Thousands of cases compromised due to faulty forensic analysis

In recent months, faulty forensic analysis has been exposed in several labs across the country. The failure of a handful of lab analysts to correctly perform forensic analysis has compromised thousands of cases. In each situation the failures are different, but they expose a lack of oversight of analyst performance in the affected labs. The following are several of the most serious failures:

Annie Dookhan

A Massachusetts chemist was accused of faking test results at the state lab and tampering with drug evidence while she tested suspected controlled substances in criminal cases. Authorities declared that Dookhan tested more than 60,000 samples involving 34,000 defendants during her nine years at the Department of Public Health lab. Over 200 convicted defendants have been released from custody while their cases are being reviewed due to Dookhan’s involvement, according to this article. One of the red flags that lead to Dookhan’s misconduct being detected was the fact that she was highly efficient at her job; she was handling an astounding number of samples compared to an average chemist. Investigators allege that Dookhan was able to accelerate her work by “dry labbing” or reporting results for analyses that she did not actually perform. Dookhan has been indicted on 27 charges, including 17 counts of obstruction of justice, eight counts of tampering with evidence, perjury and falsely testifying that she held a degree from a college or university.

Sonja Farak

Another Massachusetts chemist that worked in the state crime lab in Amherst was arrested in January and charged with evidence tampering and possession of controlled substances from the lab, according to this article. The Boston Globe reported that Farak was discovered when her supervisors were making a routine check of tested substances and found that certain substances tested by Farak had been replaced with counterfeit substances. Attorney General Martha Coakley said that both Farak and Dookhan had begun their career at the Hinton lab in Jamaica Plain. Unlike in Dookhan’s case, supervisors noticed that Farak had had a drop in her productivity. Authorities have stated said that Farak’s misconduct was quickly detected by her supervisors, limiting the scope of its impact.

Jonathan Salvador

A forensic scientist who worked as a controlled substances analyst at the Texas Department of Public Safety (DPS) was suspended when it was discovered that he issued a fraudulent report about a batch of pills, according to this post in the Grits for Breakfast blog. The report was issued without testing the pills and instead, substituted data from another sample. The DPS characterized Salvador’s work as deficient prior to this incident. Case supervisors were aware of Salvador’s poor performance and knew that he appeared not to understand the science of the work he was assigned. However, his performance was tolerated and he would often volunteer for unwanted tasks in the lab. In its internal investigation, the DPS found several additional cases where Salvador misreported results. According to Grits for Breakfast “hundreds of convicted defendants may end up having their cases overturned, either freeing them from prison or ending their probation terms.” It was reported that hundreds of samples tested by Salvador during his six years at the DPS were being retested.

Iowa analyst fired over mishandling of fingerprint evidence

A state police crime lab analyst in Iowa was fired in January due to errors in reports related to fingerprint analysis, according to this article. The lab reviewed the analyst’s 2012 cases and found at least nine cases contained errors where the analyst had incorrectly classified fingerprint evidence as unusable. The analyst’s errors were discovered in a routine internal review of cases. The investigation of the analyst’s casework continues. The analyst had been employed by the lab for sixteen years.

Mishandling of DNA Evidence in Rape Cases

The New York City Medical Examiner’s Office is reviewing over 800 cases worked by a lab technician who resigned in 2011. According to this New York Times article, reviewers have found so far that the technician failed to detect biological evidence in 26 cases when in fact existed. Additionally, in 55 cases, the lab technician failed to upload evidence from crime scenes into the state’s DNA database. The mishandling of DNA evidence led sex-crime investigators to not have available evidence that was could have been used to develop cases against rape suspects.  Supervisors also discovered sixteen pieces of evidence that had been placed in the wrong rape kits. The majority of the misplaced items were swabs sealed in paper envelopes.  This mixing of items from different cases raises concerns about cross-contamination and whether other lab protocols were ignored.

Additional cases of lab analyst misconduct are detailed in this NACDL News Release.

In sum, it is important for the attorneys to be aware of the risks of not reviewing the lab reports, including the underlying data, in all of their cases. Although the majority of labs endeavor to monitor the work of individual analysts through case reviews, the cases above indicate that supervision cannot completely deter deficient performance by individual analysts.

SCOTUS to Decide on Dog Sniffs and Privacy

The U.S. Supreme Court is scheduled to hear two Florida cases at the end of October regarding dog sniffs and the Fourth Amendment.   The Florida Supreme Court ruled in Florida v. Jardines that taking a drug detection dog to the front porch of a home to sniff for marijuana violated the Fourth Amendment.  They held in Florida v. Harris, where a drug detection dog alerted to a car, that the dog sniff did not constitute probable cause to search a car.

The National Association of Criminal Defense Lawyers (NACDL) recently held a panel discussion on the cases which you can view online.  Among the participants in the panel were a defense attorney and dog sniff expert, the Executive Director of the Electronic Privacy Information Center, the Director of Information Policy Studies at the Cato Institute, and a Supreme Court litigator and partner at WilmerHale.  You can watch the video here.  News articles on the cases can be found here and here.

You can get also get more information about these cases from Shea Denning’s posts on the UNC School of Government blog. She has posted about the status of dog sniffs under the Fourth Amendment here and on NC dog sniff cases here.

Crime lab backlogs and the Massachusetts lab scandal

Many readers are probably aware of the scandal unfolding in the Massachusetts State Police lab, where chemist Annie Dookhan has been charged with obstructing justice by falsifying data in criminal cases and lying under oath about her qualifications. Dookhan was responsible for testing substances that were suspected to be drugs. An October 9, 2012 article  in the journal Nature reports that she guessed at the composition of the samples instead of testing them, she recorded positive results in some cases where the samples tested negative, and she contaminated some samples after the fact so that they would match her guesses, if tested.

The investigation of this lab scandal has revealed a large backlog of cases, and the journal Nature reports that forensic labs across the country are under pressure to keep up with heavy case loads. According to this article, interviews in a police report on the Massachusetts scandal identify the 2009 U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts as a key cause of the backlog. The article quotes American Society of Crime Lab Directors Laboratory Accreditation Board (ASCLD-LAB) executive director Ralph Keaton as saying, “They’re spending all their time in the courtroom and not the laboratory. Then the backlog grows.”

ASCLD-LAB, which is headquartered in Garner, NC, accredits the labs run by the Massachusetts State Police. Keaton’s quote doesn’t link Melendez-Diaz to Dookhan’s actions, but the article could be read as implying that Melendez-Diaz may be leading to misconduct to reduce backlogs. Linking the type of misconduct that Dookhan is alleged to have committed to pressure to reduce backlogs overlooks the real question of how such grave misconduct in the lab was allowed to continue, unchecked, for months or years. In a lab of science professionals where there is adequate oversight, misconduct that affects 34,000 criminal cases, including those of 1,100 people in jail, should not occur.

For more information on this lab scandal, click here.

NC Court of Appeals decides NarTest case

In State v. Jones, __ N.C. App. __ (November 1, 2011), the NC Court of Appeals issued an important decision regarding the admissibility of NarTest evidence. NarTest is a private company that produces the NarTest NTX 2000 machine which has been used by local law enforcement in several cities and counties in North Carolina to test samples of suspected controlled substances. The NarTest machine uses a technique that is different from techniques used in crime labs. NarTest also has a lab located in Morrisville that tests samples of suspected controlled substances using methods of analysis similar to those used in state crime labs.

State v. Jones involves the testing of substances by a sheriff’s detective using the NarTest machine as well as the testing of the same substances at the NarTest lab by retired SBI analyst Trot Raney. The defendant argued that the testing performed by the detective using the NarTest machine and the testing performed by Mr. Raney in the NarTest lab failed to satisfy the first prong of the Howerton test which requires that the “proffered method of proof [be] sufficiently reliable as an area for expert testimony[.]” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458 (2004).

With respect to the substances that were tested by the detective, the Court held that the detective’s testimony regarding his use of the NarTest machine was erroneously admitted under the Howerton standard. Among the factors considered by the Court were that the detective “did not testify as to whether the NarTest had been recognized by experts in the field of chemical analysis as a reliable method of testing, nor did he compare the NarTest to other testing method currently used to identify controlled substances.” Jones at 8. Additionally, the detective “had been ‘trained to operate the NarTest, but he had no ‘professional background in the field of chemical analysis of controlled substances.’” Id. at 8-9. Finally, the detective “did not testify as to any independent research he had conducted, nor did he supplement his testimony with a visual aid.” Id. at 9.

Previously in State v. Meadows, 201 N.C. App. 707 (2010) the Court came to the same conclusion regarding this detective’s testimony, concluding that with respect to the detective’s testimony, the “expert’s proffered method of proof [is not] sufficiently reliable as an area for expert testimony” because the State failed to proffer evidence of indicia of reliability required by Howerton.  Meadows at 712. Because the detective’s testimony in Jones was similar to his testimony in Meadows, the Court held his testimony was erroneously admitted. Jones at 9.

With respect to Mr. Raney’s testimony regarding the NarTest machine used by the detective, the Court also found that admission of that testimony was erroneous. In making this determination, the Court considered several factors: Mr. Raney’s testimony that the NarTest had not been licensed or certified by the Department of Health and Human Services or any other agency or department of the State; the fact that Mr. Raney had not conducted any independent research on the NarTest machine outside of his duties as a NarTest employee; that the State did not present any evidence that the NarTest machine had been recognized as a reliable method of testing by experts other than Mr. Raney; that the State did not point to any publications or research performed by anyone not associated with NarTest; and that the only visual aid used to support Mr. Raney’s testimony was a promotional video created by NarTest. Id. at 11-12.

Additionally, the Court found that admission of Mr. Raney’s testimony regarding the testing of the substances in the NarTest lab was erroneous. Recently in State v. McDonald, __ N.C. App. __ (Oct. 4, 2011) Mr. Raney testified while the NarTest lab was not independently accredited by any agency, the lab was licensed by the State of North Carolina and the DEA to perform analytical testing on controlled substances. Mr. Raney’s testimony regarding the testing in the NarTest lab was allowed. In Jones, there was no evidence introduced that Mr. Raney or the NarTest lab was licensed or accredited by any agency. Mr. Raney testified in Jones that in the NarTest lab he used chemical analysis protocols similar to those used by the SBI, and his testimony regarding chemical testing in the NarTest lab was not allowed. Id. at 13-14.

The Court additionally held that a visual identification of a substance as cocaine was inadmissible under State v. Ward, 364, N.C. 133, 147 (2010), but that the visual identification of a substance as marijuana was admissible.

In sum, the defendant’s convictions involving cocaine were overturned and a new trial was ordered. His convictions involving marijuana were upheld as the Court held that the testimony regarding visual identification of marijuana was sufficient to render the admission of the NarTest results harmless with respect to that evidence. Jones at 15-16.

In light of these holdings, defenders should be aware of the successful challenges to the admission of testimony regarding the NarTest machine. With respect to testing completed in the NarTest lab, defenders should determine whether the NarTest lab is licensed or accredited by any agency, and if it is licensed, whether testing was done before or after the lab became licensed.

Additionally, attorneys may want to examine the procedures and protocols of the NarTest lab to determine whether they are equivalent to the procedures used at the State Crime Lab, particularly as the Crime Lab works to meet new ISO standards in its Drug Chemistry Section. Attorneys could compare the quality assurance procedures for each lab, the sampling procedures for each lab, and the presumptive and confirmatory tests used by each lab to determine whether they meet the minimum standards for the forensic identification of commonly seized drugs. (See p. 14 of the SWGDRUG Recommendations for an explanation of what analytical techniques should be used.)

Attorney Anne Bleyman argued Jones and Meadows before the Court of Appeals and is available to attorneys who would like additional information about confronting this type of evidence. Her email address is abtigerlaw@earthlink.com.