I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.
In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded.
Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’
In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’
Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’
Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.
Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’ In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.
Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.
The Detroit Free Pressmade an astonishing discovery last month. The city’s former crime lab had been abandoned. As the paper reported, “Thousands of rounds of live ammunition, sealed evidence kits and case files — some containing Social Security numbers of rape and assault victims” sat unattended in an old elementary school building, accessible to anyone who happened upon them.
The lab was closed in 2008 after another investigation revealed habitually sloppy analysis among the lab’s workers, and an error rate as high as 10 percent, a jaw-dropping figure considering that those analysts’ testimony can send someone to prison. The city expected the results of that investigation could have reopened thousands of cases and subject Detroit to hundreds of millions of dollars in damages.
What’s going on? Most of these scandals were exposed after DNA testing cleared someone who was convicted based on testimony from crime lab analysts. DNA testing, which is actually grounded in solid science, is showing that forensic analysis isn’t as certain or as scientific as it is often claimed to be. It’s also showing us that forensics is plagued by bias, both intentional and unintentional, and that bias is caused by poorly structured incentives that often reward crime lab workers for helping win convictions, not for sound analysis. The Innocence Project estimates that bad forensic science contributed to about half of wrongful convictions that were later exposed by DNA testing.
Consider the scandal in North Carolina, uncovered last year after a state investigation and follow-up series by the Raleigh News & Observer. The initial investigation found at least 230 cases in which crime lab workers failed to turn over potentially exculpatory evidence, including three cases that resulted in the defendant’s execution.
The News & Observer follow-up found even more, often stunning, bias at the lab, including training manuals that taught workers to consider defendants and their attorneys as the enemy. Many lab workers’ performance reviews were actually written by prosecutors. In one case, two blood-spatter specialists were caught on video high-fiving one another after running through multiple experiments until they found one that supported the prosecution’s theory of a case.
It isn’t difficult to see how having experts who present themselves in court as objective, unbiased analysts report directly to prosecutors or police agencies could present some problems. But that’s exactly what’s happening. According to a 2009 report on forensic science by the National Academy of Sciences, more than half the crime labs in the U.S. report directly to a law enforcement organization. In some cases, this can lead to overt pressure from police officers and prosecutors to produce desirable results. But most of the time the bias is more subtle, and unintentional.
But that doesn’t mean it isn’t cause for concern. Bias can creep into an analyst’s work in a number of ways, including in the choice of which tests to run, how to records the results of those tests, how to interprets the results, and what the analyst later remembers about the entire process when testifying at trial.
In most government crime labs, there’s no check on these problems, referred to collectively as “cognitive bias.” The state lab is often the only lab to test crime scene evidence. Even when defendants are given money to conduct their own testing, the labs they choose are often seen by jurors as “hired guns,” despite the fact that similar biases also exist in government labs.
There are other problems. Though often presented in court as “science”, many forensic disciplines don’t incorporate basic scientific principles such as peer review and double-blind testing into their analyses.
For example, giving an analyst a crime-scene fingerprint and the fingerprint of the suspect and asking if they’re “a match” can produce very different results from the more scientific method of presenting the analyst with multiple prints (some of which are relevant to the case, some of which aren’t), then asking if any two are a match.
One 2006 study by researchers at the University of Southampton in the U.K. found that the error rate of fingerprint analysts doubled when they were first given some information about the case.
In a 2007 report for the Reason Foundation, Roger Koppl, an economist at the Fairleigh Dickinson University, argued that the best way to address these problems is to begin including private crime labs in criminal investigations and prosecutions. [Disclosure: the Reason Foundation publishes Reason magazine, this reporter’s previous employer.]
The word privatization often conjures up images of no-bid contracts and crony capitalism. But the idea here isn’t to simply sign state crime labs over to private companies. For several years in just such a system in Mississippi, up until 2009, prosecutors were contracting most of the state’s autopsies out to a single private-practice medical examiner, because they knew he’d give him the results they needed to win convictions. The results were disastrous.
Instead, Koppl’s plan would use competition to remedy the incentive and cognitive bias problems that occur when analysts who are supposed to be objective work for and report to the same government agencies that then use their results to try to put defendants in prison.
Under Koppl’s plan, a city or state would create a position of “evidence handler.” The evidence handler’s job would be to distribute the testable evidence in a case to the appropriate crime lab. Under a fully privatized system, the evidence handler would distribute it to one of a rotating series of private labs. Under a partially-privatized system, there would still be a state lab, but under both systems, in every third case or so, the evidence would be sumbitted to a second or third lab for verification. The original lab would not know when it was being checked by other labs.
This system, which Koppl calls “rivalrous redundancy,” flips the incentive problem upside down. For the individual crime lab worker, the incentive is no longer to please prosecutors or police, but to do the most thorough, sound, objective analysis possible. For the private labs, the incentive is to catch the state labs — or another private lab — making a mistake. When there’s conflict over test results, a third or fourth lab could come into the mix.
Private labs also have an incentive to protect themselves from liability. It’s nearly impossible to sue the government. Individual crime lab workers employed by state or local governments are protected by qualified immunity, making it difficult to sue them as well. Private labs don’t have such protections, so they’re more likely not only to be careful, but to preserve evidence in the case of litigation.
Dallas County, Texas, for example, began sending crime scene evidence to a private lab in the early 1980s. It’s one of the few cities in the country to do so. When Craig Watkins was elected as the county’s district attorney in 2006, he began to actively seek out cases in which an innocent person may have been sent to prison.
State crime labs often destroy biological evidence after a defendant has exhausted his appeals. It isn’t difficult to understand why: Preserving the evidence is expensive, and really only serves the purpose of possibly revealing mistakes somewhere down the line. But the private lab in Dallas had different incentives, which is why it preserved the biological evidence in cases going back 25 years.
In a 2008 interview, Watkins said that preservation was key to helping him discover a number of wrongly convicted people.
“I don’t think there was anything unique about the way Dallas was prosecuting crimes,” Watkins said. “It’s unfortunate that other places didn’t preserve evidence, too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can’t do that in other places.”
The system Koppl proposes would likely be more expensive than the system most cities and states use now, though if they eliminated the state lab altogether, it’s possible the difference would be small. But Koppl estimates that his reforms could be implemented and maintained for years for the cost of a few wrongful convictions — which this system would go a long way toward preventing.
A group of criminal defense attorneys says the Michigan State Police (MSP) should no longer oversee the state crime lab. “We in Michigan accept the idea we’ve got a Michigan State Police crime lab. That is inherently problematic. But we accept it, because that’s how it is,” said attorney Michael Komorn, who specializes in defending medical marijuana patients.
Komorn and attorney Neil Rockind recently filed a federal complaint against the lab in hopes that it will spark an independent investigation into a new crime lab policy dealing with synthetic THC. The policy instructs crime lab technicians to treat extracts that contain THC as being synthetic. That’s in any case where it is not absolutely clear they came from a cannabis plant. The attorneys claim the policy change is leading to unfair felony charges for patients who would otherwise face misdemeanors.
Komorn uncovered the policy through a public information request and provided the documents to the Michigan Public Radio Network in October. The attorneys say it’s the result of political pressures on the crime lab as a result of being overseen by MSP. “The idea that the police and the lab and the prosecutors are all intertwined and they are one side of the team versus the defendant is inherently a conflict,” said Komorn. He’d like the crime lab to be overseen by another government agency or a private entity.
Komorn is defending a patient who was charged under the policy. He says the state removed the Ottawa County man’s six-year-old son and placed him in a foster home due to the charges. The man faces two years behind bars, twice as long as a misdemeanor charge.
A group of criminal defense attorneys says the Michigan State Police (MSP) should no longer oversee the state crime lab.
“We in Michigan accept the idea we’ve got a Michigan State Police crime lab. That is inherently problematic. But we accept it, because that’s how it is,” said attorney Michael Komorn, who specializes in defending medical marijuana patients.
Komorn and attorney Neil Rockind recently filed a federal complaint against the lab in hopes that it will spark an independent investigation into a new crime lab policy dealing with synthetic THC.
The policy instructs crime lab technicians to treat extracts that contain THC as being synthetic. That’s in any case where it is not absolutely clear they came from a cannabis plant. The attorneys claim the policy change is leading to unfair felony charges for patients who would otherwise face misdemeanors.
Komorn uncovered the policy through a public information request and provided the documents to the Michigan Public Radio Network in October.
The attorneys say it’s the result of political pressures on the crime lab as a result of being overseen by MSP.
“The idea that the police and the lab and the prosecutors are all intertwined and they are one side of the team versus the defendant is inherently a conflict,” said Komorn.
He’d like the crime lab to be overseen by another government agency or a private entity.
Komorn is defending a patient who was charged under the policy. He says the state removed the Ottawa County man’s six-year-old son and placed him in a foster home due to the charges. The man faces two years behind bars, twice as long as a misdemeanor charge.
Southfield — Three defense attorneys are asking the federal government to investigate the Michigan State Police crime laboratories, alleging misconduct in their testing for pending drug cases.
Southfield defense attorneys Neil Rockind and Michael Komorn, along with Michael Nichols of East Lansing, want the National Institute of Justice and the institute’s Office of Investigative and Forensic Sciences to look into their claims that the State Police lab has — on advice of the Prosecuting Attorneys Association of Michigan — compromised results in marijuana cases.
According to Rockind, defense attorneys have obtained emails sent between lab officials and the association that allegedly show the labs were influenced by PAAM in its reporting of the testing of suspected marijuana in criminal cases and the origin of THC, the active component that produces the “high” obtained by the user.
“This involves how test results can show whether substances are synthetic, such as in designer drugs or from plant material,” Rockind said. “If synthetic, it can result in felony offenses punishable by up to seven years in prison rather than the more common misdemeanor offense or a crime in which medical marijuana card holders can advance a medical defense.”
State Police and the prosecutors association deny the attorneys’ allegations.
MSP crime labs received more than $236,000 this year in federal funding through the Paul Coverdell Forensic Science Improvement Grant Program. The grants are monitored by two federal agencies, Rockind said.
According to Rockind’s complaint, dated Tuesday, the emails reveal a “co-dependence between the Crime Lab and the prosecuting attorneys association that is the antithesis of an independent, objective and science focused forensic crime laboratory.”
“The problem is the interference by the prosecuting attorneys association with the reporting of scientific results,” Rockind wrote the agencies. “It reflects a culture that the Crime Lab and its analysts are not scientists reporting forensic analyses dispassionately in court through testimony. Instead, it reflects a systematic top-down management of the reporting by (PAAM) through the MSP laboratory supervisors.”
Rockind also wrote that the MSP crime labs have violated guidelines of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, which has accredited the lab.
Accredited labs nationally follow guidelines that include being impartial and objective, approaching all testing with an open mind and without bias, the complaint states.
Quoting the accrediting agency’s guidelines, Rockind wrote, labs must “conduct complete and unbiased examinations. Conclusions are based on the evidence and referenced material relevant to the evidence, not extraneous information, political pressure, or other outside influences.”
“The involvement and participation of the prosecuting attorney in the operation and conduct of the Crime Lab violates these guidelines,” Rockind wrote.
Rockind said he has not filed a lawsuit in the matter but only seeks to have supervisory officials review the situation, identify problems, if any, and determine corrective action.
Gerry LaPorte, a director of the two federal agencies both based in Washington, D.C., could not be reached for comment Wednesday.
Shanon Banner, a spokeswoman for the Michigan State Police, said, “The allegations of this group of defense attorneys are without merit.”
Banner said in 2013, the State Police Forensic Science Division changed its policy regarding how marijuana and THC are reported “in an effort to standardize reporting practices among our laboratories and to ensure laboratory reports only include findings that can be proved scientifically.”
Banner said that with an increase of synthetic drugs being sent to labs, “it became necessary to ensure reporting standards were in place across all labs.”
Lab workers were involved in discussions and proposed changes, she said, which included using the phrase “origin unknown” for samples where the source of the THC could not be scientifically proven to originate from plant-based material.
“It does not mean the sample is synthetic THC,” Banner stressed. “It only means the lab did not determine the origin, and the source of the THC should not be assumed from the lab results.”
“The allegation that politics or influence from any outside entity played a role in this policy change is wholly untrue,” Banner said. “Further, the MSP rejects the allegation that an internal policy change to ensure standardization regarding how test results are reported rises to the level of negligence or misconduct.”
PAAM president Mike Wendling issued a response Wednesday that said, in part, “defense attorneys have alleged that the PAAM directed the Michigan State Police Forensic Science Division to change their reporting procedures relating to THC in an effort to increase potential charges. These allegations are false.”
Wendling said the allegations are based on two emails in which Ken Stecker, a staff attorney, opined that “THC is a Schedule I drug, regardless of where it comes from.
“At no time, in either email, did Mr. Stecker direct MSP Forensic Science personnel on how to conduct tests or how to report their findings.
“When the MSP Forensic Science Division tests a substance that shows the presence of THC, the measurement of that THC is reported,” Wendling wrote. “If plant material is not detected to be present, they cannot determine if the THC is a synthetically created resin or created out of plant material.”
Wendling stressed that the crime labs set their own protocols for reporting scientific findings and described Stecker as a “highly regarded and highly requested statewide and national presenter on the issues of traffic safety and drug use.”
