Wednesday, May 06, 2009

DWI BLood Tests SUCK

Blood Tests Suck Worse than Breath Testing
Dose of Reality

I just tried a felony DWI blood test case and after 6 hours the jury of twelve found him guilty. As a defender of the constitution and our laws (criminal defense lawyer), I know that I am suppose to walk out of that courtroom and move on to the next case. Part of my job, right ? You win some and you lose some, right ? I wish. For me, where injustice occurs, we all lose. When injustice occurs, not only is our society unsafe (our citizens being falsely accused and their rights trampled on) but the beauty of humanity leaves us all. In State of Texas v. James Ryan Giles (everything occurring in trial being public record), the facts are the Fort Worth Crime Lab is so incompetent they use the same pipette and beaker of water for all 25 samples they run through the gas chromatograph when testing for blood. Industry practice is to change the pipette tip and use a different beaker of distilled water for each sample to prevent contamination (blood samples must be prepared in a different tube with an internal standard, the blood is not actually tested but the heated headspace above it). The blood is pushed through a gas chromatograph column (type of coating and thickness important in that it affects the retention time and therefore the result, yet the Fort Worth analyst did not even know what type of coating or thickness she used on Mr. GIles) that must be cleaned at least once a month (industry standard for as many samples as Fort Worth analyzes) to prevent contamination. They had not cleaned the columns a single time in 6 months before and Mr. Giles' samples showed contamination on all 4 of his gas chromatograms. The analyst even admitted that she found Toluene contamination in his sample of which he would be dead if he ingested it. Funny how she admitted that on the stand but marked "unknown" in the record. These are just the analyst problems, not even touching on the improper storage (refrigeration, lack of temperature high/low check documentation) or the improper collection (using a swab that may have contained alcohol and not sterilizing the tube). Despite 3 fact witnesses who were with Mr. Giles who testified he could not have had more than 3 drinks over 3 hours, and 4 of the state witnesses including a police officer never testifying that Ryan was intoxicated, the jury after 6 hours found him Guilty. Not being privy to the jury deliberations, I cannot claim to understand the basis of their decision. As would be my job, I must accept the verdict; however there is not a shadow of a doubt that I know not a single one of those 12 jurors would trust the Fort Worth Crime Lab with their blood. Their verdict just tells the Tarrant County District Attorney's office that improper scientific methodology that tainted results is acceptable. As a matter of fact, the prosecutor commented in close "If you don't like how they do things in the Fort Worth crime lab, move out". I wish everyone involved in tainted blood test procedures and those that support such unacceptable methodology would move out, not the other way around.

The point of all this really boils down to one simple thing: a great human being. I have known Ryan for years. I represented him on his previous DWI. He is a good looking, clean cut, charming 33 year old man. The courthouse was full 3 days with his supporters numbering close to twenty. He has always been straightforward with me, respectful and somehow always seemed to make me laugh or smile. Testimony even came out in trial how he can't even go to his local TGI Friday's without almost all the employees knowing him and him befriending everyone. After the punishment phase (he agreed to the 2 years prison versus Tarrant County's insane 10 year/4 month jail probation office policy designed to put a probationer back in prison), with utmost dignity he told me how much he appreciated my services, how he hated to make his mom cry and how he did not want his family spending anymore money on him on an appeal. The bailiff took him behind the steel door and the last glimpse I caught of Ryan was his look of dignity wiping back a tear as he glanced out at the gallery to his many friends and family. He said 2 things that struck me. First thinking postively, he said "Mimi, you know I might be a positive influence in prison but it amounts to so very little." He next said, "You know Mimi, going to prison is not going to somehow make me a better person. It won't be good for me at all." He knows, but little does he know. What I know of our jails and prison system, is that you get treated less than a human being. When a guard looks at you, he sees a criminal- not a person. They herd you like cattle and take away every ounce of dignity you ever had. Problem is, a person like Ryan does not deserve prison. Prisons should be for people who hurt people and animals- kidnappers, rapists, robbers and murderers. Ryan and others charged with alcohol or drug problems that do not involve serious death or bodily injury should be in various forms of rehab and counseling, allowed to continue to contribute to societal good. Yet our society would rather spend $40k a year caging people like Ryan like animals in prison. Europe (the Netherlands) has left this moralistic, Calvinistic thinking decades ago. America cannot be the greatest country when we put good people like Ryan in prison where he does not belong. Probation in Texas on nonviolent felonies on alcohol and drug cases is not rehabilitative either. It is designed to bilk you out of bunch of money and land you back in prison anyway once you have been totally humiliated. When I think about Ryan, I can honestly say that I prefer his company ten million to one compared to both prosecutors and those jurors who choose to put their heads on their pillows at night and ignore the real problems. I accept they found Ryan guilty. I don't agree with it but I don't accept the fact that their verdict will put a lot more innocent Ryans in jail just because they have drank alcohol (not intoxicated) and their blood ends up in a crime lab that is worse than what a 7th grade classroom would do (at least they would follow protocols).

The bigger problem in all of this is that people should try to be good to other people. We should not have "office policies" in district attorney offices that fail to look at the individual facts and the human beings behind the cases. We should have DWI/ drug possession laws that take prison out of the formula and focus on positive counseling and rehab. Probation in Texas is another word for punishment. Probation should not be punitive (that is what prison is for) but positive and helpful to people. If our criminal justice system aimed to help nonviolent people who have just made mistakes and give people chances rather than punish (we are light years away from European enlightenment when it comes to criminal justice), all of society would be helped. Bottom line from Mr. Giles case, blood testing is anything BUT accurate (my chemist expert said the margin of error on blood testing is infinity) and our justice system is about convictions at all costs not what is right from wrong when it comes to DWI. This is wrong. Somehow this overhyped DWI madness makes everyone not worth knowing feel good. My heart hurts tonight, but I will move forward to continue to fight in honor of those like Ryan. Let us all try to be openhearted and good to one another whether or not they are social drinkers is my message to MADD and district attorney's offices everywhere.

Sidenote- The Swine Flu strikes again ! 80,000 students in the Fort Worth Independent School District not going to school. ALL Ryan's (33 years old) jurors were middle aged to senior citizens. The youngest juror being older than me, 41 ! There was a reason the Founding Fathers created a "jury of your peers."

1 comment:

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