Exactly how does a lab analyst, at an accredited lab, record the wrong name on at least 350 lab samples? How does that same lab analyst lose or destroy another analyst's worksheet? More importantly, what does that say about the quality of the work in the lab?
Those are the questions raised by a scandal involving Integrated Forensic Laboratories, LLC, a Bedford, Texas, lab that Bexar County contracted with to perform blood testing in DWI cases. Justin McShane, a Pennsylvania attorney and forensic science savant, posted an article from the San Antonio Express-News detailing the breadth of the scandal. A little anonymous bird pointed me to Mr. McShane's posting.
Cherrie Lemon was the analyst who lost her job on May 16 and whose work has now raised questions about the validity of tests performed on hundreds of DWI cases. The biggest questions are how she kept her job after the massive mislabeling effort and why the Bexar County DA's Office didn't notify defense attorneys of the problems at the lab until after news broke of her firing.
In an e-mail to Bexar County prosecutors, Dr. Nate Stevens, Ph.D., the lab director at IFL, pointed out that defense attorneys didn't need to know anything about their internal investigation unless any issues arose after the audit.
Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.
The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).
For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.
When a hand-held pipette in the HPD Crime Lab was found to be out of tolerance no one in the defense bar was notified. You only found out if you retained a certain expert who found the problem in the reams of paperwork turned over during discover. I only found out when I was handed a sheaf of papers five minutes before we were to resume trial.
In my case the lab analyst took the stand and told the jury, with a straight face, that it didn't matter if the pipette was out of tolerance. Forget about standard operating procedures - so what if we don't know what amount of blood or other substances were placed in the tube?
Any lab analyst worth his or her salt would be honest enough to admit that any test conducted using instruments that were out of tolerance would be compromised and should be re-run. Maybe it wouldn't make any difference - but what if it did?
This crap finds its way into our trials because we don't do a good enough job of fighting to keep junk science out. It also happens because criminal judges tend to disregard their roles as gatekeepers of scientific evidence. It would be funny, if it weren't so tragic, that judges in civil trials - where the only thing at stake is money - do a vastly superior job of keeping junk science out of the courtroom.
But hey, we're talking about criminal defendants here. We all know they did something wrong - even if it wasn't what they were charged with, don't we?