Hiding the Forensics

April 1, 2011

By Brandon L. Garrett, a professor at the University of Virginia School of Law.


Is it obvious that prosecutors cannot hide evidence of a defendant’s innocence? Can an entire prosecutor’s office fail to take that obligation seriously? What if that happens and an innocent man spends 18 years in prison and is nearly executed – could the office then be held responsible? What if they buried a forensic lab report that would have provided scientific evidence of innocence?

The Supreme Court addressed those questions in its ruling this week in Connick v. Thompson. John Thompson spent 18 years in prison and came within weeks of execution for a murder he did not commit. Prosecutors had concealed a key lab report with a blood test from the victim’s clothing, which the culprit had bled on, as well a series of other items including eyewitness statements describing an attacker who did not at all resemble Thompson.

In a chilling ruling, the majority, split along 5-4 lines, said that the issue raised “nuance[d]” and technical questions, but in a formalistic and circular way, said that there was no “obvious” need for prosecutors to be trained on such “gray areas.”  

When prosecutorial misconduct came to light in the Duke Lacrosse case, did we dismiss Mike Nifong’s actions as a technical issue? Or when it came to light that key evidence was concealed from the defense in the Ted Stevens prosecution? Yet in a cavalier prosecutor’s office without careful training and procedures, such serious violations will occur; shouldn’t that much be obvious?

The basic due process rule dates back almost forty years, when the Court ruled in Brady v. Maryland that prosecutors violate due process rights of the accused if they fail to turn over evidence that could help the defense case at trial. Brady violations, as they are colloquially called, are dark matter in our criminal justice system. They rarely come to light, since by its nature, concealed evidence may remain hidden.  The vast majority of criminal cases never go to a trial, and so the defense may never find out what evidence was tucked away in the State’s files.

New evidence from wrongful conviction cases sheds light on how corrosive unchecked Brady violations can be. I have examined records from the first 250 cases where DNA tests freed innocent people. I was shocked to find out how many skeletons lurked in the closets that DNA tests opened. The most common claims those innocent people had raised when they filed their appeals and habeas petitions related to prosecutorial misconduct. Those exonerees spent an average of 15 years in prison. Only after they were released did more Brady violations came to light – often only when they brought civil cases much like Thompson’s.  None had been told that witnesses were coached or even hypnotized, informants received secret deals, confessions were fabricated – and just like in Thompson’s case, prosecutors or crime lab analysts hid forensic evidence of innocence. 

Prosecutors are the gatekeepers in our criminal system. Forensic evidence is usually requested by law enforcement from law enforcement labs, but it is prosecutors who call forensic analysts as witnesses and have the obligation to pass on the forensic reports to the defense. Yet in case after case, it has come to light that they hid the forensics. For example, Curtis McCarty languished for 21 years in prison before DNA freed him. The lab analyst had altered earlier reports showing that crime scene hairs were actually not his. In another case, the same analyst erroneously excluded a man who turned out to be a murderer – but in the meantime six separate people in Beatrice, Neb., were wrongly convicted of that crime and spent years in prison before DNA freed them. Gilbert Alejandro was convicted and spent 4 years in prison due to a DNA test that the analyst in fact did not conduct. In Gene Bibbins’ case, the analyst never told the jury that fingerprint comparisons excluded him. No one told the defense in Ray Krone’s case that an F.B.I. analyst had concluded before trial that the bite marks central to the prosecution case could not have come from him. Krone was sentenced to death and spent more than ten years in prison before DNA freed him. Supervisors ordered the analyst not to conduct a DNA test in LaFonso Rollins’ case because he had confessed. He spent 10 years in prison before the DNA test proved his innocence. 

For many more defendants, matters are even more serious. DNA testing brought to light prosecutorial misconduct in those high-profile cases, but in the vast majority of criminal cases no DNA tests can be done to shed light on the question of innocence.  Nevertheless, scandal after scandal has brought down entire crime labs which, beholden to prosecutors and exercising poor quality control, routinely altered results or failed to turn over evidence to the defense. The recent unfolding of a major scandal at the North Carolina laboratory is just the latest example.

If a crime lab analyst had no training on the requirements of Brady, the lab might be sued and held accountable for a wrongful conviction. But if prosecutors lack proper training, because they are lawyers, they are let off the hook. And individual prosecutors are already deemed by the Court “absolutely immune” and cannot be sued. Prosecutors are almost never professionally disciplined when Brady violations come to light (which made Nifong’s case so unusual); none were disciplined in any of the disturbing cases of people freed by DNA testing that I just described. Now one last source of accountability has been taken away. The Court has made it prohibitively difficult to hold the office itself responsible. The district attorney, who is typically elected by the public to ensure justice is done, should be the first held responsible when there is an utter failure to adopt sound policies and training to prevent misconduct. Concealing forensics can lead to the guilty going free – to commit additional crimes, as happened in dozens of the DNA exoneration cases.  Turning over evidence of innocence is obviously a subject for careful policies and ongoing training. There is nothing “gray” about hiding the forensics.