Policing Crime Labs

An inter­est­ing arti­cle from the North County Times in San Diego. It hits on a lot of what has already been said about crime labs on this blog, but ties var­i­ous top­ics all together well.

Forensics, the use of sci­ence to answer ques­tions of law, play a vital role in the court­room. Using tools such as blood tests, DNA and bal­lis­tic evi­dence, sci­ence estab­lishes fact in legal cases.

Though the work is reli­able in the vast major­ity of cases, foren­sic lab­o­ra­to­ries and their results are not flaw­less, crit­ics say. Take the series of ques­tion­able drug and alco­hol tests that cropped up in North County crim­i­nal cases in recent months.

Hundreds of tox­i­col­ogy tests done by a pri­vate lab, Pacific Toxicologies, had to be reviewed after mis­takes were found. Eleven peo­ple were released from jail; at least seven of them saw their crim­i­nal cases dismissed.

The inci­dent raises the ques­tion: Who polices the labs the police use? No gov­ern­men­tal body, no state or fed­eral agency over­sees the foren­sic labs that run tests on DNA, fin­ger­prints, bal­lis­tics, even on the blood of drunken dri­ving suspects.

Some labs vol­un­tar­ily seek accred­i­ta­tion from pri­vate pro­fes­sional organizations.

But nobody who checks the labs has the power to shut one down.

“It is very hard to chal­lenge … if there was a prob­lem with the lab. If they screw up, you are out of luck,” said Justin Brooks, the direc­tor of the California Innocence Project at California Western School of Law in San Diego.

Flawed tests found

The prob­lems with faulty tests in local cases came to light after puz­zled San Diego County sheriff’s deputies started ques­tion­ing test results, accord­ing to the county dis­trict attorney’s office.

It gen­er­ally came up, pros­e­cu­tor Damon Mosler said, in instances where a deputy felt strongly that a sus­pect had been under the influ­ence of drugs, but the test came back clean.

Mosler said that prompted offi­cials to review cases and ask questions.

Then a teenage defen­dant tested pos­i­tive for mor­phine; the boy’s attor­neys asked for a retest. The sec­ond test showed no mor­phine in the boy’s system.

That false pos­i­tive sent the review of work done by Pacific Toxicologies into over­drive, Mosler said. Within a week, pros­e­cu­tors noti­fied defense attor­neys about the prob­lem. Officials said faulty train­ing of two new lab­o­ra­tory tech­ni­cians at Pacific Toxicologies was to blame.

The mis­takes led the Sheriff’s Department to end its use of Pacific Toxicologies, based in Chatsworth. Sheriff’s spokes­woman Jan Caldwell said the depart­ment now uses Bio-Tox, a Riverside lab recently in the news for prob­lems of its own.

Last year, hun­dreds of tests done by Bio-Tox had to be retested after for­mer lab tech Aaron Layton report­edly admit­ted to fal­si­fy­ing lab results while work­ing in another state. Bio-Tox offi­cials, who responded imme­di­ately when alerted to the prob­lem, said the review turned up no mis­takes in Layton’s work for them.

Oversight lack­ing

Last year, the National Academy of Sciences issued a con­gres­sion­ally funded report on the state of foren­sic labs. Among the find­ings: “… over­sight and enforce­ment of oper­at­ing stan­dards, cer­ti­fi­ca­tion, accred­i­ta­tion, and ethics are lack­ing in most local and state jurisdictions.”

When ques­tions about a par­tic­u­lar lab or analyst’s work come up, no agency is in charge of look­ing into com­plaints, said defense attor­ney Gary Gibson, a senior offi­cial with the San Diego County pub­lic defender’s office.

“If we are see­ing a repeated prob­lem, we take it to the DA (dis­trict attorney’s office),” Gibson said. “We bring our prob­lems on an infor­mal basis, and over­whelm­ingly the prob­lem is resolved by the DA.”

Another prob­lem noted in the National Academy of Sciences report is that crime labs are often part of the law enforce­ment agen­cies, as opposed to inde­pen­dent agen­cies. The impli­ca­tion is that the pos­si­bil­ity exists for bias, no mat­ter how unin­ten­tional, toward the prosecution.

Brooks, of the Innocence Project, called it “one of the most frus­trat­ing things about being a defense attorney.”

“The struc­ture is wrong,” he said. “You put a crime lab with one side of the investigation.”

The Sheriff’s Department runs its own crime lab, though it sends some evi­dence —- about 7,500 blood and urine tests a year —- to pri­vate labs for testing.

In-house at the sheriff’s lab last year, the five ana­lysts in the con­trolled sub­stances analy­sis sec­tion reviewed about 7,500 pieces of evi­dence, includ­ing pow­ders, tablets, liq­uids and the like.

Local police can send evi­dence to the sheriff’s lab. The Oceanside Police Department sends much of the phys­i­cal evi­dence from crime scenes to the sheriff’s lab for test­ing. Carlsbad’s Police Department sends some evi­dence there, but also has an in-house unit that han­dles fin­ger­print analy­sis and other areas.

Sheriff Bill Gore said his depart­ment “couldn’t dis­agree more” with the National Academy of Sciences rec­om­men­da­tion to divorce labs from law enforcement.

“To imply that lab­o­ra­to­ries oper­ated by law enforce­ment agen­cies are pre­dis­posed to seek out­comes that are any­thing other than true and objec­tive is a dis­ser­vice to the men and women who per­form this impor­tant func­tion through­out the coun­try,” he said.

Sheriff’s spokes­woman Jan Caldwell said the sheriff’s lab “has a num­ber of inter­nal pro­ce­dures to assure qual­ity in the laboratory.”

Among them, she said in an e-mail, are tech­ni­cal and admin­is­tra­tive reviews of reports, reviews of pro­ce­dures, inter­nal audits, and pro­fi­ciency test­ing of ana­lysts. Courtroom tes­ti­mony by lab work­ers also is mon­i­tored, she said.

Innocent errors

The sheriff’s lab is accred­ited by an orga­ni­za­tion known as the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, or ASCLD/LAB.

The pri­vate, non­profit body has given its tough-to-get seal of approval to the country’s pre­mier crime labs, includ­ing those run by the FBI, the Drug Enforcement Administration and the Secret Service.

Ralph Keaton is the exec­u­tive direc­tor of the accred­it­ing orga­ni­za­tion, and he said labs that get its approval are held to a very high stan­dard, and must have checks and bal­ances in place.

And, he said, labs with the ASCLD/LAB accred­i­ta­tion are expected to take imme­di­ate cor­rec­tive action when mis­takes are uncovered.

“It is a mat­ter of pub­lic trust,” Keaton said. “The labs really are the final say in a lot of decision-making in the court­room. … The accused and the accusers really are at the mercy of good science.”

And even the best labs can make mis­takes. The Armed Forces Institute of Pathology landed at the cen­ter of the high-profile case of Cynthia Sommer, a widow con­victed in 2007 of poi­son­ing her Marine hus­band, who was based at Miramar when he died in 2002.

Sommer’s attor­ney, Allen Bloom, said the mil­i­tary lab was wrong when it found arsenic in Todd Sommer’s organs. Later test­ing, at a dif­fer­ent lab, revealed no arsenic. Prosecutors dropped the charges, and Cynthia Sommer was freed after spend­ing more than two years in jail.

Bloom said “the real scary sit­u­a­tion” comes when lab work­ers try­ing to do the right thing make blunders.

Innocent errors “are among the great­est sys­temic prob­lems in wrong­ful con­vic­tions,” Bloom said.

The Innocence Project’s Brooks said jurors might rely too heav­ily on foren­sic findings.

“Jurors are just so eas­ily manip­u­lated,” Brooks said. “In this ‘CSI’ age, as soon as there is some sci­ence involved, they are daz­zled. … There is always going to be human error as long as humans are involved.”

Just to help clar­ify the “bias” police depart­ments and pros­e­cu­tors seem to get all up in arms about. No one, well at least I’m not, say­ing that foren­sic lab staff tai­lor their results in such a way as to help the pros­e­cu­tion. I mean we see it hap­pen, we see tes­ti­mony given in a man­ner that is par­tial to the pros­e­cu­tion with the occa­sional ana­lyst, but all in all, it’s the excep­tion to the rule. Untill you elim­i­nate humans from the crime lab, the excep­tions to the rules are always going to happen.

The insti­tu­tional bias we need to be aware of, and what we are try­ing to elim­i­nate by remov­ing crime labs from police and pros­e­cut­ing agen­cies is the way evi­dence is pre­sented to the lab, and what ques­tions the lab is asked. What the gen­eral pub­lic (based on TV) think crime labs do, is go out into the field, col­lect the evi­dence, and then fig­ure out “who­dun­nit”. What actu­ally hap­pens is dif­fer­ent. Evidence is col­lected, maybe by lab staff, maybe by offi­cers, taken and stored in a prop­erty room. Later a case agent (offi­cer) or a pros­e­cut­ing attor­ney, decide what evi­dence they want ana­lyzed. They then sub­mit a request for analy­sis and a list of items to be looked at.

These are not all the things asso­ci­ated with the case. The request is writ­ten in a man­ner to help the inves­ti­ga­tor tie the sub­ject to the crime, RATHER than deter­mine “who­dun­nit”. The dif­fer­ence is sub­tle, but sig­nif­i­cant. In the “who­dun­nit” sce­nario, the lab has the free­dom to fully inves­ti­gate all items of inter­est in the case. In the “tie the sub­ject to the crime” sce­nario, the lab is basi­cally work­ing with blind­ers on, not fully aware of many aspects of the case, and are work­ing to prove the state’s (police or pros­e­cu­tor) theory.