Forensic Science: Fraud and Error on the Rise

All across the United States, crime lab scandals have been making headlines. Not just in recent months, but for years. At the local level, this is generally perceived to be an isolated problem. The reality, however, is quite different. 

As explained in the new text Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct (Elsevier, 2013), crime lab scandals related to forensic fraud and error are on the rise - worsening in the last few years. The result has been dozens of crime lab closures, tens of thousands of criminal cases thrown out and overturned, and millions of dollars in successful lawsuits against government agencies.

Forensic Fraud 
(Elsevier, 2013)

The subject remains sore and often forbidden within the forensic science community. Consequently, the frequency and conditions of its occurrence have not been researched, and incidents are regularly hidden from public scrutiny to maintain the reputations of those agencies and crime laboratories that have suffered its stain. As discussed in this new text (available in June), this is at least in part because those who have direct knowledge of forensic fraud also have a vested interest in keeping it from becoming public knowledge. 

There are a number of contributing factors: 

First, hiding or ignoring misconduct preserves the image of an examiner's agency or lab, and by extension their own reputation, out of concern for courtroom credibility and future employment prospects. 

Additionally, it must be understood that forensic practitioners are by definition involved in sensitive casework. As a function of their employment contracts, they may operate under strict confidentiality agreements or non-disclosure clauses that might preclude communication of any kind about active casework—especially that which reflects negatively on their employer. The fear of losing employment-related income (e.g., being fired), and any future employment prospects, is generally sufficient enough for most to avoid causing a breach, even when it is in the public interest. 

The majority of forensic scientists are also employed directly by police agencies or by crime labs associated with law enforcement and the prosecution. Consequently, open discussion and study of forensic fraud have long been considered a “third rail” in the forensic community. A brief explanation is necessary: the third rail is the method of providing electrical power to a railway, such as a mass transit system, by means of an exposed conductor. Anyone who touches the third rail is killed instantly by a surge of electricity. So it is with the issue of fraud. Such a discussion necessarily involves critical review of the actions and motives of law enforcement, prosecutors, and their scientific agents. These are not professional communities that are generally receptive of criticism or outside review, and they are frequently hostile to external or independent efforts involving either. Consequently, any forensic practitioner who raises these or related issues risks touching the third rail—being the object of hostility and derision within the law enforcement and government lab community, and committing career suicide in the process. This means not only the loss of employment, but also one’s friends, colleagues, and professional identity.

As a consequence of these and other related factors, the phenomenon of forensic fraud has remained a mystery ---- until now. The publication of Forensic Fraud represents the first real scientific effort to study and understand what happens when forensic scientists go bad and why - with realistic reforms. A more timely report on the state of forensic science is difficult to imagine.

In short, the research demonstrates that forensic fraud is not an isolated problem resulting from a few bad apples. Rather, it is most often the result of systemic and cultural failures, and arises primarily in association with law enforcement employed forensic personnel or those working for the prosecution. And when it is discovered, those involved are not generally fired, prosecuted, or otherwise punished - rather they are most often retained, perhaps transferred, or allowed to resign and move on to another agency where fraud can continue anew.

Forensic Fraud defines the nature of the problems in the forensic community; helps readers to understand the social contexts and personal motives that facilitate forensic fraud; provides informed strategies for mitigating forensic fraud; and ultimately seeks to keep the criminal justice system honest with itself and the public that it serves.

Some recent examples of forensic fraud, error, and other misconduct from just the past six months include the following:

1. Washington State Patrol Crime Lab
Among the most beleaguered crime lab systems in the nation at the moment, with a steady stream of scandals since 1999 (with the termination of Dr. John Brown for DNA related fraud), Lab Manager Kevin Fortney resigned his post this year while under investigation for fraud and error relating to multiple cases. 

Kevin Fortney

And it's only gotten worse since he left, with new revelations being uncovered every week. The Fortney scandal occurred while this lab system was only just healing from the fraud committed by former Lab Director Barry Logan and his subordinate Anne Marie Gordon.

2. Scottsdale Police Department Crime Lab

Scottsdale police crime lab criminalists, supervisors, and prosecutors have been arguing in court whether blood-alcohol evidence processed in the lab can trusted because of problems with equipment. They say it can. However, internal emails recently discovered to the defense paint a very different picture.

3. Onondaga County Crime Lab in Syracuse, NY

The fight between the Syracuse Police Department and the district attorney's office over who controls the Onondaga County crime lab reached a fever pitch this year, resulting in an investigation by the Inspector General's Office. No wrongdoing was uncovered at the lab, but tensions between the police department and the district attorney's office remain high.

4. Hinton Drug Lab in Jamaica Plain, Massachusetts
The Annie Dookhan scandal began unfolding in 2012. It involved dry-labbing in more than 30,000 cases, hundreds of cases overturned, and a crime 

Annie Dookhan

lab so bankrupt of scientific integrity and accountability at all levels of management that it had to be shut down. The investigation of the lab alone is still costing the state tens of millions. Though she confessed to investigators, she recently plead not guilty in court after being indicted for charges related to her many acts of fraud. 

This was far worse than the fraud committed by Debra Madden, which forced the closure of the San Francisco Police Department Crime Lab (and is only just now winding down after four longs years of dismissed cases, hidden evidence, and hypocrisy). Consequently, the Annie Dookhan scandal will go down as one of the worst in the history of the forensic sciences. 

5. Massachusetts State Police Crime Scene Services Section
Det. Lt. Kenneth F. Martin, commanding officer of the Crime Scene Services Section, was recently stripped of his command and reassigned when it was learned that he was moonlighting as a defense expert on local cases.

6. Canton-Stark County Crime Lab - Ohio
The Stark County Crime Lab has been plagued with problems for the past year. 

Michael Short

Primarily, these relate to the inability to keep a fraudulent scientist fired (criminalist Michael Short); and the improper hiring of an unqualified police officer as lab director (Rick Perez). This required the director's near immediate resignation. Currently, in part due to evidence backlogs that have come to light because of the recent leadership change, DNA testing has been halted at the lab. It is currently being outsourced to the BCI. 

7. Beckley Police Department - West Virginia

Gabriella Brown

In the kind of case that is becoming all too common in the forensic sciences (see Sonja Farak, below), Gabriella Brown, an evidence technician, was charged with stealing drugs from the evidence locker she was in charge of. She was a civilian employee of the PD, and also holds an online Masters degree in Forensic Science from Marshall University. She recently plead guilty and was sentenced to four years probation.

8. Massachusetts State Drug Lab - Amherst
Sonja Farak, a forensic chemist, was recently indicted for stealing drugs and otherwise tampering with evidence at the state drug lab in Amherst, Massachusetts. The case is ongoing.


9. California State Crime Lab - Ripon
Hermon Brown, a criminalist, was recently convicted of embezzlement in relation to the theft of methamphetamine and cocaine from his lab. He was skimming from the drugs submitted by law enforcement, which alters weights and related charges. The fraud comes from misreporting the true weights in logbooks and reports. His fraud compromised dozens of local trials where he was scheduled to testify. After a couple of years waiting trial, he plead out and took 16 months of jail time.

Expert accused of faking evidence and perjury

Scientists' conduct leaves Spector's defense team vulnerable to criticism

Los Angeles Times
By Harriet Ryan
harriet.ryan@latimes.com
February 23, 2009
http://www.latimes.com/news/local/la-me-spector23-2009feb23,0,5215241.story

When it came to hiring expert witnesses for his murder defense, Phil Spector went for the top of the line. The scientists he retained to analyze evidence in the fatal shooting of an actress are a who's who of American forensics, the men who wrote the textbooks for their fields and whose faces stare out from the television when a criminal case goes national.

But if the conclusions of this high-profile scientific team have helped Spector's cause, the conduct of two members has left his defense vulnerable to criticism. In his first trial, a judge concluded that Dr. Henry Lee, the criminalist who gained worldwide recognition for his work on the O.J. Simpson murder trial, hid or destroyed a potentially important piece of evidence from the death scene.

And this month at Spector's retrial, another scientist was accused by prosecutors of perjuring himself during testimony about bloodstains. The allegations set up the unusual tableau of the judge reading expert James Pex his rights as he sat on the witness stand.

Prosecutors have portrayed the alleged misconduct as part of a larger effort by the experts to twist the evidence to the music producer's benefit as they racked up huge bills -- in Pex's case, $66,000. But Spector's attorney contests the accusations and says prosecutors are attacking the scientists when they cannot challenge their science.

"Law enforcement can spend as much time and effort and expense as they believe necessary to put a case together and that is simply considered public servants doing their job. But if the defense hires good experts, they are trying to buy an acquittal," said Spector's attorney, Doron Weinberg.

The clashes highlight the hard-fought nature of every piece of forensic evidence in a case where there are two competing versions of events and no eyewitness testimony. Spector and Lana Clarkson, 40, were alone in his home six years ago when a snub-nosed revolver discharged in her mouth. The music icon faces 18 years in prison if convicted of second-degree murder. His defense claims Clarkson shot herself.

The effect of the attacks on the experts' credibility is unclear. In the first trial, the defense touted Lee as its star witness, but after the judge found he mishandled evidence, he balked at testifying. The defense decided not to call him, instead relying on others to make the case for suicide. That jury split 10 to 2 in favor of conviction.

In the current case, Spector's attorney alleges Pex simply mixed up some photographs that were extraneous to his testimony anyhow. But prosecutors are expected to tell jurors in their closing arguments that Pex is a perjurer whose every conclusion -- including findings the defense says exonerate Spector -- should be disregarded.

Pex, a retired laboratory director from Oregon who has appeared on "Good Morning America," "Dateline" and the Discovery Channel, also faces the prospect of criminal prosecution. A spokeswoman for the district attorney's office said there would be no decision during the trial.

Pex is covered by a gag order on witnesses. He was among a host of experts from both sides who testified about bloodstains at the scene. Under questioning by Spector's attorney Feb. 10, he pointed out what he said was blood spatter on the grip of the gun and said it indicated that Spector couldn't have been clutching the weapon when it went off. A "more probable circumstance," he told the jury, was that Clarkson pressed the trigger.

Pex supplemented his conclusions with a PowerPoint presentation of photos of experiments he said he conducted in October with a blood-soaked sponge and a Colt Cobra, the same type of gun used in the shooting. But on cross-examination the next day, the prosecution confronted him with evidence showing that some of the photos were from a previous experiment he conducted with a different weapon.

"You falsified an experiment for this jury," Deputy Dist. Atty. Alan Jackson charged during cross-examination. Outside the jury's presence, the prosecutor called Pex a highly paid liar.

The defense said the photo mix-up was an innocent mistake that did not detract from the expert's "extremely significant" findings.

"It was a mistake on a very small point. It's not perjury. It's not a lie. It's a mistake and it's being blown out of proportion," Weinberg said.

Superior Court Judge Larry Paul Fidler said he did not have enough evidence to determine whether misconduct had occurred, but before jurors returned to the courtroom for more testimony from the expert, the judge informed Pex that based on the perjury allegations, he had the right to an attorney.

"If you cannot afford an attorney, the court will appoint one for you at no cost to yourself," Fidler told him.

"I read my transcripts from yesterday. I don't need one," Pex replied.

The tense courtroom scene with Pex recalled the controversy involving Lee in 2007. The Connecticut scientist was summoned to the courtroom to answer charges by two former members of the defense team who said they saw him recover a small white object from the death scene. Prosecutors said he never turned it over to them and speculated that it might have been a piece of fingernail that could advance their case.

Lee denied picking up such an item, but the judge said he found the testimony of a former defense attorney more credible and allowed prosecutors to call the lawyer as a witness.

In a telephone interview last week, Lee said the incident had damaged his reputation and caused him to rethink the justice system and his role. Lawyers in other cases raised the misconduct allegations from the Spector trial, and he sensed the public was responding to him differently as well.

"It smeared me," he said.

Although he remains on the defense witness list, Lee said he wanted nothing to do with the Spector proceeding.

"I refuse to participate in the case anymore because nobody is interested in the facts and the truth," he said.

He has turned his attention to cold cases and the training of law enforcement in evidence-collection techniques, he said.

USC law professor Jean Rosenbluth, who closely followed Spector's first trial, said "a certain cynicism" exists among the public when it comes to paid expert witnesses. She said that when confronted with conflicting evidence, jurors sometimes disregard the entire area of testimony.

"They figure out that the experts don't necessarily know what they are talking about and they focus on other evidence," she said.

Pex's recent stumble has not soured Spector's defense on forensic experts. Dr. Vincent DiMaio, a pathologist from Texas who concluded that Clarkson's death was a spur-of-the-moment suicide, is expected on the stand next week.

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Brent E.Turvey, MS, also author of Criminal Profiling, 3rd Ed. with Elsevier Science (2008), can be reached at bturvey@forensic-science.com.