Jeffry Havard was convicted in 2002 of killing a child. At the time, the pathologist testified the child’s injuries were “consistent with a person violently shaking a child back and forth.” He further likened the injuries to those which might occur in a motor vehicle crash or a fall from a significant height. Mr. Havard’s conviction is currently being reviewed by a trial court, upon order of the Mississippi state Supreme Court. Mr. Havard obtained his review “because of shifting scientific beliefs on the syndrome.”
The original pathologist, Dr. Steven Hayne, has changed his position, acknowledging short falls can also cause serious
Subdural hematoma, once considered a hallmark of shaken baby syndrome, along with retinal bleeding and brain swelling, is no longer considered conclusive evidence of trauma.
injury. This new information is critical, as Mr. Havard has maintained he dropped the baby and she hit her head. While Dr. Hayne still believes the child was killed, Dr. Michael Baden, also a pathologist, pointed out a rather obvious and critical truth – where a child suffers what was once categorized as “shaken baby syndrome” but is now classified as “abusive head trauma,” it is quite simply impossible to determine if the injuries are from an accidental fall or an intentional push.
For decades, the triad of symptoms, blood collecting between the brain and the skull (subdural bleeding), bleeding in the back of the eye (retinal bleeding) and brain swelling were used to conclusively diagnose shaken baby syndrome. However, a series of studies in recent years have raised doubts about the syndrome. Dr. Hayne has acknowledged the medical community is now less certain shaking alone could generate enough force to cause such injuries.
Review of Prior Cases
While science and medicine generally advance and move forward, the law prefers finality. At least one state Supreme Court found this “significant dispute” within the medical community” rose to the level of newly discovered evidence and has granted a defendant post-conviction relief.
One might reasonably expect a nation-wide review of convictions is in order. Unfortunately, the criminal justice system doesn’t work that way. Instead, those convicted of murder and attempted murder based on these types of injuries are left to fend for themselves, relying on overburdened Innocence Projects to take up their cause.
While no one should be facing charges based on “shaken baby syndrome” in this day and age, not all medical examiners are up on the latest research. Further, some prosecutors may be unaware of advances in the field. Consequently, hiring an attorney experienced in abusive head trauma is critical to a good defense.
On Monday, August 7th, 2017, the Department of Justice Office of Public Affairs announced the appointment of Ted Hunt to the position “Senior Advisor on Forensics.”
Mr. Hunt is a long-time prosecutor with extensive experience handling forensic DNA evidence in criminal cases. Deputy Attorney General Rod J. Rosenstein announced this, along with the creation of a Forensic Science Working Group (FSWG) within the Department of Justice. In theory, this working group replaces the National Commission on Forensic Science, (NCFS) which ended in April of this year. Deputy Rosenstein stated the “first order of business will be to resume work on the Uniform Language for Testimony and Reports,” which provides standards regarding how forensic evidence is characterized in court. This work was previously being done by the NCFS.
Differences between NCFS and the FSWG
While the DOJ has created a new group working on the monumental task of determining the appropriate way of presenting forensic science evidence in court, there are stark differences between this group and its predecessor group. First, this group will be within the Department of Justice. The NCFS was a Federal Advisory Committee, developed as part of a partnership between the DOJ and the National Institute of Standards and Technology (NIST). NCFS meetings were broadcast live on the web, and their work product was a matter of public record. The FSWG, as an internal working group, is not held to the same standards. Rather, transparency is optional, according to DOJ spokesperson Lauren Ehrsam.
According to the archived NCFS page, the Commission “included federal, state and local forensic science service providers; research scientists and academics; law enforcement officials; prosecutors, defense attorneys and judges; and other stakeholders from across the country.” We do not yet know the make-up of the working group. Certainly, the group would benefit from similar variety in its members.
Concerns about the DOJ
During his announcement, at a meeting of the International Association of Identification in Atlanta, Deputy Rosenstein stated,
The Department of Justice has undertaken unprecedented efforts to examine and strengthen the reliability of forensic science and its use in the courtroom. We are committed to improving forensic science.
Improving forensic science, rather than simply insisting the status quo is perfectly acceptable, hasn’t always been the DOJ’s position. I can’t be the only person who recalls with dismay the response of the Department of Justice to the President’s Council of Advisors on Science and Technology (PCAST) recommendations of actions that should be taken to strengthen forensic science in September of last year (which the current White House has removed from their website). At the time, DOJ insisted status quo, rather than improvement, was the proper approach. The Washington Post reported at the time “the Justice Department had held a series of calls with prosecutors, law enforcement and lab officials, [assuring them] it . . . would provide ‘a packet of information to federal prosecutors regarding how to dispute this report in court.’”
Subsequently, the Justice Department commented on the PCAST report, stating, “The report took the position that unless a forensic discipline has been “scientifically validated”—in other words, unless a discipline has a known error rate—then judges should not allow the admission of expert testimony in that discipline.” This belief, that a “known error rate” is the equivalent of “scientifically valid” is at best naïve, and at worst, deliberately obtuse. Perhaps the lawyers at Justice, like most lawyers in the criminal justice system, do not have sufficient education in science to understand scientific validity. Happily, I believe Mr. Hunt has sufficient education and experience to know better.
Call me a Pollyanna (you wouldn’t be the first) but I am choosing at this moment to hope the Department of Justice is committed to transparency and accuracy in the presentation of forensic scientific evidence. Consider, for example, the Department actually took the step of hiring an outsider, rather than promoting one of their own, to fill the position of Senior Advisor on Forensics. Ted Hunt has extensive experience in forensic DNA evidence and the law. From where I sit, a generous estimate of the number of criminal lawyers in the United States with a comprehensive understanding of DNA evidence is, at best, in the hundreds. Narrow the field to prosecutors (as the Department of Justice tends to do) and you are lucky to find 50 that know how to pronounce the word “alleles,” let alone understand stochastic effects, allele stacking, and other intricacies relevant to the discipline and the presentation of evidence.
Rosenstein stated, “When subjected to informed cross examination, expert testimony can be tremendously probative and helpful to the jury.” I couldn’t agree more. I presume Deputy Rosenstein’s commitment to “informed cross examination” includes funding to educate the bar – both prosecution and defense, as to the abilities and limits of various forensic science disciplines. To which I say, “It’s about time.” Without the commitment of the federal government to provide resources to educate the bar, “informed cross examination” will continue to be merely a pie-in-the-sky ideal rather than a fundamental part of any competent representation.
Rosenstein also stated,
When the judicial system functions as intended, justice is advanced. Our adversarial system is based on the principle that the truth is most likely to emerge when opposing parties have the opportunity to cross-examine each other’s witnesses, and each party is able to call its own witnesses and introduce conflicting evidence.
Hooray! Finally, a Justice Department that supports the idea the defense should be able to call their own witnesses in pursuit of the truth. Of course, since most criminal defendants are poor, I can only assume this comment demonstrates the Department’s commitment to either providing funding or otherwise assisting the system in locating funding for defense experts in criminal cases. All too often, defendants are denied this opportunity to call their own witnesses due to lack of funding. I agree wholeheartedly with Deputy Rosenstein’s statement justice is advanced when the system functions as intended. This includes both lawyers educated in the finer points of forensic science and ready access to funding so the defense can consult with their own experts. In my experience, hiring a private forensic science consultant confirms the government’s conclusions as often as not. Whether the expert agrees or disagrees with the conclusions of the government lab, client representation is enhanced and justice is advanced when the defense consults their own expert.
Mr. Hunt has an exciting opportunity to be an agent of change, advancing the judicial system for both criminal defendants and victims of crime. No one wants the innocent convicted. No one wants the guilty to escape detection. Educating lawyers and providing experts will go a long way towards avoiding both.
 Mr. Hunt and I also serve together on the Legal Resource Committee (LRC) within the Organization of Scientific Area Committees (OSAC) for forensic science.
“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.
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.
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 calibration 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.
On January 6, 2017, the U.S. Department of Justice’s Office of the 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
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.
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.