COMMENTARY: "The Unheralded Crisis of Criminal Justice," by Nathan J. Robinson, published by The Boston Review on November 16, 2015. (Nathan Robinson is a PhD student in Sociology at Harvard. He holds a JD from Yale Law School.)
GIST: This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.........But questions of forensic science’s reliability go well beyond hair analysis, and the FBI’s blunders aren’t the only reason to wonder how often fantasy passes for science in courtrooms. Recent years have seen a wave of scandal, particularly in drug testing laboratories. In 2013 a Massachusetts drug lab technician pled guilty to falsifying tests affecting up to 40,000 convictions. Before that, at least nine other states had produced lab scandals. The crime lab in Detroit was so riddled with malpractice that in 2008 the city shut it down. During a 2014 trial in Delaware, a state trooper on the witness stand opened an evidence envelope from the drug lab supposedly containing sixty-four blue OxyContin pills, only to find thirteen pink blood-pressure pills. That embarrassing mishap led to a full investigation of the lab, which found evidence completely unsecured and subject to frequent tampering. There have also been scores of individual cases in which forensic science failures have led to wrongful convictions, the deficiencies usually unearthed by the Innocence Project and similar organizations. In North Carolina, Greg Taylor was incarcerated for nearly seventeen years thanks to an analyst who testified that the blood of a murder victim was in the bed of his truck. But later investigation failed to confirm that the substance was blood, or even of human origin. Forensics experts have used “jean pattern” analysis to testify that only a certain brand of blue jeans could leave their distinctive mark on a truck, as occurred in the trial of New Yorker Steven Barnes, who spent twenty years in prison for a rape and murder he didn’t commit. Some wrongful convictions can never be righted—for example, that of Cameron Todd Willingham, who was convicted by a Texas court of intentionally setting the fire that killed his three young daughters. After the state executed Willingham, an investigative team at the Texas Commission on Forensic Science concluded that the arson science used to convict him was worthless, and independent fire experts condemned the investigation as a travesty. But those findings came too late to do Willingham any good. The mounting horror stories, and the extent of corruption and dysfunction, have created a moment of crisis in forensic science. But the real question is not just how serious the problems are, but whether it is even possible to fix them. There are reasons to suspect that the trouble with forensics is built into its foundation—that, indeed, forensics can never attain reliable scientific status.........Nobody can state with certainty the degree of pseudoscience that clogs the American courts. But even if forensic science largely faces a “bad apples” problem, it may still be in bad shape. As legal scholar and forensic science specialist Daniel Medwed notes, “An absence of careful oversight can allow rogue scientists to flourish.” Even if there is no reason to doubt forensic podiatry itself, there might still be good reason to doubt forensic podiatrists. The localized, disparate, and unmonitored nature of so much forensic practice makes for massive nationwide inconsistency. In fact, so long as forensic science remains forensic—i.e., conducted to meet the demands of the forum rather than those of the scientific method—it is hard to see how it can warrant confidence. For countless reasons, law is a poor vehicle for the interpreting of scientific results. That people’s lives must depend on the interpretive decisions of judges and juries is in some respects unsettling to begin with. The chaotic state of forensic science—in theory and practice—and the possibility that unsupported flimflam is passing itself off as fact make the everyday criminal justice process even more alarming. Thus even as we try various fixes, rooting out bad apples and introducing oversight, a systemic and elementary problem remains: a science of the forum can never be science at all."
GIST: This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.........But questions of forensic science’s reliability go well beyond hair analysis, and the FBI’s blunders aren’t the only reason to wonder how often fantasy passes for science in courtrooms. Recent years have seen a wave of scandal, particularly in drug testing laboratories. In 2013 a Massachusetts drug lab technician pled guilty to falsifying tests affecting up to 40,000 convictions. Before that, at least nine other states had produced lab scandals. The crime lab in Detroit was so riddled with malpractice that in 2008 the city shut it down. During a 2014 trial in Delaware, a state trooper on the witness stand opened an evidence envelope from the drug lab supposedly containing sixty-four blue OxyContin pills, only to find thirteen pink blood-pressure pills. That embarrassing mishap led to a full investigation of the lab, which found evidence completely unsecured and subject to frequent tampering. There have also been scores of individual cases in which forensic science failures have led to wrongful convictions, the deficiencies usually unearthed by the Innocence Project and similar organizations. In North Carolina, Greg Taylor was incarcerated for nearly seventeen years thanks to an analyst who testified that the blood of a murder victim was in the bed of his truck. But later investigation failed to confirm that the substance was blood, or even of human origin. Forensics experts have used “jean pattern” analysis to testify that only a certain brand of blue jeans could leave their distinctive mark on a truck, as occurred in the trial of New Yorker Steven Barnes, who spent twenty years in prison for a rape and murder he didn’t commit. Some wrongful convictions can never be righted—for example, that of Cameron Todd Willingham, who was convicted by a Texas court of intentionally setting the fire that killed his three young daughters. After the state executed Willingham, an investigative team at the Texas Commission on Forensic Science concluded that the arson science used to convict him was worthless, and independent fire experts condemned the investigation as a travesty. But those findings came too late to do Willingham any good. The mounting horror stories, and the extent of corruption and dysfunction, have created a moment of crisis in forensic science. But the real question is not just how serious the problems are, but whether it is even possible to fix them. There are reasons to suspect that the trouble with forensics is built into its foundation—that, indeed, forensics can never attain reliable scientific status.........Nobody can state with certainty the degree of pseudoscience that clogs the American courts. But even if forensic science largely faces a “bad apples” problem, it may still be in bad shape. As legal scholar and forensic science specialist Daniel Medwed notes, “An absence of careful oversight can allow rogue scientists to flourish.” Even if there is no reason to doubt forensic podiatry itself, there might still be good reason to doubt forensic podiatrists. The localized, disparate, and unmonitored nature of so much forensic practice makes for massive nationwide inconsistency. In fact, so long as forensic science remains forensic—i.e., conducted to meet the demands of the forum rather than those of the scientific method—it is hard to see how it can warrant confidence. For countless reasons, law is a poor vehicle for the interpreting of scientific results. That people’s lives must depend on the interpretive decisions of judges and juries is in some respects unsettling to begin with. The chaotic state of forensic science—in theory and practice—and the possibility that unsupported flimflam is passing itself off as fact make the everyday criminal justice process even more alarming. Thus even as we try various fixes, rooting out bad apples and introducing oversight, a systemic and elementary problem remains: a science of the forum can never be science at all."
The entire commentary can be found at:
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