The crime lab in the age of the genetic panopticon.

• Author: Garrett, Brandon L.

UNFAIR: THE NEW SCIENCE OF CRIMINAL INJUSTICE. By Adam Benforado. New York: Crown Publishers. 2015. Pp. xx, 286. $26.

INSIDE THE CELL: THE DARK SIDE OF FORENSIC DNA. By Erin E. Murphy. New York: Nation Books. 2015. Pp. xii, 312. $27.99.

COPS IN LAB COATS: CURBING WRONGFUL CONVICTIONS THROUGH INDEPENDENT FORENSIC LABORATORIES. By Sandra Guerra Thompson. Durham, North Carolina: Carolina Academic Press. 2015. Pp. xvii, 236. $37.

INTRODUCTION

"Scientific evidence really nails this man to the wall," the Harris County, Texas prosecutor told the jurors in closing statements. (1) In February 1987, two men abducted and raped a fourteen-year-old girl in Houston, Texas (Thompson, p. 3). The victim initially identified two brothers and a man named Isidro Yanez, but after several suggestive lineup procedures were used, she instead identified George Rodriguez (Thompson, pp. 5-7). At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime, that a hair from the crime scene matched him, and that the person the defense sought to inculpate, Yanez, "beyond a doubt ... could not have committed the offense." (2) Rodriguez was convicted of aggravated kidnapping and aggravated sexual assault and sentenced to sixty years in prison (Thompson, p. 14).

But seventeen years later, the same hair was tested again, this time using DNA analysis instead of visual matching (Thompson, p. 17). The technology had changed, but so had the Houston police crime laboratory, which was in the midst of a crisis that would ultimately lead to the entire crime lab being shut down and recreated (Thompson, p. 222). The downfall and subsequent resurrection of the Houston crime lab mirrors the larger story of the ups and downs of the American crime lab, an institutional newcomer to the law enforcement scene.

Because millions of viewers watch media depictions of crime labs in shows like CSI: Crime Scene Investigation and Crime Scene and Bones, judges have considered instructing jurors on the so-called CSI-effect. (3) But the impact of the modern crime lab on criminal justice is far more complex than what is shown on television. The crime lab has permitted a stunning growth in the use of forensic evidence in criminal cases, but it has also brought with it new challenges, scandals, and concerns (Thompson, pp. 150-61). These range from poor quality control (Thompson, p. 44), backlogs in processing material (Thompson, pp. 46-49), privacy breaches, to outright fraud and misuses of the science (Thompson, pp. 39-43). Today, the scientific community is increasingly involved in rethinking the standards crime labs use, (4) while judges and the bar have had to improvise as they intervene to untangle the mass scandals that result when crime lab work goes terribly wrong in thousands or even tens of thousands of cases. (5) Scholars have studied the institution of the prosecutor, the public defender, and the operation of criminal courts; now the crime lab is deservedly receiving academic attention.

Three wonderful recent books examine different aspects of the changing relationship between science and criminal law. In this Review, I hope to do justice to all three, and I hope that what I write can encourage you carefully read each of these remarkable books. The case of George Rodriguez illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the Houston lab, to introduce the first of three books: Sandra Guerra Thompson's Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories. (6) Second, I will turn to Erin Murphy's (7) book, Inside the Cell: The Dark Side of Forensic DNA, to explore why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado's (8) book, Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law. Here, though, I will focus on his exploration of cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice.

1. THE LEGAL REGULATION OF CRIME LABS

   Although the victim had identified George Rodriguez based on "the way he stood," this eyewitness identification was fairly weak. She had not identified him initially, and police later used a suggestive, one-on-one "show up" procedure to secure the identification. (9) Moreover, Rodriguez's boss at the factory where he worked testified that he was at work during the entire day of the assault (Thompson, p. 8). With an otherwise weak case, the prosecution relied on the forensic evidence at trial. The crime lab analyst testified that Rodriguez's hairs and blood type both matched the evidence taken from the victim (Thompson, pp. 11-12). In 1987, DNA testing technology was still in its infancy. Lacking the ability to conduct a DNA test, the crime lab analyst found the single hair located on the victim's panties to have been "consistent with" those from Rodriguez, based on a simple examination of the hairs under a microscope (Thompson, p. 12). In recent years, the scientific community has called into question whether such microscopic hair comparisons can ever be used to reliably link evidence to individuals. (10) The community has also asked whether it was appropriate to call hairs a match absent any data on how many others could similarly have such "matching" hairs. (11) The second type of test that the analyst conducted, though, was a valid one: familiar A, B, and O blood-typing of swabs from the rape kit (Thompson, p. 12). Of course, large percentages of the population share each of those blood types. (12) At trial, the analyst testified that Rodriguez could have left the stains and also helped to refute the defense theory in the case. The analyst testified that Yanez was definitively excluded since "one would predict his genetics would show up as a donor in a sexual assault" and blood of his type was not observed on the victim's panties. (13) This was flat-out wrong. In reality, neither Rodriguez nor Yanez could be excluded, nor could most males in the entire population. (14) Thus, the serology results were not probative in any way (Thompson, pp. 12-13). At trial, however, Rodriguez's defense lawyer did not question the crime lab analyst about those flaws in the analysis and presumably did not even realize that the findings were erroneous (Thompson, p. 13). (15)

   After losing all of his appeals, Rodriguez languished in prison for eighteen years. And he might have remained there for far longer, since the biological evidence in his case was mostly destroyed by the crime lab, had it not been for a single hair that had miraculously been saved (Thompson, pp. 13-14, 16). By 2003, scientists could conduct mitochondrial DNA testing on even a single hair (Thompson, pp. 16-17). The New York-based Innocence Project stepped in, secured the DNA tests, and the very hair found "consistent" at trial now exonerated Rodriguez. His conviction was vacated by the Texas Court of Criminal Appeals in 2005 (Thompson, pp. 16-17).

   Sandra Guerra Thompson tells this saga in her new book, Cops in Lab Coats, using the case and its fallout as an entry point to explore what is wrong with our crime labs. Thompson suggests that the problem was that this was a police-run crime lab, where analysts worked hand-in-hand with the police investigating the case (Thompson, pp. 16-17).

   Yet the idea that anyone other than the police would test evidence from crime scenes is itself a novel one. Using scientific evidence to solve crimes was a thrilling innovation when Sir Arthur Conan Doyle created his legendary character Sherlock Holmes, but the reality of forensic practice lagged far behind fiction. In the United States, J. Edgar Hoover established the first American crime lab at the FBI, setting up shop in 1932 in a single room. (16) The FBI Technical Crime Laboratory began to train agents to examine latent fingerprints, handwriting, and ballistic evidence. That crime lab garnered early fame when its analysts performed high-profile work in the Charles Lindbergh kidnapping case. In time, the FBI lab became the largest crime lab in the country and the center of innovation and training on forensics in the United States. (17) The advent of DNA testing could have challenged the FBI's claim to the title, but the FBI reasserted its forensic primacy in the modern world of DNA testing as well.

   Today, crime labs are run largely by local law enforcement and serve state and local jurisdictions. There are over four hundred public crime labs in the United States, as well as several private crime labs, particularly in the for-profit DNA testing area. (18) The federal Bureau of Justice Statistics has irregularly conducted surveys of crime laboratories, and has documented a steady increase in their size and funding. In 2002, there were 11,000 fulltime personnel at crime labs; by 2009, there were about 13,000. (19) This personnel expansion was, unsurprisingly, also accompanied by larger crime lab budgets. (20) Crime labs vastly expanded their footprint due to the drug war, with its demands for high-volume drug testing, and the advent of DNA testing, which required...