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.

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