The crime lab under a microscope

by Mara Leveritt on June 20, 2011

It’s safe to say that the work of Arkansas’s crime lab, and especially that of Dr. Frank Peretti, one of its medical examiners, will be scrutinized at December’s evidentiary hearing for the West Memphis Three. Defense attorneys have already challenged the scientific accuracy of Peretti’s conclusion that a knife caused the injuries to two of the three victims.

Prosecutors used Peretti’s testimony to support their contention that the children were murdered as part of a satanic ritual. However, in October 2007, seven forensic pathologists testified that the injuries Peretti attributed to a knife were more likely inflicted by animals—possibly dogs, raccoons or turtles—after the boys were killed and their bodies submerged in a water-filled ditch.

Defense attorneys for Damien Echols and some of the pathologists held a press conference to announce those opinions. The group also met with Peretti and other officials at the Arkansas crime lab, seeking a collaborative approach to reviewing the autopsy evidence.

That request was denied. And soon after, Arkansas Attorney General Dustin McDaniel issued a statement that captures the conflicted alliance between politics and science that exists in most crime labs, including Arkansas’s. McDaniel said: “While the state will look at the new allegations and evidence objectively, it stands behind the conviction of Mr. [Damien] Echols and that of his codefendants and does not anticipate a reversal of the juries’ verdicts.”

The question arises: how objectively can a scientist look at evidence if his employer—in this case the state—has already announced its support of the original conclusion?

Channell

I recently raised that question with Peretti’s ultimate boss, Kermit Channell, the executive director of the Arkansas State Crime Laboratory. [private]When Channell noted that he cannot speak of the West Memphis case due to the gag order imposed by Judge David Laser, we agreed to discuss in more general terms how the crime lab responds to findings that conflict with its own.

The lab’s Quality Manual states that, “External complaints that question the analytical results of an analyst will be investigated.” The manual also outlines procedures to be followed if the complaint is found to be valid.

I asked Channell if he would consider a press conference by a group of distinguished pathologists an “external complaint.” Channell said he would not, because, “Experts have differences of opinion. We don’t see those as complaints. We’re faced with dueling experts in court all the time.”

Fair enough. Then, I asked, is there a form or procedure by which someone can register an external complaint? Channell said there is not, and that he does not know of an external complaint having been filed with the crime lab in the four years he’s been director.

How then, I asked, do scientists at the crime lab respond when others in the scientific community challenge the accuracy of their work?

Channell pointed out that both the Arkansas crime lab and its medical examiners’ office are audited and accredited—something that cannot be said of similar agencies in many other states. Yet it was clear that the issue of his lab’s objectivity was a sensitive one.

“We take pride in our work,” he said. “We don’t work for the prosecutors. We don’t work for the police departments. We are an independent state agency.”

He emphasized: “I don’t report to a chief of police. I report to the governor.” Matt DeCample, spokesman for Gov. Mike Beebe, agreed: “The executive director is appointed by the governor, and the governor can also fire him.” But, Decample added: “The duties, responsibilities, qualifications and compensation of the executive director are all set by the board.”

According to DeCample, the board is charged with defining the executive director’s job and maintaining “direct oversight” of it. What’s more, he noted, the qualifications for appointment to the crime lab board are established by law.

DeCample emailed me a list of the crime lab’s current directors. It included: one circuit judge; a prosecuting attorney, a deputy prosecuting attorney and a former prosecuting attorney; two physicians (one the dean of the University of Arkansas’s College of Medicine and the other a surgeon); a county sheriff and “one seat currently vacant” to be “held by an active police chief.”

So, the board of directors for the Arkansas State Crime Laboratory consists of one judge, three current or former prosecutors, two police officers, and two physicians. Yet even that meager representation of scientist is not accurate. According to Channell, the dean of the college of medicine, though required by law to serve, is not currently on the board.

Does any of this matter? It does.

The crime lab is supposed to be an unbiased scientific entity. “Independent,” as Channell said. And courts regard it as such. Yet the board authorized to define the executive director’s job and watch how he handles it is comprised primarily of police and prosecutors. At present, the one physician on the board is not even a pathologist, and  the board is not required even to have one.

In practice, the crime lab works closely with police and prosecutors. It works in relative isolation and can lack the collegial challenges that confront scientists in larger, competitive institutions.

A report published in 2009 by the National Research Council addressed what it called the “Needs of the Forensic Science Community,” now that DNA tests have proven that the testimony of many forensic scientists resulted in wrongful convictions.

That report, titled “Strengthening Forensic Science in the United States: A Path Forward,” stated this: “Government reports over the years have recommended that a medical examiner system should be an independent agency or should report to a commission so that it avoids any conflicts of interest and so that it reports directly to the jurisdictional governing body.”

Some reformers suggest that a state crime lab should be part of the Health Department; that its services should be available to anyone for a fee, like a university hospital; and finally that the crime lab be managed by a three-person panel, with appointees recommended by the state attorney general, the public defender’s office, and the legislature’s judiciary committee.

No system is going to be perfect. But something is clearly wrong when attorneys for a man facing a sentence of death cannot obtain even cursory information from the crime lab of the state that sentenced him, as has been the case with Echols.

In a pre-hearing brief filed in February, lawyers for Echols told Judge Laser that their efforts to find out from the crime lab how many autopsies Peretti performed in the years 1992, ’93 and ’94 had been ’rebuffed.” According to Echols’ brief, the lab replied that the attorney general’s office said that the records would only be released if Echols’ attorneys got a court order.

Thus, in the February brief, Echols’ attorney, Stephen L. Braga, wrote: “Since the attorney general’s office has already apparently decided not to authorize the release of this information to Echols’ counsel, Echols hereby asks this court to do so.”

Braga also told the court that he had written to Peretti’s boss, Dr. Charles Kokes, on April 21, 2010, requesting “copies of all autopsy reports, photographs, toxicology reports, written notes (including bench notes), field investigator reports, police reports, phone logs and/or communication sheets in the medical examiner’s office file(s) from May 1993 to date relating to the ME office’s work on the autopsies of the victims in this case.”

Braga said he would pay the cost of copying and shipping. But eight months passed without a response.

Braga wrote to Kokes again on January 5 of this year. This time he asked: “Can you please let me know whether you will provide me with access to these materials voluntarily or not?” By Feb. 18, when Braga filed his brief, he wrote that Kokes had still not responded.

In that brief, Braga cited the pertinent section of the Arkansas Code: “The laboratory shall disclose to a defendant or his or her attorney all evidence in the defendant’s case.”

In the West Memphis case, at least, the laboratory’s actions belie claims of independence. [/private]

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