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The Unraveling, Part 4: ASCLD/LAB Keeps Digging

On February 18, 2011, ASCLD/LAB’s Board of Directors released a three page detailed position statement in full support of the North Carolina State Bureau of Investigation’s (NC SBI) report writing practices that sent innocent people to prison in the 1980s and 1990s. In their infinite wisdom, ASCLD/LAB’s Board of Directors has also written this position statement so that it endorses letting their accredited labs ignore their ASCLD/LAB-accredited testing protocols when those protocols aren’t convenient.

ASCLD/LAB’s Board of Directors

The position statement is signed “The ASCLD/LAB Board of Directors”, so I thought it was important to know who those people are and who they work for. They are:

  • Chair: Jay Jarvis, Georgia Bureau of Investigation
  • Vice Chair: Pamela Bordner, Oregon State Police
  • Secretary: Connie Swander, Michigan State Police
  • Treasurer: Billie Shumway, Florida Dept of Law Enforcement
  • Kenneth Melson, Bureau of Alcohol, Tobacco, and Firearms
  • Scott Oulton, Drug Enforcement Administration
  • Renee Romero, Washoe County Sheriff’s Office
  • David A. Barron, Virginia Department of Forensic Science
  • Michael Grubb, San Diego County Sheriff’s Crime Laboratory
  • Gregory Matheson, Los Angeles Police Department
  • Robin Cotton, Boston, MA (Public Member)

NC SBI’s Serology Reporting Format, Past and Present

To understand what it is that ASCLD/LAB’s Board of Directors is defending, it is important to understand the different iterations that the NC SBI used to state that preliminary (presumptive) tests were positive for blood but confirmatory tests were negative.

This is the language taken directly from the NC SBI protocols. These report formats and instructions of when they were to be used were:

1997 to 2001 (This is also the format used prior to 1997. However, the policy was unwritten prior to 1997.)

Report Format: Examination of [evidence items] revealed chemical indications for the presence of [blood or saliva].

To Be Used When: This phrase will be used when a presumptive [preliminary] test for blood or saliva yields a positive result, but confirmatory tests yield inconclusive results or the material is of limiting quantity to do additional testing.

It is important to note here that there is no mention of the word “negative”, only “inconclusive”. There are instructions for wording of reports when all tests (including presumptive tests) are “negative”, but when a presumptive test is positive, the wording in the instruction changes to “inconclusive” and there is no mention of a “negative” result in the confirmatory tests at all. This is true going forward in the revisions with the exception that the words “inconclusive or no reaction” do appear in some of the instructions until 2010.

This is not an oversight or a presumption that the analyst will fall back on the reporting format for the “negative” test results. An independent audit found that this is the reporting format that was used when a preliminary screening test was positive and a confirmatory test was negative. Hundreds of cases are under review and two men have been released from prison. That is discussed briefly below.

2001 to 2010

  1. Report Format: Examination of [evidence items] revealed chemical indications for the presence of [blood or saliva].

    To Be Used When: This phrase will be used when a presumptive [preliminary] test for blood or saliva yields a positive result. This statement alone will be used when there is no further testing to be performed on the possible blood stain.

  2. Report Format: Examination of [evidence items] revealed chemical indications for the presence of [blood or saliva]. Further testing failed to confirm the presence of blood.

    To Be Used When: This phrase will be used when a presumptive [preliminary] test for blood yields a positive result, but confirmatory tests yield inconclusive or no result, possibly because the material is of limiting quantity.

    Note [not included in report]- Obtaining a negative result, or no reaction on a Takayama test does not mean that blood isn’t present, only that you failed to confirm the presence of blood.

2010 to present

  1. Report Format: Examination of [evidence items] gave chemical indications for the presence of blood.

    To Be Used When: This phrase will be used when a presumptive test for blood yields a positive result and no further body fluid testing is performed.

  2. Report Format: Examination of [evidence items] gave chemical indications for the presence of blood. Further testing failed to reveal reactions consistent with the presence of human blood.

    To Be Used When: This phrase will be used when a presumptive test for blood yields a positive result, but confirmatory tests yield inconclusive or negative results because the material is of limiting quantity, or is not of human origin.

One thing you can see from the phrasing in these excerpts is that, in 1997 and even today, the NC SBI has never used any language to indicate that they are talking about preliminary tests when they say “Examination of [evidence items] gave chemical indications for the presence of blood.” They never have. This becomes an issue with ASCLD/LAB’s misleading position statement.

ASCLD/LAB’s Position Statement

The position statement starts out by saying

It has been ASCLD/LAB’s long standing practice not to publicly comment on issues related to laboratories which it accredits.

If that is, indeed, their policy, I’d like to know when that began. It certainly hasn’t been true for the NC SBI, San Francisco, Baltimore, Nassau County, Houston, Ripon, Pennsylvania, and others.

The statement goes on to say that, because of allegations about some of their accredited labs,

many of [ASCLD/LAB’s] accredited laboratories have encouraged ASCLD/LAB to issue a response.

Okey dokey.

The NC SBI is never named specifically, but it is obvious that it is their report writing issue that the position statement is addressing. The position statement then talks about ASCLD/LAB’s “investigation” into the reporting problem (emphasis in original):

ASCLD/LAB has investigated an allegation that laboratory reports issued by forensic serologists in one of our accredited laboratories are inaccurate, misleading and intended to hide exculpatory information.

The results of ASCLD/LAB’s investigation show:

  1. Reports and case records reviewed by ASCLD/LAB, concerning the results of screening tests for blood performed by forensic serologists in that laboratory during the 1980’s and 1990’s, were supported by the examination documentation generated by the analysts.
  2. In each inspection of that laboratory, conducted during the 1980’s and 90’s, the inspection team included one or more competent forensic biologists from outside of that state who reviewed reports containing the results of blood screening tests and found the reports to be in compliance with accreditation standards.
  3. No evidence was found in the reviewed reports or case documentation that indicates any attempt to conceal the results of blood testing performed by analysts of that laboratory.
  4. The wording of reports issued for blood screening test results was consistent with the wording commonly used by forensic laboratories in the United States during that era.
  5. It was well known to forensic serologists that the Takayama test, which was widely used as a confirmatory test for blood, often and for a variety of reasons, produced false negative results.
  6. While a positive Takayama test result confirmed the presence of blood, a negative Takayama test did not prove the absence of blood.
  7. The various wording formats such as “screening test indicated the presence of blood” which were commonly used when positive screening tests were followed by a negative Takayama test, were believed to convey to a reader an unconfirmed indication of the presence of blood.

First, this position statement is misleading. The report format at the NC SBI, according to their protocol, has never included any language to indicate that the tests they were referring to were screening tests or preliminary tests in any way at all. The suggestion by ASCLD/LAB’s Board of Directors that the word “indication” is meant to convey that the tests were unconfirmed is disingenuous.

It is also disingenuous that ASCLD/LAB’s Board of Directors are trying to place all the problems in the 1980s and 1990s when the reporting formats were still being used at least until the time of the reporting in the Raleigh News & Observer in the fall of 2010.

Second, there are a couple of very critical problems with the logic that ASCLD/LAB is trying to apply here in their position statement.

The first fatal flaw in their logic is that the ASCLD/LAB position statement tries to take the same approach that ASCLD president-elect Jill Spriggs, head of the California Department of Justice crime lab, did in her testimony before the North Carolina State Legislature Committee on the topic a few months ago: the Takayama crystal test is so insensitive that it could give false negatives, so a negative didn’t really prove the absence of blood.

While a negative Takayama test may not prove the absence of blood, a positive preliminary test does not prove the presence of blood. Therefore, releasing a report that only mentions the positive preliminary screening without mentioning the negative confirmatory test is still abhorrent.

An independent audit conducted by two former FBI supervisors (not conducted by ASCLD/LAB) said of the reporting format:

This reporting method does not just omit the results of the subsequent tests. It misstates the facts and leads the reader to believe no more tests were done.

The second fatal flaw is that ASCLD/LAB is taking the very public position that it is perfectly alright for their accredited labs to ignore their ASCLD/LAB-accredited testing protocols when those protocols don’t give the desired answers in an investigation.

There was a protocol. That protocol included a preliminary screening test and a confirmatory test. There was a reason the NC SBI had a confirmatory test: because a preliminary test in any forensic field is not conclusive. And, yet, for years the NC SBI had an unwritten policy to send out reports that did not follow their own testing protocol.

Then, in 1997, the NC SBI made that unwritten policy the written policy. ASCLD/LAB’s Board of Directors say in their position statement that this policy of choosing to disregard their own testing protocols when the answers given were not going in the direction of the investigation was:

in compliance with accreditation standards.

And ASCLD/LAB is still defending that practice to the detriment of the general public which is supposed to be served by the NC SBI and other crime labs.

If the NC SBI (or any other lab) was so concerned about the insensitivity of the Takayama test and if they were truly concerned about making sure they were fully informing the prosecutors, defense attorneys, judges, and juries so that the evidence was being applied correctly to the case, they could have included the same language in their reports that is in their protocol:

Note- Obtaining a negative result, or no reaction on a Takayama test does not mean that blood isn’t present, only that you failed to confirm the presence of blood.

It was a report written according to the NC SBI policy (during the years before it was written protocol) that provided the only physical evidence that sent Greg Taylor to prison for 17 years. Taylor was the first person exonerated by the North Carolina Innocence Inquiry Commission, a new state agency set up to investigate and evaluate post-conviction claims of factual innocence.

The independent audit conducted by the two former FBI supervisors found that 229 other cases were affected by similar problems.

When one of those cases was reviewed in court recently, Derrick Allen was released after being imprisoned for 12 years when it was discovered that the reports in his case had the same misleading language and hid the fact that the confirmatory tests (yes- plural, meaning more than one) for blood were negative.

Yet, it is still ASCLD/LAB’s position that this report format was (emphasis in original):

believed to convey to a reader an unconfirmed indication of the presence of blood.

The NC SBI took no other action to make sure that prosecutors, defense attorneys, judges, and juries understood that these were preliminary tests, not confirmatory tests. Nor did they explain that there were other substances that could also test positive under these preliminary testing conditions. There were no qualifying statements that would “convey to a reader an unconfirmed indication of the presence of blood.” No reasonable person could think that they would.

What is most outrageous- beyond supporting the misleading reports, beyond even supporting labs actively ignoring their ASCLD/LAB-accredited protocols- is that ASCLD/LAB is taking this public position knowing that this practice has put innocent people in prison. This is not a hypothetical at this point.

As if to flaunt all the hypocrisy they have just shown in the rest of their position statement, the ASCLD/LAB Board of Directors ends the statement with this paragraph:

Mistakes can and do occur in every profession including forensic science. However mistakes are far less likely to occur and much more likely to be detected when laboratories operate under a quality system as is required for ASCLD/LAB accreditation and when laboratories rigorously adhere to the accreditation standards.

Just when you think they can’t make it any worse, they do.

NC SBI-ASCLD/LAB-White House Subcommittee Connections

Now that you understand the problems with the reporting format of the NC SBI and all the trouble it has caused, I can introduce you to the guy who wrote it and explain why the ASCLD/LAB Board of Directors is fighting so hard to defend this thing.

Mark Nelson worked for the NC SBI for about 30 years. One of the things he did was write the policy and protocol that included the reporting format we’ve been talking about here. The independent audit that I’ve mentioned included interviewing Nelson. Nelson did not explain why he wrote the protocol this way.

Mark Nelson now works for the National Institute of Justice under Michael Sheppo as the Senior Program Manager for the DNA Backlog Reduction and Crime Lab Management. That means he decides where grant money goes for crime labs around the country.

And Mark Nelson sits on the White House Subcommittee on Forensic Science which is chaired by Ken Melson. Ken Melson has been on ASCLD/LAB’s Board of Directors since 1997.

Next time I’ll start talking in more detail about who else is on the roster of Ken Melson’s White House Subcommittee on Forensic Science.