- Although OJP has complied with the statutory requirement by obtaining external investigation certifications from applicants, OJP’s administration of the requirement is not effective for ensuring that government entities that can conduct independent external investigations of forensic laboratories are certified. We found that FY 2006 Coverdell Program grantees certified government entities that did not have the authority, capabilities, or process to independently investigate allegations of serious negligence or misconduct. Moreover, OJP’s guidance does not require that grantees and forensic laboratories refer serious allegations of negligence or misconduct to the entities for independent investigation. Although OJP began requiring applicants to provide the names of certified entities in FY 2007, our review showed that OJP’s administration of the external investigation certification must be improved so (1) applicants identify entities with the authority and capability to independently investigate allegations of serious negligence or misconduct, and (2) allegations are referred to the entities for investigation.
The following sections describe our examination of qualifications of the entities identified by certifying officials to conduct independent investigations, OJP’s guidance to grant applicants for completing certifications, and OJP’s internal guidance for reviewing certifications and whether procedures in place were effective to ensure that allegations of negligence and misconduct in forensic laboratories were referred for independent investigations by the certified entities.
Qualifications of Entities Named by Certifying Officials
In FY 2006, the 87 agencies that received Coverdell Program grants submitted a total of 118 external investigation certifications with their applications.12 The OIG contacted the officials who signed the certifications and a representative from the one grantee that did not submit a certification and obtained the names of 233 government entities that the officials stated were the entities that could conduct independent investigations of negligence or misconduct at the forensic laboratories. The OIG contacted 231 entities and concluded that 78 (34 percent) did not meet the external investigation certification requirement because they lacked either the authority, the capabilities and resources, or an appropriate process to conduct independent external investigations into allegations of serious negligence or misconduct by the forensic laboratories that received FY 2006 Coverdell Program funds.
Entities’ Authority to Investigate Allegations at the Forensic Laboratories. Of the 231 entities we contacted, we found that 202 (87 percent) had the authority to independently investigate allegations of negligence and misconduct at forensic laboratories. Officials at these entities told us that their entities’ authority to conduct investigations was based on a state statute, derivative authority, or a formal Memorandum of Understanding (MOU), which we accepted.13
However, 29 of the entities (13 percent) did not have clear authority to investigate allegations at the forensic laboratories. In these cases, entity officials cited informal agreements with the forensic laboratories as their authority or stated that the entity’s authority was granted by the forensic laboratories on a case-by-case basis. Moreover, some officials stated that they did not have the authority to conduct the investigations. Of the 29 entities that we determined did not clearly have the requisite authority:
Officials from 16 entities told us that they did not have the authority to conduct the type of investigation required by the certification. For example:
One entity official stated that the entity is an investigative agency but conducts only financial compliance audits.
Officials from three government entities – two county superior courts and a county crime laboratory – told us that their organizations were not investigative agencies and so did not have the authority to investigate.
Officials from four entities stated that the statutory language regarding the entity’s investigative authority was so vague that they did not know if they had the authority to conduct independent external investigations.
Officials from nine entities said that they were granted their authority on a case-by-case basis by the forensic laboratory requesting an investigation.
Officials from four entities told us that they had informal agreements under which they would arrange for any allegations to be investigated.
Entities’ Capability to Conduct Independent External Investigations. The OIG also examined whether each entity had the capability to investigate allegations of negligence and misconduct at forensic laboratories if such allegations were referred to it. We accepted an entity as being capable if it told us that its staff had the forensic knowledge and technical expertise necessary to investigate allegations related to forensic laboratories, or if the entity had the resources to obtain the needed expertise. Overall, 17 of the 231 entities (7 percent) reported that they lacked either the technical capability or the available resources to investigate allegations of negligence or misconduct at the forensic laboratories. For example:
The certifying official for one grantee identified the state’s Office of the Inspector General as the entity that would investigate allegations of negligence and misconduct at a forensic laboratory. However, a Senior Assistant Inspector General in that office told us that if the allegation required technical expertise related to DNA, the office would not have the capability to respond immediately because it would have to request funding from the state legislature to contract for DNA expertise.
The entity identified by another certifying official was a state police board. We asked the president of the state police board if it had the capabilities and resources to conduct the investigations, and he replied, “No, the police board refers allegations to the appropriate investigative entity. It does not perform investigations itself.” He said that potential criminal activity would be referred to the State Attorney. A personnel matter would be referred to the labor board.
Entity Processes for Conducting Independent Investigations. The third aspect that the OIG examined to determine if the entities met the certification requirement was whether each entity had the required “appropriate process... in place to conduct independent external investigations into allegations” of wrongdoing in forensic laboratories. We found that 62 of the 231 entities (27 percent) did not have an appropriate process in place. Of these 62, officials at 19 entities stated to the OIG that they did not have a process in place or told us that the process was being developed but was not yet in place:
Officials at 15 entities stated that they did not have a process in place. Five of these officials told us that they were developing processes.
Officials at four entities stated that, although their entities did not have written procedures, they would create a process if they received an allegation.
In an additional 43 cases, we determined that the processes in place were not appropriate for conducting independent external investigations. In these cases, we concluded that the investigations were not external and independent because the laboratory’s management or employees were involved in or controlled the investigative process. For example:
The Quality Manager/Acting Deputy Director of a state department of forensic sciences stated that the Director of that department decides whether allegations of wrongdoing will be investigated internally or will be referred to another entity for investigation. If the Director chooses to conduct an internal investigation, it is assigned to an in-house committee. If the committee finds an allegation to be substantiated, it forwards the case to the local District Attorney or the state Attorney General.
At a state toxicological laboratory, any allegations of negligence or misconduct are referred to the laboratory manager, who notifies the Director of the forensic laboratory services bureau, and the Director informs the investigative entity (a state forensic investigations council). However, the laboratory itself conducts the investigation of the allegations. The results of the laboratory’s investigation are presented to the state forensic investigations council and, if the council decides further investigation is necessary, the matter is referred to the state Attorney General’s office or the state patrol for further investigation.
The named entity for a forensic science services division in a county Sheriff’s department was the Sheriff’s internal affairs office. Under the process described to the OIG, only the Assistant Sheriff who oversees the forensic science services division can initiate investigations of allegations against the division. If an allegation is submitted directly to the internal affairs office, that office presents it to the Assistant Sheriff, who reviews the allegation and decides whether it should be investigated by the internal affairs office. If the Assistant Sheriff requests an investigation, the internal affairs office conducts the investigation and presents the findings to the Assistant Sheriff, who decides whether the allegation has been sustained.
The requirement that laboratory management not be in a position to determine the course of investigations is addressed in the guidance provided to applicants by OJP. In its FY 2006 Coverdell Program Announcement, OJP provided examples that applicants could use to help them identify entities that meet the certification requirement. For example, OJP’s guidance included the following scenario to indicate the independence required for the entity’s investigation:
An applicant agency determines that the forensics laboratory director (or some other individual in the chain of command at the laboratory) has sole responsibility to conduct investigations into allegations of serious negligence or misconduct committed by laboratory employees.
Guidance: Under these facts, it would not be appropriate for the applicant to execute a certification because there is no process in place to conduct independent, external investigations into allegations of serious negligence or misconduct committed by laboratory employees and contractors.
In examining the entities’ authorities, capabilities, and processes, we also found that there was limited communication between the certifying officials and investigative entity officials about the Coverdell Program certification requirement. Only 47 of 118 certifying officials (40 percent) told us that they discussed the Coverdell Program certification with a representative from the investigative entity prior to signing the certification. Because most certifying officials did not discuss the certification requirement with an investigative entity representative, representatives from 158 investigative entities (68 percent) did not know about the requirement.14 One entity official specifically stated that “it would have been nice if [the grantee] had let us know that they were going to name us.” This official told us that his entity had the authority but not the capabilities and resources to investigate allegations involving DNA analysis.
OJP Administration of the Coverdell Program Investigative Requirement
The OIG identified additional shortcomings in OJP’s administration of the FY 2006 Coverdell Program external investigation certification. First, OJP did not require applicants to confirm to OJP that applicants had identified qualified entities. Second, OJP did not adequately review the information it did obtain to ascertain that the certifications submitted by the grantees were properly completed.
Information Required From Grant Applicants. In FY 2006, Coverdell Program applicants were required to sign an external investigation certification form that copied the exact statutory language of the certification requirement (see Appendix I). OJP did not require applicants to confirm to OJP that applicants had identified government entities that had the authority, a process in place, and the capabilities and resources to conduct independent external investigations of forensic laboratories. Moreover, because applicants were not asked to provide the names of the entities they certified, OJP could not know whether an applicant had identified an entity at all. In fact, we found that some had not certified any entity. Five certifying officials told us that when they completed the certification they did not have a specific entity in mind – they merely signed the template that OJP provided.
OJP’s Review of Certifications. In FY 2006, OJP did not sufficiently review the certifications submitted by the grantees to ascertain whether they were properly completed. OJP guidelines required that each certification contain specific statements and be signed by a knowledgeable official who is authorized to make certifications on behalf of the applicant agency.15 An OJP official told the OIG that OJP only evaluates each certification “on its face.”16
Yet, our review of the FY 2006 Coverdell Program certifications identified certifications from 38 grantees that were signed by individuals who did not appear to be from the applicant agency and who thus did not appear to have the authority to make a certification on behalf of the applicant agency. In the certifications submitted by 17 of these 38 grantees, the applicant agency named on the certification was not the agency that submitted the grant application. For example, one application submitted by a state department of community, trade, and economic development contained a certification signed by the Director of a forensic laboratory service bureau. It is not clear that the Director of a forensic laboratory service bureau would be authorized to sign a certification on behalf of the applicant agency. Furthermore, the applicant agency named on the certification was the state patrol and not the department of community, trade, and economic development.
We discussed how certifications should be completed with the Deputy Director of NIJ’s Office of Science and Technology, who confirmed to the OIG that the applicant agency named on the certification should match the agency on the application. Nonetheless, OJP had awarded grants to these 38 agencies.17
Entity Investigations Into Allegations of Wrongdoing
During our review, we examined whether OJP’s guidance directs grantees and forensic laboratories to refer allegations of negligence or misconduct to the certified entities for an independent investigation. We were surprised to find that OJP has advised a grantee that it did not have to refer allegations of serious negligence or misconduct to the entity that it certified for an independent investigation. In a November 20, 2006, e-mail, OJP officials advised the grantee, which then advised forensic laboratories, that the certification requirement did not impose an obligation to report allegations of serious negligence or misconduct to the government entities certified. We learned that it is OJP’s position that the certification only requires that a government entity exist with a process in place to conduct independent external investigations into allegations of negligence or misconduct, but does not require grantees or laboratories to actually refer such allegations to the entity. OJP’s General Counsel told the OIG that he believed that, while the reporting of allegations is consistent with the statute, the statute does not require that allegations actually be referred to the entity that was certified for investigation.
Also, we examined whether grantee and forensic laboratory processes were adequate to ensure that allegations of negligence or misconduct were referred to the certified entities for an independent investigation. We asked certifying officials for the FY 2006 Coverdell Program grant recipients whether there had been allegations of negligence or misconduct at the laboratories that received FY 2006 Coverdell Program funds and, if so, whether the allegations were investigated by the certified entities. These officials told us that, in the 6 months since the FY 2006 grants were awarded, there were seven allegations of negligence and misconduct in forensic laboratories that received grant funds. The following describes the allegations and the action taken on each:
Allegation 1: The Innocence Project questioned the credentials of a state firearms examiner who had lied about where he went to college. The examiner had worked for the state police since 1991 and had testified in court numerous times. The state police’s internal affairs division, the government entity that investigates allegations of negligence or misconduct in the state police, had an investigation in progress at the time of the OIG’s review. State police officials had notified State Attorneys, the office of the Public Defender, and the state Attorney General’s office that the investigation was under way as of March 2007.
Allegation 2: The management of a laboratory investigated allegations that two analysts had not been following proper review procedures since 2002. According to the certifying official, the laboratory’s questioned document section implemented a new technical review procedure for reviewing documents in 2002, but the two analysts had not been following the new procedure. The analysts’ actions were not identified by laboratory management until October 2006 when one of the two analysts confessed. Both analysts resigned shortly thereafter. The matter was not referred to the certified investigative entity (the state police) because, according to the laboratory Director, the laboratory was “the best agency to handle the investigation.” The laboratory contacted every agency that submitted documents to the section since 2002 and asked them to review the cases to see if they wanted the evidence retested. The laboratory also contacted every prosecuting attorney involved. The investigation remained ongoing as of March 16, 2007.
Allegations 3, 4, and 5: One certifying official stated that FY 2006 Coverdell Program funds were distributed to 15 forensic laboratories in the state. He told us that there had been three allegations of wrongdoing since September 2006 and all were under investigation by the state commission of investigation.
Allegation 6: An inmate filed a lawsuit alleging false laboratory results had been used in the prosecution of his case. According to the certifying official, the inmate alleged that a laboratory technician had reported on five hairs from a stocking cap when only three hairs had been found. The lawsuit included charges against prosecutors and police personnel as well as the laboratory. The laboratory portion of the lawsuit was settled with no admission of wrongdoing.
Allegation 7: The certifying official told us that an allegation was made by a crime scene technician against a detective and that the allegation was under investigation by the entity, a police department’s internal affairs unit. The certifying official did not describe the alleged wrongdoing, and the entity official declined to confirm or deny to the OIG that the entity was conducting an investigation.
Finally, we examined whether the entities’ processes allowed for receiving allegations from any source. Officials from 200 entities told us that they would accept allegations from all sources. For example, 13 entity officials told the OIG that they accepted anonymous complaints, and 2 said they had hotlines anyone could use to report an allegation. However, one entity official stated that, although his entity could accept allegations from any source, outside sources would not know to call his entity with an allegation.
In contrast, officials at 12 entities told us that they would not accept allegations from all sources. Some of these officials stated that their entities would accept allegations only from the forensic laboratories or from sources within the entity itself. Allegations received from outside of these organizations would first have to go through local officials, such as the local District Attorneys or the local police department officials. One government entity representative said he did not know if his entity had the authority to accept allegations from outside sources.
“Agencies” in this report refers to state administering agencies and units of local government (grantees). See Appendix II for the names of the grantees (agencies), sub-grantees (forensic laboratories that received Coverdell Program funds), and government entities.
Of the 202 government entities that had the authority to conduct independent external investigations, over half (102) based their authority on state statutes or local ordinances. Representatives from 41 government entities stated that the chief of police, sheriff, or internal affairs policy granted them the authority to investigate. Representatives from 28 government entities cited their authority as state or local prosecutors. Representatives from the remaining 31 government entities cited other means of authority, such as a special commission’s authority established by the state legislature.
In the FY 2006 Coverdell Program Announcement, OJP instructed applicants to submit an external investigation certification and to use the template in the announcement (see Appendix I). Applicants were also advised that the certification “must be executed by an official who is both familiar with the requirements of the certification and authorized to make the certification on behalf of the applicant agency.”
OJP did not develop specific guidance to its staff for reviewing the FY 2006 Coverdell Program external investigation certifications. Rather, the OJP reviewer simply followed the OJP Grant Manager’s Manual, which directs program managers to review “grant applications for completeness” using a generic application review checklist. According to the Deputy Director of NIJ’s Office of Science and Technology, a review should ensure that “on its face the [external investigation] certification looks accurate,” that is, every field was filled out, the applicant agency named on the certification and the grant application were the same, and the certification was signed by someone in a position of authority.