QUOTE OF THE DAY: "Jason knew that his own birth defects were likely not genetic, but still felt a profound wave of relief when their daughter, Serena, was born with ten fingers and ten toes. He briefly mulled reopening his case when Diclegis, the updated version of Bendectin, was re-approved. But he thought better of it when he remembered how hard his mother had already fought only to get smacked down. “Like that’s kind of the universe telling you this isn’t the right way to go.” I asked if the eventual outcome felt like a righteous victory followed by stinging defeat. Jason said no. “It feels like we pulled victory out of the jaws of defeat, but actually it was defeat out of the jaws of victory.” As for as the legal standard, Jason recognized what Daubert stood for: “Good science should be all that gets into the courts."
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PASSAGE ONE OF THE DAY: "Risinger watched the testimony, and he did not see how the Starzecpyzels could lose. Yet, they lost. Precisely because handwriting identification was not considered “scientific,” the judge ruled that Daubert did not apply. Both women were convicted; Eileen was sentenced to more than two years in prison and Roberta to three-and-a-half. In 1999, defense attorneys challenged fingerprint identification — another forensic science that had not evolved out of rigorous testing of experimental hypothesis and did not appear to meet the criteria set out in Daubert. Again, the challenge failed. But these types of rulings helped expose a lack of objective standards among forensic experts who matched microscopic patterns from bullets and spent cartridges, hair samples, dental impressions, footprints, tire tracks, and blood spatter. Many of these fields emerged out of law enforcement. Practitioners had no scientific basis for their claims, and lacked validation, error rates, and reliability testing. In a 2008 Hastings Law Journal paper, one legal scholar compared these fields to modern-day phrenology, referring to the discredited practice of diagnosing patients based on the bumps found on the surface of their skulls: “The science of the day was more than adequate to demonstrate that phrenology had no basis; but that science was widely ignored.” Wrongful convictions only served to underscore these problems."
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PASSAGE TWO OF THE DAY: "In 2000, Risinger published an article that reviewed hundreds of cases, and found that judges overwhelmingly favored the prosecution. Risinger suspects the outcome was consistent with the view that the Supreme Court’s 1993 ruling in Daubert was first and foremost an effort to cut down on corporate liability and rein in the abuses of plaintiff’s lawyers in civil cases. “They couldn’t explicitly say, ‘This doesn’t apply to prosecution-proffered expertise in criminal cases,’” he said. “They couldn’t say that with a straight face, but functionally, that is the way it was taken by courts thereafter. Nobody ever said it explicitly. It’s just the way it worked out on the ground.” Judge Kozinski, who ruled against the Dauberts in 1991 and 1995, came to recognize these asymmetrical applications of the Daubert standard. Kozinski was aware that judges held expert testimony in criminal cases to a lesser standard than in civil litigation. Some of this may be attributable to the pro-prosecution biases of judges, especially in states where judges hold an elected position and want to appear tough on crime to voters. It also comes down to resources. Criminal defense lawyers are not ordinarily paid well enough to have the time or resources to find competent researchers to reach higher quality decisions."
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PUBLISHER'S NOTE: Legal scholars note from time to time that recent decisions in Canadian law are influenced by their American counterparts. One U.S. Supreme Court decision is very much a case in point: "Daubert v. Merrell Dow Pharmaceuticals, Inc. In a fascinating article in 'Undark' author Peter Andrey Smith examines resistance the resistance by some criminal court judges to bringing scientific accuracy into the courtroom. (Undark describes itself as a non-profit, editorially independent digital magazine exploring the intersection of science and society which is published with funding from the John S. and James L. Knight Foundation. Peter Andrey Smith is a freelance reporter whose stories have been featured in Outside magazine, The New York Times, and WNYC Radiolab.) This lengthy article is headed 'For Science in the Courts, the Daubert Name Looms Large' and describes how "decades ago, two parents sued a drug company over their newborn’s deformity — and changed courtroom science forever." The personal struggle of the parents to defeat a corporate giant in America's highest court, is a story in itself. This lengthy article is well worth a read in its entirety. For now, here's a taste:
Harold Levy: Publisher: The Charles Smith Blog.
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STORY: "Where science enters the courtroom, the Daubert name looms," by freelance reporter Peter Andrey Smith, published by 'Undark' on February 17, 2020. (Undark describes itself as a non-profit, editorially independent digital magazine exploring the intersection of science and society which is published with funding from the John S. and James L. Knight Foundation. Peter Andrey Smith is a freelance reporter whose stories have been featured in Outside magazine, The New York Times, and WNYC Radiolab.)
SUB-HEADING: Decades ago, two parents sued a drug company over their newborn’s deformity — and changed courtroom science forever,"
GIST: "The Daubert standard concerns more than just corporate defendants: It opened the possibility of challenging any scientific expert. Fried, who argued on behalf of Merrell Dow and is now a professor at Harvard Law School, said the rules of evidence apply to all federal cases, not just civil litigation. “We’ve moved towards a more rational system of justice,” he said, “a system that’s based on reason rather than on how many paid liars you can line up.” But when the first significant Daubert challenge in criminal courts came up in 1995, it offered a revealing window into how the standard would be unevenly applied. At the time, federal prosecutors in New York accused Roberta and Eileen Starzecpyzel of stealing artwork, selling it to Sotheby’s and Christie’s, and forging the owner’s signature — Ethel Brownstone, Roberta’s aunt — on two documents. The government presented a forensic document examiner who claimed the signature was forged. The Starzecpyzels’ attorney mounted a Daubert challenge. Risinger, the retired Seton Hall law professor, and several colleagues, maintained that there were no credible studies to support the examiner’s methods. As the trial judge explained, “forensic document examination, which clothes itself with the trappings of science, does not rest on carefully articulated postulates, does not employ rigorous methodology, and has not convincingly documented the accuracy of its determinations.” Risinger watched the testimony, and he did not see how the Starzecpyzels could lose. Yet, they lost. Precisely because handwriting identification was not considered “scientific,” the judge ruled that Daubert did not apply. Both women were convicted; Eileen was sentenced to more than two years in prison and Roberta to three-and-a-half. In 1999, defense attorneys challenged fingerprint identification — another forensic science that had not evolved out of rigorous testing of experimental hypothesis and did not appear to meet the criteria set out in Daubert. Again, the challenge failed. But these types of rulings helped expose a lack of objective standards among forensic experts who matched microscopic patterns from bullets and spent cartridges, hair samples, dental impressions, footprints, tire tracks, and blood spatter. Many of these fields emerged out of law enforcement. Practitioners had no scientific basis for their claims, and lacked validation, error rates, and reliability testing. In a 2008 Hastings Law Journal paper, one legal scholar compared these fields to modern-day phrenology, referring to the discredited practice of diagnosing patients based on the bumps found on the surface of their skulls: “The science of the day was more than adequate to demonstrate that phrenology had no basis; but that science was widely ignored.” Wrongful convictions only served to underscore these problems. Experts compared DNA from a suspect and a crime scene, and this irrefutable evidence began to exonerate criminal defendants. In one review published in the journal Science, DNA evidence revealed that flawed forensic techniques played into 63 percent of cases where innocent people had erroneously been found guilty. Daubert was supposed to offer defendants a means to challenge junk science. But judges rarely sided with the defense. In 2000, Risinger published an article that reviewed hundreds of cases, and found that judges overwhelmingly favored the prosecution. Risinger suspects the outcome was consistent with the view that the Supreme Court’s 1993 ruling in Daubert was first and foremost an effort to cut down on corporate liability and rein in the abuses of plaintiff’s lawyers in civil cases. “They couldn’t explicitly say, ‘This doesn’t apply to prosecution-proffered expertise in criminal cases,’” he said. “They couldn’t say that with a straight face, but functionally, that is the way it was taken by courts thereafter. Nobody ever said it explicitly. It’s just the way it worked out on the ground.” Judge Kozinski, who ruled against the Dauberts in 1991 and 1995, came to recognize these asymmetrical applications of the Daubert standard. Kozinski was aware that judges held expert testimony in criminal cases to a lesser standard than in civil litigation. Some of this may be attributable to the pro-prosecution biases of judges, especially in states where judges hold an elected position and want to appear tough on crime to voters. It also comes down to resources. Criminal defense lawyers are not ordinarily paid well enough to have the time or resources to find competent researchers to reach higher quality decisions."
The entire story can be read at:
https://undark.org/2020/02/17/daubert-standard-joyce-jason/
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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