Bowling Green lab's DNA policy raises questions

11/23/2009

In a small laboratory in Bowling Green, forensic scientists test and analyze case after case involving DNA for various law enforcement agencies in the region.

And while the scientists at Ohio's Bureau of Criminal Identification and Investigation will continue to produce results in cases involving DNA evidence, so will outside labs as well.

A bureau protocol that prohibits outsiders from observing the lab's testing has led several Lucas County Common Pleas judges to allow defense attorneys to take samples elsewhere.

While there have been attempts to order BCI&I to open its laboratories, contamination worries have caused the state agency to remain steadfast in its policy of keeping its doors closed.

According to bureau protocol, "the laboratory is a secure environment utilizing a number of safeguards to insure the integrity of the scientific process."

Among those is prohibiting visitors.

"At any given moment, the lab is working on several cases, and an outside observer's presence would impact all cases being processed, not just the case in which observation was requested," said Holly Hollingsworth, a spokesman for the Ohio Attorney General's Office, which overseas the Bureau of Criminal Identification and Investigation. "Further, the scientific process often spans multiple days, or even weeks, and therefore it would be difficult for an observer to watch the entire process."

The issue is most evident in cases in which DNA evidence will be consumed during testing. That means that once the test is completed, there is no way to do it over.

Dean Mandros, chief of the criminal division for the Lucas County Prosecutor's Office, explained that after a criminal indictment is filed, the defense has the right to investigate. When the evidence is DNA and it will be consumed during the tests, the defense has the right to request that its own expert be present, he said.

"They don't have to take it on our word," he said. "If we have a situation where we have something to be tested and everything is to be consumed and the defense wants it tested, we have to send it out to someplace else."

Defense attorney Pete Rost has twice requested that a defense expert be allowed to view DNA testing procedures. In both cases, the presiding judge first ordered that the defense be allowed to view the testing. Once prohibited by bureau policy, the defense was allowed to take the test elsewhere.

The cost: between $705 and $995, depending on the test. That price tag does not include the cost of testimony at trial.

"It would be no different than accepting what a witness says because it's written on a police report," Mr. Rost said. "We have a right to investigate our own defense and investigate our case. We can't do that if the evidence is consumed."

Currently representing murder defendants Anthony Belton and Robert Bowman, Mr. Rost said he requested that samples be sent to the DNA Diagnostic Center in Fairfield, Ohio, a lab near Cincinnati that "for appearance purposes, isn't controlled by the state."

And if prosecutors want to send their own expert to observe, he added, they may.

"In most cases when DNA comes up, it involves serious felonies," Mr. Rost said. "It's like taking the state's word for it when they're our adversary."

Scientist Greg Hampikian of the Iowa Innocence Project has been hired as a DNA expert in trials throughout the country, including Ohio. He said that it isn't usually a lack of trust in the science that causes concern for the defense, but rather a lack of accessibility to it.

Although crime labs are ostensibly independent of the prosecution, he said defense attorneys often are unable to interview scientists as freely as prosecutors may. He also questioned whether the defense could order DNA tests from a state lab.

"They really need to assure people that everyone has equal access to the lab testing and especially to the scientists," Mr. Hampikian said. "Access is a bias. When it's difficult, it's a bias."

Mr. Hampikian said defense money would be better spent not watching the tests but analyzing the results.

Contamination can be found by the controls run both before and after each test, said J. Christopher Anderson, an assistant county prosecutor.

He agreed that the most important aspect of analyzing DNA test results comes in examining the data and not in watching a machine work.

He said that while he has no problem sending the evidence to outside labs, he prefers using a lab he's familiar with, "since the burden to move forward" rests with the prosecution.

"It is what it is," he said of DNA testing. "It's the way you interpret it later in court that matters."

But before those results are produced, both sides have to trust the process, countered attorney Ronnie Wingate, who also has asked to have DNA sent to outside labs.

"Keep in mind the trust issue. It gives you peace of mind," he said. "Even if the results aren't agreeable [to the defense], it's been done in a lab that you chose. … It goes back to the defendant's right to have the state's evidence independently tested."

Although the defense in several local DNA cases has requested experts be present during the testing, Ms. Hollingsworth said it is a "very rare request." She added that "the use of an outside lab has been a viable solution."

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.