By
Brendan J. Lyons
Updated 7:45 pm, Friday, June 1, 2018
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Brian J. Gestring, a former director for the state Division of Criminal Justice Services, was never disciplined after an inspector general's investigation found he threatened employees with physical violence ... more
ALBANY — A former forensics director at the state Division of Criminal Justice Services has accused the agency's acting commissioner, Michael C. Green, of providing false information to a state forensic science commission during a meeting in March.
The former director, Brian J. Gestring, headed DCJS's forensic science unit before he was fired that month following an unrelated workplace misconduct investigation. In a letter sent Friday to the state Commission on Forensic Science, Gestring said that Green also did not disclose to the commission that the agency had three "catastrophic" cases in the past year in which it misidentified suspects who had been linked to crimes through DNA.
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Green is chairman of the state's 14-member forensic science commission, which oversees accreditation of New York's crime laboratories and also develops minimum standards for those facilities.
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Gestring's six-page letter to the commission said Green's alleged misstatements took place during a March 21 meeting in Albany as Green responded to questions from Marvin E. Schechter — a New York City criminal defense attorney who sits on the commission — about whether DCJS employees perform DNA identification work and if any "non-conformances" are reported to the panel.
"While it is true that DCJS does not operate a physical DNA laboratory and does not perform the analysis of the sample, the statement (by Green) that 'DCJS has nothing to do with DNA identifications' is not accurate," Gestring wrote in his letter. "In fact, DCJS is the agency that makes the identification once the lab analysis is completed."
Gestring said that Green made the misstatements at a time "he was aware of three catastrophic DNA hit notification failures directly attributable to DCJS within the last year."
"Within that same time frame, Chair Green was also aware that another DCJS employee, ironically the DNA hit coordinator, had falsified a certification document associated with a high-profile case going to trial," Gestring added.
Schechter could not be reached for comment.
Green declined a request to be interviewed for this story. A spokeswoman for DCJS issued a statement late Friday characterizing Gestring as a "disgruntled former employee."
"The division is unaware of any instances in which an incorrect DNA identification has resulted in a wrongful arrest or prosecution," said Janine Kava, the agency's spokeswoman. "Mr. Gestring also fails to mention that DCJS has internal processes in place to identify errors and address them. It is telling that this individual waited months until after he was fired for inappropriate behavior to raise this non-issue and extoll his own virtue."
Gestring did not identify the person accused of falsifying the DNA document, but said the female employee was suspended and subsequently retired. The case in which the DNA certification was allegedly falsified involved a double murder on Long Island in which John Bittrolff, a 51-year-old carpenter, was convicted in July 2017 of murdering two women in 1993 and 1994.
Bittrolff was tied to the murder through DNA taken from semen found in the women's bodies, according to published reports. It was not immediately clear on Friday whether the falsification of the DNA records was disclosed by prosecutors to Bittrolff's attorney or what impact, if any, the incident may have had in the case.
It was the first case in New York in which a person was convicted based on the use of "familial DNA." Police zeroed in on Bittrolff after his brother's DNA — which was in a state database because of an unrelated arrest — was linked to the evidence found in the victims. The jury deliberated for seven days and told a judge three times they were deadlocked before convicting Bittrolff of second-degree murder, according to Newsday.
In a letter to Green last December, state Inspector General Catherine Leahy Scott informed him that her office, which had been asked by DCJS to investigate the DNA-falsification allegation, had determined the agency's "DNA hits coordinator negligently re-created and sent an inaccurate certified letter to the Suffolk County District Attorney."
In an interview Friday, Gestring said that in the other three cases he cited, no one was mistakenly arrested after law enforcement agencies were provided the wrong names of suspects. But he also said that no action was taken to notify the forensic commission or find out how many other times it may have happened and why.
"If you don't fix the problems that cause these failures to occur ... they're going to happen again," Gestring said. "The police didn't make the arrest yet, but who's to say they didn't in other cases?"
In his letter, Gestring urged the commission to expand its oversight to include overseeing the databank operations of the DCJS Office of Forensic Science.
"While OFS is not an accredited laboratory, nor does OFS have any mandate to report to the commission, these recent failures, and the seemingly deliberate attempt to hide them from this body have illustrated the need for change," Gestring wrote.
Gestring also maintained that he remains a member of the forensic science commission — even though he was terminated by DCJS — because the administration of Gov. Andrew M. Cuomo has not appointed his successor.
However, "I suspect this letter may prompt the usually lethargic and bureaucratic Governor's Office of Appointments to suddenly spring into action," he said.
Gestring's letter also confronted the allegations that preceded his termination three months ago: He said a DCJS program manager, Kimberly Schiavone, made "false claims" against him about inappropriate remarks and workplace violence incidents. He accused Schiavone and Gina L. Bianchi, a DCJS attorney who became embroiled in the case when she testified during an inspector general's investigation, of creating "a toxic culture within OFS that I spent years trying to fix."
In an interview, Gestring characterized Schiavone as a "constant complainer" who had performance issues and was more concerned about the size of her office than the integrity of the work done by their agency.
An inspector general's investigation found that Gestring had threatened female employees with physical violence and engaged in years of sexual harassment. But DCJS said they conducted an independent investigation of the allegations and determined Gestring had not engaged in misconduct.
On March 23, after a series of articles in the Times Union had highlighted the inspector general's investigation of Gestring,
he was fired by the agency for an unrelated incident in June 2017 in which he allegedly made an inappropriate comment during an off-site training seminar.
Bianchi, who has worked as an attorney at DCJS for 24 years, was terminated by Green last December after he interrogated her for more than two hours about her testimony to the inspector general's office.
Schiavone, a manager in the Forensic Services Office who had reported directly to Gestring since 2012, was notified that same day by three top DCJS officials, including Green, that she was being transferred to a different department because of their concern that she would not be able to work with Gestring anymore.
Schiavone had filed a workplace violence complaint against Gestring last August, but the agency did not follow up and never interviewed her about the complaint, said John W. Bailey, who is alsoSchiavone's attorney.
"The inspector general, an independent agency, found that it was Mr. Gestring who created the toxic environment," Bailey said. "His misconduct included sexism, ageism and racism. It was Mr. Gestring that did that and that was the conclusion of the inspector general."
Although she was terminated from her special counsel position, Bianchi was able under state employment rules to fall back to a junior-level attorney's position and remains employed at DCJS, although she took a $44,000-a-year pay cut.
She filed a federal lawsuit against the state last week.
Gestring, 48, is a former New York Police Department scientist. The inspector general's examination of his alleged workplace misconduct began 13 months ago when investigators with the inspector general's office stumbled onto the charges during their probe of the falsification of the DNA records in the Suffolk County murder case.
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