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Crime Lab Confidential: DA and SFPD Withheld Damaging Memo About DNA Lab Failings 

Wednesday, Aug 24 2011

Page 3 of 5

It is worth noting that criticisms of Boland's methods don't hinge on a particular opinion as to the guilt of Brown and Wilson. Had Boland attempted to identify the major DNA profile, and been forthright about its presence in her report and grand jury testimony, the case against the two men might still have been strong. So long as the genetic material did not match that of another convicted criminal who could plausibly have committed the murder, it arguably would have had little impact on prosecutors' case. As it was, her failure to perform due diligence in seeking out the contributor of the major DNA profile opened her to accusations of sloppy or even deceitful work.

"It flies in the face of what would be good scientific practice," says George Sensabaugh, a forensic sciences professor at UC Berkeley. "If it were a minor DNA profile and it were background noise, you might make an argument why it should be disregarded. But if it's part of a major profile, it's very hard to see how you would not disclose that. You're supposed to account for all the data you see."

Boland did not return calls seeking comment.

In April 2010, two months after Brown and Wilson were acquitted, Tamburello wrote a letter impugning Boland's methods. He sent it to Gascón, who at the time was SFPD chief. (Gascón was appointed interim DA in January, after Harris' election as state attorney general.) Tamburello wrote:

"The failure to include the information about the unknown major male DNA contributor violates the generally accepted standards of competency regarding report writing required by the scientific community. The failure to provide a full and accurate report in compliance with objective scientific standards certainly warrants an investigation regarding the crime labs [sic] protocols. But more importantly, a person who willfully misrepresents or conceals a material fact or makes a misleading statement in violation of his or her oath to testify truthfully before a Grand Jury may additionally constitute criminal conduct warranting futher [sic] investigation."

In response to this complaint, the SFPD opened an internal affairs investigation into Boland. Last month, SFPD spokesman Officer Albie Esparza said the status of that investigation could not be disclosed because it was a personnel matter.

Following the acquittal of Brown and Wilson, Boland wrote an e-mail to Edward Blake, a Richmond-based forensic scientist who dissected her work on behalf of Brown's defense team. In the messages, she justified her conduct by saying that she had identified the major unknown DNA profile in her report and testimony as present on one of the bicycle grips. (She did not address the thrust of Blake's criticism, which was that she had not disclosed that the profile was present on all of the grips on both bicycles.) Boland also said she had decided not to search for a match for the unknown DNA contributor in the FBI's database because the testing sample did not meet standards intended to protect false matches with innocent individuals who might have deposited DNA at a crime scene.

Blake, a respected DNA expert who has done extensive work for prosecutors and defense attorneys, was unconvinced. He decided to share Boland's e-mail apologia with a veteran prosecutor in San Francisco with whom he had worked in the past: Rockne Harmon.

Harmon is an unlikely whistleblower. A career prosecutor known for his hard-nosed effectiveness, he is past chairman of the California District Attorneys Association Forensic Evidence Committee. He has been an outspoken advocate of familial DNA testing, a controversial procedure that widens investigators' nets to seek DNA matches through suspects' relatives. Defense lawyers and civil libertarians have criticized the process as invasive and overly aggressive.

Harmon's opinion of Boland's work is not yet fully known, since the DA's office has declined to make public, or even acknowledge possessing, his formal memo on DNA lab operations. The memo's existence was revealed by Harmon in an interview for a December SF Weekly cover story ["Missing Links," 12/15/10] on problems at the crime lab's DNA unit. One day after the story was published, the DA's office, which had previously denied possessing his report, released eight pages of documentation.

The document was confusing. At first glance, it appeared to be an e-mail sent by Boland to Blake about her work on the Brown case. On closer review, it was evident that Harmon had written comments on Boland's explanation of her methods in the margins. His criticisms were underlined, a kind of annotation of her self-justifications. This unusual format could theoretically be one reason officials from the DA's office mistakenly thought the document was a private e-mail by Harmon.

In more recent interviews, Harmon has clarified the origins of the annotated e-mails. He says they were only an appendix to his more formal memorandum on the DNA lab. He declined to discuss the exact contents of the complete memo, but said one section of it was devoted to problems with DNA analysis as revealed in Boland's work on the Brown/Wilson case.

Even the observations that emerge in the incomplete documentation released by the DA's office are highly critical. Harmon notes that Boland does not deal with the question of why she omitted the full presence of the unknown DNA profile from her forensics report. "Because of this misleading writing of the report ... no one knew or should reasonably have been expected to know that this Major profile was there," Harmon writes. He also picks apart Boland's argument that the profile could not have been uploaded because of standards designed to protect innocent people from false matches. By Boland's erroneous standards for profile searching, Harmon points out, many previous successful SFPD investigations based on DNA evidence could not have been conducted.

About The Author

Peter Jamison


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