By Steve Saloom

In September 2003, Massachusetts Governor Mitt Romney declared with great fanfare that he was convening of a panel of scientific and legal experts to craft a proposal to reinstate the death penalty in Massachusetts for situations where, he asserted, “because of the tremendous advances in forensic science,” the defendant’s guilt could be “incontrovertibly” established.

As any true legal or scientific expert knows, an “incontrovertible” guilty verdict through our justice system is an impossible thing to promise – regardless of “the tremendous advances in forensic science.” In order to reinstate the death penalty in Massachusetts, however, the Governor was forced to proclaim that possibility. This is because it had been precisely that issue - advances in forensic science - that blocked efforts to reinstate the death penalty in Massachusetts in the late ‘90s.

What I’m referring to is the pioneering use of DNA evidence by Peter Neufeld and NACDL’s President-Elect Barry Scheck (who together later formed the Innocence Project), which was instrumental in proving the innocence of certain death row inmates. The public was so horrified to learn of the system’s fallibility that a moratorium was imposed on the death penalty in Illinois and Maryland. As evidence of the system’s fallibility solidified, the momentum that had been building for reinstatement of the death penalty in Massachusetts came to a rapid halt.

In a clever twist, Governor Romney is now using that same science to assert the perfectibility of a guilty verdict. While that may serve his political goals, it disserves the public safety. This is because it leads people to believe that advances in forensic science are alone enough to improve the certainty of court convictions. Under that mistaken belief, people are urged to ignore the myriad of forensic evidentiary problems that plague our system, continue to convict the innocent, and thus threaten the public safety by allowing the guilty free to re-offend.

This issue of The Champion is dedicated to crime labs. It comes not a moment too soon, either. Because with public recognition of the evidentiary value of DNA, the popularity of crime investigation television shows such as CSI: Crime Scene Investigation, and people’s limited understanding of the use and rules of evidence, more and more people assume that if we could only process more evidence through crime labs, the problem of convicting the innocent would be a thing of the past. While this couldn’t be further from the truth, politicians like Governor Romney are leading the public to believe exactly that.

As you’ll read in this issue, crime lab problems are legion. As Frederic Whitehurst of the Forensic Justice Project describes, untrained staff, a lack of written procedures and performance standards, poorly maintained instrumentation, insufficient documentation of test results, improper preparation of lab reports, scientifically flawed reports, inadequate record management and retention systems, failures by management to resolve serious and credible allegations of incompetence, and a leaky roof are only a few of the crime lab inadequacies that threaten the integrity of evidence used against defendants at trial.

Add to this the additional, more nefarious actions that occur at crime scenes and the broad spectrum of corrupting influences begins to reveal itself. This includes planting evidence at a crime scene, collecting evidence without a warrant by claiming exigent circumstances, intentionally falsifying laboratory examinations, ignoring evidence that might exonerate a suspect or be a mitigating factor, reporting on forensic tests not actually done, fabricating scientific opinions, extending expertise beyond one’s knowledge, using unproved methodologies, and overstating an expert opinion.

Even long-established scientific methods need to be reviewed. A February 2004 report by the National Research Council found that the F.B.I.’s comparative analysis of bullet lead (CABL), an analysis admitted for use in many courts throughout the country, actually lacked the “unique specificity of techniques such as DNA typing to be used as stand-alone evidence.” This casts serious doubt on a scientific test that, according to the FBI’s own estimate, played a role in at least 2,500 cases and 500 trials over the past three decades. Because only the F.B.I. knows in which cases CABL testimony was relied upon, National Association of Criminal Defense Lawyers and the Innocence Project now plan to work with the FBI and the courts to identify and rectify the wrongful convictions which were based upon this evidence.

It is alarming to consider that CABL is just another example of the fallibility of science that the courts have erroneously relied upon, and supports the call for peer-reviewed, open science when assessing forensic evidentiary processes. The Innocence Project recently informed NACDL State Legislative Network members of their concerns in this regard, and their plans to work with state legislatures throughout the country to prevent the misuse of forensic science. This quest to ensure valid evidence begins with strengthening the integrity of crime labs, but must also include a review of crime lab methodology to ensure its validity, as well as the establishment of mechanisms to investigate individual acts of misconduct.

NACDL members need to be at the cutting edge of forensic science. I hope you will find this issue useful in your quest to learn more and be able to incorporate your knowledge into your practice. For as again we find ourselves ahead of popular understanding of important criminal justice issues, again it will be our duty to lead society to an understanding of how respect for an effective criminal defense serves society as a whole.

Policymaking is driven by public perception. The public perceives DNA as a panacea, and crime lab determinations as gospel. Led by opportunists such as Governor Romney, the public is being lulled into a sense of security, thinking that science alone will save us all from wrongful convictions. By pointing out the fallacies of such opportunists, however, NACDL lawyers can help the public understand the need to improve our forensic practices. For it is only by doing so that the public should have more faith that convictions are not erroneous, and that the court system is indeed properly protecting us all.

No matter how good the science, however, it will never overcome the fallibility of the human beings who administer it. As that is the case, a guilty verdict will never be beyond question. And the death penalty therefore, final as it is, will never be appropriate.