"REFORMERS HAVE FOR YEARS RECOMMENDED THAT ALL FORENSIC LABS BE INDEPENDENT FROM LAW ENFORCEMENT AND PROSECUTORIAL AGENCIES' AND THIS IS A KEY REFORM PROMOTED BY THE JUSTICE PROJECT (2008). BUT FIXING THESE PROBLEMS IS ONLY HALF THE ANSWER' BECAUSE HALF OF THE WRONGFUL CONVICTIONS ATTRIBUTED TO MISLEADING FORENSIC EVIDENCE INVOLVED DELIBERATE FORENSIC FRAUD' EVIDENCE TAMPERING' AND/OR PERJURY. THIS IS THE ELEPHANT IN THE CRIME LAB."
SHEILA BERRY AND LARRY YTUARTE' PHD: "THE ELEPHANT IN THE CRIME LAB;
-------------------------------------------------------------------------------
PUBLISHER'S NOTE: Dr. Charles Smith made very clear in his testimony that he saw himself as a member of the prosecution team who's job was to help convict the accused - and that no one in authority ever told him that his role was otherwise. To that end, there seems to be little that he wouldn't do to help the Crown win the case. He lied under oath, he lied when he was not under oath, he mislead the courts time after time, and he conveniently "lost" evidence that would assist the accused and show that his opinion was wrong. That's for a start.
An article published in "The Forensic Examiner; Spring 2009" is very relevant to Dr. Smith's candid testimony - as it suggests that half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud, evidence tampering, and/or perjury;
I was reminded of this insightful article - aptly called "The Elephant in the Crime Lab" - co-authored by Sheila Berry and Larry Ytuarte, when I became aware of former CSI Chief David Kofoed's recent conviction for evidence tampering - the intentional planting of blood in a car to help obtain a murder conviction.
The author's refusal to allow the forensic official to slither away from responsibility by claiming "noble cause corruption," on the basis that abuse of their trust within the criminal justice system is anything but particularly commendable.
Harold Levy;
-------------------------------------------------------------------------------
BACKGROUND: (David) Kofoed's work came into question after his 2006 investigation into the slaying of a rural Cass County couple, Wayne and Sharmon Stock. Detectives zeroed in on the couple's nephew and his cousin, but found no physical evidence tying the two to the killings. They managed to get a confession from the nephew, but he retracted it the next day. A day later, Kofoed said he found a drop of one of the victims' blood in a car linked to the suspects that had already been combed over by another forensic investigator. The suspects were charged with murder and jailed for several months before being released because prosecutors determined the confession was unreliable and didn't fit the facts of the case. A man and woman from Wisconsin eventually pleaded guilty to murdering the couple and are serving life prison terms. The FBI began investigating Kofoed after the slain couple's nephew filed a lawsuit alleging civil rights violations. The agency's findings led authorities to charge Kofoed with evidence tampering in April. During his trial, Kofoed blamed the speck of blood found in the car on accidental contamination. But Cass County District Judge Randall Rehmeier said he didn't buy it, and that the evidence showed Kofoed intentionally planted the blood in the car...Kofoed has not been charged in any other investigation. He remains free on bond, but is due back in court in May for sentencing. He faces up to five years in prison and a $10,000 fine. Kofoed has not responded to a request for comment made to his attorney, Steve Lefler, who said Kofoed may appeal...Before issuing his verdict, Rehmeier said there were similarities between that investigation and one in which a man, Ivan Henk, was convicted of murdering his young son, whose body was never found. In both cases, there were confessions by the suspects and a lack of physical evidence to corroborate them until Kofoed found a speck of blood that had previously been overlooked, the judge said. (Associated Press);
----------------------------------------------------------------------------------
"In less than a generation' breakthroughs and innovations in research and development have turned the stuff of science fiction into fact," the article begins;
"Computers' the internet' cell phones and their various combinations have changed our lives in ways unimaginable just twenty years ago," it continues;
"The use of science to answer legal questions— forensic science—has seen similar breakthroughs.
DNA analysis comes first to mind' because its impact has been so dramatic' but innovations in other forensic scientific and medical techniques have been equally important.
The public perception' certainly aided by television shows such as CSI: Crime Scene Investigation and a myriad of similar quasi-documentaries' is that forensic science is objective' reliable' independent and flawless.
When the man or woman in the lab coat testifies' even if qualifying terms like "consistent with" or "similar to" are used' jurors hear absolute certainty.
Richmond' Virginia criminal defense attorney Richard Baugh summed up this attitude when he told Style Weekly reporter Laura Lafay (July 6' 2005)' "If you put God on the witness stand . . . and God's testimony conflicted with the DNA evidence' everyone would automatically say' ‘Why is God lying like this?'"
The blade' however' cuts both ways.
The same scientific advances that make it possible to obtain convictions in decades-old "cold cases" have exonerated inmates imprisoned for half their lives or more' often on death row.
University of Virginia School of Law Associate Professor Brandon L. Garrett (2008) determined that in more than half of the first 200 DNA exonerations' false or misleading forensic evidence led to the wrongful conviction.
The fallibility of this perfect science has become painfully evident' as has the need for reform.
Members of the legal and scientific communities have offered several explanations for the fallibility of scientific evidence offered in our courtrooms' along with fixes to address them.
Backlogs of work' not enough analysts' inadequate physical plants' outdated equipment' and insufficient training and/or supervision are frequently cited problems; added funding is the number one cure.
Some scientific premises and techniques' such as ear print analysis (Associated Press' 2001)' have been rejected as junk' with no scientific basis' while others have come into and gone out of acceptance over the course of a few decades.
Shaken Baby Syndrome (SBS) was initially defined by medical researchers in the U.K. in 1972 (Minns' 2004)' and by the 1990s' retinal hemorrhages with specific characteristics were considered pathognomonic of shaking by many forensic pathologists and pediatric specialists.
However' in the March 27' 2004' issue of the British Medical Journal' Patrick Lantz et al. examined that premise and concluded that it "cannot be supported by objective scientific evidence."
Researchers at the University of North Carolina-Chapel Hill further confirmed the Lantz conclusion when MRI studies conducted on infants during the first year showed minor brain bleeds in 26% of the children' but no indication of abuse or trauma (Fisher' 2007).
It is now thought such brain bleeds are caused by the process of vaginal birth.
Subjective analytic techniques have come under fire because they are' well' too subjective.
DNA analysis has demonstrated the unreliability of microscopic hair comparison.
Mark Webster (n.d.)' a British forensic scientist' has remarked' "The trick with hair comparison is not to worry about using a comparison microscope. Use the flip of a coin instead' it's much cheaper' easy to use both in the field and lab' and actually rather more accurate."
Microscopic fiber comparison appears to have no better accuracy' but it has not yet been challenged by a demonstrably more reliable science like DNA.
After 25 years' bullet lead analysis was abandoned by the FBI' because it is based on the faulty assumption that levels of trace elements such as silver' antimony' and tin are uniform in bullets manufactured in the same lot.
The FBI concluded in 2005 that bullet manufacturing and distribution were too variable for the matching to be reliable (Piller' 2005).
FBI Laboratory Director Dwight E. Adams' of course' says "we stand by the results of the reports we have already issued."
Fingerprint identification has been the evidentiary gold standard in U.S. courts for a century' and fingerprint analysts testify to "100 percent confidence" in matches they make.
Challenges to fingerprint identification as a pseudoscience met with sporadic success' but these efforts were analogous to chipping away Gibraltar with a chisel.
Then' in March of 2004' came the spectacular misidentification of a fingerprint linked to the Madrid train bombing as that of Oregon attorney Brandon Mayfield—by not one' not even two' but three separate FBI examiners.
Terry Green' Michael Wieners' and John T. Massey were "100 percent positive" that the print belonged to Mayfield' and when Spanish authorities questioned the identification' the FBI stood by its men and arrested Mayfield.
Six weeks later' after Spanish police matched the fingerprint to an Algerian man' and the FBI at last conceded error (Kramer' 2004).
The Mayfield case illustrates not only the fallibility of subjective techniques such as fingerprint identification' but also the bias that colors scientific inquiry undertaken by analysts who are on the same "team" as law enforcement and/or prosecution.
Messrs. Green' Wieners' and Massey are FBI special agents.
The lab where they are employed is part of a police agency.
They are' in simplest terms' cops in lab coats.
Sometimes the bias is subtle.
In the Mayfield case' special agents Green' Wieners' and Massey were almost certainly aware that Mayfield was a convert to Islam' married to a Muslim woman' and that as an attorney' he represented many Muslim immigrants seeking to live in the United States.
An FBI affidavit filed in support of Mayfield's arrest concedes there was no record of foreign travel by Mayfield' but concludes' "Since no record of travel or travel documents have been found in the name of Brandon Bieri Mayfield' it is believed that Mayfield may have traveled under a false or fictitious name."
This is classic "backward reasoning." If the suspect is guilty' then the following must be true.
It is born of tunnel vision—a narrow viewpoint that focuses on evidence that fits one's theory while discarding anything that conflicts with it—and when properly cultivated' backward reasoning masquerades as probative evidence.
When it is an integral part of faulty expert testimony' it is a recipe for wrongful conviction.
Funding' training' supervision' physical plants' backlogs' inadvertent error' and bias are all legitimate issues that directly impact the quality of the science presented in our courts' and they need to be addressed.
It is logical to expect "subtle bias'" also called "inadvertent bias'" to occur in the work of analysts who are supervised by police or prosecutors.
Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008).
But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.
This is the elephant in the crime lab.
The notion of "inadvertent bias" is' in a strange way' a comforting term.
Yes' it points to wrongdoing' but "inadvertent" implies "due to oversight" and "unintentional."
The forensic scientist guilty of "inadvertent bias" has really only made a mistake.
Granted' the results of this kind of mistake can have devastating effects on the outcome of a trial.
The innocent can be found guilty of a crime' and the guilty can be found innocent.
But the notion of "inadvertent bias" softens the nature of the wrongdoing.
It removes the possibility of deliberate action or criminal intent on the part of the forensic scientist or expert witness testifying at trial. We all make mistakes' right?
If an expert witness were to knowingly give false testimony' then clearly' that would not be "inadvertent bias."
But does that really happen' as research suggests' half of the time when misleading scientific evidence is presented?
Let's take a look at a particular case.
On the morning of November 10' 1991' a house went up in flames in Fort Stockton' Texas.
The body of an elderly man named Bill Richardson was found in the debris after the fire was put out.
For whatever reasons' arson was suspected.
It was also believed that the person responsible for the crime was a woman named Sonia Cacy.
Cacy was Bill Richardson's niece.
The body was transported from Fort Stockton to the Bexar County Forensic Science Center (BCFSC) in San Antonio for autopsy.
This became the BCFSC's Medical Examiner case # ME 1578-91.
The Medical Investigator's report' prepared after the arrival of the body at the BCFSC' reads:
"… ITS [sic] UNKNOWN HOW THE FIRE GOT STARTED. THE JUDGE H A S REQUESTED AN ARSON INVESTIGATOR FROM LUBBOCK POLICE DEPARTMENT COME AND INVESTIGATE THE FIRE SCENE…TIME BODY ARRIVED @ MORGUE: 11-10-91 2310 HRS."
Because arson was suspected' the medical examiner performing the autopsy removed remnants of charred pants and underwear from the deceased.
This sample was put into a container and sent down to the BCFSC's Toxicology Lab for an arson analysis.
The arson analysis involved a "purge and trap" technique: The sample was heated gently under a slight vacuum.
Residual gasoline on the clothing remnants would have been released and pulled into a charcoal trap.
The trap was rinsed with a solvent' and this solvent was subjected to analysis by gas chromatography/mass spectrometry (GC/MS).
Any traces of gasoline removed from the clothing would have been detected by the GC/MS analysis.
The results of the analysis were an unambiguous "none detected." The analysis did not find gasoline on the remnants of clothing. But the typed report read:
"Positive Class II Accelerant (i.e.' gasoline' etc). Chemist: Joe Castorena"
In February of 1993' Sonia Cacy stood trial for murder' accused of burning her uncle to death.
The BCFSC's Assistant Chief Toxicologist' Joe Castorena' testified as an expert witness for the prosecution. Under oath Castorena testified:
"… it's my opinion that there—there is a presence of an accelerant' and it is a class II accelerant."
Keep in mind: Gasoline is a class II accelerant.
The prosecution's theory was simple: Sonia Cacy had doused her uncle with gasoline while he was asleep and set him on fire. She then ran out of the house to save herself.
The only forensic evidence introduced at trial that indicated the fire had been deliberately set was the written report of the analysis and Castorena's testimony on the witness stand.
Both false. The result? Cacy was found guilty of murder and sentenced to 99 years in prison.
Q. Did you rip off a piece and test it or did you test the entire content?
A. No' I—I tested the entire content.
In both a document submitted as evidence' and while giving testimony under oath' Castorena identified himself as the chemist who had performed the arson analysis.
It's not true. The analysis was performed by one of the lab toxicologists. The header information of the actual GC/MS chromatograms reads:
ASSAY: ARSON
FILE ID: DATA: 1578-91.D
CASE NUMBER: ME: 1578-91'
PANTS/UNDERWEAR
DATE: 18 Nov 91 2:22 pm
ANALYST: RODRIGUEZ' R.
Sonia Cacy was found guilty of burning her uncle to death' and she was sentenced to prison for 99 years as the result of a false report and false testimony.
Yes indeed' bad things can happen when expert witnesses don't tell the truth.
Was it intentional or merely a case of "inadvertent bias"?
Clearly' only the person who performs a particular act really knows what was in his or her heart at the time the act was performed.
Is it possible that Castorena' an "expert" in arson analysis' looked at an unambiguous negative test result and inadvertently called it positive?
Is it possible that Castorena got confused and thought that he had performed an analysis when' in fact' someone else had?
Such arguments could be made' but they would be flimsy arguments at best.
The Cacy fire occurred in Fort Stockton' in Pecos County' Texas' about 300 miles from San Antonio' in Bexar County.
The Bexar County Forensic Science Center is in no way under the auspices of' or controlled by' the Pecos County District Attorney's Office or any other police agency or prosecutor's office.
The notion of a scientist yielding to subtle pressure because his job performance is evaluated by a senior official in the prosecuting attorney's office or in the investigating police agency does not apply in this case.
Removing crime labs from the control of police or prosecutors' offices would not help in a case like this.
The problems in the Sonia Cacy case arise from something else.
What might this "something else" be? If the false report and false testimony are not inadvertent' they are intentional.
When a forensic scientist or expert witness knowingly files false reports' willingly lies on the witness stand' and if it is not a matter of pressure from local prosecutors or law enforcement' what can possibly be going on in his or her mind?
The first forensic scientist to be nationally exposed for this type of conduct was Fred Zain.
At the time of his exposure' Zain was the Chief Serologist at the BCFSC.
He had been hired away from the West Virginia State Police Crime Lab' where his work as a serology analyst had made him enormously popular with police and prosecutors across the Mountain State.
It all unraveled in 1992 when DNA testing cleared Glen Woodall of a Charleston' West Virginia' rape that had occurred in 1986.
At trial in 1987' Zain testified that Woodall and the rapist had "identical blood types."
Woodall was released from prison' and shortly thereafter' he sued the state for false imprisonment.
It was Woodall's civil lawsuit that set in motion a chain of events that culminated in Zain's indictment for perjury in both West Virginia and Texas' although statutes of limitations in both states may have saved Zain from conviction (Inman & Rudin' 2000).
Inman and Rudin tell us that Zain has become the "unfortunate poster child for unethical conduct in forensic science'" but many more have trod the same path and ended their careers in ignominy.
Arnold Melnikoff.
Melnikoff was the manager of Montana's state crime lab when he testified that Jimmy Ray Bromgard's hair was "almost indistinguishable" from hairs found at the scene where an 8-year-old girl was raped.
Melnikoff told Bromgard's jury there was only one chance in 10'000 that Bromgard was not the rapist.
Fifteen years later' DNA showed that' in fact' Bromgard was not the rapist.
Additional convictions based on his testimony were also overturned.
By then' like Zain' Melnikoff 's success on the witness stand had taken him to Washington' where he was working as a chemist for the State Patrol (Center for Investigative Reporting' 2007).
Charles Vaughn.
As a crime lab analyst in Oregon' he testified that trace evidence— blood specks and gunpowder flakes—connected Chris Boots and Eric Proctor to a 1983 execution-style murder.
The defendants were cleared by DNA in 1994' and Boots sued the state when further testing found that the blood specks did not match the victim and the gunpowder flakes weren't gunpowder (Teichrob' 2004).
Janice Roadcap.
Over the course of three trials from 1974 through 1978' Pennsylvania state police chemist Janice Roadcap provided what the presiding judge called the "linchpin" evidence linking 12-yearold Steven Crawford to the murder of John Mitchell' whose body was found in the Crawford family garage.
Roadcap testified that the killer left a fingerprint after Mitchell was killed' and the fingerprint was Crawford's.
In 2001' a defense investigator found a copy of Roadcap's lab notes in a suitcase owned by one of the investigators' who had died 7 years earlier.
The lab notes stated that the blood was splattered across fingerprints that were already there.
In 1987' Roadcap explained to the jury at the rape/murder trial of Barry Laughman' that the killer's blood type "morphed" from B to A—to match Laughman's blood type—due to antibiotics the victim was taking at the time of her death.
Her fantasy science stood for 16 years' until Laughman was cleared by DNA (Shellem' 2003a' 2003b).
Joseph Kopera.
Over a 21-year career as a firearms examiner in Baltimore' and then with the Maryland State Police'
Kopera testified for the state in hundreds of criminal cases' basing his conclusions on his extensive education and experience.
He was a favorite of prosecutors because he "had an authoritative and engaging command of the material he was called upon to describe for jurors" (McMenamin' 2007).
In February 2007' Kopera was deposed by lawyers for Sgt. James Kulbicki' whose conviction relied entirely on Kopera's testimony.
Kopera claimed under oath to have degrees and certificates he did not have' and he offered a forged document to back up his qualifications.
He retired suddenly on March 1' 2007' and committed suicide that same day.
Dr. Michael West.
Dr. West' a dentist from Hattiesburg' Mississippi' was a self-taught expert in forensic bite mark identification.
By 1992' when he testified in the trials of Kennedy Brewer and Levon Brooks' he had been suspended from the American Board of Forensic Odontology and had resigned from the American Academy of Forensic Science and the International Association of Identification' pending expulsion (Dewan' 2007).
In both cases' very young children had been abducted from their beds during the night' raped' and murdered in rural' sparsely populated Noxubee County.
Dr. West saw no connection between the crimes; he testified that each victim had been bitten by the defendant charged in that case.
The men were each convicted; Brewer was sentenced to death' and Brook was sentenced to life in prison.
In 2002' Brewer was cleared by DNA' but remained in jail pending retrial until 2007' when he was finally released on bond.
In early 2008' Brooks was also cleared by DNA and released.
Two other defendants whose convictions were obtained by Dr. West's bite mark testimony were also cleared by DNA.
On February 9' 2008' Mississippi Attorney General Jim Hood announced that Albert Johnson had been identified with DNA and charged in the murders of both children.
Why did they do it? Why did they tamper with evidence' lie under oath and send innocent people to prison and even death row?
Subtle pressure and inadvertent bias don't explain this' especially because these scientists worked in both public and private settings.
When it finally came out that Fred Zain had knowingly lied on the witness stand on a regular basis and had been responsible for sending many innocent people to prison' Dr. Vincent DiMaio' the Chief Medical Examiner and Zain's former boss at the BCFSC' offered his own theory about the motivations of Zain.
Dr. DiMaio told San Antonio Express reporter Kym Fox (1994): "[Zain] was thinking he was a great noble man on a white horse and he would help the DA send all those criminals to jail."
Could that be it? Is it possible that some forensic scientists and expert witnesses lie on the witness stand because they just want to help? Yes' they are lying' but it's for a good cause: putting the bad guys away.
Here we go again: another excuse that softens the horrendous nature of what is done by the forensic scientist or expert witness who lies under oath.
But if this noble desire to "help the DA send all those criminals to jail" is the reason' then it would follow that forensic scientists and expert witnesses never lie for the defense.
That wouldn't be "the right thing to do." Right? Let's answer that by looking at another case.
During the night of April 30' 1994' a man named Parry Schurr was shot to death on a street in Wichita' Kansas. The shooter' Rumon Ray' fled from the scene and was later arrested.
Three and a half months after the killing' blood samples taken from the victim at autopsy were sent by the Coroner-Medical Examiner in Sedgwick County' Kansas' to the Bexar County Forensic Science Center.
Along with the samples was a letter to Dr. James Garriott who' at that time' was the Chief Toxicologist of the BCFSC.
This letter discussed the toxicological analyses to be run' one of them being a cocaine analysis. This became BCFSC Case # CIL 94-03194.
On August 30' 1994' a cocaine analysis was performed by one of the BCFSC's toxicologists.
The results: an unambiguous "none detected."
The report was typed and signed by the analyst.
Eight days later' a new report was printed (no new analysis' just a new report).
The new report stated: Results: "COCAINE - 12 NG/ML."
This falsified report was signed by James Garriott' Chief Toxicologist' BCFSC.
What could possibly have made Garriott falsify results? Was he trying to "help the DA send all those criminals to jail"?
The answer to that last question is "no."
It was the defense attorney who had requested the cocaine analysis on the victim's blood.
The shooter's lawyer wanted to know if the victim had been high on cocaine at the time of the killing (Hobson' 1994).
Ah' the self-defense thing.
In a letter to Garriott dated February 10' 1995' defense attorney Milo M. Unruh Jr. made it clear why he had requested a cocaine analysis on the victim's blood:
"A considerable portion of that defense (self-defense) was based upon the fact that Mr. Ray (the shooter) maintained the decedent was the aggressor and was acting in a ‘crazed' manner at the time of the incident' prompting Mr. Ray to shoot the victim in self-defense."
And:
"In my opinion' it was critical to establish that [cocaine] had been ingested immedi ately prior to the incident … such evidence would substantiate my client's version that the victim was ‘high on drugs' at the time of the altercation."
Okay. The shooter's attorney is going for self-defense.
The crux of the argument is that the victim was high on drugs at the time' acting crazy' and scaring the defendant so much that the defendant had to pull out a gun and kill the guy.
A positive finding of cocaine would be a dream come true.
So what?
Why could any of this matter to Garriott as a forensic scientist?
How could the hopes and plans of a defense attorney all the way up in Kansas have anything to do with Garriott generating a false report?
Here's something that might shed some light: Garriott testified at Rumon Ray's trial as an expert witness for the defense.
He submitted his falsified report as evidence and testified under oath that the victim had ingested cocaine 60 to 90 minutes before the incident. A complete fabrication. But he was the "hired gun'" and the jury ate it up.
How did it end? Rumon Ray was convicted of involuntary manslaughter and served just a few months in jail. The defense attorney got what he wanted' even though it wasn't the truth.
Garriott' who knowingly substituted reports and gave fabricated testimony at trial' was paid by the defense for his expertise' and as the expert who brought home the bacon for the defense' made himself all the more desirable as an expert in future cases.
There's nothing noble going on here' no desire to do the right thing and lock up bad guys.
Expert witnesses get hired to support the premises of the side in litigation that hires them' and expert witnesses get paid for their testimony.
Some get paid very well.
Dr. Vincent DiMaio' expert witness for the defense in the 2007 Phil Spector murder case in Los Angeles' California' admitted on the witness stand to earning $400 per hour for his services' (People v. Spector' 2007).
The expert witness who can't or won't support the premises of the side that retains him is the consulting expert.
The consulting expert is paid for review work and an initial' informal report.
If the report goes against the client' the expert is put on a back burner.
The consulting expert's conclusions are a work product' so they are protected from disclosure to the other side in discovery.
The consulting expert can't be retained by the other side.
Disagreeable results remain confidential' and the consulting expert stays' for the most part' anonymous.
It is the testifying expert who builds the lucrative consulting practice.
Having previously testified as an expert witness in court proceedings is a factor in qualifying to testify as an expert witness in current and future proceedings.
Crime lab analysts who have testified in numerous cases have a leg up on their brother and sister scientists when they move into forensic consulting as a second or retirement career.
It is the name of the testifying expert that is passed from lawyer to lawyer.
This is true whether the litigation is criminal' civil' or administrative in nature.
Forensic consulting is a business' and in business' the customer is always right.
Keeping the customer happy is so important that many forensic experts limit their practices to plaintiff (prosecution in criminal cases) or defense side only.
What they believe they can deliver is right up front in such situations.
Civil tort litigation—lawsuits alleging harm caused by the negligence of another— has launched hundreds of well-paid consulting careers for experts in diverse fields of science and medicine.
Legal professionals familiar with forensic experts in their area can accurately recite the conclusions of a given retained expert's report before the expert has begun work on a case.
Parties to litigation are entitled to attempt to persuade the jury that the other party's witness is an "expert for hire'" who devotes a substantial part of his or her practice to testifying on behalf of certain types of litigants and/or for certain insurance companies.
The purpose is to challenge the credibility of an expert witness by showing bias' prejudice' or relationship.
Once the jury is made aware of this information' it is for the jury to decide what weight' if any' to give to the expert witness' testimony.
How that information is obtained and how it is presented to a jury has been the subject of appeals and developing case law in state courts across the country.
In most states' litigants can subpoena the expert's financial records to determine how much money the expert has received for forensic services from specific clients' including insurance companies.
An orthopedic surgeon from the Tidewater area of Virginia' for example' during his first 2 years of solo practice' was paid $255'754 the first year and $284'252 the second year just for records reviews and defense medical examinations.
He was retained by insurance companies defending personal injury and workers' compensation cases. Sums like those can form a powerful bias.
Dr. DiMaio told San Antonio Express reporter Kym Fox (1994): "[Zain] was thinking he was a great noble man on a white horse and he would help the DA send all those criminals to jail."
Could that be it? Is it possible that some forensic scientists and expert witnesses lie on the witness stand because they just want to help? Yes' they are lying' but it's for a good cause: putting the bad guys away.
Here we go again: another excuse that softens the horrendous nature of what is done by the forensic scientist or expert witness who lies under oath.
The elephant—evidence tampering' forensic fraud' and perjury—has stretched out and made itself comfortable not just in the crime lab' but in laboratories of all types and in medical and dental offices as well.
We all feel the effects' whether we are aware of it or not.
Innocent men and women are sentenced to years in prison or are put to death for crimes they didn't commit' or that never happened in the first place.
Spouses lose spouses' children lose parents' communities lose the talents of capable people' while criminals remain free to stalk new victims.
Impaired drivers keep their licenses and drive 6'000-pound weapons on wheels that can strike any one of us at any time.
Incompetent surgeons keep operating' leaving maimed bodies and mangled lives in their wake.
Products stay in the marketplace despite posing a danger to life and limb that sometimes echoes across generations.
The Justice Project's recommendations for improving forensic evidence testing procedures are excellent' and we endorse them.
But these reforms alone are not enough.
We propose the following additional recommendations' which we believe will substantially reduce the size and impact of the elephant.
1) If the results of a forensic analysis are used as evidence' the ANALYST who performed the test must be the one who testifies about the analysis. An analyst who does not understand what he or she does and/or can't explain it to a jury should not be running analyses. If a supervisor or someone else wants to testify about the results of an analysis performed by a subordinate' then that subordinate must still be available to be questioned under oath' if by no one else than the opposing side.
2) The statute of limitations on perjury' evidence tampering' fabrication of test results' and other types of forensic fraud should be eliminated or extended as a special category of crime. It can take years for evidence of deliberate falsification or perjury to come to light. Current statutes of limitation give the criminal forensic scientist/expert witness an easy out. This is how Fred Zain escaped possible conviction for what he did.
3) All materials associated with a forensic analysis must be made available to the other side' to include the hard data (GC/MS chromatograms' IR spectra' gels' etc.) and the lab's SOP regarding that particular analysis' including how the method is performed' how detection of the substance in question (e.g.' cocaine' gasoline) is determined (i.e.' what constitutes a positive or negative finding)' the limits of detection for that particular analysis' the limits of quantification for that particular analysis' and all hard data from the calibrators and controls (positive and negative) that were run along with the sample of interest.
Forensic science must be as transparent as possible. Without that transparency' there is little hope for virtue' and' as Plato told us 2'500 years ago' "Science without virtue is immoral science.""
Harold Levy...hlevy15@gmail.com;
http://smithforensic.blogspot.com/2009/03/dr-charles-smith-and-elephant.html
