U.S. Depts. of Justice, Commerce Will Create National Commission on Forensic Science

Four years after the National Academy of Science’s 2009 report Strengthening Forensic Science in the United States: A Path Forward called for basic changes in the forensic sciences, U.S. Department of Justice and U.S. Department of Commerce’s National Institute of Standards and Technology have announced they will create a national commission on forensic science.  The commission will have 30 members — forensic science practitioners, researchers, prosecutors, defense attorneys, and judges — who will develop policy recommendations for the Attorney General.  According to the Department of Justice announcement:

The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.  The new initiative provides a framework for coordination across forensic disciplines under federal leadership, with state and local participation. The Department of Justice, through its involvement in the commission, will take an active role in developing policy recommendations and coordinating implementation.

For many who looked for action in the wake of the National Academy of Science’s 2009 report and saw very little, the creation of the commission will comes as a welcome step forward.   The National District Attorneys Association (NDAA), which took a fairly negative view of the 2009 report and its recommendations, is now reacting with a wait and see attitude.  The NDAA has not yet put out a formal statement in reaction to the announcement of the commission; according to Scott Burns, the Executive Director of the NDAA, the organization will do that once it gets the details on the commission, especially its composition.  So far, Burns told me, the NDAA is  “encouraged” by the fact that prosecutors will be part of the commission, though he stresses that he hopes to see more state and local prosecutors than federal ones.  Burns said that if the commission begins with the attitude that “the system is broken” and that its basics — fingerprints, tool marks, and the like — must be fixed, the NDAA will not look on it favorably.  On the other hand, if the commission starts with the attitude that “we can improve”  the system but that it basically functions well, that would be welcome.

I will write further on this as the story develops.

 

So Many Autopsies, So Little Time: Lessons From Mississippi’s Former Medical Examiner

In a story titled “Questions Left for Mississippi Over Doctor’s Autopsies,” we learn about Dr. Steven Hayne, who did most of the autopsies in the state of Mississippi for approximately two decades .  From “the late 1980s through the late 2000s,” Dr. Hayne did autopsies for the state, but rather than receiving a regular salary as a state employee, Dr. Hayne was paid by the autopsy.  This gave him a strong incentive to do as many autopsies as he could.    He did about 1,700 autopsies in most of those years, a caseload that is about seven times the maximum recommended by the National Association of Medical Examiners.

There are now four lawsuits pending concerning Dr. Hayne’s work, with about ten more on the way.  Brought on behalf of inmates who claim they were wrongly convicted, the suits charge that Dr. Hayne misrepresented his qualifications as a forensic pathologist.  Perhaps more importantly, the lawsuits contend that Dr. Hayne drew conclusions based on ideas “that lie far outside standard forensic science.”  For example, in one infamous case, Dr. Hayne testified that a child had died of suffocation when a large male hand had covering his face.  Hayne based this opinion on a cast of the child’s face and his autopsy notes describing wounds on the child’s face, but the “large male hand” idea came weeks after the initial autopsy and only after the child’s three-year-old brother had implicated the mother’s boyfriend.   According to the article, there is no scientific support for what  Hayne did in the case or for the conclusions he drew.

“I saw a very similar case like that on ‘Law & Order: SVU,’ ” said Dr. Andrew M. Baker, the president of the medical examiners’ association and chief medical examiner for Hennepin County, Minn. “I’ve never heard of it in real life.” Dr. Baker said not only was the technique unheard of but so was the ability to speculate from those sorts of wounds about hand size or gender.

It’s tempting to regard this as another in a lengthening list of forensic scandals featuring faulty work.  But Dr. Hayne’s situation is worth noting, because it illustrates the power of forensic science, and why those who perform these tasks must be under reasonable professional scrutiny and be subject to  challenge.   In Mississippi, with no one to challenge him, Dr. Hayne’s autopsy results decided countless cases, and there was no one to push back.  In arrangements like that, disaster awaits.  The article quotes Dr. Lloyd White, the Mississippi state medical examiner from 1989 to 1992, who explains why things like this happen: poor science is “able to persist because scientific testimony is too often viewed with uncritical reverence and because the people affected by its misuse usually have little support or sympathy.”  No one was in a position to challenge Hayne, since he did almost all the autopsy work in the state, and the state and the prosecutors liked it that way.  Years later, individual convicts, their families and perhaps the taxpayers are left to clean up the damage and pay for the mistakes.

Why Does Law Enforcement Have the Power to Control DNA Databases and Exclude Defense Testing?

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.

Stateline Article on Forensics: Yes, But CSI Isn’t the Problem

An article posted on Stateline (published by the Pew Center on the States) on November 26, “Forensic Science Falls Short of Public Image,” nails many of the problems with forensic science in the U.S.  But readers will have to go beyond the references to “the CSI effect” and how this troubles police and prosecutors.  For those who read further, the real problems surface: the inherent weaknesses in traditional (non-DNA, non-chemistry based) forensic methods, along with lack of supervision and protocols, occasional outright fraud, lack of judicial knowledge about these issues, and prosecutorial unwillingness to recognize these problems.

“In fact,” says the article “the whole field of forensic science is currently in flux, following a top-to-bottom review in 2009 by the National Academy of Sciences. The report cast major doubt on many common forensic techniques, calling them unscientific and error-prone.”  According to Judge Donald Shelton, a trial court judge in Michigan’s Washtenaw County who has written about forensic evidence, it is particularly troubling that judges don’t seem to understand just how serious the problems with forensics are, even though the National Academy of Sciences report could hardly have been clearer.  “One of my concerns, “he says, “is that these forms of evidence that we know from the National Academy of Sciences report aren’t valid, are still routinely offered and routinely admitted by judges.”

I do have to take issue with the writer’s comment that Annie Dookhan, the lab analyst who seems to be responsible for most or all of the huge numbers of fraudulent lab tests in Massachusetts was “led” to do this by overwork, underfunding, and case backlogs.   I bet that her fellow analysts who did not falsify lab results in the same lab under the same conditions would beg to differ.  But the article (part one of a two-part series) is still well worth a read.  In addition to the on-target points about the science of forensic science, it also discusses a number of the recent crime lab scandals in Massachusetts, St. Paul, Minn., Texas, and Detroit.

 

 

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.