THE SCOPE OF THE SCANDAL

Falsification Of Evidence Can Only Be Called Corruption -- It Must Be Stopped

A team of lawyers and scientists has just issued its third report in
connection with the scandal-plagued Houston Police Departments crime
lab. The report comes at the end of what the investigative team,
headed by Michael R. Bromwich, calls its first phase.

During this phase, the team spent around ninety90 days exhaustively
reconstructing the history of the lab, and the activities of its key
players. The investigators have not yet examined in detail the
serology and ballistics cases, areas where it is most likely more
wrongful convictions will be found, so the report does not yet
describe in human terms the consequences of incompetent or corrupt
forensics work. Nevertheless, what the report does say should cause
Houstonians shame and alarm.

According to the investigators, the problems with the crime lab
resulted from a combination of negligence, inattention, inadequate
funding and outright corruption. The crime lab was insufficiently
funded, supervision of employees was desultory and morale among
analysts was terrible.

To some extent, these characteristics are typical of many government
bureaucracies, especially bureaucracies forced to contend with
irrational budget cuts -- high police officials appeared clueless
about the consequences of crime lab budget cuts, and crime lab
officials had no real independence or leverage to make the case for
funding their line.

Indeed, when it comes to the issue of independence and adequate
funding, the report gives no reason to believe, without strong
support from the Mayor Bill White and the Houston City Council, these
problems will not recur.

But the most disturbing feature of the report is its identification
of what can only be called corruption. In at least four cases,
involving two different analysts, lab employees engaged in what is
known as dry-labbing. Dry-labbing is the knowing and intentional
falsification of scientific evidence. It occurs when a scientist
simply makes something up. In other words, it is fraud, and the
consequences of this fraud are that a jury may believe that someone
committed a crime, when in fact there is no scientific evidence
supporting that conclusion at all, and the real perpetrator can evade
apprehension.

So what happened to these two analysts? One received a minor
punishment; the other received no sanction at all. The police chief
should have fired these analysts immediately and without delay, and
the Harris County district attorney should have filed criminal
charges. But neither of those things happened.

Why not? If civil service laws prevent the discharge of employees who
commit fraud, they should be changed. If District Attorney Chuck
Rosenthal could not bring charges because of some legal problem, we
need to know what it is. If he was simply unwilling to do so, an
explanation should be given. If crime lab fraud cannot be
appropriately punished, it surely cannot be deterred.

What makes the discovery of drylabbing in the first phase of the
Bromwich investigation so stunning is that it represents just the
proverbial tip of the iceberg. Vast sections of the crime lab --
serology, ballistics, toxicology, hair and fiber analysis (trace
evidence) -- have not yet received serious attention from the
investigators. The safe bet is that there is much below the surface
that we have yet to learn. And, in any event, the fact that we have
learned so much already is an indisputable reason to provide the
investigative team with all the resources that they need to complete the job.

While there is much we still do not know, there are three points we
can make with certainty on the basis of this report:

The first is that the problems in the DNA unit were multidimensional,
implicating the former mayors and city council members who did not
adequately fund the lab, former police chiefs who paid inadequate
attention to the lab, current and former laboratory supervisors, and
current and former laboratory technicians. The report tells us,
therefore, that to fix the problems in the lab, each of those
dimensions must be addressed. It is a big job, and an expensive
one. Second, and most disconcertingly, we know with absolute
certainty that not all the problems have been innocent mistakes. Lab
technicians have lied, and their supervisors, upon learning of these
lies, have done nothing. This fact alone raises disturbing yet
important questions, like: Did the prosecutors who used this false
testimony know that they were obtaining convictions on the basis of
fraud? If they did not, why didn't they? If they did, why weren't
they terminated? There is plenty of scientific illiteracy among
lawyers -- defense lawyers, prosecutors and judges -- that
contributes to the persistence of unreliable and fraudulent forensic
science. When a forensic and legal disaster is of the dimensions the
Bromwich team has found so far at the HPD crime lab, it is unlikely
that any group within the criminal justice system will ultimately be
faultless. Except the victims: the wrongly convicted; the crime
victims whose assailants were never apprehended because of crime lab
failures; and, of course, the citizens of Harris County who are
entitled to have confidence that their system of justice can perform
the fundamentals of criminal investigation competently.

So, the third and final point to make about the Bromwich report is
there is still much to be done and it is essential that Mayor White
and City Council spare no expense in getting to the bottom of this
enduring scandal. The public's safety depends on it.

Scheck is a professor of law at Cardozo Law School, Yeshiva
University, the co-founder of the Innocence Project, and a member of
the New York State Commission on Forensic Science. He can be e-mailed
at innocenceproject.org. Dow is the Distinguished University
Professor at the University of Houston Law Center and the founder and
director of the Texas Innocence Network. He can be e-mailed at ddow@uh.edu.