Crime labs nationwide continue to face seemingly intractable problems – particularly in terms of unreliable forensic evidence testing and being influenced by law enforcement and prosecutorial bias. Despite efforts at reform, and efforts to implement technological advances, the field of criminal forensic science seems mired in incompetence and corruption.
In July 2013 the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) entered into an agreement with the U.S. Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) to review criminal cases that involved microscopic hair comparison analysis (commonly referred to as hair microscopy), based on reports that testimony about such evidence by crime lab analysts was often erroneous and may have resulted in wrongful convictions.
The joint review was initiated following a damning evaluation of hair microscopy by the National Academy of Sciences, which released a report in 2009 essentially finding the practice to be a form of “junk science.” The FBI had admitted as early as 1984 that microscopic hair comparison could not be used as a definitive means of identifying an individual. Nevertheless, the FBI and DOJ fully integrated the practice into their canon of investigative techniques, relying heavily on hair microscopy to obtain convictions in both federal and state prosecutions.
Through the joint review process, almost 3,000 cases resulting in convictions prior to 2000 (the year in which DNA evidence displaced hair microscopy in terms of evidentiary emphasis by the FBI) were identified as being potentially flawed. Typically, the flaws consisted of improper testimony by FBI crime lab analysts concerning the statistical likelihood that hair comparison analysis had matched a hair or fiber sample to a specific defendant.
In March 2015, referring to the first batch of cases to have been reviewed, the FBI admitted that “in the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 (96 percent) of the cases.”
At the time of that disclosure, the FBI also reported that of the 35 death penalty cases it had reviewed, 33 contained similar erroneous testimony related to hair microscopy. For some death row prisoners that information came too late; nine had already been executed while another five had died while awaiting execution.
In an April 20, 2015 press release, the FBI, DOJ, Innocence Project and NACDL announced that “the FBI has concluded that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of 28 FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements.”
The joint review of convictions potentially tainted by improper testimony from FBI crime lab analysts remains ongoing. “The [DOJ] and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed,” the press release stated. Several cases involving hair microscopy testimony have already resulted in exonerations and, in at least three cases, wrongfully convicted prisoners received multi-million dollar damage awards. [See: PLN, Sept. 2016, p.38].
As previously noted by Prison Legal News, “the FBI lab was tarnished when allegations of sloppiness, exaggerated results and poor science was first reported in the mid-1990s.... when Fredrick Whitehurst, an FBI chemist, revealed that he had seen colleagues contaminate evidence and exaggerate their results.” [See: PLN, April 2015, p.1].
Yet it took almost twenty years before the FBI, under intense pressure from prisoners’ rights groups, including the Innocence Project, finally acknowledged the errors committed by its crime lab. According to Whitehurst, those mistakes were not innocent errors but a calculated effort to help prosecutors win convictions.
“There was a great deal of pressure put upon me to bias my interpretation” of forensic tests performed in criminal cases, he said. “You get patted on the head if you’re the guy who saves the case. They get promoted.... A scientist who asks a question and doesn’t go along, he gets isolated.”
Paul Neufeld, co-founder of the Innocence Project, said there could be hundreds of flawed convictions nationwide based on FBI crime lab errors.
“The first order of business, frankly, is the FBI and DOJ [have] to redouble their efforts to get the transcripts of the hundreds and hundreds of cases of people where FBI agents gave exaggerated testimony,” he declared.
State crime labs across the country have also had problems with flawed forensic testing. This should come as no surprise, since the same FBI analysts whose work is now under review taught between 500 to 1,000 state and local crime lab employees, generally in two-week training programs.
As part of its investigation into evidentiary errors related to hair microscopy cases, the FBI examined more than 21,000 federal and state files involving its hair and fiber comparison unit from 1972 to 1999. That review identified approximately 2,500 files requiring further inspection because analysts had testified about hair matches.
According to the Innocence Project, “the FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution.... [and] in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants’ petitions seeking a new, fair trial because of the faulty evidence.”
In response to the initial findings of the joint review of FBI crime lab cases, U.S. Senator Richard Blumenthal asked, “The question is why this was permitted to continue, and that’s a question the FBI has to answer after an investigation, a systemic analysis of the root causes. Why did it happen?”
In 2014, George Perrot, convicted in 1992 of charges related to a burglary and rape, was serving two concurrent life sentences plus a concurrent 33- to 45-year sentence in a Massachusetts state prison when he received a letter.
The letter was from the FBI, which had written to inform Perrot that his case was one of those found to have involved erroneous hair microscopy testimony. To Perrot this was not necessarily a revelation, as both he and his alleged rape victim had maintained his innocence through both the trial and his subsequent 30 years in prison.
Represented by counsel from the Innocence Project and the law firm of Ropes & Gray, LLP, Perrot filed for a new trial. Following evidentiary hearings, Bristol County Superior Court Judge Robert Kane overturned Perrot’s conviction on January 26, 2016, stating, “Justice may not have been done [...] because of the introduction of hair evidence that in numerous and material respects exceeded the foundational science.”
Further, the ruling reflected the judge’s belief that the FBI crime lab analyst who presented faulty testimony at Perrot’s trial had been unduly influenced by an overzealous prosecutor.
While the Massachusetts court’s decision is not binding on courts in other jurisdictions, the overturning of Perrot’s conviction – the first such case not involving DNA evidence to undergo judicial review following the review of the FBI crime lab cases – provides a ray of hope for other prisoners in similar circumstances.
“The fact that George has served three decades in prison for a rape that the victim, Mary Prekop, repeatedly told authorities he didn’t commit is beyond tragic,” said Florence Graves, founding director of the Schuster Institute for Investigative Journalism, which had investigated Perrot’s claims of innocence since 2011. “Moreover, George’s case showcases the devastating impact of a criminal justice system that takes decades to acknowledge that thousands of people have been found guilty based on deeply flawed forensic science.”
“These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law,” added Senator Blumenthal.
In some cases tainted by flawed hair microscopy testimony, DNA testing – applied to hair evidence, for example – may serve a role in freeing the wrongfully convicted. However, crime labs across the county have experienced problems with DNA testing, too.
In 2015, the Texas Forensic Science Commission (TFSC), which sets the standards for physical evidence used in Texas prosecutions, determined that protocols used in state crime labs for certain DNA tests were deeply flawed. The protocols in question included those used to identify DNA from samples containing genetic material from multiple people. Such mixed DNA evidence is fairly common in criminal cases.
TFSC’s findings noted that, under protocols in place for use by Texas crime labs, the degree of certainty applied to a genetic match varied greatly from degrees of certainty found when the same evidence was subjected to newer DNA testing protocols.
Texas defense attorney Roberto Torres, speaking to National Public Radio (NPR) in October 2015, explained that under existing protocols, the testing of crime scene DNA may result in a match with a million-to-one degree of certainty. However, when retested using newer methods, a match may still be returned but only with a degree of certainty of 30 or 40 to one.
Such inconsistencies may potentially impact thousands of cases, which are now being investigated by Texas officials. Following the TFSC’s findings, state prosecutors have begun the process of reviewing convictions dating as far back as 1999.
“We have to go back and identify which of those cases involved DNA mixtures where the lab may have given incorrect results,” Galveston District Attorney Jack Roady told NPR. “It’s going to be a Herculean task, but we’re gonna do it.”
“There was sometimes moments of collective gasps,” he added. “The fact that this science may not have been done correctly in the past gives us great pause.”
Due to the scope of the review process, a log jam has formed in state crime labs, greatly increasing the wait times for evidence processing.
By summer 2016 the Austin crime lab had been asked to review less than 100 of the potentially flawed DNA convictions – and even with that minimal caseload, the lab essentially found itself unable to function. As such, it requested more than $200,000 so it could hire two additional analysts. Then in June 2016, the Austin crime lab temporarily shut down over concerns that protocols used at the lab were not appropriate.
Texas is not alone. In October 2015, a whistleblower employed at a crime lab in Boynton Beach, Florida came forward with complaints related to DNA testing by the Broward County Sheriff’s Office.
The complaint, filed with the American Society of Crime Lab Directors’ Laboratory Accreditation Board (ASCLD-LAB) by forensics expert Tiffany Roy, said she was tasked with re-testing a DNA sample obtained from a knife handle, which previously had been tested by the Broward crime lab. She was disturbed to find her results were inconclusive rather than providing a positive identification.
Following the complaint, Roy articulated her concerns to the Broward Palm Beach New Times. The crux of her complaint was simple – she believed the Broward County Sheriff’s Office was using inconclusive DNA evidence to level criminal charges against people who may be innocent.
Roy told the New Times she believed it was likely that the Broward crime lab had not updated its practices, even though industry-wide protocols for DNA testing had been made more rigorous in 2011.
As stated by the New Times, the ASCLD-LAB investigation resulted in adverse findings for the Broward crime lab in April 2016. The Broward County Sheriff’s Office has since appealed the accreditation board’s findings.
“Whether it’s police officers or the crime lab, they put on their blinders and turn a blind eye to questionable evidence. They’re hellbent on getting a conviction, and if that means questionable evidence is used, they move for it,” Broward Assistant Public Defender Gordon Weekes told the New Times. “That is not justice. It’s a bastardization of the criminal justice system.”
In a May 2015 Washington Post op-ed, University of California at Irvine criminology professor William Thompson expressed serious doubts about the motives behind the firings of managers in charge of the District of Columbia’s Department of Forensic Sciences (“DFS,” the D.C. crime lab).
Thompson noted the public perception was that the managers had been terminated due to a dispute with the U.S. Attorney’s Office, ostensibly over the handling of certain types of DNA evidence.
But Thompson – who is also a member of the Human Factors Subcommittee of the National Commission on Forensic Science, and vice-chair of the Human Factors Committee of the Organization of Scientific Area Communities (the federal entity responsible for setting standards and guidelines on forensic science) – raised significant concerns as to the real motives behind the firings.
He observed that the methods of DNA analysis employed by DFS were standard and used by crime labs nationwide.
Speaking to what he believed was a more plausible motive for the firings of the managers, Thompson noted that in 2009, the National Academy of Sciences issued a recommendation that crime labs be separate entities, held apart from law enforcement agencies and prosecutors, citing undue pressure exerted by the police and prosecutors on the results of forensic testing. The District of Columbia heeded this recommendation and established DFS as an independent entity in 2011.
Reforms then took place. Most notably, according to Thompson, DFS director Max Houck and his chief counsel “ended a policy that had allowed prosecutors to have preferential access to laboratory information and to control what defense lawyers were allowed to see. Under the new administration, prosecutors and defense lawyers were given equal access.”
Prior to the firings, a number of private meetings took place between the U.S. Attorney’s Office and the group tasked with auditing DFS. The D.C. Public Defender Service asked to be included in the meetings but was denied.
When the firings occurred (and among those terminated was the attorney who had worked with Houck in implementing DFS’s separation from law enforcement agencies), Thompson suggested they had been less about a dispute over DNA analysis and more about bringing “an independent laboratory back under law enforcement control....”
Further, in New York, three former employees of the State Police crime lab have filed a lawsuit alleging they were terminated in retaliation for voicing concerns over how DNA evidence was being processed at the lab.
The State Police had been trying to implement TrueAllele, a DNA analytical system intended to guarantee the accuracy of DNA test results. The former lab employees claimed the agency had scrapped the system in favor of less accurate test results that could be manipulated to favor prosecutors.
“[T]here are people that are very pro-prosecution. They were putting pressure on scientists to reach conclusions that were not scientifically valid. That’s what my clients were objecting to,” John Bailey, an attorney for the former employees, told Raw Story.
And in February 2016, the former director of the New York City Office of the Chief Medical Examiner Forensic Toxicology Laboratory, Marina Stajic, filed suit against her former employer.
Stajic claimed she was forced out of her position, being told that she could either retire or be fired, as a direct result of having raised concerns over the reliability of DNA testing techniques employed by the medical examiner’s office.
Recently, another form of forensic testing has been debunked as junk science: bite-mark analysis, in which self-proclaimed experts testify they can match bite marks left on victims or crime scene evidence to specific defendants. On September 20, 2016, the President’s Council of Advisors on Science and Technology released a report that found a number of forensic testing methods lacked scientific validity, including bite-mark analysis. The report will be covered in greater detail in a future PLN article.
The FBI – despite having acknowledged problems with its own crime lab – issued a statement saying it “disagree[d] with many of the scientific assertions and conclusions of the report,” claiming the Council’s findings included “broad, unsupported assertions regarding science and forensic science practice.”
And so it goes. Despite systemic problems with crime labs that go back over a decade, incompetence, misconduct and deficiencies related to forensic practices in criminal cases continue to be ongoing concerns. [See: PLN, Oct. 2010, p.1].
Apparently, prosecutors and law enforcement agencies have relied on biased forensic testing as a way to obtain convictions for so long that they are reluctant to level the criminal justice playing field – even if that means ignoring the truth, resisting reforms and retaliating against whistleblowers.
Sources: www.nbcnews.com, www.washingtonpost.com, www.theatlantic.com, www.motherjones.com, www.cbsnews.com. www.timesunion.com, www.npr.org, www.browardpalmbeach.com, www.rawstory.com, www.brandeis.edu, www.mystatesman.com, www.crimefeed.com, www.theintercept.com, www.whitehouse.gov, www.fbi.gov
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