Independent probe of troubled military crime lab sought

McClatchy NewspapersMarch 30, 2011 

WASHINGTON — A U.S. senator has called for an independent investigation of the military's premier crime lab to ensure that innocent people weren't wrongfully convicted based on work by a discredited analyst.

Senator Charles Grassley, R-Iowa, said Wednesday that he'd ask the Defense Department's inspector general to scrutinize the work of former Army analyst Phillip Mills and determine whether the military mishandled problems at the Georgia-based U.S. Army Criminal Investigation Laboratory.

"Was key evidence destroyed even as Army supervisors were aware of serious problems in the lab?" Grassley asked. "Did supervisors cover up the alleged problems to spare themselves embarrassment, to the benefit or detriment of criminal defendants?"

McClatchy detailed mistakes made by Mills at the Army laboratory in a series of stories published earlier this month. The series revealed that Mills' errors undermined confidence in hundreds of criminal cases brought against military personnel across the country.

The McClatchy investigation also found that the lab, near Atlanta, was lax in supervising Mills, slow to re-examine his work and slipshod about informing defendants.

Even today, more than two years after the lab's internal review was completed, some defendants remain in the dark. McClatchy, for instance, found two defendants who'd been cleared by the military's retesting but were never informed.

Forensic and legal experts told McClatchy that they were shocked that the military hadn't detected Mills' mistakes earlier and then failed to uniformly tell defendants that evidence may have been tainted.

"The military should have done better in its oversight," said Michelle Lindo McCluer, the executive director of the nonprofit National Institute of Military Justice. "Since Mills had been there for a long time, he seems to have gotten a pass."

Instead of asking for a full-blown independent audit of the lab, the military asked the Defense Department's inspector general to narrowly review its internal affairs investigation of Mills. A spokesman with the inspector general's office said his office concluded the internal affairs inquiry had been conducted in a "thorough and corroborative" way.

The lab didn't involve the inspector general in its $1.4 million retesting of Mills' work and insisted on retaining control of that three-year internal effort.

"It can't be the lab investigating itself," said Barry Scheck, a co-director of the nonprofit Innocence Project. "That's astonishingly wrong in principle and foolish as a practical matter."

The chairman of the Senate Judiciary Committee, Democratic Sen. Patrick Leahy of Vermont, added that problems such as those uncovered at the Georgia-based U.S. Army Criminal Investigation Laboratory underscored the need for better oversight.

"All forensic evidence used in criminal investigations and prosecutions should be reliable and trustworthy," Leahy told McClatchy.

Mills hasn't been able to be reached for comment. The Army told McClatchy on Wednesday that it thinks the lab handled Mills' mistakes appropriately and "took numerous important steps when the information was discovered."

When similar scandals have erupted elsewhere, however, independent investigators have been brought in and their findings made public.

In North Carolina, two retired FBI managers reviewed a laboratory's serology unit after the nation's first innocence inquiry commission declared a Raleigh man innocent of a murder.

The managers found that the North Carolina lab withheld or misreported test results in 227 cases. Prosecutors have since released the names of affected defendants, and a nonprofit law firm is reviewing their cases.

"I was really struck by the contrast in how North Carolina handled it versus how the military handled it," said Chris Swecker, one of the retired managers. "North Carolina said: 'Let's get it out there to everybody who might have been impacted.' "

In Detroit, defense attorneys and prosecutors are involved in a similar notification effort more than two years after the city's crime lab was shut down because of problems with evidence testing.

In Dallas County, Texas, a series of DNA-related exonerations spurred the district attorney to collaborate with Scheck's Innocence Project to review hundreds of previously denied post-conviction requests for DNA testing.

Still, the Justice Department has done little to enforce a law that requires federally funded crime labs to set up outside auditing processes, the department's inspector general has found.

"Now that we've seen so many laboratories come under scrutiny, you'd think the message should be out there that these audits should be routine," said Brandon Garrett, a University of Virginia School of Law professor who's written on the subject. "But many labs have no procedures on how to handle this."

When problems emerge, labs often say their national accreditation demonstrates that an independent organization already is betting them.

The military, for one, said it brought in experts from North Carolina's troubled lab to audit the Army lab in 2005. The American Society of Crime Laboratory Directors/Laboratory Accreditation Board, which bills itself as the oldest such group in the world, re-accredited the lab in 2006 for another five years.

The board itself, though, is now under fire for failing to recognize problems in other labs across the country. The organization says such vetting isn't set up to catch wrongdoing by analysts, only to examine whether proper procedures are in place.

Experts say the military also mishandled getting the word out about Mills' mistakes.

Rather than individually notifying every defendant implicated by Mills' testimony and forensic work, the lab sent a general notice to each military branch's legal division. Military lawyers concluded that individual notices were required only if all the evidence was to be destroyed by the lab's retesting. By then, however, evidence in hundreds of cases tested by Mills already had been destroyed as a matter of policy. The military appears not to have informed those defendants.

Erin Murphy, a professor at New York University School of Law, said the military should have told all of them.

"I don't think you can rest on your laurels and say, 'We couldn't fix it, so we're not even going to ask if we made a mistake,' " said Murphy, who specializes in forensic evidence. "It's not a legally defensible position."

Other labs, too, have struggled with alerting defendants about mistakes.

The FBI's notification of defendants was inconsistent after the bureau discovered that a lab examiner falsely claimed to have performed certain control tests. Two years after the examiner's misconduct was discovered, investigators handling 42 different cases still hadn't received a letter, the department's inspector general concluded.

"Transparency is important in cases involving allegations of improper laboratory procedures to help ensure that deficiencies are known, exposed and apparent to everyone involved," the former inspector general, Glenn Fine, told McClatchy this week.

Grassley added that the way an agency responds to such allegations is "a measure of competence, integrity and accountability. In this case, it directly involves whether justice is served for dozens of individuals and victims."

(Joseph Neff of The News & Observer of Raleigh, N.C., contributed to this article.)

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