Friday, July 27, 2012

Defining away negligence and misconduct at crime labs

Grits is headed this morning to the Forensic Science Commission's quarterly meeting (see the agenda), but yesterday, reported Patrick George at the Austin Statesman, an FSC investigative panel recommended no finding of negligence or misconduct at the Austin crime lab, despite confirming the allegation that at least one employee had issued results in preliminary reports without performing the underlying tests. Reported George, "Panel members on Thursday said that during their investigation, they found only one lab employee who engaged in that practice. It is no longer allowed at the lab, they said."

Instead, panelists blamed the result on poor note taking and record keeping:
"While there may have been some sloppiness in note-taking ... I don't think negligence occurred," said commission member Dr. Jeffrey Barnard.

His colleagues on the panel, which consisted of three commission members, agreed.

"There's certainly a need for some documentation improvements," said Richard Alpert, the Tarrant County district attorney. But Alpert said that after examining each point made in the complaints, some of the allegations appeared to be "exaggerated."
Still, if the FSC knows at least one lab worker engaged drylabbing - i.e., reporting results without documenting the underlying tests - and the Austin crime lab actually had to change its policies  to prevent it (implying it was allowed under the old policy), was there really no negligence or misconduct?

As described in some detail in this Grits post, the explanation may partly lie with inadequate definitions of negligence and misconduct in Forensic Science Commission policies dating back to former Chairman John Bradley's tenure. When Bradley pushed through the agency's policies - despite the fact that the FSC has no rulemaking authority - their Attorney General adviser warned them of a "gap" in the definitions of negligence and misconduct that meant that did not cover instances where labworkers were aware of professional standards and fail to follow them. The FSC, though, adopted Bradley's definitions without amendment and they're still on the books. So now when the FSC finds no "negligence or misconduct," as has been recommended in Austin, that doesn't mean that labworkers didn't knowingly violate procedures.

Those definitions are inadequate for another reason: They only call for negligence or misconduct findings if it affects the result of the test. So if a labworker engages in "drylabbing," it's not necessarily negligence or misconduct under FSC rules if they guessed correctly. E.g., recently Tarrant County self-reported that a crime lab employee had failed to test rape kits when the police report said no penetration occurred, claiming to have performed tests in at least five cases when he did not. Since further testing of those kits found no semen, it didn't change the results and so may not constitute negligence or misconduct under FSC policies. But that doesn't mean that labworker's results should be viewed as reliable.

Similarly, the FSC found no negligence or misconduct at the El Paso crime lab despite their employing a clearly incompetent analyst for the same reason: No one had yet demonstrated it changed the "result" of any specific test. The current definitions seem to assume the ends justify the means.

The Statesman report says the FSC results may "vindicate" the Austin crime lab. But until those definitions are upgraded, it frankly doesn't mean much when the FSC concludes there's no negligence or misconduct because they've defined away some of the biggest problems. In FSC cases so far such as Todd Willingham's and at the El Paso crime lab, such findings masked serious problems which were well-documented in the underlying investigation.



Anonymous said...

It is very frustrating indeed, kind of like Eric Holder investigating his own operation.

Anonymous said...

It becomes misconduct, if not criminal, when the LAB REPORTS are created by the drylabbing analysts and passed along to the Prosecutors.

(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

Good luck finding a Prosecutor who going to charge an analyst that produces a false lab report (or commits perjury) that supports a conviction...

Anonymous said...

Wasn't FSC Chair DiMaio, in part, responsible for unleashing Fred Zain unto the forensic community?

How many false convictions is he responsible for?

By today's definition, I'm sure that Zain's conduct was not "misconduct". (insert sarcasm here).

Anonymous said...

North Carolina SBI Crime analyst Duane Deaver's failure to record the negative results of a blood test on the official lab report wasn't so much as "sloppiness in note-taking" as it was written lab policy -- costing (now exoneree) Greg Taylor 17 years of his life.

In the eyes of the Texas FSC, what would constitute "misconduct"? An execution of the wrongfully convicted?

This flippantly dismissive attitude of the Texas FSC is disgusting. God forbid they learn from the mistakes of others.

Gritsforbreakfast said...

4:35 et. al., keep in mind that the Attorney General restricted the FSC's authority pretty radically last year at then-Chair John Bradley's urging, so some of these shortcomings are a function of that, not bad faith by the FSC.

From my observation their investigations are exposing the problems, but the AG opinion (and their enabling statute) gave them no teeth and restricted their ability to call a spade a spade.

FWIW, there will be legislation filed next year to fix some of these jurisdictional limitations. It got almost all the way through the process last time (passed the senate, died waiting for a House floor vote) and I'm optimistic if it passes next year it will solve many of those problems and make the FSC a lot more effective.

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