Litigating Post-Conviction Innocence Claims CLE

10th Annual Post-Conviction Conference
Litigating Post-Conviction Innocence Claims

The National Association of Criminal Defense Lawyers (NACDL), in collaboration with the Innocence Network, and supported by a grant awarded by the Bureau of Justice Assistance, presents this essential training specifically for lawyers who handle post-conviction innocence claims. National experts will provide cutting edge instruction on topics essential for re-investigating and litigating post-conviction innocence claims. Innovative new strategies and topics will be featured.

Sessions will cover both forensic evidence and strategies to tackle difficult issues in post-conviction innocence claims, including: addressing racial discrimination at trial during post-conviction litigation; forensic genealogy; DNA: probabilistic genotyping; blood spatter; shaken baby syndrome/abusive head trauma; and navigating admissibility standards post-conviction.

When: Thursday, April 11, 2019

Seminar Location & Hotel Accommodations:
The Westin Peachtree Plaza
210 Peachtree St. NW
Atlanta, GA 30303

Registration:
More information is available here. The program is free for lawyers who handle post-conviction innocence claims. Pursuant to the grant funding, attendees must work on the screening, review, investigation and/or litigation of potential post-conviction innocence claims and cannot work on the prosecution of criminal matters.

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Independent testing of blood for drugs or alcohol when a client is in custody

In some cases, an attorney needs a defendant’s blood to be collected for independent toxicology testing immediately after arrest and no specimen has been collected by the state. The presence of a controlled/impairing substance and its metabolites will dissipate within hours or days, so time is of the essence if an attorney wishes to have this evidence collected and tested. This is an example of why it is important to meet a new client as soon as possible. In a case where the defendant is in custody, it can be challenging to arrange for this collection in a timely manner.

Here are some steps that attorneys can follow to arrange the testing for a client in custody:

  1. Consider the time frame within which the sample needs to be collected in order for the substance to be detected. Asking the client about the timing of ingestion, amount, and history with the substance may yield relevant information for determining whether testing should be done. For appointed cases, counsel can contact Sarah Olson for assistance in finding an appropriate toxicology or pharmacology expert who can offer guidance about how quickly a substance is metabolized and what type of testing will be most effective.
  2. Identify a lab that can conduct the testing. The lab should be an accredited laboratory experienced in forensic testing. Discuss with the lab what type of testing to conduct and the type of report needed. Ideally the lab would be able to perform both screening (immunoassay) and confirmatory (GC-MS or LC-MS/MS) testing as needed, and be able to quantitate the amount present, if needed. The lab can provide specific information about what type of sample to collect, best practices for collection and labeling, how to ship the sample, and what the lab will do with the sample after testing. Request from the lab any documentation that you need to submit with the sample. If you need help identifying a lab for an appointed case, contact Sarah Olson.
  3. Identify a registered nurse or phlebotomist who can travel to the jail to collect the sample. If you need help identifying a qualified health care professional for an appointed case, contact Sarah Olson.
  4. Request funding authorization for the independent testing/flat fee services for appointed cases or by making an ex parte motion or making the appropriate request of the Capital Defender’s Office in a potentially capital case. This sample ex parte motion can be adapted.
  5. Request that a court order be entered to allow a qualified health care professional to collect the sample from a defendant in custody, authorize funding for their work in an appointed case, and grant independent testing. This sample ex parte motion for sample collection and independent testing can be adapted. Counsel should also complete an AOC-G-309 Form or IDS-029 Form and submit it to the appropriate decision-making authority.
  6. Each facility may have different requirements for sample collection. It may be worthwhile to inquire about those requirements prior to seeking the order. Counsel should be aware that law enforcement might contact the District Attorney’s Office about this request and should consider whether to draft the order in a way that anticipates it being shared with the DA’s Office and consider enlisting help from the DA’s Office to facilitate compliance as needed.
  7. Provide the nurse/phlebotomist with a copy of the order and ensure that proper chain of custody is documented.
  8. Arrange for shipment of the blood sample and your request as instructed by the lab using a trackable carrier, like FedEx or UPS.

IDS Forensic Resource Counsel Sarah Olson (sarah.r.olson@nccourts.org) can provide additional information.

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Upcoming forensic evidence programs at Duke Law School

Duke Law School will host two forensic evidence programs in March 2019.

Getting Forensics Right: Strengthening the Connection Between Forensics, Statistics, and Law Ten Years After “A Path Forward”

https://law.duke.edu/events/scientific-evidence/

Wednesday, March 6, 2019 • 12:30 PM • Law School 3037

What are the stakes when forensics go wrong? Keith Harward will tell his story: he was exonerated by DNA testing, but spent 34 years in prison in Virginia for a murder he did not commit, based on multiple erroneous bite mark comparisons. Peter Neufeld, co-founder and co-director of the Innocence Project will join in the conversation. M. Chris Fabricant, who directs special litigation for the Innocence Project, will moderate. Prof. Brandon Garrett will introduce the panel. Lunch will be provided. The conference is made possible for the Center for Statistics and Applications in Forensic Science (CSAFE), and it is also supported by the Innocence Project. Sponsored by the Duke Wrongful Convictions Clinic and Criminal Law Society. For more information contact Prof. Brandon Garrett at bgarrett@law.duke.edu. Registration is not required.

Whiskey in the Courtroom – Evolving Trends in Forensic Science: Cognitive Bias in Forensic Science and in the Courtroom

https://law.duke.edu/ccjpr/symposium2019/

Friday, March 8, 2019 • 8:45 AM • Law School

Indigent Defense Services, the Duke Law Center for Criminal Justice and Professional Responsibility, and the Center for Statistics and Applications in Forensic Evidence are co-sponsoring the fifth annual CLE, “Whiskey in the Courtroom: Evolving Trends in Forensic Science.” Forensic science experts and attorneys who have litigated cases involving complex scientific evidence will present on a range of topics designed to help attorneys understand the latest trends in forensic evidence, limitations to this evidence, and legal challenges that can be made. This year the program will have a special focus on Cognitive Bias.

Attendees will pay $25 to cover the cost of food and parking. IDS will cover that cost for IDS employees. The program is expected to carry 6.25 CLE hours. If you want CLE credit, you will need to pay the NC State Bar the CLE fee of $3.50 per credit hour.

Registration is nearly at capacity. Sign up here.

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New lab procedure to facilitate communication between attorneys and lab analysts

The NC State Crime Laboratory has put into place a change to its Document Management Policy that should help criminal defense attorneys of record who wish to speak to the persons at the Crime Lab who have worked on their client’s case(s).  The new procedure states:

4.6.1.1  Once a Case Record has been finalized, the employee may discuss the results of the examination and the record contents with the above listed individuals and the attorney of record for the defendant. Verification of the defendant’s attorney of record must be performed prior to release of any information by asking for the following information and recording it in the communication log: attorney’s name, agency or firm, phone number and/or email address, defendant’s name, and either the Agency or Laboratory case number.

This updated policy has been distributed to all Lab personnel. The Lab adopted this procedure to formalize their existing practice and to address communications issues brought to the attention of Ombudsman Sarah Jessica Farber in meetings with members of the defense bar. The opportunity to speak to a lab analyst prior to trial is invaluable to understanding the analysis performed in a case. All attorneys should take advantage of this opportunity!

As always, people can access the Crime Laboratory policies and procedures via the Sharepoint. Persons who do not have a login will need to create a free Microsoft account in order to do so, and can begin the process by sending an email to ISO@ncdoj.gov with “Request to Access Procedures” in the Subject line.

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ANSI/ASB Best Practice Recommendation 037, Guidelines for Opinions and Testimony in Forensic Toxicology

The American Academy of Forensic Science Standards Board (ASB) has published ANSI/ASB Best Practice Recommendation 037, Guidelines for Opinions and Testimony in Forensic Toxicology, First Edition. This document delineates guidelines for best practices in forensic toxicology opinions and testimony, including human performance toxicology (e.g., driving under the influence of alcohol or drugs), postmortem forensic toxicology, court-ordered toxicology (e.g., probation and parole, drug courts, child services), and general forensic toxicology.

The American Academy of Forensic Sciences (AAFS) is working to develop best practice recommendations through a consensus process for each forensic discipline. Though the guidelines are non-binding, they do represent a deliberative process by which a group of forensic science practitioners, researchers, and court system stakeholders have developed recommendations on training standards, lab procedures, quality assurance, report writing, and testimony for each field.

The 2009 National Research Council Report, Strengthening Forensic Science: A Path Forward, emphasized the need for improving quality assurances, including continued standards-setting and enforcement. They wrote:

…Standards and best practices create a professional environment that allows organizations and professions to create quality systems, policies, and procedures and maintain autonomy from vested interest groups. Standards ensure desirable characteristics of services and techniques such as quality, reliability, efficiency, and consistency among practitioners. Typically standards are enforced through systems of accreditation and certification, wherein independent examiners and auditors test and audit the performance, policies, and procedures of both laboratories and service providers.

The Guidelines for Opinions and Testimony in Forensic Toxicology aim to “ensur[e] that proper toxicological testimony is allowed in legal matters by defining the general areas of forensic toxicology that are viewed as reliable by other experts in the field.”

The Guidelines specify that experts should provide both an analytical toxicology report and a separate report that conveys their opinions if they will offer an opinion on the interpretation of the toxicology findings (Section 4.1). In other words, under the Guidelines, an expert who will testify about the impairing effects of substances should provide that opinion in a written report, in addition to reporting the quantitative results that are typically provided in a Lab Report.

Additionally, the Guidelines specify that an opinion should clearly state any assumptions made; clearly state any known limitations of the opinion; cite references to support the opinion (and such references should be provided in the report or made available upon request); and be based on the totality of information available, including case history, observations, circumstances, and other relevant information, and not based solely on analytical results. (Section 4.3)

The Guidelines also define what are considered appropriate (Section 5.2) and inappropriate (Section 5.3) opinions and testimony by a toxicologist. These sections reiterate that opinions about impairment must be include consideration of the context of the case and not be based solely on a quantitative result. Also, words such as “scientific certainty” or “reasonable degree of scientific certainty” should not be used in testimony unless required by jurisdictional regulations.

All ASB publications can be downloaded for free from the Published Documents section of the ASB website.

 

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Police Manuals

Attorneys may find it useful to review police procedure manuals to understand the applicable rules of conduct for the relevant law enforcement entity in their case. These rules are referred to as “policies and procedures,” “general orders,” “general directives,” “codes of conduct,” or “manuals.” Many police departments across the state have their manuals available for public viewing online, though the manuals for the various county sheriffs’ offices seem to be less commonly available.

In many cases, police departments and sheriffs’ offices choose to pursue accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA), which requires compliance with certain standards and annual review. General information on the accreditation process and standards can be found here. It is likely that a CALEA-accredited department would have written standards.

The following is a non-exhaustive list of the law enforcement entities in the most highly-populated areas of the state, with links to online manuals if they are available. Even if the manuals have not been made available online, many law enforcement entities have made reference to such manuals in documents that are publicly available, so attorneys could request them through discovery or through a public records request.

Police Departments

Sheriffs’ Offices

  • Buncombe – Unavailable.
  • Cabarrus – Unavailable, though adhering to the “Sheriff’s Procedures and Policies” is listed as a goal in an office document (page 239).
  • Cumberland – Doesn’t list manual, but is CALEA accredited.
  • Forsyth – Doesn’t list manual, but is CALEA accredited.
  • Guilford – Unavailable.
  • Iredell – no manual available for the sheriff’s office, but the Forensic Services Guide is available here.
  • Johnston – Unavailable, but code of ethics available online.
  • Mecklenburg – Unavailable.
  • New Hanover – Unavailable.
  • Onslow – Unavailable.
  • Scotland – Unavailable.
  • Union – Unavailable.
  • Wake – Unavailable, though a portion of an old version is available here

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Sexual Assault Kit Tracking Now Available

In 2018, the NC General Assembly passed legislation (S.L. 2018-70) requiring the creation of the a statewide tracking system to track the testing of Sexual Assault Evidence Collection Kits (SAECKs) from collection to completion of forensic testing. The tracking system is now available for all stakeholders in the criminal justice system.

For kits collected on or after Oct. 1, 2018, the Sexual Assault Evidence Collection Kit Tracking and Information Management System (STIMS), can be accessed to know where the kit is, in whose custody, whether the kit has reached the lab, and whether or not it has been tested—useful information for all participants in the investigation and court proceedings.

The system is easy to use: just visit the STIMS online portal, enter the serial number of the kit you wish to check in the system, and the tracking information will be returned in moments. The serial number of the kit is found on the box itself. The number may contain several leading zeroes—these may be included or omitted. Defense counsel will need to request the serial number of the kit from law enforcement or the District Attorney’s Office. Attorneys should be aware that the online system does not report the results of the testing, only the tracking information. Results of laboratory analysis are available through the discovery process.

The NC Attorney General’s Office has put together a series of instructional videos on the STIMS systems for various users:

Overview: A general overview of STIMS, why it was created, as well as applicable law and legislative history.

Survivor User: Covers how to enter the serial numbers and how to read the results page.

These videos may be useful to know how the data is entered and how the kits are tracked through the chain of custody:

Law Enforcement User Training Video

Crime Laboratory User Training Video

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