Prosecutors say they are prepared to reexamine hundreds of open cases and convictions, if necessary, following a series of probes into the District’s crime lab, including an ongoing criminal investigation that centers on allegations that senior leaders concealed conflicting findings and pressured examiners to change results in a firearms case.
Testifying at a marathon D.C. Council oversight roundtable Thursday on the operations of the troubled Department of Forensic Sciences, defense attorneys and prosecutors alike expressed grave concerns about the lab’s firearms casework and agency leadership. They ultimately suggested the allegations against the lab could upend the criminal justice system in D.C.
The investigation into the lab, which is being carried out by the D.C. Office of Inspector General, is still ongoing and its findings have not yet been disclosed.
“I want to be clear about what’s at stake here: the integrity of scientific evidence in the District’s most serious criminal cases, faith in the validity of criminal convictions and public safety in the District of Columbia,” said D.C. Attorney General Karl Racine. He added, “This goes to the heart of the criminal justice system.”
Racine’s office, along with the U.S. Attorney’s Office for D.C., first launched an audit of the lab’s firearms casework last spring following the discovery of errors in a 2015 case in which several lab examiners linked cartridge casings from two different killings to the same gun.
‘Deeply troubling’ absence
DFS Director Dr. Jenifer Smith, who has led the agency since 2015, did not testify before the committee.
Council member Charles Allen, who chairs the council’s public safety committee, voiced “extreme displeasure” at Smith’s absence, calling it “deeply troubling” that she didn’t appear before the committee to answer questions. He noted that she signed an oath under penalty of perjury when she was being confirmed to her post to appear before District lawmakers in response to any request.
Acting Deputy Mayor for Public Safety and Justice Chris Geldart, who was appointed to his post just three months ago, testified instead. He said the decision for him to appear before the committee instead of Smith was made by the mayor’s office.
In recent weeks, the deputy mayor said he has been “working to listen to anyone with concerns about DFS management and processes” and said he was interested in discussing “a way forward for the forensic science lab.”
In addition to the criminal probe, the lab had its accreditation to perform a wide array of forensic testing suspended earlier this month, halting some processing of evidence amid an ongoing spike in homicides in the District.
Geldart told the committee that the District has been informed by the ANSI National Accrediting Board that the lab’s accreditation would be withdrawn entirely on May 2, but that the lab planned to appeal the move.
The full withdrawal of lab accreditation comes just as jury trials in D.C. Superior Court are resuming following a pause during the coronavirus pandemic.
John Hill, chief of the Superior Court Division in the U.S. Attorney’s Office, said there are currently 900 pending cases that his office is prosecuting that rely in some form on DFS examination work.
“As trials resume, questions will have to be asked and answered regarding to what extent we rely upon the work that’s already been performed in those cases,” Hill said.
Racine, whose office prosecutes juvenile offenses in the District, said lawyers in his office are already doing preliminary work on what he said would be a “robust” review of convictions prosecuted by his office, in which DFS examiners conducted scientific analyses, identifying cases that will need to be looked into.
In addition, he said his office has six open juvenile homicide cases for which the District may have to hire costly private examiners to rework.
‘Tip of the iceberg?’
Katerina Semyonova, special counsel for policy and litigation at the Public Defender Service, which represents people accused of crimes in D.C. who cannot afford lawyers, said she is “deeply concerned” by the allegations against the lab. She said they indicate the lab has “corrupted criminal trials, led to inadvisable plea agreements and deprived District residents, who are charged in the criminal legal system, of a fair process.”
She said PDS doesn’t know how many cases have been affected by the multiple examiners whose work was flagged as either being faulty or subject to alleged management interference. To start with, Semyonova said PDS is asking the council to require the lab to disclose the names and cases of all defendants that were handled by those examiners.
“It is likely that the uncovered information is only the tip of the iceberg,” Semyonova said.
Jessica Willis, special counsel for forensics for the Public Defender Service, added, “I think right now we’re in a point of crisis — a crisis both for our clients who are sitting at the D.C. Jail, locked down 23 hours a day waiting for their trials in 2023, as well as for our clients who are currently in the Bureau of Prisons, because they’ve been convicted after a jury trial, where our attorneys and other defense attorneys didn’t have access to this information.”
The two cases in which the error was discovered — launching the initial investigation of the lab — are both now being challenged. Lawyers for Rondell McLeod and Joseph Brown, the two men charged in the 2015 killings, are seeking to dismiss the indictments, pointing to the faulty ballistics analysis. Prosecutors have maintained that other evidence links each man to the killing in which he is charged. A hearing in D.C. Superior Court is set for June 2.
In the broader ripple effect in the D.C. court system, federal prosecutors said the full impact was hard to discern since the inspector general’s investigation remains ongoing — and the review of casework carried out by the experts hired by prosecutors was stymied in part by the lab’s refusal to cooperate.
The lab had repeatedly pointed to its status as an independent agency in resisting cooperating with prosecutors’ audit.
Still, the experts’ final report, which was filed in D.C. Superior Court last month, alleged that several DFS examiners erred in linking the disputed cartridge casings to the same gun and that, when confronted by the error, lab managers sought to conceal conflicting conclusions, including an exculpatory finding — apparently only documented in a PowerPoint presentation for senior leaders — that concluded the casings had not been fired in the same gun.
“It was upon learning this information that we became deeply concerned that in addition to the firearms examination unit, we may not be able to use any evidence or witnesses from any part of DFS,” Racine told the committee.
He added later, “by no means was the purpose of the audit to blow up the criminal justice system.”
Some of the documents cited in the report, including the PowerPoint review, were only turned over to investigators after prosecutors subpoenaed the lab last year.
Much of the hearing was spent reviewing the complicated timeline.
“If there was a mistake, we’re human, it happens,” Allen said. “That’s why you have multiple sets of eyes on things.”
Far more concerning, he said, was what he called a pattern of “very troubling leadership decisions,” all centered around the final week of April 2020. Based on documents and chain of custody records, on April 28, a firearms supervisor and another firearms examiner reexamined the disputed casings under a microscope and determined they were not fired in the same gun as the lab had originally concluded.
That finding was included in an April 30 PowerPoint presentation titled “Confidential Case Review” and apparently provided only to senior leaders at the lab and never disclosed outside the agency.
The next day, one of the examiners, who had originally worked the case in 2017, abruptly changed his finding to “inconclusive” with no supporting documentation, which he told investigators he felt pressured to do while sitting in his manager’s office. A few days later, the “inconclusive” finding was reported to the lab’s accrediting board, according to the documents, and presented as the conclusion reached by the firearms supervisor after a full re-examination.
Only several days later, however, did the supervisor actually begin the re-examination that reported an “inconclusive” finding. The supervisor later told investigators he pushed to have an outside expert reexamine the case and that he felt “manipulated” by management into doing it himself.
“This one week … the end of April, beginning of May has significant impact on our entire criminal justice system,” Allen said.
When it came time for him to testify, Geldart, the deputy mayor, agreed that “there’s an issue” in the way the lab responded to the error, but he suggested the lab was following its quality corrective action plan when it completed multiple reviews of the evidence that were never disclosed outside the agency.
“I’m not justifying that process,” he said. “I don’t agree with that process. And I agree with you that there’s an issue in that.”
Geldart said he asked DFS leadership about the examiner who changed his finding from his manager’s office.
“I specifically asked the question of the leadership of what happened here,” Geldart said. “And I did not get the answer that somebody was pressured — that they knew of.”
Geldart added, “My jury is out on that. And there, you know, I’m waiting for the corroborating (evidence) on that.”
Overall, the deputy mayor agreed that there were “some leadership issues” within the agency, but he said he was waiting on the inspector general probe “to come out and tell me exactly how far-reaching this is.”
At times appearing frustrated with Geldart’s responses, Allen said the hours of testimony Thursday pointed to a “significant leadership issue” that has gone unaddressed.
“Having sat through oversight hearings … where all of these issues have been minimized, I do not believe the DFS director has been forthright with me or this committee,” Allen said.
‘Sense of urgency’
In another exchange about the lab’s troubles — Allen quipped at one point that he needed a “flow chart” to keep track of all of the problems — the council member questioned Geldart about the lab’s ability to process evidence given the loss of accreditation.
Geldart said he isn’t sure if the accrediting board will even consider the lab’s appeal, and he said he has “no idea” how long the process will take.
For now, the city is relying on the Bureau of Alcohol, Tobacco, Firearms and Explosives to process gun evidence from D.C. crime scenes and paying private labs to analyze DNA evidence.
However, the deputy mayor said the loss of accreditation doesn’t actually mean the lab has to stop conducting all forensic work.
“There’s a whole lot of laboratories and a whole lot of states that aren’t accredited,” Geldart said. “So it’s not like (if) you don’t have accreditation, can’t do the work.”
The legislation creating the agency in 2011 and setting out rules for how it can operate states: “The Department shall be accredited by an appropriate, bona fide national accrediting organization.”
When confronted with the statute language by Allen, Geldart said, “I’ll have to go and look at that,” and later said, “That can be interpreted, council member, you can interpret that how you want.”
At one point, Geldart claimed the lab didn’t achieve accreditation until 2017. A news release on DFS’ own website indicates the lab was first accredited in 2013, about a year after the lab opened, and that accreditation is mandated in the District.
Geldart later agreed the suspension of accreditation was a problem.
“We have to be accredited; we have to have a respected laboratory,” he said. “And we have to get to the bottom of all this, and I share the sense of urgency.”
Allen’s committee also heard from a union representative, who represents rank-and-file DFS employees.
LaToya McDowney, the local union president with the National Association of Government Employees, shared concerns regarding “mismanagement, unethical behavior and a lack of transparency” in the agency’s management. She said the agency has retaliated against employees in the past for speaking out and sharing their concerns, and she described the atmosphere as a “toxic workplace.”
Allen said he understands that workplace perceptions of management often vary but that his office, too, has received complaints of an “allegedly hostile work environment at DFS where employees do not speak out for fear of reprisal or punishment by senior leadership.”