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Drug Lab Testing Fraud
September 26, 2012 permalink
Have you been asked to provide samples for drug testing? Do you think it will clear you? The innocent have nothing to fear, right? Wrong. This story from Massachusetts shows that in sixty thousand cases rogue lab technician Annie Dookhan corrupted test results. A thousand people are currently behind bars based on her evidence. She also faked her credentials. So far the state is placing the entire responsibility on just one person.
Drug lab chemist accused of lying
Testified that she had master’s from UMass, but school denies that
Former state chemist Annie Dookhan does not have a master’s degree in chemistry from the University of Massachusetts Boston as she claims on her resume, officials at the school confirmed Tuesday, raising fresh doubts about the credibility of the woman at the center of the burgeoning state drug laboratory scandal.
Dookhan, who resigned from the Jamaica Plain lab in March amid an investigation, received a bachelor’s degree in chemistry from the university in 2001, officials said. But school records show that Dookhan took no additional courses after completing her undergraduate degree in 2001. UMass Boston officials said Dookhan requested an application for the master’s program, but never completed it.
Dookhan started working for the drug lab, run at the time by the state Department of Public Health, in 2003. She handled 60,000 drug samples, casting doubt on the reliability of evidence used in some 34,000 criminal cases.
Additionally, the chemist testified in criminal cases about 150 times since 2009 and may have jeopardized all of those cases by claiming under oath that she had a master’s degree in chemistry. A transcript suggests she lied about her education in at least one court hearing, in August 2010.
State officials said that when Dookhan applied for her job at the lab, her resume suggested she was working on her master’s degree at UMass Boston. But, they said, an advanced degree was not a job requirement.
When pursuing the job, officials said, Dookhan signed an application attesting, under threat of perjury if she lied, that the information was accurate.
“The Department of Public Health hired Annie on Nov. 3, 2003, as a Chemist I, based upon her meeting the minimum entrance requirements of the position,” said Alec Loftus, spokesman for the Executive Office of Health and Human Services. “In 2005, Annie was reclassified as a Chemist II. While neither of the positions she held required a master’s degree, it is now clear that she intentionally misled the department about her education during the course of her employment.”
Dookhan, who has not been charged with criminal wrongdoing, has been under scrutiny since June 2011, when she improperly removed 90 drug samples from the evidence room without signing them out as required. But the chemist continued to serve as an expert witness in criminal cases for months until state officials became concerned that her misconduct was more extensive than previously believed.
The Patrick administration has identified 1,141 inmates in Massachusetts jails and prisons convicted based on evidence handled by Dookhan. Given the allegations against Dookhan, all of that evidence is now considered potentially tainted.
As drug cases continued to unravel in the scandal’s wake, a Brockton man serving 17 years in prison was released on bail Tuesday morning and a Wareham man was freed minutes later after serving half of his three-year sentence.
If not for an Immigration and Customs Enforcement hold on Manuel J. Abreu, he would have walked out of Plymouth Superior Court on the $7,500 cash bail posted by his family.
Despite arguments from prosecutors, Judge Frank Gaziano granted the bail, in part because of concerns about drug evidence tested at the now-shuttered lab.
Defense attorney Michael Traft said the weight of cocaine authorities allegedly linked to Abreu increased during the years it was in government custody.
Traft said the allegations about Dookhan manipulating drug samples and the fact that she is shown on government records as having had access to evidence in Abreu’s case warranted his client being freed on bail pending an appeal.
When Abreu was arrested by Brockton police in 2005, they allegedly found 182 grams of cocaine in the house he sublet. When retested following the Dookhan scandal, the weight of the cocaine had increased, to 206.25 grams, according to Traft.
Police also allegedly seized crack cocaine weighing 304 grams when tested in the lab in 2005. It now weighs 289 grams, but state officials say shrinkage resulted from moisture evaporating from the crack.
Gaziano sentenced Abreu to 17½ years in state prison earlier this year for drug sales in a school zone and drug trafficking, which carries a mandatory minimum of 15 years behind bars.
“Judge Gaziano has recognized the seriousness of the issue here, based on what we know so far, and ruled today with that in mind,” Traft said.
“We are very positive that he will be home soon,” said Maria Abreu, the defendant’s sister, who attended the bail hearing. “We will fight this all the way.”
After his family posted bail, Abreu, who was born in Cape Verde, was transferred to federal custody. It is unclear whether immigrations authorities will hold him until Nov. 27, when Abreu is scheduled to be back in court on a hearing on his appeal.
At the same time that Abreu was granted bail, another man, Joshua P. Fernandes, was freed in the same courthouse, after serving about half of his sentence for cocaine trafficking and drug possession. Fernandes was convicted in March 2011.
“Annie Dookhan was the person who weighed it, and she was the quality control supervisor for the lab,” said Kathleen Lucey, Fernandes’s attorney, moments after his release.
“I was a prosecutor out in Hampden for a lot of years, and I just thank God she didn’t touch any Hampden cases because I don’t know how these DA’s are handling this. . . . I feel for them,” Lucey said.
“He has nothing pending, nothing else, he’s a free man,” Lucey said.
Judge Richard Chin was the trial judge in the case, and after only 10 minutes allowed the “stay of execution of sentence,” after prosecutors agreed.
Fernandes’s family hugged him and then placed a call to his grandmother. “She’s so happy he’s going to be home for the holidays,” Lucey said.
Fernandes was arrested Nov. 20, 2009, during a raid at his home in Wareham. Fernandes said his Cranberry Highway home had been under surveillance by police.
After executing a search warrant, police said they found a cache of illegal drugs hidden in the house. He was charged with trafficking cocaine over 28 grams, possession of Percocet, and possession of Suboxone.
Law enforcement officials are scrambling to ensure that no one has been incarcerated on tainted evidence because of the alleged improprieties by Dookhan. The lab was closed after discovery of the scandal.
Defense attorneys across the state are examining whether Dookhan was involved in even more cases than previously believed, pointing to court testimony in which she states she conducted reviews of other chemists’ drug testing. However, her name is not listed on any of that paperwork, leaving no paper trail for testing that she reviewed.
Attorney Patricia A. DeJuneas said she is handling an appeal of a conviction last year in Suffolk County. The allegations against Dookhan could become part of that appeal. In that case, Dookhan testified that she was involved with reviewing another chemist’s findings, but Dookhan’s name did not appear on paperwork certifying that the drugs had been tested.
“If she was doing that in other cases, there would be a whole slew of cases in which her name doesn’t appear in the certificates,” DeJuneas said. “Her impact is going to be a lot wider than just the cases in which her name appears.”
DeJuneas said defense attorneys are finding more questionable work by Dookhan as they review their own cases, but are waiting to hear from district attorneys on how they will proceed.
Miriam Conrad, head of the federal public defender agency, said the tally of cases involved in the federal court system will be far more than the 15 that state officials have already identified.
Conrad said she and other lawyers have been working with probation officials to identify cases on their own. Federal public defenders will have to look beyond a state list of cases that involved Dookhan to identify defendants who were sentenced as career criminals or had sentencing enhancements in federal court based on previous state drug convictions. That will have to include researching older state cases.
“The bottom line is, we appreciate their efforts, and any information we can get is extremely welcome, but we are conducting our own search of our own files,” she said.
Source: Boston Globe
Addendum: A lawyer comments on Annie Dookhan.
Annie Dookhan wanted to be a star. After all, the days of crime lab chemists working in dark back rooms, doing dirty, boring jobs, gave way to CSI coolness. And because she followed her passion, a whole lot of people are going to walk out of jail. Many innocent. Some guilty. It won't be possible to tell which is which, thanks to Annie.
What Annie did at the Massachusetts state crime lab makes the point better than any thoroughly written, thoughtfully researched, report by the National Institutes of Science. Annie makes clear that no science, not even real science, is any better than the human who does it. From HuffPo:
Chemist Annie Dookhan was "Superwoman," a colleague at a Massachusetts state crime lab used to joke. She seemed unstoppable in her quest to please prosecutors, police and her bosses, testing two to three times more drug samples than anyone else, working through lunch and not bothering to put in for overtime.
"The kind of person, if you owned your own business, you would want to hire her," a supervisor would later tell police.
Aside from faking her credentials, she faked the tests. Some she just didn't bother with, some she "dry labbed," which apparently means she just looked at a substance and decided it was narcotics. She made up weights, didn't calibrate equipment, and worst of all, sprinkled real drugs onto substances when there were no drugs to be had. A star.
The litany of wrongs is comical, not because they should make anyone laugh but because they were so laughable.
As early as 2008, a supervisor noticed Dookhan's testing numbers were high. He spoke to her superior, but nothing happened. In 2009, the supervisor took his concerns to another superior, saying he never saw Dookhan in front of a microscope.
In 2010, a supervisor did an audit of Dookhan's paperwork but didn't retest any of her samples. The audit found nothing wrong. The same year, a fellow chemist found seven instances where Dookhan incorrectly identified a drug sample as a certain narcotic when it was something else. He told himself it was an honest mistake.
In one incident detailed by state police, a lab employee witnessed Dookhan weighing drug samples without doing a balance check on her scale.
Dookhan was handling a staggering number of samples. An average chemist could test 50 to 150 samples a month, but Dookhan was doing more than 500, according to monthly reports, a lab employee told police later.
And her supervisors knew it. Her co-workers knew it. They may have come up with excuses why her mistakes may not have been deliberate, but they knew it all along. They just shut their eyes tight and went on with their business, making sure defendants were convicted.
People are funny. When they see something that stinks, but stinks in a way that produces results they like, they play whatever mental games they have to in order to rationalize the problem away. They believe in the results, which reminds us again of why crime labs have become such a cesspool for error. They consider themselves an adjunct of the prosecution, not a neutral agency whose only purpose is to perform scientific testing. They are part of the machinery of conviction, and are not only expected to do their part, but want to do their part. They want to be proud of the fact that their work puts bad guys away.
The law adores science. Prosecutors and judges may not really understand much about it, which is how we ended up as lawyers rather than doctors, but we embrace the notion of science because it brings a sense of precision and exactitude to our otherwise fuzzy world. It's an issue precluder, conclusively determining facts as facts and thus removing them from the mix of variables that could be in doubt.
Wrap up a ham sandwich in scientific mumbo-jumbo and we'll eat it up. For years, lawyers stipped to the chemists findings, even before the prosecution was required to put the warm body on the stand, because there wasn't much to do with them. They would recite all the tests they did and how that proved a substance was evil. It was all very perfunctory and official sounding. It's not like you would get Annie on the stand to testify that she "dry labbed" the sample and never actually did the tests at all.
And this is with the good forensic science, the real stuff. Not the bite marks, the duct tape, bullets, fingerprints or even Cokie, the beloved drug dog. This is the stuff, like DNA, which has an actual scientific basis. But none of it is actual science unless it's performed properly, subject to scientific method, by people who don't lie and contort, contaminate samples and "sprinkle" when the sample comes up empty.
There will be no shortage of hand-wringing over the disaster Annie has caused. Now, despite the fact that it could have been nipped in the bud, they have over 60,000 samples she tested, plus however many she signed off on forging other chemists initials which basically puts every test every done at risk, they have a problem.
People will walk, as well they should. Good people and bad people alike will walk. Whether this will make any prosecutor, judge or juror think twice about the efficacy of scientific, even good science, in that anything that involves the variable of a human being is never as perfect as it seems. After all, this isn't the first crime lab fiasco, and yet the gatekeepers continue to compartmentalize the disasters as isolated instances, one after another.
That there was an Annie Dookhan working in the Massachusetts crime lab can be chalked up to one bad apple. That no one figured out that she was doing the dirty when her supervisor never saw her in front of a microscope, however, can't. That there were doubts for years and no one ever mentioned it, as in Brady for example, while lawyers faced irrefutable scientific proof in court that foreclosed any further hard thought about the scientific evidence, there was a whole system at work covering up for Annie's 500 samples per month output of eyeballing white powder and proclaiming it cocaine, all to please the police and be a laboring oar in their vital mission to convict.
Yet the law, and the courts, still love science. It's one less thing to fight about.
Source: Simple Justice blog
Addendum: A year later the American Bar Association surveys problems with forensic labs across the country.
Crime labs under the microscope after a string of shoddy, suspect and fraudulent results
In January, the New York City medical examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician who resigned in 2011 after an internal review uncovered problems with her work.
The review, then about half complete, had already turned up 26 cases in which the former technician failed to detect the presence of DNA evidence, including one in which the evidence has since led to an arrest in a 10-year-old rape case. The review uncovered 19 cases in which DNA evidence was commingled with DNA evidence from other cases.
A month earlier, a former chemist at a now-shuttered state drug lab in Boston was indicted on 27 counts of obstructing justice, tampering with evidence, perjury and other charges in connection with her handling of some of the tens of thousands of drug cases she worked on during her nine years there. “Little Annie” Dookhan is accused of faking test results, intentionally contaminating and padding suspected drug samples, forging co-workers’ signatures on lab reports, and falsely claiming to have a master’s degree in chemistry.
The ongoing investigation into her work—which could upend thousands of drug convictions—has already led to the closing of the lab, the release of hundreds of convicted drug offenders, and the termination of one lab official and resignation of another. It also led to the resignations of state Public Health Commissioner John Auerbach, whose office oversaw the lab, and Norfolk Assistant District Attorney George Papachristos, who was found to have had an inappropriately personal (albeit not romantic) relationship with Dookhan.
A few months before that, the St. Paul, Minn., police department’s crime lab suspended its drug analysis and fingerprint examination operations after two assistant public defenders raised serious concerns about the reliability of its testing practices. A subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles.
Assistant public defender Lauri Traub stumbled onto the lab’s problems when she asked to meet with the analyst who tested suspected drugs one of her clients was accused of possessing. Traub says she was horrified by what she found: The lab, an old-fashioned “cop shop,” was run by a police sergeant with no scientific background, had no written operating procedures, didn’t clean instruments between testing, allowed technicians unlimited access to the drug vault, and didn’t have anyone checking anyone else’s work. Analysts didn’t know what a validity study was, used Wikipedia as a technical reference, and in their lab reports referred to “white junk” clogging an instrument.
“In some ways, this is even worse than what has happened in Boston and elsewhere,” Traub says. “These people didn’t know what they were doing. They had no business running a lab in the first place. And yet they came into court every day and acted as if they did.”
The city has since hired a certified fingerprint examiner to run the lab, who has announced plans to resume its fingerprint examination and crime scene processing operations, and begin the procedure for seeking accreditation. But it has no plans to reopen its troubled drug testing unit.
Those are just three of the most recent in a long line of forensics lab scandals that have roiled the U.S. criminal justice system over the past two decades or more. All are different, but all have the potential to put innocent people behind bars—or worse—and spawn litigation that could end up costing taxpayers dearly.
Such scandals have been occurring with mind-numbing frequency since 1993, when the long-running fraud perpetrated by former West Virginia state police crime lab serologist Fred Zain first came to light. But what else should we expect from a system so diverse, so fragmented, so unregulated, so lacking in uniform and enforceable standards—and so beholden to the interests of law enforcement?
Zain, whose work came under scrutiny after the DNA exoneration of a convicted rapist he had positively identified as the perpetrator, was eventually found to have falsified test results in as many as 134 cases during a 10-year period.
In fact, Zain was found to have tainted so many trials with false and misleading testimony, the judge assigned to investigate his work concluded that everything Zain ever said and did should be deemed “invalid, unreliable and inadmissible” as a matter of law. Zain died in 2002 while awaiting a retrial in West Virginia on fraud charges for which a jury had previously been unable to reach a verdict.
Zain has few rivals in the lab fraud department, but Joyce Gilchrist, who spent more than a decade as a chemist in the Oklahoma City Police Department’s crime lab, would have to rank right up there. Gilchrist, who testified as a prosecution expert in 23 death penalty cases, including those of 12 inmates who were later executed, was fired in 2001 for doing sloppy work and giving false or misleading testimony. Nicknamed “Black Magic” by detectives for her seeming ability to get lab results no other chemist could, Gilchrist was never prosecuted for her alleged misdeeds, though she reportedly was named a defendant in at least one lawsuit against the city by a convicted rapist who was later exonerated.
Nobody really knows how many crime lab failures there are because we usually only hear about them when somebody who has been wrongfully convicted of a crime is exonerated through DNA testing.
But we do know that there have been 310 post-conviction DNA exonerations in this country through the end of July, according to the Innocence Project, which works to free the innocent through DNA testing. And studies show that unverified or improper forensic science (defined as fraud, misconduct or the use of scientifically untested evidence) played a role in about 55 percent of those cases.
That’s kind of ironic because DNA testing—arguably the most scientific of all forensic disciplines—is highly regulated, while many other forensic techniques with questionable scientific pedigrees are completely unregulated in all but a few states. And DNA testing accounts for less than 4 percent of the work crime labs do, though that figure will likely rise now that the U.S. Supreme Court has held that police can take DNA samples from people charged with serious crimes.
Jill Spriggs, director of the Sacramento County district attorney’s crime lab and immediate-past president of the American Society of Crime Lab Directors, points out that neither the Massachusetts nor the St. Paul crime labs were accredited.
“Accreditation is vitally important to the success and quality of the product crime labs put out,” she says.
But accreditation alone won’t do the job, Spriggs says. Crime labs must engage in rigorous hiring practices, including detailed background checks on prospective employees, and have strong monitoring and management procedures in place to detect quality control issues early on, which neither the Massachusetts nor St. Paul crime labs apparently had.
“If you have one chemist doing three or four times as many cases a month as anyone else in the lab [as Dookhan reported doing], you should be looking into how and why that is,” Spriggs says.
Forensics lab directors say most accredited labs do a good job under difficult circumstances; and given the sheer volume of cases they handle, labs can’t be expected not to make an occasional mistake. But cases of outright fraud are rare, they say. But the ABA Journal counted dozens of scandals of all shapes and sizes in both accredited and unaccredited crime labs from one end of the country to the other in the last decade alone. And that count was by no means exhaustive.
Even the much vaunted FBI crime lab, long considered the nation’s premier forensic facility, has been rocked by scandal: first in its explosives unit, then its DNA unit, then its comparative bullet-lead analysis unit, and most recently in its hair microscopy unit.
Myrna Raeder, a professor at Southwestern Law School in Los Angeles and an expert on evidence and criminal procedure, is not sure whether there are more such scandals occurring these days or if we’re just finding out about them more than we used to. But as they seem to pop up so frequently, it reminds her of an arcade game: “It’s sort of like Whac-a-Mole.” Peter Neufeld, co-founder of the Innocence Project, says such scandals are definitely more “observable” thanks to the passage of the Innocence Protection Act in 2004, which requires states that receive federal funding for DNA databanks to certify the existence of an independent entity to investigate labs against which serious allegations of misconduct or negligence have been raised.
“There was a tendency before to just sweep these things under the rug, which they can’t do anymore,” says Neufeld, a founding partner of New York City’s Neufeld Scheck & Brustin.
Paul Giannelli, a law professor at Case Western Reserve University in Cleveland who has been studying crime lab failures for 20 years, says he used to think the problem was limited to the occasional misdeeds of a few bad apples. But given the many lab scandals that have gone undiscovered for so long, he’s come to the conclusion the problem is a systemic one that can only be remedied through regulation.
“And we can’t delegate to a private organization what should rightfully be a function of the government,” Giannelli says.
The shortcomings of the existing system have been well-documented, most notably in the National Academy of Sciences’ 2009 study of forensic science, which exposed serious flaws in the way crime labs operate.
The report found:
- The field is highly fragmented. Of the 389 publicly funded forensics labs operating in the United States in 2005, 210 were state or regional labs, 84 were county labs, 62 were municipal labs and 33 were federal labs. Some major cities and counties have their own labs, as do some big-city medical examiner offices.
- There is wide variability in forensic science disciplines, not only in techniques and methodologies but also in reliability, error rates, reporting, research, general acceptability and published material.
- There is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic disciplines.
- Many labs are underfunded and understaffed, which contributes to case backlogs and likely makes it more difficult for lab workers to do as much as they could to inform investigations, provide strong evidence for prosecutions and avoid errors.
- Most labs operate under the auspices of law enforcement agencies, making them susceptible to pressures—overt and otherwise—to produce the kinds of results that police and prosecutors are looking for.
- Rigorous and mandatory accreditation and certification programs are lacking, as are strong standards and protocols for analyzing and reporting on forensic evidence. Only a few states require crime labs to be accredited, though in 2005 more than three-quarters of all such labs were voluntarily accredited by private accrediting agencies —the vast majority of them by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, aka ASCLD/LAB.
“In short, the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards and effective oversight,” the report said.
The National Academy of Sciences report presented 13 recommendations for improving the system, including one calling for creation of an independent national institute of forensic science to lead research efforts, establish and enforce accreditation and certification standards for labs and practitioners, and oversee educational programs.
The report also recommended removal of all crime labs from the administrative control of law enforcement agencies and prosecutors’ offices, creation of standard terminology for reports and testimony, and increases in funding for peer-reviewed research into the scientific validity of various forensic techniques. And it called for more research into human observer bias, establishment of routine quality control and quality assurance measures, and development of a national code of ethics for all forensic science disciplines.
To date, virtually nothing has been done to implement any of the study’s recommendations. Meanwhile, the drumbeat of crime lab scandals goes on.
TWO MORE SCANDALS
One need look no further than what occurred at the Nassau County, N.Y., police department’s forensic evidence bureau in 2011 and what happened at the North Carolina State Bureau of Investigation in 2010 to see the consequences of continued inaction.
The Nassau County crime lab was shut down in February 2011 after county officials learned police had known for months about serious problems with its drug analysis testing without informing anyone. The closure came two months after the lab was placed on probation for the second time in four years following a scathing inspection report by accreditor ASCLD/LAB, about which police officials never informed the district attorney or the county executive. (Neither apparently did anybody from ASCLD/LAB.)
The report documented 26 areas of noncompliance with ASCLD/LAB accreditation requirements, 15 of which were considered “essential,” 10 deemed “important,” and one characterized as “desirable.” The drug chemistry and latent print sections received the most citations, including improper maintenance of equipment and instruments, failure to properly mark and store evidence, and failure to secure the lab and adequately maintain records.
After the closure, New York Gov. Andrew Cuomo ordered the state’s inspector general, Ellen Biben, to investigate. Her findings, detailed in a 166-page report, cited a litany of failures she described as profound, including weak leadership, a dysfunctional quality management system, inconsistently trained and qualified analysts, and outdated and inconsistent testing procedures. The report also said the lab’s “significant and pervasive” problems were exacerbated by the New York State Commission on Forensic Science, which oversees the operation of the state’s 22 forensic labs, and which the report said had almost completely abdicated its responsibility for lab accreditation and monitoring.
“The confluence of these failures in oversight enabled the [lab] to operate as a substandard laboratory for far too long,” Biben wrote in her report. “In so doing, these failures deprived Nassau County, the criminal justice system and the public of their right to have complete and unfettered confidence in forensic testing.”
As bad as that scandal was, it pales in comparison with one uncovered the year before at the North Carolina State Bureau of Investigation’s crime lab. An independent audit by two retired FBI agents showed that analysts there had systematically withheld or distorted evidence in more than 230 cases over a 16-year period, including three cases that resulted in executions.
The audit, precipitated by the exoneration of an innocent man who had served 16 years of a life sentence in the murder of a prostitute in 1991, found the lab’s serology section had long had a policy of reporting that presumptive tests for the presence of blood were positive, while failing to reveal when confirmatory tests proved to be negative or inconclusive. As a matter of practice, analysts also filed reports that overstated their test results and contradicted their bench notes.
A subsequent investigation by the Raleigh News & Observer found overwhelming evidence of a pro-prosecution bias at the lab, including training materials advising analysts on how to improve their conviction rates and instructing them to be wary of defense experts, whom it referred to as “defense whores.” Performance reviews were written by prosecutors praising individual analysts for their favorable testimony, and a video showed two blood-spatter experts congratulating each other when, after several failed attempts, they successfully re-created a scenario supporting the prosecution’s theory of the case.
The scandal also raised serious questions about ASCLD/LAB’s accreditation procedures. The crime lab, accredited by ASCLD/LAB since 1988, had been inspected five times during the period in which the serology section was found to be misrepresenting blood test results. It didn’t help that ASCLD/LAB, based in a Raleigh, N.C., suburb, is headed by two retired state crime-lab agents who held supervisory posts at the lab during the time the reporting policy was in place. Ralph Keaton, ASCLD/LAB’s executive director, was the deputy assistant director of the crime lab until 1995.
And the agency did itself no favors when it released a position statement defending the lab’s reporting practices as “consistent with the wording commonly used by forensic laboratories in the United States during that era.”
A TARNISHED SEAL?
ASCLD/LAB accreditation is supposed to signal that a lab’s work is scientifically sound. Lab directors wear it as a badge of honor that they proudly cite as a seal of approval. And Keaton has been quoted as calling it the gold standard for forensic accreditation around the world, which he told the ABA Journal he never said but wouldn’t disagree with.
Most observers say voluntary accreditation is better than no accreditation at all because it has nipped some crime lab scandals in the bud and lets the labs know somebody is looking over their shoulders. But critics say the ASCLD/LAB seal of approval is not all it’s cracked up to be.
Labs like North Carolina’s, which are accredited under a “legacy” program, are inspected only once every five years. Inspections are conducted by directors of other accredited labs that are also subject to inspection. The labs are always informed in advance that inspectors are coming. And the labs themselves choose the cases the inspectors review, though Keaton says inspectors always ask to see additional cases.
In 2004, however, ASCLD/LAB implemented a second accreditation program, ASCLD/LAB-International, which retained the forensic-specific requirements of the legacy program but incorporated additional, more rigorous requirements, including an annual audit. ASCLD/LAB is phasing out the legacy program and stopped accepting applications for it in 2009. But the last of the 125 labs still in the legacy program won’t have to apply for accreditation under the new program until their current accreditation expires. There are 271 labs already accredited under ASCLD/LAB-International.
New York City criminal defense lawyer Marvin Schechter, a member of the committee that produced the NAS report, is one of ASCLD/LAB’s biggest critics. Schechter, also a member of the New York State Commission on Forensic Science, wrote a lengthy memo to his fellow commissioners in 2011 recommending that they look for a new accreditor. He characterized ASCLD/LAB as an organization more interested in protecting its members’ images than in promoting accountability.
“In fact, ASCLD/LAB could more properly be described as a product service organization,” Schechter wrote, “which sells for a fee a ‘seal of approval’ covering diverse laboratory systems, which laboratories can utilize to bolster their credibility through in-court testimony by technicians, plus ancillary services such as protection from outside inquiry, shielding of internal activities and, where necessary, especially in the event of public condemnation, a spokesperson to buffer the laboratory from media inquiry.”
Keaton refuses to respond directly to Schechter’s remarks except to say that he disagrees with them. He also refuses to discuss the specifics of the North Carolina lab scandal, whose ripple effects are still being felt, although he does assert that a lot of what has been reported as fact is not factual.
But Keaton says that crime lab scandals fall into two categories: those involving fraud or other egregious misconduct, which are few and far between but suggest a complete breakdown in the integrity of a lab; and those based on human error, which are far more common but much easier to identify and correct. And he says the most serious problems he’s aware of have occurred in labs that were not accredited.
“I absolutely think the accreditation process is rigorous and demanding,” he says. “If you don’t believe me, ask one of the labs that have gone through it.”
If the accreditation process is so rigorous and demanding, critics wonder, then why have so few labs been sanctioned? ASCLD/LAB’s website lists the status of all accredited labs and shows that no lab’s accreditation is currently revoked or suspended; there are also no labs on probation. And Keaton says he can count on one hand the number of labs whose accreditation has ever been revoked or suspended, though he says it would probably take two hands to count the number of labs that have ever been placed on probation.
Keaton says that has a lot to do with the overall quality of accredited labs. But critics say it has more to do with the chummy nature of the inspection process, which creates a tendency to “go along to get along” among inspectors, and the agency’s own interest in keeping labs accredited.
In the wake of the scandal, the North Carolina legislature enacted several reforms. It amended its accreditation statute to have the crime lab accredited by two agencies, ASCLD/LAB and Forensic Quality Services. It reworded the statute to identify the public and the criminal justice system as the lab’s client. It made a crime the willful omission or misrepresen-tation of information subject to disclosure. And it created a forensic science advisory board to oversee the lab’s operation.
But while that may have solved North Carolina’s immediate problem, it doesn’t do anything to address the larger issue, Southwestern law professor Raeder says—how to prevent such scandals from occurring in the first place. “We can’t just keep stumbling from one scandal to the next,” she says.
There are two forensic science reform bills now pending in Congress, but neither has gotten out of committee. The Criminal Justice and Forensic Science Reform Act, sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., would require all forensic labs that receive federal funding to be accredited and all relevant personnel to be certified. The Forensic Science and Standards Act, introduced in the Senate by Commerce, Science and Transportation Committee Chairman Jay Rockefeller, D-W.Va., and in the House by Rep. Eddie Bernice Johnson, D-Texas, would establish a national forensic science research program to fund research and develop forensic science standards.
The federal government has also announced establishment of a National Commission on Forensic Science aimed at strengthening and enhancing the practice of forensic science. The 30-member commission will develop policy recommendations for the U.S. attorney general on national forensic science standards, a uniform code of professional responsibility, and minimal training and certification requirements for forensic practitioners.
The move was widely hailed as a step in the right direction, albeit a small one. But a lasting solution will require government regulation, many say, just as is done with clinical, environmental and nuclear labs.
There’s no reason, Giannelli says, why the clinical lab that does Pap smear tests should be held to higher standards than the crime lab, whose work could put a defendant on death row.
“They’re both a matter of life and liberty,” he says.
Giannelli says there’s no need to start from scratch. The DNA lab regulations already in place could serve as a model for other types of forensic testing.
Others agree. But they wouldn’t stop there.
Raeder says pretrial discovery procedures and jury instructions must be changed to prevent forensic analysts from “fudging” the results of lab tests and “overreaching” when they testify.
To that end, the ABA House of Delegates adopted two resolutions at its 2012 midyear meeting. One urges governments at all levels to adopt pretrial discovery procedures requiring crime labs to produce “comprehensive and comprehensible” reports that spell out the procedures used in an analysis; the results of the analysis; the identity, qualifications and opinions of the analyst and anybody else who participated in the testing; and any additional information that could bear on the validity of the test results. The other urges judges and lawyers to consider several factors in determining how expert testimony should be presented to a jury and in instructing juries how to evaluate that testimony.
But before we do anything else, Neufeld says, we need to make sure that many of these forensic disciplines, developed by law enforcement agencies for use in law enforcement, are grounded in science.
“Let’s start by putting forensic science on the scientific track,” he says.
Source: American Bar Association
And crime labs are paid for evidence of convictions, while they get nothing for evidence of innocence.
New Study Finds That State Crime Labs Are Paid Per Conviction
I've previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they're considered part of the state's "team" -- if performance reviews and job assessments are done by police or prosecutors -- even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we've seen over the last couple decades. And this of course doesn't even touch on the more blatant examples of outright corruption.
In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded.
Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’
In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’
Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’
Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.
Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.
Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They're literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.
No wonder there have been so many scandals. I'm sure we'll continue to see more.
(Disclosure: In 2008, Koppl and I co-wrote an article for Slate on how to fix some of these problems.)