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The Unraveling, Part 3: The Barry Fisher Problem

Barry Fisher isn’t just a problem for the AAFS or FQS or the ASCLDs or the CFSO or any of the many, many other organizations that he is a part of. Barry Fisher is a great example of why forensic science is in the position it is in today: a bad leader who has been very effective at shifting blame or diverting attention from wrongdoing instead of addressing real problems. But I am including this post as part of the ASCLD et. al series because Barry Fisher is very much an ASCLD guy.

For those of you who don’t know him, Barry Fisher worked for the Los Angeles County Sheriff’s Office crime lab for almost 40 years, serving as their lab director from 1987 to 2009. Barry is a member and past-president of ASCLD, past chair of ASCLD/LAB, Distinguished Fellow and past-president of the AAFS, founding director of the National Forensic Science Technology Center (NFSTC), past-president of the International Association of Forensic Sciences, and Member-at-Large of Forensic Quality Services, Inc. (FQS; ASCLD/LAB’s “competitor”), just to name a few (a very few). Barry, by his own admission, also had something to do with the founding of the Consortium of Forensic Science Organizations (CFSO), but that’s not a real popular subject right now, for reasons we’ll get to in a moment.

When Barry found out that I was going to be writing about him he reached out to me and offered to talk, so I sent him some questions ahead of time and he sent me his answers. Then we spoke on the phone for about an hour and a half.

Our conversation was very friendly, except for the fact that Barry lied to me a lot. But, Barry Fisher is an ASCLD guy. And for those people, lying is like breathing.

California Crime Lab Review Task Force vs. South Pacific

One of the things that bothers me about Barry Fisher is that he wants to be involved in everything, but wants to avoid taking a stand on anything. Lots of platitudes and easy positions to take, but no substance. If you want to be a leader, be a damn leader.

An example of this is what Barry Fisher did while he was on the California Crime Lab Review Task Force.

On June 3, 2010 the Task Force voted to essentially shut itself down in favor of ostensibly waiting to see what the feds were going to do on forensic reform. This was just four weeks after the first draft of forensic reform legislation had been released that the ASCLDs thought would put them in charge of accreditation for the country.

The move was led by the crime lab directors on the panel who said at the time that they could police themselves just fine through ASCLD/LAB, thank you very much. The move was highly criticized and opposed by the non-ASCLDians on the panel.

Barry Fisher left the meeting before the vote was taken. The most important, controversial act of the Task Force, and Barry Fisher abdicates his responsibility. When I asked Barry why he left the meeting before the vote was taken, he said it was because he had tickets for a matinee performance at the Ahmanson Theater in Los Angeles.

I looked up the schedule of the Ahmanson Theater for June 3, 2010. South Pacific was playing. There was no matinee on June 3. The show started at 8 p.m. Barry Fisher didn’t want to take a stand, didn’t want to not be on the side of his ASCLD buddies, and lied to me about it.

Credit vs. Responsibility

Before the 2009 NAS Report came out, Barry Fisher took a lot of credit for himself and the CFSO for getting the legislation pushed through for the NAS committee in his “Legislative Corner” reports in the AAFS newsletter. Almost every “Legislative Corner” report mentioned the CFSO, often in the first sentence. The NAS Report was going to mean handouts for everyone. In the March 2007 AAFS Newsletter Barry Fisher even referred to the beginning of the NAS committee’s work as “our [the CFSO’s] project.”

However, in the months immediately preceding the NAS Report’s release, the tone of the “Legislative Corner” reports began to lean more toward setting expectations for a stormy NAS Report, likely with input from Pete Marone, the CFSO chair who sat on the NAS committee.

Once the NAS Report came out, mentions of the CFSO and actual legislative issues evaporated from Fisher’s “Legislative Corner” reports.

Barry Fisher told me that the roundtables that were held after the release of the NAS report were put together by the CFSO at the request of Senator Patrick Leahy (D-Vermont). It is Senator Leahy who introduced the Criminal Justice and Forensic Reform Act (S. 132; CJFSRA).

I said I assumed this request came from Leahy’s staff, not Leahy himself and asked Barry Fisher when that happened. Barry told me, “about a year ago.” I knew this wasn’t true, so I said this back to him a couple of times to make sure we were clear on the dates, and he talked it through.

Me: Early 2010? Just 5 or 6 months before that first draft came out?

Barry: The report was released in February 2009, so… about a year ago. Maybe a little less. That was when Leahy’s staff was putting together their draft.

He was sure.

Barry Fisher said Senator Leahy’s staff wanted the CFSO to put together the roundtables at that time because everyone was “screaming” for their own interests (“the Innocence Project”, etc.) and Leahy’s staff wanted the CFSO to get everyone on the same page.

This was a blatant lie. The CFSO started putting together roundtables to try to do damage control from the NAS Report in a press release on February 17, 2009, the day before the report was released. The CFSO had a couple of their own meetings in early 2009 with the supposed intention to issue a “consensus statement” during which they tried to tear down the report. Leahy’s staff scheduled their own meetings later centered around the different pieces of the legislation.

In fact, that initial press release is still up on the CFSO’s website. Though it will probably be taken down now, so here’s a screenshot (click to enlarge):

It was the CFSO who was trying to control the message with the roundtables: that the NAS Report could not possibly be implemented.

The CFSO and The CSI Effect

Another thing that becomes apparent reading through Barry Fisher’s “Legislative Corner” reports is that the CFSO appears to be a one-trick pony in terms of how it operates on Capitol Hill. Everything seems to revolve around playing up the Hollywood Hype and the flash and sizzle of the television shows and high-profile personalities associated with forensic science. And very, very little else. Which could explain why the CFSO has not been able to get much done in the 10-plus years they have been in operation.

Yes, there is plenty of funding for DNA, but that is mostly thanks to victim’s advocate groups, groups such as the Innocence Project who have demonstrated the effectiveness of DNA in exonerating the wrongfully convicted, and others who have numbers and data to back up their claims that DNA is a useful tool.

The reason there isn’t funding for anything else is because the CFSO has done such a horrible job representing the interests of forensic science on Capitol Hill.

In a book called Forensic Science Under Siege by Kelly Pyrek (Elsevier Academic Press, 2007), Pyrek interviewed Barry Fisher and Beth Lavach, the CFSO’s lobbyist, about their activities on Capitol Hill. One passage in the book states,

A turning point occurred for [the CFSO] when a legislator’s staff person leveled with Lavach. “This staff was very honest with us and said, “Listen, this is great stuff but what you are giving me is all anecdotal; I need facts and numbers.’ As a former staffer myself I knew that, so we did some internal surveys and looked at what we have done and where we were…”

I’ve done some lobbying in my time and I could have told you that. That’s basic lobbying 101. Keep It Simple, Stupid. Give them facts, numbers, things they can use to defend their position, not some smiling actor that shakes their hand. These are the most powerful people in the world. You think they care that an actor shows up and shakes their hand?

But what does the CFSO continue to do? Bring actors and people like Henry Lee to shake hands, have Forensic Science Tech Day where members of Congress and their staff can stop by and win prizes, and talk about Jan Burke, a crime writer who has latched onto the CFSO. Flash and sizzle and bullshit that offers no insight into what we want or need and gets nothing done.

The CFSO even had William Petersen, the guy from the TV show “CSI”, come testify before the Senate Judiciary Committee. According to Barry Fisher, this was the idea of Senator Jeff Sessions (R-Alabama). I personally doubt it because that is the kind of amateur move that the CFSO makes, not a Senator on the Judiciary Committee who already had an actual forensic scientist from his home state speaking at that hearing. I think it was just another opportunity wasted by the CFSO.

Not to mention the fact that the CFSO’s latest move has been to get Senator Richard Shelby’s (R-Alabama) office to send letters with absolutely false, ASCLD-serving information to the director of the FBI. Letters that Shelby’s office realized a little too late contained said false information and that they ended up pulling from the Senator’s website. Smooth, guys. Real smooth.

Now, let’s go through the questions I sent Barry Fisher ahead of time.

Why do you think the feds can’t dictate to state and local crime labs? (March/April 2010 AAFS newsletter, November 2008 AAFS Newsletter, and comments to California Watch)

Barry Fisher’s answer to this in our phone conversation was that it is a matter of states’ rights and that the feds can’t just tell states and local governments what to do unless they offer them money to go with it. His written response to the question was that the feds would have to put money on the table.

The silly thing was that Barry Fisher used the classic example of the feds using their fiscal power to dictate to states: when states faced losing their federal highway funds if they didn’t raise their drinking age to 21 under the National Minimum Drinking Age Act of 1984.

I don’t know if Barry Fisher has forgotten how his lab was funded, but here’s a short list of just some of the discretionary funding the LA County Sheriff’s crime lab received in the last few years of his time there:

  • 2004- $710,669- DOJ- Forensic Casework DNA Backlog Reduction Program Formula Grant
  • 2004- $562,217- DOJ- DNA Capacity Enhancement Program
  • 2005- $242,321- Forensic Casework Backlog Reduction Program
  • 2005- $593,232- DOJ- DNA Capacity Enhancement Program
  • 2005- $882,399- DOJ- Solving Cold Cases with DNA
  • 2006- $658,315- NIJ FY06 DNA Capacity Enhancement Program
  • 2006- $180,000- NIJ FY06 Forensic Casework DNA Backlog Reduction Program Formula Grant
  • 2007- $1,153,158- DOJ- FY 2007 Forensic DNA Backlog Reduction Program
  • 2008- $1,057,121- DOJ- FY 2008 Forensic DNA Backlog Reduction Program

Also, you have to consider that Los Angeles County depends on Federal Assistance for 22% of its annual budget (which would probably include at least part of this grant funding) and State Assistance for another 22% of its annual budget, which would inevitably include more federal funds passed through the state. Most, if not all, cities and counties (and states) are in a similar position.

Therefore, the feds can tell crime labs (and any other local government entity) what to do on just about any matter at any time simply by threatening to withhold funds, which is exactly what the new Criminal Justice and Forensic Reform Act (S. 132) proposes to do.

Considering the fact that Barry Fisher is the person who has spent so much time on the Hill with the Beth Lavach, CFSO’s lobbyist, and that he is supposed to be offering legislative updates and advice in his “Legislative Corner” reports to AAFS members, I wonder if he is really unaware of all this or if he just wants to make sure everyone else remains so.

Because approaching legislative staff with that kind of ignorance does not leave them with the impression that forensic science organizations know what the hell we are doing. And having quotes showing up in news articles spouting the same nonsense doesn’t help, either.

For example, Barry was quoted by Kendall Taggart in California Watch (which was subsequently picked up and reprinted elsewhere, as these things tend to be) as saying:

“The difficulty with federal legislation is that it doesn’t have a great deal of control over what goes on in the states,” said Fisher, the former crime lab director from L.A. “If they put some money on the table, which of course is questionable in these times, people might take on more oversight.”

“Otherwise,” he added, “there’s nothing the federal government can do. The key to anything happening here in California lies with the new governor, the new attorney general and the Legislature.”

This kind of irresponsible, uninformed nonsense coming from someone who has worked so hard to become so prominent in forensic science is embarrassing.

Next Question: Barry Fisher posted a comment on-line to an article by Peter Jamison of the SF Weekly regarding his coverage of Jill Spriggs’ comments to the North Carolina state legislature’s committee looking into the NC SBI. Barry’s Fisher’s comment was:

Sloppy fact gathering. Spriggs is president elect of ASCLD not president. ASCLD does not accredit crime labs. ASCLD/LAB, is a sister organization which is not run by ASCLD. ASCLD does not audit labs. ASCLD/LAB performs that function. ASCLD/LAB is a separate independent organization and Spriggs does not dictate it’s policies. Your reporting lacks objectivity and smacks of being a hatchet job.

My question to Barry Fisher was: While it is true that Spriggs is President-Elect, not President of ASCLD, what explanation do you have that ASCLD and ASCLD/LAB are “separate independent” organizations when they are run out of the same office (also the same office as ASCLD Consulting) and when Spriggs, the President-Elect of ASCLD, was sent to speak at a hearing where ASCLD/LAB is under fire, not ASCLD?

Barry Fisher really, really wanted to remain focused on the whole “the ASCLDs are separate and independent organizations” thing (not a direct quote). He didn’t seem to have any opinion on the validity of Spriggs’ statement. Barry Fisher did tell me that Jill Spriggs sent him a note thanking him for his comment on SF Weekly’s site and also saying that the Raleigh News & Observer (where the quote had originated) often misquoted her and others in ASCLD-related organizations.

Joe Neff with the News & Observer has recently posted the audio of Jill Spriggs’ statements at the legislative committee hearing in an article titled “Lab Directors Complain, Vaguely”. In the audio, you can hear that Spriggs actually sounds like she is not just grudgingly defending the NC SBI, but enthusiastically supporting the usage of the misleading terminology of their reports that sent innocent people to prison.

Peter Jamison of the SF Weekly also posted a link to Neff’s article with the audio of Spriggs’ comments in his own article responding to Spriggs’ and Barry Fisher’s criticism of his reporting.

Fisher’s response to my question was a fairly typical one for him and for ASCLDers in general: avoid topics of substance, focus on technicalities. So, Barry Fisher wanted to talk about how “it’s unfortunate that they are similarly named [ASCLD and ASCLD/LAB] and that they share an office out of convenience because it makes it look like something is going on but nothing is going on.” Yes. Boo hoo. Poor ASCLD. Let’s beat that dead horse for a minute.

ASCLD, ASCLD/LAB, and ASCLD Consulting share the same office, phone lines, and staff. They used non-existent addresses for ASCLD, ASCLD Consulting, and the CFSO for years. Barry Fisher says this was not an attempt to deceive, merely an attempt “to find a business model that’s workable.” A business model based on lying down to its core.

Remember, ASCLD Consulting was founded by filing business documents with the state of North Carolina with a fake address (same link in the last paragraph). One insider tells me that ASCLD/LAB does the yearly financial audits for ASCLD. But, still, Barry Fisher insists that they are completely separate, independent organizations. Oh, and that they are people of “honesty and integrity.” I’ll have to all-but-respectfully disagree there (1, 2, 3, 4, 5, and more to come).

The CFSO, by the way, has moved to Beth Lavach’s house.

Barry was only concerned that everybody is beating up on the poor ASCLDs because they are similarly named and share the same office and he thinks that looks bad but doesn’t mean anything. I’m not buying it. You buying it?

What is the basis for your argument in the November 2010 AAFS Newsletter that rape victims would be better served by looking at other types of evidence (firearms, fingerprints, etc.) rather than processing their rape kits?

Barry Fisher claims that this was just a poorly chosen example and he just meant that other areas of forensic science need funding, too. Could be. But I doubt it.

The FBI started considering letting contract DNA labs upload data to CODIS, the national DNA database, last year. The ASCLDs flipped out. They want to keep the power for themselves, even though it creates enormous secondary backlogs in crime labs, as attested to by ASCLD’s President’s own crime lab, Los Angeles Police Department crime lab, shortly before ASCLD issued a statement opposing the FBI’s move. The bigger the backlogs, the more money lab directors can ask for and the more they look like victims (albeit usually of their own poor management).

The FBI recently released their proposed revisions for CODIS which will allow contract labs and their employees to perform the technical reviews and upload data to CODIS, bypassing the need for crime lab personnel to do so (read: ASCLD lost the debate).

So, right before these new revisions are released for public comment, ASCLD member Barry Fisher writes in his “Legislative Corner” report that rape victims would be better served not by having their rape kits processed, but by putting more money toward firearms, trace analysis, and fingerprints. Oh, by the way, many labs now send their rape kits out to contract labs for processing, especially in cases of backlog reduction.

While it is true that many forensic scientists are sick of hearing about DNA and only DNA from the outside world, arguing that rape cases would be more easily solved by first doing something other than processing rape kits is, well, stupid and asking for trouble. There are some cases where it may be true that other techniques would be better suited, but it is, in general, bad policy- and excruciatingly offensive- to downplay the importance of rape kits.

The Last Question

The last question was about the CFSO and why Barry Fisher abruptly stopped talking about the CFSO after the NAS Report came out. Barry never really answered the question other than to say in his written response,

For now, there isn’t much to report. There are two things moving forward: Senator Leahy’s Bill and the White House Office of Science and Technology study (chaired by Ken Melson and Mark Stolorow).

Ah, yes. Please don’t let go of the last great hope of Ken and his Subcommittee.

At the end of the written answers to the questions I sent Barry Fisher, Barry said,

Incidentally, Amy, I really think we are on the same side of many of the issues you’ve written about. Our styles are quite different. My style is not to be overly harsh or critical with people involved in some of the issues you report on.

When we spoke on the phone, I told Barry Fisher that I felt that we do, indeed, express some of the same views, but we use those views to go to different places.

Someone I used to work with at LAPD- a very accomplished liar- once told me when we were talking about other people we worked with, particularly our supervisor, “What a really good liar knows is that a good lie has a little bit of the truth in it. That’s what makes people believe it.”