Friday, June 28, 2013

Mendocino/Lake County Medical Examiner: Forensic Fraud, Error, or Negligence?

As a practicing forensic scientist who testifies in court under oath and submits to the crucible of cross-examination, the author has great sympathy for other professionals that are willing to do the same. For instance, in a courtroom, it is easy for just about any facts, statements, and opinions to be savaged from their context by attorneys and painted to support multiple legal theories. Or they can simply be misunderstood and misrepresented. All of this while a forensic expert is required to sit silently and waits their turn to explain, if that moment comes at all. 

This is not what happened in the case of California v. Timothy S. Elliott.

Timothy S. Elliott -
In 2010, Timothy Elliott was convicted of 2nd Degree murder for the stabbing death of Samuel Billy. As reported in the Mendocino County District Attorney's Newsletter (Issue 11, 2010):

After 6 days of trial, the jury returned a guilty verdict on a charge of Second Degree Murder against Timothy Elliott. The jury also found Elliott personally used a knife in the commission of the murder.

Elliott encountered the victim, Samuel Billy, during a party at Shanel Drive on the Hopland Rancheria during the early morning hours of September 26, 2008. After an earlier fight involving Elliott and other subjects, Elliott and Billy engaged in an altercation during which Elliott was observed delivering a blow to Billy’s abdomen. Billy staggered off a few feet and collapsed in the parking lot with an apparent stab wound. Elliott fled the scene. After the stabbing Elliott arrived at the home of an acquaintance where he changed into some dirty clothes belonging to the acquaintance, leaving behind his own clothing and a knife. After police and medical personnel arrived Billy was flown to Santa Rosa Memorial Hospital where he died of the stab wound after emergency surgery.

Elliott will be sentenced on October 08, 2010. He faces a sentence of 16 years to life. Elliott was prosecuted by Deputy District Attorney Raymond Killion. 

In September of 2012, Mr. Elliott filed a writ of habeus corpus for a new trial based on evidence of ineffective assistance of counsel related to the forensic evidence, and the testimony of Dr. Jason Trent - the forensic pathologist for Mendocino and Lake counties. He was subsequently granted a hearing in June of 2013, as reported in Revelle (2013):

Elliott is due in court June 21 for a hearing to decide whether Public Defender Linda Thompson, who defended him at trial, erred in failing to ask for a hearing outside the jury's presence to exclude the 1.65-inch knife the doctor testified could have been used to inflict the fatal, 6-inch stab wound in Billy's abdomen.

"At trial, I was asked for my opinion of fellow pathologist Dr. Terri Haddix's conclusion that the knife in evidence could not, when fully inserted, inflict a six-inch deep wound," according to an April 7, 2012 declaration from Dr. Jason Trent, the pathologist who performed the autopsy on Billy.

"I testified to my belief that her conclusion was incorrect. My opinion was based, as I stated at trial, on the knife blade measuring between three to four inches long."

Trent's declaration goes on to say appellate attorney Shannon Chase asked him to review his records and Haddix's report, including a photograph of the knife in question, showing it was shorter than he had thought during trial.

"Based on this information, I am not absolutely able to conclude whether this knife could have caused a six-inch deep wound," Trent's declaration says. "If I was told at trial that the knife blade was 1.65 inches long, I probably would have testified that this knife could not cause a six-inch deep wound."

"However," he continues, "keep in mind that the victim is dressed, is overweight and the blade strikes no object other than soft tissue."

In a more concise declaration dated Sept. 8, 2012, Trent states, "If presented with the correct measurements, those being a knife blade measuring 1.65 inches and a wound 6.7 inches deep, I would not disagree with Dr. Haddix's conclusion."

During the hearing, which was held on Friday, June 21 of 2013, both Elliott's public defender and Dr. Trent suffered severe criticism. As reported in Meadows (2013):

The Mendocino County medical examiner's credibility was called into serious question and the Mendocino County public defender was put on the stand over the possible bungling of a murder case, in an unusual all-day hearing in county Superior Court Friday. a hearing before Superior Court Judge Ann Moorman on Friday, Trent, who serves as the forensic pathologist for Mendocino and Lake counties, under questioning from Mendocino County Deputy District Attorney Paul Sequeira, said the knife in evidence, even though it measured 1.65 inches long, could have been the weapon that drove the 6.7-inch stab would into Billy.

A jury in August 2010 convicted Elliott of second-degree murder in the stabbing of Billy, 29, also of Hopland. The men, both members of the Hopland Band of Pomo Indians, allegedly fought at a party on tribal land early on the morning of Sept. 26, the Mendocino County District Attorney's Office stated previously. Elliott was reportedly seen delivering a blow to Billy's abdomen, and Billy staggered a few feet and collapsed in the parking lot with a stab wound. The only witness was a young boy who said he saw the crime out his window. The defense tried to discredit the boy, noting his family were friends of the victim and that the night was very dark.

In the morning, Trent was asked over and over about his inconsistent testimony. In his written change of heart in April 2012 (and again in September of 2012) he agreed with the defense's expert witness that the knife in evidence could not have made the stab wound.

"At trial, I was asked for my opinion of fellow pathologist Dr. Terri Haddix's conclusion that the knife in evidence could not, when fully inserted, inflict a six-inch deep wound," read the declaration from Trent, who performed the autopsy on Billy. "I testified to my belief that her conclusion was incorrect. My opinion was based, as I stated at trial, on the knife blade measuring between three to four inches long."

However, on Friday he said, "Indeed I do," when asked by Sequeira if, knowing absolutely that the knife in question was 1.65 inches long, he still believed that knife could have been the knife that caused the fatal wound.

Sequeira went to lengths - bringing out a standard wooden 12-inch ruler - to display to Trent the difference between a 3- or 3.5-inch knife blade and a 6.7-inch wound and the difference between a 1.65-inch blade to 6.7 inches. Nonetheless, Trent said he "absolutely" still believed that with enough force, the smaller blade could still do the damage.

Trent said it was important to remember that the blade in evidence had exactly the same blunt and sharp sides which matched the wound itself. He also said that the victim was somewhat overweight and that if pushed with force through soft tissue, the smaller knife was capable of inflicting the fatal wound.

Earlier in the day, Mendocino County Sheriff's Detective Andrew Whitaker testified that back in September of 2008 he had chatted with Trent about the knife in his office when the knife was on the detective's desk being photographed. At that time, Whitaker said, he and Trent discussed the relatively short blade, but not specifics and Trent said informally that he thought it could be the weapon. Because of that informal opinion, Whitaker said, he sent the knife - which had been turned over to authorities weeks after the stabbing incident - to the state Department of Justice for forensic testing, something he said he would not otherwise have done.

Elliott's court-appointed private attorney Jan Cole-Wilson on Friday asked Trent over and over how he could be so inconsistent.

"I was wrong; I don't know what else to tell you," he kept saying about the two sworn declarations he made in 2012 about the knife. He also could not remember most of what Cole-Wilson wanted to know, such as when he first saw the knife, if he saw the knife before the trial, what he testified to during trial.
She pointed out - and Trent agreed - that making serious mistakes in criminal trials could cost him his job. But when she implied that he was changing his testimony now for the benefit of the District Attorney's Office, he denied it.

"That's what I swore to, that's what I signed, but I was wrong," he said again, about recanting his trial testimony.

After hearing testimony all day, Superior Court Judge Ann Moorman scheduled another hearing for August. She also made it clear that she her ruling would involve findings regarding Dr. Trent's testimony, as  reported in Meadows (2013):

"I intend to make some findings about Dr. Trent's credibility," she said. She noted that "under penalty of perjury" Dr. Trent had twice recanted his trial testimony and then "came to court today and under penalty of perjury gave equally emphatic testimony that his other sworn testimony was wrong.
"Dr. Trent's credibility is damaged," she concluded.

The reality is that Dr. Trent gave a forensic opinion (i.e., one that he felt was certain enough for court, to give under oath). He opined with certainty whether a particular knife could have caused a particular injury without examining the knife at all. On it's face, this practice seems professionally indefensible - violating even the most basic notions of wound pattern analysis.

What's worse, Dr. Trent did not seem interested in defending his admitted negligence. He almost seemed to think it was no big deal. To say nothing of not seeming to be too bothered by the fact that he twisted himself into a pretzel to give, and retract, multiple conflicting forensic opinions. 

Hopefully, this August, Judge Moorman will render a decision that appropriately accounts for Dr. Trent's actions, and those of his defense attorney, that best serves justice. This will give both of the counties that he serves the impetus needed to review his past cases for similar errors, as well as possibly consider the necessity of retaining someone that is not quite so cavalier with their forensic opinions.

Brent E. Turvey, MS - Forensic Science; PhD - Criminology
Author of:

Turvey, B. (2011) Criminal Profiling, 4th Ed., London: Elsevier Science

Turvey B. (2013) Forensic Fraud, San Diego: Elsevier Science

Savino, J. & Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science

Sunday, June 16, 2013

Forensic Science Misconduct on the Rise

All across the United States, crime lab scandals have been making headlines. Not just in recent months, but for years. At the local level, this is generally perceived to be an isolated problem. The reality, however, is quite different. 

As explained in the new text Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct (Elsevier, 2013), crime lab scandals related to forensic fraud and error are on the rise - worsening in the last few years. The result has been dozens of crime lab closures, tens of thousands of criminal cases thrown out and overturned, and millions of dollars in successful lawsuits against government agencies.
Forensic Fraud 
(Elsevier, 2013)

The subject remains sore and often forbidden within the forensic science community. Consequently, the frequency and conditions of its occurrence have not been researched, and incidents are regularly hidden from public scrutiny to maintain the reputations of those agencies and crime laboratories that have suffered its stain. As discussed in this new text (available in June), this is at least in part because those who have direct knowledge of forensic fraud also have a vested interest in keeping it from becoming public knowledge. 

There are a number of contributing factors: 

First, hiding or ignoring misconduct preserves the image of an examiner's agency or lab, and by extension their own reputation, out of concern for courtroom credibility and future employment prospects. 

Additionally, it must be understood that forensic practitioners are by definition involved in sensitive casework. As a function of their employment contracts, they may operate under strict confidentiality agreements or non-disclosure clauses that might preclude communication of any kind about active casework—especially that which reflects negatively on their employer. The fear of losing employment-related income (e.g., being fired), and any future employment prospects, is generally sufficient enough for most to avoid causing a breach, even when it is in the public interest. 

The majority of forensic scientists are also employed directly by police agencies or by crime labs associated with law enforcement and the prosecution. Consequently, open discussion and study of forensic fraud have long been considered a “third rail” in the forensic community. A brief explanation is necessary: the third rail is the method of providing electrical power to a railway, such as a mass transit system, by means of an exposed conductor. Anyone who touches the third rail is killed instantly by a surge of electricity. So it is with the issue of fraud. Such a discussion necessarily involves critical review of the actions and motives of law enforcement, prosecutors, and their scientific agents. These are not professional communities that are generally receptive of criticism or outside review, and they are frequently hostile to external or independent efforts involving either. Consequently, any forensic practitioner who raises these or related issues risks touching the third rail—being the object of hostility and derision within the law enforcement and government lab community, and committing career suicide in the process. This means not only the loss of employment, but also one’s friends, colleagues, and professional identity.

As a consequence of these and other related factors, the phenomenon of forensic fraud has remained a mystery ---- until now. The publication of Forensic Fraud represents the first real scientific effort to study and understand what happens when forensic scientists go bad and why - with realistic reforms. A more timely report on the state of forensic science is difficult to imagine.

In short, the research demonstrates that forensic fraud is not an isolated problem resulting from a few bad apples. Rather, it is most often the result of systemic and cultural failures, and arises primarily in association with law enforcement employed forensic personnel or those working for the prosecution. And when it is discovered, those involved are not generally fired, prosecuted, or otherwise punished - rather they are most often retained, perhaps transferred, or allowed to resign and move on to another agency where fraud can continue anew.

Forensic Fraud defines the nature of the problems in the forensic community; helps readers to understand the social contexts and personal motives that facilitate forensic fraud; provides informed strategies for mitigating forensic fraud; and ultimately seeks to keep the criminal justice system honest with itself and the public that it serves.

Some recent examples of forensic fraud, error, and other misconduct from just the past six months include the following:

1. Washington State Patrol Crime Lab
Among the most beleaguered crime lab systems in the nation at the moment, with a steady stream of scandals since 1999 (with the termination of Dr. John Brown for DNA related fraud), Lab Manager Kevin Fortney resigned his post this year while under investigation for fraud and error relating to multiple cases. 
Kevin Fortney
And it's only gotten worse since he left, with new revelations being uncovered every week. The Fortney scandal occurred while this lab system was only just healing from the fraud committed by former Lab Director Barry Logan and his subordinate Anne Marie Gordon.

2. Scottsdale Police Department Crime Lab
Scottsdale police crime lab criminalists, supervisors, and prosecutors have been arguing in court whether blood-alcohol evidence processed in the lab can trusted because of problems with equipment. They say it can. However, internal emails recently discovered to the defense paint a very different picture.

3. Onondaga County Crime Lab in Syracuse, NY
The fight between the Syracuse Police Department and the district attorney's office over who controls the Onondaga County crime lab reached a fever pitch this year, resulting in an investigation by the Inspector General's Office. Ultimately, no wrongdoing was uncovered at the lab, but tensions between the police department and the district attorney's office remain high.

4. Hinton Drug Lab in Jamaica Plain, Massachusetts
The Annie Dookhan scandal began unfolding in 2012. It involved dry-labbing in more than 30,000 cases, hundreds of cases overturned, and a crime 
Annie Dookhan
lab so bankrupt of scientific integrity and accountability at all levels of management that it had to be shut down. The investigation of the lab alone is still costing the state tens of millions. Though she confessed to investigators, she recently plead not guilty in court after being indicted for charges related to her many acts of fraud. 

This was far worse than the fraud committed by Debra Madden, which forced the closure of the San Francisco Police Department Crime Lab (and is only just now winding down after four longs years of dismissed cases, hidden evidence, and hypocrisy). Consequently, the Annie Dookhan scandal will go down as one of the worst in the history of the forensic sciences. 

5. Massachusetts State Police Crime Scene Services Section
Det. Lt. Kenneth F. Martin, commanding officer of the Crime Scene Services Section, was recently stripped of his command and reassigned when it was learned that he was moonlighting as a defense expert on local cases.

6. Canton-Stark County Crime Lab - Ohio
The Stark County Crime Lab has been plagued with problems for the past year. 
Michael Short
Primarily, these relate to the inability to keep a fraudulent scientist fired (criminalist Michael Short); and the improper hiring of an unqualified police officer as lab director (Rick Perez). This required the director's near immediate resignation. Currently, in part due to evidence backlogs that have come to light because of the recent leadership change, DNA testing has been halted at the lab. It is currently being outsourced to the BCI. 

7. Beckley Police Department - West Virginia
Gabriella Brown
In the kind of case that is becoming all too common in the forensic sciences (see Sonja Farak, below), Gabriella Brown, an evidence technician, was charged with stealing drugs from the evidence locker she was in charge of. She was a civilian employee of the PD, and also holds an online Masters degree in Forensic Science from Marshall University. She recently plead guilty and was sentenced to four years probation.

8. Massachusetts State Drug Lab - Amherst
Sonja Farak, a forensic chemist, was recently indicted for stealing drugs and otherwise tampering with evidence at the state drug lab in Amherst, Massachusetts. The case is ongoing.

9. California State Crime Lab - Ripon
Hermon Brown, a criminalist, was recently convicted of embezzlement in relation to the theft of methamphetamine and cocaine from his lab. He was skimming from the drugs submitted by law enforcement, which alters weights and related charges. The fraud comes from misreporting the true weights in logbooks and reports. His fraud compromised dozens of local trials where he was scheduled to testify. After a couple of years waiting trial, he plead out and took 16 months of jail time.

10. Texas Dept. of Public Safety Crime Lab - Houston
This scandal involves the work of former DPS criminalist Jonathan Salvador, and allegations of dry-labbing. As reported in The Houston Chronicle (2013):

"Salvador examined evidence in 4,900 drug cases from 29 counties from 2006 through early 2012, including more than 250 each in Harris, Fort Bend, Montgomery, Galveston and Fort Bend counties, lab records show.

During that time, he often "scrambled" to handle the minimum number of cases expected of examiners and had a 33 percent error rate, usually with administrative or clerical problems in his files. The report concluded that "Salvador struggled with corrections and an overall understanding of the chemistry, especially in difficult cases."

Salvador quit in August after a Texas Rangers' investigation concluded he had falsely claimed to have tested a drug sample but actually used results from another case. In May, then-Harris County District Attorney Pat Lykos presented findings from the Rangers' investigation of Salvador to a grand jury, which declined to indict him."

11. Colorado Department of Public Health Forensic Laboratory 
Lab Director Cynthia Burbach resigned while Under Investigation subsequent to an audit. The audit, conducted by the Colorado Department of Public Health and Environment, determined in March (2013) that Ms. Burbach may have tampered with or even lied about forensic tests in court. Pro-prosecution bias was found to be common in her actions and testimony. This investigation is ongoing.