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Forensics under the microscope
- When labs falter,
defendants pay
Bias toward prosecution cited in Illinois cases
By Steve Mills, Flynn McRoberts
and Maurice Possley, Tribune staff reporters, October 20, 2004
As John Willis sought to prove
he had been wrongly convicted of a rape in the Chatham neighborhood,
the Illinois State Police crime lab in Chicago came across a
potential key to his innocence.
It was a single sheet of paper
containing the lab results of analyst Pamela Fish, written in
a tight scrawl. They showed she did not find Willis' blood type
in semen recovered from the crime scene.
At his 1992 trial, though,
Fish had testified her results were "inconclusive,"
meaning she could neither include nor exclude Willis as a potential
source of the semen. Her testimony effectively denied him the
scientific evidence that could have undermined the state's case.
Dubbed the "beauty shop
rapist" for a series of similar attacks, Willis was convicted
and sentenced to 100 years. Seven of those years would pass before
he walked free and DNA linked another man to the crimes.
The question of who was responsible
for Fish's crucial test results not being provided for Willis'
trial remains a matter of heated debate.
What is not disputed is that
Willis served 8 1/2 years behind bars for a crime he did not
commit. The city and Cook County paid him $2.5 million and the
state $100,000 to settle his wrongful conviction lawsuit, though
no one admitted wrongdoing and the city said Fish followed protocols
in her testing.
And Fish's career is in ruins.
Earlier this year, the highly touted scientist, who once trained
Illinois State Police DNA analysts, was quietly let go.
By her own account, Fish could
have redone the tests in the Willis case to clarify the results,
and even her bosses still say she should have.
"Was her interpretation
one of the possible answers? Yes," James Kearney, Fish's
former boss at the state police lab in Chicago, said in an interview.
"Should her work have been redone? You know my answer to
that--the work needed to be redone."
The behind-the-scenes drama
of the Willis case, revealed in documents the Tribune went to
court to unseal, provides a rare look inside the often-closed
culture of Illinois' crime labs and is a vivid example of how
faulty lab practices can help convict the innocent.
Labs are supposed to be where
science and the pursuit of justice merge, but too often they
are a place where mistakes, omissions and a lack of rigor lead
investigators down false trails that end in wrongful convictions.
A Tribune investigation has found that across the country, forensic
science is being undermined by unproven theories and experts
who testify in a misleading fashion.
For years, Fish has been a
focus of criticism by defense attorneys and state legislators
because her testing has been at the center of two major wrongful
conviction cases involving five men, three of whom still have
lawsuits pending against her.
But the work and testimony
of other Illinois state lab analysts also have been challenged.
Two lab examiners asserted
in a 1997 murder trial in Kane County that they could definitively
link the defendant to the crime through his lip prints, even
though the FBI has never validated the practice.
Two years ago, after a Cook
County public defender questioned as misleading a drug analyst's
report, lab officials had to step in and clarify policy.
And earlier this month, a DNA
analyst pleaded guilty to charges of falsifying thousands of
dollars of overtime claims, raising questions about her credibility
as a prosecution witness.
Through city attorneys, Fish
declined to be interviewed for this article. The city is defending
her in two lawsuits involving her testing while she worked at
the Chicago Police Department crime lab.
Her supporters say she has
been unfairly maligned and held to scientific standards that
have rapidly evolved in the years since she completed the disputed
Willis tests in 1991. Her testing in that case, for instance,
involved serology, a less exact method of identifying potential
suspects than current DNA analysis.
"Dr. Fish has never been
found to have testified falsely or reported false forensic results,"
wrote city attorney Thomas Samson in a letter responding to Tribune
questions about her work. "Despite this, unproven allegations
have ruined the career and reputation of a dedicated public servant
and a smart, educated, forward-thinking scientist."
But even Fish's current and
former bosses at the lab said in interviews that there were times
she fell short. The commander of the Illinois state crime labs,
Michael Sheppo, echoed Kearney's criticism that she should have
retested the evidence in the Willis case.
Like many of her fellow analysts
at the state police lab on Roosevelt Road in Chicago, Fish joined
the state system when it took over the Chicago police lab in
1996.
Defenders of the state system
object to any suggestion that the reputation of their labs is
tied to the troubles at the old Chicago Police lab, which they
say was underfunded and poorly run.
"You can't judge the Illinois
State Police laboratory by work that was done by the Chicago
Police laboratory," Kearney said.
Fish testified roughly a hundred
times in court over the course of her career, most of them while
she was with the Chicago police lab.
State police reviewed only
casework after she left the Chicago lab and joined the state.
Sheppo said that amounted to "very few" cases because
she was a supervisor for most of her tenure at the state police
lab; he said they found no errors.
"We did not do a complete
case-file review of the work that she did for CPD," Sheppo
said. "There was never anything to indicate that there was
a need to do so."
The city noted that the Chicago
police lab was audited by outside experts before the Illinois
State Police took it over and that "the audit praised Dr.
Fish."
But her former boss, Kearney,
acknowledged that a review of all her cases might have been warranted.
"Maybe we should have
gone back and looked at them," he said in a recent interview.
"But it didn't happen."
The specter
of bias
In crime labs across the country,
DNA testing has unraveled convictions built on faulty lab work,
and crime analysts have been accused of slanting their test results
to help prosecutors win convictions.
Concerns about lab bias in
Illinois were enough that former Gov. George Ryan's death penalty
commission, which included prosecutors and retired judges, recommended
forming an independent state crime lab "with its own budget,
separate from any police agency or supervision." Such independent
labs are rare.
The state legislature rejected
the proposal, one of several steps urged by critics to make the
crime labs' work more transparent.
"There needs to be vigorous
disclosure and vigorous scrutiny in any adversarial system,"
said Greg O'Reilly, chief of the Cook County public defender's
forensics unit and one of Willis' attorneys as he sought a new
trial. "In our American system of justice, we don't just
rely on the government to tell us everything is right."
In Illinois, not only do the
paychecks of crime analysts come from a police agency; state
law mandates they serve the prosecution, calling for the state
police to operate a lab system to provide "forensic science
and other investigative and laboratory services to local law-enforcement
agencies and local state's attorneys"
But the commander of the state's
crime labs flatly rejected any suggestion that the labs are slanted
against defendants.
"Even though we are mandated
to directly work with the prosecution and law enforcement,"
Sheppo said, "I totally disagree that in any way have we
been biased against any particular individual."
Even staunch defenders of the
crime labs, however, note that the culture inside the labs is
more complex.
Don Plautz spent 24 years in
the Illinois crime lab system as a supervisor and director before
retiring in 2002. He said he had a different philosophy from
many of his colleagues.
Many forensic scientists at
the state police labs, Plautz said, saw their role as members
of the state's attorney's team. "They thought they were
prosecution witnesses," he said. "They didn't understand
they were just scientists.
"If a defense attorney
called, I'd talk to them," he said. "A lot of people
felt they had to be very careful talking to them."
It was that attitude that Cook
County Circuit Judge Daniel Locallo cautioned against in a hearing
earlier this year to consider releasing internal lab documents
disclosed in Willis' lawsuit.
"If I'm a defense counsel
and there's science involved ... [I] should be able to go to
that examiner and be able to say, `What did you do? What was
your method? What were your findings?'" Locallo said in
a hearing. "And the people who are working at the state
crime lab should not take the position that `we are an arm of
the prosecution.'
"They're scientists. They
should be an arm of the truth."
The sometimes-cozy relationship
between lab analysts and prosecutors played out in the case of
Delmont Dobson.
In 2000, Dobson was charged
with possession of cocaine. In June of that year, Amy Johnson,
a forensic scientist in the drug chemistry section of the Chicago
lab, reported that she had found a trace amount of cocaine in
a piece of evidence weighing less than 0.1 grams.
But Johnson stated that she
had "not analyzed" a second, larger sample that was
seized.
Brendan Max, an assistant Cook
County public defender, subpoenaed Johnson's lab testing data.
The data showed that, in fact, Johnson had made a preliminary
finding of possible cocaine, but she was unable to confirm that
in repeated testing.
In March 2002, prosecutors
dropped the case against Dobson because the lab tests only found
trace amounts of drugs, according to a spokeswoman for the Cook
County state's attorney's office.
About that time, Sheppo said,
state lab administrators learned that some drug analysts in the
Chicago lab were reporting their findings the same way.
Prosecutors had been requesting
that analysts "just put `not analyzed' rather than giving
a preliminary result in a report," Sheppo said. "They
should have reported preliminary testing indicated the presence
of cocaine, however positive confirmation was not obtained."
He said it was a holdover from
a policy of Cook County prosecutors who didn't want preliminary
test results reported.
After determining that some
analysts were still following that procedure six years after
the state lab took over the Chicago lab, Sheppo said, "We
immediately, immediately made the policy clear that this will
not occur. ... It's definitely more accurate to report exactly
what you find."
A spokesman for Cook County
prosecutors, John Gorman, said, "To my knowledge, there's
never been such a policy."
The perception of crime-lab
bias is further reinforced by the fact that of the roughly 260
accredited U.S. forensic labs, 90 percent are affiliated with
law-enforcement agencies, according to the American Society of
Crime Laboratory Directors' Laboratory Accreditation Board.
The accreditation board grew
out of an effort to ensure that the federal government did not
dictate the operation of crime labs. Though the federal government
regulates labs that test everything from drugs to pet food, those
that handle the evidence introduced into America's courts are
self-policed.
Under a system set up by the
organization, teams drawn from the nation's crime lab directors
visit each other's facilities to grant the industry's seal of
approval.
Critics say this encourages
weak-kneed audits that do little to evaluate the true quality
of forensic work. The consequences, they say, are the crime-lab
scandals that have erupted across the country.
Lab defenders, on the other
hand, say the scandals are the result of effective self-policing.
"The bulk of problems
I've dealt with in forensic science have been identified by the
fellow forensic scientists," Plautz said. "They police
each other carefully. ... If we weren't watching ourselves, these
problems wouldn't come to light. We blow the whistle on ourselves."
Lab star stumbles
For years, Pamela Fish was
a star analyst, first for the Chicago Police Department's crime
lab, then at the state police lab. More than just a line analyst
with technical skills, she had impressive academic credentials.
A native of Evergreen Park,
Fish, now 46, graduated from Mother McAuley High School in Chicago
before getting her bachelor's and master's degrees in biology
from Loyola University. Her 1982 master's thesis explored the
homing habits of largemouth bass and other fish.
Over the years, she rose through
the ranks at the Chicago police lab. The lab was housed at the
old department headquarters at 11th and State Streets in a facility
so inadequate that evidence was sometimes dried on the roof.
In 1991, the year she completed
the serology test in the Willis case, Fish was in charge of the
lab's serology unit.
She later became training coordinator
for the state police lab's DNA section. She also obtained her
doctorate in biology from the Illinois Institute of Technology,
working nights and weekends for nearly seven years while still
full-time at the lab.
"She really has excellent
bench skills. She's really meticulous about keeping records,"
said Benjamin Stark, an IIT professor who was Fish's doctoral
adviser.
A former boss at the lab also
lauded Fish's work, noting that her imprint remains there. "The
scientists that she trained in DNA analysis--they're the ones
making all the cases now," said Laurence Mulcrone, a former
director of the state police Chicago lab.
Fish's background could not
be more different from that of John Willis. Growing up in the
Arkansas Delta, he never finished the 4th grade, chopping and
picking cotton instead of going to school. Even today, at age
56, he can barely read or write.
Yet, armed with little more
than his own innocence, a dogged persistence and a rudimentary
understanding of DNA gleaned from television, Willis cut through
the opaque world of the crime laboratory.
"I kept hollering about
the DNA," Willis said last year in a sworn deposition as
part of his lawsuit. "I knew it would free me because I
hadn't did nothing."
A self-described career tire
thief and gambler, Willis told anyone who would listen that he
had not committed a series of rapes and assaults that terrorized
the Chatham neighborhood on Chicago's South Side in 1990.
According to his deposition,
Willis denied his involvement to police from the beginning and
was equally vocal in the courtroom.
"I didn't be quiet,"
he said. "I jumped up and I started screaming. ... I was
telling the judge, I didn't rape nobody."
Cook County prosecutors, though,
had compelling evidence: The victims of the sexual assaults had
told police that Willis was their attacker.
In July 1991, as Willis neared
trial, prosecutors and his lawyer, public defender David Eppenstein,
agreed on serological testing of a semen-stained piece of toilet
paper wrapper.
Although Willis had demanded
DNA testing, at the time that technology was still in its infancy;
the first conviction in Illinois in which DNA evidence was allowed
came in 1990. Serology, which analyzed blood types, was the primary
tool used in sexual assault cases in Cook County.
Willis was certain the serology
tests would clear him. He believed he even knew who had committed
the rapes: Fellow inmates in Cook County jail had told him that
a man named Dennis McGruder had been arrested on sexual assault
charges in Chatham and that he bore a striking resemblance to
Willis.
At Willis' trial, Fish took
the witness stand and told the jury that the serology tests were
inconclusive.
In a letter to the Tribune,
Samson asserted that even if Willis had the test results at his
trial, they would not necessarily have cleared him, given that
victims of the beauty shop rapist said he was their attacker.
"In a best-case scenario
for the defense," Samson wrote, "Dr. Fish's serology
analysis would have been the basis for a disagreement among experts,
leaving the jury to rely upon the 11 eyewitness identifications
of Mr. Willis as the perpetrator."
Samson also noted that the
FBI expert who wrote the lab protocol involved in the testing
"was prepared to testify on behalf of Dr. Fish that she
properly followed" it.
Nevertheless, her test results--in
the form of a handwritten log she kept as she performed her analysis--would
have been a powerful piece of evidence for his defense. They
showed Willis' blood type was different from the source of the
semen.
He had blood type B and was
a secretor--that is, his blood type could be determined from
his bodily fluids, such as semen or saliva. The semen taken from
the toilet tissue wrapper came from someone with blood type A.
After Willis was convicted
and sent to Stateville penitentiary, lawyers from the Cook County
public defender's office began pursuing his appeal. In 1997,
they sought DNA testing.
The lab official responsible
for handling such requests was Marian Caporusso, a veteran of
the Chicago police lab who, like Fish, had made the move to the
state lab.
Caporusso pulled the Willis
file. After reviewing the handwritten notes, she went into Kearney's
office and told him she would have interpreted the results differently
than Fish did, according to Kearney's deposition in the Willis
lawsuit.
Kearney's response: He was
relieved to learn that Fish had done the test while working at
the Chicago police lab, he said in the deposition.
"In other words, it wasn't
on your watch?" Willis' attorney, Locke Bowman, a lawyer
at the MacArthur Justice Center at the University of Chicago,
asked.
"That's correct,"
Kearney replied.
Kearney said he then told Caporusso,
who helped train Fish in serology testing, to talk to her about
the case. Fish was in the middle of a training session when Caporusso
approached her in a lab hallway.
Descriptions of what happened
next vary widely, not only among the individuals involved but
between their own accounts, first to state police investigators,
then during Willis' lawsuit.
What is not in dispute is that
Caporusso gave Fish the file. Fish told state police investigators
that Caporusso asked her to interpret the results and Fish reiterated
her view that they were inconclusive.
In her deposition, Fish explained
why. "If your controls don't work properly, it's not a proper
scientific procedure to call the results of that particular test,"
she said. "Therefore, the tests would be called inconclusive."
Fish told state police investigators
that Caporusso responded, "I wouldn't have interpreted it
that way." During the lawsuit, both women contended that
there was no confrontation.
Why Fish did not re-run the
serology test is likely to remain a mystery. In a deposition
taken during Willis' lawsuit, Fish said that she considered running
it again and that it would be "my laboratory practice"
to do so, but acknowledged there was no evidence that she did.
Breakthrough
in case
While DNA testing has dramatically
improved the precision of evidence testing, the Willis case centered
on a more basic issue: whether information helpful to him was
improperly withheld.
Lab officials adamantly deny
that contention and say Willis' attorney never asked for her
handwritten notes. Had he specifically asked for them, they say,
he would have received them.
The attorney, Eppenstein, made
a standard request for documents before trial and received Fish's
typewritten lab report. It included her finding of "inconclusive,"
but none of her handwritten notes.
"Before John Willis, nobody
in my office or the private bar let it enter their mind that
a forensic scientist would do what was done here," Eppenstein
said. "There was no reason to ask for notes. I didn't suspect
something was there, that it was different from the final report."
Finally, in 1998, Willis' post-conviction
attorneys had a breakthrough. Responding to a subpoena specifically
asking for the test results, a clerk in the Chicago lab faxed
the public defender's office the crucial page.
His lawyers soon began to pursue
a separate motion for a new trial. But it took months for DNA
tests to exclude him as the rapist--and for McGruder to be implicated--partly
because slides containing the semen evidence initially could
not be found.
He was set free in February
1999. McGruder pleaded guilty to rape.
Fish's legacy
is still being written.
She is still a defendant in
a lawsuit stemming from the prosecution of four teenagers in
the 1986 rape and murder of medical student Lori Roscetti.
In that case, one defendant
pleaded guilty and agreed to testify for the prosecution. The
others--cousins Larry and Calvin Ollins and Omar Saunders--were
tried separately.
Fish testified that her serology
test could only exclude Saunders. But Dr. Ed Blake, a DNA expert
retained by a defense lawyer in another lawsuit, analyzed her
testing and concluded that she should have excluded all the defendants.
In a report for the defense, he called her testimony "scientific
fraud."
City lawyers contended Blake's
criticism was unfair and based on "20/20 hindsight."
DNA testing later cleared all
four men after they spent as much as 15 years in prison. After
they were pardoned in 2002, Chicago police linked two other men
to the murder and said both gave videotaped re-enactments of
the crime; they are awaiting trial.
While Calvin Ollins has settled
his lawsuit for $1.5 million last year, lawsuits filed by the
other three are pending. Citing that litigation, city lawyers
declined to comment on the Roscetti case.
Last month, the Appellate Court
ordered an evidentiary hearing in the case of former Death Row
inmate David Smith, whose attorneys had alleged that Fish testified
falsely against him at his murder trial.
The court noted that some of
Fish's testimony was similar to her testimony against Willis--in
particular, serology tests that she termed inconclusive. The
panel said Smith's lawyers should be allowed to examine Fish's
lab work.
City lawyers said that once
the hearing is held, "the evidence will show a very different
story."
The court, though, wrote that
Smith's allegation "raises the question of whether Fish
provided testimony inconsistent with her lab notes and lab results
as she did in the Willis case."
Problems elsewhere
The work of Fish has drawn
the most attention to the state crime labs, but it isn't their
only trouble.
Earlier this month, Amy Rehnstrom,
a DNA analyst at the Chicago lab, resigned after she was accused
of felony theft for falsely claiming $2,400 in overtime.
Sheppo, the lab system's commander,
would not comment on the Rehnstrom case. But he said any time
questions are raised about analysts, officials review their work
"to ensure the accuracy of the analysis."
Gorman, the state's attorney's
spokesman, said prosecutors are confident in her work. "She
has said that she stands by her work and that she didn't do anything
untoward with her work," Gorman said, "and we have
no reason to disbelieve that."
Authorities said they would
notify defense attorneys in cases that she worked. But that may
have little effect because under a plea deal, prosecutors allowed
her to plead guilty to a misdemeanor and she was placed on court
supervision.
Because Rehnstrom did not admit
to a felony, some defense attorneys are concerned that judges
may prohibit them from questioning her about the wrongdoing--preserving
her credibility as a witness in the scores of cases she has handled.
"The question for the
judge or the jury is this--is her testimony reliable if she says,
`I did this work,' because she told the lab she was at work during
certain hours, and someone has determined that was false,"
said Ruth McBeth, an assistant Cook County public defender.
Attempts to reach Rehnstrom
for comment were unsuccessful.
Sheppo said the state labs'
quality assurance program thoroughly checks analysts' work. One
of the first of its kind when introduced in the 1980s, he said,
it includes occasional courtroom visits by supervisors to make
sure analysts are properly testifying.
Still, questions about the
proficiency of the labs' analysts have been raised in a number
of instances. In the case of Harold Hill and Dan Young, the state
police's Chicago lab failed to detect semen on a piece of evidence.
Hill and Young were convicted
of the 1990 rape and murder of Kathy Morgan but have long insisted
they were innocent. A series of DNA tests over the last three
years--using genetic material from Morgan's fingernails as well
as from her clothes--has excluded the two men, turning up two
genetic profiles of other individuals.
Earlier this year, the crime
lab was asked to examine other pieces of clothing in an effort
to detect semen. The lab said its tests found none.
But Hill and Young's attorneys
pressed to have a private lab in New Orleans inspect the same
evidence. In August, the lab, ReliaGene Technologies Inc., reported
finding semen and sperm.
The Cook County state's attorney's
office said ReliaGene was able to find the evidence when the
state lab could not because the private lab used more sophisticated
tests.
Sheppo said it was wrong to
assume the state crime lab had erred and suggested the evidence
could have been contaminated. He noted that the lab had done
other DNA testing that had helped Hill and Young, including the
fingernail tests.
"My question would be,
is ReliaGene correct or are we correct? I don't know," said
Sheppo, adding that the lab reviewed its work in the case and
found "no major inconsistencies."
Prosecutors hope to complete
a reinvestigation of the case soon.
Two lives forever
changed
The day after John Willis was
released from prison, in February 1999, the woman whose testimony
helped convict him was the guest speaker at an Illinois judges
seminar in Chicago. Her role: explaining DNA profiling and evidence
to the jurists.
A few weeks later, Pamela Fish
was promoted to oversee biochemistry testing at the lab.
In the summer of 2001, a state
legislative committee holding hearings on prosecution misconduct
questioned state police director Sam Nolen about Fish's work.
At the time, State Rep. James Durkin (R-Westchester) urged Nolen
to transfer Fish because of the questions about her work.
"I think right now it's
probably not a good idea that she's in a position of authority
in the crime lab," Durkin said. "I'm not asking for
her head. I'm not asking for her to be fired. But I think the
integrity of the crime lab is first and foremost."
Lab bosses then moved her into
a research position where she would no longer be involved in
criminal casework.
This summer, after Willis settled
his lawsuit, Fish's contract was not renewed and she left the
agency.
For his part, Willis bears
Fish no ill will.
"I don't got nothing against
her," Willis said in a deposition for his suit. "Like
I said, I'm glad to be out. You know, whatever she do, she got
to live with God herself on it."
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
