This story was supported with funds from Spotlight DC—Capital City Fund for Investigative Journalism.
It is probably no surprise that former Metropolitan Police Department Chief Peter Newsham doesn’t think much of City Paper. “You guys have had a bad reputation for 30 years,” he says in a recent interview. Nevertheless, a recent article caught his eye.
The paper’s investigation of the D.C. crime lab, which resides in the Department of Forensic Sciences, struck him as unusually accurate for a news organization that routinely criticized Newsham’s four-year tenure leading MPD. The problems the article documented that accounted for the lab’s unraveling—most notably, meddling by federal prosecutors—are issues that also infuriated Newsham before he left to become Prince William County’s top cop last year.
“That’s not the way you serve the community, using the strength of the U.S. Attorney’s Office to fight your personal battles,” Newsham says in an exclusive interview with City Paper. He notes he repeatedly raised this concern with leaders in that office over the years. “I watched it very closely. And I just thought it’s disgraceful. What happened?”
‘D.C. is often used as the example of why independent labs don’t work.’
Newsham is far from the only official who worked under Mayor Muriel Bowser to harbor that view, as the administration has persistently argued that prosecutors overstepped their authority in ordering up audits of the crime lab’s work and leveraged the errors uncovered by those investigations to seize more control of evidence processing in the District. But Newsham’s perspective is also representative of a growing concern among many in D.C.’s criminal legal community: Proposed reforms to the crime lab’s operations won’t make a difference if the feds can still decide to exert their will.
“Independent labs require a commitment from all stakeholders in order to exist to function to succeed,” says Sarah Chu, senior advisor on forensic science policy for the Innocence Project. “And in the forensic science community, in the criminal legal community, D.C. is often used as the example of why independent labs don’t work.”
The D.C. Council has been advancing legislation to overhaul the lab since this summer, in a bid to finally get it working again after its accrediting body said it wasn’t fit to keep testing evidence last year. That bill is now teed up to receive two votes and pass later this month. Just about every political actor in the city, even those who disagree with critics of the U.S. Attorney’s Office for D.C., believes some changes are necessary to restore confidence in the lab after it endured two years of scandal. But the question of what form those changes take is much more divisive.
People who have worked for and with the department see some reason to be hopeful about the bill, which is backed primarily by Ward 6 Councilmember and Judiciary Committee Chair Charles Allen. They expect the new bill will shore up the lab as an independent entity, giving it a bit more distance from both prosecutors and the mayor to encourage the even-handed testing of evidence, and add new mechanisms to root out mistakes before they become too serious. But some people also worry that there are some things the legislation simply can’t fix, based on the lab’s tumultuous history.
City Paper has spoken to more than a dozen people both inside and outside of DFS working on the issue, in addition to several lawmakers involved in drafting the bill. They paint a picture of legislation that will make changes on the margins, but leave some of the structural problems impacting the crime lab unaddressed. That view was bolstered by a highly critical investigation of the department from D.C. Auditor Kathy Patterson, released Thursday, which argued that prosecutors “undermined the independence” of the lab with their actions.
A better relationship between prosecutors and District officials may be the only thing that prevents similar meltdowns in the future, they say, unless D.C. ever gains full control over its own affairs. Others have pitched a full reversion of forensic science work back to the federal government, arguing that the city may never be able to operate an independent lab under current conditions.
“I don’t think any new law will fix this,” says Jenifer Smith, who was forced to resign her post as DFS director last year. “I really believe that this experiment has happened twice. Different director, different mayor, different resourcing, different city council members, everything was different.”
In 2015, Smith’s predecessor, Max Houck, was forced out amid a similar dispute with prosecutors over DNA testing. The drama of the past two years has centered on ballistics, instead, after the lab mistakenly concluded that two bullets were fired from the same gun and scrambled two separate murder cases. Exhaustive investigations and audits followed, just as they did seven years ago, yielding no criminal charges. Smith believes the two incidents are inextricably linked.
“On one side, there was one element that was always the same, and that’s the United States Attorney’s Office,” Smith says. “And if the United States Attorney’s Office brings the full force of the federal government to play, it’s impossible for any agency leader, any mayor to stand up to that.”
The USAO, for their part, strongly disagrees that it meddled in DFS’ independence. USAO’s public information officer Bill Miller tells City Paper via email that, independent auditors hired by federal prosecutors discovered serious issues, including fraudulent behavior, that led to DFS’s loss of accreditation.
“As prosecutors charged with ensuring the constitutional rights of defendants are protected, we have an independent duty to ensure that our prosecutions use forensic evidence and testimony that is reliable and based on sound scientific principles,” he says via email.
“These were problems of DFS’ own making,” Miller continues in the email. “Faulting prosecutors for uncovering the problem and disclosing it to defendants and the Court as constitutionally required is asking prosecutors to prioritize process over the integrity of the criminal justice system.”
The Bowser administration did not respond to multiple requests for comment via Interim Deputy Mayor for Public Safety and Justice Kevin Donahue. Donahue, the city administrator, is filling in for former Deputy Mayor Christopher Geldart, who was forced to resign in October after fighting a man in a Gold’s Gym parking lot and facing scrutiny for living outside the District (criminal charges against Geldart in Virginia were recently dropped). Geldart had previously committed to leading an expansive review of cases handled by DFS in the wake of this scandal, but it’s unclear now how that process is moving ahead.
Reforming the regulators
D.C. is replete with oversight boards and commissions, but it is rare that they have actual teeth. The situation for the city’s crime lab is no different.
Many people who watched the dissolution of DFS believe that federal prosecutors overstepped in circumventing the Science Advisory Board, which is designed to adjudicate disputes about the accuracy of its lab testing. But even critics of the USAO admit that the SAB is fundamentally flawed and needs to be reformed.
Allen’s bill would put a focus on giving the board “a lot more teeth,” he says. The legislation expands SAB’s membership, from nine to 11, and adds new requirements that members have experience with criminal prosecution and defense as well as specific areas of forensics (instead of just “scientific research,” broadly). Crucially, the new board would get full access to the crime lab’s books in addition to funding for the first time to hire staff and conduct independent research.
It even gets a new name to reflect its new focus: the Science Advisory and Review Board, SARB for short.
This all makes a lot of sense to people familiar with the old SAB. Current and former board members have complained in the past that DFS (and often former director Smith specifically) controlled what the group could review and even what it discussed at its meetings (concerns Patterson echoes in her report). Allen compares it to DFS “blocking downfield” to hide information from SAB that could have exposed problems at the lab sooner.
“All of our agendas were prepared by the lab, they only asked us to review and comment on specific things,” says Henry Swofford, a sitting SAB member with experience working in state and federal forensic labs. “But that’s what an advisory board does. It’s different from an oversight body. We need to be specific about what we want the board to do going forward.”
Still, former MPD Chief Newsham believes the SAB could have done more to get around the lab’s intransigence, perhaps hiring its own team of experts instead of allowing federal prosecutors to pick an audit team (as they did in 2020). In fact, Newsham suspects the Council could have tried to fire the board to provide a clear statement that “you’re not doing your job” in a sign to the USAO to back off and let local officials handle the matter. Empowering the new board to conduct its own research could alleviate the need for such an aggressive step, and Patterson specifically recommends that the city provide more resources for the lab.
“Something we’ve heard consistently from past SAB members is: ‘We’re all volunteers,’” says Sam Harahan, a longtime court reformer who drafted the legislation creating DFS and has assisted in pulling together Allen’s new bill. “So they’re saying, ‘When a particular question comes up about ballistics analysis or something, it may be that it takes more time than we could do in a couple of hours to get to the answer. So we may need to hire the University of North Carolina’s forensic team or something, and we ought to have a modest budget to do that.’”
Harahan is more skeptical about the idea of putting lawyers on the reconstituted board based on what he’s seen in other states: “If you needed surgery, would you want your family lawyer in the operating room?” he asks, arguing that lawyers tend to slow down this work. He also believes Allen’s bill needs to be strengthened to clarify that the board has “full and unfettered access to any and all case materials in disputes referred to them, worrying that the existing language is too weak and could be exploited. Patterson specifically calls for “clear authority for access to laboratory records” for the SAB in her recent report.
“DFS staff cannot play traffic cop, deciding what the SAB gets and when,” Harahan says.
Political insulation?
Council Chairman Phil Mendelson traces many of the crime lab’s problems back to Houck, its first director. While Mendelson agrees that he and his colleagues could have strengthened the SAB and other oversight mechanisms in creating DFS a decade ago, he also believes the 2015 scandal that led to Houck’s resignation had the agency “knocked back on its heels” from its inception.
“If you get a good director, really doing a great job standing it up, then it just sets the agency off on a good trajectory,” Mendelson says.
Similarly, he believes Smith was a bit of “a problem” for the lab over the past few years, and, plainly, Bowser agreed. She asked for Smith’s resignation last May, not long after the lab was stripped of its accreditation and was forced to start outsourcing evidence testing. Smith has persistently argued that many of her misfortunes were caused by undue pressure from federal prosecutors, but she also feels Bowser used her as a scapegoat.
“Any time we took any action, I ran it all the way to the top,” Smith says, arguing that she fully briefed everyone from the Mayor’s Office of Legal Counsel to Bowser’s deputy mayor for public safety and justice on her handling of the accusations of testing irregularities from prosecutors and their auditors. Internal correspondence obtained by City Paper appears to confirm this assertion, with Bowser’s official responses to prosecutors closely mirroring Smith’s complaints about their intervention in the lab’s affairs.
Smith felt she had Bowser’s support to pursue accreditation from a different body to get the crime lab testing evidence again as the scandal around the lab worsened and began talks with a new accrediting body. But she suspects Bowser began feeling the pressure from the Council and Attorney General Karl Racine, who publicly called for Smith’s removal, and reversed course.
“She agreed to give me two weeks [to secure the new accreditation],” Smith says. “Suddenly, there was an announcement in the paper that came out of Deputy Mayor Geldart’s office that my resignation had been turned in, and I was going to be leaving. There was a lot of confusion … And the accrediting group we were working with called and said, ‘Who are we dealing with now? If she’s leaving, we’re not having those discussions.’”
Add this all up, and Allen sees two problems to solve with the department’s leadership: The District needs to hire officials that can restore confidence in DFS while also insulating them from the type of political maneuvering Smith describes.
To address those issues, Allen’s bill adds a new requirement that the lab’s director have at least five years of experience managing employees in either a government lab or private company, but removes the stipulation that applicants must have spent at least six years in research settings in order to broaden the pool of applicants. Still, Allen suspects it will likely be difficult to hire a qualified director after the last two DFS heads were fired in such messy fashion—a fiscal impact statement prepared for Allen’s bill suggests Bowser intends to spend $200,000 on a recruiter to find a new DFS head. After forcing Smith out, she installed Anthony Crispino as the department’s interim director, then kept him on long past the six-month limit for temporary hires (Allen’s bill would specifically bar this arrangement at DFS).
The legislation would also create a new, Council-confirmed chief forensic sciences officer serving under the director, empowering them to focus on the lab’s testing procedures specifically and allowing the director to focus elsewhere.
“We’re talking about having to build this thing up from the ground, and that is a unique and special skill set that doesn’t necessarily always track with someone who’s also the chief scientist,” Allen says. “We want to have a chief scientist be the chief scientist, and not have to deal with the politics of the rebuild … and then we’re gonna have somebody else whose job it is to help rebuild this thing from the ground up. And they’re the one that is going to catch the political pressure.”
But Allen also wants to keep the DFS director somewhat removed from the politics of the day. The legislation would give the agency head a six-year term, rather than four years, so the director’s fate is not so closely tied to the mayor’s. This mirrors how some federal agencies like the FBI operate, with its director receiving a 10-year term meant to outlast even a two-term president. The bill requires a “written finding of good cause” if the mayor hopes to remove the DFS director, and gives the director the right to appeal that decision.
Racine is supportive of Allen’s bill, and says in an emailed statement that the Council must “restore the integrity of scientific testing and results in the District’s criminal cases.” But he notes that DFS also needs leadership “with a commitment to transparency and quality assurance to ensure that we restore trust in the lab, which has failed to do its job over the last several years and lost its accreditation.”
“What’s most important is that we create as much independence as possible, and we create as many checks and balances as possible, and we isolate the agency from politics as much as possible,” says At-Large Councilmember Robert White.
Harahan hopes that the legislation can achieve this, reasoning that simply firing the agency head whenever problems crop up “completely undermines the process of building a team, building a leadership structure” within a relatively new lab like DFS. Ideally, he’d rather see prosecutors approach the mayor if they have problems with the lab’s methods and work out a solution internally, rather than simply calling for the director’s head. This bill could “limit the mischief” from the USAO when it comes to the lab’s affairs, he says.
But Harahan is also realistic about the power imbalance between the feds and everyone else in the forensic science ecosystem. For instance, he felt prosecutors improperly influenced the decision by the lab’s accrediting body to sanction DFS (an accusation that the group, American National Standards Institute’s National Accreditation Board, denies). When the feds can always threaten to “subpoena your records, well, that scares the shit out of them,” Harahan says.
“It’s easier for me to just pull the accreditation than it is to stand up to you,” he says.
‘They had the power to shut this lab down’
That is the sort of tactic that has Harahan and others wondering how much local legislation can ever solve the structural problems plaguing D.C.
Newsham, for instance, is among those who believe that a single prosecutor had an outsized role in manufacturing the lab’s present problems. Michael Ambrosino, who oversaw forensic science matters for the USAO before retiring last year, had a “personality conflict” with Smith when she challenged his scientific conclusions, Newsham says. Ambrosino has not responded to repeated requests for comment.
“He believed that he was the expert in DNA evidence and nobody could tell him any differently,” Newsham says of Ambrosino. The former top cop says he raised the issue repeatedly with Ambrosino’s supervisors (including multiple U.S. attorneys) but was ignored. In this sort of environment, why would these legislative reforms make a difference?
“The U.S. Attorney’s Office is very narcissistic,” Newsham says. “They are the sun, and they expect all of us planets to all revolve around them … And they had the power to shut this lab down. That’s quite a bit of power.”
That’s why Smith is so pessimistic that the dynamic between prosecutors and the lab will ever change, arguing that the feds easily ignored the lab’s statutorily required independence and the SAB as they led audits of it over the years. With that history, she doubts the feds “will honor a local D.C. law or any new ‘board’ set up to run the lab.”
A former FBI scientist herself, Smith would rather just turn forensic testing back over to federal agencies. An alphabet soup of agencies (including the FBI, the Bureau of Alcohol, Tobacco, and Firearms, and the Drug Enforcement Agency) ran such services for the District, and many have started doing so again in the wake of DFS’ struggles. Smith expects this would end up saving money for D.C. in the long run, as it’s currently paying many DFS employees who can’t actually do any evidence testing, and eliminate any potential conflict with the USAO.
“If the federal prosecutors have a problem again, then it’s all in house, it’s all within the Department of Justice,” Smith says. “The FBI and ATF labs are considered to be the finest labs in the U.S. Why shouldn’t these powerful labs be put to the task of solving the epidemic of gun crime that is occurring in D.C.?”
But Smith admits this is an imperfect solution. “It is very difficult for those federal laboratories to ever say ‘no’ to the federal United States Attorney’s Office,” which undermines the independence of testing results. Newsham, who worked at MPD in the days when the feds controlled evidence testing, remembers other problems too, with big delays in getting results on anything but the highest profile cases.
That history accounts for a big part of Harahan’s determination to see the lab revived as an independent entity, even with all the hurdles it faces. He’s hopeful that President Joe Biden’s appointee to run the USAO, Matthew Graves, will be more respectful of these boundaries now that Ambrosino is out of the picture (and he says “there are efforts under foot” to make the case to Graves personally). Patterson also specifically recommended that Bowser play a better role as mediator in disputes between DFS and prosecutors.
Mendelson, too, is optimistic that some personal lobbying from the Council will make a difference. He doesn’t lend as much credence to Harahan’s theories about the USAO’s detrimental influence on DFS, but he thinks it’s at least worth a dialogue to “see if there are problems” with that relationship.
“I think it’s fine to have a conversation with the U.S. attorney and say, ‘Look, what about these rumors about someone in your agency,’ just putting it out there,” Mendelson says. “It doesn’t have to be a public discussion.”
That may be the best District leaders can hope for, for now. White argues that merely passing the reform legislation is a crucial first step to restoring trust in DFS throughout the criminal legal system, and that includes prosecutors. The Council looks likely to do so before the year is out, with a first vote set for Dec. 6. If all goes well, it should pass at the Council’s final meeting of the year on Dec. 20.
“Nothing succeeds like success,” White says. “And when our crime lab is operating as it should, reliably, consistently, there will not be a reason for federal prosecutors to complain.”
The Innocence Project is hopeful for even deeper changes. Nathaniel Erb, a state policy advocate for the group, noted that overhauling DFS could be a chance to improve discovery practices in criminal cases in general in D.C.
“I’m hoping that that’s another aspect of this, this transparency within science, but also larger transparency within criminal justice in D.C. that is focused on and hopefully will spin out to perhaps the Council looking at that issue more broadly in the future,” he says.