As the D.C. Department of Forensic Sciences challenges allegations of fraud in an attempt to win back its accreditation, federal prosecutors contend the crime lab is still failing to acknowledge some of the “significant issues” that led to the withdrawal of its accreditation in the first place.
In a June 11 letter to the ANSI National Accreditation Board (ANAB), Acting U.S. Attorney Channing Phillips said his office is “deeply troubled by DFS’s lack of transparency and its unwillingness to address its failure to disclose material information” to prosecutors and the accrediting board about the withholding of conflicting conclusions reached by its examiners in a murder case.
The letter was also filed in D.C. Superior Court and first became publicly available Monday.
Last month, the D.C. lab filed a formal 18-page appeal with the accrediting board, claiming it never deliberately concealed information and raising what it called “documented, undisclosed and fatal” conflicts of interest by members of the three-person audit team assembled by the U.S. attorney’s office and the D.C. attorney general’s office to probe the casework error.
The audit team first reported in March it had uncovered evidence the D.C. lab apparently concealed conflicting findings during the reexamination of evidence from two 2015 killings, and may have pressured an examiner to change his finding to “inconclusive” in the matter. Prosecutors maintain the evidence is not inconclusive, and that at least four outside experts have looked at the evidence and concluded that casings found at each of the two scenes were not fired from the same gun.
As a result of the audit report’s findings, ANAB first suspended and later withdrew the lab’s accreditation.
Letter: ‘Competing and changing conclusions’ never disclosed
In their letter to the board, prosecutors note the lab’s appeal does not explain why multiple examinations of the same disputed cartridge casings were never documented or disclosed by the lab.
Overall, five different DFS examiners looked at the disputed evidence over the span of several days in late April and early May 2020 and apparently came to three different conclusions, including a finding of “inconclusive,” which prosecutors contend — based on interviews with DFS staff — was not based on science but, in part, because the lab was faced with so many conflicting findings by its own examiners.
“It should be a simple principle that when a forensic lab analyzes evidence in a criminal case, the lab must do so impartially and reliably, and the lab must provide complete and accurate documentation of those examinations to the government,” the prosecutors’ letter stated. “However, in the homicide case at issue in the Audit Report, DFS had multiple examiners examine evidence without documentation, and reach competing and changing conclusions, without ever informing the government.”
One of the examinations — in which prosecutor said the examiner erroneously matched the two sets of casings to the same firearm — was only documented in an email the examiner sent to herself and never turned over to prosecutors even under the subpoena, the letter stated.
The letter added: “In its Appeal, DFS does not explain why multiple analyses were done without documentation or why it did not disclose those analyses to the government or ANAB. To move forward, it will be important for DFS to recognize the impropriety of this approach and ensure it does not happen again.”
Also at issue: An April 2020 PowerPoint presentation by a firearms unit supervisor and examiner that concluded the disputed cartridge casings were not fired by the same gun — the only finding the prosecutors say is scientifically sound — was not disclosed by the lab, and only turned up when prosecutors subpoenaed the lab to share information.
The firearms unit supervisor later told investigators that despite that finding, management decided to report to its accrediting board a finding of inconclusive.
The prosecutors’ letter contains new excerpts from the supervisor’s interview with investigators. The supervisor “explained that the issue was DFS had disagreements between examiners that they could not explain.” And the head of the firearms unit and the head of the agency’s forensic science laboratory both said something to the effect of “Why put ourselves out there, if inconclusive is an appropriate answer?”
The supervisor, who has since left the agency, also told investigators that DFS management were concerned by the PowerPoint’s finding that the casings were not fired from the same gun because “it showed DFS had made a mistake” and that DFS management later “engaged in answer shopping, looking for consensus.”
For their part, prosecutors say the evidence is clear-cut that the two sets of cartridge casings exhibited “fundamentally different” markings and could not have been fired in the same gun. Based on the lab’s own case notes, one of the sets of casings has “wavy check marks” on its breech face and the other set has “parallel lines,” the letter noted.
Prosecutors: Criticism of auditors ‘unfounded’
The letter from prosecutors also addresses the criticism the lab lodged against the auditors, which the letter calls “unfounded.”
“Rather than address the serious issues in transparency described above, DFS focuses its Appeal on attacking” the audit report and the audit team, the letter stated. “This approach is unfortunate and does not advance the goal of identifying and remedying the serious issues identified in the report.”
For example, the lab’s appeal suggested Dr. Bruce Budowle, a University of North Texas professor and one of the most widely-published experts in the field, may have had an axe to grind because he was not hired as DFS director in 2015 when the city was seeking a new lab director.
“DFS’s attempts to cast aspersions on two of the three USAO-DC/OAG auditors are also a diversion,” the letter stated. “The Audit Report in large part merely summarizes DFS documents, so it is unclear why perceived biases of the auditors would even be relevant.”
The letter defended auditors as having “strong credentials and combined wealth of experience in leading and auditing forensic laboratories and in the field of firearms and toolmark examination.”
ANAB is expected to hold a nonpublic hearing by August, at which DFS can further present its appeal. Then, a panel of ANAB auditors will deliberate behind closed doors about whether to reverse its decision to strip the lab’s accreditation.
The letter from prosecutors indicates the ANAB accreditation board provided prosecutors with the opportunity to respond to the lab’s appeal.
The D.C. Public Defender Service, which represents people in D.C. Superior Court who cannot afford lawyers, is often critical of the U.S. Attorney’s Office and has long held that prosecutors long enjoyed “outsized access and influence” over the lab. But it has also signaled alarm at the audit team’s findings and dissatisfaction with the lab’s appeal to the accrediting board.
“The appeal document does not adequately address the off-the-books examinations and cherry-picked results that DFS chose to release while it was examining this ballistics evidence,” Jessica Willis, PDS special counsel for forensics, told WTOP in an email last week. “PDS remains deeply concerned that the failed quality control systems in place at DFS may have led to wrongful prosecutions and wrongful convictions of our clients.”
Former DFS Director Dr. Jenifer Smith resigned late last month after mounting calls for her to step down, and D.C. Mayor Muriel Bowser has hired an outside consulting firm to review the lab’s operations.