Andy Bromage over at Seven Days has a great article this week on corruption in Vermont's crime lab involving fraud in DataMaster testing procedures.
The gist of the article is that the lab technician in charge of doing tests on the state's fleet of DataMasters, the device used to test breath samples for alcohol content, engaged in a variety of stratagems to make sure that the machines would appear to be operating correctly to measure the blood alcohol content even if they weren't.
Two leading criminal defense attorneys, David Sleigh and Frank Twarog, are now using these improprieties to attack the validity of lab results used in DUI cases in Vermont.
If you're a regular viewer of any of the myriad of Law and Order shows on TV you know about the Brady rule. Based on the Supreme Court decision of Brady v. Maryland, it requires prosecutors to turn over potentially exculpatory evidence to the defense. Among other things, evidence that evidence being presented against the defendant may not be credible is specifically covered by case law applying the Supreme Court’s Brady decision.
This body of law was addressed by the Supreme Court just last week, when they allowed a conspiracy by New Orleans prosecutors to conceal evidence to go unpunished.
There is a revealing quotation from Washington County State's Attorney Tom Kelly at the end of the article:
The problem is that the prosecutor isn’t the one who gets to decide. Even an honest prosecutor could review some particular piece of evidence, conclude that it wouldn’t affect the strength of the State’s case, and decide not to turn over the evidence. After all, the guy’s guilty!
They wouldn’t be prosecuting him if he weren’t, right?
It sure makes you wonder how many convictions were based on fraudulent DataMaster evidence, doesn’t it?
Yes, I know I’m in danger of pushing this meme to the limit of human tolerance, but it’s remarkably appropriate here. From my reading of the article, questions had been raised for quite some time about the use and testing of the DataMasters — but nobody wanted to do anything about it. They just let the situation fester, because, well, it’s the Vermont way. Stick to SOP, ignore signs of trouble, and usually nothing bad happens.
Well, in this case, sticking with Granddad’s lightbulb could result in mass dismissals of DUI cases — and more drunk drivers on our roads. That’d be nice.
Oh, and with all due respect to Mr. Kelly: does a prosecutor have any direct contact with the machines and the lab? Or does he just receive test results and use them as evidence? If the latter, then Mr. Kelly’s confident assertion — “I have not encountered any problems with the machines” — is completely without foundation.
Incompetence, laziness and such a casual disregard for civil rights! For all their 21st century hardware, these people might have stepped straight out of an aw-shucks sheriff’s department in a 1950’s southern novel.
It isn’t just Vermont.
The US Supreme Court ruled years ago that, yes, there are many convictions of innocent people, and yes after conviction much evidence comes to light proving that innocent people are locked up, and yes much of that comes from unethical prosecutors that sat on the evidence just to score a conviction on an innocent person; but to overturn any of these obviously fraudulent convictions would cause people to question the Judiciary and to harm crime victims that thought their case was over, so in no way can any innocent person be released no matter what the evidence!
Gotta love Conservatives! They HATE the Rule of Law. (It was the Conservative majority that voted this way, with the liberal side being appropriately appalled at such a notion)
I have often wondered why there are no opportunities to test one’s blood alcohol level aside from being stopped by the police.
Why don’t the cops ever hold a blood alcohol clinic where you could have a couple of beers or whatever and then show up and blow and get some idea where you stood. Of course, it might be prudent not to drive oneself to such an event.
Why don’t any bars have a coin-op b.a. testing device? It might cost a buck per blow, but you could learn something about where you stood (or staggered) and you could decide to call a cab if you were over the limit.
I’m thinking it’s probably because these things are not reliable or consistent. The producer of the coin-op or the bar would be liable if it showed a subject to be a .07 (under the limit) and then she got stopped and blew a .09 on the cop’s device. The cops holding a clinic could be liable in the same way.
I don’t know if the comparison applies, but we have speedometers on our cars. If the police arrest us for speeding at say 80 mph, but we know we had only been going 60, we can at least question the reading based on another measure. With the b.a. thing, there is no way to get a reading that is independent of that submitted by the police.
and you’ll see that the problem was in spiking the meters when calibrating. That happens when the instrument isn’t reading high enough, not that it’s reading too high. If anything, this would cause the meters to pass people who would otherwise wouldn’t.
Agreed that the cases need to be thrown out, but it appears that these meters have been letting people go who would otherwise been hit for DUI.