Indigent Defense
June 2003, Page 61

Faulty forensic evidence
By Michele Nethercott

The ever-increasing numbers of DNA based exonerations that have occurred over the last decade present a historically unparalleled opportunity to analyze the causes of wrongful convictions. Although the law enforcement community and the courts bear the heaviest responsibility for convictions driven by police and prosecutorial misconduct, a substantial number of these cases involved faulty forensic evidence that should have been exposed and vigorously challenged by the defense. In the overwhelming majority of these innocence cases the defense counsel performance was dismal. This discomforting truth requires action by the defense bar because we cannot simply assume that the problem of bad forensic evidence has been solved by the advent of DNA testing. Whether unreliable scientific evidence is the product of incompetence, malice or indifference there is every reason to believe that it will be with us for the foreseeable future.

Prosecutors have at their disposal a vast array of experts, scientific testing facilities and litigation support that far outstrips anything currently available to the defense bar. The burden of responding to the ever-increasing use of complicated scientific evidence in the courtroom has been imposed disproportionately on public defenders. Very few private attorneys or their clients have the resources required to address the systemic issues presented by the misuse of complicated scientific evidence. Public Defender systems can, in some cases, benefit from the economy of scale as they confront the same scientific issues and experts routinely.

Over the last ten years, a number of Public Defender offices realized that DNA technology was indeed producing “nuclear’ evidence against our clients and was unlike other forms of scientific evidence in its power and complexity. The Maryland Office of the Public Defender (MPD) experimented with a number of ad hoc responses to DNA evidence before finally establishing a formally structured Forensics Unit charged with the responsibility of litigating major cases, providing litigation support to the attorneys dealing with complex scientific evidence and administering an expert budget. There is now widespread support for the existence of a Forensics Unit. That support derives from the relief that most felony attorneys experience at 1) not having the sole responsibility for litigating lengthy, complicated admissibility hearings that require a level of preparation that is virtually impossible to reconcile with the demands of a typical caseload; 2) having a number of experts available to them on a range of topics with a concomitant ability to discuss with other lawyers their experiences with a particular expert; 3) having a ready supply of references and written materials available to them upon request and 4) having access to transcripts of prior testimony of both prosecution and defense experts. From an administrative viewpoint the creation of the unit has assisted with a more rational use of expert resources and an improved ability to track and anticipate these expenses.


Forensic unit

The MPD is a statewide public defender program that provides representation at all phases of a criminal proceeding and juvenile delinquency proceeding including direct appeal and provides representation in state post-conviction proceedings. The office currently employs in excess of 400 lawyers. Two years ago the agency created a Forensics Unit consisting of two lawyers and a support staff position.

One immediate challenge confronting the unit was coping with an onslaught of DNA cases involving multiple private and government laboratories using different testing systems, lab protocols and computer software programs that could potentially affect not only the interpretation of test results but also the very nature of the data given to the defense. Maryland is the home of Cellmark Diagnostics and is in close proximity to the Bode Technology Group in Springfield, Virginia and the Federal Bureau of Investigation.

The Maryland State Police Crime Lab (MSPCL), and a variety of local police departments were also coming on line with DNA testing systems that generated electronic data. Unlike previous forensic DNA technologies the raw data provided in discovery was no longer a copy of an autorad or a photo of a test strip but was instead a computer-generated image of a gel or, in the case of the more common Profile/Cofiler system, an image of an electropherogram. In the case of mitochondrial DNA test results, a software program was essential to analyzing the massive amount of raw sequencing data underlying one test result. Not only were trial attorneys confronted with a geometric increase in the amount of DNA evidence being generated throughout the state, it was now being produced in a format that created new obstacles to obtaining adequate discovery.

The MSPCL initially refused, as did most of the commercial and government labs, to produce the electronic data that contained scans of the original data and were providing in discovery photocopies of edited images. The Hitachi FMBIO system used by MSPCL and other labs utilizes a software program that scans a gel and allows the analyst to delete, add, intensify and deintensify the signal strength of the bands. All of these editing features can allow for a drastic reformulation of the raw data and without access to the electronic files it is impossible to know whether the discovery provided reflects the original image or the edited one. The more common Profiler/Cofiler test also utilizes proprietary software that can affect the results and the interpretation of the data. The MSPCL not only refused to provide the electronic files containing the original data but also their protocol directed analysts to destroy the original images once the editing process had been completed. One of the first tasks of our newly created unit was to argue motions to compel discovery in these cases and to notify all local prosecutors and the Maryland Attorney General that the policy of destroying the original data was in violation of state law and all cases in which the destruction occurred would be subject to motions to dismiss for the intentional destruction of evidence. At the same time our office began the process of acquiring the software to facilitate an independent analysis of the raw data.

The Hitachi Corporation initially refused to sell the software stating that because our agency was not a forensic lab we could abuse the system and make mistakes. After we registered strong complaints to legal counsel for Hitachi they agreed to sell the software at a price that was approximately three times the amount that forensic labs were being charged.


Experts’ dismay

After acquiring the software the two lawyers in our unit spent a great deal of time learning how to operate the various functions of the software and with the assistance of our Information Technology Division we were able to generate vivid visual images of the differences between the raw data and the edited images that the state’s experts were relying on to support their results. This proved very effective with judges and jurors to the dismay of the state’s experts.
The powerful images of matching bands that had heretofore been used almost exclusively by prosecutors to convince the jurors that they could reach the same conclusion about a match with their own eyes began to give way increasingly to images of blurry, visually unconvincing raw data that was manipulated to simulate perfectly matching bands. It was of course much easier for lawyers who had spent hundreds of hours familiarizing themselves with the technical details of the testing process, the validation studies and the computer software to litigate motions relating to the admissibility of this evidence and the adequacy of the discovery than to impose this burden on overworked felony trial attorneys.
Eventually prosecutors began routinely turning over the electronic files in response to a consistent and coordinated defense challenge in that area.

Once the forensic attorneys had become proficient at analyzing the electronic data and the accompanying bench notes, a great deal of money in expert fees was saved by having knowledgeable attorneys review hundreds of pages of discovery and identifying the issues that require expert consultation. After reviewing hundred of cases involving DNA evidence our unit gained experience in helping trial attorneys to focus on putting the DNA evidence in context and formulating trial strategies to deal most effectively with the evidence. The unit was also able to assist our Appellate Division in addressing admissibility issues related to DNA evidence. It is much more efficient to have our unit brief the scientific evidence issues than it is to require the attorneys handling the occasional appeal to spend weeks or months familiarizing themselves with the technical details of hundreds of validation studies and scientific articles.

Having survived the inundation of the new generation of forensic DNA testing, our unit then turned its attention to strengthening our support function with various other types of forensic evidence. We began recruiting additional experts in a variety of fields that previously had few if any experts available to us such as pediatric child abuse experts, forensic pathologists, crime scene reconstructionists and many others. Today we face an ever-increasing number of murder and child abuse prosecutions based on questionable or faulty medical testimony.

Many cases involve the need to present testimony from multiple experts in forensic pathology, pediatric ophthalmology, neurology, and epidemiology in a single case. Not only are these cases incredibly complex but also the cost factor is enormous. Many of the experts in these specialized fields are extremely busy, charge high hourly rates and are not very enthusiastic about enduring the rigors of trial schedules and hostile cross-examinations. Our unit tries as best we can to ensure that these experts are utilized properly, paid promptly and stay on good terms with our agency so we can continue to benefit from our association with them and encourage them to refer other experts to us.

Another aspect of our litigation support is in the formulation of a structured training program that will instill in new lawyers a basic understanding of the forensic issues associated with crime scene investigation and evidence processing. Our experience has been that most young lawyers have received no training in this area in law school and cannot necessarily rely on experienced trial attorneys to have or impart to them this knowledge. The advances in DNA technology and other scientific fields that have taken place in the last ten years require attorneys representing people accused of violent crimes to have some basic understanding of forensic science to provide competent representation.

Impeachment value
Finally, one other critical function that our unit performs is to collect, scan and organize transcripts of expert testimony. This is a time-consuming task that simply will not occur in a large public defender office without dedicated personnel who will monitor trials and stay in contact with lawyers litigating cases that involve the same prosecution experts. It has been our experience that many prosecution experts will contradict themselves repeatedly in the course of several trials as they tailor testimony to support the prosecution theory of a particular case. The impeachment value of these transcripts has proved to be the only effective deterrent to this conduct in a systemic way. If these experts are not shamed or embarrassed by the exposure of their bias and continue to operate as prosecution partisans. at least these materials can prove useful in individual cases.

It is also important to provide access to the prior testimony of defense experts in order to prepare the expert and the lawyer for cross-examination and to allow defense experts to learn from their mistakes.

The Public Defender of this new century must be prepared to confront, challenge and, when appropriate, use the ever-evolving scientific technologies available. A Forensic Unit can assist in that process by helping the attorneys and the administration that must support their needs in the most efficient and cost effective way possible.


National Association of Criminal Defense Lawyers (NACDL)
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