Wednesday, April 22, 2015

Fore What?

After yesterdays post about the flawed if not duplicitous testimony by FBI agents that led to convictions and in some cases exterminations, whoops I mean executions, of possibly innocent individuals it once again raises the dubious sector of forensic science and what it comprises and the role of "expert" testimony.

In both criminal and civil trials the role of the expert is in fact almost de reguier and if not required by law, expected by nature.

I have written extensively that much of what comprises "expert" testimony is in fact quite laughable if not dubious as they have self published, they are paid for by varying companies to ensure liability is not exposed or just simply hired guns. You get what you pay for frankly and you can go out of your way to find expert after expert and have an expert off in a courtroom and ultimately the Jury and/or Judge can ignore or dismiss this evidence regardless of the qualifications, the legitimacy of the science and the costs associated with employing such experts.

As one who has found that this heavy reliance on such often means nothing. What it means is that the Lawyers can simply rely on another individual or party to somehow muddy the waters when simply good lawyering would suffice.

The debates currently on the charming blawgosphere have found that in fact an admission that much of the "science" is in fact junk yet they rely on it implicitly as a way of defending their clients. Today in the
internet age you would think that a quick Google and some time reading actual verifiable sources and data would be sufficient to cite in court but no we must get that individual to fly across country to read to us his/her research. And you wonder why few cases go to court and only the rich survive the process.

I think the blog at Public Defender discusses the entire notion of expert quite well in this post about a subject that seems to resonate ironically quite well as another case of merit on the subject is now in the Texas courts regarding  the San Antonio 4 and their erroneous convictions.

Poors are not allowed experts and have to rely on the Prosecutions experts to somehow invalidate their own beliefs. And they are just that "beliefs" And the courts have debated this extensively and with almost always on the side of science be it junk or otherwise. And again A Public Defender explains that this is not as easy as a task as it seems.

There are few as in DNA that has an almost certainty, yes even fingerprints are questionable. We have medical Doctors and other professionals who jump on the bandwagon or again are simply paid for their time and trouble to fit an argument into the appropriate square peg or round hole as needed.

The Judge is the gatekeeper, and once that "expert" takes the stand for either side and allowed to digress on the meaning of evidence and its conclusiveness and reliability it makes the Jury irrelevant. As now Bill Nye the science guy has said says the glove and the fingerprint fit so don't acquit. That bullet next to the body, the pattern of gas, the baby was shaken, all can validate that he did it. The question is answered by science, and the jury can sleep well at night knowing that they convicted the right person

While all of the infirmities of proof in the courtroom appear obvious to scientists, they are hardly so clear to others. Judges may not get it, and often don’t. Lawyers fare no better. But that shouldn’t be the stumbling block, as neither judges nor lawyers are scientists. All Lawyers need to do is get an expert of our own in whatever discipline is in issue, put the expert on the stand to refute the other expert and its dueling banjos without anal rape.

To find a legitimate expert is a challenge. And most people who possess real expertise have little interest in being a witness. There are experts for sale all over the place, and most have no greater expertise than the carnival barkers who shill for the prosecution. The good ones, the real ones, aren’t nearly as interested in being cross-examined as they are in writing editorials. Yet that is not admissible, a written validated journal in which to present on its own merits and used alone to cross examine the State or Plaintiff's witness? You mean you can't do that?

Experts need to be paid. There really isn’t much more needed to be said about this. As sincere as their belief may be in whatever their expertise, they don’t appear for love. I understand that they should be compensated for their time but that is one factor that is in short supply in the courtroom of the poors, money.  And real experts aren’t cheap. If you think lawyers are expensive, put an expert on the stand for an hour.

Experts need to be persuasive. Some people are experts in answering questions at trial, but they rarely are the same as the experts in the underlying discipline. In contrast, many scientists who possess true expertise in their field suck as witnesses. They equivocate. They are obtuse and incomprehensible. They say one thing in the office, than say something entirely different on the stand. They get flustered or angry. They are called for the purpose of furthering the truth, and end up looking like idiots because cross-examination doesn’t happen with the niceties of an academic symposium. Sounds great after writing a check. Trust me I refused and then mid trial my Lawyer called  the Doctor went oh shit she is right. Duh! But we did not have her testify as I still would not pay her. And good thing as the Judge threw my entire defense out the window. So imagine that money and time and "expertise" all for nothing.

There is no question nearly all the science offered in courtrooms is unreliable nonsense, and to the limited extent the participants aren’t clueless or blind, they realize it. But without it, the system would grind to a halt and the guilty, along with the innocent, would go free. The only thing more important than faith in scientific evidence is faith that our legal system will protect us from the criminals. Isn't that all that really matters? Nail em and jail em.

But in all honesty this could be repaired with some changes that enable Judges to be experts on certain matters, Attorney's who specialize and in turn Juries allowed to read extraneous material to be brought up to par on the subject. Remember they are told to be utterly ignorant while serving and there is know better jury than a dumb one.

Radley Balko of the Washington Post has written extensively on junk science and the ability of influential yet utter abjct morons with the right pedigree to convict anyone at anytime regardless. There are others now such as Marshall Project or the series on Al Jazeera last year about our busted system of justice. We care so little about working hard yet we quote that phrase relentlessly that I am amazed how stupid most people I meet are. I said this before, I never had a Jury of my peers as my peers would be intelligent. I did not have that on mine. It is why I let the Court go and spent as little as possible as I knew it would all fall to appeal as it has done. There it is matter of law and the ability to rely on that, the bullshit goes out the window. Well there are still Lawyers so no not all bullshit.

Fix the Flaws in Forensic Science

The New York Times
APRIL 21, 2015

THE F.B.I. stunned the legal community on Monday with its acknowledgment that testimony by its forensic scientists about hair identification was scientifically indefensible in nearly every one of more than 250 cases reviewed. But the conclusion should come as no surprise to scientists. It is the culmination of a collision between law and science that began in 1989 in a Bronx courtroom with the murder trial of a janitor.

The case was the first to carefully evaluate the use of DNA fingerprinting. As a geneticist, I served pro bono as an expert witness for the defense. While prosecutors were dazzled by the potential of DNA technology to pinpoint perpetrators, the testing lab’s work proved to be shoddy and its conclusions unreliable. In a rare move, the scientific experts for both the prosecution and defense met and unanimously declared the DNA evidence unacceptable. The trial judge had little choice but to agree.

Shaken by the ruling, the National Academy of Sciences and the F.B.I. moved in the early 1990s to establish rigorous methods for DNA fingerprinting, which soon became the gold standard for forensics. The lawyers in the Bronx case, Barry Scheck and Peter Neufeld, went on to start the Innocence Project, which has used DNA as an objective lens to scrutinize past convictions. Such efforts have led to the exoneration or release of more than 300 people, including 20 who served time on death row.

As miscarriages of justice piled up, it became essential to understand precisely how the criminal justice system made such mistakes and how to prevent them. Troublingly, about a quarter of the cases examined by the Innocence Project (on whose board I now serve) involved forensic scientists who had erroneously claimed to identify defendants with near-certainty by matching hair samples, fibers, shoe prints or bite marks.

There were clearly fundamental problems with forensic science. A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.

Then, several years ago, three men from the Washington area — Kirk Odom, Santae Tribble and Donald Gates — were exonerated in separate cases. They had served more than 70 years in prison in total. In each case, F.B.I. examiners had told juries that the defendant’s hair matched hair at the crime scene, based on microscopic hair analysis. One prosecutor put the odds at perhaps one in 10 million that the hairs belonged to someone other than the defendant. (In fact, subsequent DNA testing found that none of the hair samples matched the defendant, and that one was from a dog.)

Those cases proved to be a turning point. To its credit, the Justice Department reached an agreement with the Innocence Project to review F.B.I. testimony about hair analysis in more than 2,500 cases in more than 40 states from 1985 to 1999. The results of the first 268 cases examined were reported Sunday in The Washington Post. The review found that F.B.I. testimony was fundamentally flawed in 257 of those cases — a stunning 96 percent of the total. Of those defendants, 33 received the death penalty and nine have been executed so far. Although the errors don’t necessarily mean the defendants are innocent — other evidence might have supported conviction — the F.B.I. plans to notify prosecutors and prisoners of the findings.

The problem is not limited to hair analysis. Last month, Alabama released a man from death row who had been convicted 30 years ago based solely on ballistics evidence; the state now concedes that the bullets in question did not actually match the weapon used. A few years earlier, Mississippi released two men who had been convicted of separate murders based on testimony that their teeth perfectly matched bite marks on the victims. After the true killer was later identified by DNA, experts concluded the wounds were not human bites after all but were most likely caused by crawfish and insects nibbling on the corpses.

The Justice Department, in collaboration with the National Institute of Standards and Technology, took an important step to bring rigor to forensic science in 2013 by appointing a national commission on the issue. It has had a rocky start: Judge Jed S. Rakoff, a federal judge in Manhattan, resigned from the panel in protest in January when a Justice Department official sought to limit the panel’s scope, but returned when the department reversed that approach. The commission, most of whose members are tied to law enforcement or involved in current forensic practice, now needs to listen to its independent panelists and get down to making rigorous recommendations.

Under the federal rules of evidence, expert testimony must be based on “reliable principles and methods.” It is now abundantly clear that an expert’s opinion is not a reliable basis for drawing connections between evidence samples and a particular person. No expert should be permitted to testify without showing three things: a public database of patterns from many representative samples; precise and objective criteria for declaring matches; and peer-reviewed published studies that validate the methods.

Insistence on high-quality forensics should unite law enforcement, prosecutors and defense attorneys. It’s a matter of both justice and safety: No one wants innocent defendants in jail — or executed — while true perpetrators are still at large.

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