By Carol Lundberg
Michigan Lawyers Weekly
As they sit in their cells, a large number of Michigan prisoners who say they are not guilty are facing what may turn into many long, cold seasons of uncertainty.
Kym Worthy, the Wayne County prosecutor, has created a process for examining and retesting five years’ worth of cases that may have been tainted by inaccurate forensic evidence processed and analyzed by the Detroit Police Department Forensic Services division.
That, James Neuhard, director of Detroit’s State Appellate Defender Office, is a start, a good start. He said the transparency of the plan and Worthy’s willingness to retest all firearms evidence are more than he could have asked for.
But, Neuhard added grimly, “If you’re an inmate and your case was impacted by bad evidence, three years is a long time to wait. “
The number of such cases, he said, is probably in the hundreds, and could be in the thousands.
Worthy said, “Cases may have to wait up to three years to be reviewed. " That’s how long she’s expecting it will take to review the last five years’ worth of files, she said.
Worthy announced her plans to establish a Forensic Evidence Review Unit in response to problems uncovered in April of this year at the Detroit Police forensics labs.
According to a Michigan State Police audit, which Worthy requested, error rates in firearms evidence analysis were as high as 10 percent. The audit also uncovered systemic flaws in the forensics laboratories, such as lack of training, inadequate storage, and a failure to meet most of the criteria required for forensics laboratory accreditation. (See “One case triggers critical audit of lab, reassignments, partial closure” this page).
Worthy’s plan makes the first priority the retesting of firearms evidence in cases in which the convicted are still behind bars and the firearms evidence led to the convictions.
Although Neuhard praised the overall plan, he is not happy with Worthy’s decision to review only those cases that included firearms evidence.
Worthy defended her decision not to look into cases in which the Detroit lab produced analyses of DNA or other biological and trace evidence. She said she has “no evidence that other parts of the lab were compromised, but there were quality control issues throughout the entire lab. “
But Neuhard said, “We’re suspicious of it all. There’s no basis at this point for not being suspicious. “
The process for uncovering and retesting potentially flawed evidence was released by Worthy this month. A Forensic Evidence Review Unit, comprising an investigation group and a review group, will search for and evaluate cases in which tainted evidence is suspected. (See “Prosecutor unveils plan to retest bad evidence” this page).
Worthy has agreed that not only will every case that included firearms evidence in the last five years be evaluated, but everyone who comes forward - defense attorneys, defendants, inmates and their families - can request to have evidence retested.
The City of Detroit will be responsible for paying for the retesting and for the additional expense incurred by the prosecutor’s office, Worthy said. She has asked the Detroit City Council for $800,000 per year to cover the costs, though she acknowledged that the budget for the process is impossible to predict until the scope of the errors is known.
At this point it’s not.
“I couldn’t think of anything at this point that we could have asked for and that wasn’t included in the plan,” Neuhard said. “Whatever we’ve asked for, [the prosecutor’s office] did. At this point all we’re doing is organizing and testing evidence. The idea has been: Let’s find the cases and get them tested. Then the results will be sent out, and we’ll go to court. “
But the process is not without its flaws. One of the unavoidable issues is the length of time needed to uncover the evidence in only those cases that included firearms analysis.
Because the prosecutor’s office does not have the capability to perform full-text searches of its electronic database of its cases, files will have to be sorted and examined by hand, Neuhard said.
The plan also calls for defense attorneys, inmates and family members of defendants and inmates to come forward to help identify cases.
SADO, which does keep an electronic database, will assist in finding cases that may have been affected by lab errors.
“We only take about 25 percent of the total [appeals] cases, though, so even that is an incomplete solution,” Neuhard said.
The plan is to examine cases five years old and newer, which is a good start, said William Winters, president of the Wayne County Criminal Defense Bar Association, but it isn’t enough.
“Five years is insufficient to satisfy our concerns,” he said.
Even if the plan were to examine cases more than five years old, there’s no guarantee the retesting could occur, especially if the evidence no longer exists.
It’s common, Neuhard said, for police departments and laboratories to dispose of old evidence and for trial attorneys to destroy old files.
“So there will be cases out there with no evidence and no files,” he said.
The primary goal of the plan, Worthy said, is to ensure that moving forward, the reliability of evidence is certain.
Both Neuhard and Winters say they are concerned that the laboratory isn’t completely closed.
In September, Worthy announced its closing, but it is still open for taking in evidence, although no evidence is being analyzed there.
The state police audit pointed to inconsistencies in labeling evidence and inadequate storage at the facility in Detroit, and Winters said he has heard stories regarding the handling of firearm evidence.
“I’ve heard of guns just being boxed up haphazardly,” Winters said. “This is a major issue that was addressed in the state police reports, the mislabeling and chain of custody issues. “
“It’s not a lab anymore,” Worthy said. “It’s more a clearinghouse for the evidence, which is sent to accredited labs. “
Winters said what most concerns him is that Worthy has the final say on the disposition of cases affected by bad evidence.
“The review group only makes an independent recommendation,” he said. “In order to truly be independent, the review group must be empowered to make dispositional decisions. “
Even if everything proceeds perfectly, the depth of the problem is not yet known, Neuhard said.
“The problem we have here that’s horrifying is that we don’t know how deep or wide the problem is. We’re trying to get a handle on it, but it’s been indicated that the entire lab had a breakdown in accountability,” he said.
@Author’s bio:If you would like to comment on this story, please contact Carol Lundberg at (248) 865-3105 or carol.lundbergmi.lawyersweekly.com.
Prosecutor unveils plan to retest bad evidence
Wayne County Prosecutor Kym Worthy is establishing a Forensic Evidence Review Unit to find and evaluate cases tainted by the Detroit Police Department Forensic Services division’s inaccurate analysis of firearms evidence.
Worthy’s unit will consist of two groups, an investigation group and a review group.
The investigation group will comprise one full-time, two part-time and three contractual assistant prosecuting attorneys, one investigator and one clerical specialist.
The group will review all cases handled by the prosecutor’s office between Jan. 1, 2003, and Sept. 25, 2008.
Its focus will be to transfer all evidence from the Detroit Police Department to the Michigan State Police crime lab, which now is testing Detroit firearms evidence. The group also will review adjudicated cases to determine the accuracy of the Detroit crime lab reports.
For those cases with inaccurate DPD reports, the group will write a recommendation and present it to the review group.
The investigation group will create a database listing defendants’ names, case numbers, DPD jacket numbers, types of evidence, evidence tag numbers, lab numbers and officers in charge.
In addition, the investigators will cross-reference in the database cases adjudicated in Wayne County’s 3rd Circuit Court, as well as prisoner lists obtained by the Michigan Department of Corrections.
The investigation group will prioritize cases, based on: the presence of firearms evidence processed at DPD; whether that evidence affected the verdict; and whether the defendant is still in prison or on parole.
The Detroit Police Department will then send the evidence to Michigan State Police labs for retesting; the investigation group will notify the defendants, and the defendants’ trial and appellate attorneys, as well as State Appellate Defenders Office in Detroit, and Michigan Appellate Assigned Counsel System.
The review group will comprise two chiefs or deputy chiefs of the Wayne County Prosecutor’s Office, and two contractual criminal defense attorneys and-or former judges. The group will review recommendations made by the investigation group, will make an independent recommendation to the prosecutor.
If the decision is to retry the case, the investigation group will be responsible to retry it.
BRIEFSHED:One case triggers critical audit of lab, reassignments, partial closure
The tapestry of errors by the Detroit Police Forensic Services division laboratories started to unravel in April of this year when Marvin Barnett, a veteran defense attorney representing a double-murder suspect, was unsatisfied by the firearms evidence in the case even though his client had confessed.
The client, Jarrhod Williams, was accused of being the sole gunman in the 2007 shootings.
So Barnett called in an independent investigator to analyze the evidence the crime lab had processed. The investigator concluded the evidence was so botched that Barnett doubted Detroit Police lab personnel had even examined it.
After seeing Barnett’s analysis, Wayne County Prosecutor Kym Worthy and former Detroit Chief of Police Ella Bully-Cummings called in the Michigan State Police to audit the lab’s firearms analysis unit. Williams was allowed to withdraw his no contest plea and was granted a new trial.
State police investigators found that in 29 of the 250 cases examined, there were errors and inconsistencies serious enough to affect the identification of the evidence. The investigators were also asked to examine evidence from 33 previously adjudicated cases, and they found errors in four.
According to the state police report, the majority of the firearms cases analyzed by DPD examiners resulted in “all fired evidence (bullets and shell casings) in a case being identified, which is a highly uncommon result. “
State police auditors further found that proper technical review of evidence was “almost non-existent” at the Detroit lab, and that the staff was lacking training, lacking reliable equipment, and lacking the proper storage space to ensure accurate, uncontaminated evidence analysis.
Worse, the firearms investigation unit was lacking support from police administration, and the report specifically stated, “There exists a lack of support for the firearms unit by the laboratory director. “
The director, Paula Lytle, retired soon after the lab’s problems became publicly known, said Detroit Police spokesman James Tate.
Among other issues, the 34-page Michigan State Police report said:
* Nearly 94 percent of the laboratory’s budget was for salaries and benefits, leaving little or nothing for training, equipment upgrades, facility improvements or professional development.
* Evidence documentation procedures did not preserve the integrity of the evidence, and a review of cases showed that 90 percent of the file jackets did not contain property receipts, calling into question chain-of-custody integrity.
* Meetings were erratic and undocumented, with the last documented meeting on April 28, 2008, in response to the Jarrhod Williams case, which touched off the audit.
* No training manual could be found. The auditors could not verify that one existed.
* The auditors found no formal documentation of training and competency testing.
* There was no money in the budget for training and travel.
* There was no library of books, journals or manuals.
* None of the examiners was a member of any professional firearms organization.
* The majority did not have post-secondary college degrees.
* In a three-year period, three examiners had not successfully completed proficiency tests, and one made two erroneous identifications in the 2006 test.
Cummings ordered the laboratory to stop analyzing firearms evidence, which since May has been sent to Michigan State Police laboratories.
The Detroit Police Forensic Services division housed four labs - firearms examination, forensic chemistry, biology and trace evidence, and a laser lab - in one building in Detroit.
After the errors in firearms evidence were found by Michigan State, the division’s seven sworn and 19 civilian technicians were reassigned to other duties, and the department began sending evidence to Michigan State Police for analysis.
According to Tate, some of the technicians have since left the department, as did Lytle, but none was fired as a result of the state police audit.
In the wake of the release of the preliminary audit, it was announced that the lab was closed, but Tate said that is inaccurate.
The DNA analysis and firearms analysis labs are closed, he said. But some lab functions - polygraph, latent prints, crime scene services, central photography, graphic arts, and the bomb squad - are still operational there.
The lab employees also are continuing to take in firearms evidence. They label and send the evidence to Michigan State Police, Tate said.
An internal investigation of the laboratory conditions and the error rate is continuing, Tate said. There is no estimated completion date for that investigation, he said.
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