Where That Forensic Reform Draft Legislation Came From

In my last post I asked forensic scientists if they knew who was speaking for them because it has a lot to do with what is going on right now with the NAS Report, the Draft Legislation, and what is being done and said in the world of forensic science. Most forensic scientists don’t know what is being done and said on their behalf, so that’s what I’m going to be talking about in my next few posts. I’m going to start by telling you how the Draft Legislation came to be.

The Draft Legislation was written after five roundtable meetings between two staff members of the Senate Judiciary Committee (staff members, not senators), some prosecutors, some cops, some organizations claiming to represent the forensic science community, and some organizations representing defense attorneys.

The organizations that were representing the forensic science community were members of the Consortium of Forensic Science Organizations (CFSO) which includes:

• American Academy of Forensic Sciences (AAFS)
• American Society of Crime Lab Directors (ASCLD)
• American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB)
• Forensic Quality Services (FQS)
• International Association for Identification (IAI)
• National Association of Medical Examiners (NAME)
• Society of Forensic Toxicologists and American Board of Toxicology (SOFT/ABT)

All these organizations had representatives present. Some acted more honorably than others. The CFSO is lead by its chair, Peter Marone. Peter Marone is the Director of the Virginia Department of Forensic Sciences and the ASCLD/LAB representative to the CFSO. Peter Marone was also a member of the NAS Committee that wrote the NAS Report, which he now says he disagrees with. That will be be discussed in another post. Remember what I said in my last post: tidal waves of double-speak and bullshit.

Also present at the meetings were Kenneth Melson and Mark Stolorow, co-chairs of the Subcommittee for Forensic Science.

Kenneth Melson is the Deputy Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) which is part of the Department of Justice. Ken Melson is also the Law Enforcement/Prosecutor Member of the Board of Directors of ASCLD/LAB, a past president of AAFS, current member of the Ethics Committee of the AAFS, and a career prosecutor. Ken Melson is also the guy who was asking “Where is the legislation?” during his presentation at IPES in a tone that suggested that the NAS Report had not crossed the minds of anyone on Capitol Hill. We’ll be coming back to that.

Mark Stolorow is the former Executive Director of Orchid Cellmark (the DNA testing laboratory) and the current Director of the National Institute of Standards and Technology (NIST) Office of Law Enforcement Standards.

The Good

In the roundtables, the IAI put forth what I would expect the IAI to put forth: the need for practitioner involvement in any new research or forensic reform. Basically, they echoed the same thing they said in their response to the NAS report: we welcome new research and support and we trust our science to stand on its own, just include us in whatever you are going to do.

FQS, for those of you who may not be aware of them, are a crime lab accrediting organization. Yes, there is someone out there besides ASCLD and ASCLD/LAB. FQS is the new kid on the block so they didn’t talk much.

SOFT/ABT didn’t say much, either, because they aren’t really under fire. When they did talk it was to point out to the others what “science” and “research” actually mean. You’ll see what I’m talking about in a minute.

The representatives from AAFS during this time were Thomas Bohan, then-President of AAFS, and sometimes Betty Layne DesPortes, a criminal defense attorney, then-member of the Executive Committee of AAFS, and current member of the Board of Directors of the AAFS. They did not do such a bad job of representing forensic science. In fact, they did such a not-so-bad job of it that they were often not informed of the dates and times of the meetings by the CFSO leadership. That’s what you get for not staying on message.

The Bad

Some of the things that ASCLD and ASCLD/LAB representatives said that made others in the room question their intellect, their motives, and their thin tether to reality were:

1. We’ve already done all the research; we just haven’t shown it to you. Our people have file cabinets full of research studies.
   Does anyone have a timeline on the Grand Opening of the Super Secret Forensic Science Research Vault that everyone has been holding back all these years? All you forensic scientists out there… your lab directors are claiming that they’ve given you lots of time and space to do research. Show me your papers!!!
2. Research scientists and academics shouldn’t be allowed to conduct research in forensic science. Only forensic science practitioners should be allowed to do it because research in forensic science is different from regular science and real scientists just wouldn’t understand how to do it.
   Wow. Way to make it sound like we don’t have anything to hide. Nothing screams “transparency” like “Only I know how to do it and it will only work if I do it in this room over here and then show you the results later.”
3. There are three ways to do peer review: traditional peer review the way it is done in the rest of the scientific world, presenting a paper at a conference, and through personal communication (AKA talking to your buddies).
   Again, WOW. You actually said that out loud. In a room full of people, including staffers from the Senate Judiciary Committee. Thinking that presenting a paper at a conference is “peer review” might almost be forgivable for someone who hadn’t had a real science class and was just a civil servant who wanted a warm seat and money and was acting like they represented scientists… oh, right.
   
   But thinking that just talking to someone is scientific peer review? THIS IS WHAT PEOPLE THINK FORENSIC SCIENTISTS BELIEVE NOW. Thanks, ASCLD and ASCLD/LAB. Bang up job. Can’t imagine why defense attorneys think we’re all a bunch of elitist lunatics who can say and do whatever we please, due process and the scientific method be damned.
4. ASCLD and ASCLD/LAB can fix everything. Just delegate everything to them.
   Ah, yes. The point of the whole exercise. Why ASCLD and ASCLD/LAB exist in the first place: to promote themselves. Because that’s who is doing all the work, right, everybody? It’s your lab director, right? That person you can speak freely to about all your concerns and who is tapped in to the needs of your unit, right? Right. This was the mantra throughout the roundtable discussions: turn everything over to ASCLD and ASCLD/LAB and they can fix everything. Seriously. That was the message: The lab directors don’t have enough money and power, so you need to legislate it. Only the lab directors know how to fix everything.

Thomas Bohan, then-President of AAFS, and the representative from SOFT tried to explain to the ASCLD and ASCLD/LAB representatives why their statements of blinding ignorance made no sense and why they were not understanding the concept of “research” and “peer review”, but the ASCLD and ASCLD/LAB reps weren’t having it. They stayed on message and insisted that they could fix everything, they just needed the money and the power to do so.

So, when the Draft Legislation came out, it said what ASCLD and ASCLD/LAB insisted that it needed to say:

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

The FSC, or the designated professional organization, will also determine testing, maintenance, and auditing requirements for accredited labs.

As I have said before, 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. In fact, the Draft Legislation is so obnoxious, one DC lawyer who practices in front of the Supreme Court thought that the Draft Legislation was the wishful suggestion of the AAFS, not something that would actually come from the Senate Judiciary Committee.

Anyone who was at the IPES meeting could see that there are prosecutors who are standing firm with the ASCLD and ASCLD/LAB contingent because it is in their best interest to do so. I believe one presenter instructed forensic scientists to “hide behind prosecutors.” Nice. Thanks, but no, thanks. I can represent myself and my science just fine. If you can’t win your own case, that’s not my problem. Never has been, never will be.

The Ugly

I have spoken to defense attorneys and representatives from their organizations who say, “The forensic community thinks…” or “Forensic scientists say…” and then they quote the crap that ASCLD and ASCLD/LAB representatives said in these roundtable discussions. This is the reality for forensic scientists. This is what your lab directors have done for you. This is why we are being attacked with this. The rest of the world knows it. You should, too.

Defense attorneys are waving the NAS Report and calling forensic science “junk science” with the backing of our own “leaders.” On top of their obnoxious behavior in front of defense attorneys, senate staffers, and others, our “leaders” are claiming that the NAS Report calls forensic science junk science and it must be fought tooth and nail.

In reality, the NAS Report calls for funding and resources for scientists (not ASCLD and ASCLD/LAB) to turn forensic science “into a mature field of multidisciplinary research and practice, founded on the systematic collection and analysis of relevant data.”

While it is true (as I have stated quite emphatically) that accreditation and certification are important to correcting the deficiencies of forensic science, ASCLD and ASCLD/LAB have clearly shown that they cannot handle this part of the process.

I’ll go into what each of these organizations have said and done about the NAS Report and the Draft Legislation in my next few posts, including the expectations that they had for the Draft Legislation, the plan that the Subcommittee for Forensic Science laid out at the IPES meeting, and why Kenneth Melson’s “Where’s the legislation?” comment was so ironic, in case you haven’t figured that out by now.

This actually turns into quite a soap opera, so stay tuned…