Todd Fisher: Montana: To serve, protect and clean? From our 'When you think you've seen everything column!...Defence wants deliberate homicide and evidence tampering charges thrown out in case of man accused of killing his disabled father, "after a sheriff's deputy who was named as a beneficiary in the victim's will had the crime scene professionally cleaned."

PASSAGE OF THE DAY: "During a Monday court hearing, Hoagland said he cleaned the crime scene as a favor to the family, despite being ordered by Sheriff Ross Canen to stay away from the house because of his ties to the Fishers, the Billings Gazette reported. Investigators testified they spent two days collecting evidence at the Fisher house prior to the cleaning and had cleared the crime scene. Canen said he no longer considered it a murder scene. But defense attorneys asserted Hoagland ordered the cleaning to benefit from Wilbur Fisher's death. Hoagland stands to move up the list of beneficiaries if Todd Fisher is convicted because the defendant would lose his status in his father's will. "Given Chief Deputy Hoagland's training and experience, the question remains as to what other possible motive he could have held to purposely destroy the crime scene," public defender Cynthia Thornton wrote in a court brief."

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QUOTE OF THE DAY: "The cleaning service hired by Hoagland removed bloody carpet, linen and a mattress and scrubbed the walls in the room where Fisher's body was found. "It seemed like it needed to be done," Hoagland said. "When I got up there, it was already starting to smell and I was worried about insect infestation, a rodent problem in the house. I didn't want the whole place to be destroyed because of that."

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STORY: "After Deputy Scrubs Crime Scene, Defense Wants Charges Nixed," by Associated Press, published by Forensic Magazine on August 28, 2018.

GIST: "Defense attorneys asked a judge to dismiss charges against a Montana man accused of killing his disabled father, after a sheriff's deputy who was named as a beneficiary in the victim's will had the crime scene professionally cleaned. Dawson County Chief Deputy Brett Hoagland was a friend and neighbor of Wilbur Fisher, 80, who prosecutors allege was shot through the eye last October by his son, Todd, at their home near Glendive, about 200 miles (320 kilometers) northeast of Billings, Montana. Todd Fisher has pleaded not guilty to charges of deliberate homicide and tampering with evidence. During a Monday court hearing, Hoagland said he cleaned the crime scene as a favor to the family, despite being ordered by Sheriff Ross Canen to stay away from the house because of his ties to the Fishers, the Billings Gazette reported . Investigators testified they spent two days collecting evidence at the Fisher house prior to the cleaning and had cleared the crime scene. Canen said he no longer considered it a murder scene. But defense attorneys asserted Hoagland ordered the cleaning to benefit from Wilbur Fisher's death. Hoagland stands to move up the list of beneficiaries if Todd Fisher is convicted because the defendant would lose his status in his father's will. "Given Chief Deputy Hoagland's training and experience, the question remains as to what other possible motive he could have held to purposely destroy the crime scene," public defender Cynthia Thornton wrote in a court brief. Wilbur Fisher had lost both legs and the use of one arm and Hoagland would sometimes check in on him when he was alive. The cleaning service hired by Hoagland removed bloody carpet, linen and a mattress and scrubbed the walls in the room where Fisher's body was found. "It seemed like it needed to be done," Hoagland said. "When I got up there, it was already starting to smell and I was worried about insect infestation, a rodent problem in the house. I didn't want the whole place to be destroyed because of that." Montana District Judge Michael Hayworth did not immediately rule on the request to dismiss the case."

The entire story can be read at: 

https://www.forensicmag.com/news/2018/08/after-deputy-scrubs-crime-scene-defense-wants-charges-nixed?et_cid=6438539&et_rid=979655504&location=top&et_cid=6438539&et_rid=979655504&linkid=https%3a%2f%2fwww.forensicmag.com%2fnews%2f2018%2f08%2fafter-deputy-scrubs-crime-scene-defense-wants-charges-nixed%3fet_cid%3d6438539%26et_rid%3d%%subscriberid%%%26location%3dtop

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;

Question of the day: Can we trust forensic science? A perspective from New Zealand. (stuff.co)..."Using crime scene blood spatter to reconstruct what happened is the latest forensic technique to come under fire." (An excellent, interesting comprehensive piece from Stuff.co. HL.)

PASSAGE OF THE DAY: "So how does New Zealand shape up? "Assume nothing, check everything, believe nobody," says forensic scientist Anna Sandiford, of The Forensic Group. She gave evidence for the defence in the David Bain and Mark Lundy murder cases and is part of the trust investigating potential miscarriages of justice in New Zealand. It would be naive to think New Zealand was immune to flawed forensics, she says. "We've had some very difficult and very demonstrable miscarriages of justice, and I don't necessarily think they are exceptions ... There are three main contributors to miscarriages of justice – poor police investigation, poor defence and poor forensic science. If you've got one or more of those in any particular case, the chances of a miscarriage of justice increases."

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COMMENTARY: "Can we trust forensic science?," by Niki Macdonald  published by Stuff.co on August 29, 2018.

PHOTO CAPTION: "Niki Osborne has just returned from 18 months in California researching how unconscious bias can affect the reliability of forensic science.

PHOTO CAPTION: "Forensic science has been glamorised in countless television programmes, including in New Zealand."

PHOTO CAPTION: "Forensic scientist Anna Sandiford says forensic science in New Zealand is generally good, but that doesn't mean we're immune to bias."

PHOTO CAPTION: "Research shows that contextual information, such as witness statements and crime scene information, can influence the conclusions of forensic scientists."

PHOTO CAPTION: "ESR forensic programme manager Jill Vintiner believes her agency has enough safeguards in place to ensure its science is reliable."

PHOTO CAPTION: "ESR forensic scientist David Neale counts the number of waves on the sole of a Pro Line dive boot in the trial of Ewen Macdonald."

PHOTO CAPTION: "Texan pathologist Rodney Miller's novel and controversial technique to classify a stain as brain matter was pivotal to Mark Lundy's conviction for the murder of his wife and daughter. Another American expert recently dismissed the technique as "bullshit".

PHOTO CAPTION: "Mark Lundy continues to protest his innocence. A novel forensic science technique was instrumental in convicting him a second time."

PHOTO CAPTION: "George Gwaze celebrates with his daughter Maggie, after DNA evidence purporting to suggest he raped his niece was shown to be deeply flawed."

PHOTO CAPTION: "Ewen Macdonald was found not guilty of murdering his brother-in-law Scott Guy, after defence lawyer Greg King dismantled faulty ESR shoeprint evidence."

PHOTO CAPTION: "Footprint analysis proved unreliable in the trial of Ewen Macdonald for the murder of his brother-in-law, Scott Guy."

GIST: "Kiwi forensic researcher Niki Osborne keeps fielding calls from American media. "What about the bloodstain pattern analysis in that series The Staircase?" they ask. We're the first New Zealand media to call. You could read that two ways – maybe New Zealand is immune to the growing global disquiet about the reliability of forensic science. Of 350 wrongfully convicted Americans exonerated by DNA, 45 per cent had unvalidated or improper forensics as a contributing cause, according to The Innocence Project. Of those, 20 were sentenced to death. Or maybe we're only now catching up. Osborne has just returned from 18 months doing post-doctoral research at the University of California, investigating how human fallibility can bias forensic results. All that stuff on CSI about forensics incontrovertibly fingering the killer – reality isn't quite as clean-cut. Netflix's The Staircase raises questions about the subjectivity of bloodstain pattern analysis. A good illustration is a University College London study, in which five fingerprint analysts were given print pairs to re-examine and told that the FBI had mistakenly deemed them a match. The samples were, in fact, pairs the experts had themselves judged as matching five years earlier, but only one expert reached the same conclusion as their earlier self. Using crime scene blood spatter to reconstruct what happened is the latest forensic technique to come under fire. Osborne co-wrote a research paper led by Environmental Science and Research scientist Michael Taylor, which asked bloodstain pattern analysts to interpret crime scene spatter. Overall, 13 per cent of bloodstains were wrongly categorised. However, that changed depending on the case information given, such as witness reports, the position and injuries of the victim and any weapons found. When the case summary was deliberately misleading, the examiners' error rate rose to 20 per cent. And when the case information pointed towards the correct pattern, the error rate fell to 8 per cent. While Osborne says the error rates can't be extrapolated to all blood spatter analysis, the results were still concerning: "It's like whoa, what do we do about this?" However, she wasn't surprised that contextual case information influenced analysts' conclusions, because a similar bloodstain pattern on a wall could be caused by coughing, by someone being beaten, or by someone being shot. "The danger zones are when there's ambiguity in the data, when there's distortion, when there's information missing within the evidence itself – really smudged fingerprints, or complex bloodstain patterns ... When there is a rich contextual environment – at a crime scene, if you were analysing data with a whole lot of case information – if that context is coupled with the ambiguity, and the subjective methodology, that's when you're getting into the danger zone." Osborne's work follows on from the 2016 President's Council of Advisors on Science and Technology (PCAST) report, which investigated the scientific validity of seven forensic methods, such as fingerprint and shoeprint analysis, that rely on matching patterns. They rejected bitemarks and concluded microscopic hair analysis, shoeprints and firearms analysis all lacked robust studies proving their scientific reliability (see below). Behind those doubts are ruined lives. Santae Tribble spent 20 years in prison after an FBI expert found 13 crime scene hairs matched his "in all microscopic characteristics". DNA analysis later revealed none belonged to Tribble and one came from a dog. There have been concerns, too, about just how expert forensic experts really are. A New York Times investigation found you could give blood pattern evidence in court in the United States after taking a 40-hour course. So how does New Zealand shape up? "Assume nothing, check everything, believe nobody," says forensic scientist Anna Sandiford, of The Forensic Group. She gave evidence for the defence in the David Bain and Mark Lundy murder cases and is part of the trust investigating potential miscarriages of justice in New Zealand. It would be naive to think New Zealand was immune to flawed forensics, she says. "We've had some very difficult and very demonstrable miscarriages of justice, and I don't necessarily think they are exceptions ... There are three main contributors to miscarriages of justice – poor police investigation, poor defence and poor forensic science. If you've got one or more of those in any particular case, the chances of a miscarriage of justice increases." Forensic science in New Zealand is generally good, Sandiford says. There is bias, but in a small country you know people's strengths and weaknesses. She avoids using American experts because they have some of the worst – as well as the best – in the world.

And in spite of PCAST's fears about some forensic methods, she wouldn't rule anything out. Even the widely rubbished bitemarks could be useful, if someone had particularly distinctive teeth and the mark was in a rigid material, not skin. It's about transparency of process, and knowing what to question, Sandiford says. Take Europe's phantom serial killer, whose DNA turned up at six murders. It turned out the DNA belonged to a woman manufacturing cotton swabs used in crime scene examination kits. "Forensic science is good, but it can make mistakes. But if we don't know where to look, then we won't find them. And if we just accept everything at face value, we will just believe what we're told." The Australian and New Zealand Forensic Science Society said the PCAST report highlighted valid concerns about some forensic science, but was "overly simplistic" and specific to the United States. However, it failed to specify why those concerns would not apply here. ESR forensic programme manager Jill Vintiner can't point to any changes ESR has made following the PCAST report, but says New Zealand is different from the US, both in its methods and the way experts present evidence in court. And of the methods questioned, ESR uses only firearms analysis, shoeprints and analysis of DNA mixtures. ESR is technically independent, although its experts work almost exclusively for the police. Its service is internationally accredited and uses blind peer review to combat bias, Vintiner says. That means a second examiner reviews the same evidence, without knowing what the first scientist concluded. If they disagree, that's recorded on the case file for a defence lawyer to see. And American firearms examiners choose between just three conclusions – identification, inconclusive, and elimination. ESR experts use a 13-point scale, from conclusively supporting the prosecution case, to completely excluding the prosecution's scenario. However, Vintiner maintains shoeprints can be linked to an individual shoe – an assertion PCAST found was "unsupported by any meaningful evidence". Charged with a crime she didn't commit, Vintiner would be sceptical of bitemark analysis being used in any attempt to exonerate her. But she'd be confident in the use of footprints, tyre marks, fingerprints and shoeprints. Osborne has worked in labs around the world and says ESR is up there with the best in terms of culture and competence. Critically, its examiners are all scientists, which is not true in the United States. Like Sandiford, Osborne is wary of rejecting any methods outright. Shoeprints carry little weight if you're looking for a size 10 Reebok sneaker the Warehouse has just sold 10,000 of. But if it's a shoe that was never sold here, that evidence becomes more useful.  She advocates better protections to reduce the risk of contextual bias. For bloodstain pattern analysis, if the initial examiner attends the crime scene, you can't avoid the risk that what they see could influence how they interpret the blood pattern. But that bias could be countered by that evidence being re-examined by another scientist, who has no case information. Police, who undertake fingerprint analysis, would not respond to Stuff's questions about forensic reliability within the week given, saying they instead needed two months. FORENSIC SCIENCE IN COURT: "I think we are vulnerable," says Criminal Bar Association president Len Andersen. "I think it was a bit of a shock to discover that things like fingerprints are not as reliable as we thought."

Defence lawyers need more education about the weaknesses of forensic sciences, to ensure evidence does not go unchallenged in court, Andersen says. But it's hard to get a second opinion in New Zealand, given most forensic experts work for the police, via ESR. One of the biggest challenges is that judges, not scientists, decide whether forensic evidence should be admitted in court.  And judges rely on precedent, so even discredited science like bitemarks continues to be admitted, because it's been admitted before. In her address to the 2016 Forensic Science Society symposium, Supreme Court Justice Susan Glazebrook said "it is important not to accept without question a type of evidence just because it's always been accepted as reliable. Forensic scientists and the courts must keep abreast of changes in science and the development of new methods." Since 2011, about 100 New Zealand judges have attended a two-day Understanding Forensic Evidence programme to help them assess the strengths and weaknesses of forensic evidence. Deputy Solicitor-General Brendan Horsley says prosecutors are also expected to follow forensic developments and not present "shonky science". "We don't operate in a vacuum. We're aware of international developments in the law." However, he could not say if Crown Law had distributed the PCAST report, or if the report's findings prompted any specific advice to prosecutors. Sandiford thinks it's unfair to expect courts to decide the validity of complex medicine and science.  "It comes down to who you get making that decision. Should it be the luck of the draw like that? I think it's the whole point of scientific procedure, and publications and conferences, that this stuff should be thrashed out by the scientists and the medics, before anybody expects the courts to have to deal with it." Andersen believes the scientific evidence admitted in the trial of Mark Lundy – which had never before been used in a criminal case – overstepped the mark (see below). "They said it was for the jury to determine, and that is the problem – when the jury has to determine between two differing scientists ..." "Personally, I think the test allowed too much evidence in. The courts have to be a bit cautious in terms of stuff that is new, but on the other hand not rejecting scientific evidence. Things are changing all the time and it is a balance." In her 2016 speech, Justice Glazebrook laid the blame for much of the forensics controversy on unrealistic expectations of science. "The more the myth that science deals in certainties is dispelled, the less the risk of science being misunderstood or misapplied by fact finders." Sandiford agrees. "Courts and the media like scientists to be working in black and white and we don't work in black and white, we work in shades of grey. It's just a question of how grey it is." FORENSICS IN THE SPOTLIGHT: MARK LUNDY; Pathologist James Pang told Mark Lundy's first trial that, based on Lundy's wife's and daughter's stomach contents, the pair died roughly an hour after eating dinner, about 7pm. At his 2015 retrial, the Crown completely changed its mind, revising the time of death to between 2.30am and 5.30am. The key to Lundy's conviction was a stain on a polo shirt found in his car. Texan pathologist Rodney Miller, who had no forensic pathology experience, used a technique called immunohistochemistry to identify the stain as brain matter. The method, usually used to diagnose cancer, had never before been used in court. Nonetheless, Miller told North & South: "I can say with 100 per cent certainty that the tissue on Mr. Lundy's shirt was central nervous system tissue. Not 99.999-per cent certainty – 100 per cent." The 2016 PCAST report warns proclamations that any scientific result is "100 per cent certain" are "not scientifically defensible", because all scientific methods are fallible. In June, University of California forensic pathologist, neuropathologist and world-leading concussion expert Bennet Omalu said the IHC evidence was "bulls..." and would not have been admitted in the United States. DAVID DOUGHERTY: In 1993, David Dougherty was found guilty of raping and abducting an 11-year-old girl. DNA evidence was deemed inconclusive. Further testing in 1993 identified traces of another man's semen, but ESR scientist Peta Stringer said other DNA traces could not exclude Dougherty. After three years in prison, he was eventually exonerated by later, more sensitive DNA testing. GEORGE GWAZE: When traces of George Gwaze's sperm were found in the underpants of his 10-year-old niece, Charlene Makaza, it seemed like a slam-dunk for the prosecution, who alleged she died from sodomy and suffocation. But defence experts showed the traces of Gwaze's DNA were so small they could have been transferred from other clothes in a previous wash, and Makaza's injuries were consistent with her overwhelming HIV infection and systemic shock following massive diarrhoea-related fluid loss. EWEN MACDONALD: The case against Ewen Macdonald for murdering his brother-in-law Scott Guy appeared to fall apart when defence lawyer Greg King dismantled the only physical evidence linking Macdonald to the crime – an old dive boot. Under cross-examination, ESR forensic scientist David Neale stood in the witness box and counted the rows of wavy lines on the fore-foot of a Pro Line dive boot. That simple measurement – included in Neale's original working notes but not in his written evidence – showed the print could not have been made by the size 9 boots the police said the accused once owned.

PCAST REPORT FINDINGS DNA Analysis of Single-Source and Simple-Mixture Samples; Analysis of DNA samples from a single person, or from two individuals such as in a rape scenario, is generally objective and reliable. DNA analysis of complex mixtures; Trying to identify or exclude individuals by analysing samples containing DNA from several people is "inherently difficult" and studies using human examiners have produced conclusions that "varied wildly". New software such as ESR's STRmix has been proved reliable for a three-person mixture in which the person of interest makes up at least 20 per cent of the DNA sample. STRmix developer John Buckleton, who has been critical of the PCAST report, says the software reduces but does not eliminate subjectivity. Humans still need to decide how many people's DNA has contributed to the mix, and make small adjustments. However, they do that without case information to reduce any risk of bias. Bitemarks: With error rates of 10 per cent or higher, and questions about whether examiners can even reliably identify whether a bitemark is human, bitemarks are at the bottom of the forensic credibility scale.  "Bitemark analysis is far from meeting the scientific standards for foundational validity." Fingerprints: Matching crime scene fingerprints against possible suspects has been around for more than a century. While studies show the science is valid, it is not infallible and the error rate is higher than jurors might expect – an FBI study suggested a match could be incorrectly declared in 1 in 306 cases.

Studies have also shown the method is vulnerable to contextual bias. University College London psychologist Itiel Dror gave five fingerprint examiners print pairs to compare and told them that the FBI had mistakenly identified them as coming from the same person. The samples were, in fact, pairs the experts had themselves judged as matching five years earlier, but only one expert reached the same conclusion as their earlier self.  Firearms: Firearms analysis links ammunition to the gun that fired it by matching "tool marks" on spent shells. Only one study has empirically tested its effectiveness, and found the wrong gun was blamed in up to 1 in 46 cases. "Accordingly, the current evidence still falls short of the scientific criteria for foundational validity." Shoeprints: PCAST did not test whether a footprint's measurements, shape etc could reliably be linked to a particular size and make of shoe. However, they found no robust studies showing shoeprints could pinpoint an individual shoe, based on identifying marks on that shoe's sole. "Such associations are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid." Forensic Hair Analysis: Not to be confused with DNA analysis, forensic hair analysis matches hairs based on microscopic features. A 2002 FBI study found that, in 9 of 80 cases (11 per cent) where hairs had been judged to be microscopically indistinguishable, DNA analysis showed the hairs actually came from someone else."

The entire commentary can be read at: 
https://i.stuff.co.nz/science/106163245/can-we-trust-forensic-science

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;
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Flawed forensic science: Writer Brian Saady (The American Conservative) understands what happens when forensic evidence goes bad: Even though a whole cottage industry has been built around hair, blood, and bite-mark analyses--- the wrong people can end up in jail..."Unfortunately, far too many criminal convictions have been overturned due to false evidence, including what is often considered to be gospel—forensic evidence. Forensic science is a fundamental tool of the criminal justice system. However, a growing number of scandals have illustrated that not everyone in this field is qualified or immune to systemic bias. And as research continues to develop, some forms of forensic science have been proven to be, well, unreliable. Science as a law enforcement tool has become wildly popular over the last two decades—from its pervasiveness in higher education criminal justice programs to its persistent presence in media culture (see: NCIS and its spinoffs). But its credibility has nonetheless been an issue for many years."

PASSAGE OF THE DAY: "In May of this year, ProPublica and The New York Times Magazine extensively reviewed Joe Bryan’s 1986 murder conviction. A jury had found that Bryan murdered his wife, in large part due to testimony by a police investigator with a 40-hour training certificate in bloodstain-pattern analysis. Bryan was convicted despite there being an alibi, character witnesses, and physical evidence that suggested his innocence. In the aftermath, several experts with far more experience rebutted the bloodstain-pattern testimony and concluded that there should have been a retrial. With that said, this case isn’t a one-off. There are many police investigators who testify as bloodstain-pattern experts despite possessing only cursory training certificates. This is one of several examples of how faulty forensics have forced innocent people into prison. To be exact, false or misleading forensic science is responsible for 24 percent of the 2,258 exonerations that have occurred in this country since 1989, according to the National Registry of Exonerations."

STORY: "When Forensic Evidence Goes Bad A whole cottage industry has been built around hair, blood, and bite-mark analyses---but what happens when it puts the wrong people in jail?, by writer Brian Saady, published by The American Conservative on August 28, 2018. (Brian Saady is the author of the series Rackets, which chronicles the legalization of drugs and gambling, and the decriminalization of prostitution);

GIST: “(It is better) that ten guilty persons escape than that one innocent suffer.” It was the 18th-century English jurist Sir William Blackstone who first coined this theoretical basis of criminal justice, and it’s a principle with which a majority of Americans agree. Unfortunately, far too many criminal convictions have been overturned due to false evidence, including what is often considered to be gospel—forensic evidence. Forensic science is a fundamental tool of the criminal justice system. However, a growing number of scandals have illustrated that not everyone in this field is qualified or immune to systemic bias. And as research continues to develop, some forms of forensic science have been proven to be, well, unreliable. Science as a law enforcement tool has become wildly popular over the last two decades—from its pervasiveness in higher education criminal justice programs to its persistent presence in media culture (see: NCIS and its spinoffs). But its credibility has nonetheless been an issue for many years. For example, former FBI agent Frederic Whitehurst, who began working in the bureau’s crime lab in 1994, immediately noticed that many of the staffers were not qualified to conduct scientific analysis. He subsequently became a whistleblower and exposed that many FBI staffers had falsely testified about the level of their expertise and reliability of their evidence. Whitehurst’s dogged quest for upholding the integrity of the system led to his ouster in 1998. His efforts resulted in some internal reforms, but many of the systemic problems appear unresolved more than 20 years later. Meanwhile, in 2015, the Department of Justice, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers (NACDL) released an alarming report that found a 90 percent error rate in 500 FBI cases that the team reviewed. Remarkably, 26 out of 28 FBI hair analysis “experts” provided erroneous statements. Worst of all, several people were executed as a result of this evidence. Of the 35 cases that ended in a death penalty sentencing, 33 included erroneous statements from FBI staff. TV and movies have promoted another type of forensic science—bite mark analysis–whose validity numerous studies have nullified. Among them is one by the Obama administration’s Presidential Council of Advisors on Science and Technology in 2016. Popular culture also loves to promote bloodstain pattern analysis as being foolproof, but it’s anything but. Even experts with years of training at times disagree on the conclusions from this evidence. In May of this year, ProPublica and The New York Times Magazine extensively reviewed Joe Bryan’s 1986 murder conviction. A jury had found that Bryan murdered his wife, in large part due to testimony by a police investigator with a 40-hour training certificate in bloodstain-pattern analysis. Bryan was convicted despite there being an alibi, character witnesses, and physical evidence that suggested his innocence. In the aftermath, several experts with far more experience rebutted the bloodstain-pattern testimony and concluded that there should have been a retrial. With that said, this case isn’t a one-off. There are many police investigators who testify as bloodstain-pattern experts despite possessing only cursory training certificates. This is one of several examples of how faulty forensics have forced innocent people into prison. To be exact, false or misleading forensic science is responsible for 24 percent of the 2,258 exonerations that have occurred in this country since 1989, according to the National Registry of Exonerations.   As a proactive measure, the Obama administration formed the National Commission on Forensic Science in 2013 to improve standards. However, Trump Attorney General Jeff Sessions decided last year to discontinue the commission. Likewise, several scandals have exposed the poor standards and lack of independence in many crime labs where evidence is handled. Annie Dookhan, a chemist with the Massachusetts state drug lab, was found to have falsified evidence in over 21,000 cases. She was highly regarded by her supervisors because she processed over three times as many cases as other analysts. Her secret to success was simply not doing all of the necessary tests, or any at all. This scandal, like many others, demonstrated the institutional bias within many crime labs. Moreover, emails show that the conflict of interest went well beyond the implicit in Dookhan’s case. She was in close contact with prosecutors and viewed herself as part of the team. Whereas with defense attorneys, she was hesitant to even respond. This was not an isolated incident. Scandals in other cities vary by degrees of incompetence and deceit but the general theme more or less involves unqualified staff and/or biased analysts. An audit from two years ago of the crime lab in Austin, Texas, found that one tech with nearly 5,000 drug cases under his belt had “a lack of understanding of chemistry” and a 33 percent error rate. Regardless, he received a promotion due to limited staffing. One year earlier, it was revealed that the San Francisco crime lab had a criminologist who withheld DNA evidence linked to the likely killer in a 2010 double homicide case. That’s just one of multiple issues at that lab—two criminologists there failed national proficiency tests and a technician stole large amounts of cocaine back in 2010.   We need to heed the words of Sir William Blackstone because the evils of punishing the innocent are far worse than letting the guilty go free. Right now we seem to have a system that assumes the opposite—and unfortunately forensic evidence, regarded as unimpeachable by so many, is part of the problem."

The entire story can be read at: 
 https://www.theamericanconservative.com/articles/__trashed-6/

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;
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The https://www.theamericanconservative.com/articles/__trashed-6/https://www.theamericanconservative.com/articles/__trashed-6/Augustine OptiGIST: “(It is better) that ten guilty persons escape than that one innocent suffer.” It was the 18th-century English jurist Sir William Blackstone who first coined this theoretical basis of criminal justice, and it’s a principle with which a majority of Americans agree.

Junk forensic sciences: Grits for Breakfast identifies ten of them which are currently being challenged in Texas - and adds an honourable mention..."That's why I've said before, Texas may be ahead of other states on forensic reform, but don't gloat. Most other states are behind because they never left the starting gate, and despite some notable progress, most of our needed forensic reforms remain in front of us."

PASSAGE OF THE DAY: "Texas has lately again been getting deserved credit as a national leader on forensic reform. Our forensic commission is the best in the country, according to Innocence Project cofounder Peter Neufeld, and our first-of-its-kind junk science writ has made Texas one of only two states (California followed suit) with the means in place to challenge junk science in old convictions through habeas corpus writs."

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POST: "Top 10 junk forensic sciences challenged in Texas," published by Grits for Breakfast on July 25, 2018. (Thanks to Mike Bowers of CSIDDS (Forensics and law in focus)  for bringing this important post to our attention.)

GIST: "In the wake of the Forensic Science Commission declaring blood-spatter evidence in a 30-year old murder case "not accurate or scientifically supported," Texas has lately again been getting deserved credit as a national leader on forensic reform. Our forensic commission is the best in the country, according to Innocence Project cofounder Peter Neufeld, and our first-of-its-kind junk science writ has made Texas one of only two states (California followed suit) with the means in place to challenge junk science in old convictions through habeas corpus writs. The most commonly used forensics that were questioned by the National Academy of Sciences 2009 report, "Strengthening Forensic Science: A Path Forward" - like fingerprints or ballistics matching - have yet to face concerted challenges. But quite a few second-tier forensic methods have begun to wilt under scrutiny.

Here's Grits list of the top 10 forensics challenged in Texas to date.

1. Dog-scent lineups
2. Outdated arson standards
3. Hair comparisons
4. Bite marks
5. Blood spatter
6. DNA mixtures
7. Field tests for narcotics
8. Future dangerousness testimony
9. Shaken baby syndrome
10. Forensic hypnosis

Honorable mention: Estimating suspects' height based on forensic video analysis.

Of these, only dog-scent lineups and flawed arson testimony have been eliminated, with hair comparisons mostly displaced by mitochondrial DNA testing in 21st century cases. A prosecutor in Collin County recently stipulated that bite-mark testimony is junk, so the Court of Criminal Appeals will soon get a chance to declare it non-viable. The rest are under dispute but still in use. Moreover, Texas has yet to figure out how to respond when forensic errors impact large numbers of already-decided cases. That's why I've said before, Texas may be ahead of other states on forensic reform, but don't gloat. Most other states are behind because they never left the starting gate, and despite some notable progress, most of our needed forensic reforms remain in front of us."

The entire post can  be read at:

https://csidds.com/2018/07/26/forensics-regulating-junk-forensic-expertise-continues-in-texas-other-states-lagging-from-grits-for-breakfast/

 
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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;

The Charles Smith Blog Award: To Journalist Pamela Colloff and her New York Times/ProPublica publishing team, for her extraordinary journalism in exposing the unbelievably flawed blood splatter evidence - and other damning factors - which helped further taint the prosecution of Joe Bryan by the State of Texas. Her tenacious efforts should go a long way towards secure the exoneration of this wrongly convicted man.

THE CHARLES SMITH BLOG AWARD:   August 29, 2018: "Presented to journalist Pamela Colloff, and her New York Times/Pro Publica  publishing team team,  for her extraordinary work in exposing the unbelievably faulty blood splatter evidence and other damning factors which helped further taint the Joe Bryan (Texas) prosecution. Her tenacious efforts should go a long way towards secure the  exoneration of this wrongly convicted man. 

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ACHIEVEMENT:  This is the first time that a receipient will have been nominated for the Charles Smith Blog award  twice. As you will see below from the list of recipients, Pamela Colloff was previously nominated for her Texas Monthly stories which resulted in the freeing of Anthony Graves within 30 days of the appearance of her first story. Anthony Graves had been convicted and sentenced to die in 1994 for six horrific murders in the Central Texas town of Somerville. This time she has been nominated, along with her New York Times and ProPublica  team for her work  and independent investigation on the Joe Bryan case   which hopefully will help achieve an equally important result. As Waco Tribune Herald columnist Bill Wittaker noted: "The long road back to the Comanche County Courthouse for Bryan — the second of his two trials was held there after a courtroom technicality nixed the first on appeal — has been a tortuous one. As investigative journalist Pamela Colloff has reported in a series of gripping, detailed stories on the Bryan saga for The New York Times Magazine and ProPublica, Bryan’s conviction hinged on more than questionable blood-spatter testimony and Charlie Blue’s involvement in producing evidence (notably the controversial flashlight) with a private investigator and paying for a special prosecutor known for his “junkyard-dog” tenacity (to quote Lewellen’s 2015 obituary) as an attorney. Colloff’s coverage — the sort imperiled as newspapers dwindle in size and resources — highlights subtle but unsubstantiated insinuations about Bryan’s sexuality, possibly based on a Chippendales pinup calendar that Bryan reportedly explained was a gag gift. Homosexuality, real or imagined, might render a convenient motive, however flimsy, in a marriage free of discord or financial problems. And certainly local law enforcement in 1985 needed to show some success in their duty: Small-town Clifton had been rocked not only by Mickey Blue Bryan’s murder but, a few months earlier, the then-unsolved rape and murder of 17-year-old Judy Whitley. “I was floored by the testimony of Andy McMullen, the district attorney who prosecuted this case in 1986 and 1989,” Colloff said when I asked what struck her most about last week’s hearing. “He had not reviewed the record when he came to testify [Tuesday] and his testimony was quite evasive on a number of key points." Colloff's powerful, well-researched stories - including her original research into the vagaries of blood splatter 'expert' witnesses - has attracted considerable editorial comment, and drawn considerable public attention to the case. (Always an important factor when attempting to right a miscarriage of justice.)  Bravo to Ms. Colloff. I am pleased to present her with the Charles Smith Blog Award, Harold Levy:

Publisher; The Charles Smith Blog;

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ORIGIN OF THE CHARLES SMITH BLOG AWARD:  I launched the award in 2009 as a forum in which I could honour these individuals who help  expose and remedy miscarriages of justice caused anywhere in the world by flawed pathology, flawed pathologists, junk science, pseudo-experts or a combination of any of the above.

 UNUSUAL NATURE: This award is entirely virtual. There is no no ceremony; There is no prize; There is no certificate. It is a pure and unadulterated honour bestowed by myself as publisher in recognition of contributions  by others to this important facet of criminal justice.

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RECIPIENTS TO DATE;  

Kevin Morgan (AUSTRALIA): author of "Gun Alley: Murder, Lies and Failure of Justice, who single-handedly fought for and obtained the forensic materials which led to Colin Ross's pardon almost ninety years after he was executed.

Michael Hall (U.S.A.): For his excellent work in Texas Monthly exposing the miscarriages of justice that have occurred as a result of scent-lineups and the "experts" who conduct them, and Sun-Sentinel reporter Paula McMahon (U.S.A.) for her ground-breaking reporting over a nine year period which led to the freeing and exoneration of Anthony Caravella. 

Journalist Stewart Cockburn (AUSTRALIA) for his ground-breaking work in "The Advertiser" which exposed the miscarriage of justice suffered by Ted Splatt and triggered the Royal Commission which led to Splatt's exoneration. 

Australian scientist Tom Mann (AUSTRALIA) for his sterling efforts to publicize the injustice perpetrated on Ted Splatt in the courts including the publication of "Flawed Forensics: The Ted Splatt case and Stewart Cockburn," a monumental book which demonstrates the tragic consequences which can unfold when science gets twisted out of proportion in the courts and those entrusted with the task of protecting our criminal justice system abdicate their responsibilities.

New Yorker staff writer David Grann (U.S.A.)for his awesome exposee of the faulty arson "science" that resulted in the wrongful conviction and execution in Texas of Cameron Todd Willingham. 

Pamela Colloff (U.S.A) for her Texas Monthly stories which resulted in the freeing of Anthony Graves within 30 days of the appearance of her first story. Anthony Graves was convicted and sentenced to die in 1994 for six horrific murders in the Central Texas town of Somerville. 

Spencer Hsu (U.S.A) for his  revelations in the Washington Post  that for years, the U.S. Department of Justice has known that flawed forensic work by FBI experts may have led to the convictions of innocent people, but prosecutors rarely told defendants or their attorneys. Hsu discovered that Justice Department officials began reviewing cases after defense attorneys pointed out problems with evidence coming out of FBI labs. But the review was limited. "As a result," Hsu wrote, "hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects."

Robert Moles and Bibi Sangha. (AUSTRALIA)  for their monumental campaign to persuade South Australia to establish a statutory right of appeal - and the impact this will have on remedying miscarriages of justice caused by flawed forensic science. 

Journalist Mike White; NEW ZEALAND  for his investigation of the Mark Lundy case - and his exposure to the public of  the many factors which made clear that Lundy could not have commited the terrible crimes. Wikipedia informs us that:  "In 2009, North and South magazine published the results of an investigation into the case by Mike White titled  "The Lundy murders: What the jury didn't hear. 

Dr. Waney Squier (UK) and Meryl and Susan Goldsmith (USA) respectively for their courage and fearlessness in challenging the validity of the 'shaken baby syndrome' - in spite of the threat posed to their professional status, their reputations and their ability to perform and display their work by the Syndrome's zealous proponents in the medical profession and prosecutor's offices." 

Prof. Jane Ireland: University of Central Lancashire: U.K. "Psychologist probed over study that hit national headlines; Prof Jane Ireland, from the University of Central Lancashire; A psychologist who poured doubt on the validity of family court decisions has been dragged before a fitness to practice hearing.".........The net result was that the research concluded that around 65 per cent of expert reports in the study were of either 'poor' or 'very poor' quality. Professor Ireland told Channel 4 News: "I think we were very concerned and perturbed by some of the reports that we read, not just in terms of qualification but also the quality of the reports that we read." As publisher of the Charles Smith Blog I noted that "the timing of the hearing is no doubt coincidental - but I couldn't help but think about the recent attack by Britain's medical profession on Dr. Waney Squier, for her counter-establishment - read 'unpopular' - research and findings on 'shaken baby syndrome.'"

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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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog; 

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Blood splatter Series: Joe Bryan: Texas: (Part 3): Reporter Pamela Colloff: (ProPublica): 'Joe Bryan's Attorneys Ask For New Trial, Say Murder Conviction Built On Faulty Forensics.'..."This week's evidentiary hearing was the culmination of years of efforts to have Bryan's case re-examined, and the legal proceedings unfolded with all the intrigue and plot twists of a high-profile murder trial. One of the country's most prominent bloodstain pattern analysts would discredit a former student who was a key witness for the prosecution. The former district attorney who prosecuted Bryan not once but twice would claim that he could not remember basic facts of the case. And four women would give powerful testimony that raised questions about whether a now-deceased former Clifton police officer could be the real killer. The potential of the hearing to serve as a referendum on the use of flawed forensic testimony in the courtroom also drew Michael Morton, who has become a powerful symbol of Texas's efforts to reform its criminal justice system. Morton spent nearly 25 years in prison for the murder of his wife, Christine, before being exonerated in 2011 when DNA analysis implicated the actual killer. "Joe Bryan's situation dredges up old memories for me, because I can't help seeing myself there, in his shoes," Morton said. "We were both convicted because of misapplied science and character assassination."

 

PASSAGE OF THE DAY: "Bryan's case commanded the attention of the forensics community when the Texas Forensic Science Commission — which investigates complaints about the misuse of forensic testimony and evidence in criminal cases — announced that the blood-spatter analysis used to convict him was "not accurate or scientifically supported." Spurred by the Bryan case, the commission had already moved to end the practice of allowing law enforcement officers with minimal training in bloodstain-pattern interpretation to testify in Texas, stipulating that such analysis must be performed by an accredited organization if it is to be allowed in court. The decision is expected to prompt other states to follow suit, as the influential commission's reforms often do."

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STORY: "Joe Bryan's Attorneys Ask For New Trial, Say Murder Conviction Built On Faulty Forensics," by reporter Pamela Colloff, published by The New York Times/ProPublica on August 24, 2018.

SUB-HEADING: During a three-day hearing in Texas, a succession of witnesses criticized the bloodstain-pattern analysis and exposed other flaws in the prosecution of a former high school principal convicted of the 1985 murder of his wife.

 GIST: In the tiny central Texas town of Comanche, in the same courtroom where he was convicted nearly three decades ago of murdering his wife, Joe Bryan and his attorneys finally got the opportunity this week to make their case that the 77-year-old former high school principal deserves a new trial. Over three days, they presented a succession of witnesses who testified that the forensic evidence used to convict Bryan of his wife's 1985 murder was faulty, and that new evidence pointed to a possible alternative suspect in the killing. The hearing — which held out the tantalizing promise of winning Bryan a fresh chance to prove his innocence — drew dozens of spectators who packed the hard-wooden benches inside the Comanche County courthouse. Lining the two front rows were Bryan's family members, who wore matching red t-shirts emblazoned with the words "Justice For Joe." Behind them, Clifton residents who had not seen Bryan since the 1980s crowded in beside law students, reporters, and top attorneys with the Innocence Project of Texas, who were on hand to assist with Bryan's case. Penny Blue, the sister of Joe's late wife, Mickey, sat by herself in the back of the courtroom. Two retired prison employees, former Texas Department of Criminal Justice Lieutenant Frank AuBuchon and ex-prison chaplain Carroll Pickett, were also in attendance. AuBuchon had driven all the way from Missouri to show his support. Bryan had worked for both men at the Walls Unit in Huntsville, Texas, in the late 1980s and early 90s, and they had come to believe in his innocence. "My conscience told me to be here," AuBuchon said. Bryan sat just a few feet away, behind the defense table, in a black-and-white striped jail jumpsuit. He was barred from speaking to anyone other than his lawyers, but every so often, he surveyed the courtroom for familiar faces, or glanced over his shoulder at his older brother, James, and smiled. In May, Bryan's case was the subject of a two-part investigation by ProPublica and The New York Times Magazine, which questioned the accuracy of the bloodstain-pattern analysis used to convict him and highlighted the scant training of some analysts, who nevertheless testify in criminal cases as experts. At the time of Bryan's arrest, he had no criminal record. He and his wife, Mickey, a fourth-grade teacher at Clifton Elementary School, were both beloved members of their community, and by all accounts, had a happy marriage. In the days surrounding Mickey's murder, Bryan was attending a principals' convention in Austin, 120 miles from Clifton, where the crime occurred. He has always maintained that he was in Austin, asleep in his hotel room, when Mickey was shot in their bed. Last month, Bryan's case commanded the attention of the forensics community when the Texas Forensic Science Commission — which investigates complaints about the misuse of forensic testimony and evidence in criminal cases — announced that the blood-spatter analysis used to convict him was "not accurate or scientifically supported." Spurred by the Bryan case, the commission had already moved to end the practice of allowing law enforcement officers with minimal training in bloodstain-pattern interpretation to testify in Texas, stipulating that such analysis must be performed by an accredited organization if it is to be allowed in court. The decision is expected to prompt other states to follow suit, as the influential commission's reforms often do. This week's evidentiary hearing was the culmination of years of efforts to have Bryan's case re-examined, and the legal proceedings unfolded with all the intrigue and plot twists of a high-profile murder trial. One of the country's most prominent bloodstain pattern analysts would discredit a former student who was a key witness for the prosecution. The former district attorney who prosecuted Bryan not once but twice would claim that he could not remember basic facts of the case. And four women would give powerful testimony that raised questions about whether a now-deceased former Clifton police officer could be the real killer. The potential of the hearing to serve as a referendum on the use of flawed forensic testimony in the courtroom also drew Michael Morton, who has become a powerful symbol of Texas's efforts to reform its criminal justice system. Morton spent nearly 25 years in prison for the murder of his wife, Christine, before being exonerated in 2011 when DNA analysis implicated the actual killer. "Joe Bryan's situation dredges up old memories for me, because I can't help seeing myself there, in his shoes," Morton said. "We were both convicted because of misapplied science and character assassination." Morton's presence was a reminder that the Bryan case — which is still being investigated by the Texas Forensic Science Commission — has far-reaching implications. The hearing would prove to be not only about the corrosive power of junk science in the courtroom, but about the resistance of a justice system to reconsider criminal convictions, even one in which a man has already served more than 30 years in prison."

The entire story can be read at: 

https://www.propublica.org/article/joe-bryans-attorneys-ask-for-new-trial-say-murder-conviction-built-on-faulty-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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. 
Harold Levy: Publisher; The Charles Smith Blog;
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