April 2004, Page 6

Forensic Crime Labs: Scrutinizing Results, Audits & Accreditation-- Part I
By Frederic Whitehurst

Reported failures within forensic crime labs leads us to question why. The U.S. justice system’s addressing questions of guilt and innocence through discovery in an adversarial process should theoretically act as the quality assurance/quality control mechanism for forensic crime laboratories. However that QA/QC process has been found to have failed across the nation. This article, a primer for the bar, will attempt to provide some guidance toward a fairer review of forensic science. We begin with examples of recent forensic failures to create the awareness that was born in the British Royal Courts of Justice in the Court of Appeal, Criminal Division in the matter Regina v. Judith Theresa Ward. Lord Justices Glidewell, Nolan and Steyn on June 4, 1992 opined that, “For the future is it important to consider why scientists acted as they did. For lawyers, jurors and judges a forensic scientist conjures up the image of a man in a white coat working in a laboratory, approaching his task with cold neutrality, and dedicated only to the pursuit of scientific truth. It is a somber thought that the reality is sometimes different. Forensic scientists may be partisan.” And they may also make mistakes. We will then go on to offer a model of discovery of materials which are necessary for a forensic scientist to review to render an opinion as to the validity of work product of a fellow forensic scientist.

We begin with examples of forensic failure with recent revelations.
A March 19, 20031 story in the Houston Chronicle “Feds May Cut HPD Access to DNA Database,” announces that the “FBI may terminate the Houston Police Department’s (HPD) access to its national DNA database by the end of the week depending upon the outcome of a federal review of the growing controversy that has enveloped the HPD crime laboratory.... Those problems uncovered in an independent audit of the lab include untrained staff, shoddy science and a leaky roof, and have possibly compromised the integrity of evidence used during criminal trials. Last week, 21-year-old Josiah Sutton of Houston was released from prison after retesting of the evidence used to convict him of rape found that HPD’s analysis was flawed.” DNA analyses, accepted as positive evidence of guilt had been flawed without anyone realizing it for a number of years — anyone except innocent though convicted victims of the flaws. Significantly the article quotes the FBI Laboratory’s Forensic Science System Chief, John Behun, in Quantico, VA as not being able to explain how the HPD lab had access to the FBI’s national DNA database in the past without meeting the federal operational standards. One must wonder what other outside laboratories have access to alter the national DNA data base without any oversight.

And Rod Ohira of the Honolulu Star Bulletin authored a September 9, 2000 article2 which interestingly brings to light problems with another “HPD” crime lab, this time the Honolulu Police Department’s DNA Serology Unit. The article notes that, “A Florida-based organization will conduct an independent audit of the Honolulu Police Department’s DNA Serology Unit amid recent allegations of procedural impropriety.” We begin to ask if we can trust any DNA results originating from a police crime lab.

Our concerns turn to other disciplines as we review the December 15, 2002 article3 posted on CNN’s Web site concerning the exoneration of Jimmy Ray Bromgard. According to the article Bromgard sat in prison for 15 years for committing a rape of an 8-year-old. His conviction was based on the testimony of the former director of the Montana State Crime Lab, Arnold Melnikoff. Melnikoff, a 19-year veteran of Montana’s state crime lab, had testified that hairs recovered from the victim’s bedroom matched “characteristics” of Bromgard’s hair and that there “was less than a 1-in-10,000 chance that hairs found in the girl’s bedroom came from someone other than Bromgard.” This testimony was given despite the fact that there is no scientific literature that supports that opinion according to Walter Rowe, a professor of forensic science at George Washington University.

If we go back in time to 1997 we find an article “When a Lab Gets It Wrong” in The Washington Post.4 “Authorities were confident that they had the right suspect, however...” begins to sound like a repeat song. Robin McLaughlin of the Virginia State Crime Lab committed a “monumental error with enormous implications” according to the article. Karl Roush, a 44-year old itinerant house painter was wrongly charged with murder and abduction with intent to defile based on a fibers analysis. The article asks “How could Virginia’s Division of Forensic Science assert that several types of fibers incriminated Mr. Roush in Miss Silva’s death when in fact none did?” The errors were not found until an independent fibers analyst re-analyzed the same fibers. That analyst immediately detected significant microscopically visible differences between fibers which the Virginia crime lab had matched. Why?

The Chicago Tribune5 on January 14, 2001 reports, “A supervisor at the Illinois State Police crime lab gave false testimony in nine cases, including trials that resulted in wrongful rape convictions of three Chicago men, according to an analysis by a leading forensic expert for a lawsuit against the City of Chicago.” And on January 15,2001, The Chicago Tribune6 went on to reveal a report by the “former director of the New York City police laboratory ...   describes the Chicago lab as disorganized, poorly supervised, almost completely lacking in written procedures and performance standards, and staffed by inadequately trained workers.” Why?

The Cleveland, Ohio paper, The Plain Dealer, reports August 18, 20007 on testimony by a crime lab analyst in the Ohio State crime lab in which the analyst stated that “the state lab rarely analyzes trace evidence it gets from police and does not fully disclose the evidence it has.” The analyst, Dale Laux, “testified he took samples of trace evidence from the alleged rape victim’s clothes in December, but never told police or prosecutors. He said this was because of a standing policy. Laux also testified August 10 that he found a hair on the woman’s bra that was never analyzed.” Why?
The Washington Post reports another problem with a local crime lab on November 23, 1999.8 A crime lab analyst, Kelly Campbell, had reported that the director of the Prince George’s County, Maryland crime lab was altering the parameters in mass spectrometers used to analyze drugs without notifying analysts in the lab.9 Once Campbell reported the issues an investigation resulted in drug cases being dropped and Campbell being fired. Why?

Interestingly, flawed drug analysis has not been limited to state and local crime labs. We see that in the July 19, 1996 Dallas Morning News article, “Hundreds of drug cases may be in jeopardy”10 which describes the flawed work product of veteran DEA chemist Anne Castillo. The article notes that “Veteran DEA chemist Anne Castillo was suspended last month after reportedly being confronted and acknowledging that she had been filing false reports since February of this year.” Howard Schlesinger, director of the DEA laboratory in Dallas told reporters, “If you’re talking about what happened since February, it’s hundreds of cases, but she’s been an employee here for many years and we don’t know the possible extent. No one knows what happened before.” Apparently poor record management existed in that DEA forensic lab ... a convenient means of ignoring the fate of the wrongfully convicted. Why?

Lest the reader should suspect that media coverage is the only suggestion of failure in crime labs, we are referred to government and academic descriptions of these issues. For instance, in 1997 the United States Department of Justice Inspector General’s Office, upon the completion of a lengthy investigation of problems within the FBI crime lab,11 found the following problems within that lab: scientifically flawed testimony, inaccurate testimony, testimony beyond the examiner’s expertise, improper preparation of laboratory reports, insufficient documentation of test results, scientifically flawed reports, inadequate record management and retention systems, failures by management to resolve serious and credible allegations of incompetence, and a flawed staffing structure of a unit in the crime lab.

The premier forensic crime lab in the world had failed to police itself and  place proper quality assurance/quality control procedures in place. And despite the efforts made by the FBI Lab to put quality assurance measures in place, we find that again the FBI Lab has failed in its efforts. A recent Associated Press article12 by John Solomon mentions that over 3000 cases have been identified by the Justice Department as possibly having been affected by the poor work product of the 13 individuals whose work the US DOJ IG investigated before issuing its 1997 report. But the same article goes on to describe a FBI DNA technician’s having failed to follow proper scientific procedures when analyzing DNA in at least 103 cases over the past few years. The article also points to the recent indictment in Kentucky of an FBI Lab bullet lead analyst, Kathleen Lundy, on a charge of knowingly giving false testimony in a 2002 pretrial hearing of a man accused of murdering a University of Kentucky football player.

In a February 28, 2003 appellate opinion in the matter William Sybers v. Florida,13 the court found that, “We conclude that the state has failed to carry its burden of establishing by ‘independent and impartial proof’ that the testing procedures used are generally accepted in the relevant scientific community. The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and LeBeau [the FBI’s chief chemist], each of whom either had a personal stake in the procedure or was prone to potential institutional bias. Such assertions are not, alone, sufficient.” Most importantly the court noted that, “No scientific literature has been cited by the parties, or uncovered by our independent research, which addresses similar testing procedures for succinylmonocholine in embalmed tissues, especially tissues that are many years old.” The FBI simply went forward with an unvalidated testing protocol, unable to show the court that opinions rendered were indeed valid. Why?

The problems with flawed forensic science are coming to be widely recognized in the profession. Barry A. J. Fisher, in his recent book Techniques of Crime Scene Investigation14 notes in his introduction “the following situations, unfortunately, refer to actual incidents:

• Planting evidence at a crime scene to point to a defendant
• Collecting evidence without a warrant by claiming exigent circumstances
• Falsifying laboratory examinations to enhance the prosecution’s case
• Ignoring evidence at a crime scene which might exonerate a suspect or be a mitigating factor
• Reporting on forensic tests not actually done out of a misguided belief that the tests are unnecessary
• Fabricating scientific opinions based on invalid interpretations of tests or evidence to assist the prosecution
• Examining physical evidence when not qualified to do so
• Extending expertise beyond one’s knowledge
• Using unproved methodologies
• Overstating an expert opinion by using ‘terms of art’ unfamiliar to juries
• Failing to report a colleague, superior, or subordinate who engages in any of the previously listed activities to the proper authorities.

That Fisher would openly discuss these issues is significant. Fisher is the Crime Laboratory Director of the Los Angeles County Sheriff’s Department, Los Angeles, California, Adjunct Professor, Department of Criminal Justice, California State University, Los Angeles, and past president of the American Academy of Forensic Science, past chairman of the American Society of Crime Laboratory Directors, and past president of the International Association of Forensic Sciences.
Some have suggested a need for independent crime laboratories in open discussions of flawed forensics. Northwestern University’s School of Law Seminar Task Force Report, The Status of the Death Penalty in Illinois, as of January 13, 2003,15 describes the March 9, 2000 appointment by Illinois Governor Ryan of members to the Commission on Capital Punishment. “The first specific recommendation offered by the Committee in this chapter proposes the establishment of an independent state forensic laboratory, operated by civilian personnel, with its own budget, separate from any police agency or supervision.” This solution will simply hide the problems of forensic fraud under another agency’s wing. There can be no doubt that some independent crime labs will surely go the way of some independent environmental labs with the flawed science among those labs described in a January 22, 2003 Associated Press article16 entitled “Private labs fake environmental experiments, jeopardize enforcement.”.

Randolph N. Jonakait,17 in an exhaustive review of perceived issues within forensic science laboratories, describes a regulatory system that has produced better quality in clinical labs and shows how similar regulations would improve forensic laboratories. The reader realizes from Jonakait’s presentation that real problems within forensic crime labs have been recognized for at least 30 years and yet there seems to be no real move toward fixing those problems.
There is widespread recognition of problems within forensic crime labs and yet no action taken. This is confusing in light of the legal profession’s in-depth review of other aspects of the work product of criminal investigators. For instance let us consider a search and seizure incident. We hypothesize a group of law enforcement officers breaking down the front door of a house, rushing in to apprehend the inhabitants, searching virtually every surface, closet, drawer, under every bed, behind every wall if necessary and finding, among other things, white powder. As attorneys we immediately begin to ask Fourth Amendment questions. Was the search by a government agency? Did the search violate reasonable expectations of privacy? Did the law enforcement officers have a warrant? If they did not have a warrant then was the search valid under the warrantless search exceptions? These questions come to mind almost intuitively. We learned them in first year law school classes and carry them about effortlessly.

Of what use are the search and seizure questions if the white powder seized is flour or sugar or salt or gypsum from the wall boards or soap or any of a myriad of other white powders that exist in our lives and which are not illegal to possess? Why do we bother to go through the whole issue of the legality of the search if no contraband was found? Your immediate response is that the laboratory results are positive for the presence of substance X.

Does it not seem strange to the reader that we are willing to question law enforcement officers concerning every single detail of their search and seizure when those law enforcement officers are wearing the gun, badge and uniform. And yet if we dress those same officers in a white lab coat and station them in a crime lab then we assume their work product is correct. We do not question them at all. We too often accept their work product as valid. How would we go about questioning lab work product as closely as we question the acquisition of the analyte submitted to the analytical chemistry lab. We know that if any one of the search and seizure questions, any link in the chain, results in revelations of mistakes or unlawful activity on the part of law enforcement, we may very well see an acquittal.

By the same token, if any link in the lab chain is flawed, we may be able to show that the government has not carried the burden of proof that the evidence analyzed is contraband or whatever it alleges it to be.There are simple questions that need to be asked which are easily understood and easily analogized to the questions one would ask of a witness who had searched a residence and seized suspected contraband. But where would one get the answers? Let’s be more specific and go through these questions one by one.

Understand that just as an attorney might be accused of ineffectiveness of counsel for failing to address Fourth Amendment issues, so a scientist asked to review the work of another scientist might also be accused of ineffectiveness/lack of professionalism for not asking for and reviewing all the items needed in discovery which are listed below. We will use as an example that white powder in our hypothesis above. The crime lab analyst will invariably have received along with the evidence a communication from a field agent which will describe what the material is suspected of being. We need to know what happens to that evidence from the time it is collected until an opinion is rendered by the forensic scientist who handles it. And so we ask for and must receive the following items in discovery:18

1. Evidence collection forms or logs (description of evidence, packaging, identification of specimens, identification of individuals collecting samples, sample collection procedures).

If we think about this it becomes obvious that very often those individuals who have acquired the samples in the field are not trained scientists, have no forensic training at all, and very seldom are even college educated individuals. Police officers who have not received forensic training can contaminate evidence, package it improperly, not preserve it in an appropriate environment, essentially make more mistakes than we can imagine.

An old analytical chemistry text, A Brief Introduction to Quantitative Chemical Analysis by Robert Fischer and Dennis Peters19 notes that, “In practical situations, however, obtaining a sample suitable for analysis is often a source of major difficulty and frequently limits the validity of the final result. The analytical chemist must be very concerned about the origin of his samples and, insofar as is possible, should exercise some control over how samples are obtained.” But the modern forensic crime lab chemist has little if any control over how samples are collected, stored, packaged, and transported to his location. A scientist who is reviewing scientific work product for counsel must know everything about the collection, preservation, transportation and handling of the evidence before the evidence was ever analyzed in the crime lab.

2. Chain-of-custody records (field-to-lab transfers, and all transfers of evidence and associated analytical samples within the laboratory).

There are situations in which the evidence presented in court as relevant to a finding of guilt or innocence was not that actually retrieved from any person or place associated with the trial at hand. For instance, an April 16, 1997 article in The Wall Street Journal20 describes a mix up with evidence that when detected saved Jay William Buckley from a death chamber. “On May 21, 1991,...[FBI Special Agent Mike Malone] testified in a case that would call his credibility into question more sharply than any previous trial. The Warren County, PA case involved the 1988 murder of a 33-year-old woman, Kathy Wilson. The defendant, Jay William Buckley, had been accused by an alleged accomplice. Hair evidence was sent to the New York State Police Crime Laboratory for evaluation because Wilson was from upstate New York.
Cathryn Oakes, the examiner there, reported that she was unable to conclude that any of the hair belonged to Buckley. Lacking fingerprints or other physical evidence, District Attorney Joseph Massa Jr., says he decided to call upon the FBI’s top hair-and-fiber man, Malone, to lend his expertise.

At first, the May 1991 trial went badly for the prosecution, with the alleged accomplice admitting hundreds of times that he had lied or changed his story. But Malone seemed to turn the tide. In two days of testimony, he tried hard to link Buckley to the murder. At one point, Malone said he believed there was a ‘very,very strong possibility’ that hair in Wilson’s van came from Buckley, who police had said was driving the vehicle. In a devastating blow to the defense, he further testified that a hair he believed was Wilson’s was found on a white blanket in the van belonging to Buckley’s alleged accomplice. In contrast, Oakes, the New York State examiner, had found what she termed ‘unacceptable dissimilarities’ between the victim’s hair and the hair in the van.

There was good reason for Oakes’s conclusion: It turned out that the evidence had been mislabeled and that Malone had actually tested a plain white blanket belonging to Buckley that had never been anywhere near the crime scene.”
Had defense counsel not questioned the chain of custody in that matter Buckley would most likely be dead today.

3. Laboratory receiving records (records documenting the date, time and condition of receipt of the evidence in question; laboratory-assigned identifiers; storage location).

As a forensic scientist in the 1980s and 1990s while working in the FBI crime lab, the author on many occasions was forced to return evidence to contributors due to leaking containers, improper packaging, and cross-contamination. Forensic lab technicians who document evidence which must be returned due to improper packaging may find the same evidence re-shipped to them later repackaged with no concern about possible contamination during the first shipment.

Evidence is most often received with an incoming communication from the contributing agency. Reviewing those communications can be very revealing in ferreting out bias. For instance, in a March 7, 1986 letter21 from Lieutenant Charles H. Vaughan, Crime Laboratory Director of the Oregon State Police Crime Detection Laboratory to Dr. Terry Rudolph of the Federal Bureau of Investigation, Lieutenant Vaughan requests an examination of material he had previously determined to be smokeless powder. The letter ends:
“Time is of the essence now because of a lawsuit one of the suspects is bringing against the police department for false arrest.
“I would appreciate any help you can give.”

The contents of this communication speak for themselves. Sadly the bias imported into the forensic scientific work product directly led to the imprisonment of two individuals who were proven eight years later to be absolutely innocent of the crime of homicide for which they were charged, tried, convicted and sentenced. Not until the actual perpetrator admitted guilt were the two defendants set free. The state of Oregon admitted wrong doing and awarded them each one million dollars in damages in a subsequent civil suit.
 
4. Laboratory procedures for subsampling (collection of analytical aliquots) and contamination control.

If an examiner renders an opinion concerning the identity of a quantity of material of which he analyzed only a small part, he must be prepared to defend why he believes that the material analyzed is representative of the total. Alan Julian Izenman, in his article “Statistical and Legal Aspects of the Forensic Study of Illicit Drugs 22”quoting Young, notes:

The quantity of drugs may reflect significant facts about the defendant. It may demonstrate an individual’s high level of trust within the drug distribution network. It may reflect how long he has been involved. It may correlate with the amount of money the offender may earn from the crime. A prosecutor’s traditional allocution at the sentencing of a drug distributor with a large quantity of drugs who had no prior record is ‘He may not have any prior arrests your honor, but the quantity of drugs alone suggests that he is no novice to drug dealing.23

Where sentencing addresses quantity of drugs present, the sub-sampling procedure for analysis of small portions of a total amount of the total material must be justified.
 
5. Copies of technical procedures in effect at the time the subject testing was performed (often termed Standard Operating Proce-dures, or SOP’s) for each procedure used during sample screening and confirmation, including; sample preparation, sample analysis, data reporting, and instrument operation.

Testing laboratory procedures/ protocols are very specific. Each step of a protocol is spelled out completely. For instance for a laboratory to simply note that in an analysis a mass spectrometer is utilized gives the reviewer nothing to work with. The mass spectrometer, though simple in theory, is a complex instrument. In order to properly utilize it to analyze chemicals one must be sure not only that it is functioning correctly but that all the parameters are set at valid values established by validation studies. In other words, all the buttons and knobs need to be set right. When the instrument is functioning correctly for the analysis at hand, there will be a readout of all the parameters. A reviewer needs those printouts to determine if the analysis is being conducted correctly. And parameters which are correct for one type of analysis may not be correct for another.

Forensic labs very often are constrained to use one or two mass spectrometers for a number of different types of analyses. One technician may set the instrument correctly to analyze for the presence of cocaine and the next technician not change the parameters correctly to analyze for the presence of alcohol.

We have an example of improper settings being used on a mass spectrometer in the example given above concerning the Prince George’s County, Maryland drug crime lab. Kelly Campbell, a chemist in that lab, advised the author that her boss was changing parameters on the mass spectrometers at night without anyone knowing about the changes. When analyses are complex requiring a variety of analytical instruments, the complexity requires indepth review of all instrumental parameters as well as comparison to established procedures found in the scientific literature. If at the end of the review one finds that instrument settings are different from those which the crime lab itself notes are necessary for a valid work product, then counsel can point to the crime lab’s own standards as proof of reasonable doubt.
 
6. Copies of the two bracketing controlled substance proficiency results for each analyst and technician responsible for preparation or analysis of subject specimens, including: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence.

To determine if an examiner is conducting analyses correctly, that examiner is tested. Most crime labs test using internal proficiency exams. A more proper method of testing is through the use of external proficiency tests where results are not reviewed by anyone associated with the crime lab. Invariably the FBI Lab will advise that all their examiners pass 100 percent of their proficiency exams.

However an incident was reported by Supervisory Special Agent Greg Parsons to the U.S. DOJ Inspector General during his investigation of the FBI crime lab where Parsons described a proficiency exam taken and failed by all the examiners in Parsons’ unit at the lab. Parsons advised that when he brought this to the attention of management the exam’s results were destroyed and the exam was taken again.24 The author personally failed two proficiency exams as an examiner in the FBI crime lab. There is no record of those failures. Counsel must ask for the results of the proficiency exams given in order to see if examiners are properly tested to determine if they can do their jobs correctly.
 
7. Copies of traceability documentation for standards and reference materials used during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials, certifications or traceability records from suppliers, assigned shelf lives and storage conditions.

Chemical analytical instruments do not “tell the scientist the answer.” The instruments simply provide data from which the analyst must infer the presence of particular analytes. The data from these tests must be compared to data from the analysis of known materials or standards. How is it that we “know” the identity of the standards? Laboratories most often acquire standards from commercial sources which have gone to a great deal of trouble to analyze the material fully to determine specifically what the materials are. The crime lab that “identifies” a material must be able to justify that identification through comparison with a standard or data acquired from a known standard. Simply observing data and offering an opinion concerning the identity of a material is not good enough for science. The opinion must be based on something other than “my vast experience in analyzing these types of materials.”

Standards come with records of purity and traceability data. A scientist must be able to say that he has compared the data from an unknown with the data from a standard from a known source which the scientist can trace back to its origin and purity determination.

The scientist must also be concerned when using standards that the standards themselves have not decomposed. In other words, what is the shelf life of the standard recommended by the producer of the standard. That shelf life will depend upon storage conditions such as temperature and exposure to light and moisture.
 
8. Sample preparation records, including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, extract volume.

Let us hypothesize that we are called to make a nitrate solution in water using potassium nitrate. How did we prepare that solution? When did we prepare that solution? Who prepared that solution? What is the original concentration? Was the water pure? How do we know the nitrate is pure, really potassium nitrate? How do we know the origin of the material? Referring to the certificate of analysis on a bottle of a Fisher Certified Reagent grade potassium nitrate found at the FBI crime lab in 1997 we see a lot number 745536 and a description of purity. The lot number allows us to trace the material back to its origin. The impurities listed below allow us to understand very well what other materials are present in our standard. We see on the documentation that accompanies the bottle:

“Component Guaranteed Composition wt %
Fe (iron) .0001%
Heavy metals (as lead) .0001%
SO4 (sulfate) .001%
Na (sodium) .005%
Insoluble matter .001%
Cl (Chorine total) .002%
PO4 (phosphate) .0001%
Ca + Mg .002%”

If we detect phosphate or sodium or calcium or magnesium during our analyses we know that these may have originated from the reagent grade potassium nitrate we used to make the solution. Because nitrate is an oxidizing material, the solution may have a short shelf life and need to be stored in a cool environment. There are so many questions which one must ask about preparing for an analysis before one can determine if the opinions rendered from the data are valid.
 
9. Copies of bench notes, log books, and any other records pertaining to case samples or instruments; records documenting observations, notations, or measurements regarding case testing.

In this author’s experience as a forensic consultant, this is one of the weakest areas in trial preparation where review is required of a forensic scientist. Generally crime labs provide one-liner reports, short, to the point, and hiding all the data. There is nothing for the reviewing scientist to review. In a post-conviction review, the forensic scientist with only the lab report with none of the supporting data must say to counsel that there is essentially nothing he can do. All of the items here are needed for a thorough review but counsel must at least start with the items in this item. Let us choose as an example of a one-liner report to review:

“Data from instrumental analysis of paint specimens Q3 and K1 is consistent with both of these paint specimens having originated from the same source.”

Forensic paint analysis can involve the use of x-ray powder diffractometry, Fourier transform infrared spectroscopy, Raman spectroscopy, scanning electron microscopy in conjunction with energy dispersive x-ray analysis, pyrolysis/gas chromatography mass spectrometry, ultraviolet/visible microspectrophotometry, optical microscopy and chemical spot tests. All of these tests are complex. Each instrument must be set correctly, functioning correctly, in good repair, not contaminated, and operated by competent scientists. The analyses must at times follow in a valid sequence or data will be lost. Every aspect of this analysis must be reviewed or one cannot opine that the one-liner report above gives a valid interpretation of the data. Any scientist reviewing the work product would need this information.
 
10. Instrument run log with identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift with subject samples (as appropriate: run sequence, origins, times of analysis and aborted run sequences).

Instruments in forensic crime labs are seldom, if ever, dedicated to one task. Crime labs are generally severely underfunded, understaffed and underequipped. A mass spectrometer that is used for drug analysis today may be used for explosives or paint analysis tomorrow. Parameters are changed and rechanged. Different operators sit before the instruments and can make mistakes that the next operator will not detect. An instrument may be contaminated by the previous operator analyzing for the presence of cocaine and the technician who analyzed evidence in your case may detect cocaine but that cocaine was actually from the previous case. If blanks, pure solvent without analyte, are not analyzed between samples, contamination of the instrument could lead to flawed results.

11. Record of instrument operating conditions and criteria for variables, including as appropriate: Gas chromatograph column, instrument file identification, tuning criteria, instrument performance check (e.g ion abundance criteria), initial calibration, continuing calibration checks, calibration verification.

The scientific literature may describe a valid analytical scheme that the crime lab professes to utilize when in fact analytical instrumental parameters are actually different, gas chromatographic columns are different, tuning criteria and instrument performance checks are ignored, and there is no proper calibration. An examiner who testifies that “The white powder was analyzed with a gas chromato-graph/mass spectrometer” should not be scaring off counsel but opening the door to extensive examination of the exact protocol/parameters set on the instrument. Temperatures set too high or too low, the wrong gas chromatographic column, electrons at the wrong energy level to properly break up analytes, and a myriad of other parameters can be make-or-break issues in the carrying of the burden of proof that a material is what it is purported to be.

12. Record of instrument maintenance status and activities for instruments used in subject testing, documenting routine and as-needed maintenance activities in the weeks surrounding subject testing.

Is that instrument broken? How do you know? In a 2001 trial in Pitt County, North Carolina, Dr. Richard Waggoner of the North Carolina State Bureau of Investigation crime lab, when asked on December 10, 2001 if the instrument used in the analysis of suspected cocaine was in good state of repair answered as follows:25

“Q. So then, you do not know of your own personal knowledge, and it’s not reflected in what you have, which instrument was used?
A. No, Sir. It does not list that.
Q. Sir, are you able to say whether or not that particular instrument that was used in this case has ever required any repair?
A. I am not familiar with the maintenance record of that instrument, sir.
Q. Are those available?
A. They are in the laboratory. Yes, sir.
Q. Did you bring them with you?
A. No, sir, I did not.
Q. But they are available to you?
A. They’re available to my supervisor. I’ve not seen any of them myself.
Q. To your knowledge, have any of these instruments required repair?
A. They have in the past. Yes, sir.
Q. Do you know if this particular machine has required a repair?
A. No, sir, I do not.”

Dr. Waggoner is fully aware that in order to know if the data is valid from an instrument he must know if that instrument is functioning correctly. According to his testimony he did not conduct the analyses himself, did not watch the analyses being conducted and when he reviewed the work product of a colleague in order to determine if the work product was valid, he did not even know if the instrument used was functioning correctly. But a one liner report was written and presented in court.
Notes
1. Steve McVicker, Feds May Cut HPD Access to DNA Database, Houston Chronicle, March 19, 2003.
2. Rod Ohira, FBI Tip Prompts Audit of HPD Serology Lab, Star Bulletin, September 9, 2000.
3. Scientist’s Cases under Review After DNA Clears Man, CNN.com, December 15, 2002.
4. When a Lab Gets It Wrong, The Washington Post, June 15, 1997.
5. Steve Mills and Maurice Possley, State Crime Lab Fraud Charged, Chicago Tribune, January 14, 2001.
6. Maurice Possley and Steve Mills, Crime Lab Disorganized, Report Says, Chicago Tribune, January 15, 2001.
7. James Ewinger, Lab Practices Questioned, The Plain Dealer, August 18, 2000.
8. Ruben Castaneda,
Drug Case Dropped After Ruling on Lab, The Washington Post, November 23, 1999.
9. Personal communication between author and Kelly Campbell.
10. Hundreds of Drug Cases May Be in Jeopardy, Dallas Morning News, July 19, 1996.
11. U.S. Department of Justice, Office of the Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, April 1997.
12. John Solomon, FBI Lab Problems, New Allegations Target DNA, Bullet Analysis at FBI Lab, Associated Press, April 15, 2003.
13. Sybers v. Florida, 2003 WL 553581 (Fla.App. 1 Dist.)
14. Barry A.J. Fisher, Techniques of Crime Scene Investigation, Sixth Edition, CRC Press (2002).
15. Leigh B. Bienen, Esq., The Status of the Death Penalty in Illinois, as of January 13, 2003, Northwestern University School of Law Seminar Task Force Report, Northwestern University.
16. Fed: Private Labs Fake Environmental Experiments, Jeopardize Enforcement, Associated Press, January 22, 2003.
17. Randolph N. Jonakait, Forensic Science: The Need for Regulation, Harvard Journal of Law and Technology, V. 4, Spring Issue, 1991.
18. This list of discovery items was provided by Janine Arvizu, President and Senior Technical Consultant, of Consolidated Technical Services, Inc., 161 Kuhn Drive, Tijeras, NM 87059, (505) 281-1130. Mrs. Arvizu is a testing laboratory auditor involved in auditing forensic testing laboratory work product in individual criminal cases. She has thus far been denied all but very limited access to forensic crime labs.
19. Robert B. Fischer and Dennis G. Peters, A Brief Introduction To Quantitative Chemical Analysis, W. B. Saunders Company, 1969.
20. Laurie Cohen, FBI Agent’s Lab Work Is an Issue in MacDonald Case, Wall Street Journal, April 16, 1997.
21. A copy of this letter was received by the author pursuant to a request under the U.S. Freedom of Information Act from the Federal Bureau of Investigation.
22. Alan Julian Izenman, Statistical and Legal Aspects of the Forensic Study of Illicit Drugs, Statistical Science, Vol. 16, (2001).
23. Young, D., Rethinking the Commission’s Drug Guidelines: Courier Cases Where Quantity Overstates Culpability. Federal Sentencing Reporter, Vol. 3
24. Work product from the US DOJ IG investigation of the FBI crime lab was acquired by the author and contains transcripts of interviews and investigative notes among which this information was found. All of this work product has been scanned into computer format and is available from the author to anyone who has an interest.
25. NC. v. Marcus Lamont Carmon, Pitt County, Superior Court, 01CRS54675 transcript of cross examination of Richard Waggoner by Attorney David Sutton of Greenville, NC.
26. James W. Shellow, The End of a Confidence Game, A Possible Defense to the Impossible Drug Prosecution, THE CHAMPION, August/September 2000.
27. Villaneuva v. FBI, Deposition of Maureen J. Bradley, 11/26/01
28.Associated Press, Justice Department Broadens Probe of FBI’s Dna Lab Practices, THE DAILY REFLECTOR, April 28, 2003.
29. James E. Starrs, Mountbanks Among Forensic Scientists, 2 Forensic Science Handbook, 1 (1995).


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org