Category Archives: Forensic controls

Forensic testing scandal in UK widens

Back in February 2017, I blogged about concerns surrounding the quality of forensic science services in the UK (Serious concerns about forensic Science standards in the UK). Perhaps predictably then, UK law enforcement and courts are now facing a scandal that on first appearances seemed to be limited in potential impact, but is now said to involve up to 10,000 criminal cases (Police review 10,000 cases in forensics data ‘manipulation’ inquiry). 

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Since 2012 all UK forensic science providers are private, for-profit, companies – some are not even UK companies – (see LGC divests its forensics division to Eurofins).  In January 2017, after a ‘whistleblower’ contacted police, concerns were raised about the manipulation of toxicology test results from a private laboratory and a criminal investigation was launched. The company – Randox Testing Ltd – had previously bought another company – Trimega – where there had been serious errors and quality failings noted since 2010. The previous highly criticised company, had employees who then went to work for Randox, whereupon the same problems seem to have continued.

The previous company specialised in child protection and family court cases, where children may have been removed from parents based upon flawed drug or alcohol tests. They also undertook work for private companies and public sector bodies, undertaking work such as employers testing their employees for drugs etc. A government minister has conceded that it may never be possible to identify the true number of Trimega customers affected, due to poor record-keeping, and that its samples cannot be retested.

It was anticipated that the cases from Randox would be limited to traffic offences, as the laboratory specialises in alcohol and drug testing for police forces. However, while three-quarters of the cases are traffic offences (7500) – albeit some of the most serious including causing death by dangerous driving (150) – the other quarter involve serious violent (250 murders) and/or sexual offences (up to 1000, including rape) and some 500 relate to unexplained deaths. So far, none of the more serious cases appear to have been affected, but it is admitted that it may take up to 3 years to go through all the cases, due to a lack of forensic testing capacity in the UK.

A police spokesman this week stated that: “Understandably, confidence in the criminal justice system will be rocked, but I am confident that chief constables and the CPS [Crown Prosecution Service] in particular are doing everything they can to deal with this unforeseeable challenge, affecting both live and historic cases…. We have worked at pace to respond to this serious breach of standards and take action in cases where people’s lives could have been affected,… We are striving to complete all cases requiring retesting as quickly as possible so we will continue to explore ways of speeding up the processes.”

Meanwhile a senior MP has said: “It is clear the chaotic reorganisation of the forensics system, including the closure of the Forensic Science Service, has left providers who were simply not fit for purpose to fill the gap. This has had devastating consequences.” 

Two employees of Randox have been arrested with a further 5 interviewed under caution by police.  The UK Forensic Science Regulator, tasked with ensuring standards across the entire provision of forensic science in the UK has said all major forensic toxicology suppliers were asked to carry out a detailed audit to ensure the issue was not more widespread, but that investigations uncovered no data manipulation, adding: “I’m not going to speculate on any motives because obviously there is an ongoing criminal investigation, but we cannot just say it was a minor technical issue.”

Even if you were not concerned about individuals who may have perhaps received a drink-driving conviction that they did not deserve, albeit such a conviction can have serious consequences, the doubts over the testing has already led to up to 50 drug- and drink-driving cases being dropped because the prosecution can no longer be sure of their evidence. Many more may still have to be halted or re-testing ordered where possible. There are also serious cases involving deaths that have now been referred back the Court of Appeal.

One of the major difficulties is that in many of these cases, suspects will have been under pressure to plead guilty, particularly because there will have been no legal aid available for them to order their own re-testing of samples. One defence lawyer has said: “This is going to blow the whole thing wide open. With cuts to legal aid we don’t always have the resources to challenge scientific evidence. Sometimes you have to take the science at face value… There is a lot of pressure on defendants to plead guilty, the system is stacked against the defence… ” This is the situation in almost all but the most serious criminal cases across the country. With the legal aid system almost non-existent, and the criminal justice system grinding to a halt through severe under-funding and further budget cuts on the way, it may increasingly be the case that any prosecutions that involve forensic evidence will get ‘waived through’ as there is no funding (nor time) for defence testing or scrutiny. In such a situation, we are completely reliant upon the Forensic Regulator to ensure and enforce standards, and for forensic providers to never make mistakes… or act fraudulently. If history – and wrongful convictions – tell us anything, it is that 100% reliance upon ‘standards’ and the professionalism and infallibility of humans is foolhardy in the extreme. This scandal should remind us that we need more safeguards in criminal justice – not fewer.

Read more here:

Convictions in doubt as more than 10,000 cases could be affected by data manipulation at forensics lab

Drug-driving cases dropped over forensics

 

Monday’s Quick Clicks…

More Forensic Laboratory Errors in Australia

In Western Australia, a Corruption and Crime Commission investigation is underway after it has been revealed that a mistake in labelling DNA samples in a laboratory led to the wrongful conviction of a man in 2004. There are lots of aspects to this story that beggar belief. Here are some that we know about already:

  • The original mix-up at the laboratory: DNA found at the scene of a burglary was incorrectly identified as belonging to the innocent man. The DNA actually belonged to a man with the same name and a laboratory worker assigned the DNA test results to the wrong person.
  • The laboratory informed the police of the mix-up after it’s discovery in April 2016 when the real offender was arrested over a separate matter. The police then took a further YEAR to act on this information.
  • The victim initially protested his innocence to police but agreed to plead guilty on the advice of his lawyer who apparently told him that no one was likely to believe him and that he risked a prison sentence if he went to trial.

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This laboratory is again under investigation – hot on the heels of another inquiry launched last month after it emerged a forensic biologist for PathWest, Laurance Webb, was sacked because he breached testing protocols four times between 2008 and 2014, including failing to conduct quality control testing and have work peer reviewed (see here….) . There is also an urgent question over why the police took a year to act on the information. One must surely also question the original legal advice to plead guilty – though that is not being mentioned in any of the media reports below:

CCC probe: Man wrongly convicted after DNA bungle

WA cops took a year to clear innocent man

Man wrongfully convicted after DNA mixup

DNA bungle finds WA man wrongly convicted of home invasion in 2004

Monday’s Quick Clicks…

Thursday’s Quick Clicks…

Blood test for Shaken Baby Syndrome?

From the Blind Injustice Facebook group:

Blood test for shaken baby syndrome? I would sure like to know more about this. History shows that far too often, in the rush for answers, these newly-developed theories or tests are put into use before they are adequately tested in a controlled environment that considers other factors that could lead to the same blood test results. And that leads to wrongful convictions. If the 2009 National Academy of Sciences report on forensic means anything, it means that we have to be very careful with claims like this…

Article about alleged blood test here.

Friday’s Quick Clicks…

Trump Administration kills Forensic Commission

Horrible, horrible news for those who care about accuracy in our criminal justice system.  Read story here.

 

Serious concerns about forensic science standards in the UK.

banner_scientist2In England and Wales, since the closure of the Forensic Science Service, forensic testing has been undertaken by a number of private companies. At the time of the privatisation, many warned that introducing a profit-motive into forensic science could have perverse outcomes. Many were concerned about falling standards and ‘bargain basement’ outfits doing shoddy work. Some of these concerns look to have been justified, with news this week that two men have been arrested after the discovery that they have manipulated alcohol/ drug test results used in both the criminal and family courts. The media have reported that almost 500 cases are being reviewed to see if an injustice has occurred. Already, there is one reported instance of a case being dropped because the results of the drug tests cannot be relied upon (First case dropped since forensic science blunders as CPS says it cannot proceed)

While the news of the arrests and falsified rest results have received wide coverage, (see here…. and here… and here…) it comes hot on the heels of a critical report by the Forensic Regulator that iterates that “standards may be at significant risk” (see here. ). The 2016 Annual Report details major failings in the previous year, and warns of the financial pressures that are putting forensic quality at risk, with many police forces still not fully signed-up to minimum standards. Read the report here….    The press release stated that: A lack of funding to improve forensic science is jeopardising the integrity of the criminal justice system. Read the press release here….

With financial pressures on companies, and pressures on workers within those companies to ‘perform’, the risks to forensic science integrity in the UK is obvious. However, it is not limited to the UK and also encompasses all forensic evidence – as concerns grow about the quality of digital forensics in the US as just one example: Bargain Basement Digital Forensics Examiners – Too Good to be True.

The lesson – one that those dealing with wrongful convictions have known for years – is that forensic science cannot be done ‘on the cheap’, and attempting to do so puts the entire legal system in jeopardy.

Junk Science Reigns ____ So Much for True Science in the Courtroom

We had hope, back in 2009, when the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published, that there might finally be some remedy for all the junk science being used to convict innocent people. The report painted a scathing picture of the lack of true science contained in, and the invalidity of, traditional forensic disciplines; the sole exception being DNA. The report did spawn the creation of the Federal Commission on Forensic Science, which has proven, over the last three years, to be a totally toothless tiger, accomplishing essentially nothing.

Now recently, the President’s Council of Advisors on Science and Technology has issued an additional report that is highly condemning of current forensic practices. You can see the PCAST report here:  pcast_forensic_science_report_final

HOWEVER, even in light of this recent report, both the FBI and the Department of Justice have stated they have no intention of changing the way they currently address forensics.

Please see the Intercept article, FBI AND DOJ VOW TO CONTINUE USING JUNK SCIENCE REJECTED BY WHITE HOUSE REPORT, by Jordan Smith here.

Johnson, Wheatt, Glover – All Charges Dismissed – After 20 Years

Johnson, Wheatt, Glover – this was the very first case I worked on with the Ohio Innocence Project eight and a half years ago. At the time, it was a GSR case (gunshot residue). The GSR evidence was always highly questionable, but it was a major factor in their conviction. As it turns out, not only was the GSR evidence bogus, but the case is also an example of egregious prosecutorial misconduct.

Please see the story by Maurice Possley on the National Registry of Exonerations website here.

 

Bite Marks – The Junk Science Continues to Unravel

From the NY Times.

http://www.nytimes.com/2015/12/13/us/lives-in-balance-texas-leads-scrutiny-of-bite-mark-forensics.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=1

 

Let’s Be Clear About DNA

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.

Tuesday’s Quick Clicks…

“CSI” FINALLY Going Off the Air

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.)

Wednesday’s Quick Clicks…

Tuesday’s Quick Clicks…

Monday’s Quick Clicks…

Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

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.

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

B. Recommendations for reform – Juries

  1. Give jurors a written copy of the jury instructions.
  2. Allow jurors to take notes during trial and provide them with a full trial transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during the trial.
  5. Tell jurors up-front what’s at stake in the case.
  6. Give jurors a say in sentencing.

C. Recommendations for reform – Prosecutors

  1. Require open file discovery.
  2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. Impose strict limits on the use of jailhouse informants.
  6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
  7. Keep adding conviction integrity units.
  8. Establish independent Prosecutorial Integrity Units.

D. Recommendations for reform – Judges

  1. Enter Brady compliance orders in every criminal case.
  2. Engage in a Brady colloquy.
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
  5. When prosecutors misbehave, don’t keep it a secret.

E. Recommendations for reform – General

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)

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.

Documentary on Scientifically Flawed FBI Hair Comparison Evidence

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.