NEW YORK STATE ASSEMBLY
STANDING COMMITTEE ON CODES
STANDING COMMITTEE ON JUDICIARY
STANDING COMMITTEE ON OVERSIGHT, ANALYSIS,
AND INVESTIGATION
PUBLIC HEARING ON
GOVERNMENT OVERSIGHT OF FORENSIC SCIENCE LABORATORIES
250 Broadway, New York, New York
Assembly Hearing Room 1923, 19th Floor
Wednesday, February 8, 2017
10:00 A.M. -- 2:15 P.M. Page 2 STANDING COMMITTEE ON CODES ET. AL. 2-08-17
ASSEMBLY MEMBERS PRESENT:
ASSEMBLY MEMBER JOSEPH LENTOL Chair, Assembly Standing Committee On Codes ASSEMBLY MEMBER HELENE WEINSTEIN Chair, Assembly Standing Committee On Judiciary ASSEMBLY MEMBER MATTHEW TITONE Chair, Assembly Standing Committee On Oversight, Analysis and Investigation ASSEMBLY MEMBER CHARLES LAVINE ASSEMBLY MEMBER JO ANNE SIMON
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INDEX
WITNESS Page
Panel: Erin Murphy 11 Professor, New York University School of Law Marvin E. Schechter 31 Attorney
Panel: Barry Scheck 79 Co-Director, The Innocence Project Former Commission Member, NYS Commission on Forensic Science Sarah Chu 124 Senior Forensic Policy Associate, The Innocence Project
Scott McNamara 128 District Attorney, Oneida County The District Attorneys Association of NY
Roger Muse 158 Vice President of Business Development ANSI-ASQ National Accreditation Board (ANAB)
Panel: Richard Torres 178 Attorney, The Legal Aid Society Benjamin Ostrer 188 Attorney, Ostrer and Associates, PC
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Panel: Sumana Harihareswara 197 Founder and Principal, Changeset Consulting Rebecca Wexler 210 Resident, The Data and Society Research Institute
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2 (The public hearing commenced at 10:00
3 A.M.)
4 ASSEMBLY MEMBER JOSEPH LENTOL, CHAIR,
5 ASSEMBLY STANDING COMMITTEE ON CODES: May I ask
6 everybody to be seated please? We’re going to
7 begin the hearing. We were just waiting for our
8 first witness but he’s not here yet. And we’ll
9 take him later on in the day if he shows up. So,
10 good morning everyone.
11 ALL: Good morning.
12 ASSEMBLY MEMBER LENTOL: I’m Assemblyman
13 Joe Lentol and I’m Chairman of the Assembly Codes
14 Committee. And I’m pleased to be joined by Helene
15 Weinstein, who is Chair of the Assembly Judiciary
16 Committee. And we’re expecting Matt Titone.
17 ASSEMBLY MEMBER MATTHEW TITONE, CHAIR,
18 ASSEMBLY STANDING COMMITTEE ON OVERSIGHT,
19 ANALYSIS AND INVESTIGATION: Yes, we are.
20 ASSEMBLY MEMBER LENTOL: And here he is.
21 And he came all the way from Staten Island to be
22 here with us. And Matt is Chair of the Oversight,
23 Analysis and Investigation Committee. I would
24 like to thank all of you for attending this
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2 morning and participating in this very important
3 hearing. Maybe the first one of its kind outside
4 of the Forensic Science Commission having
5 hearings, at least by the Assembly, that I can
6 recall. Many of you also have traveled long
7 distances to be here. And I know I speak for all
8 my colleagues when I say how much we appreciate
9 your being here and your efforts.
10 New York State’s modern criminal justice
11 system relies on evidence gathered at crime
12 scenes, including fingerprints and DNA. This
13 evidence is processed through science
14 laboratories and assists law enforcement and
15 prosecutors in investigations which can lead to
16 conviction of a suspect. Disturbingly however in
17 recent years, there have been several instances
18 of misconduct in forensic labs and elsewhere in
19 the country, resulting in errors and falsified
20 results. These errors can range from systematic
21 failures to inexperience of staff, to failures in
22 following protocol.
23 The breakdowns could have been avoided
24 if there had been appropriate oversight in place
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2 I think. And a very frightening possibility that
3 errors committed in the analysis of handling
4 evidence might lead to a wrongful conviction
5 because, my God, we have enough wrongful
6 convictions already; should not be overlooked or
7 minimized.
8 Given the public’s reliance, having
9 watched all of the TV shows about crime and DNA
10 and law and order, that you know how important
11 DNA is in the public’s mind. So misplaced faith
12 in the integrity of poorly supervised and rarely
13 reviewed laboratories could lead to many innocent
14 prisoners languishing in our State prisons. So
15 this hearing is to examine what oversight
16 currently exists for forensic labs in New York
17 and how we as Legislators can work to make a
18 better system that ensures appropriate practices
19 are in place and that forensic labs are
20 appropriately supervised.
21 Before we begin I would like to note
22 that the State Police and the Office of the
23 Inspector General were all invited to testify but
24 they unfortunately chose not to appear. Division
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2 of Criminal Justice Services and the Medical
3 Examiner of New York City and the New York Civil
4 Liberties Union were unable to attend today but
5 they all have or will be submitting testimony,
6 just so that you know that.
7 With that, let’s get started. I’d like
8 to ask witnesses to first introduce yourself and
9 what organization you represent. And as a
10 reminder, we expect this to be a long hearing and
11 we want to limit witnesses in their testimony to
12 ten minutes; so that we can ensure that all of
13 those testifying get a chance to testify and an
14 opportunity to be heard and enough time for us
15 the Members to ask you questions. So remember,
16 please introduce yourselves for the record.
17 And the first witness will be another
18 first in New York State. This is the first Skype
19 witness that has ever testified before an
20 Assembly Committee. I don’t know about Senate
21 Committees. And that witness will be Barry
22 Scheck, Co-Director. Now he’s on a panel with
23 Sarah Chu. Is she in the audience or is she also
24 on Skype? Sarah, why don’t you step up and sit
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2 and introduce yourself. And we’ll let Barry
3 introduce himself by Skype and I hope we can hear
4 him because I know all of you want to hear what
5 he has to say and so do I. Does anybody else
6 before we begin, any Member have a statement to
7 make? Matt Titone?
8 ASSEMBLY MEMBER TITONE: Certainly,
9 sure. Just while we’re waiting --
10 ASSEMBLY MEMBER LENTOL: Chairman
11 Titone.
12 ASSEMBLY MEMBER TITONE: Thank you,
13 Chairman Lentol. Chairman Lentol actually had
14 mentioned that this is one of the first of its
15 kind that we’ve ever had but it certainly is in
16 my mind one of the more important ones that we
17 will be doing this year. It’s important not only
18 to victims and their families but to an accused
19 and their families but also to law enforcement;
20 because law enforcement needs to know and our
21 district attorneys need to know that the evidence
22 that they are presenting to we the people is
23 accurate and reliable. So, I think this is a
24 really great step towards ensuring true justice
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2 in the State of New York.
3 ASSEMBLY MEMBER LENTOL: Thank you,
4 Matt. Are we having trouble electronically
5 already? I always pull out the plug and then plug
6 it back in. While we’re waiting, I just want to
7 take this time to thank the staff of the Assembly
8 Codes Committee and the Assembly Judiciary
9 Committee for assisting in the preparation of
10 this hearing, especially Nate Jenkins, who’s
11 sitting in the back, who did most of the legwork
12 to get you all here and to prepare us for this
13 important hearing. Thank you, Nate. And thank
14 you, Nadia, for being here as well, for helping
15 as well. Maybe Sarah can start with her testimony
16 and we can wait until we -- yeah, we can do an
17 audio? This is an example of how technology can
18 fail us. I know it’s not our tech wizards in the
19 back because they spent all day yesterday and
20 today trying to prepare us for this Skype
21 testimony.
22 We can go to the next witness and call
23 him next; alright, Sarah? Okay, let’s do that
24 instead of delaying. McNamara, the District
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2 Attorney of Oneida County, the President of the
3 District Attorneys Association?
4 This may be good, we have the next
5 panel: Marvin Schechter, Attorney, and Erin
6 Murphy, who is a Professor at the New York
7 University School of Law.
8 MS. ERIN MURPHY, PROFESSOR, NEW YORK
9 UNIVERSITY SCHOOL OF LAW: Good morning.
10 ASSEMBLY MEMBER LENTOL: We’ll begin
11 with you, Erin, or does Marvin want to start?
12 MS. MURPHY: I guess I’m first up. I was
13 anticipating to be a little more background. So
14 hopefully my remarks will fit in well. But thank
15 you, Chairman. We’ll jump right in. Good morning.
16 My name is Erin Murphy and I’m a Professor at NYU
17 School of Law. My research relates to the use of
18 forensic evidence in the criminal justice system,
19 with a particular emphasis on DNA technologies.
20 And I’m the author of the 2015 book Inside the
21 Cell: The Dark Side of Forensic DNA. I’m proud to
22 report my work on these issues has been widely
23 referenced and reproduced, including in citations
24 by the Supreme Court of the United States.
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2 My expertise rests in general issues
3 surrounding forensic evidence, rather than an
4 intimate familiarity with New York courts and New
5 York practice. But I hope my testimony will place
6 into context some of New York’s own experiences
7 with the larger fabric of forensic testing in the
8 United States. As we heard from Assemblyman
9 Titone, I think we all agree that the protection
10 of our safety and liberty in our State turns on
11 reliable and accurate forensic testing.
12 Over 20 years ago, New York established
13 itself as a leader in the field of forensic
14 science by passing the law that created the
15 Commission on Forensic Science. And that law
16 paved the way for a promising future of
17 meaningful oversight for testing and analysis.
18 Among other things, the law explicitly tasked the
19 Commission with setting accreditation standards
20 for labs and minimum qualifications for certain
21 personnel. It also established the State DNA
22 Index, setting into place one of the law
23 enforcement’s most powerful tools for identifying
24 suspects and exonerating the wrongly accused.
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2 New York in enacting this legislation in
3 1994 immediately distinguished itself from other
4 states. At that time few laboratories conducted
5 DNA testing at all, much less in any kind of
6 systematic way. And most forensic laboratories
7 were not accredited. What is more, accreditation
8 didn’t really mean much. It was essentially a
9 dues that you paid to an organization rather than
10 rigorous standards of reliability.
11 Unfortunately a lot has changed in the
12 forensic field since 1994, but not much at all
13 has changed in the law and practice of New York.
14 The system of oversight that was established long
15 ago has not proven up to its task. And sadly New
16 York has weathered a series of scandals, all
17 involving laboratories accredited under the
18 Commission’s regulations and overseen by the
19 Commission that nonetheless failed to meet even
20 basic standards.
21 To give just a hint of the scope of the
22 problem, the Office of the New York State
23 Inspector General has conducted search and
24 reviews into the practices at the Nassau County
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2 Police Department Forensic Bureau, the Morrow
3 County Public Safety Laboratory in 2009 and again
4 in 2012, the Erie County Department of Central
5 Police Services Forensic Laboratory, the Trace
6 Evidence Section of the New York Police
7 Investigation Center and New York City’s own
8 Office of the Chief Medical Examiner.
9 In each case the reports revealed not
10 just forensic analysts gone rogue but deep and
11 systemic flaws in the oversight, training and
12 management procedures at those laboratories. And
13 each of those reports provides detailed
14 suggestions for improvement that go beyond the
15 scope of the time I have here but I encourage the
16 Assembly to consider them closely.
17 So what can be done? First, the Assembly
18 and/or the Commission should set its own more
19 demanding standards for laboratory accreditation,
20 certification and proficiency testing. These
21 three features are the pillars of forensic
22 excellence. Accreditation just means that a
23 laboratory meets basic standards of competence in
24 its protocols, validation methods and operations.
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2 Proficiency testing speaks to the ability of an
3 individual analyst to competently perform his or
4 her job. And certification is an award or a
5 denomination given at a test or to show that they
6 can pass a demonstrable standard of knowledge in
7 their field.
8 So, first, accreditation. Although the
9 accreditation process has grown more rigorous,
10 the continued failures at accredited labs
11 demonstrate that it still fails to do enough to
12 safeguard lab integrity. One unknown factor right
13 now and I’m glad that we have a representative
14 from ANAB here is that there’s been a lot of
15 change recently in the field of forensic
16 oversight. For many years, the Association of
17 Crime Lab Directors or ASCLD ran an accreditation
18 program that functioned like a professional
19 organization. Eventually the laboratory
20 accreditation board of that organization broke
21 off, forming the accreditor known as ASCLD/LAB,
22 that as of 2014 accredited 73 percent of all the
23 accredited labs in the United States. The
24 alternative creditor known as FQS accredited
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2 another ten percent.
3 Recently, ANAB acquired both FQS and
4 ASCLD/LAB, which consolidates the market for
5 forensic accreditation. They’ve been in the
6 process of revising their accreditation standards
7 and I think we’ll hear more about those. But I
8 encourage this body to set standards that can
9 help guide them in terms of their implementation
10 of a new round of forensic oversight. What kind
11 of standards might those include? Well,
12 historically accreditation has been a purely
13 paper review, executed with full notice to the
14 laboratory with plenty of warning to anticipate.
15 Laboratories can object to assigned
16 accreditors. They choose the date of their
17 inspection. There’s no requirement that the lab
18 is assessed during field conditions. Instead it
19 can be in a sort of artificially pristine
20 environment. There is no component that requires
21 independent testing or retesting and
22 verification, such as through random pulls of
23 cases of the laboratory’s performance.
24 Accreditation occurs on a five-year cycle, with
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2 only check-ins in between and the accreditation
3 reports are not publicly available.
4 Similarly, with regard to proficiency
5 testing, proficiency testing typically requires
6 analysts to pass a declared test using samples
7 that often don’t match the challenges of true
8 field work. Instead more rigorous testing
9 standards would either involve random reanalysis
10 of existing work, so pulling existing cases and
11 then actually conducting an analysis again to
12 make sure that they are accurate or blind testing
13 that simulated real world conditions.
14 Nationwide only 35 percent of crime labs
15 conduct random reanalysis and this is down from
16 54 percent in 2002. Blind testing has also fallen
17 precipitously from 27 percent of labs in 2002 to
18 only ten percent today. And although some
19 criticize proficiency testing, blind proficiency
20 testing as too resource intensive and unworkable;
21 it’s significant that other jurisdictions do
22 successfully implement these programs.
23 In the Inspector General’s report on the
24 Nassau County Lab failure, a series of its
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2 concrete recommendations related to just these
3 matters; including requiring that the Forensic
4 Commission set minimum standards for each
5 discipline, encourage transparency and
6 accreditation and institute better programs for
7 proficiency and certification.
8 The Commission could also profit from
9 work done by the National Commission on Forensic
10 Science and the Organization of Scientific Area
11 Committees, which is housed within the National
12 Institute of Standards and Technology. Both of
13 these bodies have already put forward a wide
14 array of expertise in various areas.
15 Contrast New York’s treatment of
16 clinical laboratory testing or the program of
17 clinical laboratory evaluation. The federal
18 statute sets a two-year cycle for accreditation.
19 For complex testing, it requires proficiency
20 testing twice a year. It sets a limit of the
21 maximum number of slides a technician can screen
22 in two hours, to avoid the kind of mistakes or
23 incentives to dry-lab that are pervasive in
24 forensic science. It sets our rescreening rules.
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2 It requires unannounced inspections to full
3 access to lab materials and imposes restrictions
4 on testing done by labs with prior misconduct.
5 Or more pointedly, consider another
6 regime, regulatory regime altogether. Imagine an
7 oversight system that would start with random,
8 unannounced inspections at least once a year to
9 ensure the organization met a long list of
10 quality assurance standards. Imagine inspectors
11 would assign scores for compliance and any entity
12 not awarded the highest marks would receive a
13 second unannounced visit within a month to check
14 for improvement, followed by continued visits if
15 improvements didn’t occur.
16 Imagine the entity would be required to
17 post its score publicly and detailed reports from
18 these surprise inspections would be easily
19 available on a city website. Imagine that all
20 times the organization would be required to have
21 on hand supervisors certified in quality
22 assurance who would watch over line workers and
23 ensure proper procedures were followed.
24 Such a system would create not just
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2 powerful incentives for the audited organization
3 to perform to the highest standards but allow for
4 greater transparency for consumers over those
5 services to make educated judgments about that
6 entity.
7 If such a system sounds infeasible or
8 unrealistic or too intrusive, then notice that
9 it’s the exact system that New York City put in
10 place to safeguard the integrity of the 24,000
11 restaurants we have; each of whom must pass
12 rigorous food safety and handling standards and
13 make public the results. Geneticist Eric Lander
14 famously said: Clinical laboratories must meet
15 higher standards to be allowed to diagnose strep
16 throat than forensic labs must meet to put a
17 defendant on death row. In New York, we currently
18 seem to value the safety of our sandwiches over
19 the safety of our streets.
20 Second, mandate a root cause analysis
21 for every significant event involving forensic
22 testing. After the scandal involving the analyst
23 at New York City’s Office of Chief Medical
24 Examiner, the City Council of New York City
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2 convened a series of hearings that concluded in
3 the passage of New York City’s Administrative
4 Code 17-207.
5 That provision requires a root cause
6 analysis to investigate any significant event
7 occurring during the testing process. It helps
8 ensure that laboratories don’t just brush off
9 such errors as the product of a single lab but
10 rather investigate these systems fully and
11 including the management and supervision that
12 permitted that error to occur. It also ensures
13 these problems are brought to the attention of
14 the appropriate constituencies, such as city
15 officials, prosecutors and defense attorneys; so
16 that any necessary legal corrections can be made.
17 Such comprehensive self-analysis might
18 also improve the Commission’s own oversight
19 capacity. For instance, it’s become increasingly
20 clear that the existing structure of the Forensic
21 Science Commission limits it to paper reviews,
22 often by self-reported entities of problems
23 within labs. The Commission doesn’t conduct its
24 own independent reviews nor commission such
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2 reviews.
3 Thus, for instance, New York’s Inspector
4 General report on the Morrow County Lab revealed
5 that the director was able to mislead the
6 Commission in a situation involving analyst
7 deceit. In that case, the director reported that
8 the analyst’s failure to detect biological
9 material and stated that there were three
10 negative results in other cases. A Commission
11 member asked whether corrective action had
12 included retesting in those cases and the
13 director responded in language suggesting it had.
14 Later inquiry revealed this was not true. Only
15 one of the three cases had actually been
16 retested. But because the Commission had no
17 capacity to check those claims, they were
18 unchallenged.
19 Similarly, in 2011, the report
20 investigating the catastrophic failures of the
21 Nassau County Public Police Lab, the State
22 Inspector General concluded that the Forensic
23 Commission abdicated most if not all of its
24 responsibility for oversight of the State labs to
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2 the private accrediting agency.
3 Indeed, at that time the IG observed
4 that notwithstanding the Commission’s broad
5 legislative mandate, in the history of the
6 Forensic Commission no laboratory has ever been
7 served with a notice of alleged violations. In
8 short, the Commission rarely if ever exercises an
9 independent power to revoke or suspend a forensic
10 laboratory accreditation.
11 Three, reconstitute the Commission in
12 both its charge and its composition to better
13 serve as an independent voice for forensic
14 science. The Commission itself appears to have
15 structural flaws that prevent it from operating
16 as a truly neutral oversight body and perhaps an
17 insufficiently broad legislative mandate. The
18 current composition of the Commission is
19 prescribed by statute and its composition tilts
20 heavily in favor of government and laboratory
21 interests which often align.
22 Moreover, it is tasked chiefly with
23 accreditation and oversight in language that
24 appears to focus on technocratic tasks. But in
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2 reality the Commission’s decisions impact issues
3 that directly implicate legal practice, public
4 policy, constitutionality, ethics and privacy.
5 Yet, the Commission has failed either to take
6 meaningful steps to bring such debates to the
7 public or to press them toward legislative
8 resolution.
9 Compare for instance the Texas Forensic
10 Science Commission, which has emerged as the
11 national leader on state level forensic issues.
12 In contrast to the New York Commission, which has
13 only a skimpy web presence and makes it difficult
14 to find useful information; the Texas Commission
15 has an easily navigable, informative site that
16 reflects both the scope of their mission and
17 their transparency in serving the public. You can
18 easily find their annual reports, which contain
19 detailed information about complaints and pending
20 investigations. There are links to update the
21 independent review work they are doing in
22 microscopic hair analysis and DNA mixture
23 analysis that are prompted by efforts on the
24 federal level.
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2 There’s a link to submit complaints
3 about laboratory performance or analysis; a
4 separate place to inquire as to status of such
5 complaints; links for public information or
6 opportunities to testify. There are also links to
7 current information regarding specific laboratory
8 accreditation standards listed by laboratory, the
9 period covered and the type of evidence approved.
10 To be clear, New York has undertaken some of this
11 work but it fails to make its findings easily
12 accessible to lawyers and practitioners who will
13 benefit most from them.
14 Since the Commission’s founding there
15 has been a series of landmark events in forensic
16 science: a 2009 National Academy of Science
17 report, which is called Strengthening Forensic
18 Evidence, that called in question most forensic
19 disciplines; a series of pronouncements by the
20 Federal Bureau of Investigation regarding various
21 techniques, most importantly hair microscopy; and
22 the 2016 Presidential Council on Advisors of
23 Science and Technology Report.
24 These reports by blue ribbon panels pose
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2 serious questions about the quality of most
3 forensic evidence used in our courts. Yet, the
4 New York Commission has not responded
5 meaningfully and certainly not in a leadership
6 role to these challenges.
7 In contract, the Texas Commission has
8 led the way, taking bold stands on controversial
9 and discredited forensic methods, such as:
10 publicly calling for a ban on bite-mark evidence;
11 issuing reports to undermine the faulty myths
12 that pervade the field of fire investigation;
13 proactively requiring its laboratories to submit
14 their DNA mixture interpretation protocols to an
15 international expert panel; meticulously
16 retesting cases involving trace amounts of DNA in
17 light of the announcement by the FBI of
18 statistical error; and just generally serving as
19 a repository for the latest in forensic news. The
20 Texas Commission is functioning not as a passive
21 rubberstamp for government requests but is an
22 active oversight body and information repository
23 for forensic science in the state, as should our
24 own.
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2 Four, improve transparency in forensic
3 science. In some respects the prior point calls
4 for greater transparency. Given my time, I’m just
5 going to skip over that but I will point to the
6 New York City Council’s proactive efforts in this
7 regard also in passing a statute to improve this
8 issue.
9 Fifth, establish a resource council for
10 defense attorneys. We all recognize the critical
11 role that forensic evidence plays in criminal
12 cases. And yet I think we know that in the real
13 world, defense attorneys are not often able to
14 challenge and interrogate the evidence due to
15 pressures of their caseloads. In North Carolina,
16 one solution to this problem has been
17 establishing a Forensic Resource Council within
18 their Indigent Services. Since then that office
19 has served to advise the state’s public defenders
20 on forensic evidence in the case.
21 With little more than lean staffing and
22 a well-maintained web presence, the office has
23 collected scientific resources otherwise
24 inaccessible to attorneys by subject matter;
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2 provided resources to help attorneys understand
3 and monitor the state’s crime labs and analysts,
4 including accreditation and proficiency testing
5 results; giving resources to an array of experts;
6 giving templates for motions and orders;
7 collating testimony from analysts in prior cases
8 and even engaging in limited case consultation.
9 In addition the site provides access to
10 100 free online forensic training modules and
11 protocols for laboratories in the state. It’s a
12 highly cost-effective model. And it’s especially
13 effective in areas such as upstate New York that
14 have widely dispersed indigent defenders with
15 less ready access to experts on their own. It
16 also serves as a good institutional check on the
17 forensic laboratory system and a resource for
18 legislators and other state actors seeking to
19 obtain broad, statewide information about local
20 practices.
21 Six, clarification of legal standards
22 related to the collection, retention, analysis
23 and search of genetic information. Given that
24 genetic information is my particular area of
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2 expertise, I’d be remiss if I didn’t spend a
3 moment addressing the special concerns by this
4 particular method.
5 We’re in the earliest days of our
6 understanding of the genome and all that might
7 one day glean from it. Researchers have already
8 made tremendous progress in various aspects of
9 genetic knowledge and are pushing for more
10 information about things like: propensity for
11 violence, sexual deviance, mental illness or
12 addiction. Yet as scientists rush to unlock the
13 secrets of the genome, law enforcement presses to
14 expand the collection, analysis and use of DNA.
15 And the advent of one-touch, 90-minute DNA typing
16 machines is likely to put pressure on this body
17 in the near future to embrace compulsory testing
18 of arrested persons.
19 Already there are calls to engage in
20 familial search methods, a technique that I feel
21 effectively turns relatives of convicted persons
22 into second-class citizens. Other jurisdictions
23 have relied on DNA testing to examine crime scene
24 samples for phenotypic traits; so they can
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2 produce a kind of genetic mug shot image of a
3 suspected perpetrator. Practices such as
4 surreptitious DNA sampling, retention of samples
5 given voluntarily and defense access to databases
6 for exculpatory DNA are all likely to arrive on
7 the legislative agenda at one point or another.
8 The current mandate of the Commission
9 makes the scope of their authority to address
10 such issues unclear. And the current composition
11 of the Commission makes delegating it with
12 authority over such matters unwise. The kind of
13 comprehensive overhaul of forensic oversight
14 imagined in my remarks could create a body that
15 even if not expressly tasked with decision-making
16 on such weighty matters would better serve in an
17 advisory capacity to this Assembly.
18 In sum, although New York once led the
19 way in forensic practices, we have fallen badly
20 behind. As a result, the State is no longer
21 protecting the safety of our citizens, nor their
22 liberty interests as much as it should be. Though
23 with benefit of a wide array of expertise from
24 those within our own State to resources and
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2 insights from other state and federal actors,
3 this Assembly can help us regain our prominence
4 in the field. Thank you.
5 ASSEMBLY MEMBER LENTOL: Wow, that’s a
6 lot to digest.
7 MS. MURPHY: I’m sorry that was so
8 quick, yes.0020
9 ASSEMBLY MEMBER LENTOL: Why don’t we go
10 to you, Marvin? And then we’ll go to questions. I
11 hope I don’t lose the train of thought that
12 you’ve put me on.
13 MR. MARVIN E. SCHECHTER, ATTORNEY:
14 Well, I’ll help you there, Chairman Lentol, by
15 just simply beginning by saying I agree with
16 everything Erin said. But I don’t want to lose
17 the opportunity to express some other ideas and
18 thoughts that I have. My name is Marvin
19 Schechter. I’m a practicing criminal defense
20 attorney of some 43 years. And I am currently a
21 member of the Commission on Forensic Science and
22 have been a member since 2010. My time on the
23 Commission is coming to an end. I’m about to be
24 replaced, hopefully by somebody far smarter and
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2 more aggressive than I’ve been.
3 We are one of the few states that has a
4 Commission on Forensic Science. And we are also
5 one of the few states that has a mandatory
6 accreditation requirement. One would have thought
7 that the mere establishment of the Commission and
8 the establishment of mandatory accreditation
9 would have put us in the forefront of forensic
10 science in this country. Instead, as my colleague
11 has pointed out, we have fallen far, far behind.
12 What happened?
13 Well, for starters, we don’t have an
14 accreditation system. When the Legislature passed
15 the law that established the Commission, it
16 delegated to the Commission the right to go hire
17 an outside vendor to do the accreditation. It
18 did. The outside vendor turned out to be an
19 organization known as ASCLD/LAB. Let me just stop
20 for a moment and tell you that all of my written
21 remarks center around ASCLD/LAB. ASCLD/LAB is
22 gone. It was recently bought out. There’s a new
23 sheriff in town: ANAB, which has gotten into the
24 forensic science accreditation business. And it
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2 remains to be seen what ANAB will do in terms of
3 setting forward new rules and regulations as an
4 accrediting agency.
5 More importantly for the Legislature,
6 you should keep your eye on what the Commission
7 intends to do with respect to which accrediting
8 agency they will accept. One of the beauties of
9 ASCLD/LAB for the forensic science industry was
10 it was an industry group. It was created as an
11 industry group. It was kept as an industry group.
12 And in fact its entire system was aimed at
13 protecting the industry. That’s what happened.
14 There’s no question about it. People can argue
15 about it. But all you have to do is look at the
16 rules and regulations and you’ll find that what
17 ASCLD/LAB created wasn’t an accreditation system;
18 it was an audit system.
19 What’s the difference? An accreditation
20 system takes a look at the quality of work being
21 done by the labs and it assesses what’s going on
22 and what’s happening. And then the accreditor
23 turns to the lab and says: This is not the way
24 this is supposed to be done. And in fact it's
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2 leading to bad science and bad results.
3 And we had that with one of our labs in
4 2013 when the Suffolk County Crime Lab came
5 before us and ASCLD/LAB was moving from one
6 system to a new system. They found 26 violations
7 of how that lab was running; some going back 20
8 years, through several ASCLD/LAB accreditations
9 where they had been approved. And yet it took
10 three visits by that lab before the Commission
11 before they were finally approved over my
12 objection, Mr. Scheck’s objection, Mr. Newfield’s
13 objection and we were totally outvoted. And that
14 lab was accepted and it was accredited.
15 So what we have is an audit system.
16 What’s an audit system? I am the inspector. I
17 come to the Assemblyman Lentol Lab and I start
18 looking around. And I check and say: You have six
19 books. That’s excellent. Hmm. I see that
20 everybody has signed off on the latest change.
21 That’s excellent. Ah, you have locks on all your
22 doors. Excellent. You are accredited.
23 That is not an accreditation system and
24 that’s what we’ve had. And I might say and I will
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2 say that the Commission on Forensic Science
3 between 2010 and this moment has been a stalwart
4 defender of ASCLD/LAB. The majority of the
5 Commission, including its current leadership,
6 believes strongly in ASCLD/LAB. And there was no
7 way to move them off that and there’s still no
8 way to move them off that even today. And it will
9 be interesting to see what happens as the
10 Commission now musts consider a new accrediting
11 agency. Now, one of the things --
12 ASSEMBLY MEMBER LENTOL: Marvin, can you
13 just stop for a minute?
14 MR. SCHECHTER: Yeah, sure.
15 ASSEMBLY MEMBER LENTOL: And just so
16 that we have a chance to digest everything that
17 we’ve heard.
18 MR. SCHECHTER: Sure.
19 ASSEMBLY MEMBER LENTOL: And tell us as
20 a practicing lawyer how this translates for a
21 lawyer going into the courtroom where there’s a
22 laboratory that has not been up to snuff and you
23 have DNA evidence that’s presented in the
24 criminal case and what the effect of that is.
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2 MR. SCHECHTER: Okay. It’s not only DNA
3 evidence. It’s fingerprint evidence, tool marks
4 evidence, arson investigation evidence, fiber
5 evidence. It goes across the board. So how does
6 it play out? The first problem for a criminal
7 defense attorney and I might add for some
8 prosecutors is that you can’t get access to the
9 material coming from the lab. A lot of times you
10 have to subpoena the material. Many of the labs,
11 in fact most of the labs in New York State today
12 pursuant to Article 240.21c on the giving of
13 scientific reports; we don’t get those scientific
14 reports. The labs consider themselves to be in
15 large part an agency that gives its work product
16 to the district attorneys.
17 We do not get that on the defense side.
18 You have to go to it by a subpoena, by personal
19 relationships or you have to make a motion and
20 hope that a judge will expand it. Just to give
21 you one clear example when we talk the practical
22 result: It might shock the Legislature to know
23 that under 240.21c, when I ask for a scientific
24 report, there are judges in this State who
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2 interpret that statute to mean that the only
3 thing I can get is the cover page that says: the
4 end result. This is what it is. It is a match:
5 tool marks. It is a match: fingerprints. But all
6 of the other information in the case file, all of
7 the other information of how the result was
8 reached, what protocols were used, what manuals
9 were used; you can’t get that. Now some labs --
10 ASSEMBLY MEMBER LENTOL: Is it a result
11 of the statute creating the forensic lab --
12 MR. SCHECHTER: No, no, it’s not.
13 ASSEMBLY MEMBER LENTOL: -- or is this
14 the discovery statute that prevents that?
15 MR. SCHECHTER: It’s partly the discover
16 statute, which is used as a shield for that. The
17 simple fact of the matter is and it’s
18 particularly true in upstate counties, where I’ve
19 given a lot of lectures and I’ve spoken to
20 attorneys in small legal aid offices, who are on
21 the front lines: they won’t give it up. They just
22 won’t give it up. The materials are theirs. And
23 if you say, in fact I had this actually happen
24 years ago; if you say to a lab director: Do you
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2 give up your materials? They’ll look you in the
3 eye and say: Yes. And then you’ll say: Who do you
4 give it to? And they say: We give it to the D.A.
5 That is their concept of discovery.
6 I’ll tell you one example. Years ago I
7 was doing a lecture in upstate New York and I
8 said to a group of attorneys: Why don’t you just
9 go to the lab, knock on the door and say you want
10 the materials? And that statement was greeted
11 with laughter. That’s how entrenched this concept
12 is.
13 ASSEMBLY MEMBER LENTOL: So just to
14 clarify for me: Is it the statute itself, the
15 evidence statute is not clear? Or is it because
16 judges or courts are not interpreting it broader
17 in a larger sense?
18 MR. SCHECHTER: It’s a great question.
19 You need to make the statute clearer. You can’t
20 have the current language. It says: I’m entitled
21 to any and all scientific reports or any portion
22 thereof. They’re not getting it -- the judges.
23 They’re just not. And so you get some decisions
24 that say; there’s one notable decision of a lower
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2 court in upstate New York, where the judge said:
3 It says in the language any portion thereof. I
4 interpret that to mean Mr. Schechter’s entitled
5 to everything in the file: the case file, all the
6 materials. But that is not the case. And let me
7 not just say this is true for upstate New York.
8 This happens in Manhattan, Brooklyn, in Queens.
9 ASSEMBLY MEMBER TITONE: Now this could
10 also happen with the same building then?
11 MR. SCHECHTER: Yes, absolutely,
12 absolutely. So, that’s the short answer. And I’ll
13 give you to fully just round this out for you:
14 One of the things that this Commission does when
15 it hands out records or information; there’s
16 quarterly meetings. I get a book. It’s a rather
17 large book. It’s a briefing book of all the
18 materials that are to be discussed at the
19 meeting. When I get those materials, particularly
20 lab disclosures; lab disclosures must be given to
21 the Commission when something goes wrong, an
22 anomaly or what we call a nonconformity.
23 When we get that, we find that the names
24 of the technicians involved are redacted. And
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2 I’ve asked why: Why is that so? One answer I got
3 was: Well, some of these technicians are under
4 investigation or there’s some kind of
5 disciplinary action going. My answer to that is:
6 If that’s the case, then it should be redacted.
7 No one should have their name published who has
8 some pending action against them.
9 But in the vast majority of cases, no
10 such disciplinary action has been taken. There is
11 no ongoing investigation. So here’s what happens
12 and this actually occurred again about two years
13 ago: The name is redacted. You don’t know who it
14 is, who the technician is. And I get a call from
15 an attorney in the Bronx who’s on trial and has
16 just opened up the front page of The New York
17 Times and sees that there’s a technician in The
18 Times, who’s been identified as doing something
19 wrong with respect to forensic science. And it’s
20 the technician in her case.
21 So she had a very valid question:
22 Marvin, did you know about this? And if you did,
23 why didn’t you tell anybody? So my answer was:
24 Well, we didn’t know about it. We don’t know who
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2 the technician is.
3 So where does this come from? Because
4 Chairman Titone, you ask a very valid question:
5 Where does this come from? What’s the source?
6 Part of it comes from the labs. And they have a
7 representative on the Commission structure who
8 represents the 19 labs. It is the belief that we
9 should not have this transparency; that the names
10 of these technicians should be kept from
11 everybody. In fact, as we sit here today, the OIG
12 report that was done by Ellen Biben in 2011,
13 which I ask you to get hold of and read because
14 it is a roadmap to change.
15 But when the Nassau County Lab imploded
16 in November of 2010, resulting in the lab’s
17 closure by the County Executive; even though that
18 lab had been placed on probation in 2003, in 2006
19 and no one had been notified about it. The DA of
20 Nassau County had no idea that the lab she was
21 relying on was churning out reports in forensic
22 science cases but was on probation. You ask,
23 Chairman Lentol, how does this translate for the
24 attorney in the courtroom? Well, I think Mr.
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2 Schechter would have been happy to ask any of the
3 technicians who were testifying about the results
4 of their fingerprints: Excuse me, isn’t your lab
5 on probation? How did that affect your unit?
6 I think that’s a valid credibility issue
7 that the jurors should assess but nobody knew
8 about it. Now the result of the FAB lab scandal,
9 which cost taxpayers $100,000 a month to
10 outsource everything and that went on for years;
11 I don’t know the final figure but it was in the
12 millions. We still don’t know today who the
13 technicians were who were behind all of the
14 errors, who the managers were. We have no idea.
15 So it translates in very, very bad ways. This
16 lack of transparency, which I refer to in my
17 written remarks --
18 ASSEMBLY MEMBER LENTOL: So if the
19 judges refuse to give you the information that
20 you requested and just give you the cover page --
21 MR. SCHECHTER: Right, sure.
22 ASSEMBLY MEMBER LENTOL: -- is that
23 because the D.A. has objected to your getting it?
24 Or are the judges doing this on their own? Or
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2 both?
3 MR. SCHECHTER: It’s a combination of
4 the two. And it’s also a combination of different
5 district attorneys. There are some district
6 attorneys who take the position that if the
7 defense is asking for it, there’s only one
8 response: an objection. There are some district
9 attorneys who are a little bit more savvy and
10 understand the issues and believe in justice and
11 they will say: Well, let me see it and then we’ll
12 turn it over to you. The judges have not been
13 helpful in this area. There is a tendency of the
14 judiciary in the forensic science arena to be
15 very, very cautious.
16 You know, one of the findings of the
17 National Academies of Science in its
18 groundbreaking report published in 2009 was a
19 statement by that Commission and I was on that
20 Commission and I was one of the co-authors of
21 this report; we stated in that report that the
22 judges had utterly failed to enforce the Daubert
23 Standard -- utterly failed. And I daresay that if
24 we collected in this room, Chairman Lentol, the
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2 entire Supreme Court Judiciary of this State, 90
3 percent or better have never read or heard of
4 this report. That’s the situation we’re in.
5 So your having this hearing today of
6 course is very timely given that we may have a
7 changeover in the accreditation agency. I want to
8 just finish with one last set of remarks. You
9 must be wondering --
10 ASSEMBLY MEMBER LENTOL: Wait, we’ve
11 been joined by Assemblyman Lavine, who I think
12 has a question on point. And we’ve also been
13 joined by Assemblywoman Simon. So, just if you’ll
14 indulge us for a second.
15 ASSEMBLY MEMBER LAVINE: Thanks,
16 Chairman Lentol. Marvin, good to see you again.
17 MR. SCHECHTER: Good to see you.
18 ASSEMBLY MEMBER LAVINE: You and I have
19 toiled in the courts and we know the reality. And
20 thanks for what you do to advance science. But
21 CPL 240-21c says: You or we, defense attorneys,
22 or you, defense attorneys now because I’m no
23 longer one, are entitled to scientific reports,
24 all or a portion dealing with any scientific test
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2 or experiment. So can the statute itself be any
3 more explicit?
4 MR. SCHECHTER: Well, I think we’re
5 going to have to make it more explicit because
6 we’re not getting anywhere in the courtroom
7 arguments or the briefings. When you say
8 scientific report --
9 ASSEMBLY MEMBER LAVINE: But Marvin, let
10 me just ask and I don’t mean to interrupt you, it
11 sounds to me from what you’re saying and from the
12 experiences that I had that some judges are just
13 going to be very difficult in terms of ordering
14 what the defense is entitled to. Isn’t that what
15 you’re describing here primarily? That it’s not
16 so much a fault of the statute, as it is a fault
17 of judges either through their own inability to
18 understand or comprehend scientific evidence or
19 their desire to frustrate efforts on the part of
20 the defense?
21 MR. SCHECHTER: Here’s my answer to
22 that. It is partly the judges. But the way you
23 change judges is you give the lawyers, both the
24 prosecutors and the defense, a statute that they
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2 can work with and one that they can use to make
3 the appropriate record that will get us to the
4 higher courts, that will settle this dispute once
5 and for all.
6 ASSEMBLY MEMBER TITONE: Would you say
7 perhaps a menu which would -- including but not
8 limited to?
9 MR. SCHECHTER: That’s the answer. And
10 some saving grace language that says: When in
11 doubt, release. Now the prosecutors have
12 indicated to me on occasion that: we can’t
13 release, we can’t have the labs releasing this
14 information to the defense because we have
15 ongoing investigations. So the answer to that is
16 very simple and we have that language by the way
17 in Article 240 in some of the sections; you put
18 in a protective clause which allows the parties
19 to remove in court for protection. This works all
20 the time in the federal courts. If a federal
21 judge, so-called federal judge, would say to me:
22 Mr. Schechter, you’re not to reveal this
23 information to anybody; as Assemblyman Lavine
24 knows, you listen to a federal judge.
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2 And by the way, if a state court judge
3 in this State said to Mr. Schechter: This is
4 under a protective order. You are not to reveal
5 that information; 99 percent of the bar, because
6 of their ethics involvement and their obligation
7 to the law, would do so. So that’s the answer.
8 And if there’s a problem when I get the materials
9 and I want to explore them further with my
10 expert, you go see the judge with the prosecutor
11 and it’s done. So, Assemblyman Lavine, you need
12 to expand the statute, along the lines that
13 Chairman Titone is recommending. And a menu would
14 be good: including but not limited to; and that
15 should solve the problem.
16 ASSEMBLY MEMBER TITONE: If we’re going
17 to make 240 great again, we talked about the
18 exemptions where, you know, there’s an ongoing
19 investigation.
20 MR. SCHECHTER: Right.
21 ASSEMBLY MEMBER TITONE: And where I as
22 an individual have become problematic with that
23 in my mind morally basically is: Well, why does
24 that investigation -- why does this accused have
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2 to be penalized because there’s an investigation
3 on another matter?
4 MR. SCHECHTER: The primary question you
5 should be asking and one I’ve asked in the
6 courtroom is: What investigation is going on?
7 This was a buy on the street. There were two
8 police officers and an undercover. The man was
9 caught. He was arrested. He was identified. He’s
10 indicted. What is the ongoing investigation that
11 prevents me from getting the materials? My
12 clients are charged with robbery. He was
13 identified in a photo array. He’s indicted. He’s
14 before the Court. I want all of the DNA
15 information that you got off the handbag as soon
16 as possible.
17 ASSEMBLY MEMBER TITONE: On this matter
18 now.
19 MR. SCHECHTER: On this matter.
20 ASSEMBLY MEMBER TITONE: Yeah, right.
21 MR. SCHECHTER: Why can’t I get it? And
22 the answer: because it’s an ongoing
23 investigation. What is the ongoing investigation?
24 All cases involve ongoing investigations. And so
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2 you get into this debate with the judge and the
3 prosecutor of why I can’t have the forensic
4 evidence. And so the answer really is to stop
5 what the judges are doing is to elongate the
6 statute, make it a little clearer and give the
7 attorneys the tool by which they can operate.
8 ASSEMBLY MEMBER LAVINE: I can’t believe
9 that the permeation of the lack of open file
10 discovery in New York State isn’t present here
11 because judges know that they can’t expect the
12 D.A. to release information that he or she
13 doesn’t want to. I can’t help but believe that
14 that’s not the case. And I don’t know, but that’s
15 why I’m asking you the question, if it is a
16 question.
17 MR. SCHECHTER: Look, I mean, this is a
18 very distinguished panel of Legislators. I know
19 almost all of you. I don’t know Assemblywoman
20 Weinstein personally but I know her reputation,
21 as well as everybody else. We all sitting in this
22 room know there’s a huge discovery problem in
23 this State. We are going to trial as defense
24 attorneys on rape cases, robbery cases,
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2 kidnapping cases with nothing in the file, zero.
3 That’s impossible. That’s like life in
4 Mississippi in the 1930’s. You can’t conduct
5 business this way. I wish we were doing a
6 discovery reform. I would be happy to testify.
7 Although the Legal Aid Society and John Shaftel
8 have done a spectacular job on laying out what
9 needs to be done. But in the area of forensic
10 science, there is a reluctance by judges to let
11 this evidence out.
12 And I think part of the problem is --
13 and I blame Barry Scheck for this and Peter
14 Neufeld -- is we’re victims of our own success.
15 When we get hold of this material: we find it, we
16 use it and guess what? We find a wrongful
17 conviction. And not one wrongful conviction but
18 many wrongful convictions. And forget about
19 wrongful convictions. A lot of times we find
20 leads which lead us to reopen cases and bring
21 them back for further review. That’s happened in
22 many cases under different statutes.
23 So, I think you can’t just address the
24 judiciary. You have to change some of the
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2 statutes. And you have to change the way this
3 Commission operates. I’ll end by just simply
4 saying this to you. This is a very passive
5 Commission. I’ve been on it for now almost 6-1/2
6 years. This is not a Commission that is
7 proactive. It is passive. It waits for the labs
8 to come to it, explain the problem and then say:
9 Well, I’m glad you improved that. Move on.
10 It doesn’t initiate legislation. It’s
11 afraid to initiate legislation. I don’t know why.
12 My colleague, Erin Murphy has pointed out and
13 this is astounding to me: How is it that the City
14 of New York has enacted a statute for root cause
15 analysis, a time-honored, scientific method for
16 trying to figure out how an anomaly occurred in a
17 lab and we don’t have a State Commission Forensic
18 Science rule of a similar nature? It would take
19 all of one minute for the Commission on Forensic
20 Science to enact this rule. All it has to say is:
21 Starting tomorrow morning, any lab and certainly
22 any city lab that has a root cause analysis shall
23 submit such forthwith to the Commission. Done.
24 And by the way, this may shock you
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2 because you talk about getting down into the
3 weeds: Do you know that there’s no template for
4 how to do a root cause analysis? It doesn’t
5 exist. You just come in. Everybody has a
6 different way of doing it.
7 Interestingly enough, the best root
8 cause analysis template that I’ve seen comes to
9 us from the New York City Police Department,
10 which gave the Commission how it conducts root
11 cause analysis. It’s a spectacular document. It
12 should be adopted Statewide. Everybody should be
13 required to have it. And by the way, when you
14 adopt -- just to show you how deep this gets;
15 when you adopt a root cause analysis rule, the
16 Commission shall say to each lab: This particular
17 root cause analysis shall be kept in the office
18 of the quality compliance officer or quality
19 assurance manager for the lab.
20 One of the things I find amazing is
21 within labs, different units do this analysis or
22 nonconformity analysis. Some keep it with the
23 head of the unit. Some people give it to the head
24 of the lab. Some people keep it within the
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2 section. There is no uniformity to this. It’s
3 insane.
4 And by the way, when you don’t have
5 uniformity like that and a defense attorney comes
6 along and says: I would like the root cause
7 analysis, right; so I send a subpoena to the
8 Titone Lab. And I say: I’d like to have the root
9 cause analysis that was done in this case.
10 Answer: Which root cause analysis are you talking
11 about? Where is this root cause analysis? Where
12 is it? I don’t know, it’s your lab. You tell me.
13 It’s the root cause analysis that was done in
14 this case. Well, it could be in the quality
15 assurance manager’s office. It could be the head
16 of the lab, etc. etc. etc. You get the idea.
17 A functioning progressive, aggressive
18 Commission would enact rules that would end this
19 kind of nonsense immediately. When my colleague
20 Erin Murphy tells you we have fallen behind,
21 she’s not kidding. This is almost disastrous. I
22 have to tell you and I’ll just end of this note,
23 which is a negative note --
24 ASSEMBLY MEMBER LENTOL: To fall behind
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2 Texas is even worse.
3 MR. SCHECHTER: That’s right. Texas gets
4 a lot of credit. But I’ll end on this note: One
5 of the reasons I accepted an invitation to go on
6 this Commission was because like you I thought it
7 was an honor to serve the people of the State of
8 New York. I still believe that. It’s what all of
9 us dream about. What could be better than to
10 serve your State? And particularly in my case and
11 my personal background, this City and this State
12 have given me all the opportunities that lead me
13 to this table here today.
14 I will tell you that the last six years
15 on this Commission have been a struggle. It’s one
16 of the most difficult and aggravating things I’ve
17 ever undertaken in my life. I don’t know that I
18 made a difference. I tried my best. I think Mr.
19 Scheck and Mr. Neufeld tried everything in their
20 power to educate the Commission. And I think they
21 failed. And I think I failed. But we’re here.
22 This is a crucial hearing. I hope you take the
23 bull by the horns. You can change this
24 Commission. You can make a difference.
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2 We should keep this Commission. We
3 should strengthen it, change its structure, bring
4 in scientists, get rid of all the interest
5 groups. I do think and this is an interesting
6 side note: Somebody asked me, Well, if you say
7 get rid of all the interest groups, do you mean
8 the defense attorneys, the prosecutors, the
9 judges? I say: No, this isn’t just the science
10 lab. It’s a forensic science lab. So the purpose
11 of this lab is twofold. It does scientific
12 testing but for a specific purpose; so that it
13 can be presented in a court of law.
14 So if you’re going to have a Commission,
15 it needs to know the perspective of judges,
16 defense attorneys and prosecutors. And those
17 people should sit side by side with scientists:
18 people who run huge labs, know how to manage
19 these labs, know what the rules should be, know
20 about uniformity. And then we will have a true
21 Commission on Forensic Science. Thank you.
22 ASSEMBLY MEMBER LAVINE: Sure. And I
23 think Professor Murphy, you really hit the nail
24 on the head when you began your testimony talking
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2 about setting standards. And I this is what
3 you’re talking about, Counselor, really setting
4 standards. But it seems to me just from this
5 limited conversation that we’ve had that not only
6 do we need the standards and the proficiency
7 standards of things of that nature; but it seems
8 to me that the entire Commission needs to be on
9 almost, you know, a review but not just every
10 once in a while but maybe once a year, once every
11 other year. In the same way that every person
12 sitting up at this table is up for review every
13 other election day. When you spoke earlier,
14 Professor, is that something that --
15 MS. MURPHY: It is. I think these are
16 very closed universes, in terms of who’s involved
17 in forensic work in the State and who the kind of
18 interest groups are. And I think the most
19 important thing is that the composition of the
20 Commission is detached from the kind of very
21 adversarial, you know, very motivated reasoning
22 that takes place often in the courtroom in the
23 pitched battle between prosecution and defense.
24 And so whether that’s done through a review,
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2 whether that’s done through a better allocation
3 of the seats; I think the important thing is that
4 they’re able to engage in these conversations,
5 thinking about what’s best for the State.
6 And I will say you asked earlier about
7 sort of the consequences. This is a small point
8 but the consequences on the ground and what’s in
9 the court and it’s important to note that the
10 scandal at the OCME here in New York City for
11 instance involved an analyst who was failing to
12 detect the presence of biological evidence in
13 samples. Including there was a very prominent
14 case involving a rape victim, where that
15 untrained, unqualified analyst who for ten years
16 was able to operate without sanction, failed to
17 detect the biological evidence that later proved
18 -- found the actual assailant of the crime.
19 And so it is a public safety issue. It’s
20 a liberty issue for defendants when evidence
21 that’s; you know, in New York recently bite mark
22 evidence was introduced in a case. Bite mark
23 evidence is a wholly unfounded scientific
24 discipline. Two Presidential level commissions
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2 have said so. It’s a deeply problematic
3 technology. And yet we don’t have, as we do say
4 in Texas, a resounding statement or even a rule
5 from the scientific body charged with ensuring
6 that the evidence introduced is sound. This is
7 unsound. And until proven otherwise, it should
8 not be used in our courts.
9 ASSEMBLY MEMBER LENTOL: Just remember,
10 I’m happy that the City Council has introduced
11 progressive legislation. But just remember, they
12 are a unicameral body. We are not. And you have
13 to lead us to the promised land. And the promised
14 land is to get what we want by embarrassing the
15 other House of the Legislature to do what’s
16 right. And so that’s where we need your help more
17 than anything else. Because this is legislation,
18 not unlike -- that’s why I brought discovery into
19 the mix; because there is nobody on the streets
20 of New York that you would ask that doesn’t think
21 that we have open file discovery in this State
22 because they see it on TV.
23 And I believe that a technical subject
24 like the standards of a forensic laboratory, in
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2 order to bring that out in importance, requires
3 something on the ground to prove it to another
4 body of the Legislature that may not be
5 interested in pursuing justice.
6 MR. SCHECHTER: Well, here’s the good
7 news. We are fortunate in this State to have some
8 of the finest and best people currently extant in
9 forensic science and its related issues, who live
10 and work here and are prepared to do that. Erin
11 Murphy at NYU should be a member of the
12 Commission on Forensic Science. She is a
13 scientist and she’s a teacher. It seems like a
14 natural. But I don’t think we’re hearing that
15 she’s going to be a member of the Commission on
16 Forensic Science any time soon.
17 Sitting behind me in this room are some
18 of the best people you’ll ever want to meet:
19 legal aid lawyers, public defense lawyers,
20 private lawyers; all of whom have been involved
21 in these issues. You put out the call for help,
22 Assemblyman Lentol, we’ll be there. We will do
23 the best we can and we will educate and we will
24 go to the Legislature. I spent yesterday, all day
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2 before the New York State Legislature. It was a
3 wonderful experience. I met some marvelous
4 individuals who listened to me about another bill
5 that I’m working on. And I found it to be a very
6 exhilarating experience.
7 So, Albany’s not always where I want to
8 go on a rainy Tuesday on the thruway. But we did
9 it. So, I think the time is coming when we’ve got
10 to get down to brass tacks. You know, all you
11 have to do is amend Executive Law 995-a to
12 include a requirement that the Forensic Science
13 Commission every two years complete a State of
14 the Union message on forensic science to the
15 Legislature. That’s easy. And they’ll have to do
16 it. And they’ll have to come to you. And they’ll
17 have to say to you: This is what’s going on and
18 this is what we’re doing.
19 MS. MURPHY: Texas issues annual
20 reports. It lists the complaint, all the open
21 investigations, the results of those
22 investigations. I mean, you can access this on
23 their website but it also has the annual reports.
24 ASSEMBLY MEMBER TITONE: It seems that a
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2 report like that could be very helpful. But I’m
3 also thinking that something should go to the
4 judiciary as well. Because I wonder or I question
5 and this is strictly just my own personal
6 experience if perhaps often judges might be so
7 uncomfortable with the science, not knowing it,
8 that they tend to error towards whichever their
9 perceived side of: You know, let me go with the
10 prosecution. It’s their lab. Or let me go with
11 the defense because it’s this person’s say so.
12 MR. SCHECHTER: In 2009, 2010, ’11 and
13 ’12, I toured the country giving a number of
14 lectures regarding the new report on the National
15 Academy of Science. Some of those lectures were
16 for judges’ groups and they were behind closed
17 doors. That was the deal: behind closed doors. I
18 couldn’t talk about it. And the reason that we
19 did it that way is so they could ask questions.
20 And I asked some prominent lawyers around the
21 nation: What should I say to the judges? And they
22 said: Just remember when you’re talking to the
23 judges about science, they’re thinking about all
24 the cases in the past where they have granted or
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2 denied motions involving science and somebody was
3 sent away for 20 to 25 years to life. And that
4 fear exists in the judiciary.
5 Can it be changed? Absolutely. Have we
6 seen such a change? Yes. Because between 2009 and
7 2017, we’ve seen spring up an entire body of
8 forensic case law in the federal system, which
9 excludes forensic evidence where it’s not
10 properly qualified and in other cases limits the
11 forensic evidence and even limits the conclusions
12 of the so-called experts. Can it be done? Yes. In
13 2009, everyone said: The federal judiciary will
14 never change. They did.
15 ASSEMBLY MEMBER HELENE WEINSTEIN: I
16 wanted to ask a question, just sort of following
17 up on what Assembly Lentol said about the fact
18 that we can’t do this on our own. We need to have
19 the other House with us and the Executive. Do you
20 feel that the Commission has the authority
21 currently, if it so desired, to make a lot of the
22 changes that you’ve recommended? Certainly in
23 terms of accreditation and standards and the root
24 cause analysis that goes forward and demanded
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2 that be the current standard?
3 MR. SCHECHTER: The short answer to that
4 question is yes. Office of Inspector General
5 Biben in 2011 in her report came to that very
6 conclusion. She said: Not only did you abdicate
7 your responsibility to the accrediting agency but
8 more importantly you have in the statute the
9 rulemaking authority. You just don’t want to use
10 it. So, we don’t need a change. What we need is
11 not the statutory change or a change to the
12 Commission’s authority; we need a change in the
13 way the Commission thinks of itself and its
14 population and how it works, how it perceives
15 forensic science change going forward.
16 For example, let’s take a simple thing.
17 Assemblywoman Weinstein, I assume like the rest
18 of us you go to a bank and you bank just like
19 everybody else. You are confident when you go to
20 your bank that your money’s going to be there day
21 in and day out. Why? Because as an educated
22 person, you know that the banks in the United
23 States of America: state, village, city, town,
24 federal are all audited by auditors and that
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2 keeps the banks honest.
3 When the auditors go to a bank, they
4 show up unexpected. They don’t tell the bank:
5 Hey, we’ll be there in three months for the
6 inspection and the audit. Get ready. Because if
7 you did that, you’d never find any wrongdoing.
8 Here’s the current state of New York’s rules.
9 ASCLD/LAB notified and still notified right up to
10 the very end every lab of when an inspection was
11 going to take place: three months, six months,
12 we’re coming.
13 Then it got every more incredible and
14 this showed up here in New York State in -- I may
15 be off on this -- in 2009. Judge Fish was the
16 Inspector General and we had a terrible scandal
17 in the New York State Police Forensic
18 Investigation Center in Albany. Where, as my
19 colleague pointed out, somebody had been dry-
20 labbing materials for two years; in other words
21 faking a report and got away with it for ten
22 years through several ASCLD/LAB inspections. How
23 did he do it? Easy. The inspector would show up
24 and they would say: Could you please give us some
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2 files? And he did. He gave them Titone’s file,
3 Lentol’s file and Weinstein’s files. Why? Because
4 they knew what they were doing. So the ASCLD/LAB
5 inspector said: Boy, this is a great fiber unit
6 you have here.
7 Well, life caught up with this
8 gentleman. And finally an ASCLD/LAB inspector
9 said: What is this? And he had accidentally -- or
10 maybe they just looked for it -- given one of his
11 own files and that’s how the scandal erupted. And
12 by the way, that scandal was a terrible scandal.
13 The gentleman involved committed suicide. That’s
14 not to be taken lightly. That’s another fallout
15 from all of this. And we’ve seen that suicide
16 happen many times across the United States
17 amongst some forensic technicians when they get
18 caught up in these scandals. Another reason why
19 we’ve got to strengthen this: No one should be
20 forced to end their life because they got caught
21 up in a scandal in a forensic science lab. That
22 seems like an awful waste of humanity.
23 But in that particular instance, we knew
24 far back then that this business of relying on
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2 ASCLD/LAB to do that, to rely on somebody to give
3 them files was an insane system. So now there’s a
4 new sheriff in town, as I pointed out, and the
5 representative is here today and is from ANAB.
6 It will be interesting to see and I ask
7 you, as the relevant Committees that oversee the
8 function of these labs and the Commission on
9 Forensic Science to get in touch with
10 Commissioner Green and ask him his opinion on
11 whether or not surprise inspections of the labs
12 should be part of the contract that New York
13 State signs through its Commission with any new
14 accrediting agency. Should the accrediting agency
15 that signs a contract with a Commission that is
16 responsible to this Legislature and Governor,
17 should that Commission sign a contract that
18 requires that when they ask for files, they get
19 the files? They don’t have to wait for you at the
20 lab to give it to them. It will be interesting to
21 see what Commissioner Green has to say to you.
22 ASSEMBLY MEMBER WEINSTEIN: Well,
23 obviously he’s not here. He did submit some
24 testimony. I don’t think it’s available to you.
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2 And it’s rather short but it certainly paints a
3 different picture than you have.
4 MR. SCHECHTER: I’m sure it does.
5 ASSEMBLY MEMBER WEINSTEIN: And he ends
6 with saying that New York has the most
7 transparent oversight process in the country. So,
8 obviously that’s not your experience being on the
9 Commission.
10 MR. SCHECHTER: No. And if you require
11 it and you’re the Assembly and I’ll listen to
12 you, let’s have a public debate: Commissioner
13 Green on that side of the room, me on this side.
14 Ms. Murphy even better. And we’ll have the debate
15 about transparency on the Commission.
16 ASSEMBLY MEMBER WEINSTEIN: Well, I
17 assume that since we haven’t had an opportunity
18 to question Mr. Green who submitted the
19 testimony, that following the hearing the joint
20 committees will submit some questions to him.
21 MR. SCHECHTER: Great.
22 ASSEMBLY MEMBER WEINSTEIN: And the
23 questions and his responses will be part of the
24 official record.
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2 MR. SCHECHTER: Thank you.
3 ASSEMBLY MEMBER SIMON: If I could just
4 -- oh --
5 ASSEMBLY MEMBER LAVINE: May I interrupt
6 for a second?
7 ASSEMBLY MEMBER SIMON: Sure, of course.
8 ASSEMBLY MEMBER LAVINE: And Marvin, we
9 will under no circumstances give you that
10 testimony. I just want you to know that. And
11 that’s a bit of a joke. Just for the sake of the
12 record, we talked about the crisis at the Nassau
13 County Lab. And I think we may have referred to
14 the district attorney, referring to Kathleen
15 Rice.
16 MR. SCHECHTER: It was Kathleen Rice at
17 that time.
18 ASSEMBLY MEMBER LAVINE: So Dennis
19 Dillon was the district attorney in Nassau County
20 in 2003. And in 2006, Kathleen Rice had just been
21 elected when that occurred.
22 MR. SCHECHTER: Right.
23 ASSEMBLY MEMBER LAVINE: Just for the
24 sake of the record.
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2 MR. SCHECHTER: Right. But in 2010,
3 Kathleen Rice was the D.A.
4 ASSEMBLY MEMBER LAVINE: Yes, she was.
5 MR. SCHECHTER: And her claim that she
6 made to Inspector Biben was: I never even heard
7 of the Commission on Forensic Science. That’s in
8 the record. She never even heard of it; let alone
9 that she would get notices from it.
10 ASSEMBLY MEMBER LAVINE: And that
11 addresses another issue with respect to district
12 attorneys being aware of their overall
13 obligations in terms of being knowledgeable about
14 scientific evidence. That touches on another
15 issue. But I do have a quick question for
16 Professor. You had briefly referred to familial
17 DNA.
18 MS. MURPHY: Yeah.
19 ASSEMBLY MEMBER LAVINE: And you said
20 you thought it made family members second-class
21 citizens. So, it seems to me that all of criminal
22 law in western jurisprudence is a matter of
23 balancing: balancing the constitutional rights of
24 the accused against the need to protect the
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2 overall community from crime. How do you think it
3 happens that; why do you believe that it makes
4 family members second-class citizens when the
5 family members are excluded as a result of the
6 DNA analysis?
7 MS. MURPHY: Well, the sort of pivot
8 person, the person in the database will be
9 excluded. But all those family members, the
10 people who just by dint of blood happen to be
11 related to that individual, some of them might be
12 the victims of that individual.
13 ASSEMBLY MEMBER LAVINE: And that’s
14 again the balancing that goes on.
15 MS. MURPHY: Yeah.
16 ASSEMBLY MEMBER LAVINE: But do you have
17 a sense that or should I say in your opinion is
18 the concept of use of familial DNA, which is
19 approved in many other states including
20 California, that that’s something that should be
21 prohibited here?
22 MS. MURPHY: I think it should be
23 prohibited. I think we have seen across the
24 country and here in New York that there’s very
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2 vigorous debate about who must give their DNA to
3 the government and who has to have a DNA sample
4 compulsorily given.
5 ASSEMBLY MEMBER LAVINE: So your concern
6 is then forcing family members to give DNA?
7 MS. MURPHY: It’s more that we are
8 arbitrarily saying that this group of people,
9 people related to people who were required to
10 give their DNA, are now kind of automatically
11 under a cloud of suspicion, based not on anything
12 they’ve ever done, based not on any action
13 they’ve taken to relinquish their genetic
14 privacy; simply because they happen to be a blood
15 relative.
16 ASSEMBLY MEMBER LAVINE: Even though
17 they’re still entitled to the full panoply of
18 constitutional rights?
19 MS. MURPHY: Absolutely. Because I think
20 one way to think about this is if we really feel
21 like they’re not being treated unfairly, then we
22 should use victim databases for familial
23 searches. We should use law enforcement exclusion
24 databases for familial searches.
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2 ASSEMBLY MEMBER LAVINE: But is anyone
3 actively trying to exclude that?
4 MS. MURPHY: Yes. And my understanding,
5 I mean, for instance, one of the big champions of
6 DNA, Mitch Morrissey, I’ve heard him say numbers
7 of times -- I don’t know if he still adheres to
8 this, but in the past he’s said repeatedly: No,
9 we would never use victim databases. That would
10 be unfair. We would never use law enforcement or
11 lab exclusion databases. We’re talking just about
12 using convicted offender databases. And I think
13 once you make that distinction, you’re already
14 conceding that you’re basically willing to treat
15 the family members and relatives of convicted
16 people as suspects but not the family members of
17 victims as suspects, even though those family
18 members have done nothing to distinguish each
19 other.
20 ASSEMBLY MEMBER LAVINE: Wouldn’t it
21 depend on the unique facts of the case?
22 MS. MURPHY: I don’t think so. I think
23 that if we feel as a society and I agree about
24 costs and benefits; if we feel as a society:
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2 Look, genetic privacy’s important but law
3 enforcement’s important too. We should all be
4 willing to give our genetic information to the
5 government. We trust they will use it responsibly
6 and that need for crime solving is more important
7 than privacy.
8 ASSEMBLY MEMBER LAVINE: Then this is
9 part of your fear: It’s the camel’s nose under
10 the tent, so to speak?
11 MS. MURPHY: Well, it’s more a sense
12 that it’s arbitrarily singling out a group of
13 people simply because they’re related to a
14 convicted person. And that to me seems like not
15 only treating them as second-class citizens but
16 really unfairly taking away some of their genetic
17 privacy based on no action of their own.
18 ASSEMBLY MEMBER LAVINE: Thank you.
19 MR. SCHECHTER: Just so you’re aware, you
20 know, this Friday the Commission on Forensic
21 Science has a special meeting, along with its DNA
22 subcommittee; the first time that’s ever
23 happened. And it was I think my motion and
24 somebody else’s to have that on this request from
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2 the Queens District Attorney to approve familial
3 DNA. I haven’t made up my mind on it.
4 But I am aware, having studied the
5 problem as a member of the National Association
6 of Criminal Defense Lawyers, that there are many
7 intertwined legal issues with familial DNA that
8 we did not confront with say DNA straight out
9 comparisons or even partial match. You may not
10 get the chance as the Legislature to even rule on
11 that issue because the Commission on Friday may
12 abrogate to itself the right to approve familial
13 DNA, the legal consequences be damned.
14 ASSEMBLY MEMBER LAVINE: Mm-hmm.
15 MR. SCHECHTER: I mean, I want to hear
16 what people have to say about that but I’m very
17 reluctant at the moment.
18 ASSEMBLY MEMBER LENTOL: You mean that
19 they have the rulemaking authority to do it?
20 MR. SCHECHTER: Well, they have the
21 rulemaking authority maybe to rule on the
22 efficacy of the procedure called familial DNA
23 searching. And my colleague has a book out which
24 explains to you the problems with familial DNA
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2 searching. That’s only one area that the
3 Commission probably could do. But the related
4 Fourth Amendment issues, in California a statute
5 was enacted to have familial DNA. Colorado, a
6 statute was enacted by a legislature, not a
7 commission. So, I hope maybe some of you will
8 attend and see what goes on Friday at the
9 meeting. I know I’ll be there. I look forward to
10 seeing you.
11 MS. MURPHY: I’ll be there.
12 ASSEMBLY MEMBER LAVINE: Yeah, we’ll be
13 there.
14 ASSEMBLY MEMBER TITONE: I know Helene
15 is part of this but there’s been a huge, huge
16 social media push towards legislation on this
17 issue and I’m glad you brought it up.
18 MR. SCHECHTER: I think Senator Boyle
19 has a bill that’s already been voted on.
20 ASSEMBLY MEMBER TITONE: Yes. Yes.
21 ASSEMBLY MEMBER LENTOL: Maybe Erin or
22 Marvin you could walk us through? Because the way
23 I perceive familial DNA and you can correct me if
24 I’m wrong, is if you have in a particular case,
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2 you have DNA evidence and you get hit on a
3 convicted person but it doesn’t match precisely.
4 It only matches somewhat.
5 MR. SCHECHTER: Partially.
6 ASSEMBLY MEMBER LENTOL: Partially, I
7 guess is the word. And so then the request would
8 be to test all family members in those cases to
9 determine, since it’s close? Well, just walk us
10 through that so that we understand how it works.
11 MS. MURPHY: So, there’s actually a lot
12 of technical dimensions that make it difficult to
13 give one answer but I’ll give you a sense. First,
14 because of the nature of the kind of genetic
15 searching that’s done, it’s not that you get one
16 back. You’ll get a candidate list essentially.
17 And depending on the size of your database and
18 the way you construct your search, that could be
19 a 400-person candidate list or it could be a 200-
20 person candidate list. It can really vary.
21 There are some things you can do to try
22 to narrow your candidate list. One essential and
23 indispensable step in this kind of testing is to
24 pull the convicted person’s sample again and run
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2 a separate genetic test, called a Y-STR test.
3 That’s the male chromosome. And when you can
4 rerun the sample and check the male chromosome,
5 that will give you a sense of whether your source
6 crime scene person has the same male genetic line
7 as the convicted you’ve identified as one of
8 these candidates. And that narrows down your list
9 again. Because if they don’t have the same line,
10 you know they’re not related.
11 It’s important to realize that just like
12 in families, sometimes siblings look alike or you
13 look like parents, but sometimes you look totally
14 different and someone thinks: Ah, joke, you know,
15 mailman or whatever. The same thing happens kind
16 of genetically with non-identifying traits.
17 Sometimes siblings have very similar genetic
18 traits and sometimes they look nothing like each
19 other and total strangers look like each other.
20 That’s particularly true in communities that have
21 for many generations stayed within the same
22 geographic region.
23 So, all of this is to say you get a
24 list. You have to do some extra testing and some
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2 extra winnowing through that list, to then come
3 up with a kind of secondary list of actual
4 probable leads. And then you begin the process of
5 investigation of the family members of that
6 individual; investigating to see whether they
7 have characteristics that might fit the crime;
8 possibly engaging in surreptitious DNA sampling,
9 where you take their DNA to see if you can get a
10 match or not.
11 ASSEMBLY MEMBER LENTOL: Alright, thank
12 you for that explanation.
13 MS. MURPHY: I will say just one final
14 thing on that. A lot of times I’ve heard
15 proponents of the method liking it to having an
16 informant. It’s just like an informant. It’s just
17 a genetic informant. And I think it’s important
18 to understand given the technical specifications,
19 it’s like an informant who says looking at a book
20 of photos of suspects: I didn’t really get all
21 that good of a look at the guy. It looks kind of
22 like these 15 people. It’s not any of these 15
23 people but it kind of looks maybe like some of
24 those 15 people. So maybe you should look at
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2 their members to see one of those family people
3 looks more like those people.
4 That’s sort of my mind the way it’s like
5 an informant. It’s not like an informant who
6 says: I got a really good look. I know who it is.
7 It’s that guy. It’s really a much more fishing
8 expedition type of process. Which is one reason
9 it hasn’t been widely used because it’s not yet
10 anyway very efficient.
11 ASSEMBLY MEMBER LENTOL: Thank you very
12 much. We appreciate your testimony today.
13 MR. SCHECHTER: Thank you.
14 MS. MURPHY: Thank you for your time.
15 ASSEMBLY MEMBER LENTOL: Okay. Skype is
16 all set up. Is District Attorney Scott McNamara
17 here yet? Good. Well, you’ll be next. I just
18 wanted to make sure you were here because we
19 definitely want to hear from you. It looks like
20 Barry Scheck.
21 MR. BARRY SCHECK, CO-DIRECTOR, THE
22 INNOCENCE PROJECT; FORMER COMMISSION MEMBER, NEW
23 YORK STATE COMMISSION ON FORENSIC SCIENCE: Hi.
24 Well, I’ve been watching the livestream. You
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2 should know it was very good for a while. I’m
3 here in Salt Lake City, Utah. And I started
4 getting bits of pieces of what everybody was
5 talking about. But I’m thankful that my friends
6 Erin and Marvin talked very fast; so I think I
7 got the gist of it. We submitted -- the Innocence
8 Project submitted a very substantial --
9 ASSEMBLY MEMBER LENTOL: But just state
10 your name for the record, Barry, I’m sorry. And
11 also we have Sarah. Can you state your name for
12 the record as well before you begin?
13 MR. SCHECK: And Sarah can really answer
14 all the questions the most knowledgeably. But let
15 me just try to -- we submitted a substantial set
16 of suggestions in the testimony here. And let me
17 just try to hit some high points basically
18 looking at some of the things that you’re asking
19 questions about. Probably the thing that’s
20 bothered me the most is that -- Peter Neufeld and
21 I were involved in the creation of the Forensic
22 Science Commission; we go back to the Poklemba
23 Report and Richard Gigante [phonetic]. This was
24 the last bill that Governor Cuomo -- the first
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2 Governor Cuomo signed.
3 ASSEMBLY MEMBER LENTOL: And I sponsored
4 the bill, Barry, just so you know that. It was my
5 bill, Assemblyman Lentol’s bill.
6 MR. SCHECK: In contrast you should know
7 as well that The Innocence Project and I had
8 personal involvement, helped set up the Forensic
9 Science Commission in Texas. We helped write the
10 legislation. We worked with the commissioners. We
11 brought the first set of complaints with respect
12 to arson; established a duty to correct bad arson
13 cases in Texas. And that commission evolved very,
14 very differently on the critical issues that are
15 facing the criminal justice system now. That is,
16 we know from the National Academy of Science
17 report in 2009 and most recently the report of
18 what they call the PCAST report, the report of
19 the President’s science advisors that deals with
20 feature evidence.
21 And with all the work that the National
22 Commission on Forensic Science has done, with the
23 work that the National Institute on Science and
24 Technology, a venerable part of the federal
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2 government that sets standards on scientific
3 matters; work that the Organization of Scientific
4 Area Committees, where I’m on the legal resource
5 commission there; an effort is being made because
6 of what was discovered in 2009 in that report
7 that much of what has passed for forensic science
8 has not been properly validated scientifically.
9 And we are going to be going back and
10 looking at cases involving pattern evidence as
11 it’s called or feature evidence, whether it’s
12 fingerprints or a bite mark evidence, which I
13 think is believed now not to be validatable, or
14 tool mark evidence, fiber evidence, all kinds of
15 cases where the tool marks on bullets; all kinds
16 of cases where there were convictions. And as the
17 new science comes in and we realize that the
18 statements in old cases were beyond the limits of
19 science, maybe had no probative value at all or
20 not the probative value that juries and courts
21 were told; we’re going to have to go back and
22 look at those cases and correct them.
23 That is something that is just going on
24 all across the country. It started with a review
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2 the FBI initiated itself on something called
3 composite bullet lead analysis. It moved to the
4 hair review, which the FBI has done itself,
5 getting rid of all procedural bars and going back
6 with The Innocence Project and the National
7 Association of Criminal Defense Lawyers and
8 looked at all the cases where FBI agents
9 testified beyond the limit of science and hair.
10 In Texas, they have able to follow
11 through on the hair review. They have been able
12 to go further on bite marks. They’ve been able to
13 look at bad calls on DNA mixtures and review
14 those cases. They have been able to work in a
15 very robust way, implementing what is a critical
16 feature now of forensic science in America and in
17 the world, which is the duty to correct and
18 notify everyone in the system: the defense
19 lawyers, the judges, the prosecutors; that they
20 may have to look at an old conviction.
21 Just let me give you a contrast. It is
22 now clear that the crime lab in Austin, Texas has
23 terrible problems. The Forensic Science
24 Commission has gone there and they’ve found that
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2 there was all kinds of contamination and problem
3 in that Austin crime lab, just on DNA and
4 probably extends to other matters.
5 Two weeks ago I was at a meeting with
6 all the stakeholders: the district attorneys, the
7 judges, the Forensic Science Commission, the
8 court-appointed lawyers. They don’t have really a
9 public defender system there but everybody sat
10 around the table. Everybody was trying to come up
11 with ways of approaching this problem, getting
12 all the data on the table: all the facts, all the
13 discovery; so everybody can look at what the data
14 was and the DA’s file, the police file,
15 everybody’s file; and then make a sensible
16 judgment about what if anything should happen to
17 an old case.
18 They have progressed so far in Texas. By
19 the way, one of the things they have, they have
20 open file discovery -- real open file discovery;
21 where everything is computerized. And you just
22 literally get online and you’re able to get the
23 discovery that’s necessary and proper protective
24 measures are taken to make sure ongoing
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2 investigations are not screwed up and work
3 product is protected. But that all works very
4 well. It’s extraordinary.
5 I know we are so far behind in New York.
6 We have to do something about discovery. There’s
7 no question about that. But what I’m trying to
8 say is I sit here every day thinking: How did the
9 New York Forensic Science Commission, which when
10 we started it was really a model, was supposed to
11 be an effort to get all labs at the cutting edge;
12 how have we come to a point where we are
13 certainly not the leaders and we have some very,
14 very significant structural problems? Whereas a
15 place like Texas, not known as a great, that you
16 would think leader in criminal justice reform is
17 lightyears ahead of us. So that’s question number
18 one for me.
19 Question number two is: Why was it when
20 we set up the Commission so many years ago that
21 the Commission was not able to anticipate or
22 address all these scientific problems with
23 forensic techniques? And I think again: Why did
24 it take this 2009 NAS report, the PCAST report;
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2 why is it that our Commission was not able to
3 bring in mainstream scientific community to take
4 a look at forensic science and deal with these
5 problems?
6 And so I think a number of those issues
7 are structural. We’ve made our suggestions. I
8 think the biggest problem comparing New York and
9 Texas: In Texas, the Forensic Science Commission
10 was administrated or is administrated really out
11 of the university system in Texas. It was
12 independent of the law enforcement apparatus. And
13 one of the big problems we have in just the
14 membership of the Commission and its
15 administration is that there’s a fundamental
16 conflict of interest.
17 It is the Department of Criminal Justice
18 Services that administers the Commission. We have
19 a real imbalance in terms of many of the same
20 police officials and laboratory officials whose
21 work is being investigated have the majority vote
22 on the Commission. And the truth is you really
23 can’t investigate yourself or have an independent
24 scientific entity doing it. So we really have to
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2 make some fundamental change as far as that is
3 concerned.
4 I realize that we have to be realistic
5 politically about these things. But in the long
6 run, we should start really looking with the
7 Executive Branch, with people in the Senate who
8 really care about good forensic science.
9 Remember, this is a public safety issue. So in
10 Texas, the Assembly and the Senate there
11 essentially, the House and the Senate as they
12 call it; they’re Tea Party red. So there is a
13 left-right coalition around criminal justice
14 reform. And one of the things that really
15 motivates it is that everybody wants to get it
16 right. We want to protect the innocent. We want
17 to enhance the capability of law enforcement to
18 find the person who’s really guilty with
19 scientifically sound measures.
20 And so we have to find a way to break
21 the logjam here. And I do think that one of the
22 number one ways is to make this Commission more
23 independent of those it regulates. Maybe find a
24 way to take it out of the Department of Criminal
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2 Justice Services as the primary administrator;
3 you know, get it into the New York State
4 university system, either directly or through
5 reconstituting the membership of who sits on the
6 Commission. Getting the people being investigated
7 themselves out of it essentially and bring in
8 people that have real scientific expertise in the
9 various different disciplines that are going to
10 be involved as forensic science evolves and do it
11 that way. So we’ve made a number of suggestions
12 along those lines.
13 I agree with everything that Erin said
14 and I agree with everything that Marvin said
15 pretty much in their testimony with respect to
16 the difficulties in the way that the Commission
17 is currently functioning, the problem with the
18 accreditation system and the many of the mistakes
19 that we’ve made in the past. And I heard that you
20 are all very concerned about the familial
21 searching issue, which I know we’re having a
22 hearing about that Friday and obviously has
23 caught everybody’s attention.
24 The first point I’d like to make about
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2 the familial searching: Number one, it is not
3 even a close question that when the DNA
4 databanking system legislation was passed in the
5 State of New York, it specifically indicated,
6 said that the only hit that you could put into
7 that databank is a hit of crime scene evidence to
8 a convicted offender in the system.
9 In other words, it was very, very clear
10 that the Legislature specifically rejected; this
11 was also true in the 1992 DNA Identification Act
12 that set up the CODA system: Everybody wanted to
13 know; they wanted assurances that this would not
14 be familial searching. And the reason for that is
15 that there may be some arguments in favor of a
16 limited system to experiment with familial
17 searching and I will suggest one of those to you;
18 but it’s a tradeoff between law enforcement needs
19 and efficiency versus the privacy rights of
20 citizens. And DNA, as Professor Murphy has
21 written about eloquently, is the ultimate in
22 terms of our own autonomy and protecting the
23 privacy rights around DNA. The information there
24 is extraordinary when people get to it.
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2 Just think of this though: Since it’s
3 absolutely clear that for there to be familial
4 searching, it requires an act of the Legislature.
5 One of the really troubling things that happened
6 over the course of time is that the Office of
7 Chief Medical Examiner in the City of New York,
8 once it developed its own very formidable
9 internal databases, that is to say they’re able
10 to do DNA testing; it’s one of the largest DNA
11 laboratories in the world; they’re able to create
12 their own database separate from the local, state
13 and federal database. So they called it a linkage
14 database. Literally, you could call it a rogue
15 database, an offline database. But it is
16 literally a database alone of the Office of Chief
17 Medical Examiner. There is no statutory rules
18 that necessarily govern that. I would argue that
19 it is literally unauthorized.
20 The first thing that happened over time
21 with respect to so-called linkage database is
22 that efforts were made to do familial searching
23 of the linkage database, just with rulemaking
24 from the DNA Subcommittee in conjunction with the
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2 Police Department. Now, it just shows you why we
3 need real controls over this and this Commission
4 has truly overstepped its authorized bounds.
5 It turned out that the efforts to use
6 the linkage database to apprehend criminals
7 didn’t work and that was predictable because of
8 the limited power of even doing this familial
9 searching at this point in time. And the Chief of
10 Detectives then at the New York City Police
11 Department, Phil Pulaski, you know, you can read
12 the articles about in The New York Times;
13 realized that this just really was not cost
14 effective or worth it. But the problem is is that
15 it all emerged through this rulemaking which in
16 our judgment went beyond the bounds of what the
17 Commission can do.
18 So please when it comes to a system of
19 familial searching, you the Legislature
20 absolutely and I think that even the proponents
21 of familial searching understand this: The
22 Legislature has to think about this, has to
23 consider it, has to go through a very careful
24 process because you and you alone have the power
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2 to do it.
3 It is absolutely illegal and
4 unauthorized and contrary to the intent of the
5 Legislature and the plain text of the statute to
6 just have the New York State Forensic Commission
7 on Forensic Science based on a recommendation
8 from the DNA Subcommittee or however they’re
9 going to do it to say: Here’s how we’re going to
10 do familial searching. That cannot be done. It
11 must be authorized by the Legislature. And this
12 is really an opportunity I think for all of you
13 to step in and think about it carefully.
14 The Innocence Project will present
15 testimony on Friday and you should take a look at
16 it. The one thing that I can tell you and in a
17 similar position taken years ago by the National
18 Association of Criminal Defense Lawyers: If
19 you’re going to have familial searching and it’s
20 still for all the reasons Professor Murphy was
21 talking about may not be the best idea in the
22 world; but if you’re going to do it, it must be
23 done pursuant to judicial warrant. It must be
24 overseen by the judiciary. There must be a
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2 showing that all ordinary investigative means
3 have been exhausted.
4 And the reason why I say that is that
5 it’s very plain even from this terribly upsetting
6 case of the poor young woman who was killed in
7 Howard Beach is that the suspect in that case and
8 we still presume that person innocent in our
9 system; but the suspect that was apprehended in
10 that case and reportedly whose DNA matches DNA
11 biology found at the crime scene, that case was
12 broken by old-fashioned, good old-fashioned
13 detective work; you know, somebody that traced
14 back a 911 call that had been overlooked.
15 The reason why there has to be this
16 requirement that all usual investigative means
17 have been exhausted is that if you start every
18 investigation by just going to the databanks and
19 doing familial searching, right, not only will it
20 for technical reasons not be particularly
21 productive but you’re going to undermine the
22 investigations themselves. Every investigation
23 will start that way. And not only that, people in
24 communities will be very reluctant to voluntarily
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2 turn over their DNA to law enforcement as
3 reference samples in ordinary crimes because they
4 will understandably be worried about their
5 samples being in a databank at all and they won’t
6 trust the government with their DNA.
7 So, number one, you have to have that
8 investigative means test in there. Number two, it
9 must just be for a very, very small class of
10 cases: serious murders and rapes. Number three
11 and most importantly, there must be a showing by
12 law enforcement when they do their investigation
13 based on a familial searching, that they’re using
14 the least intrusive means of doing it and none of
15 these DNA dragnets that really upset
16 neighborhoods. Number four, there must be a
17 report back to the Court on exactly what happened
18 and how they did this. There must be periodic
19 updates on the warrant. And finally, it should be
20 sunset after two or three years. And a blue
21 ribbon panel of experts should look at every one
22 of these and it won’t be that many cases; that
23 what experienced teachers across the country
24 would even try this, just to see what happens.
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2 So something like that I think, because
3 I know that’s on your mind because you started
4 asking those questions, is the way to begin going
5 about thinking about familial searching in a
6 sensible way that protects people’s civil
7 liberties but also gives law enforcement a tool
8 and if it’s really an effective tool; we don’t
9 know yet. There may be lots of reasons that this
10 will never happen because we’re going to have
11 even more DNA markers soon that may obviate the
12 need to even go down the road of familial
13 searching. So, so much for that.
14 Finally, I can’t emphasize enough the
15 need to change the composition of the Forensic
16 Science Commission. Put more scientists on it. I
17 really think that the DNA Subcommittee, which we
18 created because in the early days of this
19 Commission nobody understood anything we were
20 talking about when we started discussing DNA. So
21 we needed a specialized subcommittee to deal with
22 it, right. Since then we now have a very robust
23 capability in the National Institute of Standards
24 and Technology, led by Dr. John Butler, who’s
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2 written the authoritative textbook on DNA
3 testing.
4 Over the last ten to 15 years, the
5 federal government has issued standards, has
6 assessed the new technologies that’s come in for
7 DNA testing. That role in terms of the DNA
8 Subcommittee has really been supplanted by the
9 federal government. And our DNA Subcommittee,
10 when you actually look at it, they meet only
11 periodically. They don’t even have the capacity
12 to do Skype meetings with each other. It’s been
13 too complicated. They are not properly staffed.
14 They don’t have the capacity for scientific
15 staffing to really do a deep dive into looking at
16 any of these new DNA technologies as they come
17 in; things like what are known as probabilistic
18 genome typing that emerged in that case in
19 upstate New York that our colleague Bill
20 Fitzpatrick tried. They don’t have the capacity
21 to do that.
22 But most importantly, they really don’t
23 have the capacity to do a deep dive into what the
24 laboratories are doing. And so we need to
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2 completely reconstitute that. I think we need
3 knowledgeable, independent DNA analysts; people
4 with a background on bioethics and privacy, as we
5 indicate in the testimony, on the Commission
6 itself. And we need a more robust way to actually
7 look at the labs.
8 Which leads me to the last point, which
9 was truly one of the most disturbing experiences
10 on the Commission, which really indicates why we
11 need some structural changes. Marvin mentioned
12 some of the other scandals that we’ve had over
13 the years. All criminal justice systems and
14 laboratory systems have scandals. One good thing
15 is that we were able to work out a mechanism
16 through the Inspector General to do
17 investigations any time there was serious
18 negligence or misconduct that affected the
19 integrity of laboratory results. And as Marvin
20 pointed out, a lot of these investigations showed
21 us the weaknesses of the accrediting body that we
22 had then: ASCLD/LAB. Hopefully, ANAB will be much
23 stronger.
24 Certainly this Commission has always had
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2 the authority to go beyond what the accrediting
3 body that we delegate laboratory inspections to.
4 We never really exercised it. That’s one of the
5 problems again with having people that are
6 basically inspecting themselves and not having
7 independent scientists and really administrative
8 people controlling the actual administration of
9 the Commission.
10 But the most upsetting experience and I
11 know it was for everyone on the Commission, be it
12 prosecutors, Chairman Green himself, everyone,
13 was the incident that arose with the Office of
14 Chief Medical Examiner and the question of what
15 they call Low Copy Number DNA testing. Low Copy
16 Number DNA testing was a methodology that the New
17 York City Office of Chief Medical Examiner
18 essentially was inventing itself. And it was
19 their way of taking very, very small amounts of
20 starting material, amplifying it up and trying to
21 get results, number one, and interpret mixtures,
22 number two.
23 And probably the best way to look at it
24 and I think literally thousands of cases involved
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2 swabbing guns. Right, they would get a gun. They
3 would swab the handle or different parts of the
4 gun to see if they could get DNA and identify a
5 particular suspect having touched the gun and/or
6 being part of a mixture.
7 This began getting litigated very
8 vigorously by the Legal Aid Society in a series
9 of cases. Ultimately, it resulted in a decision
10 by Judge Mark Dwyer, who you probably all know,
11 who was for many years the Chief of Appeals of
12 the New York County District Attorney’s Office.
13 He now sits in Brooklyn. He held a very, very
14 comprehensive hearing and he found that Low Copy
15 Number DNA testing did not pass the Frye test. By
16 the time that decision was made, we’ve had
17 thousands of cases. It’s not going to be
18 appealed. The lab is going to move away from that
19 system. So, we’re now in a situation where one of
20 our most respected judges, the Co-Chair of our
21 Justice Task Force in the State of New York, has
22 issued a very solid reasoned opinion saying that
23 this methodology lacks essentially scientific --
24 general acceptance within the relevant scientific
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2 communities.
3 But here’s what really was disturbing in
4 terms of the Commission: As the Low Copy Number
5 controversy emerged in a case, a Daubert case
6 that was being litigated in federal court and the
7 Legal Aid cases in Queens and Brooklyn; the
8 Commission itself started asking questions of
9 representatives from the Office of Chief Medical
10 Examiner. I think he’s the head of quality
11 assurance. Eugene Lien came before us. And he was
12 asked directly and I asked him the question: Has
13 the OCME done internal validation studies on
14 samples replicating case work at below 25
15 picograms -- which is a very, very small amount
16 of DNA -- involving two or more contributors? And
17 Mr. Lien said: Yes, it was done.
18 At the hearings in federal court and a
19 representative of the OCME said: No, we don’t
20 have such a -- we didn’t do such an internal
21 validation study. Mr. Lien came back to the
22 Commission and I asked him exactly the same
23 question again. He said: No, we’ve done that
24 study. I said: Look, we have testimony in federal
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2 court. We have your representations.
3 With the agreement of Bill Fitzpatrick,
4 we sent it back to the DNA Subcommittee to
5 address this issue. The DNA Subcommittee came
6 back and said: No, we are still in favor of Low
7 Copy Number testing. But they did not
8 specifically answer whether or not there was an
9 internal validation study done on samples
10 replicating case work of two or more people at
11 this very low level.
12 Now let me tell you why an internal
13 validation study is so important and it’s just
14 common sense. And it’s the requirement that John
15 Butler and the federal government has had for DNA
16 and it’s a requirement really for any forensic
17 assay. It’s one thing to develop a new technique.
18 It’s quite another to say: In the actual case
19 work where I’m going to be working, when I get
20 these guns and I swab small amounts of DNA from
21 the guns; can I get the right results? Can I get
22 accurate results? That’s the bottom line. So, an
23 internal validation study is absolutely critical
24 to validate a method.
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2 When this question then came back after
3 the DNA Subcommittee didn’t address whether there
4 was an internal validation study but just say:
5 Oh, we still think Low Copy Number is fine; I
6 asked OCME to produce that internal validation
7 study. They declined. Then I asked the Commission
8 as a whole to vote to disclose an internal
9 validation study. Now think about it: We’re
10 talking about science. There is nothing more
11 fundamental in science than being able to be
12 transparent and disclose your validation study.
13 Nothing is more basic than that, in terms of
14 being able to replicate what people are doing and
15 show that you really have a valid and reliable
16 technique.
17 The Commission voted not to disclose it.
18 But one of the Commissioners, Marina Stajic, who
19 is the Chief of Toxicology for many years in the
20 Office of Chief Medical Examiner, voted with me,
21 with Marvin Schechter. Peter Neufeld was not
22 there that day. I don’t believe Bill Fitzpatrick
23 was there that day. But we lost a close vote. But
24 Marina Stajic, Dr. Marina Stajic voted with us to
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2 disclose this report. And by the way, we even had
3 a second vote to just disclose it to the
4 Commissioners under protective order. That lost
5 too.
6 Sometime later, Dr. Stajic was fired.
7 This was disturbing to all members of the
8 Commission. She has filed a lawsuit in federal
9 court claiming that this firing was retaliatory,
10 a violation of her First Amendment rights. The
11 lawsuit speaks for itself. I will not address the
12 merits. It will be adjudicated. But what’s
13 disturbing to me is that that happened: the
14 validation study was not disclosed. So this to me
15 was the ultimate sign that a lot of very well-
16 meaning people on the Commission and I’m not
17 saying that people were not well-meaning; I mean,
18 I was there with every director of criminal
19 justice from Carl Sluvetka [phonetic], who is
20 very good, from Paul Shechtman. I’m sure Chairman
21 Green is well-intentioned about all of this and
22 has professed many times; he looks at me and he
23 goes: You know, I don’t really understand this
24 DNA. I understand that.
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2 But the point is that when you get to
3 the point where the Commission’s composition is
4 so slanted in favor of the same law enforcement
5 bodies and crime lab bodies that are inspecting
6 themselves essentially, that they can’t reveal a
7 validation study, an internal validation study on
8 a critical technique that affects the safety of
9 every citizen in the City of New York and this
10 State; just think about it: If they have been
11 wrong with this Low Copy technique, as Judge
12 Dwyer has found, and they were swabbing guns and
13 making bad calls on mixtures in what literally is
14 probably tens of thousands of cases over the last
15 few years, that is not only running the risk of
16 convicting the wrong person but the real person
17 is getting away.
18 So the Commission came to that. And
19 there were lots of reasons that I resigned. Peter
20 Neufeld resigned. I’m very busy with the federal
21 agenda and really it’s important to have new
22 people come forward and do the work on these
23 institutions. But I would be less than candid if
24 I didn’t say that it was the whole way that the
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2 Low Copy Number validation issue was handled and
3 the problem that Dr. Stajic encountered that made
4 me think that the Legislature really has to take
5 a good hard look at the Forensic Science
6 Commission, its structure and try to change it.
7 We’ve had quite a number of scandals
8 over the years. And the question is: Why didn’t
9 our Commission find those? Those are all fair
10 questions. Ellen Biben tried to address those.
11 But this latest incident involving the Low Copy
12 Number testing and the issues: the failure to
13 turn over an internal validation study on such an
14 important matter, that it has come to that just
15 shows me that the Commission has lost its way.
16 So I really rest on the remarks. And if
17 you want to know anything that’s going on in
18 forensic science and you want somebody that gets
19 along with everybody and is very, very
20 knowledgeable, ask Sarah Chu from The Innocence
21 Project. She does fantastic work.
22 ASSEMBLY MEMBER LENTOL: Thank you. Now
23 he can’t hear us, right?
24 MR. SCHECK: I hear you now.
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2 ASSEMBLY MEMBER LENTOL: So, I want to
3 ask one question since we can of Sarah or you.
4 Because I agree now very much that there should
5 be some sort of a reconstitution of the
6 Commission. However, just like the question I
7 asked of Marvin Schechter and Erin Murphy, we
8 aren’t a unique cameral Legislature. And we have
9 to deal with another House who may not have the
10 same view about whether or not this particular
11 Commission is functioning as it ought to. And
12 we’d like to bring it out in the sunlight if
13 that’s the case. And we need you to show us the
14 way to do that. Because as you suggested and Mike
15 Green admitted, this is a very technical subject.
16 He doesn’t understand DNA. A lot of people don’t
17 even know there’s a Commission on Forensic
18 Science. How do we make this sexy enough so that
19 the public understands there’s a need for change?
20 MR. SCHECK: I completely appreciate the
21 question you’re asking me. And I think there are
22 ways forward. I want to make it very clear that
23 I’ve served with a lot of people on that
24 Commission from law enforcement and from the
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2 crime labs. And I don’t want to be
3 misinterpreting and saying I in any way that
4 they’re bad people, that they’re dishonest
5 people, that they don’t want to get the right
6 results or anything of the kind.
7 ASSEMBLY MEMBER LENTOL: And I know
8 you’re not and I’m not suggesting that. It’s just
9 that we’ve fallen into --
10 MR. SCHECK: Oh, no, I know you’re not.
11 I know you’re not. I just want to make sure
12 that’s on the record.
13 ASSEMBLY MEMBER LENTOL: Okay.
14 MR. SCHECK: But what I really think
15 might be a way forward even if we could put
16 together some kind of blue ribbon committee to
17 take a look at the Forensic Science Commission
18 itself and how it’s constituted and suggest
19 changes where there’s buy-in both by the
20 Executive Branch and Members of the Senate.
21 Because it is fundamentally a scientific issue
22 and you need the relevant scientific expertise.
23 And we have an opportunity of drawing upon one of
24 the great scientific communities in the world.
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2 And there is more and more interest now in the
3 scientific community to solve some of these
4 problems that have arisen in forensic science.
5 And so I think we could get people from
6 Rockefeller University, Cornell, Columbia, NYU;
7 all the great medical centers and research
8 centers if the Governor with the buy-in perhaps
9 from the Assembly and the Senate were to appoint
10 a group -- a blue ribbon group to do an analysis
11 of where we are with the Forensic Commission in
12 New York and what kind of structural changes
13 might be appropriate. And they can evaluate the
14 suggestions we’ve made and others. I think that
15 might help a lot.
16 Certainly it wouldn’t hurt to move
17 around the edges a little bit and change the
18 composition of the Committee. But we really are
19 at a point where we should have some long-term
20 thought, where we get buy-in with both Houses and
21 the Executive to how to change this. Because
22 there are a lot of good people involved in the
23 forensic science laboratories and in the system
24 here but it is a captured agency. And we’ve got
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2 to put science back in charge with good buy-in
3 and appropriate feedback from criminal justice
4 takeovers. But if we’re talking about forensic
5 science, we’ve got to make sure that the science
6 is ripe.
7 And when I talk about the science, I’m
8 not just talking about the different techniques.
9 I’m talking about laboratory management, right:
10 the way we run hospitals; the way we run over
11 institutions where life and liberty are at stake.
12 There’s a lot of science involved in that as well
13 in terms of a regulatory system. And we have to
14 rethink this fundamentally. And that’s why I’m
15 really pleased that you’re holding these hearings
16 and giving it serious thought. So that really is
17 my answer, Chairman Lentol. Who’s the Chairman
18 now? Is it Chairman Titone or Chairman Lentol? I
19 forgot.
20 ASSEMBLY MEMBER LENTOL: It’s Lentol
21 speaking.
22 MR. SCHECK: Okay. That’s what I
23 thought. You’ve been my Chairman for a long time.
24 So, I really think that some move like that,
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2 where we bring the Governor in; we bring the
3 leaders of the Senate in because I think that
4 everybody’s got to be interested in getting this
5 right.
6 And then try to draw upon the leaders of
7 our scientific community, not for a study takes a
8 hundred years because a lot of this is known from
9 the work that’s going on on the federal level.
10 But to make a set of recommendations to both
11 Houses, so that you can really do a sensible and
12 intelligent dive into this agency, which really
13 started with great promise and I think can be
14 rescued if we restructured it but it has to be
15 restructured in some fundamental ways.
16 ASSEMBLY MEMBER LENTOL: I mean, I think
17 you have given us a perfect example by the Low
18 Copy validation technique used by the Chief
19 Medical Examiner’s Office. And the fact that it
20 was found invalid by a former district attorney
21 should count for something and should make people
22 in the government and I’m not talking about the
23 Assembly necessarily but we didn’t even know that
24 this was going on at the time. And I’m sure that
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2 if we didn’t know in the New York State Assembly
3 and the Chairman of the Codes Committee was
4 unaware of it in its entirety, the State Senate
5 nor the Governor’s Office knows about it. And
6 these are examples of things that would
7 demonstrate need for change.
8 MR. SCHECK: Chairman, the thing that’s
9 most troubling about that is not so much that --
10 I mean, there’s a decision by a respected judge
11 and that’s a problem of course that it won’t get
12 reviewed and they are going to switch their
13 technique.
14 ASSEMBLY MEMBER LENTOL: Yeah.
15 MR. SCHECK: Which should tell you
16 something. But the real problem is that that
17 internal validation study, the Commission could
18 get to the point where it would not disclose an
19 internal validation study to the public on a
20 technique this important, just shows me that it’s
21 lost its way. And look, the lawsuit about the
22 firing of Dr. Stajic was upsetting by the way to
23 everyone on the Commission. I don’t want to
24 pretend that we were all upset by that. That’s a
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2 lawsuit. That’s a separate issue about whether it
3 was a retaliatory firing. But the scientific
4 issue to me is that you can’t have a Commission
5 on Forensic Science which does not force an
6 entity to disclose its internal validation study
7 on a critical technique. How did we get to that
8 point?
9 ASSEMBLY MEMBER LENTOL: Questions?
10 ASSEMBLY MEMBER TITONE: Yes.
11 ASSEMBLY MEMBER LENTOL: Mr. Titone?
12 ASSEMBLY MEMBER TITONE: Thank you. Good
13 afternoon, Mr. Scheck. Just I’m wondering where
14 is -- you know, we keep talking about we want to
15 put more scientists on this Committee. We want to
16 do more with science to ensure what we’re doing
17 legislatively or in our courtrooms is credible.
18 My question then is: Where are the scientists?
19 Where are they today? When you speak to them,
20 what’s their appetite? What’s the level? Has The
21 Innocence Project ginned them up at all to get
22 them to be participating, get them to be part of
23 this process here, not just today but come Friday
24 or anything in the future? Where are the
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2 scientists saying: New York State, your science
3 is lacking; the credibility of your science is
4 lacking? How do we get them to come to us to talk
5 to not only the Assembly, who clearly we’re very
6 open to change, but to the Executive and to the
7 Senate?
8 MR. SCHECK: Well, I think you can. And
9 I’ll tell you why. Because things have changed
10 enormously. There’s really been a tectonic change
11 in the way that the scientific community has now
12 turned its attention to forensic science. The
13 first real shot across the bow was the 2009
14 National Academy of Science report. The National
15 Commission on Forensic Science that President
16 Obama put together, which was a combination of
17 the National Institute of Standards and
18 Technology and the Justice Department, that
19 Commission probably won’t continue through the
20 next Administration.
21 But this is totally in the game. And
22 they are committed to this research. We have seen
23 major grants from the federal government to, for
24 example, a group called See Save [phonetic],
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2 which is a grant that goes to a number of
3 universities across the country to deal with
4 statistics and forensic scientists. So, Mr.
5 Titone, it’s in motion. There are scientists on a
6 national level. There are scientists everywhere
7 that are ready, willing and actually interested
8 in looking at key questions of forensic science
9 like never before.
10 That’s why I think that outreach from
11 the Assembly, the Senate and the Governor to the
12 leaders of the scientific community in the City
13 of New York, certainly the State of New York I
14 should say; I think would be responded to because
15 that scientific community is paying a lot of
16 attention. In the President’s Science Advisors
17 report, the PCAST report is probably the thing
18 you should read right away.
19 ASSEMBLY MEMBER LENTOL: Sure.
20 MR. SCHECK: Because that lays down the
21 gauntlet and says: Here are ways that you can
22 validate some of these methods. Do it. And
23 frankly there’s a lot of scientific credit and
24 even grants that can be gained if you now start
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2 saying: I can come up with a better way to do
3 fingerprints and express it’s probative value or
4 ballistics, etc.
5 So, the tide has turned and it’s a great
6 question, Mr. Titone. Because if you’d asked me
7 that 15 years ago or 20 years ago, I would say:
8 Well, there isn’t a great interest in the
9 scientific community in difficult issues of
10 forensic science. But now we know that in digital
11 evidence, in neuro science, in molecular
12 genetics, in physics, biophysics, all of these
13 groups are now looking -- computer obviously
14 sciences; they’re all looking at these forensic
15 science issues and they’re interested in solving
16 them. And we can unlock an enormous well of
17 expertise and frankly funding if we can get them
18 seriously interested in helping us reform the
19 Forensic Science Commission.
20 ASSEMBLY MEMBER TITONE: So do you think
21 something where the Legislature is creating
22 grants to expand upon the research? Because quite
23 frankly like you I believe that the whole
24 familiar DNA testing is going to be a little bit
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2 obsolete in a couple of years. And I’m sure that
3 the science that we’re talking about being
4 cutting edge today will look very different in
5 ten years. So, I wonder in the interest of
6 justice, should the State be investing more
7 grant-wise towards this type of science into
8 particularly the schools that we invest so much
9 of our taxpayer money into?
10 MR. SCHECK: I think that’s definitely
11 right. And it would be good to do it in a
12 collaborative and a consortium type way; where we
13 try to get all the different scientific centers
14 in our State connected and involved in this. I
15 mean, we’re talking here about digital evidence.
16 We’re just beginning the era of digital evidence.
17 We have big issues on how to get into phones or
18 how they could be searched or computers, you
19 know, facial recognition. And frankly when you
20 talk about DNA, there are a lot of problems now
21 with DNA because it’s like the Low Copy incident
22 shows: Can you push the technology beyond its
23 limits? And how do you properly control it in
24 terms of ethical issues and privacy questions?
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2 These are all matters I think that are
3 absolutely of vital interest to the scientific
4 community, the leaders of the scientific
5 community. And I’m sure if we go about it in a
6 concerted way with cooperation from the Senate
7 and the Executive and the Assembly, we might be
8 able to put together a small group that can look
9 at the issues that we’re putting before you and
10 say: Yes, here are some ways that this Forensic
11 Science Commission can be changed. Here are some
12 ways that we can help. Here’s what we have to do
13 because this has been going on at a national
14 level. It’s like a lot of things these days. Big,
15 big changes were happening at the end of the
16 Obama Administration in terms of forensic
17 science.
18 I don’t know and I’m a little
19 pessimistic about whether that’s going to
20 continue in the Trump Administration. But the
21 genie is out of the bottle and the scientific
22 community itself is engaged. And I don’t think
23 that will cease. And I think in fact it may
24 create an opportunity for the State of New York
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2 to jump in to the extent that what had been
3 started by the National Commission of Forensic
4 Science is continued here in the State, if in
5 fact it sunsets on the federal level.
6 ASSEMBLY MEMBER TITONE: Thank you.
7 ASSEMBLY MEMBER LENTOL: So do you think
8 that there is an -- well, let me just put it this
9 way. I’m not sure that there’s an appetite for
10 change in the Commission because of what I’ve
11 heard this morning. I don’t know that the
12 Governor or the New York State Senate would be
13 interested in change. And I guess with
14 Commissioners resigning from the Commission, it
15 sounds more like they’re giving up rather than
16 trying to fix what’s wrong with the Commission.
17 And let me just say this: If I were running for
18 President, I might charge that the system is
19 rigged. And I know that you’re not saying that.
20 What you’re saying is that they’ve lost their
21 way.
22 MR. SCHECK: When Peter and I resigned
23 from this Commission, really it had to do with
24 primarily a workload in terms of forensic science
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2 reform on a federal level and across the country
3 and also for the desire and you heard Professor
4 Murphy, you can’t find anybody more expert on
5 these matters than her. So that generation should
6 really come to the fore. It just seemed frankly
7 that we might be able to effectuate better change
8 in terms of the structure of the Commission from
9 the outside talking to people like you than from
10 the inside anymore.
11 ASSEMBLY MEMBER LENTOL: Well, you
12 should know that I advocated for Professor Murphy
13 to the Speaker, that that appointment be made.
14 And unfortunately the Speaker had another
15 candidate who I don’t know, so I don’t know the
16 background of that individual. So, I just wanted
17 to let you know that because I saw when this
18 happened and heard from a lot of people that
19 recommended her as an expert that should be on
20 the Commission. So you should know that, that I
21 did advocate for her but it didn’t happen.
22 MR. SCHECK: I understand. Well, but I’m
23 sure there are many people. But it’s a bigger
24 issue than just -- I don’t think we’re really
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2 going to be able to fix it by just changing one
3 or two appointments. I think that it has to be a
4 larger look. And I am actually optimistic that
5 that can happen because larger forces are in
6 motion in terms of changing forensic science.
7 And as Assemblyman Titone was pointing
8 out, you know, there’s greater interest on the
9 part of scientists than there ever has been
10 before in making sure that forensic science is
11 valid and reliable. And I don’t think that is
12 going to stop. And I think that there are
13 probably some pretty sensible ways that we can
14 involve that community. And I don’t want to give
15 up on the people in the Senate or the Executive
16 Branch from seeing this as necessary.
17 ASSEMBLY MEMBER LENTOL: Nor in the
18 Fourth Estate. There’s nobody here from the press
19 following this hearing. They don’t care about it.
20 MR. SCHECK: People will start coming.
21 ASSEMBLY MEMBER TITONE: Look, what I’d
22 like to see from the scientific community to be
23 perfectly frank is; you know, when people attack
24 me as a legislator, as a politician -- using the
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2 P word or my profession as an attorney, I get
3 upset sometimes because I know that my
4 credibility as a public servant when something
5 goes wrong with someone else, my credibility as a
6 public servant is tarnished.
7 When a lawyer is taken away in cuffs
8 because he stole a client’s money, my credibility
9 to my profession is being tarnished. So I just
10 see it that: Look, in the scientific community,
11 when we hear these stories of bad science or
12 technicians gone afoul, whether intentionally or
13 not, that their credibility, they’re being
14 tarnished. And as professionals, I would like to
15 hear more from them demanding of not only their
16 colleagues but of the State of New York, both the
17 defendant as well as the prosecutors and of our
18 judges that their work be taken with more respect
19 and credibility.
20 And I think that’s where we start to
21 really get the attention of perhaps the Executive
22 and perhaps the Senate: when the professionals
23 actually in the field are making the noise rather
24 than the advocates who know what the problems
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2 are. But really when the science community is
3 there saying there’s a problem with what we’re
4 doing and how we’re treating New Yorkers, then I
5 think that’s where we start to get people will
6 pay attention and irrespective of what side of
7 the aisle they sit in the Senate, as well as on
8 the second floor, as well as in the Assembly
9 itself.
10 MR. SCHECK: And I couldn’t agree with
11 you more. But let’s be clear about there are
12 forensic science practitioners and I don’t mean
13 to denigrate them by that term but it’s like
14 anybody else in a particular discipline or field:
15 You are a practitioner in the field and then
16 there are people that have expertise, scientists
17 in the broader area than just the narrow area of
18 expertise. Not to say that there isn’t much to be
19 learned and it’s not very important to know what
20 the bench scientist, the bench forensic scientist
21 is doing or what their problems are; that’s of
22 course critical.
23 But what we have now that we didn’t have
24 before is the mainstream scientific community. I
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2 shouldn’t even say mainstream. It’s the larger
3 scientific community is now paying more attention
4 to the issues of validation and reliability than
5 they ever did.
6 So when you look at what the National
7 Institute of Standards and Technology has done,
8 we have now scientific area committees in
9 chemistry, in physics, in digital, etc.; that is
10 the way that this organization of scientific area
11 committees is put together. There’s still a lot
12 of tension between the statisticians and the
13 broader scientists in the field and the
14 practitioners. But you don’t have the drug
15 companies and the practitioners deciding for
16 themselves what the regulations should be. You
17 have a larger independent scientific and public
18 health body looking at it. And the same thing
19 should be true here.
20 So, what I’m really saying is I think we
21 can get and we have gotten the leaders of the
22 scientific community to speak out now. You get
23 the President’s science advisors. You get the
24 National Academy of Science issuing these kinds
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2 of reports. That ought to get the attention of
3 everybody that’s serious about public safety and
4 national security and making this system work.
5 And I think it has. So, I think that there’s a
6 reservoir of people there that we can bring into
7 it. And so I quite agree, it would be the best
8 thing in the world if we had all the people that
9 --
10 ASSEMBLY MEMBER TITONE: Sure, sure. I
11 imagine that the forensics scientists --
12 MR. SCHECK: I don’t think that’s going
13 to happen but other scientists will.
14 ASSEMBLY MEMBER TITONE: I just think
15 imagine how great it would be if the forensic
16 scientists, if our great professionals were out
17 there saying that: This Commission does not
18 represent my profession.
19 MS. SARAH CHU, SENIOR FORENSIC POLICY
20 ASSOCIATE, THE INNOCENCE PROJECT: And may I add
21 on to what Barry said?
22 ASSEMBLY MEMBER LENTOL: Sure. Yeah,
23 please Sarah.
24 MS. CHU: My name is Sarah Chu and I’m
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2 the Senior Forensic Policy --
3 MR. SCHECK: I’m going to have to sign
4 off. I apologize and I apologize for all my
5 technical difficulties. It’s all my fault.
6 ASSEMBLY MEMBER LENTOL: Thank you,
7 Barry.
8 MS. CHU: I’m the Senior Forensic Policy
9 Advocate at The Innocence Project. And Barry was
10 able to speak from the perspective of a
11 Commission member. And I have been an observer of
12 Forensic Science Commissions across the country.
13 Something that I think is a pressing need and
14 this stakeholders committee that Barry mentioned
15 could be engaged immediately to work on issues
16 regarding the duty to correct. It would be
17 important for the State to be able to come
18 together to work on these issues before the
19 decision is made for the State.
20 And the reason I say that is because the
21 State of Texas through its Forensic Science
22 Commission has done discipline-wide reviews. And
23 they’ve looked at arson. They looked at
24 microscopic hair comparison. They looked at
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2 problems with DNA interpretation. They looked at
3 bite marks and the use of bite marks in their
4 criminal justice system. And that Commission,
5 these reviews are still ongoing. There were
6 hundreds of cases that they needed to look at
7 because they’re such a large state.
8 But the fact that New York State has not
9 done its own review does not mean that these
10 issues don’t exist in our State. And we were
11 incredibly disappointed to see that the
12 Commission on Forensic Science in New York State
13 began a discussion to consider microscopic hair
14 comparison review back in 2013. And the review
15 the initiated is because the FBI realized that
16 after decades and decades of application of this
17 evidence, that they found that at a systematic
18 level FBI examiners were testifying to hair
19 comparison evidence in a way that was
20 scientifically invalid.
21 And so the FBI with The Innocence
22 Project and the National Association of Criminal
23 Defense Lawyers partnered to do a review. And in
24 doing that review, one of the things that was
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2 uncovered was the fact that hundreds and hundreds
3 of State level hair examiners were trained by the
4 FBI to conduct the examinations and to testify to
5 evidence in the exact same way that FBI examiners
6 had.
7 So when the State of Texas heard that,
8 an advisory went out in I think April 2013. The
9 Texas Forensic Science Commission initiated its
10 review in November of 2013. In New York State,
11 the same advisory came out in 2013. The
12 Commission began to debate whether or not to do a
13 hair review. Committees were formed to consider
14 it, to develop a process. And then abruptly in
15 June 2016, just this last summer, the Commission
16 voted to send a letter to the Governor to ask the
17 Attorney General to consider conducting a hair
18 review. Now again, one of the things I want to
19 emphasize: arson issues, hair issues, bite marks;
20 we have institutional bit mark experts in New
21 York State; that these problems will continue to
22 mount.
23 And unless we do our job and conduct
24 these reviews and take the lessons from them to
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2 improve the practice of forensic science in these
3 disciplines, that there may be a day when the
4 decision is made for us. And when the State could
5 proactively plan and guide our institutions
6 through a review in a way that builds our
7 institutions and informs and educates all the
8 people involved in the criminal justice system.
9 ASSEMBLY MEMBER LENTOL: Thank you.
10 Thank you very much. We appreciate your sitting
11 through Barry’s testimony. Our next witness is
12 Scott McNamara, the District Attorney of Oneida
13 County; the President-Elect of the District
14 Attorneys Association of New York. Good
15 afternoon.
16 MR. SCOTT MCNAMARA, DISTRICT ATTORNEY,
17 ONEIDA COUNTY; PRESIDENT-ELECT, THE DISTRICT
18 ATTORNEYS ASSOCIATION OF NEW YORK: Good
19 afternoon.
20 ASSEMBLY MEMBER LENTOL: This is not a
21 lynching party.
22 MR. MCNAMARA: I’m a little concerned.
23 Well, good afternoon. My name is Scott McNamara.
24 I’m the elected District Attorney of Oneida
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2 County and I am the President-Elect of The
3 District Attorneys Association of the State of
4 New York. I’m also a Commissioner on the Forensic
5 Science Commission. And today I’m speaking before
6 you on behalf of DAASNY. And I am accompanied
7 today by the Executive Director of DAASNY, Morgan
8 Bitton.
9 As a major stakeholder in this area,
10 DAASNY thanks you for including us in this
11 discussion and considering our positions and our
12 concerns. It’s my understanding that the purpose
13 of this hearing from the announcement was,
14 number, one, to examine the oversight of forensic
15 science in our State; and number two, to
16 determine whether additional steps are needed and
17 should be taken to assure the reliability and the
18 effectiveness of our current practices.
19 Unmistakably, prosecutors want forensic
20 labs that are reliable. Indeed, if we had our
21 way, laboratories that we use would be beyond
22 reproach. As a profession, we want laboratories
23 and scientists that are thorough and trustworthy.
24 Further, the constitutional mandates of speedy
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2 trial require us to stick to a rather strict
3 schedule and demand results in a timely and yes,
4 some would argue a hurried fashion at times.
5 The reliability of a lab is paramount to
6 our ability to seek justice and to produce fair
7 and just resolutions of our cases, whether that
8 be a conviction or an exoneration. We cannot do
9 that if we cannot rely upon the labs that perform
10 the analysis, unless they are working the highest
11 reasonable professional standards. Therefore,
12 proper oversight of the public labs upon which we
13 rely on is a major concern of our organization.
14 Currently DAASNY is well represented as
15 a major stakeholder on the Commission on Forensic
16 Science. Two of the 14 members on the Commission
17 are elected district attorneys: D.A. William
18 Fitzpatrick and myself. However, one of the
19 criticisms of the Commission as you have heard
20 today is that it has become too political. It has
21 become common for three people on the Commission
22 to vote in a block. Often those votes make little
23 sense and establish nothing but to make a biased
24 point. Two of the members have recently left and
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2 I consider them both friends; so I’m not saying
3 this in a bad way. And the other one is
4 contemplating leaving.
5 The truth is that the Commission should
6 be run by scientists, not by politicians and not
7 by people that have an ax to grind or a position.
8 And you’ve heard that even from Marvin and Barry
9 today. Don’t misunderstand me. It is one of the
10 greatest honors I have. When I go places where
11 I’m introduced to say that I’m a member of the
12 Commission, it’s a great honor. I mean, I like
13 Assemblyman Titone, very proud that I serve the
14 public, just like I’m sure all of you are and
15 proud of what we do. But the reality is perhaps
16 there should be an advisory board to the
17 Commission and the Commission should be made of
18 scientists like the DNA Subcommittee is.
19 Nonetheless, talking about the
20 Commission as it exists right now, I do stand in
21 a unique vantage point to speak to you as both an
22 elected D.A. and as a Commissioner. I, like
23 Marvin and Barry did before, I attend the
24 quarterly meetings. Prior to being appointed
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2 however, I had limited knowledge of the oversight
3 that the Commission exercised over the public
4 labs in New York State. To be honest with you, I
5 was unaware that each lab was required to go
6 through an intensive accreditation every four
7 years. Not currently, but until just recently
8 those accreditations were done by ASCLD/LAB.
9 I don’t necessarily agree with what
10 Marvin said. My understanding is ASCLD/LAB and
11 another company merged and that’s the accrediting
12 agency. I would disagree with something that was
13 said though. The Commission has not blindly
14 turned everything over to ASCLD/LAB. And that’s
15 absolutely not true and all of this is public.
16 That’s the other thing too. And I’m with you on:
17 How do you make this spicy? How do you make the
18 public get interested? Everything we do is
19 public. Our Commission meetings are broadcast. I
20 mean, people can download them. And I know people
21 in my profession, some of them don’t even
22 appreciate what we do there.
23 So I understand that problem as you say
24 it. But we did go through a procedure where we
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2 looked at other bodies to see if one of those
3 bodies would be better for what we do; to make
4 sure that we can make these labs be more
5 reliable.
6 I’m not totally disagreeing with Marvin
7 on some of the things he said. But on that I just
8 cannot agree with him at all. We have looked at
9 that. We don’t blindly and I forget what his
10 exact words were -- rely upon that. We have
11 looked at other agencies. But in addition to not
12 knowing when that was done; I also didn’t know
13 that on the first and third year they also had to
14 go through an off-site performance review. And on
15 the second year, they actually had to go through
16 an expanded surveillance from ASCLD/LAB.
17 I also did not know and I think it was
18 surprising in a good way too as a prosecutor,
19 that all the abnormalities, all the errors, all
20 the missteps and all the acts of misconduct
21 within the labs were required to be reported to
22 ASCLD/LAB and also to the Commission. And that’s
23 part of the public documents that we get.
24 Now there was some talk about why the
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2 technicians’ names are taken out. My
3 understanding is it’s because of their right to
4 privacy. Because when these things are turned
5 into us, often they are at the very initial
6 stages of an investigation. They might be
7 cleared. They might be found to be culpable for
8 what they did wrong. But I understood it to be a
9 right to privacy issue. It has nothing to do with
10 hiding their names.
11 And as a matter of fact, with one of the
12 things that has happened recently involving New
13 York State, we know all of their names. So when
14 we ask, we get them. So I would disagree that
15 there’s any hiding going on by the labs. I think
16 they work in a unique situation. And I think we
17 can see that from the New York State Police issue
18 that we had. There are other things at play here:
19 civil service, privacy; people being afraid of
20 being sued if we say something about somebody
21 that’s wrong. So we don’t want to be sued and we
22 don’t we don’t want to be subject to that. So I
23 think those things too we have to keep in mind
24 when we talk about some of those things.
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2 But I would like to say this: In
3 preparing for the Commission meetings, I spend no
4 less than 25 hours. Most of the time it’s closer
5 to 40 to 80 reading. Okay. I’m an elected
6 district attorney. I have a full-time job. This
7 is a lot of work and it is for all the other
8 people. And I oftentimes have to look up what the
9 reports are talking about. So once again, I can’t
10 emphasize enough: I think scientists that
11 understand it should be the people.
12 Now, I will share with you one thing.
13 There was a scientist on it and you, I think
14 Assemblyman Titone, had asked a question: How do
15 you get them? I think if you get the politics out
16 of it, you’ll get the scientists in. That’s my
17 opinion from an observer on the Commission.
18 Because we had a Commissioner that I thought did
19 a phenomenal job. And to be honest with you, she
20 didn’t want to deal with the political and the
21 bickering and the fighting that goes on and the
22 positions that were being taken and that certain
23 people were advocating and chewing up hours upon
24 hours at these meetings. And I know she was asked
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2 to stay and I know she declined.
3 Now I think if you get the political
4 part of it out and let the scientists be there
5 and have some sort of oversight committee made up
6 of defense attorneys, made up of prosecutors,
7 made up of the judiciary that can give the
8 practical end of it to help the Commission if
9 they had a question; I think that’s a great idea.
10 And, you know, I can’t speak for DAASNY. But I
11 can tell you I would definitely go back and as
12 the president-elect and as a member of DAASNY and
13 have been a member of DAASNY for my entire
14 career; I’m sure that this is something we would
15 definitely be willing to discuss and talk about.
16 So I won’t go into the rest of my
17 speech. I’ll leave that -- you have it. It’s part
18 of it. But I would like to just address a couple
19 of things. The hair analysis subcommittee that
20 was mentioned a few minutes ago; actually I was
21 on that subcommittee. Okay. So sometimes when
22 things are talked about and said: We didn’t do
23 anything or nothing was done; maybe if you knew
24 the whole story, maybe that would straighten
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2 things up. The person that was actually chairman
3 of that called one meeting. Okay, it was a
4 telephone conference meeting and that’s the only
5 meeting we ever had.
6 At the conclusion of nothing happening,
7 it was me, a prosecutor, that asked to send the
8 letter to the Governor. Okay? Because I realized
9 based upon -- and that’s why I tell you how many
10 hours it takes me to prepare for these meetings;
11 that committee because I knew Peter was very
12 busy, I knew some other people on that were very
13 busy; we didn’t have the time to go and order all
14 these transcripts and review these transcripts.
15 Where do you find the time when you have a full-
16 time job? So those are the type of things that
17 when you have a committee like this, you do have
18 limitations on their time.
19 So that’s why I thought the best thing
20 to do would be to create a committee within the
21 State that would make it so that there would be
22 some people that were actually getting paid to do
23 this and would be able to spend the time and
24 energy and not be distracted by all the other
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2 things; whether they’re a defense attorney with
3 numerous clients or whether they’re a prosecutor
4 that has a full-time job.
5 So those are the things that I would say
6 to you. Yeah, I believe there are ways of fixing
7 it but I will say this: I do not as a
8 Commissioner believe that what is coming out of
9 our public labs is not reliable. To the contrary.
10 And I will say this: People make mistakes. People
11 in my profession make mistakes. People in your
12 profession make mistakes. People in the clergy
13 make mistakes. I don’t care what profession we’re
14 in, we have people that make mistakes. It’s not
15 about people making mistakes that’s the problem.
16 It’s about: What do we do when they make a
17 mistake? Do we look the other way? Do we cover it
18 up or do we expose it? Do we bring it to light?
19 And do we do something to make sure it doesn’t
20 happen again? And I believe the Commission does
21 that.
22 As with any government, okay, there are
23 claims, you know, how slow we take sometimes. But
24 once again I remind you: People have rights to
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2 defend themselves. People have the right to have
3 hearings. So when a lab person is accused of
4 doing something wrong, it does take a little time
5 to fully vet out what took place and to hear
6 their side of the story.
7 And you know there was some talk earlier
8 about one of the lab technicians who actually
9 committed suicide. Well, let me tell you the
10 other side of that story. That lab individual
11 testified in a case for me in my county,
12 involving the assassination of a police officer.
13 Okay. The police officer is writing a ticket and
14 the guy came up behind him and shot him in the
15 head. That lab technician did work for us.
16 Because of the disclosure, we had to turn that
17 over to the defense attorney and did. And we had
18 to go through a hearing. And there was a chance
19 had he done more work for us that we would have
20 had to retry that case.
21 So we do care about those things because
22 they have a definite adverse impact upon us in
23 convictions in very difficult cases. That case
24 was very traumatic for our community and for the
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2 Utica Police Department. And the fact that his
3 negligence or his malfeasance, whatever you want
4 to call it, could have affected our conviction.
5 Fortunately, he did almost nothing in our case
6 but we still had to go through a hearing and
7 everything.
8 And I will say something that Marvin
9 said and I think it is somewhat incorrect to
10 state that we don’t turn the reports over. That’s
11 absolutely not true and at least I can say that
12 in my county. Okay, first of all, I have a
13 standing rule that we have open discovery: You
14 give them everything unless it’s going to get
15 somebody killed. Okay, number two: We give them
16 everything we possibly can give the defense
17 attorneys. Because we’ve found that if you give
18 them everything, they can make a decision that’s
19 fully vetted and oftentimes we get plea bargains
20 that we might not have got when we’re not giving
21 them everything. And as for the reports --
22 ASSEMBLY MEMBER LENTOL: That’s what
23 I’ve been trying to tell the D.A.’s Association
24 for the last ten years.
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2 MR. MCNAMARA: Well, there are a lot of
3 D.A.’s doing it just like me, to be honest with
4 you. There’s a lot. And it’s just that like you
5 said: There’s a certain narrative that comes out
6 of the media. There’s a certain narrative that
7 comes against us. I don’t find it necessarily to
8 be true in many places. But we do turn over the
9 whole report. The question becomes: What part of
10 the report is Rosario and what part of the report
11 is discovery? And that’s where the bickering
12 becomes. To be honest with you, we try to get the
13 Rosario end of it as soon as we can and give to
14 them. Okay. But I have never heard the argument
15 made that we give one page and the rest of it
16 isn’t covered by discovery. I’ve never heard that
17 argument. And to be honest with you, I wouldn’t
18 want to make that argument in front of the judges
19 that we practice in front of because it wouldn’t
20 go well for us.
21 ASSEMBLY MEMBER TITONE: Well, I don’t
22 think Mr. Schechter brought that up. I think it
23 was I that suggested that it might be because of
24 discovery.
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2 MR. MCNAMARA: I don’t think so. But I
3 do think that the discovery is pretty clear: the
4 report has to be turned over in its entirety. I
5 don’t read that to mean we can give the front
6 page and not the rest of it.
7 ASSEMBLY MEMBER TITONE: I think the
8 question was, you know, it’s not just the report
9 but the methodology of the report; at the end of
10 the day how did we get to the report? I don’t
11 know if Marvin’s still here but I think that’s
12 more what we’re talking about is: What was the
13 methodology that was used to draw these
14 conclusions that are in this report? And I think
15 what’s become perhaps problematic to some people
16 is that they feel that because the way a lab
17 technician over here does this work, as compared
18 to the way the lab technician over does it could
19 differ.
20 And so when we think about science, we
21 tend to and perhaps it’s a mistake, but we tend
22 to think of it as an absolute. And we want to
23 have complete confidence in science because if we
24 can’t trust science, then: My God, what can we
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2 trust? And I think not only for the accused and
3 the attorney representing the accused but for
4 their family members, as well as for law
5 enforcement, you want to have as close as you
6 possibly can get to that scientific certainty,
7 that what this report says is based on good
8 science, good credible methodology.
9 So I think that’s more what Marvin was
10 speaking to. It’s not: I’m getting the last page
11 of the report; I’m getting not the full report.
12 What I want to know sometimes is: Well, what did
13 the lab technician do to generate this report?
14 And I think that’s where the discovery becomes a
15 little bit; am I articulating this correctly?
16 MR. SCHECHTER: On the money.
17 ASSEMBLY MEMBER TITONE: Thank you.
18 That’s the last time I’m doing that today by the
19 way.
20 MR. MCNAMARA: Which I think we
21 interpret that to be Rosario material. But once
22 again I can only speak for my county. Okay, we
23 give that to the defense attorney usually a month
24 before the scheduled trial.
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2 ASSEMBLY MEMBER TITONE: Alright, and
3 I’m heartened to hear that. I really am. And
4 speaking of my present district attorney, I know
5 that he is a man who is just as interested as
6 finding the guy who did it or woman who did it
7 and ensuring that there’s a penalty with that; as
8 ensuring that the innocent person is protected. I
9 give my district attorney a heck of a lot of
10 credit. You know, I have a personal relationship
11 with him but I can’t imagine that that’s the
12 majority of the district attorneys --
13 MR. MCNAMARA: I would disagree -
14 ASSEMBLY MEMBER TITONE: -- in our
15 State.
16 MR. MCNAMARA: Who is your district
17 attorney?
18 ASSEMBLY MEMBER TITONE: Mike McMahon.
19 MR. MCNAMARA: Yeah, he’s a fine man.
20 But I would disagree with you. And obviously as I
21 said, with any profession you have outliers. But
22 I will say this: As a general statement about the
23 prosecutors that I know and the people that are
24 the elected D.A.’s in this State, we want to get
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2 it right. We don’t want to convict innocent
3 people. And we want to make sure whatever we’re
4 relying upon is accurate and reliable as it
5 possibly can be and all of us feel that way.
6 This narrative that has been put out
7 about all we care about is convictions and
8 putting people away; it’s absolutely not true.
9 I’ve stood in a courtroom when Barry Scheck was
10 with somebody that got exonerated. I stood there.
11 Okay. That’s no place a prosecutor ever wants to
12 be. It’s a terrible thing. And I’ve done a lot of
13 things and I know the D.A.’s Association has done
14 a lot of things to make sure that those type of
15 events don’t happen in the future.
16 ASSEMBLY MEMBER TITONE: Sure.
17 MR. MCNAMARA: And the public labs are
18 one of them. We need to have oversight.
19 ASSEMBLY MEMBER TITONE: Sure. And I
20 think what I’m speaking more to is that the
21 confidence level of not only the district
22 attorney, the people who work for you, under you,
23 you know, want that confidence, that pride that
24 comes with the confidence. And you want to ensure
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2 like us at this panel that the people that we all
3 represent and ultimately every person in the
4 State of New York is being given that fair shake;
5 that they’re confident in a decision, whether
6 it’s guilty or not guilty, that there was a fair
7 shake or that the person being investigated had a
8 fair shake throughout the process.
9 And I just want to switch gears. When we
10 talk about the labs and creating confidence, one
11 of the things I’m wondering and maybe you can
12 speak to is: You and every attorney in this room
13 every year has to go through a continuing legal
14 education process.
15 MR. MCNAMARA: Absolutely.
16 ASSEMBLY MEMBER TITONE: Every medical
17 doctor, irrespective of their line of practice,
18 has to go through continuing education of
19 medicine. Do you think maybe perhaps it would be
20 helpful if once we have a real standard set, a
21 uniform set of processes, particularly as our
22 science grows and expands and ultimately changes;
23 would it be a good idea, one, to ensure that the
24 lab technicians that we are relying upon as the
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2 public, they continue their education? You know,
3 you don’t just get your license. Here’s your job
4 and here’s your paycheck. It’s done. But to
5 require continuing education in their process?
6 And I had a note here which I’ll
7 probably get back to later but also within our
8 Commissioners. We heard the problem that you just
9 stated that you’re not a scientist and you wish
10 that there were more scientists on this
11 Commission. But what’s the education that you
12 guys are getting? The Commissioners, what are
13 they getting? Whether it’s from us or --
14 MR. MCNAMARA: Obviously based on what I
15 said, I think the Commission should be made up of
16 scientists. I do agree with you. I think there
17 should be a report submitted to you. Although I
18 would submit to you in essence it already is
19 because it’s all public and anybody could watch
20 it. But I don’t have a problem with a report
21 being submitted to you. I do believe, as would
22 our profession as an attorney or in my profession
23 specifically as a prosecutor, the fact that we
24 have to get continuing legal education and we
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2 have to stay updated on everything; I think
3 scientists should have to do that, absolutely.
4 I do think though when you’re looking
5 for answers to some of these solutions, you need
6 to go back to law school. Law schools don’t teach
7 prosecution specific. There’s no law school class
8 about forensics or what you can or can’t say. I
9 mean, I know that’s not in your jurisdiction but,
10 I mean, there are a lot of things as a society
11 that we can do to make everything better. But,
12 yes, I do believe scientists should be; but I’m
13 not positive, as I sit here, to be honest --
14 ASSEMBLY MEMBER TITONE: Scientists
15 particularly in the field, if they’re going to be
16 creating evidence that either puts a person, you
17 know, takes away their liberty --
18 MR. MCNAMARA: But I’m not sure as I sit
19 here right now that that doesn’t already happen
20 in many of the labs. I mean, I can’t say that
21 once they graduate from college and then they
22 don’t ever get update. I don’t believe that to be
23 true. I do believe that there is continuing legal
24 education. I do believe they have to study. I
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2 know from being on the Commission that whenever
3 they implement a new procedure that they have to
4 go through all training on that; that they have
5 to successfully complete testing on it; that they
6 have to actually be able to perform the test and
7 prove to their supervision that they can do that
8 test.
9 So, as I sit here right now, I don’t
10 believe that they don’t get any continuing legal
11 education. Now whether or not it has to be
12 reported as a lawyer like you and I; every two
13 years we have to report it to the State and we
14 have to swear that we got it and prove what we
15 did. I’m not sure if it goes to that degree. But
16 I do believe from being on the Commission that
17 there is continuing legal education and within
18 these labs. I don’t believe they just --
19 ASSEMBLY MEMBER TITONE: Legal
20 education, for example, the Brady Rule, like what
21 about that? Where are we going with --
22 MR. MCNAMARA: I was hoping the worst I
23 would deal with is familial searches. I mean,
24 obviously my position is is I will tell you
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2 exactly what I tell my assistants: turn it all
3 over, period. Don’t come to me and try to explain
4 to me how you navigated this incredible legal
5 argument, how something wasn’t Rosario and it
6 wasn’t Brady. Just turn it all over. Don’t try to
7 make the decision yourself because I don’t want
8 to be standing in our appellate division, which
9 is Rochester, defending that, period. And if you
10 get yourself in that, you’re probably not going
11 to have a job. That’s my position. So, I don’t
12 believe that sometimes -- I mean, there are
13 people that do foolish things. There are people
14 that don’t turn things over.
15 ASSEMBLY MEMBER TITONE: I know.
16 MR. MCNAMARA: But having said that,
17 that doesn’t make our whole profession do it that
18 way. And once again it’s how people in the
19 position of power: What do you do when somebody
20 makes a mistake? How do you react to it? And when
21 it comes to Brady, like I said, everybody knows
22 my position. Everybody in the D.A.’s Association
23 knows my position. I’m fairly -- I guess the word
24 would be liberal on it. I turn everything over
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2 unless it’s going to get somebody killed. And
3 that includes all the reports of the police and
4 everything like that. So I can’t sit here and
5 tell you; I don’t know what goes on in New York
6 City. I don’t know what goes on for that matter
7 in Buffalo or Syracuse.
8 ASSEMBLY MEMBER TITONE: Which makes me
9 then wonder: Is there a need for something that’s
10 a bit more uniform? Because maybe what you’re
11 doing, which sounds really incredible and thank
12 you and it’s something that the people in
13 Rochester and Utica can be proud of. It sounds
14 like from the get-go, once the horse is out of
15 the gate, that there’s a fair shake coming along.
16 But the stigma, the thought process of many
17 people, particularly in New York City, you know,
18 in my community that I represent; they feel that
19 they’re not getting the fair shake. And maybe
20 it’s because in the past they weren’t.
21 But having set rules that every, all 62
22 district attorneys are following with respect to
23 the handling of forensic evidence; maybe we can
24 do better and maybe that can do better is a set
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2 of formalities that are set: These are your
3 guidelines. This is what you are doing when
4 you’re dealing with -- and starting at the lab
5 level or collection process.
6 MR. MCNAMARA: I understand what you’re
7 saying. And to be honest with you, from a
8 philosophical standpoint I would want to say yes.
9 But I will tell you something that I’m very
10 familiar with because like Marvin, who served on
11 the National Academy of Science on Forensic, I
12 served on the National Academy of Sciences on Eye
13 Witness Identification. And I have pushed your
14 section of the government. I have pushed the
15 Senate. And I have pushed the Governor to adopt a
16 law that’s been out there.
17 There’s something I learned about that
18 that I didn’t appreciate being originally a
19 little farmer, growing up on a farm in a very
20 small community in upstate New York until what am
21 I am now or serving on the National Academy of
22 Science. What I can do in Oneida County and in
23 the City of Utica and did; for example, first
24 thing I did when I became the D.A., we videotape
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2 all confessions, all -- not major crimes -- all.
3 I actually videotape our eye witness
4 identification procedures. I’m probably the only
5 one in the State that does that.
6 Okay, I think that’s pretty simple. But
7 what I realized when I started advocating some of
8 these positions was that New York State Police,
9 the New York City Police Department; these are
10 huge police departments. They’re not the police
11 departments that I’m working with when I can as
12 the D.A. of a county of 250,000 people, I can
13 manipulate something like that and make it
14 happen. I’m not moving an institution that has
15 almost as many employees as I have citizens. So
16 that’s the thing I say and when we pass a law or
17 when you want to do discovery.
18 I’ll tell you something I do in my
19 county. I don’t know if it could be done in a big
20 county like Queens. Queens is bigger than many
21 states. I don’t know if it could be done. What we
22 do: We have electronic -- basically our office is
23 paperless. We put everything into a computer. We
24 scan it all in. So for example, if you came to my
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2 county as a defense attorney, you would get a
3 name and a password. And we’d give you full
4 access to our file, except for anything that we
5 chose not to give you. Like for example, once
6 again, if we had a CI, we didn’t want to give you
7 the CI’s name. You would have full access to
8 that. I can do that in Oneida County. I don’t
9 know if D.A. Vance or D.A. Brown or D.A. McMahon
10 could do that.
11 ASSEMBLY MEMBER TITONE: Right.
12 MR. MCNAMARA: So that’s the problem
13 when we talk about, you know, our State is very
14 different when you start talking about New York
15 versus the little town that I live in, which
16 there’s 500 people in that town. So, that’s the
17 problem when we talk about these discovery
18 reforms or we talk about these things: What can
19 be done? I can’t sit here and say that we should
20 do those because it might be physically
21 impossible. It might be physically impossible to
22 create that computer system that I use in New
23 York City. I don’t know.
24 ASSEMBLY MEMBER LENTOL: Oh, I wish we
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2 could use it in New York City because I just want
3 to interrupt you for a second. I have a thought
4 that I don’t want to lose and that is this: I
5 kidded before about the system being rigged and
6 discovery isn’t the only part of the problem. And
7 laboratories may be a problem. You may think
8 differently now. But there are other aspects,
9 like the videotaping of custodial interrogations.
10 And the cops in New York City get a bad rap
11 because it’s not only police-community relations
12 that causes outcries from the community about
13 fairness. It’s the system being rigged against
14 people after they’re arrested too that we have to
15 be concerned about. And I’m glad to hear that
16 you’re doing some of the things that will improve
17 police-community relations because it will. And a
18 lot of prosecutors don’t get it and you do.
19 MR. MCNAMARA: Thank you.
20 ASSEMBLY MEMBER LENTOL: And the last
21 thing I want to point out: I’m also happy that
22 you talked about all scientists being on this
23 Commission because that was the Assembly’s
24 position back when the Commission was formed. But
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2 we lost that one to the Senate. The Senate wanted
3 politics to be involved in the Commission. So
4 maybe, just maybe you as the incoming president
5 of the District Attorneys Association, you can
6 convince our counterparts in the other House that
7 it’s a better idea to have scientists than it is
8 to have politicians. Because you have politicians
9 from both sides and we’d like the Commission to
10 be fair to both sides.
11 ASSEMBLY MEMBER TITONE: And I want to
12 point out that, you know, you’re making the point
13 that I was going to make too. Joe, I think that
14 DAASNY could be very, very helpful in helping us
15 to reform a Commission that seems to have lost
16 its way and I don’t mean to say that but hearing
17 what I’ve heard thus far. And particularly when
18 you look at the makeup of some of the members in
19 the majority in the Senate; I think of my
20 Senator, Andrew Lanza, a former prosecutor
21 himself. He would listen to you, more so than he
22 would listen to an advocate on the issue. So, I’m
23 hoping that moving forward and congratulations on
24 being president; congratulations but I’m hoping
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2 that we can count on your support should we come
3 up with recommendations and if we need you to
4 advocate for the district attorneys to our
5 colleagues in the Upper House that you’ll be
6 available for us.
7 MR. MCNAMARA: I would definitely to
8 speak to them if they ask.
9 ASSEMBLY MEMBER TITONE: Okay. And just,
10 I wrote the bill that made it a felony to assault
11 the district attorney.
12 MR. MCNAMARA: You did? Alright.
13 ASSEMBLY MEMBER TITONE: Yes, I did.
14 MR. MCNAMARA: It never got passed
15 though.
16 ASSEMBLY MEMBER TITONE: Yes, it did.
17 It’s signed.
18 MR. MCNAMARA: Did it?
19 ASSEMBLY MEMBER TITONE: It got signed,
20 yeah.
21 MR. MCNAMARA: Did it? Alright.
22 ASSEMBLY MEMBER WEINSTEIN: Thank you
23 very much for your testimony today. I’m sure that
24 we’ll be in touch --
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2 MR. MCNAMARA: Thank you.
3 ASSEMBLY MEMBER WEINSTEIN: -- as we go
4 along trying to make some reforms as it relates
5 to the Commission and the forensics. Thank you.
6 MR. MCNAMARA: Thank you for having us.
7 ASSEMBLY MEMBER TITONE: Thank you and
8 best of luck.
9 MR. MCNAMARA: Thank you.
10 ASSEMBLY MEMBER WEINSTEIN: Our next
11 witness, Roger Muse, Vice President of Business
12 Development, ANSI-ASQ National Accreditation
13 Board. And you didn’t provide us with any written
14 testimony?
15 MR. ROGER MUSE, VICE PRESIDENT OF
16 BUSINESS DEVELOPMENT, ANSI-ASQ NATIONAL
17 ACCREDITATION BOARD (ANAB): I did not.
18 ASSEMBLY MEMBER WEINSTEIN: Okay, we’ll
19 listen carefully then.
20 MR. MUSE: Sure. And actually again as
21 you stated, my name is Roger Muse. I’m with ANAB.
22 I spoke with Mr. Jenkins on the phone who
23 requested that I come. I didn’t have an agenda to
24 push. I don’t have a testimony to give. I was
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2 asked to come to potentially answer questions as
3 to what’s going on. I can give you an overview of
4 what’s going on.
5 But my understanding walking into this
6 was that there was some lack of interconnectivity
7 between this Assembly and the New York State
8 Commission of Forensic Science: there is some
9 information that doesn’t always get shared;
10 there’s a misunderstanding and just some
11 misinformation about how accreditation works in
12 general.
13 ASSEMBLY MEMBER WEINSTEIN: So maybe I
14 can start off with a question.
15 MR. MUSE: Sure.
16 ASSEMBLY MEMBER WEINSTEIN: Others will
17 jump in. So, when your organization visits
18 forensic labs, what are you looking for in order
19 to grant, suspend or revoke accreditation. What’s
20 your process?
21 MR. MUSE: So, we audit the laboratories
22 in all disciplines. Meaning whether it’s an
23 aerospace, automotive, mechanical,
24 microbiological, forensic; we’re there to audit
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2 the laboratories to ISO 17025 and those
3 requirements that fall into that.
4 The genesis of this really dates back to
5 this community, this forensic community and their
6 reliance upon a company that we’re recently
7 acquired, which is ASCLD/LAB. And they had a
8 legacy system that operated outside of the ISO
9 structure for many years. So what we’re looking
10 for typically when we go to a laboratory is the
11 requirements to ISO 17025. And when we’re there,
12 we also keep in mind the international standard
13 that the accrediting bodies follow underneath the
14 International Laboratory Accreditation
15 Cooperation, which is accepted and required by 85
16 economies around the world. ISO 17025 is the
17 general requirements for all testing and
18 calibration in laboratories. That’s what’s
19 accepted in Europe, Asia, South America. And
20 that’s what the general of requirements.
21 However, in certain industries, okay, in
22 aerospace, medical devices, some other areas,
23 forensics; there are layered requirements over
24 top of the general elements inside 17025. So when
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2 we got to assess a laboratory, it may be an
3 industry-specific situation, such as forensic
4 science; where sometimes it’s the accrediting
5 body who is interested in putting their own
6 supplemental requirements in there. Sometimes
7 it’s an international guidance document, an ILAC-
8 P or G series documents that’s driving this. And
9 then often it’s industry related what’s doing
10 that.
11 So in our case, yeah, what we’re looking
12 for is conformist to ISO 17025 and those 230-some
13 odd elements that are in there; our supplemental
14 requirements that are in there; the ILAC
15 requirements under G19 and any industry-specific
16 infusions that we’ve got. So when I met with
17 certain individuals when the National Commission
18 was evolving and served on the accreditation
19 subcommittee, we identified some things that
20 seemed different in this industry is: You don’t
21 necessarily want to build a straw house and then
22 get upset when it blows down. You want to build
23 it the way you want to build it for the results
24 and the objectives that you’d like to achieve.
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2 So you can’t get mad at the set of
3 requirements that are in place. What you have to
4 do is build a scheme on top of that. That’s what
5 aerospace has done. That’s the Department of
6 Justice had done with the body armor program.
7 That’s what the Consumer Product Safety
8 Commission has done with toy safety. However, we
9 thought maybe there was somebody who was going to
10 take on at the national level, so that
11 accrediting bodies don’t have to go from state to
12 state to state operating different accrediting
13 programs.
14 We have to keep in mind the costs to the
15 laboratories obviously. That’s not really our
16 concern. That’s your concern. That’s the
17 government’s concern. That’s what happens when
18 you build conformity assessment programs is you
19 don’t want to build a $4,000 car seat and say:
20 Hey, it’s safe. Well, if you can’t afford it, it
21 doesn’t work. So, the hope was that at the
22 national level that there was going to be some
23 type of domestic scheme, an accreditation scheme;
24 whereby the accrediting bodies are used simply as
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2 a tool, as an audit engine. But they’re there to
3 set over the 17025 requirements for general
4 requirements of laboratories and then any layered
5 requirements that are over top of that.
6 So that kind of was the hope that we
7 were looking to see at that level. I’m not sure
8 where it’s going to go or what’s going to happen.
9 At a State level, I think you still have some
10 abilities to shape that, to cooperate with the
11 accrediting bodies. And I think that every
12 agency, every state and every industry specifier
13 who’s cooperated with us in the past has agreed
14 that at this point it’s been a pretty good
15 result. So I hope to see more cooperation at that
16 level. I’m not sure I necessarily saw a high
17 degree of cooperation with the Commission.
18 I support a whole lot of what I’ve heard
19 today. And I think there’s good ways to improve a
20 lot of these things. We’ve acquired and merged
21 with ASCLD/LAB and we’ve kind of taken the best
22 of breed approach with that. We’ve got a bigger
23 concern with --
24 ASSEMBLY MEMBER LENTOL: Did you work
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2 for ASCLD/LAB when it was in existence? Or do you
3 strictly work for ANAB?
4 MR. MUSE: I did not work for ASCLD/LAB.
5 I’ve been with ANAB for about 16 years.
6 ASSEMBLY MEMBER LENTOL: Okay.
7 MR. MUSE: So, but the best of breed
8 philosophy there was going to be, Assembly Titone
9 mentioned the recurring, continuing education
10 that you’ve seen in other industries, which is
11 interesting too. Some other things that we’re
12 looking at has to do at the technician’s level.
13 There are some concerns at that level. We’ve
14 taken a bigger focus on what used to be a five-
15 year cycle and made it a four-year cycle. Instead
16 of proficiency testing for the laboratory and the
17 laboratory results, it’s proficiency testing in
18 addition to the people -- the technicians; their
19 proficiency testing of themselves as individuals.
20 That’s more of a personnel thing. That’s unique
21 to this industry.
22 ASSEMBLY MEMBER TITONE: So that does or
23 does not happen?
24 MR. MUSE: It’s in our new rules.
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2 ASSEMBLY MEMBER TITONE: Okay. And has
3 that been implemented? Or is that --
4 MR. MUSE: That’s being released in
5 March.
6 ASSEMBLY MEMBER TITONE: Okay.
7 MR. MUSE: This is the fusion of our
8 requirements from the preceding to the new.
9 ASSEMBLY MEMBER TITONE: Okay.
10 ASSEMBLY MEMBER LENTOL: So there’ll be
11 a whole protocol that we can see?
12 MR. MUSE: Yup. There’ll be everything
13 that you can look at. These will be the
14 accreditation requirements. I want to say this.
15 There’s probably about 230 elements or 240
16 elements in ISO 17025. But when you combine them
17 with the supplemental requirements for this
18 industry that adds to the tune of like four or
19 500. The gentleman before me explained: Yeah,
20 people do make mistakes. There’s a lot of that.
21 We’ve identified a few here; obviously a lot in
22 the last few years. I don’t know that it’s
23 terribly different in every other industry.
24 But there are communities within medical
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2 devices or aerospace where these technicians,
3 there’s a difference in compensation and that’s
4 industry driven. This is State driven or in some
5 cases Federal lab driven. So, you’re dealing with
6 budgets, the money to pay for these individuals
7 flows down. There may be a “you get what you pay
8 for” element to that.
9 And also I think if the State had the
10 power to pull the reports that they need or the
11 listing of individuals that they need or a lot of
12 the stuff that Marvin was talking about, it would
13 be easier. Because typically with an
14 accreditation body, our contract and our
15 relationship because we have to adhere to ILAC
16 structure, to 17011 and to the International
17 Committee, who audits us and keeps our
18 credentials in line.
19 ASSEMBLY MEMBER LENTOL: I don’t want to
20 interrupt you. I just want to get to some of what
21 needs to be asked. When a lab fails, even
22 continually fails a few times, how often do you
23 notify CFS about that? Do you notify them or you
24 just notify the accrediting agency?
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2 MR. MUSE: We notify the accrediting
3 body. Now in Maryland, Maryland requires that
4 those labs send them all the failures. They’re
5 notified of every single failure. So to say that
6 that’s not possible is not true.
7 ASSEMBLY MEMBER LENTOL: And that’s in
8 the Maryland law that requires it?
9 MR. MUSE: Yeah. And so the State can
10 get that information. Now if you try to lobby the
11 independent institutions -- not you; but I’m
12 saying if one were to try to lobby the
13 independent institutions who are doing the
14 assessments, it’s a tougher route than going
15 straight to the labs and saying: I need this. I
16 need this. And I need that. From there you see
17 tremendous amount of cooperation I think from the
18 accrediting bodies.
19 ASSEMBLY MEMBER LENTOL: And would you
20 cooperate without a statute with the Commission
21 on Forensic Science?
22 MR. MUSE: If it’s not in violation of
23 ISO 17011, which protects; see these standards
24 weren’t built around lawyers and industry. They
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2 were built around science, right. And we’ve been
3 talking a lot about scientists all day.
4 ASSEMBLY MEMBER LENTOL: That’s what we
5 fought for.
6 MR. MUSE: Yeah, yeah.
7 ASSEMBLY MEMBER LENTOL: But the Senate
8 had a different idea at the time I believe about
9 how this Commission should have been structured.
10 MR. MUSE: Gotcha.
11 ASSEMBLY MEMBER LENTOL: And that’s
12 probably why we’re in this situation we’re in
13 now.
14 MR. MUSE: So, I don’t know a lot about
15 how states enforce those laws. I know that things
16 are very tricky. Things are very different in
17 some parts of the state and commissions and
18 institutions have more power than others. But if
19 you could lay out what you want and drive that
20 from a legal standpoint and make it a rule that
21 they must supply; then you don’t run into any
22 conflicts of interest between the accrediting
23 body and the laboratory. That relationship can
24 stay clean. Whoever wants that information
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2 before, should drive it and get it out. And that
3 way the accrediting body has no say in that. It
4 has to go out.
5 ASSEMBLY MEMBER TITONE: One of the
6 problems we face as legislators is we can say we
7 want science to be driving the bus but it’s the
8 legal field that created Rosario, that created
9 Brady. And we need our scientists to be savvy as
10 to what constitutionally makes good or bad
11 evidence that can get into a courtroom. But we
12 also want to ensure, you know, the district
13 attorney’s office, the perception is is that they
14 have unlimited resources; so that they can go the
15 labs, they can get this. And then they may use
16 the lab over and over again. And now the lab
17 feels that: If I don’t get this result, I could
18 lose business. I mean, can you speak to any part
19 of the optics of the business of labs?
20 MR. MUSE: Sure. And I assume you mean
21 specifically not outside of the forensic industry
22 but here specifically, the forensic industry
23 itself?
24 ASSEMBLY MEMBER TITONE: The forensic
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2 industry itself.
3 MR. MUSE: Yeah. I mean, sure, there’s
4 cultures under forensic accreditation; or
5 instance, some cultures in Asia where it’s
6 extraordinarily frowned upon and rude to go and
7 do someone else’s house and write findings and
8 call them out on the nonconformities. And it’s
9 been an issue. Here, we’re a little more brazen
10 than that. I mean, they write findings. They do
11 things. What’s released out to the public is
12 different from state to state, different from
13 accrediting body program to program. But the
14 optics of that: If our requirement under ILAC is
15 to write a finding, submit the finding and if we
16 have to suspend the lab, we do if their
17 corrective action isn’t sufficient. Or we see a
18 systemic breakdown or failures, we’ll suspend
19 them and we have. We’ve suspended laboratories
20 for doing that.
21 So irrespective of the optics, we’re
22 beholden to ISO 17011 and 17025; those
23 requirements and our own accreditation body
24 policies. So if somebody’s going to be fired as a
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2 result of that, that doesn’t really weigh into
3 our analysis of the lab.
4 ASSEMBLY MEMBER TITONE: So when there
5 is a suspension, a failure, who does that get
6 reported to?
7 MR. MUSE: Again, this is a contract
8 between --
9 ASSEMBLY MEMBER TITONE: Does it go to
10 the Commission --
11 MR. MUSE: So, we’re not a national
12 body, right. So we’re not a national, like a
13 government body, right.
14 ASSEMBLY MEMBER TITONE: Right.
15 MR. MUSE: There’s no law saying we
16 report anything to anybody. Again, we go back to
17 what we do is: We assess the lab. We provide a
18 result whether they get their accreditation or
19 not. Their accreditation itself is public
20 knowledge. We keep all our accredited labs on a
21 public database. But you won’t see the failures
22 necessarily from us.
23 ASSEMBLY MEMBER TITONE: On the business
24 end, who’s paying you to do the inspection?
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2 MR. MUSE: The labs.
3 ASSEMBLY MEMBER TITONE: The labs
4 themselves are paying you to inspect them?
5 MR. MUSE: Mm-hmm.
6 ASSEMBLY MEMBER TITONE: You see how
7 that could be a problem to some communities,
8 that: Well, if the lab is paying me to oversee
9 me, you know, and then I fail once, I fail twice.
10 It’s not being reported. And I’m not saying this
11 happens. But I’m talking about because our job is
12 ensure that the people we represent, which if
13 you’re a New York State resident it includes you;
14 that there’s a confidence in the system. And the
15 confidence in the system, whether rightly or
16 wrong, is deteriorating and for many, many
17 reasons. But one of the reasons could be the
18 whole perception that: The lab that got my son
19 convicted was inspected three times. It failed
20 three times and get this: The inspector was paid
21 by the lab. And so do you see --
22 MR. MUSE: Right. No, I mean, it’s the
23 system that the world has built around oversight
24 of testing laboratories. We didn’t invent it or
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2 design it. There’s not cash under the table:
3 wink, wink, we’ll sweep --
4 ASSEMBLY MEMBER TITONE: No, I get it. I
5 don’t mean to imply that at all.
6 MR. MUSE: But this is obvious, right,
7 the relationship where sometimes when one
8 municipality, it wasn’t the lab itself; it was
9 the mayor’s office who hired us. And even in case
10 of doing special inspections over top of what
11 we’ve done, we’re paid by them. So, it’s not
12 always a lab owner. Moreover, it’s usually the
13 municipality or the private entity or somebody
14 else paying for the accreditation. Our whole
15 mission as a nonprofit entity and as part of a
16 standards body in the United States is to try to
17 maintain that objectivity and really the
18 visibility of that objectivity to others.
19 Whereas the market share typically and
20 as history has taught us in the conformity
21 assessment work sniffs out those types of
22 situations. Because if there’s a conflict that
23 changes the status of someone’s accreditation, as
24 soon as somebody were to leave that laboratory,
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2 that’s out in the public, that’s out in the
3 public. Those things generally don’t occur.
4 And it’s not just here. Even in some
5 economies where there’s a high degree of
6 suspicion of bribery and fraud, way more so than
7 the United States; even in those economies, the
8 accreditation structure is designed the say way
9 we’re talking about here where the lab pays for
10 the assessment, from that respect has been
11 untethered.
12 ASSEMBLY MEMBER TITONE: Sure. Very
13 rarely can you shame a bad actor into acting
14 well. So, I hear what you’re saying. What is the
15 relationship with you and with the CFB? Do you
16 communicate with them at all? Have you ever made
17 recommendations to them?
18 MR. MUSE: From my standpoint, no, we
19 haven’t. I have no contact with them.
20 ASSEMBLY MEMBER TITONE: None
21 whatsoever?
22 MR. MUSE: Yeah.
23 ASSEMBLY MEMBER TITONE: Okay. Alright.
24 ASSEMBLY MEMBER LENTOL: Any questions?
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2 Well, the only question I have is based upon what
3 Mr. Titone asked. Is it necessary for us to have
4 a different system in place in order to have an
5 inspection of laboratories as opposed to as he’s
6 suggesting -- my words, not his -- having the
7 chicken police the fox -- police the hen house?
8 Is there a better system of how this could be
9 done?
10 MR. MUSE: I would say if you had the
11 lab directors themselves auditing themselves and
12 submitting paperwork, that’s a better example of
13 the fox watching the hen house, right. But I
14 think by understanding accreditation in the
15 United States with the other industries, the
16 reliance upon the aerospace which has NIST and
17 the panels that have gone through have been
18 touted as the most stringent and effective
19 quality structure over every industry. I was at
20 NIST when the DOE, the DOJ, the DEA, everybody
21 just stood up and kind of bowed and applauded the
22 aerospace industry for their quality
23 infrastructure.
24 So if were in the forensics industry, I
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2 would be thinking: Well, what are they doing? And
3 they run this entire system like this and that’s
4 why planes don’t fall out of the sky. But if you
5 were to ask me this question, I say: Okay, I
6 would look at how these other industries have
7 structured this; where you utilize the laboratory
8 accreditation system. You’ve got the accrediting
9 bodies in place. It’s nearly impossible to
10 mobilize your own accrediting infrastructure with
11 the software and the people and the interface and
12 those things. That’s why FDA and the food safety
13 legislature is having to rely upon the system as
14 well.
15 ASSEMBLY MEMBER LENTOL: Well, let me
16 ask the question a different way. Would it be
17 better if we had the State pay, through the
18 forensic labs, CFS for the accreditation of the
19 labs?
20 MR. MUSE: I don’t think so. I don’t
21 think it would make any difference who pays the
22 bill. We’re going to do our job the same way
23 regardless. But I would just say if you wanted to
24 improve that, take the existing systems like
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2 aerospace and food and as some others have done
3 and layer and build upon them and make them
4 mandatory.
5 If you want to see who the technicians
6 were, if you want to see the full report, don’t
7 rely on a judge; I’ve heard a lot of interesting
8 points in there, some judge this way, that way;
9 Marvin and his guys had to lobby the judge to get
10 it. Make it all mandatory. Make that stuff
11 appear. And you don’t have to rely upon
12 accrediting bodies to do that. Furthermore, you
13 can layer requirements onto what needs to be
14 audited. We can take what we have now. We can
15 make that additional requirements onto our
16 checklist and we can cooperate and communicate
17 that. And that’s how we’ve done that in a lot of
18 other industries.
19 ASSEMBLY MEMBER TITONE: Thank you so
20 much.
21 ASSEMBLY MEMBER LENTOL: Thank you.
22 MR. MUSE: Yeah, no problem.
23 ASSEMBLY MEMBER LENTOL: Next panel is
24 Benjamin Ostrer, Attorney, Ostrer and Associates;
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2 and Richard Torres, Attorney for The Legal Aid
3 Society.
4 MR. RICHARD TORRES, ATTORNEY, THE LEGAL
5 AID SOCIETY: Good afternoon.
6 ASSEMBLY MEMBER LENTOL: Good afternoon.
7 MR. TORRES: My name is Richard Torres.
8 I’m an attorney with The Legal Aid Society here
9 in New York City. I’m a member of our DNA unit,
10 where we focus on defending against DNA evidence
11 and other forensic evidence. A lot of my written
12 comments mirror what Professor Murphy, Barry
13 Scheck, Ms. Chu and Mr. Schechter had said
14 earlier. So I’m going to try to not repeat them
15 just for economy of time.
16 Our concern is in two areas. One, the
17 Commission of Forensic Science is overstepping
18 its role into areas of the Legislature. As you’re
19 aware, they have a hearing this Friday for the
20 purpose of, quote: Looking at whether New York
21 State regulations should be amended to allow
22 familial searching and if so, under what
23 conditions? That is a question of privacy. It’s a
24 question for the Legislature. And familial
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2 searching by definition targets people who were
3 never convicted of a crime. It targets people who
4 are not in the DNA database.
5 The current DNA database is
6 overrepresented with people of color. It’s
7 disproportionately African American, Latino and
8 the poor. Those communities will inevitably be
9 the primary target of familial searching. When
10 false positives inevitably occur, those
11 communities will be the ones that suffer. There’s
12 a reason why the district attorney from Denver, I
13 believe Ms. Murphy said earlier, said that he
14 will never crime victims’ profiles for these
15 searches. It is a privacy invasion.
16 This is a question for the Legislature.
17 We do not believe that the Commission should be
18 entertaining this question. If you look at this
19 broader policy, there’s going to be questions as
20 how whatever regulation comes to be will regulate
21 the police, district attorneys, the judiciary?
22 Should a district attorney be able to say a
23 relative of Richard Torres is a suspect and put
24 that on the news? The Commission on Forensic
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2 Science has no power to regulate the judiciary,
3 no power to regulate law enforcement. They should
4 be taking this question. They’re overstepping
5 their bounds.
6 This is not the first time that this has
7 happened. You heard about the Medical Examiner’s
8 independent, unauthorized DNA databank. The State
9 DNA databank has regulations, which protect
10 privacy. There’s a mechanism for exonerees to
11 have their DNA removed from that databank. The
12 Medical Examiner’s Office, their databank is
13 unregulated. There is no protection for privacy
14 in that databank. There is no mechanism for an
15 exoneree to have DNA profile removed from that
16 databank. That is a huge concern. This is a
17 privacy question that the Commission on Forensic
18 Science took on. They should be taking on these
19 issues.
20 Should legislation come out? New York
21 needs clear, unambiguous legislation to prevent
22 the Commission on Forensic Science from
23 regulating privacy policy. They should be limited
24 to regulating labs, not addressing questions of
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2 privacy.
3 My second main area is the history of
4 ASCLD/LAB. I’m not going to go too deeply into
5 it. Again, I don’t want to repeat but people
6 spoke to you about it earlier. But I do want to
7 add that in September of 2015, ASCLD audited the
8 Austin, Texas crime lab. It found no problems. It
9 was a good audit. Months later, the Texas
10 Commission on Forensic Science closed that lab
11 for using scientifically invalid techniques,
12 inaccurate statistics. That lab is now
13 indefinitely closed. That is an illustration as
14 to how ASCLD did not ensure the integrity of that
15 lab.
16 ANAB is now taking over the role. I hope
17 ANAB does a much better job than ASCLD has in the
18 past around the country. But I believe that New
19 York State needs proactive measures to ensure
20 better laboratory oversight, as the system that
21 we know, the only one that we have a history with
22 has failed; repeatedly failed with Nassau, with
23 the New York City Medical Examiner; Austin,
24 Texas, all around the country. This is not new
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2 news.
3 ASSEMBLY MEMBER LENTOL: Do you have any
4 suggestions? Inspector General?
5 MR. TORRES: The Inspector General
6 unfortunately are the ones who have done
7 investigations in the labs. I would suggest an
8 independent body, some kind of an arm for the
9 Commission to do a real investigation, perhaps in
10 addition to ANAB. But there needs to be more
11 teeth to it. Right now what’s going on is not
12 working. And you bring up the Inspector General.
13 The Inspector General in the 2013 report
14 recommended that forensic labs should be
15 reporting disagreements. They said that the
16 Commission on Forensic Science should make a
17 regulation requiring that.
18 That hasn’t been done. That needs to be
19 done. If there is a disagreement within the lab
20 as to how to interpret, weigh, measure a piece of
21 evidence; that needs to be communicated to the
22 criminal justice system. It should not stay in
23 the lab. I think that that’s a strong check to
24 prevent questionable forensics from entering the
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2 court or being overvalued or misvalued.
3 Additionally, the PCAST report, which
4 people talked about earlier, one topic that comes
5 up repeatedly in the PCAST report is that there
6 is inadequate research for more forensic
7 disciplines. They say how validation studies are
8 not being published. I think that legislation
9 would be very helpful if labs were required to
10 publish their validation studies for their
11 techniques when they develop them and the
12 developmental validation studies and also their
13 internal validation studies for when they
14 implement a technique. That would allow the
15 scientific community to actually monitor what’s
16 going on inside of the lab. That would be another
17 protection to keep bad forensic science out of
18 the labs.
19 I’m actually going to say something nice
20 about a lab. The New York City Office of the
21 Chief Medical Examiner does a wonderful thing.
22 They meet with the defense lawyers. They will
23 give us their paper files. If we send them an E-
24 mail, it’ll take some time but they’ll give us a
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2 copy. And if there’s confidential material,
3 they’ll redact it. And they really need to be
4 commended for that policy.
5 It’s very generous. It serves justice.
6 It helps educate defense attorneys. I know a bit
7 about DNA evidence; I’m not an expert but some
8 lawyers know nothing. And the criminalist from
9 the OCME will sit there and spend hours
10 explaining everything that happened at that lab.
11 Or if I have a question about the nitty-gritty of
12 a case, they’ll go into it with me and explain
13 their opinions as to why they did a test a
14 certain way or what something means. Not all labs
15 in the State do this. I believe OCME’s openness
16 should be a model for all labs within the State.
17 I don’t believe that this should be limited to
18 forensic biology labs, which do DNA testing. I
19 think that this should apply to ballistics labs,
20 drug labs and DNA labs across the State. This
21 will help prevent bad forensic evidence from
22 entering courts.
23 And I’m going to go a little off of my
24 script here. There was questions about 240-20.
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2 One common fight I have in court is whether 240-
3 20 includes computer files. In a typical case,
4 I’ll have hired an expert in a DNA case and
5 they’ll say: We want to look at the data that the
6 Medical Examiner interpreted; so I can make my
7 independent interpretation of the testing data. I
8 need the computer files.
9 So we’ll request it as discovery. Most
10 district attorneys in the City will say no. We’ll
11 file a motion. Then the question becomes: Is a
12 computer file a written instrument? And there are
13 a lot of judges in the Bronx that say it is; many
14 judges in Queens that say it’s not. I think it is
15 in our current day, it borders on the level of
16 absurd to say that a computer file is not a
17 written instrument; that it somehow changes when
18 you hit the print button on a computer. I think
19 that the legislation, if 240 20 is going to be
20 changed, needs to have the words “computer files”
21 added to it, to be explicit that it just doesn’t
22 require the production of printed materials.
23 Thank you for this opportunity to speak
24 in front of you. And I would hope you would reach
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2 out to us, my office to assist you in any way we
3 could.
4 ASSEMBLY MEMBER TITONE: When you were
5 talking about visiting the labs and you said that
6 that’s very good, that pretty much goes to the
7 point that Marvin was making earlier about you
8 now feel comfortable; when you’re dealing with
9 that lab, that you know what methodology was
10 actually used to generate a report; is that what
11 I’m hearing here?
12 MR. TORRES: I feel much more
13 comfortable because it helps educate me about, as
14 a defense lawyer, about what goes on in that lab.
15 However, that isn’t the full picture because you
16 have the validation studies which aren’t always
17 published with new techniques, the more exotic
18 techniques. A lot of the criminalists in the lab
19 will operate a system but might not fully
20 understand what’s going on with it. They have a
21 DNA mixture interpretation program called: The
22 Forensic Statistical Tool. No one really knows
23 what goes on in that program. I believe the next
24 panel are going to talk a bit about black box
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2 software. So, I am much more comfortable knowing
3 about the case when I speak to the criminalist.
4 But there’s still gaps. I don’t know everything.
5 But again I bring --
6 ASSEMBLY MEMBER TITONE: You think by
7 having a broader discovery process with the 240
8 -- what was it, 21c?
9 MR. TORRES: Correct.
10 ASSEMBLY MEMBER TITONE: Where you’re
11 actually getting and reviewing the methodology or
12 maybe even the opportunity to speak to the
13 technicians or the lab themselves as to how they
14 drew a conclusion and drafted their reports. So
15 you would agree that there’s more work to be
16 done?
17 MR. TORRES: Absolutely. I think that
18 this is mandatory. When I speak to defenders from
19 other counties, they’re told that they don’t get
20 any access to the labs; that they are just not
21 allowed to speak with the people on the case. And
22 I think that puts them at a disadvantage. And I
23 think that what would otherwise be questionable
24 evidence in some instances, certainly not all
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2 instances, but those instances where bad evidence
3 gets in the court; perhaps they could have been
4 caught if there was just more openness. Maybe
5 mistakes would have even been caught. I think
6 it’s very important for there to be communication
7 with labs to both parties in the criminal justice
8 system.
9 ASSEMBLY MEMBER TITONE: Thank you.
10 MR. TORRES: Thank you.
11 ASSEMBLY MEMBER LENTOL: Mr. Ostrer?
12 MR. BENJAMIN OSTRER, ATTORNEY, OSTRER
13 AND ASSOCIATES, PC: Yes, thank you very much.
14 I’m a private criminal defense attorney. I
15 practice in the Hudson Valley and I greatly
16 appreciate the opportunity to address you here
17 this afternoon. I’d like to describe two
18 incidents that have taken place at the New York
19 State Police Lab, which illustrate why the
20 current scheme of self-reporting and policing and
21 the scheduled inspections are insufficient to
22 ensure quality performance.
23 In January of 20015, the Albany Times
24 Union published the report regarding misconduct
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2 in the New York State Police lab. There was
3 literally no disclosure following those initial
4 reports to the defense community concerning who,
5 what, when, where, how this misconduct had taken
6 place.
7 In fact, it wasn’t until April of 2016
8 that counsel for the New York State Police
9 transmitted documents to the district attorneys
10 throughout the State advising and titling it:
11 document disclosure pursuant to Brady and Giglio
12 obligations. That prompted at least in Orange
13 County a press release from the Orange County
14 District Attorney in which he said that they were
15 going to make a showing to the defense community
16 of everything that they could. Well, that showing
17 fell miserably short. The district attorney’s
18 statement was: If any witness’s credibility is
19 affected by the State Police investigation into
20 the Trulia certification testing, we recognize
21 that complete information about that issue must
22 be provided to defense attorneys.
23 Well, what occurred was: We were able to
24 determine from documents, not that were provided
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2 by the Orange County District Attorney but that
3 we received through another district attorney’s
4 office, that there had been 15 scientists among
5 31 who worked in the DNA area of the New York
6 State Police Lab who were being disciplined; five
7 others who had received letters of caution for
8 tolerating cheating.
9 Now the nuts and bolts of the cheating
10 is whether it was an open book exam on
11 certification on Trulia, which was a new
12 statistical tool. That was abandoned by the New
13 York State Police Lab after succeeding in a Frye
14 hearing to make it admissible in New York State.
15 Well, we received in a case Rosario material,
16 240-20 material contained in excess of 20 sets of
17 initials of scientists who had worked on a
18 particular case. Mathematically, we assumed that
19 at least five of those sets of initials or six
20 had to be people involved in the misconduct. We
21 requested translation of these initials as to who
22 the scientists were. We were told instead that
23 none of the implicated scientists worked on a
24 particular case.
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2 When we asked at the time we received
3 that information, recertification of the work
4 that had been completed was actually ongoing
5 because the State Police Lab knew that at least
6 two of the supervisors who worked on the case
7 were among the 15 who had been disciplined. When
8 we were told ultimately that the two were
9 disciplined, we asked if we could have their
10 initials. And it gives the illusion, these
11 initials that appear on the documents, that
12 somebody’s actually handled the document and
13 scribbled their initials on the documentation. As
14 an appendix to what I’ve submitted to you here
15 today, I have what I believe is demonstrable
16 proof that these initials are affixed
17 mechanically by somebody sitting at a computer
18 console and pasting them onto the particular
19 document.
20 At this point in time, despite public
21 statements that they are going to provide all the
22 information that a defense attorney might need,
23 we were successful -- something that might be
24 pleasing to my friend Marvin, in having a judge
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2 direct that the State Police Lab and the district
3 attorney decipher the initials for us.
4 The district attorney’s office at the
5 request of the New York State Police Lab took an
6 Article 78 proceeding for a writ of prohibition
7 to the Appellate Division, Second Department, who
8 rules that much of what Mr. Torres was saying,
9 that because they’re not written files, that
10 these initials reside on the computer database,
11 that it exceeded the authority of the Court to
12 direct disclosure and that a Brady disclosure
13 would be premature and a 240-20 disclosure did
14 not lie. And that decision I’ve also appended to
15 the paperwork.
16 Now, this has to be viewed in the
17 context of the fact that the same management
18 staff of the New York State Police Lab that were
19 in place and being certified by ASCLD/LAB when
20 the Veeder situation arose. And District Attorney
21 McNamara told you about his frightening
22 experience that an assassination case may have
23 been undermined by Mr. Veeder’s misconduct. Well,
24 I was involved with now federal judge, Vernon
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2 Broderick, in upsetting a conviction in Saratoga
3 County involving a woman who had been involved in
4 a very heinous murder. And her co-defendant was
5 acquitted because of the irregularities in
6 Veeder’s work. And this is before there was
7 knowledge that Veeder had been dry-labbing and
8 doing what has been described and is well-
9 documented in an Inspector General report.
10 So it cost the Saratoga County a
11 conviction. This woman pleaded guilty, the person
12 who we had filed a 440 motion on behalf of. We
13 were ultimately able to vacate her conviction. It
14 had a very sorry ending. But during the hearings
15 that were ordered in Saratoga County, it was
16 determined that the self-policing by the New York
17 State Police Lab of the Veeder situation was also
18 miserably deficient. So we now have this
19 misconduct involving the Trulia scandal between
20 2014 and to date being policed by the New York
21 State Police Lab, not by the Forensic Commission.
22 They’re doing their investigation. They’re
23 disclosing and doing a very good job of keeping a
24 lid on it.
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2 The same choreography was followed
3 during the Veeder situation. The initial
4 investigation was going to be conducted by the
5 New York State Police. Tape recordings of Mr.
6 Veeder were lost. Nobody was disciplined. Veeder
7 had been creating evidence. In the case I was
8 involved in, he took a glove and put it on duct
9 tape and then said the fibers exactly matched.
10 Well, he took the wrong glove and put it on the
11 wrong duct tape, resulting in the acquittal of
12 the co-defendant. His peer review was done by
13 someone who hadn’t done but three fiber cases
14 more than ten years earlier. There wasn’t a fox
15 watching the hen house. There was nobody watching
16 the hen house.
17 But Mr. Veeder had been at the lab since
18 1998. His misconduct wasn’t discovered until
19 2008. The lab and his section of the lab had been
20 certified by ASCLD at least twice before his
21 misconduct was discovered. In my written
22 submission, his reports were countersigned by
23 senior lab officials. No discipline for those
24 senior lab officials. The placement of initials
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2 mechanically upon discovery materials to give the
3 illusion that somebody is handling it are things
4 that the Forensic Commission should be looking
5 into. And sadly, these things are not happening.
6 My suggestion to you is that defense
7 advocates through discovery would probably be as
8 good as an insurance policy against malfeasance
9 in a lab as any I can think of. A dedicated
10 defense attorney will explore if he has the
11 materials to explore. I’ve been foreclosed in a
12 case from even determined who handled my client’s
13 paperwork or a client’s paperwork. I’m sure
14 others are frustrated in the same way. We do not
15 enjoy the same hospitality at the New York State
16 Police Lab as Legal Aid enjoys with the Office of
17 the Medical Examiner here. We’re treated like
18 we’re radioactive if we want to go up to the New
19 York State Police Lab and take a look around.
20 And the New York State Police Lab’s
21 answer to the problem at the forensic section,
22 the hair and fiber section, was not to fix it but
23 it was to close the section down, to eliminate
24 the conversation: We don’t have to talk about
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2 that anymore because we no longer do hair and
3 fiber examinations at the New York State Police
4 Lab. Don’t fix it. Don’t correct it. Don’t hire
5 the best scientists you can find to make it
6 right. Just we won’t do it anymore.
7 At the last Forensic Commission meeting,
8 the New York State Police Lab advised that
9 because of ventilation issues, they’re not doing
10 muzzle to target determinations. In my
11 experience, a lot of muzzle to target
12 determinations don’t require ventilation problems
13 because you do them at the range outdoors. But
14 they announced without comment that: By the way,
15 we’re not doing muzzle to target determinations
16 at this time because of a ventilation problem and
17 we’re worried about our employees.
18 So I believe if there’s not going to be
19 oversight, then discovery and disclosure needs to
20 be formalized, so that a vibrant defense bar can
21 test this. We do it in all areas of personal
22 injury, product liability litigation as a way of
23 policing industry. I think a good way to police
24 our forensics industry and our science fields is
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2 by arming defense attorneys with what they need
3 to to investigate. Thank you very much.
4 ASSEMBLY MEMBER LENTOL: Thank you.
5 Excellent suggestions. Thank you very much. We
6 appreciate you both coming.
7 MR. TORRES: Thank you as well.
8 MR. OSTRER: Thank you.
9 ASSEMBLY MEMBER LENTOL: Our next panel
10 is Rebecca Wexler, Resident of The Data and
11 Society Research Institute; and Sumana
12 Harihareswara, Founder and Principal of the
13 Changeset Consulting firm. Thank you for coming.
14 MS. SUMANA HARIHARESWARA, FOUNDER AND
15 PRINCIPAL, CHANGESET CONSULTING: Thank you. Ms.
16 Wexler and I decided that it might make sense for
17 me to go first, if that’s alright.
18 ASSEMBLY MEMBER LENTOL: Please do.
19 MS. HARIHARESWARA: Okay. Good
20 afternoon. My name is Sumana Harihareswara and I
21 will accept all variations on that name. So
22 please don’t worry.
23 ASSEMBLY MEMBER LENTOL: I tried.
24 MS. HARIHARESWARA: I thought you did
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2 much better than 90 percent of telemarketers and
3 substitute teachers, Chair Lentol.
4 ASSEMBLY MEMBER TITONE: Well, I haven’t
5 started yet.
6 MS. HARIHARESWARA: I’ll keep my eye on
7 you, Titone -- Mr. Titone.
8 ASSEMBLY MEMBER TITONE: Yeah.
9 MS. HARIHARESWARA: Thank you for
10 inviting my testimony on the government oversight
11 of forensic science in the State of New York. I
12 am the founder and principal of Changeset
13 Consulting. I am a programmer, a software
14 developer and a manager who’s worked in the
15 software industry for over a decade. And as the
16 founder of Changeset Consulting, I work on
17 multiple public sector and private sector
18 software projects.
19 And that is the reason why I’m speaking
20 with you today. I’m here to discuss steps New
21 York should take to improve the reliability and
22 effectiveness of our practices in forensic
23 science. I’m greatly to the Assembly Standing
24 Committees on Codes, Judiciary, and Oversight,
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2 Analysis and Investigation for your time.
3 So, today specifically I’ll be
4 discussing the software we use in our forensic
5 science labs. First I’ll talk a little about two
6 different types of software: proprietary and open
7 source and why the distinction is important. And
8 then I’ll go into reasons why the open source
9 approach would help with auditability,
10 transparency, cost and efficiency in our labs.
11 And then I’ll make some requests of you regarding
12 procurement and validation. We’ve talked some
13 about validation earlier today. And so some of
14 these suggestions will be in concert with the
15 ones you’ve already heard and some of them will
16 be new. And yes, I do mention the PCAST report
17 since everyone seems to be required to do that
18 today.
19 So, we use both proprietary and open
20 source software in all parts of industry and
21 government. And to explain the difference and
22 where open source is superior, I need to explain
23 what source code is. And please bear with me if
24 this is a bit redundant and you’ve had this
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2 explained to you before.
3 When programmers like me write software,
4 what we write is called source code. And you can
5 think of it as like a recipe for the computer to
6 carry out, like a recipe for baking a loaf of
7 bread. And then the application or the system
8 that you use, like Microsoft Windows or Google’s
9 Gmail is like the finished loaf of bread. And so
10 our forensic technicians, administrators, police
11 officers, everybody, right, they use software in
12 the pursuit of their work every day.
13 Now proprietary software is also known
14 as closed source software because we the users,
15 we can use the end result but the vendor who
16 makes the software won’t let us see the recipe.
17 So we don’t know what they’re putting into the
18 bread. We have to simply trust our vendors to
19 give us quality software, even though they will
20 always turn around a month or several years later
21 and tell us to upgrade because the new version
22 fixed a slew of defects.
23 In our forensic labs, for example, in
24 New York State we pay Porter Lee Corporation,
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2 just as an example, to use for instance their
3 closed source software, Crime Fighter Beast Bar
4 Coded Evidence Analysis Statistics and Tracking
5 and LIMS, Laboratory Information Management
6 System. For service between 2015 and 2019, we’re
7 paying them $749,333.
8 And instruments in our forensics labs
9 are also affected. For instance, we’ve paid
10 Applied Biosystems for equipment that comes with
11 closed source software. I have much more
12 information here in the footnotes. The Division
13 of State Police paid over $9 million to Applied
14 Biosystems between 2012 and early 2017.
15 Instruments are affected and because we’ve paid
16 Applied Biosystems for equipment that comes with
17 closed source software; because it’s proprietary
18 we and other bodies can’t inspect the source code
19 to see what mistakes it might be making. And we
20 can’t improve it ourselves either.
21 Open source software on the other hand
22 is where we get to see the recipe. Open source
23 software is software that might be inspected,
24 modified and redistributed freely by anyone. And
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2 when the software is open source, there’s a
3 specific vendor called a maintainer who takes
4 charge of integrating suggested improvements for
5 everyone’s benefit. If you’ve used an Android
6 phone or browsed the web using Chrome or Firefox
7 or if your website users Wordpress or Drupal, for
8 example, as the New York State Senate and the
9 White House do, you’ve used open source software.
10 Your offices as well as other government
11 agencies, including national security and
12 intelligence agencies frequently choose to use
13 open source software because it’s more
14 trustworthy; because we can fix defects and share
15 those fixes with other users and because we don’t
16 have to pay license fees. A very popular example
17 is Linux open source software which we often use
18 to run website servers. And one more distinction
19 that I’ll make: Using open source software does
20 not mean we have to open any data. Whether we’re
21 using proprietary or open source software, I am
22 not proposing any changes today to our data
23 protection rules.
24 I just want to pause since that was a
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2 little bit technical and ask if people are
3 basically following me so far?
4 ASSEMBLY MEMBER TITONE: Huh?
5 MS. HARIHARESWARA: More seriously, is
6 that okay?
7 ASSEMBLY MEMBER TITONE: Yes.
8 MS. HARIHARESWARA: Okay, great, thank
9 you. So, now let’s come to auditability and
10 transparency. We need auditability and
11 transparency in the science our labs do and in
12 their administration, such as chain of custody
13 tracking. So let me speak first about the
14 science. The 2016 PCAST report, and you can check
15 that off on your bingo card now, focused on, one,
16 the need for clarity about the scientific
17 standards for the validity and reliability of
18 forensic methods; and two, the need to evaluate
19 specific forensic methods to determine whether
20 they have been scientifically established to be
21 valid and reliable.
22 Software is prone not just to big
23 defects that crash the system, so we can easily
24 find them; but to intermittent defects that give
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2 us wrong output and that are harder to find.
3 The Association for Computing
4 Machinery’s U.S. Public Policy Council in January
5 of this year said in its statement on algorithmic
6 transparency and accountability: An algorithm is
7 a self-contained step-by-step set of operations
8 that computers and other smart devices carry out
9 to perform calculation, data processing and
10 automated reasoning tasks. Increasingly,
11 algorithms implement institutional decision
12 making based on analytics which involves the
13 discovery, interpretation and communication of
14 meaningful patterns and data. I’ll just skip this
15 next sentence. But there is also growing evidence
16 that some algorithms and analytics can be opaque,
17 making it impossible to determine when their
18 outputs may be biased or erroneous. End of quote.
19 Being able to see the source code to see
20 the recipe is crucial to auditing, accountability
21 and transparency; to understanding the decisions
22 our forensic software is making and
23 systematically checking whether those decisions
24 are appropriate. On the administrative side, we
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2 lack proper auditability in our forensic science
3 labs partly because of deficiencies in our
4 software.
5 For instance, I spoke with a lab worker
6 who said that LIMS, the Laboratory Inventory
7 Management System structures its permissions for
8 who can do data entry in a counterproductive way.
9 In order to give workers the ability to update
10 records of evidence, LIMS administrators also
11 need to give those workers the ability to
12 completely delete a record of evidence. And when
13 we use proprietary software, it is harder for us
14 to get different pieces of equipment to talk to
15 each other; so workers have to manually retype
16 figures or findings from an instrument into a
17 computer, introducing the possibility of human
18 error and reducing auditability.
19 Now I’ll talk about getting value for
20 our taxpayer dollar and maybe this is the bit
21 where it’ll help you talk to the Senate.
22 ASSEMBLY MEMBER LENTOL: How did you
23 know I will do that?
24 MS. HARIHARESWARA: I was trying to pay
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2 attention during the earlier bits. With
3 proprietary software we don’t know exactly what
4 we’re paying for. I’ll use the example of
5 Beast/LIMS. I spoke with a lab worker who said:
6 It’s often unclear whether a new software update
7 for Beast/LIMS is available or has gone out to a
8 given lab. And we don’t know whether those
9 updates have fixed known issues, known defects or
10 problems in the software.
11 In 2013, New York’s Inspector General
12 uncovered a problem with the interaction of
13 police and a forensics lab that stemmed from a
14 lack of update notifications generated by Beast
15 as of 2009. Neither this lab worker nor I were
16 able to confirm whether Beast had addressed this
17 issue. Applied Biosystems and Porter Lee
18 Corporation are both vendors with a substantive
19 lock on the market that are, according to the lab
20 workers I’ve spoken with, unresponsive to defect
21 reports and requests for support or improvements
22 even when we are paying for support contracts on
23 top of expensive licenses.
24 For example, New York State labs have
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2 been asking for some time for a module that lets
3 them link their DNA instruments with Beast/LIMS.
4 But according to the lab worker I spoke with,
5 Porter Lee has not provided it. I am mentioning
6 these vendors as examples not to just single them
7 out but because this is a common dynamic with
8 vendors of proprietary software.
9 If we were to contract with a vendor or
10 set of vendors to build or improve open source
11 software for our labs, we would have less vendor
12 lock in and it would be easier for our IT staffs
13 to track down defects and integrate different
14 systems together. Once companies and agencies
15 other than the main vendor have the ability to
16 suggest improvements and write tools, you can
17 increase the quality of the forensics labs tools
18 faster, which can increase labs throughput and
19 reduce backlogs. And given how much money we
20 spend on this software for licenses and support,
21 if we band together with other State governments
22 in consortia, an open source benefit would
23 benefit us all. An open source alternative would
24 benefit us all.
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2 Now procurement. So the New York State
3 Office of --
4 ASSEMBLY MEMBER LENTOL: Do you know
5 what the feds do -- the FBI?
6 MS. HARIHARESWARA: In terms of what
7 software they use?
8 ASSEMBLY MEMBER LENTOL: In terms of the
9 whole conversation that we’re having regarding
10 laboratories that they use, the software that
11 they use and how they police it to make sure that
12 the results of the FBI is correct? That’s what I
13 mean.
14 MS. HARIHARESWARA: Oh, I see. Regarding
15 that aspect of like the federal software; no, I’m
16 sorry, I can’t speak to that. Can you? Okay. It
17 could very well be that one of your other
18 witnesses would be able to pipe up with
19 information about that. I’m sorry that I don’t
20 know.
21 ASSEMBLY MEMBER LENTOL: I’m sorry that
22 I just thought about it now.
23 MS. HARIHARESWARA: That’s completely
24 fine. Alright, shall I move onto procurement or
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2 are there any other questions people want to ask
3 right now? So, the New York State Office of
4 Information Technology already directs all
5 agencies to consider open source software when
6 purchasing. I would ask you to further require
7 that in the procurement, specifically of software
8 for forensic laboratories, open source software
9 be not just considered but preferred; not
10 necessarily required but preferred.
11 And I’d also ask that we require vendors
12 be able to import and export data in standardized
13 open formats and document and publish the formats
14 they use to allow labs to more easily chain
15 together instruments and other software. And when
16 it comes to validation, in order to find our
17 software’s intermittent defects, especially when
18 a software is performing operations that humans
19 cannot double-check fast enough for police needs,
20 like probabilistic, complex DNA genome testing or
21 massive facial recognition operations on hundreds
22 of thousands of faces; isolated validation tests
23 and the attestation of the vendor is not good
24 enough.
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2 We need a mechanism of independent
3 verification and validation. We should work with
4 our labs, the Commission on Forensic Science and
5 other forensics bodies to move towards IEEE,
6 Institute of Electrical and Electronics Engineers
7 standards for verification and validation
8 processes, per the recommendations and the
9 International Society for Forensic Genetics from
10 September, which I have a link to in my notes.
11 And we should facilitate uniform implementation
12 across the State. Thank you. And I welcome your
13 questions but also we could go directly to Ms.
14 Wexler first.
15 ASSEMBLY MEMBER LENTOL: Please, Ms.
16 Wexler.
17 MS. REBECCA WEXLER, RESIDENT, THE DATA
18 AND SOCIETY RESEARCH INSTITUTE: Thank you. So,
19 I’m Rebecca Wexler and I’m a Resident with The
20 Data and Society Research Institute. Sumana has
21 explained some of the merits from a technical
22 perspective of why access to source code matters.
23 I’m going to talk about the fact that there is
24 absolutely no legal basis for denying that access
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2 to criminal defendants.
3 Our Constitution gives criminal
4 defendants certain rights: the right to confront
5 the evidence against them, the right to
6 compulsory process to produce favorable evidence,
7 a right to due process to present a defense --
8 ASSEMBLY MEMBER LENTOL: Now I’m going
9 to tell you to go talk to the Senate.
10 MS. WEXLER: -- and to do all of that in
11 a public trial. Software programs are
12 increasingly automating forensic science methods.
13 And the PCAST report recommends automation as a
14 solution to help increase efficiency and accuracy
15 and to help reduce cognitive bias and error. But
16 with software and automation comes ownership --
17 ownership claims. Trade secrets are the primary
18 intellectual property protection for source code.
19 Bringing those intellectual property claims into
20 the criminal justice system raise undertheorized
21 tensions between life, liberty and property
22 interests.
23 For instance, algorithms that generate
24 probabilistic matches for latent fingerprint
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2 analysis are proprietary. The algorithms used to
3 search ballistic information databases --
4 ASSEMBLY MEMBER LENTOL: Just remember
5 most of us here grew up before fax machines. I’m
6 only kidding.
7 MS. WEXLER: It’s actually a problem
8 that’s happening across the country and it’s
9 unprecedented. So the fact that this is
10 relatively an issue of first impression in New
11 York means that this is the time for the
12 Legislature to act. The developers of face
13 recognition technology have refused to disclose
14 even user manuals for their software programs.
15 People need those user manuals to know whether
16 the software has been adequately validated across
17 racial groups. And nonprofit organizations have
18 refused to disclose source code in their
19 technology.
20 So the means of production is not the
21 determining factor here. When developers claim
22 that the details about how forensic technologies
23 work are trade secrets that can’t be disclosed in
24 criminal cases, they imply a right to own the
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2 very means by which the government determines
3 guilt or innocence.
4 The Legislature should clarify that no
5 such right exists by prohibiting public agencies,
6 government agencies from claiming trade secrets
7 in forensic science methods, which has happened
8 here in New York State and right in New York
9 City. And by limiting courts to restrict their
10 safeguards for trade secrets evidence at issue in
11 criminal cases to protective orders and nothing
12 more. So, I’m asking for a smaller step than open
13 sourcing the whole system, which I think should
14 happen but at the very least give it to the
15 defendants.
16 ASSEMBLY MEMBER TITONE: So when an
17 agency, a public agency acquires a program --
18 facial recognition for example, it should be
19 something that they can also acquire the
20 ingredients and otherwise no deal, correct? Is
21 this your suggestion?
22 MS. WEXLER: I think it would be great
23 if the agency could purchase intellectual
24 property rights. Then they would be able to
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2 disclose it in public. But backing up, our
3 current baseline scenario is even worse than
4 that. In New York City, the Office of the Chief
5 Medical Examiner, which is a department of the
6 City, has produced a forensic statistical tool
7 used for low copy number DNA. That’s been brought
8 up here before today. They’ve made that tool in-
9 house using taxpayer money. And they have for
10 years successfully refused to disclose it to
11 criminal defendants in criminal cases.
12 Their claims and I’ll quote from two
13 cases, they said that they withheld the code
14 because of the City’s, quote: ownership interest
15 in the program. And they argued in another case
16 that they withheld the code -- these quotes are
17 here for you too; but that the code was a
18 copyrighted and proprietary asset belonging
19 exclusively to the City of New York. And they
20 claimed this successfully.
21 Now a federal judge, Valerie Caproni,
22 the former general counsel for the FBI, a woman
23 who knows when it matters to keep law enforcement
24 methods secret, did not credit those claims and
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2 rightfully ordered disclosure under a protective
3 order to a federal defendant. Even after that has
4 happened, New York State courts continue to deny
5 defendants access to the source code.
6 ASSEMBLY MEMBER LENTOL: Federal
7 government has discovery. That’s the difference I
8 think.
9 MS. WEXLER: Yeah, that may be one of
10 the explanations. And so if you’re going to do
11 the 240-20 reform, then perhaps they should also
12 include an argument that trade secrets should not
13 be a barrier to disclosure here. Let me explain
14 that in terms of the City agency, the public
15 agency space anyway. There is zero legal basis
16 for this nondisclosure. Article 45, CPL Article
17 45 established our statutory evidentiary
18 privileges. Trade secrets are not one of them.
19 New York relies on a common law, substantive law
20 for trade secrets.
21 And the court of appeals has recognized
22 that in order to be eligible for trade secrets
23 protection, in order to have a valid trade
24 secret, the definition is that the information
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2 has to be one that’s used in a business and that
3 gives you an opportunity obtain an advantage over
4 competitors who do not know or use it.
5 Government agencies, forensic
6 laboratories that are public, when they are
7 public, have no legitimate business use for
8 secret forensic science methods and no
9 competitors that they should be seeking to gain
10 an advantage over. Pretending that criminal
11 defense attorneys are business competitors
12 misconstrues the adversarial process and
13 contaminates the criminal justice system. Okay.
14 Private developers and I’ll get to this quickly
15 -- you know, you have all of it here; but even
16 private developers have not legitimate reason to
17 entirely withhold trade secrets, including source
18 code in a criminal case because protective orders
19 are an adequate remedy.
20 In civil suits, there are more
21 structural checks on over-claiming and abuse of
22 claims to invalid trade secrets and on wrongful
23 exclusions of relevant evidence because civil
24 cases have more adequately matched resources
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2 generally between the parties. Because whether
3 the trade secret that’s claimed is actually valid
4 is often a focal point of intense litigation. And
5 because discovery is broader in civil cases,
6 which gives parties a more thorough opportunity
7 to develop a theory of the case and establish for
8 the judge why it’s relevant to disclosure should
9 be compelled. So granting a trade secrets
10 privilege in criminal cases will only lead to
11 over-claiming, to abuse and to the wrongful
12 exclusion of evidence.
13 ASSEMBLY MEMBER LENTOL: And by the way,
14 I guess you know that civil discovery is allowed
15 in New York State because it’s only property or
16 money that’s involved. But when somebody’s
17 liberty is involved, you can’t have discovery.
18 MS. WEXLER: Yeah. So, I mean, I think
19 that’s exactly the issue that’s at stake in
20 recognizing a trade secrets privilege here. It’s
21 a flat out property interest versus a liberty and
22 life interest. So, I hope that the Legislature
23 will make sure that that doesn’t happen moving
24 forward.
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2 ASSEMBLY MEMBER TITONE: Us too.
3 ASSEMBLY MEMBER WEINSTEIN: Just a quick
4 question.
5 MS. WEXLER: Yes.
6 ASSEMBLY MEMBER WEINSTEIN: The two
7 cases regarding the City of New York that upheld
8 the trade secrets argument; do you know if either
9 of those -- I see they’re both 2016 cases, have
10 any of those been appealed?
11 MS. WEXLER: I believe not. But I also
12 want to clarify that those cases did not make an
13 explicit claim to an evidentiary privilege. No
14 such privilege exists in our statutes. The common
15 law courts in New York have established some
16 protections and a standard test for invoking a
17 trade secrets safeguard in civil cases. And that
18 test was not applied here. The rationale that
19 OCME has brought has been that the code review is
20 not relevant. And so there’s been somewhat of a
21 confusion about all of these issues are jumbled
22 together in the cases. It’s very informal.
23 So that’s why I wanted to get out right
24 up front that there are reasons why the source
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2 code review is relevant and needed. But the
3 quotes are from the kind of surrounding
4 reasoning. And they show not an explicit claim to
5 privilege but that the argument that’s convincing
6 judges not to order disclosure is I think a fear
7 of interfering with business interests.
8 MS. HARIHARESWARA: And talking about
9 the need for source code review here, I’m going
10 to speak here as a programmer and a manager.
11 Every piece of software that’s ever been written
12 that’s longer than just a couple of lines long,
13 that actually does anything substantive has bugs.
14 It has defects. And if you want to write code
15 that doesn’t have defects or if you want to at
16 least have an understanding of what the defects
17 are so that you can manage them, so that you can
18 oversite them; the same way that we have a system
19 of democracy, right, of course there’s going to
20 be problems but we have mechanisms of oversight.
21 If in a system that’s going to have
22 defects, if we don’t have any oversight, if we
23 have no transparency into what those instructions
24 are doing and to what the recipe is, not only are
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2 we guaranteed to have bugs; we’re guaranteed to
3 have bugs that are harder to track down. And
4 given what we’ve heard earlier about the fact
5 that it’s very likely that in some of these cases
6 there will be discriminatory impacts.
7 I think it’s even more important; this
8 isn’t just going to be random. I’ll give you an
9 example. HP, the computer manufacturer, they made
10 a web camera, a camera built into a computer or a
11 laptop that was supposed to automatically detect
12 when there was a face. It didn’t see black
13 people’s faces because they hadn’t been tested on
14 people with darker skin tones. Now at least that
15 was somewhat easy to detect once it actually got
16 out into the marketplace and HP had to absorb
17 some laughter. But nobody’s life was at stake,
18 right?
19 When you’re doing forensic work, of
20 course in a state the size of New York State,
21 edge cases, things that’ll only happen under this
22 combination of combination of conditions are
23 going to happen every Tuesday, aren’t they? And
24 the way that the new generation of probabilistic
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2 DNA genotyping and other more complex bits of
3 software work, it’s not just: Okay, now much of
4 fluid X is in sample Y? It’s running a zillion
5 different simulations based on different ideas of
6 how the world could be. Maybe you’ve heard like
7 the butterfly effect? If one little thing is off,
8 you know, we might get a hurricane.
9 ASSEMBLY MEMBER TITONE: Sure. But let
10 me ask you this.
11 MS. HARIHARESWARA: Sure.
12 ASSEMBLY MEMBER TITONE: Have there been
13 any cases where a person who is actually innocent
14 had their liberty taken away because there was a
15 bug in the program that created evidence that led
16 to a conviction?
17 MS. HARIHARESWARA: Isn’t this where the
18 breathalyzer cases come in?
19 MS. WEXLER: Well, there’s been a lot of
20 bugs in software throughout the criminal justice
21 system. And so an example has been there have
22 been errors in calculating the sentence length in
23 California. They adopted a software program that
24 had bugs and ended up releasing people early. So,
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2 it’s just an example that: Yes, there have been
3 some decisions that have affected ultimate
4 liberty outcomes.
5 MS. HARIHARESWARA: Yeah, I’ll give you
6 two responses really. I’d like more time to
7 check.
8 ASSEMBLY MEMBER TITONE: How big is the
9 problem I want to know? Basically, how big is
10 this --
11 MS. HARIHARESWARA: Right. One is I
12 would want more time to check. I’m sorry to say
13 that I only found out yesterday that I’d be
14 testifying instead of someone who was set to
15 testify. But the other thing is we might not
16 know. It might be really hard to know. Barry
17 might be coming to you next year with actually a
18 huge slew of them, right?
19 MS. WEXLER: Sure. It’s hard to get
20 through that whole exoneration process. And
21 another example is that right now there’s 240
22 cases around the country where the FBI has been
23 challenged to disclose source code in a
24 cybercrime investigative software that it used.
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2 Some of those challenges are arguing that the way
3 that the software actually operates violates the
4 Fourth Amendment because it exceeded the
5 jurisdiction of the warrant or potentially
6 reaches parts of a computer that were not made
7 public. And determining that answer depends on
8 being able to see and not to take the word for
9 the developer but how the software works; but
10 actually see what the code does, how it runs.
11 ASSEMBLY MEMBER TITONE: This could
12 potentially become extraordinarily important when
13 we talk about hacking and things of that nature.
14 And maybe not --
15 MS. HARIHARESWARA: You brought up
16 security. I wasn’t going to but --
17 MS. WEXLER: Yeah, I mean, digital --
18 ASSEMBLY MEMBER TITONE: She did it
19 first.
20 MS. WEXLER: I mean, a Fourth Amendment
21 challenge is a criminal defense challenge. And so
22 we’re not only talking innocence here; we’re
23 talking about maintaining the ability for defense
24 to make the arguments that they’re permitted to
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2 make.
3 ASSEMBLY MEMBER TITONE: Sure.
4 MS. HARIHARESWARA: There’s also sort of
5 this issue -- so the reason I brought up the
6 breathalyzer stuff, right, is because my
7 understanding is that a number of cases have been
8 either greatly stalled or even thrown out due to
9 challenges where the defense said: I would like
10 to actually be able to see the source code to see
11 if the breathalyzer was working correctly when it
12 analyzed the level of alcohol in my client’s
13 breath. And basically because of the refusal to
14 provide the source code, those cases were thrown
15 out; is that correct?
16 MS. WEXLER: Around the country,
17 probably about ten years ago there were some
18 litigation around breathalyzer source code and it
19 was an early instance of this issue. There’s now
20 been a wave of litigation around the country in
21 probabilistic genotyping software programs; so
22 that’s one other measure of scale. But I would
23 suggest that this is going to be happening in
24 almost every forensic method that’s matching-
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2 based because we’re going to probabilistic
3 systems. We’re doing this with fingerprints and
4 with face recognition.
5 ASSEMBLY MEMBER TITONE: Gotcha.
6 MS. HARIHARESWARA: And so to the
7 security point, I will say that I as an open
8 source software expert and a programmer, I’m
9 going to tell you that just by default, because
10 more people can audit it; by default open source
11 software has this edge on security, on data
12 privacy that proprietary software can’t match.
13 And when you especially look at the number of
14 different organizations around the country that
15 are based on the adversarial system and sort of
16 poking holes in each other’s arguments; there’s
17 sort of an analogy to be made there that the open
18 source software in a criminal justice context is
19 stronger in that sense.
20 ASSEMBLY MEMBER LENTOL: You’ve been
21 great. Thank you.
22 MS. HARIHARESWARA: Thank you very much.
23 MS. WEXLER: Thank you.
24 ASSEMBLY MEMBER LENTOL: And that concludes our
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2 hearing for today. Thanks everybody for coming.
3 (The public hearing concluded at
4 approximately 2:15 P.M.)
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CERTIFICATE OF ACCURACY
I, Fei Deng, certify that the foregoing transcript
of Assembly Standing Committee on Codes, Assembly
Standing Committee on Judiciary and Assembly
Standing Committee on Oversight, Analysis, and
Investigation on February 8, 2017, was prepared using
the required transcription equipment and is a true
and accurate record of the proceedings.
Certified By
Date: March 14, 2017
GENEVAWORLDWIDE, INC
256 West 38th Street - 10th Floor
New York, NY 10018
Geneva Worldwide, Inc. 256 West 38th Street, 10th Floor, New York, NY 10018