This story was supported with funds from Spotlight DC—Capital City Fund for Investigative Journalism.
In 2021, with D.C.’s crime lab in crisis, Mayor Muriel Bowser promised to make things right. The District government would lead a sweeping review of evidence the Department of Forensic Sciences handled to root out any additional errors that might have implicated innocent people, and pick up the tab for the whole project, too.
“The District owns this responsibility,” Bowser’s then-Deputy Mayor for Public Safety and Justice, Chris Geldart, said in December 2021 as he announced the project following the release of a damning report describing a series of problems within the department.
But nearly two years later, Bowser’s administration has failed to even start the complex process of retesting this evidence, which will likely take years to complete and was once slated to kick off on May 15. There is no timeline for when the project will ever get off the ground, and evidence retesting has been stalled due to Geldart’s sudden resignation amid scandal, conflicts between defense attorneys and prosecutors, and a political tug-of-war between the mayor and the D.C. Council, according to hundreds of internal documents City Paper obtained and a dozen interviews with attorneys, lawmakers, and others monitoring the issue.
The failure amounts to a broken promise to the thousands of people who were convicted in the past 11 years by prosecutors relying on potentially faulty evidence that DFS handled. Those people could deserve to go free if the crime lab made the same sort of mistakes that improperly linked two 2015 murder cases. In essence, the D.C. government doesn’t know whether it’s been sending innocent people to prison—and it isn’t putting much effort into finding out.
“This unwarranted delay is life-altering for these incarcerated residents and their families,” says Hanna Perry, an attorney with the special litigation division of the Public Defender Service of D.C., adding that PDS has begun its own review of potentially impacted cases, without waiting on the city.
“If the mayor takes seriously the very real prospect that people are wrongfully imprisoned based on deeply flawed forensic evidence and testimony, she should act as swiftly and urgently as the government does when seeking to incarcerate people accused of crimes,” Perry says.
‘A Massive Undertaking’
Geldart’s sudden resignation amid scandal this past fall certainly didn’t help the case review process, and the city has repeatedly blown its self-imposed deadlines for the initiative, internal memos, emails, and city contracting documents show. Bowser and her deputies have said almost nothing publicly about the evidence retesting process since it was announced in December 2021. There have been no public meetings, or publicly accessible meeting minutes about the project, which means basic questions about the review’s scope and cost remain unanswered. Initial estimates the city prepared and City Paper obtained suggest as many as 15,000 pieces of evidence collected over the past decade will need to be retested at a cost of “several million dollars” per year. There’s currently no set timeline for the project, but some officials suspect it will take years to complete.
Geldart’s replacement, Acting Deputy Mayor Lindsey Appiah, has rebuffed City Paper’s repeated efforts over several months to contact her about the status of the project. A spokesperson for Appiah has not responded to emails or calls. And when City Paper approached Appiah in person at an event in March, she declined to answer questions, citing a scheduling conflict. Her chief of staff pledged to find time on Appiah’s calendar for an interview, but she also did not respond to follow-up emails. Susana Castillo, Bowser’s chief spokesperson, said in April that Appiah would not agree to an interview. Instead, Castillo promised to provide a written statement, but did not do so by publication time.
But emails and other internal correspondence provided to City Paper in response to a series of Freedom of Information Act requests suggest that the administration presently blames the delay on legislation the D.C. Council passed last year to make DFS independent from the mayor’s office. That bill has not gone into effect, but it prompted a new round of fighting during this year’s budget cycle, and Bowser’s deputies argue that the crime lab’s independence complicates their efforts to take the lead on the retesting process through Appiah’s office. “Thus, the process is currently on hold pending clarity of agency status,” the Office of the Deputy Mayor for Public Safety and Justice wrote in response to performance oversight questions from the Council’s judiciary committee in February.
Still, Matthew Graves, the U.S. Attorney for D.C., tells City Paper that he is broadly pleased with the progress D.C. has made in finding a project leader. His federal prosecutors have been advising the project alongside the Public Defender Service and Attorney General Brian Schwalb. Graves says there has been consensus “on the overwhelming majority of issues we discussed,” and there are just a few details left to be worked out before retesting can begin. Others involved do not share his confidence.
“This is going to be a massive undertaking, and it’s going to be really expensive,” he says. “The last thing anyone wants is to have to do it multiple times or redo things or realize that there were errors in the way that cases were identified.”
For his part, Schwalb, who just took office in January, says that he views the retesting process as “critical,” but he is still getting up to speed on the details.
‘Hundreds of Convictions’ to Review
The million-dollar question for the city is: How much of DFS’ work will need to be reviewed from its 11 years of operation?
For now, answers are scarce. Although the scandal that precipitated the lab’s current condition largely involved scientific disputes about ballistics testing between DFS officials and prosecutors that took place between 2019 and 2021, all of the department’s capabilities are currently under the microscope: The lab lost its accreditation in April 2021 and still hasn’t been able to earn it back, forcing prosecutors to pay for the independent testing of firearms, DNA, fingerprints, and other evidence. (DFS officials say they hope to regain accreditation by the spring of 2024, and Bowser recently appointed the city’s chief medical examiner as the new interim head of the lab to help manage that process.)
The city’s retesting regime could potentially include all of the lab’s work over the past decade. The undertaking is so large that the city wants to hire a private contractor as an “independent project executive” to manage the process, per interviews and documents City Paper obtained. The contractor will have to track down all of the cases that involve evidence DFS handled, determine whether those cases resulted in criminal charges or convictions, manage the retesting of that evidence by other, independent labs, and notify anyone impacted by any DFS errors.
“There are very few entities that are going to have the bandwidth to be able to go in to organize such a re-review,” Graves says.
Bowser’s initial December 2021 order on the evidence retesting project directed DMPSJ to find a project manager using input from an “ad hoc committee” that includes public defenders, federal prosecutors, the attorney general’s office, the Mayor’s Office of Legal Counsel, the chair of the Council’s judiciary committee, and the D.C. Auditor.
Auditor Kathy Patterson, who recently released a scathing report detailing how prosecutors meddled in the lab’s affairs, says she has not been invited to participate in the process. “My invitation must be lost in the mail,” she says.
The ad hoc committee started meeting in late December 2021, documents released in response to City Paper’s FOIA request show, and started formal discussions in January 2022 about what they’d like to see in a project manager and how the review should unfold. But disagreements about many of these details cropped up soon afterward and bogged down proceedings.
Top PDS officials objected to some aspects of an initial proposal from USAO and OAG in a Feb. 11, 2022, committee letter. Public defenders argued the standards for a project manager “must require a greater degree of scientific rigor than is currently contemplated” for the retesting. And they wanted stricter safeguards in place to ensure that anyone retesting evidence wouldn’t know what conclusions DFS reached when it first examined it, avoiding “cognitive bias” in the retesting process (an issue currently roiling the forensics field).
Graves says these disputes about “some very technical scientific issues” represented the “limited areas of disagreement” between prosecutors and defense attorneys. He suggests that some of the methods to mitigate bias the defense attorneys proposed are so novel that “including these procedures could very well result in a situation where there are no applicants deemed ‘qualified’” to win a contract to project manage the evidence resting, and his office raised these concerns in the deliberations.
Signs of Progress?
By the summer of 2022, the two sides began exchanging drafts of documents detailing standards for the project manager with passing references to the importance of bias mitigation, documents City Paper obtained show, including a much shorter list of priorities for the job. The back and forth continued through July 2022, but by January 2023, Megan Reed, formerly a top policy adviser at DMPSJ, wrote in a memo that “the group had refined the draft but had failed to fully reach consensus.”
Almost none of this work was happening in public. Even Ward 6 Councilmember Charles Allen, then the chair of the judiciary committee, told City Paper in August 2022 that he hadn’t seen many details at all on the project, including its budget, and wanted to “see [city officials] work with a bit more urgency here.”
And briefly, it seemed as though they had. In late September 2022, DMPSJ officials began drawing up plans to move $1.3 million in DFS funding to Appiah’s office to launch the project and pick a contractor, according to emails and memos from that time. The goal was to include the funding in the new budget for fiscal year 2023 (with the anticipation that costs would escalate in subsequent years). By early November, the emails show that DMPSJ started holding meetings with the ad hoc committee about issuing a request for proposals to find an project manager and to finally get the evidence retesting project off the ground.
DMPSJ posted the RFP publicly on Nov. 8. A copy of the document included in records delivered to City Paper shows the broad priorities for the contractor and the review process:
- The scope of retesting would include all of the fingerprint and firearms analyses conducted by the department between its establishment in January 2012 and when it lost its accreditation in April 2021. The project will likely include about 30,000 pieces of evidence, with about half of those contributing to criminal charges that require more careful review.
- The project manager should have “substantial experience managing matters involving large document collections and productions” and “experience working in the criminal justice system.” They should be able to manage subcontractors examining the evidence in a fair and unbiased fashion, in addition to other requirements.
- The RFP leaves it to applicants to propose a price for the work, but suggests an initial term of one year followed by four option years.
Appiah wrote in an email to the ad hoc committee on Nov. 4 that she expected the contract to be ready for the Council’s approval by either January or February 2023. She expected to make a formal award in April, and by May 15 she hoped to have a final list of “cases for reexamination,” with the review process kicking off soon afterward.
None of that ever happened.
Members of the ad hoc committee complained about “a number of issues with the solicitation,” according to a memo from Reed, Appiah’s former policy adviser. City Administrator Kevin Donahue (filling in after Geldart’s resignation) agreed to withdraw it by Nov. 21. Committee members wouldn’t discuss what led up to this decision, but emails from the time suggest that both prosecutors and public defenders raised concerns about how the RFP described the qualifications for potential bidders.
Another factor: Reed wrote in the January 2023 memo that only two bidders expressed interest in the project manager job in a standard “pre-bid conference” convened before the agency posted the RFP, which also “informed” the decision to pull it back and address some of the issues Graves raised.
A Budget Blockade?
Progress has ground to a halt since then.
Reed wrote that, as of Jan. 25, she had had no further discussions with the ad hoc committee (in fact, she wrote this memo as she prepared to move over to Donahue’s office, leaving DMPSJ without its main point of contact on the project). Bowser appointed Appiah to fill Geldart’s shoes in early January, and the acting deputy mayor managed only sparse discussions with the ad hoc committee afterward, according to internal emails. Committee members also confirmed that, as of May 2023, the city still has yet to reissue the RFP or pick a contractor.
One reason for the delay could be Bowser’s ongoing tussle with the Council over the lawmakers’ efforts to make the crime lab fully independent of the mayor, a move designed to protect the lab from some of the political machinations buffeting its leaders over the past several years. If the Council is ultimately successful, Reed wrote in her memo that DMPSJ believes it needs to transfer management of the retesting regime over to the Science Advisory Board, which has oversight over DFS.
But the mayor slipped language into legislation supporting the upcoming budget that would keep DFS under her auspices. Allen’s successor as judiciary committee chair, Ward 2 Councilmember Brooke Pinto, agreed to partially support this move and has advanced a proposal to delay the lab’s independence from taking effect until Sept. 30, 2024. Pinto argues that the advisory board isn’t ready to take on oversight of the department yet, let alone the retesting effort.
“There are a lot of benefits that could be made by having an independent structure, but it’s not where we are right now,” Pinto says, noting that the SAB has only met once this year due to Bowser’s delays in appointing members to the panel. “They are certainly not yet equipped to take on such an important function of overseeing an agency that has had so many issues in the past, and that we, as a city, need to be operational.”
But there’s no guarantee that the full Council will agree to give up DFS’ independence.
Several lawmakers raised concerns about the mayor’s proposal during the Council’s May 3 budget markup meeting, including Allen, who called it an attempt by Bowser to get a “second bite at the apple” after the Council’s reform bill passed easily last December. Chairman Phil Mendelson will have a good deal of influence on the matter, and he says he’s still making up his mind ahead of the Council’s first vote on the budget on May 16. He adds that he generally takes a “dim view to the mayor trying to revisit bills that she didn’t like, but didn’t stand up and speak about at the time.”
“I am going to give the mayor the benefit of the doubt and assume she’s operating in good faith here,” says Ward 5 Councilmember Zachary Parker. “That does not mean that we have to accept the proposal.”
This tug-of-war over control of DFS amounts to even more uncertainty for the retesting project, as the mayor will likely wait until the conclusion of the budget process this summer before moving forward with the project. The political battle also raises serious questions about how Bowser will handle the project if the Council maintains the lab’s independence.
“It is imperative that the executive have buy-in on continued implementation and the need to retest these cases,” Pinto says. “And I think that that is true whether the agency reports to the mayor or is independent. That buy-in is very important to the actual success of that plan.”
In the meantime, Perry, the public defender, says her office is planning to do what they can on their own.
“That process is labor intensive and slow,” she says. “It involves combing through tens of thousands of pages of transcripts, in order to identify the cases most infected by flawed DFS evidence. Furthermore, this review is being conducted by a small number of lawyers who already have heavy workloads entirely separate from this review. Worse still, the review is limited only to cases where PDS provided the representation at trial, which excludes a large number of people who did not have PDS attorneys at trial.”
‘One Innocent Person in Prison Is Too Many’
John Hollway, executive director of the University of Pennsylvania’s Quattrone Center for the Fair Administration of Justice, is not surprised that D.C. is struggling to get a retesting project like this off the ground.
Hollway has studied other cities to take on such efforts in the wake of forensics scandals (including similar work in Austin, Texas), and he’s seen conflicts between prosecutors and defense attorneys crop up in pretty much every instance. Add in D.C.’s unusual relationship with its prosecutors, who are totally controlled by the federal government, and things can get especially thorny.
“I would be hesitant to be overly critical of the folks in the D.C. government that are trying to get this done thoughtfully, because I do think there are more moving parts in D.C.,” Hollway says. “And keep in mind, every dollar I spend on this remediation is a dollar I’m not spending on schools. All of that has to be worked into how to manage this process.”
But that doesn’t mean it’s an impossible task. Consider Austin, for example, where the city government agreed to work with its surrounding county and a collection of defense attorneys to lead an extensive review of cases following questions about its lab’s methods for testing DNA samples that surfaced in 2016.
The situation has plenty of parallels to D.C.’s predicament: So many, in fact, that District officials prepared research on the subject, according to the documents released to City Paper. Not only are the cities of similar sizes, but the DNA disputes in Austin echo problems at DFS that cropped up in 2014 and 2015. The same expert was even involved in sounding the alarm at both labs: Bruce Budowle, a well-respected, Texas-based DNA researcher who once applied to lead D.C.’s crime lab and later helped local prosecutors investigate its methods.
Things in Austin may not be perfect (officials estimate the project will cost up to $14 million in all) but at least they’re moving forward. The nonprofit partnering with the city, the Capital Area Private Defender Service, has focused on roughly 4,000 different people convicted by prosecutors relying on evidence from the lab, and they’ve successfully reversed convictions for two men who spent years in prison.
“We have to look through hundreds of cases, and even though a small fraction have ended up in litigation so far, it’s still a lot of time, it’s a lot of work, it’s a lot of energy,” says Stacie Lieberman, who has spent the past few years leading the case review process for the group. “I’m grateful that Travis County and the city of Austin have taken this seriously, to say that one innocent person in prison is too many. That’s important.”
That is precisely the principle that seems to be missing in D.C. Maybe all of the convictions based on DFS evidence will stand, and the crime lab’s issues aren’t as devastating as its critics fear. But the District is still far from finding out if that’s true.
“It’s quite possible that individuals may be in jail on evidence that they shouldn’t be in jail for,” former Attorney General Karl Racine told City Paper before he left office last year. “And it may also mean that individuals were never brought to account for wrongs that they committed. So this work will go on for years.”