The book about lives ruined by flawed forensic science now has another ugly chapter.

The Washington Post’s detailed investigative reporting, published last week ^[1], documents numerous instances in which forensic work performed by the FBI Lab and determined by the federal government to be problematic, or worse, was never brought to the attention of defense counsel.

The result: innocent defendants whose lives were ruined by faulty forensic science and who were then deprived – sometimes for decades, sometimes forever – of the basic information they needed to challenge their wrongful convictions.

Unfortunately, this story is not unique in our criminal justice system, and it highlights two major problems.  The first relates to the continuing problems with the way forensic science is practiced and applied on both the federal and local level.  The second relates to the way prosecutors’ offices and law enforcement agencies pursue – or fail to pursue – information that flawed forensic science may have played a role in securing convictions.

The evidence of weaknesses in the practice of forensic science has been growing over time.  The many documented cases of wrongful convictions, which gained critical mass over the past twenty years largely through the outstanding work of the Innocence Project and its affiliates, led to a landmark National Academy of Sciences (NAS) report in 2009 that was unflinching in its criticism of the way forensic science has been practiced in our crime labs – most notably, with respect to the decidedly unscientific underpinnings of many of the forensic sciences practiced in those labs.  The recommendations of that report constitute a critical unfinished agenda for the criminal justice system.

The problem focused on by the Post – inadequate follow-up in the face of evidence that convictions may be based on flawed forensic evidence – has been repeated elsewhere.  In 2005-2007, I led a team that conducted a comprehensive investigation of the Houston Police Department Crime Lab.  That investigation discovered flawed serology (blood typing) analysis in close to 200 cases.  Our recommendation that efforts be made to locate relevant physical evidence and subject it to DNA testing was rejected by the local prosecutor and police department.

Ultimately, the recommendation was embraced over their objection by local judges, but the effort was poorly funded and encountered massive obstacles in locating evidence from cases that were decades old.

Several specific steps can and should be taken to address these systemic failures:

1. Crime labs should be separated from police departments and prosecutors’ offices.  This is one of the central recommendations of the NAS report but it has failed to prompt significant movement in that direction.  One notable exception is Houston Mayor Annise Parker’s efforts to create an independent crime lab free of police, prosecutorial and political influence.
2. Participants in the criminal justice system, including police, prosecutors and crime labs, need to improve the collection, tracking and preservation of evidence.  The wrongfully convicted defendants highlighted in the Post series were unlucky in every respect but one: evidence that could be DNA tested was located and was capable of being re-tested.  That is rare with older cases.  Crime labs need to develop stronger information management systems that will allow evidence in even very old cases to be identified and subjected to testing, and that evidence needs to be preserved so that it is available to be retested.
3. The forensic testing process must be opened more broadly to defense counsel.  Crime labs should be required to share not only their final reports but also the underlying lab notes and files.  In the long run, no one gains from the secrecy and partial disclosure that are features of our current system.
4. Evidence of flawed forensic analysis and testimony must be brought to the attention of defense counsel and not left to the discretion of prosecutors.  Prosecutors have a vested interest in preserving the convictions they obtained.  They should not sit as judge and jury in determining whether flawed analysis or testimony should be shared with defense counsel.  The information must be shared.
5. Defendants should be given wider latitude to hire forensic experts of their own to challenge – and in some instances independently test – evidence that the government relies on in criminal prosecutions.  This would remedy the imbalance in our current system, where the government has the forensic expertise, and defense counsel lacks the knowledge and the resources to provide an adequate forensic defense.

These reforms will by no means ensure that wrongful convictions will end.  But they will reduce their frequency and make possible a better, swifter, and surer route to exoneration than our current system allows.

Michael R. Bromwich served as Inspector General for the Department of Justice from 1994-1999. He is currently Managing Principal of The Bromwich Group.