State crime lab director, veteran death penalty lawyer debate status of lab’s problems, reforms

Last week, NC Policy Watch distributed a Progressive Voices essay authored by Gretchen Engel, Executive Director of the Center for Death Penalty Litigation, in which Engel was highly critical of the North Carolina state crime lab and the failure of officials to adequately review the cases of hundreds of defendants who were convicted in whole or in part upon evidence from the long-troubled lab. You can read the piece by clicking here.

Earlier this week, current lab director, former state judge Joseph John, Sr. sent us a lengthy reply to Engel’s piece. Today, we offer John’s letter along with a response from Engel. Both appear below.

Re:  “Crime Lab Scandal Remains Unaddressed,” NC Policy Watch, September 24, 2013
October 1, 2013
By Joseph John, Sr.

As an attorney and former North Carolina trial and appellate judge with over forty years experience in our courts, I recognize that the subject of capital punishment often generates intense debate and strong feelings.  However, as Director of the North Carolina State Crime Laboratory (Crime Lab) for the past three years, I must take serious issue with the declaration in the above-referenced post that “very little” has been done at the Crime Lab.

To the contrary, a great deal has changed in the three years since the 2010 Report mentioned in the post raised questions about language in some Crime Lab reports issued during the early 1980’s and early 1990’s.  Indeed, the “exhaustive, independent review” which the post demands has been ongoing.

The Crime Lab operates and, upon meticulous review by the independent accrediting agency Forensic Quality Services, has been accredited under ISO/IEC 17025, the highest international standards and protocols applicable to forensic science laboratories.   Three consecutive independent DNA annual audits have found perfect compliance with rigorous standards set by the FBI.

Further, at least once a year, every Crime Lab scientist undergoes proficiency testing provided by a separate agency with 100% accuracy required.  All eligible scientists currently performing casework at the Crime Lab have become independently certified by an outside organization in their respective forensic disciplines.  It may also be noted that each case completed by a Crime Lab scientist receives thorough peer review by a different qualified analyst before a Laboratory Report may be issued

The North Carolina Forensic Science Advisory Board, composed of 17 national experts, offers its collective experience in observing the Crime Lab’s work.  The Board has publicly highlighted the Crime Lab’s “dedicated and well trained and knowledgeable analytical staff,” the “impressive, innovative paperless electronic system for recording analytical tests,” and “an industry leading policy of releasing all laboratory casework notes with each laboratory report to streamline fulfillment of discovery requests.”

The Crime Lab is no longer part of the State Bureau of Investigation and only non-sworn personnel are being hired to fill vacant positions.  The Crime Lab also has full-time, on-site legal counsel to facilitate access for prosecutors and defense attorneys alike.  Lab scientists are available for pre-trial consultation with defense counsel, without notice to, or the presence of, prosecutors.  Complete discovery, including raw data of laboratory analyses, is routinely provided.  All current Laboratory procedures are posted online and courtroom monitoring of analysts’ testimony has been enhanced to receive feedback from court participants, including defense attorneys and unrepresented defendants.  Tours of Crime Lab facilities for criminal defense attorneys are conducted regularly by case working analysts without monitoring by Lab management.

Few of these high standards are found at other public or private labs throughout the country.  Indeed, it likely is no exaggeration to assert that locating another where all are in place in the same jurisdiction would be a very difficult task.

Moreover, without going into great detail regarding the post’s claim that analysts in cases decades ago “systematically withheld or distorted” evidence, suffice it to state that this bald assertion is belied by the language of 2010 Report itself.  Of the 230 (later reduced to 229 by the Report’s authors) cases listed out of 15,419 reviewed, only five were cited in which test results were identified as having been “overstated or misstated.”  All five were authored by a single analyst who, as the Report pointed out, “has not served in the Lab since 1993,” and who was later terminated by the SBI.

In addition, the Report pointedly stated that “[n]o evidence was found that that laboratory files or reports were concealed or evidence suppressed,” that “the historical practices” from the late 1980’s and early 1990’s “are no longer in use” at the Crime Lab, that “[n]o issues were identified … that would call into question the proficiency of analysts, quality control protocols or the adequacy of the [NC Crime Lab’s] testing procedures,” and finally that “no one should conclude that someone has been wrongfully convicted.”

In any event, it is important for the public to know that the Crime Lab has adopted the recommendations of the Report and gone even further with some of the procedural enhancements described above and others, including tracking of innocent suspects cleared by DNA technology, a first.

The Crime Lab has accomplished these achievements while confronting spiraling case submissions, an escalating demand for services, and continually increasing court appearance requirements.  To meet these challenges, the Lab is using mandatory overtime, streamlined evidence management processes, new technology, outsourcing, improved coordination with the courts, a forensic laboratory workflow consultant, and strategic redistribution of Lab work.  We are also continuing to push for additional resources so that the Crime Lab can meet the growing needs of the criminal justice system as a whole.

In short, North Carolina State Crime Laboratory lab scientists are working incredibly hard, but follow precise scientific standards, record accurate results, and let the chips fall where they may.  The Crime Lab of today strives daily to become even stronger and better and respectfully requests your acknowledgement and your help.

Engel’s reponse:

Judge Joseph John Sr. says the State Crime Lab has made changes since the 2010 scandal in its blood analysis division, and I commend him for that.  Any efforts that help ensure that people are not convicted based on flawed evidence are welcome.

But do not tell us there never was a problem.

Consider the responses of North Carolina prosecutors after an audit of the lab’s blood unit found more than 200 cases in which flawed or misleading blood evidence had been used:

“To find out that people we relied on so heavily in so many cases were slanting results—by their own accord or by the instruction of supervisors—is the ultimate betrayal,” said one former Johnston County prosecutor. “We are not playing a game here. These are people’s lives.”

“We’ve been out there asserting things as fact that just weren’t,” said the Union County district attorney.

No matter what reforms are in place now, thousands of people convicted under the old standards are still in prison or on death row.  As lawyers who represent those defendants, we see every day the consequences of the Crime Lab’s shoddy work, which still have not been addressed.

Consider this sampling of problems from some of those cases from the 1990s and early 2000s:

• SBI lab experts testifying that the bullets found at the scene of a crime came from a particular gun to the exclusion of every other gun in the world, a conclusion unsupported by any accepted scientific standard.
• SBI agents shaping testimony to support the state’s case while withholding conclusions favorable to the defense.
• SBI agents testifying based solely on unreliable presumptive tests which conflicted with more reliable confirmatory tests.
• SBI lab experts destroying biological evidence that, if subjected to DNA testing, could confirm or rebut a death row inmate’s assertion of innocence.

The audit of the Crime Lab’s blood division suggests that the culture of the SBI encouraged agents and analysts to intentionally tailor their reports and testimony to help the state and disfavor defendants. Five of the six contributing factors cited in the report on the lab’s blood division are broadly-applicable administrative problems: “poorly crafted policy; lack of objectivity; the absence of clear report writing guidance; inattention to reporting methods that left too much discretion to the individual analyst; lack of transparency.”

In light of this evidence, why hasn’t the state done an exhaustive review of all the lab’s work during the 1990s and early 2000s, when the lapses in the blood division occured? We still don’t have an explanation for that.

I hope Judge John is correct that the lab is an entirely different place today.  But we cannot forget the countless people who were imprisoned and sentenced to death under its former practices.