States Stalled on Probing Lab Problems

Sunday, March 25, 2007 10:10:58 PM

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Tackling critical problems in the nation's justice system, Minnesota, Texas and Virginia have each founded powerful oversight boards in the last two years that can investigate misconduct in crime labs.

But not one of the new boards has yet reopened a case _ either because they have refused to do so or because they haven't been funded.

Those pressing for improvements in forensic work, a foundation of criminal investigations and prosecutions, see the states' unwillingness to act as symbolic of the justice system's overall refusal to dig into its own failings. In their view, it's also an outright failure to follow a 2004 federal law requiring some kind of investigative entity.

"The country has to have trust that we're convicting the guilty and not the innocent," said Texas state Sen. Juan Hinojosa, a Democrat whose bill to create the Texas Forensic Science Commission became law in 2005.

The flaws in his state and elsewhere are "the tip of the iceberg," Hinojosa said. "Prosecutors are supposed to do justice. Instead, they just want notches on their belt. It permeates the whole criminal justice system."

In the past two years, allegations of misconduct have arisen in death penalty cases in Texas and Virginia, including one in which a man was executed.

Virginia's new board, however, has rejected the only two requests for reopened investigations that it has handled, while Texas' commission simply hasn't acted _ hamstrung because the governor never funded the board. He and others took more than a year to appoint all the members.

Minnesota's board held its first meeting just last month _ but it's been given no money to operate, leaving some, including its chairman, wondering how they will effectively pursue wrongdoing.

He and others worry about the public's confidence in the criminal justice system.

Hinojosa's law came after widespread problems at the Houston Crime Lab led to the release of two men from prison, including one who served 17 years for a rape that new tests showed he did not commit. The department's DNA division was shut for three years.

Crime lab problems _ falsified tests, misplaced evidence, scientific mistakes _ have surfaced across the country in recent years, leading to lawsuits and sometimes audits in West Virginia, Montana, Oklahoma, Massachusetts, Ohio and more.

The steady stream of exonerations and scandals has raised doubts about everything from the handling of DNA evidence to overly broad conclusions from hair and blood comparisons. Discredited beliefs about how to determine arson and faulty conclusions from ballistics testing have added to the questions.

An analysis of 86 exonerations found that forensic science testing errors were the second-most common factor, behind only eyewitness errors, according to a 2005 study by Michael J. Saks, a law professor at Arizona State University, and Jonathan J. Koehler, a business professor at the University of Texas.

The 2004 federal Justice for All Act requires that states which accept federal funding to improve DNA testing also ensure there is a government entity able to conduct independent investigations into misconduct. The law spurred the creation of Minnesota's panel; Texas and Virginia lawmakers created their boards after significant problems in their states.

The commissions have offered an unprecedented opportunity to re-examine justice as it is handed down in the nation's courtrooms. Proponents have been hoping they can strengthen trust in the evidence relied on by police, prosecutors and juries. But some have been disappointed.

"It's just one disaster after another involving bad forensic science," said William Thompson, a forensic science expert at the University of California, Irvine. "The states try to respond to these problems by creating these commissions. But ... when people raise questions that might be embarrassing, they just shut it down."

Thompson brought complaints about two cases in Virginia to its Forensic Science Board. One was dismissed without debate because the issue dealt with how forensic evidence was presented to jurors, not the lab work itself.

In the other case, the Virginia board rejected a reinvestigation by a 7-3 vote because an earlier audit commissioned by former Gov. Mark Warner did not find any problems.

"The odds were a reinvestigation would show nothing, nothing helpful," said Marcella Fierro, Virginia's chief medical examiner. Still, she was in the minority who voted in favor of an investigation. "It's a policy of mine _ if someone wants something investigated, go ahead."

The Texas Forensic Science Commission was given a lengthy report last year on mistaken conclusions about arson that led to the conviction and lethal injection of Cameron Todd Willingham for arson-murder in a blaze that killed his three daughters.

The report, by five nationally known fire investigators, compared the investigation to another case that was overturned, arguing that the same flaws that led to one man's exoneration led to another's execution.

"To even get to the point when we can do an investigation, we have to get up and running," said Debbie Benningfield, the commission's chairwoman and a national expert on fingerprints. She wouldn't discuss details of the Willingham case, or say if any other allegations of lab problems have come up.

The lack of action so far has discouraged some advocates for criminal justice reform.

If the commissions were created to build confidence in the labs by ensuring that mistakes get a thorough review, why close the door on any reasonable complaint, they argue.

In New York _ the only state where a commission with the power to investigate lab problems existed prior to 2005 _ three recent problems were referred to another state investigatory board. One involved stolen drug evidence, another a complaint about incompetence, the third an analyst's failure to detect evidence, according to John Hicks, director of the state Office of Forensics Services.

The results of the investigations haven't yet been made public.

Lab directors argue that critics paint with too broad a brush.

"If you look at the number of cases that crime labs do around the country, and then you look at the number they're talking about where something was illegal or immoral or what have you, I think that's a very, very small percentage of the work," said Frank Dolejsi, director of Minnesota's state forensic program and interim chairman of the state's Forensic Laboratory Advisory Board.

Some critics argue that problems with forensic labs are not sporadic but systemic _ a natural result when forensic crime labs are part of local, state and federal criminal justice systems and get subtle pressure to back up police and prosecutors.

"The real problem we're facing is the same as we have from the beginning _ law enforcement agencies have too much control over forensic science," Thompson said, and they're unwilling to look closely at errors. "Prosecutors and law enforcement people don't want to have it. They'd rather not know the answers about why we have these muckups."