November 22, 2016
New evidence problems have surfaced at the Harris County Courthouse after questions were raised about yet another crime lab analyst, the latest in a string of evidence snafus that have put more than 1,000 criminal cases under scrutiny.
The lab technician at the city crime lab admitted mislabeling a DWI blood test in a 2013 case, but defense attorneys in subsequent cases say they were not alerted to the mix-up.
The revelations could force the review of an unknown number of other cases handled by the technician, though the district attorney's office said Tuesday it did not have immediate comment on the disclosure.
"This is one of those rare cases that is so much more important than just the one case because it revealed wrongdoing in two critical institutions in our justice system, one being the crime lab and the other being the district attorney's office," said attorney Josh Schaffer, who has asked a court to overturn his client's drunk-driving conviction because of the evidence problems.
The new case emerged as Precinct 4 Constable Mark Herman on Tuesday released the results of an independent audit following the unrelated destruction of thousands of pieces of evidence. After several weeks of inventory work, a consultant determined that there were only two items - both DVDs of crime scene footage - out of more than 15,300 now in the property room that could not be located.
The DA's office faced similar criticism over the Precinct 4 problems after waiting months to inform defense attorneys that evidence in their cases could be missing.
And the county's crime lab is already under scrutiny after a lab supervisor repeatedly testified incorrectly about her qualifications. More than 10 years worth of DWI cases are currently under review as a result of that case.
"It's shocking, but it keeps happening," said Tyler Flood, president of the Harris County Criminal Lawyers Association. "It's a continuation of a very disturbing pattern at the DA's office of not disclosing very important information that defense attorneys need to know in order to defend their clients."
Keeping things quiet
In the latest case, city crime lab analyst Andrea Gooden alerted her supervisor that she had mislabeled a blood sample that had been submitted with errors by a Houston police officer.
Although the label was eventually corrected, the charge was reduced and Gooden was suspended in April 2014 from conducting further tests. She continued, however, to testify in court about samples she'd already completed.
Defense attorneys were not told about the suspension or the evidence problems, which could have provided grounds for questioning her testimony or asking a judge to throw out the case. Information that can help the defense are known as "Brady materials," named for a landmark U.S. Supreme Court case, and must be divulged by prosecutors.
The Texas Forensic Science Commission issued a sharply worded rebuke to the city's forensic science lab in January 2015 that said Gooden's supervisor, William Arnold, intentionally failed to document the suspension.
The report described the interim lab manager as "professionally negligent." Arnold is now the lab's information technology director.
A separate report in December 2014 from the city's Office of Inspector General found that Arnold knew Gooden was scheduled to testify less than 10 days after being suspended and wanted to protect her from cross examination.
The issues resurfaced this month after Lesley Esther Diamond challenged the toxicologist's findings that contributed to her conviction in a 2014 DWI case, petitioning the court for a new trial.
In documents submitted to the court, Diamond's defense attorney, Schaffer, listed a "mountain of evidence" that raised larger questions about policies and procedures at the crime lab and the DA's office. At one point, according to the TFSC report, the head of the city lab told a human resources official that things are done "differently" at a forensics lab.
Gooden had worked an estimated 1,500 cases at the time of her suspension, according to the city investigative report. She returned to casework on July 28, 2014.
The Houston Forensic Science Center took over management of the crime lab from the Houston Police Department days before Gooden alerted her supervisor of the mislabeling. Peter Stout, HFSC's chief operations officer, said the lab has since put quality controls in place to improve transparency and prevent documentation errors.
"I think it's fair to say that we take it really seriously to ensure that all of the information is as available as we can make it," Stout said. "We've been working hard over the past couple of years since this incident to put controls in place to make sure this doesn't happen again."
Gooden eventually reported the problem herself to the state forensic commission because she had questions about her the handling of her case. Management at HFSC initiated the separate investigation by the OIG.
"If Gooden would have never turned whistleblower on the lab, I don't think any of us would be talking about this right now," Schaffer said.
After the investigative reports were issued by the state and city, Dick Bax, general counsel for the district attorney's office, sent an email to office prosecutors saying he didn't believe the information rose to the level required by the Brady case.
"If you have a case that involves either Gooden or Arnold, you might consider disclosing the report to defense counsel," Bax wrote in the February 2015 email, stopping short of requiring prosecutors to divulge the information.
Schaffer said the DA's office should have notified attorneys.
"It is not the DA's role to determine what is or is not Brady," Flood said. "If anything is potentially Brady, they must expose it."
Judge Jay Karahan will likely decide early next week whether Diamond will receive a new trial, but his ruling is limited to just that case. It is unclear what may happen in at least two other trials in which Gooden testified.
All clear in Precinct 4
When Precinct 4 officials realized there was missing evidence from their property room earlier this year, they notified the district attorney's office and the Harris County Attorney's office, Herman said Tuesday in a news conference announcing the completed audit.
In April, Herman fired former Corporal Chris Hess, whom the constable has described as a "rogue employee" who haphazardly cleared out drugs, guns and other evidence on unresolved cases.
A lawyer for Hess said that his client was blamed for systemic failures in property handling and unfairly singled out for the actions of a team of deputies who were not given clear orders. The former constable's office employee remains under investigation for potential criminal charges.
Kolene Dean, a property and evidence consultant, located more than 15,300 pieces of evidence in the Precinct 4 evidence room including nearly 2,000 firearms, $102,000 in currency and jewelry.
She determined that only the two DVDs could not be located. One case has been disposed of and the other case can't be prosecuted because the statute of limitations to prosecute has expired. Dean also concluded that Hess was not using the digital inventory and chain-of-custody system correctly.
"We found that he had not been following policies and procedures for 15 years," Herman said. "He was just basically doing what he wanted to do when he wanted to do it, which is not good business."
The constable noted that he fulfilled his promise to release an audit of the remaining items in his precinct's safe keeping. The agency paid $18,000 for the analysis.
"We wanted to make sure our property room meets standards … and that we we're in excellent condition and shape even after what Corporal Hess is alleged to have done and that our property room is right where it needs to be," the constable said. "In the last couple of months, we've been having defense attorneys come out and examine property to make sure that the property on their clients is there and we've been showing it to them and doing our part to regain the trust of our community and our constituency."
Herman said the new policies require all future disposal of evidence must have the approval of the constable's office as well as the DA and the county attorney.
Dean also made several recommendations for Precinct 4, including making quarterly reports to administrators; keeping certain items in a separate, locked area; and placing cash in interest-bearing accounts.
Herman emphasized that the evidence disposals were not made during his tenure as constable, which began last year.