\"THIS EPISODE IS ALSO FURTHER EVIDENCE OF THE IMPORTANCE OF THE SUPREME COURT'S DECISION EARLIER THIS YEAR IN MELENDEZ-DIAZ V. MASSACHUSETTS, WHICH ESTABLISHED THAT THE CONSTITUTION'S CONFRONTATION CLAUSE GIVES DEFENDANTS THE RIGHT TO CROSS EXAMINE THE AUTHORS OF CRIME LAB REPORTS. THAT DECISION HAD PROSECUTORS ACROSS THE COUNTRY RAGING, COMPLAINING ABOUT THE COSTS AND BURDENS THEY NOW FACE IN MAKING FORENSIC EXPERTS AVAILABLE FOR COURT. THE RULING MAY ALREADY BE IN JEOPARDY; THE COURT WILL HEAR ARGUMENTS NEXT YEAR IN A VIRGINIA CASE THAT COULD LIMIT ITS REACH."
RADLEY BALKO: REASON;
PHOTO: JUSTICE ANTON SCALIA;
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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.
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PUBLISHER'S NOTE: One of the most important reasons for giving people accused of crimes the right to confront lab technicians - as required by the U.S. Supreme Court in the Melendez-Diaz decision - is the disturbing, uneven record, of all too many American crime labs. The report of New York States Inspector General, as reported by the New York Times, underlines the importance of this decision - and sheds light on the reason many state Attorney Generals are actively opposed to the decision; Radley Balko, an acute observer of America's criminal justice system underlines the connection between the Inspector Generals's report and the Melendez-diaz decision.
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"This week, New York State's inspector general issued a blistering critique of the state's crime lab," Radley Balko's December 18, 2009 post, under the heading "Report: New York State Crime Lab Tainted by Incompetence, Corruption, Indifference," begins.
"The report came after a private accrediting organization found significant problems with one particular lab worker who had so little training that he couldn't operate the microscope he was supposed to be using for hair and fiber analysis," the post continues.
"Armed with a cheat sheet from a former supervisor, Gary Veeder managed to fake lab reports in criminal cases for 15 years. He killed himself last year.
A wayward crime lab worker who fakes his way into the job is one thing. A fraud who manages to stay on the job for 15 years is a symptom of mass institutional failure. And that's the most disturbing part of the story. The institutional failure continued even after the embarrasing episode was exposed. From the New York Times:
...when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on...Veeder...
Mr. Veeder’s allegations involving other lab workers were never part of the final report to the State Police’s internal affairs division. State Police investigators and the lab’s management “minimized and precipitously discarded the seriousness and extent of problems” at the lab, the inspector general’s report said.
It said that one State Police investigator, Keith Coonrod, mischaracterized Mr. Veeder’s responses implicating other lab scientists and skewed Mr. Veeder’s statements to give the impression that it was his incompetence — not widespread misconduct — that led to the problems.
The IG's report, on the other hand, took direct aim at Veeder's superiors, noting, "There exists no doubt that laboratory management possessed sufficient information that Veeder’s individual misconduct implicated potentially broader systemic issues, but failed to take appropriate action." The lab's director, George Zeosky, is still on the job. Assistant Director Richard Nuzzo—whom the report also accuses of intimidating another lab technician—was promoted to a position in the New York State Police Department's internal affairs office. Which means the guy in part responsible for turning a blind eye to incompetence and misconduct in the state's crime lab is now investigating other misconduct and incompetence within the department.
New York criminal defense attorney Scott Greenfield predicts the report will have no effect at all on the way New York judges treat crime lab reports.
Once the prosecution gets its results from the crime lab, everything after that is all a big joke. The defense testing is viewed as a desperate grasping at straws, making life difficult for the cops and prosecution, and just another waste of time for the court. Sure, judges will acknowledge that state crime labs have their issues, but the "real" problem is always in some other case, before some other judge. Every judge believes that the lab results before him or her are routine. There's no problem here, counselor. Move along.
What makes scientific results different, however, is their conclusive affect on a judge and jury. If the lab report says so, then so it is. As much as judges and lawyers aren't scientists, neither are most jurors. We all bow to the god of science, even when we know that it's not omnipotent.
So the state, at least the Inspector General, acknowledges that the State Police Lab, sucks. Do you think there will be a single judge across the State of New York who refuses to admit a lab report into evidence as a result? I don't. Not one. Even if it was written in crayon.
The scandal in New York is yet another argument for several of the forensic reforms Roger Koppl suggested in a 2007 report for the Reason Foundation (publisher of Reason magazine and Reason.com). One is to send forensic evidence to private labs for testing and verification of the state crime lab's results. Even if it's only on every fourth or fifth or tenth case, as long as state lab technicians don't know when they're being checked, you eliminate the bias toward pleasing bosses and prosecutors. You also strengthen the incentive for accuracy.
And that's the other incentive problem, here. The state crime lab is run by the state police. That isn't a recipe for objective science. If you're going to have a state forensics laboratory, it ought to be wholly independent of police agencies and prosecutors.
This episode is also further evidence of the importance of the Supreme Court's decision earlier this year in Melendez-Diaz v. Massachusetts, which established that the Constitution's Confrontation Clause gives defendants the right to cross examine the authors of crime lab reports. That decision had prosecutors across the country raging, complaining about the costs and burdens they now face in making forensic experts available for court. The ruling may already be in jeopardy; the Court will hear arguments next year in a Virginia case that could limit its reach.
Somewhat related: The woman who took Melendez-Diaz all the way to the Supreme Court, where she unsuccessfully argued against a right to cross-examine forensic specialists, was Massachusetts Attorney General Martha Coakley. Coakley is the Democratic nominee and heavy favorite in next month's special election to replace Ted Kennedy in the U.S. Senate."
The post can be found at:
http://reason.com/blog/2009/12/18/report-new-york-state-crime-la
Harold Levy...hlevy15@gmail.com;
