Put Privacy Aside: Is Collecting DNA From Every Arrested Person a Good Idea?

Today the U.S.  Supreme Court hears arguments in Maryland v. King, the Court’s latest foray into  DNA testing.  Most reports have focused on the clash between law enforcement’s desire to test every arrested person in order to try to solve old cases, and those who advocate for a strict interpretation of the Fourth Amendment’s protection of privacy.  For example, a report by the excellent Nina Totenberg of National Public Radio discussed the positions of police, who believe taking a sample from every person arrested is a minimal intrusion that can have a big payoff, and the arguments of defense attorneys and civil libertarians, who feel that allowing testing of all arrestees would surrender the basic principles of the Fourth Amendment’s protection against unlawful searches and seizures.

But there’s a question that may be far more important: from a crime fighting point of view,   is it a good idea for police to take and process a DNA sample for everyone who gets arrested?   Of course there will be some cases — such as the King case itself — in which the time-of-arrest sample leads to an arrest for a different, serious crime.  But taking samples from every arrestee may actually hurt our efforts to use DNA most effectively to make ourselves safe.  According to an article in Slate by Brandon Garrett and Erin Murphy, real public safety gains from DNA lie not with taking samples from every jaywalker and burglar and hoping for a hit in a cold case, but instead in taking many more samples from crime scenes.  In other words, we get more hits when we process samples from active crime scenes and match them against our already-large DNA database, instead of fishing for leads among the whole population of more than 12 million people arrested every year.  And all of those additional samples from arrestees crowd out and slow down the processing of samples from real crime scenes and victims, creating backlogs.  In other words, bigger DNA databases is not the answer to crime.

[B]igger is only better if DNA databases grow in the right way: by entering more samples from crime scenes, not samples from arrestees. DNA databases already include 10 million-plus known offender profiles. But a database with every offender in the nation cannot solve a crime if no physical evidence was collected or tested.  And police collect far too few such samples….The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.  Even worse, taking DNA from a lot of arrestees slows the testing in active criminal investigations….Backlogs created by arrestee DNA sampling means that rape kits and samples from convicted offenders sit in storage or go untested.

The bottom line: even if the Supreme Court says we can take a sample from every person arrested, doesn’t mean we should.

 

Failed Evidence: Public Talk Today at the University of Houston Law Center

Today I’ll be giving a talk on Failed Evidence at the University of Houston Law Center, 4800 Calhoun Road, Houston, 77004, at noon in room BLB 240.  The talk is free and open to the public.  I’ll be discussing the book and my thoughts about how we can move toward a future in which the existing scientific work on eyewitness identification, interrogation of suspects, and basic (i.e., non-DNA) forensics will make for better, more accurate investigation and prosecution of crime.  I’ll be speaking to law students, faculty, members of the university community, attorneys, and interested members of the public.

Details on the event are here.

Houston is a particularly interesting place to have this discussion.  Over the past ten years, the crime lab in Houston has had repeated problems.  After all of this, the authorities decided to try something they had not done before: they are removing the crime lab from the jurisdiction of law enforcement and putting it under the control of an independent body, the Houston Forensic Science Local Government Corporation.  I wrote about this in an op-ed for the Houston Chronicle on Saturday, which you can see here.  This move puts Houston’s efforts to deal with forensic reform ahead of the  curve, and implements one of the main recommendations of the National Academy of Sciences 2009 report, Strengthening Forensic Science in the U.S.: A Path Forward.

 

 

 

Forensic Reform: On the Agenda in the New Congress

I’ve written a number of times (here and here an here, for example) about the problems with forensic science laboratories in this country.  Just in the last few months, we’ve seen scandals hit labs in Massachusetts, St. Paul, Minnesota, and in Mississippi.  It seems that the parade might never end.

But today, news emerged that indicates that, just maybe, forensic reform might be on the national agenda.

The new Congress will, of course, be preoccupied with budget and fiscal matters, and also with the President’s efforts on gun control and an expected push for immigration reform.  But Senator Patrick Leahy of Vermont, chair of the Senate Judiciary Committee, has announced that he intends to put forensic reform onto the long list of issues he will examine.  According to The BLT (the Blog of the Legal Times, which covers law and government in Washington), Leahy’s committee will be working on an ambitious agenda: immigration, national security and civil liberties issues (including the use of drones in both foreign and domestic contexts), and gun control policy, but that isn’t all.  “The committee will also focus on promoting national standards and oversight for forensic labs and practitioners,” BLT says.

This is a welcome development.  People can disagree about whether we should have national standards (I think yes) or a “national institute of forensic science,” (again, I say yes) as proposed in the National Academy of Sciences’ 2009 report Strengthening Forensic Science in the United States: A Path Forward.  But it’s hard to argue that we should not hold the current situation up to the light for some long-overdue scrutiny and discussion of  higher standards and better oversight.  With the never-ending parade of state and local scandals in crime labs, a little federal look-see could actually help.

The Parade of Crime Lab Scandals Continues, Three Years After the NAS Report on Forensics

On the November 20 edition of NPR’s All Things Considered, “Scandals Call Into Question Crime Labs’ Oversight” pointed out that it has been more than three years since the National Academy of Sciences issued its landmark report, Strengthening Forensic Science in the United States, demanding changes in how crime labs in the U.S. were run: everything from labs’ independence from law enforcement, to the lack of proper protocols and procedures, to poor quality of the science that makes up forensic science.  Regrettably, little has changed.

Three years ago, a report from the National Academy of Sciences exposed serious problems in the nation’s forensic science community. It found not only a lack of peer-reviewed science in the field, but also insufficient oversight in crime laboratories.  Little has changed since that report came out, but concerns are growing as scandals keep surfacing at crime labs across the country.

In just the last six months, we’ve seen the still-unfolding scandal at the Jamaica Plains crime lab in Massachusetts and the crime lab problems in St. Paul, Minnesota.  I’ve blogged about both here and here.  But we never seem to stop hearing about these things.  The story mentions scandals in Nassau County, New York, and in North Carolina, but there have been many others.  Why do we keep hearing about  this happening over and over, like a forensic-focused version of the movie Ground Hog Day?

Readers, please comment — and mention other crime lab scandals of the last ten or fifteen years.  One reader mentioned the lab in San Francisco.  Let’s try to collect them, and look for the common threads.

Failed Evidence Event in Minnesota: The Roots of the St. Paul Crime Lab Scandal

Last week’s event on November 8 at the University of Minnesota Law School exceeded expectation: a large, lively audience (est. 120) asking great questions, and an impassioned panel of local officials and a defense attorney giving their own insightful and at times impassioned reactions to my talk on “Failed Evidence.”

There was one thing that was not unexpected: plenty of discussion of the still-unfolding scandal at the St. Paul crime lab, including a revelation that I had not heard before.

For those not familiar with what’s been happening at the St. Paul lab, take a quick look at my Failed Evidence blog post from last Thursday, which will link you to much of the news coverage in the last several months.  We’ve learned about a lack of protocols, some very sloppy handling of evidence, and more.  But at the event, we heard from John Harrington, former chief of police in St. Paul and a member of the panel, that the problems recently revealed may in fact have roots that go back some years, and that he told local officials about shortcomings at the lab as early as 2006 and 2007.  Chief Harrington said that he brought engineers from 3M into the lab in 2006 to study it, pinpoint any problems, and to tell him what to fix and how.  The good folks at 3M did their work, and came back to Chief Harrington with a plan and a price tag: $2 million dollars.  Chief Harrington sought federal funding, but without success.  He then went to local officials, and they turned him down.  He was told, in effect, do the best you can with what you have.  There was no appetite for fixing the problems if there was a cost to doing so; the system would simply have to limp along.

Without knowing more, it is impossible to tell for sure whether the problems spotted by 3M in 2006 were the same ones that came to public notice in 2012, or whether the issues found by 3M  in 2006 led to the 2012 issues.  But we can be sure of one thing in this world: you get what you pay for, and if you won’t pay to improve things when necessary, you won’t get improvement.  So is seems that this information deserves to be taken seriously.  If these facts are not already part of the investigation into the lab scandal (and I can’t find anything about them in the news coverage thus far — please correct me if I am wrong), perhaps they should be.

Where Is Minnesota on Failed Evidence? Part 3 — The St. Paul Crime Lab

In my op-ed article in yesterday’s Minneapolis Star Tribune, I gave Minnesota good marks on moving toward better, science-based investigative practices, particularly recording interrogations (required by state Supreme Court decision since 1994) and the use of sequential, blind lineups (Ramsey County).  I also made a brief reference to the problems at the St. Paul crime lab that have been in the headlines in the Twin Cities for some months.  That situation is worth thinking about, especially in light of the unfolding scandal in the crime lab in Massachusetts I’ve been posting about (here and here, for example).  (This will all be discussed in today’s free public presentation on Failed Evidence at the University of Minnesota Law School in Minneapolis at 4:30 pm.)

According to some of the reporting (for example, here and here), the problems in the St. Paul crime lab include lack of proper procedures and protocol, and failure to follow the procedures that did exist.  Work was sometimes sloppy, and that has endangered some guilty verdicts.

Unlike some of the other crime lab scandals, in which fraud or errors seems to have represented an effort to help law enforcement with erroneous results that supported findings of guilt, the errors in St. Paul actually seem to have undermined the fact finding process in both directions: false positives and false negatives.  This highlights an important point: bad forensic work can mean not only that the innocent are convicted, but that the guilty may go free.

A court has heard multiple days of testimony about the faulty lab work, and a ruling is expected after the first of the year.  In the meantime, the investigation continues, with at least one case dropped and others possibly headed in that direction.

All of this cries out for change.  Crime labs should be independent of police or prosecutorial control.  (Of course, this isn’t enough by itself; the lab in trouble in Massachusetts was under the control of the state’s health department when the misdeeds occurred.)  Proper protocol and procedures are essential, along with periodic auditing and accountability to make sure this means something.  And rigorous proficiency testing and certification should be mandatory.

We would accept no less in a lab that tests over-the-counter medicines for effectiveness and safety; why would we accept less for labs that guide the criminal justice system?

Failed Evidence: Chapter 1 Posted by Utne Reader

For those who would like a chance to read a bit of Failed Evidence: Why Law Enforcement Resists Science, the Utne Reader has posted an online version of the first chapter of the book.  You can get to it by clicking here.

“Forensics on Trial” on PBS Gets It Mostly Right

Last night, PBS broadcast “Forensics on Trial” on Nova, the network’s terrific science show.  My take: the show got most of the issues regarding forensic science right, but not all.  And I think it might leave a misleading impression on some viewers.

Here’s a quick list of some of the things the program got right:

* The Brandon Mayfield fingerprint fiasco set in motion deep scrutiny of forensic science, culminating in the National Academy of Science 2009 report, “Strengthening Forensic Science in the United States.”

* According to that report, aside from DNA, most forensic science isn’t science at all but a craft based on human interpretation, subject to all of the cognitive flaws one would expect.

* Most of forensic science operates without standards, accountability, or basic certification.

But I had some reservations:

* The show conveyed a sense that the lack of scientific rigor in forensic methods would be solved by shiny new high-tech gadgetry.  Too little attention was paid to the ways we should address more basic flaws: the lack of real data on which to base our judgments about the sources of the evidence we find; the absence of standard laboratory practices, such as blind testing,  to protect against cognitive biases and flaws.

* The show failed to probe into the weaknesses of some of the lamest forensic disciplines, such as tire and shoe prints, hair and fiber matching, and the like.  Some of this was mentioned, but only in passing.

* The segment on bite mark identification was particularly striking.  It did a good job of exposing how this “discipline” put an innocent man in jail for fifteen years.  But it made it seem as if the problem was shoddy use of a legitimate method, when the issue is more fundamental: bite marks on skin are not consistent, and they change as the body tissue changes, moves, etc.

* I recall nothing about fraudulent forensics — so-called “dry labbing” that is now rocking the Jamaica Plain lab in Massachusetts, and that has shown up again and again in other places.  (Paging Fred Zain…paging Joyce Gilchrist…)

A worthy effort?  Yes, no question.  But I was hoping for better.

Reaction, readers?

More Crime Lab Scandal Fallout: Boston Requests $15 Million to Handle Costs

In yet another set of ripples from the scandal at the Jamaica Plain crime lab scandal in Massachusetts, which may affect thousands of cases, the Boston Globe reports that Mayor Thomas Menino has requested $15 million from the state to cover the costs associated with the sudden release of hundreds of inmates into Boston communities.

According to Mayor Menino, the releases could have dire impacts on public safety in the city.  This may come from pressure “on the crime rate, rental housing, demand for emergency shelter, and the cost of job training and mental health counseling, among other issues.”  Officials said they would need more police on the street, and said they would create “crisis reentry teams” of police, probation officers, and outreach workers to address the problems.

The City’s request for aid from the state comes after reports that state prosecutors would also be making a multi-million dollar request for resources to meet the crisis.  These will be among “a slew of multimillion-dollar pleas for state assistance from the Committee for Public Counsel Services, the Trial Courts, and law enforcement agencies like State Police and the Department of Correction.”

The scandal is a failure of the analyst (or analysts) involved, and the supervisors of the analyst(s) and the lab.  But we see here that the impact is even more far reaching.  Guilty people will get out of jail.  Some innocent people may be in jail, where they don’t belong.  The integrity of the criminal justice system — not just this lab or just forensic methods — has been damaged.  And now, city residents and Massachusetts taxpayers will be hurt: by higher crime, by stress on housing and mental health services, and also by a big bill that the public must pay.

Such a shame that we don’t take require basic kinds of quality control, proficiency testing, certification, and integrity auditing in place in forensic labs.  Some labs, of course, do these things, but they generally aren’t required, and most labs don’t.

The result: failed evidence.

 

DA Sickened by Convicted Criminals Going Free Because of MA Crime Lab Scandal

In the latest result of the Jamaica Plain crime lab scandal in Massachusetts, convicted criminals are leaving jail and a district attorney recoils at the damage done.  An article in today’s Boston Herald says that the cases of at least  twenty inmates have been affected so far, and more releases will soon follow.

The wrongdoing at the lab, in which protocols were not followed and results were possibly falsified, points out the importance of many of the recommendations in Failed Evidence and in the National Academy of Science’s 2009 report on forensic sciences: established protocols that trigger systemic warnings if not followed; laboratory accreditation and analyst certification; and regular proficiency and quality assurance testing, just to name a few.  But it’s actually more instructive to hear the comments of Norfolk District Attorney Michael Morrissey, upon hearing that inmates serving sentences had been freed because of the scandal:

It makes me feel sick that the hard work that had gone into prosecuting these individuals could be thrown out the window…There will be a larger onslaught in the coming weeks of people who have committed very serious crimes who will be let out of jail or face significantly lesser charges.  It leaves me kind of speechless that one individual could cause so much damage.

There’s only one thing you can say to this:  Mr. Morrissey is right.  A lot of hard work by good police officers and dedicated prosecutors has gone for naught, and some number of guilty people will get out of jail or serve less time than they could have — something they do not deserve.  It is a huge waste and a real injustice, which will only be compounded if the individuals freed go out and commit more crimes.

We don’t yet know the full story: was this one rogue lab worker, as Mr. Morrissey’s statement suggests, or was the wrongdoing more widespread?  Whatever the answer to that question is, we know that, going forward, all of the leaders in the criminal justice system who have felt the impact of this scandal must lead the way to comprehensive reform.  Nothing less will do, because nothing less will assure us that the same thing can’t happen again.