PASSAGE ONE OF THE DAY: "Last year, reporter Pamela Coloff published a piece in ProPublica and the New York Times Magazine about Joe Bryan, a Texas man convicted partly because of blood-spatter testimony given by a detective. That officer had all of 40 hours of training in blood-spatter analysis, a field of forensics that, even when done properly, has been questioned by the NAS and other authoritative groups. The detective himself has since admitted that his testimony was mistaken, and the Texas Forensic Science Commission determined that his testimony in Bryan’s trial was “not accurate or scientifically supported.” Yet none of this was enough to overturn Bryan’s guilty verdict."
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PASSAGE TWO OF THE DAY: "For all of the recent talk about the death of truth and alternative facts, the criminal justice system has been creating its own alternate reality for decades — one in which sex offenders are highly recidivist, quack experts are trained researchers, bite mark matching is steeped in science and blood-spatter analysis is as foolproof as a cholesterol check. Once the U.S. Supreme Court or a state supreme court cites a claim as truth, lower courts and their litigants are obligated to treat it as gospel. Subsequent jurisprudence then relies on and sometimes even turns on these “truths.” At that point, the courts are rarely interested in whether they’re actually . . . true."
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COMMENTARY: "The criminal justice system also has an 'alternative facts' problem,: by Radley Balko, published by The Washington Post on January 31, 2019. (
GIST "It has been nearly 10 years since the National Academy of Sciences sounded the alarm
about the shortcomings of forensics. Since then, there have been
countless follow-up studies, state and national commissions, reports,
panels and — to underscore the conclusions those entities reached — a consistent wave of crime lab scandals all over the country. In the past year, Vox, the Nation and NBC News
have published lengthy treatises on the basic problem: Many of the
forensic disciplines used in courtrooms across the United States are
unreliable and entirely subjective, using methods unsupported by
scientific research. Forensic malfeasance has even crept into the plots of TV police and legal dramas. The
crisis in expert testimony seems to be resonating just about everywhere
except for the one place it’s most crucial: in courtrooms. But the
problem is bigger than forensics and junk science. It isn’t that the
courts have been duped by phony expertise or quackery; it’s that the
criminal justice system has evolved to disregard its own mistakes.
Courts rarely correct themselves, even when they get something
fundamentally wrong. And because they make their own rules, there’s no
one to tell them to get it right. Last year, reporter Pamela Coloff published a piece in ProPublica and the New York Times Magazine about Joe Bryan,
a Texas man convicted partly because of blood-spatter testimony given
by a detective. That officer had all of 40 hours of training in
blood-spatter analysis, a field of forensics that, even when done
properly, has been questioned by the NAS and other authoritative groups.
The detective himself has since admitted that his testimony was
mistaken, and the Texas Forensic Science Commission determined that his
testimony in Bryan’s trial was “not accurate or scientifically
supported.” Yet none of this was enough to overturn Bryan’s guilty
verdict. In December, a Texas judge denied his request for a new trial. In 2017, some reform advocates hoped the Supreme Court would fix a long-standing error when it considered a case about barring sex offenders from using social media. In the majority opinion in McKune v. Lile,
Justice Anthony M. Kennedy repeated a claim from a pop psychology
magazine that the recidivism rate for sex offenders was “frighteningly
high,” as high as 80 percent. It’s nowhere near that high. In fact,
people convicted of sex crimes reoffend at a lower rate than any other
class of criminals. Kennedy’s claim has been repeated by more than 90
courts across the country in opinions upholding various types of
post-incarceration punishment for sex offenders, including indefinite
detention and living restrictions that force them sleep under bridges.
The court has had a number of chances to correct Kennedy’s mistake. It
hasn’t. In the 2017 case, the court struck down the social media ban but
left Kennedy’s error intact. The majority opinion’s author? Kennedy. I’ve written
about similar mistakes of fact the court has made over the years. The
Supreme Court has created an alternate universe in which prosecutors are regularly disciplined by bar associations, police officers are regularly disciplined for violating constitutional rights, and police officers are inundated with roadside ambushes and “split-second decisions” about whether to use force. Despite ample evidence and decades of research showing that eyewitness testimony is inherently flawed, often manipulated by law enforcement, the leading cause of wrongful convictions and could be made much more reliable with some easy fixes, as recently as 2012,
the Supreme Court continued to uphold that “the safeguards generally
applicable in criminal trials” are sufficient to prevent
misidentification. In 2015, the court refused to consider a challenge to a Louisiana law that prohibited defense lawyers from even mentioning research on problems with eyewitness testimony. All of this provides some important context for a regrettable ruling late last year in the case of Eddie Lee Howard,
a Mississippi man on death row at the state penitentiary in Parchman.
Howard was convicted in 1994, primarily because of testimony from Steven
Hayne and Michael West. Hayne is a controversial longtime medical
examiner who was described a few years ago as “discredited” by the U.S.
Court of Appeals for the Fifth Circuit. (Tellingly, that description
came after decades in which that court and others had persistently
rejected challenges to Hayne’s credibility. Worse, the opinion itself
actually denied relief to the convicted man
because, according to the opinion, the man had waited too long to file
his challenge to the same expert the same court had been protecting for
years.) But it was West who did most of the
heavy lifting to put Howard on death row. West is a notoriously
buffoonish “expert” witness, a self-trained bite mark analyst and
forensic jack-of-all-trades. He has been roundly denounced by just about
everyone who has crossed paths with him, including other bite mark
analysts, the prosecutors who once used him and Mississippi Attorney
General Jim Hood. He has been expelled from one forensics organization
and was forced to resign from at least two others. West is considered a
pariah even within the field of bite mark analysis, which itself has been roundly criticized by every scientific body to examine it. In the early 2000s, one defense attorney even tricked West into matching the teeth of the attorney’s own investigator to the bite marks from an unrelated crime scene. In
the Howard case, like many others that Hayne and West worked on
together, Hayne claimed to have found bite marks on the body of the
victim (who in this case had been exhumed). He then called in West, who
“matched” those marks to Howard. From
the time of Howard’s conviction in 1994 until about the mid-2000s,
Howard and other Mississippi defendants repeatedly challenged West’s
credibility in their appeals. Over and over, they lost. Over and over,
state courts up to and including the Mississippi Supreme Court ruled
that as long as the defendant’s attorney had the opportunity to
cross-examine West at trial, there was no harm in allowing him to
testify for the state. But in 2007, two men
convicted because of testimony from Hayne and West — Kennedy Brewer and
Levon Brooks — were exonerated by DNA testing, which pointed to the real
killer in both cases. That man, who had been exonerated by West in the
Brooks case, later confessed to committing both crimes on his own. He
also said that he never bit the victims. Prosecutors dropped the charges
against Brooks and Brewer and released them from prison. In
2013, Howard’s lawyers were permitted to perform DNA tests on the crime
science evidence. Tests did find male DNA on the blade of the murder
weapon, but it wasn’t Howard’s. Finally, in 2015, the Mississippi
Supreme Court granted Howard a hearing to assess the validity of the
scientific evidence against him. That multipart hearing took place in
2016 and 2017. In a deposition for the hearing,
West belched, cracked jokes and swore profusely. He called his critics
childish names, reprimanded Howard’s attorneys and concocted
hypotheticals that involved him killing those attorneys. Mississippi’s
attorney general had long since conceded that West wasn’t a credible
witness. Yet Jim Hood’s office has continued to defend convictions for
which West was a crucial witness. And here, the state’s star witness in a
death penalty case wasn’t just lacking in credibility; he behaved like a
petulant adolescent. Yet none of this was enough to win Howard a new trial. In a ruling issued in October,
Circuit Court Judge Lee Howard (the judge and defendant have
confusingly similar names) argued that Eddie Lee Howard’s attorneys had
already challenged West’s credibility during his two trials, in his
direct appeals and in more than one of his post-conviction petitions.
Every time, he had lost. Every time, a Mississippi court had ruled that
West was either a perfectly credible witness or not so tainted that he
shouldn’t have been permitted to testify. So, the judge ruled, Eddie Lee
Howard was procedurally barred from raising these issues again.
Moreover, Judge Howard pointed out that under the controlling case law,
the Mississippi Supreme Court had already ruled that (a) bite mark
evidence was admissible in the state, and (b) West in particular was
permitted to testify as an expert. There are a
couple of problems with this argument. First, that the Mississippi
Supreme Court has said that bite mark evidence is admissible in the
state’s courts does not mean that it is admissible in every case, no
matter how shabbily it is presented. Similarly, the fact that the court
has allowed West as an expert doesn’t mean his testimony is therefore
always credible and never to be challenged. Second, the same state
supreme court that Judge Howard cites is the court that ordered Eddie
Lee Howard’s evidentiary hearing. There are two possible outcomes from
an evidentiary hearing of this type: The court either rules that the
evidence is scientifically valid or that it is not. If the Mississippi
Supreme Court didn’t think tossing West’s testimony was a legally
permissible outcome, it wouldn’t have ordered the evidentiary hearing in
the first place. But there’s one more thing
about Judge Howard’s ruling that really hammers home just how blind the
courts can be to their own mistakes. It was Judge Howard who in 1995
sentenced the innocent Kennedy Brewer to death, adding, “May God have
mercy on your soul.” It gets worse: Twelve years later, the same Judge
Howard declared Brewer innocent, and released him from prison. And a
short time later, the same Judge Howard performed the same ritual for
Levon Brooks. Judge
Howard, of all people, should know that West is not a reliable expert.
Yet despite being given an opportunity to afford some justice to a third
man convicted because of West, Judge Howard opted instead to uphold the
conviction. In doing so, he noted that he was bound by prior state
supreme court decisions. What doesn’t matter — what he didn’t even
consider — is that those decisions were provably, definitively wrong.
And yet because the legal system can’t seem to correct its mistakes,
Judge Howard relied on the three cases that, incredibly, still govern
the admissibility of bite mark evidence in Mississippi: a ruling from
Eddie Lee Howard’s previous appeals, Kennedy Brewer v. State of Mississippi and Levon Brooks v. State of Mississippi. For
all of the recent talk about the death of truth and alternative facts,
the criminal justice system has been creating its own alternate reality
for decades — one in which sex offenders are highly recidivist, quack
experts are trained researchers, bite mark matching is steeped in
science and blood-spatter analysis is as foolproof as a cholesterol
check. Once the U.S. Supreme Court or a state supreme court cites a
claim as truth, lower courts and their litigants are obligated to treat
it as gospel. Subsequent jurisprudence then relies on and sometimes even
turns on these “truths.” At that point, the courts are rarely
interested in whether they’re actually . . . true."
The entire commentary can be read at:
https://www.washingtonpost.com/opinions/2019/01/31/criminal-justice-system-also-has-an-alternative-facts-problem/?utm_term=.e13ca42a1b6a 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/
