“I CAN PEEL a person’s face apart in 90 seconds,” said the well-dressed woman holding tongs, “but I can’t get a quesadilla out of here.” It had been a long day at the 68th Annual Scientific Meeting of the American Academy of Forensic Sciences. At the private reception in Pavilion 5, the food had gone quickly. All that remained was an unappetizing pile of quesadillas, stubbornly stuck together in their stainless steel buffet tray. As she leaned in to dislodge a clump of tortilla and cheese, the woman’s conference badge revealed that she worked in a medical examiner’s office. Her ID hung from a blue lanyard adorned with the iconic retro sign that greets visitors to town: “Welcome to Fabulous Las Vegas, Nevada.”
We were deep in the bowels of the Rio All-Suite Hotel and Casino. It was late February — just 24 hours after Donald Trump’s victory speech following the GOP caucuses in Nevada. As pundits and political operatives left Sin City, thousands of scientists, lawyers, and academics had arrived for nearly a full week of wall-to-wall panels and PowerPoint presentations by top forensic experts from around the globe. The reception that night was hosted by the group’s forensic dentists, the “odontology” section. In a ballroom down the hall, an audience trickled in for an evening event called “Bring Your Own Slides,” the forensic scientist’s equivalent of an open mic. There, students sought autographs from a famed pathologist in the back of the room, while up front a presenter showed graphic pictures of an exhumed corpse.
The AAFS is the largest professional forensic science organization in the world. Its 6,500 members include doctors, engineers, and scientists of all stripes — practitioners who lend expertise and testimony to lawyers and law enforcement. Founded in 1948, its mission is to “elevate the standards and advance the cause of the forensic sciences.” Membership is governed by a strict code of ethics “to promote the highest quality of professional and personal conduct,” according to the AAFS’s published guidelines, and available “only to those persons of professional competence, integrity, and good moral character.”
Rio All-Suite Hotel and Casino in Las Vegas, Nevada.
Photo: Shutterstock
Although word at the Rio was that the scientists were not a gambling bunch, conference organizers seemed intent on keeping things lighthearted. The thick convention program was decked out with a poker theme; attendees could purchase AAFS shot glasses or a commemorative T-shirt with a Nevada license plate on the back that read “VIVA 4N6.” A silent auction offered such novelty items as coasters covered with fake blood spatter, a human skull belonging to the victim of a fatal sling-shot, and a T-shirt with a bone on it reading, “I Found This Humerus.” At their comedic best, forensic scientists blend puns with dark humor. One pathologist’s presentation was titled “Chainsaw-Related Fatalities: What Is All the Buzz About?”
In a ballroom down the hall, an audience trickled in for an evening event called “Bring Your Own Slides,” the forensic scientist’s equivalent of an open mic.
For all the outward playfulness, however, a looming tension hung over the conference — the nagging knowledge that all is not well in the world of forensics. Despite the image peddled by popular TV shows like CSI: Crime Scene Investigation, which portray forensic experts as crime-fighting scientists with unparalleled gifts of observation, the field has become increasingly embattled in recent years. Crime labs have come under fire for mishandling evidence, and high-profile exonerations have exposed how “junk science” has sent innocent people to prison. The bad press has led to heightened skepticism of forensics, forcing practitioners to defend their reputation.
2015 was no exception. Soon after the AAFS convened last February under the banner “Celebrating the Forensic Science Family,” a series of controversies cast further scrutiny on the field. There was the abrupt halting of DNA testing in Washington, D.C.’s first independent crime lab — a three-year-old $220 million project whose director was forced to resign amid damning audits. There was the ongoing fallout in Massachusetts over a crime lab chemist who falsified thousands of drug tests over her nine-year career. And there were the usual headlines exposing miscarriages of justice based on junk science: a Texas man freed after 25 years in prison due to bad “bite-mark” evidence, and three men exonerated in New York after more than 30 years based on a faulty arson investigation (one died of a heart attack in prison). Among the record number of cleared cases in 2015, according to the National Registry of Exonerations, 45 involved “false or misleading forensic science.”
But perhaps most devastating, in April 2015, the Justice Department issued a bombshell announcement, formally admitting to a disastrous mishandling of evidence that lawyers, prisoners, and even its own forensic experts had pointed out for years. For more than two decades, as the Washington Post reported, FBI analysts doing hair-fiber examination “gave flawed testimony in almost all trials in which they offered evidence against criminal defendants.” In a post-conviction review of thousands of cases dating before 2000, the Innocence Project and the National Association of Criminal Defense Lawyers had so far discovered exaggerated testimony by FBI analysts in a staggering 95 percent. This included 32 defendants sentenced to death, 14 of whom were executed or died in prison before the problems were publicly acknowledged.
For the forensic community — and for the feds, who have trained countless local and state analysts in hair-fiber analysis — it was a PR disaster. There was no escaping the crisis at hand. The AAFS had no choice but to confront it. This year, the conference theme was “Transformation: Embracing Change.”
Bad Hair Days
At the opening plenary in the Rio’s Brasilia Ballroom, U.S. Deputy Attorney General Sally Yates started with the good news. “I’m happy to say that we’re making real progress in our efforts to strengthen the way forensic science is practiced in our laboratories and presented in our courtrooms,” she announced. For the first time in history, Yates said, the Department of Justice had imposed accreditation standards for its labs, requiring that “whenever practicable, DOJ prosecutors use accredited labs when testing evidence.” What’s more, she said, as an incentive to states and localities seeking federal funds, the DOJ would give “a ‘plus factor’ to grant applicants who will use the money to seek accreditation.”
That the federal government’s own crime labs have gone for so long without imposing basic standards and oversight was a grim reminder of what passes for progress in 2016. The move was one of the first recommendations put forward by the National Commission on Forensic Science, formed in 2013 through a partnership between the Obama administration and the National Institute of Standards and Technology (NIST). (Yates, a veteran prosecutor and former U.S. attorney in Georgia, serves as the commission’s co-chair.)
The landmark 2009 National Academy of Sciences report on the state of forensics.
In particular, the report criticized branches of forensics known as “pattern-matching” — the analysis of such visual evidence as fingerprints, blood spatter, handwriting, and bite marks — as lacking any actual scientific underpinning. Also called “impression-matching,” these disciplines essentially boil down to a given “expert” eye-balling two or more objects and deciding whether they match — say, a bloody shoe print left at a crime scene and an actual shoe seized from a suspect, or tire marks left on pavement and the tires on a suspect’s car. There are no real standards guiding the interpretation of such visual evidence, so conclusions are based on subjective criteria. In some ways, the process is no more complicated than a child’s picture-matching game.
To say that the NAS report caused great upheaval would be an understatement. Its sharp assessments pulled the rug out from under even the oldest and most venerable disciplines within the forensic science community. Although seven years have passed since its release, in many ways, the field has barely begun to digest it, let alone devise solutions. Today, the NAS report comes up again and again wherever forensics reform is discussed. Vegas was no exception.
The NAS report concluded that nearly every single area of forensic science is plagued by serious questions of scientific validity and reliability.
Turning to the bad news — the catastrophic revelations about the FBI’s microscopic hair comparison unit — Yates spoke carefully. “It’s clear that, in at least some of the cases reviewed, lab examiners and attorneys either overstated the strength of the forensic evidence or failed to properly qualify the limitations of the forensic analysis,” she said. “This doesn’t necessarily mean that there were problems with the underlying science,” she continued. “It means that the probative value of the scientific evidence wasn’t always properly communicated to juries.”
To guard against such “testimonial overstatement,” Yates said, the FBI would be taking steps to make sure its experts deliver conclusions in court that are “supported by existing science.” Along with a “root cause analysis” of what went wrong with its hair-fiber analysis, the DOJ also plans to expand its ongoing review to other forensic practices — “not because of specific concerns with other disciplines,” Yates emphasized, somewhat defensively. But in order to “ensure the public’s ongoing confidence in the work we do.”
Yates did not identify the forensic practices the DOJ plans to assess — the department is just beginning to plan its review. But echoing the NAS report, she cited the “so-called ‘pattern’ or ‘impression’ disciplines” as presenting “unique challenges.” Despite her assurance that the DOJ harbors no particular concerns about any specific disciplines, it seemed clear that these would be first in line. “We’re thinking of it as a forensics ‘stress test,’” Yates said.
It’s Not Rocket Science
Yates’s announcement was swiftly applauded by the National Association of Criminal Defense Lawyers and the Innocence Project, along with Sen. Patrick Leahy, ranking Democrat on the Senate Judiciary Committee, who issued a press release praising the DOJ for its review, which would ensure that the “public can learn exactly what went wrong and how we can prevent this from ever happening again. Americans need and deserve a criminal justice system worthy of its name.”
Inside the Rio, it was harder to gauge the immediate reaction — but there was good reason to expect that, for some attendees, the review would not be welcome news. While the theme for the annual AAFS meeting has been consistently upbeat in the years since the NAS report first raised red flags — “The Forensic Sciences: Founded on Observation and Experience, Improved by Education and Research” (2013); “Our Path Forward” (2014) — the response from certain practitioners has been decidedly less so. Particularly among the forensic odontologists who practice bite-mark analysis, the reaction has been downright aggressive.
The “science” of bite-mark analysis relies on two conceits — first, that human dentition is unique, and second, that human skin is a sufficient and reliable substrate on which to record that uniqueness. The problem is that neither proposition has ever been proven — and the only empirical research attempting to do so has shown neither assumption to be true. Nonetheless, the subjective conclusions of bite-mark analysts have been allowed into evidence in criminal cases since the 1950s, when a Texas grocery store burglary was solved with the help of a dentist who matched a suspect’s teeth to a bite mark left in a piece of cheese found at the crime scene.
Bite-mark experts weren’t able to agree on the most basic question: “Is this a bite mark?”
In the past few decades, as bite-mark evidence has been linked to wrongful convictions, there has been growing recognition that there is no real science to support bite-mark analysis — including among members of AAFS. This has not gone over well with forensic odontologists. At the 2014 AAFS conference in Seattle, some sessions erupted into near shouting matches, as members of the American Board of Forensic Odontology (ABFO) — the discipline’s certifying body — reacted with hostility to presenters sharing research challenging the reliability of bite-mark analysis. One researcher was grilled so intensely that he was visibly shaking when he returned to his seat after his presentation (and even after he sat down, the grilling continued, from an odontologist sitting behind him). That same year, at a dinner hosted by the ABFO, a guest named Melissa Mourges — an assistant district attorney in Manhattan and a perfervid defender of bite-mark analysis — peppered her talk with nasty personal attacks on a scientist named Mary Bush, who along with her husband, Peter, has conducted critical (and ultimately unflattering) research into bite-mark evidence.
Following the Seattle gathering, the ABFO sought to show it had standards guiding its work. Members developed an elaborate “decision tree” to illustrate the process of identifying bite marks and matching them to a specific person’s teeth. But the project backfired: When it came to the first, most basic question on the chart — “Is this a bite mark?” — participating dentists were unable to clear even that initial hurdle. Of 100 case studies reviewed by 39 ABFO-certified bite-mark experts, there was agreement on that question just four times. The decision tree’s discomfiting results were presented at the following AAFS conference in Orlando, Florida, in 2015. This time, the odontology sessions were more subdued.
Dr. Michael Bowers.
Photo: Kendrick Brinson for The Intercept
Things have not improved for the bite-mark matchers. Last year saw a storm of withering criticism in the press, including a four-part series in the Washington Post and an investigative report by The Intercept. In October, a Texas man named Steven Mark Chaney was released after spending 25 years in prison for murder on the testimony of an expert who told jurors that there was only a “one in a million chance” that marks found on the victim could have come from anyone else. Ultimately, a Dallas judge and county prosecutors agreed that Chaney should be freed based on the finding that bite-mark analysis is, indeed, junk science. To date, 24 wrongful arrests or convictions have been linked to bite-mark evidence; several additional cases are pending before various courts. And on February 12, 2016, less than two weeks before the AAFS conference, the Texas Forensic Science Commission issued a landmark decision calling for a state moratorium on the use of bite-mark evidence unless and until the practice can be scientifically validated. The commission has also ordered a review of every Texas conviction where bite-mark evidence was allowed.
If there was reason to believe the bite-mark loyalists might arrive in Vegas chastened, or more willing to consider criticism of their field, the odontology sessions at the AAFS conference quickly proved otherwise. Instead of presenting any new research — or even plans for new research that could lead to validation of the practice — bite-mark defenders doubled down, stressing the value of the discipline and warning about how frightening a world it would be without it. Many presentations were more like attaboy affirmations, delivered with a side of subtle (and sometimes not-so-subtle) jabs at critics.
In one presentation titled “Bite Marks — Maybe It Is Rocket Science,” Florida dentist Kenneth Cohrn derided the NAS report as more “opinion paper” than scientific document and slammed critics “posing as experts,” including journalists, calling their critiques “opinionated, sensationalized, and not scientific.” One slide featured a prominent picture of Mary and Peter Bush, presenting them as foes who wish to ban bite-mark evidence from the courtroom — one of three separate references to the couple during Cohrn’s 15-minute talk. In another presentation, “Scorched Earth Forensics: Why the Move to ‘Eradicate’ Disciplines From the Courtroom Is Bad for Science and Bad for the Law,” Melissa Mourges delivered a heavy dose of righteous indignation. After dissing the NAS report — “not everything” can be tested like a “school science project” — Mourges pointed to forensic psychology as a discipline that is even more subjective than bite-mark examination, yet hasn’t been attacked in the same fashion. (Some of her best friends are forensic psychologists, she added, “so I do not want to read in some stupid blog tomorrow that I badmouthed” the field.) Mourges warned that getting rid of bite-mark evidence would almost certainly lead to tragic results — by eliminating potentially exculpatory evidence that could actually help criminal defendants and by allowing child abusers to go unpunished. We shouldn’t “throw the abused baby out with the bathwater.”
For a casual observer unaware of the turmoil within the world of forensic odontology, the sessions in Vegas might have seemed impenetrable or inexplicably tense — definitely a little weird. When it was Bowers’s turn to present on the “rise and fall” of bite-mark analysis, there was some anticipation that he might face heckling or snide questions from the very colleagues who previously colluded to try to oust him. Instead, the crowd was almost exaggeratedly polite. (“That was kind of disappointing,” one dentist joked afterward.) Yet, outside the room, attendees to his session were greeted at the door by a stack of mysteriously placed excerpts from a Washington Post article exposing the lengths Mourges will go to defend the evidence she relies on in criminal cases. The printed passages showed how she altered a sentence from the NAS report in a court filing in order to suggest that bite-mark evidence is scientifically accepted — a blatant mischaracterization of the study, which concluded the opposite is true.
At the lectern, Bowers spoke with a casual air — no hint that this was his big comeback after emerging victorious over the ABFO. Acknowledging that some “people want to discount the NAS report,” he called upon them to “admit and accept” its criticisms and “move on.” Without naming names, he chided previous presenters for blaming critics and the media for their problems. “The public wants to know the truth,” Bowers said. Indeed, there are people whose freedom is at stake — he pointed to the case of Bill Richards, who was convicted of killing his wife based largely on the testimony of two bite-mark experts. Those experts have since recanted their testimony and Richards’s case is pending before the California Supreme Court. For Bowers, the Richards case is one of many that raise the question: Don’t defendants have a right to reliable forensic evidence?
Photo: Shutterstock
Trust Us, We’re Experts
The odontologists’ head-in-the-sand attitude was in sharp contrast to other disciplines represented in Vegas. Consider the fingerprint experts, whose presentations were generally earnest and optimistic — in keeping with the “embracing change” theme of the conference.
There is no more ubiquitous and familiar a forensic practice than that of fingerprint analysis. Its origins go back to the 1800s, and like virtually all areas of forensic science, it was further developed primarily by — and according to the needs of — law enforcement. Also known as “friction-ridge” analysis, fingerprint analysis today involves collecting typically partial — and often distorted or “noisy” — latent prints from a crime scene and then matching them to a whole clean print taken from a suspect or victim, or pulled from a database. Although the practice is widely seen as foolproof, it has never been subjected to rigorous scientific scrutiny. Nor has there been any kind of standardized training or guidelines for fingerprint examiners — no rules to dictate, for example, how many print details should be considered when contemplating a match. The NAS report noted that “historically,” fingerprints have served as a valuable tool, “both to identify the guilty and to exclude the innocent.” But it also highlighted the “limited information about the accuracy and reliability” of fingerprint analysis, warning that expert claims of “zero error rates are not scientifically plausible.”
Although fingerprint analysis is widely seen as foolproof, it has never been subjected to rigorous scientific scrutiny.
Since the release of the NAS report, however, the fingerprint folks have been on their game. Researchers have sought to determine match error rates. Examiners have started to change how they talk about their findings. At the conference, one notably upbeat presenter was Henry Swofford, head of the U.S. Army crime lab’s latent print branch. In two separate sessions, he outlined the issues within the field and shared the solutions his lab had been developing — including reframing the way analysts report and testify on their conclusions (basically, by not claiming that a print can be individualized to a person, which implies 100 percent infallibility). And he described research underway to quantify the degree of correspondence between two impressions and to estimate the likelihood that correspondence pointed to the same source.
Indeed, in acknowledging the previous bad practices among fingerprint analysts, the affable Swofford poked some fun at his own profession — he talked about how he himself had been trained to consider “sufficient” quantities of print detail in determining whether two prints could be matched. “And I thought, yeah, I’m an expert!” But then he realized he was never told what “sufficient” actually meant: “and to date I haven’t been able to find an answer to that question.” Although the lack of specificity and standardization raises troubling questions about how many convictions may have hinged on faulty fingerprint analysis, Swofford said he isn’t certain that it is an issue. In a short post-conference interview, he said that fingerprints have always been considered a “highly discriminating biometric” and nothing arising from current research challenges that. But he was also confident that it would be possible to strengthen the field. Friction-ridge analysis is on the “cusp of real change,” he said, and scientists need to work with the legal community to implement reforms. “And I’m looking forward to it.”
To be fair, the bite-mark dentists weren’t the only ones not exactly rushing to embrace change in Vegas. In a talk titled “Critics Say the Darndest Things!” presenter Jan Kelly, a former president of the American Board of Forensic Document Examiners, focused mainly on how critics of handwriting analysis are often full of baloney and unfairly lump the practice with the junk science of bite marks and hair microscopy. Not a single wrongful conviction has ever been related to handwriting analysis, Kelly argued, at which point someone in the audience piped up: “Dreyfus!” It was a reference to the 1894 court martial of French army general Alfred Dreyfus, who was erroneously accused of treason based on a handwritten memo that an expert claimed could be positively matched to him. Kelly acknowledged the exception to her statement. But then she pivoted: Was that an Innocence Project case? “No,” she said, answering her own question. (In fact, the National Registry of Exonerations includes at least one wrongful conviction based in part on questionable handwriting analysis.) Of course, a lack of exonerations does not prove a forensic practice is necessarily sound. The NAS report noted that “there may be some value in handwriting analysis,” while warning that “there has been only limited research to quantify the reliability and replicability” of the practice.
In another session, an enthusiastic podiatrist from Indiana, Dr. Michael Nirenberg, stressed the significance of foot-related evidence in solving crimes. “A lot of people don’t think much about feet,” he said. “In forensic podiatry, we always say, ‘You cannot float through a crime scene!’” Although footprints have long been used as evidence by law enforcement, forensic podiatry is a relatively new specialty — it was not even mentioned in the NAS report. Its professional association, the American Society of Forensic Podiatry, was founded in 2003. In a 2008 article for Evidence Technology Magazine, one practitioner drew a distinction between his work and that of a mere “footwear examiner,” explaining that forensic podiatrists evaluate evidence “for the purpose of connecting an individual to footwear or a footprint.”
Indeed, in Vegas, Nirenberg claimed that a forensic podiatrist can link a suspect to wear patterns — the imprints and indentations inside of a shoe. (Performing a “shoe autopsy” helps with such analysis.) An emerging branch of the field, he said, is studying someone’s gait to link the person to a crime. “It’s very exciting,” Nirenberg said.
Forensic podiatry is a good example of a field that has established itself as a forensic discipline despite a thin scientific basis. Last fall, the Boston Review published an article titled “Forensic Pseudoscience,” which singled out the discipline as an illustration of what law professor and forensics expert Daniel Medwed has described as “rogue scientists” who “flourish” in the absence of oversight. Nirenberg and a colleague took umbrage at the article, writing a letter defending the discipline and pointing out that in a courtroom setting, “Experience suggests that where doubts exist as to expertise, this will inevitably come out during cross-examination.”
In response to follow-up questions posed by email, Nirenberg disagreed that his field would be considered among the pattern-matching disciplines questioned by the NAS report. Practitioners rely on sophisticated and detailed knowledge of the foot — “biomechanics, foot type, pathologies, deformities, and so on” — when considering whether a suspect’s and perpetrator’s footprint can be matched. That, of course, sounds much like the process forensic dentists describe when it comes to analyzing bite marks.
In Vegas, Nirenberg acknowledged that practitioners need to be careful about the opinions they offer the courts. But, seeking to prove that matches between feet and footprints can be scientifically accurate, he also threw out a wild array of disparate statistics as alleged evidence. A study out of India found footprints were distinct to one in 10,000 people, while a California study put that measure at one in 100,000. He even cited research coming out of the Royal Canadian Mounted Police that said the chance of finding a random match for a footprint is one in 1.27 billion. The numbers presented a quandary that was a consistent theme throughout the conference: How can experts express reliability to jurors in the absence of reliable scientific data?
Photo: Tritechforensics.com
So You Want to Be a Forensic Scientist
The AAFS exhibit hall was housed in the Rio’s Amazon ballroom, a massive space filled with conference sponsors, scientific publishers, and purveyors of forensic gadgetry. On the day it opened, a crush of conferencegoers headed straight for the free sandwiches, while others swarmed around the freebies available at various booths. Along with the usual candy and pens, it was a peculiar grab bag of weird stuff: wound measuring charts, evidence bags in various sizes, a clear plastic tube labeled “CONTAMINATED NEEDLES,” and a sperm-shaped stress toy. The exhibit hall also played host to the AAFS’s annual wine and cheese reception; attendees sipped wine amid human X-rays and lab samples with labels like “urine” and “stained money.”
A booth belonging to AAFS displayed a small handbook titled “So You Want to Be a Forensic Scientist!” A chapter introducing the “general” section of AAFS described how, as “the academy’s gatekeeper,” members of the section are “always willing to consider accepting new disciplines that develop in response to the needs of the justice system.” It quoted a former AAFS president, writing in the Journal of Forensic Sciences in 1983: “There is literally no end to the number of disciplines that become ‘forensic’ by definition,” he wrote. “Nor is there an end in sight to the number of present or future specialties that may become forensic. The examples are many.”
For members of AAFS’s jurisprudence section, the practical problem of how to use certain forensic evidence in court — if at all — was a constant theme in Vegas. Every day, in courtrooms across the country, judges act as “gatekeepers” in deciding what kind of evidence to allow. Yet few are equipped to determine whether a given forensic expert is sound in his or her analysis. “Why do we tolerate lawyers that don’t understand the science they’re using?” said one speaker, herself a sitting judge. “Why do we tolerate judges who are willfully science-phobic? I speak of myself, too.” Like many of her colleagues, the judge joked, she had done her best to avoid science throughout her schooling career. The same sentiment was echoed in a separate session by a defense attorney from the Twin Cities, who has since found herself navigating a massive crime lab scandal that has cast doubt on scores of convictions.
In his own presentation, Fabricant laid out the absurd reality. When it comes to the assessment of courtroom evidence, it is too often a matter of the blind leading the blind. “We have scientifically illiterate judges, scientifically illiterate lawyers, and scientifically illiterate jurors,” Fabricant said. These are the people determining “whether forensic science is valid and reliable science.”
A number of sessions set out to grapple with this problem. In a presentation titled “Better Ways to Manage Poorly Validated Scientific Evidence,” Michael Saks, a professor of law and psychology at Arizona State University, shared specific suggestions, some of which are already underway — labs should be accredited and examiners certified; evidence should be blind tested, so that an examiner knows only as much about the case as is necessary for testing. (We’re “used to blind tests at county fairs,” Saks noted. Why not also in forensic labs?) Judges must constrain forensic testimony to what is scientifically known in each field — and jurors should be instructed on the limitations of any given field.
Such safeguards, of course, do not solve the deeper problem of poorly validated forensics itself — that project is ultimately up to the broader scientific community. Throughout the conference, a great deal of focus was devoted to the burgeoning process of developing rules and standards for forensic disciplines, which, if done right, will provide desperately needed guidance to lawyers and judges for gauging the reliability of forensic evidence. But it was not always clear that these standards were being designed with the practical needs of the legal community in mind.
The DOJ review is just the beginning of a process that until now, has been almost completely overlooked.
Opening the criminalistics presentations of AAFS, Section Chair John Lentini — a chemist, author, and fire investigator who has done heroic work exposing faulty arson convictions — introduced the Organization of Scientific Area Committees (OSAC), a project of the National Institute of Standards and Technology. The launch of OSAC was the “happiest news” Lentini had to share about the past year. “People are actually going to write up some standards,” he exclaimed, somewhat wryly. It would be hard to overstate the scale and scope of this project. Its goal, according to NIST, is “to support the development and promulgation of forensic science consensus documentary standards and guidelines, and to ensure that a sufficient scientific basis exists for each discipline.” Explaining its structure, John Paul Jones II, associate director for OSAC affairs, displayed a color-coded, multi-pronged chart resembling a molecular map, showing a dizzying array of categories and committees, each containing subcategories and subcommittees. More than 540 members make up the committees, from scientists to government workers to private-sector experts. Following a multilayered approval process, each standard and guideline will be placed on a registry — ideally a one-stop-shop for information on forensic best practices.
The OSACs appear to have been met with a mix of anticipation and dread. One slide showed the iconic hands-on-the-TV image from the horror movie Poltergeist, reading: “OSAC Registries: They’re here.” In February, after months of deliberation, NIST published its very first OSAC standard, by the subcommittee on controlled substances. It lays out the minimum criteria for identification of seized drugs — an “essential first step” toward improving chemical analysis of controlled substances. For a limited time, Jones explained, NIST would grant free web access to the standard — along with future ones — to law enforcement, prosecutors, public defenders, and other stakeholders. (On its website, NIST says the standards will be free for up to two years. But currently, the link providing access yields an error message.)
It was hard to understand why, as a government-funded project, the standards should cost money at all — especially since that would discourage anyone with a limited budget from using them. In the ballroom next door to the OSAC presentation, members of the jurisprudence section were struggling with how to better educate themselves on forensics. During a discussion on how to introduce forensics into the law school curriculum, one criminal defense attorney noted that every year, the AAFS conference presents impressive information when it comes to “grants, standards, and accreditation” — work that “produces excellence in forensic science.” But when he gets to court afterward, it is a rude awakening. If such work doesn’t get back to lawyers and judges, he warned, “It is all for naught.”
Photo: Shutterstock
The Duty to Correct
On March 21, the National Commission on Forensic Science met in Washington, D.C. There, Yates spoke once more about the planned review by the DOJ. “The goal is to start a conversation,” she told members. “And to get your input on the best path forward.” The head of the DOJ Office of Legal Policy, Jonathan Wroblewski, then laid out some of the questions at hand. “It begins with which disciplines — which ones we should be looking at. How do we select the cases? What are the standards by which we should be testing the testimony that was given in those closed cases? Who should be conducting this review?” Although much remains to be seen, Wroblewski said, “We think that initially, we should be considering disciplines that require forensic professionals to compare two items, then to make judgments about the similarities and differences.” He echoed what Yates said in Vegas. “This is about quality assurance. It’s not about the fact that we have any kind of suspicions as to particular disciplines in forensic science.”
The DOJ review is just the beginning of a process that until now, has been almost completely overlooked — and was barely mentioned in Vegas. For all the talk of moving forward and embracing change, the AAFS conference spent precious little time addressing a different imperative — the need to look backward. Or, as lawyers like Fabricant call it, the “duty to correct.” Indeed, as errors and deficiencies in forensics are acknowledged, so too should be the cases in which those deficiencies and errors were allowed into evidence.
Until the FBI’s recent inquiry into hair microscopy cases, such work was done in a scattershot way, mostly at the state level. The Texas Forensic Science Commission, for example, has facilitated a review of dozens of old arson convictions — a process jointly handled by the Innocence Project of Texas in partnership with the state’s fire marshal — and is now embarking on the bite-mark case review. But the review of potential wrongful convictions is largely left to a patchwork of modestly funded innocence projects, law school innocence clinics, and to a small number of conviction integrity units within prosecutors’ offices. (If there is any glaring blind spot in the NAS report, it is likely the failure to address the impact that faulty forensics may have had on a large number of criminal cases. The report acknowledges the troubling way forensics are vetted by judges and lawyers for admission into evidence, but notes only that this demonstrates a “tremendous need for the forensic science community to improve.”)
Generally, the criminal justice system favors finality — a virtue that has been reinforced in recent decades through legislation and expansion of certain legal doctrine, including the concept of “harmless error” — where mistakes during a criminal trial are acknowledged upon review, but ultimately shrugged off as not having impacted the outcome of the case. In short, it is a standard of expediency — and an example of the difference between law and science. Although science is founded on the principle of perpetual inquiry, the legal system prefers the proposition of one-and-done.
The system is simply not designed to facilitate any meaningful wide-ranging review — and more often than not, state actors fight tooth and nail against reopening old cases. Today, there is no way to ensure that every potential wrongful conviction tied to faulty forensics will be identified or remedied. Take, for example, the experience of the defense attorney from the Twin Cities. Even in the face of glaring failures by the state’s crime lab, she said, some prosecutors refused to cooperate with her to reassess the cases impacted by the lab’s incompetence.
Yet, the sheer power of forensic evidence makes such reviews crucial. As the AAFS conference came to a close, Fabricant shared the story of George Perrot, a man released from prison in February. Perrot spent more than two decades incarcerated for the 1985 rape of a 78-year-old Massachusetts woman. Although the woman repeatedly insisted to police that Perrot was not her assailant — he didn’t look at all like her attacker — the then-17-year-old was nonetheless convicted based largely on the testimony of an FBI hair examiner who said a single hair found in the victim’s bed was a match to Perrot. Perrot was sentenced to life in prison. If it weren’t for the FBI’s comprehensive hair microscopy case review, he would still be in prison. The power of forensic evidence in this case was enough to supersede the victim’s insistence that they had the wrong man, Fabricant pointed out. “I find that truly horrifying.”
Related:
For almost ten years, Harry Markopolos; a certified accounting and finance professional, along with a few partners, proved – in the form of mathematical models and red flags – that Bernard Madoff was conducting the worlds biggest, known Ponzi scheme.
Their findings were presented to the authorities, who didn’t understand the math and didn’t know what they were doing. As a result, thousands of victims lost everything!
Think a little about that!
If it’s not as provable as pytagoras, then it’s not science. And if it’s not science, then it’s a bluff – no matter how proud it makes you!
Alfred Dreyfus was never a general. He was a captain when court-martialed, and retired as a lieutenant colonel. I stopped reading the article at that point.
As a police officer I had two rules:
1) If I didn’t witness the crime personally, I wasn’t making the arrest.
2) Never, ever leave it up to the prosecutors to decide if the case was valid. Once it was out of the arresting officers hands the most horrendous things can happen to the defendant.
In my career I made hundreds of arrest and never had the thought of sending an innocent person to jail. I never arrested anyone without the full knowledge that once I booked them their lives were changed forever. That is a pretty intense weight to bear…at least it was for me.
Thanks you Officer. A lot of stand up old school guys among the boys in blue. Important to remember that even as we address the clear unreliability of certain forensic evidence and the deleterious effect its had on the fair and equitable implementation of our justice system.
Hope they were able to enjoy Vegas, at least. Never been, myself.
What happens in Vegas STAYS in Bluffdale.
While using pseudo science and the authority of self styled experts to obtain convictions has undoubtedly been a success, I wonder if the DOJ isn’t overlooking some simpler techniques which might be even more effective. Why aren’t confessions extracted under torture admissible in US courts?
With the leading Republican candidate vowing to bring back torture, this is more than an academic question. I don’t deny that many people have moral qualms about the state using torture. But once these have been overcome, shouldn’t the question be, “how can we increase its effectiveness?”
The immorality of torture lies in using it for personal amusement. Most people will concede, regardless of their moral framework, that this is somewhat questionable. However, once you can demonstrate a useful outcome, then it becomes merely the lesser of two evils, and hence justifiable.
The problem is that while using torture as part of a police investigation may produce useful evidence, there is always a sneaking suspicion that such evidence could have been obtained using diligent conventional policework. The solution is to legislate the elimination of evidence from trials – it merely serves to confuse the jury. Torture has always been an invaluable as a means of extracting a confession – something a jury can understand.
This will initially be hard on the charlatans who currently practice forensic science. But many of them will be able to find new employment as torturers. Trials will be shorter. Conviction rates will be higher. And there will be no need to continually review old cases.
That legislation to outlaw evidence in favor of tortured confessions could also be passed in one of those midnight secret sessions, you know, to better catch everyone by surprise.
“NOBODY expects the Spanish Inquisition!” ~ Monty Python
In ancient Rome testimony from slaves (what we would now call the working class or H1b visa holders), had to be extracted under torture for it to be admissible in court.
https://www.reddit.com/r/AskHistorians/comments/28fwwv/did_roman_slaves_have_to_be_tortured_before_their/
Great article that addresses concerns I have as both a Forensic Pathologist and a Lawyer. Sometimes the science is good or even excellent. However, in my experience more often then not the problem is incompetent forensic scientists who have absolutely no clue how to apply that science. Some are arrogant but others just don’t understand there role in the process. Some will say anything to get a result favorable for the side that pays them. I have actually for the most part seen some great judges who refuse to let lawyers get some junk admitted. I am very wary of evidence that cannot be explained to the average juror. Trust me I am the expert should be the exception and not the rule.
None of the various techniques mentioned here would be particularly difficult to test scientifically to judge their value. The fact that so many of the practitioners seem so reluctant to have this done is really disturbing. Handwriting analysis would be particularly easy to test for both it’s accuracy as a technique in general and, if it is found valid, to then rigorously test anyone who wishes to provide that analysis for their competency at doing so.
“The fact that so many of the practitioners seem so reluctant to have this done is really disturbing.”
Absolutely kick-ass journalism continues at The Intercept. Holding the unaccountable to account despite their reliance on pseudo-science, and, importantly, dispelling the arrogant “it’s right because we say so” mantra that permeates almost every decision that those in power foist upon the citizens they are supposed to be representing – from mass incarceration, the death penalty, mass suspicion-less surveillance, warmongering – the list goes on.
Kudos as well to the superlative live feed panel discussion presented here earlier with Snowden, Chomsky, and Greenwald. Brilliant stuff.
Looking forward to more from everyone.
These days I usually ask alleged scientist/engineer/ forensic investigator about WTC building #7? If they can’t figure out that building 7came down at free-fall speed, they really don’t know much.
Sometime forensic people miss things.
https://www.youtube.com/watch?v=C0r0rWm6p0s
Really interesting and comprehensive article. Thanks!
“Despite the image peddled by popular TV shows like CSI: Crime Scene Investigation, which portray forensic experts as crime-fighting scientists with unparalleled gifts of observation”
My hunch is that shows like this have had a (possibly huge) impact on trials due to jurors assuming real-life is akin to such fiction. But I don’t know if any studies have been done on this. But I also wonder if meetings like this touch upon media portrayal of forensic science? I’d hope some of them would advocate an effort to offer to consult with TV networks for their shows so that they wouldn’t offer up BS. I mean, one single episode of Criminal Minds or CSI reaches orders of magnitude more everyday people than this conference, or the NAS study.
I can’t speak to any official figures or research done, but I do know that the popularity of said shows has absolutely contributed to bias among potential jurors, in that they now are far more likely to expect a preponderance of forensic evidence in all cases. In the field, it’s even been called “The CSI Effect.”
Great article, very insightful. I wonder if NIST could honestly be trusted to create reliable scientific methods and standards. After demonstrating their ability disregard science when it came down to investigating the collapse of building 7, and the rate of speed at which the twin towers fell at very near free-fall speed through tons and tons and tons of solid steal and concrete. As if to suggest that such things(concrete & steel) would not exhibit a resistive force against the falling of the upper floors of said towers.
I know this comment will be disregarded as tinfoil hat bull-shit, but there it is anyway, take it how you will. If you think I’m bull-shitting research it for yourself. Just start with a simple google search for “building 7″. Or, try to find how many steel high-rise buildings have fallen due to office fires throughout world history. Or, just put your head in the sand and trust NIST, unconditionally, to have your safety at heart. Your choice.
NIST, a name that will live in infamy.
Yes. The inertia alone would offer resistance plus the central columns spire gets stronger towards the bottom so that part of it would at least be standing. Even if it did fail, it would fail chaotically not symmetrically etc. etc. So many things wrong. I keep probing to see how our ruling class is handling this. It can be scientifically proven that the official story is a lie.
We have a War on Terror based on a lie and it keeps going and going and…
Wow, fascinating.
This is so strange:
“Melissa Mourges delivered a heavy dose of righteous indignation. After dissing the NAS report — “not everything” can be tested like a “school science project” — Morgues pointed to forensic psychology as a discipline that is even more subjective than bite mark examination…”
Not everything can be tested? Isn’t testing, observing, and seeing if results can be replicated the very foundation of science? Not sure how she expects to defend her “science” if she cuts out that part.
I have to tell you, PI, over the last decade or so I worked with at least three engineers on MIC programs that would unashamedly tell everyone they believed the world only 6500 years old. Now, I’m also an amateur archeologist and geology is one of those sciences they have to pretend doesn’t actually exist. Any contradictory evidence was obviously “planted” by their god as a test of faith. It came up because I found Columbian mammoth remains in a Colorado desert back then. I’d always just smile and tell them they had their scientists and I had mine. Still, it boggles the mind how some are college educated and actually work in scientific fields yet will pick and choose what accepted sciences they’ll recognize – based upon an afterlife wish. I’ve never met a drug addict or alcoholic that was any more schizophrenic than that, and they usually have far less choice in the matter. Also for some reason, such military environment evangelistas seem to have no problem convincing themselves all Muslims are inherently evil. Go figure.
Fear-based people! Gah.
“…they believed the world only 6500 years old.”
The imposing stratigraphy of Göbekli Tepe attests to many centuries of activity, beginning at least as early as the epipaleolithic period. Structures identified with the succeeding period, Pre-Pottery Neolithic A (PPNA), have been dated to the 10th millennium BCE.
I love those southern Turkey ruins for one thing in particular they clearly demonstrate. Some 8000yrs+ before Christ the technology for cutting, moving and precision building with large stone blocks existed, long before the time line proposed for such things by most of today’s ancient Egypt and biblican scholars. And, it almost assuredly migrated there from elsewhere and an even earlier time. Heck, geological records show the last Columbian mammoths died off some 10 to 12,000yrs ago.
I worked with a lot of closed minds in my day but the worst for science are always the most religious.
Perhaps this was deliberate—if so, hats off—but the woman’s name is “Melissa Mourges.”
Not Morgues.
Loved the witty subheads and the writing, though.
Outside the US, a Chief Coroner of Ontario, Canada – Charles Smith was responsible for bad medecine involving over 130 cases of death in childre. His work provided the evidence for a large number of crimimnal convictios of a number of people later exonerated in the deaths of childrem – and costing the People of Onrtarion multi millions in reparation payments.
Smith has been stripped of his medical license and currently resides in British Columbia.
I’m from Australia but have lived in the states for four years now. There are two sides to this coin. Most developed democracies are not only using new technology to no only exonerate,as the US is doing, but now also to convict people previously found not guilty.
Your so-called “Bill of Rights” with your extremist First, Second, Fourth Fifth amendment “rights” enables crimes as does your extremist “double jeopardy prohibition.” Oscar Pistorius types are sent to prison regardless of erroneous findings of “not guilty” in Jana, south Korea, S. Africa, Canada, Australia and almost all of Europe where such findings can be overturned and yet no matter what is found after the trial you have OJ Simpson unable to be convicted on new evidence.
Here in Australia a person can be held at both lower thresholds and for much longer (four weeks instead of three days in the US) on evaluation for suspicion of mental illness. In Australia if police find something outside of a warrant it can usually be used in court. In the US practically never. In almost all of the EU, and in Australia and Canada, police have the ability to ask you for identification when you are out in public and search you under much lower thresholds as well.
Your bill of rights just allows more crime to occur in the first place and you end up with more crime occurring that could have been prevented before it occurred and more criminals in prison.
The USA need to get with the modern developed democracies and stop holding up absurd and dangerous “freedoms” like dubious freedom from double jeopardy. Just as new tech sets some prisoners free, it also should be used to convict people that juries mistakenly set free.
This person’s ideology is frightening. And carries with it a notion that government is always on the side of right and just actions, while history has proven this to be a falsehood, touted by frightened followers whom possess no backbone, and no respect for innocence until proven guilty. These types would have any person held in jail or worst until they can prove themselves to be innocent. I’d like to see this person deported from their democratic country and sent to a communist or socialist country, surely this person would feel safer in those conditions.
Might I recommend for you Nancy Grace, or Abby Martin’s The Empire Files you might find their articles more to your ideological liking.
Your entire comment was amusing and entertaining. But this bit was truly precious:
Hey mate, the U.S. incarcerates more of its citizens, both per capita and in absolute terms, than any other nation in the world. That’s us, the land of the free.
The primary reason for this is our obscene drug war, which has had the effect of severely weakening that Bill of Rights you think is so awful. Then along came another “war,” the one on the abstract noun called “terror.” Our 1st, 4th, 5th and 6th amendments are under severe stress from both of these.
G’day.
LOL!!!!!! Ye…. Bwaaaaah!!!!! Never mind.
see addie, the difference is, in australia the government confers all rights; they are mere privileges. in my country, my rights are inherent. no government confers them on me. so why don’t you do us all a favor, and move back to australia if you are opposed to our ‘absurd and dangerous freedoms’. we do not want, nor do we need people like yourself.
Great article.
“The towering compound rises from the desert just east of the Strip”
Just one nit : the Rio is west of the strip and not east.
Now this is Journalism
“The world is torn asunder as we smoke and laugh”, she said as we smoked and laughed. I leaned back allowing the sunlight to filter through the trees, my eyes adjusting–but to what? We ate biscuits and smoked, and talked about biscuits and smoking. “We should smoke biscuits”, she laughed as smoke and biscuit crumbs tumbled from her smokey biscuit mouth like laughter.
“How many have died for this?” I implored.
“At least fifteen people are dead after a multi car pileup on I-95. Chanel Five’s Maria-Valequez-Smith-Goldstein is on the scene–Maria?
“What a strange thing to say”, I said with a face that said what she was saying was strange. It was at this moment I knew that knowing was like smoking–whispy and impermanent–and something you had to do outside so your kids don’t yell at you. Like biscuits and the way her hair got caught in her mouth when she laughed as she wore blue boots that would trample through the snow as if it were winter and there were snow on the ground to trample through.
It was here with the smoke and biscuits and her that I realized–maybe I would rather be a “real” writer and not a journalist.
——-
This is an excerpt from my upcoming art installation entitled “Narrative Journalism”
Thanks for this complete analysis of the farcability of forensic fraud. There is a lot of it. If you ask prisoners, they will tell you the easiest crime to get away with is murder. Then there is the LYING PROSECUTOR problem who just want a victory even when they have the knowledge their target is innocent. Then there is the LYING POLICE problem who murder, make stuff up, and the FS is tasked with making up improbable actions. For instance- the murder of JFK.
When the police are involved with more clandestine murders they vary between claims of threats to life and suicide. Suicide is a big one. That fellow who blew the whistle on (cant recall) in sacramento calif killed himself – 2 shots i recall.
We live in a country where murder is becoming the prefered method of solving problems. And instead of honing skills for the truth, the politisation of detectiveness has refined and polished the loopholes and weaknesses to make best use of the spin cycle.
Working together, criminal cops, criminal prosecutors and criminal FS persons put together a story that the murder of Michael Brown in Ferguson Mo backstopped their conspiracy to get away with murder by firing off pre-emptive statements of character assassination meant to imply that “He was worth killing anyway”.
We are all palestinians now.
A great article by outstanding journalists. This outlet needs more articles like this one.
You women are truly outstanding journalists, and this piece is among your very best. Television has done an enormous amount of harm to the jury system, not least is the depiction of forensic scientists in shows such as CIS — these characters are invariably upstanding, independent individuals using techniques thoroughly grounded in unchangeable science.
Just one observation about your final words:
When the science is valid, it should trump eyewitness testimony. More often, innocent men (it is usually men) are incarcerated due to misidentification than the other way around.
Study after study has shown that, especially under the stress of a violent crime, witnesses and victims are prone to false identifications. Forensic science conducted with integrity and high standards is far and away more likely to yield justice than is human memory.
Too bad these ‘truly outstanding journalists’ can’t get published on a site with more than a handful of (sycophantic) readers…
You are, as usual, spewing falsehoods. After a rocky start, The Intercept is now widely cited and read.
Really? Show me the numbers or wide cites…
We are going to replace wallstreet entertainment media with a new media structure by competing against them. Americans will come to realize how they poison their perspectives and ruin their relationships and get robbed of power.
IT’S GOING TO HAPPEN.
Yup, it’s in the works. From Poynter last December:
First Look’s first foray into a major film, Spotlight,was a smashing and important success.
Very odd that you failed to mention any “Great Things Coming!” about THE FUCKING INTERCEPT.
The Intercept is part of First Look media. Much of this is going to be platformed here.
You, Lin Ming, are a very sour gadfly around here. Why do you suppose it is that First Look was able to lure Robert Mackey away from The New York Times? They weren’t going to let him go; he wanted to write at The Intercept.
You know if you don’t like it, you’re free to leave and never return. Why did you come in the first place? Just like to natter perhaps?
Lin Ming, Alias The Thing
Proud to Say It Slimes
Where the Action is
Not
Vic Pussy – Always the Follower, Never the Leader…
and you have to use your old lines too, because you have no imagination
I’m new here, I like what I read so far. So, maybe they are growing, at least by one.
They seem to steer away from the kind of reporting tactics found on most mainstream news sites. I guess I mean that kind of advocacy journalism, the kind that has an agenda they are trying to make the public swallow unknowingly. So, for me they seem more trust worthy. If you don’t like it you shouldn’t be here reading it, you should be reading something by nbc, abc, fox, democrocy now, ect…
This is beautifully well written – love the detail. Reads like Barrett Brown on a good day. But I must quibble: surely America does have a criminal justice system worthy of the name! “Criminal”, that is.
Though better science is needed, I think much of the issue actually is legal. We have prosecution and defense calling partisan experts to push their side, who are going to try their professional best to muddy the waters. It seems to me what we need is for judges to call in neutral experts to help them figure out the current state of the art. It may be that we need adversarial parties still to be able to get their own analyses done to start with, but it would make sense to have a neutral expert at the end to say whose interpretation makes sense and whose is bollocks.
The sickness of prosecutor criminals is worse than people realize. These demented personalities have it in their moron brains that the defense is going to lie. So these dummies decide that they can best that fantastic delusion by telling a better lie. This pushes defense into lying. Then it becomes a WAR OF LIES BY PROFESSIONAL LIARS.
Lying is the theft of truth. That is why it is in the 10 commandments as a sin. The lying virus is deep in politics because the cowards in America have not outlawed it. WMD was a lie. Clapper lied. Coomey lied. Snyder lied. Scott lied. Walker lied. McDonnell lied. Bentley lied…
America is a country of lies and liars and yet call themselves Christian. That is also a lie.
#BlameRorschach
tl;dr
So you’ll only be making about a dozen comments right?
So to be honest, I expect you start each one of them with the following boilerplate:
“This article was too long to read, but I could be bothered to comment here a lot, such as the following idiotic comment I am about to make, because I am like the guy in that Charles Dickens story, the one that ghosts visit, only I am not like him because no one will save me, for example I am less successful than that guy, and not even ghosts will talk to me anymore.”
I’ll read all your comments that start that way Lin Ming, I’ll say nice things about you for coming clean about your problem.
Geez, you really got a thang about me, don’t ya?
lol. This article was fantastic. You may as well say “Moby Dick tl;dr”, “Othello tl;dr”, “Woodword and Bernstein tl;dr”. Hope you’re being sarcastic. If not you are an utter moron of the highest Moronic Order. Whenever you look in the mirror you should drop your eyes from embarrassment.