STEVE BARNES CASE: PART ONE; INNOCENCE PROJECT; STEVE BARNES; CONVICTED BY UNVALIDATED SCIENCE; FREED BY REAL SCIENCE; ALMOST 20 YEARS BEHIND BARS;

"ANALYSIS OF JEAN PATTERNS AND COMPARISON OF SOIL HAVE NOT BEEN TESTED TO DETERMINE THEIR SCIENTIFIC VALIDITY;

AS A RESULT, IT IS IMPOSSIBLE TO KNOW HOW MANY OTHER SOIL SAMPLES MIGHT BE SIMILAR TO SOIL FROM THE CRIME SCENE OR THE LIKELIHOOD THAT OTHER JEANS HAVE THE SAME PATTERN (ASSUMING THE MARKS ON THE TRUCK WERE FROM JEANS).

“EVEN THOUGH THESE DISCIPLINES ARE NOT ROOTED IN SOLID SCIENCE, THEY COULD BE USED IN COURTROOMS ACROSS NEW YORK AND THE COUNTRY TO THIS DAY. MUCH MORE RESEARCH IS NEEDED TO VALIDATE THE PROBATIVE VALUE OF PATTERN AND IMPRESSION EVIDENCE LIKE BITE MARKS, TOOLMARKS AND FABRIC COMPARISON,” SCHECK SAID."

INNOCENCE PROJECT RELEASE: 25 NOVEMBER, 2008;

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The Innocence Project singles out the pressing need for national standards in a press release issued on the occasion of Steve Barnes' release from prison after almost twenty years behind bars;

Fortunately, as noted in a previous post, the recently released U.S. National Academy of Sciences has recognized the need for national standards for forensic science in the American criminal justice system

The Steve Barnes case, as analysed by the Innocence Project in the release, presents compelling reasons as to why they are so essential.

The release runs under the heading: "Nearly 20 Years After Rape and Murder Conviction, Steven Barnes Is Released from Prison Based on DNA Testing."

The following quote is highlighted: "‘Unvalidated and exaggerated science convicted Steven Barnes and cost him nearly two decades, but real science finally secured his freedom,’ Innocence Project says."

UTICA, NY; November 25, 2008) – Innocence Project client Steven Barnes was released from prison this morning,"( nearly two decades after he was wrongfully convicted of rape and murder in Oneida County," the release begins;

"New DNA test results support Barnes’ longstanding claim of innocence in the 1985 rape and murder of a high school student for which he was convicted in 1989," it continues;

"Barnes’ conviction highlights the pressing need for national standards in forensic science, the Innocence Project said. Eyewitness testimony at his trial was shaky, but forensic testimony linked him to the crime. The forensic evidence included testimony that soil on Barnes’ truck tires was similar to soil at the crime scene and testimony that an imprint on the outside of Barnes’ truck matched the fabric pattern on a particular brand of jeans the victim wore when she was killed. Neither soil comparison nor jean pattern imprinting is scientifically valid, and they should not be relied on in court without proper bounds and/or experts testifying for both parties, the Innocence Project said.

The Innocence Project began representing Barnes in 1993 and the Oneida County District Attorney agreed to conduct DNA tests on evidence from the crime scene. Those tests were inconclusive because the DNA technology at the time could not yield a profile. In 2007, the Innocence Project reopened the case, and Oneida County District Attorney Scott McNamara agreed to conduct more advanced DNA testing (not available in the 1990s). New DNA test results on material collected from the victim’s body and clothing do not match Barnes, leading to today’s joint motion to throw out his conviction and release him from custody.

“Unvalidated and exaggerated science convicted Steven Barnes and cost him nearly two decades, but real science finally secured his freedom,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the latest in a long line of wrongful convictions based on improper or invalid forensic science that were ultimately overturned through DNA testing. Until there are clear national standards about what kind of forensic science can be allowed in court, more people like Steven Barnes will be wrongfully convicted while the actual perpetrators of violent crime remain at large.”

Although Barnes’ conviction has been vacated and he is free, the indictment against him will not be dismissed (fully exonerating him) until additional investigation is conducted to identify the actual perpetrator(s) in the case. The Innocence Project said it will cooperate with the District Attorney’s Office on that investigation.

“Steven Barnes has a long road ahead to begin rebuilding his life. He will need community support, financial assistance and employment leads,” said Innocence Project Staff Attorney Alba Morales. “Thankfully, his family has been tremendously supportive through this long ordeal, and they are planning a Thanksgiving homecoming that’s been two decades in the making.”

Barnes was 19 years old when 16-year-old Kimberly Simon’s body was found near the Mohawk River in Whitestown, New York. She had been raped and strangled. Four years later, when Barnes was 23 years old, he was tried and convicted for the crime. Eyewitnesses testified that they saw Barnes in town on the evening of the murder, and that they may have seen Barnes and Simon together – but no witnesses could say with certainty that Barnes ever met Simon, let alone that they saw him with her on the night of the murder.

The lack of other evidence put particular weight on the forensic testimony. A criminalist testified that an impression on Barnes’ truck was similar to the fabric pattern and fibers in the jeans the victim wore when she was attacked. She testified that she compared the evidence to other brands of jeans, and determined that they were not similar. The victim wore black Zena brand jeans, which were called “tuxedo jeans” because of their style. Testifying about photos of Zena tuxedo jeans and a slide with the imprint from Barnes’ truck the criminalist testified, “[Y]ou can hold it up to the light and the high contrast will help you to see that the patterns are similar.” Another prosecution witness worked as a salesman for manufacturers, including Zena jeans, and he testified that 24 to 36 pairs of the Zena tuxedo jeans were sold to stores in Oneida County 1985. He claimed that the jeans were “a very unique kind of garment.”

Analysis of jean patterns and comparison of soil have not been tested to determine their scientific validity; as a result, it is impossible to know how many other soil samples might be similar to soil from the crime scene or the likelihood that other jeans have the same pattern (assuming the marks on the truck were from jeans). “Even though these disciplines are not rooted in solid science, they could be used in courtrooms across New York and the country to this day. Much more research is needed to validate the probative value of pattern and impression evidence like bite marks, toolmarks and fabric comparison,” Scheck said. At the request of Congress, the National Academy of Sciences is preparing to release a major report on forensic science nationwide. A blue-ribbon commission has spent 18 months closely examining forensic disciplines that are used in courtrooms nationwide, and the unprecedented report will outline their findings and recommendations for how to ensure that the criminal justice system relies on sound science. Among wrongful convictions overturned through DNA testing nationwide, more than half involved invalid or improper forensic science, according to the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University.

In New York, 23 people have been exonerated through DNA testing, and 10 of those wrongful convictions involved invalid or improper forensic science. In a report released last year, the Innocence Project concluded that New York State leads the nation in wrongful convictions overturned with DNA testing but lags behind other states in enacting policy reforms to make the criminal justice system more fair and effective. The New York State Bar Association Task Force on Wrongful Convictions is studying this issue, and will issue its report to the NYSBA House of Delegates in January. “Steven Barnes’ case is a reminder that wrongful convictions are very much a reality in New York State, and that very few of the reforms that prevent wrongful convictions – and simultaneously help catch real perpetrators – have been implemented in New York,” Scheck said.

Harold Levy...hlevy15@gmail.com;

NATIONAL ACADEMY OF SCIENCES REPORT ON FORENSIC SCIENCES IN U.S. LABS; DISTURBING DEFICIENCIES REPORTED; A WEAPON AGAINST WRONGFUL CONVICTIONS?

"EXPERTS ESTIMATE THAT ONLY 5-10 PERCENT OF ALL CRIMINAL CASES INVOLVE BIOLOGICAL EVIDENCE THAT COULD BE SUBJECTED TO DNA TESTING," THE INNOCENCE PROJECT NOTES ON ITS WEB SITE. "IN THE OTHER 90-95 PERCENT OF CRIMES, DNA TESTING IS NOT AN OPTION — SO THE CRIMINAL JUSTICE SYSTEM RELIES ON OTHER KINDS OF EVIDENCE, INCLUDING FORENSIC DISCIPLINES THAT MAY NOT BE SCIENTIFICALLY SOUND OR PROPERLY CONDUCTED."

JOURNAL NEWS COLUMNIST NOREEN O'DONNELL;

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The disturbing conclusions of the recently released National Academy of Sciences Report will hardly surprise readers of the Charles Smith Blog.

But they may cause American legislators and judges to wake up to the huge deficiencies in the American criminal justice system - and any other criminal justice system - posed by faulty forensic science and inadequate crime labs.

One can only hope that the Academy's recommendations will be heeded - and that the Report will help prevent future miscarriages of justice.

The Report is well covered by Journal News columnist Noreen O'Donnell, in a column entitled, "Most forensic fields are inexact at best, report says," published on February 23, 2009

"That the Innocence Project has helped to exonerate 232 people through DNA testing was already proof that the criminal justice system didn't always deliver justice," the column begins;

"Now a new federal report finds serious deficiencies in the forensic science practiced in crime labs across the country," it continues;

"The report, produced by the National Academy of Sciences and released last week, concluded that among the methods used, only DNA stood up to strict scrutiny. But what about fingerprint analysis, or ballistics or the study of bite marks or hair? None measured up, no matter what the drama on the CBS television show "CSI: Crime Scene Investigation."

"Nuclear DNA analysis has been subjected to more scrutiny than any other forensic discipline, with extensive experimentation and validation performed prior to its use in investigations," said a statement that accompanied the report. "This is not the case with most other forensic science methods, which have evolved piecemeal in response to law enforcement needs, and which have never been strongly supported by federal research or closely scrutinized by the scientific community."

The report found:

- While there is evidence that fingerprints are unique to each person, that uniqueness does not ensure two prints will not be confused.

- The accuracy of shoeprints or tire track analysis is impossible to assess.

- There is no evidence that microscopic hair analysis can match hair with a specific person — though it might rule in or rule out groups of people.

- Bite-mark matches offer no scientific studies for support.

- The knowledge base for firearms analysis is fairly limited.

The Innocence Project already demonstrated that unvalidated or improper forensic science contributed to wrongful convictions in more than half of the exonerations it has won through DNA testing.

Among those imprisoned as a result of faulty science was Steven Barnes, the most recent case in New York and about whom I wrote earlier this month. The Innocence Project notes that an analyst testified that soil on Barnes' truck tires was similar to soil from the upstate crime scene, and that a mark on his truck was similar to a pattern of a brand of bluejeans the victim was wearing.

Barnes spent nearly 20 years in prison for a killing he did not commit.

Here's another example: Roy Brown, who went to prison for 15 years for strangling and stabbing an upstate social services worker. An expert testified that four bite marks on the victim's body were consistent with his mouth. But the bite marks showed four incisor teeth, while Brown had only two.

Or Dennis Halstead, John Restivo and John Kogut, improperly convicted of the rape and murder of a 16-year-old girl on Long Island. An analyst testified that hairs found in Restivo's van could have come from the victim.

"Experts estimate that only 5-10 percent of all criminal cases involve biological evidence that could be subjected to DNA testing," the Innocence Project notes on its Web site. "In the other 90-95 percent of crimes, DNA testing is not an option — so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted."

Beyond the poor science, the report also found a backlog of 359,000 cases. That's up 24 percent in the years between 2002 and 2005.

The solution? According to the report, a new "National Institute of Forensic Science," which would be independent of law enforcement officials. The new federal agency would regulate crime labs and standardize techniques.

The Justice Department and Congress are now studying the findings. They could be a step toward making sure justice is delivered.

The Innocence Project certainly thinks so.

"The safeguards recommended in the report would significantly improve public safety and prevent wrongful convictions," it says."