MENS REA: My letter to the Michigan State Police Accrediting Agency

By Michael J. Nichols I need to start asking the questions to stop wondering about the answers When a client is convicted either by plea or by a jury, I invariably rationalize. "He or she must have been guilty," I say to myself at some point. Usually, the rationalization happens when a forensic scientist testified and I endured the judicial gatekeeping in which the judge tries to speed up my cross or Voir Dire of the witness' opinion by accepting ipse dixit the fact that the lab must be doing it right. After all, are they not accredited or something? That is often the refrain from the bench. Not from all judges, but from many who want to move along the trial because after all, it is just a DUI. I got to the point where I even questioned myself. Then I started reading and listening to lawyer scientists like Justin McShane and Ted Vosk. Vosk is a Michigan native and Harvard Law graduate with an undergraduate degree in physics who is finishing his PhD. Vosk has opened the eyes of courts and the forensic community to measurement uncertainty. I began to ask questions about this accreditation. It is provided by the American Society of Crime Lab Directors Laboratory Accreditation Body (ASCLAD-LAB). Currently, the MSP is on its second legacy extension. In fact, in 2007 it was accredited even though the lab was deficient for not conducting double blind proficiency testing of its analysts. Now I want to know why the lab has had 2 extensions since its accreditation expired a year ago. I recently sent the letter below to ASCLAD LAB: To Whom It May Concern: I am an attorney who practices law in the State of Michigan, primarily focused on defending those charged with driving while intoxicated by alcohol or other drugs. This letter seeks the following information about the accreditation of the Michigan State Police Toxicology Laboratory system under the legacy extension program of ASCLAD/LAB: 1. The ASCLAD/LAB guidelines for measurement uncertainty require a laboratory to analyze, measure and report the uncertainty of a measurement, unless there is a written agreement with the customer-user. I have never been provided with a written agreement allowing the Michigan State Police Forensic Sciences Division in Lansing, Michigan, to report the lower of two results after truncating the third digit. The afore-described system is the system set forth in the current protocol in the determination of ethanol in the Forensic Science Division. Are you aware of a written agreement, and if so, will you provide a copy to me? 2. Michigan was granted a legacy extension twice within the last year. The first extension was granted in April, 2011, and the second in October, 2011. How many legacy extensions are permitted for a constituent laboratory? 3. The uncertainty budget that was provided to me in three separate cases by personnel for the Michigan State Police Forensic Science Division Laboratory in Lansing contains a few Type B sources of error, and one Type A source of error that assumes the input parameters are equally correlated to the overall measurement. No lab personnel has been able to explain to me how or why these sources of error were determined, and what their relationship is to the overall measurement system. Is this consistent with your accreditation practices? 4. Michigan was reaccredited in 2002 and 2007, despite the fact that the lab demonstrated a deficiency in the area of double-blind proficiency testing. Is the lab now performing double-blind proficiency testing? If not, will the lab be reaccredited? If the lab will be reaccredited, why do you require a laboratory to utilize double-blind proficiency testing of its analysts? Thank you in advance for your time and consideration in this matter. Should you have any questions, comments or concerns, please do not hesitate to contact me at any time. I request a written response within 14 days of the date of this letter. I have provided a self addressed stamped envelope for your convenience and savings. I look forward to hearing from you. Very truly yours, The Nichols Law Firm, PLLC I will report in this space what I receive back by way of a response. Another colleague in the National College for DUI Defense, Deandra Grant of Texas showed me another source on the ASCLAD mystique: a blog called http://www.bulletpath.com. I commend you to it if you, like I, have more questions than answers. ---------------- Michael J. Nichols is the author of the "Michigan OWI Handbook" by West Publishing. He is an adjunct professor of DUI law and practice at Thomas M Cooley Law School. Mr. Nichols was recently accepted into the American Academy of Forensic Sciences as an Associate Member of the Jurisprudence Section. He is also the Michigan Delegate to the National College for DUI Defense and is a member of the Friends of Ingham County Veterans Treatment Court Board of Directors. He can be reached at mnichols@nicholslaw.net Published: Fri, May 11, 2012