D.C. Council member Charles Allen said he is considering rewriting the legislation that formed the District’s independent crime lab, and the D.C. Attorney General’s Office and federal prosecutors are making plans to launch reviews of past convictions in D.C. Superior Court after a series of serious missteps at the lab over the past year.
It’s more fallout from the loss of the lab’s accreditation and an ongoing criminal investigation by the D.C. Office of the Inspector General that comes as D.C. Superior Court begins to dig out from coronavirus-related delays in the court system.
The D.C. Department of Forensic Sciences (DFS) had been responsible for analyzing evidence from nearly all major crime scenes in the District, including firearms, DNA and fingerprints.
But after reports emerged that it mishandled ballistics evidence in several cases, DFS lost its accreditation earlier this year. Shortly afterward, its director, Jenifer Smith, resigned and the city announced it was hiring a consulting firm to conduct a “top-to-bottom” review aimed at regaining accreditation and probing the “root cause” of the lab’s troubles.
Testifying at an oversight roundtable before the D.C. Council Judiciary and Public Safety Committee Thursday, DFS Interim Director Anthony Crispino said the report would be released by the end of November and he pledged that it would be made public.
“All of that work is geared toward getting us back to reaccreditation,” Crispino said of the team of independent experts reviewing the lab. But he said the report wouldn’t shy away from getting to the heart of the lab’s troubles.
“We want to do it the right way,” he said. “We want to address the problems.”
Allen pressed the agency to do a deep dive even as DFS seeks to reopen for business.
“We still have a crisis in our criminal justice system that is unfolding, and it does everyone, including the agency, a disservice if we try to paper over it,” Allen said.
Uncertain future for firearms unit
Crispino said the team of experts convened by the consulting firm SNA International has interviewed more than 40 people, including current and former employees, prosecutors, defense attorneys and others. It has also reviewed more than 17,000 documents and sent a survey to roughly 200 staff members.
He said initial recommendations from SNA experts led to his decision to disband the lab’s Firearms Examination Unit. Last month, the lab issued a reduction-in-force, laying off all remaining 11 employees.
It was in the lab’s firearms unit that prosecutors first identified errors. The team of experts retained by prosecutors concluded that examiners incorrectly matched two cartridge casings to the same gun and that managers concealed conflicting findings.
“Based on some of the information we’ve gotten from SNA during the course of the audit process, it appears to us that [for] the firearms unit to reconstitute, or stand back up internally and seek reaccreditation, is going to be more than a year-long process,” Crispino said.
He cited the lengthy education, training and apprenticeships required of firearms examiners — and because lab employees are unable to conduct forensic casework with suspended accreditation, “the agency was just not able to absorb the cost,” the interim director said.
Crispino said he’s waiting on the final SNA report about whether to ultimately bring back the firearms unit.
“I will defer to SNA on that point as to whether or not … that’s in the best interest of the District to reconstitute the unit,” suggesting a “hybrid version” of the unit or only using contractors as alternatives.
“I’ll definitely wait on the report to see what’s recommended before I make any conclusive statements on where we need to go with it,” he said.
Currently, DFS has an arrangement with the Bureau of Alcohol, Tobacco, Firearms and Explosives to examine ballistics evidence, while the U.S. Attorney’s Office for D.C. is contracting with third-party firearms examiners on cases that require microscopic examination services.
Crispino said the lab anticipates other units regaining accreditation more quickly, such as the Forensic Biology Unit, which analyzes DNA evidence.
But the several months now that DFS has gone without being able to conduct casework has already created difficulties.
The lab is sending out evidence to private DNA labs to analyze. And when it comes to uploading DNA samples to the FBI’s national CODIS database — which can be a key investigative tool in linking crimes — DFS has made arrangements with forensic labs in Connecticut and Wyoming to upload its cases.
It’s unclear if those arrangements mean that all of the lab’s DNA samples are able to be uploaded to the database.
“The concern is — there’s probably a much more technical term than this but, essentially — are we leaving hits on the table by not being able to have all of our cases in our lab to be uploaded?” Allen asked.
It’s not entirely clear, but Crispino told Allen he would check and provide an answer after the hearing.
The interim director also discussed other steps he’s taken to make the lab’s operations more transparent, including “baby steps” to eventually post some reports online that detail how the lab responded to various errors.
DFS long resisted turning over Quality Corrective Action Reports, or QCARs, publicly or to defense attorneys who had requested them. According to documents reviewed by WTOP, the inspector general is investigating allegations that prior lab leadership directed employees to remove names from documents, which one former employee said was to prevent defense attorneys from getting the information.
Another step is upgrading the agency’s Laboratory Information Management System to allow examiners’ reports and other lab documents to be shared with prosecutors and — if legislation is rewritten — directly with defense attorneys.
Reviewing past convictions
The D.C. Public Defender Service (PDS) is calling on the D.C. Council to rewrite the 2011 legislation that created DFS with the aim of strengthening the lab’s independence from federal prosecutors and improving oversight and transparency.
Katerina Semyonova, special counsel at PDS, urged a legislative overhaul that more clearly spells out the lab’s obligations to provide documents and data on its performance.
Referring to the IG’s investigation of the lab’s quality documents, Semyonova said the majority of QCARs provided to defense attorneys “have been scrubbed of identifying information related to the analysts involved,” and that while the practice began under the previous director, “current DFS leadership has not corrected this issue.”
The Public Defender Service has also been pushing prosecutors to begin the work of opening what’s known as a conviction-integrity unit, which would review past cases relying on DFS testimony.
She said defense attorneys have reached out to the U.S. Attorney’s Office and DFS to identify cases worked by the lab’s Firearms Examination Unit as a first step, but were met with delays initially.
Jessica Willis, the PDA’s special counsel for forensics, said, “We see this as a pressing, urgent issue.”
Jose Marrero, assistant chief of the criminal section of the Public Defender Division in the D.C. Attorney General’s Office, said his agency is moving ahead with planning a “robust” review of cases where DFS examiners conducted scientific analyses. In D.C., the attorney general’s office prosecutes juvenile cases and adult misdemeanors.
Marrero said the office would be hiring an expert — with a job posting set to go out over the next few weeks — who will lead what is expected to be an entire unit that will review past convictions.
Exactly what types of cases will need to be reviewed, from what time period and the process for doing so are all questions that still need to be worked out and will be guided by the results of three ongoing investigations: the SNA review, another review announced by the Office of the D.C. Auditor and the expected report from the D.C. Office of the Inspector General.
In response, Allen said he appreciated that the D.C. Attorney General’s Office was taking steps now to set up the unit.
“It’s very serious and it’s going to have very deep impacts and ramifications … and in the event that this review finds that we’ve got an individual who maybe was wrongly convicted, then we’re talking about life-altering impacts because of those mistakes.”
Officials with the U.S. Attorney’s Office for the District of Columbia, which is part of the federal Justice Department, said they, too, are preparing to review whether past guilty verdicts could have been compromised by faulty evidence analysis.
Elana Suttenberg, special counsel for legislative affairs, said prosecutors are waiting for the final SNA report to determine how far-reaching their review will be.
When it comes to active cases, there are currently 3,500 pending felony cases in D.C. Superior Court and in roughly 1,000 of them, DFS was known to have provided forensic analysis prior to its loss of accreditation, according to Julianne Johnston, deputy chief of the office’s Superior Court division.
Regarding potential legislative changes to DFS, Allen said his committee has been studying other forensic labs across the county and is also hoping to use the information and feedback from the roundtable Thursday to come up with ideas for overhauling the lab.
Ideas discussed Thursday include strengthening the lab’s stakeholder council, which has representatives of both prosecutors and the Public Defender Service, as well as empowering the Science Advisory Board to independently investigate complaints of testing errors and allegations of misconduct.
Sam Hanrahan, who helped found the Council for Court Excellence and helped write the original 2011 legislation that created DFS, criticized the U.S. Attorney’s Office, saying it “forcefully inserted itself as the final arbiter on matters of forensic science in the District of Columbia” by launching its probe of the lab last year. He said the move weakened the lab’s independence.
However, Allen pointed to 2018 regulations adopted by the lab that he said essentially gave the lab director “absolute discretion” in determining what complaints would be examined, suggesting the board’s authority to investigate potential misconduct, under its current authority, was “impotent.”