Saturday, April 25, 2015

FBI Faked Forensic Science? No Big Deal!


It keeps getting worse. Ironically, this may be the problem.

Spencer Hsu broke yet another junk science story this week in the Washington Post. The story did not involve an unaccredited hick crime laboratory helmed by country bumpkins. No, this was the F.B.I.

Yes, the freakin' Federal Bureau of Investigation.

Hsu's lede:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Dahlia Lithwick in Slate, sub-headlined a story concerning these findings with "The F.B.I Faked an Entire Field of Forensic Science". The sub-headline is not hyperbole. In 258 of 267 trials, the FBI has confirmed their examiners overstated hair and fiber matches while giving expert testimony. All the testimony favored prosecutors. That would be 95% of cases reviewed, so far.

More chilling? 32 involved death penalty prosecutions. 14 of those 32 defendants now have been executed.

Digging deeper into Hsu story reveals additional, troubling junk science specific to Texas. In a graphic accompanying the Hsu's story, Texas (20) was behind only Florida (42) and Pennsylvania  (21) in the number of state prosecutions in which junk scientific testimony was given. 5 of those 20 cases in Texas were death penalty cases. All 5 defendants have been executed.

For those keeping track at home, that would be 1 in 4. In other words, 25% of cases in which FBI examiners testified, using science to convict and sentence a Texas defendant to death, it was junk. In all the cases in which this now debunked testimony was given, the defendant was executed.

How did Texas print and broadcast media outlets follow up on the Texas angle? In addition to running Hsu's story, The Dallas Morning News ran a good editorial. The DMN editorial contained this awful Texas centric illustration of the dangers of junk forensic science:
The erroneous evidence uncovered in this review is a painful reminder of the aftermath of the ghastly local murder of 7-year-old Ashley Estell, abducted in 1993 from a Plano park. Authorities thought they had the right suspect, but after Michael Blair spent 14 years on death row, the case against him came apart.
The weak link? Supposed expert testimony based on hair-fiber analysis produced damning trial evidence, but the findings were later discredited by newly developed DNA technology.
Did not read about it? The FBI fake field of science story was pretty much gone with the news cycle. It had no news legs. The public seems less outraged, not more, with each new flawed forensic science story.

How can this be? It is my view no personal resonance exists unless there is skin in the game. This became painfully evident to me several weeks ago when I mentioned Michael Morton to a jury panel in a DWI case I was trying. It was in the context of science and error analysis. Of the 27 panel members, I was astonished to find in my well educated county (a major university is located here), only a few hands went up.

Oh my lawyer bubble.

 It did get me to thinking. In her Slate story riffing on these disclosures, Lithwick wrote:
Since prison-crowding and justice reform are widely touted as issues that unite the left and the right in this country, going back and retesting the evidence of those who may well have been wrongly imprisoned should be a national priority. So far it isn’t, perhaps because the scope of the enterprise is so daunting. Or perhaps because nobody really cares all that much about people who’ve been sitting in jail for years and years. Says [UVA Law Prof Brandon] Garrett: 'These victims may remain unrecognized and in prison—if they still live—and the same unscientific testimony continues to be delivered without limitation. … But hey, these are just criminal cases right?' 
 There is the problem. As Walt Kelly's comic alter ego, Pogo, famously quipped in another context, "We have met the enemy and he is us."

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