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Steve Mercer Invited to Address the President’s Council of Advisors on Science and Technology (PCAST)

(Washington, D.C.) On January 14, 2016, Steve Mercer addressed by invitation PCAST during a closed session. Steve also submitted this written statement discussing the powerful incentives in criminal cases for police dominated laboratories to issue biased reports, and the critical need for complete discovery of all scientifically relevant information related to the results of any forensic testing.

Statement of Steve Mercer
January 14, 2016
Maryland Office of the Public Defender

Good afternoon.  I am Steve Mercer, Director of the Litigation Support Group, and Chief Attorney of the Forensics Division, for the Maryland Public Defender.  The Office of the Public Defender is an independent state agency created by the Maryland General Assembly in 1971.  Our mission is to ensure enforcement of the right to effective assistance of counsel for eligible clients in state court. With over 900 employees (570 attorneys) across 52 offices located in twelve districts and seven specialized divisions, the Office of the Public Defender is the largest legal services organization in the state, providing representation in over 230,000 matters a year to more than 70,000 clients.

The demand for scientific evidence in criminal prosecutions is great.  Its use significantly contributes to the outcome of cases.  Our attorneys must routinely scrutinize forensic science evidence generated by 5 local law enforcement laboratories, a state laboratory (with two satellite offices), the FBI, and private laboratories that perform contract work to reduce backlogs (typically funded with federal grant money).  Forensic science evidence is routinely used in misdemeanor drug possession cases, incarcerable traffic offenses (including alcohol or drug impaired cases and vehicular homicide cases), domestic violence cases, felony prosecutions for violent crimes or drug distribution, juvenile court, violation of probation or parole hearings, and child abuse or neglect cases.  My team provides over 2,000 forensic consults a year, and is responsible for retaining over 400 experts a year across these very diverse disciplines.  My recommendations to you are based on this actual casework.

OPD, like every stakeholder in the criminal justice system, has a strong interest in ensuring that only reliable forensic science evidence is used when a person’s liberty interest is at stake.  Unfortunately, the integrity of the scientific process that is essential to ensure the validity of the evidence is too often distorted by the central metric of success in criminal prosecutions:  aiding an investigation, reducing backlogs, or securing a conviction.  It is the experience of the Public Defender that when “success” for a forensic scientist is defined by whether the evidence helps the prosecution secure a conviction, the accuracy of the fact-finding process can be substantially undermined.  When the central metric of success creates a powerful incentive for analysts to exercise judgment and discretion in favor of furthering a prosecution, a true culture of science cannot take root.  The measure of success must be the reliability of the forensic science evidence.

We see the distorting effect of the powerful incentive to aid the prosecution across every discipline.  It’s shocking when an accredited, licensed, certified laboratory conducts a chemical analysis of a client’s urine and reports a “positive” when that same data would be reported as “negative” by a laboratory not involved in the case.  Or when a local laboratory conducts a DNA test of evidence and reports that the defendant is a possible contributor that an adjacent county’s laboratory would report as inconclusive.  When we see a report altered and then re-written in cryptic language to mask contamination.  It frightens me when we discover disagreements among pattern impression experts.  How often does that happen?  We don’t know.  Or when a forensic pathologist bolsters a prosecution with time of death calculations expressed with a degree of confidence unsupported by the evidence.  Recently, I was involved in obtaining a new trial for a client convicted of murder where the state had introduced DNA evidence that purported to include the defendant as a possible contributor of DNA on the murder weapon, but which, as the trial court concluded after conviction, had no scientific basis.

In Maryland, the Department of Health and Mental Hygiene licenses laboratories that perform forensic analysis (exclusive of federal agencies).  Every individual expert (including defense experts) who is not employed by a licensed laboratory must be approved by DHMH before he or she may conduct a forensic analysis.  In addition to being licensed, our state and local laboratories are accredited by ASCLAD and/or ISO 1725.  We support accreditation and best practice standards, but not when accreditation and licensing is used to create an illusion of reliability.  In practice, rigorous audits and independent oversight are sorely lacking despite regularly filed certifications that an independent government entity exists to conduct investigations of serious misconduct in a laboratory.  It’s the experience of the Public Defender that the single most important way to ensure reliability of forensic evidence is a properly trained defense attorney with access to necessary resources and experts.  Yet our efforts are often frustrated by a lack of transparency and discovery.  These are the pillars of a culture of science.  Sunlight is the best antiseptic.  There must be incentives for behaviors that further transparency and discovery.  Success cannot be defined by a conviction.

We offer these two (zero dollar) recommendations that can be immediately implemented to improve the culture of science and reliability and move away from a culture centered on securing a conviction:

  1. A statement of interest should be prepared by the Department of Justice that explains the vital need for discovery of scientifically relevant evidence. Assuming certain guidelines are satisfied, counsel for the indigent could request DOJ to file it in a pending case.
  2. Redefine the metric of success for federal grants to decrease emphasis on backlog reduction or investigations aided (or other measures that focus on obtaining a conviction) and move towards behaviors that further the goal of reliability and enhance a culture of science. For example, possible metrics could be the number of times a laboratory produces a case file during the discovery of a criminal case.  Or, the number of times a laboratory meets with defense counsel or conducts testing for the defense.

We offer these two (zero dollar) recommendations to be implemented on a longer-term basis:

  1. Foster competition among local laboratories to produce reliable evidence by developing a framework for indigent defense access to law enforcement laboratories for the purpose of testing of evidence.
  2. Develop detailed guidelines for rigorous audits that create incentives for laboratories to (1) embrace a culture of transparency; (2) document the basis for opinions and conclusions sufficient for an outside expert to base an independent judgment; (3) document discrepant results and take corrective action; and (4) meaningfully review testimony.

In closing, I will share with you an example of how a laboratory incentivized by a culture of science can have a positive impact.  Our single largest category of forensic evidence is drug testing.  There isn’t really a dispute over how it should be done; the question is generally whether in fact it was done in a particular case.  As recent scandals in drug testing laboratories across the country illustrate, there must be constant scrutiny of the work being performed.  Complacency breeds incompetence.  For our clients, the stakes are enormous.  So discovery is essential to answer that question.  And it is not burdensome:  about 8-12 pages typically in a drug case of the results of scientific testing that a laboratory maintains in a case file.  But when our attorneys request this essential discovery (pursuant to the plain language of our district court discovery rule), they are often met without outright hostility by the prosecution and court.  You would not be impressed with the arguments made to oppose the production of the results of scientific testing.  In Baltimore City however, the laboratory has recently taken a different approach:  it agrees that the defense is entitled to obtain the discovery.  That is a game changer.  It is behavior that is incentivized by a measure of success that is focused on reliability—not aiding the prosecution or securing of a conviction.  It demonstrates confidence in the integrity of the work performed.  It is an important step towards realizing a culture of science in a forensic laboratory.

Thank you for the opportunity to address this important issue that is central to public confidence in the integrity of our criminal justice system.

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