What is the duty to notify defendants of past crime lab errors?

One issue where the new chairman of the Texas Forensic Science Commission, Dr. Neezam Peerwani, disagrees with his predecessor is on the duty for forensic scientists to correct past mistakes when science changes or documentable errors are made. The issue arose in the commission's report on the Todd Willingham case. After that investigation it became evident that many hundreds of old arson convictions relied on what now is all but universally acknowledged as junk science. (Many of those convictions are likely still legitimate, but there's also a significant chance of error.)

The same conundrum arises in Deputy Keith Pikett's 2,000 cases in which he presented evidence from so-called dog-scent lineups which even the Texas Court of Criminal Appeals recognizes has little evidential value. But should defendants in old cases be notified? By whom? Nobody knows. The National Academy of Sciences put the matter on the table in the grandest fashion in 2009 when it published a devastating critique of the subjectivity and unscientific nature of much of 20th Century forensic science.

The feds (and every other state) are struggling with this, too: When the FBI discovered that their supposed technique for identifying which batch from a factory a particular bullet came from was a bunch of horsesh#%, the feds contacted all the defendants in cases where the evidence was used at trial, but not where the cases resulted in plea bargains. Grits thinks they should notify every defendant and let the chips fall where they may. While there's some evidence that the proportion of innocent defendants who plea guilty is low, I suspect the number of guilty defendants who pled out who would turn around and contest their conviction would also, in practice, be low.

Past FSC Chairman John Bradley resisted the recommendation to review old cases, but Dr. Peerwani has said he thinks it's necessary and the rest of the commission so far appears to agree with him, though nobody has taken more than the first few tentative steps down that road. A profile of the new FSC chief last week by Brandi Grissom in the NY Times/Texas Tribune said that, in the Willingham case, "Dr. Peerwani agreed with other experts not only that the science was faulty but also that forensic examiners had an ethical duty to inform prosecutors of potential flaws in their work."

The same issue arises from a recent blog post about alleged problems at the Southwestern Forensics Institute in Dallas titled "Covering One's Backside - Forensics Edition," by Paul Kennedy over at The Defense Rests, which opens:

You run a crime lab forensics institute that specializes in assisting the state in gathering and analyzing evidence. On a logbook you see that a reagent used for blood testing was used for years after its expiration date. The notes indicating the expiration date aren't initialed and look like they were added after the original entries in the book. You determine that notes were written by the analyst. You speak with the analyst and ask him (or her) to initial the notes regarding the expiration date.

Voila! Job well done.

No need to request corrective action. No need to alert anyone that your lab techs were using chemicals that had passed their expiration dates. No need to inform prosecutors that there might be a problem with the analysis your lab performed. No need to inform defense attorneys that the tests might not be valid.

You draft a memo and attach it to the back of the logbook.

No e-mails to track down and preserve. No Corrective Action Requests subject to Open Records requests. No memo in a file that some pesky auditor might find.

An earlier Defense Rests post questioned whether the same lab director, Stacy McDonald, of covering up possible contamination at the lab, accusing her of a bureaucratic mentality that values form over function, "more concerned about an analyst initializing notes about expired reagents than the fact that your lab was using expired reagents while conducting forensic tests that would be used by the state at trial."

I don't know anything about Ms. McDonald and can't judge her motives, but surely the question arises: When expired reagents were used to analyze evidence for court, should the state notify defendants whose convictions were secured based on that evidence? What is the duty for post facto rectification of scientific errors? Answers to those questions will be forthcoming in the next 5-10 years or so as courts and policymakers struggle nationwide with reevaluations of forensic science, and Peerwani and the FSC could play a powerful role in shaping those answers in Texas.