Forensics On Trial

[J.A. Terranson]

http://www.newsweek.com/2011/02/17/forensics-under-the-microscope.html

Forensics Under the Microscope
More courts are starting to question the .facts. proved by scientific 
evidence.

Warren Horinek did not murder his wife. That.s what he said, that.s what 
the medical examiner said, that.s what the homicide sergeant said. Even 
the district attorney.s office in the Horineks. hometown of Ft. Worth, 
Texas, agreed that he was innocent.not something a Texas prosecutor 
typically says. But when Bonnie Horinek died in 1995, her parents refused 
to believe what the evidence strongly suggested.that Bonnie shot 
herself.and instead they enlisted the services of a blood-spatter analyst 
to prove that it was their son-in-law who had killed their daughter.

The spatter analyst zeroed in on the blood-soaked T shirt Horinek was 
wearing when the paramedics arrived. To him, the fine spray of blood on 
Horinek.s left shoulder was not from administering CPR, as Warren said it 
was, and as the 911 recording seemed to indicate, but from shooting Bonnie 
at close range. On the basis of that testimony, Horinek was convicted of 
murder and sentenced to 30 years. But did they really get their man? 
Horinek.s lawyers have filed a writ of habeas corpus to try to have him 
released, based in part on the National Academy.s report; much of the 
spatter analyst.s testimony, the lawyers argue, .was contrary to known and 
accepted science..

In the age of CSI and Dexter, we.re led to believe that forensic science 
is a high-tech discipline, powerful and sophisticated enough to catch any 
criminal.

As it turns out, whether blood-spatter analysis and disciplines like it 
qualify as .science. at all is a matter of increasing debate. In a sharply 
critical report issued in 2009, the National Academy of Sciences said, 
.The simple reality is that the interpretation of forensic evidence is not 
always based on scientific studies.. Taking aim at disciplines as varied 
as ballistics, hair and fiber analysis, bite-mark comparison.even 
fingerprints.the report declared, .This is a serious problem..

The last few years have seemed to bear out the report. Dozens of elite 
crime labs all over the country, from Nassau County, N.Y., to San 
Francisco, to Virginia, Cleveland, Oklahoma, and Baltimore, have been 
involved in scandals involving mishandled evidence and false or misleading 
forensic testimony. This past summer, a North Carolina attorney general.s 
audit discovered that the state.s Bureau of Investigation had withheld or 
distorted evidence in more than 200 cases.

Even some of the best funded and most sophisticated crime-fighting 
organizations are being taken to task for their use of forensic evidence. 
This week, the New York Times reported that the Federal Buerau of 
Investigation had .overstated the strenght of genetic analysis. during the 
investigation of Bruce E. Ivins, who allegedly mailed anthrax to newsrooms 
and Senate offices in the wake of the 9/11 attacks.

A year-long investigation by the independent journalism nonprofit 
ProPublica revealed major problems in the nation.s coroner system: 
pathologists not certified in pathology, physicians who flunk their board 
exams, even coroners who are not physicians at all. .In nearly 1,600 
counties across the country,. the investigation found, .elected or 
appointed coroners who may have no qualifications beyond a high-school 
degree have the final say on whether fatalities are homicides, suicides, 
accidents or the result of natural or undetermined causes..

For his forthcoming book, Convicting the Innocent: Where Criminal 
Prosecutions Go Wrong (Harvard University Press, April 2011), University 
of Virginia law professor Brandon Garrett examined the trial transcripts 
and other legal documents of the first 250 people to be exonerated by DNA 
in this country. He discovered that in more than half these cases, trials 
were tainted by .invalid, unreliable, concealed, or erroneous forensic 
evidence.. The errors ranged from analysts making up statistics on the 
fly, implying that their methods were more scientific than they actually 
were, and exaggerating or distorting their findings to support the 
prosecution.

Peter Neufeld, a lawyer in New York and cofounder of the Innocence 
Project, which has helped to facilitate many of these exonerations, calls 
it the .elastic expert: no matter what you see, I can distort it so that 
it would be a match..

This .elasticity. is possible because the tests are largely subjective. 
Just how much human judgment is required depends on the discipline: DNA 
testing is mostly.though not entirely.done by machine, for instance, 
whereas microscopic hair comparison is based solely on the analyst.s 
opinion. Even fingerprints, which many of us regard as foolproof tools for 
identifying culprits.think Dexter feeding a print into his computer and a 
bad guy.s photo and driver.s license appearing on the screen.in fact rely 
largely on human interpretation, and therefore are subject to human error.

One of the most famous examples of the danger of fingerprints was the case 
of Oregon lawyer Brandon Mayfield, arrested in 2004 in the wake of the 
Madrid train bombings. Working from a partial print that Spanish 
authorities had found on a plastic bag of detonators, several top FBI 
analysts declared Mayfield.s print a match. That is, until Spanish 
authorities identified Ouhnane Daoud, now wanted for terrorism in 
connection to the crime. When it became clear that Daoud.s prints were a 
much better match, the FBI was forced to admit that its own bias and 
.circular reasoning. had led them to Mayfield, who had no involvement in 
the bombings.

Part of the problem is what social scientists call .context bias.. Most 
forensics labs are located within police departments, so analysts may see 
themselves as working .for. the prosecution. They also usually have 
information about the evidence they.re testing.for example, that the 
suspect has a prior record. .There.s a lot of research to suggest that 
knowledge could have biasing effect,. says Jennifer Mnookin, a professor 
at the UCLA School of Law.

In a recent Supreme Court case, Justice Antonin Scalia, writing for the 
majority, said that whether consciously or not, an analyst .responding to 
a request from a law enforcement official may feel pressure.or have an 
incentive.to alter the evidence in a manner favorable to the prosecution.. 
The judges. ruling means that forensic test results may be subject to the 
same kind of scrutiny as any other evidence, and an analyst from the lab 
that ran the test must be present in court to be cross-examined, just like 
any other witness.

.Obviously, most people in this community are trying to do their jobs well 
and are not trying to frame innocent people,. says the University of 
Virginia.s Garrett. .But what we.ve seen come out of these exoneration 
cases and in additional scandals at the laboratories is that this is not a 
problem of a few bad apples. Who is the competent analyst that can testify 
about a technique that.s fundamentally unreliable? That.s not a bad-apple 
problem. That.s a serious problem with our entire system..

At the heart of these criticisms is the issue of what scientists call 
validity and reliability. A test is valid if its results are factually 
accurate. A test is reliable if multiple tests will lead to the same 
conclusion. Some forensics tests, like blood typing, are very reliable: no 
matter how many times your doctor draws your blood, you will always have 
the same blood type. Occasionally there are mistakes, of course, but they 
are predictable: blood-typing tests have well-documented and 
well-understood error rates. Others, like hair comparison, are unreliable: 
studies have shown that multiple technicians examining the same two 
hairs.even the same technician examining the same two hairs at different 
times.come to multiple conclusions. Critics say that many of forensic 
science.s most basic tools are neither reliable nor valid.

For example, at the trial of Jimmy Ray Bromgard, who served more than 14 
years of a 40-year sentence for sexual intercourse without consent until 
he was exonerated in 2002, the director of the Montana State Crime Lab 
told the jury that hairs found on a blanket in the victim.s house 
.matched. hairs taken from Bromgard.s body. There were so many hairs that 
matched so well, the analyst said, that there was a .one in 10,000. chance 
the hairs could have come from anyone else.

But no one has ever established any statistics about the microscopic 
characteristics of hair, so .one in 10,000. odds isn.t based on scientific 
consensus. How common is it for a person to have a particular hair color, 
or for a hair to crinkle or curl just so? Scientists have never answered 
that question systematically. And what does .match. mean, anyway? There 
are no uniform guidelines to say how many characteristics two hairs must 
have in common before they.re said to .match.. It varies entirely from one 
lab to the next, from one technician to the next.

Barry Fisher, who served as the crime-laboratory director for the Los 
Angeles Sheriff.s Department for more than 20 years, was often stymied by 
this problem when he took the stand. .How do you convey the level of 
certainty?. Fisher asks. .Do you say to the jury, .I.m pretty sure.? .I.m 
very sure.? What do these things mean?.

To get around this problem, Garrett found, forensics experts too often 
overreach in their testimony.

When Ray Krone was convicted of murder in Arizona and sentenced to death 
in 1995, the testimony of a bite-mark analyst was key to the state.s case. 
.This is really an excellent match,. the analyst said on the stand, 
comparing Krone.s teeth with a bite mark on the murder victim. .That tooth 
caused that injury..

In fact, in its report the National Academy of Sciences found that, among 
all the forensic disciplines, only DNA has proved capable of 
.individualization..that is, demonstrating .a connection between evidence 
and a specific individual or source.. When the DNA in the Krone case was 
tested year later, he was exonerated, but only after spending a decade in 
prison.

The report has led a small but growing number of judges to take a more 
skeptical approach to forensics. In addition to the Supreme Court case, 
Melendez-Diaz v. Massachusetts, U.S. District Court Judge Nancy Gertner 
announced in March that she will allow forensic evidence in her courtroom 
only if a lawyer first proves in a pretrial hearing that the method is 
scientifically sound. .In the past, the admissibility of this kind of 
evidence was effectively presumed, largely because of . the fact that it 
had been admitted for decades,. Judge Gertner wrote in her order. .The NAS 
report suggests a different calculus..

The National Institute of Justice has funded some preliminary studies to 
establish the scientific information that has so far been missing; UCLA.s 
Mnookin and her colleagues are less than a year into a two-and-a-half-year 
grant to develop a more formalized and scientifically validated approach 
to fingerprint analysis. .It.s not that we know that they don.t work,. 
Mnookin says of fingerprints and other forensic methods. .It.s that we 
don.t have enough evidence about when they work, how they work, when they 
might not work.. The report also led to a series of Senate Judiciary 
Committee hearings. In January Senator Patrick Leahy (D-Vt. introduced a 
bill to address some of the major issues in the nation.s forensic system. 
The The Criminal Justice and Forensic Science Reform Act takes up many of 
the issues identified in the NAS report. Although the report has gotten a 
chilly reception from many forensics experts and prosecutors, many others 
in the field, like Fisher, believe reforms in the system are long overdue.

Geoffrey Mearns, a former federal prosecutor who helped try both Oklahoma 
City bombers Terry Nichols and Timothy McVeigh, regularly used forensics 
in his work. Mearns served on the committee that wrote the academy.s 
report. .I had assumed that there were well-established uniform processes 
and procedures in place. I really had faith in the accuracy, reliability, 
and that it was well grounded in science,. says Mearns, now provost and 
senior vice president for academic affairs at Cleveland State University. 
.When I realized my faith was not well placed, I was very concerned about 
the damage that it was doing to the accuracy and efficiency of 
law-enforcement investigations. Because if the science is not accurate, 
and is leading us to the wrong person, it.s not only causing a terrible 
injury to the wrong person, but it.s leading you away from the right 
person..

The 265 innocent people so far exonerated by DNA are lucky. Among the 
.hundreds, if not thousands. of people that the Innocence Project.s Peter 
Neufeld estimates were wrongfully convicted on the basis of faulty 
forensics, only a small percentage have DNA available to test. What is 
their recourse? Neufeld says his organization is counseling attorneys to 
submit a writ of habeas corpus.the legal system.s document of last 
resort.on the basis of newly discovered evidence: the fact that forensic 
science is not as scientific as it purported to be at the time of trial. 
However, .given the reluctance of judges to ever set aside convictions 
with anything less than DNA,. says Neufeld, .I am not as optimistic as I 
would like to be despite the fact that there.s a matter of fairness..

One of those exonerated after 15 years in prison was Roy Brown. He was 
convicted of murder in 1992 and sentenced to 25 years to life, partly on 
the basis of a bite-mark analyst who said that Brown.s teeth matched a 
wound on the victim .to a reasonable degree of dental certainty.. The fact 
that whoever had bitten the victim had six teeth on his upper jaw.the 
wound clearly had six impressions.whereas Roy Brown had only four was 
.inconsistent,. the analyst admitted, .but explainably so in my opinion..

DNA proved him innocent in 2006.

Beth Schwartzapfel is a Brooklyn freelance journalist with an interest in 
criminal justice issues.