the state of things six years after the nas report march 23, 2015 © 2015 diane mb savage, atty at...
TRANSCRIPT
The State of Things Six Years after the NAS Report
March 23, 2015
© 2015 Diane MB Savage, Atty at law, Pres. NCAST Lisa Miles, Atty at law
How It All Started For Me
Heroin Case in DC Analyst Was
Guessing at Results Cases Dismissed
Interest in George Goode’s Case
Interest in Challenging Forensic Evidence
TRUST BUT VERIFY
A simple idea underpins science Trust but Verify Results should always be subject to
challenge
Problem with Modern Science
Success can breed complacency Modern Scientists doing too much
trusting and not enough verifying This to the detriment of the whole of
science and of humanity.
Half of Published Research Cannot be Verified
Some say it’s more! A group at Bayer could repeat just
one quarter of 67 similarly important papers.
In 2000-2010, 80,000 patients took part in clinical trials based on research that was later retracted because of mistakes or improprieties. (The Economist 10/19/13)
So Where Does That Leave Us?
FIX IT! Transparency Make Protocols Available in Advance Data should be open for others to
inspect Tighten Peer Review Post Publication Review with
appended comments. (has worked well in mathematics and physics)
(Economist, 10/19/13)
Forensic Science – In Trouble!
NAS report exposed various disciplines in forensic science that had very little scientific foundation.
Real problem is “things haven’t moved on since then”. (Nature 2/15/15)
JUSTICE DEMANDS GOOD SCIENCE
Courts cannot now blindly follow precedent that rests on unfounded scientific premises.
This will and has led to unjust results. Costly to taxpayers.
Why Aren’t Things Changing?
The great number of exonerations and crime lab scandals has increased recognition of deficiencies with forensic evidence. Forensic evidence presented in court is at times based on speculative research, subjective interpretations, and inadequate quality control procedures.
NAS REPORT Still Under the Radar?
On February 18, 2009, the National Research Council (NRC) of the National Academy of Sciences (NAS) issued a report to Congress sharply critical of the forensic science system in the U.S., finding an inconsistent system rife with “serious deficiencies.”
Problems Here and Everywhere
What’s wrong with the SBI crime lab and many forensic crime labs in general?
What’s been done about it? What can we do about it?
See list of Crime Lab and Forensic Scandals www.nacdl.org
Prison for ChemistAnnie Dookhan
Declared drug samples positive that she didn’t bother to test.
Tampered with evidence. Forged signatures. Lied about her credentials.
NY Times 11/22/13
Pled Guilty to 27 Counts
Obstruction of Justice Perjury Tempering with Evidence
3-5 years Prison term 2 years Probation
What about the Audit?
An audit of her work in 2010 found NOTHING WRONG!
What does that say about audits? Who audits the lab in NC?
Head in Sand Attitude
Problems that plague the forensic science community have been well understood for quite some time by scientists – not so much by the legal community, or have they?
Call For Help Long Ago
Congress passed legislation in 2005 directing the National Academy of Sciences to create an independent committee to study the forensic science community.
NAS Report Now 6 years old
Except for Nuclear DNA, No forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty,demonstrate a connection between evidence and a specific individual or source.
NAS Report S-5February, 2009
NAS RECOMMENDATIONS
Remove all public forensic labs and facilities from the control of law enforcement agencies or prosecution offices
Establish independent federal entity National Institute of FS
Purpose - independent accreditation and oversight of forensic scientists and forensic labs
Hon. Harry T. Edwards Little research to confirm the validity and reliabilty of
forensic disciplines Little research programs on human observer bias and
sources of human error in forensic examinations Lack of autonomy of crime laboratories Absence of rigorous mandatory certification requirements
for practitioners Absence of uniform mandatory accreditation programs for
labs Failure to adhere to robust performance standards Failure of forensic experts to use standard terminology in
reporting on and testifying about the results of forensic science investigations
Lack of effective oversight Gross shortage of adequate training and continuing
education of practitioners
Carol Hendersonpast president of the American Academy of Forensic
Sciences to AAFS members
“We have been presented with an opportunity to make forensic science serve justice even more reliably and effectively.”
Members
Work to improve practice of forensic science
Develop guidelines re: intersection s between FS and CJ system
Develop uniform codes for professional responsibility
Requirements for formal training and certification
15 police, prosecutors, judges10 academics6 others include 2 NIST and the Director VA Dept. of Forensic Science
0 Independent Defense lawyers(3 PD types)
Bottom line – 1% representing defense
The White House Sub-Committee Report – 5/14
http://aafs.org/sites/default/files/2015/
Non-Meeting/WHITE_HOUSE%20SUB_COMMITTEE_FS_REPORT.pdf
SWECKER REPORT
This report raises serious issues about laboratory reporting practices from 1987-2003 and the potential that information that was material and even favorable to the defense of criminal charges filed was withheld or misrepresented.
The factors that contributed to these issues range from poorly crafted policy; lack of objectivity, the absence of clear report writing guidance; inattention to reporting methods that left too much discretion to the individual Analyst: lack of transparency; and ineffective management and oversight of the Forensic Biology Section from 1987 through 2003.
A series of Findings and Recommendations were made to address these issues including an immediate notification to the appropriate District Attorney to review the listed cases and notify any convicted defendants who may have been adversely impacted; a legal review of the Lab’s reporting methods; enhanced training; more transparency in the Lab’s policies and procedures and the designation of an Ombudsman position to review and quickly act on information regarding potential laboratory issues and errors.
North Carolina’s response
Lab Accreditation/New Lab Procedures State Crime Lab (SBI lab) – new procedures went
into effect Sept. 17, 2012
http://www.ncdoj.gov/About-DOJ/State-Bureau-of-Investigation/Crime-Lab/ISO-Procedures.aspx
Request lab procedures in discovery! Put into place without review by NC Forensic
Science Advisory Board Have been updated many times since Sept. 17,
2012
Recommendations
1. Select a team or a person in the office to be the “forensic experts”.
2. Train them in the various disciplines.3. Have them available for consultation on specific
cases.4. Update training materials as needed.5. Begin to formulate motions to challenge
forensic evidence routinely and to educate judges about the NAS report and the Swecker report.
6. Identify and educate DAs who don’t want to use bad forensic evidence in their cases (or strive to be one yourself).
DON’T BE SCARED
- LEARNING THIS WON’T HURT YOU - NOT LEARNING THIS WILL HURT OR
WORSE YET, KILL YOUR CLIENT- SCIENCE IS LIKE BAKING – IT MUST BE
PRECISE
Not learning can kill your client
325 DNA Exonerations Nationwide 154 Improper or Unvalidated Forensic
Science (Innocence Project.org)
KNOW THE BASICS: THINGS CAN AND DO GO WRONG
HUMAN AND TECHNICAL ERRORS MISLABELING MISRECORDING MISREPRESENTATIONS CASE MIX UPS CONTAMINATIONS INTERPRETIVE ERRORS FALSE POSITIVES FALSE NEGATIVES PROBLEMS WITH INSTRUMENTS PROBLEMS WITH ANALYST AND /OR METHODS
How to get the info
Discovery/ Brady Subpoena deuces tecum Freedom of Information Act request Public Record Request Online Sources/ Libraries
THE STATE’S RESPONSE
Too Burdensome-How much time will it take?
Not a public document Privacy Issues/ Official Privilege/Specific
privilege Overbroad The Documents Do Not Exist
-Why not? Is there another name for the document?
Questions to ask
Is it an ethical violation for prosecutors to offer evidence with a statement of individualization given the NAS report and the Swecker report?
Are we as defense attorneys ineffective if we do not have the knowledge necessary to effectively litigate the scientific issues in the case?
What Must Be Done
Learn the science for each discipline Find an expert to consult and assist Make sure you have complete discovery Evaluate the evidence carefully Plan your strategy Challenge admissibility pre-trial Challenge the testimony of the forensic
scientist Present expert testimony
LAB REPORTS ALONE ARE USELESS: MUST GET
BENCH NOTES PROTOCOLS PROCEDURES TRAINING MANUALS QUALITY CONTROL MANUALS CRIME LAB DIRECTIVES PROFICIENCY STUDIES VALIDATION STUDIES CHAIN OF CUSTODY LOG LOG OF CHEMICALS/DATES EXPIRATION
CONCLUSIONS NOT ENOUGH
POSITIVE FOR THE PRESENCE OF BLOOD
Must find out scientifically:
STEP 1 – COULD IT BE BLOOD?STEP 2 – IS IT BLOOD?STEP 3 – IS IT HUMAN BLOOD?STEP 4 – DNA TO INDIVIDUALIZE
(DNA EXTRACT FROM SEMEN, BLOOD, TEETH, BONE, SALIVA, SKIN CELLS, HAIR, URINE)
- DNA MATCH – Not enough info
WHY?FALSE POSITIVES
HORSERADISH, TOMATO, TURNIP, JERUSALEM ARTICHOKE, POTATO, CUCUMBER
SOME FRUIT EXTRACTS SOME METALLIC SUBSTANCES BACTERIA
WRONG RESULT
IF PINK AFTER ADDITION OF PHENOLPHTHALEIN BUT BEFORE ADDITION OF HYDROGEN PEROXIDE
REACTION OCCURS 5 SECONDS AFTER ADDITION OF HYDROGEN PEROXIDE
REACTON AFTER 5 SECONDS N.G. NO REFRIGERATION
AREAS TO CROSS EXAMINE ANALYST
EDUCATION TRAINING AND EXPERIENCE BIAS LAB PROBLEMS HANDLING OF SPECIMENS STANDARDS AND CONTROLS INTEGRITY OF SAMPLES RECORDING OF THE DETAILS
DNA IS NOT A BLOOD TESTDEOXYRIBONUCLEIC ACID
NO DNA TEST CAN TELL YOU TIMING OF DNA DEPOSIT IDENTIFICATION OF CELL SOURCE CIRCUMSTANCES HOW DNA WAS
DEPOSITED
STATE V. GEORGE GOODE
POST CONVICTION STATE WANTS TO UPHOLD
CONVICTION USES DNA 12 YRS. LATER TO TRY
NO BLOOD ON MR. GOODE
1993 TWO TESTS ON COVERALLS NEGATIVE LOOKING FOR “INVISIBLE BLOOD ON
BOOTS” SOLES OF BOOTS NEGATIVE TOP OF LEFT BOOT “POSITIVE FOR THE
PRESENCE OF BLOOD” MENTIONS “BLOOD” OVER 20 TIMES “THINK ABOUT THE BLOOD ON THE
BOOTS”
DOESN’T MENTION
PRESUMPTIVE TEST ONLY ON BOOTS “VERY SLIGHT LEFT BOOT, CAN’T SEE
ANY SPOTS” NEVER DID A CONFIRMATORY TEST
TO IDENTIFY “SUBSTANCE” WAS ACTUALLY BLOOD
HOW TO MAKE CONVICTION STICK
2004 SBI AGENTS SAY SEE A PHANTOM
STAIN ON COVERALLS PROSECUTOR SAYS PROBABLY
BLOOD NOW LAB CAN DO DNA LET’S DO IT
IF IT ISN’T OBVIOUS CO-MINGLED CLOTHES OF VICTIMS AND
THREE DEFENDANTS BLOODY TAILGATE IN BIN NOT INDIVIDUALLY PACKAGED RE-PACKAGED DISINTEGRATED BAGS HANDLING BY NUMEROUS PEOPLE W/O
GLOVES AND W/O CHANGING GLOVES SHAKING CLOTHES
Evidence will be returned un-worked if:
The items were improperly packaged or preserved.
The items appear to have been contaminated.
The evidence was examined by another agency or lab prior to submission.
Stardard needed for comparison is not submitted.
NC Crime lab PPT slide - 1/13/14
THE ONION AND THE CAKE
CONTAMINATION CONTAMINATION CONTAMINATION
CLEAN UP PRCEDURE -TECHNICAL PROCEDURE MANUAL: DNA
UNIT DECONTAMINATION AND CLEAN UP PROTOCOL
CHAIN OF CUSTODY
NO CHAIN OF CUSTODY UNTIL WELL AFTER MAR FILED (STARTS 9/98)
TRIALS IN 1993 AND 1994 EVIDENCE COLLECTED 1992
TRACE EVIDENCE LOOKS
70 X MICROSCOPE STAINS ON COVERALLS STILL NO CONFIRMATION CUTS OUT AND CO-MINGLES STAINS ON BOTTOM OF BOOT CUTS AND CO-MINGLES AGENT CLAIMS “BLOOD” DEPOSITED AT
TIME OF CRIME “I KNOW BLOOD WHEN I SEE IT”
SBI CONDUCTS DNA
LAB GETS RE-PACKAGED EVIDENCE AGENT DOESN’T INFORM LAB HOW
EVIDENCE WAS KEPT GEL ELECTROPHORESIS (Validated for over
a year) FAILED TO GIVE RESULT (No DNA bands) CAN SEE EXTRA BANDS IN STANDARD
(Indicative of Contamination)
DIDN’T END THERE
CAPILLARY ELECTROPHORESIS
3100 – 16 SAMPLES AT A TIME; 20-30 MINUTES TO DO A RUN (sensitive to .5 nanogram of DNA; .1 nanogram can give full profile using known samples)
Gels use 1 nanogram compared to .5 nanogram on 3100
SEE EXTRA PEAKS – JUST DILUTE THEM OUT. (DILUTED 1:10 TO GET RID OF SMALLER PEAKS)
BECAUSE LESS DNA WAS ADDED TO THE SAMPLE, SMALL PEAKS GONE
CHANGE THE REPORT IF THE FIRST DOESN’T SUIT
5/28/04 The DNA profile obtained from the cuttings from the coveralls is consistent with a mixture. The DNA profiles obtained from the standards submitted for the victims cannot be excluded as a contributor to the mixture. Additional bands were present which cannot be accounted for by the standards submitted. No population frequency data were generated for this item.
The DNA profile obtained from the left boot matched the DNA profile obtained from the male victim.
6/16/04 The DNA profile obtained from the cutting from the coveralls is consistent with a mixture. The DNA profiles obtained from the standards submitted for the victims cannot be excluded as a contributor to the mixture. No population frequency data were generated for this item.
The DNA profile obtained from the left boot matched the DNA profile obtained from the male victim.
DID I MENTION – ANALYST NOT PROFICIENT?
FREEMAN NOT PROFICIENT AT TIME OF TEST
NEVER GIVEN A BLIND PROFICIENCY TEST ONLY ONE OF THREE MACHINES
“VALIDATED” (MONTH BEFORE) MANUAL WRONG – SAID 80%VARIATION,
MEANT 20% (MANUAL NOT EVEN COMPLETED)
DISGUSTING, BUT NOT SURPRISING
DNA MATCH ON BOOTS DNA MIXTURE ON COVERALLS
STATE CLAIMS DEAVER MUST HAVE BEEN RIGHT – EVEN THOUGH SUBSTANCE ON BOTTOM OF BOOT HAD NOTHING TO DO WITH TOP OF BOOT
IF IT LOOKS LIKE A DUCK
AND QUACKS LIKE A DUCK IT’S A DUCK
“UP TO HIS ANKLES IN BLOOD”
CLAIMS THE STATE
EXPERT COMPLAINS WRITES TO ASCLD-LAB SO SCIENTIFICALLY INAPPROPRIATE HIGHLY RECOMMEND COMPLETE
INVESTIGATION INTO ALL CASES AGENT PERFORMED
TESTING ON ITEMS WITH NO SUPPORTING SEROLOGY REPORTS
CASE HAS APPEARANCE WHERE EVIDENCE WAS SLANTED OR MANUFACTURED TO SUPPORT PROSECUTING ATTY’S CASE
Judge Howard’s Order falsely portrayed to the jury that he
conducted a test for blood which indicated blood, not some substance which might be blood,
Further, the prosecutor reinforced the misleading testimony by arguing during closing in listing the evidence of petitioner's guilt for the jury to "think about the blood on the boots.
his misleading testimony is imputed to the State.
agreed with the attorneys' characterization of the substance as blood without clarifying the limits of the test.
SBI HAS A PROBLEM
CATAWBA COUNTY – STATE V. LABOY SBI REFUSED PROTOCOLS AND
ELECTRONIC DATA W/O COURT ORDER NEVER ALLOW ON SITE INSPECTION BEAL SUPPRESSED DNA EVIDENCE
lab said sperm came from female tests showed male client was female
STILL MORE
STATE V. LESLIE LINCOLN
- SBI Erroneously identified the victim’s DNA as Leslie Lincoln’s DNA
- Prosecutor still wouldn’t give up and forced Ms. Lincoln to trial. Verdict NG!
VIRGINIA LAB NOW UNDER A CLOUD
GOVERNOR ORDERS REVIEW OF MORE THAN 150 CAPITAL MURDER CONVICTIONS INVOLVING DNA EVIDENCE
LAB PROBLEMS NOT NEW
UNCOVERED IN CRIME LABS IN 19 STATES AND COUNTING AND THE FBI CRIME LAB- faulty blood analysis- flawed hair comparisons- contamination of evidence in DNA
testing
FBI ANALYST PLEADS GUILTY
FBI ANALYST, JACQUELINE BLAKE, PLEADED GUILTY TO A MISDEMEANOR CHARGE OF MAKING FALSE STATEMENTS ABOUT FOLLOWING PROTOCOL IN SOME 100 DNA ANALYSIS REPORTS