test. The questions for the government’s criminalist also got them to admit they could not support the breath reading obtained.

In the end the jury came back with an appropriate punishment. Both the defendant and the defense attorney were happy with the conclusion of the case. This was just another case where trial could have been avoided if there was a suitable plea bargain offered by the government.

One point of clarification that is commonly misunderstood among people not familiar with the laws in Arizona, an “extreme” DUI is simply a DUI that has higher penalties (monetary and jail time) incurred when the alcohol concentration is above a threshold level (either 0.15 or 0.20). Extreme DUIs are usually misdemeanors unless some other aggravating factor makes them felonies. The article below is misleading in that aspect.

Original article located here.

Statewide DUI task force nets 137 arrests

46 comments Jul. 5, 2008 03:52 PM
Associated Press

A law enforcement task force operating across Arizona on the Fourth of July weekend has arrested 137 suspected drunken drivers since Thursday.

Most of the arrests came on Friday, when officers nabbed 94 people on suspicion of DUI.

Of the 137 DUI arrests statewide, 41 were for extreme DUI and 12 for aggravated DUI. The rest were misdemeanor charges.

DUI task force officers also issued 726 citations for traffic violations such as speeding.

The Governor’s Office of Highway Safety coordinates the efforts during holiday periods. This weekend’s effort continues through Sunday.

More than 30 agencies are participating.

(2 votes, average: 5 out of 5)
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For a synopsis and review of this episode please read here.

OK. So I finally convinced my wife to watched another DVR’ed episode of CSI New York. Unfortunately we happened to hit on one that seemed to be a “Part 2″ in two different ways. It seems it was the season opener for Season 4, as well as a related to a previous episode that happened 1 year earlier - an unsolved homicide.

The episode itself progressed like most CSI shows do. There wasn’t any crazy endangered species DNA break-through in this episode, so maybe that’s the exception in CSI NY - I don’t know. My wife though made the comment that things always seem to fall into place very conveniently for CSI NY. I agreed, but I don’t see where that was any different than any other CSI franchise, or episode. The easy way cases progress is one of those things that drive people who actually do this for a living crazy - along with the incredibly fast turn around times, and the absolute top of the line equipment that is always laying around just waiting to be used and never backlogged.

There was some interesting special effects as Mac was figuring out the blood spatter pattern. I thought it was well done.

Really the only thing that made me laugh in this episode was at the very end, when the armed suspect was being chased by police, the CSI shot him in the leg, instead of center-mass. I don’t know what they teach New York City cops, but most officers I know will shoot to kill an armed suspect who isn’t following verbal instructions - as well they should, public (as well as their own) safety and all. But when I saw the shooting take place, and where he was wounded I laughed out loud because I couldn’t get Danny Glover from Lethal Weapon 1 out of my head*:

Roger Murtaugh: See how easy that was? Boom, still alive. Now we question him. You know why we question him? Because I got him in the leg. I didn’t shoot him full of holes or try to jump off a building with him.

Martin Riggs: Hey, that’s not fair. The building guy lived.

*Movie quote from here.

(2 votes, average: 5 out of 5)
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A couple of weeks ago I arrived to a court testimony appearance for a DUI case. When I got there the state’s scientist was still sitting out in front of the courtroom, waiting to testify. Don’t worry this isn’t a “waiting game rant”, actually the amount of time I waited was fine in this case.

The state’s scientist said “Hey I know you.” And sure enough, we did know each other back from when I work for government agencies. I never worked directly with this particular scientist, but we had spoken a few times in the past, and knew each other.

He jokingly mentioned there was nothing wrong with his analysis in this case, and he didn’t know why the case was even going to court. I replied there’s nothing overtly wrong with the analysis. He chuckled and said the last few cases he’s been called on to testify in he didn’t have any idea why. The readings weren’t close to any kind of legal limit for example.

He offered the suggestion that when cases like these go, it’s a failure of either the prosecutor to offer an acceptable plea bargain, or it’s a failure of the defense attorney to tell their client to take it.

I said I agree. Then I let him know that there are a few courthouses he probably doesn’t frequent due to jurisdiction, that the “Expect the Max” motto has made it’s way into the courtroom. Prosecutors there are offering “max” sentencing (time in jail/fines) as the plea bargain. Well why would anyone in their right mind accept a plea bargain that gives them the maximum penalty they can possibly get? Better to roll the dice, and hope for the fumble as they say.

I said the third option is that the defendant just plain won’t take it. For example, I testified a couple of weeks earlier on a case where a controlled substance was found in the person’s blood sample. In Arizona that’s pretty much an open and closed case for the state - unless something wrong is found with the analysis. The defendant was apparently very difficult, ended up switching court appointed defense attorneys a few times when they suggested they take the plea bargain. The bargain being a reckless driving charge, a minimal fine, and maybe a day in jail. The differences being a lot less $$$ in court fines. Usually a plea to reckless driving is a win-win for both sides. The prosecutor doesn’t have to waste time and energy in court (the state loses money on DUI trials, they make money when someone pleads guilty), and the defendant doesn’t get a DUI on their record.

Fast forward to a few weeks later, I’m called in to testify in another DUI case. The defense attorney asked me if I could show up early because the prosecutor wanted to talk to me before trial - pretty common stuff. So I showed up early, and saw the prosecutor in the hallway (we knew each other from when I regularly testified “for him” when I worked for the government), also we are both big Apple/Mac guys.

Well the prosecutor asked why I was there so early. I said it was because the defense attorney said he wanted to talk to me. He said ohh, not really - he figured I was going to just talk about the regular topics that could go wrong with blood DUI analysis. I replied “No, actually there IS something wrong with this case, let me show you.”

After about 5 minutes, busting out the calculator, performing analysis I doubt many government scientists even know how to do, I had shown the prosecutor that I was going to testify that based on the problem I detected while reviewing the case material, there was a 1 in 9 chance the reading was at or above a 0.080, and a 8 in 9 chance it was in fact below a 0.080.

The prosecutor looked up at the defense attorney and asked if his client would be interested in a reckless driving charge. I also explained to the defense attorney that getting me copies of materials to review in advance doesn’t cost any extra, and it can lead to agreeable solutions to cases without having to go to trial.

It was very odd to have a reckless charge offered after a full day of court the day before, but the prosecutor knew that I knew my science. Knew I was someone who could explain my points to the jury, and knew I wasn’t just making things up (he did check with the state scientist who did the analysis, but i don’t know the details of that conversation).

So plea bargains happen. And they aren’t bad things. If it weren’t for plea bargains, the legal system would come to a screeching halt. Courts would be overloaded, and chaos would ensue.

So next time you get upset, hearing about someone you “knew” was guilty getting away with a plea bargain, remember you probably don’t know all the facts of the case, and when a prosecutor offers a deal it’s for a reason. Better to “win” a lesser charge, than risk losing a greater one. One in the hand versus two in the bush so to speak.

(2 votes, average: 5 out of 5)
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A friend of mine sent me a link with the following video clips from YouTube. Remember, I’m not a lawyer, and as such I don’t give legal advice, but here is a set of interesting clips. The first is from a defense attorney’s perspective, the second is from an investigating officer’s perspective. Listen to what they have to say, and be sure to talk to a lawyer if you are ever questioned by police.

Remember even police do this. I’ve seen cases of officer involved shootings, or internal affair cases, where the police officer was absolutely in the right, did nothing wrong, but they weren’t going to answer any questions without a lawyer being present. Cops don’t even answer other cop’s questions, they must know something.

Defense Attorney’s Perspective

Investigating Officer’s Perspective

Now never saying anything to police isn’t what one should take away from here. For example, I was visiting my home town last weekend. I ran into a sobriety checkpoint. There must have been 20 officers lined up, I was waved up to the front of the line and asked a series of questions.

You have anything to drink tonight sir?
-No sir.

Are you headed home sir?
-No sir.

Headed out to a party tonight sir?
-No sir. (while my 6 year old son and his 62 year old grandmother are in the car)

Have a good night sir.

I answered the questions because I knew I wasn’t going to incriminate myself, and I hadn’t done anything wrong. Now if I had been asked to exit the vehicle and perform FSTs, I would have refused, even though I hadn’t had any alcohol to drink in probably 3 months.