Crime Laboratories and DNA Analysis
Crime Lab Accreditation:
A Slow Process
In 2007, Vermont and Maryland passed laws to improve crime lab oversight and to reduce errors and omissions. Legislative improvements to crime lab oversight are pending in twenty-one states.
William E. Marbaker, president of the American Society of Crime Lab Directors, an independent accreditation body, said his organization, as of 2007, has accredited more than three hundred labs. In a New York Times article entitled “Exoneration Using DNA Brings Changes to Legal System” (October 1, 2007) Marbaker noted that some law enforcement agencies were coming to the realization that crime lab accreditation was a good thing. He also noted that some agencies were not enthusiastic about the idea.
Massachusetts Crime Lab:
Problems in DNA Analysis
In July 2007, an investigation of the Massachusetts State Police Crime Lab ordered by the governor’s office found that since the 1980s, crucial physical evidence from 16,000 cases has not been organized. This includes 1,000 homicides and 6,500 sexual assault cases. The governor’s investigators found that 4,000 rape evidence kits going back to 1989 were never opened to determine the existence of biological evidence that might identify the rapist through DNA analysis.
The crime lab audit also revealed:
- Poor crime lab supervision including too few audits and outside reviews.
- Unqualified lab personnel.
- Poor record keeping.
- Shortage of a least fifty forensic chemists.
- DNA backlogs of “crisis proportions.” Millions will have to be spent on private lab testing to deal with the backlog.
Problems with Evidence Storage:
Chaos and Disorganization in Evidence Rooms
According to an extensive journalistic investigation conducted by The Denver Post and reported in a series of articles published in July 2007, crime lab personnel across the country have lost, mishandled, or destroyed tens of thousands of DNA samples since the mid-1990s. Some of the findings in The Denver Post review:
- In ten states, crime lab personnel have destroyed biological evidence in nearly 6,000 cases of rape and murder. Over the past three decades, the loss or destruction of evidence in 28 states has undermined efforts of at least 141 prisoners to prove their innocence through DNA.
- In Washington state, a Washington State University study in 2005 revealed that twenty-seven percent of police officials didn’t fully understand how DNA could help their cases. Seventy percent of the police departments that responded to the survey said they had “highly critical” storage problems.
- Of thirty police departments surveyed nationally, none disclosed information about their DNA evidence destruction policies. The NYPD, citing a lack of storage space, destroyed a massive amount of pre-1988 DNA evidence that had been in a warehouse. In 1997, a clerk in Harris County Texas (Houston), was throwing out fifty rape kits a day.
- In 2006, the Colorado Springs Police Department threw out more than 5,000 pieces of physical evidence. The sweep included evidence from an open 1987 case involving a missing woman and the 1994 disappearance of another adult female. The families of these missing people were outraged.
- The practice of throwing out rape kits is a national problem. Some hospitals in New York and Pennsylvania have tossed out kits as early as a month after the rape exam, making solving and prosecuting these cases nearly impossible.
- Nationwide, The Denver Post identified 108 homicide cases in which authorities lost or destroyed biological evidence.
In Maryland, by law, DNA is collected from people convicted of felonies. These DNA profiles are placed into the FBI’s Combined DNA Index System (CODIS). But in 2004, due to a shortage of DNA technicians, Raymond Hopewell’s DNA was not taken and entered into the system. When released from a halfway house a few months later, Hopewell went on to commit three murders, one rape, and four assaults before being caught in September 2005. Then a DNA test was conducted.
As of 2007, forty-five states and the federal government require DNA samples from all felons. In 2008, the federal government was scheduled to take DNA samples from immigration violators. In 2003, the justice department estimated that nationwide, 1.3 million DNA samples that had been collected were awaiting analysis. The FBI’s backlog alone totaled 200,000. By 2006, the FBI’s backlog increased by 80,000 samples.
Los Angeles Police Department
The results of a state audit released on November 29, 2007 revealed that the Los Angeles Police Department needed $9.3 million to erase a backlog of untested DNA evidence in hundreds of sexual assault and other violent crimes.
In 2004 California voters approved Proposition 69 which established a special court fee to help pay for DNA collection and analysis. Most of the fee money that has been collected has gone to the state crime laboratory. The Los Angeles Police Department, to date, has received $530,000, not nearly enough to solve their backlog problem.
At present, evidence from 6,700 city sexual assault cases is kept in cold storage lockers and trailers at a Los Angeles warehouse, and in a trailer parked behind police headquarters. If this evidence could be processed there is no telling how many violent offenders could be brought to justice. Some of this evidence has sat unanalyzed for ten years. The is unfortunate because in Los Angeles thirty-seven percent of crimes that produce DNA evidence results in the identification of the offender.
The Los Angeles Police Department Crime Laboratory has a budget of $5.7 million for DNA work plus a $1 million grant for 2007. Without the extra $9.3 million, the backlog problem will persist. According to local politicians, it is doubtful that the lab will see this extra money. (Based on reportage in the Los Angeles Times.)
Dr. Pamela Fish:
Marlon Pendleton Case
Fifty-year-old Marlon Pendleton, in 1993, was sent to prison following a rape conviction based upon the victim’s identification of him in a line-up. Two years later, after DNA analysis proved he wasn’t the rapist, a judge set Pendleton free. On November 2007 Pendleton sued a pair of Chicago detectives alleging they had manipulated the line-up to insure that the victim identified him. Initially, the victim had described the rapist as weighing about 170 pounds and carrying a gun in his right hand. Pendleton weighed 135 and was left-handed.
Marlon Pendleton also sued Dr. Pamela Smith (Ph.D), a DNA analyst with the Illinois Crime Lab in Chicago, accusing her of wrongfully claiming, in her report, that the evidence in the rape case was insufficient for testing, evidence that would have exonerated the defendant. Locke Bowman, one of Pendleton’s lawyers, said, “Fish is notorious for being involved with shoddy lab work.”
Dr. Fisher began her forensic science career in the Chicago Crime Lab in 1979. In 2004, after her work in several cases led to prison releases or re-trials, she left the lab. Pamela Fish wasn’t fired for poor performance, the state simply declined to renew her employment contract. (Based upon reportage in The Chicago Tribune and The Chicago Sun Times. For more on Dr. Fish, see Chapter 15 “DNA Analysis: Backlogs, Sloppy Work, and Unqualified People” in Forensics Under Fire.)
The Fallout Continues
On September 25, 2001, Joyce Gilchrist, then fifty-three, was fired from her position as forensic chemist with the Oklahoma City Police Department following several months of scrutiny by the FBI and local DNA auditors. Police chief M.T. Berry took this action after fourteen days of testimony before a five-member administrative review board that found Gilchrist guilty of “laboratory mismanagement, criticism from court challenges, and flawed casework analysis.” In the years that followed her termination, several convictions in cases in which she had testified were overturned and the prisoners were released. Gilchrist’s flawed DNA work and erroneous hair and fiber analysis led to these conviction reversals. During this period the FBI has accused Gilchrist of shoddy forensic work in dozens of cases. (For more on Joyce Gilchrist, see Chapter Fourteen, “DNA Analysis: Backlogs, Sloppy Work, and Unqualified People” in Forensics Under Fire.)
In 1998, Harold Gene Weatherly was paroled after serving fifteen years in Oklahoma for stabbing a woman thirty times back in 1984. Weatherly went to prison claiming that he was innocent. At this trial, Joyce Gilchrist had testified that carpet fibers found on the defendant’s shoes had originated from the scene of the assault. FBI analysts, in 2006, found that the fibers from Weatherly’s shoes had not come from the victim’s house. In May 2007 the Oklahoma Pardon and Parole Board Unanimously recommended that Weatherly be pardoned. In July Governor Brad Henry granted him the pardon. However, in November 2007, a judge held that under state law, Weatherly’s pardon doesn’t fall into one of the nine categories of cases allowing the expunging of the record of the crime for which the applicant has been pardoned. (For example, since Weatherly had severed his time, he had not been officially acquitted of the offense on appeal.)
In response to this ruling, Weatherly’s attorney said, “If ever a man deserves to have his record expunged, it’s Gene Weatherly. Yet there is nothing we can do under the present law.”
Washington State Patrol Toxicology Lab:
Flawed DUI Work
In July 2007, lab manager Ann Marie Gordon resigned amid allegations she signed false statements regarding her work in the laboratory. Gordon is accused of signing false documents indicating that she personally tested an ethanol-water solution used to make certain breath-test machines were working properly. According to allegations, another lab scientist performed that job.
An in-house review of the toxicology lab also revealed a two-year error in the way breath-test machines were calibrated. According to the auditors, this led to some skewed results. As a result of these findings, thirty-six people convicted of DUI were given back their driver’s licenses. State officials, notwithstanding the problems in the facility, maintained that the actions of Ann Marie Gordon did not affect the reliability of the lab’s breath test results.
In the wake of the scandal, a group of Washington State defense attorneys called for an independent investigation of the state’s toxicology lab.
On October 22, 2007, two Skagit County judges found examples of careless and potentially flawed work done by Ann Marie Gordon and two other lab workers. The judges, however, ruled that their findings of government misconduct did not result in skewed breath test results in fifty-one DUI cases under appeal. (Based on reportage in The Seattle Post-Intelligencer.)
Houston Police Department Crime Lab:
The Nation’s Worst
The following is a chronology of the problems that have plagued the Houston Crime Laboratory:
An outside audit revealed serious problems in the lab going back to the 1980s. They included poorly trained and supervised staff, evidence contamination, and sloppy DNA work and serology (blood typing before DNA) that may have led to numerous misidentifications in rape and criminal homicide cases. The crime lab was closed.
February 16, 2005
A DNA misidentification was detected in a Houston murder case. The defendant had been wrongfully connected to the crime scene by a DNA analyst.
March 2, 2005
The American Society of Crime Lab Directors, following an audit, found problems with the keeping of evidence chain-of-custody records. The Society denied the lab accreditation.
March 14, 2005
Results from the forensic ballistics section of the lab were questioned in three criminal homicide cases.
May 11, 2005
The American Society of Crime Lab Directors accredited the general lab but withheld accreditation for the DNA unit.
June 1, 2005
An outside lab probe found that a forensic chemist faked the results in four cases.
June 14, 2005
The accused forensic chemist resigned.
September 29, 2005
A new chief of the DNA section was hired.
January 8, 2005
An outside probe found that analysts who had been caught making errors were not seriously disciplined for their malpractice.
March 15, 2005
Auditors found problems in twenty percent of serology (blood typing) tests and forty percent of DNA analyses.
May 11, 2006
An investigation of the lab revealed forty-three DNA cases and fifty serology cases dating back to 1980 involved “serious issues.” Some of the problems included failure of serologists and DNA analysts to report reliable test results, evidence contamination, and lab personnel who changed their test results to please prosecutors.
June 13, 2006
Except for the DNA unit, the Houston Crime Lab was reopened.
June 21, 2006
The lab DNA unit was reopened after being closed since 2002.
September 28, 2006
The state budgeted more money to fund the continuing investigation into the Houston Crime Lab.
June 14, 2007
Independent inspector Michael Bromwich outlined a program to determine what role blood-typing and DNA analysis played in securing convictions against 600 defendants including fourteen already executed. The probe would cover the period 1982-2002.
June 17, 2007
The probe uncovered a murder case involving a man convicted in 1992 who was connected to the scene by questionable blood-typing analysis. Two other cases, both rape convictions, were also identified as highly questionable.
October 5, 2007
An employee of the Houston Lab told a police department official that a fellow lab employee cheated on a proficiency test. A week earlier, a man who had served twelve years in prison for rape, was exonerated. DNA testing showed that another man had committed the crime. The lab had originally reported that it would not perform a crime scene bed sheet test because it did not contain semen. As it turned out it did.
November 2, 2007
A former Houston Crime Lab analyst, interviewed on local television, blew the whistle by stating that the work done at the facility was still not reliable. She also accused two lab specialists of cheating on a proficiency test. The whistleblower, who was not identified, said, “I decided to preserve my integrity over my career. That’s basically it. I refuse to work for people with no ethical standards.”
Houston Crime Lab:
James Carpenter, a University of Houston graduate with a bachelor’s and master degree in chemistry, joined the Houston Police Department Crime Laboratory in October 2002. In August 2007 the thirty-eight-year-old controlled-substance unit analyst refused to take a drug test. He was taken out of the lab, and a few weeks later, resigned from the police department.
On December 11, 2007 a grand jury indicted Carpenter on two counts of evidence tampering and one count of theft by a public servant. His drug testing work over the past six months, some two hundred Houston Police Department narcotic cases, were scheduled for review. (Based on reportage in the Houston Chronicle and the Associated Press.)
Crime Lab Closings:
On October 29, 2007, the Michigan State House and Senate passed a law enforcement budget that would close crime labs in Sterling Heights and Marquette. The remaining five labs would remain open. The closing would save the state $1 million. All of the crime labs in Michigan were struggling with three month DNA backlogs. The state government had raised taxes, but in order to balance the budget, still had to cut $433 million.
On November 1, 2007, a state and federal coalition of law enforcement officials and prosecutors urged Michigan governor Jennifer Granholm not to close the two crime labs. The next day the government officials announced that the labs would be closed at the end of the year.
Crime Lab Scandal:
New York City Police Department
In 2002 three criminalists with the New York City Police Department Crime Laboratory were transferred when an internal audit found shoddy work in the drug testing unit. The criminalists had also failed proficiency tests. That year, Police Commissioner Ray Kelly fired Deputy Chief Denis McCarthy, a twenty-seven year veteran who ran the Forensic Investigation Division that includes the bomb squad, the crime lab, and the crime scene unit.
In March 2007, Kristine Hamann, the New York State Inspector General, began her own investigation of the New York City Police Department Crime Laboratory. In May, the police department recalled for review, 3,000 drug testing cases that took place in 2002. Five analysts and a supervisor were assigned to the audit. One of the problems involved “dry-labbing,” the failure to test all bags of drugs when many were seized.
The inspector general, in her 37-page report issued in December 2007, wrote: “These lapses were a threat not only to the prosecution of drug cases, but to the public’s trust in our criminal justice system.” Hamann recommended that the Queens district attorney consider criminal charges against the three former criminalists and against W. Mark Dale, the former director of the crime lab who retired in 2004. But there was a problem, in September a property clerk found that evidence from 709 of the 3,000 cases had been destroyed. Of the 413 cases that had been reviewed, no significant discrepancies had been discovered that compromised the original crime lab findings. The inspector general reported that the head of the crime lab had not alerted state officials of the problem until March 2007. After five years, the investigative trail had gone cold due to destroyed and contaminated evidence. Crime lab officials had also failed to inform the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors, an oversight group.
Attorney Peter Neufeld, the co-founder of the Innocence Project, said the inspector general’s findings “undermine God knows how many convictions.” Neufeld expected a wave of dismissal motions and appeals.
According to the inspector general’s December report, the crime lab in 2002 allowed criminalists to stay on the job after they failed proficiency tests. One criminalist was suspended after she failed a second proficiency test but was responsible for twenty-three drug cases after she failed the first time. Another drug analyst worked on eleven cases before his first and second proficiency tests, both of which he failed. (Based on reportage in The New York Times and the New York Post.)
Santa Clara County Crime Laboratory:
The Phantom DNA Analyst
In March 2005, in San Jose, California, a twenty-two-year-old mentally disabled woman told her mother that their next door neighbor, fifty-two-year-old Michael Kerkeles, had “touched her all over” on a blanket inside his garage. Although the accuser told widely contradictory stories to the police and a nurse about whether she had been to Kerkeles’ house, and whether he had sexually assaulted her, Kerkeles was arrested the following month for sexual assault. (The accuser also told the police that Kerkeles had raped a teenage girl at the girl’s house, an allegation denied by the girl.)
After a judge, on two occasions refused to qualify the accuser as a competent witness (she had the mental capacity of a seven or eight-year-old), and the defendant refused to confess, the police took a blanket from his garage and took it to the Santa Clara County Crime Laboratory where an analyst looked for but couldn’t find any traces of semen. Later that day, San Jose detective Matthew Christian prepared a phony crime lab report in which a nonexistent DNA analyst with the lab named Rebecca Roberts identified semen on the blanket as Kerkeles’. The detective dated the report the day he seized the blanket. Since it takes months for DNA evidence to be processed, this itself revealed the document and the identification were bogus.
Detective Christian fabricated the crime lab report as an interrogation prop, hoping that the accused, when confronted with the phony evidence, would confess. Under U.S. criminal procedural law, interrogators are allowed to present suspects with nonexistent evidence in an effort to get them to confess as long as the questioning is not coercive and does not violate the Miranda doctrine. Before the interrogation took place, Kerkeles acquired the services of an attorney which kept Detective Christian from employing his interrogation technique. The detective, without writing the word “ruse” on the phony report, placed the document into the case file. He said he forgot about it.
By late July 2005, Santa Clara County Assistant District Attorney Jaime Stingfield had possession of both DNA reports, the real one with negative results and the phony containing the identification of Kerkeles’s semen. Kerkeles’s defense attorney had both reports as well. On two occasions, confused by the contradiction, the defendant’s attorney, Kurt Seibert, asked the prosecutor for a clarification. The assistant district attorney ignored his request. (Stingfield justified this on the grounds she was basing her case on the accuser’s testimony, not on DNA identification. ( According to Stingfield, when she saw the phony DNA report she thought, “Holy moly, I actually do have physical evidence.”)
At the third preliminary hearing, after the judge again declared the accuser an incompetent witness, prosecutor Stingfield put Detective Christian on the stand who produced the phony lab report as evidence the blanket contained the defendant’s semen. The judge, following the introduction of the fake DNA report, ordered Kerkeles to stand trial.
The prosecution bubble burst when, in responding to a request by the defendant’s attorney regarding the resume of the DNA analyst, attorney Seibert learned from the crime lab that Rebecca Roberts didn’t exist. In December 2006 the judge dismissed the case against Kerkeles. A year later, as reported in the San Jose Mercury, police captain Andy Galea said the department has since banned detectives from using ruse crime lab reports as interrogation props. The captain would not comment on if disciplinary action had been taken against Detective Christian. He said the matter had been submitted to a police review committee headed by another assistant district attorney (one of Stingfield’s colleagues). The committee had concluded that Detective Christian had made an honest mistake. Moreover, the in-house review board concluded that ADA Stingfield had done nothing wrong in eliciting testimony about a phony lab report even though she had a contradictory report in her possession. In an interview with the San Jose Mercury, Stingfield said she had ignored the real lab report because it didn’t help her case. She blamed Kerkeles’s defense attorney for not noting the discrepancy between the two documents.
Laurie L. Levenson, a Loyola Law School professor who is an expert in prosecutorial ethics, said this to an reporter with the San Jose Mercury: “On its face, it [creating a fake lab report] is asking for trouble. It questions the credibility of both the prosecutor and the police.”
Michael Kerkeles petitioned Superior Court Judge Edward Lee to officially declare him innocent of the sex charge. The judge, upon the recommendation of ADA Stingfield, denied Kerkeles’s request. In her report to the judge, Stingfield wrote: “I in no way believe the defendant is factually innocent.” Through his attorney, Kerkeles issued a statement that he is innocent and that the case has “tore my life apart.” (For an account of a case involving a fake fingerprint report submitted by a Los Angeles detective, see Forensics Under Fire, pages 113-114. The above account is based on reportage in the San Jose Mercury.)