WASHINGTON — A new audit of D.C.’s Department of Forensic Sciences (DFS) shows it has failed to operate as “an independent part of the justice system,” because of weak legislation, a lack of resources and a decision by prosecutors to act outside the statutory oversight structure.
The legislative compliance audit was completed by the Office of the D.C. Auditor, looking at the department’s actions from Jan. 2018 through Dec. 31, 2021.
After DFS lost its accreditation in April 2021, the District was forced to contract out much of its work, and prosecutors launched a sweeping review of criminal convictions going back a decade.
According to the official report, auditors interviewed current and former DFS officials, current and former SAB members, and representatives of the agencies that are members of the Stakeholder Council, including USAO, OAG, Public Defender Service for the District of Columbia (DCPDS), and former MPD Chief Peter Newsham (former Stakeholder Council member).
“We reviewed DFS processes, policies, and procedures. Specifically, we analyzed the process for handling complaints containing allegations of negligence, misconduct, or misidentification or other testing errors,” the report reads. “We obtained and analyzed all complaints received during the scope of the audit for compliance with policies and procedures. To determine the operating effectiveness of the SAB and Stakeholder Council, we obtained and reviewed meeting records, including meeting schedules, attendance logs, and meeting minutes.”
The report shows DFS dealt with a lack of resources, a problem that was made worse due to regulations approved by DC Council, which gave agency management, instead of the Scientific Advisory Board (SAB), effective final say on oversight.
“The D.C. Council sought to create a best-in-class forensics lab mirroring recommendations from the landmark 2009 report by the National Academy of Sciences,” said D.C. Auditor Kathy Patterson in releasing the report. “But D.C. policymakers failed to provide resources to the DFS Science Advisory Board to ensure it could provide independent oversight of the lab.”
In the audit, DFS was compared to other independent labratories, including the Houston Forensic Science Center (HFSC), which comparatively has approximately 1.3 full-time equivalents (FTEs) to assist its oversight board.
"In comparison to HFSC Board, the SAB had no dedicated staff nor direct access to DFS’s records independent of DFS management,” the audit report reads. “Current and former members of the SAB shared that DFS did not always provide critical information and documentation on serious allegations to the board on a timely basis.”
Patterson says the US Attorney and the Office of the DC Attorny General failed to use the statutorily-created Stakeholder Council or the Science Advisory Board to address their legitimate concerns, “turning instead to their own external auditors to expose problems instead of working collaboratively to address them.”
The audit reports that in 2011 the USAO and Gray Administration testified against a fully independent forensics lab as well as changes that were made to the Council’s bill which diminished the lab’s independence. The report also mentions regulations written by DC Mayor Muriel Bower’s administration that gave the director discretion on what issues would go to the Science Advisory Board, “contrary to the intent and letter of the law creating DFS.”
Additionally, the audit found that while the Stakeholder’s Council is required by law to meet “no fewer than 2 times per year” and that members “shall not be represented by designee,” the council members did not always attend said meetings and often sent staff members instead.
According to a chart in the report, in 2019 none of the actual members attended a June 2019 meeting. While six members sent another person in their place, including the Chief Medical Examiner and the Chief of DC Police, the other five member simply did not attend at all.
Auditors recommend policies and procedures be developed to prepare Stakeholder Council meeting agendas, discussions and action items.
The report also claims two DFS customers—USAO and OAG—bypassed DFS’s processes and conducted unilateral audits and investigations of the lab to address their issues. These actions undermined the independence of the forensic laboratory.
“We found that USAO and OAG addressed their issues and concerns with DFS without regard for the process set forth in the D.C. Code, D.C. regulations, and DFS’ policies and procedures,” the audit reads. “Specifically, the two prosecutors’ offices bypassed the established processes for handling complaints and allegations and conducted unilateral audits and investigations of the laboratory firearms examination units over testing errors and allegations of misconduct.”
The reports goes on to say USAO disclosed allegations of misconduct by DFS and MPD, including concerns surrounding DFS operations around a firearms examinations and verification procedure. The USAO claimed in public court filings that DFS and MPD officials “whitewashed” the allegations made by a former DFS employee and concealed them from USAO.
“DFS’s failure to provide adequate oversight of its processes as noted above and address critical issues affecting the laboratory in a transparent and honest manner in compliance with its accreditation requirements contributed to the loss of accreditation,” the report reads.
DFS has lost its accreditation twice since 2013. Once in 2015 and then again 2021 for what the ANSI National Accreditation Board (ANAB) said was "credible evidence of DFS deliberately concealing information from ANAB, violating accreditation requirements, engaging in misrepresentation and fraudulent behavior, and engaging in conduct that brings ANAB into disrepute. Subsequently, in April 2021, ANAB withdrew accreditations of all DFS forensics units.”
In May 2021, Jenifer Smith resigned as the director of the DC Department of Forensic Sciences. Her resignation came as the department lost its accreditation. D.C. Attorney General Karl Racine, who called for Smith to resign, called her departure an "important first step."
“Dr. Smith’s departure from DFS is an important first step in addressing the substantial issues that led to the decision of the local and federal prosecutors to cease using the lab and its accreditation being stripped," Racine said in a statement to WUSA9 in May 2021. "We look forward to working with the mayor, law enforcement partners, and defense counsel to rehabilitate DFS.”
Since losing their accreditation, DFS has not been able to analyze evidence such as firearms, DNA and fingerprints for criminal prosecution.
More than a year later, a bill was proposed to completely overhaul DFS. Councilmember Charles Allen, who introduced the legislation Thursday, told WUSA9 in an interview that the suspension of the lab has been damaging calling it a "complete implosion of the forensics sciences."
Other issues mentioned in the audit include:
Misclassified and mismanaged complaints containing allegations of professional negligence and misconduct.
According to the audit, DFS misclassified two of 14 items recorded in its Complaint and Inquiry Logs as inquiries instead of complaints. One of the misclassified items was from a concerned juror in a criminal trial regarding DFS’s failure to test a gun, which the juror cited as a reason for the case resulting in a hung jury.
Not consistently following the District of Columbia Municipal Regulations and its own policies and procedures for handling complaints.
The audit claims DFS did not consistently follow regulations and its own policies.
“Without proper handling, resolution, and reporting of complaints containing allegations to the SAB, DFS cannot assure its customers and the public that the agency can provide transparent and trusted forensic evidence.”
Ultimately, the report recommended DC officials provide “sufficient funding” for the Science Advisory Board to fulfill its intended oversight role.
DFS responded to the audit, starting with the recommendation to “allocate sufficient administrative and financial resources for the Scientific Advisory Board.” The response, signed by City Administrator Kevin Donahue, calls SAB an important oversight function that the Executive is committed to strengthening and supporting.
“This specific recommendation to ensure the SAB has sufficient resources to carry out its functions will be considered as part of the Mayor’s Fiscal Year 2024 budget process, which is currently underway.”
Donahue continues to say the Executives highest priority regarding DFS is to support its ability to produce independent scientific results. However, Donahue says with DFS being one piece of a larger justice system with deserve actress and interests, “the agency’s scientific independence is actually undermined by proposals to make it a structurally independent agency.”
In regards to Stakeholder Council meetings, Donahue writes that the Deputy Mayor for Public Safety and Justice (DMPSJ) will oversee and participate in the development of such policies and procedures.
According to a press release from the Office of the District of Columbia Auditor, DC Council is now considering legislation that would change the structure of DFS oversight entities. The bill is up for full Council considering on Dec. 6.