Sen. Patrick Leahy, D-Vt., has announced that he will introduce legislation to reform the forensic science field early next year.
On the heels of recent scandalous allegations that a lab technician at the San Francisco Police Department crime lab had been stealing cocaine and that officials concealed DNA analysts' misconduct, potentially damaging a number of cases, local officials are paying close attention to the federal legislation. However, experts disagree on what implications, if any, federal reform could have on the state's beleaguered crime labs.
Here's a draft of the proposed legislation:
Draft of Criminal Justice and Forensic Reform Act of 2011
Since a report by the National Academy of Sciences was released in February 2009, the
Senate Judiciary Committee, chaired by Sen. Leahy, has held hearings about serious issues in forensic science and the reliability of evidence in the criminal justice system. The report raised a number of concerns about the state of forensic science. Among the concerns and recommendations were:
- State and local crime labs are often are sorely lacking in the resources (money, staff, training and equipment) necessary to maintain forensic science labs.
- With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with certainty, demonstrate a connection between evidence and a specific individual or source.
- An independent federal entity should be created that would focus on establishing best practices and mandatory standards for the field.
According to a draft, Sen. Leahy's proposed legislation will, among other things:
- create an Office of Forensic Science and a Forensic Science Board charged with establishing and enforcing accreditation and certification standards, developing research strategies, and implementing those strategies with consistency across the field.
- give the director of the Office of Forensic Science power to grant, deny, revoke, limit or suspend an accreditation and determine if lab employees are in compliance with certification standards.
- promote research and provide grant funding and technical assistance to forensic labs.
To understand how the proposed federal legislation might play out in California, it's helpful to examine some past efforts the state has made to curtail crime lab abuses:
Crime Lab Review Task Force
Created by the state Legislature in October 2007, the task force was comprised of crime lab directors, forensic specialists, academics, prosecutors and defense attorneys who examined issues of funding, training and oversight in California's crime labs.
But when the task force released a report in November 2009, very few people paid attention.
"I was frankly disappointed by lack of turn out. We even had trouble getting the legislators who authorized the task force to appear when we released it," commented Dane Gillette, chief assistant attorney general and chair of the task force. "There haven't been any significant – if any – efforts based on the report. ... Maybe it’s because they (the legislators) have so many other budget concerns, and maybe this is just not a front-burner issue for them right now."
Barry Fisher, former crime laboratory director at the Los Angeles County Sheriff's Department and vice chair of the task force, compared the report's release to "having a party and nobody showing up."
In addition to concerns about inconsistent funding sources, backlogs, and the need for increased accreditation and certification of crime laboratories and employees, the task force called for the establishment of a statewide oversight body.
The idea of a state oversight body was controversial. Some task force members saw it as a potential clearinghouse for complaints and allegations concerning serious misconduct or negligence in the California labs. Others questioned the need for and desirability of such as statewide body, particularly if it were empowered to micromanage local crime lab operations. The specifics of the oversight body were going to be laid out in a supplemental report to be published in February 2011.
But in June 2010, while allegations of missing drugs and crooked forensic specialists threatened cases in San Francisco and San Joaquin County, a majority of the task force members voted to "suspend future task force meetings."
Some members argued that even if there was no clear consensus on an oversight model, putting ideas into a report would give policymakers a menu of options for future consideration. But the majority voted down a motion by Jennifer Friedman, Los Angeles County deputy public defender, to let members who wanted to submit written proposals for oversight models do so.
They instead decided it would be "prudent to defer task force activities until a federal approach to forensic science reform is apparent," noted Jennifer Mihalovich, a criminalist at the Oakland Police Department’s criminalistics laboratory, according to meeting minutes.
Certain members of the task force felt blindsided, saying the vote to kill the task force came as a complete surprise. "It was certainly not a trap. ... It was definitely foreshadowed by the materials submitted prior to the meeting," said Gillette, the task force chair.
At least four task force members thought otherwise. In a June 2010 letter to Gillette [PDF], the members wrote that the state task force was still needed:
None of the proposed federal legislation is designed to address state specific issues such as the proper allocation of resources within the State of California, or the investigation and tracking of negligence or misconduct by California criminalists and crime labs.
And in an op-ed in the Los Angeles Daily Journal the same month, two of the members, Friedman and UC Irvine criminology professor William Thompson, implied the task force had been disbanded because powerful crime lab insiders wanted to stamp out strengthened government oversight:
So why did the California Crime Laboratory Review Task Force precipitously vote to disband itself? The answer lies in the task force's composition: Its membership was dominated by laboratory managers and representatives of organizations that operate crime laboratories.
Accreditation and certification
The proposed federal reforms are likely to also meet resistance as the bill weaves its way through Congress. Specifically, the requirement for accreditation and certification of crime labs and forensic specialists is controversial among some.
"There’s a very strong accreditation program in place right now. I don’t know how you can change that to be any stronger,” said Bob Jarzen, a member of the task force and director of the Sacramento County district attorney's lab.
Amy Driver, a forensic scientist and former member of the Los Angeles Police Department, disagreed. "Right now, there's absolutely no regulation and I don't think a lot of people realize that," she said. "There's absolutely no regulation in the country about forensics at all. The people who do my nails have to pass more certifications than the people I work with.”
Only a few jurisdictions nationwide require that their forensics laboratories be accredited, though most forensic laboratories in California are under a program known as ASCLD/LAB, according to the National Academy of Sciences and Crime Lab Review Task Force reports.
Despite the recent scandal, the San Francisco Police Department's crime lab is still accredited. Additionally, many forensic disciplines are preformed outside of laboratories and do not have any external oversight. For example, 66 percent of fingerprint analyses are not conducted in crime laboratories, notes the the National Academy of Sciences report.
But experts remain skeptical of how much impact the federal legislation will have at the state level.
“The difficulty with federal legislation is that it doesn't have a great deal of control over what goes on in the states," said Fisher, the former crime lab director from LA. "If they put some money on the table, which of course is questionable in these times, people might take on more oversight."
"Otherwise," he added, "there’s nothing the federal government can do. The key to anything happening here in California lies with the new governor, the new attorney general and the Legislature."