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Dec 15 2011

Nassau Crime Lab Board Missing Defense Perspective

Newsday reported today that Nassau County Executive Ed Mangano had appointed a panel of 5 persons to oversee the restoration of Nassau’s shuttered police crime lab into a facility run by civilian scientists to resume key evidence testing. The scandal facing the lab exposed it as an unreliable testing center resulting in potentially wrongful convictions. The issues at the lab were so numerous that it had to be completely shut down.

While an advisory board is long overdue, and while I have no problem with the five people selected, the County failed to appoint anyone with any criminal defense experience. Here are the five on the board:

MICHAEL BALBONI: Former Republican state senator and assemblyman from Long Island, former deputy secretary for public safety to Governor Eliot Spitzer of New York. Balboni is a bright, capable person, but he has no idea what’s involved in running a crime lab or how those issues play out in court.

JOHN HICKS: Former FBI senior executive who established the bureau’s Forensic Science Research and Training Center and coordinated the DNA development program that led to the implementation of CODIS, the national DNA databank. Highly qualified and provides much need technical expertise.

DIANE MARKUNAS: Former Nassau County deputy medical examiner for administration. Don’t know much about her, but presumably from her prior position she has experience in forensics and running a lab.

MICHAEL WARREN: Associate professor in the University of Florida’s Department of Anthropology. An expert in forensic science, Dr. Warren uses DNA to identify skeletal remains at anthropological sites. He has also assisted with personal identification in mass disasters and helped to identify and document war crimes against the victims of genocide in Bosnia, Serbia and Kosovo. So he knows his DNA.

MADELINE SINGAS: Chief Assistant District Attorney for Nassau County. Former chief of the district attorney’s Special Victims Bureau. She is representing District Attorney Kathleen Rice on the board. An intelligent, seasoned and career prosecutor in cases involving sex crimes.

OK, so there’s alot of experience on this board and the science level is high. What’s missing is anyone who has ever cross-examined, contested or taken apart lab results in a courtroom. The County Exec should have also appointed someone with criminal defense experience. If it would have felt uncomfortable to appoint a well-known Nassau County criminal defense attorney, like Stephen Scaring for example, Mangano could have selected any number of former judges who had also practiced criminal law for a significant period of time. Nassau County Judge John Kase who is due to retire next year would be one possible candidate.

The defense perspective is needed because the sole purpose of this lab is to get the test results right and make sure that the right sample is attached to the right result. Flaws in the chain of custody and the handling of the evidence will not only provide grist for the cross-examination mill but will also call into question the validity of the results. Let’s not forget that the two persons most harmed by lab errors are the victims who do not get the opportunity to see their attackers brought to justice and the wrongfully accused who are faced with trying to contest a cold, supposedly objective lab result that says they did it, when they didn’t. Many of the problems with the lab came out in trials during cross examination by defense lawyers. Having a skilled practitioner analyze the procedures to help make them as reliable as humanly possible would have been a wise move. It also would have added some balance to the panel to assure that fairness to the accused was at least give some lip service.

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