Pubdate: Fri, 22 Jul 2005
Source: Austin Chronicle (TX)
Copyright: 2005 Austin Chronicle Corp.
Contact:  http://www.auschron.com/
Details: http://www.mapinc.org/media/33
Author: Jordan Smith

ROCHA CASE: NEW DRUG EVIDENCE RAISES QUESTIONS ABOUT
COUNTY LAB

There's more trouble and confusion in the Daniel Rocha police homicide
case.

Travis Co. Medical Examiner Robert Bayardo originally reported that
Rocha was drug-free the night he was killed during a June 9 encounter
with Austin police.

On Monday, July 18, Bayardo reversed that assessment, reporting that a
subsequent toxicology screen revealed the 18-year-old had marijuana in
his system the night he was shot by Austin police.

The abrupt about-face has raised questions not only about the handling
of the Rocha case, but also about the general reliability of evidence
coming from the ME's office. "The Medical Examiner's office apologizes
for the confusion caused by the reporting of a false negative result 
in the initial toxicology report," Bayardo wrote in an open letter.
"The probability of a false negative occurring is very low,
unfortunately it did occur in this case." The reversal prompted APD
Chief Stan Knee to request that the blood and urine samples be
submitted to outside, third-party analysts for additional testing.

On June 9, APD Officer Julie Schroeder fired a single 9mm round into
Rocha's back, killing the 18-year-old during a traffic stop made in
connection with an undercover drug operation in the Dove Springs
neighborhood. According to the department, Schroeder shot Rocha
because she thought that he'd grabbed her Taser and was preparing to
use it on Sgt. Don Doyle, whom Rocha allegedly knocked to the ground
during a struggle with the officers near the intersection of South
Pleasant Valley Road and Quicksilver Boulevard.

On June 15, Bayardo reported that the results of initial toxicology
testing meant that Rocha was drug-free that night.

The clean report quickly became fodder in the debate over Rocha's
death -- particularly regarding the police version of events.

If Rocha was killed during a traffic stop connected to an undercover
drug sting, as the police have said, why then was he drug-free? And
didn't that fact undercut the cops' argument, suggesting instead,
perhaps, that Schroeder acted prematurely or carelessly -- or worse --
when firing a single 9mm round into Rocha's back? With the revelation
on July 18, that Rocha did, in fact, have a small amount of marijuana
in his system on the evening of June 9, the argument hasn't changed
much. Critics have charged that the APD somehow unduly influenced the
ME's office to manipulate the test results in order to bolster their
argument that the shooting was justified. Attorney Bobby Taylor,
representing the Rocha family, said that Daniel's family is upset that
the discrepancy may be used to paint a negative picture of Daniel and
to take the focus away from Schroeder's actions. "My client is
concerned that everything that is being done is taking the focus away
from the officer, Schroeder, who shot Daniel in the back," he said.
"Are we getting away from [that] fact?"

Nonetheless, Taylor agrees that there is a potentially more
devastating question: How did the mistake happen and have there been
any others?

Indeed, the change in tox results is the second revision Bayardo's
office has made in the Rocha case. Initially, Bayardo said there were
no scratches, cuts, or bruises on Rocha's body that would indicate
there had been a struggle, as the cops have said. Several days later
Bayardo corrected that, saying that his office had, in fact, found
marks on the body that initially were unreported to the public.

As for the tox results, Bayardo explained that his office decided to
do the retest after receiving a call from APD Detective Art Fortune,
who told the ME that there "was considerable evidence that Rocha may
have smoked marijuana prior to the incident that led to his death,"
Bayardo wrote.

As a result, Bayardo had toxicologist Brad Hall run the test again --
this time by running a "gas chromatography/mass spectrometry" test on
Rocha's urine, and by running a simple blood test. The second time
around, both came back positive, showing a small amount of marijuana
metabolite and traces of tetrahydrocannabinol, or THC, the active
ingredient in marijuana.

Bayardo told the Chronicle that the levels found in Rocha's system
would be consistent either with an infrequent user who smoked a small
amount in the hours prior to death, or, in the case of a chronic
smoker, with the remnants of marijuana smoked up to a month before the
shooting.

Bayardo said the problem is that the standard "immunoassay" testing --
in which the lab takes a drop of urine, mixes it with "reagents" and
then looks for a reaction -- that was originally done on Rocha's urine
has the potential to produce false results. "Although the immunoassay
screening technique is widely used and accepted as an accurate
method in the forensic toxicology world, there is the potential for
both false negatives and false positives," he wrote.

But unreliable results, he told the Chronicle on Tuesday, are
uncommon.

In the 27 years that Bayardo has been ME, he said, he has never had
another case where subsequent tox testing has contradicted the initial
immunoassay results. Bayardo acknowledged, however, that his office
only does retesting upon request (typically from family, police, or
lawyers), and as such concedes that there is the possibility that
false results have happened in cases where there has been no
subsequent retest. "There hasn't been a false result in 27 years," he
said, "at least not that we know of."

Beyond the Rocha case is the specter of other potential and as yet
unknown errors coming out of the ME's office. "Right now, this makes
me question everything that is coming out of that lab," said Mike
Sheffield, president of the Austin Police Association. "If they are
missing things like this, what else are they missing? As law
enforcement, we rely on that office to give us the best, correct
evidence the first time around." In a written statement, Chief Knee
said that he too "is disturbed by the inconsistent findings" and that
he contacted District Attorney Ronnie Earle's office to ask that his
office "seize the blood and urine evidence and send it to a third
party laboratory for analysis," which, he said, Earle's office has
agreed to do.

County Judge Sam Biscoe said that the false results "concern" him, but
that Bayardo's explanation for the false result makes sense.

The bigger question, he said, is "should we have conducted the blood
analysis to begin with?" Bayardo said that the immunoassay test is
standard, primarily because it is far less costly than gas
chromatography testing and takes less time to conduct than do gas
tests or blood tests.

Biscoe says he wants to know what the standard procedures are at labs
in Texas' other urban counties as well as what is considered best
practice nationwide. He said that county commissioners will be
conducting a "protocol review" today (Thursday) to determine "how the
tests are run and how they should be run, with an eye toward any
changes that [are] needed to make things better." The review is part
of an ongoing county debate over whether to pursue accreditation for
the "whole lab -- what we would need to do and what it would cost," he
said. "So, if you ask, have I lost confidence in [Bayardo], I want to
say I have not yet. But I've got some questions."

Attorney Taylor agrees that the false testing in the Rocha case may
have far-reaching implications. "I agree that this is very
disturbing," he said. "As a practicing attorney I would certainly be
going back and looking at cases where Bayardo's lab was primary to
convicting a person -- it makes you wonder if we have a Houston lab
situation.

I would certainly say that." For his part, Bayardo says that the Rocha
tox result situation has been an eye-opener for his office. "Maybe
we've learned our lesson," he said, and that "in special cases we need
to do special testing." 
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MAP posted-by: SHeath(DPFFlorida)