Errors and Medication, a question of Ethics or Cowardice?

[Boyd Baumgartner]

The most recent dust up in the profession raises some interesting questions. Namely, do we have an ethical responsibility as both employers and employees to restrict hiring people on, or disclosure of any medication we're on.

the article in question: http://www.rutlandherald.com/article/20 ... 003/NEWS02

State investigates handling of evidence in manslaughter case
By Patrick McArdle
STAFF WRITER - Published: October 5, 2011


BENNINGTON — An employee of the Department of Public Safety who has handled fingerprint information in police investigations, is under investigation by the state for possible misconduct while handling evidence in a Manchester manslaughter case, according to Lindsay Browning, a staff attorney for the Vermont Department of Human Resources.

Ann Horsman, a forensic latent prints examiner at the Vermont Forensics Laboratory, is the subject of the investigation. Browning said there had been no finding of misconduct against Horsman to date.

The investigation was discussed during a hearing in the manslaughter case against Nicholas Bell, who is accused of shooting his friend, Jeffrey Charbonneau, 24, in the chest and killing him on Nov. 25. Police said Bell, 24, of Manchester, believed he was holding an air rifle and intended to pull a prank on his friend but was instead holding a .22-caliber rifle.

Bell’s attorney, Matthew Harnett, was in Bennington criminal court Tuesday to ask that the state provide the file with the information about the investigation.

Harnett said he got a letter from Rosemary Gretkowski, on behalf of the Department of Public Safety, on July 12 that said Horsman “made some misrepresentations in her work” after examining the rifle in March.

“Basically, what they said was she reported doing a step in the fingerprint analysis that she didn’t actually do. They say she mislabeled photographs that she took. She used a dye stain without recording its use. They say in the letter that there are notes showing she didn’t do this one particular step in the analysis. The concern from this is that there may be lost evidence,” he said.

According to documents filed in Browning’s response to Harnett’s request, Horsman authorized the release of information by two doctors concerning whether her medical condition, treatment or medications impaired her memory in the past two years and affected her ability to do her job.

Harnett told Judge David Howard that when he requested the investigation file, he was not aware that the file contained any medical records.

The Bennington County state’s attorney’s office has already given notice that there was intention to call Horsman as a witness in Bell’s trial.

Harnett said he was requesting information on other cases on which Horsman worked because he wanted to raise questions about the state’s forensics laboratory.

Robert Plunkett, a deputy state’s attorney for Bennington County, said the state objected to releasing the list of police investigations on which Horsman worked, which he said included cases in every Vermont county and some federal investigations, because it had no relevance to Bell’s case.

Erica Marthage, Bennington County’s state’s attorney, said the state didn’t object to the investigative file being released but did not have the authority to order its release or the access to release the information itself.

Browning left a sealed copy of the investigative file with Howard who said he may decide to review the file privately and then decide whether it has relevance to Bell’s case and, therefore, should be released to the defense.

Howard gave Harnett 10 days to file a new request that would take into account that the file contains medical information. That deadline will extend into a scheduled two-week trial, so Howard said his decision may take an additional week or two after the Oct. 14 deadline.

Francis Aumand, director of the division of criminal justice services for the Vermont Department of Public Safety, confirmed on Tuesday that Horsman was the subject of a personnel investigation but said he couldn’t comment on the matter.

There's another article here: http://www.masslive.com/news/index.ssf/ ... _labr.html that raises an excellent point:

If a forensic analyst mishandles evidence and the stakes for a criminal defendant include a possible long prison term, "it's more than a personnel matter: It's obstruction of justice. It's tampering with evidence," Sleigh said.

I've now seen several reports of 'it wasn't my fault, it was the medication' with regards to errors. Considering the heavy reliance we have on cognition in performing our work, I think it's fair to ask the question do we have an ethical or even moral responsibility to disclose medications that we're taking or is this just a cop out on behalf of not wanting to own a mistake?

[Pat]

With all due respect, Boyd, I think you might be a little too hasty in rushing to judgment based on a newspaper article. I have seen allegations in the press that I absolutely knew to be false, allegations intended to stir controversy and sell newspapers in situations that lacked any real material wrongdoing by the individual being attacked. And it seems to me the major source of the allegations in this article was the defense attorney in an ongoing case – now there’s a reliable source! Certainly, he would not inflate his allegations to sway public opinion in an effort to negotiate a plea deal or get charges dismissed, would he? Or set himself up with free publicity as pseudo advertisements? I have no direct knowledge of any “facts” in this case, but Ann Horsman has a career spanning a quarter century which, to the best of my knowledge, is without blemish.

In a number of other labs and other situations, I have seen interoffice personality conflicts result in one person trying to torpedo another person’s career. I have seen situations in which the one attacked was not unethical, but the attacker was. And I have seen situations in which the unethical attacker was the one believed by the administration, at least initially.

I have also seen cases of latent print examinations done under the influence of prescription drugs that resulted in erroneous conclusions. Not all of those were reckless acts on the part of the examiners. Some were the result of doctors’ failures to warn the patients of the mind-altering effect of the drugs they prescribed. Even many common allergy and cold capsules can have an effect on an examiner’s perceptions. Stronger prescription medications can certainly be worse, but if your doctor neglects to warn you, are you going to take off work for as long as you are on any medication, just in case? Maybe not!

The unfortunate thing here is that with a pending internal police investigation and an ongoing criminal case, the defense attorney is free to stir the pot all he wants but the police agency will be very circumspect in replying publically. And Ms Horsman is probably restricted in how she can respond, as well.

Through past experience, I have learned that things are not always as they seem when you first read a newspaper article. I suspect more information will eventually be forthcoming and the situations, both with the man on trial and the examiner charged with misconduct, will fall out differently that this article would lead you to believe.

[Boyd Baumgartner]

I appreciate your willingness to engage and hold critical my assumptions, Pat. Keep in mind though, this isn't an indictment of Ann, just a question of if there's a trend in the field and how do we as people affected by this trend feel about it. It seems as though, there's a quick rush to dismiss allegations as yellow journalism and an overall silence when it comes to examiner error.

My intent is not to jump to any conclusion here, just making note that the story references medications and applying it to the bigger picture. I'm asking the question do we have an ethical responsibility both as employers and employees when it comes to medication? You're citing medications and erroneous conclusions, I've known of instances of it, and I would be willing to bet that other people know of instances as well. I would venture to say that it is an issue, and one you won't find on the normal entries in this forum.

The ethics/cowardice question applies equally to the individual as it does to the employer, which I stated as such. I think it's easy for an individual in job preservation mode to want to give an answer where the culpability doesn't lie directly on him or her. I also think it's easy for management to want to do the same to save face and dismiss the fact that there's something potentially wrong in the office.

For instance, you raise a great point about inflating things, and interpersonal issues, and again I think these roll up into ethics questions. If there is longstanding interpersonal issues, it shows a failing both among the workforce to handle it at the lowest level and among management staff to not resolve these issues. If they blow up into an issue which results in false allegations against coworkers, and ultimately undermines the examiner and lab, well there's something amiss for sure.

Lastly, seeing that we have a role in the administration of justice due to the implications our conclusions can hold, wouldn't you say we have an above normal obligation to see through the due diligence of that role? If I, as a citizen were sitting accused before the court and John Q Examiner was too incapacitated to do his job correctly, but was still on the payroll, I'd be pissed. Due diligence would be as little as staying home when you're sick and taking meds, or at least reading the labels that come with your medication that list the side effects. It could be as extensive as retiring early due to chronic pain conditions. It's well documented that chronic pain affects cognitive functions: http://journals.lww.com/clinicalpain/Ab ... ng.10.aspx

[Pat]

I had a good discussion a few years ago with a friend who is on the Human Factors working group about errors versus time in the job. As a rookie, a person starts out with a high error rate. The errors rapidly decrease as the rookie gets basic training and a little experience and the error rate stabilizes at a low level for a few decades. Then, near the end of a person's career, the error rate goes back up. Most of the time, the increase in errors late in a person's career is due to failure to change with new methods. The best example of early retirement at a relatively young age to avoid the late career rise in errors is in the airline pilot field. Nobody wants to be on the plane with an aging pilot who cannot adapt to new instrumentation!

Maybe we need something similar in our field. Take an examiner's magnifiers away before the age where health, medication, failing eyesight, inability to adjust to new policies and procedures, etc., become factors causing errors. It's all good and well to say the examiner has an ethical obligation to retire before reaching that point, but if you're 50 with no hope of finding another job, would you step down and find a bridge to live under and a dumpster in which to do your grocery shopping? It might be better to argue that the crime lab should live up to its ethical responsibility the way airlines do and provide for your full retirement at an early age, say 50 or 55. Good luck talking your chief into that one!

Sorry, Boyd. I don't have an easy answer. When there is a clearcut case of right and wrong, black and white, ethics is easy. But balancing ethical responsibilities that pull on you from different directions in the middle range with very close shades of gray is seldom as easy. With the effects of medication, for example, an examiner may not even be aware of potential side effects, and they may not even be stated on the label. If the examiner honestly believes the medication causes no impediment to judgement, is there an ethical lapse when the one in ten thousand side effect impairs judgement? I would say not.

You're very good with the philosophical arguments. I'm curious about your background in ethics and philosophy. Please carry on the discussion and give me some more food for thought here.

[Ernie Hamm]

Pat,

It seems like Ann Horsman was ‘outed’ by her administration, not a defense attorney. The DA only revealed what was received from an official government source. The extent and scope; and reasons for disclosure, of the State of Vermont’s internal investigation poses questions about their relationship with the analyst.

I was just in Northern Vermont and read a version of this ‘incident’ in a Burlington area newspaper. Ms. Horsman is freely cooperating with this development.

Ernie Hamm

[Michele]

It looks like this is still unresolved.

http://www.benningtonbanner.com/local/ci_19668998

Misconduct investigation stalls trial in fatal Manchester shooting
KEITH WHITCOMB JR.
Posted: 01/03/2012 10:50:23 PM EST

Tuesday January 3, 2012

BENNINGTON -- A misconduct investigation involving a state fingerprint expert has delayed the trial of a man accused of shooting his friend in Manchester on Thanksgiving Day 2010.

Nicholas D. Bell, 24, who lives in Manchester, pleaded not guilty in 2010 to manslaughter. Police said he shot his friend, Jeffrey R. Charbonneau, also 24 and of Manchester, in the chest with a .22 caliber rifle, thinking it was a BB gun. Police said it appears Bell was playing a prank and did not intend to kill Charbonneau.

Court records show that Bell's attorney, Matthew Harnett, filed for and was granted a motion to put off the trial, which was scheduled for Jan. 11, to a later date giving him time to depose employees of the state Department of Human Resources. The Bennington County State's Attorney's Office did not object.

In October, Harnett argued before the court that he should be provided with material pertaining to a DHR investigation on Ann Horsman, a fingerprint examiner at the Vermont Forensics Laboratory. Harnett told the court he learned there were claims of Horsman mislabeling some photographs and not properly cataloging steps she took in examining evidence she handled.

State officials have declined to comment on the investigation, and Bennington County State's Attorney's Office has indicated it does not plan on calling Horsman as a witness.