Forensic Science Reform: A 2014 Update

Eric Maloney, MJLST Lead Managing Editor

My article in Volume 14, Issue 2, Two More Problems and Too Little Money: Can Congress Truly Reform Forensic Science?, detailed a number of problems and key players in the field of forensic science reform. Given that this is an ever-changing issue and the problems I examined were, at the time, still largely unresolved, I present this as a quick update on what has happened since the article was published.

Annie Dookhan

Annie Dookhan was the Jamaica Plains, MA forensic drug analyst who resigned from her position and faced various criminal charges stemming from misconduct that included false test results and contamination of drug samples.

In November 2013, Ms. Dookhan eventually plead guilty to a grand total of twenty-seven (!) crimes, including misleading investigators, filing false reports, and evidence tampering. She was sentenced to 3-5 years in state prison, two years of probation, and possible mental health counseling. The sentencing judge described Ms. Dookhan as a “broken person undone by her own ambition.”

However, the consequences of Ms. Dookhan’s conduct have ranged far beyond a sole criminal proceeding. According to the Boston Globe, the state of Massachussetts has spent $8.5m reviewing past drug cases and holding hearings, with the final amount budgeted to be twice that number. State courts have held nearly 3,000 hearings for affected defendants or convicts, not to mention the 600-plus defendants the Globe had found that had had convictions erased or set aside, pending new trials, resulting from Ms. Dookhan’s lab misconduct.

The lab in Jamaica Plains has remained closed since the scandal began, and at least one other analyst who worked with Ms. Dookhan has also been fired, for allegedly claiming to have a college degree she did not have.

St. Paul Crime Lab

The St. Paul Police Department’s crime lab in St. Paul, MN came under scrutiny due to lack of training, documentation, and proper operating procedures, and closed in 2012. At the time of the article, it was largely unknown what potential effect this could have on defendants facing charges or those already convicted.

In contrast with the Dookhan situation, the fallout from the St. Paul lab has been much more minimal. The lab re-opened in August 2013, thanks to a $1m refurbish that included new equipment, new personnel, and a narrower focus on fingerprint analysis, as the lab would no longer perform drug testing. The lab also plans to seek accreditation within the next two years.

The effect on criminal proceedings has also been minimal. Defendants haven’t had much success in challenging their convictions based on evidence tested in the St. Paul lab. While 1,700 drug cases had been cited as possibly qualifying for relief based on their use of St. Paul crime lab evidence, the Star Tribune only identified seventeen cases where public defenders have challenged past convictions. A Minnesota state crime lab re-tested 197 samples from the St. Paul lab and found an innocent substance wrongly identified to be illicit only once; the state lab actually found suspected drugs in two samples that had been cleared by the St. Paul lab.

National Commission on Forensic Science

While Senator Leahy’s legislation did not survive the 112th Congress, there is progress happening at the federal level to study forensic science issues. The Department of Justice and the National Institute of Standards and Technology have come together to form the National Commission on Forensic Science, which recently appointed a number of forensic science experts to the commission. The commission is aiming to develop formal training and certification requirements, as well as policy recommendations and guidelines for professional responsibility. While it’s far too early in this process to judge the efficacy of the commission, its existence will hopefully constitute a step in the right direction for forensic science nationwide.

Chimeras in DNA Forensic Testing: What to Do?

by Ryan J. Connell, UMN Law Student, MJLST Staff

Thumbnail-Ryan-Connell.jpgThe answer as suggested in an essay titled Chimeric Criminals by David H. Kaye in the current issue of the Minnesota Journal of Law, Science and Technology is not to worry about it too much.

The article criticizes the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties by Sheldon Krimsky and Tania Simoncelli. The book has latched on to a particular genetic anomaly referred to as chimerism. Chimerism denotes the presence of two genetically distinct cell lines in the human body. The authors of Genetic Justice want to use this rare condition to show that the supposed assumption that DNA profiling is infallible is incorrect.

Think for a moment about what DNA evidence has done in criminal law. Do not just think of the convictions, but think of the acquittals, and think of those freed from incarceration by innocence projects around the country that can be attributed to the use of DNA evidence. To call DNA evidence into question over such a rare and insignificant condition such a chimerism stretches the confines of reasonableness. Genetic Justice proffers that there is a 1/2400, 1/10, 1/8, and 1/1 incidence of chimerism. Other estimates are no better. A 2010 article in the Globe and Mail entitled “The Dark Side of DNA” called DNA evidence into question and offered that chimerism may be present in anywhere from a tiny population to ten percent of the population. If an entire science is going to be called into question some better statistics might be advisable first.

This book and other sources, such as “Expert evidence: the genetic chimerism and its implications for the world of law” by Daniel Bezerra Bevenuto assume that if genetic evidence is gathered and then does not match the defendant’s DNA that the courts and lawyers will simply dismiss the case. I think courts can handle whatever problems chimerism presents. If DNA is recovered at a crime scene and identifies person X and said person is chimeric and the reference sample he provides doesn’t match the sample recovered at the crime scene the court will rightly be concerned. The natural and simple remedy to this solution is just to test again. Normally chimeric cells are isolated so a second reference sample taken from the suspect should resolve the anomaly.

Chimerism does not preset the problem that the authors of Genetic Justice suggest. It is a rare occurrence that a DNA sample recovered at a crime scene doesn’t match the DNA of the suspect it identifies. And even in those rare circumstances where the DNA doesn’t match it is an easy fix. For a more detailed analysis of this issue please read the article by David H. Kaye in the Minnesota Journal of Law Science and Technology.

The full issue of MJLST in which David Kaye’s article appears can be found here.