PASSAGE OF THE DAY:
"The Inquisition persecutors of Galileo are smiling at the new Trump/Sessions policy of ignoring and denying scientific fact and method. Americans should be very, very scared about how these anti-science, anti-truth policies threaten the fairness and reliability of our criminal justice system."
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GIST: "Several of my law firm colleagues
and I, as well as others in the criminal defense bar in Wisconsin,
regularly deal with DNA and other trace forensic evidence. The need for
accurate and reliable forensic testing by law enforcement and state
crime labs is critical, as our criminal clients’ lives and freedom is at
stake. Testing methods, procedures and test results should be subject
to independent peer review, common standards and certification. Just as
important, forensic evidence testing and expert opinions about the
results and what it means should be based on valid scientific and
statistical principles, not outmoded theories, junk science or
subjective statistics. Until the Trump Administration, progress was being made
towards improving the accuracy and reliability of forensic evidence. In
2009, the National Academy of Sciences evaluated the state of forensic
science and, shockingly, concluded that many of the forensic evidence
techniques commonly used in court in criminal cases actually have no
scientific validity, including hair and fiber comparison analysis, and
the resulting expert opinions rendered about such. An independent commission was established by President
Obama in 2013, the National Commission on Forensic Science (NCFS),
bringing together scientists, judges, crime lab experts, prosecutors,
and defense attorneys to analyze and improve the field of forensic
science, which encompasses the many ways science is deployed in criminal
justice. The NCFS was established partially in response to the National
Academy of Sciences reports that highlighted the lack of standards for
crime labs nationwide. The NCFS was in the process of addressing the NAS
concerns, attempting to review and improve testing standards and
methods, and other forensic science shortcomings. That is, until President Trump’s new Attorney General Jeff
Sessions announced in April 2017, that he would not renew the National
Commission on Forensic Science and suspended review of past FBI
testimony on several questionable forensic science techniques. Never
mind that innocent people wrongfully convicted, based on junk science
and invalid expert opinions, are still in prison. Accurate,
science-based forensic analysis, like other science that the Trump
Administration disagrees with or chooses to ignore, be damned. Had AG Sessions’ new policy been in effect over the past
several years, the invalid hair and fiber comparison expert opinions
rendered by FBI experts in many cases around the country, including
Wisconsin, would have remained hidden. Instead, in 2015, letters were
issued by the U.S. Department of Justice to the state prosecutor and
later copied to me, advising that FBI expert opinions rendered in my
client Larry Fandrich’s case” exceeded the limits of science” and were
therefore invalid. I recommend the October 2017 articles by Katherine Proctor
of the Wisconsin Center for Investigative Journalism, for an in-depth
review of what happened to Larry Fandrich and other persons who were
convicted and imprisoned based on erroneous or invalid scientific tests
and expert opinions.......... The Inquisition persecutors of Galileo are smiling at the
new Trump/Sessions policy of ignoring and denying scientific fact and
method. Americans should be very, very scared about how these
anti-science, anti-truth policies threaten the fairness and reliability
of our criminal justice system."
http://www.grgblaw.com/wisconsin-trial-lawyers/accurate-forensic-testing-at-risk-under-attorney-general-sessions
See Wisconsin Centre of Investigative Journalism story - 'Inmate says flawed FBI hair, fiber analysis forced him to take a plea deal for 50-year-prison term' - (Larry Fandrich) at the link below. "Among the prosecution’s forensic evidence were gray carpet fibers collected from duct tape left at two of the crime scenes, which an FBI crime lab report claimed exhibited “the same microscopic characteristics and optical properties” as the fiber samples taken from the duct tape roll seized from Fandrich’s truck. A single pubic hair found in one victim’s underwear also showed “the same microscopic characteristics” as Fandrich’s pubic hair, according to the lab. In 1995, after 18 months of court proceedings, Sauk County Circuit Judge James Evenson sentenced Fandrich to 50 years in prison for the crimes. Had he gone to trial, Fandrich said, he would have faced a sentence of up to 265 years. He remains incarcerated today. Fandrich’s case is among at least 13 prosecutions in Wisconsin in which the FBI has acknowledged its hair or fiber analysis was faulty. The FBI is conducting a nationwide review of criminal cases involving microscopic hair analysis prior to 2000, when mitochondrial DNA testing became a routine forensic practice."
http://wisconsinwatch.org/2017/10/wisconsin-inmate-says-flawed-fbi-hair-fiber-analysis-forced-him-to-take-plea-deal-50-year-prison-term/
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/c
See American Bar Association Journal article by Jason Tashia - why courts need help with science and technology at the link below: " The law’s inability to keep junk science out of court is a foundational problem. Nearly 25 years ago, the Supreme Court decided Daubert v. Dow Pharmacuticals, which has fallen short of its intended goal to improve the standards used to admit scientific evidence in federal court. The case created a four-factor test for the reliable determination of scientific evidence. The factors are whether a scientific technique “can be (and has been) tested;” was subjected to peer review and publication; whether there is a “known or potential rate of error” and “the existence and maintenance of standards controlling the technique’s operation;” and whether the technique has “general acceptance.” This approach was later applied to all expert testimony in Kumho Tire v. Charmichael. The Supreme Court in 2000 called the Daubert standard “exacting.” Ultimately, Daubert, Kumho and General Electric v. Joiner were codified as the Federal Rule of Evidence 702. Since then, nearly 40 states have adopted a version of the Daubert standard.
While affecting civil and criminal proceedings, Daubert’s shortcomings are acutely felt in the admission of forensic science. Professor Paul C. Giannelli writes in a recent Case Western Law Review article that Daubert has failed to strengthen the standards of scientific validity of evidence used in criminal proceedings. Over the past decade, Giannelli writes, the National Academy of Sciences, the National Commission on Forensic Science, the President’s Council of Advisors on Science and Technology and the Texas Forensic Science Commission have found that numerous well-known and admitted forensic science techniques—including bite-mark analysis, microscopic hair comparison, and arson evidence—are discredited and lack the scientific foundation that Daubert purports to require. The 2009 NAS report (PDF) said: “The bottom line is simple: In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.” Just one example of this ineffectiveness regards the interpretation of “peer review,” one of Daubert’s factors. The committee found forensic science bibliographies, judges and attorneys were unclear about this term. As Giannelli notes, the “peer review” standard in some courts has been interpreted to mean that someone double-checked a lab analyst’s work and not a “rigorous peer review with independent external reviewers to validate the accuracy … [and] overall consistency with scientific norms of practice,” which was Daubert’s intent. Beyond the misapplications of terms, courts mistakenly apply forensic science’s use in trials over time as a stand-in for the scientific testing that federal rules require. In U.S. v. Havvard, latent fingerprint matching was challenged under Daubert. The court called fingerprint testimony the “archetype” of reliable expert testimony. It confirmed this conclusion by saying that fingerprinting techniques “have been used in ‘adversarial testing for roughly 100 years,’ which offered a greater sense of the reliability of fingerprint comparisons than could the mere publication of an article.” This conclusion was in spite of the Federal Rules of Evidence and Daubert. The 2009 report added that a common fingerprinting method used by the FBI was without “particular measurements or a standard test protocol” where “examiners must make subjective assessments throughout.” Yet fingerprinting methods have not suffered a sustained challenge in federal court in nearly 100 years. This failure of courts to act as arbiters of science comes at the cost of human life. In a review of hair sample testimony by the FBI laboratory’s microscopic hair comparison unit between 1980 and 2000 that was published in 2015, the FBI, National Association of Criminal Defense Lawyers and the Innocence Project found that FBI testimony contained errors in “at least 90 percent of trial transcripts” of the 268 trials reviewed. Of those 268 trials, at least 35 defendants were sentenced to death. FBI testimony errors were found in 94 percent of those cases. As of April 2015, 14 of those defendants had been executed or died in prison. The New York Times editorial board also wrote in 2015 that of the 329 exonerations due to “DNA testing since 1989, more than one-quarter involved convictions based on ‘pattern’ evidence—like hair samples, ballistics, tire tracks, and bite marks—testified to by so-called experts.” This indicates that the law’s ability to interpret and judge science is systemically imperfect at best, and fatal at worst. Daubert’s failure to apply scientific rigor is one reason why junk science has been allowed to propagate in the legal system."
http://www.abajournal.com/lawscribbler/article/courts_need_help_when_it_comes_to_science_and_tech
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/c
