Forty years ago, Bob Dylan reacted to the conviction of an innocent man by singing that he couldn't help but feel ashamed "to live in a land where justice is a game." Over the ensuing decades, the criminal-justice system has improved in many significant ways. But shame is still an appropriate response to it, as the Washington Post made clear Saturday in an article that begins with a punch to the gut: "Nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000," the newspaper reported, adding that "the cases include those of 32 defendants sentenced to death."
The article notes that the admissions from the FBI and Department of Justice "confirm long-suspected problems with subjective, pattern-based forensic techniques—like hair and bite-mark comparisons—that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989."
That link points back to 2012 coverage of problems with FBI forensic analysis, but the existence of shoddy forensics has been so clear for so long in so many different state and local jurisdictions that the following conclusion is difficult to avoid: Neither police agencies nor prosecutors are willing to call for the sorts of reforms that would prevent many innocents from being wrongfully convicted and imprisoned, and neither the Republican nor the Democratic Party will force their hands.
Ignorance of the problem is no longer an acceptable excuse.
Among recent examples:
- At a Massachusetts drug lab, a chemist was sent to prison after admitting that she faked the results in perhaps tens of thousands of drug cases, calling into question thousands of drug convictions that ended with people in prison.
- In St. Paul, Minnesota, an independent review of the crime lab found "major errors in almost every area of the lab's work, including the fingerprint and crime scene evidence processing that has continued after the lab's drug testing was stopped in July. The failures include sloppy documentation, dirty equipment, faulty techniques and ignorance of basic scientific procedures ... Lab employees even used Wikipedia as a 'technical reference' in at least one drug case ... The lab lacked any clean area designated for the review and collection of DNA evidence. The lab stored crime-scene photos on a computer that anyone could access without a password."
- In Colorado, the Office of the Attorney General documented inadequate training and alarming lapses at a lab that measured the amount of alcohol in blood.
- In Detroit, police shut down their crime laboratory "after an audit uncovered serious errors in numerous cases. The audit said sloppy work had probably resulted in wrongful convictions, and officials expect a wave of appeals ... auditors re-examined 200 randomly selected shooting cases and found serious errors in 19."
- In Philadelphia, "three trace-evidence technicians have flunked a routine test administered to uphold the police crime lab’s accreditation, police brass announced Tuesday. Each technician tests hundreds of pieces of evidence a year for traces of blood and semen, so if investigators determine that the methods are problematic, it could throw countless court cases into question ... "
- In North Carolina, "agents withheld exculpatory evidence or distorted evidence in more than 230 cases over a 16-year period. Three of those cases resulted in execution. There was widespread lying, corruption, and pressure from prosecutors and other law-enforcement officials on crime lab analysts to produce results that would help secure convictions. And the pressure worked."
That is a highly incomplete sample from just the last decade.
Go back a bit farther to 2004 and you'll find a New York Times report on major problems in a Texas metropolis:
The police crime laboratory in Houston, already reeling from a scandal that has led to retesting of evidence in 360 cases, now faces a much larger crisis that could involve many thousands of cases over 25 years. Six independent forensic scientists, in a report to be filed in a Houston state court today, said that a crime laboratory official—because he either lacked basic knowledge of blood typing or gave false testimony—helped convict an innocent man of rape in 1987.
The panel concluded that crime laboratory officials might have offered ''similarly false and scientifically unsound'' reports and testimony in other cases, and it called for a comprehensive audit spanning decades to re-examine the results of a broad array of rudimentary tests on blood, semen and other bodily fluids. Elizabeth A. Johnson, a former director of the DNA laboratory at the Harris County medical examiner's office in Houston, said the task would be daunting. ''A conservative number would probably be 5,000 to 10,000 cases,'' Dr. Johnson said. ''If you add in hair, it's off the board.''
In the face of this national scandal, two elected officials have distinguished themselves at the federal level: senators John Cornyn and Patrick Leahy (a former prosecutor), cosponsors of forensic reform legislation that offers significant improvements. In short, their bill would strengthen federal oversight of crime labs, invest in research into best practices, and provide a training and certification regime. But their bill doesn't go far enough, especially given the federal government's own problems with shoddy forensic science.
The most compelling reform agenda that I've come across was summarized seven years ago by Radley Balko, an investigative journalist with significant experience unmasking shoddy crime-scene analysis, and Roger Koppl, director of the Institute for Forensic Science Administration at Fairleigh Dickinson University. They focused on a huge conflict of interest at the core of the current system—the fact that forensic lab analysts often work for the police and prosecutors:
One major barrier to improving forensic evidence in criminal trials is that in most jurisdictions, the state has a monopoly on experts. Crime lab analysts and medical examiners (and to a lesser extent DNA technicians) typically work for the government and are generally seen as part of the prosecution's "team," much like the police and investigators. Yes, science is science, and it would be nice to believe that scientists will always get at the truth no matter whom they report to. But studies have consistently shown that even conscientious scientists can be affected by cognitive bias. A scientist whose job performance is evaluated by a senior official in the district attorney or state attorney general's office may feel subtle pressure to return results that produce convictions. In cases in which district attorneys' offices contract work out to private labs, the labs may feel pressure—even if it's not explicit (though sometimes it is)—to produce favorable results in order to continue the relationship.
Indeed, according to Business Insider, "In many jurisdictions, crime labs receive money for each conviction they contribute to, according to a 2013 study in the journal Criminal Justice Ethics. Statutes in Florida and North Carolina mandate that judges provide labs with remuneration “upon conviction” and only upon conviction. Alabama, Arizona, California, Missouri, Wisconsin, Tennessee, New Mexico, Kentucky, New Jersey, and Virginia are among the states with similar provisions."
Forensic counsel for the indigent. In many jurisdictions, indigent defendants aren't given access to their own forensic experts. As a result, the only expert witnesses are often testifying for the prosecution ... This undermines the whole adversarial basis of our criminal-justice system. Indigent defendants should be given vouchers to hire their own experts, who can review the forensic analysis and conclusions of each prosecution expert.
Expert independence. Crime labs, DNA labs, and medical examiners shouldn't serve under the same bureaucracy as district attorneys and police agencies. If these experts must work for the government, they should report to an independent state agency, if not the courts themselves. There should be a wall of separation between analysis and interpretation ... When the same expert performs both the analysis and interpretation, defense experts are often at a disadvantage, having to rely on the notes and photos of the same expert whose testimony they're disputing.
Rivalrous redundancy. Whether the state uses its own labs or contracts out to private labs, evidence should periodically and systematically be sent out to yet another competing lab for verification. The state's labs should be made aware that their work will occasionally be checked but not told when. In addition to helping discover errors that might otherwise go undetected, the introduction of competition to government labs would all but remove any subconscious incentive to appease police and prosecutors and would strengthen the incentive for a more objective analysis.
Statistical analysis. The results from forensic labs should be regularly analyzed for statistical anomalies. Labs producing unusually high match rates should throw up red flags for further examination. For example, in 2004 Houston medical examiner Patricia Moore was found to have diagnosed shaken-baby syndrome in infant autopsies at a rate several times higher than the national average. This led to an investigation—and the reopening of several convictions that had relied on Moore's testimony.
Mask the evidence. A 2006 U.K. study by researchers at the University of Southampton found that the error rate of fingerprint analysts doubled when they were first told the circumstances of the case they were working on. Crime lab technicians and medical examiners should never be permitted to consult with police or prosecutors before performing their analysis. A dramatic child-murder case, for example, may induce a greater subconscious bias to find a match than a burglary case. To the extent that it's possible, evidence should be stripped of all context before being sent to the lab. Ideally, state or city officials might hire a neutral "evidence shepherd," whose job would be to deliver crime-scene evidence to the labs and oversee the process of periodically sending evidence to secondary labs for verification.
As Senator Leahy said when issuing his own call for reform, improving the accuracy and reliability of forensics isn't just a worthy endeavor because it will prevent innocent people from being wrongly convicted and imprisoned—it is "a good investment that will lead to fewer trials and appeals and will reduce crime by ensuring that those who commit serious offenses are promptly captured and convicted."
But despite the fact that egregious problems have occurred in hundreds of crime labs throughout the U.S., affecting tens of thousands of cases or more, and perhaps even sending innocent men to their deaths, most police officials and prosecutors remain unwilling to acknowledge what we should now see clearly: They're incapable of running crime labs that reliably protect the innocent and identify the guilty, in large part because their conflicts of interest and biases are insurmountable.
Imagine what most prosecutors would say if, henceforth, crime lab analysts and medical examiners were to report to the most senior official in the relevant public defender's office. Yet they happily embrace the inverse and call it a justice system.
The results speak for themselves.