By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
By Brian Rinker
By Rachel Swan
Nine months ago, the San Francisco Police Department Crime Laboratory — a capacious, hangarlike building fronted with palm trees in the old Hunters Point naval shipyard — was rocked by the revelation that a rogue technician, Debbie Madden, had skimmed cocaine evidence from the narcotics unit for personal use. In May, SFPD Chief George Gascón announced the lab's drug section would be closed permanently, and all narcotics testing outsourced.
No one would dispute that Madden's conduct created a major problem for the integrity of drug evidence. Yet as troubling as her actions were, they may have distracted public attention from more consequential shortcomings elsewhere in the crime lab, which continues to operate despite the shuttering of the drug unit. Unlike the Madden affair, which for the most part tainted minor narcotics-possession cases, these mistakes could have significant implications for rapes and murders, and raise questions about the ethical conduct of the district attorney's office in its approach to forensic evidence.
TIMELINE: Problems at the SFPD Crime Lab
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On Dec. 3, SF Weekly reported on its website that a mixup of test tubes containing DNA evidence, reportedly in a homicide case, had been concealed by officials at the crime lab for close to two years. Documents obtained by SF Weekly revealed that records of the 2008 sample switch had been destroyed at the direction of the DNA unit's former supervisor, who — along with the crime lab's then-director — nevertheless denied knowledge of the incident when confronted by investigators from the American Society of Crime Lab Directors (ASCLD), which accredits forensics facilities.
In September, the ASCLD accreditation board issued a report confirming the DNA sample switch. The report also cast doubt on previous statements by SFPD officials about lab security; inspectors found, for instance, that doors to the facility were frequently propped open, exposing highly sensitive DNA evidence to potential contamination or theft.
These issues, on their own, are enough to warrant serious questions about the DNA lab's work. But further information obtained by SF Weekly also indicates that DA Kamala Harris — recently elected California Attorney General — has a troubling history within her own office of covering up problems with genetic evidence used by prosecutors.
In May, defense lawyer Tony Tamburello wrote to Gascón, complaining of alleged unethical conduct by current DNA lab supervisor Cherisse Boland in a murder case. Tamburello asserted that Boland concealed from a grand jury during sworn testimony that the majority of the DNA found on critical evidence did not come from the suspects arrested by police. This omission, in addition to demonstrating incompetence, might "constitute criminal conduct warranting further investigation," he wrote.
The subject of Boland's conduct was taken up by Rockne Harmon, a star prosecutor in the realm of DNA evidence who worked on the O.J. Simpson case. Harmon, who became a consultant at the San Francisco DA's office when he retired after 33 years at the Alameda County DA's office, told SF Weekly that he had submitted a report to the DA's office and SFPD that was critical of Boland's testimony. He recommended this critique be shared with the city's defense bar through a mass disclosure, since it should be available to lawyers seeking to cast doubt on Boland's work in criminal cases. (Harmon declined to discuss his findings in detail, saying that under the terms of his previous contract, the document was the property of the DA's office.)
Yet instead of sharing the information, the DA opted to conceal the problems Harmon had found. Paul Henderson, Harris' chief of administration, went so far as to deny the report's existence in a letter responding to a formal request for the document from SF Weekly under the Sunshine Ordinance.
Harmon says he is concerned that his report has been kept under wraps and came to light only because he chose to talk about it with a reporter. "It wasn't earth-shattering, but it's something that should be out there," he says. "I think what's earth-shattering is what's happened to it."
Such statements from Harmon, whom Harris herself once called "the guru of DNA evidence in the state," are a serious rebuke to the district attorney as she prepares to ascend to statewide office.
The secrecy that until now has surrounded the DNA section's string of mistakes and misconduct allegations is particularly unsettling in the wake of the Madden affair. Following that scandal, Superior Court Judge Anne-Christine Massullo issued a blistering ruling against Harris, finding that her office had failed to fulfill its constitutional obligations under the U.S. Supreme Court case Brady v. Maryland, which requires that prosecutors turn over potentially exculpatory information to criminal defendants.
Problems at the crime lab's drug unit should have been disclosed to defense attorneys, Massullo ruled. The judge also said that the DA's office must proactively seek such information from the police department, rather than relying on the SFPD to turn it over.
The fact that the DA's office has shared neither Harmon's report on Boland nor the ASCLD report on the sample mixup with defense lawyers — who learned of the former and were provided with the latter by SF Weekly — indicates that prosecutors are still failing to comply with this order, critics say.
David Wise, a private defense attorney who specializes in cases involving DNA evidence, said he has filed motions in ongoing criminal cases asking specifically for any new reports on the crime lab, but learned of the ASCLD report's existence only from SF Weekly. "I just can't believe it. I'm shocked," he says. "I'm troubled by the fact that I've asked for exactly this, and [prosecutors have] told me it doesn't exist. I think that's enough for me to be disturbed about, when someone's looking at 25 to life."
Public Defender Jeff Adachi, who also obtained the ASCLD report from SF Weekly, has called for an investigation into whether the erasure of records of the sample switch amounted to criminal destruction of evidence. "Not only did the lab fail to document the switching of samples. They intentionally covered it up," he says. "This is a bombshell." The DA's office's denials about Harmon's report, Adachi adds, are "beyond outrageous. It suggests intentional culpability by somebody" to conceal the document.
Scientific and ethical lapses at the lab, and the failure to disclose those problems to defendants, could force prosecutors to re-evaluate and perhaps dismiss cases that depend on DNA evidence from recent years, even those that have already resulted in convictions. A similar phenomenon was seen in the wake of the Madden scandal, when hundreds of drug cases were dropped.
When it comes to the DNA lab, a high volume of dismissals is unlikely. SFPD analysts handle 450 cases a year, less than one-thirtieth the caseload of the narcotics unit before it was closed. But much of the DNA lab's work, unlike that of the drug section, involves serious violent crimes.
The tainting or reversal of even a handful of prosecutions and convictions in those cases could have deep reverberations in the city's criminal-justice system. Last week, motions to dismiss two rape cases had already been filed by defense lawyers claiming that the DA's failure to disclose problems at the DNA lab amounted to a violation of their clients' constitutional rights. Adachi says his office plans to ask for more dismissals in the coming weeks based on the same argument.
Recent news coverage of the DNA section of San Francisco's crime lab has focused on problems less ethical or scientific than logistical — principally the enormous backlog in testing of evidence. That isn't to say such delays can't have serious consequences. Earlier this year, several news organizations reported on the case of Donzell Francis, a convicted rapist and suspected murderer who allegedly continued on a spree of violent crimes while his DNA, collected from the body of a slain transgender prostitute, sat untested for two years.
Still, case-processing bottlenecks of this kind, and the attendant cries for bigger budgets and more staff, are common to most branches of law enforcement. Clues that something more fundamental was wrong at the DNA lab surfaced in November 2008. That's when Bicka Barlow, an attorney and former geneticist who serves as the public defender's office in-house expert on DNA evidence, received an anonymous letter detailing two significant problems in the crime lab's DNA division.
"The laboratory is continually kept in an unsecured manner," the letter stated. "If you go out to the crime lab in the afternoon, the front door to the building and the doors to the laboratory are propped open, which allows anyone access to the facility."
Additionally, the letter writer alleged, "There was a recent homicide case that was a rush in the laboratory as the case was going [to] trial. During the analysis there was a sample switch. At the direction of DNA Supervisor Matt Gabriel, the sample switch was covered up by relabeling the tubes containing the DNA evidence and by manipulating the LIMS system in order to hide the sample switch." (LIMS, which stands for Lab Information Management System, is generic shorthand for the computer databases in which forensics analysts' work records are stored.)
At the time, Barlow says, she wasn't sure what to make of the letter. After some thought, she got in touch with a federal prosecutor she knew, who in turn dispatched an FBI agent to collect it. She never heard from the Bureau on the subject after that. Officials at the San Francisco field office of the FBI did not return calls as to whether a federal investigation is being conducted into the crime lab.
Barlow was already uneasy about the lab's work. The small crew of analysts handling evidence in rape and murder cases was somewhat young and inexperienced. Section head Gabriel was an enigmatic figure who seemed to relish the adversarial back-and-forth of courtroom proceedings. (Barlow says he once broke into laughter after a judge sustained an objection to her questioning.)
Under Gabriel's leadership, Barlow believed, the SFPD's DNA analysts had come to see themselves as an arm of the district attorney's office in criminal prosecutions, rather than as unbiased scientists. "They're so interested in doing a test and getting a result that they'd rather have poor data than no data," she says.
While the first letter about the DNA sample switch led nowhere, the whistleblower behind it was persistent. In July 2009, he or she sent another, more detailed communication to ASCLD's accreditation board, repeating the allegation of the sample switch and its subsequent concealment through alteration of the lab's official records, this time identifying the rookie analyst who made the mistake as Tahnee Nelson. (The letter stated that the switch happened in the first case Nelson worked on.)
The whistleblower also repeated the allegation about easy access to the DNA lab, and in doing so revealed his or her identity as an employee there: "On at least two occasions I was working ... and was approached from behind by individuals that were able to make their way into the laboratory unescorted."
ASCLD, in accordance with its policies, gave the letter to the SFPD and asked for a response. In a letter dated Aug. 28, 2009, then-crime lab manager Jim Mudge denied any knowledge within the lab of the alleged problems. Regarding the sample switch, he wrote, "I have informed Matthew Gabriel, DNA Technical Leader, of this allegation and reviewed with him the DNA Unit Corrective Action Log. There were no instances of corrective action for Ms. Tahnee Nelson ... from the last quarter of 2008." Mudge further wrote that the lab's quality assurance manager "has indicated to me that she is not in possession of specific casework information as the allegation claims."
Mudge's language was oddly couched. The central accusation of the whistleblower letter was that records of the sample switch were destroyed, yet the lab director responded by saying no records of such an event existed.
On the subject of security, Mudge was less ambiguous. "It is the laboratory's policy to maintain a secure environment and keep doors shut at all times," he wrote. "On occasion doors may need to be propped open for a brief period of time while transactions of large items of evidence or lab equipment are moved through the Laboratory. It is my responsibility to insure [sic] this only occurs when necessary." He added, "Any unescorted individuals who may gain access to the Laboratory work spaces, as the allegation claims, would have been sworn SFPD members seeking lab staff for a case-specific purpose."
Mudge's protestations might have sufficed, were it not for the confluence of two factors: the Madden scandal and the lab's need for reaccreditation. In August 2010, the lab was due to renew its accreditation for an additional five years. In light of the media feeding frenzy around Madden, the board figured it had better take another look at the crime lab's operations, and ASCLD inspectors paid a visit to San Francisco.
ASCLD, based in North Carolina, is not known for being an exacting watchdog. It is actually an umbrella group that encompasses a trade organization and a for-profit consulting group that helps member labs pass inspections, and its accreditation process is entirely voluntary.
The accreditation division is headed by Ralph Keaton, a former agent at the now-disgraced North Carolina State Bureau of Investigation, where a state attorney general's investigation recently uncovered 200 cases where lab analysts tainted or misrepresented forensic evidence. Amy Driver, a former Los Angeles Police Department forensic scientist who runs an industry blog, BulletPath, describes ASCLD as a "good ol' boy system."
Nevertheless, investigators reported troubling findings in their September report on San Francisco's crime lab, which was first released by the SFPD in response to inquiries from SF Weekly. Foremost among them were dual confirmations of the whistleblower's allegations that records of a sample switch had been destroyed and that lab security had been inadequate.
Despite Mudge's previous assurances that lab security was airtight, accreditation board investigators found that quality manager Marty Blake "readily admitted" that "the lab had problems with the biometric fingerprint access system working correctly" prior to November 2009, when a new card-access system was installed. "At times before the proximity card system was installed she observed that doors to the building and laboratory secure areas were propped open," the report noted.
And the DNA mixup? "Interviews with laboratory staff verified that the sample mixup did occur," the report stated. Investigators found that the last tube in a batch of testing samples, which should have been clear — what analysts call an "extraction negative" — was found to be colored. With Gabriel's approval, Nelson switched the labels on that tube and an adjacent clear tube, believing they were the only two that had been out of place. According to the report, "The DNA typing results were reviewed by the supervisor and the case showed no discrepancies in the DNA typing results, no further corrective actions were taken by the laboratory."
This in itself was an extremely sloppy way to fix the problem, according to Jim Norris, a Redwood City–based forensics consultant who headed the SFPD Forensic Services Division for nine years before retiring in 2004. A misplaced tube in a sample batch could potentially indicate that all of the DNA evidence during that round of testing is out of place and mislabeled, he said, and requires that testing be performed from scratch to ensure accurate results.
"You can say, 'I know how the mistake was made, and I know which two tubes are which,'" he says. "But are you really sure? The correct thing to do there is go back and start over."
An equally if not more serious breach of lab protocols stemmed from the lack of records. While some record of the switch may have remained in the lab's computer system, the inspectors noted that "no documentation of the incident" could be found in the case files, where they could be viewed by prosecutors or defense attorneys. Oddly enough, the report stated that this destruction of records was carried out "according to the DNA Unit standard practice," leading to a finding of "noncompliance with [ASCLD's] requirement to maintain examination documentation."
Keaton, in a telephone interview from ASCLD's office, says the agency was not pleased to learn that the sample switch took place after Mudge's indications to the contrary. "Obviously, that doesn't make us happy," he says. "If we felt that we had a consistent pattern of misrepresentation, we would find that extremely serious."
To date, SFPD officials say, they have not sought to determine which cases might have been affected by Nelson's error. According to Mudge's August 2009 letter to ASCLD, Nelson processed 33 cases in the last quarter of 2008.
Police say the switch was a minor accident that was quickly corrected. "It's like we're at a social party," said Capt. Donna Meixner, who was promoted in June and put in charge of the SFPD's Forensic Services Division. "You're Peter, I'm Donna. They mix up our name tags. But you're still Peter, and I'm still Donna."
Despite the fact that records of the mistake by Nelson were destroyed, an internal-affairs investigation into the incident showed that there was "absolutely no coverup in this case," according to SFPD spokeswoman Lt. Lyn Tomioka. She noted that ASCLD ultimately chose to reaccredit the crime lab in October, its findings notwithstanding.
Tomioka acknowledged that the initial denials of the lab mishap "looked bad" in light of investigators' later findings, but said the lab has made great strides since then in increasing the transparency of its operations. "We have moved so far forward with the lab that this would be like churning up old history," she said, noting that the SFPD had promptly provided ASCLD's most recent findings to SF Weekly when asked.
Nelson, approached by a reporter after testifying at a recent court hearing, declined to comment on the sample switch. "I'm not at liberty to discuss it with you," she said. Mudge, who has left his position at the crime lab but still works at the SFPD, could not be reached for comment.
Gabriel, who earlier this year departed the lab for a position at Applied Biosystems, a genetic-testing products firm in Foster City, first learned of the ASCLD report from SF Weekly and initially said he might be willing to discuss it. After receiving the report from a reporter, he did not respond to further requests for comment.
Marc Taylor, president of Technical Associates, Inc., a private crime lab in Ventura, says DNA sample mixups aren't unheard of in the forensics business. What makes the chain of events in San Francisco so disturbing, he says, are the steps that were taken to conceal it — first the relabeling of test tubes and destruction of lab records, then Mudge's letter flatly denying any knowledge of the incident. These, more than the switch itself, are symptomatic of a lab that has no place handling evidence in criminal cases, Taylor says.
"For every one of those things that are discovered, there are dozens or hundreds that could have happened. That could result in a false conviction of somebody," he says. "If you're going to be switching things, if you're going to be hiding things, if you're going to be saying things didn't happen, you've lost your credibility. That laboratory should be shut down."
While the idea of a switched DNA sample in a homicide case is titillating stuff, it wasn't the first time the lab's workers had faced accusations of unethical conduct. In fact, at the beginning of 2008, another DNA analyst would make statements under oath before a grand jury that would later give rise to a complaint to Gascón — and yet another internal-affairs investigation.
In that case, criminalist Cherisse Boland gave testimony implicating two young men in a vicious murder. Yet they would later be acquitted, and troubling indications would surface that both Boland and the SFPD had ignored evidence that could lead to the real killer.
On the morning of Sept. 2, 2007, Byron Smith was gunned down in a stranger's garage on Velasco Avenue after fleeing from two men on bicycles. In the aftermath of the murder, police inspectors arrested Emon Brown and Joc Wilson, who they believed had executed Smith as part of a turf war between rival gangs in the Sunnydale Projects.
While investigators located an eyewitness who was willing to testify, her usefulness was questionable. For one thing, she said Wilson wasn't one of the shooters. To help make their case, the cops turned to physical evidence, in the form of DNA swabs gathered from the handle-grips of the bicycles supposedly used by Smith's killers, which were found at the crime scene.
On Dec. 14, 2007, Boland reported that she had a match. Two of them, in fact: In a write-up of her lab examination, she declared that both Wilson's and Brown's DNA had been found on the bikes' grips, along with the DNA of an unidentified third man.
On Jan. 31, 2008, she appeared before a grand jury, and under questioning from Assistant District Attorney Diana Garcia, offered sworn testimony echoing the findings of her report. The grand jury went on to deliver indictments of Wilson and Brown.
But there was a weakness in Boland's report and testimony, and it was one that would not be obvious to any but the expert eye. Everything she said was technically true — both Brown and Wilson matched with small traces of DNA on the grips. But a significant result of the analysis was not made clear: The third, unknown person had left much more of his DNA on the bikes, making him what forensic scientists call the "major contributor" of DNA on the crime scene evidence.
The expert eye that caught this oversight belongs to Edward Blake of the Forensic Science Associates lab in Richmond. In a report prepared for Tamburello, Brown's lawyer, Blake pointed out that "In her SFPD laboratory report ... Cherisse Boland failed to disclose the presence of a major DNA source. ... Apparently, Cherisse Boland also failed to inform the Grand Jury that indicted [Joc] Wilson and Emon Brown of this fact in her testimony on January 31, 2008."
Blake went on to note that the most prominent DNA profile "has not only not been explicitly disclosed, it has not been searched in national or local DNA violent offender libraries or in the DNA libraries of SFPD personnel who handle, collect, and process physical evidence."
To Blake, a highly regarded scientist who has done extensive genetic research for the Innocence Project, a national legal organization dedicated to exonerating the wrongfully convicted through DNA evidence, this didn't make sense. Didn't the SFPD want to chase down every lead? What if a search of the FBI's criminal database turned up a hit on the unknown genetic profile for a violent felon who lived in Smith's neighborhood?
"I'm going through this data and looking at this report, and I'm saying, 'What the hell is going on here?'" Blake recalls. Armed with his dissection of Boland's methods, Tamburello and Deputy Public Defender Steve Olmo, who represented Wilson, were able to get their clients acquitted of all charges in a jury trial that ended in February of this year.
Following the trial, Tamburello wrote a letter to Chief Gascón describing his concern that Boland had misrepresented evidence in her report and before the grand jury. "When a supposedly trained criminalist fails to provide a truthful scientific report about her DNA analysis of evidence, and compounds that error by giving misleading testimony before the Grand Jury, we must all question the credibility of the laboratory and supervisors responsible for implementing and overseeing the procedures designed to ensure accuracy and the reliability of DNA testing," he wrote.
"I still get upset about it," Tamburello says today. The grand jurors, he says, "were given information that was false — technically not false, but not accurate or correct. That was, in my mind, criminal."
Tamburello wasn't the only person who had qualms about the legal implications of Boland's conduct in the Brown/Wilson case. In fact, the issues he and Blake raised got the attention of Harmon, who was working as a consultant at the DA's office, where he was guiding the prosecution of cold-hit cases and training young lawyers in the presentation of genetic evidence.
In an interview with SF Weekly, Harmon says he had concluded in a report he issued to the DA's office and SFPD that some of Tamburello's concerns were substantiated, and that there were problems with omission of information in Boland's forensic report. (Citing past contractual obligations with the DA's office, he would not elaborate.) He suggested it be turned over to defense lawyers, since he believed prosecutors would be obligated to reveal it in future cases involving Boland's work. "If I were the prosecutor, I wouldn't hesitate to turn it over," he says.
The DA's office never did so, even after Massullo's ruling. Harmon said he was concerned about the secrecy that has surrounded the document. Harmon says he doesn't know whether the document was shared by the SFPD with auditors from the California Department of Justice, who visited the DNA lab last spring and issued a largely favorable report on its work. The audit made no mention of his findings, although he says "there are many areas in there that could have been affected by my evaluation."
Henderson, the DA's chief of administration — and a rumored successor to Harris when she departs for Sacramento — responded to a Nov. 30 public records request from SF Weekly for the report under the city's Sunshine Ordinance with a letter claiming the office had no such document. Harmon says he is at a loss to account for this statement.
The SFPD has also launched an internal affairs investigation into Boland, according to department spokeswoman Lt. Lyn Tomioka, which has not yet been completed. ASCLD concluded in its own inspection of the lab that Tamburello's complaints were unwarranted, since Boland had disclosed the existence of the unidentified DNA in her report.
In a puzzling shortcoming, however, investigators admitted that they never reviewed her trial testimony, "because the transcript was not available at the time" of the visit. Harmon said this was a serious oversight, and that "you have to read the trial testimony" to understand what Boland did wrong, since aspects of her scientific findings emerged that had not been disclosed in her report or grand jury testimony.
Boland declined to talk to SF Weekly about the case. "I'm really not at liberty to speak about that," she says. "I think the ASCLD report says it all — that [Tamburello's complaint is] unsubstantiated."
In a series of e-mails with Blake of the Forensic Science Associates lab after the trial, Boland justified her conduct by noting that she had identified the unknown genetic profile in both her report and testimony, even if she did not make clear that its contributor's DNA was present in amounts that dwarfed that of either Brown or Wilson.
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.
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."
The DA's office has likewise refused to comment in writing on its apparently false statements, denying its possession of Harmon's report on Boland's handling of forensic evidence in the investigation into Brown and Wilson. Harmon says he has urged administrators at the office to release the document. "I just hope that however you write this, it leads to a revelation of the criticism I wrote," he says.
Ironically enough, following her nail-biter win over Los Angeles DA Steve Cooley, Harris made a point in her victory speech of the need to reform crime labs throughout the state. In April, she also called for "a law that makes it an automatic felony for a civilian employee of a law enforcement agency to steal or tamper with evidence." With troubling indications of distorted DNA evidence piling up in her own backyard, the state's new attorney general may soon have an opportunity to put her stated convictions to the test.