QUOTE OF THE DAY: "There is a problem with junk science in forensics. We’ve seen numerous instances of technologies used in court getting debunked,” Eidelman said. “Public access to information about that technology and the underlying principles has been central in making those challenges successful.”
Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project.
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STORY: "Breathalyzer Giant Accused of Fraud Won’t Come Clean About Booze Tests," by reporter Blake Montgomery, published by The Daily Beast on February 3, 2020. (Blake Montgomery is a journalist and fiction writer living in San Francisco. He reports on technology and Silicon Valley for The Daily Beast, and he previously covered breaking news for BuzzFeed News and education technology for EdSurge.)
SUB-HEADING: "Legal Limit: Cops are beefing with a major supplier of drunk-driving test machines they use to make cases. Turns out the company has a long history of keeping source code secret."
GIST: (This is a lengthy story that is well worth the read at the link below. Here is a taste): "A major breathalyzer manufacturer is under criminal investigation for possible forgery. Police forces nationwide have been using the same company’s machines to turn alleged drink-drivers into convicted ones—seizing licenses, imposing fines, and, in some cases, imprisoning people. Defendants have been asking judges to look under the hood of the machine that tests them, only for the breathalyzer maker to refuse to play ball. These aren’t dystopian hypotheticals, but the reality surrounding a major supplier of breath-alcohol testing machines to cops across America. Police departments in 11 states use the Datamaster DMT, a breathalyzer the size of a printer. Cops ranging from the Los Angeles County Sheriff’s Department to Vermont State Police have relied on it to test suspected drink-drivers at precinct houses, where—unlike the tests done on the side of the road—results are a major factor in criminal cases. At least they did. In January, Michigan State Police announced it had suspended its contract with the maker of the Datamaster DMT, Intoximeters, and even mounted a criminal probe into possible fraud by the company in calibrating 203 devices in the state, the Detroit News reported. The cops alleged that two members of the company’s maintenance staff, responsible for the state’s Datamaster DMTs, falsified records on multiple occasions. Police were investigating whether the technicians forged public documents saying they had performed routine maintenance when they had not, thus allowing the machines’ accuracy to erode. But Intoximeters’ alleged obfuscation is not confined to Michigan. In fact, the company has resisted at least three Minnesota court mandates that police furnish the source code of its breathalyzer software to defendants, court records and interviews show. Instead of cooperating, Intoximeters has submitted documents saying it is open to police doing so—contingent on various conditions—and then opposed requests to actually follow through. The code underpinning the Datamaster DMT and other breath testing machines has remained obscure to advocates and defense lawyers for many years, and as a recent New York Times investigation reported, the reliability of breathalyzer devices in general is suspect. But even when courts have compelled cops to reveal the code, the case of Intoximeters shows how they have nimbly evaded disclosure—and risked sabotaging their police clients.............................. But critics say the legal tactics employed by the companies are just as disturbing as the machines themselves. “The hallmark of good science is transparency, which is not what Intoximeters is doing,” said Charles Ramsay, an attorney representing defendants in the Minnesota cases. “They safeguard their software more tightly than Microsoft. It’s not because it’s something they need to do to protect their business. They do it to prevent us from discovering the fatal flaws in the software.” The company does not see it that way.....................................................In 2007, a New Jersey court ruled that a defendant’s experts could analyze a breathalyzer made by Dräger, an Intoximeters competitor. The analysts described it as riddled with “thousands of programming errors,” but the court deemed the machine “generally scientifically reliable,” even if it also had “shortcomings,” according to the Times. The company claimed it quickly fixed the problems. “There is a problem with junk science in forensics. We’ve seen numerous instances of technologies used in court getting debunked,” Eidelman said. “Public access to information about that technology and the underlying principles has been central in making those challenges successful.”
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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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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