Opinion writer

In Oklahoma, two men who were convicted due in part to testimony from the same crime lab analyst have now been exonerated. Yet state officials continue to defend the analyst, and they’re refusing to go back and review her work.

Last week, the city of Tulsa agreed to pay Sedrick Courtney $8 million for a wrongful conviction that led to him spending 16 years in prison. He was convicted in 1996 in the 1995 robbery of a woman in her Tulsa apartment and was paroled in 2011. He later was exonerated.

Emma Freudenberger of the New York law firm Neufeld Scheck & Brustin said Tulsa police crime lab analyst Carol Cox testified at Courtney’s trial that a bleached red hair was found on a mask recovered at the crime scene and on Courtney. Defense attorneys say the hair from Courtney was neither red nor bleached and that it should have been obvious that it didn’t belong to him.

“It’s not that the testimony was made up or misleading. What she did was more devious than that,” Freudenberger said. “We’re not talking about evolving standards in science. We’re talking about a very basic standard: Don’t lie. She lied about finding the red hair on Sedrick’s head. The prosecutor said in closing it was key evidence.” . . .

Freudenberger said Cox also provided similar testimony in the conviction of Timothy Durham Jr. He was convicted in 1993 of the rape of an 11-year-old two years before, despite having several alibi witnesses who placed him in Texas at the time of the crime.

Victim identification played a key role in his conviction and led to a prison sentence of 3,220 years. DNA testing exonerated him in 1996 after the Innocence Project intervened.

Oklahoma law enforcement officials are standing by Cox. Here’s Gerry Bender, manager of the Litigation Division for the city of Tulsa.

“She testified straight-forward. She testified to the truth, and she testified to the evidence within the scientific standards of the day,” Bender said. “What these attorneys from New York do is take the standards of 1995 in hair analysis and look at it in the microscope of 2015. That is totally unfair to all the individuals involved.”

There are a lot of things wrong with that statement. First, the “these attorneys from New York” line is almost a parody of something a corrupt local local law enforcement official might have said in the 1960s. Bender might as well have said, “We’re tired of these outsiders coming around, stirring up trouble with their new ideas.”

Second, Cox wasn’t testifying “within the scientific standards of the day,” because at the time, there were no scientific standards for hair fiber analysis. There were guidelines adopted by various law enforcement agencies, forensics groups and crime labs. But until only recently, there hasn’t been any scientific research to develop standards for hair fiber analysis. That’s the problem. And the research that has been done recently has shown that the testimony these analysts have given for decades has been flawed in nearly every single case — for decades.

Third, even if Cox had been testifying “within the scientific standards of the day,” if those standards have now changed, and we know that the old standards caused innocent people to be convicted, whether or not Cox intended to deceive on the witness stand is completely irrelevant to the question of whether there ought to be a thorough review of her old cases. She may have been doing her absolute best, and with every intention giving the most accurate testimony she could, but if she was relying on a method of analysis that we now know to be scientifically unfounded, a review of all of her cases is imperative. You don’t let potentially innocent people rot in prison because you don’t want to besmirch the reputation of a loyal public servant.

Fourth, Bender notes that Courtney was also identified by an eyewitness. This, he claims, shows that Cox’s testimony isn’t the reason Courtney was wrongly convicted, and therefore she shouldn’t be subject to all of this criticism. Actually, it calls for precisely the opposite. We now know that Courtney was innocent. How is it that Cox’s analysis was able to implicate an innocent man? Was she told ahead of time about the eyewitness identification? Could that have introduced some bias to her analysis? Or did Cox do the analysis first, after which police or prosecutors then guided the witness into making a mistaken identification? Under either scenario, the fact that both a crime lab analyst and an eyewitness separately implicated an innocent man suggests that there are some serious problems with how Tulsa police and prosecutors handle and analyze evidence. If it happened in these two cases, it almost certainly happened in others. Instead of rushing to Cox’s defense, perhaps Bender and other public officials in Tulsa ought to be looking into that.

Meanwhile, the crime lab scandal in Massachusetts continues to fester. Here’s Dahlia Lithwick at Slate:

Perhaps the most dramatic example of a massive scandal that cannot seem to be reversed involves Annie Dookhan, a chemist who worked at a Massachusetts state lab drug analysis unit. Dookhan was sentenced in 2013 to at least three years in prison, after pleading guilty in 2012 to having falsified thousands of drug tests. Among her extracurricular crime lab activities, Dookhan failed to properly test drug samples before declaring them positive, mixed up samples to create positive tests, forged signatures, and lied about her own credentials.

Over her nine-year career, Dookhan tested about 60,000 samples involved in roughly 34,000 criminal cases. Three years later, the state of Massachusetts still can’t figure out how to repair the damage she wrought almost single-handedly.

By the close of 2014, despite the fact that there were between 20,000-40,000 so-called “Dookhan defendants” (depending on whether you accept the state’s numbers or the American Civil Liberties Union’s), fewer than 1,200 had filed for postconviction relief.* Many of them were sentenced under plea agreements rather than at trial, and they feared that a re-examination of their cases could potentially lead to even longer sentences.

The state’s courts have since assured those convicted based on Dookhan’s testimony that they won’t get a longer sentence if they challenge their conviction, and it’s later upheld. But the state is mostly leaving it up to the convicted themselves to be aware of the Dookhan revelations, and to then challenge their convictions in court. As Lithwick points out, that requires hiring an attorney. That might be pretty difficult to do if, say, you can’t find a job because you were wrongly convicted of a drug crime.

And this isn’t even the most recent crime lab scandal in the state. More from Lithwick:

Only a few months after Dookhan’s conviction, it was discovered that another Massachusetts crime lab worker, Sonja Farak, who was addicted to drugs, not only stole her supply from the evidence room but also tampered with samples and performed tests under the influence, thus tainting as many as 10,000 or more prosecutions.

And once again, state officials have been less than forthcoming about the extent of the scandal, putting their own reputations above overturning the convictions of innocent people.

Retired Superior Court Judge Peter A. Velis was appointed by Attorney General Maura Healey to examine the Farak case after the April ruling, and he is tasked with determining the real scope of wrongdoing from the Farak case. Among other things, Velis’ investigation is now looking into allegations by several defense lawyers that the attorney general’s office under then–Attorney General Martha Coakley deliberately withheld evidence that the Farak scandal was much worse than it let on.

Two defense attorneys, Luke Ryan and Rebecca Jacobstein, subpoenaed Farak’s medical records to see if their clients had been affected and found that her drug use and theft had extended all the way back to 2004, eight full years before the state claimed it began. They contend that this new evidence warrants a review of all 29,000 samples Farak claimed to have tested during her career. They also claim the government concealed this “smoking gun” evidence from defense attorneys.

Documents revealing Farak’s addiction were kept from defense lawyers for more than a year and a half, despite multiple requests. Once they were finally able to inspect these documents, defense attorneys obtained court orders requiring Farak’s clinicians to produce copies of their treatment records.* Judge C. Jeffrey Kinder ruled last June that Farak’s treatment records should be unsealed because they contain information that could be important to others whose cases involved evidence tainted by Farak. Among the newly revealed records are these notes from a local Amherst, Massachusetts, therapist who treated Farak in 2009 and 2010: “She obtains the drugs from her job at the state drug lab, by taking portions of samples that have come in to be tested.” . . .

Retired Superior Court Judge Peter A. Velis was appointed by Attorney General Maura Healey to examine the Farak case after the April ruling, and he is tasked with determining the real scope of wrongdoing from the Farak case. Among other things, Velis’ investigation is now looking into allegations by several defense lawyers that the attorney general’s office under then–Attorney General Martha Coakley deliberately withheld evidence that the Farak scandal was much worse than it let on.

Two defense attorneys, Luke Ryan and Rebecca Jacobstein, subpoenaed Farak’s medical records to see if their clients had been affected and found that her drug use and theft had extended all the way back to 2004, eight full years before the state claimed it began. They contend that this new evidence warrants a review of all 29,000 samples Farak claimed to have tested during her career. They also claim the government concealed this “smoking gun” evidence from defense attorneys.

Documents revealing Farak’s addiction were kept from defense lawyers for more than a year and a half, despite multiple requests.

Ah, Martha Coakley. Funny how the same names keep popping up over over again. Here’s the kicker:

Despite the ongoing scandal, the district attorneys take the position that it is not their responsibility to help identify Dookhan or Farak defendants. They lack the budgets or resources to do so, and—as they have argued in oral argument in the Bridgeman case—prosecutors have no special duty to notify defendants that their convictions might have been obtained with evidence that was falsified by government employees.

Emphasis mine. Read that line a few times. Let it sink in. This is consistent with other crime lab scandals across the country.

Back in the Oklahoma story, Bender lamented that those defense attorneys from New York were implicating not just Cox, but also hard-working cops and prosecutors — that they were “trying to trash the names and careers of professionals who have given to our community for years.” But really. What sort of public servant sees no ethical obligation to even notify potentially innocent people that the conviction that sent them to prison and ruined their lives was won with falsified evidence, and that they could now try to clear their names? Scratch that. I guess we know what sort of public official — a prosecutor.

But even if there is no professional obligation, there’s certainly a moral one.