Chicago Tribune

WHEN LABS FALTER, DEFENDANTS PAY

Bias toward prosecution cited in Illinois cases

By Steve Mills, Flynn McRoberts and Maurice Possley
Tribune staff reporters

October 20, 2004

As John Willis sought to prove he had been wrongly convicted of a rape in the Chatham neighborhood, the Illinois State Police crime lab in Chicago came across a potential key to his innocence.

It was a single sheet of paper containing the lab results of analyst Pamela Fish, written in a tight scrawl. They showed she did not find Willis' blood type in semen recovered from the crime scene.

At his 1992 trial, though, Fish had testified her results were "inconclusive," meaning she could neither include nor exclude Willis as a potential source of the semen. Her testimony effectively denied him the scientific evidence that could have undermined the state's case.

Dubbed the "beauty shop rapist" for a series of similar attacks, Willis was convicted and sentenced to 100 years. Seven of those years would pass before he walked free and DNA linked another man to the crimes.

The question of who was responsible for Fish's crucial test results not being provided for Willis' trial remains a matter of heated debate.

What is not disputed is that Willis served 8 1/2 years behind bars for a crime he did not commit. The city and Cook County paid him $2.5 million and the state $100,000 to settle his wrongful conviction lawsuit, though no one admitted wrongdoing and the city said Fish followed protocols in her testing.

And Fish's career is in ruins. Earlier this year, the highly touted scientist, who once trained Illinois State Police DNA analysts, was quietly let go.

By her own account, Fish could have redone the tests in the Willis case to clarify the results, and even her bosses still say she should have.

"Was her interpretation one of the possible answers? Yes," James Kearney, Fish's former boss at the state police lab in Chicago, said in an interview. "Should her work have been redone? You know my answer to that--the work needed to be redone."

The behind-the-scenes drama of the Willis case, revealed in documents the Tribune went to court to unseal, provides a rare look inside the often-closed culture of Illinois' crime labs and is a vivid example of how faulty lab practices can help convict the innocent.

Labs are supposed to be where science and the pursuit of justice merge, but too often they are a place where mistakes, omissions and a lack of rigor lead investigators down false trails that end in wrongful convictions. A Tribune investigation has found that across the country, forensic science is being undermined by unproven theories and experts who testify in a misleading fashion.

For years, Fish has been a focus of criticism by defense attorneys and state legislators because her testing has been at the center of two major wrongful conviction cases involving five men, three of whom still have lawsuits pending against her.

But the work and testimony of other Illinois state lab analysts also have been challenged.

Two lab examiners asserted in a 1997 murder trial in Kane County that they could definitively link the defendant to the crime through his lip prints, even though the FBI has never validated the practice.

Two years ago, after a Cook County public defender questioned as misleading a drug analyst's report, lab officials had to step in and clarify policy.

And earlier this month, a DNA analyst pleaded guilty to charges of falsifying thousands of dollars of overtime claims, raising questions about her credibility as a prosecution witness.

Through city attorneys, Fish declined to be interviewed for this article. The city is defending her in two lawsuits involving her testing while she worked at the Chicago Police Department crime lab.

Her supporters say she has been unfairly maligned and held to scientific standards that have rapidly evolved in the years since she completed the disputed Willis tests in 1991. Her testing in that case, for instance, involved serology, a less exact method of identifying potential suspects than current DNA analysis.

"Dr. Fish has never been found to have testified falsely or reported false forensic results," wrote city attorney Thomas Samson in a letter responding to Tribune questions about her work. "Despite this, unproven allegations have ruined the career and reputation of a dedicated public servant and a smart, educated, forward-thinking scientist."

But even Fish's current and former bosses at the lab said in interviews that there were times she fell short. The commander of the Illinois state crime labs, Michael Sheppo, echoed Kearney's criticism that she should have retested the evidence in the Willis case.

Like many of her fellow analysts at the state police lab on Roosevelt Road in Chicago, Fish joined the state system when it took over the Chicago police lab in 1996.

Defenders of the state system object to any suggestion that the reputation of their labs is tied to the troubles at the old Chicago Police lab, which they say was underfunded and poorly run.

"You can't judge the Illinois State Police laboratory by work that was done by the Chicago Police laboratory," Kearney said.

Fish testified roughly a hundred times in court over the course of her career, most of them while she was with the Chicago police lab.

State police reviewed only casework after she left the Chicago lab and joined the state. Sheppo said that amounted to "very few" cases because she was a supervisor for most of her tenure at the state police lab; he said they found no errors.

"We did not do a complete case-file review of the work that she did for CPD," Sheppo said. "There was never anything to indicate that there was a need to do so."

The city noted that the Chicago police lab was audited by outside experts before the Illinois State Police took it over and that "the audit praised Dr. Fish."

But her former boss, Kearney, acknowledged that a review of all her cases might have been warranted.

"Maybe we should have gone back and looked at them," he said in a recent interview. "But it didn't happen."

The specter of bias

In crime labs across the country, DNA testing has unraveled convictions built on faulty lab work, and crime analysts have been accused of slanting their test results to help prosecutors win convictions.

Concerns about lab bias in Illinois were enough that former Gov. George Ryan's death penalty commission, which included prosecutors and retired judges, recommended forming an independent state crime lab "with its own budget, separate from any police agency or supervision." Such independent labs are rare.

The state legislature rejected the proposal, one of several steps urged by critics to make the crime labs' work more transparent.

"There needs to be vigorous disclosure and vigorous scrutiny in any adversarial system," said Greg O'Reilly, chief of the Cook County public defender's forensics unit and one of Willis' attorneys as he sought a new trial. "In our American system of justice, we don't just rely on the government to tell us everything is right."

In Illinois, not only do the paychecks of crime analysts come from a police agency; state law mandates they serve the prosecution, calling for the state police to operate a lab system to provide "forensic science and other investigative and laboratory services to local law-enforcement agencies and local state's attorneys"

But the commander of the state's crime labs flatly rejected any suggestion that the labs are slanted against defendants.

"Even though we are mandated to directly work with the prosecution and law enforcement," Sheppo said, "I totally disagree that in any way have we been biased against any particular individual."

Even staunch defenders of the crime labs, however, note that the culture inside the labs is more complex.

Don Plautz spent 24 years in the Illinois crime lab system as a supervisor and director before retiring in 2002. He said he had a different philosophy from many of his colleagues.

Many forensic scientists at the state police labs, Plautz said, saw their role as members of the state's attorney's team. "They thought they were prosecution witnesses," he said. "They didn't understand they were just scientists.

"If a defense attorney called, I'd talk to them," he said. "A lot of people felt they had to be very careful talking to them."

It was that attitude that Cook County Circuit Judge Daniel Locallo cautioned against in a hearing earlier this year to consider releasing internal lab documents disclosed in Willis' lawsuit.

"If I'm a defense counsel and there's science involved ... [I] should be able to go to that examiner and be able to say, `What did you do? What was your method? What were your findings?'" Locallo said in a hearing. "And the people who are working at the state crime lab should not take the position that `we are an arm of the prosecution.'

"They're scientists. They should be an arm of the truth."

The sometimes-cozy relationship between lab analysts and prosecutors played out in the case of Delmont Dobson.

In 2000, Dobson was charged with possession of cocaine. In June of that year, Amy Johnson, a forensic scientist in the drug chemistry section of the Chicago lab, reported that she had found a trace amount of cocaine in a piece of evidence weighing less than 0.1 grams.

But Johnson stated that she had "not analyzed" a second, larger sample that was seized.

Brendan Max, an assistant Cook County public defender, subpoenaed Johnson's lab testing data. The data showed that, in fact, Johnson had made a preliminary finding of possible cocaine, but she was unable to confirm that in repeated testing.

In March 2002, prosecutors dropped the case against Dobson because the lab tests only found trace amounts of drugs, according to a spokeswoman for the Cook County state's attorney's office.

About that time, Sheppo said, state lab administrators learned that some drug analysts in the Chicago lab were reporting their findings the same way.

Prosecutors had been requesting that analysts "just put `not analyzed' rather than giving a preliminary result in a report," Sheppo said. "They should have reported preliminary testing indicated the presence of cocaine, however positive confirmation was not obtained."

He said it was a holdover from a policy of Cook County prosecutors who didn't want preliminary test results reported.

After determining that some analysts were still following that procedure six years after the state lab took over the Chicago lab, Sheppo said, "We immediately, immediately made the policy clear that this will not occur. ... It's definitely more accurate to report exactly what you find."

A spokesman for Cook County prosecutors, John Gorman, said, "To my knowledge, there's never been such a policy."

The perception of crime-lab bias is further reinforced by the fact that of the roughly 260 accredited U.S. forensic labs, 90 percent are affiliated with law-enforcement agencies, according to the American Society of Crime Laboratory Directors' Laboratory Accreditation Board.

The accreditation board grew out of an effort to ensure that the federal government did not dictate the operation of crime labs. Though the federal government regulates labs that test everything from drugs to pet food, those that handle the evidence introduced into America's courts are self-policed.

Under a system set up by the organization, teams drawn from the nation's crime lab directors visit each other's facilities to grant the industry's seal of approval.

Critics say this encourages weak-kneed audits that do little to evaluate the true quality of forensic work. The consequences, they say, are the crime-lab scandals that have erupted across the country.

Lab defenders, on the other hand, say the scandals are the result of effective self-policing.

"The bulk of problems I've dealt with in forensic science have been identified by the fellow forensic scientists," Plautz said. "They police each other carefully. ... If we weren't watching ourselves, these problems wouldn't come to light. We blow the whistle on ourselves."

Lab star stumbles

For years, Pamela Fish was a star analyst, first for the Chicago Police Department's crime lab, then at the state police lab. More than just a line analyst with technical skills, she had impressive academic credentials.

A native of Evergreen Park, Fish, now 46, graduated from Mother McAuley High School in Chicago before getting her bachelor's and master's degrees in biology from Loyola University. Her 1982 master's thesis explored the homing habits of largemouth bass and other fish.

Over the years, she rose through the ranks at the Chicago police lab. The lab was housed at the old department headquarters at 11th and State Streets in a facility so inadequate that evidence was sometimes dried on the roof.

In 1991, the year she completed the serology test in the Willis case, Fish was in charge of the lab's serology unit.

She later became training coordinator for the state police lab's DNA section. She also obtained her doctorate in biology from the Illinois Institute of Technology, working nights and weekends for nearly seven years while still full-time at the lab.

"She really has excellent bench skills. She's really meticulous about keeping records," said Benjamin Stark, an IIT professor who was Fish's doctoral adviser.

A former boss at the lab also lauded Fish's work, noting that her imprint remains there. "The scientists that she trained in DNA analysis--they're the ones making all the cases now," said Laurence Mulcrone, a former director of the state police Chicago lab.

Fish's background could not be more different from that of John Willis. Growing up in the Arkansas Delta, he never finished the 4th grade, chopping and picking cotton instead of going to school. Even today, at age 56, he can barely read or write.

Yet, armed with little more than his own innocence, a dogged persistence and a rudimentary understanding of DNA gleaned from television, Willis cut through the opaque world of the crime laboratory.

"I kept hollering about the DNA," Willis said last year in a sworn deposition as part of his lawsuit. "I knew it would free me because I hadn't did nothing."

A self-described career tire thief and gambler, Willis told anyone who would listen that he had not committed a series of rapes and assaults that terrorized the Chatham neighborhood on Chicago's South Side in 1990.

According to his deposition, Willis denied his involvement to police from the beginning and was equally vocal in the courtroom.

"I didn't be quiet," he said. "I jumped up and I started screaming. ... I was telling the judge, I didn't rape nobody."

Cook County prosecutors, though, had compelling evidence: The victims of the sexual assaults had told police that Willis was their attacker.

In July 1991, as Willis neared trial, prosecutors and his lawyer, public defender David Eppenstein, agreed on serological testing of a semen-stained piece of toilet paper wrapper.

Although Willis had demanded DNA testing, at the time that technology was still in its infancy; the first conviction in Illinois in which DNA evidence was allowed came in 1990. Serology, which analyzed blood types, was the primary tool used in sexual assault cases in Cook County.

Willis was certain the serology tests would clear him. He believed he even knew who had committed the rapes: Fellow inmates in Cook County jail had told him that a man named Dennis McGruder had been arrested on sexual assault charges in Chatham and that he bore a striking resemblance to Willis.

At Willis' trial, Fish took the witness stand and told the jury that the serology tests were inconclusive.

In a letter to the Tribune, Samson asserted that even if Willis had the test results at his trial, they would not necessarily have cleared him, given that victims of the beauty shop rapist said he was their attacker.

"In a best-case scenario for the defense," Samson wrote, "Dr. Fish's serology analysis would have been the basis for a disagreement among experts, leaving the jury to rely upon the 11 eyewitness identifications of Mr. Willis as the perpetrator."

Samson also noted that the FBI expert who wrote the lab protocol involved in the testing "was prepared to testify on behalf of Dr. Fish that she properly followed" it.

Nevertheless, her test results--in the form of a handwritten log she kept as she performed her analysis--would have been a powerful piece of evidence for his defense. They showed Willis' blood type was different from the source of the semen.

He had blood type B and was a secretor--that is, his blood type could be determined from his bodily fluids, such as semen or saliva. The semen taken from the toilet tissue wrapper came from someone with blood type A.

After Willis was convicted and sent to Stateville penitentiary, lawyers from the Cook County public defender's office began pursuing his appeal. In 1997, they sought DNA testing.

The lab official responsible for handling such requests was Marian Caporusso, a veteran of the Chicago police lab who, like Fish, had made the move to the state lab.

Caporusso pulled the Willis file. After reviewing the handwritten notes, she went into Kearney's office and told him she would have interpreted the results differently than Fish did, according to Kearney's deposition in the Willis lawsuit.

Kearney's response: He was relieved to learn that Fish had done the test while working at the Chicago police lab, he said in the deposition.

"In other words, it wasn't on your watch?" Willis' attorney, Locke Bowman, a lawyer at the MacArthur Justice Center at the University of Chicago, asked.

"That's correct," Kearney replied.

Kearney said he then told Caporusso, who helped train Fish in serology testing, to talk to her about the case. Fish was in the middle of a training session when Caporusso approached her in a lab hallway.

Descriptions of what happened next vary widely, not only among the individuals involved but between their own accounts, first to state police investigators, then during Willis' lawsuit.

What is not in dispute is that Caporusso gave Fish the file. Fish told state police investigators that Caporusso asked her to interpret the results and Fish reiterated her view that they were inconclusive.

In her deposition, Fish explained why. "If your controls don't work properly, it's not a proper scientific procedure to call the results of that particular test," she said. "Therefore, the tests would be called inconclusive."

Fish told state police investigators that Caporusso responded, "I wouldn't have interpreted it that way." During the lawsuit, both women contended that there was no confrontation.

Why Fish did not re-run the serology test is likely to remain a mystery. In a deposition taken during Willis' lawsuit, Fish said that she considered running it again and that it would be "my laboratory practice" to do so, but acknowledged there was no evidence that she did.

Breakthrough in case

While DNA testing has dramatically improved the precision of evidence testing, the Willis case centered on a more basic issue: whether information helpful to him was improperly withheld.

Lab officials adamantly deny that contention and say Willis' attorney never asked for her handwritten notes. Had he specifically asked for them, they say, he would have received them.

The attorney, Eppenstein, made a standard request for documents before trial and received Fish's typewritten lab report. It included her finding of "inconclusive," but none of her handwritten notes.

"Before John Willis, nobody in my office or the private bar let it enter their mind that a forensic scientist would do what was done here," Eppenstein said. "There was no reason to ask for notes. I didn't suspect something was there, that it was different from the final report."

Finally, in 1998, Willis' post-conviction attorneys had a breakthrough. Responding to a subpoena specifically asking for the test results, a clerk in the Chicago lab faxed the public defender's office the crucial page.

His lawyers soon began to pursue a separate motion for a new trial. But it took months for DNA tests to exclude him as the rapist--and for McGruder to be implicated--partly because slides containing the semen evidence initially could not be found.

He was set free in February 1999. McGruder pleaded guilty to rape.

Fish's legacy is still being written.

She is still a defendant in a lawsuit stemming from the prosecution of four teenagers in the 1986 rape and murder of medical student Lori Roscetti.

In that case, one defendant pleaded guilty and agreed to testify for the prosecution. The others--cousins Larry and Calvin Ollins and Omar Saunders--were tried separately.

Fish testified that her serology test could only exclude Saunders. But Dr. Ed Blake, a DNA expert retained by a defense lawyer in another lawsuit, analyzed her testing and concluded that she should have excluded all the defendants. In a report for the defense, he called her testimony "scientific fraud."

City lawyers contended Blake's criticism was unfair and based on "20/20 hindsight."

DNA testing later cleared all four men after they spent as much as 15 years in prison. After they were pardoned in 2002, Chicago police linked two other men to the murder and said both gave videotaped re-enactments of the crime; they are awaiting trial.

While Calvin Ollins has settled his lawsuit for $1.5 million last year, lawsuits filed by the other three are pending. Citing that litigation, city lawyers declined to comment on the Roscetti case.

Last month, the Appellate Court ordered an evidentiary hearing in the case of former Death Row inmate David Smith, whose attorneys had alleged that Fish testified falsely against him at his murder trial.

The court noted that some of Fish's testimony was similar to her testimony against Willis--in particular, serology tests that she termed inconclusive. The panel said Smith's lawyers should be allowed to examine Fish's lab work.

City lawyers said that once the hearing is held, "the evidence will show a very different story."

The court, though, wrote that Smith's allegation "raises the question of whether Fish provided testimony inconsistent with her lab notes and lab results as she did in the Willis case."

Problems elsewhere

The work of Fish has drawn the most attention to the state crime labs, but it isn't their only trouble.

Earlier this month, Amy Rehnstrom, a DNA analyst at the Chicago lab, resigned after she was accused of felony theft for falsely claiming $2,400 in overtime.

Sheppo, the lab system's commander, would not comment on the Rehnstrom case. But he said any time questions are raised about analysts, officials review their work "to ensure the accuracy of the analysis."

Gorman, the state's attorney's spokesman, said prosecutors are confident in her work. "She has said that she stands by her work and that she didn't do anything untoward with her work," Gorman said, "and we have no reason to disbelieve that."

Authorities said they would notify defense attorneys in cases that she worked. But that may have little effect because under a plea deal, prosecutors allowed her to plead guilty to a misdemeanor and she was placed on court supervision.

Because Rehnstrom did not admit to a felony, some defense attorneys are concerned that judges may prohibit them from questioning her about the wrongdoing--preserving her credibility as a witness in the scores of cases she has handled.

"The question for the judge or the jury is this--is her testimony reliable if she says, `I did this work,' because she told the lab she was at work during certain hours, and someone has determined that was false," said Ruth McBeth, an assistant Cook County public defender.

Attempts to reach Rehnstrom for comment were unsuccessful.

Sheppo said the state labs' quality assurance program thoroughly checks analysts' work. One of the first of its kind when introduced in the 1980s, he said, it includes occasional courtroom visits by supervisors to make sure analysts are properly testifying.

Still, questions about the proficiency of the labs' analysts have been raised in a number of instances. In the case of Harold Hill and Dan Young, the state police's Chicago lab failed to detect semen on a piece of evidence.

Hill and Young were convicted of the 1990 rape and murder of Kathy Morgan but have long insisted they were innocent. A series of DNA tests over the last three years--using genetic material from Morgan's fingernails as well as from her clothes--has excluded the two men, turning up two genetic profiles of other individuals.

Earlier this year, the crime lab was asked to examine other pieces of clothing in an effort to detect semen. The lab said its tests found none.

But Hill and Young's attorneys pressed to have a private lab in New Orleans inspect the same evidence. In August, the lab, ReliaGene Technologies Inc., reported finding semen and sperm.

The Cook County state's attorney's office said ReliaGene was able to find the evidence when the state lab could not because the private lab used more sophisticated tests.

Sheppo said it was wrong to assume the state crime lab had erred and suggested the evidence could have been contaminated. He noted that the lab had done other DNA testing that had helped Hill and Young, including the fingernail tests.

"My question would be, is ReliaGene correct or are we correct? I don't know," said Sheppo, adding that the lab reviewed its work in the case and found "no major inconsistencies."

Prosecutors hope to complete a reinvestigation of the case soon.

Two lives forever changed

The day after John Willis was released from prison, in February 1999, the woman whose testimony helped convict him was the guest speaker at an Illinois judges seminar in Chicago. Her role: explaining DNA profiling and evidence to the jurists.

A few weeks later, Pamela Fish was promoted to oversee biochemistry testing at the lab.

In the summer of 2001, a state legislative committee holding hearings on prosecution misconduct questioned state police director Sam Nolen about Fish's work. At the time, State Rep. James Durkin (R-Westchester) urged Nolen to transfer Fish because of the questions about her work.

"I think right now it's probably not a good idea that she's in a position of authority in the crime lab," Durkin said. "I'm not asking for her head. I'm not asking for her to be fired. But I think the integrity of the crime lab is first and foremost."

Lab bosses then moved her into a research position where she would no longer be involved in criminal casework.

This summer, after Willis settled his lawsuit, Fish's contract was not renewed and she left the agency.

For his part, Willis bears Fish no ill will.

"I don't got nothing against her," Willis said in a deposition for his suit. "Like I said, I'm glad to be out. You know, whatever she do, she got to live with God herself on it."

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