National Commission on Forensic Science: A Step Toward National Standards

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

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Is It Time for National Standards for Forensic Labs?

Here we are, more than a month after chemist Annie Dookhan, formerly of the Massachusetts State Drug Laboratory, entered a guilty plea to producing fraudulent forensic testing results, and went to prison.  The scandal, potentially involving tens of thousands of cases, has resulted in the release of hundreds of convicted persons. All of this has reportedly cost the state of Massachusetts more than 8 million dollars, and the state has budgeted almost 9 million more for the continuing damage.    Readers have seen coverage of the Massachusetts scandal, and several others, here and here and here.

But Dhookan and the Massachusetts Drug Laboratory are far from alone.  According to a report by National Public Radio, there have been  twelve major crime lab scandals in the U.S. in just the last two years.  With all of this damage  — to individual cases and defendants, to state and local budgets, and to the public trust — occurring all over the country, how have policy makers at the national level responded?

Well, they haven’t.  At least not yet.

Almost five years after the release of the National Academy of Sciences’ report “Strengthening Forensic Science in the U.S.: A Path Forward,” which recommended (among other things) the establishment of national industry standards for forensic labs and a National Institute of Forensic Science,  as well as the independence of every crime lab from police agencies and prosecution offices, none of this has happened.  Nor is accreditation of laboratories required.

According to National Public Radio, Senators John Cornyn of Texas and Patrick Leahy of Vermont “are working to introduce legislation this year” which could address some of these problems.  But nearly five years after the NAS report, and with the parade of crime lab scandals  continuing without let up, why has it taken five years to get to this very preliminary point?

Readers, would mandatory national standards help?  Are they appropriate?  What about requiring accreditation?

If you are from outside the U.S., does your country set mandatory national standards for crime labs?  Is accreditation required?

The time has long since passed for us to do something about this set of problems in the U.S.  We just can’t afford the damage to the credibility of our criminal justice system and the costs of  reviewing cases and releasing convicted prisoners — some of whom may very well be guilty, but whose cases are tainted.

Microscopic Hair Analysis: 2,000 Possible Cases of Failed Evidence Will Be Reviewed

The U.S. Department of Justice (DOJ), in partnership with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL), will review 2,000 cases in which microscopic hair analysis of crime scene evidence was conducted by the FBI Laboratory.  The review, prompted by the DNA-based exoneration of several men convicted on the basis of hair microscopy, will focus on “specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.”  The Innocence Project’s announcement of the review is here; a representative news article is here.

In a move that shows just how seriously the DOJ is taking this review, it has done something unheard of:

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony.

Translation: DOJ is not going to fight this review in any of these cases; they’re going to be part of it.

It’s hard to describe the magnitude of the shift in outlook this represents.  Usually, as readers of Failed Evidence know, law enforcement (and I include DOJ in that phrase) resists science-based review and testing; that’s the thrust of the book.  I am happy to say that this is refreshingly different.  According to Peter Neufeld, Co-Director of the Innocence Project, “[t]he government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”

Of course, this review will not affect cases in which hair analysis was handled by state crime labs.  But here’s hoping they will take this as an example, as the Grits for Breakfast blog argues ought to be done in Texas.

For a sense of the damage that sloppy hair analysis and testimony about it has done in prior cases, listen to this NPR story and interview about the case of Dennis Fritz, in Ada, Oklahoma.  John Grisham’s nonfiction book “The Innocent Man” is an excellent read about the case.

Maybe this is the beginning of a trend.  Hats off to DOJ, the Innocence Project, and NACDL.

A “Revolution” Favoring “Science and Pragmatism” in Criminal Justice?

When a former high-ranking Justice Department official speaks of a “revolution” in criminal justice, with the whole field turning toward science, could it mean less failed evidence in the future?  What does it mean for those concerned with faulty forensic science?

Laurie Robinson served as Assistant Attorney General in both the Clinton and Obama Justice Departments, where she oversaw the Office of Justice Programs (OJP), the research, statistics and criminal justice assistance arm Justice.  That made her remarks to the Delaware Center for Justice the other day worth noticing.  According to the Wilmington News Journal, “[w]e’re seeing something akin to a revolution in criminal justice in this country,” said Robinson, now on the faculty of George Mason University. “We’re at an important crossroads, one where ideology has taken a back seat, and science and pragmatism have come to the fore.”

Robinson’s web page at George Mason says her tenure at OJP  “was marked by a focus on science and evidence-based programming.”  She was in Delaware to discuss the state’s re-entry programs  and other initiatives to reduce recidivism, and few would disagree that those important programs need scientific and statistical support.   But I wonder whether Robinson would be as optimistic about science’s role in forensic methods, which have played a role in about half of all wrongful convictions across the U.S.  Surely, forensic science needs “science and evidence-based” support and examination — badly.

 It has now been more than four years since the release of the landmark 2009 National Academy of Sciences report Strengthening Forensic Sciences in the United States: A Path Forward, which found that except for DNA and chemical analysis, most of what we think of as forensic science isn’t science at all.  In that time, little seems to have changed; scandals in crime labs continue to pile up in jurisdictions across the country (see my posts about lab scandals just this past year in Massachusetts  and Minnesota,  for example).  In a particularly compelling piece of writing in the Huffington Post, Radley Balko discusses the long-running crime lab scandal in Mississippi, and puts it in context: Mississippi’s scandal “is just the latest in a long, sad line of such stories” that Balko has already chronicled.

What’s to be done?  As a start, I argued in chapter 7 of  Failed Evidence, all federal money that goes to law enforcement should carry with it a requirement for compliance with best practices in police investigation and forensic science.  Not all law enforcement agencies run their own forensic labs (and as the NAS report said in Chapter 6, “Improving Methods, Practice, and Performance in Forensic Science,” labs should be independent of law enforcement.).  But for those that do, compliance with standards that would avoid systematic error, human biases, fraud, and improper scientific testing and testimony should be mandatory.

That would start a revolution right there.  Because what law enforcement agency could afford to just turn down federal funding, in budgetary times like these?

 

DNA Testing and Privacy: the Maryland v. King Argument in the Supreme Court

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.

Failed Evidence Reviewed by the American Criminal Law Review

The current issue of the American Criminal Law Review has a review essay of Failed Evidence: Why Law Enforcement Resists Science (2012).   According to the review, the book “engages…broadly with forensics” to explore “why law enforcement and prosecutors have shown such marked reluctance to incorporate a modern understanding of the scientific method.”  The review concludes that Failed Evidence “provides a thoughtful analysis of the scientific bases underlying forensics, current evidentiary and investigatory problems, and possible solutions. [The] suggestions are particularly well thought-out because they consider the problems faced by law enforcement when implementing ideal solutions in the real world.”

You can read the full review here.

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.