Wednesday, January 28, 2015


It goes without saying that evidence seized at a crime scene must be properly collected and thoroughly tested. But too often the FBI and FDLE (Florida's state-wide investigative agency) have bungled the process of collection and testing making a mockery of justice in Tampa Bay area courts. 

A hair match
FBI matched Hair Sample
Every Florida citizen should be able to rely upon the honesty and integrity of evidence gathered and tested by police departments. Yet for years FBI agents under oath in criminal courts were giving false testimony about evidence in hundreds of criminal cases. For example, in many cases FBI agents testified that hair samples were not just a likely match, but a definitive match for defendants when collected at crime scenes for high profile cases such as kidnapping, murder, aggravated batter, sexual battery, assault, arson or burglary. Yet later DNA testing, years after conviction, establish that the hair samples were not in fact a match. Only now, years later does the FBI admit that these agents were simply lying under oath.

Even many early DNA tests are known to be flawed. At the advent of DNA testing jurors were told emphatically that scientific tests established links that have become undone by newer, better DNA tests that establish no links in tested samples.

All of this should remind jurors, judges and prosecutors in pending criminal cases that science is not always right, and that even when science is correct, human error, lapses of judgment or a predisposition of the tester may invalidate the process. These flawed evidence cases often seem to emerge in the most gut-wrenching high profile cases - those in which police and prosecutors are under the gun to do everything possible to get a conviction, to get a believed perpetrator of a violent act off the streets. Instead of finding justice the real criminal commits further crimes while the justice system becomes of mockery of fairness.

Judges, prosecutors, defense lawyers and jurors should be aware of the following seven factors that often are in play in false evidence cases:

First, evidence is mishandled. The priority for any officer upon entering a crime scene is self protection. Is the perpetrator still at the scene? Is the perpetrator armed? Then the officer looks to find, protect and help any possible victim. Because the sanctity of the crime scene is not really their highest priority, it's not uncommon for the evidence to become mishandled. Yet few officers will admit as much even under oath at a criminal trial.

Second, evidence is mislabeled. Crime scenes are rarely as depicted in television. Often it's very chaotic, there may be blood strewn everywhere. There may be multiple possibilities of weapons. Any evidence with its location must be registered, bagged and logged. Yet often the evidence has been moved or is simply in such a mess by the time the agents in charge of handling it arrive, that proper labeling is problematic. 

Third, evidence is ignored. That rope under the bed, what could that possibly have to do with a stabbing? And if the evidence is never recovered or remembered it will never come into play. The defense attorney will not be given access to most crime scenes until long after it has been thoroughly cleaned.

Fourth, inconsequential evidence is given greater weight than it should. The value of evidence is based on how officers and prosecutors use it. It's not unusual in criminal cases for defense counsel to find that minor pieces of evidence are being used to trump up the type of criminal charge filed.

Fifth, evidence is improperly tested or misinterpreted. How is that labs continue to present flawed results? A lot of the problem is inappropriate contact between prosecutors, investigators and the testers in which testers are told what results are needed to convict. Testers should be blind to other information in the case that is not necessary for proper testing. The testing should conform to the scientific method in seeking the truth. The testing should be consistent. The testing should be retested and calibrated against other testers on a regular basis so that outliers are reduced. Further, jurors should be allowed to hear about other results from the laboratory which were flawed.

Sixth and most disturbing is prosecutorial misconduct in persuading law enforcement to fudge facts toward guilt by claiming plenty of other circumstantial and direct evidence of guilt.

Clearly, for the criminal justice system to work effectively in Clearwater, Florida every criminal defense lawyer must demand that sworn statements from police officers, FDLE agents and FBI agents are true and honest. And that the evidence they testify about is properly obtained, labeled, and unbiasedly tested.