Pseudoscience in the Witness Box: The FBI faked an entire field of forensic science.

Dave70968

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http://www.slate.com/articles/news_...ny_hair_analysis_bite_marks_fingerprints.html

The Washington Post published a story so horrifying this weekend that it would stop your breath: “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

What went wrong? The Post continues: “Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.” The shameful, horrifying errors were uncovered in a massive, three-year review by the National Association of Criminal Defense Lawyers and the Innocence Project. Following revelations published in recent years, the two groups are helping the government with the country’s largest ever post-conviction review of questioned forensic evidence.

Chillingly, as the Post continues, “the cases include those of 32 defendants sentenced to death.” Of these defendants, 14 have already been executed or died in prison.

The massive review raises questions about the veracity of not just expert hair testimony, but also the bite-mark and other forensic testimony offered as objective, scientific evidence to jurors who, not unreasonably, believed that scientists in white coats knew what they were talking about. As Peter Neufeld, co-founder of the Innocence Project, put it, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”

This study was launched after the Post reported that flawed forensic hair matches might have led to possibly hundreds of wrongful convictions for rape, murder, and other violent crimes, dating back at least to the 1970s. In 90 percent of the cases reviewed so far, forensic examiners evidently made statements beyond the bounds of proper science. There were no scientifically accepted standards for forensic testing, yet FBI experts routinely and almost unvaryingly testified, according to the Post, “to the near-certainty of ‘matches’ of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work.”

It was later revealed that one of the hairs presented at trial came from a dog.

NACDL executive director Norman Reimer said in an interview with Associations Now that the flaws in the system had been known for years now. “What we were finding was that the examiners … wouldn’t just simply say that there was a microscopic similarity [between the two hairs], but they would go beyond that and say it was a 100 percent match, essentially misleading the jury into concluding that the evidence had a certain value that it didn’t actually have,” Reimer said.

This problem doesn’t stop with the FBI labs or federal prosecutions. The review focuses on the first few hundred cases, involving FBI examiners, but the same mistakes and faulty testimony were likely presented in any state prosecutions that relied on the between 500 and 1,000 local or state examiners trained by the FBI. Some states will automatically conduct reviews. Others may not. Much of the evidence is now lost.

Systemic change, in other words, is being left to the discretion of the system itself.

Of all the maddening stories of wrongful convictions, Michael McAlister’s may be one of the worst. For starters, he has been in prison for 29 years for an attempted rape he almost certainly did not commit.

Paradoxically, Justice Antonin Scalia has emerged as a vocal early skeptic about the risk of taint in the work of crime labs, even though he contended in 2006 that, “It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.” It is clearer now than ever that crime labs and prosecutors’ officers do make mistakes, shameful, devastating mistakes, and that they don’t usually distinguish between capital and noncapital cases when they do so.

Sen. Patrick J. Leahy, D-Vermont, and Rep. Eddie Bernice Johnson, D-Texas, the ranking Democrats on the Senate Judiciary and House Science committees, respectively, are looking for forensic-science reforms to hold examiners to meaningful standards. But this hardly helps the folks who are in cells for crimes they didn’t commit, based on evidence that—according to scientific experts—is all but worthless.

This whole justice-disaster-on-wheels is not a problem that has gone unreported. As Conor Friedersdorf notes, state and national publications have been exposing the inadvertent errors and deliberate manipulations of forensic crime labs across the country for years now. We have covered these issues at Slate. But as long as crime labs answer to prosecutors, and indeed, according to Business Insider, in some cases they are compensated for each conviction, the incentives for reform are hopelessly upside-down. The problem, in short, isn’t that we can’t identify the problem.

There is no lack of good ideas for reform. (Journalist Radley Balko and Roger Koppl, a professor of finance at Syracuse University’s Whitman School of Management and a fellow at Syracuse’s Forensic and National Security Sciences Institute, offered up a laundry list of fixes in Slate—almost seven years ago.)* These solutions are not all that expensive or complicated. Among them: giving defendants their own forensic experts, untethering crime labs from the prosecutors and cops to which they now answer, verification and standards. But no matter how many times we may reiterate that the status quo is intolerable and that simple corrections would yield significantly better data, no real energy for reform exists.

University of Virginia law professor Brandon L. Garrett, who has been studying DNA exonerations and wrongful convictions for years now, had this to say in an email: “When I looked at forensics in DNA exoneree trials, I found more often than not that the testimony was unscientific and flawed. We know that whenever we look at old criminal cases we see flawed forensics wherever we look. And yet hardly any crime labs have bothered to conduct audits. Nor is the problem limited to bad hair cases—much the same type of eyeballed comparison is done on bite marks, ballistics, fibers, and even fingerprints.”

Horror stories abound. George Perrot (profiled by Ed Pilkington of the Guardian) may have spent 30 years in prison based on erroneous forensic hair testimony. Mississippi bite-mark expert Michael West, about whom Balko has written extensively, was shown in a recent film jamming the suspect’s dental mold into the body of a young victim. Santae Tribble served 28 years for a murder based on FBI testimony about a single strand of hair. He was exonerated in 2012. It was later revealed that one of the hairs presented at trial came from a dog.

And the reign of pseudoscience in the witness box hardly stops at hair and bite marks. It sweeps in the testimony of forensic psychiatrists like James Grigson, nicknamed Dr. Death for his willingness to testify against capital defendants, and flawed arson analysis that may have contributed to the execution of Texas’ Cameron Todd Willingham. Jurors grass-fed on CSI-Someplace and Law and Order believe uncritically in experts who throw around words like “cuticle” and “cortex,” and why shouldn’t they? These folks are supposed to be analysts who answer to the rules of science, not performance artists trotted out for the benefit of the prosecution.

Since prison-crowding and justice reform are widely touted as issues that unite the left and the right in this country, going back and retesting the evidence of those who may well have been wrongly imprisoned should be a national priority. So far it isn’t, perhaps because the scope of the enterprise is so daunting. Or perhaps because nobody really cares all that much about people who’ve been sitting in jail for years and years. Says Garrett: “These victims may remain unrecognized and in prison—if they still live—and the same unscientific testimony continues to be delivered without limitation. … But hey, these are just criminal cases right?”
 

Annie

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I got nothing. All I know, from personal experience, nobody is interested in the truth. All anyone is interested in (and this goes for EVERYONE involved in any given case) is winning. Or maximizing billable hours. Sigh.
 

Dave70968

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The WaPo story is paywalled, but I managed to extract it:


The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.

The FBI errors alone do not mean there was not other evidence of a convict’s guilt. Defendants and federal and state prosecutors in 46 states and the District are being notified to determine whether there are grounds for appeals. Four defendants were previously exonerated.

The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries, legal analysts said. The question now, they said, is how state authorities and the courts will respond to findings that confirm long-suspected problems with subjective, pattern-based forensic techniques — like hair and bite-mark comparisons — that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.

In a statement, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science.”

Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”

“We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner,” Neufeld said.

Norman L. Reimer, the NACDL’s executive director, said, “Hopefully, this project establishes a precedent so that in future situations it will not take years to remediate the injustice.”

While unnamed federal officials previously acknowledged widespread problems, the FBI until now has withheld comment because findings might not be representative.

Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the FBI and Justice Department to notify defendants in all 2,500 targeted cases involving an FBI hair match about the problem even if their case has not been completed, and to redouble efforts in the three-year-old review to retrieve information on each case.

“These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law,” Blumenthal said.

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and the panel’s ranking Democrat, Patrick J. Leahy (Vt.), urged the bureau to conduct “a root-cause analysis” to prevent future breakdowns.

“It is critical that the Bureau identify and address the systemic factors that allowed this far-reaching problem to occur and continue for more than a decade,” the lawmakers wrote FBI Director James B. Comey on March 27, as findings were being finalized.

The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines.

Federal authorities launched the investigation in 2012 after The Washington Post reported that flawed forensic hair matches might have led to the convictions of hundreds of potentially innocent people since at least the 1970s, typically for murder, rape and other violent crimes nationwide.

The review confirmed that FBI experts systematically testified to the near-certainty of “matches” of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work.

In reality, there is no accepted research on how often hair from different people may appear the same. Since 2000, the lab has used visual hair comparison to rule out someone as a possible source of hair or in combination with more accurate DNA testing.

Warnings about the problem have been mounting. In 2002, the FBI reported that its own DNA testing found that examiners reported false hair matches more than 11 percent of the time. In the District, the only jurisdiction where defenders and prosecutors have re-investigated all FBI hair convictions, three of seven defendants whose trials included flawed FBI testimony have been exonerated through DNA testing since 2009, and courts have exonerated two more men. All five served 20 to 30 years in prison for rape or murder.

University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence.

“The tools don’t exist to handle systematic errors in our criminal justice system,” Garrett said. “The FBI deserves every recognition for doing something really remarkable here. The problem is there may be few judges, prosecutors or defense lawyers who are able or willing to do anything about it.”

Federal authorities are offering new DNA testing in cases with errors, if sought by a judge or prosecutor, and agreeing to drop procedural objections to appeals in federal cases.

However, biological evidence in the cases often is lost or unavailable. Among states, only California and Texas specifically allow appeals when experts recant or scientific advances undermine forensic evidence at trial.

Defense attorneys say scientifically invalid forensic testimony should be considered as violations of due process, as courts have held with false or misleading testimony.

The FBI searched more than 21,000 federal and state requests to its hair comparison unit from 1972 through 1999, identifying for review roughly 2,500 cases where examiners declared hair matches.

Reviews of 342 defendants’ convictions were completed as of early March, the NACDL and Innocence Project reported. In addition to the 268 trials in which FBI hair evidence was used against defendants, the review found cases in which defendants pleaded guilty, FBI examiners did not testify, did not assert a match or gave exculpatory testimony.

When such cases are included, by the FBI’s count examiners made statements exceeding the limits of science in about 90 percent of testimonies, including 34 death-penalty cases.

The findings likely scratch the surface. The FBI said as of mid-April that reviews of about 350 trial testimonies and 900 lab reports are nearly complete, with about 1,200 cases remaining.

The bureau said it is difficult to check cases before 1985, when files were computerized. It has been unable to review 700 cases because police or prosecutors did not respond to requests for information.

Also, the same FBI examiners whose work is under review taught 500 to 1,000 state and local crime lab analysts to testify in the same ways.

Texas, New York and North Carolina authorities are reviewing their hair examiner cases, with ad hoc efforts underway in about 15 other states.
 

Dave70968

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I got nothing. All I know, from personal experience, nobody is interested in the truth. All anyone is interested in (and this goes for EVERYONE involved in any given case) is winning. Or maximizing billable hours. Sigh.
Check out Radley Balko's reporting on Michael West and his "bite mark analysis" (which nobody else can replicate), as well his work on Dr. Steven Hayne's autopsies. An example: https://www.washingtonpost.com/news...pi-death-penalty-case/?utm_term=.a55e96d9c3ec
 

Annie

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Dang!! Ok, I'm gonna have to come back later and read the second post (btw, you made me think I'd lost my mind there for a minute! Lol). Laundry is calling.

But, this kind of stuff is what keeps lawyers employed. Lots and lots of appeals are fixing to come down the pike.
 

Annie

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C_Hallbert

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There's a reason I always say "legal system" and never "justice system". The two phrases are wildly different in practice and sadly, aren't interchangeable. :(

I think of our Court System as functioning similar to the method used to determine Jusice in Thunderdome: The Wheel of Justice. “Bust a Deal and Face the Wheel”. The possible outcomes ranged from nothing to cruel and ridiculous; it’s a crapshoot. The best advice is to avoid it.
Semper Fi.


Sent from my iPhone using Tapatalk
 

Shadowrider

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Full disclosure: I haven't fully read the O/P, but didn't this come to light years ago? Seems that I recall this being an issue in the Joyce Gilchrist fiasco. Maybe not but from what I've read in the distant past I was under the impression that microscopic hair analysis is nothing more than the examiner's opinion of a comparison. IOW, hardly scientific.
 

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