A D.C. judge has ordered the District’s forensic sciences lab to turn over several documents related to a botched firearms analysis at the center of an ongoing murder case — and a bitter public battle between the lab and federal prosecutors.
In a hearing Tuesday morning in D.C. Superior Court, Judge Todd Edelman ruled that D.C.’s Department of Forensic Sciences must turn over 24 separate documents — about half of the more than 50 documents sought by the U.S. Attorney’s Office for D.C.
The documents deal with a faulty 2017 analysis of shell casings that falsely linked two killings, as well as how the agency’s Firearms Examination Unit reacted when it was informed by prosecutors of the error earlier this year.
Prosecutors had taken the extraordinary step of subpoenaing DFS to force the crime lab to turn over the documents and, separately, launched a far-reaching audit of the agency’s Firearms Examination Unit looking for errors in other cases. So far, the outside audit team has examined 59 other cases and turned up discrepancies in 11 of them.
The judge’s decision was related only to the release of documents in the murder case, not the separate audit of DFS casework.
But Edelman acknowledged what he called the “side battle” between the U.S. Attorney’s Office and DFS over the independent audit, and also said he found the results of the audit so far “fairly startling.”
The judge’s decision Tuesday ordered DFS to turn over 24 documents relating to the faulty analysis that linked two 2015 shooting deaths. DFS examiners had concluded 10 mm shell casings found at each crime scene were fired by the same gun and, based in part on that analysis, two D.C. men, Rondell McLeod and Joseph Brown, were charged with murder.
Prosecutors only discovered the error in the shell casing analysis earlier this year as they were preparing for trial and decided to have the evidence reexamined by an outside expert. That expert concluded the shell casings were not fired by the same gun.
When prosecutors went to DFS in January to inform them of the error in the original analysis, the lab at first denied its examiners had made any mistakes and then, after several months, acknowledged an “administrative error.”
Around the same time, examiners at DFS reanalyzed the casings and changed the agency’s finding on the shell casings to “inconclusive,” meaning examiners couldn’t tell if they were fired by the same gun.
The document battle between prosecutors and DFS kicked into high gear over the summer when McLeod’s defense attorney filed a motion asking the judge to toss the murder charge against his client, citing the false ballistics evidence, which he characterized as a conspiracy to frame McLeod.
Prosecutors sought to quash the defense motion, arguing the faulty ballistics analysis was an unintentional error, not evidence of a conspiracy. But they needed documents to prove their case and DFS was unwilling to hand them over.
“We would like to establish that there is no conspiracy, that there was an error that was made,” Assistant U.S. Attorney Michael Spence said in court Tuesday.
DFS sought to shield the documents, saying they were protected by what’s known as “deliberative process privilege” — documents that should be protected from public view because they detail how policymakers formulate government policies.
Speaking Tuesday, attorney Robert Trout, who represents DFS, said the agency was also concerned that turning over the documents in the McLeod murder case would “bleed over” into the audit of the agency’s handling of ballistics evidence.
DFS officials “do not approve” of the independent audit, Trout said. The lab has maintained federal prosecutors do not have the authority to independently review its casework.
Regarding the ongoing dispute between DFS and prosecutors, Trout said there has been “hyperventilated rhetoric” on both sides.
In the end, the judge ruled that about half of the documents did not meet the legal standard of to be shielded from prosecutors’ view because they simply showed DFS analyzing or reanalyzing evidence.
“DFS was not, in my view, trying to develop some sort of policy to correct the error that had occurred,” the judge said, ordering those documents to be turned over to prosecutors, who must then disclose them to McLeod’s defense attorney, Steven Kiersh.
The other documents deal with DFS efforts to create new protocols for improving quality and avoiding errors, and the judge ruled those documents can stay under wraps.
McLeod’s case was scheduled to go to trial in January, but that was pushed back because of restrictions on jury trials during the COVID-19 pandemic.
