The Draft Legislation and the Subcommittee on Forensic Science: Same People, Same Outcomes

So far this week I have talked about the failings of the leaders of the forensic science community and the actions those leaders have taken that show how they would drive those failings to new, darker depths if given the power that the Draft Legislation would offer them. Today I am going to discuss exactly what powers the Draft Legislation wants to give those failed leaders. I am also going to talk about the White House Subcommittee on Forensic Science that was chartered on July 9, 2009.

The Draft Legislation: The Forensic Science Commission

Instead of creating the National Institute of Forensic Science as suggested by the NAS Report to focus on best practices, research & development, and oversight for forensic science, the Draft Legislation proposes to have a Presidentially appointed Forensic Science Commission (read: political appointees changed out every 4 or 8 years) to be selected “after reviewing recommendations from the National Academy of Sciences and the American Academy of Forensic Sciences.”

The Forensic Science Commission (FSC) is supposed to be housed in the office of the Deputy Attorney General of the United States, which is part of the Department of Justice (DOJ). Which is exactly what the NAS Report warns against.

In the lead up to its first recommendation, to create the National Institute of Forensic Science (NIFS), the NAS Committee says very pointedly

There was also a strong consensus in the committee that no existing or new division or unit within DOJ would be an appropriate location for a new entity governing the forensic science community…

the committee determined that the research funding strategies of DOJ have not adequately served the broad needs of the forensic science community. This is understandable, but not acceptable when the issue is whether an agency is best suited to support and oversee the Nation’s forensic science community.

In sum, the committee concluded that advancing science in the forensic science enterprise is not likely to be achieved within the confines of DOJ.

By the time the NAS Committee gets to this proclamation about the DOJ, the Committee has already gone through other federal agencies as potential governing bodies for forensic science and described why none of them is suitable to take on the task of supporting and overseeing the field of forensic science: no to NIST, no to NSF, no to FBI, and no to NIJ. The NAS Committee finally makes this statement regarding the ability of the current federal structure to carry out this task:

Furthermore, there is little doubt that some existing federal entities are too wedded to the current “fragmented” forensic science community, which is deficient in too many respects…

These agencies are not good candidates to oversee the overhaul of the forensic science community in the United States.

The committee thus concluded that the problems at issue are too serious and important to be subsumed by an existing federal agency. It also concluded that no existing federal agency has the capacity or appropriate mission to take on the roles and responsibilities needed to govern and improve the forensic science enterprise.

The Draft Legislation: Who Gets The Money, Who Gets The Power

Since the Draft Legislation would create the FSC, a commission of political appointees who would be changed out every 4 or 8 years, the FSC itself would likely have very little influence on forensic science. Membership on the Presidentially-appointed commission would probably just be resume padding for its members.

The real power would lie with the professional organizations the FSC delegates its power to. The money will go to the DOJ, NIST, NIJ, and the delegated organizations to be doled out to whoever they feel is deserving of it.

Starting at the third bullet point of the Draft Legislation, Congress would like to turn decision making over to those who have already proven that they can’t handle the task:

Generally, the FSC will delegate the determining of standards for accreditation to a qualified professional organization.

The next bullet point is

The FSC, or the designated professional organization, will also determine testing, maintenance, and auditing requirements for accredited labs. The FSC will determine a fair fee structure for accreditation, in consultation with the professional organization as appropriate.

The rest of the Draft Legislation reads much the same way: delegate everything away to “a qualified professional organization” with a lazy wave of the hand and barely a thought.

All the outrage in Congress over wrongful convictions and the very real possibility of wrongful executions based on bad forensic science seems to have dissipated into “I’m tired of talking about this. It looks like we did something, right? Let them figure it out for themselves.”

The White House Subcommittee on Forensic Science

The White House Subcommittee on Forensic Science is the incarnation of everything the NAS Committee warned against in their report.

The Subcommittee was chartered on July 9, 2009 and includes members from almost every federal agency you can think of:

• Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
• National Institute of Standards and Technology (NIST)
• Department of Commerce
• Department of Defense
• Department of Energy
• Department of Homeland Security
• Department of the Interior
• Department of Justice
• Department of Labor
• Department of the Treasury
• Environmental Protection Agency
• Intelligence Community
• National Institutes of Health
• National Science Foundation (NSF)
• Smithsonian Institution
• United States Postal Service

Yes, really. The Post Office. That bastion of forensic science. I am not making this up. Go to the website, see for yourself. That’s why I have all these links on these pages, people.

The charters for the Subcommittee on Forensic Science seem to claim that they are going to solve all the problems identified in the NAS Report on their own. This is exactly what the NAS Report warned Congress against in great detail, some of which I quoted above.

Also, the Subcommittee may not be trying to operate in complete secrecy, but they are doing a very good job of it. They do not appear to have published a single page of their activities or suggestions of what they are considering for all their grand undertakings laid out in their charters.

For a White House that came into office on promises of openness and transparency this is disturbing considering that we’re talking about forensic science, something that affects the lives and liberties of all Americans on the most fundamental level.

The White House Subcommittee on Forensic Science: Kenneth Melson

The subcommittee has two co-chairs. One of them is Kenneth Melson, a career prosecutor and acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The ATF is part of the DOJ. The same DOJ that the NAS Committee didn’t want anywhere near the reform of forensic science.

Kenneth Melson is also on the Board of ASCLD/LAB, the crime lab accrediting agency that I talked about in yesterday’s post that has had so many problems in ferreting out problems in the crime labs it accredits as safe and sound to be sending citizens to prison and death row. I could be wrong, but Kenneth Melson presumably had something to do with appointing Doreen Hudson to the ATF’s NIBIN Board.

Kenneth Melson is also a former president of the American Academy of Forensic Sciences (AAFS), which is a partner organization of the Consortium of Forensic Science Organizations (CFSO) along with ASCLD and ASCLD/LAB. As I mentioned yesterday, in ASCLD’s newsletter they stated

Chairman Pete Marone and the CFSO have made tremendous strides to influence the forensic reform legislation that is nearing introduction in Congress…

President-Elect Greg Matheson (California) will be representing ASCLD in future CFSO activities.

All this begs the question: how objective are Kenneth Melson and others on his hand-picked subcommittee in finding and implementing meaningful solutions to the very serious problems facing the forensic science community and, therefore, the citizens of the country whose rights are affected in such a fundamental way by those problems?

Same People, Same Outcomes

What we are seeing is the same people shuffling back and forth among the same organizations and nothing improving. They have had their chance to improve things and conditions have only gotten worse.

ASCLD has elected Greg Matheson to lead its organization and to help shape forensic reform legislation. One of Greg Matheson’s first actions after the publication of the Draft Legislation that appeared to offer ASCLD near unlimited power was to help disband an oversight task force created by the state legislature in his home state of California.

Kenneth Melson, like others, has shuttled from the leadership of one organization, AAFS, to another, ASCLD/LAB, and seems to blindly accept the credentials of others at face value.

I do not believe that everyone associated with ASCLD, ASCLD/LAB, AAFS, CFSO and similar organizations is corrupt or inept. But whether organizations like, for example, ASCLD are filled with people who are corrupt, incompetent, or ill-intentioned and have naturally elected one of their own to lead them or are filled with people who are so gullible that they have been infiltrated by those who mean their organization harm or some equally unacceptable excuse, it does not matter because the effect is the same: these organizations, like ASCLD, have lost their way and do not represent what they claim to be. And, just as crime labs do not go bad in weeks or months but over the course of years, this is not a recent development.

According to an article in the SF Weekly, five years ago then-president of ASCLD David Petersen was jailed for stealing cocaine from the crime lab where he worked in Minnesota.

ASCLD/LAB accreditation carries no real guidance or consequences. The problems at the New York State Police Trace Evidence Section and San Francisco’s Crime Lab cited in my post yesterday are just two examples of that. ASCLD/LAB accreditation relies on the self-reporting and good intentions of those who seek its rubber-stamp approval.

And there is no shortage of government officials and professional organization members (who are often one in the same) with questionable motives and backgrounds who are involved in this process. I’ve already mentioned a few. How about one more.

Michael Sheppo is the Director of the Office of Investigative and Forensic Sciences for the National Institute of Justice (NIJ) which is part of the DOJ. It is the NIJ that would be responsible for determining who would receive grant funding under the Draft Legislation. Michael Sheppo has quite an interesting history.

A ProPublica article on Michael Sheppo reports that while he was chief of the Illinois State Police crime lab under then-Governor Rod Blagojevich, Sheppo promised to get the DNA backlog down to zero. According to an audit conducted in March 2009, Sheppo’s lab told the governor’s office that the DNA backlog was zero in June 2005.

Auditors found that Sheppo’s lab was reporting numbers that were “inaccurate and misleading.” The backlog Sheppo’s lab reported did not include “thousands of rape kits and other DNA samples sent to outside labs.”

But that wasn’t the only problem with Michael Sheppo’s tenure at the Illinois State Police crime lab.

A no-bid contract to train DNA analysts was awarded to National Forensic Science Technology Center in Largo, Florida. Michael Sheppo sat on their board of directors. When two lab employees complained about the no-bid contract, the Illinois State Police launched an investigation against them and the two employees ended up with 30-day suspensions without pay.

The Illinois Inspector General ended up conducting an investigation into the whole affair and concluded that Michael Sheppo had a “glaring conflict of interest” in awarding the no-bid contract to the National Forensic Science Technology Center and that the suspension of the two employees was clearly retaliation for criticizing the way the contract had been awarded. The Inspector General ordered that the two employees be reimbursed for their lost pay.

The ProPublica article states that the Inspector General “also criticized Sheppo for ‘failing to provide complete and truthful responses’ during the investigation and recommended he be disciplined.” He never was. About a year later Michael Sheppo left the Illinois State Police crime lab to become the Director of the Office of Investigative and Forensic Sciences at NIJ.

We see the same trends and the same stories with the same people and the same organizations over and over and over again: silence critics at all costs, eliminate oversight and transparency, self-certify credentials, sweep ugly problems under the rug, disregard the rights of those caught in the web of the criminal justice system. And Congress is about to legislate that we not only allow them to continue to do these things but that it should be engraved in stone.

I urge you to make your voice heard about what you want to see happen with forensic reform.

In my next post I will go over Recommendations 6, 7, 8, and 9 from the NAS Report including how they have clearly not been met by existing organizations and how they can be used to help fix the problems in forensic science.

See all NAS posts.