San Francisco’s Crime Lab Promoting Confidence and Building Credibility

RECOMMENDATION 29 CONCLUSION 30 REQUEST FOR RESPONSE MATRICES 31 GLOSSARY 37 APPENDICES 38 SUMMARY Over the past several years, the credibility of the San Francisco Police Department Criminalistics Laboratory (Crime Lab or the Lab) has been marred by scandals that have interfered with its mission to present accurate, unbiased, and convincing testimony in court. These incidents have ranged from theft in the Drug Analysis Laboratory to the well­publicized failure of two criminalists to pass a national proficiency test. Our report summarizes the past incidents that have damaged the credibility of the Crime Lab. We point out what remedial steps have been taken to improve the quality of work in the Lab, and we outline additional steps needed to sustain the progress made and prevent similar problems in the future. We found that ● The Crime Lab suffers from being too closely managed by the Police Department. It has been headed by a rotating succession of police captains who lack the scientific knowledge to understand the intricate workings of the Laboratory. Scientific errors and disputes are often handled using a police Internal Affairs model of discipline. This model investigates problems secretively, does not provide transparency, and has the effect of immediately halting constructive dialog between management and criminalists. Under the Police Department, the Crime Lab is often viewed as biased for the prosecution, rather than an independent arm of the criminal justice system. ● The backlog of DNA cases has been reduced. Turnaround time for case completion has also improved, but both need further improvement to satisfy the requirements of all potential users, including crime victims and defense representatives. ● Outsourcing of DNA cases is being used effectively, especially given that the Lab has a reported shortfall of five to eight DNA analysts. Outsourcing has been especially useful in dealing with the influx of untested rape kits delivered to the Crime Lab in June 2015 by the San Francisco Police Department (SFPD). ● Re­opening the Drug Analysis Lab, which has been closed since the discovery of cocaine theft in 2010, would benefit both the City and the Crime Lab. ● The Lab’s case tracking system is outdated and lacks modern capabilities. It needs to be updated to improve internal management of cases, as well as to allow better communication with the Crime Lab’s customers: The Police Department, the District Attorney’s Office, and, perhaps in the future, the defense community. ● Although several comprehensive reviews of past work have been undertaken by Crime Lab management, an external audit by forensic experts trusted by all stakeholders of the Crime Lab is crucial to confirm the results of these internal reviews and validate the policies and practices of the Lab. ● Although the Crime Lab is fully accredited, quality can only be assured by a robust quality management system. We recommend ● Separation from the SFPD in a two step process that will eventually lead to an independent Crime Lab. The first step should be to replace the sworn police Director with the civilian scientist manager as head of the Lab. The second step should be the establishment of an autonomous, independently­funded Crime Lab. ● Reopening the Drug Analysis Lab. ● Implementation of a modern laboratory information management system. ● More collaboration with stakeholders of the Crime Lab (the District Attorney, Police Inspectors, and the Defense) by ○ Providing restricted electronic access on the status and progress of their cases using a modern laboratory information management system. ○ Seeking stakeholder input regarding appropriate turnaround times and an optimal “not­to­exceed” number of backlogged cases in the Crime Lab. ● An independent external review by respected forensic experts whom all stakeholders agree are trustworthy. These auditors should not be selected by the City on the basis of lowest cost but rather because of their trusted reputation. ● Adherence to the goals of California’s AB 1517, the Sexual Assault Victim’s DNA Bill of Rights, which recommends timeliness for analysis of DNA evidence collected after an assault and for notification of the victim, if requested, that analysis of the evidence has been completed. ● More favorable interaction with the Public, using an updated website. ● Establishment of a scientific advisory board which would provide an additional source of technological expertise to the Lab. BACKGROUND The credibility of the San Francisco Police Department Criminalistics Laboratory (Crime Lab or Lab) has suffered due to multiple incidents widely reported by the news media over the last several years. These incidents are summarized below to give an indication of the extent of past criticism. Because some of the incidents relate to evidence presented in criminal cases just now coming to trial after a delay of several years, the credibility of the Crime Lab continues to be questioned as new cases are brought to trial. Sample Switch and Record Destruction. In fall 2008 an analyst in the Crime Lab mixed up ​ two samples of DNA evidence during testing in a homicide case. In a serious breach of forensics protocol, she was directed by her supervisor to re­label the samples and discard the records of the mistake. This breach was subsequently reported by an anonymous whistleblower in a letter to a lawyer in the Public Defender’s Office. The Public Defender’s Office reported the sample switch, its concealment, and other concerns about the Crime Lab to the U.S. Attorney’s Office. In July 2009 the whistleblower notified ASCLD/LAB1, the accrediting agency for the Crime Lab, of the allegations. ASCLD/LAB, in turn, asked for a response from the then Crime Lab director who denied knowledge of the sample switch. Subsequently, upon learning that ASCLD/LAB had confirmed the switch, the Public Defender called for an investigation into whether the destruction of the record of the switch was a criminal act. Theft of Drugs. In March 2010 a criminalist in the Drug Analysis Lab was found to be using ​ cocaine stolen from evidence. The then police chief immediately halted all further drug testing at the Lab, and, in May 2010, closed the Drug Lab permanently. The Drug Lab is closed to this day with its equipment still in place. Drug analysis is currently outsourced to the Alameda Sheriff’s Crime Lab. The Bicycle Case. Also in March 2010, a well­known attorney contracted by the SF District ​ Attorney’s (DA’s) office to work in its Cold Case section sent the DA a memo highly critical of the competence of a Crime Lab DNA analyst. At the same time, this analyst’s methods were also being criticized publicly by another expert in the DNA community. The case in question, dubbed the “Bicycle Case”, was the State of California vs. Joc Wilson and Emon Brown. In 2007 Byron ​ ​ Smith was gunned downed by men on bicycles in what police suspected was a gang turf war. A second victim had been murdered in a similar manner. In court, the Crime Lab analyst testified that the DNA of Brown was on the handlebars of one recovered bicycle and that of Wilson on the other bicycle. In her testimony, however, the analyst failed to mention that the predominant DNA found on both bikes was actually from a third person who has never been named. By omitting this finding, the analyst was accused of being in violation of the Brady Rule, which states that exculpatory evidence must be shared with the defense. After the defendants were acquitted, their lawyer wrote to the Chief of Police, as head of the Crime Lab, complaining that ​ the testifying analyst had behaved unethically and that her behavior "might constitute criminal conduct warranting further investigation." 1 ASCLD/LAB is the accrediting arm of the American Society of Crime Lab Directors. ​ Marco Hernandez Case. In December 2014 additional Crime Lab problems came to light ​ during the trial of a child molestation defendant. A criminalist uploaded a DNA profile into CODIS, the FBI software program used to compare subjects to known offender databases (see “What is CODIS” in Appendix A). Although the profile was partial and would not be acceptable by today’s standards, the main errors in the upload involved assumptions that were made that altered the results of the search. The defendant was deemed a possible match, but another profile, ​ which also should have been deemed a match, was not pursued. At trial, the excluded profile was brought up by the defense who cast doubt on both the criminalist who was testifying and on the Crime Lab itself. Problems with this CODIS upload by the criminalist and her supervisors have resulted in questioning of many other cases as they come to trial. Pre­trial evidentiary hearings ​​ ​ have been necessary, further burdening the court system as DNA results are questioned. At least 500 cases were uploaded during this period and have since been reviewed by the Crime Lab. Proficiency Failure. In August 2014 the same criminalist failed a nationwide DNA proficiency ​ examination. A second criminalist, who was her supervisor, reviewed her results and agreed with them, thereby failing the test herself. Notably, these two were the only criminalists of 343 in the nation who failed the examination. Both criminalists were removed from their duties in the Crime Lab, have been investigated by SFPD Internal Affairs, and are participating in further hearings at this time. They have been reassigned to other areas within the SFPD, but they remain on the Crime Lab payroll. OBJECTIVES The Civil Grand Jury undertook this investigation to ● assess the extent to which the Crime Lab has effectively identified its past problems ● evaluate whether the Crime Lab has taken action to correct the root causes of these problems and ● identify additional steps necessary for its continued improvement. SCOPE AND METHODOLOGY The Civil Grand Jury conducted over 30 interviews that included: ● Crime Lab personnel, both current and past. We interviewed senior management, as well as non­management employees chosen to provide a broad view of the Crime Lab. We also interviewed past employees of the Crime Lab for their perspective on historical problems and the culture of the Crime Lab. ● Attorneys, from both the defense and the prosecution, including those whose complaints have led to intense scrutiny of the Crime Lab. ● Users and potential users of the services of the Crime Lab, including district attorneys, public defenders, and police inspectors. ● Directors of other crime labs in the Bay Area and California. ● Forensic experts, including leaders of national forensic accreditation organizations, scientists associated with the National Institute of Standards and Technology (NIST), and academicians, for their opinions on best practices in Crime Lab operations. We wish to thank all those we interviewed for the generous gift of their time and for their thoughtful, candid opinions. We attended a pretrial evidentiary hearing (402 hearing) in which the defense and prosecution debated whether the Crime Lab analyst involved in the Hernandez case was qualified to present DNA evidence to the jury. We also examined many documents related to the Crime Lab, including accreditation documents, whistleblower letters alleging misconduct, official responses to allegations, previous audits, trial testimony, and training materials. We reviewed the 2009 reports of the National Academy of Sciences2 and the California Crime Laboratory Review Task Force3 examining the state of the forensics community. In addition, we reviewed the many media articles about problems in the Crime Lab over the last several years. These articles, which reported the incidents summarized in or Background section, originally sparked the Civil Grand Jury’s interest in the Crime Lab and led to this investigation. Because most of the past problems of the Crime Lab have involved the Drug Analysis and the DNA units, we focused our attention on these units. We conducted this review from August 2015 through March 15, 2016. The National Academy of Sciences, “Strengthening Forensic Science in the United States: A Path Forward” /www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (accessed 2/13/16) ​ ​ 3 California Crime Laboratory Review Task Force, “An Examination of Forensic Science in California November 2009” oag.ca.gov/publications/crime_labs_report.pdf (accessed 2/13/16) ​ ORGANIZATION The Crime Laboratory is a public laboratory administered and funded by the SFPD. It provides forensics services primarily to the San Francisco Police Department and the District Attorney’s office. Theoretically, its services could be used by others, including the SF Public Defender's Office, but this occurs rarely. Non­users cite what they feel is bias for the prosecution and long turnaround times as reasons for not utilizing the Crime Lab. Crime Lab services include analysis of: ● Biology/DNA ● Firearms/Toolmarks ● Trace Evidence (gunshot residue and shoeprints only) ● Breath Alcohol Since March 2010, after the closure of the Drug Analysis Lab due to theft of drugs by an analyst, controlled substance testing has been outsourced to another public laboratory. The Crime Lab is staffed with 25 employees, primarily civilians (Appendix B). In the DNA lab entry­level criminalists (Criminalists I) perform screening tasks to prepare evidence for analysis. Journeyman criminalists (Criminalists II) perform casework to analyze DNA evidence. Supervising criminalists (Criminalists III) are more experienced criminalists who assign cases, coordinate the efforts of the Criminalists II, review completed work, administer grants, and perform other administrative duties. The Technical Lead is a Criminalist III who ensures that the ​ methodology and procedures used in performing casework are in compliance with established standards, that these methods are validated, and that analysts are properly trained. (See Glossary). In the Crime Lab we found the Criminalists II and III, as well as the Technical Lead, to be well ​ educated with master’s degrees. Several had extensive experience in other public and private forensic labs prior to coming to the SF Crime Lab. Many of them were hired recently and were not involved in the scandals mentioned in our background section. Several positions remain unfilled, and the two DNA analysts whose work is under investigation are currently reassigned to other areas within the police department. We learned that salaries for criminalists are highly competitive. In fact, they are among the highest in the nation.4 However, hiring in San Francisco government is a cumbersome process.5 For example, a firearms analyst who was interviewed in 2014 just began working in September 2015. The delay in bringing him to work was attributed to a slow progression through the SFPD Human Resources (HR) process and then the City HR process. An Examination of Forensic Science in California November 2009 ag.ca.gov/publications/crime_labs_report.pdf ​ ​ 5 Office of the Controller, City Services Auditor “How Long Does It Take to Hire in the City and County of San Francisco? Analysis and Recommendations” http://openbook.sfgov.org/webreports/details3.aspx?id=1907 (accessed ​ ​ 2/13/15) FACILITIES The Crime Lab is housed in Police Building 606 at the former Naval Shipyard in Hunter’s Point. The facility has always been considered temporary because the area is slated to undergo redevelopment. In 2014 San Francisco voters approved an Earthquake Safety and Emergency Response Bond to build a new facility, now proposed for 1965 Evans Avenue, to house the Crime Lab. Planning for the new facility, which will also house the Office of the Medical Examiner, has started. Completion is estimated for the end of 2019. GENERAL DISCUSSION A. Day­to­day management of the Crime Lab should be removed from direct police supervision DISCUSSION Currently, a professional civilian scientist serves as Manager of the Crime Lab. He serves under the Director of Forensic Services of the SFPD, usually a police captain who reports to the assistant Chief and, ultimately, the Chief of the SFPD. Currently the police captain, the Director of Forensic Services, is also in charge of the Crime Scene Investigation (CSI) Unit and the Identification Unit (fingerprints). Since 2010 the Crime Lab has changed top management at an alarming rate. The last civilian scientist Director of Forensic Services resigned in 2010. Subsequently, no fewer than six police captains have held the title of Director of Forensic Services. Director of Forensic Services has been part of an appointed rotation available to 25­30 police captains, a rotation that includes precinct head as well as other posts of higher or lesser advancement. Levels of education have varied. One captain did not have a college degree, and few have had degrees in science. This fact is important because understanding the highly scientific nature and the rapid evolution of DNA technology is difficult. Unintended damage and obstruction to progress has occurred in the past because a captain did not understand the challenges faced by the Lab and how to manage them effectively. As Lab personnel lamented to us, “We keep having to train another captain.” A former employee told us, “I called our captain Captain Chaos.” On the last day of our investigation, a new captain was appointed, the sixth in less than six years. In the 2015 ASCLD/LAB accreditation report, the Crime Lab was criticized for having a non­scientist as its Director. Having a sworn officer as head of the Crime Lab has also led to an approach to discipline based on a police model. When errors or misconduct are uncovered, investigations have been conducted by police Internal Affairs. These investigations are prolonged and highly secretive, often leading to the impression that the Crime Lab is covering up. In addition, many of those we interviewed believe that the police command has tended to over­react to situations in the past which could have been handled instead by remedial training or a change in protocol. The permanent closure of the Drug Analysis Lab was cited as an example. In addition, actual or perceived conflicts of interest could arise when the Crime Lab conducts forensic examinations on evidence relating to police officers, since both are under the Police Department. Examples include analysis of gunshot residue and firearm evidence in officer­ involved shootings. Most importantly, placing a sworn officer without scientific training as the head of the Crime Lab contradicts a major recommendation of the National Academy of Sciences. In 2009 a blue ribbon committee of the Academy made a number of recommendations to improve forensic science in this country.6 One of its principal recommendations was that all public forensic laboratories and facilities should be removed from the administrative control of law enforcement agencies or prosecutors' offices. The committee stated: “Forensic scientists who sit administratively in law enforcement agencies or prosecutors’ offices, or who are hired by those units, are subject to a general risk of bias.” The U.S. Supreme Court has also underscored the need for independent forensic science. In Melendez­Diaz v. Massachusetts7 it quoted the ​ National Academy of Sciences report and warned that, when forensic laboratories are administered by law enforcement agencies, "[a] forensic analyst responding to a request from a law enforcement official may feel pressure ­­ or have an incentive ­­ to alter the evidence in a manner favorable to the prosecution." FINDINGS F.A.1. The position of the police captain Director has been a high turnover position, and the learning curve for the Crime Lab is steep. Putting a police captain in charge of day to day management has, in the past, resulted in the sworn Director having difficulty understanding the challenges of the Crime Lab and dealing with them appropriately. F.A.2. Under police management, discipline has often been handled using a police model. Investigations of scientific errors have been conducted secretly under the cover of police Internal Affairs and give the impression that the Crime Lab itself is covering up. F.A.3. Once the disciplinary process goes to Internal Affairs, we observed an immediate halt to dialog between staff and management aimed at resolving technical issues in a scientific manner. F.A.4. The positioning of San Francisco's Crime Lab within the police department is contrary to the National Academy of Sciences’ 2009 recommendation that Crime Lab scientists be distanced from law enforcement.