Category Archives: Forensic controls

A Victory for the “Flat Earth Society”


NEW YORK (AP) — Bite mark evidence that may connect a murder suspect to the victim will be allowed at his trial, a judge decided Thursday, disappointing those who hoped the case would help get the forensic technique banished from the nation’s courtrooms.

Manhattan state Supreme Court Justice Maxwell Wiley’s decision follows lengthy testimony last year that went to the heart of the reliability of bite mark analysis, which involves comparing bite marks left on the flesh of victims with the teeth of suspects.

At least 24 men convicted or charged with murder or rape based on bite marks found on victims have been exonerated in the U.S. since 2000, according to a June report by The Associated Press based on decades of court records, archives, news reports and filings by the Innocence Project, which helps wrongfully convicted inmates win freedom through DNA testing.

Many of those who were exonerated spent more than a decade in prison, including time on death row.

The AP analysis is the most comprehensive count to date of those exonerated after being convicted or charged based partially or entirely on bite mark evidence.

In Thursday’s case, Wiley said he would explain the reasoning behind his ruling in a written decision, but he did not say when that would be.

He did say that his basic finding was that “the field of bite mark analysis comports with the standards of evidence under New York law.” He added: “It’s obviously a field that has not been looked at closely by the courts in a long time.”

Chris Fabricant, director of strategic litigation at the Innocence Project, was at Thursday’s hearing and said Wiley’s decision was “contrary to the overwhelming consensus of the scientific community.”

“It’s a victory for the Flat Earth Society,” he said.

The Innocence Project and other defense attorneys slam bite mark analysis as sham science and argue that it should no longer be allowed in courtrooms.

Many forensic dentists defend the practice as useful, especially when trying to eliminate suspects, and say it has helped convict murderers and rapists, most famously serial killer Ted Bundy.

The New York case involves the murder of 33-year-old Kristine Yitref, whose beaten and strangled body was found wrapped in garbage bags under a bed in a hotel near Times Square in 2007.

A forensic dentist concluded that a mark on her body matched the teeth of Clarence Brian Dean, a 41-year-old fugitive sex offender from Alabama.

Dean told police he killed Yitref in self-defense, saying she and another man attacked him in a robbery attempt after he agreed to pay her for sex; no other man was found.

Dean is awaiting trial on a murder charge. His attorney declined to comment after Thursday’s hearing.

Prosecutors wanted the bite mark evidence allowed at his trial to help convince jurors of Dean’s guilt. His defense attorneys wanted it barred because of past mistakes involving the practice and how powerful bite mark evidence can be to jurors, even with opposing testimony.

Dr. David Senn, a San Antonio forensic dentist, testified in last year’s hearings that bite mark analysis is valid when used in a closed population of suspects and that problems of the past can be blamed on individual dentists, not the science itself.

“The issue is not that bite mark analysis is invalid, but that bite mark examiners are not properly vetted,” he said.

He added that he couldn’t imagine a case today in which he would identify a biter unless “there was other very strong corroborating evidence.”

Testifying for defense attorneys at the hearings was Dr. Mary Bush, a researcher at the University of Buffalowho has used computer models to study bite marks made on dead bodies using pliers and dental models. Her research, which has been published in the Journal of Forensic Sciences, found that human dentition is not unique and cannot be accurately transferred to skin.

Bush acknowledges that a significant limitation of her research includes the fact that she’s using dead bodies that have been frozen and thawed and using machinery to create bite marks, a method that is far from re-creating a real-life bite made on a live person during an act of violence.

Bush testified that she did not feel that bite marks should be admissible in courtrooms but that more research in the field is needed.


NSF to Support Forensics Research

The NAS Report (see here, here, and here) is ever so slowly starting to have an impact.

From the journal Nature, Aug.28, 2013.

The US National Science Foundation (NSF) is seeking proposals for basic research in forensic science, in an effort to improve rigor and standards. The move is partly a result of a 2009 US National Research Council report that called for the NSF to support forensics research, and for scientists and medical officers in the field to be certified, says Mark Weiss, division director for behavioral and cognitive science at the NSF in Arlington, Virginia. “If you’ve got an idea, we want to hear about it,” says Weiss, who adds that forensics research is considered a national and legislative priority. He encourages interested researchers to contact program directors in any relevant NSF directorate.

Crime Labs Paid For Convictions…

From the Huffington Post:

By Radley Balko

I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.

In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded.

Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’

In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’

Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’

Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.

Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.

Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.

No wonder there have been so many scandals. I’m sure we’ll continue to see more.

(Disclosure: In 2008, Koppl and I co-wrote an article for Slate on how to fix some of these problems.)


Top Chinese Forensic Scientist Quits in Protest Over Miscarriages of Justice

Following hot on the heels of previous posts about the rising awareness of wrongful convictions in China (see here… and here…. and here…), one of the leading forensic scientists in the country has now resigned in protest at the mishandling of evidence in criminal cases and a series of miscarriages of justice:


Wang Xuemei, the vice-president of the government-administered Chinese Forensic Medicine Association, said she could no longer be involved with an organisation that routinely serves up “ridiculous and false expert conclusions”

Defence solicitors have commented that the judiciary in China remain under the control of the Communist Party, and cannot be independent. Such comments, and a high profile resignation, should serve as clarion calls for reformers in China to work to bring about urgent reforms, and those in the international innocence movement must continue reaching out to our Chinese colleagues, to ensure that exonerations can be secured. Read more here…

Top Chinese forensic scientist quits over mishandled cases

Neil Heywood case: forensic scientist who raised doubts over conviction quits

Ahead of Bo Xilai trial, a top China forensic scientist quits

Tuesday’s Quick Clicks…

  • The National Center for Reason and Justice’s response to DA Kathleen Rice’s self-serving report on the Jesse Friedman case.
  • Irish Innocence Project students intern in the U.S.
  • A killer from Ipswich, England, who spent a decade claiming he was the victim of a miscarriage of justice has finally admitted his guilt.  Simon Hall, 35, was convicted and jailed for life in 2003 after murdering Joan Albert, 79, in her home in Capel St Mary, Suffolk. She was found in her hallway on December 16, 2001, after being stabbed five times.  He had protested his innocence ever since, launching a series of appeals, winning the backing of MPs and appearing in the BBC documentary Rough Justice.  But now it has emerged Hall, previously of Hill House Road, Ipswich, had admitted his guilt to prison authorities, bringing his campaign to an end.
  • An exonerated Durham man said Monday that the State Bureau of Investigation has agreed to pay him $4.6 million after he was wrongfully convicted of murder and spent 17 years behind bars.  Greg Taylor sued the agency after an independent review found questionable practices at its state crime lab. Taylor’s conviction was bolstered in part by blood evidence analysis from the lab that has since been discredited.
  • In New Orleans, police avoid turning over public records to Innocence Project New Orleans
  • Exoneree Brian Banks cherishes preseason debut with Atlanta Falcons

Death Investigation in the US – Medical Examiner or Coroner?

autopsy table

It’s common, in cases which involve a death, for the determination, by autopsy, of manner and cause of that death to result in criminal charges being filed against a suspect.  And in many cases, the results of that autopsy will be the evidence that convicts or acquits that suspect.  Unfortunately, it’s all too common for the results of an autopsy to be unreliable or downright wrong.

A wrong result from an autopsy?  How can this happen?  Accurate determination of manner and cause of death by autopsy requires a medical examiner, or coroner, with a high level of competency and with special training.  Sadly, there are both coroners and forensic pathologists practicing in this country who are unfit for the job.  To understand how this can be, it’s important to understand the distinction between a “medical examiner” and a “coroner.”  Medical examiners are appointed, or hired, by the responsible governmental body, and are uniformly qualified as forensic pathologists.  Coroners are politically elected, and in some states, are not even required to be a doctor.  In fact, South Carolina only recently required that a coroner be a high school graduate.  Coroners who have no medical credentials what so ever will commonly hire or contract forensic pathologists to perform the actual autopsies, but the competence and credentials of those pathologists may be of little concern to the hiring coroner, and the most important determining factor controlling those hiring decisions will be the budget.  There is also evidence to suggest that because the coroner is an elected political position, that those officials may unduly favor law enforcement in the decisions that they make.

The problems with the coroner system have been egregious enough that the National Academy of Sciences, in it’s landmark 2009 report “Strengthening Forensic Science in the United States, A Path Forward,” recommended that the coroner system be abolished.

In February, 2011, PBS aired an hour long investigation into the coroner system in the US titled ‘Post Mortem.’  I personally found this to be illuminating, eye-opening, infuriating, and riveting.  You can watch the video, PBS Frontline, “Post Mortem” here.

Forensic Science in the UK: “A Threat to Justice”

UnknownThe state of the forensic science ‘market’ in the UK has been the subject of much debate (see here…  ) March 2012 saw the closure of the main provider of forensic services, the Forensic Science Service, by order of the government. It was deemed that with the service ‘losing’ (note ‘losing’ rather than ‘costing’) 2million pounds a year, it could no longer be sustained. Instead, forensic provision is now provided by private companies, individual consultants, or the police themselves. Now, the highly respected Science and Technology Select Committee of MPs has produced a report on the ‘fiasco’ of forensic science in the UK, roundly criticising the government move to close the FSS and warning of the dangers of miscarriages of justice. The provision of forensic science is now fragmented, dangerously unsupervised and the lack of research funding will only make matters worse in the years to come. The damning report contains no ‘news’ to those critics who predicted that the risks the government were taking with forensic science could end in disaster: the wrongful conviction of innocents as well as the diminishing ability to detect offenders.  The government report has been widely reported in the press:

UK forensic science slammed by inquiry

Forensics upheaval ‘threat to justice’, MPs warn

The full Forensic Science report can be found here… 

Scientists Applaud FBI’s Decision To Review Reliability Of Forensic Hair Analysis


The FBI announced last week it would reexamine thousands of once-closed cases in which a person was convicted — and in some cases put to death —  based on hair samples. Known as microscopic hair comparison analysis, this type of testing was often used to link a criminal defendant to a crime, but its reliability has now been called into question.

The FBI said that in more than 2,000 cases from 1985 to 2000, analysts may have exaggerated the significance of hair analyses or reported them inaccurately. All defendants affected by the inaccurate analyses will be notified and offered free DNA testing if errors in are found in the FBI’s lab work or testimony.

According to a report from The Washington Post, more than 120 convictions have been flagged as suspicious in the FBI’s review thus far. Of those cases, 27 defendants received the death penalty as their punishment.

In addition to reviewing individual cases, the FBI is also using the review process to improve lab training, testimony, audit systems and research.

“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” Special Agent Ann Todd, a spokeswoman for the FBI, said. “The purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science.”

The review includes every case between 1985 and 2000 in which the FBI found a positive association between hair taken from defendants and hair found at a crime scene.

Those who pushed for the review included the national nonprofit Innocence Project, the National Association for Criminal Defense Lawyers and its partners, which included pro bono attorneys.

Since DNA testing can cost several thousand dollars, hair analysis is often used to link a defendant to a crime scene. However, the practice was deemed “highly unreliable” in 2009 by a National Academy of Sciences report that concluded hair sample analyses cannot be linked to one person, but only categories of people.

Despite the poor reliability, Todd says microscopic hair analysis is “a valid forensic technique and one that is still conducted at the lab” along with DNA testing.

Peter Neufeld, co-director of the Innocence Project, applauded the FBI’s admission that there may be an issue with the validity of some of the findings in the cases.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented,” he said in a press release.

The review “signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” Neufeld said. “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation.”

“It is possible to conduct hair microscopy and find similarities among various samples. But it appears that in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else,” he added. “The government is now acknowledging that this was wrong and that the science does not support such conclusions,”

Until all of the cases can be analyzed and verified for accuracy, officials from the Justice Department have waived the deadlines and procedural hurdles for those inmates who are currently on death row.

Steven D. Benjamin, a Virginia attorney and the president of the National Association for Criminal Defense Lawyers, said the Justice Department’s decision to delay the execution of those defendants whose innocence is once again up for debate is a critical step in “giving wrongly convicted people a fair chance at a fair review.”

“We hope that the actions taken by the FBI and DOJ will serve as a model for state law enforcement and crime laboratories throughout the country to respect ethical obligations to reverse wrongful convictions when learning about improper evidence,” said Norman Reimer, executive director of the association.

Though groups like the Innocence Project don’t often find themselves endorsing the FBI’s efforts, the organization’s leaders have all publicly applauded the FBI for the review. They say it is an important first step in “bringing together the law enforcement and defense communities in pursuit of the shared objective of ensuring that only the guilty are convicted and that only scientifically valid forensic science is used in our criminal justice system.”

Tuesday’s Quick Clicks…

  • Wisconsin exoneree Joseph Frey sadly now homeless
  • Taxpayers will pay nearly $500,000 for legal fees in the Michael Morton case
  • The Innocence Project (Cardozo), the National Association for Criminal Defense Lawyers (NACDL) and its partners announced a groundbreaking and historic agreement with the FBI and the Department of Justice (DOJ) to review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence.
  • Andrew Johnson exonerated by DNA in Wyoming

U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors

From the WashingtoPost:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

How accurate is forensic analysis?

Learn more about the reliability of each type of forensic analysis.





Firearm evidence

Hair and

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

Select a name below to see case reviews

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty. Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment. But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.

Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.

For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

“We didn’t do this to be a model for anyone — other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said. “That tone and approach is set from the very top of this building,” he said, referring to FBI Director Robert S. Mueller III.

David Christian “Chris” Hassell, director of the FBI Laboratory, said the review will be used to improve lab training, testimony, audit systems and research, as it has done when previousbreakdowns were uncovered. The lab overhauled scientific practices when whistleblowers revealed problems in 1996 and again after an FBI fingerprint misidentification in a high-profile 2003 terrorism case, he said.

“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” Hassell said. “That’s as true in forensics as anything else.”

How accurate is forensic analysis?

Learn more about the reliability of each type of forensic analysis.





Firearm evidence

Hair and

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

Select a name below to see case reviews

Advocates for defendants and the wrongly convicted called the undertaking a watershed moment in police and prosecutorial agencies’ willingness to re-open old cases because of scientific errors uncovered by DNA testing.

Peter J. Neufeld, co-founder of the Innocence Project, which supports inmates who seek exoneration through DNA testing, applauded the FBI, calling the review historic and a “major step forward to improve the criminal justice system and the rigor of forensic science in the United States.”

Norman L. Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defense bar to represent indigent convicts.

“That’s going to be a very big job as this unfolds,” said Reimer, whose group has spent 1,500 hours identifying cases for the second round of review.

Under terms finalized with the groups last month, the Justice Department will notify prosecutors and convicted defendants or defense attorneys if an internal review panel or the two external groups find that FBI examiners “exceeded the limits of science” when they claimed to link crime scene hair to defendants in reports or testimony.

If so, the department will assist the class of prisoners in unprecedented ways, including waiving statutes of limitations and other federal rules that since 1996 have restricted post-conviction appeals. The FBI also will test DNA evidence if sought by a judge or prosecutor.

The review will prioritize capital cases, then cases in which defendants are imprisoned.

Unlike DNA analysis, there is no accepted research on how often hair from different people may appear the same.

The federal inquiry came after the Public Defender Service helped exonerate three D.C. men through DNA testing that showed that three FBI hair examiners contributed to their wrongful convictions for rape or murder in the early 1980s.

The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents. Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.

Weissmann said that although earlier reviews lawfully gave prosecutors discretion to decide when to turn over potentially exculpatory material to the defense, greater transparency will “lessen skepticism” about the government’s motives. It also will be cheaper, faster and more effective because private parties can help track down decades-old cases.

Scientific errors “are not owned by one side,” he said. “This gives the same information to both sides, and they can litigate it.”

The review terms could have wide repercussions. The FBI is examining more than 21,000 federal and state cases referred to the FBI Lab’s hair unit from 1982 through 1999 — by which time DNA testing of hair was routine — and the bureau has asked for help in finding cases before lab files were computerized in 1985.

Of 15,000 files reviewed to date, the FBI said a hair association was declared in about 2,100 cases. Investigators have contacted police and prosecutors in more than 1,200 of those cases to find out whether hair evidence was used in a conviction, in which case trial transcripts will be sought. However, 400 of those cases have been closed because prosecutors did not respond.

On May 7, Mississippi’s Supreme Court stayed the execution of Willie Jerome Manning for a 1992 double homicide hours before he was set to die by lethal injection.

FBI cases may represent only the tip of the problem.

While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended one-week hair comparison classes given by FBI examiners between 1979 and 2009. Nearly all of them came from state and local labs.

State and local prosecutors handle more than 95 percent of violent crimes.

In April, the accreditation arm of the American Society of Crime Laboratory Continue reading

Monday’s Quick Clicks…

  • In China, efforts to exonerate an executed inmate underway; more from China here
  • Michigan Innocence Clinic wins case based on junk arson science
  • CCRC in England receives a 10% budget increase because of growing number of applications
  • Life after death row for Damien Echols of the West Memphis 3
  • More on exoneree Brian Banks and his journey to the NFL; Banks’ false accuser ordered to pay back her $2.6 million settlement against the school where she alleged Banks had raped her
  • The New York-based Innocence Project has assembled an Artists’ Committee which consists of writers, directors, actors, visual artists and musicians who support the innocence movement and are helping raise awareness about wrongful convictions. Members lend their talent and voice to the vital work of innocence organizations in a variety of ways, such as raising awareness and money, speaking out about the need to prevent wrongful convictions, and integrating these issues into their art. Several household names sit on the committee, including Yoko Ono, Sarah Jessica Parker, Stephen Colbert, Zooey Deschanel, and the late James Gandolfini, whose sudden death this past week shocked the nation.
  • Uriah Courtney of California embraces freedom
  • Kirk Bloodsworth marks 20 years since exoneration

Forensic staff investigated following wrongful conviction

By Jasmin McDermott
Police Oracle (UK)
Date – 5th July 2013

Forensic Science Service (FSS) staff involved in a crime scene exhibit mix up that resulted in a man being wrongfully convicted of possessing a live round will have to answer for their actions following claims they were aware the exhibit was a dummy.

Officers from Merseyside Police carried out a search of Thomas Smart’s property in Liverpool in January 2008 and discovered what appeared to be a live round. He was arrested on suspicion of illegally possessing ammunition.

Mr Smart told officers that he bought the round as an ornament and assumed it was not live. However, forensic scientist Philip Rydeard, employed by the FSS, said in a report that it was a bulleted cartridge.

Mr Smart was charged and pleaded guilty. He was given a four-month suspended sentenced and ordered to do 180 hours of unpaid work.

However, following an internal review a a year later in January 2009, staff discovered that there had been a mix up and that the exhibit numbers had been altered.

They apologised for the “quality failure” and admitted that there was the potential for a miscarriage of justice. But they denied that they owed any duty of care and said that Mr Rydeard was immune from any civil proceedings.

A judge ruled in 2012 that the FSS was protected by witness immunity and that the organisation owed no duty of care to Mr Smart. They dismissed his claims of negligence and breach of the Human Rights Act 1998.

However, Mr Smart appealed the decision and additionally lodged a claim of deceit – that forensic staff, including Mr Rydeard, knowingly altered exhibit records to falsely represent that it was the seized dummy bullet.

Lord Justice Moses sitting in the Court of Appeal ordered a full hearing into the case. He said: “Witnesses, if called by the FSS, will have to explain and justify the handling of the exhibits in this case.

“They cannot be protected from being questioned or from accounting for their actions.”

He added: “It must be recognised that, as a result of interference with the exhibit number, the real bullet was falsely attributed to Mr Smart.

“The effect of interference with exhibit numbers, whether it was designed originally to conceal confusion or ‘mix up’ or not, was the same as planting the real bullet in Mr Smart’s premises.

“It is alarming that the course of justice appears to have been perverted by the alteration of exhibit numbers and the failure to disclose that that had occurred or any reason why it occurred.”

The NAS Report – Aftermath

NASIt’s been four years since the National Academy of Sciences published its landmark study of forensics in the US —  Strengthening Forensic Science in the United States – A Path Forward (commonly known as ‘the NAS report’).  The report was nothing short of a “bombshell,” detailing the substantial scientific deficiencies of essentially all forensic disciplines, with the exception of DNA.  A report by the National Registry of Exonerations, covering 873 wrongful convictions from 1989 to 2012, shows that “false or misleading forensics” was a contributing cause in 24% of those cases.  The NAS report has been previously covered on this blog here and here.

The NAS report was met with “stonewall” and dismissive resistance by the extant forensic community, as well as the National Association of District Attorneys.  This is not surprising, since the members of these groups have much personally invested in the existing (but scientifically invalid) methods of forensics – not the least of which is careers.  The inertia to be overcome in “fixing” forensics is monumental, and for this reason, many of us in the innocence world (this editor included) feared that the NAS report would languish on the bookshelves of the legislators.

I am happy to report, however, that a significant first-step action is now underway at the federal level.  The Justice Department has announced that, in cooperation with the National Institute of Standards and Technology (NIST), it is forming the National Commission on Forensic Science.  The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.

Now, before jubilation sets in, note that the commission’s responsibilities are described as “guidance” and “recommendations.”  The commission has not been endowed with the powers of oversight, enforcement, or establishing standards.  So, clearly, this is just a first step in the journey toward “fixing” forensics.  But as the old proverb says, “A journey of a thousand miles begins with but a single step.”  Nothing is going to happen quickly, but it is a start, and we’ll take it.

Continue reading

How innocent man’s DNA was found at killing scene

Here’s a cautionary tale about DNA contamination from The San Francisco Chronicle.

By Henry K. Lee

When a San Jose man charged with murdering a Monte Sereno millionaire was suddenly freed last month, prosecutors acknowledged he had an airtight alibi – he was drunk and unconscious at a hospital when the victim was killed in his mansion miles away.

But a mystery remained: How did the DNA of 26-year-old Lukis Anderson – who was so drunk his blood alcohol content was five times the legal limit – end up on the fingernails of slaying victim Raveesh “Ravi” Kumra?

Santa Clara County prosecutors answered that question Wednesday, saying the same two paramedics who had treated Anderson for intoxication at a downtown San Jose liquor store in November had responded to Kumra’s home just hours later.

“It’s a small world,” said Deputy District Attorney Kevin Smith. “We are pleased to have finally been able to determine how we believe the DNA got from Mr. Anderson to Mr. Kumra.”

Anderson’s attorneys from the public defender’s office reacted cautiously. “It is really too early to comment on any of this because we don’t have all of the DNA reports, and our experts have not yet examined any evidence,” said Public Defender Molly O’Neal. “We want to conduct our own investigation and only then comment on the DNA and any transference theory.”

Anderson spent more than five months in jail after he was connected to the slaying of Kumra, a cell phone entrepreneur and former Saratoga winery owner, during a home-invasion robbery. Two alleged Oakland gang members and a prostitute – people Anderson had never met – remain charged in the case.

A charge of accessory to murder was dismissed Wednesday against a second alleged prostitute, Raven Dixon, after authorities determined that she did not have any ties to the slaying, Smith said.

Dixon, 22, pleaded no contest Friday to prostitution with a gang enhancement as well as a marijuana charge, both felonies. She is expected to be released with credit for time served – seven months – when she is sentenced in July.

Dixon’s attorney, Andrew Dosa, said police initially believed his client was involved because she had taken pictures of Kumra’s home – months before the slaying – and posted them on Instagram, the photo-sharing service, through her Facebook account. The photos didn’t show the front door or any access points, he said.

“It basically says, ‘Look how big this house is,’ ” Dosa said. “I think she posted it because she thought it was interesting. It’s a mystery to me why they thought she was involved in the first place.”

Kumra’s body was found Nov. 30 after police were called by his wife, Harinder Kumra, 63, to their ransacked 7,000-square-foot brick mansion on Withey Road, in the hills west of San Jose. Kumra died of asphyxiation after his assailants left him gagged with packaging tape as they beat his wife and told her to “be quiet if you want to live,” police said. They made off with cash, jewelry and rare coins.

Anderson was arrested a week later. But investigators later confirmed that he had been brought to Valley Medical Center in San Jose by a two-man crew from Santa Clara County Ambulance about two hours before the attack on Kumra began, Smith said.

Anderson was still at the hospital 12 hours after the victim was killed, the prosecutor said. His blood alcohol content was 0.40 percent, five times the legal limit for driving, authorities said.

The paramedics physically moved both Anderson and Kumra, resulting in the inadvertent DNA transfer, Smith said. Authorities would not discuss whether the paramedics had properly cleaned themselves between the two calls. Citing the unique nature of the two incidents, Smith said, “This is not going to happen on a regular basis.”

Brian Hubbell, an ambulance company spokesman, said, “We follow the highest standards when it comes to infection control and cleanliness. We consistently and always wash and clean all of our equipment in between patients.”

Defense attorneys had initially questioned whether the county crime lab might have made a mistake. Smith said the investigation confirmed there was no impropriety.

Thursday’s Quick Clicks…

  • Scotland may get rid of 300 year old corroboration rule, which requires multiple pieces of corroborating evidence before a conviction can be obtained.  It was implemented to avoid wrongful convictions
  • A review of Michael Naughton’s The Innocent and the Criminal Justice System
  • A Texas fire review panel flagged two quarter-century-old arson cases on Wednesday, saying investigators were mistaken in finding that the defendants set intentional fires.
  • Exoneree Brian Banks:  the best revenge is success

New Scholarship Spotlight: CSI Mississippi: The Cautionary Tale of Mississippi’s Medico-Legal History

Tucker Carrington and others have posted the above-titled article on SSRN.  Download full article here.  The abstract states:

Over the last four decades, extending even through the most recent twenty years of rapid forensic science advancements in the solving and prosecution of criminal offenses, Mississippi has maintained its condonation of systemic forensic malfeasance, and, more specifically, refused to adapt and properly accommodate contemporary forensic science in its courtrooms. Among the public health consequences was a medico-legal spoils system that valued pseudo-science and expedient criminal convictions over scientific validity and defendants’ basic civil rights. As a direct and entirely natural correlation Mississippi produced a significant number – and shocking type – of wrongful convictions and perpetrated some of the most notorious forensic fraud in American legal history.

This article documents for the first time the complete tragic history of the State’s medico-legal system from the mid-1970’s, when initial efforts were made to improve the local, coroner-based system, to the present day. Its primary purpose is to provide a comprehensive narrative through which the State might honestly come to terms on a morally acceptable basis with the attendant failures of justice that occurred as a result of the path it chose. In that way this article also offers up the Mississippi medico-legal system as a cautionary tale, a study in what not to do. Although all of the cases, agencies, and people discussed in this article are from Mississippi, the lessons learned from the Mississippi medico-legal system are universal.




Monday’s Quick Clicks…


New Scholarship Spotlight: The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions

Saul M. KassinaItiel E. Drorb, and Jeff Kukuckaa have published the above-titled article in  the Journal of Applied Research in Memory and Cognition.  Get article here.  The abstract states:

As illustrated by the mistaken, high-profile fingerprint identification of Brandon Mayfield in the Madrid Bomber case, and consistent with a recent critique by the National Academy of Sciences (2009), it is clear that the forensic sciences are subject to contextual bias and fraught with error. In this article, we describe classic psychological research on primacy, expectancy effects, and observer effects, all of which indicate that context can taint people’s perceptions, judgments, and behaviors. Then we describe recent studies indicating that confessions and other types of information can set into motion forensic confirmation biases that corrupt lay witness perceptions and memories as well as the judgments of experts in various domains of forensic science. Finally, we propose best practices that would reduce bias in the forensic laboratory as well as its influence in the courts.

Tuesday’s Quick Clicks…


Pre-requisites for a safe Criminal Justice System I: GOOD Science.

Junk_Science_zps5ca255edTime and again, we are reminded that ‘junk science’ can so easily lead to injustice. This need not just be wrongful convictions, but can damage confidence in the justice system in many ways, including giving false hope to victims. However, it is shocking to still see cases where BAD science can lead to people being wrongfully convicted. It is still happening daily around the world. In the US, ‘bite mark’ evidence is still being used to convict, EVEN when the bite mark evidence given at trial is later reversed by the same experts  - read the shocking story here….

When Courts Uphold Bad Science, Innocent People Stay in Prison

Fortunately for one suspect – DNA evidence came to his rescue – albeit 3months after his arrest and imprisonment on child rape charges. The suspect had been identified by the victim AND failed a lie detector test, but was eventually freed when DNA testing that he had pleaded for, linked to another convicted felon who lived nearby. The Prosecutor had only reluctantly agreed to DNA testing, stating previously that it would be ‘a waste of taxpayers money’. Read here…

Rape Suspect Denied DNA Test Is Finally Cleared

This is a shocking reminder that prosecutors and governments as a whole, often think of forensic science as a ‘cost’ that can be cut. This is playing out now in the UK, with the ongoing cost-cutting which has seen the closure of the Forensic Science Service and full privatisation of the forensic science ‘market’, as well as the slashing of police science budgets. Now, finally, the media are reporting on the shocking delay in the UK of utilising advances in DNA profiling. Read more here….

Britain goes from ‘pole position to banana republic’ in DNA profiling

How long before we are counting the cost in terms of wrongfully convicted individuals?