This is a 50 page UBC Law Review narrative on the inadequacies of courts to recognize junk “forensic” experts. Battling Canadian bitemarkers leave a trail of exaggerated claims and criminal case law that is blind to scientific principles.
Crime Lab Director Says Too Busy to Search for Forensic Science Errors
Bruce Houlihan enjoys puzzles, but the Orange County Crime Lab director is purposely failing to solve one of the biggest riddles of his career: Why did his office quietly give conflicting, pro-prosecution, expert testimony in two cold-case, rape/murder trials?
Houlihan met that question—pending at least since 2016, when the Weekly revealed the controversy—with palpable silence until February, when he briefly emerged to deny wrongdoing. Hoping his word would be enough to sidestep an inquiry, he gave no meaningful explanation for his declaration. That misstep only drew additional scrutiny. So Houlihan decided he’d become tight-lipped again, unless commanded otherwise by court order.
Providing irreconcilable inconsistencies in murder cases isn’t the typical bureaucratic snafu. It’s a crisis. Because the overwhelming majority of jurors nationwide have little understanding of forensic-science minutia heard in court, they rely on the credibility of the crime lab officials’ sworn analysis.
But humans we want to trust aren’t always honest. For example, the Massachusetts Supreme Judicial Court reported in 2017 that as many as 21,000 criminal convictions over the years had been tainted by Annie Dookhan, a veteran forensic scientist. While her bosses ignored red flags, Dookhan forged test results, doctored evidence, lied about her misdeeds, wrecked thousands of innocent lives and eventually landed in prison.
In Orange County, our two top law-enforcement officials, District Attorney Tony Rackauckas and Sandra Hutchens—the boss of the Orange County Sheriff’s Department (OCSD)—spent years proving they can’t be trusted either. They’ve allowed deputies to run self-described “cappers,” or unconstitutional scams to help prosecutors win weak cases; hid exculpatory records from defendants; tolerated perjury when uttered by badged individuals; ignored lawfully issued court orders; and operated public-relations campaigns posing as untarnished protectors of justice.
It’s no surprise that Houlihan found allies in Rackauckas and Hutchens. The trio is fighting efforts by Assistant Public Defender Scott Sanders to solve the mystery of People v. Lynn Dean Johnson and People v. Wendell Lemond. How could the crime lab originally declare matching semen-deposit-timing findings at the outset of the 1985 Anaheim cases, denounce those findings as junk science when the cops wanted to nail Johnson in 2008, and then, without announcing their flip-flop on the flip-flop, regurgitate the original findings as gospel to nail Lemond in 2009?
Kevin Haskins, the prosecutor in Johnson, acknowledged the pivotal role the crime lab played. In his closing argument, Haskins urged jurors to abandon any doubts about the testimony of forensic scientists Daniel Gammie and Mary Hong. He argued their brilliance was on par with Galileo and Copernicus. Jurors bought it.
Given that the OC Crime Lab can’t be right in both Johnson and Lemond, you might have expected that a professional outfit would have immediately launched a probe in 2009. But officials did nothing, which is revealing. They weren’t curious to search for cases in which the crime lab’s testimony put innocent people in prison or left actual rapist/murderers on the street.
Sanders said he can explain the lab’s inaction. A legitimate probe would have been (and remains) a messy proposition potentially exposing a terrible truth. The lab altered its scientific opinion in Johnson to help prosecutors, he believes.
Last November, Superior Court Judge Cheri Pham, a former Rackauckas prosecutor, blocked Sanders’ request for a new trial. The public defender is now seeking relief at the California Court of Appeal. He’s facing opposition from Attorney General Xavier Becerra, a Los Angeles Democrat who in May campaigned at OCSD’s Santa Ana headquarters with Hutchens’ Republican-loaded command staff. Becerra claims he’s conducting an independent investigation into the department’s corruption.
Meanwhile, Sanders has also been asking Judge Julian Bailey to force law-enforcement officials and Houlihan to surrender hidden records that may additionally impeach the crime lab on semen-deposit-timing claims. Avery Harrison, a deputy DA, asserted that the task would be too time-consuming to perform. But Bailey began the year seemingly sympathetic with the public defender’s frustration with Houlihan’s stonewalling and refusal to answer questions. In March, the judge signaled that he’d allow Sanders to question the lab director under oath.
But at an April 19 hearing, Bailey—who won a seat on the bench with the endorsements of Rackauckas and members of his homicide unit, which despises Sanders—retreated. Reporters in attendance could feel the shift in attitude. The judge refused to summon Houlihan, who was on-call and a block away. Instead, Bailey reasoned out loud that the defense lawyer should be “satisfied,” at least temporarily, with inspecting the subpoenaed lab records for the period of 1985 to 2008.
In mid-May, Houlihan made Harrison’s prediction come true. He told the judge the hunt for responsive records would be too much of a time burden for the agency. He also asserted he did “not believe that reports after the late 1990s would likely contain any opinion regarding the timing of a semen deposit.”
So, what did the director do? He focused his attention on the records he believed would be least unhelpful to the defense. He prioritized searching electronic records made from 2000 to 2008.
Posing exhausted for a June 6 status report, the lab director declared he’d come up empty-handed. None of the work he’d done found anything responsive, he claimed. With the help of D. Kevin Dunn, his lawyer from the County Counsel’s office, he declared that searching hardcopy files from 1985 to the late 1990s, which are a priority for Sanders, would be a monumental task, an inadvertent admission the lab had never searched for other troubling reports, including those by Gammie and Hong, in a decade. (Gammie now works for a police department in Colorado; Hong runs forensic-sciences labs for the Attorney General.)
At a June 8 hearing, Dunn again pushed to further limit the scope of the defense subpoena. Seven months into the year, Sanders still hasn’t received a single document. He wasn’t happy at the session, repeatedly asking why nobody in law enforcement is concerned whether “bad science” has been used to win wrongful convictions. But Bailey agreed to further delays.
“I don’t see any detriment to [the defense] if I issue an order at this point along the lines that Mr. Dunn has proposed and that would allow some information for [Sanders] to work with,” the judge said.
The public defender looked exasperated. He said to Bailey, “I hope that the court will at least ask [Dunn and Harrington], ‘Aren’t you going to look [to see if you have used equally wrong science in other cases] anyways [without a court order]?’”
The judge refused, a move that must have delighted Rackauckas, his old pal who, at 75-years-old, is hoping he can defeat Supervisor Todd Spitzer in November’s election and grab a sixth-term.
The next stonewalling session in Bailey’s courtroom is set for Aug. 17.
R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.
