Forensic Testing A Problem In Several States
BOSTON — Congress could take up legislation in 2014 aimed at improving oversight of the nation’s crime labs. Critics say lawmakers need to take action after several lab scandals — such as the one in Massachusetts, where a former chemist is now in jail.
In Massachusetts, where ex-state chemist Annie Dookhan has begun serving a three- to five-year prison sentence after pleading guilty to falsifying drug tests, many of the tens of thousands of criminal cases affected by her bogus testing remain in limbo.
“We’re basically in this holding pattern where we keep waiting and another court date is set,” said Boston defense attorney Todd Pomerleau, who represents about two dozen people who were convicted based on Dookhan’s tests. “We’ve been waiting for the proverbial day in court.”
When the crisis broke in August 2012, many of those incarcerated based on evidence Dookhan tested did have a day in court. Hundreds of inmates were quickly identified and had their sentences stayed. More than 3,200 so-called “drug lab court hearings” have been held and 352 people have been released from Massachusetts prisons.
One defendant, who didn’t want his name used for fear of possible retaliation here and deportation to a country where some drug crimes are punishable by execution, said after serving four years in prison, he was one of the first defendants to appear before a judge via video conference. He said he was quickly released on bail from the Norfolk County Jail.
He said: “From a person who was held on bail and was serving eight to 12 years and then going before a judge and the judge considered my case for about five minutes and was like, ‘$3,000 bail,’ from that moment I was like, ‘Which way is the door? How do I get out of here?’ ”
He was released on conditions: He has a curfew and wears a GPS monitoring device. He says it’s been difficult for him to get a job and move on with his life. He’s been to court about a dozen times and his case remains unresolved.
“Why do we put a justice system forward, this ‘democracy,’ as they call it?” he said. “I don’t have a problem with doing my time, serving my time for what I did wrong, but justify it. To waste taxpayer money for the past year and a half. People should be up in arms about it and say, ‘You know what, you people didn’t follow the law just like he didn’t follow the law.’ ”
Matt Segal, with the ACLU of Massachusetts, says the ACLU is looking at legal ways to try to get the state to deal with the cases more quickly.
“The state has already spent hundreds of millions of dollars on this scandal, and what have we gotten for that expenditure? The answer is almost nothing,” Segal said. “It hasn’t been justice, it hasn’t been a better approach to the drug war.”
Prosecutors say they’re waiting for a few things: a state Supreme Judicial Court ruling on how deal with the affected cases and a state inspector general investigation into all lab operations.
Attorney Pomerleau says with Massachusetts having the nation’s largest lab scandal, defense attorneys here are now more likely to question forensic testing and to scrutinize the analyst involved, especially because Dookhan was convicted of lying about her credentials.
“She’s testifying under oath apparently that she had a master’s degree and the commonwealth couldn’t even confirm she went to the school?” he said, laughing. “I require my interns to show me a transcript, but apparently the lab had different protocols in place for employment.”
There are no singular national regulations governing forensic analyst credentials. In fact, there are no uniform standards for the labs themselves and there is more than one group that accredits labs. The nonprofit that accredits most of the crime labs in the United States is called ASCLD/LAB.
John Neuner, ASCLD/LAB’S chief operations officer, says accreditation can only go so far and the issue in Massachusetts probably was deeper.
“It just sounds like an ethical issue,” he said. “A laboratory can have all the policies and procedures in the world but if you don’t have ethical people working there, then you’re going to have problems.”
ASCLD/LAB accreditation is good for five years. It requires yearly inspections, which are announced, and corrective action plans are drawn up if violations are found. Neuner admits that to his knowledge, no lab has ever had its accreditation revoked. The now-closed Hinton lab, where Dookhan worked, was not accredited. But forensic consultant Brent Turvey says that might have made things even worse.
“In the Hinton lab, if they were accredited, the incentive to commit the kind of fraud that Annie Dookhan was committing would have been higher because the issue would have been maintaining accreditation,” he said. “In fact, the majority of labs where fraud is exposed were ASCLAD/LAB accredited.”
Turvey, who’s written a book about forensic fraud, says there have been at least 12 crime lab scandals in the U.S. in the past two years. He says the crisis here is rare in that someone has gone to jail because of forensic fraud, and he says there need to be tougher consequences for bad testing. Turvey also says with more criminal cases relying on forensics, lab oversight is something Congress needs to address.
“The forensic science community is not like any other community. It’s not beholden to anyone other than police and prosecutors,” Turvey said. “The question is: Are we creating crime fighters or scientists? Do we require them to tell the truth or help the police and prosecution?”
A report to Congress raised that same question almost five years ago but there has been little movement toward change. In Massachusetts, most forensic testing is now overseen by state police.
In November a chemist who had worked with Dookhan but was moved to the state police lab after the scandal broke was fired — for lying about her credentials.
Note: This story aired on WBUR on Dec. 31, 2013. The Web version was added to this site on Jan. 2, 2014.