Beyond Bad Apples Analyzing The Role of Forensic Science in Wrongful Convictions

THOMPSON ARTICLE FINAL MACRO
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BEYOND BAD APPLES: ANALYZING THE ROLE OF FORENSIC SCIENCE IN WRONGFUL CONVICTIONS
William C. Thompson* Forensic science occupies a paradoxical position in the study of wrongful convictionsit is both part of the solution and part of the problem. DNA evidence, to take a prominent example, has helped to exonerate over 200 wrongfully convicted men.1 Yet two of those men were falsely convicted in the first place based, in part, on faulty DNA evidence.2 Faulty forensics of other types played a role in the false conviction of many others.3 While forensic science is celebrated in television dramas as an objective pathway to truth, a startling feature of real forensic science is how often it runs amuck, producing evidence that is questionable, erroneous, and in some instances fraudulent.4 To gain a full understanding of the problem
* Professor and Chair, Department of Criminology, Law & Society, University of California, Irvine; J.D. University of California, Berkeley, 1982; Ph.D. Stanford University, 1984. 1. A comprehensive list of cases in which convicted individuals were exonerated with DNA evidence is maintained by the Innocence Project, available at http://www.innocenceproject.org (showing 215 exonerated as of March 31, 2008). 2. The two DNA exonerees who were initially incriminated by DNA evidence are Timothy Durham and Josiah Sutton. See id. For information on Durhams case, see William C. Thompson, Franco Taroni, & Colin Aitken, How the Probability of a False Positive Affects the Value of DNA Evidence, 48(1) J. FORENSIC SCI. 47, 48 (2003). Suttons case is discussed infra. 3. Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, SCIENCE, Aug. 5, 2005, at 892, 892, available at http://ssrn.com/abstract= 962968 (last visited Nov. 18, 2008); Brandon L. Garrett, Judging Innocence, 100 COLUM. L. REV. 101, 107 (2007). 4. See Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. REV. 163, 165-69 (2007); see also JOHN F. KELLY & PHILLIP K. WEARNE, TAINTING EVIDENCE: INSIDE THE SCANDALS AT THE F.B.I. CRIME LAB 9-35 (1998); see also Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 VA. J. SOC. POLY & L. 439, 439-41 (1997); see also Craig M. Cooley, Reforming the Forensic Science Community to Avert the Ultimate Injustice, 15 STAN. L. & POLY REV. 381, 395-97 (2004); see also William C. Thompson, Tarnish on the Gold Standard: Understanding Recent Problems In Forensic DNA Testing, THE CHAMPION, Jan./Feb. 2006, at 10, 10-12 [hereinafter Tarnish]; see also REPORT OF THE KAUFMAN COMMISSION ON PROCEEDINGS INVOLVING GUY PAUL MORIN, available at http://www.attorneygeneral.jus.gov.on.ca/english/
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of wrongful convictions, we must have an understanding of how and why forensic science can go awry. Public discourse on this issue has construed forensic science foul-ups as the product of individual intellectual and moral failure.5 According to the standard account, the problem is limited to a few bad apples, and the solution follows from that analysisthe bad apples need to be identified and either re-trained or replaced. In this context, bad apples come in three flavors: careless, incompetent, and malicious. The problem with the bad apples metaphor is that it lacks explanatory power. Saying that bad forensic science is the product of bad forensic scientists is a bit like saying that crime is caused by criminalsthe statement is undeniably true but does little to advance understanding of the underlying problem. Individualistic explanations channel our thinking toward individualistic solutions (replacing the bad apples) and divert attention from broader institutional, structural, and cultural factors that may contribute to laboratory foul-ups. We tend to think that replacing the bad apples solves the underlying problem without considering why we have so many bad apples in the first place, why we find more bad apples in some environments than others, and why the apples repeatedly seem to go bad in the same familiar ways.6
about/pubs/morin/ (summarizing the Canadian scandal surrounding the false conviction of Guy Paul Morin) (last visited Nov. 18, 2008); see also Scientific Testimony: An Online Journal, http://www.scientific.org (last visited Nov. 18, 2008); see also Forensic Fraud, http://www.corpus-delicti.com/forensic_ fraud.html (archiving news articles on fraudulent forensic science) (last visited Nov. 18, 2008); see also Junk Science in the Courtroom, available at http://www.truthinjustice.org/junk.htm (providing materials on forensic error and fraud) (last visited Nov. 18, 2008). 5. Individual incompetence and misconduct are common themes in press coverage of recent crime laboratory scandals. See, e.g., press coverage of recent crime laboratory scandals in Houston (The Houston Chronicle maintains an archive of articles about the scandalously bad work of the Houston Police Department Crime Laboratory, available at www.chron.com/content/ chronicle/special/03/crimelab/index.html (last visited Nov. 18, 2008); see, e.g., Lise Olsen & Roma Khanna, DNA Lab Analysts Unqualified: Review Finds Education, Training Lacking, HOUSTON CHRON., Sept. 7, 2003, available at http://www.chron.com/CDA/archives/archive.mpl? id=2003_3687562 (last visited Nov. 18, 2008)); Virginia (The Virginian-Pilot and the Richmond Times-Dispatch have published a series of news articles and editorials about DNA testing problems in the Virginia State Division of Forensic Sciences, see, e.g., Confusion Over DNA a Threat to Justice, VIRGINIAN-PILOT, Aug. 29, 2005, available at 2005 WLNR 13618270; Alarming Indifference From Crime Lab Boss, VIRGINIAN-PILOT, May 10, 2005, available at 2005 WLNR 7419248); Washington (see news stories collected, Seattle Post-Intelligencer, available at http://seattlepi.nwsource.com/specials/crimelab/ (last visited Nov. 18, 2008)); and North Carolina (see stories collected, Crime and Science available at http://crimeandscience.journalnow.com (last visited Nov. 18, 2008); see also Phoebe Zerwick, State Crime Lab is Faulted: Lawyers Group Calls for Probe, Cites DNA Errors in Three Cases, WINSTON-SALEM JOURNAL, Jul. 20, 2005, at A1). 6. Consider, for example, the situation in Houston, where the DNA/Serology unit of the
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The most sophisticated analyses of crime laboratory failure have looked beyond individual examiners and focused on laboratory managers. For example, the reports of Michael Bromwich and his colleagues on problems in the FBI laboratorys explosives unit in the 1990s7 and the Houston Police Department Crime Laboratory,8 have assigned the underlying cause to management failure. But the analysis of managers falls into the familiar bad apple motif. There is little discussion of institutional or social factors that might foster management failure or explain the particular forms that such failures repeatedly take. The focus instead is on solving the problem by simply replacing or rehabilitating the bad managerial apples. In this article I will argue that crime laboratory failures can be examined more productively through the lens of organizational theory. A useful model is provided by sociologists, such as Charles Perrow9 and Diane Vaughan,10 who have analyzed the failure of major technical systems, such as the Three Mile Island nuclear accident and the crash of the space shuttle Challenger. Their work focuses on institutional, social and cultural factors that shape human behavior and on the organizational environment in which it occurs.11 They treat individual errors, misjudgments, and even misconduct as expected, normal events likely to
Houston Police Department Crime Laboratory was closed in December 2002 due to a serious scandal involving shoddy testing and mis-statement of findings. The entire staff of the DNA/Serology unit was replaced and the unit re-opened in 2006, see Roma Khanna & Mike Glenn, Crime Labs DNA Section, Shut in 02, Will Reopen, HOUSTON CHRON., June 21, 2006, available at http://www.chron.com/CDA/archives/archive.mpl?id=2006_4139285 (last visited Nov. 18, 2008). In 2008, however, the unit was again shut down and the new supervisor of the unit was forced to resign in the face of allegations that she had helped analysts cheat on mandatory proficiency tests. Rosanna Ruiz & Robert Crowe, HPD Again Shuts Down Crime Labs DNA Unit: Move Follows Resignation of Divisions Leader in Cheating Probe, HOUSTON CHRON., Jan. 26, 2008, available at http://www.chron.com/CDA/archives/archive.mpl?id=2008_4501987 (last visited Nov. 18, 2008). I do not believe it is simply a coincidence that bad apples keep appearing in this lab. I will argue that there are systemic factors in the Houston legal system that are conducive to such problems. 7. OFFICE OF THE INSPECTOR GEN., DEPARTMENT OF JUSTICE, THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVESRELATED AND OTHER CASES (APRIL 1997) (1997), available at http://www.usdoj.gov/oig/special/ 9704a/ (outlining the investigation into the FBI crime lab scandal) (last visited Nov. 18, 2008). 8. MICHAEL BROMWICH, FINAL REPORT OF THE INDEPENDENT INVESTIGATOR FOR THE HOUSTON POLICE DEPARTMENT CRIME LABORATORY AND PROPERTY ROOM (2007), available at http://www.hpdlabinvestigation.org/reports/070613report.pdf (discussing the Houston crime laboratory scandal) [hereinafter BROMWICH] (last visited Nov. 18, 2008). 9. CHARLES PERROW, NORMAL ACCIDENTS: LIVING WITH HIGH-RISK TECHNOLOGIES 7, 12, 15-31 (1984). 10. DIANE VAUGHAN, THE CHALLENGER LAUNCH DECISION: RISKY TECHNOLOGY, CULTURE, AND DEVIANCE AT NASA 1-7 (1996). 11. See PERROW, supra note 9, at 3-5, 7-10; VAUGHAN, supra note 10, at 402-05.
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occur in any organization.12 They focus instead on factors that make these events more common and on the institutional and organizational circumstances under which such ordinary human behaviors may result in catastrophe. The merits of such a systemic analysis are most easily illustrated with an example. Suppose we want to address the problem of fatal automobile accidents. If we take the bad apple approach we will wait until accidents occur, identify the bad drivers who caused the accidents (through carelessness, incompetence, or misbehavior) and seek to eliminate those bad drivers by either revoking their drivers licenses or forcing them to undergo retraining. But this individualistic approach has obvious limitations. We would do better to take it as given that people will occasionally drive in a careless or even dangerous manner and focus instead on systemic ways to make those behaviors less likely to occur and less likely to lead to serious consequences when they do occur. Safe highway design, systems to discourage dangerous driving, safe automobile design, safety measures like seat belts and airbags, and adequate emergency services are likely to do far more to reduce the frequency of fatal accidents than a system that focuses solely on eliminating bad drivers. In this article, I will offer some preliminary ideas about how a systemic analysis might be applied to studying the role of forensic science in wrongful convictions. I do not offer a complete systemic analysis, merely some preliminary ideas that will illustrate ways to move beyond bad apples to a more productive and helpful analysis of the problem.
I.
CRIMINAL JUSTICE THROUGH THE LENS OF ORGANIZATIONAL THEORY
Let us begin by introducing some terminology of organizational theory and applying it to the criminal justice system. The word system is used to refer to a complex organization composed of constituent elements often called sub-systems, which in turn are composed of smaller elements called parts or units. So we might say that the American criminal justice system is composed of sub-systemsthe police, the district attorneys office, defense lawyers, the courts, the department of corrections. Government forensic laboratories are typically parts of the police sub-system, although in some jurisdictions they are parts of the district attorneys office. Forensic laboratories are in turn composed of units or sections, such as a DNA/Serology unit or a latent print section. Things that go wrong within a particular unit are called incidents. I
12. See PERROW, supra note 9, at 5, 23; VAUGHAN, supra note 10, at 409-14.
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will use that term to refer to undesirable events. In a forensic laboratory incidents can be unintentional mistakes, such as accidental crosscontamination of samples, mislabeling of samples, or misinterpretation of test results; incidents can also be intentional actions, such as choosing to ignore failed controls, failing to report inconvenient results, or overstating findings. I will use the term unit failure to refer to situations in which the output of a unit is false or seriously misleading. If a forensic laboratory issues a report falsely linking a suspect to a crime, there has been a unit failure of the lab. Although incidents are undesirable and create a potential for further problems, they do not necessarily lead to unit failure in every case. Correspondingly, while unit failure is usually precipitated by one or more incidents, it could conceivably occur without incidents, as when a laboratory report is wrong even though everyone in the laboratory performed in the expected manner. The terms incident and unit failure can also be applied to other units of the criminal justice system. Consider the unit of the police department responsible for conducting line-ups for identification of suspects. If the police inappropriately suggested that the eyewitness focus on a particular person it would be an incident. If the eyewitness identified the wrong person it would be a unit failure. Here, also, an incident can occur without a unit failure, and vice-versa, although incidents may make unit failure more likely and unit failure is often precipitated by an incident. The term system failure is reserved for situations in which the system as a whole fails with catastrophic results. For present purposes, I will treat a wrongful conviction as a system failure. System failure usually requires the failure of one or more units, although failure of any single unit will not necessarily lead to system failure because the criminal justice system, like most complex systems, has what organizational theorists call redundancy. There are many component parts to the system and in most cases the separate parts are thought to be loosely-coupledi.e., largely independent of one another, such that the failure of one unit will not necessarily lead to failure of the entire system. Suppose, for example, that an incident in a forensic laboratory, let us say misinterpretation of a DNA test result, leads to a unit failurethe laboratory issues a report that mistakenly links a particular suspect to a crime. This unit failure will not necessarily lead to system failure (a false conviction) because, if the system is working properly, there are many opportunities for the error to be caught or corrected. The police or prosecutors may realize that it was impossible for the accused to have committed the crime; the defense lawyer may hire an expert who discovers the mistake; the jury may be unconvinced of the guilt of the accused due to a strong alibi, good character evidence, or the absence
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of other incriminating evidence. Even after conviction there may be opportunities to catch and correct such a system failure. With so much redundancy, one might argue (as many have) that in the American system of criminal justice false convictions are virtually impossible.13 A false conviction should only occur if there are failures on multiple levels all in the same case, which should be extremely unlikely if the system is operating as intended. Organizational theorists generally agree in principle that system failure should be extraordinarily rare in a well-designed and loosely-coupled system. But these theorists are quick to point out flaws in the argument that redundancy necessarily equals safety. There are many instances in which large technical systems carefully designed to be fail-safe have nevertheless failed with disastrous consequences. Sometimes the problem is that the supposedly redundant components of the system are not really redundant. An unexpected event might cause several components to fail simultaneously, a situation often called common mode failure. In other instances the various components of a complex system interact in unexpected and unintended ways, such that the failure of one component changes the operation of the others, creating a cascade of further problems. Components that were thought to be looselycoupled (independent) turn out instead to be tightly-coupled (linked) in ways that precipitate simultaneous failure and lead to a system failure. As Charles Perrow explained the process:
The argument is basically very simple. We start with a plant, airplane, ship, biology laboratory, or other setting with lots of components (parts, procedures, operators). Then we need two or more failures among components that interact in some unexpected way. No one dreamed that when X failed Y would also be out of order and the two failures would interact so as to both start a fire and silence the fire alarm. Furthermore, no one can figure out the interaction at the time and thus know what to do. 14 The problem is just something that never occurred to the designers.
Perrow calls such events system accidents.15 Because he sees them as inevitable features of complex systems, he also calls them normal accidents.16 Although the potential for such accidents always exists, their frequency
13. See, e.g., United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (where Judge Learned Hand, noting the many procedural protections for the accused, famously observed: Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream); accord Herrera v. Collins, 506 U.S. 390, 420 (1993) (OConnor, J., concurring) (arguing that the U.S. Constitution provides unparalleled protections against convicting the innocent). 14. PERROW, supra note 9, at 4. 15. Id. at 5. 16. Id.
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can be minimized, organizational theorists argue, by intelligent analysis of systems.17 It is crucial to understand the systemic factors that lead to failures. The analysis must get beyond blaming bad apples and consider the operation of the system as a whole. What incidents might cause the failure of units? What measures might be put in place to minimize such incidents, or reduce the chances that they will lead to unit failure, or catch the unit failures when they occur? How can the independence of different units be maintained in order to reduce the likelihood of common mode failures and system accidents? These questions are more likely to lead to improvements than questions about which particular individuals in the system are the bad apples.
II. JOSIAH SUTTONS CASE AS A NORMAL ACCIDENT To illustrate how the perspective of organizational theory can assist in understanding the problem of wrongful convictions, lets take a close look at a system failure: the wrongful conviction of a young Houston man named Josiah Sutton.18 Suttons nightmare began on October 30, 1998, when a woman mistakenly identified him as one of two men who had raped her.19 The sixteen-year-old Sutton demanded to have a DNA testconfident that it would prove his innocencebut the Houston Police Department Crime Laboratory (HPDCL) reported finding Suttons DNA pattern in semen samples taken from the victim.20 After a short trial, Sutton was convicted and sentenced to twenty-five years in prison for a crime he did not commit.21 Suttons case conforms to Charles Perrows suggestion that a system failure requires the failure of two or more system components. One failure was the erroneous eyewitness identification; the second failure was an
17. See id. at 10. 18. Accounts of Suttons case can be found in BROMWICH, supra note 8, at 204-19; SIMON LEVAY, WHEN SCIENCE GOES WRONG: TWELVE TALES FROM THE DARK SIDE OF DISCOVERY 181-98 (2008); William C. Thompson, Houston Has a Problem: Bad DNA Evidence Sent the Wrong Man to Prison at Least Once. How Many More are There and What Can be Done About it?, CORNERSTONE, May 21, 2005, at 16; and at the Innocence Projects website, available at http://www.innocenceproject.org/Content/268.php (last visited Nov. 18, 2008). Some of the descriptions of the case provided in this section are drawn from a report on the case that I prepared for television station KHOU. William C. Thompson, Review of DNA Evidence in State of Texas v. Josiah Sutton, Feb. 6, 2003, available at http://www.scientific.org/archive/Thompson%20 Report.PDF (last visited Nov. 18, 2008). 19. BROMWICH, supra note 8, at 205. 20. Id. at 206-07. 21. Id. at 214.
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incorrect and misleading report from the crime laboratory. There is also evidence (consistent with Perrows expectations) of an interaction between the two failures in Suttons case. Although the jury probably saw the eyewitness identification and the DNA evidence as independent pieces of evidence, a close look at the case suggests they may have been more tightlycoupled than one might expect. After a problematic initial identification during a suggestive show-up, the eyewitness testified confidently against Sutton at trial. At that point, however, she had been told that DNA tests incriminated Sutton, a fact which undoubtedly bolstered her confidence and may have led her to suppress any doubts she otherwise might have felt. Similarly, the analyst who conducted the DNA testing was aware that the victim had identified Sutton as one of the rapists. This knowledge may well have induced a confirmatory bias that led the analyst to focus on evidence supporting Suttons guilt, while ignoring and even suppressing facts inconsistent with that theory.22 While focusing on portions of the testing that supported Suttons guilt, the analyst apparently failed to recognize that, when taken as a whole, the evidence pointed powerfully in the opposite direction. Confirmatory bias may also explain efforts by the prosecutor and the DNA analyst to avoid disclosing facts that were inconsistent with the analysts mistaken interpretation. The wrongful conviction thus resulted, in part, from a system accident: two pieces of evidence that appeared to be independent and therefore mutually confirmatory were, in reality, connected in a manner that led to simultaneous and mutually reinforcing errorserrors that, for various reasons, were not detected by the normal testing mechanisms of the adversary process. This analysis, I will argue, leads to far more interesting and productive suggestions for system reform than a search for bad apples.
A. The Eyewitness Identification The trial record reveals the following facts: on October 25, 1998, the victim was abducted at gun point from the parking lot of her apartment by two men who forced her into her vehicle, a Ford Expedition.23 The two men drove her around the city while taking turns forcing her to perform oral
22. For discussion of confirmatory bias and observer effects, see D. Michael Risinger, Michael J. Saks, William C. Thompson & Robert Rosenthal, The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 CAL. L. REV. 1, 9, 11, 19 (2002) (discussing how an examiner can be influenced by outside factors). 23. Rep. R. vol. 3 at 20 (Trial Court Cause No. 800450 In the District Court of Harris County, Texas), July 6, 1999; see also BROMWICH, supra note 8, at 204-05.
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copulation and sexual intercourse in a back seat.24 She could not see the mens faces clearly.25 One man wore a baseball cap with the bill turned to the side; the other man wore a wool cap.26 On the night of the assault the victim told police the men were young black males about 5 feet 7 inches tall.27 She said the one with the baseball cap weighed about 135 lbs. and the one with the wool cap weighed even less.28 The victim herself is 5 feet 10 inches tall and weighed over 200 lbs.29 Hence, her description indicated that each of the attackers was considerably smaller than herself. The victim testified that she was sufficiently traumatized by the attack that she could not return to her apartment for several days.30 She stayed in a hotel for four nights and returned to her apartment five days after the attack only to retrieve some belongings.31 While driving near her apartment she noticed three young black men walking on the street. One was wearing a baseball cap with the bill turned to the side; another was wearing a wool cap.32 The victim immediately contacted police and reported seeing men who looked like her assailants. She noted that the man with the wool cap had a distinctive way of walking that she said she recognized as that of the assailant who had worn a wool cap.33 The police detained Josiah Sutton, who was wearing a baseball cap, Gregory Adams, who was wearing a wool cap, and a third man.34 The police placed each of these suspects in the back seat of a patrol car and drove them to the parking lot of a police substation. The men remained inside the patrol cars, wearing their hats, while Ms. Stewart observed them from inside her own vehicle, which was parked approximately 10 feet away.35 She identified Sutton and Adams as her assailants and they were arrested.36 Several aspects of this identification procedure stand out as problematic. It was essentially a show-up, a suggestive procedure with a
24. Rep. R. vol. 3 at 24-41; BROMWICH, supra note 8, at 204. 25. Rep. R. vol. 3 at 23, l. 15-16 (Q: Could you see their faces? A: Not clearly.). 26. Id. 27. Rep. R. vol. 4 at 31. 28. Id. at 31-32; see BROMWICH, supra note 8, at 204-05 (citing victims sworn statement to HPD sex crime investigators). 29. Rep. R. vol. 4 at 33. 30. Id. at 36-37. 31. Id. 32. Rep. R. vol. 3 at 50. 33. Id. at 49-50; Rep. R. vol. 4 at 39. 34. BROMWICH, supra note 8, at 205. 35. Rep. R. vol. 3 at 53-63. 36. BROMWICH, supra note 8, at 205.
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known potential to induce false identifications.37 The witness was never asked to look at a line-up or photograph spread.38 Moreover, the conditions under which the witness viewed the suspects may have deprived the witness of crucial information needed for a reliable identification. Because they were seated inside of a patrol car, she could not have seen them very clearly and, in particular, would have had difficulty judging their height and weight. This was especially important with regard to Sutton, who was far taller and heavier than the baseball-cap wearing assailant that the witness had described to the police a few days earlier. Sutton, a high school football player, was over 6 feet tall and weighed 200 lbs. at the time he was arrested.39 In sum, a problematic identification procedure (an incident) may have contributed to an initial false identification (a unit failure). The next time the victim saw Sutton was during the criminal trial in July of the following year, at which point he had also been incriminated by a DNA test.40
B. The HPD DNA/Serology Unit The DNA/Serology unit of the Houston Police Department Crime Laboratory performed the DNA test. It is now widely recognized that this unit was doing substandard work at the time.41 In November 2002, an expos by Houston television station KHOU-TV revealed that the laboratory had done shoddy work and had misrepresented findings in a number of DNA cases.42 This expos prompted an audit by a state agency, which issued a report in January 2003, finding a number of serious
37. Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 ANN. REV. PSYCHOL. 277, 285 (2003). 38. Rep. R. vol. 3 at 63. 39. Rep. R. vol. 4 at 247. 40. The victim had been told that the case against Adams had been dismissed due to an exculpatory DNA test, id. at 39, and hence presumably had also been told that the DNA test had implicated Sutton. Furthermore, after an initial round of DNA testing had been completed on February 23, 1999, testing that appeared to incriminate Sutton, the victim was brought to the Houston Police Department laboratory by the investigative officer where members of the laboratory staff who had been involved in DNA testing took additional reference samples from her. Id. at 146. It seems likely that she would have been told about the incriminating DNA finding at that point. 41. See BROMWICH, supra note 8, at 54-55. 42. Id. The author of this article served as a consultant to the KHOU-TV investigators, reviewed laboratory records and transcripts from a number of cases as part of that investigation, and gave interviews in which he offered criticisms of the work of the DNA unit of the HPD Crime Laboratory.
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deficiencies in the laboratory.43 Based on that report, the police department suspended operation of the DNA/Serology unit pending further investigation.44 When the false conviction of Josiah Sutton and another man came to light shortly thereafter, the district attorneys office decided to conduct retests in over 300 cases in which DNA testing by the Houston Police Department (HPD) DNA/Serology unit had led to a criminal conviction.45 A number of those retests produced results that varied from the results reported by the HPD laboratory.46 In an effort to understand what had gone wrong, the city of Houston commissioned the law firm of Fried, Frank, Harris, Shriver & Jacobson to conduct a thorough investigation of the underlying circumstances that led to the scandal. The investigation, led by Michael Bromwich, has produced a series of reports offering a detailed account of the laboratorys problems. 47 These reports not only verified the problems uncovered in previous investigations but found additional problems.48 For example, the investigation revealed that the DNA/Serology unit had failed to employ proper experimental controls when conducting DNA tests, had routinely made misleading reports about the statistical significance of DNA matches, and had failed to report exculpatory evidence in a number of cases.49 Analysts had misrepresented their scientific credentials and training and had frequently given misleading testimony.50 The review also uncovered problems in other units of the laboratory, including instances in which analysts had falsified scientific findings.51 These problems had existed for well over a decade before being exposed by television journalists in late 2002. From the perspective of organizational theory, the most important question about the Houston Crime Lab scandal is how the laboratory managed to do such bad work for so long without the problem being detected. In theory, the criminal justice system is designed to detect problems in the evidence that the government produces in criminal cases. This evidence is supposed to be carefully reviewed, first by the district
43. Id. at 55-56. 44. Id. 45. Id. at 145-50. 46. Id. 47. The reports can all be found online at, Office of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room, http://www.hpdlab investigation.org (last visited Nov. 18, 2008). The final report, cited herein as BROMWICH, supra note 8, is most comprehensive. 48. BROMWICH, supra note 8, at 1. 49. Id. at 116-50. 50. Id. 51. Id. at 153.
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attorneys office, which must decide whether a case warrants prosecution, and then by defense counsel as they probe for weaknesses in the governments case. The evidence must be presented at a public trial where it is, in theory, fully exposed to critical scrutiny, and must be sufficient to persuade an impartial jury beyond a reasonable doubt. So, what went wrong? How did a system designed to detect problems in evidence fail to detect such serious problems in forensic evidence? A close look at the Josiah Sutton case provides some clues.
C. The DNA Evidence Against Josiah Sutton The HPD DNA/Serology unit tested several items associated with the rape: vaginal swabs and pubic hair combings from a rape kit, a semen stain on the victims jeans, and a semen stain (labeled unknown sample #1) collected from the middle bench seat of the Ford Expedition (the location where the victim said she was raped by the two men).52 The HPD report states that:
A mixture of DNA types consistent with J. Sutton, [the victim], and at least one other donor was detected on the vaginal swabs, unknown sample #1, debris from the pubic hair combings, and the jeans based on PM, DQA1, D1S80 typing results. The DNA type of J. Sutton can be expected 53 to occur in 1 out of 694,000 people among the black population.
Although the laboratory report does not say so, Gregory Adams, the suspect who wore the wool cap, was excluded by the DNA test.54 This conclusion must have been communicated to police and prosecutors because Adams was released from custody and was not prosecuted.55 The exclusion of Adams should have raised some concerns about the accuracy of the victims eyewitness identifications. A review of the trial record suggests that she was more certain about her identification of Adams than
52. Houston Police Department Offense Report, Incident No. 137009698, Supplement No. 0022 (June 16, 1999), available at http://www.scientific.org/archive/DNA%20Rpt%20&%20 Notes.PDF (last visited Nov. 18, 2008). 53. Id. 54. Adams possesses two alleles on the PM system that were not detected in any evidentiary sample and on that basis someone apparently concluded that he could not have been one of the rapists. I find it surprising that no conclusions about Adams are stated anywhere in the laboratory notes or report. The only explanation I can think of for this omission is that the analyst wanted to avoid reporting any information helpful to Adams in the event that the District Attorneys office chose to prosecute him on the basis of the eyewitness identification. Bromwich, supra note 8, at 207, agrees that the report should have said explicitly that Adams was excluded. 55. Rep. R. vol. 4 at 39.
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Sutton.56 But any such doubts about her identification of Sutton apparently vanished in the face of the laboratory report saying that semen found on the victim contained DNA consistent with Sutton. The DNA testing done in the case was, in fact, highly problematic. Four and a half years after Sutton was convicted, I reviewed the laboratory report and the underlying laboratory notes at the request of reporters from a Houston television station. The reporters were investigating allegations of shoddy work in the HPD laboratory and had obtained records of the Sutton case from Suttons lawyer.57 They asked me to review the records to see if there were any problems. There were problems galore.58 As in other cases, the laboratory had failed to run proper controls and had reported a highly inappropriate and misleading statistical estimate.59 Furthermore, the laboratory had obtained inconsistent results when typing reference samples from the victim, which raised concerns about the accuracy of their testing procedures.60 The most serious problem, however, was that the test results produced evidence that strongly suggested that Josiah Sutton was innocent and this evidence had never been acknowledged or discussed in the laboratory report or in the analysts testimony. To fully understand the DNA tests results, and how the analyst could have mistakenly concluded that they incriminated Josiah Sutton, it is necessary to examine the results in some detail. The analyst typed the samples using two commercial test kits. The PM/DQ-alpha kit, marketed by Perkin-Elmer, detects the genetic characteristics (alleles) present at six
56. Q: And you were especially sure about [Adams] because you could identify the way he walked, and the fact that you had looked into his eyes? A: Yes. Id. 57. Lawyer Bob Wicoff, who represented Sutton on appeal, had managed to obtain copies of the laboratory report and laboratory notes from the HPD Crime Laboratory after Sutton was convicted. These materials were not part of the trial record and it appears that trial counsel did not manage to obtain copies. 58. I prepared a report on the case entitled A Review of DNA Evidence in State of Texas v. Josiah Sutton (February 6, 2003), available at http://www.scientific.org/archive/Thompson%20 Report.PDF) [hereinafter Thompson report]. 59. The laboratory report stated that Josiah Suttons DNA type would be expected to occur in 1 out of 694,000 people among the Black population. Id. at 7. This is a correct estimate of the frequency of Suttons DNA profile but it is not a correct estimate of the probability of a coincidental match between Sutton and the evidentiary sample. Because the evidentiary samples were mixtures of DNA from more than one person, Suttons DNA profile was not the only profile that would match the mixture. The actual probability that a randomly chosen African-American would match the evidentiary samples was approximately 1 in 14. See BROMWICH, supra note 8, at 208; Thompson report, supra note 58, at 7-8. Hence, the estimate of 1 in 694,000 was irrelevant and highly misleading. 60. As indicated in Table 1, the laboratory typed samples from the victim three times and obtained different results. See BROMWICH, supra note 8, at 208; Thompson report, supra note 58, at 4-5.
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loci (locations) on the human genome.61 The D1S80 test kit, also from Perkin-Elmer, examines a seventh location (locus). At each locus there are a limited number of alleles that a human might possess, and these alleles are identified either by letters or numbers.62 Table 1 shows the alleles detected by the tests run in the Sutton case. The analyst processed the samples in two batches. The first batch was typed on February 23, 1999, and the second on February 25, 1999. Before typing the vaginal sample, the analyst used a procedure known as differential extraction to separate the DNA into two components. The vaginal sperm fraction (VSF) was enriched for spermatozoa and therefore is expected to contain primarily male DNA; the vaginal epithelial fraction (VEF) should contain primarily female DNA from the victim.
61. KEITH INMAN & NORAH RUDIN, AN INTRODUCTION TO FORENSIC DNA ANALYSIS 41-47 (1996). 62. Each person has two alleles at each locus, one inherited from his or her mother and one from his or her father. In some instances a person inherits the same allele from both parents, in which case they show only that one allele when tested. Id.
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Table 1: Table of AllelesState of Texas v. Josiah Sutton

SAMPLE 2-23-99 DQA LDLR GYPA HBGG D7S8 GC D1S80
VEF VSF Victim Reference Adams Reference Sutton Reference 2-25-99 JEANS UNKNOWN SAMPLE #1 PUBIC COMBINGS Victim Reference #2 Victim Reference #3
3, 4.2/4.3 1.1,2,3,4.1 (1.2) 3,3 1.2 1.1,2
B AB B AB AB
AB AB AB A A
A C A C A C BC A
A AB A A A
B B B AB B
21,28
20,21,24,25,28
21,28 24,34 25,28
[3] 2,3 1.1,2,3,4.1 (1.2) 3,4.2/4.3 3,4.2/4.3
AB AB AB B B
AB AB AB AB AB
A C A C A C A C A C
AB A AB A A
B B B B B
Examination of Table 1 shows why Adams was excluded. He possesses two alleles (allele B at locus HBGG and allele A at locus GC) that were not detected in any of the evidentiary samples, which indicates he was not a contributor. It is also easy to see why Josiah Sutton was included as a possible contributor to the VSF. Every allele that Sutton possesses at every locus was detected in VSF, which suggests that he could have been a contributor. Assuming Sutton was one of the two rapists, the other alleles in VSF must have come from the other rapist and the victim. If one stopped thinking at this point (which is perhaps what the analyst did), the conclusion seems straightforward: Adams is excluded and Sutton is included. There is, however, additional information in the Table that warrants consideration. And further analysis leads to a different conclusion about whether Sutton should be included.
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When reviewing the underlying data, I was struck by discrepancies between Suttons profile and the profile of unknown sample #1, the semen stain from the back seat of the Ford Expedition. As noted above, the laboratory report states that unknown sample #1 contained a mixture of DNA types consistent with Sutton, the victim, and at least one other donor. But the actual test results, as shown by the laboratory test strips and as recorded in the analysts handwritten notes, are those shown in Table 1. Based on those results, it is apparent that sample #1 does not contain DNA types consistent with Sutton. Sutton has DQA allele 1.1, which was not detected in this sample. Hence, the laboratory report is simply wrong about the possible contributors to sample #1.63 So, who is the source of sample #1? According to the laboratory notes, sample #1 produced positive results for acid phosphatase and P-30, which indicated that it is a semen sample.64 Based on the number of alleles detected, it could plausibly be from a single unknown male donor. This sample was collected from the middle seat of the Expedition in the location where the complainant said she was assaulted. The profile of this sample is included in the mixed DNA samples found in the VSF, the pubic combings, and the jeans. Therefore, it is entirely possible that sample #1 is a semen sample from one of the two rapists. Indeed, this appears the most reasonable conclusion. Having reached this conclusion after my initial analysis of the evidence, I decided to re-visit the question of whether Sutton is a possible contributor to the other evidentiary samples. My initial analysis asked whether Sutton could be one of two male contributors making no assumptions about the DNA profile of the other contributor. But with information about the probable profile of the other contributor, it was possible to ask whether the DNA profiles of Sutton and that second man together could account for the profiles of the evidentiary samples. I was astounded to realize that they could not. If sample #1 is semen from one of the two rapists, and if the victim was truthful in saying that the two rapists were the only men who had sex with her during the relevant period,65 then Sutton is ruled out as the other rapist. As Table 2 illustrates, the donor of
63. Furthermore, the sample does not contain DNA types consistent with the victim (if we assume, as the analyst apparently did, that her correct DQA type is 3,4.2/4.3). The 4.2/4.3 was not detected in sample #1. See supra p. 1041, tbl. 1. 64. Houston Police Department Offense Report, supra note 52, Evidence Inventory and Workup Sheet (Dec. 4, 1998). 65. She told the sexual assault investigators and testified at trial that her most recent previous sexual contact had been six days earlier. See Rep. R. vol. 3 at 64. DNA from a male partner generally becomes undetectable in vaginal samples after 72 hours. RICHARD SAFERSTEIN, CRIMINALISTICS: AN INTRODUCTION TO FORENSIC SCIENCE 378 (5th ed. 1995).
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sample #1 can account for two of the four DQA alleles found in the VSF alleles 2 and 3. Hence, if there are two male donors, the DQA genotype of the second donor must be 1.1, 4.1. Suttons genotype is 1.1, 2. Because he lacks the 4.1 allele, he could not be one of the rapists, assuming the donor of Sample #1 is the other rapist. Table 2: Comparison of Suttons DQ Alpha Genotype with Obligatory Genotype of Second Contributor to VSF, Assuming Donor of Sample #1 is One of Two Male Contributors DQA VSF 1.1,2,3,4.1 (1.2) PUBIC COMBINGS 1.1,2,3,4.1 (1.2) SAMPLE #1 2,3 Obligatory genotype of second contributor to VSF 1.1, 4.1 (assuming donor of Sample #1 is one of two male contributors) Suttons Alleles 1.1, 2 This apparent exclusion of Sutton was not entirely certain. It was conceivable that the semen collected in sample #1 is unrelated to the rape. Perhaps it was deposited at an earlier time and just happened to be on the seat where the complainant was forced to engage in sexual acts with two men. In that case, Sutton could have committed the rape in combination with another unidentified man who happened to have a 4.1 allele. It is also conceivable that the complainant failed to report having sexual intercourse with another man shortly before the crime, and that this unidentified man happened to have a 4.1 allele. But these theories seem rather farfetched. It seems much more plausible that the alleles found in the VSF are from the two rapists, and that semen stain on the seat where the rapes occurred (sample #1) is from one of the rapists. If these more plausible assumptions are true, then Sutton could not have been one of the rapists.66
66. Bromwich agreed generally with the analysis presented here but stated:
We would not go so far as to conclude that Mr. Sutton, therefore, should be eliminated as a possible source for the sperm fraction of the vaginal swab (considering only the Crime Labs original PCR results). In cases of multiple assailants, such as this one, it is not uncommon for the PCR testing systems to detect different profiles in different evidence stains.
BROMWICH, supra note 8, at 210. In my view, any theory of the case that includes Sutton as a possible contributor to the vaginal sample requires a series of highly implausible assumptions. But whether Sutton should have been excluded definitively in 1999 is really not the issue. Bromwich and I are in full agreement that the DNA test results were presented to the jury in a highly misleading and inappropriate manner. Id. at 213.
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Based on this analysis, I told television station KHOU, in an interview the station broadcast in January 2003, that I thought the HPDCL had not analyzed the case correctly and that I thought it very likely that Josiah Sutton was innocent.67 Thereafter, the district attorneys office arranged for two different laboratories to retest the vaginal swabs and the stains on the jeans using more modern STR procedures. Both labs detected DNA profiles of two men in the vaginal swabs and the stain on the jeans. Neither male profile matched Sutton; he was definitively excluded and was released from prison on March 12, 2003.68 How can we explain this failure of the HPDCL DNA/Serology unit? Much of the press coverage focused on the character and training of Christy Kim, the analyst who did the work and testified in the case.69 She was quickly identified as a bad apple and was replaced.70 It is important to recognize, however, that Kims problematic work in the Sutton case occurred in a lab that had been doing shoddy, careless work for many years. In most respects Kims work on the Sutton case was no different than the work that other HPD analysts did routinely. The most unusual aspect of the case was the incorrect report linking Sutton to unknown sample #1, but this may have simply been an oversightthe type of human error that occurs routinely in forensic DNA testing and that even the best analyst might occasionally make.71
67. Recordings of the broadcast interviews are on file with the author. I made similar statements to other reporters. See, e.g., Roma Khanna & Peggy OHare, Experts review case of convicted rapist: Scientists say DNA work by HPD lab shoddy, HOUSTON CHRON., Feb. 1, 2003, at A33. 68. BROMWICH, supra note 8, at 215-16. In 2006, a DNA profile that was developed by one of the two labs from a semen stain on the victims jeans was linked through the CODIS database to a man named Donnie Young, who admitted to committing the rape in conjunction with a man named Damon Batiste. Id. at 216. Young pleaded guilty to the crime and was sentenced to ten years in prison; Batiste had died while in prison on other charges. Id. 69. See, e.g., Roma Khanna & Steve McVicker, 2 HPD crime examiners major errors enumerated, HOUSTON CHRON., June 13, 2003, at A31 (reporting that Christy Kim and another analyst had been suspended from duty following an internal police investigation); Lise Olsen & Roma Khanna, DNA lab analysts unqualified: Review finds education, training lacking, HOUSTON CHRON., Sept. 7, 2003, at A1 (tracing lab problems to analysts poor training and lack of qualifications). 70. After an internal police investigation, Kim was suspended for two weeks, but later appealed her suspension, arguing that her poor work was the result of inadequate training rather than misconduct. She was reinstated and her punishment was reduced to a reprimand. Soon thereafter she resigned. Roma Khanna, Lab workers penalties reduced: Written reprimands replace suspensions, HOUSTON CHRON., Sept. 25, 2003, at A29. 71. See William C. Thompson, Tarnish on the Gold Standard: Understanding Recent Problems In Forensic DNA Testing, 30 THE CHAMPION, Jan./Feb. 2006, at 10, 11 (discussing errors in forensic DNA testing).
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Observer effects may have played a role in this mistake. It is likely that Kim communicated directly with detectives about the case and, as a result, had a strong expectation that the results of the analysis would incriminate Sutton.72 The human tendency to interpret data in a manner consistent with expectations is well known and could explain why Kim failed to see the exculpatory aspects of the evidence.73 But this problem again is hardly unique to Kim. Most forensic laboratories fail to take steps to protect analysts from observer effects.74 Other analysts, including Kims replacement, would be in the same situation with regard to observer effects. Hence, the act of replacing Kim (by itself) does little to address the problems that led to the error. To address those problems effectively, we must get beyond the bad apples analysis and ask broader questions about why the lab was doing such shoddy work in the first place, and how it managed to do such bad work for so long without the problems coming to light. But let us first consider how the specific problems and errors in the Sutton case managed to escape detection in the legal system.
D. What Did the Prosecutor Know? One point at which the problems with the DNA evidence might have been detected was when the deputy district attorney who prosecuted the case reviewed that evidence. Based on the fact that the prosecutor presented the evidence, we can infer that this particular mechanism for catching problems in evidence failed to work. One possible reason for the failure is that the prosecutor detected no problems. Perhaps he lacked the expertise to detect any problems. Perhaps he simply took it for granted that the laboratory report was correct and made no effort to look beyond it. However, review of the trial transcripts suggests another possible reason for the failure. The prosecutor may have realized that there were problems with the DNA evidence and elected to present it anyway.
72. During a visit to the HPDCL on June 3, 2003, I had the opportunity to speak with two DNA analysts, Joseph Chu and Raynard Cockrell (Kim was not present). Both told me that DNA analysts in the laboratory routinely spoke with detectives about the facts of the cases they worked on. Hence, it seems likely that Kim would have known about the eyewitness identification of Sutton. Furthermore, as noted earlier, the victim in the case had actually been brought to the laboratory by the investigating officer to provide an additional DNA sample, at which time she spoke to members of the laboratory staff. See supra note 35. 73. See Risinger, et al., supra note 22, at 9. 74. Id. at 31.
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As noted above, the HPD laboratory report was incorrect with regard to unknown sample #1. The report said that sample #1 contained a mixture of DNA consistent with Josiah Sutton, the victim, and one other donor. But review of the laboratory notes and the actual test strips showed that Sutton could not have been a contributor. Did the prosecutor know about the error in the laboratory report? When eliciting direct testimony from analyst Christy Kim, the prosecutor appeared to take great care to avoid mention of unknown sample #1. When asking about the test results he seemed to frame his questions carefully to mention all of the evidentiary samples except unknown sample #1. A particularly telling moment occurred when analyst Kim nevertheless mentioned unknown sample #1 in response to such a question:
Q: (By the prosecutor) And you said you use the PCR method to do this? A: (By analyst Christy Kim) Yes, I do. Q: Is that the method you used to analyze the vaginal swabs the vaginal swabs, the vaginal smears, and the cutting from the jeans? A: The vaginal swabs, the cutting from the jeans, debris from the pubic combing are and number one unknown sample. Q: I dont want to talk about the unknown sample. Okay? 75 A: Okay
This exchange raised suspicion in my mind that the prosecutor knew there was a problem with unknown sample #1 and was trying to cover the problem up in the interest of obtaining a conviction.76 Perhaps analyst Kim told the prosecutor that she had made a mistake when preparing her report and that, contrary to what the report said, Suttons profile did not match unknown sample #1.77 If so, the episode illustrates a potential weakness
75. Rep. R. vol. 4 at 185. 76. To be perfectly clear, I am not suggesting that the prosecutor set out intentionally to incriminate an innocent man. I suspect the prosecutor sincerely believed that Sutton was guilty and continued to believe he was guilty after learning that the laboratory report was inaccurate with regard to unknown sample #1. At that point he faced a choicedisclose the error in the lab report to the defense, thereby handing them ammunition they could use to challenge his case, or say nothing and hope no one noticed. I am suggesting that the prosecutor made the latter choice and, having done so, took steps to avoid eliciting testimony about unknown sample #1 because such testimony, if truthful, would reveal the undisclosed error. 77. In a videotaped interview conducted after Sutton was exonerated, the prosecutor told KHOU reporter Anna Werner that he knew during the trial that unknown sample #1 did not match Sutton. Videotape: Anna Werner Interview (KHOU-TV 2003) (on file with the author). Werner asked the prosecutor why he had told the analyst that he did not want to talk about unknown sample #1. Id. The prosecutor responded as follows: Because there was no match to sample #1 and I didnt want any confusion about sample #1. Id. I knew the match was going to come from some place else. And I . . . wanted the presentation to be less confusing. Id. When Werner pressed him on the issue, he terminated the interview. Id. In a second interview
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in a system designed to detect problems in evidence. Actors who are supposed to provide an independent layer of review may, due to imperatives arising from their occupational role, not only fail to expose problems but take steps to avoid having those problems exposed in subsequent levels of review.78
E. The Defense Lawyers The ultimate protection for an innocent person accused of a crime is said to be the testing of the adversary process. The governments evidence must be presented at a public trial where it is subject to challenge and rebuttal. Before the trial, a defense lawyer is able to review the governments case and conduct an independent investigation in order find weaknesses in the governments evidence. How did Josiah Suttons case manage to pass through this seemingly rigorous testing process without the weaknesses of the governments case being revealed? Part of the blame lies with Suttons defense lawyers whose efforts on his behalf appear to have been thoroughly inept.79 During crossexamination of Christy Kim, a defense lawyer raised the possibility that an error might somehow have occurred in the handling of samples. Because the lawyer never managed to articulate a clear theory of how an error could have occurred that would explain the incriminating results, however, this challenge was entirely unconvincing. The efforts of defense counsel to challenge the eyewitness identification through cross-examination were similarly ineffective.
conducted two weeks later, however, the prosecutor denied having said that he knew that unknown sample #1 did not match Sutton and, when confronted with a videotape of himself making that statement, claimed that he had misspoken. Id. When reporter Werner pressed him to explain why, in that case, he had tried to avoid mention of unknown sample #1, the prosecutor continued to insist that he thought discussion of that sample would have been confusing to the jury. Id. However, it is unclear why he would have thought discussion of that sample would be confusing if (like the other evidentiary samples) it matched Sutton. Id. (The section of the interview quoted above were broadcast on KHOU-TV at various times during 2003). 78. Bromwich discussed my suspicions about the prosecutor and attempted to suggest an innocent explanation for his actions: In short, it appears that [the prosecutor] was uninterested in the #1 sample because it did not include Mr. Sutton, but it is unlikely that he believed the DNA evidence from the #1 sample eliminated Mr. Sutton. This argument misses the point. The question Bromwich should have considered is how the prosecutor knew the #1 sample did not include Mr. Sutton when the laboratory report said that it did include him. BROMWICH, supra note 8, at 211 n.276. If Bromwichs explanation for the prosecutors actions is correct, and it may well be, then the prosecutor was aware of potentially exculpatory evidence (the error in the laboratory report) that he failed to disclose to the defense. 79. BROMWICH, supra note 8, at 213 (Mr. Herberts cross-examination of Ms. Kim was brief and completely ineffective.).
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Despite their clients protestations of innocence, the defense lawyers made no effort to have the governments DNA evidence reviewed by an independent expert.80 They asked to have the key evidentiary samples sent to an independent laboratory for a retest, but because they did not pay the independent laboratory, no retest was conducted.81 To make matters worse, they made no objection and offered no clarification when the prosecutor elicited testimony during the trial that samples had, at the request of the defense, been sent to an independent laboratory for the purpose of retesting.82 The jurors were thus left with the impression that the defense had conducted a retest and had elected not to present the results. Hence, the efforts of the defense lawyers to deal with the governments DNA evidence left Sutton in a worse position than had they done nothing.83 How can we explain the deficient performance of Suttons defense lawyers? It is tempting, of course, to limit our inquiry to their individual shortcomingsto label them bad apples and leave it at that.84 But (as readers should now appreciate) an individualistic explanation of that sort would divert our attention from systemic factors that are crucial to a full understanding of the issue. The presence of a few bad apples in the Houston defense bar cannot explain the failure of the legal system for more than a decade to detect the egregious problems in the work of the HPDCL. There was a more general failure of the legal system to detect bad science. As part of her Masters thesis research at University of California, Irvine, Brenda Velazquez interviewed twenty-five criminal lawyers in
80. Id. at 211. 81. Id. at 211-12. 82. Rep. R. vol. 4 at 201-02. 83. After his conviction, Sutton filed a motion for new trial with the trial court claiming that his lawyers had provided ineffective assistance of counsel by failing to obtain an independent DNA retest. During a hearing on a motion for new trial, two members of Suttons family testified that they had given one of his lawyers money for a DNA test. The lawyer testified that he had not obtained the test because additional money was needed, which the family failed to provide, and because he believed there were no unadulterated samples remaining for testing. The trial judge denied the motion for new trial. BROMWICH, supra note 8, at 214. Sutton then appealed his conviction on grounds that defense counsel had failed to render effective assistance in three respects: (1) they failed to obtain a DNA retest; (2) they introduced otherwise inadmissible evidence about a prior juvenile misdemeanor conviction for possession of a weapon, thereby needlessly undermining their clients case; (3) they introduced otherwise inadmissible evidence that their client had contracted a sexually transmitted disease, thereby needlessly placing their client in a bad light. The court of appeals found no deficiency in the lawyers representation of Sutton and affirmed his conviction. Sutton v. State, No. 14-99-00951-CR, 2001 WL 40349, at *1 (Tex. Crim. App. Jan. 18, 2001). 84. Bromwich notes that one of Suttons lawyers, Ronald G. Mock, is well known in the Houston bar for his defective representation of defendants in capital cases. He currently is serving a three-year suspension from the practice of law for violation of various Texas State Bar ethics rules. BROMWICH, supra note 8, at 211 n.277.
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Houston who had experience dealing with evidence from the HPDCL in the years before the scandal broke.85 Her inquiries into reasons that the bad work of the HPDCL went so long undetected reveal a number of systemic factors. First, the district attorneys office took a number of steps designed to shield laboratory work from scrutiny by the defense. Although the district attorney officially adopted an open file policy, most deputies interpreted that policy to mean that defense counsel could read the file but could not make photocopies of anything in the file.86 Moreover, key parts of the file, including police reports and laboratory reports, were not made available for review until the trial actually began.87 Second, defense counsel had difficulty obtaining expert assistance because motions for appointment of experts at court expense were routinely denied, with the consequence that defense experts were rarely used and then only in cases in which relatively wealthy defendants could hire them.88 The most disturbing finding of Velazquezs study is that defense counsel reported being deterred from zealously advocacy by fear of losing future court appointments.89 There is no public defender service in Harris County (Houston), Texas; all indigent defense is provided by appointed counsel and all appointments are made by judges. Defense lawyers told Velazquez that (they believed that) judges withheld appointments from counsel who were perceived as causing problems by litigating cases too aggressively.90 As one put it, to do well obtaining appointments, defense lawyers need to go along to get along.91 This systemic disincentive for zealous advocacy may well explain why the serious problems in the HPDCL went so long undetected.
III. CONCLUDING THOUGHTS I hope this brief excursion through the Josiah Sutton case has convinced readers of the utility of analyzing forensic science failure from a systemic perspective. We can generate more interesting hypotheses about the causes of problems, and identify more promising solutions, by shifting
85. Brenda Velazquez, Legal Perspectives on the Houston Police Department Crime Laboratory (2008) (unpublished manuscript, University of California, Irvine) (the author is Ms. Velazquezs thesis advisor). 86. Id. at 26-28. 87. Id. 88. Id. at 27-28. 89. Id. at 32. 90. Id. 91. Id.
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our focus from individual bad apples to the systems of incentives and disincentives within which police, forensic scientists, lawyers, and judges operate. One important hypothesis generated by this analysis is that the quality of forensic science in a given jurisdiction is intimately connected to the quality of the legal system. Specifically, I posit that bad forensic science will be more common in jurisdictions in which forensic work receives little scrutiny in the legal process. This analysis suggests that forensic science can be improved by measures designed to expose it to greater external scrutiny. More liberal discovery rules, more generous funding of experts, an independent process for appointment of defense counsel, and adequate funding of defense counsel, may do far more to avoid repetition of the Houston scandal than replacement of crime laboratory staff. Analysis of the Sutton case also highlights the potential for harmful interactions among different units of the criminal justice system. Although some theorists have suggested that the American system of criminal justice is loosely-coupled,92 the Sutton case illustrates how seemingly independent elements (eyewitness identification and DNA testing) can interact, such that a failure in one may precipitate, or at least reinforce, a failure in another. Organizational theorists have long noted the importance of maintaining the independence of organizational units in order to avoid the common mode failure or system failure that can lead to catastrophe. In the criminal justice system this may well mean taking steps to isolate actors in different units. There is no need for the DNA analyst to know (before completing the analysis and issuing a report) what the eyewitness said; and there is no need for the eyewitness (before testifying) to know the results of the DNA test. Cross-talk between different elements of the justice system undoubtedly occurs routinely without anyone giving it much thought. Effective communication within the system is generally seen as positive rather than negative. The analysis presented here, however, suggests that too much communication of the wrong types can contribute to system failures. In my view, that is an interesting hypothesis and one that is far more likely to lead to productive research and ultimately to useful reforms than the typical crabbed rhetoric of bad apples.
92. See, e.g., J. Hagan, J.D. Hewitt & D.F. Alwin, Ceremonial Justice: Crime and Punishment in a Loosely Coupled System, 58 SOCIAL FORCES 506 (1979).

Beyond Bad Apples Analyzing The Role of Forensic Science in Wrongful Convictions

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