From the NY Times.
From the NY Times.
A recent legal research paper from the School of Law at Queen Mary University of London has raised the issue of technology’s impact upon the criminal justice system, and how its effect may be replacing presumption of innocence with presumption of guilt. A truly frightening prospect. You can download the paper here: Automatic justice? Technology, Crime and Social Control.
The nature of evidence in the justice system has steadily been evolving to be ever more founded in technology, be it legitimate and proven technology … or not. And the tendency is for the prosecution (and police) to say, “We have ‘scientific’ evidence of your guilt; therefore, you are guilty.”
And here’s the problem: much of this “technology” has not been verified and statistically validated. It just gets presented in court as “science,” and judges, lawyers, and juries don’t have a clue as to whether or not it’s actually accurate or relevant. How do you know the latest “computer app” is actually true and accurate? You don’t. We’ve seen frequent examples of so-called forensic “science” being proven wrong. Just three of these would be compositional analysis of bullet lead (CABL), microscopic hair comparison, and bite marks. There are currently thousands of cases under re-investigation as a result of scientifically flawed FBI hair comparison work and testimony. There are some infamous cases of fingerprint identifications being wrong; one of these being the case of Brandon Mayfield. Most people, (including lawyers) don’t understand that there is huge margin for error in locating a cell phone through cell towers.
The agents of the justice system – lawyers, judges, police, and especially juries – have been notoriously ignorant regarding the scientific, technological, and mathematical issues of evidence. This is why so much of the justice system depends upon so-called “experts” to try to understand and explain what all the technology means; but, these experts, often self-styled, may be legitimate — or they may not be. Unfortunately the lawyers, judges, and juries have no way to tell. Defense attorneys will most commonly not technically question (cross examine) prosecution “experts.” This is too bad, because, in my opinion, a technically knowledgable and logically-penetrating defense attorney could just “take apart” many prosecution “experts” – even medical doctors. The typical legal defense strategy is to present “your own” expert, which puts the poor jury in the position of having to decide which of the dueling experts to believe. All this, unfortunately, leaves the justice system, and the defendant, at the mercy of “experts,” and there is no scientific way built into the justice system to sort through which “science” is true and correct, and which is junk – and which experts are truly expert, and which are charlatans.
From the conclusion of the paper: “Our deepest concern is the emergence of a potentially unfettered move towards a technologically driven process of ‘automatic criminal justice.’”
We – all of us – have a problem. The justice system was never conceived or designed to comprehend the explosion of technology. And the lawyers and judges are not trained or prepared to deal with it. It’s a problem.
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.
By Jeremy Stahl
Ed Graf was a bad employee. While working at Community Bank in Texas in the 1980s, he allegedly embezzled from his employer, eventually paying the bank more than $75,000 to avoid prosecution. Ed Graf was a bad husband. His ex-wife, Clare, would call him “the most possessive person I’ve ever known.” Clare’s best friend, Carol Schafer, said her husband, Earl, saw Graf having sex with another woman the night of Graf’s bachelor party. Ed Graf was, according to Clare and her family, a bad father. Two of Clare’s family members accused him of beating his adopted stepsons, Joby and Jason, with a board and belt.
In 1988, a Texas jury found that Ed Graf was also a murderer. Prosecutors argued that two years earlier, on Aug. 26, 1986, Graf had knocked out Joby, 9, and Jason, 8, and placed the boys in the back of their family shed. Graf had then spread gasoline, locked the shed, and set the boys ablaze. The two inseparable, athletic, blond-haired brothers died of smoke inhalation and severe burns in the backyard of their home. The address was 505 Angel Fire Drive.
On the day of the fire, Graf broke the news to his wife, telling Clare that both boys had been lost in the blaze. But Graf had been informed that the body of one child had been found, not both. It was one of many pieces of circumstantial evidence that prosecutors would pile up to present Graf as a calculating, greedy, and callous monster who murdered the children in a desperate attempt to keep his troubled marriage together.
Other small clues seemed to point to Graf’s guilt. Multiple witnesses say they saw a gasoline container on the porch, not far from the kids’ bikes. Graf also acted strangely after the fire. He suggested the boys be buried in one coffin, according to multiple witnesses. He didn’t offer his wife consolation, or apologize that they died in his care. A few weeks after the fire, Graf returned about $50 worth of Joby and Jason’s new school clothes that he had previously insisted they keep the tags on. There was more of what others saw as signs of foreknowledge. The normally meticulous Graf, who was said to keep lists for everything, neglected to buy the boys’ cereal or fill Jason’s Dimetapp prescription the week of their deaths.
In addition to the circumstantial evidence, prosecutors were able to present motive. Weeks before the fire, Graf had taken out $100,000 worth of combined life insurance on the boys if they were to die in an accident. The policies had been mailed out the day before the fire.
The real motive, prosecutors argued, was to get the boys—a source of regular bickering between Graf and his wife—out of their lives. His wife testified that shortly before the fire, she had threatened to leave him over his strict discipline of Joby and Jason, sons from a previous marriage, and to take their newborn third son, Edward III, with her.
The case was still largely circumstantial, though. The thing that likely clinched Graf’s conviction was the scientific testimony of a pair of forensic examiners. Joseph Porter, an investigator with the State Fire Marshal’s Office, testified that, based on his analysis of photos of the remains of the scene, the door of the shed must have been locked from the outside at the time of the fire, which would indicate foul play. He also said there were obvious charring patterns on the floor of the shed left by an accelerant. “The fire was definitely incendiary,” Porter declared. The prosecution’s other expert, a top fire investigator from New York known for his report on the Osage Avenue fire, a notorious fire set by Philadelphia officials that destroyed a primarily black neighborhood, was brought in to testify that there was “no doubt” that this was arson.
If the fire was intentionally set, then Graf was the only suspect with means, motives, and opportunity. Even if there was no direct evidence connecting him to the crime, the circumstantial evidence and the word of two arson experts was enough. The jury deliberated for four hours before pronouncing him guilty of capital murder.
The jurors then had to decide the punishment. The district attorney, Vic Feazell, said that the “facts of the case cry out” for the death penalty—two boys burned alive, murdered by a trusted parent.
Defense attorney Charles McDonald gave an impassioned plea that the jurors had convicted an innocent man and would make the injustice irreversible if they chose execution over life in prison. “I’m asking for this man’s life because if you did make a mistake there’s going to be some folks, somewhere down the line, it may be years … but maybe the mistake can be corrected,” McDonald argued. “If you take this man’s life, there ain’t no way to ever correct it.” The jurors must have found this argument compelling, because they spared Ed Graf’s life.
Twenty-five years later, the Texas Court of Criminal Appeals decided that a mistake had, in fact, been made. The investigators who testified the fire was arson used what in the years since has been discredited as junk science. A state review panel set up to examine bad forensic science in arson cases said that the evidence did not point to an incendiary fire. A top fire scientist in the field went one step further: The way the boys had died, from carbon monoxide inhalation rather than burns, proved the fire couldn’t have been set by Graf spreading an accelerant, and was thus likely accidental. The defense’s theory was that the boys, who multiple witnesses said had a history of playing with matches and cigarettes, had set the fire themselves, attempted to put it out, and been quickly overcome by carbon monoxide poisoning.
The reason Ed Graf’s case was reviewed a quarter of a century after he barely escaped the death chamber was because of one man: Cameron Todd Willingham. He was convicted, based on similarly faulty scientific evidence and the testimony of a jailhouse informant who later recanted and said he was bribed, of murdering his three children by setting their home on fire two days before Christmas in 1991. Willingham was executed 11 years ago. Only after Willingham’s death was it revealed publicly that the forensic evidence used to convict him was bunk. In 2009, the New Yorker’s David Grann wrote a groundbreaking article describing Texas’ flawed case against Willingham. The story sparked a national uproar over forensic science and the death penalty.
Then Texas did something surprising. While the state has not budged in its use of the death penalty—just last year topping 500 executions since the state brought back capital punishment in 1982—it has reinvented itself as a leader in arson science and investigation. A new fire marshal, Chris Connealy, revamped the state’s training and investigative standards. He also set up a panel comprised of some of the top fire scientists in the country to reconsider old cases that had been improperly handled by the original investigators.
Graf’s case was one of the first up for review, and it was determined that the original investigators had made critical mistakes. The Texas Court of Criminal Appeals agreed, overturning the original conviction.
Graf’s successful appeal proved that Texas was serious about correcting past forensic errors, but his story was far from over. Prosecutors in Waco were not convinced of his innocence. They felt that they had enough evidence to reconvict. Just because the forensic science was flawed didn’t change the fact that, in the eyes of prosecutors, Ed Graf was a bad employee, a bad husband, and a bad father—a man capable of murdering his adopted children.
So there was a new trial, and Graf became the first man in Texas to be retried for an arson murder that had been overturned thanks to advances in fire science. His new trial set up a clash between modern forensics and the old way of pursuing criminal justice in Texas, a state where prosecutors have often gone to questionable lengths to win convictions against high profile murder defendants—including multiple men later proved innocent.
Prosecutors in Graf’s retrial spared no effort to win a second conviction in a strange and dramatic retrial last October. The trial’s surreal and unforeseeable conclusion would have a profound impact not just on the fate of Ed Graf, but on the lives of other prisoners who in the wake of the Willingham case held out new hope that their convictions might be overturned and their innocence acknowledged…
Continue reading on Slate.com at Chapter 2 New Memories
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?“
In suspected SBS cases, the child abuse pediatricians (CAP’s) and the police are perfectly willing to coerce a confession out of you, and they have circumstances on their side, because you are at your most vulnerable. You are terribly concerned about the condition of your child, or worse yet, your child has just died. (See our previous post on child abuse pediatricians here: The Child Abuse Pediatrician (CAP) – Just Another Term for Medical “Cop”)
We’ve posted about SBS “confessions” before. See Shaken Baby Syndrome (SBS) – A CBS Report: Blaming Melissa for the coerced “confession” of Melissa Calusinski. See Scenes of a Crime – A Documentary of a False Confession and Blatantly Coerced Confession Results in Conviction Reversal for the coerced “confession” of Adrian Thomas.
Washtenaw Watchdogs (Washtenaw County, MI) has just published an investigative report article on their website dealing with this very issue. It’s very powerful. See it HERE.
Police insider says a Chicago man’s false confession resulted from beatings inflicted by detectives…
A wrongfully convicted man who was released from prison last month after being locked up 27 years started work Tuesday at his new job as a paralegal…
Alaska Newspaper calls for a change in shaken baby investigations…
In Wisconsin, a man convicted of murder seeks new trial on the basis that the murder was actually a suicide…
Georgia Supreme Court says DNA evidence suggesting a different perpetrator not enough to get man convicted of sexual assault a new trial…
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.
Here is a recent article from the Boston Globe on developments in the diagnosis of Shaken Baby Syndrome (SBS/AHT), and their relation to the justice system. See the article here.
One more step on the road to scientific truth, but it’s going to be a long journey. To paraphrase Nobel physics laureate Max Planck, “Science advances one funeral at a time.”
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.