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Skepticism of Forensic Methods – A Call for Judicial Action

The Ninth Judicial Conference included several internationally known speakers on forensic science.  The general message?  Judges must be more vigilant, budget more time, and be more skeptical of forensic methods.

fingerprints
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Commonly Held Beliefs about Forensic Science

Years of television entertainment such as CSI have led jurors to trust the infallibility of forensic science, said Jennifer Mnookin, dean of the UCLA School of Law.  However, she cautioned judges, “Faulty forensic science is the second most frequently found contributing cause” to wrongful convictions, second only to eyewitness identification.

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While fingerprints, bitemarks, and toolmarks are commonly admitted in criminal courts, due to their long-standing use, Mnookin specifically cautioned against the “We’ve always done it this way” line of argument for admitting forensic science evidence.  “It must take scientific study to make a field scientifically reliable. . . Experience, no matter how extensive, could not be a substitute for scientific study.”

The PCAST Report, Revisited

In September of last year, the President’s Council of Advisors on Science and Technology (PCAST) released recommendations regarding actions the forensic science community should take to strengthen forensic science.  (The full PCAST report can be found here.  Commentary on the forensic science PCAST report here.)

Criminal defense attorney Jennifer Friedman reminded the judges the PCAST report was directed to the courts specifically.  The report was intended “to discuss and explain the intersection of scientific validity and legal reliability.”  Ms. Friedman noted the courts have the power to rein in forensic examiners during testimony.  For example, forensic examiners shouldn’t be allowed to claim any of the following:

  • 100 percent certainty in their conclusions;
  • A mistake free history as a practitioner; or
  • An error rate of zero for a given discipline.

A Perspective from the Bench

The Judges’ Obligation

Judge Alex Kozinski, of the Ninth Circuit, also spoke at the Conference.  He praised the PCAST report as a step forward, “because after all, this is not a situation where we’re dealing with just technicalities but we’re dealing with the question of whether people are guilty or innocent.”

The Defense Bar’s Duty

Judge Kozinski also observed judges aren’t the only ones to question scientific evidence put on by the prosecution.  “Many defense lawyers, like the rest of us, grew up with fingerprints, bitemarks and footprint evidence and simply accept it as being inherently valid and not worth challenging.”

Reflections

It’s been five years since the Saint Paul Police Department Crime Lab closed its doors.  In an opinion piece on the subject, the Saint Paul Pioneer Press wrote, “When your freedom depends on the reliability of testing performed by the government that’s attempting to convict you of a crime, and because you are innocent until actually proven guilty, you want the burden of proof to be sufficiently heavy.”  Those words remain just as true today.

It is incumbent on judges, defense attorneys, and prosecutors to apply a healthy dose of skepticism to forensic evidence, regardless of its packaging.

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The Consequences of False Positive Test Results

Recently, it was reported Karlos Cashe spent 90 days in jail because powdered drywall was mistaken for cocaine.  Both cocaine and powdered drywall are white.  Both cocaine

Photos of Chemical/Pharmaceutical Drugs
White Powder – Drywall? Cocaine? Something else entirely? By Rillke – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22833840

and powdered drywall can take the form of a powder.  And both cocaine and powdered drywall apparently test presumptively positive for cocaine using field test kits that screen for illegal drugs.

Understanding Presumptive Tests

Presumptive tests “presume,” but do not prove, the presence of certain substances.  There are presumptive tests for blood, saliva, semen, and yes, there are presumptive tests for a host of different illegal substances, such as cocaine, heroin, methamphetamine, LSD, etc.  While a presumptive test will generally provide a positive test result for the substance it is marketed for, (in Mr. Cashe’s case, cocaine), it will also yield a positive test result for other substances (in Mr. Cashe’s case, drywall).

False Positives

In addition to drywall, there are any number perfectly legal, common items which yield a positive test result for illegal substances.  By way of example only, a short list of substances previously yielding positive results for the presumptive presence of illegal drugs includes:

 

Error Rates

There is no precise known error rate.  However, there is no question false positives occur with presumptive field drug tests.  For example, in Florida, one lab found 21 percent of the evidence police submitted as “methamphetamine” was not actually methamphetamine.

Criminal Charges

It is not uncommon in Minnesota for the state to file charges based on a presumptive drug test result.  The substance should then be sent to an accredited laboratory for confirmatory testing.  In some parts of the country, such as Harris County, Texas, courts won’t accept a plea of guilty without a confirmatory drug test.  This assures the courts innocent people aren’t swept up due to presumptive testing alone.  Unfortunately, this does not address crime lab backlogs, and the amount of time defendants spend in jail, awaiting test results.

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Preventing False Confessions: A Step Forward

Confession_(1918)_-_1Recently, Wicklander-Zulawski & Associates announced it will stop training United States police departments on the Reid technique, a method of police interrogation, due to the risk of false confessions the technique presents.  For those of us who have worked in the criminal justice system on behalf of defendants for more than about 5 minutes, this is welcome news.  For those who are unfamiliar with how false confessions occur, some background is in order.

Why Would Anyone Confess to a Crime They Didn’t Commit?

Fair question.  And one prosecutors have been posing to juries in closing arguments since the dawn of time.  The answer, if you’ve been following this blog for any length of time, should not surprise you. . . it’s based in data and research and, well, science.  Studies have shown certain interrogation tactics increase the likelihood of a false confession.

Alternate Interrogation Techniques

Wicklander-Zulawski & Associates will now focus on other interrogation techniques, stating, “Confrontation is not an effective way of getting truthful information.”  The Agency also credited a host of academic research which establishes other interrogation styles “are far less risky.”  Instead, Wicklander-Zulawski & Associates will now address the Reid Technique only to “educate police on the risk and reality of false confessions.”

The Response from John E. Reid & Associates

Joseph P. Buckley, president of John E. Reid & Associates, which licenses the Reid Technique, offered the following in response:

  • The technique has consistently held up in court; and
  • That it is not “confrontational” except when evidence already suggests the suspect’s guilt.

Here’s a full version of their response .

A Word of Caution

The response from John E. Reid & Associates contains at least some misstatements or overstatements to support their position.  For example, the response includes an assertion Steve Drizin and Laura Nirider gave a presentation for the National Association for Criminal Defense Lawyers, favorable towards the technique.  Reid’s statement includes the sentence, “In their presentation they stated that Reid is the gold standard on proper procedures, and that they regularly review reid.com and our materials to establish best practices and to point out what other investigators did that was improper.”

One Response to the Response

The record should be very clear.  This is, at best, a misunderstanding of the presentation.  To correct the record, Steve Drizin and Laura Nirider have issued a statement of their own, found here.  The short version of their response is twofold:  1.  We do not endorse the Reid Technique, nor do we consider it a model for proper procedures or best practice; and 2. For more information on a juvenile interrogation protocol that we do consider to be a model for best practices, please visit the International Association of Chiefs of Police’s website.

Commentary

The fact a technique or method has “consistently held up in court” is not proof a method works; is safe and fit for purpose; does not have an error rate; or the method was applied effectively in the case at hand.  Our criminal justice system is rife with examples of methods “consistently held up in court” which have no basis in science.  See, for example, hair analysiscomparative bullet lead analysis, and bitemarks.  This is not a valid argument for the efficacy, suitability, or validity of a method.

The assertion the method is not confrontational “except when evidence already suggests that the suspect’s guilt” is dangerously deceptive.  On its face, this seems to suggest a certain amount of caution, since they are “only” confrontational with people who are probably guilty.  First, as a general rule, people don’t become suspects unless there is some evidence which suggests their guilt.  Thus, by their own standards, confrontational methods are appropriate for everyone.  Second, we know people who are guilty sometimes confess, and people who are not guilty sometimes confess.  The use of confrontational techniques will yield both true confessions and false confessions.

By understanding false confessions are always a risk in an interrogation, and by seeking to teach methods less likely, according to scientific studies, to induce a false confession, Wicklander-Zulawski & Associates has taken steps which should keep all of us safer – safer from false confessions, wrongful convictions, and, by virtue of same, guilty people remaining on the streets, free to cause more damage to society.

Forensic Science

And Justice for All

“The intention of justice is to see that the guilty people are proven guilty, and the innocent are freed.”  So Al Pacino famously said, in the classic 1979 movie, And Justice for All.   Unfortunately, time and time again, the “intention of justice” has failed us, as individuals, as families, as communities, and as a society.

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By P.Lameiro – Own work, CC By-SA 3.0, https;//commons.wikimedia.org/w/index.php?curid=21095250

According to a recent report from the National Registry of Exonerations, 2016 marked the highest number of exonerations for a single year, at 166.  False convictions are a very real part of the fabric of our everyday life.  If you are reading this and thinking, “I don’t know what she’s talking about.  False convictions don’t have an impact on my life, nor on the lives of my friends and family,” gently, I’d like to point out just because you aren’t aware of it, doesn’t mean it doesn’t impact you.

How Wrongful Convictions Impact All of Us

            Increased Danger to Society

When the wrong person is arrested, and subsequently convicted of a crime, the right person isn’t.  This means the guilty party remains amongst us in society, free to reoffend.  No one wants that.

            Loss for the Family Means a Loss for Society

Incarcerating the wrong person isn’t just bad “in theory.”  Perhaps you don’t currently know anyone who is incarcerated.  Perhaps, even if you do, you are confident they belong there (although your confidence you are right has no relationship to wheth
er or not you are actually right).  Take a moment, however, and consider the very real cost to society when the system incarcerates the wrong person.  This is somebody’s father, somebody’s child, somebody’s everything.  Wrongful convictions result in children growing up without parents, parents missing out on the milestones of their incarcerated children, and untold lost potential.  This harms us all.

Some Startling Statistics

According to the National Registry of Exonerations, 2016’s exonerations included 94 cases wherein crimes hadn’t actually occurred.  Separately, 74 convictions were the result of a guilty plea, rather than a verdict by jury or judge.  One might reasonably wonder how these things could occur.

            Cases without Crimes

Classic examples of cases without crimes include expert conclusions which are wrong, such as when a forensic pathologist declares an incorrect cause and manner of death.  Another example, which has received significant coverage in recent years, is also the result of forensic “evidence,” drug testing.  Preliminary drug tests performed by law enforcement in the field are notorious for producing false positives.  (So much so, the state of Texas has called for confirmatory laboratory testing in all drug cases.)  Imagine the “evidence” “proves” the substance was an illegal substance.  Imagine further the defense attorney fails to challenge the sufficiency of the evidence.  In such a case, it is small wonder juries convict without question.

            When Innocent People Plead Guilty

In order to keep the wheels of justice moving, prosecutors routinely offer deals to people charged with crimes.  Prosecutors offer “deals” with the intent of obtaining a guilty plea.  For a person charged with a first-degree drug crime, for examp
le, a prosecutor might offer a plea to a third-degree drug crime.  Why would an innocent person do this?  There is certainty in plea agreements.  While there may be time to serve, in many cases, the offer includes less time than one might reasonably expect if they lost at trial.  Every jury trial involves risk.  Innocence does not guarantee a “not guilty” verdict.

Further, particularly in a case wherein the “expert” declares a particular cause and manner of death, or forensic evidence which “proves” one thing or another, an innocent person may feel compelled to “make the best of a bad situation.” Sometimes, this means pleading to something to get out of jail and move on with their lives.  Unfortunately, once someone has a felony conviction, “getting on with their lives” gets a lot harder.  There are long term negative consequences to such a decision.

In every case involving forensic science, it is critical both the prosecutor and defense attorney not only read the forensic file, but understand what the contents of the file mean – and don’t mean in the context of the criminal justice system.

Forensic Science

The Importance of Understanding How Science Works

Kudos to the Norwood, Massachusetts public defender’s office.  They, along with attorneys from the private bar,  successfully argued two years’ worth of alcohol breath test results were unreliable.  The unreliability of the results, the defense argued, renders them inadmissible to criminally convict people.  The court agreed, holding due to sloppy lab practices, one can never know the defendant’s actual blood alcohol concentration.

The Importance of Minimum Standards and Asking the Right Question

In testimony, the head of a Massachusetts state crime lab explained their office was unaccredited.  Further, employees convey the protocols for maintaining and calibrating the Alcotest 9510 by “word of mouth.”  Written protocols for maintenance and calibrationwritten-protocol do not exist.  Accredited laboratories require written protocols.  (Whether the protocols are scientifically supportable, as well as whether employees follow the protocols are separate questions.)  It is an all too common error for unaccredited laboratories to use their lack of accreditation as an excuse for the lack of written protocols.  This isn’t the first laboratory whose protocols – or lack thereof – were questioned by the defense bar.  Nor will it be the last.

In this particular case, the judge correctly observed, “It cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating the device.”  Consequently, according to the court (and good science), lacking “scientifically reliable” protocols renders the test results inadmissible “in any criminal prosecution.”  The court’s order excludes all test results, from 350 machines, gathered between June of 2012 and September of 2014.

Asking a Different Question

We applaud the attorneys in Massachusetts for bringing this to light.  Nonetheless, we must ask: “Why did it take so long?”  The answer, most likely, is as common as dirt.  In lab scandal after lab scandal, prosecutors have relied upon flawed forensic science work without asking enough questions.  Additionally, most defense attorneys don’t have the proper background to handle forensic science casework.

In cases involving eyewitness identification, lawyers, or their investigators, commonly go to the alleged crime scene.  They go at the same time of day, in the same conditions, to determine if a witness actually had a reasonable opportunity to witness the events in question.  In cases involving witness statements, lawyers listen to the recordings, rather than relying on police summaries.  The same amount of diligent double checking must occur in cases involving forensic science.  Failure to do so runs the risk of ongoing bad lab practices, as well as wrongful convictions.

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Massachusetts Supreme Judicial Court Rules on “Dookhan Defendants”

Massachusetts Court Again Addresses Dookhan Defendants’ Plight

“We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute.”  So begins a recent opinion, referred to as “Bridgman II” issued by the Massachusetts Supreme Judicial Court.  The court is wading through the mess of 24,000 criminal convictions based on the test results produced by Annie Dookhan.

Ms. Dookhan intentionally and deliberately tampered with evidence, adding known

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credit, By Jeff Dahl – Own work, CC BY-SA 3.0

controlled substances to samples which were otherwise not illegal.  Ms. Dookhan also created reports indicating the presence of a controlled substance without actually performing the test (a process known as “dry labbing”).  In 2013, Ms. Dookhan pled guilty to 27 counts, including tampering with evidence, filing false reports, and misleading investigators, while a drug analyst at the Hinton, Massachusetts Lab.  She has served 3 years in prison for her misconduct.

 

Prosecutors Resist Addressing the Problem

The state of Massachusetts continues to grapple with what to do with those convicted based on Ms. Dookhan’s lab reports.  Inexplicably, despite general consensus that Ms. Dookhan did indeed tamper with evidence in a number of ways, prosecutors resist requests to dismiss all cases worked on by Ms. Dookhan.  Over the years, prosecutors offered a variety of excuses for their failure to actively seek justice, including:

  • Prosecutors have no obligation to notify convicted defendants of their possible innocence;
  • Convicted defendants “might be too poor or busy dealing with more pressing issues”; and
  • Defendants lack interest in “reopening a closed chapter in their lives.”

The Massachusetts Supreme Judicial Court acknowledged, given the extent of the misconduct, “only poor alternatives” exist to remedy the situation.  The Court further expressed frustration with “the unacceptably glacial systemic response to date.” Additionally, the Court expressed dismay prosecutors failed to notify defendants many of them are entitled to a favorable legal presumption.  A previous court ruling entitles certain defendants to a presumption the analysis performed was “tainted by egregious government misconduct.”  The Court called upon prosecutors to dismiss with prejudice “a truly significant number” of the Dookhan cases.

A Method for Dealing with the Problem

The Court ordered District Attorneys to review all Dookhan cases individually.  Prosecutors must determine whether enough evidence exists to secure a conviction, in light of the Dookhan misconduct.  The Court declared mid-April the deadline for the review.  Of those cases wherein the prosecution maintains the belief a conviction is obtainable, they have 30 days to notify the defendant of certain rights.  These include:

  • The right to a new trial on the charge;
  • A promise not to recharge counts previously dismissed; and
  • The assurance of a sentence no longer or more severe than the original sentence, should the government prevail at trial.

 

A Caution

In a concurring opinion, Justice Lenk expresses frustration regarding the fewer than 2,000 cases addressed in the past 5 years.  “We cannot go on this way.”  People with drug convictions find themselves struggling to obtain jobs, housing, professional licenses, obtain student loans, attend college, receive government benefits they would otherwise be entitled to, and even face deportation.  Justice Lenk notes the measures announced by the majority appear “promising” but only if implemented in observance of the timelines put forth.   Further, Lenk called upon prosecutors to aggressively dismiss cases.  “At a minimum,” the concurrence called for dismissal of cases involving “simple possession” where defendants already completed their sentence.  “Only this will forestall the need for a ‘Bridgeman III’ and different measures.”

Forensic Science

Eyewitness Identification

Eyewitness Identification Reform

On January 6, 2017, the U.S. Department of Justice’s Office of twillie_nelson_mugshot_-_1974he Deputy Attorney General issued new procedures for handling eyewitness identification.  These new eyewitness identification procedures take into consideration research on how to best avoid false identification.  It is a colossal step forward for a department still dragging their feet about acknowledging and addressing the inadequacies of forensic science.

DOJ Implements New Eyewitness ID Procedure

The Department of Justice hasn’t updated their eyewitness ID procedures since 1999.  During 2016, DOJ gathered a team of experts, including social scientists, law enforcement personnel, and prosecutors, to identify best practices.  (The failure to include any defense
attorneys on the panel reflects an ongoing blind spot, in this author’s view, to the value of the defense perspective at Justice.)    DOJ instructed all federal law enforcement departments to update their internal eyewitness identification procedures, consistent with DOJ’s new procedures.  The policy admonishes prosecutors to consider the procedures when evaluating whether to charge a case.  The memo notes, “It is important that prosecutors identify potential issues in the administration of a photo array early in an investigation and take any such issues into account when evaluating the overall strength of the evidence in their case.”

Eyewitness ID Updates

            Blind Administration

In recognition of cognitive bias, the new procedures encourage using someone not involved in the investigation to show the witness the photographic lineup.  Blind administration assures all involved the administrator won’t signal the “right” answer.  This can occur consciously, such as by saying, “We found your wallet in suspect 3’s apartment.”  It also can occur subconsciously, such as by leaning in, or otherwise using body language to encourage one choice over another.  The DOJ recognizes occasions where the use of a neutral is impractical.  In such a case, DOJ recommends using a “blinded procedure.” This occurs, for example, by displaying the photos on a computer screen, which the witness can view, but the administrator cannot.

            Instructions

Law enforcement instructions to witnesses include a disclaimer. “The group of photographs may or may not contain a photograph of the person who committed the crime.”  Additional statements which should make the process more objective, include the following:

  • “You may not recognize anyone. That is okay.  Just say so.”
  • “Whether or not you select someone, we will continue to investigate this case.”
  • “Do not assume that I know who committed this crime.”

Recording the Level of Confidence

When a witness makes an identification, the administrators of the ID are now instructed to ask witnesses to state how confident they are in their identification.  When witnesses provide vague answers, the policy encourages law enforcement officials to press for more detail.  Studies show the level of confidence at the time of identification is a far better indicator of reliability than their level of confidence at the time of trial.

            Recording the Identification

Law enforcement is now required to record the identification.  “Recording” is either accomplished via audio or video recording.  The new guidelines also allow for law enforcement to document the encounter by hand.  This practice is significantly less adequate, as the documenter’s own biases are now in play.  Whether someone “appears reluctant” or “confident” is reflected only through the prism of the law enforcement officer.  This person may well know the suspect identified is also the suspect arrested.  Video or audio recording is far more fair to the defendant.  This leaves judgements about the witness to the jury and the lawyers – where it should be.