MENS REA: Looking into the viral--Should the Michigan State Police Forensic Services Division provide transparency?

By Mike Nichols Every time I read stories about persons freed from prison because they were exonerated, it brings me back to an immutable truth: nothing is truly certain in science, the universe or in our legal system. We can only attempt to determine the probability that we are relatively correct about a conclusion. Once we adjudge someone guilty, it usually lasts forever. When a jury or a judge is wrong about a conclusion and the conclusion is the guilt of the accused, that conclusion is almost impossible to undo. Take for example, the story of Edward Elmore. Elmore was convicted of a sexual assault and murder in South Carolina of an elderly woman. He found himself on death row ("When Innocence Isn't Enough," Raymond Bonner, The New York Times, March 4, 2012). He was convicted after a jury trial featuring physical evidence. An evidence bag containing hairs connecting him to the crime was not kept in a secure location. The bag itself was not secure. An unknown hair removed from the victim was misplaced. Lawyers seeking a new trial for Elmore learned of the possibility of the hair by reviewing the case file but no one could find it. It was later located in the office of a senior investigator when he moved into a new office. Elmore was not granted a new trial. However, he was released after a procedure amounting to legal fiction led to a commutation of the sentence. Cases like Elmore's cause me to wonder how that could happen in the American justice system. How can an innocent person be convicted in the system requiring reasonable doubt? Easy. It is the adversarial process. The adversarial process has the capability of creating an "us versus them" mentality. While attending the most recent proceedings of the American Academy of Forensic Science, I noticed some of the forensic community representatives grumbling when criminal defense attorneys presented information. The grumbling was most pervasive in the room when three attorneys presented a survey of the transparency of blood labs around the nation. Justin McShane of Pennsylvania and Richard Middlebrook and Jeremy Brehmer of California were on the stage presenting their findings: the good, the bad and the ugly. Grumbling rose to direct confrontation during the question and answer session. The lab directors stated they were busy and couldn't host visitors for a tour. Not every person who works for a government lab holds an 'us vs. them' attitude. Some even approached me and struck up a conversation and remarked that the system is better when defense attorneys have access to the same information and training as they have. That brings me to Michigan. Brehmer (who focuses his practice on drunk and drugged driving issues) said Michigan's lab responded that it would avail itself of a tour and inspection and that it would make certain data available. There was a problem--it was the Oakland County crime lab and not the Forensic Services Division of the Michigan State Police in Lansing. The state police conduct all blood alcohol and drug testing for courts throughout Michigan. The Oakland County lab doesn't conduct blood alcohol analysis. The Lansing lab did not respond to the survey. So, while I thought I had my permission slip to go learn and see firsthand the vials, pipettes, computers and chromatographs that are used to analyze compounds in human blood that can make the difference between a lifetime stain for someone, I have nothing. There may be reasons why the door to the lab is not wide open. However I believe the Lansing lab must change. It is now required to analyze and report the uncertainty values in its analyses for alcohol and drug cases if it wants accreditation by the American Society of Crime Lab Directors Laboratory Accreditation Body (ASCLAD-LAB). Forensic science is catching up with the rest of the scientific community, which recognizes that a ". 08" does not mean exactly that. The Lansing lab's accreditation has expired and it is operating on a 6 month "legacy extension" until April 18, 2012. Knowing what is at stake and understanding the time commitments for all of us, I am asking the administration at the Lansing lab to give me a permission slip. I am willing to go on my own or with a group of lawyers. Why not videotape the process so that a "training video" for lawyers and others is available? Times are changing. The forensic sciences are under new scrutiny since the National Academy of Science published its stinging criticism of the justice system in 2009 ("Strengthening Forensic Sciences, a Path Forward"). Transparency engenders trust. This column is not to suggest that there is anything nefarious taking place at the lab at all. Instead, this column is seeking permission from the administration at the Lansing lab to let us look inside the vials. ---------------- Mike Nichols is an associate member of the American Academy of Forensic Science and presented at the 2012 AAFS annual conference. Mr. Nichols is author of the "OWI Practice Manual for Michigan Lawyers" by West Publishing and an adjunct professor at Cooley Law School. mnichols@nicholslaw.net Published: Fri, Mar 30, 2012