Originally posted by SevenDay, Written by MARK DAVIS
Vermont’s forensic laboratory missed a December deadline to qualify for a key accreditation, potentially throwing into doubt the admissibility of evidence in hundreds of criminal cases across the state.
The Waterbury-based Vermont Forensics Laboratory knew for four years that it would have to meet tougher standards when its previous accreditation, based on less stringent scientific criteria, expired last month. Two weeks before that expiration, the lab requested and received a six-month extension for promising to improve.
The accrediting agency says the June deadline is the lab’s last chance to comply with international standards that most labs across the country have already met. Part of the Department of Public Safety, the Vermont Forensic Laboratory is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, a North Carolina-based nonprofit that has issued certifications to nearly 400 state, local, federal and international labs. It is the largest of four U.S. organizations that accredit forensic labs.
Interim lab director Tara Tighe, whose agency handles physical evidence for almost all criminal prosecutions in the state, said it could meet the June deadline.
“It’s a lot of hard work, but in six months, we should be there,” said Tighe, who has been in the top job since October. “We’re working hard on that.”
But at least one prominent Vermont attorney questions whether the state lab will ever be able to satisfy its accreditors. St. Johnsbury defense attorney David Sleigh challenged a slew of DUI cases in 2012 based on alleged shortcomings in the lab’s testing equipment — but his argument failed to win over the judge at that time. Sleigh said that this year he may challenge every piece of evidence handled by the VFL in his clients’ cases, citing its inability to meet modern scientific standards.
“It’s dog-ate-my-homework reasons,” Sleigh said. “Here is what they are saying in a nutshell: ‘We’re not capable of meeting international standards; please give us an extension. We don’t have the ability to be a scientific forensic lab; please give us an extension. They’ve known for four years, and they haven’t been able to do it.'”
Most concerning, he said, is the lab’s failure to document its testing processes with sufficient detail and rigor so that outside examiners can replicate the results.
Tighe contends that the lab has made progress in several disciplines. For example, it’s been able to perform studies and improve documentation for testing in the alcohol, firearms and drug departments. Most of the work required to meet the newer accreditation standards, Tighe said, has to do with improving written procedures and generating paper trails, not changing how lab workers handle evidence.
“It’s a lot of paperwork,” Tighe said. “There’s not a lot of things changing procedurally.”
The whole industry has been under pressure since a 2009 report issued by the National Academy of Sciences determined that forensic labs needed a “massive overhaul.” It found that some criminals had been released and others wrongly convicted based on faulty lab work. Many common forensic tests — including ones involving fingerprints, bite marks, and hair and fiber analysis — had never been subject to strict scientific review, according to the report.
The academy urged Congress to develop universal standards for labs and lab workers.
U.S. Senator Patrick Leahy (D-Vt.) responded: “I am troubled by the report’s general finding that far too many forensic disciplines lack the standards necessary to ensure their scientific reliability in court,” he said in 2009. “I am also concerned that forensic laboratories and their experts do not have uniform, mandatory accreditation policies.”
In response to the outcry, accrediting groups have urged labs across the country to meet tougher, so-called “international standards” — global requirements for personnel qualifications, scientific validation of test results, properly functioning equipment, record keeping and other criteria.
Accredited since 1999, Vermont’s lab has never made the grade. Instead, it has repeatedly been grandfathered in as part of ASCLD/LAB’s “legacy program,” designed to allow labs to buy time, and retain their official status, while they work to meet the more rigorous accreditation standards. Of the 400 accredited labs in the country, 40 remain on legacy status, including the one serving the state of New Hampshire.
After the 2009 report was released, ASCLD/LAB announced that it would begin to phase out the legacy program, meaning all labs would have to meet the tougher international standards when their current legacy certifications expired.
In recent years, top Vermont lab officials gave state legislators reason to hope. In January 2013, while discussing the lab’s breath and blood alcohol testing program, former lab director Peg Schwartz issued a report to lawmakers that stated “the program will meet accreditation standards when the laboratory is next reviewed in 2014.”
One year later, Schwartz reported more good news to lawmakers: The lab contracted with outside companies that meet international standards to maintain lab equipment and had begun to develop measurements of their equipment’s accuracy. The paperwork to achieve full international standards accreditation for the whole lab would be filed by the spring of 2014, she wrote.
But in mid-November, just days before its deadline, the lab painted a very different picture to ASCLD/LAB, according to documents provided to Seven Days. Acknowledging that “our expiration date is around the corner,” Swartz’s successor pleaded for additional time.
In a letter included in the documents, Tighe provided a litany of reasons — many of which predated Schwartz’s assurances to the legislature — for the lab’s inability to meet the deadline. The lab lacked a stable director: Former director Eric Buel retired in 2011, and his replacement, Schwartz, retired in October 2014. Additionally, Tighe said, lab workers were overworked and lacked sufficient managerial staff.
The letter also mentioned Tropical Storm Irene, stating that while the resulting floods did not damage the lab, the storm forced it and other facilities housed in Waterbury’s state office complex to close for five weeks in 2011.
Further, Tighe’s letter cited Vermont’s “heroin epidemic,” which she said caused a spike in the lab’s drug-testing unit and consumed lab workers’ time. She also wrote that moving into the lab’s “new, state-of-the-art facility” in 2010 actually hindered the accreditation effort. “While this is a tremendous improvement for the VFL,” Tighe said of the move, “it did require a lot of time and effort from all lab sections.”
Tighe did not specify what steps had been taken to meet international standards. Under a section labeled “optimism,” she told the ASCLD/LAB that the lab planned to form a “core audit team” to update protocols and compile paperwork necessary for accreditation. But she also noted that the lab was preoccupied with finding qualified workers and filling vacant management positions.
Nonetheless, ASCLD/LAB executive director John Neuner granted the Vermont lab a six-month extension in the legacy program. In a telephone interview, Neuner said he granted the extension largely because there had been no documented problems with the accuracy and integrity of the evidence produced in the lab.
“What’s most important is we have confidence in the results of the lab,” Neuner said. “Right now, I do. I have no objective evidence that causes me to be concerned about granting that extension. The evidence suggests to me that the lab is competent to do the things they are accredited to do.”
But Neuner said this would likely be the Vermont lab’s final extension; according to his agency’s rules, he’s prohibited from granting another one. The full board would have to vote for a second extension, which could only occur under “extreme circumstances,” he said.
In the next five months, VFL will have to meet international standards, submit to a full on-site inspection, fix any problems that the inspection team identifies and report back to the ASCLD/LAB’s board of directors.
If the lab can’t step up, its accreditation could be pulled.
And that, Sleigh said, would be akin to Christmas Day for defense attorneys, who could then challenge the validity of nearly every piece of evidence handled by VFL — by asking judges to throw it out or by convincing juries that it is unreliable.
Sleigh said he isn’t going to wait until the June deadline. He is going to argue that the lab’s extension cannot mask its shortcomings, and in the coming weeks he will start challenging the evidence against his clients.
A similar bid by Sleigh in 2012 was not successful. He then led a team that simultaneously appealed 28 DUI cases, again on grounds that the lab fell short of international standards.
Judge Mary Miles Teachout rejected the appeal, noting that the state lab was still comfortably under its legacy certification. But in her ruling, Teachout also suggested that the courts expected to see improvement soon.