The trial of two men charged with murder in D.C., whose cases exposed serious forensic errors, remains on hold amid ongoing upheaval at the D.C. crime lab.
A D.C. Superior Court hearing scheduled for Wednesday, at which Judge Milton Lee was to hear arguments about whether to dismiss the first-degree murder indictments against Rondell McLeod and Joseph Brown, has been pushed back until at least Sept. 24.
Assistant U.S. Attorney Michael Spence asked for more time to investigate and come to grips with a “constantly unfolding” series of events at the D.C. Department of Forensic Sciences.
In April, the lab lost its accreditation to perform forensic testing services. Last week, the department’s director, Dr. Jenifer Smith, resigned and D.C. Mayor Muriel Bowser, in a letter Friday, told the D.C. Council the city was hiring an outside consultant “to conduct a complete assessment of the agency.”
The lab also remains the subject of an ongoing criminal investigation being carried out by the D.C. Office of the Inspector General into how lab managers responded to the discovery of errors in the McLeod case.
“There is the possibility that we will learn more information about DFS generally, and in this case specifically,” Spence told the judge in requesting more time to prepare for the status hearing.
Spence also referred to the hiring of the outside consulting firm, SNA International, which is based in Alexandria, Virginia, and which he said prosecutors understood as a first step in putting the lab back on a path toward being re-accredited.
“We have not had conversations with this consulting body, but to the extent that we can obtain information from them, that would be helpful going forward … There’s just a lot of unknowns,” Spence said.
Error or deception?
The U.S. Attorney’s Office for D.C. relies on DFS to conduct forensic analyses of evidence collected at crime scenes throughout the city, but the lab is independent from law enforcement and prosecutors.
Steven Kiersh, who represents McLeod, one of the men charged in the killings, has been fighting for more than a year to have the indictment dismissed, arguing the faulty ballistics analysis that linked the two killings was an “outright intentional deception.”
Kiersh wrote in a filing last month: “The conduct at DFS is nothing short of disgraceful. They intentionally conspired to falsify evidence in a first-degree murder prosecution … DFS plainly and simply got caught trying to perpetrate a fraud.”
McLeod and Brown are charged in the killings of 21-year-old Amari Jenkins who was shot to death outside a Southeast D.C. church in August 2015 and 29-year-old Antwan Baker in the Clay Terrace neighborhood in Northeast in November 2015.
Prosecutors acknowledge the DFS ballistics analysis that linked those two killings was botched, and also say an audit carried out by their office exposed major management problems, including an apparent attempt to conceal conflicting findings and the pressuring of examiners to change conclusions.
But they have, so far, resisted dropping the indictment against the two men, saying there’s plenty of other evidence that connects the two defendants to the killings, including witnesses, surveillance video footage and some DNA evidence.
It was in trying to refute Kiersh’s contention that the forensic errors in this case were not simply errors but malicious that prosecutors last summer took the unprecedented step of subpoenaing the lab to turn over documents showing how senior leaders responded to the error.
The lab had chalked the matter up to an administrative error, and when the cartridge casings were reexamined, the correct finding was determined to be “inconclusive.” Instead, prosecutors say emails and other documents obtained through the subpoena showed the lab had initially concluded the casings were not a match but sought to conceal that finding from prosecutors and the lab’s accrediting body.
Additional examiners also continued to erroneously conclude the casings were a match in follow-up reexaminations, which were also concealed, according to court documents.
An outside audit by a team of experts hired by prosecutors eventually concluded there were “very serious” problems with lab management that have “cast doubt on the reliability of the work product of the entire DFS laboratory.”
Smith, the lab’s director since 2015, resigned last week, nearly two months after the lab lost its accreditation. D.C. Attorney General Karl Racine and Council member Charles Allen had both called for new leadership at the lab.
Longtime D.C. civil servant Anthony Crispino has been named interim director of the agency to oversee internal reviews of the lab, including a focus on workplace culture.
Mayor: Prosecutors share blame
In her May 28 letter to D.C. Council Chairman Phil Mendelson and Allen, who chairs the council’s Judiciary and Public Safety Committee, Bowser put much of the blame for the lab’s woes on “institutional tensions” between prosecutors and the independent lab that she said “have led to stalemates, miscommunications, and questionable demands on DFS staff about methodology, testing priorities, resource allocation, and even personnel.”
Bowser also appeared to fault prosecutors for carrying out their own review of the lab after discovering errors in the lab’s casework.
“As in other scientific fields, it is not uncommon to have disagreements in forensics,” Bowser’s letter stated. “That is why the agency’s enabling legislation clearly lays out a process for dispute resolution when disagreements occur, specifically by taking complaints and concerns to the Science Advisory Board, the Stakeholder Council, and the accrediting agency. We regret that both DFS and local prosecutors failed to follow these processes — DFS which failed to follow a well-documented internal review, and prosecutors who eschewed the established review process in favor of their own audit.”
The Washington Post reported Bowser’s letter to the lawmakers.
In addition to hiring SNA International to review the lab’s practices, Bowser said she is reassigning the lab’s Crime Scene Sciences Unit to the D.C. Police Department and will continue outsourcing all forensic testing to federal and private labs.
Bowser suggested the law establishing DFS as an independent agency in 2012 may also be due for a rewrite.
“Unfortunately, this series of events is bigger than management, personnel issues, or even the personalities involved,” her letter stated. “It speaks to the viability of an independent crime lab model when one of its stakeholders has an outsized impact on the lab’s workload and accreditation.”
She referred to past turmoil at the lab which began when prosecutors raised concerns about the lab’s analysis of DNA evidence in 2015; the lab’s accrediting body later suspended the DNA unit. In response, Bowser sacked the lab director and a host of other agency officials.
Referring to the current upheaval, Bowser wrote, “I am concerned this will be a repeated cycle, having experienced a nearly identical disruption that began on the first day of my Administration in 2015 and is now occurring again. These disruptions are not only costly but call into question the administration of justice in the District which none of us can abide.”
WTOP’s Megan Cloherty contributed to this report.