December 21, 2014
Final Reports
Response James P. Fox, District Attorney/Public Administrator

STEPHEN M. WAGSTAFFE ASSISTANT DISTRICT ATTORNEYS
CHIEF CRIMINAL DEPUTY MARTIN T. MURRAY
MORLEY B. PITT

COUNTY OF SAN MATEO

400 COUNTY CENTER, 3RD FLOOR - REDWOOD CITY, CALIFORNIA 94063
PUBLIC ADMINISTRATOR (650) 363-4475 DISTRICT ATTORNEY (650) 363-4636


July 8, 2003


Honorable Beth Labson Freeman
Judge of the Superior Court
Hall of Justice
400 County Center, 2nd Floor
Redwood City, CA 94063-1655

Re: Grand Jury Report: Handling Forensic Evidence

Dear Judge Freeman:

Thank you for the opportunity to comment on the Grand Jury’s findings and recommendations in the above referenced report. My comments will be limited to those findings and recommendations that reference the Office of the District Attorney.

Finding (Pages 3-4): “The Crime Lab stated it provided blood alcohol tests, toxicology, and drug identification results to the District Attorney (DA)’s Office with zero backlog because these items are needed by 10:00 am each morning for court. Other evidence submitted to the lab is not analyzed until specific demands are made. The Crime Lab stated that 80% of the work done in the lab supports the District Attorney’s Office requests. The Grand Jury learned that the DA’s requirements are not consistently met in a timely manner, … (example provided).”

I agree with this finding as to the work being completed in a timely manner as to alcohol, toxicology and drug identification results for those persons who are in custody at the time of the filing of the case. I disagree with the finding that there is a zero backlog for the out of custody drug cases. I have no information as to what percentage of the lab’s work is devoted to requests generated by my office. I agree that analyses of other types of evidence are not consistently completed in a timely manner.

Finding (Page 4): “The District Attorney’s Office procedures for assigning and preparing cases for trial often create urgent demands that cannot be met by the Crime Lab. The following six situations illustrate the problem for the lab and the District Attorney’s Office:”

I disagree with this finding. Our office has long desired to have laboratory work completed as soon as the evidence is submitted to the Crime Lab by the investigating agency. This allows us to evaluate the strength of our case and properly prepare for trial. During discussions with the management of the Crime Lab we have been told that they do not have the resources to analyze all the evidence presented to them in a timely manner. At the request of the Crime Lab and as an accommodation to the need they expressed, we agreed that we would generally not request analysis of evidence until a trial date is scheduled. We were informed that the lab would then use the trial date as a guide in prioritizing their workload. The rationale of the lab management was that since many cases are resolved prior to trial, they would focus their resources on the cases that had been scheduled for trial. We reluctantly agreed to this approach with the assurance that the lab would devote its resources to insure that the work would be processed quickly once the request was made. Unfortunately, this plan has not been successful in that analyses are frequently not performed in a timely manner resulting in a delay of the scheduled trial, or last-minute analysis. It is not the District Attorney’s procedures that have created the problem, but rather the procedures insisted upon by the management of the Crime Lab.

See attached Appendix A where, in a copy of a survey that was sent to the San Mateo County Sheriff’s Crime Lab in 1998, we made it clear that we preferred to have results completed at the investigative and pretrial stages. We further noted that work on many cases was driven by the trial date resulting in work being performed on a rush basis. We suggested that increased staffing at the lab might alleviate this problem.

“There may be several different attorneys that handle a piece of a case as it moves along the scheduling timeline: one handles the filing; another may handle a preliminary hearing; someone else may prepare the case for that hearing. With postponements, it is possible for more reassignments to occur. Once the preliminary hearing judge rules the case will go to trial, the case is assigned to another attorney, who 80% of the time will keep the case from then on, unless there is a trial calendar conflict with a different case. Each attorney may initiate requests for Crime Lab evaluation of evidence and forensic tests. The final attorney may erroneously assume that all lab work has been done when it has not. This creates a last minute rush for results.”

I agree with the description of the manner in which the majority of cases are processed by my attorneys. It should be noted, however, in our Vertical Prosecution Units (Homicide, Sexual Assault, Domestic Violence and Major Narcotic Vendor) in most cases the same attorney handles the case from filing until its completion. While vertical prosecution (one DDA handling the case from start to finish) is desirable, it is inefficient in terms of staffing resources and does not usually affect the quality of prosecution in less serious cases. I do not have the staffing required to institute vertical prosecution in all cases, nor do I feel it necessary to do so.

I disagree with the finding that “the final attorney may erroneously assume that all lab work has been done when it has not.” The Crime Lab sends a Laboratory Report to the District Attorney when the analysis has been completed. It is a simple matter to check the file to see if a report has been submitted. The “last minute rush for results” is a function of the lab not completing the work in a timely manner, not of my attorneys making erroneous assumptions.

“It is the Crime Lab’s experience that attorneys in the DA’s Office often prepare a case around the kind of evidence that is most familiar to them. An example is one attorney may be quite knowledgeable in the forensics associated with weapons. That attorney begins preparation for trial and requests several tests from the Crime Lab on weapons from the crime. At some point the case is transferred to a different attorney that does not understand weapons forensics, or for a different reason changes the focus of the trial to some other evidence, and initiates a new series of requests for tests and analysis from the Crime Lab, providing even less time to respond to meet the scheduled trial date.”

I agree with the finding that attorneys will sometimes change the focus of the trial and request additional testing, however, I disagree that it is often done simply because the attorney is not familiar with a particular type of evidence. If the evidence proves the case, I know of no member of my staff who would decide not to use it because of a preference for another type of evidence. Generally, the reason that the focus of a case changes is that forensic work that is completed which proves a fact may cause the defense to change tactics. For example, if it is proven through fingerprint analysis or gunshot residue testing that the defendant fired a weapon, the defense may then change to self-defense, requiring analysis of bullet trajectory, blood spatter or other available evidence to investigate and perhaps counter the new defense. If the Crime Lab had the resources to analyze all the evidence submitted to them in a timely manner, my attorneys would be prepared for any possible defense and would not have to request “new” testing, since all the evidence would already have been analyzed. Until the Crime Lab begins analyzing evidence when received instead of waiting for a specific request from my office, this problem is unavoidable.

“The Crime Lab advised it often receives requests from less experienced attorneys in the DA’s Office for tests that are not relevant to the case. An example is a request for gunshot residue analysis from a crime that occurred over four months earlier. The Crime Lab believes the attorney looks over the inventory of evidence and checks off a list of tests to be run without fully evaluating the results they hope to obtain from the forensics. Often attorneys do not understand the testimony being provided by the Crime Lab staff during trial and ask inappropriate questions or do not understand enough to object to inappropriate cross-examination.”

I have insufficient information to assess the finding that requests are often made for irrelevant tests. This has not been brought to the attention of my management or training officer. As an experienced trial attorney, I am aware that juries often expect that certain examinations be routinely performed and presented in court. For example, while a forensic scientist may be aware that a gunshot residue test may not provide relevant data, a defense attorney may attempt to create reasonable doubt if the test was not attempted, or an adequate explanation presented as to why the test was not performed. Although I am not aware of the specific example cited, I should also note that gunshot residue testing performed many months after collection has yielded valuable evidence in the past.

I disagree with the finding that attorneys check off a list of tests to be run without evaluating the results they hope to obtain. We have no such checklist of tests. I am confident that each request is made because the attorney believes that the analysis will yield results that will be useful in prosecuting the case. As mentioned above, it is often important to prove to a jury that the police and the Crime Lab have performed a thorough and complete investigation and analysis of the evidence in order to have confidence in their verdict. Not examining evidence because the lab does not believe it will find useful evidence is often viewed by juries as an incomplete, hence flawed, investigation.

I have insufficient information to assess the finding that my attorneys do not understand the testimony being provided by the Crime Lab staff, ask inappropriate questions and do not object to inappropriate cross-examination. The Crime Lab has not brought this to the attention of my management or training officer.

We recognize the need for training our attorneys in forensic science and have requested assistance from the lab. Part of our training for new prosecutors includes a visit to the Crime Lab and instruction from the Crime Lab staff in presenting alcohol test results in Driving Under the Influence prosecutions (the most common type of trial conducted by new prosecutors). This is well received by my attorneys and we appreciate the lab’s assistance. As part of our continuing education program, we have requested that the lab assist us in training on a variety of forensic topics and suggested a schedule for the training. See attached Appendix B. To date, apparently because of time constraints on Crime Lab personnel, we have completed only two of the proposed topics since submitting the proposal in March 2001.

“The District Attorney’s Office rarely presents biological evidence in a pretrial conference. When the case goes to trial, the District Attorney’s Office requests testing. In addition to the expedited time burden this places on the Crime Lab, it also creates a time lag in the discovery process for the defense. All evidence is required to be produced under the discovery statutes within 15 days following the preliminary hearing. If it is not, a formal motion to compel discovery is filed. The statute requires that all evidence to be exhibited in trial by the prosecutor must be provided to opposing counsel no later than 30 days before the trial date. A defense attorney advised the Grand Jury that this statute requirement is often not met by the DA’s Office.”

I disagree with this finding. First, no evidence, biological or otherwise, is ever presented at a pretrial conference. The pretrial conference is an in-chambers plea-bargaining discussion between the judge, the prosecutor and defense counsel.

Second, requests for testing of evidence are not made when the case goes to trial. Requests are generally made when the case is set or confirmed for trial. Although the Crime Lab has requested that we delay requesting lab work until the pretrial conference, some of the attorneys are uncomfortable waiting until then and make the request before the pretrial conference. The pretrial conference is usually scheduled about three weeks in advance of the jury trial.

Third, the discovery statutes do not require that evidence be provided to the defense, just that its existence be disclosed no later than 30 days prior to trial. The existence of the evidence is usually disclosed at least 60 days prior to trial. However, the testing of the evidence is frequently not performed 30 days prior to trial. The discovery statutes provide that any reports of examination of evidence be provided to the defense at least 30 days before trial, if they are in existence, or as soon as the reports come into our possession if within the 30 days before trial period. Thus, we are generally in compliance with the statute.

Notwithstanding that we are in compliance with the discovery statute, I do agree that the Crime Lab procedure of prioritizing its work schedule based on the trial date often results in lab reports being provided to the defense shortly before trial. If the defense wishes to have the evidence retested by another laboratory, a delay of the trial is usually necessary. I would prefer that the laboratory work be performed well in advance of trial so that the defense would have adequate time to have the evidence re-examined without necessitating a postponement of the trial.

“In February 2001 prints from a crime were dusted, lifted, and transferred to an evidence card. The Crime Lab does not perform analysis until specifically requested to do so. The request for print comparison was not sent from the District Attorney’s Office to the Crime Lab until April 2002. The prints were not analyzed until the end of July 2002 (17 months after the crime). The prints did not match the defendant.”

I am not familiar with this case, therefore I have no basis to agree or disagree with this finding. This case would illustrate that it would be preferable for the lab to immediately analyze evidence. Obviously, eliminating the defendant and focusing the police investigation on the real suspect should be accomplished as quickly as possible. However, if the defense attorney believed the evidence could exonerate his client, a request could have been made to have the evidence examined by an independent laboratory.

“A defense attorney advised the Grand Jury that in the fall of 2001, the District Attorney’s Office requested analysis of fingerprints two months prior to the scheduled trial date. The trial was postponed several times, and the District Attorney’s Office never followed up on the analysis of the prints. The trial started a month late and on the day the trial started, the District Attorney’s Office asked the Crime Lab to do the analysis because it was still not done. Meanwhile, the defendant was in jail for 10 months. When the Crime Lab finally submitted the results, none of the physical evidence was linked to the defendant. The defense attorney was outraged. The defendant was acquitted.”

I am not familiar with this case, therefore I have no basis to agree or disagree with this finding.

Finding (Page 12): “The District Attorney’s Office advised the Grand Jury that it spends approximately $50,000 per year with outside laboratories for DNA tests. The District Attorney’s Office is anxious for the San Mateo County Crime Lab to have DNA STR capability because it would be “free” to the District Attorney’s Office. The District Attorney Office perceives that DNA testing capabilities in the San Mateo County Forensic Laboratory will create a savings in its budgeted expenses for outside lab DNA test requests. While the District Attorney’s Office may experience reduced expenses, the county budget is still responsible for the costs of the Crime Lab. The actual costs to perform DNA STR testing in the San Mateo County Crime Lab are not quantified.”

I agree with this finding.

Recommendation 2. (Page 14): The Sheriff should immediately coordinate the creation of a Forensic Management Oversight Board comprised of the Sheriff, the District Attorney, representatives from the Police Chiefs Association, the Laboratory Administrative Director and the Current Forensics Laboratory Director (accountable for Scientific procedures) and hold the laboratory accountable to the agencies served. The responsibilities of this board should include: (deleted)”

I agree with this recommendation, however, it should be clear that the Sheriff is responsible for the management of the Forensic Laboratory.

Recommendation 5. (Page 15): “The District Attorney’s Office should:

Evaluate its procedures for assigning casework and make changes necessary to designate, at the earliest possible date, the attorney that would be responsible for presenting a case if it goes to trial, and ordering all Crime Lab tests well in advance”

This recommendation will not be implemented because it is neither warranted nor reasonable. Currently, the most serious cases we prosecute and those most likely to involve extensive laboratory analysis of evidence are assigned to a vertical prosecution trial attorney who will be responsible for the case from filing through completion of the trial. The Vertical Prosecution Units include Homicide, Sexual Assault, Domestic Violence and Major Narcotic Vendor cases. As to the other cases, our current system is the most effective and efficient method of processing the volume of cases prosecuted by my staff.

I agree that the tests should be requested at the earliest opportunity and I will work with the Sheriff in exploring the feasibility of implementing a plan to have evidence tested when received from the police instead of waiting for a request from the prosecutor. This puts the responsibility for determining what tests are most appropriate in the hands of those most knowledgeable, the forensic scientists at the lab, and not waiting for instructions from the prosecutor.

“Develop a process to supervise or monitor case preparation for trial so that there is a minimum of short-fused requests of the Crime Lab, and if a case must be reassigned there is continuity of approach. ”

This recommendation will not be implemented because it is neither warranted nor reasonable. Such micro-managing of my attorney staff is unwarranted. The problem, as stated above, lies not with attorney generated “short-fused” requests, but rather the lab’s policy of delaying the work until the last minute. Each attorney is a highly educated professional responsible for the preparation, tactical decisions and presentation of the trial. It would be inappropriate to restrict the professional judgment of an attorney by insisting that an attorney in a reassigned case adopt the same trial strategy as his or her predecessor. If all the evidence were examined upon receipt, there would be a minimum of “ short-fused” requests and the lawyer would be free to choose a tactic based on a complete analysis of the evidence.

“Enhance the training provided to newer attorneys in use of forensic information; more closely supervise their requests submitted to the Crime Lab; and establish an ongoing education program that keeps staff up to date with forensic science advancements”

This recommendation has not yet been implemented, but will be implemented in the future. We will immediately initiate contact with the Crime Lab to schedule dates for training on various forensic topics.

As indicated above, the Crime Lab has been of assistance in the training of our new attorneys. As in the past, we will continue to attempt to seek their assistance in presenting forensic topics in our continuing education program.

“Encourage attorneys to schedule pre-trial conferences with Crime Lab staff to review and gain a better understanding of the expert testimony to be provided”

This recommendation has long been implemented. I agree with this recommendation, however, I disagree with the implication that it is not currently being done. We do more than encourage a pretrial witness interview; it is our view that it is unprofessional to call any witness, expert or not, to testify in court without conducting a pretrial interview to discuss the evidence and the testimony to be presented. All of our attorneys are instructed to properly prepare witnesses by reviewing the evidence and topics of testimony before presenting the witness in court.

“Develop a process to closely monitor and ensure that timelines mandated by discovery statutes for providing evidence to the defense are met”

This recommendation will not be implemented because it is neither warranted nor reasonable. Each attorney is charged with the responsibility of managing his or her caseload. The problem, as stated above, is not that the discovery statutes are being violated, but rather, that the Crime Lab often fails to complete its analysis and submit its reports in a timely fashion. The discovery statutes do not mandate that we provide evidence reports that are not yet in existence.

I appreciate the efforts that the Grand Jury has undertaken to improve the quality of the criminal justice system in San Mateo County. A high-quality and efficient forensic evaluation of evidence is critical to the investigation and prosecution of criminal cases. I am hopeful that the recommendations of the Grand Jury will result in changes that will achieve this goal.


Respectfully submitted,

JAMES P. FOX, DISTRICT ATTORNEY

© 2014 Superior Court of San Mateo County