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In an interview with SF Weekly, Harmon says he had concluded in a report he issued to the DA's office and SFPD that some of Tamburello's concerns were substantiated, and that there were problems with omission of information in Boland's forensic report. (Citing past contractual obligations with the DA's office, he would not elaborate.) He suggested it be turned over to defense lawyers, since he believed prosecutors would be obligated to reveal it in future cases involving Boland's work. "If I were the prosecutor, I wouldn't hesitate to turn it over," he says.
The DA's office never did so, even after Massullo's ruling. Harmon said he was concerned about the secrecy that has surrounded the document. Harmon says he doesn't know whether the document was shared by the SFPD with auditors from the California Department of Justice, who visited the DNA lab last spring and issued a largely favorable report on its work. The audit made no mention of his findings, although he says "there are many areas in there that could have been affected by my evaluation."
Henderson, the DA's chief of administration — and a rumored successor to Harris when she departs for Sacramento — responded to a Nov. 30 public records request from SF Weekly for the report under the city's Sunshine Ordinance with a letter claiming the office had no such document. Harmon says he is at a loss to account for this statement.
The SFPD has also launched an internal affairs investigation into Boland, according to department spokeswoman Lt. Lyn Tomioka, which has not yet been completed. ASCLD concluded in its own inspection of the lab that Tamburello's complaints were unwarranted, since Boland had disclosed the existence of the unidentified DNA in her report.
In a puzzling shortcoming, however, investigators admitted that they never reviewed her trial testimony, "because the transcript was not available at the time" of the visit. Harmon said this was a serious oversight, and that "you have to read the trial testimony" to understand what Boland did wrong, since aspects of her scientific findings emerged that had not been disclosed in her report or grand jury testimony.
Boland declined to talk to SF Weekly about the case. "I'm really not at liberty to speak about that," she says. "I think the ASCLD report says it all — that [Tamburello's complaint is] unsubstantiated."
In a series of e-mails with Blake of the Forensic Science Associates lab after the trial, Boland justified her conduct by noting that she had identified the unknown genetic profile in both her report and testimony, even if she did not make clear that its contributor's DNA was present in amounts that dwarfed that of either Brown or Wilson.
She said she had not uploaded the profile into CODIS — the FBI's database of criminals' DNA — to seek a match because she had been asked to identify only the DNA of Brown and Wilson. She also asserted that the unknown DNA did not meet the strict guidelines for submission to the database — guidelines intended to prevent innocent persons' DNA from being entered, where it could potentially be subject to a mismatch.
Blake still maintains that Boland's failure to disclose a dominant untested DNA profile on the evidence "was deceptive in her report, and she did that in front of the grand jury, which to my mind is a criminal act." The failure to try to track down a murder suspect using that genetic clue should puzzle any thinking person, he adds. "I don't understand how anyone can sit back and look at that situation and think that's how anyone in a laboratory or a law-enforcement agency should operate."
Such criticisms don't appear to have hampered Boland's professional ascent at the crime laboratory. With Gabriel gone, she is now the DNA unit's supervisor.
The ultimate effect of the latest series of revelations about the SFPD crime lab is anyone's guess. News of the sample switch has renewed calls — which resounded during the Madden crisis — for the outsourcing of forensic testing, or the creation of an independent lab, perhaps modeled on the medical examiner's office.
Advocates of this approach say it would allow analysts to perform their work without the tacit pressure of being employed by a police agency seeking evidence that points to guilt. Such an arrangement could prove not only more ethically sound but also cheaper: In June, a city controller's report found that outsourcing all forensics testing would save up to $21 million over five years.
The scandal's short-term results are equally hard to predict. Gabriel's role in the concealment of Nelson's error could theoretically taint much of the work done at the lab, since he was responsible for overseeing it. Evidence handled by Nelson will certainly be subject to impeachment by defense attorneys because of the incident. (At a recent federal court hearing, Nelson testified that she has handled 300 cases of DNA analysis, and appeared in court as a witness 13 times.) The consequences of Boland's behavior in the prosecution of Wilson and Brown will be more evident once Harmon's report surfaces or the SFPD concludes its internal-affairs investigation.
Erin Murphy, a professor at New York University Law School and expert in DNA evidence, says common sense dictates that at least the cases with evidence tested by Nelson in the same batch as the switched samples — and probably others from around the same period — are directly affected by ASCLD's findings. "If someone told you, 'I tested you for HIV. There was a sample switch at the lab, but don't worry, you can trust me,' you would probably want to be tested again," Murphy says.
It will take time for the city's judges and policymakers to sort out the meaning of what has taken place over the past two years, and which criminal cases are directly affected. But the process has begun.