Lawyer Seeks Answers in Crime Lab Contaminations

Calls for Oversight

BY JORDAN ANDREWS

The Free Press- Jan. 18, 2022

A criminal defense lawyer is fighting for access to documents she believes will help answer questions about the extent of contamination at the state’s crime lab, and whether it has affected cases of individuals who were convicted, or denied exoneration, based on evidence processed at the lab.

The Maine State Police Crime Laboratory, like most crime labs in the country, is under the direction of the State Police and is represented by the Attorney General’s office. This arrangement has been criticized nationally as leading to bias in interpretation of tests of forensic evidence to favor the prosecution.

With the weight that jurors place on forensic evidence and testimony — known as the“CSI effect” — errors have disproportionate impact. And mistakes are not uncommon. Faulty forensic analysis has contributed to the wrongful conviction of innocent people in nearly half (45%) of DNA exonerations in this country, according to The Innocence Project.

One of the recommendations of the 2009 National Academy of Science’s report on improving forensic science in the U.S. was to remove all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.

Attorney Amy Fairfield, of Fairfield & Associates, agrees. She is appealing a denial by the Maine State Police of portions of a freedom of access (FOAA) request her office filed in 2020 for all lab protocols, contamination logs, quality assurance records and quality assurance manuals. Though the lab did produce thousands of documents in response to this request, Fairfield said it withheld nearly 2,400 pages of contamination logs.

Fairfield, whose firm has been appointed by courts to represent approximately 10% of the state’s indigent criminal defense cases, argued that the public should have access to contamination logs because they can either corroborate or contradict “Maine’s claimed perfect record in its crime lab’s performance.” In a 236-page filing in York Superior Court, she provided evidence that Maine’s crime lab not only shows bias in its processing of forensic evidence, but also covered up the extent of contamination in the lab that led to a chemist’s resignation in 2012.

Fairfield disclosed excerpts from the private personnel file of former forensic chemist Todd Settlemire to support her argument that the extent of the contamination he was involved in and the circumstances of his resignation were minimized in required disclosures made to defendants whose evidence he handled.

The crime lab made these disclosures to satisfy Giglio requirements, a Supreme Court ruling that requires the prosecution to reveal any impeaching evidence about its witnesses to defendants. In summaries, then lab director, now Deputy Chief of the Maine State Police Lt. Col. Bill Harwood mentions contamination of one piece of evidence by Settlemire, one lie Settlemire told about how far he stepped into the DNA lab on a single occasion after being barred from entering it, that he was placed on administrative leave while an internal investigation commenced, and that he resigned before the conclusion of the investigation.

However, the personnel file, which Fairfield gained access to through a court order,s howed numerous contaminations by Settlemire, and multiple entries into the DNA lab after his access had been revoked, as reported by other lab staff in an internal investigation. A corrective action form of August 9, 2012, says that there had been occasional isolated instances of contamination throughout his employment, but five episodes, some with multiple instances of contamination, had been documented in the prior year.

Fairfield showed the personnel file to Dr. Stephen Andrews, an epigeneticist who was deemed to have the requisite experience to provide expert testimony on DNA testing in a court hearing in August 2021, who concluded that the crime lab had a “major contamination issue from 2009-2012.”

The Attorney General’s Office has filed a motion to impound Fairfield’s Dec. 30 filing,“because it contains excerpts of confidential agency records and information … [that]were filed under seal and subject to court orders prohibiting further dissemination.” As of January 14, that motion was still pending and the document was still available for public viewing at the Alfred court.

Fairfield is not the only defense attorney who has raised alarms about Settlemire. Attorney Sherry Tash tried to gain access to Settlemire’s file in the 2012 case of Elfido Marroquin-Aldana, who was sentenced to 24 years in prison for molesting a child based on DNA evidence. (Fairfield said the sample had been destroyed by the detective and could not be retested by the defense.) Without admissions or physical findings of sexual assault, Tash said in a hearing on the matter, the most important link was sperm allegedly found on an item of evidence, so credibility of the people handling evidence would be important.

Before Tash received the Giglio disclosure, Assistant Attorney General Deb Cashman asked Tash in an email to stipulate that there were no issues with the chain of custody, so that she would not have to coordinate schedules of five technicians. When Tash refused, she was given the Giglio summary of Settlemire’s resignation. She then asked for the full personnel file.

“With all due respect to the prosecution, the defense shouldn’t be asked to just acceptthe representation that all he did was take a sealed package and pass it on, causethat’s the issue, about whether that actually happened,” she said.

To this Cashman responded that “There is no proof that anything other than what thestate described happened.”

That’s the problem, Fairfield said in her December 30 filing, “the state always controlsthe narrative.”

Without public scrutiny of lab documents, or independent oversight outside of the AG’s office, it is hard to know whether the state’s representation of what goes on in the lab is the whole story. Fairfield gave examples of cases she represented that have the appearance of bias in processing at best, or at worst, deliberate evidence tampering.

Currently, she is representing James Mercier in a post conviction review petition. He was convicted and sentenced to 70 years in prison in 2012 after new DNA testing matched him to a sample from a cold case, the 1980 murder of Rita St. Peters. The sample had tested negative for sperm in 1980, but retesting by the crime lab in 2009-2011 found sperm and matched it to Mercier.

Mercier was provided the standard Giglio summary of Settlemire’s resignation with the added detail that, in addition to the evidence item that led to the resignation, Settlemire’s DNA had also been found and reported on a piece of evidence in Mercier’s case.

Fairfield requested lab notes and testing reports and showed them to Dr. Andrews, who disagreed with the lab’s interpretation of its tests. Interpretation of DNA test results requires accounting for such things as noise, the effects of mixtures of multiple donors,software differences and human error.

In a report included in Fairfield’s filing, Andrews questioned how the same presumptive test performed 30 years later could find sperm present when it wasn’t there before. (In testimony he compared the test to a pregnancy test where two lines appear for a positive reading.) He found that the only photo of the only presumptive test for sperm was blurry and did not appear to show a positive reading.

He also concluded that in the next level of testing, the so-called sperm and epithelial cells had not been properly separated. He said that all that could be concluded is that there is a mixture of unknown cell types that contain the DNA from the victim and at least one male.

He also disagreed with findings for the portion of the sample that allegedly contained sperm, based on the interpretation of peaks on a graph. Where the lab reported matches at 12 locations, he saw, at best, eight. This does not rule out Mercier as a donor, he said, but it indicates a much lower probability of a match than was represented at trial. He also questioned why the test was repeated six times, concluding it was “a clear attempt to show a Mercier profile.”

“I propose there was potential for this DNA to be purposely or accidentally cross contaminated from other items … in the lab,” he wrote.

He inquired about whether Mercier evidence with his DNA on it was stored in the lab prior to the 2009 testing and “was shocked to find out that [Settlemire] had handled Mercier DNA evidence and that Mercier’s known DNA was stored as a CODIS (federal database) sample in an unlocked door with no security…. [Staff] had access to his DNA when he was a known suspect but there was [not yet] DNA evidence to prove it.”

Further, he wrote, since the sample with the alleged sperm has been destroyed (the slides were dropped by a detective), it cannot be retested by an independent lab.

When asked about some of the concerns raised in Fairfield’s FOAA appeal, Harwood,the former crime lab director, said in an email January 12, “The Maine State Police Crime Laboratory does exceptional work with honesty and integrity.” He said he would like to address the concerns and clear up some assumptions, but that he could not comment while litigation was pending.

The AG’s Office also would not comment, but directed me to a January 5 ruling in Mercier’s post-conviction review. In an August 2021 hearing in Mercier’s case. Settlemire, Harwood and crime lab staff testified, as did Dr. Andrews.

Chief Justice Robert Mullen, who presided over the hearing, denied the petition, writing that Fairfield was engaging in hyperbole when she spoke of the “rampant and systematic contamination that the Crime Lab sought to cover up,” and that he “fails to find a ‘crime lab scandal.’”

Mullen summarized in his order the multiple contaminations after corrective measures were put in place leading to Settlemire’s resignation, as revealed in testimony.

He found that though “it is undisputed that Mr. Settlemire’s DNA was found on multiple evidence samples in the state crime lab, one of which was involved in the petitioner’s murder trial … there has been no showing that Mr. Settlemire’s DNA somehow contaminated the critical pieces of evidence that supported (Mercier’s) conviction.”

Mullen also found no Giglio violation occurred at trial, saying it was “impossible … to reasonably argue that the ‘suppressed’ evidence of Settlemire’s issues with the state crime lab, if more exhaustively disclosed to the defense, would have resulted in‘reasonable probability’ that the trial result would have been different.”

Fairfield plans to appeal the decision. She said that looking at the cases on an individual basis does not show the full picture of the problems at the lab in cases in which Settlemire was involved.

In the FOAA appeal, she also describes the case of her client Anthony Sanborn, who spent 27 years in prison for the 1989 murder of Jessica Briggs, and was released in 2017 on time served after a key eyewitness recanted and other evidence against him fell apart. However, he was not exonerated.

In 1989, the FBI and the Maine Crime Lab had both identified sperm on the victim’s underwear that showed DNA from two sources, the victim and an unknown male, and Sanborn was definitively ruled out as a source. Sanborn had attempted in a previous post-conviction review petition to have DNA testing done on the victim’s underwear in the hopes of finding a match to the real killer and prove his innocence.

Here, when a match would have threatened the conviction, the crime lab’s effort to find a match was much less robust, and loss of evidence again worked in the state’s favor.

In testing done in 2012, MSPCL found and documented that sperm, although present,was not of sufficient quality and/or quantity from which to get a DNA profile. Fairfield requested the raw data, photos and notes from the testing, but didn’t receive them until after his 2017 hearings.

She learned from them that only one attempt had been made to find a DNA profile on Sanborn’s evidence, and that Settlemire had thrown away one of the clippings that had sperm on it.

The notes Fairfield obtained included handwritten instructions “per Bill Stokes” (then Deputy Attorney General William Stokes) to run the DNA test on the underwear samples but to contact him before entering the results into CODIS or writing a report.

In emails Fairfield obtained, the technician who ran the DNA test contacted Stokes and said there was not enough DNA to obtain results. “Would you like me to write a report with my current findings or is there additional evidence to be examined?,” she asked.

Stokes responded, “That is all the evidence that has been ordered tested. I wouldsuggest that you prepare a report of what you have done so far.”

Fairfield also found a worksheet from the presumptive test for semen Settlemire ran February 6, 2012, on substrates from four clippings of the underwear, which indicate she “accidentally discarded” one substrate. Four days later, that note was crossed out to show that the whole clipping had been discarded, meaning no new substrates could betaken from it for testing. But a version of the form without the correction went to the DNA lab with the samples, as evidenced by it being signed off on by Quality Control on March 6. It was not disclosed to the defense that the whole clipping had been thrown away, nor that the underwear had already been returned to Portland police.

The personnel file made the situation look worse to Fairfield. When documentation showed that the evidence had been transferred to the DNA lab by Feb. 8, 2012, the key card logs showed Settlemire swiped his card twice each day on the 7th, 9th and 10th. (His access had been revoked four months earlier).

In an interview conducted as part of an internal investigation into the matter, transcripts of which were included in the personnel file, Settlemire explained that he would swipe the card as he passed by in the hallway to see if his card access had been updated, resulting in a log record that the crime lab’s internal affairs investigator said “looks horrendous.”

The internal investigation did not lead to a termination that would have required a public disciplinary letter detailing the reasons, rather the separation agreement for Settlemire’s resignation “in lieu of termination” included a stipulation that the incident leading to his resignation would be purged from his personnel file, suggesting there might be more to the story that Fairfield did not see.

In the absence of an external body to bring allegations of wrongdoing for investigation, Fairfield is attempting to bring public oversight to the lab by forcing it to release its contamination logs.

Congress has required that crime labs receiving funding through the National Institute of Justice Paul Coverdell Forensic Science Improvement Program must certify that they have in place established processes to conduct independent investigations into allegations of serious negligence or misconduct substantially affecting the integrity of forensic results.

The Maine State Police have received $1.29 million in Coverdell grants since 2016,according to the Department of Justice website. Fairfield included documentation of Coverdell grants received by Maine each year since 2006.

In 2013, LD 1045, An Act To Establish the Forensic Advisory Committee, was introduced to create a body to provide this required oversight.

The late Irv Kornfield, who was professor of biology and molecular forensics at the University of Maine and a member of the American Society of Crime Lab Directors (ASCLD), testified in support of the bill. He said that while the lab has been certifying that the AG’s office provides the required oversight, because the AG’s office works so closely with the State Police in the investigation and prosecution of felonies,“separation is essential.”

Harwood testified against the bill, calling it unnecessary because the lab is accredited by ASCLD, which conducts external audits every five years, and that as a participant of CODIS, the federal DNA database, the lab undergoes a separate external audit every two years. He said the analysts speak openly with defense attorneys and defense experts, whom they invite to review evidence, procedures, case notes, raw data,samples, corrective actions and all proficiency test notes.

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