Overview of the report on Examining Forensics, July 17, 2009

By Kenneth Jost

George Rodriguez spent 17 years in a Texas prison for a rape he did not commit. Scientific evidence helped put him behind bars. Scientific evidence got him out.

Now, Houston is being ordered to pay Rodriguez $5 million for a wrongful conviction that a federal court jury blamed on “deliberate indifference” to systemic problems at the city's crime laboratory. It was erroneous testimony from the director of the crime lab's biology unit, James Bolding, that helped convict Rodriguez in 1987 of the kidnap-rape of a teenage girl. And it was DNA testing years later that helped prove Rodriguez was innocent and another suspect — wrongly cleared by Bolding's evidence — possibly the perpetrator. [1]

The June 25 verdict and seven-figure damage award in Rodriguez's civil trial came after years of controversy over mismanagement and alleged misconduct at the Houston crime laboratory. “They had a policy of inadequate supervision and training,” says Mark Wawro, one of Rodriguez's attorneys in the eight-day civil trial. “It was an absolute mess.”

The trial also played out against the backdrop of a larger national debate not only about crime labs but also about the role that scientific evidence plays in criminal trials. Crime labs around the country, understaffed and overworked, are facing criticism for being too closely tied to law enforcement. At the same time, many of their techniques — including seemingly well-established methods such as fingerprinting and ballistics analysis — are being critically examined as inadequately grounded in true science and routinely presented to juries and courts as more precise and more reliable than they actually are.

In a 255-page report released in February, the National Academy of Sciences' National Research Council (NRC) called for major changes in the way that forensic science is practiced, studied and governed in the United States. The report calls for:

*Mandatory accreditation of forensic science laboratories;
*Removal of public forensic laboratories from administrative control of police or prosecutors' offices;
*Individual certification of forensic science professionals;
*New standards and quality control procedures; and
*Creation of an independent National Institute of Forensic Science to help fund research and oversee the profession. [2]

Forensic science — derived from the Latin word for “forum” to refer to the use of scientific evidence in court — is receiving increased attention in the United States these days thanks to the highly rated “CSI” family of television shows focusing on crime-scene investigations in Las Vegas, Miami and New York City. The mastery of forensic techniques used by TV crime lab examiners to unravel the most puzzling of crimes has led prosecutors and defense lawyers alike to talk of the “CSI effect” in criminal trials. The supposed effect is said either to help prosecutors if they present convincing forensic evidence as part of their case or to help the defense if the prosecution's case is short of the kind of compelling evidence found on the fictitious TV shows.

The NRC's report notes that advances in forensic science — especially DNA technology — have helped law enforcement identify and convict many criminal offenders. But it also says that in some cases “faulty forensic analyses may have contributed to wrongful convictions of innocent people.”[3]

Rodriguez is one of four men released from prison in recent years because of belatedly found errors in trial testimony by Bolding or other Houston crime lab examiners. In 1987, Rodriguez was one of two suspects Houston police were investigating for the abduction and rape of a teenage girl after one of the assailants confessed but refused to identify his accomplice.

Forensic Science      Disciplines

Police charged Rodriguez after Bolding said an analysis of pubic hair found on the victim excluded the other suspect, Isidro Yanez, but not Rodriguez. Bolding later testified to the same effect in Rodriguez's trial.

That testimony, Bolding conceded during Rodriguez's civil trial for damages, was wrong, but he claimed he thought it was right at the time. Rodriguez's lawyers argued that it was more than wrong. They contended there was no scientific basis for excluding the other suspect — blood-typing analysis is not that precise — and that Bolding had to have known that at the time.

Fifteen years later, the Innocence Project took up Rodriguez's case. The New York City-based legal center has led the efforts to apply DNA testing to exonerate death-row inmates and other prisoners wrongfully convicted in the years before the more sophisticated identification technique became widely available. Tests showed the DNA evidence in the case did not come from Rodriguez but could have come from Yanez. Based on that evidence, Rodriguez was freed from prison in 2004 and his conviction set aside by the Texas Court of Criminal Appeals the next year. [4]

Representing Rodriguez in the civil trial, Wawro and Innocence Project co-founder Barry Scheck argued the city was blind to the risk of constitutional violations from shoddy work by the crime lab. Lawyers for the city blamed the wrongful conviction on Bolding, who resigned his post in 2003, as well as on bad lawyering by both the prosecutor and Rodriguez's attorney in his criminal trial.

After initially reporting a deadlock, the eight-person jury agreed that the city had been “deliberately indifferent” to the risk of constitutional violations from problems at the crime lab. The $5 million award to Rodriguez, 48, who is now working in construction in Houston, represented compensation for lost earnings and pain and suffering. The city's lawyers say they will review the trial transcript before deciding whether to appeal.

William C. Thompson, a professor of law and criminology at the University of California-Irvine who investigated problems at the Houston crime lab for the local television station KHOU, calls the verdict “a costly but important lesson” for the city and for other crime labs. “Verdicts of this type show government officials that failure to maintain oversight and quality control can be expensive,” he says.

Like Thompson, many other legal experts on forensic science are praising the National Research Council's (NRC) report for focusing attention on problems in the field that many practitioners have either minimized or denied. “There's quite a lot of problematic forensic science,” says Jennifer Mnookin, a professor at the University of California-Los Angeles (UCLA) Law School and coauthor of a recently published legal treatise on expert evidence. “We need a significantly more substantial research basis for all this science.” [5]

The president of the American Academy of Forensic Science agrees. “A number of very important forensic theories and methods that have been sending people to prison have never been scientifically validated,” says Thomas Bohan, a forensic science consultant in Peaks Island, Maine. But Bohan is also quick to note that forensic science practitioners were among those who called on Congress in 2005 to ask for the National Research Council study.

Bohan agrees with many of the recommendations in the report, including the removal of forensic science laboratories from control by law enforcement or prosecutorial agencies. The controversy in Houston has led to proposals, unacted on so far, to create an independent, regional crime laboratory. “It would be a good thing to get them out of police departments,” Bohan says, “but I don't think it's going to happen.”

Criminal defense lawyers are also praising the NRC report. “It's a great report,” says Betty Layne DesPortes, a lawyer in Richmond, Va., and vice chair of the National Association of Criminal Defense Lawyers' forensic evidence committee. “It's a strong call for reforms.”

Crime lab directors and prosecutors, however, temper any praise for the report with sharp criticism of many of its recommendations. “Overall, the community really embraces the report,” says Dean Gialamas, director of forensic science services for the Orange County (Calif.) Sheriff-Coroner's Office and president of the American Society of Crime Laboratory Directors. But he disagrees with the report's call for more scientific validation of forensic techniques now used in courtrooms. “The community feels that there's enough science in what we do,” he says.

“There are many, many good and positive things that can come from the report,” says Scott Burns, executive director of the National District Attorneys Association. But Burns says some of the proposals would be “crippling to the criminal justice system.” And he strongly defends the integrity of crime labs. “I very much disagree with the conclusion that they are not independent, not efficient, not professional or well-regulated,” Burns says. “I would say they are all of these things.”

Case Backlogs at U.S.      Crime Laboratories, 2002–2005

The two opposing criminal-law groups differ on the role forensic science has played in the wrongful convictions that have been uncovered in the past — more than 200 of them as a result of DNA testing. They also differ on the need for judges to be more assertive in policing the use of forensic evidence in criminal trials. The report faults judges for allowing the use of forensic evidence without “fully understanding” the limitations of some forensic science disciplines. But it also concludes, “Judicial review, by itself, cannot cure the infirmities of the forensic science community.”

The Issues

*Does misuse of forensic evidence contribute to wrongful convictions?
*Should judges adopt stricter standards on the use of forensic science?
*Should crime laboratories be independent of law enforcement agencies?

[1]For coverage, see Roma Khanna, “Jurors: 17 years worth millions,” The Houston Chronicle, June 26, 2009, p. A1. Some background drawn from daily trial coverage by Khanna or Mary Flood. For background on the Houston crime lab, see Jim McKay, “Houston PD Crime Lab Upgrades After Critical Investigation,” Texas Technology, April 28, 2008, http//www.govtech.com/tt/articles/301675?printall.

[2] “Strengthening Forensic Science in the United States: A Path Forward,” National Research Council, National Academies Press, February 2009, http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589. For coverage of the report, see Jason Felch and Maura Dolan, “Report urges overhaul of crime lab system,” Los Angeles Times, Feb. 19, 2009, p. A9.

[3] Ibid., p. S-3. For background, see these CQ Researcher reports: Steve Weinberg, “Wrongful Convictions,” April 17, 2009, pp. 345–372 and Kenneth Jost, “DNA Databases,” May 28, 1999", pp. 449–472.

[4]The Innocence Project's account is at http://www.innocenceproject.org/Content/246.php.

[5]David H. Kaye, David E. Bernstein and Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence (2004).


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Anonymous said...

"The president of the American Association of Forensic Sciences agrees"

A search of the internet does not show any such association exists. Thomas Bohan was the Engineering Science section chair of the American Academy of Forensic Sciece over a decade ago according to his resume on line:
http://www.bohanmathers.com/bohancv.html His resume does not indicate he was ever president of any forensic association.

CQ Press said...

The text reference to Thomas Bohan is correct. He is presently the president of the American Academy of Forensic Science. However, the name of the organization was incorrectly rendered in the text as the American Association of Forensic Science. We will correct the reference in the text in the online version. Thank you for alerting us to this error.