MELENDEZ-DIAZ; COMMENTARY FROM "A REAL FORENSIC SCIENTIST." LAW MUST PROTECT AGAINST CHARLATANS;

"I ALWAYS LOVE IT WHEN A PROSECUTOR STATES “NO ONE WAS WRONGFULLY CONVICTED”. FIRST OF ALL, MOST PROSECUTORS THINK EVERYONE CHARGED SHOULD BE CONVICTED, REGARDLESS OF HOW THEY GO ABOUT OBTAINING THAT CONVICTION. IT’S ALL VERY MACHIAVELLIAN (THE ENDS JUSTIFY THE MEANS). SECONDLY, HOW DO THE PROSECUTORS KNOW HOW THE JURY WOULD HAVE RULED, HAD THEY NOT HAD THE FALSE TESTIMONY/LAB REPORT TO USE AS PART OF DELIBERATION."

FROM "A REAL FORENSIC SCIENTIST;"

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"A forensic laboratory analyst dry-labs cases," "a real forensic scientist" begins his post under the heading "Laboratory Analyst Falsifies Lab Report." (I really enjoy his hard-hitting Blog. It's called "Bench Notes: Forensic Science News and CSI Reviews by a Real Forensic Scientist." HL)

"That is, they didn’t actually perform the forensic testing they are supposed to, and instead just simply authors reports that indicate a crime has occurred," the post continues.

"A former chemist with Erie County’s crime laboratory admitted she failed to conduct the proper forensic tests in a local drug case, but authorities say they don’t believe what was described as “sloppy” lab work had influenced the outcome of criminal cases.

Kelly McHugh, 36, of Hamburg, pleaded guilty last week in Buffalo City Court to second-degree attempted tampering with public records, a Class B misdemeanor, which carries a maximum of 90 days in jail, according to the Erie County district attorney’s office.

McHugh was fired from the Erie County forensic laboratory after issues with her work came to a head in February, triggering investigations by lab officials, the district attorney and state inspector general to determine the scope of the problem.

“I wanted to make sure no one was sitting in jail because of a false report she gave,” said Erie County District Attorney Frank A. Sedita III. “That was a top priority for me.”

It’s rather impressive she was fired. Usually it takes an act of congress to get an government employee fired!

Lab officials, meanwhile, examined a sampling of 564 of McHugh’s 1,420 cases from 2007 and 2009.

The lengthy investigation didn’t reveal any major discrepancies that would affect a pending or past criminal charge, Sedita said.

“We looked at all the cases and found no one was wrongfully convicted,” Sedita said.

But the investigation did uncover other incidents of lab misconduct, the state report pointed out.

In the most blatant example, McHugh examined a substance that tested positive for cocaine but failed to report that a retest showed no cocaine. In the end, the test didn’t have an impact on the case, but authorities called her action “inexcusable.”

McHugh wasn’t trying to falsely convict anyone, Sedita said, but she cut corners in her lab work.

I always LOVE it when a prosecutor states “no one was wrongfully convicted”. First of all, most prosecutors think everyone charged should be convicted, regardless of how they go about obtaining that conviction. It’s all very Machiavellian (the ends justify the means). Secondly, how do the prosecutors know how the jury would have ruled, had they not had the false testimony/lab report to use as part of deliberation.
Next time somewhere like Virginia complains about the Melendez-Diaz ruling, requiring the laboratory analyst to testify and be subject to cross-examination, due to the extra “costs”, remind them the defense needs this right, so that charlatans like this can be weeded out early."

http://www.forensicsguy.com/benchnotes/laboratory-analyst-falsifies-lab-report/

http://www.buffalonews.com/home/story/906331.html

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: ANALYSIS; STEVE HANSEN; THE AMERICAN BAR ASSOCIATION JOURNAL;

"STANFORD UNIVERSITY LAW PROFESSOR JEFFREY L. FISHER, WHO REPRESENTED MELENDEZ-DIAZ, SAYS THE DECISION WILL HELP ENSURE THAT ANALYSTS WILL BE CAREFUL WHEN THEY DO THEIR TESTING AND WILL BE HELD ACCOUNTABLE WHEN THEY MAKE MISTAKES. HE ALSO SAYS THAT THE BURDEN WON’T BE NEARLY AS ONEROUS ON PROSECUTORS AS THE DISSENTERS HAVE SUGGESTED.

CASE WESTERN’S GIANNELLI AND THE OTHER MELENDEZ-DIAZ AMICI ALSO ARGUE THAT THE POTENTIAL BURDENS OF SUCH TESTIMONY HAVE BEEN OVERSTATED. FEW CRIMINAL CASES ACTUALLY INVOLVE CONTESTED EXPERT TESTIMONY. AND THE USE OF COST-SAVING MECHANISMS, LIKE STIPULATIONS AND SIMPLE NOTICE-AND-DEMAND STATUTES, WILL ALLEVIATE MUCH OF THE ANTICIPATED BURDEN, THEY CONTEND."

MARK HANSEN: AMERICAN BAR ASSOCIATION JOURNAL;
PHOTO: JUSTICE ANTON SCALIA;

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"It’s one thing to demand that the prosecutor produce a technician to testify on the lab report at a criminal trial," Mark Hansen's American Bar Association January 1, 2010 article begins, under the heading "Supreme Court Report: Taking Techs to Trial" and the sub-heading "Two terms in a row, justices weigh bringing lab analysts into court."

"It’s quite another to shift the burden to the defendant to find and bring in the lab tech," the article continues.

"Those two issues underlie a U.S. Supreme Court ruling handed down during the court’s last term, and they provide the basis for a follow-up case this month. The court’s June 25 decision in Melendez-Diaz v. Massachusetts held that the Sixth Amendment’s confrontation clause requires the analyst who prepared a crime lab report to appear at the trial and be subject to cross-examination.

But on Jan. 11 the justices will hear arguments in the case of Briscoe v. Virginia, which challenges the constitutionality of a Virginia law that allows such a report to be admitted without the testimony of the analyst who prepared it, but gives the defendant the opportunity—at the state’s expense—to subpoena the analyst to testify.

There’s a big difference between a simple notice-and-demand statute, which the court appeared to endorse in Melendez-Diaz, and the Virginia law, which places the burden of calling witnesses on the defendant.

According to Case Western Reserve University law professor Paul Giannelli—one of seven law professors who signed an amicus brief in support of Luis Melendez-Diaz, who was facing drug-related charges—notice-and-demand statutes require the prosecution to notify the defendant of its intent to use an analyst’s report as evidence. After that the defendant is given a period of time to object.

Under the Virginia statute, the prosecution presents a certificate of the lab results to the defendant, who has the right to call the analyst (or a person involved in the chain of custody) as his own witness at trial. Seven other states have statutes similar to Virginia’s.

At the very least, Briscoe could test the limits of the court’s holding in Melendez-Diaz, given the narrow 5-4 vote. With Justice Sonia Sotomayor succeeding retired Justice David H. Souter, who had voted with the majority, some have even speculated that the court might move to rescind Melendez-Diaz.

Many prosecutors are hoping that is so.

NIGHTMARE IN THE MAKING?

Requiring analysts to leave their labs to testify in every case, they argue, could create huge backlogs, substantial delays and reduced plea bargains—and might allow some guilty defendants to go free.

Scott Burns, executive director of the National District Attorneys Association in Alexandria, Va., says complying with the ruling could become a nightmare for prosecutors, particularly in large rural states like North Dakota, which has only one crime lab and two analysts for the entire state, and in busy offices, which handle upwards of 50 cases a week.

“We’re looking at all kinds of ways of dealing with the potential ramifications of this” decision, he says, “and just waiting to see how it all plays out.”

Melendez-Diaz was convicted on cocaine trafficking and distribution charges in Massachusetts. The evidence against him included several lab reports indicating he had 22 grams of cocaine in his possession at the time of his arrest. Massachusetts and more than a dozen other states allowed prosecutors to use reports as substitutes for live testimony from the analyst at trial.

Melendez-Diaz appealed his conviction in part on the grounds that the confrontation clause required the prosecution, absent a stipulation by the defendant, to present the findings of a forensic analyst through live testimony at trial.

Justice Antonin Scalia, writing for the majority, made the decision sound easy. “This case involves little more than the application of our holding in Crawford v. Washington,” he wrote. The 2004 case held that a witness’ statement against a defendant is inadmissible unless the witness appears at trial or the defendant has had a prior opportunity for cross-examination. “The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”

But Scalia also went to great lengths to rebut the arguments of the dissenters, who contended that crime lab analysts should not be subject to confrontation because they are not “conventional,” “ordinary” or “typical” witnesses. The dissenters also predicted the ruling would have dire consequences for the criminal justice system.

Justice Anthony M. Kennedy, writing for the dissent, argued that Melendez-Diaz would impose a “crushing burden” on the nation’s crime labs and “put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the court’s new constitutional designation as the analyst, simply does not or cannot appear” at trial.

“Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already,” Scalia rejoined, citing the number of states that already have such a Melendez-Diaz-like rule in place or that allow a defendant to assert or forfeit the confrontation clause right after receiving notice of the prosecution’s intent to use an analyst’s report at trial.

Stanford University law professor Jeffrey L. Fisher, who represented Melendez-Diaz, says the decision will help ensure that analysts will be careful when they do their testing and will be held accountable when they make mistakes. He also says that the burden won’t be nearly as onerous on prosecutors as the dissenters have suggested.

Case Western’s Giannelli and the other Melendez-Diaz amici also argue that the potential burdens of such testimony have been overstated. Few criminal cases actually involve contested expert testimony. And the use of cost-saving mechanisms, like stipulations and simple notice-and-demand statutes, will alleviate much of the anticipated burden, they contend.

SWING VOTE SPECULATION

Still, Burns says he’s hoping the decision to grant cert in Briscoe means that the court may be willing to revisit Melendez-Diaz. He also hopes that Sotomayor—who spent five years as a prosecutor in Manhattan—will see the issue differently than Souter.

“As a former prosecutor, she understands what it’s like to actually try cases in the real world,” he says.

Lauren Altdoerffer, an associate attorney for the Criminal Justice Legal Foundation, a Sacramento, Calif.-based victims’ rights organization, says she doesn’t think the reconstituted court will overturn Melendez-Diaz. But she says the court could help “control the damage” caused by that decision if it were to uphold the Virginia law at issue in Briscoe.

Altdoerffer says the Supreme Court of Virginia held in 2008 that there is nothing wrong with asking a defendant to secure the right to confrontation through subpoena. And the U.S. Supreme Court majority, without specifically mentioning Briscoe, said in Melendez-Diaz that the defendant always has the burden of raising a confrontation clause objection, and that states are free to adopt procedural rules governing objections.

The high court majority also acknowledged in a footnote that while some states require a defendant to subpoena the analyst, it had “no occasion today” to pass on the constitutionality of every state’s notice-and-demand statute.

“This left open the question of whether a statute like Virginia’s will pass constitutional muster after Melendez-Diaz,” Altdoerffer says.

But experts say they wouldn’t count on it.

POWER VS. RIGHT

If one reads the majority opinion in Melendez-Diaz, the court appears to have considered the issue presented by Briscoe already—and to have dispensed with it in a single paragraph, they point out. The power to subpoena a witness is no substitute for the right of confrontation, the majority said. And that power is of no use to the defendant when the witness is unavailable or simply refuses to appear.

“The confrontation clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those witnesses into court,” Scalia wrote. “Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.”

University of Michigan law professor Richard D. Friedman, who is representing Mark A. Briscoe, says he’s not worried about the outcome: “I expect to win this case.” In fact, he thought he already had.

“I confess I was a little sorry to see this part of the opinion,” Friedman wrote on his blog about the burden-shifting portion of the majority opinion, an issue he said he would have loved to argue, on the day Melendez-Diaz came down. “Instead, we get handed a victory without argument.”

Now, he can."

The story can be found at:

http://www.abajournal.com/magazine/article/taking_techs_to_trial/

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: TEXAS DEFENCE LAWYER ISSUES RELEASE TO DRAW PUBLIC ATTENTION TO "SHATTERED FOUNDATION" OF STATE'S FORENSIC EVIDENCE SYSTEM;

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"Forensic methods have been developed over time, guided more by law enforcement than by scientists. A wrongful conviction based on flawed evidence is a life thrown away, a family destroyed. The American system of justice must have the integrity that the Constitution demands by elevating the quality of forensic science to the professional level every citizen deserves."

TEXAS DEFENCE LAWYER PATRICK J. MCLAIN;
PHOTO: JUSTICE ANTON SCALIA;

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Forensic evidence is fundamental to the foundation of much of the U.S. criminal justice system," the release from the law office of Patrick J. McLain, issued on December 11, 2009, under the heading "Forensics Evidence in Texas: A Foundation Shattered" begins.

(A sub-heading tells us, "Forensics is part of the foundation of our criminal justice system. Recent developments, though, have shaken the foundation of much of the forensic evidence used in criminal trials.")

"Scientific analysis of physical evidence of crime has produced evidence that has put many citizens behind bars, and exonerated others," the timely release continues.

"From fingerprint identification, bullet studies, blood spatter patterning, firearms analyses and autopsies, to laboratory tests that identify white powders or the causes of fires, there is no evidence that can be more damning, or vindicating. Significant recent developments, however, have shaken the foundation of forensic evidence in criminal trials.

On the national level, a blue-ribbon panel has called into question the reliability of today's forensic science. A U.S. Supreme Court case has given defendants in criminal cases the right to confront as witnesses the lab technicians and other scientists who perform forensic testing and make conclusions that can tip the balance between guilt and innocence in the courtroom. In Texas, the poor quality and inconsistent methodology of major forensic laboratories is coming to light.

National Research Council Study

In February 2009 the National Research Council, affiliated with the National Academy of Sciences, released a congressionally commissioned report entitled Strengthening Forensic Science in the United States: A Path Forward. This landmark study, a report over 300 pages long, was conducted by an impressive committee of national experts in law, medicine, science and research.

The report contains startling findings and recommendations:
-The national forensic science system is in disarray
-Forensic tests lack uniform standards
-Forensic scientists need more rigorous certification and educational programs
-Forensic methodology is not supported by careful scientific research
-Forensic laboratories are not adequately funded and managed
-The only highly reliable forensic process is DNA testing
-Labs should be independent from law enforcement and prosecutors' offices to diffuse inherent bias; those performing forensic analyses should not know details about related cases
-Forensic labs vary in methodology, funding and standards among various levels of government
-Ethical standards and quality control are inconsistent or lacking

The report recommends that Congress create an independent National Institute of Forensic Science to undertake the work to upgrade the forensic science system.

Melendez-Diaz v. Massachusetts

Four months after the ground-breaking study was published, it was cited by the U.S. Supreme Court in the landmark Melendez-Diaz case. The Constitution's Confrontation Clause requires that a criminal defendant have the right to confront witnesses against him. The Melendez-Diaz Court found that a written certificate of the weight and identity of a powdered substance constituted a testimonial statement that triggered the right to confront the certificate's author as a witness. Historically such certificates or affidavits of forensic findings had been largely admitted into evidence without the appearance in court of those involved in making the conclusions.

Citing the National Academy report, the Court emphasized that those conducting forensic tests are subject to time pressure and coercion from law enforcement and prosecution to make particular findings, sometimes sacrificing rigorous scientific methods. The Melendez-Diaz Court hoped that the specter of being cross-examined in court about their findings would make forensic personnel more careful and neutral in their work.

The Texas Problem

Texas has conducted investigations of the integrity of its crime labs, and the results were alarming. The leaky roof of the Houston Police Department Crime Laboratory contaminated DNA evidence. Labs have closed in Fort Worth, San Antonio and Austin due to serious scientific concerns. In 2005, the Texas legislature created the Forensic Science Commission to accept complaints of and investigate forensic lab misconduct and negligence. The new Commission has already been rocked with controversy; Governor Rick Perry recently replaced all four of his commission appointees, in the middle of a review of the arson testing methods that produced evidence in the conviction and 2004 execution of Cameron Todd Willingham.

Impact on Criminal Defense

Across the nation and in Texas, criminal defense attorneys are sitting up and taking notice of the important right their clients were granted in Melendez-Diaz to cross-examine those making forensic conclusions about evidence that could support criminal convictions. Coupled with the inherent doubt cast upon such evidence by the National Research Institute report and substandard conditions at forensic laboratories, real opportunities to fight for citizens accused of crimes are emerging.

The release can be found at:

http://it.einnews.com/247pr/128436

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ; RADLEY BALKO TIES TAINTED NEW YORK CRIME LAB TO IMPORTANCE OF MELENDEZ-DIAZ CASE. CALL FOR INDEPENDENCE OF STATE FORENSIC LABS;

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"THIS EPISODE IS ALSO FURTHER EVIDENCE OF THE IMPORTANCE OF THE SUPREME COURT'S DECISION EARLIER THIS YEAR IN MELENDEZ-DIAZ V. MASSACHUSETTS, WHICH ESTABLISHED THAT THE CONSTITUTION'S CONFRONTATION CLAUSE GIVES DEFENDANTS THE RIGHT TO CROSS EXAMINE THE AUTHORS OF CRIME LAB REPORTS. THAT DECISION HAD PROSECUTORS ACROSS THE COUNTRY RAGING, COMPLAINING ABOUT THE COSTS AND BURDENS THEY NOW FACE IN MAKING FORENSIC EXPERTS AVAILABLE FOR COURT. THE RULING MAY ALREADY BE IN JEOPARDY; THE COURT WILL HEAR ARGUMENTS NEXT YEAR IN A VIRGINIA CASE THAT COULD LIMIT ITS REACH."

RADLEY BALKO: REASON;
PHOTO: JUSTICE ANTON SCALIA;

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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PUBLISHER'S NOTE: One of the most important reasons for giving people accused of crimes the right to confront lab technicians - as required by the U.S. Supreme Court in the Melendez-Diaz decision - is the disturbing, uneven record, of all too many American crime labs. The report of New York States Inspector General, as reported by the New York Times, underlines the importance of this decision - and sheds light on the reason many state Attorney Generals are actively opposed to the decision; Radley Balko, an acute observer of America's criminal justice system underlines the connection between the Inspector Generals's report and the Melendez-diaz decision.

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"This week, New York State's inspector general issued a blistering critique of the state's crime lab," Radley Balko's December 18, 2009 post, under the heading "Report: New York State Crime Lab Tainted by Incompetence, Corruption, Indifference," begins.

"The report came after a private accrediting organization found significant problems with one particular lab worker who had so little training that he couldn't operate the microscope he was supposed to be using for hair and fiber analysis," the post continues.

"Armed with a cheat sheet from a former supervisor, Gary Veeder managed to fake lab reports in criminal cases for 15 years. He killed himself last year.

A wayward crime lab worker who fakes his way into the job is one thing. A fraud who manages to stay on the job for 15 years is a symptom of mass institutional failure. And that's the most disturbing part of the story. The institutional failure continued even after the embarrasing episode was exposed. From the New York Times:

...when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on...Veeder...

Mr. Veeder’s allegations involving other lab workers were never part of the final report to the State Police’s internal affairs division. State Police investigators and the lab’s management “minimized and precipitously discarded the seriousness and extent of problems” at the lab, the inspector general’s report said.

It said that one State Police investigator, Keith Coonrod, mischaracterized Mr. Veeder’s responses implicating other lab scientists and skewed Mr. Veeder’s statements to give the impression that it was his incompetence — not widespread misconduct — that led to the problems.

The IG's report, on the other hand, took direct aim at Veeder's superiors, noting, "There exists no doubt that laboratory management possessed sufficient information that Veeder’s individual misconduct implicated potentially broader systemic issues, but failed to take appropriate action." The lab's director, George Zeosky, is still on the job. Assistant Director Richard Nuzzo—whom the report also accuses of intimidating another lab technician—was promoted to a position in the New York State Police Department's internal affairs office. Which means the guy in part responsible for turning a blind eye to incompetence and misconduct in the state's crime lab is now investigating other misconduct and incompetence within the department.

New York criminal defense attorney Scott Greenfield predicts the report will have no effect at all on the way New York judges treat crime lab reports.

Once the prosecution gets its results from the crime lab, everything after that is all a big joke. The defense testing is viewed as a desperate grasping at straws, making life difficult for the cops and prosecution, and just another waste of time for the court. Sure, judges will acknowledge that state crime labs have their issues, but the "real" problem is always in some other case, before some other judge. Every judge believes that the lab results before him or her are routine. There's no problem here, counselor. Move along.

What makes scientific results different, however, is their conclusive affect on a judge and jury. If the lab report says so, then so it is. As much as judges and lawyers aren't scientists, neither are most jurors. We all bow to the god of science, even when we know that it's not omnipotent.

So the state, at least the Inspector General, acknowledges that the State Police Lab, sucks. Do you think there will be a single judge across the State of New York who refuses to admit a lab report into evidence as a result? I don't. Not one. Even if it was written in crayon.

The scandal in New York is yet another argument for several of the forensic reforms Roger Koppl suggested in a 2007 report for the Reason Foundation (publisher of Reason magazine and Reason.com). One is to send forensic evidence to private labs for testing and verification of the state crime lab's results. Even if it's only on every fourth or fifth or tenth case, as long as state lab technicians don't know when they're being checked, you eliminate the bias toward pleasing bosses and prosecutors. You also strengthen the incentive for accuracy.

And that's the other incentive problem, here. The state crime lab is run by the state police. That isn't a recipe for objective science. If you're going to have a state forensics laboratory, it ought to be wholly independent of police agencies and prosecutors.

This episode is also further evidence of the importance of the Supreme Court's decision earlier this year in Melendez-Diaz v. Massachusetts, which established that the Constitution's Confrontation Clause gives defendants the right to cross examine the authors of crime lab reports. That decision had prosecutors across the country raging, complaining about the costs and burdens they now face in making forensic experts available for court. The ruling may already be in jeopardy; the Court will hear arguments next year in a Virginia case that could limit its reach.

Somewhat related: The woman who took Melendez-Diaz all the way to the Supreme Court, where she unsuccessfully argued against a right to cross-examine forensic specialists, was Massachusetts Attorney General Martha Coakley. Coakley is the Democratic nominee and heavy favorite in next month's special election to replace Ted Kennedy in the U.S. Senate."

The post can be found at:

http://reason.com/blog/2009/12/18/report-new-york-state-crime-la

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ: NEW YORK STATE CRIME LAB COMES UNDER SCRUTINY BY STATE'S INSPECTOR GENERAL: LACK OF OVERSIGHT SLAMMED; NEW YORK TIMES;

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"WHEN THE STATE POLICE BECAME AWARE OF THE ANALYST’S MISCONDUCT, AN INTERNAL REVIEW BY SUPERIORS IN THE ALBANY LAB DELIBERATELY OMITTED INFORMATION IMPLICATING OTHER ANALYSTS AND SUGGESTING SYSTEMIC PROBLEMS WITH THE WAY EVIDENCE WAS HANDLED, THE REPORT SAID. INSTEAD, THE REVIEW FOCUSED BLAME MOSTLY ON THE ANALYST, GARRY VEEDER, WHO COMMITTED SUICIDE IN MAY 2008 DURING THE INTERNAL INQUIRY. “CUTTING CORNERS IN A CRIME LAB IS SERIOUS AND INTOLERABLE,” SAID THE STATE’S INSPECTOR GENERAL, JOSEPH FISCH. “FORENSIC LABORATORIES MUST ADHERE TO THE HIGHEST STANDARDS OF COMPETENCE, INDEPENDENCE AND INTEGRITY. ANYTHING LESS UNDERMINES PUBLIC CONFIDENCE IN OUR CRIMINAL JUSTICE SYSTEM.”"

JEREMY W. PETERS: THE NEW YORK TIMES;
PHOTO: U.S. SUPREME COURT JUSTICE ANTON SCALIA;

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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PUBLISHER'S NOTE: One of the most important reasons for giving people accused of crimes the right to confront lab technicians - as required by the U.S. Supreme Court in the Melendez-Diaz decision - is the disturbing, uneven record, of all too many American crime labs. The report of New York States Inspector General, as reported by the New York Times, underlines the importance of this decision - and sheds light on the reason many state Attorney Generals are actively opposed to the decision;

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"The New York State Police’s supervision of a major crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his cases, an investigation by the state’s inspector general has found," the New York Times story by reporter Jeremy W. Peters began, under the heading "Report Condemns Police Lab Oversight."

"The analyst’s training was so substandard that at one point last year, investigators discovered he could not properly operate a microscope essential to performing his job, the report released on Thursday said," the December 17, 2009 story continued.

"And when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on the analyst, Garry Veeder, who committed suicide in May 2008 during the internal inquiry.

“Cutting corners in a crime lab is serious and intolerable,” said the state’s inspector general, Joseph Fisch. “Forensic laboratories must adhere to the highest standards of competence, independence and integrity. Anything less undermines public confidence in our criminal justice system.”

Several lab workers whose actions were criticized in the report remain in their jobs pending an internal review of the inspector general’s findings, the State Police said.

The State Police superintendent, Harry J. Corbitt, said that the agency planned to hire an outside consultant. “Appropriate remedial measures will be taken with respect to any conduct falling below the highest standards,” said Mr. Corbitt, whose nomination last year by Gov. David A. Paterson was meant to help rehabilitate the scandal-tainted agency.

After the State Police began its internal investigation last year, it notified district attorneys across the state that evidence in criminal cases examined by Mr. Veeder might have been compromised. Mr. Veeder worked in the crime lab analyzing so-called trace evidence, like fibers, hair, impressions and other physical material found at scenes of crimes, including homicides.

But on Thursday, police officials said that none of the district attorneys had found that Mr. Veeder’s work had cast doubt on any of their convictions.

“We are satisfied that there were no wrongful convictions, nor any miscarriages of justice which resulted from these improper procedures,” Mr. Corbitt said, stating a viewpoint also shared by Mr. Fisch.

Still, forensic science experts and advocates for those wrongfully convicted said the case pointed to longstanding problems in police behavior and underlined the need to hold law enforcement agencies accountable.

“It is a wake-up call to the forensic community,” said Barry Scheck, director of the Innocence Project and a member of the New York State Commission on Forensic Science, which monitors all the state’s crime labs. “What’s alarming about this report and others that we’ve seen like it is it’s not so much the bad actors, it’s the fact that the system didn’t detect them earlier.”

There have been several high-profile cases in recent years in which police labs mishandled crime scene evidence, casting doubt on convictions. A convicted rapist was released in 2003 after an examination of the Houston Police Department’s lab found widespread deficiencies. Detroit shut down its police crime lab last year after an outside audit found errors in 10 percent of cases surveyed.

In Mr. Veeder’s case, supervisors discovered during an internal inquiry that he had routinely skipped a preliminary fiber analysis and then created data “to give the appearance of having conducted an analysis not actually performed,” the inspector general’s report stated.

The State Police have disputed the effectiveness of the preliminary test and said there was no evidence that Mr. Veeder’s work resulted in a piece of trace evidence’s being misidentified.

The report said Mr. Veeder used a “crib sheet” provided to him by a former supervisor to falsify the test results. At one point, Mr. Veeder told investigators, “They told me from the past, you go to this and plug it in,” the report said. “This is how I was trained to, how we’ve always done it.”

But Mr. Veeder’s allegations involving other lab workers were never part of the final report to the State Police’s internal affairs division. State Police investigators and the lab’s management “minimized and precipitously discarded the seriousness and extent of problems” at the lab, the inspector general’s report said.

It said that one State Police investigator, Keith Coonrod, mischaracterized Mr. Veeder’s responses implicating other lab scientists and skewed Mr. Veeder’s statements to give the impression that it was his incompetence — not widespread misconduct — that led to the problems.

Mr. Coonrod has been temporarily reassigned to a State Police job outside of the lab pending the outcome of the internal review.

Despite Mr. Coonrod’s omissions, the inspector general also faulted Mr. Coonrod’s superiors. “There exists no doubt that laboratory management possessed sufficient information that Veeder’s individual misconduct implicated potentially broader systemic issues, but failed to take appropriate action,” the report said.

The report named a number of lab supervisors at the time — including the director, Gerald Zeosky, and assistant director Richard Nuzzo — and describes them as unfazed by the inquiry and dismissive of Mr. Veeder’s broader claims. Mr. Zeosky remains in charge of the lab. Mr. Nuzzo was promoted and given a new job in the internal affairs division, but police officials said he would have had no involvement in the investigation of the lab.

Another section of the report stated that Mr. Nuzzo was also found to have intimidated a lab technician who was working on a case unrelated to Mr. Veeder.

Problems with Mr. Veeder’s work were first detected in 2008 during an accreditation review by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. The State Police then did an internal investigation and alerted the inspector general’s office, which began its own review.

On May 23, 2008, Mr. Veeder hanged himself in the garage of his home outside Albany."

The story can be found at:

http://www.nytimes.com/2009/12/18/nyregion/18statepolice.html

Harold Levy...hlevy15@gmail.com

MELENDEZ-DIAZ: IN THE CONTEXT OF THE CONSERVATIVE RE-EXAMINATION OF U.S. CRIME POLICY; COMMON GROUND BETWEEN LEFT AND RIGHT; NEW YORK TIMES ANALYSIS;

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"THE ROOTS OF THE CONSERVATIVE RE-EXAMINATION OF CRIME POLICY MIGHT ALSO BE FOUND IN THE JURISPRUDENCE OF JUSTICES ANTONIN SCALIA AND CLARENCE THOMAS. THE TWO JUSTICES, JOINED BY LIBERAL COLLEAGUES, HAVE SAID THE ORIGINAL MEANING OF THE CONSTITUTION REQUIRED THEM TO RULE AGAINST THE GOVERNMENT IN, AMONG OTHER AREAS, THE RIGHTS OF CRIMINAL DEFENDANTS TO CONFRONT WITNESSES.

“SCALIA AND THOMAS ARE VANGUARDS OF AN UNDERSTANDING BY THE MODERN RIGHT THAT ITS DISTRUST OF GOVERNMENT EXTENDS ALL THE WAY TO THE CRIMINAL JUSTICE SYSTEM,” SAID DOUGLAS A. BERMAN, A LAW PROFESSOR AT OHIO STATE UNIVERSITY.

THE COURT WILL HEAR ANOTHER CONFRONTATION CLAUSE CASE, BRISCOE V. VIRGINIA, IN JANUARY. IT IS A SEQUEL TO A DECISION IN JUNE THAT PROSECUTORS MAY NOT USE CRIME LAB REPORTS WITHOUT LIVE TESTIMONY FROM THE ANALYSTS WHO PREPARED THEM."

ADAM LIPTAK; NEW YORK TIMES;

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BACKKGROUND: It' not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"WASHINGTON — In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption," the New York Times story by Adam Liptak begins.

"Civil liberties groups and associations of defense lawyers have lined up on the side of the accused," the story, published on November 23, 2009, under the heading "Right and Left Join to Take on U.S. Over Criminal Justice" continues.

"But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”

The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.

“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”"

Wikipedia tells us that: Adam Liptak (born September 2, 1960 in Stamford, Connecticut) is an American journalist, lawyer and instructor in journalism[1]. He is currently the national legal correspondent for The New York Times. In July 2008, Liptak was assigned to take over coverage of the U.S. Supreme Court following the retirement of Linda Greenhouse who had covered the high court for nearly 30 years. Liptak has also written articles for Rolling Stone, the New York Observer, Business Week and other publications. He is a graduate of Yale and Yale Law School and has served in the general counsel's office of The New York Times.

The story can be found at:

http://www.nytimes.com/2009/11/24/us/24crime.html?_r=1&hp

Harold Levy...hlevy15@gmail.com;

ARTHUR LEE WHITFIELD CASE: INNOCENCE PROJECT FILE ON MAN FREED AFTER 22 YEARS; COMPENSATION SUBJECT OF SPECIAL SESSION OF VIRGINIA ASSEMBLY;

"IN DECEMBER 2003, HOWEVER, THE STATE CRIME LABORATORY FOUND PIECES OF EVIDENCE TAPED INSIDE A NOTEBOOK OF THE SEROLOGIST WHO HAD ORIGINALLY TESTED THE EVIDENCE. MARY JANE BURTON HAD, AGAINST LABORATORY PROTOCOL, SAVED SAMPLES FROM SOME OF THE CASES SHE HAD WORKED ON. IN 2001, EVIDENCE LOCATED IN A SIMILAR MANNER EXONERATED MARVIN ANDERSON."

EVIDENCE PROJECT ON ARTHUR LEE WHITFIELD;

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A recent post of this Blog noted that a special assembly of the Virginia legislature called to change the law to conform with the Melendez-Diaz case would also consider compensation for Arthur Lee Whitfield - exonerated by DNA evidence after being wrongly imprisoned for 22 years.

Who is this man?

Here is the Innocence Project accpunt of his case:

Incident Date: 8/14/81

Jurisdiction: VA

Charge: Rape (2 crimes), Sodomy, Robbery

Conviction: Rape, Sodomy, Robbery

Sentence: 63 Years
Year of Conviction: 1982

Exoneration Year: 2004

Sentence Served: 22.5 Years

Real perpetrator found? Yes

Contributing Causes: Eyewitness Misidentification, False Confessions / Admissions

Compensation? Not Yet

"In less than one hour on the night of August 14, 1981, two women in Norfolk, Virginia, were raped," the account begins.

"Both victims eventually identified Arthur Whitfield as the assailant," it continues.

"In 1982, he was convicted of one of the crimes and pled guilty to the second in order to receive a lighter sentence and have some of the charges dropped. DNA testing in 2004 proved that he was innocent of both crimes.

The first victim was accosted as she got out of her car. The assailant threatened her with a knife, stole her money, and ordered her to undress. The perpetrator raped her and left her there. She then drove to a friend's house and reported the rape.

At trial, she testified that she had several opportunities to view the perpetrator by the light of a streetlight and a spotlight on a nearby house. At the police station, she picked out seven photographs. One of the pictures was Whitfield's. She subsequently identified him from a live lineup.

The second victim was attacked not long after the first. She had exited her car and was accosted, threatened with a knife, and raped.

At trial, the defense argued that Whitfield had been misidentified. Both victims described their attacker as having no facial hair, but Whitfield wore a beard at the time. Whitfield's family testified that he was with them the entire evening. The jury convicted and Whitfield was sentenced to 45 years. He pled guilty to the second crime and received 18 years, to run consecutively to the first sentence, a total of 63 years.

In October 2003, Whitfield filed pro-se under the Virginia statute that governs postconviction DNA testing (passed in 2001). It appeared that the evidence had been destroyed. In December 2003, however, the state crime laboratory found pieces of evidence taped inside a notebook of the serologist who had originally tested the evidence. Mary Jane Burton had, against laboratory protocol, saved samples from some of the cases she had worked on. In 2001, evidence located in a similar manner exonerated Marvin Anderson. In 2003, the evidence Burton saved in Julius Ruffin's case was tested and exonerated him.

In 2004, the evidence in Whitfield's case was subjected to DNA testing. Whitfield was excluded from the rape kit samples of both victims. The profile obtained from testing indicated that another inmate, already serving life for another sexual assault, was the true perpetrator. Whitfield had served over 22 years in prison for crimes he did not commit."

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ: SPECIAL SESSION OF VIRGINIA ASSEMBLY CALLED TO MAKE LAW CONFORM TO SUPREME COURT DECISION WILL ALSO COMPENSATE WRONGLY CONVICTED MAN;

"THERE IS WIDE AGREEMENT THAT THE NORFOLK MAN SHOULD BE COMPENSATED FOR THE 22 YEARS HE SPENT IN PRISON AFTER BEING WRONGFULLY CONVICTED ON RAPE CHARGES. THERE IS DISAGREEMENT OVER HOW MUCH TO PAY HIM AND OVER WHAT PERIOD OF TIME.

SEVERAL LEGISLATORS, INCLUDING REPUBLICAN SEN. KEN STOLLE OF VIRGINIA BEACH, PLAN TO FILE BILLS GRANTING RELIEF TO WHITFIELD, WHOSE PLIGHT AS A LIVER CANCER PATIENT HAS GAINED MUCH ATTENTION.

"YOU HAVE A LOT OF PEOPLE JOCKEYING FOR POSITIONS BECAUSE THIS IS, ALL OF A SUDDEN, IT'S A POLITICALLY POSITIVE THING," HE SAID.""

REPORTER JULIAN WALKER; THE VIRGINIAN-PILOT;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Although legislators' official purpose in town today is to fix state law dealing with how forensic lab-tested evidence is presented in court and hear the latest estimates on declining state revenues, the human factor in this General Assembly special session is Arthur Lee Whitfield," Virginian-Pilot reported yesterday.

"There is wide agreement that the Norfolk man should be compensated for the 22 years he spent in prison after being wrongfully convicted on rape charges. There is disagreement over how much to pay him and over what period of time," the story by reporter Julian Walker continued.

"Several legislators, including Republican Sen. Ken Stolle of Virginia Beach, plan to file bills granting relief to Whitfield, whose plight as a liver cancer patient has gained much attention.

"You have a lot of people jockeying for positions because this is, all of a sudden, it's a politically positive thing," he said.

The state Supreme Court denied Whitfield a writ of actual innocence - a legal document that establishes eligibility for compensation from the state - because he had already been freed from prison when he sought the writ. Gov. Timothy M. Kaine formally pardoned Whitfield this year.

A compensation formula created by 2004 legislation provides for payments calculated by time spent behind bars.

One-fifth of the money is paid in a lump sum and the remainder is disbursed over 25 years, according to those rules. Money is also available to cover career training costs.

Under one version of that calculation method, Whitfield would be in line to receive a package valued at roughly $445,000.

Stolle has drafted a bill that would provide that amount to Whitfield, though he has indicated a willingness to boost it to about $770,000.

Another lawmaker prepared to file a claim on Whitfield's behalf is Del. Bob Tata, R-Virginia Beach. His proposal would provide nearly $633,000 to the wrongly convicted Norfolk man, with $126,573 paid in a lump sum and the rest spread over 25 years.

Norfolk Democratic Del. Kenny Alexander is pushing several alternatives, all of which would provide Whitfield with $750,000. One would give him the entire amount in a lump sum, the others would spread it out over several years.

Alexander's bill would provide an up-front payment of $250,000 and an additional $500,000 paid in installments over 10 years.

He plans to carry legislation next year to set compensation for individuals cleared of crimes who don't receive innocence declarations after their incarceration ends.

Both gubernatorial candidates, former Attorney General Bob McDonnell and state Sen. Creigh Deeds, have said they support compensation. But the Republican has accused Deeds of mimicking his initial call for relief. And the Democrat has suggested that McDonnell's current stance is hypocritical because he previously voted, while a state delegate, against a law change allowing felons to ask courts to consider new DNA evidence that could exonerate them. McDonnell later voted to support that concept."
Norfolk resident Arthur Lee Whitfield was released from prison after serving 22 years for a rape he did not commit. (The Virginian-Pilot file photo)

A sidebar to the story - relating to the proposed law - tells us that:

"Gov. Timothy M. Kaine called today’s special session to conform state law to the standard created by a recent U.S. Supreme Court decision, Melendez-Diaz v. Massachusetts, that places a burden on prosecutors to present live courtroom testimony from forensic analysts.

Some prosecutors have said that ruling could lead to drug and drunk-driving cases being tossed out of court and guilty people going free.

Current law allows prosecutors to use a forensic lab report as evidence at trial in the absence of testimony from a technician who performed the analysis.

Among the short-term fixes proposed is giving criminal defendants the right to accept the forensic report as evidence or demand that a lab analyst testify. Another option is to adjust state speedy-trial rules so hearings can be scheduled to accommodate testimony from a forensic technician."

The story can be found at:

http://hamptonroads.com/2009/08/ga-special-session-help-wronged-norfolk-man

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: "POPULAR SCIENCE EXPOSES "THE SHAKY SCIENCE BEHIND FORENSICS;"

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"FORENSIC SCIENCE WAS NOT DEVELOPED BY SCIENTISTS. IT WAS MOSTLY CREATED BY COPS, WHO WERE GUIDED BY LITTLE MORE THAN COMMON SENSE. AND AS HUNDREDS OF CRIMINAL CASES BEGIN TO UNRAVEL, MANY ESTABLISHED FORENSIC PRACTICES ARE COMING UNDER FIRE. PM TAKES AN IN-DEPTH LOOK AT THE SHAKY SCIENCE THAT HAS PUT INNOCENT PEOPLE BEHIND BARS."

BRAD REAGAN; POPULAR MECHANICS;


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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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Brad Reagan's article, headed "CSI Myths: The Shaky Science Behind Forensics," ran in the August 2009 issue of Popular Mechanics.

"On Jan. 11, 1992, the jury in the murder trial of Roy Brown heard from a dentist named Edward Mofson," the article began.

"To establish his credentials, Dr. Mofson testified that he was certified in forensic odontology, belonged to six related professional organizations and did forensic consulting throughout New York state," it continued;

"He then explained that several months earlier he was called to the morgue in Cayuga County, New York, to analyze the body of 49-year-old Sabina Kulakowski.

Kulakowski’s corpse was found by a volunteer firefighter on a dirt road some 300 yards from the farmhouse where she lived, which had burned to the ground in the night. She was severely beaten and stabbed, and there were multiple bite marks on her body. Brown was a natural suspect in the grisly murder. The week before the crime, the hard-drinking 31-year-old had been released from jail on charges of threatening to “wipe everybody out” at the social services office where Kulakowski worked; the agency had put his daughter into foster care. In addition to the motive, the district attorney at trial produced other circumstantial evidence, including testimony from Brown’s two ex-wives that he had bitten them. But Mofson, now deceased, was the centerpiece of the prosecution.

Mofson testified that seven bite marks found on Kulakowski were “entirely consistent” with dental impressions taken from Brown. It was the only physical evidence tying Brown to the crime. Although a defense expert disputed Mofson’s findings, the jury convicted Brown of second-degree murder. He was sentenced to 25 years to life in prison.

As the years ticked by, few listened as Brown proclaimed his innocence from his cell in the Elmira Correctional Facility. Then Brown got an unusual lucky break. His stepfather’s house burned down, taking with it all of his records from the trial. To replace his documents, Brown submitted an open records request to the county. The sheriff who processed Brown’s request mistakenly sent him the entire investigative file. It revealed another suspect: Barry Bench, the firefighter who discovered Kulakowski’s body. Bench’s brother had dated Kulakowski up until two months before the murder and Bench was reportedly upset that she continued to live in the family farmhouse. On the day before Christmas in 2003, Brown sent a letter to Bench letting him know he was seeking DNA testing. “Juries can make mistakes,” he wrote. But, “DNA is God’s creation, and God makes no mistakes.” Soon after receiving the message, Bench committed suicide by jumping in front of an Amtrak train. DNA tests confirmed that Bench was guilty of Kulakowski’s murder, and Brown was set free.

The faulty identification that sent Brown to prison for 15 years may seem like a rare glitch in the U.S. criminal justice system. It wasn’t. As DNA testing has made it possible to re-examine biological evidence from past trials, more than 200 people have had their convictions overturned. In approximately 50 percent of those cases, bad forensic analysis contributed to their imprisonment.

On television and in the movies, forensic examiners unravel difficult cases with a combination of scientific acumen, cutting-edge technology and dogged persistence. The gee-whiz wonder of it all has spawned its own media-age legal phenomenon known as the “CSI effect.” Jurors routinely afford confident scientific experts an almost mythic infallibility because they evoke the bold characters from crime dramas. The real world of forensic science, however, is far different. America’s forensic labs are overburdened, understaffed and under intense pressure from prosecutors to produce results. According to a 2005 study by the Department of Justice, the average lab has a backlog of 401 requests for services. Plus, several state and city forensic departments have been racked by scandals involving mishandled evidence and outright fraud.

But criminal forensics has a deeper problem of basic validity. Bite marks, blood-splatter patterns, ballistics, and hair, fiber and handwriting analysis sound compelling in the courtroom, but much of the “science” behind forensic science rests on surprisingly shaky foundations. Many well-established forms of evidence are the product of highly subjective analysis by people with minimal credentials—according to the American Society of Crime Laboratory Directors, no advanced degree is required for a career in forensics. And even the most experienced and respected professionals can come to inaccurate conclusions, because the body of research behind the majority of the forensic sciences is incomplete, and the established methodologies are often inexact. “There is no scientific foundation for it,” says Arizona State University law professor Michael Saks. “As you begin to unpack it you find it’s a lot of loosey-goosey stuff.”

Not surprisingly, a movement to reform the way forensics is done in the U.S. is gaining momentum. The call for change has been fueled by some embarrassing failures, even at the highest levels of law enforcement. After the 2004 train bombings in Madrid, Spain, the FBI arrested Oregon lawyer Brandon Mayfield and kept him in jail for two weeks. His incarceration was based on a purported fingerprint match to a print found on a bag of detonators discovered near the scene of the crime. As a later investigation by the Justice Department revealed, the FBI’s fingerprint-analysis software never actually matched Mayfield to the suspect fingerprint, but produced him as an “unusually close nonmatch.” Lacking any statistical context for how rare such similarities are, investigators quickly convinced themselves that Mayfield was the prime suspect.

The next year, 2005, Congress commissioned the National Academy of Sciences (NAS) to examine the state of forensics in U.S. law enforcement. The result was a blistering report that came out this February, noting “serious deficiencies” in the nation’s forensic science system and advocating extensive reforms. It specifically noted that apart from DNA, there is not a single forensic discipline that has been proven “with a high degree of certainty” to be able to match a piece of evidence to a suspect. The obvious implication is the sobering possibility that more Roy Browns are currently locked up based on shoddy science. Then there’s the flip side: A lot of bad guys who should be in prison still roam free. A study by the Innocence Project of the prisoners exonerated by DNA found that the real perpetrators were identified in 103 cases—roughly half. In all but one, the perpetrator committed at least one serious crime after the innocent person was jailed.

Forensic Science Was Not Developed By Scientists: The scientific method is instrumental to our understanding of the physical world. To scientists, the process is sacrosanct: Research your topic, generate a hypothesis, test the hypothesis, analyze your data and then publish the results for peer review. Forensic science, however, was not developed by scientists. It was created by cops—often guided by little more than common sense—looking for reliable ways to match patterns from clues with evidence tied to suspects. What research has been done understandably focuses on finding new techniques for putting criminals in jail.

In the academic community the legal sciences get a comparative trickle of federal funding. In 2007, the National Institute of Justice awarded 21 grants for forensic research (excluding DNA) totaling $6.6 million; the National Institutes of Health awarded 37,275 grants totaling $15 billion. And without a wealth of statistically defensible research to back up their evidence, forensic examiners generally rely upon their own intuition and the experience of their colleagues. “You can’t take a few case studies and say, ‘Oh, it worked on these people; it must be reliable,’” says Karen Kafadar, an Indiana University statistics professor and a member of the NAS committee. “That is hardly a placebo-controlled, double-blind randomized trial.”

The FBI’s errors in the Madrid bombing case were particularly surprising because they called into question one of the gold standards of evidence—fingerprints. In recent years, legal experts have become deeply concerned about the accuracy of the “friction ridge analysis” central to fingerprint identification. Fingerprints are believed to be unique, but the process of matching prints has no statistically valid model. And forensic examiners are often working in an imperfect world, where prints taken in a police station on an ink pad are compared to prints left at a crime scene, which may be smudged or partially captured. Yet, as University of California–Los Angeles law professor Jennifer Mnookin has written, “fingerprint examiners typically testify in the language of absolute certainty.”

A 2006 study by the University of Southampton in England asked six veteran fingerprint examiners to study prints taken from actual criminal cases. The experts were not told that they had previously examined the same prints. The researchers’ goal was to determine if contextual information—for example, some prints included a notation that the suspect had already confessed—would affect the results. But the experiment revealed a far more serious problem: The analyses of fingerprint examiners were often inconsistent regardless of context. Only two of the six experts reached the same conclusions on second examination as they had on the first.

Ballistics has similar flaws. A subsection of tool-mark analysis, ballistics matching is predicated on the theory that when a bullet is fired, unique marks are left on the slug by the barrel of the gun. Consequently, two bullets fired from the same gun should bear the identical marks. Yet there are no accepted standards for what constitutes a match between bullets. Juries are left to trust expert witnesses. “‘I know it when I see it’ is often an acceptable response,” says Adina Schwartz, a law professor and ballistics expert with the John Jay College of Criminal Justice.

DNA, and How to Fix the System: Not all forensic disciplines are in dispute.
Techniques that grew out of organic chemistry and microbiology have a strong scientific foundation. For example, chromatography, a method for separating complex mixtures, enables examiners to identify chemical substances in bodily fluids—evidence vital to many drug cases. The evolution of DNA analysis, in particular, has set a new scientific standard for forensic evidence. But it also demonstrates that good science takes time.

The double-helix structure of DNA was discovered in the 1950s, but it wasn’t until 30years later that sample analysis became sophisticated enough for positive ID. In 1987, a serial rapist by the name of Tommie Lee Andrews was the first person convicted in the U.S. using DNA. Nevertheless, for several years scientists continued to research and debate what constitutes a satisfactory match. The resulting process is broadly accepted and quantifiable (when using the most advanced analysis, there is a one in more than a quadrillion chance of a random match of two strangers’ nuclear DNA).

But DNA constitutes less than 10 percent of the case load at U.S. crime labs. The goal going forward, everyone agrees, is to make the rest of forensics more rigorous and statistically grounded. Promising work is already being done: Sargur Srihari, a pattern-recognition expert with the State University of New York at Buffalo, is developing software to help quantify the certainty of fingerprint matches. And, Nicholas Petraco, a chemist and mathematician at John Jay, is working on a database of microscopic tool marks to give statistical significance to the identification of burglars’ tools.

The NAS report recommends the establishment of an independent entity—a National Institute of Forensic Science—which would be the central authority responsible for funding research as well as creating and promulgating the standards of evidence and certification for experts. If such a system worked properly, juries would only hear from experts who are certified in their fields and examiners who work in accredited laboratories.

It’s likely that the microscope of serious scientific scrutiny will turn disciplines such as fingerprint and ballistics analysis, which have long histories and large sample sizes, into stronger standards of evidence. But many other forensic disciplines may be classified as far less sound. Bite marks, footprints, tire tracks, handwriting, bloodstain patterns and other forms of analysis that suffer from multiple confounding variables could end up being used as exclusionary evidence or as qualified supporting evidence only. Some types of evidence may be completely discredited. That’s what happened with voiceprint analysis and lead analysis of bullets, which were popular forensic techniques until studies showed significant error rates.

Within the forensic community, the reaction to the mounting criticism is mixed. Some are offended and blame the “propaganda” of defense attorneys and the snobbery of academics. Dean Gialamas, president of the American Society of Crime Laboratory Directors, says most techniques have “a strong foundation in science” even if they have not been subject to the type of applied research needed to satisfy critics. And he notes that his organization has long advocated more standardization and stronger ethics rules, so hired guns can’t pollute courtrooms with biased testimony. At the end of the day, Gialamas and most other forensic experts say they are confident their methods will ultimately be validated by further research. Even critics of the current system say forensics should remain a critical part of law enforcement. “Let’s just give it to people as completely and honestly as we possibly can,” Saks says.

It will take years to fully reconcile the rigors of the scientific method with the needs and processes of the judicial system. But in the meantime, questionable forensic science will continue to tip the scales of justice. And when bad decisions are made in the courtroom, an innocent person’s entire life can be swept right out from under him. It happened to Steven Barnes 20 years ago. Then 23 years old, he was brought to trial for the rape and murder of a 16-year-old girl. He had never been arrested before and was confident he’d be cleared. Yet he watched as forensics expert Elaine Pagliaro testified that two hairs found in Barnes’s pickup were microscopically similar to the victim’s. Pagliaro also noted that soil samples taken from the truck were consistent with dirt from the crime scene and even that a distinctive pattern from the victim’s jeans was similar to an imprint left on the truck.

Due largely to her testimony, Barnes was sentenced to 25 years to life in prison. Last year, he was cleared by DNA and released. He’d never been on the Internet or used a cellular phone, and his girlfriend, who initially stuck by him after he went to prison, had long ago married another man. Barnes told Popular Mechanics that he works hard not to be overwhelmed by bitterness, even toward the jurors. “They must have thought, ‘[Pagliaro] knows what she is talking about.’”

Pagliaro, a veteran analyst with the Connecticut State Police, has recently co-authored a book called The Real World of a Forensic Scientist. “I think this scrutiny is actually good,” she says. “It’s important for the public to have a realistic expectation of what the science can do.” As for the Barnes case, there is no suggestion of impropriety regarding her testimony, but none of the evidence she presented was based on statistically validated science. “You feel awful someone spent all that time in jail,” she says. “All you can do is look back and say, ‘Was that the best we could do?’”"

The article can be found at:

http://www.popularmechanics.com/technology/military_law/4325774.html

Harold Levy///hlevy15@gmail.com;

RADLEY BALKO REVISITS MELENDEZ-DIAZ; WEIGHING EFFICIENCY AGAINST THE CONSTITUTION AND ENSURING FAIR TRIALS;

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"THE BASIC PROBLEM WITH COURTROOM FORENSICS IS THAT THERE'S TOO MUCH BIAS AND PREJUDICE IN THE ANALYSIS FOR IT TO BE CLASSIFIED AS SCIENCE. PEER REVIEW, FOR EXAMPLE, FORMS THE VERY FOUNDATION OF SCIENTIFIC INQUIRY, BUT IT'S MOSTLY ABSENT FROM FORENSIC ANALYSIS. SCIENTISTS GO TO GREAT LENGTHS TO INSULATE THEMSELVES FROM BIAS, SUCH AS CONDUCTING DOUBLE-BLIND STUDIES. FORENSIC ANALYSTS, ON THE OTHER HAND, ROUTINELY MEET WITH THE ATTORNEYS FOR WHOM THEY'LL BE TESTIFYING BEFORE CONDUCTING THEIR EXAMINATION. ONE 2006 STUDY BY RESEARCHERS AT BRITAIN'S UNIVERSITY OF SOUTHAMPTON FOUND THAT FINGERPRINT ANALYSTS WERE TWICE AS LIKELY TO FIND FALSE MATCHES WHEN THEY WERE GIVEN EXTRANEOUS INFORMATION ABOUT THE CASE."

RADLEY BALKO; REASON;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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The Melendez-Diaz case has prompted yet another column by Radley Balko, a senior editor at Reason Magazine - in this Bloggist's view one of the most perceptive commentators on the U.S. criminal justice system.

The earlier column ran under the heading, "Criminal Justice Missing From Sotomayor Hearings" and the sub-heading, "No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused."

Balko's latest column on the Melendez-Diaz case ran on August 10, 2009, under the heading: "Cross-Examining Forensics; The Supreme Court says that forensics analysts can be cross-examined...for now."

"On June 25, in a late-term, 5-4 ruling marked by unconventional alliances and sharp disagreement between the justices, the U.S. Supreme Court decided in Melendez-Diaz v. Massachusetts that the Sixth Amendment's Confrontation Clause requires forensic experts whose reports are admitted into evidence to be made available for cross-examination," the column began.

"You might have already thought that you had the right to challenge a witness who offers powerful evidence of your guilt. But until six weeks ago, that wasn't the case in many states," it continued;

"Defense attorneys and critics of the forensics system were celebratory, but they might want to check next term's docket. Just before it recessed, the Court agreed to hear a case from Virginia with very similar issues at stake. The unusual move has some Court watchers speculating that the minority in Melendez-Diaz may see former prosecutor and new Associate Justice Sonia Sotomayor as an ally. Her vote could give them a majority for a reversal or a significant limitation of last term's ruling.

Melendez-Diaz v. Massachusetts allows defense attorneys to question the authors of forensics reports about their methodology and to probe those authors' testimony for possible errors. A faceless analysis that cites a 99 percent or higher probability of a forensics match can lose some of its punch if the author can be questioned in front of a jury about the possibility of bias or human error.

The basic problem with courtroom forensics is that there's too much bias and prejudice in the analysis for it to be classified as science. Peer review, for example, forms the very foundation of scientific inquiry, but it's mostly absent from forensic analysis. Scientists go to great lengths to insulate themselves from bias, such as conducting double-blind studies. Forensic analysts, on the other hand, routinely meet with the attorneys for whom they'll be testifying before conducting their examination. One 2006 study by researchers at Britain's University of Southampton found that fingerprint analysts were twice as likely to find false matches when they were given extraneous information about the case.

In a recent cover story on forensics, Popular Mechanics summed up the problem: "Forensic science...was not developed by scientists. It was created by cops—often guided by little more than common sense—looking for reliable ways to match patterns from clues with evidence tied to suspects. What research has been done understandably focuses on finding new techniques for putting criminals in jail." In other words, where science is about process, forensics tends to be more concerned with outcomes.

Yet in courtrooms forensic evidence is usually presented as hard science, giving it a false authority that can have a powerful influence on jurors (particularly those who watch the various CSI series on television, where the well-funded, high-tech labs always identify the killer by the end of the hour). A congressionally commissioned report published earlier this year by the National Academy of Sciences found that across all forensic specialities, from medical examination to fingerprinting to hair and fiber analysis, not only does the methodology often lack scientific rigor, examiners commonly exaggerate the certainty of their findings on the witness stand, or testify to findings that have no basis in science at all. The Innocence Project estimates that half of all wrongful convictions are at least partly due to faulty forensic science.

The Melendez-Diaz decision recognized these problems. "A forensic analyst responding to a request from law enforcement may feel pressure—or have an incentive—to alter evidence in a manner favorable to the prosecution," Justice Antonin Scalia wrote in the majority opinion, adding, "Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well."

The decision didn't mandate that states change the underlying systemic problems with forensics that give rise to bias and improper incentives in the first place. It merely gave defendants the opportunity to raise these issues in court. But even that modest reform has the old guard up in arms. Last month, the Washington Post reported that all across the country, Melendez-Diaz "has prosecutors and judges shaking their heads in disgust," issuing dire warnings that "murderers could walk free" and "drunken driving cases could be dismissed." Lab workers just don't have time to traipse off to court to defend their results, the officials complain.

That's too bad. But the Bill of Rights protects us from government overreach. To say we should suspend constitutional protections because keeping them in place would prove inconvenient to the government rather misses the point. If there aren't enough analysts to both work the lab and testify in court, states will either have to budget more money for forensic analysis, or prosecutors will have to start prioritizing cases with the budgets they have. If the criminal justice system has adapted to new technology in a way that doesn't pass constitutional muster, it simply needs to change.

For example, the Post notes that an amicus brief written for the Melendez-Diaz case by a group of state attorneys general explained that the vast majority of crime-lab work involves testing for drug cases, and warned that a decision mandating confrontation could mean that more of those cases come to trial. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," the brief warned. Perhaps, then, prosecutors should stop devoting so many resources to consensual crimes. That would free up analysts to work on crimes that have actual victims.

If the Court significantly narrows the scope of Melendez-Diaz next term, the complaining judges and prosecutors may yet get their way. That's good news if you're merely concerned with efficiency. It's less reason to celebrate if your concern lies with the Constitution, or with ensuring a fair trial."

The column can be found at:

http://reason.com/news/show/135325.html

Harold Levy...hlevy15@gmail.com;

PROF PREDICTS SOTOMAYER WILL VOTE AGAINST SUBMITTING SCIENTIFIC EXPERTS TO CROSS-EXAMINATION; TOP COURT WILL HEAR FOLLOW-UP TO MELENDEZ-DIAZ; NYT;

"“I WOULD HAVE EXPECTED HER TO HAVE VOTED AGAINST SUBJECTING SCIENTIFIC EXPERTS TO CROSS-EXAMINATION,” SAID CRAIG M. BRADLEY, A LAW PROFESSOR AT INDIANA UNIVERSITY, REFERRING TO A 5-TO-4 DECISION FROM THE COURT IN JUNE. THE DECISION, WITH JUSTICE SOUTER IN THE MAJORITY, RULED THAT CRIME LABORATORY REPORTS MAY NOT BE USED AGAINST CRIMINAL DEFENDANTS AT TRIAL UNLESS THE ANALYSTS RESPONSIBLE FOR CREATING THEM GIVE TESTIMONY AND SUBJECT THEMSELVES TO CROSS-EXAMINATION.

THE COURT HAS AGREED TO HEAR A FOLLOW-UP CASE, AND THE NEW JUSTICE WILL HAVE TO CONSIDER WHETHER TO NARROW THE SCOPE OF THE DECISION FROM JUNE, MELENDEZ-DIAZ V. MASSACHUSETTS."

REPORTER ADAM LIPTAK; THE NEW YORK TIMES;

PHOTO: JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"Now comes the hard part," the story by reporter Adam Liptak, published on August 6, 2009, under the heading "Sotomayer faces heavy workload of complex cases" begins;

"With the Senate’s approval of Judge Sonia Sotomayor’s nomination to the Supreme Court on Thursday, the new justice will soon take on one of the most demanding jobs in the land," the story continues;

"Just over a month from now, Justice Sotomayor will hear her first case, one that may transform how elections are financed, at a special summer session of the court. A few weeks later, she will join her eight new colleagues to decide which of the hundreds of appeals that have piled up over the summer the court should hear.

The volume and difficulty of the work, and the task of fitting into a storied institution populated by strong and idiosyncratic personalities, has unnerved even judges with distinguished records on lower courts, fancy credentials and ample self-confidence.

“I was frightened to death for the first three years,” Justice Stephen G. Breyer, who joined the court in 1994, said in a 2006 interview. Justice David H. Souter once described coming to the court in 1990 as like “walking through a tidal wave.”

The new justice’s presence will unsettle and reshuffle the court, sometimes literally. When she takes the seat reserved for the junior justice — the one on the spectators’ far right side — four other justices will move to new places on the bench. When there is a knock at the door during the justices’ private conferences, it will be Justice Sotomayor’s job to answer it.

In addition to the blockbuster election-law case, the new term is frontloaded with important First Amendment, business, criminal and patent cases. Justice Sotomayor’s early votes and opinions, along with alliances she forges, will provide answers to at least some of the questions she avoided in confirmation hearings.

But Supreme Court specialists said they do not expect her to take a fundamentally different approach from Justice Souter, whom she is succeeding, in most kinds of cases. They also cautioned that a justice’s first few years are often a poor indicator of a long-term philosophy.

“Few justices write broadly or stake out new terrain in their first terms,” said Richard H. Pildes, a law professor at New York University who served as a law clerk to Justice Thurgood Marshall.

“The Supreme Court is an intimate group of equals who will live together for years,” Professor Pildes added. “Most newcomers tread gently as they come to terms with the dynamics of the group and a daunting array of new issues, including questions lower court judges never face, such as how bound to be by prior Supreme Court decisions. The cases are harder, the ramifications of decisions far more consequential.”

For Justice Sotomayor, the new job will start with hearing the election-law case Citizens United v. Federal Election Commission. It concerns whether the government may limit the showing of a negative documentary about Hillary Rodham Clinton under the campaign finance laws, and it attracted only limited attention when it was first argued in March.

In an unusual move in June, though, the court set the case down for re-argument on Sept. 9, asking the parties to address the question of whether it should overrule a foundational decision about the regulation of corporate speech and part of a decision upholding the McCain-Feingold campaign finance law.

Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, said Citizens United is “one of the most important First Amendment cases in years.”

“It has,” Mr. Chemerinsky added, “the potential for dramatically changing all federal, state and local elections if the court holds that corporations have a First Amendment right to contribute money to candidates.”

The docket is also studded with business cases, and the decisions in them will provide hints about how the court will treat disputes arising from economic legislation pushed through Congress by the Obama administration.

“The Supreme Court,” said Joseph A. Grundfest, a law professor at Stanford, “will likely issue important decisions defining the permissible level of punitive damages, the validity of business method patents, whether and when parallel conduct among competitors violates the antitrust laws, and statutes of limitations in securities fraud action. But who the heck knows how Justice Sotomayor will vote in any of these cases?”

A former prosecutor, district and appellate court judge, she has a more fully developed record on criminal issues. Her views are in some ways more conservative than those of Justice Souter, meaning that this is an area where her vote may make a difference.

“I would have expected her to have voted against subjecting scientific experts to cross-examination,” said Craig M. Bradley, a law professor at Indiana University, referring to a 5-to-4 decision from the court in June. The decision, with Justice Souter in the majority, ruled that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.

The court has agreed to hear a follow-up case, and the new justice will have to consider whether to narrow the scope of the decision from June, Melendez-Diaz v. Massachusetts.

A pair of cases concerning whether the Constitution allows juvenile offenders to be sentenced to life without parole for crimes in which no one was killed will also illuminate Justice Sotomayor’s views on harsh punishments. They may also answer a question not fully resolved at her confirmation hearings, that of whether she will look to the decision of foreign courts in considering the issue, as the court did in barring the execution of juvenile offenders in 2005.

The lower courts in the two new cases, both from Florida, had no difficulty ruling against the inmates who brought them. The courts said they were bound by Supreme Court precedent. But the Supreme Court itself is free to alter or reinterpret its precedent.

Justice William J. Brennan Jr., who served for more than 30 years and who wielded his charm and intellect to forge sometimes unlikely liberal majorities, said there was no way to get ready for such a task.

“I say categorically that no prior experience, including prior judicial experience, prepares one for the work of the Supreme Court,” Justice Brennan wrote in 1973. “The initial confrontation on the United States Supreme Court with the astounding differences in function and character of role, and the necessity for learning entirely new criteria for decisions, can be a traumatic experience for the neophyte.”"

The article can be found at:

http://www.nytimes.com/2009/08/07/us/politics/07scotus.html?_r=1

Harold Levy...hlevy15@gmail.com;