From the NY Times.
From the NY Times.
The National Academy of Science’s landmark report, Strengthening Forensic Science in the United States, A Path Forward, states on page 7 that (nuclear) DNA is the only forensic method “rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
This is, in fact, a true statement, with some important caveats. Nuclear DNA evidence is unequivocal, provided:
1) There is a single DNA profile present in the sample.
2) A sufficient quantity of genetic material is present in the sample
3) The genetic material in the sample is not too degraded.
4) It’s clear how the evidence arrived at the crime scene.
5) The testing lab makes no errors in its analysis.
6) The sample of genetic material is from a primary transfer, not secondary or tertiary. (Deposited directly by the person indicated by the DNA profile.)
I won’t belabor you with the details of electropherograms, relative fluorescence units, molecular weights, loci, alleles, detection thresholds, or stochastic thresholds. I’m guessing your eyes would just glaze over.
But be aware. For cases in which the biological sample is a mixture of DNA profiles, or if the sample doesn’t contain sufficient genetic material, or if the sample is degraded, you get into the area in which the analyst has to start making judgement calls. And this puts things right back in the same boat with all the other forensic pattern matching evidence – fingerprints, hair and fiber analysis, ballistics & toolmarks, shoe prints, tire tracks, and bite marks – that rely solely upon the individual analyst’s training, knowledge, experience, judgement, … and cognitive biases. A good example of this would be the Amanda Knox case in Italy. You can see our earlier post about this case here, which goes into more of the detail of DNA analysis (including secondary and tertiary transfer).
Please maintain awareness – DNA is trickier than you might think. Just because someone says they have “DNA evidence,” doesn’t mean it’s a ‘slam dunk.’ You really have to dig into the details; and as always, “the devil’s in the details.” The DNA testing lab should provide a “probability of occurrence” statistic which reflects consideration of all of the above provisions. And keep in mind that the lab won’t be able to tell you if they made any errors in their analysis.
See the CNN story here.
Thank you. Thank you. Thank you.
CSI – I hate the show. A pile of fictitious forensic junk that has been a burden to innocence work since its inception.
Prosecutors complain about it because they think it instills in the minds of jurors that there needs to be fancy, technical forensic evidence in order to convict a defendant. Maybe so, and if so, this might possibly result in a jury finding a defendant innocent who is actually guilty.
But there is a much more pernicious “other edge” to that sword. My view has always been that it instills in the minds of jurors that fancy, technical, forensic evidence is infallible, even though it may be scientific garbage. And this can, and does, result in a jury finding a defendant guilty who is actually innocent.
CSI, RIP. (No, not really.)
Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.
Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)
A. The myths that cause us to think that the justice system is fair and just, when it’s really not.
B. Recommendations for reform – Juries
C. Recommendations for reform – Prosecutors
D. Recommendations for reform – Judges
E. Recommendations for reform – General
I would add two more to the General category:
• Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.
• Abandon political election of prosecutors.
We’ve reported here before about the fact that FBI agents have been giving scientifically unsupportable testimony regarding hair comparison evidence for decades. Please see Hair Analysis Evidence About to Join CBLA as “Junk Science.”
This Monday, August 17th at 10pm ET/7p PT, Al Jazeera’s Emmy Award-winning “Fault Lines” investigates how the FBI used the flawed science of microscopic hair analysis to help convict thousands of criminal defendants.
In this new episode, “Under the Microscope: The FBI Hair Cases,” Fault Lines correspondent Josh Rushing and team travel to Savannah, Georgia to meet Joseph Sledge. In 1978, Sledge was convicted of murder, partly based on FBI testimony that his hair was “microscopically alike in all respects” to hairs found at the crime scene. He was released this January, after serving 37 years in prison, when DNA testing proved the hairs used at trial were not his.
As “Fault Lines” reveals, Sledge is among at least 74 Americans who were exonerated after being convicted of a crime involving the forensic science of microscopic hair analysis. “There was no physical evidence tying Joseph to the crime, and the microscopic hair comparison was the closest they could come,” attorney Christine Mumma of the North Carolina Center on Actual Innocence said of Sledge’s case.
Before the advent of DNA testing, the FBI used the technique of hair analysis for decades. Al Jazeera America interviewed former FBI hair examiner Morris Samuel Clark, who said he testified “hundreds of times” in court about hair evidence, and that FBI microscopic hair comparisons were based on “16 different characteristics.” However, with no database with which to compare hairs, Clark conceded that the FBI could not account for how hair characteristics are distributed in the general population.
“The hairs on your head are quite different depending on where they’re selected,” said Dr. Terry Melton, founder of Mitotyping Technologies, a Pennsylvania-based DNA lab. “Microscopy is a very subjective science, and DNA is exactly the opposite.”
In 2012, Dr. Melton’s DNA lab helped overturn convictions for two Washington, D.C.-area men: Kirk Odom, arrested for rape when he was 18 years old, and Santae Tribble, arrested for murder when he was 17. Sandra Levick, the public defender who represented both Odom and Tribble in their appeals, said, “We had all 13 of the hairs that the FBI had examined [in Tribble’s case] sent off [for DNA testing.]” DNA-testing revealed that one of the hairs used at trial belonged to a dog.
In 2012, these high-profile exonerations finally compelled the Department of Justice to conduct a thorough review. In cases reviewed thus far, they have found that 26 out of 28 FBI examiners made false claims at trial. “We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time,” said David Colapinto, an attorney at the National Whistleblower’s Center.
As of April 2015, the Department of Justice says it has reviewed about 1,800 cases – but in 40% of them, it closed the review due to lack of documentation. Officials from Justice and FBI declined to speak on camera for “Fault Lines” but publicly, they say they will notify defense counsel in cases they have reviewed, while declining to release the names of the defendants to the public. But with at least 14 defendants in question already executed or deceased of old age, is justice working too slowly?
Fault Lines’ “Under the Microscope: the FBI Hair Cases” premieres on Al Jazeera America on Monday, August 17th at 10 p.m. Eastern time/7 p.m. Pacific.
Al Jazeera America can be seen around the U.S. on Comcast Channel 107, Time Warner Cable, Dish Channel 216, DirecTV Channel 347, Verizon Fios Channel 614 and AT&T U-Verse Channel 1219.
We’ve posted about bite mark junk science here before. See About Bite Mark Evidence – Forensic Odontology.
Now, a leading White House science advisor has exhorted the National Institute of Standards and Technology (NIST) to eliminate bite mark evidence, because there is, in fact, no science to it at all. See Radley Balko’s recent article in the Washington Post here.
Balko also correctly advocates in his article that we MUST get trial court judges out of the business of being the decision makers about what is, or is not, valid science. “If not a single court in the country to date has been able to rule against a self-evidently absurd field like bite mark matching, why should we continue to entrust the courts to arbitrate the scientific validity of other evidence?“
Chris Fabricant and Tucker Carrington have posted the above-titled article on SSRN. Download here. The abstract states:
A decade ago a controversial article in Science Magazine predicted a coming “paradigm shift” that would push forensic sciences toward fundamental change as the result of “[l]egal and scientific forces . . . converging to drive an emerging skepticism about the claims of the traditional forensic individualization sciences.” This article argues that the predicted paradigm shift has occurred. We support our thesis through a deconstruction of the jurisprudence of two of the forensic disciplines implicated in numerous wrongful convictions – forensic odontology (bite mark analysis) and forensic hair microscopy – and an examination of a confluence of unprecedented events currently altering the landscape of forensic sciences. The empirical evidence and data gathered here demonstrates that traditional forensic identification techniques, as well as the doctrines supporting them, are ultimately no more than a house of cards built on unvalidated hypotheses and unsubstantiated or non-existent data. Several very serious consequences result, among them that state, and to some extent federal, jurisprudence that stands for the proposition that this type of evidence is admissible is objectively erroneous and must be reevaluated and effectively rejected as valid precedent; and that the long-overdue paradigm shift presents a unique ethical challenge to criminal justice professionals, one that current professional ethics regimes fail to adequately capture, even though fundamental due process norms compel the conclusion that prosecutors, defense attorneys, forensic experts and their respective governing bodies have an ethical, moral and legal duty to revisit affected cases and provide remedies. Put differently, the “path forward” for forensic sciences that the National Academy of Sciences identified in its seminal 2009 report must have a rear-view mirror.
I’m posting this because it’s important to always understand fully the fear that threats to the status quo create:
Washington, D.C. (PRWEB) May 06, 2015
A stern warning was issued to crime laboratory administrators that some post-conviction exonerations may have been secured by innocence activists using malicious tactics, or ‘innocence fraud’, creating potential public safety threats as convicted felons are released from prison.
The comments were made by John M. Collins Jr., the Chief Managing Editor of Crime Lab Report, in a speech detailing the preliminary findings of a study titled ‘The Innocence Audit’ at the annual symposium of the American Society of Crime Laboratory Directors (ASCLD) on Thursday, April 30, 2015. The event was held at the Wardman Park Marriott in Washington, D.C.
“Exonerations are extremely serious,” Collins told the audience of approximately 150 guests on the final day of the symposium. “For our criminal justice system to go back and say that the decision of a judge or jury who decided to put a particular individual in prison [was wrong] . . . and suddenly say that the individual shouldn’t be there – and is therefore free to return to life in the public – is very, very serious.”
Collins cited the 2003 exoneration of Steven Avery in Wisconsin as evidence of the public safety significance of exonerations. After being convicted of a 1985 rape in Manitowoc County Circuit Court (86-1831-CR), Avery was released from prison 18 years later with the help of the Wisconsin Innocence Project. But in 2005, two years after his exoneration, Avery was again convicted in Manitowoc County (05-CF-381) for the brutal killing of a young female Auto Trader Magazine photographer.
Collins said the strongest audience reaction seemed to come from his showing of crime scene photographs from the 1991 murder of Jacquetta Thomas in North Carolina. A white Nissan Pathfinder belonging to Gregory Taylor was found stuck in mud within close proximity of the victim’s body. Gregory Taylor was eventually convicted in 1993 in Wake County Superior Court (92CRS7128, 92CRS30701), but exonerated in 2010 and awarded $4.6 million dollars in post-conviction relief. Despite considerable evidence against him, Taylor was exonerated following what Collins argued was a coerced confession of a wayward prison inmate who had a history of confessing to crimes he didn’t commit.
Collins, who has studied overturned convictions for over a decade, also urged new research priorities to better understand what causes erroneous convictions. Among his recommendations was a call to evaluate drug use and addiction on the part of erroneously convicted felons, which Collins says is a “clear and consistent trend” worthy of study.
In the mean time, Collins hopes that The Innocence Audit will open people’s eyes to what goes on behind the scenes when activists are fighting to secure exonerations. “Our study is producing evidence that Innocence Fraud is real,” Collins says. “But it can be corrected with education and better standards of care for post-conviction activists and litigators. The ends cannot justify the means when the means are fraudulent.”
Crime Lab Report, now in its 9th year, is an independent quarterly publication focusing on media and industry affairs in forensic science. It is edited and distributed by the Forensic Foundations Group, which is based near Lansing, Michigan.
For more information about The Innocence Audit, or to make a donation in support of Crime Lab Report’s ongoing research, please visit http://www.crimelabreport.com/innocenceaudit.
We (I) haven’t posted here about forensics for some time, and the pot is long overdue for a stir. This post was triggered by a recent piece in the NY Times – Fix the Flaws in Forensic Science – see that NY Times story here. The Times story was in turn triggered by the recent “announcement” (admission) by the FBI that FBI agents had been giving scientifically unsupportable testimony regarding microscopic hair comparison in thousands of cases for decades.
Because of a belief and fear that much of forensics was flawed, the NAS Report (National Academy of Sciences), Forensic Science in the United States, A Path Forward, was commissioned by Congress in Fall of 2005. The report was published in 2009. The report issued a scathing condemnation of the current state of forensic “science.” It was, of course met, with a firestorm of resistance from the forensic and prosecutorial communities. Regardless, the US Department of Justice and the National Institute of Standards and Technology announced the joint creation of a National Commission of Forensic Science (NCFS) in 2013 – see previous WCB posts here, and here.
The NCFS did not hold its first meeting until February, 2014. The Commission released its first nine drafts of policy statements for public comment in October, 2014. In January, 2015, it officially adopted three of those statements. The adopted policies are highlighted in the list below:
While this has been going on, the sole federal judge on the commission, Jed Rakoff, resigned just last January in protest over the Justice Department’s position on an issue that would continue to favor prosecutors at the expense of full pretrial evidence exchange. There has since been an accommodation reached, but I suspect this is indicative of the Justice Department’s opposition to truly changing anything. This also causes me to wonder greatly about the objectivity of all the commission members.
Keep in mind also, that the commission is only empowered to make policy recommendations. It has no powers of oversight or enforcement, and no way to administer the adoption of its recommendations. My reading of the “tea leaves” here is that the advocates for the Justice Department and the existing forensic community have successfully kept the commission mired in politics and committees. So … there you have it. Six years after the publication of the NAS Report, a federal commission with no powers has adopted three policy recommendations.
In the meantime, the traditional forensic science community has been motoring along as if the NAS Report never happened. At the most recent American Academy of Forensic Sciences meeting, there was an active session on forensic odontology (bite mark analysis); a discipline for which the NAS Report states there is absolutely no scientific basis.
Do you wonder why I ask, “Will they EVER fix forensics?”
The Guardian has effectively put a human face here on the tragedy of the FBI’s admission this week that its agents presented flawed testimony in almost every trial in which they testified against criminal defendants for more than two decades before 2000.
The face is that of George Perrot, whose case was previously covered on the Wrongful Convictions Blog here and in which, it should be noted, this writer has played a small role.
Perrot was convicted as a teenager on rape charges in 1985 greatly on the testimony of FBI agent Wayne Oakes that a hair found on the victim’s bed was similar to a known sample of Perrot’s hair. It didn’t matter to the jury that the elderly victim said that the rape didn’t occur on the bed or that the long-haired, bearded Perrot didn’t resemble the short-haired, clean-shaven man who raped her. Oakes’ testimony was enough, an appeals court later ruled, to put Perrot behind bars, where he has languished for 30 years.
Thanks to the pro-bono work of the Ropes & Gray law firm, Perrot is back in court trying to clear his name, but Massachusetts prosecutors are still defending his conviction. They say Perrot did not file his claim in a timely manner and that there is other evidence of his guilt — a common refrain that many others convicted on the FBI’s hair-comparison testimony are sure to hear in the coming months and years as their cases make it into court.
From the Washington Post:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.
The FBI errors alone do not mean there was not other evidence of a convict’s guilt. Defendants and federal and state prosecutors in 46 states and the District are being notified to determine whether there are grounds for appeals. Four defendants were previously exonerated.
The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries, legal analysts said. The question now, they said, is how state authorities and the courts will respond to findings that confirm long-suspected problems with subjective, pattern-based forensic techniques — like hair and bite-mark comparisons — that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.
In a statement, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science.”
Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”
“We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner,” Neufeld said.
Norman L. Reimer, the NACDL’s executive director, said, “Hopefully, this project establishes a precedent so that in future situations it will not take years to remediate the injustice.”
While unnamed federal officials previously acknowledged widespread problems, the FBI until now has withheld comment because findings might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the FBI and Justice Department to notify defendants in all 2,500 targeted cases involving an FBI hair match about the problem even if their case has not been completed, and to redouble efforts in the three-year-old review to retrieve information on each case.
“These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law,” Blumenthal said.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and the panel’s ranking Democrat, Patrick J. Leahy (Vt.), urged the bureau to conduct “a root-cause analysis” to prevent future breakdowns.
“It is critical that the Bureau identify and address the systemic factors that allowed this far-reaching problem to occur and continue for more than a decade,” the lawmakers wrote FBI Director James B. Comey on March 27, as findings were being finalized.
The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines.
Federal authorities launched the investigation in 2012 after The Washington Post reported that flawed forensic hair matches might have led to the convictions of hundreds of potentially innocent people since at least the 1970s, typically for murder, rape and other violent crimes nationwide.
The review confirmed that FBI experts systematically testified to the near-certainty of “matches” of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work.
In reality, there is no accepted research on how often hair from different people may appear the same. Since 2000, the lab has used visual hair comparison to rule out someone as a possible source of hair or in combination with more accurate DNA testing.
Warnings about the problem have been mounting. In 2002, the FBI reported that its own DNA testing found that examiners reported false hair matches more than 11 percent of the time. In the District, the only jurisdiction where defenders and prosecutors have re-investigated all FBI hair convictions, three of seven defendants whose trials included flawed FBI testimony have been exonerated through DNA testing since 2009, and courts have exonerated two more men. All five served 20 to 30 years in prison for rape or murder.
University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence.
“The tools don’t exist to handle systematic errors in our criminal justice system,” Garrett said. “The FBI deserves every recognition for doing something really remarkable here. The problem is there may be few judges, prosecutors or defense lawyers who are able or willing to do anything about it.”
Federal authorities are offering new DNA testing in cases with errors, if sought by a judge or prosecutor, and agreeing to drop procedural objections to appeals in federal cases.
However, biological evidence in the cases often is lost or unavailable. Among states, only California and Texas specifically allow appeals when experts recant or scientific advances undermine forensic evidence at trial.
Defense attorneys say scientifically invalid forensic testimony should be considered as violations of due process, as courts have held with false or misleading testimony.
The FBI searched more than 21,000 federal and state requests to its hair comparison unit from 1972 through 1999, identifying for review roughly 2,500 cases where examiners declared hair matches.
Reviews of 342 defendants’ convictions were completed as of early March, the NACDL and Innocence Project reported. In addition to the 268 trials in which FBI hair evidence was used against defendants, the review found cases in which defendants pleaded guilty, FBI examiners did not testify, did not assert a match or gave exculpatory testimony.
When such cases are included, by the FBI’s count examiners made statements exceeding the limits of science in about 90 percent of testimonies, including 34 death-penalty cases.
The findings likely scratch the surface. The FBI said as of mid-April that reviews of about 350 trial testimonies and 900 lab reports are nearly complete, with about 1,200 cases remaining.
The bureau said it is difficult to check cases before 1985, when files were computerized. It has been unable to review 700 cases because police or prosecutors did not respond to requests for information.
Also, the same FBI examiners whose work is under review taught 500 to 1,000 state and local crime lab analysts to testify in the same ways.
Texas, New York and North Carolina authorities are reviewing their hair examiner cases, with ad hoc efforts underway in about 15 other states.