PASSAGE OF THE DAY: "According to court documents, prosecutors have been using outside experts for at least the past six months to reexamine all ballistics evidence handled by the forensic lab in cases currently scheduled to go to trial. In an April 23 letter to the head of the Department of Forensic Sciences, then-U. S. Attorney Timothy Shea and D.C. Attorney General Karl Racine wrote they were taking the step “to protect the viability of our prosecutions.” The existence of the ballistics audit is now rippling through the court system as it must be disclosed to defense attorneys preparing for trial because it’s information that could change how they argue their client’s case. A review of court records shows some of the DFS examiners whose work was flagged in the ballistics audit have also worked on some of the most high-profile murder cases in the District, including reviewing ballistics evidence in the 2018 gang-related killing of 10-year-old Makiyah Wilson in Northeast, D.C. So far, no errors have been discovered in that case. Distrust has been growing between the U.S. Attorney’s Office for D.C. and the District’s forensics lab since at least last fall, stemming from an apparently separate F.B.I. and U.S. Attorney’s Office probe into the lab’s firearms unit. No criminal wrongdoing was found in that investigation, but the U.S. Attorney’s Office did recommend the District’s inspector general look into “mismanagement, poor judgment, and failures of communication” within the agency, according to a February 2020 report in The Washington Post."
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PASSAGE TWO OF THE DAY (Rondell Mcleod: Case at centre of probe): "In court documents, prosecutors say their decision to launch the audit of quality control at the forensic lab’s firearms unit stemmed from this error — as well as the lab’s reaction when it was alerted to it. When prosecutors went to the lab in January with the news that the original analysis carried out by firearms examiners was faulty, DFS at first insisted prosecutors were “confused” and must have sent the outside examiner the wrong evidence, the agency’s general counsel, Todd Smith, wrote to the prosecutor’s office. “Going forward, we’d greatly appreciate the opportunity to assist your office in ensuring your rework request process doesn’t itself become a regular source of errors,” Smith wrote. In a memo sent a few weeks later to then-Deputy Mayor for Public Safety and Justice Kevin Donohue, DFS Director Jenifer Smith “doubled down” on that explanation, prosecutors said, claiming that the outside expert had confirmed all the lab’s conclusions and then complaining to Donohue that federal prosecutors had begun redoing the lab’s cases and introducing new errors into the process. Prosecutors and the audit team said the lab director’s accusations were inaccurate on nearly all counts: The responsibility for sending evidence to the outside examiner lay with DFS, not prosecutors; Spinder, the outside examiner, was sent the correct evidence by DFS; and more significantly, Spinder did not confirm the lab’s conclusion but came to the complete opposite one. The audit team said the faulty analysis that linked the killings wasn’t the result of a single error. In total, the audit team said at least six DFS firearms examiners working the McLeod case incorrectly concluded the shell casings were fired by the same gun or that the evidence was inconclusive."
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STORY: "D.C. Forensic lab under scrutiny after evidence errors discovered in murder cases," by reporters Jack Moore and Megan Cloherty, published by WTOP on November 2, 2020. (Thanks to Dr. Bob Moles of 'Networked Knowledge' for bringing this important story which I will to our attention. HL).
GIST: "Federal prosecutors in D.C. have opened a sweeping audit into the handling of ballistics evidence by the District’s forensic lab after the discovery of a botched analysis that falsely linked two killings — a review that could throw into question evidence in other cases.
So far, that audit, which began in the spring and is being made public for the first time through this WTOP report, has reviewed 60 cases in D.C. Superior Court and found discrepancies in 12 separate cases. In six of those cases, auditors came up with different conclusions about the evidence than examiners at the D.C. Department of Forensic Science’s firearms unit. Some of those discrepancies involved cases in which the independent examiners were able to match bullets or cartridge casings where the lab’s examiners were not.
According to court documents, prosecutors have been using outside experts for at least the past six months to reexamine all ballistics evidence handled by the forensic lab in cases currently scheduled to go to trial. In an April 23 letter to the head of the Department of Forensic Sciences, then-U. S. Attorney Timothy Shea and D.C. Attorney General Karl Racine wrote they were taking the step “to protect the viability of our prosecutions.”
The existence of the ballistics audit is now rippling through the court system as it must be disclosed to defense attorneys preparing for trial because it’s information that could change how they argue their client’s case.
A review of court records shows some of the DFS examiners whose work was flagged in the ballistics audit have also worked on some of the most high-profile murder cases in the District, including reviewing ballistics evidence in the 2018 gang-related killing of 10-year-old Makiyah Wilson in Northeast, D.C. So far, no errors have been discovered in that case.
Distrust has been growing between the U.S. Attorney’s Office for D.C. and the District’s forensics lab since at least last fall, stemming from an apparently separate F.B.I. and U.S. Attorney’s Office probe into the lab’s firearms unit. No criminal wrongdoing was found in that investigation, but the U.S. Attorney’s Office did recommend the District’s inspector general look into “mismanagement, poor judgment, and failures of communication” within the agency, according to a February 2020 report in The Washington Post.
The Department of Forensic Sciences, or DFS, is an independent agency that analyzes evidence from crime scenes across the city — guns, DNA and fingerprints — and it processes evidence for multiple other agencies, including the Secret Service and D.C. police. The lab’s director, Jenifer Smith, is appointed by D.C. Mayor Muriel Bowser.
Court documents show the relationship between federal prosecutors and the lab has strained nearly to the breaking point recently with both sides accusing the other of serious misconduct.
In the case in which D.C. forensic examiners erroneously connected two killings through a faulty analysis of shell casings, the audit team found at least six different DFS firearms examiners reached “scientifically unsupportable” conclusions, including one examiner who apparently compared shell casings from the wrong case and another examiner who changed his official finding, years after first looking at the evidence, without providing any explanation.
DFS declined to turn over all the documents requested by prosecutors that might explain how the errors were made, according to prosecutors, who then took the extraordinary step of taking DFS to court to force the agency to turn them over.
“This case may reflect a first in American jurisprudence — a prosecutor’s office seeking documents from its own crime laboratory using a court’s subpoena power,” Assistant U.S. Attorney Michael Spence wrote in a Sept. 2 court filing.
Controversial audit
In court papers, prosecutors have positioned the ballistics audit as being in the same vein as a 2014-2015 audit of DNA casework. A national accreditation board later found “insufficient and inadequate” practices at the lab, and it was ordered to temporarily suspend DNA casework. The lab’s DNA operations were halted for about nine months.
However, the ballistics audit is contentious.
The Department of Forensic Sciences has declined to participate in the independent audit or hand over all of the documents requested by prosecutors, according to court papers.
The lab maintains that District law requires that complaints about testing, quality control or misidentification be investigated not by federal prosecutors but by the lab’s independent Science Advisory Board.
“The Board has been fully briefed on the concerns expressed by prosecutors about the DFS firearms examination unit,” the forensic lab said in a statement provided to WTOP. “The Board has reviewed DFS’s response to these concerns in its last two public Science Advisory Board meetings, and recently approved the agency’s firearms procedures and processes.”
In addition, earlier this month the American National Standards Institute’s National Accreditation Board, which provides the accreditation necessary for the D.C. lab to operate, completed its own audit of the agency.
The findings of that audit have not been made public. However, a copy of the certification, dated Oct. 1 and available online, indicates the lab was reaccredited to process firearms evidence through December 2022.
The ANAB audit “closed all complaints as ‘not valid,’ and certified DFS’s continuing accreditation,” the DFS statement said.
The Public Defender Service has also taken issue with the prosecutors’ review.
In a June 15 letter to the U.S. Attorney’s office, PDS director Avis Buchanan and special counsel Jessica Willis laid out some of their concerns, arguing that the audit team is too cozy with prosecutors — the letter deliberately put quotation marks around the word “independent” when referencing the auditors — since prosecutors have previously hired the auditors in the past to serve as expert witnesses to defend challenged evidence.
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The audit team is made up of Bruce Budowle, a well-known DNA expert, and James Carroll and Todd Weller, who are both qualified forensic firearms and toolmark examiners. Weller is the vice chair of the firearms and toolmarks subcommittee organized by the federal government’s National Institute of Standards and Technology, which is tasked with developing and maintaining national standards in the field of firearms evidence analysis.
In the letter, the two PDS attorneys also wrote that their agency, which represents people charged in criminal cases in D.C. who do not have the financial resources to afford lawyers, should have had some input into the creation of the audit team, along with other “non-prosecution stakeholders.”
Case at center of probe
The case at the center of the probe involves two shootings in D.C. which both took place in 2015.
On Aug. 18 of that year, 21-year-old Amari Jenkins was gunned down outside a Southeast church. On Nov. 12, Antwan Baker, 29, was fatally shot in the Clay Terrace neighborhood of Northeast.
The National Ballistic Integrated Information Network, an automated database which stores and compares digital images of bullets and cartridge casings from crime scenes across the country, alerted the D.C. forensic lab that the ballistics evidence indicated the two cases might be linked. A firearms examiner at DFS analyzed the evidence, purportedly confirming the match and establishing that the same gun was used.
In 2017, Rondell McLeod (or Ron McLeoud as it’s listed in court files) and Joseph Brown were charged in both killings based, in part, on that ballistics evidence.
It was only as prosecutors prepared to take McLeod to trial on two charges of first-degree murder — nearly four years after the initial analysis — that they say they learned there was a problem with the original analysis.
Prosecutors sent all the ballistics evidence to be reexamined by a single outside expert in Montana ahead of the trial. In his report, Travis Spinder concluded the 10mm shell casings found at each crime scene were not fired by the same gun.
“In other words, his conclusion is that the same 10mm gun was not used in both murders,” Assistant U.S. Attorney Michael Spence wrote in a Jan. 8 email to McLeod’s defense attorneys. “Needless to say, this is a different conclusion than the one reached by the initial DFS examiner.”
The outside analysis was later confirmed by four other outside experts, prosecutors said.
In court documents, prosecutors say their decision to launch the audit of quality control at the forensic lab’s firearms unit stemmed from this error — as well as the lab’s reaction when it was alerted to it.
When prosecutors went to the lab in January with the news that the original analysis carried out by firearms examiners was faulty, DFS at first insisted prosecutors were “confused” and must have sent the outside examiner the wrong evidence, the agency’s general counsel, Todd Smith, wrote to the prosecutor’s office.
“Going forward, we’d greatly appreciate the opportunity to assist your office in ensuring your rework request process doesn’t itself become a regular source of errors,” Smith wrote.
In a memo sent a few weeks later to then-Deputy Mayor for Public Safety and Justice Kevin Donohue, DFS Director Jenifer Smith “doubled down” on that explanation, prosecutors said, claiming that the outside expert had confirmed all the lab’s conclusions and then complaining to Donohue that federal prosecutors had begun redoing the lab’s cases and introducing new errors into the process.
Prosecutors and the audit team said the lab director’s accusations were inaccurate on nearly all counts: The responsibility for sending evidence to the outside examiner lay with DFS, not prosecutors; Spinder, the outside examiner, was sent the correct evidence by DFS; and more significantly, Spinder did not confirm the lab’s conclusion but came to the complete opposite one.
The audit team said the faulty analysis that linked the killings wasn’t the result of a single error. In total, the audit team said at least six DFS firearms examiners working the McLeod case incorrectly concluded the shell casings were fired by the same gun or that the evidence was inconclusive.
The first review of the shell casings that falsely linked Jenkins and Baker’s killings came in January 2016, when a DFS examiner concluded the two 10mm shell casings found at the two different crime scenes were fired by the same gun.
Another examiner in the firearms unit verified his conclusion. Several months later, however, the original examiner failed a proficiency exam, according to court documents, which triggered an automatic redo of some of his work. (Errors in his casework were later discovered, and he left the agency in 2017.)
As part of the redo of his caseload, a third DFS examiner took a look at the shell casings from the two crime scenes in August 2017. She, too, concluded they were fired from the same gun; a fourth DFS examiner then verified her analysis.
However, the audit team determined the third examiner actually looked at two shell casings from a different case entirely, based on the photographs in her case notes. “The audit team was unable to determine how or why this occurred,” prosecutors wrote in court filings summarizing the audit team’s work.
After the outside auditor issued its interim findings on May 21, Jenifer Smith, the director of the forensic lab, wrote to the U.S. Attorney’s office on May 22 and, for the first time, acknowledged what it called an “administrative error” in the analysis that linked the killings of Baker and Jenkins.
Smith said it appeared the error happened when the third examiner, who Smith said was no longer employed by the lab, attached the wrong photograph of shell casings to her report.
In the letter, Smith also revealed that the fourth firearms examiner who had verified that second round of analysis, had looked at the case again and recently changed his finding: Rather than deeming the two shell cases a match, instead he said it was “inconclusive.” The finding of “inconclusive” was also reached by two additional DFS examiners.
In a June 4 update on their ongoing review, auditors said it was unlikely that the false ID was simply an administrative mistake — as cited by the director — because the underlying conclusion changed.
They also pointed out there were no documents explaining why the verifier had only recently changed his conclusion. And, in any case, they said the new finding of “inconclusive” was still incorrect. There were, in fact, “significant differences” in the casings’ characteristics that allowed the independent examiners to rule them out as being fired from the same gun.
Court battle over documents
Last spring, several months after that botched ballistics analysis came to light, prosecutors agreed to sever the indictment, meaning the two murders that McLeod and Brown were charged with would be tried in separate trials.
However, McLeod’s lawyer, Steven Kiersh, took it a step further, asking a judge to dismiss the murder indictment entirely. In a motion, he argued the two killings were only “linked together by ballistics testimony that has subsequently been debunked and proven to be false.”
In a second filing, the defense attorney called the original analysis “a complete and intentional fraud that was designed to mislead a grand jury by law enforcement officials in an effort to have Rondell McLeod charged with two separate first-degree murders. Rondell McLeod’s entire life hangs in the balance based upon the outcome of these cases.”
Prosecutors sought to quash the motion, arguing that ample other evidence linked McLeod to the first killing he was set to be tried on and that, while the ballistics evidence was clearly incorrect, there was no evidence the DFS examiners intentionally misled the grand jury.
But in order to make that case, prosecutors needed documents from the lab showing the multiple erroneous analyses linking the two killings weren’t intentional. DFS refused to turn over the documents, citing attorney-client privilege in part, which led prosecutors to take the unprecedented step of subpoenaing the lab to hand them over.
That court battle consumed much of the summer.
Finally, in September, the lab agreed to hand over some files, but prosecutors said they were so heavily redacted “they rendered the documents useless to any reviewer,” and complained to the judge that the lab still hadn’t provided “a scrap of paperwork” showing how the false identification at the heart of the McLeod case had occurred.
“Thus, more than three years after (the examiner)’s review of the evidence in this case, and eight months after the government informed DFS of her error, we are no closer to understanding what actually happened,” Assistant U.S. Attorney Spence wrote in a Sept. 22 filing.
Spence urged the judge to “expose the documents DFS seeks to protect to the full light of day,” writing, “The U.S. Attorney’s Office is entitled to full transparency so that it can demonstrate to the court that it was not complicit in the myriad false statements issued by DFS denying the existence of a false identification.”
Last month, D.C. Superior Court Judge Todd Edelman ordered DFS to turn over the remaining documents to him to review privately. According to court records, those files were turned over on Oct. 16.
Another court hearing in the case, as the judge considers whether to toss the indictment against McLeod, is set for Nov. 10." (Case continues. HL)
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