STORY: "The FBI (Federal Bureau of Investigation) and DOJ (Department of Justice) vow to continue using junk science rejected by the White House Report," by reporter Jordan Smith, published by The Intercept on September 23, 2106.
GIST: "Although a report released this week by the President’s Council of Advisors on Science and Technology concludes that there is scant scientific underpinning to a number of forensic practices that have been used, for years, to convict thousands of individuals in criminal cases, the U.S. Department of Justice has indicated that it will ignore the report’s recommendations while the FBI has blasted the report as “erroneous” and “overbroad.” The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” concludes that a number of common, pattern-matching forensic disciplines – bite mark analysis, fingerprint and firearm comparison, shoe tread analysis, and complex DNA mixture analysis – need additional support to be deemed scientifically valid and reliable – a conclusion in line with that reached in the groundbreaking 2009 report on forensics issued by the National Academy of Sciences National Research Council.
In a statement reported by the Wall Street Journal, Attorney General Loretta Lynch said that the agency remains “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” As such, she said, while “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.” The DOJ did not respond to The Intercept’s request for additional information, but based on her statement, it appears Lynch is saying there’s simply nothing to see here and that the criminal justice system is working just fine. The Intercept first reported on the report’s conclusions earlier this month, after obtaining a draft copy. The text of the final report, released Sept. 20, appears to be nearly identical to the leaked draft. Foundational validity and reliability are essential to shore up forensic practices, the report concludes – attributes that are largely absent in the disciplines it reviewed, which rely heavily on the subjective determinations of practitioners. Pattern-matching forensics involve an examiner determining whether a piece of crime scene evidence can be visually matched to a suspect – whether an alleged bite mark on a victim’s hand matches a suspect’s dentition, for example, or whether a partial, or smudged, fingerprint found at the scene of a crime matches a clean print obtained from a suspect – determinations currently based primarily on a subjective eyeballing of the objects at issue..........In all, the report makes eight overarching recommendations for improvement— to the National Institute of Standards and Technology, to the FBI, to the attorney general, and to the judiciary — and called for “a vigorous research program” to improve forensic sciences building off “recent important” research conducted into fingerprint analysis, that the judiciary take into account actual scientific criteria when assessing whether forensic evidence and testimony should be allowed into court, and that the attorney general should “direct attorneys appearing [in court] on behalf of the [DOJ] to ensure expert testimony in court about forensic feature-comparison methods meets the scientific standards for scientific validity.” “Where there are not adequate empirical studies and/or statistical models to provide meaningful information about the accuracy of a forensic feature-comparison method,” the report concludes, “DOJ attorneys and examiners should not offer testimony based on the method.” And in the event that testimony is necessary, the report says, the expert should “clearly acknowledge to courts” the lack of scientific evidence to support the underlying forensic practice......... This, the new report correctly notes, is where science and the law intersect. But in practice, legal scholars note, the Daubert standard has not kept pseudoscience out of the courtroom. And when courts rely on precedent to allow certain questionable forensic practices into evidence the result is something like a feedback loop. “Bite-mark analysis has passed every Daubert challenge that it has ever faced and [yet] there isn’t a scientist on the planet that would argue that bite-mark analysis is a valid and reliable science, aside from the few practitioners who still cling to that belief,” said Chris Fabricant, director of strategic litigation for the Innocence Project and a vocal critic of the use of junk science. Fabricant said the DOJ’s rejection out-of-hand of the White House report is disheartening. “You would think that they would want to get it right. The idea is not that we’re going to spring open the jailhouse doors and let everybody free. The idea is that scientific evidence ought to be scientific,” he said. “To simply reject the call for more research and to say that Daubert is sufficient is ludicrous, because Daubert is obviously not sufficient,” he continued. “So, the idea that you would point to the courts and to precedent for the idea that forensic evidence is good enough for government work is a joke.” Attorney General Lynch was not alone in her rejection of the science council’s report. The FBI also issued a statement taking issue with the group’s work. While the “FBI agrees … that forensic science plays a critical role in the criminal justice system, and therefore needs to be held to high standards” and that additional funding “is needed to develop stronger ties between the academic research community and the forensic science community,” the agency said that the “report makes broad unsupported assertions regarding science and forensic science practice.” Among its concerns: That the report says that the “only way” to establish validity as applied is through testing and the development of error rates. The agency contends that this assertion is “fundamentally at odds” with the 2009 NAS report. And the agency complains that the report omits “numerous” empirical studies into the various practices critiqued in it. Asked about the FBI’s complaints, Eric Lander, co-chair of the presidential council and president and founding member of the Broad Institute of MIT and Harvard, a biomedical research group, told The Intercept that the FBI is mistaken. “Neither report says that proficiency testing be used to estimate the ‘error rate’ of forensic methods,” he wrote in an email, and both reports agree that examiners should be subject to proficiency tests. And Lander said he is “not aware” of what studies the FBI believes were ignored by the report. “We specifically received FBI’s input on studies to consider and we did so.” An FBI spokesman told The Intercept he could not offer additional comments on the report outside the agency’s published statement, but he did email a list of six studies the FBI believes should have been considered. In a follow-up email, Lander wrote that the presidential council did in fact review the six studies the FBI complains that it missed. “However, these studies are clearly not empirical studies ‘providing support for foundational validity,'” he wrote. “Indeed, only one of the papers even reports an empirical study of current forensic method at all!” Still, he wrote, if the FBI can provide an “actual list of empirical studies providing support for foundational validity” they would “be delighted” to review and comment. Meanwhile, some of the criticism has turned nasty — and personal. On September 21, the American Congress of Forensic Science Laboratories (ACFSL), an industry trade and lobby group formed last year in response to the forensic reform movement, published a “position statement” that suggests the White House report’s work was motivated by politics or perhaps by some desire to undermine the criminal justice system. “Our greatest concern is that the intellectual exercise of evaluating the reliability of forensic science … is too often ignorant of the ugly realities associated with solving crimes like murder and rape as quickly and accurately as possible,” reads the statement. “Interestingly, the PCAST report comes during a presidential administration that has demonstrated a deep sensitivity to the needs and demands of trial attorneys, criminal defendants and advocates of sweeping criminal justice reform. Future administrations may take a different approach, tending to champion positions traditionally held by police and prosecutors.” While the group says it has “no opinion in these matters” it also suggests that at least two individuals involved in the report’s creation — including Lander — have some sort of political agenda that is adverse to the ACFSL. Lander is a member of the Innocence Project’s board of directors, a group that the forensics congress considers a “legal-activism group” that it claims has been “publicly criticized … for the unfairness of its public statements” and says critics have questions about the Innocence Project’s “motives.” While the forensics congress said its “intent is not to disparage any individuals” it nonetheless feels it has “no choice but to recognize the relevance of these biases as we evaluate the legitimacy of the PCAST report. Indeed, forensic science is being judged by such a standard.”
Fabricant said the congress’ assertions were absurd. “To suggest that the leading scientists in the country would cash in their credibility to do – what? What possible agenda could they be pursuing except scientific validity?” he asked. “I’d like to know what agenda they propose is being driven, and how somebody like Eric Lander – who mapped the human genome — is going to preside over a process that is intended to undermine the criminal justice.” Ultimately, what actors in the criminal justice system need to accept is that science must be injected into forensics for the disciplines to be legitimized. “We know that nearly 50 percent of wrongful convictions are attributable, at least in part, to forensic sciences that were misapplied,” he said. “So the idea that it’s been working great is, at best, whistling past the graveyard.”"
The entire story can be found at:
https://theintercept.com/2016/09/23/fbi-and-doj-vow-to-continue-using-junk-science-rejected-by-white-house-report/
See also 'CSIDDS: Forensics in Focus' post at the link below:
ttps://csidds.com/2016/09/24/more-on-the-fbi-and-doj-bad-attitude-on-legitimate-testing-in-their-forensics/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
Harold Levy. Publisher; The Charles Smith Blog.
