Legal Aid Chief Demands Information On Cases The City Medical Examiner Is Reviewing For Errors; NY Is One of 14 States That Does Not Require Routine Disclosure In Criminal Cases
MONDAY, JANUARY 14, 2013

Following revelations that the New York City Medical Examiner is reviewing the work of a former City laboratory technician as a result of serious mistakes involving DNA evidence in 843 rape cases, Steven Banks, the Attorney-in-Chief, told The New York Times that The Legal Aid Society is demanding that the City turn over information about the cases under review or it will file a lawsuit to obtain the information. Banks noted that New York is only one of 14 states that does not require routine disclosure in criminal cases.

Up to this point,” Mr. Banks said, “they have not made information available to us, as the primary defender in New York City, to determine whether there’s an injustice that’s been done in past cases, pending cases, or allowing us to be on the lookout in future cases.” He added, “If it could happen with one analyst, how does anyone know that it stops there?”

Banks also discussed these DNA and disclosure problems on NPR.




The New York Times
Ex-Technician Denies Faulty DNA Work
By Joseph Goldstein and Nina Bernstein
January 11, 2013

A former New York City laboratory technician whose work on rape cases is now being scrutinized for serious mistakes said on Friday that she had been unaware there were problems in her work and, disputing an earlier report, denied she had resigned under pressure.

New York Examines Over 800 Rape Cases for Possible Mishandling of Evidence (January 11, 2013)

The former lab technician, Serrita Mitchell, said any problems must have been someone else’s.

“My work?” Ms. Mitchell said. “No, no, no, not my work.”

Earlier, the city medical examiner’s office, where Ms. Mitchell said she was employed from 2000 to 2011, said it was reviewing 843 rape cases handled by a lab technician who might have missed critical evidence.

So far, it has finished looking over about half the cases, and found 26 in which the technician had missed biological evidence and 19 in which evidence was commingled with evidence from other cases. In seven cases where evidence was missed, the medical examiner’s office was able to extract a DNA profile, raising the possibility that detectives could have caught some suspects sooner.

The office declined to identify the technician. Documents said she quit in November 2011 after the office moved to fire her, once supervisors had begun to discover deficiencies in her work. A city official who declined to be identified said Ms. Mitchell was the technician.

However, Ms. Mitchell, reached at her home in the Bronx on Friday, said she had never been told there were problems. “It couldn’t be me because your work gets checked,” she said. “You have supervisors.”

She also said that she had resigned because of a rotator cuff injury that impeded her movement. “I loved the job so much that I stayed a little longer,” she said, explaining that she had not expected to stay with the medical examiner’s office so long. “Then it was time to leave.”

Also on Friday, the Legal Aid Society, which provides criminal defense lawyers for most of the city’s poor defendants, said it was demanding that the city turn over information about the cases under review.

If needed, Legal Aid will sue the city to gain access to identifying information about the cases, its chief lawyer, Steven Banks, said, noting that New York was one of only 14 states that did not require routine disclosure of criminal evidence before trial.

Disclosure of the faulty examination of the evidence is prompting questions about outside review of the medical examiner’s office. The City Council on Friday announced plans for an emergency oversight committee, and its members spoke with outrage about the likelihood that missed semen stains and “false negatives” might have enabled rapists to go unpunished.

“The mishandling of rape cases is making double victims of women who have already suffered an indescribably horrific event,” said Christine C. Quinn, the Council speaker.

A few more details emerged Friday about a 2001 case involving the rape of a minor in Brooklyn, in which the technician missed biological evidence, the review found. The victim accused an 18-year-old acquaintance of forcing himself on her, and he was questioned by the police but not charged, according to a law enforcement official.

Unrelated to the rape, he pleaded guilty in 2005 to third-degree robbery and served two years in prison. The DNA sample he gave in the robbery case was matched with the one belatedly developed from evidence the technician had overlooked in the 2001 rape, law enforcement officials said. He was recently indicted in the 2001 rape.

Especially alarming to defense lawyers was the possibility that DNA samples were cross-contaminated and led to false convictions, or could do so in the future.

“Up to this point,” Mr. Banks said, “they have not made information available to us, as the primary defender in New York City, to determine whether there’s an injustice that’s been done in past cases, pending cases, or allowing us to be on the lookout in future cases.” He added, “If it could happen with one analyst, how does anyone know that it stops there?”

The medical examiner’s office has said that the risk of cross-contamination was extremely low and that it does not appear that anyone was wrongly convicted in the cases that have been reviewed so far. And officials in at least two of the city’s district attorneys’ offices — for Brooklyn and Manhattan — said they had not found any erroneous convictions.

But Mr. Banks said the authorities needed to do more, and that their statements thus far were the equivalent of “trust us.”

“Given what’s happened,” he said, “that’s cold comfort.”




All Things Considered
WNYC 820 AM Radio New York
January 11th, 2013 4-5 PM

Amy Eddings, Host: The city medical examiner’s office is reviewing hundreds of rape cases in which key evidence may have been mishandled. So far, the office has uncovered 26 cases in which a lab technician overlooked evidence, but the office says nobody was wrongfully convicted as a result. The cases span a decade, beginning in 2001. The review also poses a question for the lawyers who will be handling these cases. Here to talk about the ramifications in the legal world is the Legal Aid Society’s attorney-in-chief Steven Banks. Hi Steven! Welcome back to WNYC.

Steven Banks, the Legal Aid Society: Hi. Thanks for having us on, on this very serious issue.

Amy Eddings: Right. So, tell me how your lawyers, your office has been reacting to the news that the ME—technician in the medical examiner’s office may have mishandled as many as 800 cases?

Steven Banks: Hi. Thanks

Amy Eddings: Right. So, tell me how your lawyers, your office has been reacting to the news that the ME—technician in the medical examiner’s office may have mishandled as many as 800 cases?

Steven Banks: Well, it certainly calls into question what are the procedures for supervising and overseeing the collection and analysis and the reporting on evidence. You know, liberty and justice literally hang in the balance in terms of the testing and analysis and reporting that goes on in that office. And the idea that there could’ve been 800 cases that were subject to improper conduct is of great concern, and as you indicated in your comments, wrongful convictions are a serious concern in the criminal justice system, and if we’ve learned anything about DNA, it has the power to exonerate. But if collected, analyzed, and reported incorrectly, it has the power to cause an injustice to occur. And we’re greatly concerned about it.

Amy Eddings: Well, just to be clear though: lab officials say the errors involved with this technician’s work so far have been the reporting of false negatives, meaning suspects may have been let go or no case brought against them because of a lack of evidence, instead of false positives. So, no wrongful convictions found so far as a result of this technician’s work. But what—tell me what are some—go ahead.

Steven Banks: I mean, “so far” is an important term here. But, from at least the public report that was available in the paper this morning, there was a concern about cross-contamination as well, and it’s inconsistent to say, “well, it was all only about false negatives,” as the same time as there’s a cross-contamination issue present here. And I think, really, all we’re saying and our lawyers are saying is, “we want to know what the 800 cases are, so that we can look at those cases and reach our own conclusions.” It’s very similar to the situation a week ago in which it was revealed that 11,000 barrels of evidence were destroyed in two police warehouses. Both situations highlight a dirty little secret in New York State, which is that 36 other states have reformed their discovery laws in criminal cases, and New York is in the bo—it’s among 14 states, including Alabama, Louisiana, Texas, and other states, which are still living by trial by ambush. And in both the hurricane destruction of the 11,000 barrels case, and the 800 plus cases here, the truth is that we don’t know what is really going on in terms of the evidence because the government takes the position that they don’t have to tell us, as a general matter, what evidence exists. If you were sued in a debt case or in a contract case, you’d know everything going on about the claims against you in an early stage—not so in a criminal case. And the handling of evidence and, potentially, the destruction of evidence here and in the other instance really shined a light on this grave problem, which results in wrongful convictions.

Amy Eddings: And briefly, Steven Banks with the Legal Aid Society—do you expect changes to come from this, and where would they come from? From the medical examiner’s office or from the city or state?

Steven Banks: Well, it’s incumbent upon the medical examiner’s office to review its procedures and insure that there is appropriate supervision in place. I think that it’s high time that the state reform its discovery laws in the way that 36 other states have done, and now address it. And at the same time, it’s incumbent upon the city to provide us, as the primary criminal defense provider in the city and all five boroughs, with an accounting of the 800 cases so that we can evaluate which of our clients may have been affected by these decisions, and not simply accept the word that it’s okay.

Amy Eddings: Steven Banks is attorney in chief with the Legal Aid Society. Thank you so much.

Steven Banks: Thanks for having me on.