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Crime lab employee speaks against AG Wrigley's push to put cops in charge of crime lab scientists

Rob Port reports: North Dakota law requires that the state crime lab be separate from Bureau of Criminal Investigation. Attorney General Drew Wrigley wants to change that law, and put BCI in charge of the lab, but one lab employee is saying that would jeopardize the independence of the scientists who work there.

DrewWrigley
North Dakota Attorney General Drew Wrigley speaks at a press conference in Fargo in September 2022.
David Samson/The Forum
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MINOT, N.D. — Backlogs at North Dakota's crime lab have made headlines recently , and Attorney General Drew Wrigley has made it clear that part of his plan to address that situation is to put the crime lab under the jurisdiction of law enforcement.

The North Dakota Bureau of Criminal Investigation, specifically.

Wrigley said in an interview that when he speaks to law enforcement, delays at the crime lab are "one of the biggest problems they talk about."

But Amber Moch, a forensic scientist who works in the crime lab, says that putting scientists under the administration of law enforcement is a bad idea because it will harm the independence of the lab while doing nothing to address delays in processing results.

Both the crime lab and the BCI are under the umbrella of Wrigley's office, but a separation between the two is mandated by state law.

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A question of independence

Section 54-12-24 of the North Dakota Century Code states it bluntly: "The state crime laboratory must be administratively separated from the bureau of criminal investigation."

In researching the history of this statute, it appears this separation was put in place intentionally.

When this law was before the legislature in 2003, then-Attorney General Wayne Stenehjem told the Senate Appropriations Committee that the separation between BCI and the crime lab was a necessity.

"It is important that it be a separate division within our office so that we don’t have that argument that comes up when somebody from the Crime Lab comes in to testify saying don’t you work for the division that investigated this crime which would lead to a possible conflict or a claim that there was a conflict," he said in response to questioning from committee members. "So what we propose in this legislation is that one of the 13 divisions will be the Crime Lab. It will be separate and distinct from BCI. And that’s an important distinction to be sure we follow through with."

Wayne Stenehjem
Former North Dakota Attorney General Wayne Stenehjem
File photo

In testimony before the Senate Judiciary Committee that same session, Sandi Tabor, then serving as deputy attorney general, told lawmakers that it was necessary that the crime lab "be segregated from BCI to ensure there is no undue influence or pressure plays on the crime lab in the work that they do."

Wrigley, who was appointed by Gov. Doug Burgum to replace Stenehjem, who died earlier this year, is dismissive of concerns about lab independence. "We're planning on asking the Legislature to amend the statute to allow the lab to be situated under the umbrella of the BCI," he said. "At the same time, recognizing obviously the role of science and oversight and certifications, all those things, we'll maintain them."

"The average lab worker, the science techs, their work will remain completely unchanged by this," Wrigley continued. "We may have more emphasis on dealing with the drug backload, or the firearm backload, but the people doing the testing to get sound results and objectively verifiable results, those interests are going to be advanced by this."

A resource problem or an administration problem?

Moch, a graduate of the University of Mary who has worked at the state crime lab for nearly 11 years, disagrees — and she's speaking up about it.

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"I am passionate about science and forensics. Given my experience, I know that science should remain independent. I don't see how this change would benefit the lab when you take away its independence," she said in an interview.

She says the move would destroy the independence of the lab, and may result in some lab workers leaving.

"Part of our accreditation is, is there any undue pressure?" Moch said. "Would the cases of smaller agencies fall through the cracks while other cases are prioritized instead?"

Wrigley said the state's law enforcement community is backing this change.

US Attorney for the District of North Dakota Drew Wrigley and Fargo Police Chief David Zibolski at press conference at the federal courthouse on Tuesday, Jan. 19.jpg
North Dakota U.S. Attorney Drew Wrigley and Fargo Police Chief David Zibolski during a press conference at the Fargo federal courthouse on Tuesday, Jan. 19. Zibolski recently claimed that his department is waiting on 75 sexual assault kits to be tested by North Dakota's crime lab.
C.S. Hagen / The Forum

"Even before I was sworn in as attorney general, I was talking to men and women in leadership, there aren't a lot of 100% propositions, but 100% of the leadership in sheriff's departments and police departments are in favor of this," he said.

Moch wondered why crime lab personnel haven't been part of this discussion.

"Why wasn’t the director of the crime lab at those meetings?" she asked, adding that she's spoken to officials in the law enforcement community as well as prosecutors who are opposed to an administrative change. She also said that Stenehjem "fought previous efforts to change the administration of the crime lab" while he was in office "in order to maintain that independence of the lab."

Moch directed me to a number of academic papers, including a 2009 report from the National Academy of Sciences , arguing for independent crime labs. "It's like moving back in time. Most labs are moving in the other direction. Science under law enforcement would be a move backward."

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But Deputy Attorney General Claire Ness, who spoke along with Wrigley during an interview, dismissed these arguments. "It's not something that's required for accreditation," she said. "It's not required by a licensing agency."

'The lab needs a lot of help'

It is clear that there's a problem at the crime lab. Forum reporter April Baumgarter has reported that over 250 rape kits are awaiting testing by the crime lab .

Moch says the problem isn't administrative. She says the problem is funding.

"The only complaint from outside agencies is our turnaround time, but that’s a resource issue, and we're aware of it," she said, pointing out that the legislature recently cut the budget for the crime lab.

"We don't have the ability to test firearms in North Dakota. Now every time there is an arrest for a firearm crime, instead of utilizing our crime lab here, we have to find someone around the United States to test it," Wrigley said.

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Aaron Birst
Aaron Birst, executive director of the North Dakota State's Attorneys' Association

Moch said that state of affairs is due to the budget. She said that one employee who left the lab recently was the one who handled firearms tests. Another handled latent fingerprints. Now the lab can't do either.

"We weren’t very backlogged until the budget cuts when they pulled all of our employees," Moch said.

Aaron Birst, executive director of the North Dakota State's Attorneys' Association, an organization representing North Dakota's prosecutors, agreed with Moch that the problem is resources.

"The lab needs a lot of help, not from the administration, but from people in the trenches," he said. "It’s been very hard to keep that expertise because of the low wages. There’s just not a lot of them."

"If the Legislature doesn’t invest in getting better staff and more bodies, it doesn’t matter who is in charge of the lab," he continued.

The defense side is less ambivalent about the administration. While agreeing that the lab needs more resources, defense attorney Mark Friese, who works for the Vogel Law Firm in Fargo, said it needs to be away from law enforcement.

"It should be separate and independent from those that are investigating and enforcing the law," he said, "to protect the integrity of the underlying investigation. To avoid the appearance of impropriety. To ensure there are checks and balances in the process."

Horror stories

There are some anecdotes from other parts of the country which suggest that a lack of independence between a crime laboratory and law enforcement can create significant problems.

In Massachusetts, a crime lab employee named Annie Dookhan was caught faking tests, and lying about results, in order to ingratiate herself with friends in law enforcement. Her fraud resulted in the dismissal of tens of thousands of drug cases in that state, and the fallout continues a decade later as new evidence suggests that other crime lab employees there may have been engaged in inappropriate behavior as well.

In Houston, Texas, problems at the local crime lab were so prolific that, since 1993, there have been 179 convictions overturned due to errors in the forensic science used in the convictions. Of those, 115 were in Harris County, which is home to Houston.

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In 2014, Houston took their crime lab out from under the administration of the local police department and put it under the control of an independent board. Peter Stout was hired by that board to run the lab, and I spoke with him about the debate here in North Dakota.

He was surprised that some in North Dakota are pushing to end the independence of the lab.

"Pretty much everywhere in the country people are scratching their heads on what to do to structure laboratories in a more objective fashion," he said. "I have conversations with many municipalities and jurisdictions about going in the other direction. It’s actually ironic, you’ve actually had your laboratory separated from law enforcement since 2004, and just now the rest of the country is starting to say that’s a pretty good idea."

"North Dakota has managed to achieve something a lot of places in the country are struggling with," he continued. "You’re looking at going exactly the opposite direction of where most of the country is trying to get to."

Making this move will require the legislature to amend its current laws with respect to the crime lab. Wrigley says he expects he can get that done with backing from the law enforcement community, and is bolstered in that belief by conversations he's had with elected members of the Legislature.

"One hundred percent of the lawmakers I've spoken to were under the impression that the crime lab was already under the BCI," he said. "Their independence, their certifications, that will all stay the same."

The Legislature convenes for the 2023 session in January.

Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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