Thursday, June 18, 2009

Keystone Cops at the Police Lab


Keystone Cops at the Police Lab
By Steve Weinberg

When CSI became the most popular drama on television earlier this decade, forensic scientists employed by police departments emerged from anonymity. Discerning viewers seemed to understand that real-life police laboratory personnel (filling a job description officially known as "criminalist") do not solve murders and rapes within an hour. Still, the glamorization generated by television drama had begun, increasing exponentially with the spinoff shows CSI: Miami and CSI: New York.

Many criminalists indeed serve justice well, conscientiously analyzing evidence found at crime scenes, including blood, fingerprints, scrapings from beneath fingernails, hair, dirt, shoe impressions, tire tracks, hard copy documents, computer messages and more. The good ones keep up with new forensic techniques, write objective reports, consult openly with defense attorneys as well as prosecutors, testify truthfully in court and never lose sight of the ultimate goal — convicting the guilty while excluding the innocent from the pool of suspects.

But as it becomes increasingly evident that wrongful convictions constitute a cancer within the criminal justice system, it becomes simultaneously obvious that numerous criminalists are part of the problem. One incompetent or dishonest criminalist can infect hundreds of cases in a crime laboratory, with some of those cases mutating into wrongful convictions.

The contributions of criminalists to the wrongful conviction problem have been too often ignored by journalists, legislators and executive branch officials — not to mention police supervisors and prosecutors. As a result, the problems within forensic units have gone unresolved in many cities, counties and states, not to mention the Federal Bureau of Investigation, which houses the most influential of all crime laboratories. In at least a dozen law enforcement crime laboratories, talking about "problems" is a euphemism. "Scandal" would be the more apt term.

The larger truth seems undeniable: As long as crime laboratories are inside law enforcement agencies, criminalists will try to please their bosses and continue to be especially vulnerable to participating in wrongful convictions. Unfortunately, the crime lab problem cannot be fixed quickly or cheaply. It will take perhaps a decade to effectively retrain current criminalists and devise better training regimes for new ones. It will take hundreds of millions of dollars to improve crime laboratories, many of which are housed in crumbling buildings and cursed with outdated equipment. And unfortunately, police agencies and prosecutors are quite likely to oppose moves that would wrench crime laboratories from their supervision. Needless to say, police and district attorneys constitute powerful lobbies at the local and state levels.

Still, the timing for change is perhaps as propitious as it ever will be, thanks to a book-length report, mandated by the U.S. Congress, published in February by the National Research Council within the National Academy of Sciences.

Interlude: Is This Criminalist a Shill or a Justice-Seeker?
Shocking examples of dishonest criminalists are only a few paragraphs away. First, though, let's look at a prosaic example of the problem caused by placing crime laboratories within police agencies.

In 1995, a Missouri State Highway Patrol criminalist named Jenny M. Smith corresponded with a prosecutor named Robert Ahsens. They were investigating the murder of a 12-year-old girl in Springfield, Mo.

Smith held a bachelor's degree in medical technology and a master's degree in pathology. She had worked 14 years at a hospital laboratory before joining the highway patrol in 1988. As a criminalist in the trace evidence section, Smith examined hair, fibers, paint, glass, gunshot residue, bullet holes and other evidence connected to crimes.

After studying evidence from the Springfield murder, Smith wrote Ahsens a 13-page projected script of her testimony, if the case reached trial. "I want to help you all I can," Smith told Ahsens. "The following is a text of mock questions and answers. ... They cover the main points, and you will no doubt expand the questions. I mainly wanted to lead you through the convoluted course of my examinations in hopes I can give you some prior insight. I (am) hoping, too, that this will help you predict better just how I will answer certain questions. I feel confident that your charming ways will inspire a lucid, coherent and utterly convincing testimony out of me!!!"

Eventually, a copy of Smith's memorandum to Ahsens found its way into the defense attorney realm. Over and over since then, defense lawyers have used the memo to demonstrate Smith's pro-prosecution bias.

Eight years later, Smith wrote a letter to one of those defense lawyers after he tried to discredit her by mentioning the Ahsens memo — even though her testimony tended to favor the accused murderer in the case at hand.

"My goal is to present accurate and fair testimony to a jury so that they can make a more informed determination of guilt or innocence ... I do not allow myself to get caught up in the zeal of the investigators and prosecutors who are certain of their case," Smith wrote. "...I really don't know what experiences you have had with crime lab experts, but it seems you harbor some prejudice against us - that we work for the prosecution, will be hostile witnesses and will not talk to you without a subpoena. This is not true of me or most of my colleagues."

It's Official: Crime Labs Need Fixing
In February, news consumers across the nation learned about a book-length study titled "Strengthening Forensic Science in the United States: A Path Forward." The U.S. Congress mandated the independent study, conducted by the Committee on Identifying the Needs of the Forensic Science Community, with assistance from two other committees sporting long names connected to the National Research Council of the National Academy of Sciences. Those signing the report included a crime laboratory director, a judge, a private practice lawyer, two law professors, two medical examiners, five professors specializing in statistics/quantitative research, plus professors of chemistry, biochemistry, chemical engineering, computer science and forensic science.

Despite the innocuous and even optimistic-sounding title, the overall message of the report is clear: Law enforcement crime laboratories are underfunded, filled with poorly trained and/or technologically backward staff, beset by quality control problems and, too often, complicit in wrongful convictions because criminalists unintentionally misread evidence or intentionally lie.

In West Virginia, criminalist Fred Zain showed just how much damage a compromised police forensics laboratory can cause. In the 1970s, Zain, a gun-toting West Virginia State Police officer, was assigned to the state crime laboratory as a serologist. He entered the job with minimal training, a corner-cutting attitude and a pro-prosecution bias. If the evidence appeared weak against a defendant whom Zain considered a sleazeball, the criminalist made the evidence look stronger by exaggerating or falsifying test results.

For many years, prosecutors did not publicly question Zain's competence or honesty; after all, he told them what they wanted to hear. Many defense lawyers, jurors and judges lacked the scientific knowledge to question Zain's results. As for Zain's laboratory colleagues, some maintained ignorance, while others suspected wrongdoing but feared the consequences of whistleblowing.

Zain's dishonesty escaped meaningful scrutiny until 1992, when two sexual assault charges against Glen Dale Woodall fell apart. In 1987, Woodall was convicted in Cabell County, W.Va., and sentenced to life in prison without parole. At Woodall's trial, Zain testified that based on his analysis of semen recovered from the victims, the blood type of the assailant was a match to Woodall. Then Zain told the jury that the match would occur in only six of 10,000 West Virginia men — especially vital testimony because the remaining evidence against Woodall added up to little. Maintaining his innocence even after conviction, Woodall petitioned for his freedom, and an appellate court ordered that new DNA testing techniques be applied to the evidence. The test results showed that Woodall could not have been the perpetrator. Woodall won his release from prison and sued the state of West Virginia. That lawsuit led the state's insurance company to investigate Zain's record.

By 1993, the extent of the damage done by Zain had become so evident that a prosecutor petitioned the Supreme Court of West Virginia, requesting an investigation. The justices appointed James O. Holliday, a retired judge, to lead the inquiry.

Holliday filed a report that had to horrify anybody who believed in the integrity of the justice system. At least 134 cases relying in significant part on Zain's findings needed re-examination. In the end, Zain's misconduct led directly to the release of five West Virginia inmates and one inmate in Texas. (Zain had moved to Texas in 1989 where he worked in the Bexar County crime laboratory, which serves greater San Antonio.)

Criminalists traveling from outside West Virginia to conduct a scientific inquiry for Holliday determined that Zain was guilty, among other misconduct, of:

• Reporting "scientifically impossible or improbable results"
• Stating that "multiple items had been tested when only a single item had been tested"
• Offering "inconclusive results as conclusive"
• Failing to report conflicting results
• "Implying a match with a suspect when testing supported only a match with the victim"
• "Repeatedly altering laboratory records"

Holliday concluded that evidence offered by Zain "at any time in any criminal prosecution should be deemed invalid, unreliable and inadmissible." The state Supreme Court justices called Zain's conduct shocking and said it included "egregious violations of the right of a defendant to a fair trial. They stain our judicial system and mock the ideal of justice under law."

The Spawn of Zain
Since Zain became a national story, suspect criminalists in state after state have played roles in wrongful convictions.

At the State of Montana crime laboratory, questionable hair analysis conducted by Arnold Melnikoff provided evidence that helped convict innocent defendants.

At the Oklahoma City Police Department crime laboratory, Joyce Gilchrist faced accusations of questionable hair and fiber analysis, withholding important evidence from defense attorneys, destroying evidence and exaggerating test results while becoming complicit in wrongful convictions.

At the Chicago Police Department crime lab, Pamela Fish played roles in wrongful convictions by testifying that various test results had been inconclusive when she had reason to believe the results indicated the innocence of defendants.
Melnikoff, Gilchrist and Fish have received a modicum of publicity for their devastating job performances. Hundreds of other criminalists who have demonstrated incompetence and dishonesty while employed at law enforcement laboratories across the nation have escaped publicity almost completely.


Crime laboratory wrongdoing sometimes extends beyond the solo renegade employee, as demonstrated starkly by a scandal at the Houston Police Department. On Nov. 11, 2002, KHOU television began airing a news exposé that showed the Houston police lab had inadequate facilities for scientific testing and incompetent criminalists, some of whom had given compromised testimony leading to wrongful convictions in Harris County courts. C.O. Bradford, Houston's police chief, commissioned an outside review of the laboratory's DNA and serology units; because of deteriorating facilities and questionable conduct by criminalists, he shuttered the DNA unit. He and then-Harris County District Attorney Chuck Rosenthal ordered the re-testing of evidence from 407 criminal cases that might have been compromised via faulty DNA analysis.

Further review also revealed compromised cases in the toxicology unit, so the police chief suspended testing there, too. As more problems emerged, the Houston City Council agreed to pay for an independent audit. The primary author of the audit, Michael R. Bromwich, was a Washington, D.C., lawyer and former Justice Department inspector general. The audit report ran to six volumes, the final one dated June 13, 2007. "From the perspective of making sure the guilty are convicted, this data indicates that the crime lab routinely failed to develop information that potentially could have guided investigators and strengthened the ability of the investigators and prosecutors to associate suspects with evidence in the case," Bromwich wrote. "From the perspective of making sure the innocent are exonerated, the crime lab failed to perform genetic marker analyses that, in some cases, might have excluded an individual suspect as a potential donor of evidence, such as semen stains related to a sexual assault."

It seemed clear to Bromwich and his fellow investigators that multiple criminalists employed at the laboratory rigged their testing, their written reports and their oral testimony to suggest those already arrested for crimes were guilty — even when the evidence suggested otherwise.

Nonscience Forensic Science
Meaningful improvements in police crime laboratories might never arrive unless a rarely acknowledged truth becomes the conventional wisdom. That truth has been articulated especially well by researchers Michael J. Saks, who teaches law and psychology at Arizona State University, and David L. Faigman, who teaches at the University of California Hastings College of the Law in San Francisco. Much of the testing performed in police crime laboratories, they comment, should be thought of as "nonscience forensic science." In their eyes, most test techniques regularly used as evidence in court — including the analysis of fingerprints, firearms, shoe prints, tire tracks, handwriting, bite marks, gunshot residue, bullet lead and explosives — lack the power to identify a suspect to the exclusion of other potential perpetrators.

Real science values doubt and teaches it from the start of training. The technology that allows forensic analysis of DNA samples, for example, grew from academic and commercial laboratories, undergoing rigorous testing along the way. Except for DNA testing, however, forensics as practiced in many and probably most law enforcement crime laboratories places very little value on doubt. To say a latent fingerprint — frequently partial and smudged — or a shoe track or a strand of hair comes from a specific source, to the exclusion of all other sources, sounds reassuring but is sometimes nonsense. Most forensic techniques lack the rigorous scientific testing that would demonstrate validity and reliability. In fact, most of the techniques arose solely to solve crimes; their alleged effectiveness has little basis, other than long-standing belief based on the type of anecdotal evidence that is, scientifically speaking, no evidence at all.

The adversary system is itself a part of the problem with forensics, as it has been practiced in court. "Forensic scientists are trapped in the crossfire of prosecutors who want evidence to be as airtight as it can be and defense attorneys who will look for any daylight that might be seeping through the government's case," Saks and Faigman wrote in The Annual Review of Law and Social Science last year. "It has been suggested," they wrote, "that over the decades, forensic examiners have been pressured to make statements as extreme as they can get — 100 percent certainty, zero error rates, identification to the exclusion of all others in the world — not because such statements grow out of science, but because they serve the needs of those who use their work."

When hearing forensic evidence presented by law enforcement witnesses, judges often ignore scientific methods and technological advances in favor of tradition. "The habit of judges to defer to prior decisions disinclines appellate courts to revisit possible or actual errors by trial courts in any given case, and it leads trial judges to submit species of evidence that appellate courts had approved in the past, regardless of how flawed that type of evidence can be shown to be with current knowledge," Saks and Faigman say.

Judges need to rise above precedent based on ignorance. To do so, they need training in the distinction between verifiable science and junk science.

Decontaminating DNA Labs
The science behind forensic DNA analysis has been rigorously vetted, so teaching judges, prosecutors and defense lawyers what DNA can and cannot prove would be a good way to start improving science in the courtroom. Just the same, the funding for and accountability of DNA labs needs to improve.

In 1988, the FBI established the Technical Working Group on DNA Analysis Methods and funded reports from the National Academy of Sciences and its Research Council on forensic DNA testing. Those organizations suggested meaningful, practical standards for training criminalists who analyze DNA.

That call for improved training occurred none too soon. In 1994, Congress approved the DNA Identification Act, which made accurate DNA testing especially vital. Under the act, DNA profiles from crime scenes could be matched with profiles of convicted men and women already entered in a Combined DNA Index System. If DNA analysts in crime laboratories made mistakes, what looked like a match to an existing profile in CODIS would implicate the wrong person, while the actual perpetrator perhaps remained at liberty to rob, rape or kill again.

In the Justice for All Act of 2004, Congress added the requirement that police DNA laboratories obtain accreditation from a reputable entity to establish eligibility for federal funding — a powerful budgetary incentive for police departments. More funding for municipal, regional and statewide crime laboratories is desperately needed to hire qualified criminalists and improve training for incompetent old-timers. Fatter budgets might also allow crime laboratories to reduce their backlogs of untested evidence. In some laboratories — notably in Los Angeles — rape kits have been stored for years, untested. The implications are obvious: Rapists are at large, able to carry out additional sexual assaults, because the criminalists have provided no leads for detectives.

But the accreditation of crime labs has its own controversy: Who is best able to ensure that crime lab analyses are accurate and efficient? An inspection team from the American Society of Crime Laboratory Directors/Laboratory Accreditation Board usually consists of knowledgeable, seasoned criminalists from other states. But what about the potential for chumminess within the police crime laboratory world — the possibility for a "you scratch my back, and I'll scratch yours later" culture?

Crime Laboratory Directors accreditation normally lasts five years. But to maximize proficiency, individual criminalists and laboratories need monitoring on at least an annual basis. While discussion continues on the wisdom of allowing criminalists currently employed in police laboratories to accredit their professional sisters and brothers, a proposal is afoot that would end the need for that discussion.

Reforming — Really Reforming — Crime Laboratories
After many years as a Washington correspondent for newspapers and magazines and now as a journalist who lives outside Washington but still covers government, I have come to expect little from blue-ribbon panels appointed by the president or Congress. Often, their reports rely heavily on weasel words and obfuscation. They usually propose incremental change rather than upsetting conventional wisdom.

Looking at the co-authors of this year's forensic science report from the National Academy of Sciences, I saw little reason to expect the unexpected. But those co-authors — the Committee on Identifying the Needs of the Forensic Science Community, the Committee on Science, Technology and Law/Policy and Global Affairs, and the Committee on Applied and Theoretical Statistics/Division on Engineering and Physical Sciences — shattered my stereotypes about reports by conglomerations of committees. Here is a representative passage. It is not Flaubert, but it is hardly filled with weasel words:

"There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories. Indeed, most jurisdictions do not require forensic practitioners to be certified, and most forensic science disciplines have no mandatory certification programs. Moreover, accreditation of crime laboratories is not required in most jurisdictions. ...These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice."

Separating crime laboratories from their traditional police agency parents is probably the most controversial and complicated recommendation the report could have made. But that is precisely the recommendation found in the report — in black ink on white paper, at page seven of chapter six.

First, the report proposes, Congress should create a new body, perhaps named the National Institute of Forensic Science. Then Congress should give the new body money to encourage each state to move crime laboratories outside law enforcement control.

Opposition seems assured. Ralph Keaton, executive director of the American Society of Crime Laboratory Directors, has already publicly opposed such a change. "The recommendation suggests that law enforcement agencies tend to be biased and seek to prove guilt rather than seek the truth," Keaton wrote. "In actuality, the vast majority of forensic laboratories that operate within law enforcement agencies exonerate suspects as routinely as they implicate suspects. ... The cost, both financially and in lost productivity, to make such a transition is too great to make this the best way to achieve the desired outcome."

But if — despite the expected opposition of police and prosecutors — the new administrative paradigm recommended by the National Academies report becomes reality, criminalists like Jenny Smith may no longer feel the need to send fawning memoranda to prosecutors or protestations of impartiality to defense attorneys. They can just do their jobs, knowing that they owe their continued employment to nothing but their fidelity to the truth.

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