BACKGROUND: EDDIE LEE HOWARD: "The Mississippi Supreme Court has asked Circuit Judge Lee Howard in writing for a status update on a case questioning bite mark evidence that landed a Lowndes County man on death row. A post-conviction relief case for the defendant -- death row inmate Eddie Lee Howard, 64 -- has dragged on for almost 18 months without a ruling. Meanwhile, the Supreme Court last week overturned a conviction in a case where similar evidence was used. Eddie Lee Howard was twice convicted of the murder of 84-year-old Georgia Kemp, who was found stabbed to death in her home in February 1992. In both his convictions -- the second of which was in 2000 after the state Supreme Court threw out his 1994 conviction -- the prosecution presented bite mark evidence apparently taken from Kemp's body. In 2014, the Mississippi Innocence Project took up Howard's case, arguing bite mark evidence is a "pernicious pseudo science" that has been debunked since it was popularized in court proceedings in the 1990s and 2000s, according to Supreme Court documents. Innocence Project attorneys also argue DNA since found on the murder weapon does not match Howard's.
Reporter Isabelle Altman: The Dispatch: October 31, 2017.
Reporter Isabelle Altman: The Dispatch: October 31, 2017.
BACKGROUND: JOE BRYAN: "The Texas Board of Pardons and Paroles denied Joe Bryan parole for a seventh time on Friday, citing the brutal nature of the crime he stands convicted of — the 1985 shooting death of his wife, Mickey — in concluding that the 78-year-old “poses a continuing threat to public safety.” Bryan has twice been convicted of Mickey’s murder, which took place in their Clifton, Texas, home. Bryan, then a beloved high school principal, had been attending an education conference in Austin, 120 miles away, in the days surrounding the murder. He has always maintained that he was asleep in his hotel room at the time of the crime. His conviction, for which Bryan has spent 31 years in prison, rested largely on bloodstain-pattern analysis, a technique still in use throughout the criminal justice system, despite concerns about its reliability. At an evidentiary hearing last year in Comanche, Texas, Bryan’s attorneys presented new evidence that jurors who convicted him never heard — most notably, that the forensic testimony used to convict him was erroneous. “My conclusions were wrong,” retired police Detective Robert Thorman, who performed the bloodstain-pattern analysis in the case, wrote in a sworn affidavit submitted to the court. “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.” Last July, before the hearing, 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 Bryan was “not accurate or scientifically supported.” In December, however, Judge Doug Shaver, who presided over the evidentiary hearing, recommended that Bryan’s conviction stand, and that he not be granted a new trial. Shaver adopted the prosecution’s findings in their entirety.'
Pamela Colloff: ProPublic: April 5, 2019: “Blood will tell." (Joe Bryan has since been freed on parole. Finally. Let's hope exoneration comes next. HL);
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PASSAGE OF THE DAY: "Bite mark analysis, once considered cutting-edge forensic science, has been used in courts across the country for decades. But over the years, its reliability has fallen into disrepute. While there have been a few instances of courts taking developments in forensic science and new testimony on the accuracy of older techniques into account on appeal, many courts have declined to reverse precedent allowing bite marks to be considered at trial and often don’t properly caution juries about accuracy issues. This, in a nutshell, is often the fundamental clash between ever-evolving forensic sciences and the precedent-preserving court system."
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STORY: "Why courts still lag behind on forensic science," by Reporter Natalie Rodriguez, published by Law360 on April 12, 2020. (Thanks to Dr. Michael Bowers of CSIDDS: Forensics and law in focus for bringing this important story to our attention. As Dr. Bowers puts it: Forensics: Trump, the USDoJ and prosecutors have put a clamp on forensic science reform. "
Dan Delgar at the NY Innocence Project explains how the effect of forensic quackery puts people on death row. Way to go Dana!Mississippi is not an outlier, however.
In the not so distant past, the National Commission on Forensic Science was at the center of trying to create consensus between scientists and lawyers on issues like bite marks, fingerprint, ballistic marks and other forensic sciences that have come under scrutiny.
But since the commission’s sunset in 2017, many experts in the field contend that the U.S. Department of Justice under the Trump administration has turned its back on trying to strengthen forensic evidence guidelines in collaboration with scientists.
Now, with the DOJ working on its own guidelines behind closed doors and the private sector trying to fill the void left by the commission, some experts fear momentum on fixing the loopholes that allow scientifically suspect evidence into the courtroom is being lost.
“What I’m afraid of is we’re going to go back to the same problems that created the need for the commission in the first place,” said Nina Ginsberg, founding partner of DiMuro Ginsberg PC and president of the National Association of Criminal Defense Lawyers.
Unlike other sciences, forensic science grew out of law enforcement, and that has long put on it a mark of suspicion that its loyalty to prosecutorial agencies overrides the scientific rigor of other disciplines, according to experts. And over the years several forensic techniques, including bite mark, fingerprint, bloodstain and hair analysis, have faced critiques for having larger margins of error than experts once thought — and often stated as part of testimony.
For example, a police expert in a decades-old Texas murder trial acknowledged in 2018 that his testimony on the case’s bloodstain analysis would no longer hold up, according to an affidavit. That same year, the Texas Forensic Science Commission, investigating a complaint about the murder case, came to the conclusion that the testimony “was and is unreliable.”
The blood spatter analysis was central to the conviction of Joe Bryan, the Texas man convicted of murdering his wife. In the beginning of the year, Texas’ high court declined to review the case. Media attention on the case, however, eventually led to Bryan being granted parole on March 31, according to the Innocence Project of Texas, which was representing Bryan.
In an effort to bridge the gap between forensic science and the law, the National Commission on Forensic Science was established in 2013 by the DOJ as a federal advisory committee, in partnership with the National Institute of Standards and Technology.
The rare public-private partnership put together myriad, seemingly incongruent characters. The former chief of New York City’s detectives rubbed elbows with lab researchers and academics, judges sat down with scientists and both national associations representing prosecutors and defense attorneys had an equal seat at the table.
“The commission changed the whole orientation about how validating the reliability of science was being approached by inserting independence, transparency and a wide group of stakeholders,” Ginsberg said.
They all got together on a quarterly basis for public meetings to review various standards and practices in the forensic sciences field. More than 600 documents were discussed during its four-year existence. There was exciting energy and momentum in the room, several former commission members told Law360.
The meetings were like “pulling a tiger by the tail,” said John Butler, an NIST fellow who was co-vice chair of the commission.
But the commission’s output didn’t necessarily match everyone’s hopes. Over those four years, the commission had only a handful of recommendations and documents out of the 600 reviewed.
There had been important consensus made on when forensics experts could use the subjective term “reasonable scientific certainty” as part of testimony, but there was still a great deal of work to be done on a number of issues ranging from setting new certification standards for medical examiners to tackling the fast-evolving world of digital forensics.
The commission also hoped to create guidance for testing of cold-case evidence, particularly when advances in testing may made reevaluation worthwhile and to provide training for lawyers and judges, according to its final report.
Jules Epstein, a Temple Law professor and former commission member, acknowledged the commission’s impact was limited.
“I think the commission needed to keep going because there was a lot on its agenda,” he said, adding that the commission’s sunsetting “left the job incomplete.”
The National District Attorneys Association, frustrated that disagreements had reduced the commission to a “think tank” with few results, actively called for the commission to be closed and replaced with an Office of Forensic Science inside the Justice Department. Having such an office under the DOJ would have better oversight on accreditation, certification and more, the NDAA said in a 2017 statement to the U.S. House of Representatives’ Committee on the Judiciary.
“There is much to work to be done. Not only will the [Office of Forensic Science] spearhead this important effort but it will also work on policy that still needs to be developed in the forensic science,” the NDAA said in the 2017 statement.
A member of the NDAA could not immediately be reached for comment.
Nothing is perfect, but there is at least some sense that these recommendations don’t represent just one view, but a consensus view.
But Ginsberg believes the commission was working the way it was supposed to, coming to hard-fought conclusions and compromises on key forensic science issues — such as what kind of language to use when testifying on findings — in a transparent manner.
“I think they accomplished a great deal. There was more that they didn’t accomplish than they did, but that’s because they were written out of existence,” Ginsberg said.
In April 2017, the Trump administration allowed the commission to sunset, and then-Attorney General Jeff Sessions ordered that the DOJ suspend a multiyear, large-scale review of FBI testimony that the commission had been tackling, looking to assess the scale to which experts had provided inaccurate or flawed testimony.
“To me, the loss of the commission was also part of a greater change in the Department of Justice’s approach to forensic policy,” Epstein said. He called the sunsetting of the commission “an emblem of a turning away from science.”
Since then, the forensics community has been left with a communication void.
The NIST is continuing its work through the Organization of Scientific Area Committees — a body of more than 500 forensic science experts in academia, government and industry — and there’s a smattering of industry events that try to get a varied group of stakeholders to reach consensus, but nothing quite like the commission’s standing, according to experts.
“There’s not really a platform and place to come together to have those discussions,” Butler said.
To get true consensus and momentum forward, the industry has to have the DOJ at the table, according to Butler.
While the DOJ has a new forensic science working group established after the close of the commission, experts say the group’s scope of work is more limited and several said its unclear what exactly the working group is doing because there is less transparency.
“One of the biggest problems is because it's happening all behind the door of the Department of Justice. We don’t really know what they are doing. We don’t know how they are formulating these standards. We don’t know if or to what extent the law enforcement biases are inadvertently — or advertently — being built in to the work they are doing,” Ginsberg said.
The DOJ did not respond to requests for comment.
In the DOJ’s latest code of professional responsibility that was developed after the closure of the commission, there is a line that tells forensic scientists to “document and, if appropriate, inform management or quality assurance personnel of nonconformities and breaches of law or professional standards,” Ginsberg noted.
“I can't envision any instance where it shouldn’t be mandatory if you uncover nonconformities or breaches of law and professional standards,” Ginsberg said.
Only when law enforcement, scientists and lawyers get in a room together can real progress be made on creating guidelines that can be trusted by the community as a whole, according to several experts.
“Nothing is perfect, but there is at least some sense that these recommendations don’t represent just one view, but a consensus view,” Delger said of the commission’s work products.
Ginsberg pointed to a joint effort that began in 2012 by the FBI, DOJ, NACDL and Innocence Project that looked into microscopic hair comparison analysis and found that up to 90% of the testimony given about hair comparisons was overstated.
That joint effort resulted in new guidelines for giving testimony on microscopic hair that has been largely accepted across the board.
Currently, efforts to make similar progress on other issues — such as bite marks — face hurdles of the private sector and the government law enforcement not necessarily being on the same page and coming up with different conclusions.
“Where the Justice Department may be consulting with independent scientists, they are not standing on equal footing and their recommendations are not carrying the same kind of weight,” Ginsberg said.""
https://www.law360.com/articles/1261492/why-courts-still-lag-behind-on-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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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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