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She said she had not uploaded the profile into CODIS — the FBI's database of criminals' DNA — to seek a match because she had been asked to identify only the DNA of Brown and Wilson. She also asserted that the unknown DNA did not meet the strict guidelines for submission to the database — guidelines intended to prevent innocent persons' DNA from being entered, where it could potentially be subject to a mismatch.
Blake still maintains that Boland's failure to disclose a dominant untested DNA profile on the evidence "was deceptive in her report, and she did that in front of the grand jury, which to my mind is a criminal act." The failure to try to track down a murder suspect using that genetic clue should puzzle any thinking person, he adds. "I don't understand how anyone can sit back and look at that situation and think that's how anyone in a laboratory or a law-enforcement agency should operate."
Such criticisms don't appear to have hampered Boland's professional ascent at the crime laboratory. With Gabriel gone, she is now the DNA unit's supervisor.
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The ultimate effect of the latest series of revelations about the SFPD crime lab is anyone's guess. News of the sample switch has renewed calls — which resounded during the Madden crisis — for the outsourcing of forensic testing, or the creation of an independent lab, perhaps modeled on the medical examiner's office.
Advocates of this approach say it would allow analysts to perform their work without the tacit pressure of being employed by a police agency seeking evidence that points to guilt. Such an arrangement could prove not only more ethically sound but also cheaper: In June, a city controller's report found that outsourcing all forensics testing would save up to $21 million over five years.
The scandal's short-term results are equally hard to predict. Gabriel's role in the concealment of Nelson's error could theoretically taint much of the work done at the lab, since he was responsible for overseeing it. Evidence handled by Nelson will certainly be subject to impeachment by defense attorneys because of the incident. (At a recent federal court hearing, Nelson testified that she has handled 300 cases of DNA analysis, and appeared in court as a witness 13 times.) The consequences of Boland's behavior in the prosecution of Wilson and Brown will be more evident once Harmon's report surfaces or the SFPD concludes its internal-affairs investigation.
Erin Murphy, a professor at New York University Law School and expert in DNA evidence, says common sense dictates that at least the cases with evidence tested by Nelson in the same batch as the switched samples — and probably others from around the same period — are directly affected by ASCLD's findings. "If someone told you, 'I tested you for HIV. There was a sample switch at the lab, but don't worry, you can trust me,' you would probably want to be tested again," Murphy says.
It will take time for the city's judges and policymakers to sort out the meaning of what has taken place over the past two years, and which criminal cases are directly affected. But the process has begun.
As SF Weekly went to press, Federal Public Defender Shawn Halbert said she was planning to use the sample switch to discredit Nelson's testimony in a federal firearms possession trial. Last week, Wise and Doug Rappaport, another private defense attorney, filed motions to dismiss two rape cases, arguing that their clients' due-process rights had been violated by the withholding of the ASCLD report by the DA's office.
In both cases, DNA evidence forms a significant part of the state's case. Even if their clients' samples were not directly affected by mistakes at the lab, Rappaport and Wise argue, they should have been provided with evidence of systemic problems at the facility that could be used to question the integrity of its work.
"What is unclear at this juncture is the extent of the problems involving DNA testing as well as the ultimate remedy for law enforcement's willful failure to turn over this information," Rappaport wrote. "The Prosecution has not provided any information pertaining to the sample switch and subsequent coverup to the Defense, nor has it taken any role in preserving the evidence which it now appears was destroyed."
Public information officers at the DA's office did not respond to repeated requests to interview prosecutors who specialize in DNA issues or who work in the office's new trial integrity unit, formed to ensure the DA's legal obligation to hand over exculpatory material to defense lawyers is met. Jerry Coleman, the veteran prosecutor who heads the unit, declined to comment without the permission of the office's public-affairs officials.
Meixner of the SFPD's Forensic Services Division said she never provided the ASCLD report to prosecutors, since "nobody asked for it." This explanation is no excuse under Massullo's ruling. The judge placed particular emphasis on what lawyers call the prosecution's "affirmative duty" to make sure defendants are supplied with information that could aid their cases: "It has long been recognized that it is the prosecutor — the People's representative in court — who has the responsibility to put in place procedures to secure and produce exculpatory evidence."