Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Just imagine if Spanish authorities had not fortuitously found the real source of the fingerprint on a bag of detonation devices similar to those used in the Madrid train bombings. Brandon Mayfield, see article page 6, would probably still be rotting in prison as a material witness or a defendant facing the death penalty. The FBI, buttressed by a court-appointed expert selected by the defense, would still be insisting it was Mayfield's fingerprint, confident they were not subject to examiner bias, that fingerprint analysis was a thoroughly objective, adequately validated discipline, and Spanish objections to their conclusions were baseless. And international intelligence investigators would still be confused in their efforts to find the real terrorists by the need to link Mayfield, an innocent, to a crime he didn’t commit.
This, of course, is a charitable, balanced scenario, devoid of wonderment about what surveillance (eavesdropping, Internet intercepts, financial vetting, and just plain observation) was directed at Mayfield’s Muslim wife, their friends, members of their mosque, or his professional colleagues.
Unreliable forensic science is bad law enforcement. It’s bad for national security. It’s bad for civil liberties. It undermines public trust in the entire criminal justice system. Everyone should know our crime laboratories are in a crisis, reeling from an epidemic of scandals reflecting decades of shoddy work, usually from bad actors producing incompetent or fraudulent results, but sometimes from methodologies that have been exposed as unreliable. There are, of course, good crime laboratories and many outstanding forensic scientists who care about high standards, but it would be a dangerous delusion to believe we live in the world of CSI. There is, thankfully, one immediate remedy that can help expose the true dimensions of our problems, ameliorate a backlog of painful injustice, and restore some measure of confidence in our crime laboratories — the independent forensic audit.
The concept is simple: Whenever someone in a crime lab has produced false findings, as a result of deliberate fraud or fundamentally erroneous procedures, all prior and subsequent work by that individual must be reviewed. A clear analogy the press understands well is the way a newspaper should respond when it discovers, like the Jayson Blair incident at The New York Times, that one of its reporters has been making up facts for a story — all other stories by that reporter have to be checked, and checked by someone who is independent and can go where the evidence leads; to other colleagues, supervisors, or the top editor.
This reform is beginning to take hold. This June in Cleveland, Ohio, after Michael Green was exonerated by DNA tests which showed his conviction was based upon false testimony about hair and serology by a Cleveland crime lab analyst, the city agreed to fund an independent forensic audit, led by a former federal prosecutor, to examine every hair and serology case done by that analyst (16 year’s worth of work) and a random audit of others in the lab to make sure the fraudulent practices were not widespread.
Similarly, six leading forensic scientists have just called for an independent audit, based explicitly on the Cleveland model, of analysts in the Houston Police Department Crime Laboratory after fraudulent serology testimony was exposed in the George Rodriguez case, another matter where DNA testing supports a claim of wrongful conviction. This audit should involve at least 24 years of serology work, literally thousands of cases, in Harris County, Texas, a jurisdiction that leads the country in executions (73).1
An action has been filed in Montana, supported by former Montana Supreme Court judges, to audit the work of Arnold Melnikoff, who ran the state crime lab for more than a decade and gave false hair comparison testimony in at least three cases where defendants were subsequently exonerated by DNA tests.
In Boston, after Stephan Cowans was exonerated this year by DNA testing that revealed a 16-point fingerprint match used to convict him was false, promises of an independent audit of two police department fingerprint examiners were made by police officials.
And, of course, the FBI itself will be subjected to an independent audit of its fingerprint analysts for the faulty work performed in the Mayfield case.
Perhaps the most daunting audit problem of all concerns composite analysis of lead bullets (CALB). This year the National Academy of Science issued a report discrediting three decades worth of CALB expert testimony by FBI analysts across the country, assertions that, by chemical analysis, a bullet found at a crime scene could be dated as to the time it was manufactured or linked to a group of other bullets possessed by a defendant. The FBI has agreed, in principle, to identify each CALB case so courts can determine if convictions need to be vacated but the logistics of doing it are overwhelming. See The Champion, July 2004.
Now is the time to press for a significant federal commitment to clean up the nation’s crime laboratories, a commitment that should include, at the very least, funding for those jurisdictions that are willing to conduct independent forensic audits when misconduct by analysts has been discovered. The only alternative is to get Jerry Bruckheimer to donate all his CSI residuals.
Note
1. Copies of the independent audit agreement in Cleveland and the forensic scientist report in the Rodriguez case are available at the NACDL Web site at www.nacdl.org.