Forensic scientists make mistakes. At the end of the day, they are human. But in criminal law and forensic science or just plain old science in general, you have to report out and document your errors. Apparently, this major legal lesson and scientific precept was lost on the Colorado Department of Public Health and Environment Laboratory when it came to HS-GC-FID for blood ethanol analysis.
EMPLOYEE 18 continues: “When I started working as an analyst, EMPLOYEE 6 and I were running blood ethanol tests. The lab has a Redo book. Anytime we conducted a test that yielded inaccurate results, we were supposed to enter that test in the Redo book and then retest the sample and compare the new results to the old. But I was never told about the Redo book during my training and no one else ever told me about it. There was also no supervision over samples that had to be retested because no one checked the Redo book. In approximately the Fall of 2011, I tested a sample that EMPLOYEE 6 had already tested and put it back in line for a Redo without knowing that it was a felony draw. I made a mistake when I ran the test by possibly pulling the wrong sample and sending a report with the wrong result. Had I known there was a Redo book, I could have compared the results of EMPLOYEE 6’s initial test to the results of my test. I was not even aware that I was supposed to compare my results to the earlier results. It is more likely that I would have discovered my own mistake had I been trained properly.”
EMPLOYEE 18 adds: “SUPERVISOR 3 reprimanded me after my mistake, acknowledged that I was not properly trained, and told me I could have been fired if the results from my test had been forwarded to the District Attorney, but s/he did nothing to follow up and ensure that I didn’t make a similar mistake again or to assure that I was taught everything that was missing from my training. I then spoke to EMPLOYEE 4 and asked her/him what I should do to ensure that I was properly trained. EMPLOYEE 4 had EMPLOYEE 1 watch me do my work about two or three times, but I did not receive any additional training.”
EMPLOYEE 1 continues: “The Redo Book is part of the alcohol bench. Alcohol tests yield four numbers, which must all be within 5% of each other. If any of the samples are outside that range, we are required to record all four values in the Redo Book, re-test the sample, and then report the re-test results in the Redo Book. EMPLOYEE 6 did not train me on the use of the Redo Book during my alcohol bench training. I first learned about the Redo Book sometime after I completed my training.”
EMPLOYEE 2 continues: “I underwent training for blood alcohol testing subsequent to being trained as a blood drug screening analyst. That training lasted approximately three weeks. I believe I was trained by EMPLOYEE 14, who no longer works here. I also shadowed SUPERVISOR 4 a lot. SUPERVISOR 5, who was in charge of quality control for data packets and reports, also helped me a lot by showing me many of the procedures for the lab. SUPERVISOR 4 and SUPERVISOR 5 taught me how to use the Redo Book. By the time I completed my training, 1 knew how to use the Redo Book. I feel like my training was adequate. I’m not familiar with the current training is like for the blood alcohol bench because I have not worked there for about a year and a half. “
This is a multi-variable problem.
- First, the idea that there is a super secret and undisclosed “Redo Book” is a major legal problem.
- Second, the notion that the analysts and in particular the supervisors in the laboratory have not been trained in the legal reality that they operate in is shocking.
- Third, it is flat out bad science.
- Fourth, the notion that there is enough of a need to redo tests due to error that it necessitates the need for such a book is also alarming.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court of the United States held that prosecutors must disclose materially exculpatory evidence in the government’s possession to the defense. “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused– evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness. Surely this “Redo Book” all meets that standard. Yet, it was never disclosed.
How much training do the analysts and supervisors get in Brady? Probably none.