Bromwich: Crime lab proposal is a major step toward independence

March 25, 2012

By Michael R. Bromwich
Appeared in the Houston Chronicle

Mayor Annise Parker and her administration have proposed removing the city of Houston’s crime lab from the Houston Police Department, where it has resided since the 1950s. This major step toward obtaining independence for the crime lab – free from the influence of the police department, prosecutors and political leaders – would place Houston in the vanguard of the movement to create appropriate structures for conducting forensic science in the criminal justice system. Her proposal carries the promise of improving both the reality and appearance of the way forensic science is conducted in Houston. Although implementing this vision will involve significant challenges, the proposal deserves serious consideration.

To put this proposal in perspective, it is useful to review some recent history. From 2002 through 2004, the HPD crime lab was the subject of extraordinarily damaging media reports suggesting that its work was seriously flawed. These reports included details of cases in which criminal defendants had been wrongly arrested, convicted and incarcerated based on faulty scientific analysis and testimony. They documented multiple instances of the ultimate nightmare in our criminal justice system: clear and convincing evidence that innocent people had been wrongly convicted. I have no doubt that the names George Rodriguez and Josiah Sutton, two of those who were wrongly convicted, still resonate in the Houston community.

Modest steps

In response, the city initially took some modest steps to address the issues, including the hiring of outside consultants and replacing the lab’s failed leadership. Those steps were insufficient to dispel the distrust surrounding the work of the lab. Then-Mayor Bill White realized that a comprehensive investigation of the historical and contemporary problems of the crime lab – objectively finding and examining all the skeletons in the crime lab’s closet – was required to address the anger and suspicion created by the adverse publicity and the exonerations. As a result, Mayor White authorized a comprehensive investigation of the crime lab, but he played no role in the selection of my investigative team, nor did the police department. This reflected his awareness, after all the negative publicity, of the community’s lack of confidence in any process over which the police department or senior elected officials exercised substantial influence or control.

From 2005-2007, my investigative team and I reviewed and analyzed more than 3,500 cases in the disciplines of DNA, serology, toxicology, firearms, controlled substances, trace evidence and questioned documents. It was the most comprehensive investigation of a crime lab ever conducted. No limits were placed on our investigation, and we were permitted to expand its scope once we learned that there were profound problems in the way that serology (blood) analysis had been conducted going back more than 20 years. These problems called into question close to 200 cases in which defendants had been incarcerated based, at least in part, on blood evidence. When our final report was published in the summer of 2007, we expressed grave concern over the quality of DNA and serology analysis that had been performed in the lab – major problems with close to one-third of the DNA cases we reviewed, one-quarter of the capital (death penalty) DNA cases and one-fifth of all the serology cases. By any measure, these were unacceptably high numbers. Even though our review of the other disciplines showed that, with some significant exceptions, the forensic work had been adequately performed, the appalling DNA and serology statistics captured the attention of the public and confirmed some of its worst fears.

Confronting the past

Our investigation helped the city, at long last, confront the crime lab’s troubled past. But a combination of factors worked against the city’s efforts to move toward a brighter future. First, elected officials showed a lack of urgency in addressing the many cases in which we found serious errors – and then profound difficulty in locating the evidence that needed to be tested or retested to determine whether a defendant had been wrongfully convicted. Second, shortly after our investigation concluded, a cheating scandal in the newly rebuilt DNA section was uncovered, causing the forced resignation of the DNA section chief and the closure of the DNA section for many months. Third, the HPD crime lab has continued to be swamped by a massive backlog in processing rape kits, a perennial problem not merely in Houston but around the country.

These continuing problems have made it extremely difficult for the HPD crime lab to escape its past. Mayor Parker’s proposal to make the crime lab independent of the police department, prosecutors and elected officials is fully consistent with a comprehensive and widely acclaimed National Academy of Science review of forensic science, published in 2009, that recommended that public forensic labs be independent from police departments and prosecutors. HPD’s crime lab reports to the chief of police, who in turn reports to the mayor. Although our investigation found little evidence of overt efforts on the part of law enforcement personnel to influence forensic analysis, the current structure, as an institutional matter, creates a continuing risk of such influence. And the crime lab’s continued affiliation with the police department, especially against the backdrop of the crime lab’s highly publicized problems, works against creating the trust that the public must have that forensic science is engaged in a search for scientific truth, not merely for answers that suit the purposes of police and prosecutors. The fact that other local governments around the country have not implemented this recommendation suggests not only widespread institutional inertia, but also some practical obstacles – such as ensuring adequate funding – that make such reform difficult.

Conceptually sound

The core of the mayor’s proposal is to sever the crime lab from HPD and political leaders and entrust its oversight to a local government corporation governed by an independent board of directors. This board would set policy, ensure institutional independence and integrity, and oversee sound fiscal management. The board would be guided by an advisory committee, whose members would have significant expertise in forensic science. This structure is conceptually sound: The challenge would be in ensuring the competence of the outside directors, and the level of engagement of the members of the advisory committee

Although the mayor’s proposal to separate the crime lab from the police department and reduce the risk of political influence on its operations is fundamentally sound, aspects of it merit careful examination and discussion. No reform worth doing is free from thorny questions of implementation. While on first blush, the fee-for-service model that is being proposed is attractive, it raises questions about the incentives such a system creates – for example, preference may be given to scientific work that generates the most revenue rather than work that is most important for the fair administration of justice.

Such issues are not insoluble, but they do require careful study and consideration. To her credit, Mayor Parker is advancing a bold and serious proposal to improve the quality of forensic science, and therefore the quality of justice, administered by the city of Houston. It deserves a thoughtful and constructive reception.

 

Bromwich was selected by the city of Houston in 2005 to undertake a comprehensive investigation of the Houston Police Department crime lab. Next month, he will launch The Bromwich Group LLC, a strategic consulting firm based in Washington, D.C.