Will Sodsaver Save the Prairie Pothole Region?

March 16, 2014
Environment

Joe McCartin, MJLST Staff

In recent years, high crop and farmland prices, in combination with technological advances in agriculture, have pushed crop producers to convert virgin prairie at an alarming rate. Minnesota, for example, was once covered in prairie. Yet, today only 1% remains of the 18 million acres that once covered the state, and that too has come under threat. Exacerbating the problem is the fact that federal subsidies and crop insurance treated crops equally even if they were being grown in an ecologically destructive manner. A crop producer received taxpayer support even for corn and soybeans grown on virgin prairie that had just been plowed-under. These were often areas once considered marginal for crop production, but they held enormously high value for wildlife and helped protect water quality from other agricultural erosion and pesticide and fertilizer pollution.

The recently passed Farm Bill, the Federal Agricultural Reform and Risk Management Act of 2014, included a new program, Sodsaver, proposed by Ducks Unlimited and advanced by a diverse array of organizations, from the Theodore Roosevelt Conservation Partnership and Trout Unlimited to the Union of Concerned Scientists and the World Wildlife Fund. The program aims to shift the incentives that make the plowing of virgin prairie so appealing. It works by preventing farmers from enrolling virgin prairie, land that has not been planted with crops previously, in the federal crop insurance program. Since subsidies will slowly be phased-out for most crops, preventing access to crop insurance will prevent taxpayers from footing the bill for the ecologically damaging process of planting on virgin prairie. By forcing farmers to rely entirely on free-market forces for crops grown on this land, Sodsaver hopes to make the often lucrative decision to plow the prairie riskier for crop producers. Unfortunately, the program was only implemented in a limited number of states that make up the Prairie Pothole Region – Minnesota, Montana, the Dakotas, Iowa, and Nebraska.

Because the program does not mandate that crop producers preserve their native, virgin prairie, but merely withholds taxpayer support if the decision is made, it is forecast to save taxpayers nearly $120 million over 10 years. These savings could grow substantially if the program had not been limited to a handful of states. However, the important question remains unanswered, will this change the behavior of crop producers. While removing crop insurance coverage seems to be a logical first step in stemming the tide of prairie loss, it is only a first step. Whether it will be enough will depend heavily on crop prices and actions by grassland states to protect and restore these priceless ecological resources. A diverse array of migratory waterfowl and songbirds very survival depends on the success of Sodsaver in these trial states, and the program’s expansion into all grassland states.

The author served on the Policy Council of the Theodore Roosevelt Conservation Partnership, one of the supporters of the Sodsaver program.

E-Cigarette Trend Will Likely Subside After Federal and State Regulation Weighs In

March 16, 2014
FDA

George David Kidd, MJLST Managing Editor

Who could have predicted that development of better portable-battery technology would unleash such a radical transformation of tobacco consumption? By vaporizing nicotine-infused water vapor via the e-cigarette, the new trend, called “vaping,” has certainly turned a few heads. Not only has the use of electronic cigarettes doubled among middle and high school students from 2011-2012, but Bloomberg Industries predicts that the sale of electronic cigarettes might surpass the sale of other tobacco products by 2023. As of 2014, e-cigarette sales are still growing rapidly. Bold predictions in e-cigarette sales growth, however, fail to take into account the role that tobacco regulation will play in discouraging the trend. Federal and state regulations have yet to definitively weigh in on the issue.

Despite its announced plans to regulate e-cigarettes as tobacco products in 2011, the FDA has not yet taken action. Future FDA regulation will almost certainly be modeled upon current tobacco regulation to the extent that e-cigarettes are comparable to combustible tobacco products. For example, nicotine is still addictive. It can still be dangerous for those with heart problems and might cause other cardiovascular ailments over time. Those who stop the consumption of nicotine may face withdrawal symptoms that could include irritability, depression, restlessness, and anxiety. However, e-cigarette vapor avoids consumption of carcinogenic chemicals in smoke that are released by the combustion process.

To the extent current federal tobacco regulations are concerned with the direct consumer consequences of smoking, such as the disclosure of ingredients, labeling requirements, and ingredient quality, FDA regulation of e-cigarettes will closely mirror that of traditional tobacco products. Consequently, quality-control procedures and required labeling will only serve to increase the cost of e-cigarettes to consumers, and discourage sales.

State laws, such as those discussed in Smokers: Nuisances in Belmont City, California–In Their Homes, But Not on Public Sidewalks, by Georges Tippens, are primarily concerned with the effects of secondhand smoke. As of 2014, most states have banned smoking in enclosed public places due to concerns over the dangers of secondhand smoke. However, there is no definitive study as to whether e-cigarette vapor has any secondhand effect. Some states are, nevertheless, proactively seeking to extend current regulations, which ban smoking in enclosed public areas, to e-cigarettes. Other states, however, seem to be waiting until more information becomes known about whether e-cigarette smoke is harmful.

Even if e-cigarette vapor is found to be harmful, the question of whether e-cigarette vapor is “as dangerous” as the smoke produced by traditional combustible tobacco products will take decades of research to answer. In this day and age, if scientific evidence provides that secondhand smoke does have a secondhand effect on others, it is improbable that the question of how similar e-cigarettes are to traditional combustible products will have any impact on the extent of state regulation. In this case, e-cigarette regulation will feasibly mirror current state regulations that ban the use of combustible tobacco products in enclosed public places, and will provide a disincentive to e-cigarette sales.

BP’s Deep Water Horizon Oil Spill Litigation Drags on in the Eastern District of Louisiana

March 12, 2014
Environment

Daniel Schueppert, MJLST Staff

With the recent celebration of Mardi Gras not long past, Louisiana and other southern coastal states are once again making national news. Meanwhile, in the background of these festivities, lawyers and the courts are toiling away at ongoing litigation arising from the Deep Water Horizon oil spill: a spill that began almost four years ago, lasted at least eighty-seven days, and caused the deaths of eleven people.

In 2012 Daniel Farber published an article titled The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast in vol. 13 of the Minnesota Journal of Law, Science & Technology. In his article, Professor Farber analyzed the pre-spill, post-spill, and anticipated condition of the oil-affected coastal states. Many of the issues identified in his paper continue to be troubling in light of the disruption caused by the oil spill. In addition to the environmental and regulatory issues that face these states, the Eastern District of Louisiana is embroiled in a prolonged legal battle related to destruction of digital evidence that might have made a difference before or during the well blowout.

Kurt Mix was a drilling engineer for BP assigned to the Deep Water Horizon at the time of the blowout off the coast of Louisiana in April, 2010. In the course of his work, Mix had access to, and a degree of control over the production of, internal BP data about the rate and amount of oil flowing out of the damaged Macondo Prospect well upon which the Deep Water Horizon was sited. BP publicly issued statements that the well had a flow rate at the time of about 5,000 barrels daily, but during the same period, BP and Mix’s team allegedly knew that the rate was closer to 64,000 to 146,000 barrels per day, according the government’s related complaint against BP directly.

In May, 2012 “Mix was charged by the United States in a two count indictment with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). . . . based on his allegedly deleting certain iPhone texts to BP’s then-Drilling Engineering Manager . . . .” for the region and a third party contractor who was assisting with the spill and blowout response. U.S. v. Mix, 12-171, 2012 WL 2420016 (E.D. La. 2012). Mix was found guilty on this obstruction charge despite having previously released that information to U.S. government representatives, and according to a Forbes article, Mix’s disclosures were a primary source comprising the basis of the government’s claims against BP. He is the only natural person to have had claims related to the oil spill stick. The content of the texts themselves have so far not been recovered despite his conviction, which raises questions about the procedural management and prosecutorial discretion used in this collection of cases related to the Deep Water Horizon blowout. Following Mix’s conviction, there has been a procedural dance of more than twenty actions between the United States and Mix, touching on issues of attorney privilege, judicial conflicts of interest, criminal and civil procedure, and proportional liability for allegations based on extinct digital evidence.

Breathalyzers v. Blood-Alcohol Tests

March 12, 2014
Law Enforecement

Jenny Nomura, MJLST Managing Editor

In the MJLST volume 11 spring edition, David Liebow discussed the difficulties of obtaining the source code of breathalyzers in DWI cases. In his note “DWI Source Code Motions after Underdahl” Liebow argues for easier breathalyzer source code access for DWI defendants. Obtaining the breathalyzer source code could help DWI defendants show the unreliability of the machine. In the years following the note, not much appears to have changed. And in some states it might not change for a long time, if ever.

The Minnesota Supreme Court received a case in which the source code of the Intoxilyzer 5000EN was in question (In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525 (Minn. 2012)). The District Court had accepted the testimony of the state’s expert witness that the device was accurate, and the Minnesota Supreme Court affirmed that holding. In a dissent, Justice Page stated that “a defendant may not raise the source code as a potential cause of an inaccurate or deficient sample.” Other states have reached a very different conclusion: that maybe breathalyzers shouldn’t be relied on. In Pennsylvania, a county judge held breathalyzers were not accurate above a reading of 0.15.

So what does the future hold for breathalyzers? There is a tangle of recent case law that might play a role in determining whether police use breathalyzers or blood-alcohol tests. In Pennsylvania, police have switched from relying on breathalyzers to blood-alcohol tests in response to the county judge ruling. However, in a recent United States Supreme Court case, Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court held police must obtain a search warrant or have exigent circumstances to have a blood-alcohol test done for a person arrested for a DWI. That case seems to push police back to relying on breathalyzers. But the Minnesota Supreme Court held in Minnesota v. Brooks, 838 N.W.2d 563 (Minn. 2013) that Brooks gave consent voluntarily and freely at the time of the arrest to submit to the blood-alcohol test, and therefore the police didn’t need a search warrant or exigent circumstances.

If police officers are able to obtain a blood-alcohol test, then the prosecution might not need to rely on the breathalyzer results in order to obtain a conviction. If the breathalyzer results “don’t matter” (“don’t matter” in the sense that the results aren’t used as evidence in court) then maybe the source code of the breathalyzer machines also “doesn’t matter.” Maybe the new focus will be on the blood-alcohol tests.

Lethal Injection, Moral Compunction

March 12, 2014
Uncategorized

Becky Huting, MJLST Staff

Ohio inmate and convicted murderer Dennis McGuire was recently executed by lethal injection with a new combination of drugs. Ohio had run out of the standard drug pentobarbital because European manufacturers like Danish-based Lundbeck had imposed stringent restrictions on sales, prohibiting distribution to prisons that perform executions. In response to the shortage, the Ohio Department of Rehabilitation and Correction amended its policy to allow for the use of midazolam and hydromorphone, a combination that had never been used before in an execution.

MacGuire’s lawyers argued that he would “suffocate to death in agony and terror.” The State’s expert Dr. Mark Dershwitz indicated that he had no way of knowing the duration of time before the drugs would take effect. “There is no science to guide me on exactly how long this is going to take.” MacGuire’s execution took 24 minutes, with the man gasping for air between 10 and 13 minutes. Reporter Alan Johnson stated, “He gasped deeply. It was kind of a rattling, guttural sound. There was kind of a snorting through his nose. A couple of times, he definitely appeared to be choking,”

MacGuire was convicted of the 1994 rape and murder of 22-year-old Joy Stewart, who was seven months pregnant. Her body was discovered by hikers in a creek; her throat was cut and she had been sodomized. There are many people in our country who would say, “Serves him right, MacGuire got what was coming to him. Let him suffer an awful, painful, frightened death just as his victim did. Why should I care about what happens to an evil, unrepentant killer? The world is a better place now that he’s gone, and I’m glad it hurt.” Can you hear the rumble? Are these not the same individuals who care about the tenants of our good country? Do they not tout the glory of our constitution?

The eighth amendment is short, but it is probably most recalled for its last six words: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” What does cruel and unusual punishment mean? Some say this is a subjective concept. Others, like Justice Brennan, have floated some principles one might consider (Furman v. Georgia, 408 U.S. 238 (1972)): it could be punishment that is degrading to human dignity or that which inflicts it in wholly arbitrary fashion. Is there a way, though, to administer the death penalty in a fashion that respects human dignity? Former British Cabinet Minister Michael Portillo established a set of principles he believes is effective: death should be quick and painless to prevent suffering, medical education should be provided to the executioner to prevent suffering caused by error, the death shouldn’t be gory (also to protect those carrying out the execution and arguably the witnesses), and you shouldn’t force the inmate to cooperate in his own execution.

Whether to be concerned with agony and suffering in a death row inmate is a subjective decision based in an individual and community sense of justice. Yet it would be hard to deny that there is a change in how this process is being administered. This resolute rumbling I refer to, it must too engage in a set of values checking. If your code is the Constitution, does this still fit under your interpretation of the 8th amendment? If your code is not the 8th amendment, do you justify your reception of this new method in lex talionis (an eye for an eye)? What is stopping you from carrying out justice yourself, and if you want to, do you actually want to participate in a civilized society? Why shouldn’t creating that be the goal; aren’t we slipping back toward a time where men were hanged in the public square? Are you okay with going back?

Virginia too is running out of pentobarbital, and is now adding the new drug Midazolam to its execution process, despite objections of the drug’s manufacturer, Hospira, which has publically objected to the use of their product for capital punishment. Undoubtedly, more capital punishment states will continue to follow Ohio’s lead, leading to more inmates reaching their lengthy, choking ends this way. One inmate, Michael Lee Wilson, had some expressive last words: “I love everybody…I love the world…love my daughters for me…I feel my whole body burning.” Are we going to stand by our convictions or are we going to recognize that something is amiss here? Are we civil or savage?

Genetic Testing: Thorny Ethical Puzzles in Returning Results From Researchers

March 1, 2014
Bioethics

Savir Punia, MJLST Lead Notes and Comments Editor

The Minnesota Journal of Law, Science and Technology Symposium article, The Role of Law in the Debate over Return of Research Results and Incidental Findings: The Challenge of Developing Law for Translational Science, by Professor Susan Wolf, discusses the current issues researchers are facing with genetic testing. At present, there is a dramatic rise in genetic-based research and tissue banks seeking to discover the genetic mutations and disorders responsible for some of the worst ailments plaguing humans today. As researchers are able to gather data using increasingly sophisticated tools, researchers are finding things they are not looking for, including information that could make a big difference for a donor. According to the 2012 New York Times Article, Genes Now Tell Doctors Secrets They Can’t Utter, we are at an awkward interval where our ability to capture information is exceeding our ability to know what to do with it.

Currently, the federal government’s National Institute for Health (NIH) is funding projects, including Professor Wolf’s research project on return of results, in order to develop guidelines in this thorny subject area. Until then, researchers are operating with a heightened nervousness about when and how to disclose research results to study participants or their families. According to Professor Wolf’s symposium article, researchers are already expressing anxiety “that they must navigate between legal threat on both sides – liability for failure to return findings on one side, and liability for wrongly returning on the other.”

Given the current state, researchers are tasked with dealing with challenging situations on their own. For example, researchers studying genes unrelated to breast cancer notice members of one family have a breast cancer gene, does this obligate researchers to disclose this finding or not. Currently, a lot of this depends on the types of consent forms used in the research projects. For example, the New York Times article discusses to similar situations with very different results. In the first research project investigators discover that a family does have a breast cancer gene, but does not disclose it because the consent form stated no results would be returned, essentially tying the hands of the researchers. In another study, researchers discovered a woman who had a strong family history of breast and ovarian cancer did not carry her family’s breast cancer gene, and they decided on ethical grounds to breach their consent forms stipulations in order to inform the woman and her family. These types of situations are becoming an ever increasing problem, and with no guidance or base line rule issued by any public health organization, researchers will continue to get caught up in return of research results.

Genetic research has brought about rapid advancement and change in how we approach human health, but it also has brought about some great challenges. As important as genetic research is, the individual submitting to it must not be forgotten. As genetic researchers sequence whole genomes and discover mutations in research participants’ sequences, there will be more of an imperative to communicate those results back in order to help that participant seek preventative care. Moreover, genetics are unique in that mutations in one individual may affect that individual’s entire family. Research participants’ families have a stake in their family members’ genetic sequences, because what is discovered there could also affect their own lives. Whether to return results to family members is a much more controversial issue and includes certain traditional healthcare privacy rules. As genetics continue to grow and play an important part in our healthcare, issues such as the ones above will need to be clarified and outlined. Research in this area is occurring at a fast pace, and Professor Wolf and her colleagues will be watched closely as they work toward establishing guidelines to power genetic research into the future.

The High Cost of Medical Errors

March 1, 2014
Healthcare, Public Health

Mayura Iyer, MJLST Staff

When we feel unwell, or have an injury, or are battling a serious condition, we turn to doctors and hospitals to take care of us and return us to health. But what if these professionals are actually adding to the harm? A recent study in the Journal of Patient Safety stated that between 210,000 and 440,000 patients each year suffer some type of preventable harm that contributes to their death. These numbers are staggering and make medical errors the third leading cause of death in America. With statistics like that, you would expect the problem to be the topic of every major headline, however, these facts are not well documented or disseminated.

John Grout, John Hill, and Arlen Langvardt discussed the prevalence and causes of medical errors and how to mistake-proof the healthcare industry in their article in Volume 14, Issue 1 of the Minnesota Journal of Law, Science & Technology. Their article stated that medical errors stem from the multi-factorial, complex nature of medical procedures and from the subjective component of providing medical care. However, the article goes on to suggest several ways in which medical errors can be minimized through “mistake-proofing” measures that have had great success in other industries. The article gives examples of a variety of mistake-proofing methods, from using devices to monitor staff hygiene to using computers to aid the process of prescribing medication.

So why, when there are ways to tackle the issue, are the rates of medical errors not improving? Part of the problem is the institutionalized culture of healthcare. There has historically been a pass of sorts for the errors of doctors, granting them a pardon for reasonable human error. Furthermore, there is a culture of overlooking the mistakes of colleagues – partly because of a fear of retaliation and partly because there is an unspoken rule of maintaining and protecting professional reputations. However, when the cost of error is equal to the value of human life, it is necessary to break down harmful practices and implement policies that will adequately address the problem of fatal medical errors.

Academics, administrators, and doctors themselves have recognized this issue and even suggested easily to implement methods of error reduction. Dr. Marty Makary, a surgeon at Johns Hopkins Hospital, has suggested simple ideas like using cameras to record medical procedures and electronically-published reviews and ratings to make healthcare providers more accountable and thus minimize errors. With the problem only increasing, it will soon be impossible for healthcare providers to ignore. But recognizing the problem is only the first step; the more complicated task will be implementing policies that address the issue and ensuring adequate compliance. However, with the insight offered by practitioners and academics alike, the solution to this problem seems within reach.

Everything That Can Be Digital Will Be

February 22, 2014
Intellectual Property

Dylan J. Quinn, MJLST Staff

This past spring, the Supreme Court delivered a landmark decision in regard to the first sale doctrine by reversing the Second Circuit in John Wiley & Sons, Inc. v Kirtsaeng. The First Sale Doctrine allows a buyer or recipient of a copyrighted work to dispose of, lend, or distribute that copy as they see fit. In Wiley, the Court ruled in favor of the Defendant – who bought books in another country at a lower cost, imported them to the U.S., and then re-sold them at a higher market rate – thereby solidifying that the doctrine applies to copies of a copyrighted work lawfully obtained abroad.

A year prior to the ruling, in Volume 13, Issue 2, of the Minnesota Journal of Law Science & Technology, Benjamin Hamborg critiqued the Second Circuit for ruling against the Defendant, arguing that the Supreme Court needed to overturn the decision because the Circuit Court failed to give proper weight to the legislative history of the first sale doctrine and the negative public policy implications that would arise from affirming the ruling. The Supreme Court was in agreement with Hamborg, and seemingly eliminated those public policy concerns and the uncertainty surrounding the doctrine.

Hamborg discussed the potential dangers posed to libraries if they were not allowed to distribute works that were manufactured abroad, and while Wiley seemed to put an end to those issues, the movement of libraries into a more digital age has raised recent concerns about libraries’ ability to lend or distribute e-books and other digital works. Currently, redistribution of a digital work is not given the same “first sale” protection from copyright infringement claims because digital works do not decay over time and copies are just as valuable as the original – thereby having unknown consequences on the market for the copyrighted works. As libraries convert more and more of their collections into digital formats, we could be moving into an era where a dispute over a licensing agreement removes a large portion of a library’s collection instantly.

The recent concerns over libraries by no means represent the first discussion about a potential “digital” first sale doctrine, however it is just another example of the pressure pushing down on Congress to address the proper application of the first sale doctrine in a digital age. Back in 2001, the Copyright office addressed proposals for a digital first sale doctrine, and responded that “there was no convincing evidence of present-day problems” and that no expansion of first sale would be recommended. In the years since, there have been few developments that suggest Congress is ready to address the issue, until recently.

In the last two years, the Department of Commerce solicited comments on a possible digital first sale doctrine, the Director of the Copyright Office discussed possible options Congress could weigh if addressing the issue, and a court ruled against expanding the first sale doctrine into the digital sphere – stating that it is an issue for Congress. The recent resurgence of concerns over libraries is just another indication of the pressure facing Congress to address the application of the first sale doctrine on the internet.

While the issue clearly impacts libraries, the issue has massive implications on the entire online market place. It is a tall order to address such a large issue, but eventually something has got to give. At some point there needs to be alternative legislation or expansion of the first sale doctrine on the internet. The slogan surrounding the early days of internet sums it up best: everything that can be digital will be.

A Farm Bill for Hansel and Gretel

February 18, 2014
Food and Agriculture, Healthcare, Public Health

Ke M. Huang, MJLST Staff

Once upon a time, a farmer and his new wife, who had no means to support the farmer’s first wife’s children, decided to abandon the children in the woods. These children–Hansel and Gretel–found in the woods a charming little house made of sweets. A wicked witch lived in that house.

Earlier this month, President Obama signed into law the Farm Bill of 2014. According to a New York Times article, the President called the Farm Bill a “jobs bill,” and “innovation bill,” a “research bill,” and a “conservation bill.” Yet, amid the provisions of the Farm Bill that addressed topics such as crop insurance, conservation, and trade, there were also provisions that touched on the issue of healthy nutrition of families.

Senator Stabenow (D-MI), chairwoman of the Senate Agriculture Committee and the author of the Farm Bill, emphasized that part of the Bill’s purpose was to improve nutrition choices in families. Changes such as doubling SNAP benefits (formerly called food stamps) for buying healthier foods and financing new grocery stores in underserved areas reflect that purpose.

A question remains whether the Farm Bill of 2014 will be effective in achieving that purpose. Especially for nutrition among the children, the article by Termini et al. in the Volume 12, Issue 2 of the Minnesota Journal of Law, Science & Technology offers some answers. In other words, the article addresses the predicament of modern day Hansel and Gretel who are lured by sugared snacks, french fries, and company.

In Food Advertising and Childhood Obesity (2011), Termini et al. (1) provide some alarming data about nutrition-related health complications among American children, (2) discuss the relationship between the health complications and food advertising, and (3) propose several solutions to address these health complications. While Termini et al. mention advocates of consumer choice, the authors primarily propose measures for the food industry, the government, and parents. For example, akin to the SNAP benefits for buying healthier foods, Termini et al. propose tax incentives for buying healthy food.

In final analysis, even if the often-regarded villain in the story of Hansel and Gretel is the witch, at least the government was partly responsible for the predicament of the children. Had the government funded a SNAP benefit program for the children’s family, or even subsidized the family farm through a crop insurance program, the parents would not have to leave the children alone in the woods. Just some food for thought.

Forensic Science Reform: A 2014 Update

February 16, 2014
Forensics

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.

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