LawPulse

According to a news report and a criminal defense lawyer, internal audits of the Illinois State Police crime lab's toxicology section reveal fundamental problems with the section's testing methodology.

According to a recent report from ABC 7 News, internal audits of the Illinois State Police crime lab's toxicology section reveal fundamental problems with the section's testing methodology.

Wheaton criminal defense attorney Donald J. Ramsell discovered an internal audit dated July 13, 2011 while defending a DUI case. Ramsell said the audit revealed that crime lab scientists were not using proper validations to ensure the accuracy of their test results. In particular, the data used for testing blood samples was inaccurate, he said.

According to the 2011 audit, control charts, which are statistical tools used to monitor the predictability of the testing process, were inaccurate, Ramsell said. This could have prevented crime lab technicians from knowing that the testing process was not working, he said.

According to Ramsell, what the audit reveals is simply "bad science." That bad science could lead to false positive or negative results, he said, meaning that some innocent people may have been convicted based on flawed blood toxicology testing. It may also mean that some guilty people went free, Ramsell said.

The machines used to perform toxicology analysis on blood are not like a computer or DVD player, which is "already built for an intended purpose," Ramsell said. "When you buy a gas chromatograph for a lab, it requires additional work in the lab to prepare it for its intended use." A gas chromatograph can be used to test many substances, not just blood or urine - Ramsell notes that similar machines are used to test the purity of whiskey - and so must be properly adjusted, he said.

Method validation

Ramsell said the Illinois State Police crime lab ran into problems by failing to use a valid testing method that had been checked and back-checked by others. Instead, he said, the Illinois lab invented its own methods. "When you invent your own method, you need to validate it," Ramsell said. Validation involves proving, testing, and defining the method's limits.

According to Ramsell, "method validation is an absolute pre-requisite for proving any test valid." Using a gas chromatograph without a validated testing method amounts to a "fundamental scientific error," he said. Method validation is a rigorous process that can involve hundreds of sample test experiments to ultimately determine the accuracy, precision, selectivity, sensitivity, reproducibility, stability, robustness, limits of detection, and limits of quantitation of the method.

Ramsell points to the testimony of state crime lab technicians. He says they have admitted that the lab has not conducted method validation studies to verify its testing methods, and that if those tests were conducted, the underlying studies and their data were not retained. For their part, state police representatives told ABC 7 News that validation studies "are [not] necessary for ISP to show its method is valid. The ISP uses a valid method in blood alcohol testing which is widely accepted in the scientific community." Read the ABC report at http://abc7chicago.com/news/forensic-failures-at-state-crime-labs-may-jeopardize-cases/998927/.

Ramsell is currently raising this issue in court on a case-by-case basis. The "saddest part," he says, is that because few judges and lawyers are scientists, they too often accept that a method is valid regardless of the underlying science. He points to the seventh circuit's holding in Jackson v. Pollion, 733 F.3d 786, 787-88 (7th Cir. 2013), which states that "the discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a 'math block.'"

Ramsell notes that the state's DNA lab has validated its methods; this issue is specific to the toxicology lab used for testing blood and urine, he says. The result is that "vast numbers of cases remain unproven" because "nobody ever bothered to check" the methods used by the state crime lab. For more about the challenges and limitations of forensic science, see The Judge's Corner on page 48.