
SCANDAL TOUCHES EVEN ELITE LABS
Flawed work, resistance to scrutiny seen across U.S.
By Maurice Possley, Steve Mills and Flynn McRoberts
Tribune staff reporters
October 21, 2004
A decade ago, as Earl Washington Jr. neared his execution date, a
leading DNA expert first suggested an analyst in the vaunted Virginia
state crime lab might have erred in the case.
The lab's director, Paul Ferrara, rejected the criticism as unfounded.
In April, when a second expert hired by Washington's lawyers questioned
another round of tests, Ferrara dismissed him as a "hired gun" and
rebuffed calls for an outside review.
Several months later, three other experts--this time not paid by
the defense --reached the same conclusion. The lab's analyst, they
said, had misinterpreted the evidence, but Ferrara again balked at an
outside review.
"I'm not going to admit error when there is none," Ferrara said in
a recent interview at the highly regarded Richmond facility, the first
state lab to build a database linking evidence from unsolved crimes to
suspects through their genetic profiles.
Within days of that statement, the lab experienced another first.
On Sept. 30, the governor of Virginia ordered an audit of the lab's
work on the Washington case.
That it took a governor's edict to force one of the nation's
most-respected labs to allow such a review illustrates the broader
problems undermining confidence in the nation's crime labs.
Revelations of shoddy work and poorly run facilities have shaken
the criminal justice system like never before, raising doubts about the
reputation of labs as unbiased advocates for scientific truth.
The far-reaching crime lab scandals roiling the courts are unlike
other flaws in the criminal justice system--the rogue prosecutor, the
incompetent defense attorney, the unscrupulous cop--because for years
the reputation of the labs had been unquestioned.
But the consequence of lab errors, whether due to incompetence,
imprecision or fraud, is frequently the same--an innocent person behind
bars.
A Tribune examination of the 200 DNA and Death Row exoneration
cases since 1986--including scores of interviews and a review of court
transcripts and appellate opinions--found that more than a quarter
involved faulty crime lab work or testimony.
In recent years, evidence of problems ranging from negligence to
outright deception has been uncovered at crime labs in at least 17
states. Among the failures were faulty blood analysis, fingerprinting
errors, flawed hair comparisons and the contamination of evidence used
in DNA testing.
Scandal also has hit the FBI crime lab, long considered the nation's
top forensic facility.
In the mid-1990s, a lab whistle-blower touched off a broad inquiry
over allegations of improper handling of evidence. It led to the firing
of several lab officials and the overhaul of protocols and procedures.
In May of this year, an FBI analyst, Jacqueline Blake, pleaded
guilty to a misdemeanor charge of making false statements about
following protocol in some 100 DNA analysis reports.
Though the FBI said its review found no wrongful convictions
resulting from her work, the Justice Department's inspector general
concluded that the lab's failure to detect her misconduct "has damaged
intangibly the credibility of the FBI laboratory."
Blake was dismissed from the lab and last month was placed on 2 years
of probation.
Veteran lab directors around the country contend the exposure of such
scandals is evidence that labs are policing themselves.
In most cases, however, lab problems have come to light only after
defendants have challenged their convictions.
"Virtually every major lab scandal has been broken by a
post-conviction DNA exoneration," said Barry Scheck, a founder of the
Innocence Project, a non-profit legal clinic that has helped exonerate
dozens of inmates.
Given the sheer volume of cases that labs handle, the discovery of
even a single flawed analysis raises the prospect of re-examining
hundreds, if not thousands, of cases.
In many jurisdictions, the task of re-evaluating that many cases
is so daunting that authorities have declined to conduct broad audits,
despite evidence that analysts have committed errors or engaged in
fraudulent practices.
One of their well-placed fears: that uncovering additional
problems in a lab would spawn lawsuits or unravel an untold number of
convictions.
Two of the nation's highest profile crime-lab scandals--involving
analysts Fred Zain in West Virginia and Joyce Gilchrist in
Oklahoma--resulted in the exonerations of at least 10 defendants,
millions of dollars in settlements and broad reviews of hundreds of
their cases. Both were accused of falsifying test results and giving
false testimony; both denied any wrongdoing.
Earlier this year, in response to the DNA exoneration of a man who
served 13 years in prison for rape, the city of Cleveland appointed an
independent special master to review all the casework and, if
necessary, retest the evidence handled by one analyst, and conduct a
random audit of others in the lab.
But such a response has been uncommon.
In Texas, Gov. Rick Perry has rejected a plea from Houston's
police chief to halt executions of inmates convicted in Harris County
until the scope of problems at the police crime lab can be determined.
Two inmates from Harris County have been executed in recent weeks
since Chief Harold Hurtt announced the discovery of 280 boxes of
evidence from at least 8,000 Houston cases spanning 25 years. The boxes
contained everything from clothing and weapons to a fetus.
Even before the latest crisis, revelations of incompetent analysts
in the police lab's DNA section forced Houston authorities to shutter
it. The new questions cover everything from firearm identification to
blood typing in a jurisdiction that has sent 75 people to the death
chamber, more than most states.
Earlier this year, Boston police admitted that two fingerprint
examiners had linked Stephan Cowans to the 1997 shooting of a police
sergeant, even though a later review found that the comparison, in the
words of Massachusetts Atty. Gen. Thomas Reilly, "wasn't even close."
An outside consultant then conducted a broader examination of
thousands of prints in the Boston police fingerprint unit, "and the
only error he found was in the Cowans case," said police spokeswoman
Beverly Ford. Last week, the department turned over all fingerprint
examinations to the state police until it can get its own lab
accredited.
In Montana, the state Supreme Court narrowly voted last month to
dismiss a petition seeking an independent audit and retesting of
evidence in hundreds of cases handled by a former state crime lab
examiner whose erroneous hair-comparison testimony contributed to three
wrongful convictions.
Among other revelations, the scandals have exposed the lack of
independent oversight and the often-ineffective standards governing the
labs that analyze forensic evidence.
Lab directors contend that the American Society of Crime
Laboratory Directors' accreditation board, which will review Virginia's
work in the Washington case, are sticklers for quality and accuracy.
But even some tough-on-crime politicians question the effectiveness of
the board's review teams.
"Everyone boasts that their labs are certified by them," said
James Durkin, a former Cook County prosecutor and former Republican
state representative. "I believe they are more of a fraternal
organization than an authoritative scientific body."
Reputation under fire
Walking through the Virginia state crime lab in Richmond--the
centerpiece of the state's four-lab system--Paul Ferrara is visibly
proud of its accomplishments.
It has long been a leader in DNA testing. In June, the lab, which
is not affiliated with a law-enforcement agency, passed a crime-solving
benchmark: its 2,000th "cold hit," linking unsolved crimes to suspects
through its DNA database. Last month, a newspaper clip touting the
achievement still sat on a table in Ferrara's office.
But the Washington saga and criticism of the lab's testing in other
cases have threatened to undermine the lab's reputation.
"They're very protective of the reputation that they're the gold
standard for crime labs," said Betty Layne DesPortes, a Richmond
defense attorney and jurisprudence section chair of the American
Academy of Forensic Sciences.
Of the 200 DNA and Death Row exonerations in the U.S. since the
mid-1980s, few have loomed larger or have been as controversial as the
case of Earl Washington Jr.
It began in 1982, when Rebecca Williams was found stabbed 38 times
in her Culpeper, Va., apartment. Authorities claimed Washington
confessed, though his attorneys said police took advantage of the
mildly mentally retarded farmhand to get a false confession.
At trial, Washington maintained his innocence, but he was convicted and
sentenced to death.
Doubts about his guilt persisted. In 1993, as Washington faced
execution and as DNA testing began to gain wider acceptance in forensic
labs, then-Gov. Douglas Wilder ordered testing to help resolve the
question.
The work was done by Jeff Ban, a top DNA analyst in the lab and
now a member of a panel of scientists that sets national DNA standards.
Ban performed tests on a vaginal swab taken during the autopsy on
Williams and on a semen stain on a blue blanket recovered from her
apartment.
Ban reported that Washington was excluded as the source of the
semen stain on the blanket but said the result of his analysis on the
vaginal swab was less clear. He said that while he had found a genetic
trait that did not belong to Washington, the victim or the victim's
husband, he could not eliminate Washington as a potential source of
semen.
On Jan. 14, 1994, nine days before the state was scheduled to
execute Washington, Wilder commuted Washington's sentence to life in
prison, saying the test results raised a "substantial question" about
Washington's guilt.
Wilder, who was leaving office, declined to pardon Washington
altogether because the DNA test that failed to exclude him did not
erase all doubt about his involvement in the crime.
Henry Erlich, a developer of the DNA test that Ban used, then
examined Ban's work at the request of Washington's defense lawyers. He
said that Ban had misinterpreted the results--and that Washington
should have been excluded.
Six years later, prompted by the still-lingering doubts over
Washington's guilt and continued advances in DNA testing, then-Gov.
James Gilmore ordered the lab to conduct another series of tests on the
evidence.
Again, Ban did the work. Again, his tests sparked debate.
According to Ban's report, the tests revealed a genetic profile on the
blanket that did not belong to Washington.
The unknown profile was plugged into the state's DNA database. It
linked to Kenneth M. Tinsley, who previously had been convicted of rape
in Illinois and whose genetic profile had been added to the Virginia
database after he was convicted of a rape there and sentenced to life
in prison, according to authorities.
Ban further reported that he was unable to obtain a genetic
profile from a slide made from the vaginal swab--although at
Washington's trial, a medical examiner had testified there was an
abundance of sperm on the slide.
Even more puzzling were the results of his tests on a second,
similar slide. Not only did Ban exclude Washington, but he excluded
Tinsley and, according to his report, turned up two additional
unidentified genetic profiles.
The exclusion of Washington was enough for Gilmore to grant him a
pardon--just as Ban's earlier test was enough to prompt Wilder to
commute his death sentence. After 17 years in prison, more than nine of
them on Death Row, he was set free.
That did not settle the matter, though.
Tinsley's DNA was detected by the lab on the blanket. But because
Ban said he did not find it on the slides, authorities did not
prosecute Tinsley, leaving the case open. The test results prompted
some police officers to continue saying they believed Washington was
involved.
Duplicate slides were sent to Dr. Ed Blake, a DNA expert, who was
working for Washington's attorneys. His tests isolated only Tinsley's
genetic profile, he said, and conclusively eliminated Washington.
In his report, Blake called Ban's work "logically incoherent. ...
The result is so nonsensical and so covered with red flags that it
should never be published."
Blake's assessment gave new ammunition for Washington's lawyers,
including Peter Neufeld of the Innocence Project, who are suing police
in federal court. Neufeld called for an audit of Ban's work and, more
broadly, all of the lab's DNA work.
Ferrara stood behind Ban, dismissing Blake because he was hired by
the defense and because he believed Blake's analysis had no merit.
Three other DNA experts, at the request of a Virginia newspaper,
reviewed Ban's reports. They all agreed that his work was troubling and
warranted further scrutiny.
Again, Neufeld called for an independent audit of Ban's work.
Ferrara again refused.
In an interview with the Tribune, Ferrara said it is possible for
two scientists to come up with different test results because no two
samples are alike--although Ban and Blake tested slides created from
the same swab.
"As far as we're concerned, there is no error at all except in the
minds of [critics]...," Ferrara said. "When you're on the top of the
heap you are going to have someone trying to knock you down."
The accreditation board requires that when a lab identifies an
analytic error, it must do a review and recommend corrective action,
with the possibility of a broader review of either a single analyst or
a particular section.
But the requirement is triggered only when a lab admits error.
And Ferrara said in the interview that he had no intention of
doing so. Soon after, though, Gov. Mark Warner stepped in and ordered
him to seek a review.
"The governor believes that an outside investigation will help
maintain the lab's reputation," a Warner spokeswoman said, "and help
maintain confidence in our criminal justice system."
Lost evidence
Any crime lab scandal raises serious concerns. But nowhere are the
stakes higher than in Harris County, Texas, because of how many people
it sends to the state's busy execution chamber.
So the recent news that police had found 280 boxes of evidence in
a police property room shook the legal community in Houston, the county
seat. Defense attorneys want to know what evidence is in the boxes and
if it can help their clients on appeal.
In belatedly announcing the discovery, Hurtt, Houston's new police
chief, urged Gov. Perry to halt all executions of inmates from Harris
County until the evidence could be reviewed. The chief plans to ask the
Houston City Council to appoint a special investigator to conduct a
review.
"We don't believe in our heart that this is going to jeopardize
any case. We are hopeful, anyway," said Hurtt's spokesman, Alvin
Wright. "But we want to make sure justice is served correctly."
Beyond the lost evidence and faulty DNA analysis, the Houston lab has
seen its firearm analysis come under scrutiny.
In the case of Nanon Williams, convicted of a 1992 drug-related
murder, a Houston firearms examiner testified the victim was shot with
a .25-caliber bullet.
That was the same caliber of Williams' gun.
Six years later, the same firearms examiner reviewed the case
again and determined that the bullet was a .22-caliber from a
co-defendant's gun. The firearms examiner acknowledged that he had
never tested that weapon.
The same firearm examiner testified against Johnnie Bernal, who
was sentenced to death for a 1994 murder. At trial, the examiner said
the bullet in the murder came from a gun that police seized from Bernal
when they arrested him.
But the examiner conceded he cleaned the gun barrel and fired it
25 times before he could declare a match. Firearms examiners typically
fire a weapon two or three times before they declare matches.
The lawyer for Dominique Green is citing concerns about testing at
the lab in seeking a delay in his execution, which is scheduled for
next week.
Green was convicted for his role in the October 1992 murder of a
Houston man during an armed robbery. Two other men implicated in the
crime testified against Green and received sentences of 10 and 30 years.
Prosecutors charged that Green was the gunman, saying a
semiautomatic handgun believed to have been used in the murder was
found in a car Green had been riding in. A veteran Houston firearms
examiner, Ray Klein, was the prosecution's last witness and provided
key testimony.
Klein testified that he test-fired the gun, then examined the
fired bullet under a microscope to tell if the unique markings left on
the bullet as it traveled through the barrel matched those from the
bullet taken from the victim.
Green, while admitting he took part in the robbery, denies firing
the fatal shots, said his lawyer, David Dow, a law professor and the
director of the Texas Innocence Network. Dow said a review of Klein's
comparison could settle the question of whether the gun found in the
car was used in the murder.
"Our concern is that it's the same lab. It's the same technique.
And it's proved to be unsound in other Harris County death penalty
cases," Dow said.
Roe Wilson, an assistant Harris County district attorney, said she
was confident in the lab's work and dismissed the defense's attempt to
delay the execution. "They're basically trying to use the problems that
have arisen in the Houston crime lab," Wilson said. "And those problems
don't apply in this case."
A legacy of questions
It is unlikely that anyone had more influence on the Montana state
crime laboratory than founder Arnold Melnikoff. The question is whether
that influence has tainted the lab's work.
Director of the lab for nearly two decades, Melnikoff left in 1989
to become an analyst for the Washington state police crime lab. But 15
years after his departure, questions have been raised not only about
his work on specific cases, but also about his legacy as a lab director.
Three Montana men he helped convict of rape have been exonerated
by DNA, and Melnikoff's testimony in those cases has been discredited.
His new employer, the Washington state lab, fired him in March after an
audit of his toxicology work there criticized his lab procedures and
accused him of inflating his testimony to help prosecutors.
The question looming over the Montana crime lab was framed this
year in a petition filed with that state's Supreme Court seeking a
broad review of the more than 200 cases Melnikoff had handled.
The petition, filed by the Innocence Project and joined by five
former Montana Supreme Court justices, urged the review not only
because of Melnikoff's errors, but also because of his influence on the
lab.
"If `juicing' the testimony, offering unprofessional statements,
and making scientifically unsupportable claims was his gold standard,
we must infer that this is the standard of practice that he conveyed to
his employees," the petition asserted. "Many of these staff now hold
supervisor positions at the lab."
The lab's current administrators say Melnikoff trained none of
their present lab employees. Whether he nonetheless shaped the culture
of the lab may remain unknown: The petition was dismissed days after it
was filed. The Supreme Court said it did not have jurisdiction to order
the review.
With a bachelor's degree in biology from Northern Illinois
University and a master's degree in chemistry from the University of
Montana, Melnikoff established the state's first crime laboratory, in
Missoula, in 1970.
He began by handling chemistry and toxicology tests and gradually
expanded into other disciplines such as blood typing and hair and fiber
analysis. He analyzed samples of suspected drugs and substances in
suspected arson cases, according to the petition.
He guided the lab through the first two decades after it was started in
a building that once housed a vaudeville theater.
Over the years, Melnikoff developed a unique manner of testifying
about hair evidence, using a statistical analysis he said was based on
his own examinations. He said he had analyzed hair in 500 to 700 cases
and found matches between unrelated people only a few times.
Based on that analysis, Melnikoff testified that the odds of a
person other than a particular defendant having the same hair were 1 in
100. In some cases, he extended his analysis further--using odds of 1
in 10,000.
Melnikoff used his statistical estimation in the prosecution of
Chester Bauer in 1983, Jimmy Ray Bromgard in 1987 and Paul Kordonowy in
1989. All were convicted. All have since been exonerated.
In the wake of the exonerations, a panel of forensic scientists
was organized by the Innocence Project; they unanimously criticized
Melnikoff's statistical analyses as scientifically unfounded and wrong.
Through his lawyer, Melnikoff declined to comment for this article. He
is appealing his dismissal.
After Kordonowy was exonerated last year, the Innocence Project
sought an independent audit and retesting of every hair case in which
Melnikoff was involved.
In response, Montana Atty. Gen. Mike McGrath ordered a review of
270 prosecutions in which Melnikoff testified. Officials read through
trial transcripts and case files, but McGrath declined to order
retesting of any evidence or reopen any cases. The state crime lab's
advisory board concurred.
Challenging those decisions, the project and former judges filed
their petition with the Supreme Court in August, seeking an independent
examination and retesting of those cases.
Bill Unger, director of the lab, said in an interview that lab
officials did not urge McGrath to retest the evidence in part because
the cases were so old and in part because there is a backlog of pending
cases waiting to be analyzed.
"Timeliness was part of the reason," he said. "My biggest
nightmare is workload. If the legislature would give us a couple of
positions, it would be fine."
Though Unger said no current lab employees were trained by
Melnikoff, the petition alleged that the problems go beyond him and
involve other lab analysts who "have followed Melnikoff's lead."
Specifically, the petition focused on Julie Long, an analyst at the
Montana lab since 1980.
In a 2002 case, the lab was asked to analyze the underwear of a
Bozeman woman who said she had been sexually assaulted. Lab personnel
reported that "no indications of seminal fluid were detected."
But when defense attorneys hired Blake to examine the evidence, he
found semen and sperm. Blake called the crime lab's failure to find the
genetic evidence "mind-boggling."
Long, who was the lab's head of quality assurance and control,
said the evidence was missed because no microscopic examination was
conducted--a practice that has long been standard at most labs in the
country.
"It wasn't in our protocol," she said. "We have since changed that."
The defendant, Joshua Stephen Warren, was acquitted after more than 500
days in jail.
`We're the white hats'
Many crime lab officials contend the scandals that have unfolded around
the nation demonstrate how tough they check themselves.
"We hold ourselves to a much higher standard. ...," said Don
Plautz, who worked for 24 years as a lab director and in other posts
with the Illinois State Police crime labs before retiring in 2002. "The
bulk of problems I've dealt with in forensic science have been
identified by the fellow forensic scientists."
But many crime labs are fiercely resistant to letting outsiders check
to make sure that is true.
Janine Arvizu knows her way around a lab. She once ran the Navy's
program to audit the commercial and government laboratories that the
Navy uses, and she managed an analytical lab for the Department of
Energy in Idaho.
When she started her own consulting firm and began working with
defense attorneys in recent years to check the quality of crime labs,
she was stunned.
"Their attitude, you don't encounter elsewhere: We work for the
good guys. We're the white hats," Arvizu said. "They're very
uncomfortable with this idea of independent oversight, which is a
fundamental precept of laboratory quality assurance."
She has audited written records and other data from dozens of
forensic labs across the country. Only one of those labs allowed her
inside its doors--and only because a judge ordered the lab to let her
in.
A fundamental principle of quality assurance is that the higher
the stakes--in health and safety--the more checks and controls a lab
should have. So Arvizu puzzled for a long time about why the standards
seemed so relatively low for crime labs, given that people's liberty is
at stake.
She concluded there is little natural constituency, at least not
outside the walls of American prisons.
"There's no upswelling of people who feel they're at risk from
failures by crime labs," Arvizu said. "It will take the son of a
federal judge to be wrongfully convicted on the basis of flawed
forensics to make the kind of quantum improvement in forensic quality
standards that needs to happen."
Not all crime labs have been defiant in the face of questions
about their work. One possible model for dealing with lab scandal is
developing in Cleveland.
In 2001, Michael Green was released after spending 13 years in
prison for a rape that DNA tests proved he did not commit. Another man
has since confessed to the crime.
At issue in Green's prosecution were blood-typing tests conducted
by Cleveland police lab technician Joseph Serowik. This year, Cleveland
officials acknowledged that Serowik's lab work was flawed.
In settling a wrongful-conviction lawsuit filed by Green, the city
agreed to pay him $1.6 million. More important, perhaps, officials
agreed to the appointment of independent experts to review more than
100 of Serowik's cases dating to 1987.
"If there are other Michael Greens out there, we want to know who
they are," said Subodh Chandra, a former federal prosecutor who is the
city's law director.
"As a public official, you can view this simply as an issue of
financial liability and trying to avoid embarrassment," Chandra added,
"or you can view it as trying to improve the criminal justice process."
Scheck, who also is president of the National Association of
Criminal Defense Lawyers, sees progress in Cleveland's response and in
recent legislation passed by Congress.
One measure, the Paul Coverdell Forensic Science Improvement Grant
Program, would legally obligate crime labs seeking the grants to have
an independent auditor in place to conduct "investigations into
allegations of serious negligence or misconduct substantially affecting
the integrity" of lab analysis. Grant amounts for each state could
range from tens of thousands of dollars to $800,000.
The provision would mean some labs that have not done audits after
allegations of errors would be barred from receiving the money.
"Certainly that's our intent," said Sen. Jeff Sessions (R-Ala.), chief
sponsor of the Coverdell Act. "If you get this money, you do have to
have an accountability process."
In Baltimore County, for instance, officials pledged a review of
analyst Concepcion Bacasnot's cases after DNA tests in 2003 exonerated
an inmate whom her work helped convict of rape. In another case, she
said she did not understand the science involved in her work. She later
resigned saying it was for personal reasons.
Baltimore officials identified nearly 500 cases that Bacasnot was
involved in. But saying they didn't have the money or staffing for it,
they decided against a review, leaving it up to defendants and their
lawyers to investigate cases themselves.
Most of the attention and tens of millions of federal dollars,
though, have gone toward easing the backlogs of unanalyzed DNA samples
that have overwhelmed many crime labs. Last week, Gov. Rod Blagojevich
announced Illinois' share of that money, more than $3.2 million.
Earlier this month, when Congress passed the Innocence Protection
Act, it included a provision allowing states to spend funds on forensic
analysis other than DNA testing--but only when there is no DNA backlog.
"Fingerprints, fiber tests, ballistic tests on bullets and
cartridges, chemical and drug analysis and others are far more frequent
and often just as important to justice in a particular case as DNA,"
said Sessions, who argued for the amendment.
"Clearly," he added, "we need to be working hard to improve our
entire forensic science system, not just one small aspect of it." |