Bakersfield Californian

DA's control of crime lab raises questions
BY STEVEN MAYER, Californian staff writer
smayer@bakersfield.com | Friday, Jul 25 2008
Jul 28 2008

The cocaine trial seemed pretty routine — except for one detail.

The defense attorneys argued that the Kern County crime lab was on trial right alongside their clients.

If that’s true, jurors may have exonerated the lab — even as they convicted the two defendants on drug charges earlier this month.

But defense attorneys Fred Gagliardini and Arturo Revelo say their loss at trial was just the opening salvo in a 15-round heavyweight bout with an 800-pound gorilla — the Kern County District Attorney’s office.

“This was just the opening shot,” Revelo said after the trial. “The crime lab should not be run by the district attorney’s office.”

Crime labs around the country have had trouble

• The Kern County crime lab in downtown Bakersfield is one of just three labs in California operated by local district attorneys.

• Other labs in the state are run by law enforcement agencies and private companies.

• Critics worry that employees of crime labs operated by law enforcement agencies and district attorneys stop being “independent finders of fact,” and develop, sometimes unconsciously, a prosecution attitude.

• In 1997, an investigation by the Justice Department found that FBI crime lab agents produced inaccurate and scientifically flawed testimony in major cases.

• In 2001, the credibility of the Oklahoma City police crime lab was shattered when years of work by a veteran lab expert was discredited.

• An 18-year-old man spent 15 years in prison after being convicted of child rape on the strength of testimony by a forensic scientist at Montana’s state crime lab. The man was later shown to be innocent of the crime.

• In 2005, Virginia Gov. Mark Warner ordered an investigation of the Virginia crime lab following the discovery of multiple mistakes in DNA results stretching back more than a decade.

• The Houston police crime lab endured devastating scandal in 2004 and 2005 when forensic results in thousands of cases were called into question.

• A Michigan State Police forensic scientist who acknowledged testing her husband’s underwear for DNA because she suspected him of infidelity was fired in 2007 for violating department policy.

• In 2002, a San Jose Police Department detective described the use of ruse crime lab reports as “standard procedure.” The crime lab is a division of the Santa Clara County District Attorney’s office.

Sources: CNN; Seattle Post-Intelligencer; the Virginian-Pilot; Brent E. Turvey, forensic scientist
Gagliardini and Revelo have been asserting for weeks — inside and outside the courtroom — that the crime lab, which is operated by the Kern County DA’s office, threatens its own credibility by not erecting a “firewall” between the prosecution side of the office and the science side.

A lot of local criminal defense attorneys agree, though many will not speak publicly about the issue. The crime lab is one of only three in California operated by county district attorney’s offices.

“The lab and the prosecutors are both playing on the same team,” Gagliardini said. “That’s not right.”

'BOGUS' CRITICISM

Assistant District Attorney Dan Sparks dismissed the criticism of crime lab.

“That’s totally bogus,” said Sparks, who is second in command at the DA’s office.

The objectivity and accuracy of the crime lab are beyond reproach, he said.

“We are an accurate lab. We have to maintain strict standards set by ... the accreditation agency.”

One thing the critics don’t see, Sparks said, are the many instances in which the crime lab rules out suspects in crimes.

“How much evidence is found not to be contraband?” he said. “We exclude and exonerate people all the time.”

“The best scenario for a crime lab is when the DA runs it,” he added, “because the DA prioritizes the caseload.”

QUESTIONS OF CONFLICT

Questions of improper handling of evidence at the local crime lab arose back in April after Gagliardini gained access to a report filed by prosecution investigator Trent Sproles. The report confirmed that a criminalist employed at the lab handled blood evidence connected to a case involving a close friend of the criminalist’s family.

That kind of personal involvement is prohibited in crime labs and investigative agencies that want to protect the integrity of their evidence, experts say. Criminal science, by definition, should be disinterested in the outcome of tests.

The case in question involves the pending vehicular manslaughter trial of Daniel Patrick Willsey, the man accused of killing Sheriff’s Deputy Joe Hudnall in a head-on crash in the Kern River Canyon in November 2006.

Willsey, who works as an attorney in Southern California, has pleaded not guilty to gross vehicular manslaughter while intoxicated, driving under the influence of methamphetamine and other charges. Lab tests indicated Willsey had meth in his system at the time of the crash.

Gagliardini, Willsey’s attorney, argued that the handling of critical evidence by a close family friend of the deceased raises questions of conflict and presents a direct challenge to the credibility of evidence processed at the downtown crime lab.

But Gagliardini’s concerns go deeper, he says, down to the very foundation of the lab as an investigative arm of the District Attorney’s office.

PROSECUTION AND SCIENCE

In May testimony revealed that the crime lab employee had been written up for the Willsey incident and a copy of the admonition had been placed in her personnel file.

But that narrative was removed when she appealed to a higher-up, Dan Sparks.

All county employees have the right to appeal critical language placed in their file, Sparks said.

The criticism of the employee “was removed because I found it to be unfounded and unfair,” Sparks said.

Revelo and Gagliardini said employees should be treated fairly. But they balk at a prosecutor — who relies on the impeccable reputation of the crime lab to win cases — being allowed to “cleanse” the record of employees.

Why not simply privatize the management of crime labs? they ask. The funding could continue to come from government sources, but the science would be performed and overseen by neutral parties with no vested interest in the outcome.

WHO CARES?

In his closing arguments in the cocaine trial, prosecutor Nick Lackie was straight with the jury. Sure the crime lab is run by the DA’s office, he said. So what.

“Law enforcement cooperates,” Lackie told the jury. “It’s hardly a bombshell.”

The jury apparently agreed.

Following the verdicts, jury forewoman Melissa Perkins said jurors talked about the defense argument regarding the credibility of the crime lab.

“We considered it,” she said. “But none of us really thought that was relevant to the case.”

They did settle on a lesser charge for one of the co-defendants, but that decision had nothing to do with lab evidence. A second juror, Francisco Tamayo, agreed, noting that he viewed the lab’s results as credible.

THE 'CSI EFFECT'

Brent E. Turvey, a forensic scientist and co-author of “Crime Reconstruction” and several other textbooks in the criminal science field, says American juries place a lot of faith in science-based police testimony.

That faith has grown even stronger following the popularity of TV cop shows such as “CSI: Miami.”

“In Bakersfield, you have a particular problem,” Turvey said.

Kern County is home to one of just three crime labs in California operated by a local district attorney’s office.

Turvey doesn’t spout conspiracy theories or accuse DAs of being in league with unethical lab technicians. Rather, it’s simple human nature he’s worried about.

“In the best of circumstances, there’s a tendency of crime lab personnel to work toward a common goal with the agency they work for,” he said.

“They (prosecutors and lab analysts) should not be even close to being on the same team.”

Turvey believes forensic science labs that are not independent entities are more likely to make their results — or the way they interpret those results — match the needs of the team to which they belong.

The phrase that has been used to describe this occurrence is “cops in lab coats,” Turvey said.

But Sparks reiterates: The incident in question was reported, not swept under the rug. And any lab, whether public or private, must remain vigilant to prevent problems that could threaten the impartiality of the work.

Finally, he said, the justice system allows defense attorneys to challenge in court any evidence presented by the prosecution.

That’s the beauty of the adversarial system, he said.

In the meantime, Gagliardini has filed a discovery motion in the Willsey case requesting all e-mails, memos and other correspondence from inside the DA’s office and the crime lab related to the handling of Willsey’s blood sample and the response to it by supervisors and administrators.


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