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.

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.”

January 10, 2014DOJ and NIST

National Commission on Forensic Science

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

THE PLOT THICKENS

A PICTURE IS WORTH A THOUSANDS WORDS

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

NO CONFIRMATION BLOOD

AGENT SAID CHEMICALS OUT OF DATE AND CAN’T REPORT

DIDN’T TRY AGAIN

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

IN SCIENCE

IF IT LOOKS LIKE A DUCK AND QUACKS LIKE A DUCK

YOU MUST PROVE IT IS A DUCK

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.

OF COURSE THERE’S MORE

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!

Darryl Hunt,Gregory Taylor,

Michael Peterson, othersFreed!

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

Conclusion

Do not accept any forensic results, including DNA, at face value

Information now more readily available than ever

You can learn this, and you have to learn it