Foren­sic er­rors trig­ger re­views of D.C. crime lab bal­lis­tics ex­ams

The Washington Post Sunday - - METRO - BY SPENCER S. HSU AND KEITH L. ALEXAN­DER

Dis­trict crime lab of­fi­cials are re­view­ing more than 150 firearm ex­am­i­na­tions for ac­cu­racy after the lab dis­cov­ered er­rors by three D.C. foren­sic an­a­lysts who in­cor­rectly matched bul­lets or am­mu­ni­tion cas­ings re­cov­ered at crime scenes to in­di­vid­ual weapons.

The ex­am­i­na­tions date to at least Au­gust 2015, ac­cord­ing to fed­eral pros­e­cu­tors in Wash­ing­ton and the three for­mer bal­lis­tics ex­am­in­ers.

The er­rors and retest­ing by the Depart­ment of Foren­sic Sci­ences (DFS) were dis­closed in Feb. 17 and March 17 let­ters to de­fense at­tor­neys by the U.S. At­tor­ney’s Of­fice of the Dis­trict, copies of which were ob­tained by The Wash­ing­ton Post.

The depart­ment said that of 44 cases re­viewed so far, two con­tained er­rors and that the er­rors were not in high-pri­or­ity cases and had not led to an ar­rest, charge or con­vic­tion, as far as lab of­fi­cials know.

Fed­eral pros­e­cu­tors de­clined to com­ment on whether the iden- ti­fied mis­takes had led to ar­rests or pros­e­cu­tions and would not say how many de­fen­dants have been no­ti­fied that work done by the three ex­am­in­ers was part of their cases.

Pros­e­cu­tors wrote in the let­ters that they would no longer spon­sor one of the ex­am­in­ers as an ex­pert wit­ness, and the other two are no longer em­ployed by the depart­ment.

The Firearms Ex­am­i­na­tion Unit at the D.C. Con­sol­i­dated Foren­sic Lab­o­ra­tory is the sec­ond-busiest unit of the lab, rank­ing be­hind only the fin­ger­print sec­tion, and had 10 ex­am­in­ers as of De­cem­ber 2015 — three of them full time, a depart­ment spokes­woman said. The unit con-

ducted 559 ex­am­i­na­tions from De­cem­ber 2015 to De­cem­ber 2016 and had a back­log of 156 cases.

The re­view for mis­matches is the lat­est set­back for the $220 mil­lion lab that opened in 2012 and un­der­went a man­age­ment over­haul in 2015 after pros­e­cu­tors found nu­mer­ous er­rors in the lab’s DNA test­ing.

The shake-up also led to ques­tions about the in­de­pen­dence of the lab, which sus­pended DNA foren­sic work for 10 months un­til March 2016.

Last month, depart­ment of­fi­cials also an­nounced that fed­eral reg­u­la­tors were au­dit­ing the lab’s pub­lic health op­er­a­tions after test­ing for the Zika virus in hun­dreds of res­i­dents was mis­han­dled for months. At least nine preg­nant women who had been ex­posed to the virus were wrongly told they were neg­a­tive for the in­fec­tion, which can cause se­ri­ous de­fects in de­vel­op­ing fe­tuses.

The bal­lis­tics er­rors also come at a time of high ten­sion — with firearms ex­am­in­ers and their sup­port­ers in law en­force­ment on one side, and many sci­en­tists, le­gal de­fense or­ga­ni­za­tions and law pro­fes­sors on the other — over the sci­en­tific va­lid­ity of bal­lis­tics trac­ing ev­i­dence.

In a 2014 opin­ion, the U.S. Supreme Court weighed in and noted the im­por­tance of de­fen­dants ob­tain­ing in­de­pen­dent bal­lis­tics test­ing. The court opin­ion was in a case that granted a re­trial to an Alabama death row in­mate who was then ex­on­er­ated after 30 years when new firearms ex­perts dis­agreed with the orig­i­nal ex­am­in­ers’ find­ings that sent him to prison.

Janet E. Mitchell, spe­cial coun­sel to the D.C. Pub­lic De­fender Ser­vice, praised the foren­sic depart­ment for launch­ing the in­quiry but said all firearms trac­ing re­sults “should be viewed with skep­ti­cism” be­cause of the sub­jec­tiv­ity of com­par­isons and lack of re­search into how of­ten marks made by dif­fer­ent weapons may look alike. Some na­tional stud­ies, she noted, es­ti­mated ex­am­iner er­ror rates as high as 1 in 20.

“While we are pleased that DFS is un­der­tak­ing this re­view, th­ese er­rors are likely not unique to th­ese ex­am­in­ers or to th­ese cases,” Mitchell said. “To the ex­tent that this type of ev­i­dence con­tin­ues to be ad­mit­ted in court, judges and ju­ries should be made fully aware of the er­ror rates un­cov­ered in the sin­gle ap­pro­pri­ately de­signed study to date.”

U.S. at­tor­ney’s of­fice spokesman Bill Miller said the of­fice is work­ing closely with the foren­sics depart­ment and await­ing the out­comes of re­views by the lab on ac­cu­racy, as well as re­views by pros­e­cu­tors about any ef­fects on cases. “To en­sure that ev­ery crim­i­nal de­fen­dant re­ceives a fair trial, the U.S. at­tor­ney’s of­fice has made dis­clo­sures to de­fense coun­sel, and we will con­tinue to share re­sults of the find­ings,” Miller said.

The lab’s in­ter­nal qual­ity con­trols de­tected the prob­lems, said LaShon Bea­mon, a spokes­woman for the foren­sic sci­ences depart­ment. The lab then re­ported the er­rors to pros­e­cu­tors and oth­ers, she said. “This in­ci­dent demon­strates some of the crit­i­cal changes made” at the foren­sics depart­ment, which Bea­mon said “is un­der­go­ing a tremen­dous re­form.”

The cur­rent re­view of lab match­ing by the three ex­am­in­ers was trig­gered when vet­eran firearms ex­am­iner Daniel Bar­rett failed an an­nual pro­fi­ciency test in Au­gust 2016, ac­cord­ing to de­tails in the let­ter sent by pros­e­cu­tors. The let­ter from Michael T. Am­brosino, spe­cial coun­sel for DNA and foren­sics for the U.S. at­tor­ney, went to Betty Ballester, chief of the D.C. Su­pe­rior Court Trial Lawyers As­so­ci­a­tion, and to the fed­eral and D.C. pub­lic de­fend­ers.

Bar­rett’s failed skills test prompted the lab to check a sam­ple of his re­cent work in crim­i­nal cases, where of­fi­cials un­cov­ered a se­ri­ous er­ror in which he in­cor­rectly linked am­mu­ni­tion cas­ings to a weapon.

Lab of­fi­cials then ex­panded the re-ex­am­i­na­tion to all 120 cases Bar­rett has han­dled since Au­gust 2015 — when he last passed a skills test — and that big­ger, on­go­ing sweep turned up a sec­ond mis­take, pros­e­cu­tors said in a March 17 let­ter.

The two cases in which Bar­rett reached the wrong con­clu­sions had each been con­firmed by an­other col­league as part of a rou­tine ver­i­fi­ca­tion sys­tem used in the lab — mean­ing three ex­am­in­ers are part of the er­rors.

Cases by all three are now be­ing in­ves­ti­gated, although how the re­view is be­ing con­ducted and which cases are be­ing ex­am­ined is not clear.

Pros­e­cu­tors and the Dis­trict’s lab would not say ex­actly how many cases are be­ing stud­ied or whether the re­view of the three ex­am­in­ers is lim­ited only to cases in which each was the first to re­port a re­sult.

Reached at his Vir­ginia home, Bar­rett, 65, con­firmed pros­e­cu­tors’ ac­count of his er­rors and said, “I was wrong, I don’t want to em­bar­rass the unit.” A cer­ti­fied firearms ex­am­iner for more than 40 years, Bar­rett said he joined the D.C. po­lice in 2007 as a civil­ian an­a­lyst and moved to the foren­sic sci­ences depart­ment in 2012.

Most of his re­viewed lab work in­volved homi­cides and po­lice shoot­ings, he said, and he was a se­nior ex­am­iner who trained oth­ers.

Once pros­e­cu­tors barred him from be­ing used as an ex­pert wit­ness, Bar­rett said, he de­cided to re­tire, which takes ef­fect in the sum­mer, and is no longer work­ing on cases.

“It’s very painful for me. I had quite a rep­u­ta­tion. And then this hap­pened. I lost ev­ery­thing,” he said with a sigh. “Maybe I’m a di­nosaur. I lost con­fi­dence in my­self, and I feel I let my co­work­ers down.”

The two ex­am­in­ers who con­firmed Bar­rett’s er­ro­neous cases were Lu­ciano Mo­rales and Kevin Web­ster, long­time D.C. po­lice of­fi­cers and firearms ex­am­in­ers who also moved to the city’s foren­sic sci­ences lab in 2012.

Mo­rales, 50, de­fended him­self and Bar­rett, say­ing their er­ror was the re­sult of an ad­min­is­tra­tive mix-up. He blamed man­agers for poor record-keep­ing and re­port­ing, say­ing, “I think the is­sue here is man­age­ment at DFS. I don’t be­lieve that things were done right within [the] firearms” unit.

Mo­rales worked 27 years as a D.C. of­fi­cer, was cer­ti­fied as a firearms ex­am­iner in 1998 and later de­tailed to the foren­sic depart­ment. He worked there un­til last year, then be­came a con­trac­tor un­til Septem­ber. Pros­e­cu­tors did not spec­ify which of his cases are be­ing re­viewed, but Mo­rales said he con­ducted only about 24 ex­am­i­na­tions in re­cent years.

Web­ster, 55, spent 25 years as a D.C. po­lice of­fi­cer and was a firearms ex­am­iner for two years be­fore re­turn­ing un­der a con­tract in 2015. He re­joined the po­lice depart­ment in Fe­bru­ary as a se­nior po­lice of­fi­cer teach­ing cadets.

Web­ster said he learned only in the past week that his cases for the Dis­trict lab since Au­gust 2016 — the last time he passed a pro­fi­ciency test — were be­ing scru­ti­nized. He es­ti­mated he had worked on bal­lis­tics matches in about 25 cases since then and said he was no­ti­fied that his re­sults were be­ing in­ves­ti­gated be­cause one of his cases was go­ing to trial.

“As far as my abil­i­ties, I was trained by Mo­rales, and Mo­rales is an ex­cel­lent, ex­cel­lent trainer, and he’s an ex­cel­lent ex­am­iner,” Web­ster said.

Ballester, the trial lawyer as­so­ci­a­tion chief, called the lab er­rors “dis­heart­en­ing,” par­tic­u­larly be­cause the unit’s process of hav­ing a sec­ond ex­am­iner ver­ify test re­sults proved fal­li­ble. Ballester said that be­cause of the cost and be­cause re­quests re­quire court ap­proval, de­fense at­tor­neys of­ten do not or­der their own foren­sic firearms test­ing. As a re­sult, de­fen­dants of­ten rely on DFS ex­am­i­na­tions.

“They are sup­posed to be in­de­pen­dent. We are sup­posed to trust in their re­sults,” Ballester said.

The re­view of the D.C. lab re­sults comes months after a White House sci­en­tific ad­vi­sory panel re­newed sci­en­tists’ chal­lenge to whether firearms test­ing and other foren­sic tech­niques should be ad­mit­ted as sci­en­tific ev­i­dence, re­in­forc­ing crit­i­cism by the Na­tional Re­search Coun­cil that matched bul­lets, hair or tire treads to a sin­gle source are over­stated.

The Pres­i­dent’s Coun­cil of Ad­vi­sors on Sci­ence and Tech­nol­ogy said that the one valid study, funded by the Pen­tagon in 2014, es­tab­lished a likely er­ror rate in firearms test­ing at no more than 1 in 46. Two less rig­or­ous re­cent stud­ies found a 1 in 20 er­ror rate, the White House panel said.

“Ex­pres­sions of con­sen­sus among prac­ti­tion­ers . . . [are] no sub­sti­tute for er­ror rates,” the coun­cil said.

A lead­ing stan­dard-set­ting group of firearms anal­y­sis prac­ti­tion­ers spon­sored by the Na­tional In­sti­tute for Stan­dards and Tech­nol­ogy “fun­da­men­tally dis­agreed,” say­ing the coun­cil dis­re­garded less rig­or­ous stud­ies that more ac­cu­rately re­flect case­work as well as meth­ods and train­ing de­vel­oped over hun­dreds of years, in fa­vor of a “purely sta­tis­ti­cal” ap­proach.

“Th­ese er­rors are likely not unique to th­ese ex­am­in­ers or to th­ese cases.” Janet E. Mitchell, spe­cial coun­sel to the D.C. Pub­lic De­fender Ser­vice

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