The Ethics of Forensic Science
THERE IS AN amazing amount of politicking that goes on behind the scenes in law-enforcement. For almost a decade I worked where there were constant machinations to seize control of the state crime lab, for instance.
The lab reposed within the state police structure, and other agencies were not beyond maneuvering behind the scenes to take it over. No agency willingly surrenders its divisions to another, so the fight was on.
The struggle most often played out in the corridors of the Legislature, with hearings and testimony and plenty of lobbying outside the public eye. Complaints about alleged mismanagement of backlogs and such occasionally would make it into the news, particularly if there was a hot case somewhere.
One of the deputy chiefs whose duties included oversight of the crime lab was a subtle man. He instructed lab techs to compile reports showing when they were unswayed by pressure from an arresting agency or a prosecuting attorney, and developed proof of a suspect’s innocence. He had these included with cases where the forensics established irrefutable evidence of guilt.
The point he wished to emphasis was that forensics was science, and forensics specialists were best employed by a statewide agency that enabled them to work for a scientific result without fear or favor. His compilation provided me excellent fodder to show reporters when the struggle for crime-lab control went public. I don’t know how much his work influenced the final legislative decision to leave the lab where it was, with us, but the effort to strip it away never made it out of committee. What impressed me more than his subtle approach was the man’s personal ethics: he absolutely believed his argument that forensics must follow the truth wherever it led.
Another utterly ethical public servant I was privileged to know in those days was the man who supervised investigations by the state Public Disclosure Commission. A retired Army officer of the best type who had served in Vietnam as a military advisor long before the Johnson years of massive buildup and war, he was a good raconteur: South Vietnam still was largely undemolished when he was there and he told of close encounters with Bengal tigers on patrol.
He carried a Springfield .30–06 bolt-action rifle because tigers seemed more a threat than VC. He thought about sending home for some 220-grain hunting loads for a tiger hunt but didn’t think it proper to use his privileged status to collect a trophy when civilians no longer had the opportunity.
We came to know each other during a long investigation involving official corruption, organized crime, and a mob-purchased sheriff when I was with the Liquor Control Board. When all that ran its course and I changed agencies, we met occasionally for pleasant lunches and yarn-spinning.
The paths of the ethical deputy chief who oversaw the crime lab and the ethical public-disclosure official intersected when the latter called me to ask if he could refer a relative to me for information about the crime lab. His relative was a public defender in the State of Alaska who had read a wire-service story quoting me about the impeccable work of the state crime lab in establishing innocence as well as guilt. He wanted to personally verify this was in fact the philosophy of the crime lab.
The story he had seen was about a rape case. The suspect was already in custody of a sheriff’s office when told his handwriting matched a threatening note found on the rape victim’s car after the assault. Not only was it his handwriting, it demonstrated guilty knowledge of the crime. The arresting deputy recognized him from a composite sketch approved by the victim. The deputy developed the suspect’s name and address though licensing records. He grew so violent in his fury at being arrested that the courts denied bail. Then the victim identified him in a lineup. The case appeared to be a slam dunk. But his defense attorney believed his client’s innocence and pressured the authorities to have the state crime lab examine the evidence.
The state document examiner reviewed the incriminating note against hand-writing exemplars of the accused rapist. He asked for and got exemplars from the alleged victim. He found no similarities between the suspect’s handwriting and the post-assault note. He described a strong probability the note was written by the alleged victim. When confronted with the forensics, the woman not only admitted she wrote the note, she admitted she had invented the rape. Charges were dropped. The innocent man went free — after four months in jail due to his rightful anger at being arrested for something he never did, and to flawed handwriting analysis by the sheriff’s office.
My friend’s relative, the public defender in Alaska, had not enjoyed the same cooperation from our crime lab. Police accused his client of shooting at them, and had him for attempted murder. The public defender contacted one of our state’s ballistics experts vacationing in Anchorage and asked him to examine shooting evidence obtained in discovery. The vacationing firearms specialist was a court-approved expert in anything ballistic you could name. In the arcane world of forensics, he was a star. He applied his usual methods to the Alaska evidence. He concluded the alleged ambush shooting could not have happened the way the police said; physics did not support the charging narrative.
The Alaska prosecutor and the cops were furious. The tech’s credentials were unassailable. If his testimony was allowed to come in, their shooting evidence would be thrown out. The scenario put forward by the cops would collapse, followed by the entire prosecution.
Trial was scheduled. The firearms tech promised to take annual leave if the public defender’s office footed his return flight to Alaska to testify. The defense attorney thought he’d won. He was very happy with the news story about our crime lab’s rigorous objectivity in the alleged rape, which inspired him to seek out the ballistics tech.
Then our tech changed his mind.
He wouldn’t testify after all. Almost as if he had prior notice of that decision, the prosecutor immediately moved the court to exclude preliminary ballistic findings, absent the tech’s live testimony. The blindsided public defender called the tech to plead with him to testify.
But the tech was cowed. It would be worth his job and pension to testify in Alaska. No, he wasn’t just paranoid. He had been told the consequences in no uncertain terms by his direct superior, a uniformed captain.
Lawyers don’t like being blindsided any more than anyone. So the public defender called his uncle the top investigator of corruption at the Public Disclosure Commission. He had relied on our statement of ethics in forensics science that we used to fend off hostile takeover of the crime lab by other agencies. He could comprehend no scientific distinction between objective study of handwriting exemplars and objective study of ballistics.
Since I was in the story asserting this lofty standard upon which he had relied, he asked my PDC friend to call me. My friend said in fifteen years of public service together he had never known me willing to make false statements to the media. But our crime-lab forensics didn’t seem as ethical in practice as I (and the chief and the deputy chief who drew up the philosophy) said. I had a dreadful sinking feeling.
I had not been aware that particular captain had been shuffled into the crime lab. The state patrol had a quaint custom of installing commissioned troopers as commanders over every single division, civilian or not. In the case of the much-contested crime lab, it didn’t matter that its civilian director held varying advanced degrees and had enjoyed a long and distinguished national forensics career, and recruited the best.
All well and good, Doctor, but you still must get your operation approved by a guy with a badge and gun.
From the moment troopers completed their obligatory four years on the road, the ambitious ones maneuvered for these soft office jobs. Troopers anointed captain were patronage employees serving at the pleasure of the chief. They couldn’t be fired for displeasing that personage but they could be bumped back to their last merit rank. I know of grown men including a tough SWAT commander who openly cried when a new chief demoted them.
The perks of rank are addictive. But the present situation was odd. My chief had set the policy for strict scientific ethics in forensics as laid out by the ethical old deputy chief who oversaw the crime lab and all detectives before he retired.
Would a newly shuffled-in captain change the policy while working for a new deputy chief who already had his foot half out the door, having been recruited for police chief of a midsize city? Could the captain be positioning himself for job security by currying favor with outsiders who would return the favor and speak to the new chief on his behalf? Would he actually bypass the august civilian crime lab director to lean directly on a forensics tech?
Of course he would. I knew this captain’s record: he had rotated through personnel, fiscal and other administrative functions. His bureaucratic record was as unblemished as his tailored uniforms. He presented the bland friendly face of a classic road trooper helping you change a flat tire. He was a known team player and played by the rules, written and unwritten.
He really wasn’t happy when I called for an explanation. He blandly confirmed to me the Alaska prosecutor contacted him to demand he call off his ballistics expert. Confirmed that he directed the tech not to testify about his forensic findings in Alaska. Further, he directed in writing that the firearms tech — and by extension the rest of the crime lab — were never to testify where that testimony contradicted any other law enforcement agency.
He wrote the Alaska prosecutor to promise no one under his command would do so. (He had been in personnel when the innocent man was freed of bogus rape charges leveled by a sheriff’s office.)
This captain was low-key, courteous, usually an accessible sort of guy and understood that I had the ear of the chief. He understood I was on the hook for public pronouncements that his new orders made a lie. He approved of the PR that helped beat back a hostile takeover of the lab. But this was police business now. He tightened right up when I said I am not in the habit of lying to the public and I don’t like being put in that barrel. He absolutely could see no issue. The PR did its job and now he was doing his. He carried a badge. I didn’t. If I didn’t understand that bright line, I was myself suspect.
His attitude was implacable as McCarthy finding Reds in the State Department. Forensics existed to prove cops’ cases were righteous, period. The tech should never have agreed to evaluate evidence on behalf of a defense attorney. For doing so he had been labeled a troublemaker. The captain flatly confirmed the tech’s job was on the line; he also would direct the patrols’ assistant attorney general to resist an Alaska defense subpoena. His very strong implication was that if I rocked the boat I would also be a troublemaker. My absolute access to my chief stopped him short of an open declaration.
The deputy chief whose ethics I admired had retired. I got along fine with his successor, the future city police chief, who was politically astute. He was also a fresh-minted attorney. I wanted to put him together with my PDC friend for a discussion of forensic ethics. My friend demurred. He was disappointed to see the agency’s public stance on forensics was a lie. But he worried it would be improper to bring outside pressure because a relative of his had relied on that lie and was burned — never mind the Alaska suspect the forensics had cleared.
He would spread word in the legal community that disinterested crime-scene analysis was just a PR stunt. Knowing the defense-bar view of cops they wouldn’t bat an eye.
The science was plain: the Alaska forensics either supported the cops, or didn’t. Anything else was official corruption. But since no one had been paid off the PDC would not be officially involved. It’s the way corruption really works — a slow seepage of understandings, one hand washing the other.
My old reporter’s instincts were highly agitated. I imagined a nationwide conspiracy of forensics silence to protect wrong-doing by cops — a sure Pulitzer for the reporter who could prove it.
But I hadn’t been a reporter in a long time. My chief was set to retire, a new governor to whom ethics was a joke was about to be seated, and there are some battles you just can’t win. I don’t know what happened to the guy in an Alaska jail.
