PASSAGE OF THE DAY: "In New Orleans, over a year-long investigation, I uncovered evidence of what I believe are serious flaws in the New Orleans Police Department (NOPD) drug lab —flaws which call into question thousands of cases the NOPD has sent to prosecutors over the past several years. "The flawed procedures lab workers use to identify seized substances suspected of being illegal are not just mistakes that can be corrected with a technical fix. At the root of the problem is the failure to invest the resources needed to allow investigators and defense attorneys to seriously scrutinize the forensic evidence processed by the lab. That failure is symptomatic of the cheap, fast policing that the pace of law enforcement and scale of criminal justice in the world’s most incarcerated country requires."
COMMENTARY: "Anatomy of a crime lab: Winning convictions 'on the cheap' by Matthew Nesvet, published by The Crime Report on December 15, 2020. (Matthew Nesvet Ph.D., an anthropologist and journalist, is an Assistant Professor at Miami Dade College. He researches the nexus of policing, militarization and critical security studies with science, technology, medicine, and health.)
GIST; 'Sherlock Holmes used newspaper reports, footprints, bloodstains, dogs, secret codes, and even ashes to solve the many curious crimes he came across. Yet fiction’s most iconic detective still had to explain how he did it.
Today, forensic science is so complicated — and courts, typically, so complacent — judges and juries usually just trust lab experts to get it right.
In New Orleans, over a year-long investigation, I uncovered evidence of what I believe are serious flaws in the New Orleans Police Department (NOPD) drug lab —flaws which call into question thousands of cases the NOPD has sent to prosecutors over the past several years.
The flawed procedures lab workers use to identify seized substances suspected of being illegal are not just mistakes that can be corrected with a technical fix.
At the root of the problem is the failure to invest the resources needed to allow investigators and defense attorneys to seriously scrutinize the forensic evidence processed by the lab. That failure is symptomatic of the cheap, fast policing that the pace of law enforcement and scale of criminal justice in the world’s most incarcerated country requires.
A number of employees have come forward with concerns about the NOPD’s crime lab over the last several years. In November 2018, several sent a letter to Mayor LaToya Cantrell alleging the lab was in “shambles.”
The NOPD investigated and shuffled leadership; but, according to two employees I spoke to, little changed.
Last month, another drug lab employee came forward after supervisors targeted him at his home for requesting a mental health leave. He complained about unsafe working conditions at the lab, including bad ventilation and lax material handling safety procedures. The employee also alleged the drug lab does not use a so-called “gold standard test” to distinguish marijuana from hemp.
NOPD leaders consistently defend the drug lab, acknowledging only that it is unaccredited (which ANAB, an accrediting body, reports on its website) and saying its written Standard Operating Procedures (SOPs) are “being revised” after they “became inaccessible” in a December 2019 cyberattack against city computers.
My investigation, prompted by lab employees who reached out to me last year after I wrote for The Appeal about New Orleans’ police reform effort, raises questions about why courts and public defenders do not have the capacity, in many cases, to differentiate reliable expertise from junk science.
But the flawed lab processes revealed by the investigation do not just speak to the need for courts to better vet labs or police to fix them. They represent a textbook demonstration of how bad science is essential to the mass incarceration economy.
To discipline and punish large swaths of the populations, authorities must win convictions on the cheap.
In New Orleans, the workings of this system couldn’t be clearer.
Flaws at NOPD Lab
The expert review of the NOPD crime lab’s work was conducted by John Goodpaster, a Purdue University chemistry and chemical biology professor and associate director of its forensic and investigative sciences program. Listed by experts.com as a leading national authority on seized drug analysis, he has worked for the Drug Enforcement Administration and consulted with state police laboratories.
Goodpaster, who was paid for his work, confirmed what my sources alleged: NOPD employees testing what officers suspect are drugs skip key steps “critical for reliable [lab] examinations.”
He examined NOPD lab employees’ notes and reports I obtained, including machine readouts of 14 cases from Orleans Parish between 2017 and 2019. He found evidence of what he says are systemic failures in employees’ work processes—failures that may invalidate years of lab results, and give courts cause to reopen thousands of cases
A redacted copy of his review can be viewed on request.
Goodpaster’s review was limited to problems at the NOPD lab, not my analysis about why sloppy lab practices and lack resources are endemic to mass incarceration. While some of the notes and reports he reviewed were selected by concerned employees as evidence of problems at the lab, others were selected by defense attorneys who had no knowledge of problems with the lab’s findings in the particular cases chosen.
Even after lab staff wrote the letter to New Orleans’ Mayor LaToya Cantrell last year saying the lab was in “shambles,” police did not address problems with its scientific work—only personnel issues. Employees say that since the widely reported letter, NOPD supervisors doubled down on trying to punish whistleblowers.
Meanwhile, city leaders in New Orleans committed millions of dollars last year to construct a new crime lab building without first addressing wrongdoing. And the city spends millions paying private contractors to fix its police department under the terms of a 2013 federal consent decree, but there are no forensics experts on the team.
The NOPD communications team did not return telephone calls and emails seeking comment on the findings of the investigation. When reached by telephone, Simon Hargrove, who took over the NOPD crime lab in May in what was described by local media as “a major shakeup,” declined to comment on the record for this story.
A spokesperson for Mayor Cantrell also declined comment.
New Orleans police have called accusations in last month’s letter by a former employee about the crime lab equipment’s inaccuracy and lax safety protocols “categorically false.”
But NOPD sources and Goodpaster’s review identify the same key trouble points:
1.Failure to Test Reference Drugs
To identify whether a seized substance contains narcotics, lab analysts are supposed to compare its time signature — how long a compound takes to travel through tubing housed inside a Gas Chromatograph Mass Spectrometry (GC/MS) instrument — to the time signature of a known narcotic the lab keeps on file.
If the unknown substance, which the GC/MS machine vaporizes and separates into fragments of different compounds, takes the same amount of time to exit the “column,” or tube, as the lab’s “reference” narcotic, the analyst can conclude the unknown material contains the suspected drug.
But because the condition of a GC/MS instrument column can change whenever the machine is used, how long a compound takes to reach the end of the instrument’s column also can change.
Standards set by the Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) tell drug labs to test reference materials to establish time signatures of known narcotics before concluding any evidence they are analyzing is illegal.
In New Orleans, lab notes and machine readouts reveal NOPD analysts made drug identifications without testing reference narcotics to see how long they take to reach the end of the machine’s column, according to Goodpaster.
Instead, lab analysts appear to be making “qualitative determinations… based upon searches of a mass spectrometry library,” Goodpaster found. By not using reference materials each time they test suspected drugs, they are systematically skipping tests Goodpaster says are “particularly important as they are critical to assuring that a qualitative identification is valid.”
2. Lack of Scientific Standards
While the validity and reliability of forensic science is under debate, there is no dispute about the standards for operating drug identification labs.
SWGDRUG, co-sponsored by the Drug Enforcement Administration and the Office of National Drug Control Policy, sets “minimum standards” labs must follow to report reliable results.
Violating even one of those standards can produce a false positive that sends someone to prison or weighs them down with supervision, fines, and a record. (The violations may also produce false negatives that do not assign blame for drug crimes committed, letting some off the hook.)
Expert drug identifications lacking scientific basis are also inadmissible in Louisiana and federal courts. Labs that do not follow accepted standards are using processes that scientists neither tested nor accept as valid.
For example, in each of the 14 cases Goodpaster reviewed, lab workers took just one sample of evidence police sent them. The GC/MS method of analysis requires duplicate samples to work.
The lab also does not maintain written Standard Operating Procedures (SOPs), which it must, according to SWGDRUG. Sources tell me the lab did not have SOPs even before the cyberattack last year.
These problems prevent it from receiving ANAB accreditation, which Goodpaster says is “uncommon.” Almost 200 crime labs have that accreditation.
NOPD refuses to publicly say whether the lab is pursuing accreditation, but employees say it is—to no avail. ANAB visited in April 2019, finding 32 “non-conforming accreditation requirements,” according to a document I obtained. NOPD cancelled future inspections.
When I shared Goodpaster’s findings with attorneys, including a public defender representing a man accused of drug crimes who subsequently questioned an NOPD analyst about his lab work, the analyst testified he had never heard of SWGDRUG’s standards and much of his training was ad-hoc.
On January 31, well after NOPD says its SOPs became inaccessible, the analyst, Jeremy Scott, also told the court he used the SOPs—either ones NOPD claims went missing by then or ones it says are still in development.
3.Exposure to Cross-Contamination
To avoid cross-contamination, analysts are supposed to put “blanks” into the GC/MS instrument between tests. If the machine gives any readout, this tells the analyst vaporous compounds were left in the machine. In crime labs handling narcotics, trace amounts of vapor from one case can contaminate another.
According to Goodpaster, NOPD case notes contain no evidence that analysts checked whether machines were contaminated before conducting tests. And they did not appear to use blanks to clear the machines. When analysts test evidence samples one after another, their tests are especially prone to “carryover” contamination.
Goodpaster called carryover a “well-known phenomenon” that leads to false positives.
His review of lab documents revealed multiple instances where analysts reported feeding evidence one after another into a machine without documenting using blanks in between.
Workers also did not analyze more than a single sample in any of the 14 cases, although the Scientific Working Group’s guidelines require them to test duplicate samples. The statistical reliability of GC/MS analysis is based on the use of two samples.
While focusing on a single sample may lighten the lab’s workload—crushing, by one worker’s account, in a city that talks the talk of police reform while continuing to walk people to jail for low-level drug offenses—this invalidates the lab’s results.
Not Just a New Orleans Problem
Most forensic analysts are employed by police and companies they contract. Defense attorneys have scant resources to independently evaluate their findings.
This is especially true for the nation’s chronically underfunded public defenders. When the Supreme Court gave criminal defendants the right to an attorney even if government must pay for it, it did not give them the right to expert witnesses.
Questions about the competence of forensic labs have placed thousands of convictions in doubt around the country.
In 2018, a Houston crime lab analyst was fired for alleged “policy violations” in sexual assault cases she had worked on; a year earlier, mishandling of crime scene evidence by the same lab placed some 65 cases in jeopardy.
In Massachusetts, over 40,000 criminal cases were dismissed as a result of years of improper procedures by the state Department of Health forensic lab.
In many of these cases, employees or prosecutors came forward. When this happened in New Orleans in 2018, little was done. And just the other week, NOPD again denied allegations of wrongdoing made by an employee.
Municipalities are willing to pay for police and prosecutors to build drug cases that form the carceral core of America’s long-running “War on Drugs” — but unwilling to give defendants the resources needed to scrutinize evidence.
Even as voters chip away at the drug war by electing activist District Attorneys and passing referendums, such as the law Oregonians passed last month decriminalizing drug possession, little is being done to mandate oversight of labs or give defense attorneys better capacity to scrutinize evidence.
This is not a small problem.
Crime labs test more controlled substances than any other material.
Allowing unaccredited, under-resourced labs to use flawed procedures to prosecute America’s drug war on the cheap shows how ‘getting it right’ matters little to city leaders or consultants paid to bring troubled departments like the NOPD up to par.
Important criminal cases get scrutinized.
But winning convictions on the cheap is part and parcel of a criminal justice system that dehumanizes suspected drug users, making their lives seem of little importance while normalizing incarceration, and victimizes Black, Latinx and Indigenous people who are disproportionately the targets of America’s war on drugs.
That is why the wheels of justice (and science) cannot slow to assure all cases get the same attention as those involving powerful defendants.
When defendants lack wealth especially, questionable science finds its way into court.
Flimsy science is fast and cheap, and it delivers the routine convictions and pleas underwriting the carceral state. Like any mass-manufactured product, such as fast food, mass incarceration depends on low-cost, low-quality justice as seen in NOPD’s crime lab.
And it does not end with the lab.
One New Orleans criminal defense attorney told me Crescent City prosecutors are sometimes so much in a rush to charge people with low-level drug offenses that they do so on the basis of field test results that later must be corrected if lab tests come back with a different result.
Jason Williams, elected last month to become Orleans Parish District Attorney, recently vowed to remake the DA’s office.
When police and prosecutors fill prison cells using flimsy science bought on the cheap, these are not one-off mistakes technical reforms can fix—though courts should reopen the thousands of cases this investigation has called into question.
They are the results of a systemic sloppiness that is essential for New Orleans’ high-speed mass incarceration system to operate at the pace and scale that police, prosecutors and city leaders have laid out.
Matthew Nesvet, Ph.D., an anthropologist and journalist, is an Assistant Professor at Miami Dade College. He researches the nexus of policing, militarization and critical security studies with science, technology, medicine, and health. Most recently, he wrote about the use of forensic science to trace conflict minerals in Africa and how surveillance effects the lives of informal gold miners. Previously, he led coverage of the uses of biological evidence in the criminal justice system, risk analysis and post-conviction supervision, juvenile and tribal justice systems, federal policing, and corporate crime for the U.S. Congressional Research Service.
The entire story can be read at:
https://thecrimereport.org/2020/12/15/anatomy-of-a-crime-lab-winning-convictions-on-the-cheap/
