A Brookfield attorney maintains that, contrary to the opinion of state Attorney General J.B. Van Hollen, all is not well at the state crime lab.

Jerome F. Buting wrote a letter to the Wisconsin Department of Justice in September asking for a review of six instances of misconduct at the lab between 2002 and 2006. The lab has offices in Madison, Milwaukee and Wausau.

Buting is not satisfied with the DOJ’s response, which came in the form of a three-page letter to him, with an attached 10-page, single-spaced investigative report. The department also issued a press release that same day, stating that there have been no instances where faulty forensic test results were presented in court against criminal defendants, nor is there any evidence of systemic problems that would bring the reliability of the crime lab into question.

That report was based on the DOJ’s second investigation into the six incidents.

The problem, Buting said, is the investigation was conducted by department’s Division of Legal Services, rather than an outside, independent agency.

He plans to pursue the matter, by filing complaints with the federal Department of Justice and Congress. Buting said he is considering other courses of action as well, but doesn’t want to elaborate further on them.

Contaminated Evidence?

When he represented Steven Avery in his high-profile homicide trial, Buting, of Buting & Williams S.C., said he petitioned the court to allow a defense expert to be present during all DNA testing at the state crime lab. The prosecution objected. Among its arguments was that the expert’s presence would increase the chances of contaminating the evidence. The motion was denied. Then, at trial, a forensic expert for the state conceded that there nonetheless was contamination of the evidence in that case.

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Buting said this isn’t the only homicide case he’s handled involving alleged contamination of DNA evidence at the lab. He has another pending case where the lab reports indicate that an analyst’s DNA was present with the victim’s. Buting said he doesn’t have a high-volume practice. Rather, he handles high-stakes criminal cases, and just a few at a time. So having come across two cases in just a couple of years where there were irregularities at the lab troubles him deeply.

Buting discovered the incidents by obtaining public records regarding employee discipline. The alleged misconduct involved employee drunkenness during DNA analysis; falsified and errant fingerprint eliminations, and fingerprint errors; as well as serial infractions.

Bottom line: Buting said he believes misconduct and negligence at the lab has led to persons being wrongly imprisoned, or guilty persons being freed.

Assurance of Integrity

The Oct. 31 DOJ statement asserts otherwise.

“The integrity of Wisconsin’s criminal justice system depends on the reliability of the work performed by the state’s crime laboratories,” Van Hollen said. “The six personnel matters at issue were known and investigated by the Wisconsin Department of Justice long before Mr. Buting wrote his letter. They did not affect the reliability of forensic results in any criminal cases. The laboratories’ system of quality assurance worked.”

Buting said an independent investigation, conducted perhaps by the Legislative Audit Bureau, should have taken place because the lab has received monies from the Paul Coverdell Forensic Science Improvement Grant Program since June 2005.

The DOJ disagrees. Only one of the six incidents occurred after June 2005, wrote Michael G. Myszewki, administrator of the Division of Criminal Investigation, and Kevin Potter, assistant attorney general and administrator of the Division of Legal Services, in their letter to Buting.

They wrote, “As a condition of the grant, the Department designated the Division of Criminal Investigation and the Division of Legal Services as the government entities responsible for performing independent, external investigations. The grantor found this acceptable.

“In turn, 42 U.S.C. Sec. 3797(k)(4) only requires an investigation when the Depart-ment receives credible allegations of ‘serious negligence or misconduct substantially affecting the integrity of the forensic results generated by a Laboratory employee. In light of the above standard and the results of the Department’s original investigations, we do not believe the personnel matters discussed in your letter require a separate Coverdell investigation.”

Buting disagrees.

“I’ll be following up with the grant authorities and other people in Washington D.C. who are concerned with this type of violation of the law,” Buting said. “The department is risking the denial of future grant applications. I’m assuming that, in this economy, the loss of that kind of money would be of central concern.”

The DOJ indicated it had no duty to reinvestigate the incidents a second time, but it did so nonetheless, “to further guarantee public confidence in the work performed by the state’s crime laboratories.”

William A. Cosh, a spokesperson for the department, said it has nothing more to say about the dispute other than what’s in the Oct. 31 press release.