The state law creating the forensic commission did not define negligence and did not give the FSC rulemaking power. But regular readers may recall Mr. Bradley pushed the commission at his first meeting to create supposedly nonbinding policies governing their activities, which he proposed whole hog without input from other commissioners. Under the definition of "professional negligence" which Mr. Bradley proposed and the commission regrettably adopted unedited (despite concerns raised by their Attorney General adviser that it was too narrow), the FSC may not issue a finding of negligence unless "the negligent act or omission substantially affected the integrity of the results of a forensic analysis" (emphasis added). According to new Chairman Vincent Di Maio, and the rest of the commission eventually agreed, that means that unless the results of a lab analysis were incorrect, they could not find negligence. In the end, the Commission interpreted the definition to say they could not hold the El Paso crime lab accountable for "negligence" because none of the samples processed by an incompetent analyst came up incorrect when retested - sort of the forensic version of "harmless error" in appellate court settings.
It's certainly comforting that no errors that we know of resulted in false convictions, but it's still negligent to employ incompetent staff, still negligent to disempower the Quality Assurance manager from improving practices. According to the accrediting body ASCLD/LAB (see their 2011 report [pdf]), the agency's division responsible for controlled substances testing employed incompetent analysts with inadequate supervision, overstated the thoroughness of testing, failed to follow their own laboratory policies, failed to base laboratory procedures on known standards, failed to document testing/calibration of instruments, allowed improper access to the lab by police officers and other personnel, and failed to require a written test to determine labworker competency. At one point, two different people independently believed they were the Quality Assurance manager (it's still confusing who was right). As a FSC commissioner said today, the lab was an "accident waiting to happen."
Now, to be fair, by all accounts the El Paso crime lab, particularly the division in question, has undergone massive change for the better. Two of the three analysts in the division are gone - including one deemed incompetent through proficiency testing - and the lab hired a private consultant from Tarrant County to serve as acting lab director on a half-time basis. At this point, said a DPS auditor, the lab is doing quality work in compliance with accreditation standards. El Paso PD and the District Attorney, who was present, were praised for their reaction to the situation, including their cooperation with regulators and the DA's notification of defense counsel in affected cases. EPPD told the commission they were trying to find a permanent lab director but may also yet decide to outsource controlled substance testing entirely. DA Jaime Esparza told the Commission he appreciated their hard work and believed their thoroughness would increase "community confidence."
So whether or not the FSC found negligence, the process clearly improved things for the better. ASCLD/LAB had taken the lab off probation in December, but a DPS audit commissioned by the FSC found more problems to address, with DPS suggesting "significant improvements" in February which have all since been adopted, the commission was told. The lab has undergone a "massive transition" since DPS visited, the auditor said, which made one wonder if their probation perhaps ended prematurely if there was that much more to be done.
What is negligence?
Regardless, the FSC is clearly using a flawed definition of negligence and misconduct. Commissioners should change it. As Dr. Sarah Kerrigan pointed out, under the interpretation propounded today one couldn't find misconduct in a "drylabbing" case (submitting reports without doing the testing). For example, a new, self-reported FSC case out of Tarrant County involves a crime lab employee who failed to test rape kits when the police report said no penetration occurred, claiming to have performed tests in at least five cases when he did not. When the kits were tested, indeed, they contained no semen, so the "results" weren't any different. But is that not still misconduct by the lab worker?
Di Maio insisted such a case of overt fraud was clearly "misconduct," but the FSC policy on misconduct policy contains the same language as the "negligence" definition about "results," so if they can't find El Paso negligent without an incorrect "result," it's hard to understand how a drylabbing case would be any different except in wrongful conviction cases where someone was falsely accused.
Even Di Maio, however conceded the El Paso lab as recently as last year faced serious problems before the recent shakeup, stemming he said mostly from administrative failures, failure to follow Quality Assurance guidance (again, not negligence?), and a lack of "scientific leadership." "Scientific problems, yeah,"said Di Maio, "but those were because of the management problems."
I was especially interested and rather curious to hear Commissioner Sarah Kerrigan go out of her way to exonerate accrediting agency ASCLD/LAB in the El Paso incident, declaring that in this case the accreditation process was "working and functional." This struck me as an extraordinarily odd statement, and perhaps a bit of a forced one. Yes, it was ASCLD/LAB's report last year that brought these allegations to a head, and their investigation was much more thorough than, say, the one described in this Grits post, in part because the El Paso lab was transitioning off of its "legacy" accreditation to new international "ISO" standards just this month, requiring a much more complete vetting of the lab. But by all accounts, most of the same problems were raised by the accrediting body in 2006, and for five years ASCLD/LAB accreditation did nothing to fix them. Better late than never, I suppose, but for those five years that accreditation wasn't a particularly meaningful moniker. At best it's a mixed result for ASCLD/LAB.
By contrast, the Forensic Science Commission's vetting process, particularly when coupled with DPS serving as their audit arm, both investigated the case thoroughly - even if their judgment in the end was based on a skewed standard - and the process appeared to get the attention of city and county leaders in a way that the accrediting body could not in the five years after the problems were first identified in 2006. I expect this report, which will be vetted in full at the next FSC meeting, in that respect may end up a bit like the Todd Willingham arson report, making no misconduct or negligence finding but then describing at some length activities that seem, upon description, at a minimum negligent and which required extensive remediation. This process is opening up a unique and fascinating window onto crime lab problems and solutions, launching discussions that otherwise wouldn't or couldn't occur in a public setting.
Indeed, despite my complaint about John-Bradley-spawned problems with the FSC's definitions of negligence and misconduct, in general Texas' Forensic Science Commission appears to be finally hitting stride. Most commissioners seem to want to do a good a job, which is half the battle, and the staff have shown their competence at undertaking rather large-scale evaluations with impressive diligence and a fair but thorough approach. At times during the Willingham saga, many of us who work toward forensic reform have wondered if the agency would ever find its purpose and function, but they appear to have largely done so, even if the specter of John Bradley's chairmanship still looms over their work. The truth is, even if the FSC finds negligence or misconduct, there are no "teeth" to their authority. They cannot punish crime labs. They can only expose negligence, misconduct, and junk science to the light of day. And as long as they do that effectively, maybe for now it doesn't matter so much what they call it.
MORE: (4/14) Rereading this post, Grits should elaborate on the comment that the Attorney General legal adviser to the FSC worried the definition of "negligence" was too narrow at the time it was created. Grits was liveblogging that day's meeting back in January 2010 and wrote at the time:
(12:05): The AG rep described a "small gap" in the negligence and misconduct definitions (I don't have a copy so I can't be specific) that includes people who are aware of professional standards and fail to follow them but where the incident may not rise to the definition of "negligence" in the rules - a category the AG's rep said would likely make up a large number of cases submitted to the commission. The scientists on the committee didn't seem to understand the significance of what was being said to them on this score (and the defense attorney's rep isn't there), so they moved forward without changing the language or closing the "gap." Ouch!Those definitions have remained the same in FSC policies as they were when Mr. Bradley forwarded them to commissioners the day before that meeting in Harlingen a little more than two years ago. Complaints arose at that 2010 meeting that the most controversial sections of Mr. Bradley's rules, including these definitions, were also the portions with no references to sources and did not rely on definitions and standards either from other jurisdictions or the feds. In the end, though, they adopted them anyway, a decision which rose up yesterday morning like some old, tired, poltergeist emanating from Bradley's misbegotten chairmanship, not as ominous or imminently scary as before, perhaps, indeed unseen by all but a few, but present nonetheless, hovering over the proceedings, smiling.
RELATED: Shortcomings in crime lab accrediting body supply role for forensic commission.