A bill in the Michigan house would create a forensics oversight commission to keep so-called “junk science” out of the courtroom.
Supporters say it will keep people from being put in prison on shaky evidence.
However, both state police and some defense lawyers say the bill either doesn’t do enough - or does too much.
Supporters of the bill point to a 2009 report from the National Academy of Sciences which found that forensic science is in need of an overhaul.
David Moran is the Director of the Michigan Innocence Clinic at the University of Michigan. He helped draft the bill.
“We are having people convicted and sometimes even sentenced to death based on shoddy, unproven, unscientific forensic testimony.”
Because of this, lawmakers behind the bill say they want to set up a forensic science commission to create recommendations about best forensic practices.
Republican Senator Rick Jones is a bill sponsor.
“What this movement is attempting to do through this bill is to make sure that we have standards in the state on how any evidence will be used in court, how it will be collected, how it will be stored, how it will be analyzed.”
The first thing the bill would do is require that a forensic lab providing any kind of analysis be accredited.
Currently, there are no accrediting requirements in Michigan for forensic labs. In fact, it’s not even clear how many forensic labs exist in the state because there’s no oversight body keeping track of them.
David Foran is the Director of the Forensic Science Program at Michigan State University.
“An individual can say that they are a forensic lab and set up shop in their basement if they wanted to and they may not be qualified or they may be highly qualified.”
Crime labs run by the Michigan State Police are all accredited. Those labs handle a majority of forensic evidence in the state.
But defense attorneys say too often those labs work directly with the prosecution and have an adversarial relationship with the defense.
Michael Komorn is an attorney who primarily works on marijuana cases. He oversaw a case dismissed in 2016 which found state police were ordering their labs to identify THC residue as “origin unknown” in order to push felony charges.
“It is not for the law enforcement community to have any say in how science should be done.”
And, Komorn said, although he hasn’t read the bill he believes the main problem is the close connection between state police and forensic laboratories.
“It should be housed in a completely different agency. They should pull it out and budget it from a different source other than the Michigan state police’s budget. Whatever they’re doing is not enough. Unless they completely pull it and separate it, it’s always going to remain potentially biased.”
The commission wouldn’t have the power to ban types of forensic evidence from a courtroom - the courts would still have the final say on what’s admissible.
But Moran, with the Innocence Project, said the influence of the commission should be enough.
“The power of the commission is going to come in the fact that you have this independent body that’s not answerable to the state police, not answerable to the legislature, not answerable to the governor, who are going to say this forensic discipline appears to be based on sound science or appears to be based on junk science. That kind of body issuing those kinds of statements can be very influential.”
Not everyone is so sure the commission is necessary, however.
Sergeant Tim Fitzgerald is with the Michigan State Police. He said the state police only support the part of the bill that would require accreditation for labs.
“If we have to go before a commission and wait for their approval and their oversight every time we change a procedure or have to do a peer review of a particular discipline this is going to add more time and slow the efficiency and add to the backlog is our concern.”
Some forensics labs worry the accreditation requirement could be cost prohibitive and lead to fewer independent labs.
David Foran, at Michigan State University, said his lab isn’t accredited - and the process is expensive.
“Now the state police labs have the resources to do that so they could become accredited but a lot of the private labs don’t. So a person may be a perfectly good expert on whatever subject matter they’re an expert in but just doesn’t have the resources to become accredited.”
Mike Nichols is another defense attorney, working primarily on drug cases. He said there is a lot of mistrust between lawyers, labs, and police.
“How we change that I don’t know and whether or not the commission is going to get passed and if that’s the solution, I don’t know that either. But at least we’re going to have a conversation about it because there’s just so much mistrust.”
The bill is currently before the house judiciary committee.