By all accounts, DNA plays an extraordinary role in our modern American criminal justice system. In crime labs across the country, DNA is used as a critical identification marker to accurately determine guilt or innocence and, in capital cases, even life or death.
However, such accuracy is dependent upon the integrity of the processes these forensic labs employ. Without adherence to consistently high standards and proper checks and balances, key evidentiary processes — like the collection, storage and analysis of DNA samples — can lose their extraordinary capacity for identification, enabling critical mistakes and impacting lives.
“At a system-wide level, across the country, there is currently no formal oversight system for forensic science laboratories,” said Sarah Chu, senior forensic policy advocate at the Innocence Project. Founded in 1992, the Innocence Project has successfully used forensic DNA technology to exonerate the wrongly convicted while working to reform the criminal justice system. “Having oversight that is driven by science would help improve public trust in the forensic work product,” offered Chu.
Given recent scandals in numerous states over the collapse of crime lab integrity, such trust is, at best, fragile. In Austin, Texas, the city’s crime lab was shut down after years of gross negligence and compromised biological evidence. In Massachusetts, well-documented criminal conduct by state crime lab chemists over a period of years led to tens of thousands of false convictions. In Georgia, a crime lab custodian was arrested last November after an audit revealed troubling discrepancies. And, in 2015, the FBI lab in Washington, D.C. admitted just about every examiner in their elite forensic unit gave flawed testimony in almost every trial they offered evidence in over a 20-year period, including trials with 32 death sentences. The evidence the FBI relied upon, including hair analyses, bite marks, handwriting, and marks on bullet, has long been criticized as less than reliable and subject to human bias.
Like these forensic counterparts, DNA can also be subject to mishandling and human bias within our nation’s crime labs, leading to less public mistrust. But when handled correctly, DNA, in particular, serves the system well.
“DNA is powerful because it’s the best tool that we have right now to identify the people who actually committed the crime and to exonerate the people who have been wrongly convicted,” said Chu, clarifying that, despite a lack of national standards for forensic evidence, there are quality assurance standards and oversight for the interpretation of DNA evidence. “Laboratories are not allowed to access the national DNA database unless they meet these requirements,” explained Chu.
Yet the human element makes DNA judgments so problematic for the accused. “Just like any other forensic discipline there can be inadvertent errors, professional negligence and, sometimes, there’s misconduct,” said Chu, noting “in any human endeavor, that will happen. But the critical thing every laboratory needs to have in place is a system to identify these errors, correct them and put in place a system-level solution to guard against it from happening again.” And after that, added Chu, “Laboratories need to have a policy in place to notify all of the affected defendants.”
Unfortunately, the Department of Justice appears to be working against this type of system-wide accountability. In April, just months after the Obama DOJ rejected the findings of the President’s Council of Advisors on Science and Technology report on forensics, current Attorney General Jeff Sessions allowed the charter of the National Commission on Forensic Science to expire. The NCFS was composed of prosecutors, crime lab directors, defense attorneys and scientists charged with improving the field through strategic and timely recommendations.
In August, in an ostensible effort to improve forensic science, Sessions appointed a senior adviser on forensics with a history of opposing increased accountability and scientific rigor for crime labs. Still, the department touted its commitment to forensic processes. “The Department of Justice believes that when the adversarial American legal system functions as intended — including through the support of trained forensic examiners and legal practitioners educated on best forensics practices — justice is advanced,” said Deputy Attorney General Rod Rosenstein in an August 7 statement. “The Department is fully committed to examining and strengthening forensic science despite efforts in the courtroom and elsewhere to reject reliable and admissible forensic evidence.”
Some believe such statements from the current administration to be less than reliable. “Success in law enforcement is analyzed in metrics, i.e. crime rates versus conviction rates,” said Robert Proctor, law lecturer and senior clinical instructor at Harvard Law School’s Criminal Justice Institute. “At the end of the day, it’s all about the numbers and less about justice. With this mentality, the ethical lines between the prosecutors, police and crime lab personnel become blurred.
“Prosecutors, police officers and lab personnel are all soldiers in the prosecution’s army,” said Proctor, depicting how they commonly socialize together, exchange personal feelings about cases, and share a camaraderie based on a singular goal of securing convictions. Proctor cited the recent high-profile scandals in his state of Massachusetts involving crime lab chemists Annie Dookhan and Sonja Farak who, combined, accounted for at least 31,000 false convictions. “Lab analysts should never have ex-parte communications with the prosecutors or investigating detectives on the case prior to or while the evidence is being tested, if ever,” insisted Proctor, who reviewed case communication records where Dookhan “seemed pressured by the prosecutors and police to be a team player and help ensure a quick turn-around, which she seemed all too eager to do. She clearly aimed to please.”
Such crime lab officials, said Proctor, “might start to think ‘no one is looking’ or ‘it’s just another Black thug, so who really cares?” Their sole objective, he noted, is “to get convictions, particularly against people of color.”
For Chu, the larger implications are clear. “Anytime there is a system level problem in the criminal justice system it disproportionately affects communities of color who are disproportionately arrested, convicted and sentenced,” acknowledged Chu. “So for communities of color and the poor, it is particularly important that there be an objective independent and scientific tool that individuals can call upon to reveal the truth in the circumstances under which they are accused.”
Without some adherence to best practices regarding the retention, packaging, storing, tracking and disposing of biological evidence, scenarios like the recent scandal in Austin can happen. After lab supervisor, Diana Morales infamously contradicted herself during testimony preparation in a sexual assault case in May 2016, and it was also discovered Morales had compromised hundreds of DNA samples, an audit uncovered serious flaws and a failure to follow nationally recognized, but not enforced, guidelines going back a decade. As a result, the lab was shut down and employees terminated as its failures were conservatively estimated to have compromised evidence used in over 1,800 convictions.
While the city of Austin has since worked to remedy its technical forensic processes and DNA preservation safeguards, Proctor is as concerned by the contributing and systemic racial problems unlikely to show up in any forensic audit. He pointed out the criminal justice system is, far too often, a direct reflection of the troubled individuals it empowers. “I find too many young prosecutors are brainwashed by a harsh law and order mentality, feel they are doing ‘God’s work,’ were possibly victimized by someone in their life, or just have an axe to grind,” revealed Proctor, noting these are “all the wrong reasons to become a prosecutor” while stressing the need for upfront psychiatric evaluations for prosecutors and other law enforcement officials.
Proctor detailed, on one hand, how cognitive biases “drive the prosecutorial machine both individually and collectively” while, on the other, the prison industrial complex “drives our economy, which requires actual live bodies to incarcerate.” Produced within a historically biased society rooted in and dependent upon the legalization of human bondage, continued Proctor, such cognitive bias by many in law enforcement “causes some to lose all sense of meaning of the words ‘public servant’ and instead become crusaders for their own warped sense of justice or the draconian policies forced on them by department heads to ensure conviction numbers.”
This acknowledged, Chu’s focus is on system-wide solutions that at least make the process more effective and accountable for the humans who handle DNA within it. Along with a pressing need for more research to further support the foundational science behind additional forensic processes, Chu offered, “We need rigorous scientific standards to be set to ensure that forensic science service providers from across the country are implementing the science in a uniform way. At the system level, that is critical to improving the forensic science system.” She pointed to the crime lab in the city of Houston as being an effective model for others across the country given its transparency, high standards and public accountability.
Proctor, all for transparency and accountability, took it beyond forensics and DNA. “We give law enforcement too much power and autonomy, which is why they are able to cover up and lie,” said Proctor, noting, “internal affairs and quality assurance should be stacked with impartial investigators and people from the actual community. Law enforcement must be held accountable and they should be charged and convicted of crimes for lying about evidence, especially in criminal cases where one’s liberty is at stake.
“There must be some deterrent to criminality and an incentive for ethical law enforcement personnel within a department to speak up when they discover wrongdoing because there are many ethical people in law enforcement who are too frightened to cross the thin blue line,” insisted Proctor. “Too many law enforcement personnel lack a sense of outrage that an innocent person could be convicted because of their lies and criminality.”
Ultimately, continued Proctor, “They fail to understand that one bad apple undermines the trust of the entire system.”
