PASSAGE OF THE DAY: "It’s understandable how judges and jurors are swayed by flimsy evidence posing as science: an “expert” takes the stand and a long biography is read out listing the expert’s many years in the field and the courses and training they’ve taken. The court even certifies the person as an “expert,” and then the person goes on to talk definitively about the evidence in the case at hand. Often, the expert will say they’re “100% certain” their analysis is correct, or there’s “no chance of error”: the scientific evidence says that person right there is guilty of the crime. What’s a juror or judge to think? They’re not trained as scientists. They haven’t taken courses. It’s unlikely that even a judge has seen this sort of evidence before. So they trust the expert. But too often the science is complete bunk, and especially when it comes to forensic evidence."
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COMMENTARY: "Junk science: how bogus forensic evidence is used to convict innocent people, by Editor and publisher Tim Bousquet, published by 'The Halifax Examiner' on December 29, 2920. (The Halifax Examiner was founded by investigative reporter Tim Bousquet...From its site: "Bousquet is responsible for fearless investigative reporting that makes a difference, and the Halifax Examiner continues that tradition. It is an independent, adversarial news site devoted to holding the powerful accountable." I agree with every word of that. It's a feisty, hard-hitting publication, which has deeply into Canada's criminal justice system - as evidenced by his investigative work and overall coverage of the Glen Assoon miscarriage of justice. HL).
GIST: "I have an interest in wrongful convictions, and lately I’ve been looking at one recurring theme in such cases: junk science."
It’s understandable how judges and jurors are swayed by flimsy evidence posing as science: an “expert” takes the stand and a long biography is read out listing the expert’s many years in the field and the courses and training they’ve taken. The court even certifies the person as an “expert,” and then the person goes on to talk definitively about the evidence in the case at hand. Often, the expert will say they’re “100% certain” their analysis is correct, or there’s “no chance of error”: the scientific evidence says that person right there is guilty of the crime. What’s a juror or judge to think? They’re not trained as scientists. They haven’t taken courses. It’s unlikely that even a judge has seen this sort of evidence before. So they trust the expert.
But too often the science is complete bunk, and especially when it comes to forensic evidence. To begin, the so-called expert often has no scientific training at all. In many cases, the expert is just a cop who has maybe taken a 40-hour course taught by someone who also isn’t a scientist.
Even when the expert has more training, the supposed “science” is nothing of the sort. There’s no scientific method behind many of these evidentiary claims. The methods and procedures haven’t been rigorously developed, with independent verification or blind studies. Too often, forensic science is based on little more than tradition and folk science.
The foundational problems with much forensic science were detailed in a 2009 National Academy of Sciences report titled Strengthening Forensic Science in the United States: A Path Forward.
While some of the problems outlined in the report are specific to the US — particularly the “fragmentation” of regulatory oversight between local, state, and federal governments — the broader scientific critiques hold in the rest of the world, including here in Canada:
Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as “matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation. But there are important variations among the disciplines relying on expert interpretation. For example, there are more established protocols and available research for fingerprint analysis than for the analysis of bite marks. There also are significant variations within each discipline. For example, not all fingerprint evidence is equally good, because the true value of the evidence is determined by the quality of the latent fingerprint image. These disparities between and within the forensic science disciplines highlight a major problem in the forensic science community: The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods.
The report goes on to review particular branches of forensic science involving the analysis of roadside drug testing, shoe prints and tire tracks, bite marks, hair and fibre, paint, fire scenes, and fingerprinting, among others.
My understanding from this report and other reading is that bite mark evidence in particular is completely bogus — there’s no scientific foundation for it whatsoever — none.
This is somewhat of an aside, but the first known case where bite mark evidence was presented, and found convincing by the jury, was in … the Salem Witch Trials. As Radley Balko wrote in the Washington Post in 2015:
On May 4, 1692, the Rev. George Burroughs was arrested in Salem, Massachusetts on suspicion of witchcraft. The only physical evidence against Burroughs were bite marks found on some of the girls he was accused of recruiting to join him. Summarizing the research of historians on the ordeal in an article for the February 2014 newsletter of the New York State Dental Association, William James Maloney writes that at trial, “the defendant’s mouth was pried open and the prosecution compared his teeth with the teeth marks left on the bodies of several injured girls present in the courtroom.”
At the urging of notorious witch hunter Cotton Mather, Burroughs was convicted, sentenced to death and hanged. Two months later, the governor of Massachusetts called for an end to the witchcraft trials. He also prohibited the use of “spectral and intangible evidence” in criminal trials. Two decades later, Burroughs was declared innocent, and the colony of Massachusetts compensated his children for their father’s wrongful execution.
With that inauspicious beginning, bite mark evidence went on to become an accepted form of forensic evidence, replete with supposed experts in the science of odontology who could match bite marks left on skin with castings taken of a suspect’s teeth. It made sense to juries and judges — after all, examining dental records to identify corpses is a legitimate and useful use of tooth comparison.
But over the past decade, it’s been well established that there’s no way to definitively compare marks left on pliable skin with one particular set of teeth, and now courts routinely disallow such evidence. Still, that doesn’t mean there still aren’t people sitting in prisons who were convicted by bite mark evidence.
Cameron Todd Willingham in his cell on death row, in 1994. He insisted upon his innocence in the deaths of his children and refused an offer to plead guilty in return for a life sentence.Photo: Ken Light
Fire analysis has its own long and sordid history, which I won’t go into here, except to note that it’s quite likely that the state of Texas executed Cameron Todd Willingham, a completely innocent man, based solely on such evidence.
Other sorts of problematic forensic evidence — including blood splatter analysis, gunshot residue, shaken baby evidence, and more — are explored in a new podcast series called Wrongful Conviction: Junk Science, hosted by defence lawyer Josh Dubin.
One episode of Dubin’s podcast series takes on the sacred cow of forensic science: fingerprint evidence. We all “know” that fingerprint evidence is solid, right? I at least did, until recently. But Dubin interviews a public defender in Minneapolis named Mary Moriarty who is trying to highlight the problems with such evidence:
Contrary to what pop culture has ingrained in the American conscience, matching known fingerprints of a suspect to prints left at the scene of a crime is not an exact science. It’s entirely subjective.
Moriarty explains that, unlike with DNA evidence, there are no population studies backing fingerprint evidence. A geneticist can tell you that a particular genetic pattern will show up on average in one in, say, 100 million people, but a fingerprint expert has no idea how many people might share the same five or 10 nodes of a fingerprint examined.
We’ve all seen how on TV shows like CSI and Law & Order, a fingerprint lifted from a crime scene is “run through the computer database,” and out pops the match! Presto, the computer did it. But that’s not how it works at all. Computer databases might select potential matches, but the actual act of determining whether one print is a match to another is done by a human, who uses something called the ACE-V method (Analysis, Comparison, Evaluation, and Verification). As the 2009 NAS report explains:
Although some Automated Fingerprint Identification Systems (AFIS) permit fully automated identification of fingerprint records related to criminal history (e.g., for screening job applicants), the assessment of latent prints from crime scenes is based largely on human interpretation. Note that the ACE-V method does not specify particular measurements or a standard test protocol, and examiners must make subjective assessments throughout. In the United States, the threshold for making a source identification is deliberately kept subjective, so that the examiner can take into account both the quantity and quality of comparable details. As a result, the outcome of a friction ridge analysis is not necessarily repeatable from examiner to examiner. In fact, recent research by Dror has shown that experienced examiners do not necessarily agree with even their own past conclusions when the examination is presented in a different context some time later.
And the “verification” part of ACE-V is typically just one fingerprint analyst handing their results to a second analyst for review, and not an entirely independent blind look at the evidence. In other words, confirmation bias is built into the verification process.
There is one misidentification brought about by fingerprint evidence that has particularly highlighted the problems inherent in the field: the case of Brandon Mayfield, who was named as the suspect in the Madrid subway bombings that killed 193 people.
Mayfield, a lawyer in Oregon, had never been to Spain, and didn’t have a passport, but when his prints came up in the FBI database as a possible match to partial prints left at the crime scene, three FBI fingerprint analysts determined the match was “100% verified” and Mayfield was arrested and jailed for two weeks — even though Spanish officials rejected the same supposed fingerprint match. (Eventually, a group of Moroccan and Algerian terrorists were convicted for the bombings.)
As Hans Sherrer wrote:
A federal judge signed the material witness warrant authorizing Mayfield’s arrest based on a supporting affidavit by FBI agent Richard K. Werder. The affidavit’s lynchpin was the allegation that senior FBI fingerprint examiner Terry Green identified “in excess of 15 points of identification during his comparison” of Mayfield’s prints on file with the Army and the FBI, and a “photograph image” of a print recovered from a plastic bag containing several detonators found in a stolen van near where three of the bombed trains departed. The affidavit further alleges that the fingerprint identification was verified by an FBI fingerprint supervisor, and a retired FBI fingerprint examiner with 30 years of experience on contract with the lab’s Latent Fingerprint Section. In addition the affidavit states: “… the FBI lab stands by their conclusion of a 100 percent positive identification.”
A later review of the FBI agents’ analysis found, in part, that they were biased against Mayfield because he had married an Egyptian woman and converted to Islam, and because he had represented one of the Portland Seven, a terrorist cell based in Portland.
What’s the take-away here? If nothing else, I’d like judges, prosecutors, and potential jurors to familiarize themselves with the NAS report, and to become more skeptical of forensic evidence when it is presented in court.
One of the other hallmarks of wrongful convictions is “tunnel vision” — when police investigators get so focused on a particular suspect that they can’t step back and consider countervailing evidence and other theories of the crime. (Tunnel vision was certainly a contributing factor in the wrongful conviction of Glen Assoun.) So I’m conscious that I too could fall into a sort of reverse tunnel vision — seeing every case is a wrongful conviction. So as I’ve been looking through past convictions in Nova Scotia, I’ve tried to apply the highest skepticism to my own review of the cases.
Still, even then, I’m pretty certain I’ve come across at least one other local wrongful conviction for murder, which is in part the result of junk science; I will find a way for the Examiner to write about that in the coming year. I’m additionally aware of a couple of other cases that merit deeper looks.
If readers know of any other such cases, drop me a line; I can’t make any promises, but I’ll do what I can."
The entire commentary can be read at:
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;
