Forensic Fraud (Part 1)

Forensic fraud is an ongoing serious problem in our courts.

For example, in State v. Kunze, 97 Wn.App. 832, 988 P.2d 977 (1999), the Washington State Court of Appeals reversed David Kunze’s conviction for killing James McCann, a man who had informed him four days earlier that he was going to marry Kunze’s ex-wife. Kunze and his ex-wife had divorced 8 months earlier after 18 years of marriage and Kunze was reportedly upset when he heard the news. The court related the pertinent facts as follows.

In the early morning hours of December 16, 1994, an intruder entered the Clark County home of James McCann. McCann was asleep in the master bedroom. His son Tyler, age 13, was asleep in another bedroom. The intruder bludgeoned McCann in the head with a blunt object, causing his death. The intruder also bludgeoned Tyler in the head, causing a fractured skull. When the intruder left, Tyler crawled out to the front porch, where he was found after daylight by a passerby.

While awaiting surgery at the hospital, Tyler told the police that he had been afraid to look at his attacker closely. He thought, however, that the attacker was a darkly complected male, possibly Puerto Rican, about six feet tall with medium build, dark or black hair to mid-ear, 25 to 30 years of age, and a deep voice. Tyler later recalled that the attacker wore gloves but not glasses, and had a flashlight in his mouth. Kunze is in his mid-forties, wears glasses, and has reddish-blond hair.

Back at the house, the police observed that the intruder had opened drawers and cabinets without disturbing the contents. They also found that the intruder had taken a TV, a VCR, stereo speakers, a “boom box,” McCann’s wallet containing identification and credit cards, McCann’s truck, and various other items.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed the home for evidence. He discovered a partial latent earprint on the hallway-side surface of McCann’s bedroom door. He “dusted” the print by applying black fingerprint powder with a fiberglass brush. He “lifted” the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix. The external features of a complete ear are shown in the following diagram.

(diagram omitted)

On or about March 28, 1995, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann’s bedroom door with photos of the left side of Kunze’s face. He concluded that the latent print “could have been made by Dave Kunze.” He also thought that “[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions.”

On September 21, 1995, Millar and Grubb met with Kunze to obtain earprint exemplars. Neither had taken an earprint exemplar before, although each had practiced on laboratory staff in preparation for meeting with Kunze. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure (“light,” “medium,” or “hard”). They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay.

The reason Millar and Grubb took multiple exemplars is that they were consciously trying to produce one that would match (i.e., “duplicate” the latent print from McCann’s door. They knew that earprints of the same ear vary according to the angle and rotation of the head, and also according to the degree of pressure with which the head is pressed against the receiving surface. They did not know the angle and rotation of the head that made the latent print, or the degree of pressure with which that head had been pressed against McCann’s door. Hoping to compensate for these difficulties, they told Kunze to use a different degree of pressure each time (“light,” “medium” or “hard”), and they looked at the latent print as they worked.

After Millar and Grubb took the exemplars, they were asked to compare them to the latent print. Millar declined because his laboratory supervisor thought that earprint identification was “out of the expertise of the [crime lab’s] latent unit.” Grubb went ahead, concluding that “David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene.”

After reviewing the testimony of 3 forensic scientists, who testified for the prosecution, and 12 forensic scientists, who testified for the defense, the court held that earprint-identification evidence should not have been admitted at trial because it is not generally accepted in the forensic science community.

I had known Mike Grubb professionally for many years because he was often involved in cases that I handled. I was shocked when I read the Kunze case and found out that he had testified that earprint-identification evidence is generally accepted in the community of forensic scientists because that is absolutely false. At the time, he was the acting supervisor of the Washington State Patrol Crime Lab in Seattle and one of the state’s most experienced and respected forensic scientists. I believe he must have known that earprint-identification evidence is not generally accepted by forensic scientists when he testified that it was.

Why did he testify that it was?

I suspect he did because he viewed himself to be a member of the prosecution team, rather than an independent forensic scientist doing his job and letting the chips fall wherever they may.

Most, and probably all publicly owned and operated forensic crime laboratories, including the FBI Crime Lab obviously, are agencies within a law enforcement agency. Over the years, I have known many forensic scientists and many of them have complained privately to me that, as a quasi law enforcement agency, they occasionally have felt pressured to assist the prosecution by rendering improper opinions that will convict a defendant. The feel like it is too easy to get caught up by the fever to build a case that convicts a prime suspect and they wish they could be an independent agency.

On the other hand, there are many forensic scientists who see themselves as a modern day Sherlock Holmes, a crime solver who helps law enforcement nail the perpetrator. In other words, the ultimate team player. This is the mentality, for example, that you see when you watch a show like CSI.

Apparently, Mike Grubb falls into this latter category.

BTW, he moved on after the Kunze case to become the head of the San Diego Crime Lab.

The Innocence Project in New York City, which has freed 284 wrongfully convicted innocent people by post-conviction DNA testing, has identified forensic fraud as one of the 7 causes of wrongful convictions. This is what they say about forensic fraud.

The risk of misconduct starts at the crime scene, where evidence can be planted, destroyed or mishandled. Evidence is later sent to a forensic lab or independent contractor, where it can be contaminated, poorly tested, consumed unnecessarily or mislabeled. Then, in the reporting of test results, technicians and their superiors sometimes have misrepresented their findings. DNA exonerations have even revealed instances of “drylabbing” evidence – reporting results when no test was actually performed.

All over the map

The Innocence Project has seen forensic misconduct by scientists, experts and prosecutors lead to wrongful conviction in many states. The following are among the more notorious:

• A former director of the West Virginia state crime lab, Fred Zain, testified for the prosecution in 12 states over his career, including dozens of cases in West Virginia and Texas. DNA exonerations and new evidence in other cases have shown that Zain fabricated results, lied on the stand about results and willfully omitted evidence from his reports.

• Pamela Fish, a Chicago lab technician, testified for the prosecution about false matches and suspicious results in the trials of at least eight defendants who were convicted, then proven innocent years later by DNA testing.

• A two-year investigation of the Houston crime lab, completed in 2007, showed that evidence in that lab was mishandled and results were misreported.

Tomorrow in Part 2, I will review some forensic butchery in Crane-Station’s case.

5 Responses to Forensic Fraud (Part 1)

  1. hruhs says:

    I found myself forced out of a career as a Forensic Pediatrician due to this sort of corruption. Basically, lie for the prosecutors or get out of town. But that is like calling attention to the fever of a dying person, irrelevant. The entire system has been so undermined by conflicts of interest that it is sort of silly to keep pointing out this evidence or that evidence that the body is a corpse.

    herb

    • masonblue says:

      I know of which you speak. In the Wenatchee Sex Ring case, for example, the prosecution relied on an overeager and unqualified ER doc in Wenatchee who testified that the female child ‘victims,’ who had initially denied being raped, had been vaginally penetrated multiple times by erect adult penises, or similar sized objects, to a reasonable medical certainty. Our expert from San Diego, whose name I have forgotten, reviewed the evidence and called bullshit. Every other expert with whom we consulted reached the same conclusion.

  2. masonblue says:

    BTW, masonblue and frederick leatherman are the same person, in case y’all didn’t know. Don’t know why my two comments showed up as masonblue instead of frederick leatherman.

  3. masonblue says:

    BTW, Millar’s advisor gave him the correct advice, although he also should have told him that earprint identification is junk science.

    One of the biggest problems we’ve seen in crime labs is people testifying as experts regarding matters beyond their expertise.

    Grubb certainly did that.

    Spoiler alert:

    So did the crime lab witness in Crane’s case, which I shall discuss in Part 2, manana.

  4. masonblue says:

    Fred Zain often drylabbed his results. I wrote an amicus brief on behalf of the National Association of Criminal Defense Lawyers in a case pending in the Fifth Circuit in which he drylabbed his results.

    We could prove it because the Bexar County Crime Lab in Texas where he worked did not have the necessary equipment to do the test that he claimed to have performed. Unfortunately, the evidence that he claimed to have tested was not available to retest because he had ‘mysteriously’ exhausted the sample. This would not have been the case, if he had performed the test that he claimed to have performed.

    Wonder of wonders, he had no laboratory benchnotes and the results inculpated the defendant who claimed innocence.

    Without Zain’s ‘evidence’ the State of Texas, in my professional opinion, lacked sufficient evidence to have persuaded the jury that the defendant was guilty.

    And that’s the way I wrote it up.

    As long as I’m telling an old war story, I shall add some information that y’all probably don’t know.

    The inimitable Mr. Zain fled West Virginia just before the roof fell in on him there for all of his fraudulent misconduct and perjury. The Bexar Lab hired him, not as a government employee, but as an independent contractor.

    In the case that I was handling the State of Texas argued that there was no misconduct attributable to the prosecution. Since he was not a government employee, they claimed that he was not their agent. Because he was not their agent, they said the conviction should stand.

    How ’bout dem apples.

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