Investigating Forensic Problems in the United States: Executive Summary

How the Federal Government Can Strengthen Oversight Through the Coverdell Grant Program

Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

With a new Administration—and an increasing national interest in ensuring that taxpayer money is spent wisely and that the criminal justice system relies on the best evidence possible— this report outlines what has gone wrong in enforcing existing forensic oversight laws and how it can be made right. The report describes the federal forensic oversight program; outlines the problems that have plagued the program since its inception (with specific examples); explains the consequences of the federal government’s inadequate administration of the program; shows how forensic negligence and misconduct lead to wrongful convictions; and gives specific recommendations for what the federal government, states and individuals can do to strengthen forensic oversight.

The Oversight Congress Intended to Create
In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities. In order to receive the federal funds, applicants are required to designate independent external government entities to handle allegations of serious negligence or misconduct affecting the quality of forensic analysis in facilities that receive Coverdell grants, and those oversight entities must also have a process for handling such allegations.

The need for forensic oversight has been underscored in recent years by cases of people across the country who were wrongfully convicted based, at least in part, on forensic negligence or misconduct. There have been more than 230 DNA exonerations nationwide since 1989. Unvalidated or improper forensic science contributed to more than half of those wrongful convictions, and a number of them involved forensic negligence or misconduct. These cases show that despite the best efforts of the forensic science field, some lab technicians make both inadvertent and
calculated errors—and some forensic facilities lack proper procedures and safeguards to ensure quality analysis.

Forensic errors should be investigated with the same rigor as any other public safety hazard. When the National Transportation Safety Board investigates an airplane crash, they focus on identifying the root cause of the crash and recommending solutions to prevent future crashes, rather than blaming specific individuals or addressing only the immediately obvious symptoms of the problem. However, this type of thorough, objective investigation into forensic errors is exceedingly rare. While the Coverdell program does not address all of the forensic problems that can compromise the criminal justice system, Congress created the forensic oversight mechanism so that serious allegations of negligence or misconduct could be addressed—and could lead to systemic improvements
in forensic facilities.

Congress designated the U.S. Attorney General to administer the program. Several agencies within the Department of Justice have a role in the Coverdell program. The National Institute of Justice (NIJ) distributes the funds under the management of the Office of Justice Programs (OJP), and the Office of the Inspector General (OIG) monitors how the program is being administered.

Oversight Falls Short Because of Poor Federal Administration
The Coverdell grant program has not yet grown into the rigorous forensic oversight mechanism that Congress intended. Since the program’s inception, the Innocence Project has closely monitored OJP’s administration of the program, states’ compliance with the law’s requirements and the processes through which individual allegations under the Coverdell program have been handled.

The Innocence Project has obtained copies of many allegations of serious misconduct or negligence that have been filed since the program’s inception, documentation on how those allegations were handled, data on how much federal money has been given to individual crime labs and other forensic facilities, and information on the oversight mechanisms those facilities have designated. The Innocence Project has also contacted every entity that was designated in 2007 to handle allegations of serious negligence or misconduct in crime labs and forensic facilities that receive Coverdell funds.

In 2007, (the most recent year for which comprehensive information could be gathered), 189 forensic facilities applied for Coverdell grants, sometimes under the auspices of a broader government agency. A total of 182 oversight entities were designated by those applicants. Some applicants designated multiple oversight entities and separately, some oversight entities were designated by multiple applicants. In all, there were 256 relationships between applicants and oversight entities. The Innocence Project survey evaluated these 256 relationships.

Using this information—and applying the clear meaning of the federal law that created the oversight mechanism—the Innocence Project concluded that most forensic oversight mechanisms are not appropriate. This research and analysis found:

• Since the inception of the Coverdell program’s forensic oversight requirement, approximately 15 allegations of serious negligence or misconduct affecting the quality of forensic analysis have been filed.

• All 50 states have received funding under the Coverdell program since its inception, and the total amount dispersed so far is nearly $100 million.

• Of the 256 relationships that the Innocence Project evaluated, only 234 could be judged on their independence, externality or their investigative process. The remaining 22 may have disavowed their role in providing forensic oversight under the Coverdell program, or the entity may not have been appropriately “governmental,” or a specific individual may have been designated to conduct investigations rather than an entity.

• Only 61% of the oversight entities are independent from the crime labs or other facilities they would be investigating, as required by federal law.

• Only 32% of the oversight entities designated by Coverdell grant recipients are both independent
and external.

• Of the 32% of oversight entities that are appropriate, only 40% also have an appropriate process in place to conduct investigations.

• Consequently, only 13% of the oversight entities meet all of the requirements under federal law—that they be external and independent, and that they have an appropriate process in place for handling investigations.

The Innocence Project research isn’t the only indication that the Coverdell grant program is falling far short of Congress’ intent because of poor federal administration. The U.S. Department of Justice’s Office of the Inspector General has monitored OJP’s administration of the Coverdell program and has issued two reports outlining serious problems. One report was issued in December 2005 (reviewing OJP’s early administration of the program), and the second was released in January 2008 (reviewing OJP’s enforcement of the program for Fiscal Year 2006).

Those reports found:

• In 2005, the first year that funds were dispersed under the new oversight requirement, OJP did not require grant applicants to identify the oversight entities they designated. (After the report was issued, OJP began requiring applicants to identify oversight entities, beginning in Fiscal Year 2007.)

• Of the 223 applicants for Coverdell funding in 2005, 39% did not provide certifications that they had an external investigative entity or process in place (or provided incomplete certifications), and an additional 25% simply quoted the language of the statute but did not name their external investigative entity or process. Only 4% provided a letter or signed certification from the investigative entity.

• In its 2008 report, the Inspector General found that 34% of the oversight entities in Fiscal Year 2006 were not appropriate because “they lacked either the authority, the capabilities and resources, or an appropriate process to conduct independent external investigations into allegations of serious negligence or misconduct.”

• The Inspector General’s 2008 report found that applications for Coverdell funding from 38 forensic facilities (or more than 15% of those reviewed) were signed by people who were not from the agency applying for funds—and all of the 38 still received Coverdell funds.

All of these problems stem from the federal government’s poor administration of the Coverdell grant program’s oversight requirement since its inception. The consequences are as clear as they are grave: serious problems in crime labs and other forensic facilities are not properly investigated, and systemic problems that the Coverdell program is supposed to remedy are left uncorrected — weakening the criminal justice system’s ability to apprehend the guilty and exonerate the innocent.

Recommendations for Improvement
The federal government, state and local governments, and individuals can all help ensure that the Coverdell grant program becomes the vehicle Congress intended to maintain quality forensics. Foremost, we are optimistic that the new Administration’s Department of Justice will begin to manage the program properly and for the first time give grant applicants the tools they need to comply with federal law.

Specifically, this report outlines what OJP needs to do for the Coverdell grant program to operate as Congress intended. The recommendations include:

• Provide better guidance to applicants about what qualifies as an “independent external government entity” and an “appropriate process” for conducting investigations under the Coverdell program’s forensic oversight requirements.

• Require applicants to specifically certify that the oversight entity knows it has been designated to receive allegations and handle investigations, articulating how the entity is independent and external, and spelling out the process the entity would use to conduct an investigation.

• Make it easier for forensic employees, criminal justice practitioners and members of the public to file allegations of forensic negligence or misconduct under the Coverdell program.

• Make sure labs are referring allegations to their investigative entities.

• Monitor thoroughness and independence of investigations.

• Withhold funding when the requirements aren’t met — but only after giving Coverdell grant recipients the guidance, information and time they need to comply with the requirements.

In addition to details on these and other recommendations, this report includes background that substantiates widespread noncompliance with requirements Congress established in the Coverdell grant program. The report also includes comprehensive information on grant recipients and their oversight mechanisms, as well as resources for filing allegations under the Coverdell program and following up to ensure that proper investigations
are conducted.