Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Thanks in large part to Cameron Todd Willingham and the work of the Innocence Project the problems with arson investigations are now well known. Almost everyone now concedes that there prior convictions that are flawed by investigations involving false assumptions and bad science (if it can even be called that) While courts - and individual judges - have publicly acknowledged the problem, they have been slow to actually do anything about it. Hopefully that may be changing.

Several recent cases show that the courts may be starting to take this seriously. The Third Circuit Court of Appeals last week sent a case back to the District Court for an evidentiary hearing. In doing so the court suggested that a conviction based on faulty science might constitute a due process violation.

In another case a federal magistrate in California in considering whether George Soulitous' 1997 conviction should be set aside because it was based on a faulty investigation. According to a former ATF agent:

Steven W. Carman, a fire investigator for 20 years with the U.S. Bureau of Alcohol, Tobacco and Firearms, said Modesto investigators relied on fire patterns and other forensic evidence that amounted to "a laundry list of things we used to believe broadly in this profession that have since been widely discounted."

Finally, an Ohio inmate is challenging his arson conviction before the parole board.

There is no doubt that these attacks are going to continue, as more cases are identified. Let's hope the Court's are up for the challenge.

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This is a guest post by Allison Gamble. She can be reached at alliegamble812@gmail.com

Forensic Psychology and the Criminal Justice System

 Dating back to the late 19th century, the field of forensic psychology adds another profound dimension to the criminal justice system. Forensic psychologists are combined criminal justice experts and psychologists. They can be trained in clinical, social, or any other branch of psychology. To be credible and useful as expert witnesses, they must also be familiar with the law and the workings of the judiciary system in order to interpret psychological findings and information for use in legal contexts.

 This interpretive role is forensic psychologists' primary legal function. They are often called upon to evaluate defendants' capability to stand trial, or determine their sanity at the time the crime was committed. They also provide psychological services within the legal context including assessing witness credibility, making treatment recommendations, conducting adult and juvenile pre-sentencing evaluations, and counseling offenders on probation.

 All these services provide a jury with insight into defendants' state of mind. Besides the value of such insight to court proceedings, the specialized psychological perspective enables authorities to appropriately handle and treat mentally ill defendants and rehabilitate offenders. Combining the science of psychology with the system of criminal justice results in a more effective judicial system able not only to punish offenders but facilitate the mental health help they may require.

 One example of a case in which forensic psychology has played a significant part is the case of 42-year-old David Tarloff. Tarloff was on trial for murdering a doctor who shared an office with Tarloff's intended victim, Dr. Kent Shinbach. Tarloff, who has a history of obsessive behavior, had been diagnosed with paranoid schizophrenia, and repeatedly committed over the course of his life, intended to rob Shinbach of $50,000. This money would help him to remove his mother from a nursing home and take her on a trip to Hawaii. To aid in the robbery, he brought a meat cleaver with him to Shinbach's office. Upon arrival he encountered Dr. Shinbach's office mate, Dr. Kathryn Faughey. Convinced she was about to take his life, he cut Faughey 15 times with the meat cleaver, killing her.

 After the murder, Tarloff fled but was later captured by police when his palm prints were matched to prints on a suitcase filled with women's clothing left at the scene. When brought to court, he filed a plea of not guilty by way of insanity. He claimed he was temporarily insane, and was therefore not responsible for his actions. As evidence of this, he produced 10,000 pages of psychological records attesting to his mental instability, as well as his record of multiple arrests for assault and threatening homicide.

 The judge dismissed Tarloff's claim of temporary insanity because of a surveillance tape which showed him scoping out an escape route from the office, indicating premeditation of the crime. He was instead deemed mentally incompetent, which meant that he was unable to stand trial because he couldn't comprehend what was happening in the court proceedings. After a year in a state psychiatric hospital, he was assessed as able to stand trial.

 However, once he was taken to the courthouse, he refused to leave his holding cell. The judge ordered him back to the hospital, where he proceeded to remove his clothing and run naked around the ward. Again the judge ruled Tarloff mentally incompetent. He underwent a second psychological assessment, during which he refused to say a word. Officials at the hospital refused to divulge information about Tarloff to avoid running afoul of confidentiality laws, and ultimately Tarloff was deemed mentally incompetent for a third time.

 Without the assistance of forensic psychologists in this case, a man who was clearly not fit to stand trial could have been convicted of murder, when what he really needed was serious psychiatric help. Forensic psychologists are absolutely essential in high-profile cases such as this, as well as more routine ones. While the image of forensic psychologists as ace investigators with uncanny insight into the minds of criminals may be played up by popular crime dramas, their pivotal role as facilitators of fair and conscientious legal proceedings can't be underestimated.

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Thanks to the Attorney General opinion the Forensic Science commission officially closed the lid on the Willingham investigation. A supposed bright spot is the decision by the State Fire Marshall's office to review old cases. Admittedly I have been suggesting that for a long time. The question I have is whether the Fire Marshall's office is the proper entity to review cases. An even more important question is what happens when they find a case that is based on faulty testimony.

As for the first question, I have already criticized the Fire Marshall's office for their support of the Willingham investigation. While it 's admirable to not abandon a sinking ship, they lost all credibility by trying to defend an investigation that cannot be defended. The whole reason for reviewing old cases to determine what impact the the false assumptions used by investigators had. If the Fire Marshall's doesn't accept the premise that false assumptions and bad science were used, then how effective can their review be?

The second question is more basic - what happens if they actually find an investigation was flawed. As I pointed out earlier, relief through the courts may now be non-existent. If the court's won't grant relief what is left - an apology - oops, sorry your going to have to stay in prison even though you probably aren't guilty. I suppose the parole board/governor could grant relief, but I'm not  holding my breath on that.

A thorough review of old cases is a good first step. But it is only a first step. We already know what they are going to find - lots of people that shouldn't  have been convicted. Unless we come up with a way to fix that problem then review is nothing more than a  useless academic exercise.

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The Amanda Knox case appears to be a never ending. She was convicted in 2009 in an Italian court of murdering her roommate. At the trial the prosecution used DNA evidence, which showed that both Knoxs and the victim's DNA was on the knife that was believed to be the murder weapon. There was also DNA from the victim and a co-defendant found on a bra clasp. That evidence was subsequently called into question.

A court ordered review of the evidence questioned the validity and reliability of the evidence, as well as raised questions of contamination. Did you get that? Yes, the court appointed an independent expert to review the evidence after the conviction. Something that is virtually unheard of in the United States.

Predictably, the prosecution questioned the independent expert, and wanted to have their own expert re-examine the evidence. That request was denied. Again, something unusual for this country.

I have no idea how the Italian justice system operates, or how the case got to this point. My interest has been in the forensics, which was always a critical part of the government's case. As I have suggested before, there are always problems when the justice system turns to science to decide guilt or innocence. In the United States, we have yet to come up with a solution for the situation present here – namely, the subsequent discovery that the forensics was faulty. It appears they take that far more seriously in their places.

I wonder what would happen in the United States if trial judges showed the same concern for the integrity of the conviction. Far too often, once a defendant is convicted that is the end of it and everyone moves on to the next case. It takes a monumental development to undo a conviction, even when everyone recognizes there are problems with it. A good first step would be for the court to appoint its own expert, and not rely on dueling experts presented by the prosecution and the defense.

I don't know how it will all turn out. The fact that the evidence is being re-examined is significant though and something we can learn from.

 

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I've written several times about the use of forensics in criminal cases and the problems that result when you allow scientists to decide guilt or innocence. Most recently I noted the horrible decision from the Court of Criminals in Ex ParteRobbins that allows convictions to stand even when an expert admits they got it wrong.

The fact that the expert  in Robbins reviewed the case at  all  was amazing enough. Most of the time once a conviction is obtained everyone moves on to the next one. It is up to the defendant to initiate review, and since most defendants don't have lawyers at this point that means the chances of having the case re-reviewed are almost - zero. They  have to be lucky to enough to find a sympathetic lawyer, or have family who know what they are doing.

What  would happen if experts routinely reviewed their prior cases? Or had a duty to do so? Well apparently they do in most places - just not the United States.  I recently came across a blog post titled "Honesty in Forensic Science", written by Anna Sandiford. She had the following to say:

At the end of the day, lawyers are there to deal with the law; forensic scientists are there to deal with the science and it shouldn’t be left to defence lawyers (or prosecutors, come to that) to dig around to see if, on the off-chance, they can find anything amiss with the other side’s expert’s work.  One of the basic rules of examining witnesses is never to ask a question to which you don’t know the answer.

Many times I hear lawyers say how they hated science at school and how having to deal with forensic scientists makes them go cold at the thought – it has to be the duty of the expert to deal with the science and its meaning.  Of course, the reason that independent forensic scientists like me advocate for review of all science being presented in court is so that we can pick up problems like changes in findings that haven’t been notified to the court – not all scientists are transparent about what they do and there are also accidental errors and omissions – we are human after all.

Much to my surprise, she pointed to the guidelines for experts in England and New Zealand which place just such a duty on experts. Too bad we don't have that here.

While you might think this would create a tremendous burden on scientists I don't believe that would be the case. The situations where science changes to a significant degree are relatively few, and scientists know when that happens. They also know better than anyone what cases might be effected, so it makes sense to place the burden on them. And while it is a burden, is it really too much ask someone to go back and re-evaluate an opinion that put someone in prison, or got them convicted?

If experts don't do this, then its up to the courts, and maybe even the legislature. Unfortunately, we've already seen the court's are not the place to resolve the issues, and most representatives are far more concerned with getting re-elected than doing what is right. So perhaps that means the battleground is public opinion.

I'm not sure what the solution is, but the first step is in recognizing there is a problem.  Surely that shouldn't be that hard.

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If there is one thing DNA has done over the last several years it's demonstrate how unreliable eyewitness identifications are. Out of the 250 exonerations so far, 190 of them have involved mistaken identifications. Social scientists and lawyers have known for years that such identifications are not nearly as accurate as everyone believes. The human brain is not a camera, and identifications and memory are based on a number of external factors. I've written about this before - here and here and  for example, and will no doubt continue to do so.

Even with knowledge that eyewitness IDs are flawed, jurors and prosecutors continue to accept them without question. Courts likewise allow identifications, even when the circumstances surrounding the ID are suspect. Years ago the Supreme Court set out guidelines for challenging eyewitness IDs. Those guidelines done almost nothing to limit the use of eyewitness identification in court. The basic premise is that a suggestive identification violates due process. The problem has been in determining what is or is not suggestive. In practice if a witness comes into court and identifies the person, and claims that identification is based on what they saw, it is going to come in.

The Supreme Court may be stepping in.  Adam Liptak of the New York Times wrote about a case the Court agreed to hear earlier this year -  Perry v. New Hampshire. How far they will go is the big question. The question before the Court is extremely limited -  whether due process is only implicated when the suggestive circumstances are the result of police conduct.. As a result, the immediate impact of any holding may not be great. The court could have a huge impact by addressing the broader issues in eyewitness ID's, and emphasizing the role of the trial court as the initial "gatekeeper".

There is at least some hope that the tide is turning, and that jurors will be more discriminating in accepting eyewitness testimony. It's probably too much to ask that prosecutors and judges will follow suit, but you can always hope.

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If you've read any of the posts on this blog you know I have an interest in how forensics are used in the criminal justice system. When I first started law school the standard joke was that you went to law school because you flunked science. Many lawyers took that to heart, and made no attempt to understand the science. Granted, it wasn't used that often. But when it was, everyone usually accepted what the "scientist" said.

There's no doubt that has changed over the years. We now know that just because someone is scientist, or has some advanced degree, doesn't make them infallible. We also know that much was portrayed as science is not as accurate as they claimed. There is a lot more subjectivity involved than anyone would have guessed.

Thankfully, education is now available. Texas has one of the best forensic seminars around, and it is put on annually by the Texas Criminal Defense Lawyers Association. The National Association also  has had several programs dealing with forensics in the last few years. What brought this to mind was seeing an article by an author with the Wisconsin Bar Association entitled Forensic evidence: Do criminal lawyers need science training on principles and methods? 

The answer is obviously year, and I hope all criminal defense lawyers are taking advantage of every opportunity they can to learn more about the forensic sciences. If they do, then the justice system may just work like it should  - and not blindly accept the opinions of the scientists who have for too long  have gone unchallenged.

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I've written before about how DNA has been held up as the "gold standard" - the standard against which all other forensic evidence should be measured. As many expected, that declaration was a tad premature.

The problem is not with the actual DNA results. If done properly, it is what it is. Anyone who has seen DNA results knows there is a sequence of numbers, and graphs from the actual tests. The problem comes when a human being looks at that data, and interprets it. At that point problems can arise - including subjectivity.

Itiel Dror and Greg Hampikian recently published a paper titled Subjectivity and Bias in forensic DNA mixture interpretation. They wanted to address the potential problems in interpreting evidence when there may be multiple suspects. The situation most commonly occurs in sexual assault cases where there are multiple perpetrators. There may not be enough to conclusively identify one person, but there may be enough to say an individual cannot be excluded - which in the minds of most jurors means you must have done it.

They obtained an actual case out of Georgia that involved a gang rape. One of the alleged suspects identified and testified against the others. The results of the DNA analysis - by examiners who knew who the suspects were - could not exclude the others, which corroborated the co-defendant testimony.

The actual data was submitted to 17 qualified analysts who routinely do forensic work. No other facts were sent, so the examiners did not know who the suspects were. The results obtained without that contextual information were startling. Only one of the 17 agreed with the original examiner. Even more startling is that 12 examiners would have EXCLUDED the suspect they looked at. The remaining 4 would have called the results inconclusive.

The implications are clearly serious - the corroborating evidence didn't corroborate the co-defendant, but actually contradicted him. Even more troubling though is the unmistakable conclusion that subjectivity does in fact play a role - even if not a conscious one. The probability that this was the result of a simple mistake is simply not believable. Perhaps if the consensus was the data was inconclusive you might chalk it up to a difference in opinion. But when so many examiners read the evidence the exact opposite something more is at play

How - or even if - the scientific community addresses this problem is an open question. The lesson for lawyers is clear. You cannot simply rely on the state's experts, who performed their analysis with knowledge of the facts and who the police were trying to build a case against. You must have someone else look at the evidence, and if their results are different challenge.

As for those already convicted, that will have to be a subject for another post.

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This is a continuation of my thoughts on the American Academy of Forensic Sciences Meeting. A benefit of programs like is the opportunity to meet nationally recognized experts, and see how they approach things. Unfortunately, there is a pretty big disparity in the quality of forensic scientists; if you don't know how the good ones approach cases you don't know what you are missing. Unlike the experts you often encounter at trial, most of the presenters at the program didn't appear to be all that impressed with themselves.

One of the more interesting speakers the first day admitted that he could have – and should have – been attacked when he testified as an expert. He set out some things to look at to determine whether testimony meets the “crap test”. Basically they were areas you should look at, which included:

• Interpretation – what was the result of interpretation, and is it valid and supported
• data – what is the opinion based on
• report – how complete is it (if there is one), and does it explain the process used and any assumptions made
• variability – where evidence is tested, was there an adequate sample. This is particularly important in drug
• references – are any cited or relied on
• skepticism – this has to do more with peer review. Has someone else looked at the opinion and tried to find the holes that exist. Obviously in most cases there is no such thing.

Looking at those factors, it is a pretty good checklist to use when evaluating forensic evidence. One of the most overlooked  factors – at least in my experience – is the assumptions used. To reach an opinion about anything, you have to assume certain things. If the assumptions are not valid, then the opinion cannot be relied. You don't know if the assumptions are valid unless you know what they are.

Another factor that is often overlooked is the data relied on. An opinion is only as good as the data it is based on. Many times, all the data is not set out, and it is our obligation to find it. You may have to look hard – and dig deep – to discover what data was used.

The final thing I took away from this presentation – as well as several others – was the idea of skepticism. As I set out yesterday, there is usually a monopoly of opinion. When someone else does look at a report – e.g. fingerprints – how rigorous is it. Do they really scrutinize the results, and try to prove the opposite? I think more often than not they merely look to determine if its close. If he State won't do this, then it becomes our obligation to put the evidence to the test.

 Another presenter focused on something I learned a long time ago. If an expert asks you to "trust them", red flags should pop up immediately. A good expert should never have to ask anyone to trust them. If they can't explain their opinions and trust you to reach the right conclusion, then they probably don't know what they are doing

Another red flag is "based on my training and experience". Just because you have been doing something for along time doesn't mean you are good at it. Nor does it mean you cannot make mistakes. Any doubt should be put to rest by looking at the the Brandon Mayfield case - where the  most experienced fingerprint examiners in the country all got it wrong.

I left Chicago with my head about to burst, If I learned anything it was that I don't anything. It also reinforced my opinion that we can do a lot more to challenge forensic evidence - especially it is  critical to the State's case. We all have a long way to go to educate ourselves on the forensics involved in our cases. We have to do it though - our clients freedom depends on it.

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I survived my first day at the Academy of Forensic Sciences Convention. It was nothing like anything I have ever been to. Having been to a number of national seminars, I've seen some pretty big crowds - but nothing like this. I have no idea how many people there are, but I'm guessing well over a 1,000.

The seminars are set up a lot like TCDLA's annual forensic seminar, with a number of tracks going on at the same time. Basically there are 12 different seminars going on; which means you have to spend a lot of time mapping out what  you want to go to. A big difference from most legal seminars I have been to is the length of the presentations - most are 20 minutes. I supposed most people would say a lawyer can't introduce themselves in 20 minutes - and there is some truth to that.

Much of today was spent discussing the problems with forensic evidence; not surprising given the attacks that have flowed from the NAS report. As you can imagine, some are none to happy with some of the tactics being used. However, everyone I listened to today acknowledged that there are problems that need to be identified and addressed.

One of the first sessions identified the "monopoly" in forensic science. The idea is that the vast majority of forensic tests are done by crime labs; most of the testing is never challenged, wihich results in a monopoly in interpretation. Obviously if something is never challenged, the likelihood of uncovering mistakes is small.

Most of he presenters recognized the concept of cognitive bias. One referred to it as "observer " bias, or "rational bias", noting that it always exists. As he said, everyone has a point of view - you can't avoid it. The problem arises when tests are ambiguous - you have to choose how to resolve that, which cannot help but be influenced by your point of view. When you work every day with police and law enforcement no one should be surprised if you have a favorable view of them - and want to help. (this is my own theory - not anything anyone said today by the way)

Another big topic of discussion was error rates, with most people pointing out how non-specific it is; in other words, what does it mean. A more accurate analysis would be to look at the number of false positives (how accurate the tests are), and false negatives - how precise or specific they are. Another important concept is resolution - which is how precise a test is. The example is ABO vs DNA testing - where one includes someone and the the latter excludes them. The ABO test was correct in including the person, even though the more precise test excluded them. An interesting paradox is that the more precise a test, the more chances there are for error - think of a ruler. The more measurements there are the greater the chance you will read it wrong.

A couple of professors in statistics/mathematics also presented. They presented the concept of a likelihood ratio - which shows how likely the test results are correct. I'll talk more about in another post.

There was also some good information on pathology and trace evidence, as well as DNA. A recurrent them was that lawyers need to get all the information possible. There is much more interpretation involved in all areas of forensic science than most people realize. An interesting discussion addressed the reporting of DNA results involving a mixture - there were several opinions regarding how it could be reported. All were correct, and all involved choices. Unless you had all the information you wouldn't know what choices were made, and whether it was a problem.

Tomorrow's another day.  I'm sure it will be just as useful.

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I'm starting to get excited about my first American Academy of Forensic Sciences annual meeting; it's next week in Chicago. I've been spending a lot of time looking at the program - all 200 pages of it. Having decide which programs to attend is new to me - as it would be to most lawyers. Most CLE cases involved a set schedule, with one topic at a time.

Fortunately the decision is made a little easier, since each section of the Academy has its own meetings; the section for lawyers and judges is jurisprudence. Some of the other sections have sessions on topics I can't pronounce, much less understand. However, there are some interesting looking topics in the criminalistics section, as well a general session.

So what's on the agenda? As you can imagine, there is a good dose of discussion about the NAS report. There are also some sessions on error rates and what they mean. One session that looks really interesting is titled "What about non-scientific Evidence? Suggestions for supporting opinion based testimony.

I'll keep you posted.

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Psychiatrists have been involved in criminal cases for years. Generally they have been limited to testifying about sanity and competency. Apparently not wanting to miss the expert bandwagon, some psychiatrists have ventured into psychological autopsies. If you haven't seen one, they most often come up in murder cases, where the issue is suicide or murder. The psychiatrist comes into court and testifies that based on the person's behavior, they wouldn't  have taken their life. Of course the problem in many cases is that the same factors relied on could just as easily support a suicide. If you ask people who see a lot of suicides - e.g. crime scene people - they will tell you that in the majority of cases there is no clue the person was considering. Oftentimes it is a spur of the moment decision.

The problem with such testimony is that the question of whether a death is suicide or homicide determines whether a person goes home or goes to prison. Where there is not definitive evidence either way, the psychiatrist can effectively decide guilt. I've said before that science should never have such a deciding role in criminal cases.

If you have a case where the State is going to use a psychological autopsy there isn't much to use to prepare - or use in cross examination. I've seen cases where a psychiatrist has never done a psychological autopsy, but still qualifies as an expert. So you can't even use prior testimony. Needless to say that is a challenge for lawyers.

So I was happy to see the subject is going to be addressed at the National Academy of Forensic Sciences meeting in Chicago in a couple of weeks. The title of the luncheon seminar is "The Psychological Autopsy: It's History, Application, and Legal Ramifications." Since I'm going to be there anyway, I'm planning on going. I'll follow up and let you know what they say.

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Thanks to the Charles Smith Smith blog I was able to read the keynote address to the 2010 Fire Investigation Science and Technology Conference. The address was given by a leading arson expert - Daniel Churchward - and titled "Fire Investigation is Still Art and Not Science".

Mr. Churchward pulled no punches, and I imagine was not the most popular person at the conference. Which I think make his remarks even more significant.

For starters, he criticized the training of fire investigators, noting that they don't have to meet any standards, nor do they need to show any level of competency. He also criticized the refusal to accept fire science by many veteran investigators because it was contrary to what they have always been taught. Much of what they have been taught is by people they respect and trust, and by accepting something different they have to accept that were misinformed, and have been doing it wrong for years. He quoted from Carl Sagan who said that "If we've been bamboozled long enough, we tend to reject any evidence of the bamboozle."

One of the more interesting subjects he addressed was the effect of not having understanding of the chemistry and physics as it relates to fire initiation and growth. He notes:

Without a rudimentary knowledge of such relationships, the fire investigator can only apply his acquired logic to what he sees. Logic is a terrible means to scientific thinking. It is what got us a flat earth, witchcraft and crop circles. This lack of scientific educational baseline creates the probability of considerable error in any hypotheses formed by this analysis

He criticized the so called tests or experiments they do at fire schools using the example of igniting a flammable liquid in a room and observing what happens. Without scientific knowledge you  have now way of determining what was observed was unique, or present in fires with no flammable liquids. He also notes that the lack of basic knowledge prevents investigators from being able to "kick the tires of some proposed theory they have just heard at a fire seminar."

Here's what else he has to say about the lack of basic knowledge:

The lack of knowledge of physical and chemical phenomena allows for the development of incorrect beliefs by fire investigators. It tolerates the creation of myths and rules of thumb. Further, it allows for the perpetuation of the process by letting that same investigator, as he gains experience, to “educate” his younger associates on the same misconceptions. It gives that poorly educated investigator the perception that he is knowledgeable and therefore correct in his determinations.

Mr. Churchward also talks about the concept of "negative corpus", which is the methodology whereby one determines the cause of fire by elimination of all identified or perceived ignition sources within an area of origin.  The problem -  among many - if what if you get the area of origin wrong?

Many of the problems can be traced to a lack of training. He describes a test he did at a training seminar where they asked attendees to determine what happened by looking at fire damage. The result was a 75% failure rate. In other words, the chances are way better than 50-50 that the fire investigator gets it wrong. It doesn't send shivers down your spine the next part should.

He talks about the inherent bias most investigators have, which causes them to focus on factors that have nothing to do with the fire's inception. Those include:

1. The fire victim was not financially secure

2. The home was either for sale or in need of repair

3. The fire victim been in the structure just prior to the development of the fire

4. The fire victim was either unsavory or had previous experiences such as another fire or previous arrests

5. The physical evidence from the fire cannot be explained by the investigator

As he notes, if you have a fire today and one of those circumstances exist you are going to experience a very unpleasant situation.

Mr. Churchward also notes the bias that fire investigators must have. Insurance companies want answers - preferably one that says arson so they don't have to pay. As he notes, telling a client you don't know what caused the fire is not going to get you much work.

He also lays the blame on the judges, noting that rarely will a fire investigator be declared unqualified. Most of those are in civil, and not criminal cases.

I'm sure Mr. Churchward's call for more training, and mandatory certification was not well received. My guess is that if you required certification exams which mirrored real world situations most would be out of a job. Nevertheless, it's nice to see someone who knows what they are doing addressing the problem - in hostile territory no less.

 

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I recently read a Law Review article titled "Judging Innocence", by Brandon Garrett a professor at the University of Virginia Law School. If you are so inclined, The article was based on a study of all the DNA exonerations, which was 200 at the time. The purpose was to review the claims made in the post-conviction litigation, and see how successful courts were at identifying factually innocent defendants. As you would guess, the answer is not too well. The author also identified a control group of similar cases to determine if there is any difference in how they were handled.

The article contains a lot of data, and enough tables to make a scientist proud. I cannot hope to cover everything in one post, so I thought I would divide it into several.

We already know the types of evidence used to obtain wrongful convictions. 79% involved eyewitness identification, 57% involved faulty forensics, 18% involved informant testimony and 16% involved confessions. Given the prevalence of eyewitness ID's, you would think that challenges in the post-conviction process would be fairly common. After all, you know you didn't do it, so the ID has to be bad. Only 28% percent of the wrongfully convicted defendants challenged the constitutionality of the identification though. That result is no doubt due to the difficulty of making such a claim; of those who made such claims, none were successful. In other words, there is almost no way to challenge a mis-identification on appeal.

Challenges to forensic evidence didn't fare much better. 32% of defendants challenged such evidence on some basis, and only 8% were successful. What I found interesting was how forensics were used. The study found that more than 1/2 of the cases involved improper testimony by the forensic examiners; in other words, it was improper based on the science known at the time. Even with that, challenges were rarely successful.

There was little new about hair evidence. It's not only unreliable; the experts also tended to say more than should have been able to.

Another interesting fact is that many of the cases involved more than one type of evidence. For example, there were cases involving both bad ID's and faulty forensics, as well as other combinations. The fact that the one corroborated the didn't make them reliable.

So what does this tell us? Among other things I believe it is that the post-conviction is not good at providing relief for innocent defendants. For those who faith in the justice to uncover mistakes, its misplaced. There a probably many reasons for that, will be discussed in future posts. Stay tuned.

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The Texas Forensic Commission met last week, and as usual they provided a lot to write about. As usual, Dave Mann and the Texas Observer have by the far most complete coverage on the meeting.

Unlike prior meetings, there is more to talk about than what a complete lackey for the governor John Bradley is. Don't worry, He's still focused on making the governor look good - i.e. prove Cameron Todd Willingham was really guilty. He took the lead in grilling and ridiculing anyone who would suggest otherwise. But the real shocker came from the State Fire Marshall's office.

For some inexplicable reason they chose to send a lawyer - Ed Salazar. He proceeded to try and explain how the original investigators got it right. According to Mr. Salazar, the only thing they should have done differently was write a more detailed report. This was after the morning had been spent tearing apart every part of the original investigator by two of the leading fire scientists in the country - John DeHaan and Craig Beyler. Everyone except Bradley received the testimony with a heavy dose of incredulity. He stood firm though, and was followed by an investigator with the Houston Fire Department who had the major "Duh" statement of the day - there's some conflict between scientists and fire investigators.

To show how ridiculous their position was, here is how they explained their continued reliance on  pour patterns. They recognized that "fall down" debris could create the same impression. However, the first thing they did was sweep away everything to see if there any patterns - without documenting anything. So there is no way to tell if he debris could have created the pattern. I had thought that everyone - even non-scientist fire investigators - recognized that "pour patterns" couldn't tell you anything. Guess I was wrong.

Commission member Sarah Karrigan took the lead in asking whether there is any obligation to go back and review old cases. Mr. Salazar never answered the question, which means a big no. Of course, why would they need to go back and review old cases when everything seems to be just fine.

Unfortunately, this is not a knew situation. Despite the constant stream of exonerrations most of those in law enforcement refuse to recognize their is a problem. They may accept that someone else could get it wrong, but not them. When someone recognizes there might be problems - a Craig Watkins for example - look at what happens. Even if Dallas had problems no one else do you really think that if other DA's took that same approach he results would not be the same? Yet it is easy to go in blissful ignorance; as long as no one looks there aren't any problems.

It's pretty obvious that the Fire Marshall's obvious didn't know what they were doing then, and still don't. That should be major concern to everyone; if the leading agency in the State can't be trusted to get the right result, then how can we have confidence in any of the prior arson convictions. I think the obvious answer is no. There's no telling how many people are in jail for accidental fires; and we are never going to know until an independent review is done. One that the Fire Marshall is not involved in. I've said before that we need to do away with the State Fire Marshall's office - that should even be more obvious now.

As long as no one looks, everything is just fine. It's time to start looking.

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A case out of Minnesota demonstrates the problems with using forensic scientists in criminal cases. 17 year old Nicole Beecroft was charged with stabbing her newborn daughter to death. The defense claimed the baby was stillborn, so there could be no murder. The issue was basically a medical one, so the trial came down to a battle of forensic experts. The defense had several, including Dr. Susan Roe, who is assistant medical examiner for 8 Minnesota counties. Apparently the prosecutor considered Dr. Roe his property, so he took offense at Dr. Roe not agreeing with him. So he did what any good prosecutor does, which is use the power of his office to threaten her. Apparently, he doesn't deny it. According to an ABA article:

During the Beecroft trial, Dakota County Attorney James Backstrom—head prosecutor in one of the eight counties for which Roe works—admitted sending an e-mail to Dr. Lindsey Thomas, Roe’s boss at the Minnesota Regional Medical Examin er’s Office in Hastings. Backstrom told Thomas she could lose her county job if she or her assistants continued to do defense work against his wishes and the county sheriff’s wishes.

Roe took the threat seriously - she hired a lawyer and left the state until the trial was over.

Such a threat should not be a surprise. According the article, it is common for forensic experts to be criticized for assisting the defense. Everywhere else scientists are expected to be impartial; any allegation of partiality can destroy a career. Not so in the criminal justice arena; prosecutors believe you are either for us or against us. Of course, this is part of a bigger problem - prosecutors refusing to admit they might be wrong. That's another blog post though.

The problem with mixing science and criminal justice is that the scientists become advocates. Even if they believe themselves neutral, the party using them certainly doesn't. And the fact is, forensic scientists don't stay neutral long.  It's a natural tendency - you start to like and trust the people you work with. If you are working with prosecutors and police every day, their attitudes are going to rub enough. If you nothing else, you give them the benefit of the doubt - even if it they aren't aware of it.

I've written before about the distorting effects of bias. It's unavoidable, especially when crime labs are linked to the police and prosecutors. It's time we get away from that model, and establish independent crime labs. While it might not solve all the problems, it least it will do away the threats unethical prosecutors like Mr. Backstrom seem all too willing to make.

 

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Thanks to Scott Benson at Grits for Breakfast for pointing out a story that provides more ammunition for attacking fingerprints. At a forensic conference sponsored by the Texas Court of Criminal Appeals Texas DPS fingerprint examiner Bryan Strong described how they resolve disputes among examiners. Here's the story related by Grits:

Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn't agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, "Have you ever heard of Brady v. Maryland?," which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense  before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.

The Brady problems are obvious, and create a whole of host of potential issues. What struck me about the story however is that provides more evidence of just how unreliable - and unscientific - fingerprint examinations are. Despite what they want you believe, fingerprint examinations are nothing more than a subjective opinion. The fact that two examiners disagree shows that.

I've said it before, and I'll continue to say it: we need to challenge fingerprints more often. There is no science involved, and we need to keep pointing that out. While comparing inked prints to inked prints may be reliable and accurate, there is a big difference between an inked print and a partial print that you have only limited information on. This story gives us one more weapon in the arsenal.

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The revolt at the forensic science continues. At an emergency meeting yesterday several members called chairman John Bradley to task for calling Cameron Todd Willingham a guilty monster. For some reason they thought that might call his objectivity into question. I don't why they would think that his opinion on guilt would influence his decision on the issues before the commission.

Dr. Sarah Kerrigan had some insightful comments that point out the role should play in criminal cases - a role that has largely abandoned. She asked what guilt or innocence had to do with whether the investigation was flawed. When asked to read all the transcript, she asked why the character of the individual should make a difference in determining what the science shows. In my opinion, she nailed the reason for most of problems we have had with forensics.

Numerous studies have demonstrated how bias can alter the interpretation of the evidence. If you believe someone is guilty, you interpret the evidence to support that opinion. In fact, it should have nothing to do with it; science is neutral, and should not be concerned with guilt or innocence. The problem is when scientists become advocates.

Whether or not Cameron Todd Willingham is guilty has nothing to do with whether the investigation. If he is guilty (which I don't believe), they got lucky; it doesn't somehow transform the investigation.  If the investigation is flawed it's flawed, regardless of whether the defendant is guilty or not.

I've said before that we have lost focus in many of these cases. The focus should not be on guilt, but on whether bad science was used to obtain the conviction. If it was, then how can we make sure that doesn't happen. Dr. Kerrigan is a breath of fresh air - she brings the perspective of a scientist - and not an advocate. If more scientists did that, we would go a long way toward solving many of the problems with forensic evidence.

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The Texas Court of Criminal Appeals doesn't reverse many cases, and it's really rare to get a reversal on legal sufficiency - which means they enter a judgment of acquittal. So its understandable why everyone is excited about the decision in Winfrey, which reversed a conviction that was based mostly on a dog scent line-up.  Some have described it as an attack on junk science. Unfortunately, I don't think it is any such thing.

Winfrey did not address the admissibility of scent line-ups. For some unknown reason the evidence was never even challenged at trial. Instead of addressing the admissibility of such evidence, the court simply held that the scent line up was not enough to support a conviction; along the way noting that at best the scent line-up shows the defendant had contact at some time with the victim's clothing. There was nothing else to establish guilt. As I noted earlier, the real physical evidence actually excluded Mr. Winfrey.

A concurring opinion did make note of the scientific criticism of scent line-ups. However, whether they should be admitted is still an open question. The Innocence Project has already addressed the problems with such evidence, which are many. This evidence still needs to be challenged, and hopefully it will not admitted. If not, we will soon see a decision on whether scent line-ups have any place in a court of law.

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Yesterday the Texas Court of Criminal Appeals struck at least a partial blow against junk evidence; some have said junk science, but I hate to use the term "science" for something that has absolutely nothing to do with science. The Court held that evidence of a dog scent line up was not enough to establish guilt - which to me was not that difficult a decision.

If you told someone on the street that someone could be convicted based on a "scent lineup" that was conducted using evidence that was several years old most people would think you were kidding. The process was that something from the suspect and five others were put in cans, and the dog then went and smelled each can. He alerted on one can - the soon to be defendant - and that was it. The amazing thing is there was other physical evidence - bloody fingerprints and hair. None of that matched the defendant though, so the State had to go with the dog.

My question is how you get to a conviction in a case like this. To start with, no prosecutor should ever take such a case - especially when other evidence contradicts the dog scent. We are led to believe that the when a prosecutor oversteps his authority there are some checks in place. One is the judge, who failed to see anything wrong with such evidence. The other is a the jury - people who would never believe such evidence - unless it was presented by the State. Unfortunately, that is often enough. Imagine the reaction if a defendant tried to present such evidence to show someone else committed the offense - my guess is it wouldn't even be admitted.

I'm glad Mr. Winfrey has finally won, but it should have never gotten this far. He goes home, and everyone else goes about their normal lives. That has to change. We need to move accountability back - it starts with the police who use such evidence, and goes all the way through the judge and jury. Until we figure out a way to do that, there will be more cases like this; cases where we will sit around scratching our heads wondering how someone got convicted in the first place.

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The big surprise yesterday was that the forensic commission showed they finally had enough. Ever since John Bradley took control the other members have been superfluous. He has controlled the agenda, and prepared the reports. Apparently it was no different for the report on the Cameron Todd Willingham investigation. Bradley had a report ready which absolved the fire marshal of any responsibility - they were just doing the best they could do at they time. The other members finally revolted, and refused to go along - good for them.

Although I wasn't there, I heard it got fairly contentious. Bradley even told the members they were "shirking" their responsibility - seriously. In my view they finally stood up and exercised their responsibility. They have a duty to investigate - not whitewash. Mr. Bradley apparently views their responsibility as the equivalent of  his - which was to do everyone possible to either derail or minimize the impact of the Willingham case. I was convinced he was going to be successful - thank goodness it looks like that may not be the case.

We will wait to see what happens in November. But for now, the commission appears headed in the right direction.

 

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The State Fire Marshall system has always been a mystery to me. There is an inherent conflict in having arson determinations made by the body that regulates insurance companies; companies that have an interest in seeing fires declared as arson, so they can avoid paying claims.

There's also the problem with the competence of fire investigators in general. Over the last several years more people have recognized the role of science in arson investigations. The result has been that many of the factors relied by arson investigators are not indicators of arson, but instead, things that exist in almost all fires. The problem is at the forefront of public opinion due in large part by efforts to focus on the case of Cameron Todd Willingham - who almost everyone agrees was convicted on findings that have now been discredited. I should now say everyone but the State Fire Marshall.

The Texas Forensic Science Commission is meeting today to decide what to do about the Willingham case. Following their last meeting they solicited comments, and a number of experts provided their opinions. The main question was what the state of knowledge was back in 1992 back when the fire was originally investigated. That was around the time NFPA 921 was published - which everyone agrees was slow to be adopted by the fire investigators. As a leading expert - John DeHaan notes - there was always a conflict between the scientists and those in the field. It took awhile, but by now most agencies view NFPA 921 as the guide for fire investigations.

There was a reason why the Forensic Science Commission was focusing on what was known at the time; they were trying to give the fire marshall a pass. Even the commission chairman - John Bradley - has conceded that the investigation was flawed. There is  a reason for that - every expert who has looked at the case agrees the investigation was bad. Apparently the fire marshall - Paul Maldonado - didn't get the hint. He published a response standing by the original findings. According to Mr. Maldonado, the principals and techniques they used in the original investigation "are linked to NFPA standards subsequently put in place." In other words, he admits they should be judged by the standards that are now accepted.

It gets worse. He actually discusses the evidence, and how the original findings were consistent with NFPA 921. The argument basically tracks that used at trial, which is what has now been discredited. If Mr. Maldonado believes the original investigation and findings were conducted in accordance with current standards he should be replaced immediately. Even someone with no fire science background can see how NFPA 921 contradicts the original findings. Apparently, Mr. Madonado concedes that investigations are being conducted just as they were in 1992.

I find it difficult to believe Mr. Maldonado seriously believes what he claims. Instead, I think it is a blatant attempt to save face. If so, it shows the inherent problems with the fire marshall's office. Any "scientific" entity should be concerned with the truth and not saving face. It's time to turn arson investigations over to those who are willing to apply the science, and apply the scientific method. That's not going to happen until we change the system.

 

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As expected, the Texas Forensic Science Commission meeting yesterday has been extensively. I believe the initial strategy was to delay, and hope interest in Willingham would die down. Thanks to the efforts of numerous groups, that has not happened. Apparently the governor's office finally realized they were going to have do something - in other words, on to plan B.

I have always had serious concerns about the Forensic Commission taking up the Willingham case. I never for a minute thought the state would admit they executed an innocent person - no matter how obvious it is. Although I knew no one could attack the scientists who have critiqued the investigation, that has never stopped the State before. They are the State, and for many it's enough to say we don't believe it. I always thought the most logical approach was to admit there were problems, but claim they did the best they could at the time. In fact, that is exactly what they did.

For awhile I got my hopes up. The first Chairman  (or presiding officer) was Sam Bassett. He apparently didn't get the memo, and mistakenly thought the commission's job was to investigate, and uncover problems. They did that - and we all know what happened when they were close to discussing the report of Craig Beyler. What I didn't know before this week was some of the behind the scenes maneuverings.

I wrote last week about the memo that was prepared on the issue of jurisdiction. Sam Bassett submitted a response, which he was kind enough to share with me. Needless to say, he thought the commission's jurisdiction was not  so limited. He noted the memo was employing an extremely restrictive - and in some cases nonsensical - reading of the statutory language. He also pointed out that this discussion had already taken place. The following is from Mr. Bassett's memo:

In February 2009, when questions concerning the authority of the FSC to conduct the investigation on the Willingham and Moon case were raised by members of the Governor's staff, the undersigned personally contacted Senator Whitmire's office to ensure the FSC was not overstepping its authority. On February 26, 2009, Larance Coleman, who advises the Senator on criminal justice issues, stated to the FSC chair that the FSC was doing what it was supposed to be doing.

The focus on the recent memo was on ascertaining legislative intent. The memo did everything but to go the source - i.e. the legislators who passed the bill authorizing the commission.

Mr. Bassett also addressed Mr. Bradley's concern over defining professional negligence and misconduct. That had also been discussed, and decided. The previous commission recognized that professional organizations did not define those terms, and therefore there was no recognized definition. They concluded they would be overstepping their authority to define terms that the legislature itself had not defined. Of course, the lack of such authority was not impediment to the current commission.

I think the clear reading of all this is that the governor's office did not like the way the commission was operating, and tried to change it. When that didn't work, they did what only the governor can do - change the commission. There should be no doubt that the current chairman knows what the goal of the commission is. So far, he appears to be right on target.

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I'm one of the newest members of the American Academy of Forensic Sciences, and was anxiously waiting for my first journal. It arrived several weeks ago - in 2 volumes - and I started looking at the articles. Most are highly technical - but there are a few that deal with criminal justice issues. I'll cover other topics in subsequent posts,  but thought I would start with an article on fingerprints.

The title is "Emotional Experiences and Motivating Factors Associated with Fingerprint Analysis", and was written by David Charlton, Peter A.F. Fraser-Mackenzie and Itiel E. Dror. They conducted a study to determine what impact emotional factors had on the typical day to day work of a fingerprint examiner. Despite what many believe, fingerprint analysis is not as objective - and cut and dried - as many people think. Other studies have shown that the same fingerprint examiner may not reach the same conclusion - depending on the background information provided. So what did they find out?

What is certain as a result of this study is that fingerprint examiners not only are emotionally driven and motivated to achieve results for themselves, their employees, police and wider society, but also are influenced by more subtle psychological factors such as need for closure that exert leverage upon the decision-making thresholds of examiners that may, in the right circumstances, lead to erroneous conclusions should the context and the motivation be strong enough.

So what does that mean? One thing they discovered was the need to close a case - which is strongest in high profile and serious cases - may result in the decision threshold being lowered. In other words, they are more likely to call a match. As you would guess, the examiners wouldn't be aware of such influences, and would probably feel they had been objective and reached the correct result.

This article is yet another attack on the sacred position of fingerprints. They are not the error proof - definitive evidence - that fingerprint examiners have always tried to convey. In other words, fingerprint examiners can be wrong. By identifying the potential for mistakes, not only can bad identifications be challenged, procedures can be put in place to limit mistakes in the future.

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I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission.  Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Another thing that struck me, was  the definition of what is a forensic discipline. If it's not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature's exemptions - latent fingerprint examination and breath tests. If those two areas don't involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their "scientific" their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.

The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting - they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.

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In this day of instaneous communication the news that the Supreme Court agreed to hear Hank Skinner's case is old news. in case you haven't heard, Skinner is sentenced to death, and has been requesting DNA testing which he claims will establish his innocence. Predicatbly, the State has opposed testing, and the courts have agreed.

I wrote before about this - in that post I compared Skinner's case with Cameron Todd Willingham, and wondered why the governor didn't learn anything from that case. You would think that with all the criticism and condemnation that case has created, you would want to avoid a repeat. Yet here we are again.

I think the vast majority of people believe that if there is evidence it should be tested. After all, what do you have to lose - other than time. If Skinner really is guilty is it all that important to execute him next month instead of next year? I understand there are some who think the process drags on too long, but look at the alternative. What if he is innocent - is speed more important than getting it right?

The only thing the State accomplishes by opposing testing is creating a controversy, and raising questions. Some will think they have something to hide - and maybe they do. Maybe they don't they grasp the concept that most of society actually believes that some people who are convicted are actually innocent. In fact, it has become common to see stories of people who have been exonerated after spending years in prison.

I realize the request in this case is being made at the last minute, and probably could have been presented earlier. Do some defendants play the system to buy time? Maybe so, but that doesn't mean they all are. Where the alternative is as final as it is here, I think you have to give the defendant the benefit of the doubt - at least where the request is not obviously frivolous.

What it really boils down to is that this is what is in the prosecutor's playbook. They have been conditioned to reject requests for testing - especially in death penalty cases. The reaction is almost automatic, and common sense is not going to get in the way. That is why it is up to the courts to occassionally legislate common sense. Let's hope they do so here.

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I can’t say that I’m surprised anymore by anything the Texas forensic commission does. To be fair, to be fair, it’s not actually the commission, but it’s chairman - John Bradley. So far the condition has not had a chance to do anything; not only they have not done anything, they can’t even talk about what they are not doing because Mr. Bradley has instructed them to not talk to anyone about commission business.

The latest news from the Texas Forensic Commission that makes you scratch your head is the decision to deal with the case of Cameron Todd Willingham. Those who have been following this know that it was the commission’s decision to hear evidence from Dr. Craig Beyler that caused the jet governor to jump in at the last minute and remove several of the commission members. Now Mr. Bradley has apparently decided that they will take up the case, and appointed a committee to do that. It should be no surprise that he is a member of the three-person committee. It also should be no surprise that they are going to meet behind closed doors next week. What is a surprise is that the confirmation of the committee appointments is on the agenda for the day after the scheduled meeting. In other words, they are going to meet before the full commission  has even approved the committee appointments.

Even those who harbored doubts initially now recognize that the committee’s actions are entirely political. Few doubted the governors last minute decision to replace committee members was meant to postpone consideration of the Willingham case. Some had doubts that there was any agreement with the chairman to delay the case, or scuttle it entirely. Those doubts have since been removed also. Almost everyone now agrees that nothing is going to happen until after the election.

What surprises me is that despite the consensus of opinion regarding the commission, Mr. Bradley is either oblivious to it, or doesn’t care. I sincerely doubt he is oblivious, since every major newspaper in the state has been critical of his actions. Not only has he done nothing to try and dispel the concerns, he appears to have gone out of his way to create new ones. You can only assume that both he and the governor shares the opinion that they simply do not care what everyone thinks.

I’ve said before that the commission has lost any credibility it may have had. As such, I wonder why we are even wasting time looking at what they are doing. No matter what they do it’s going to be suspect, and will not achieve the goals the legislature had in mind when they created the commission. Those goals were admirable ones, but like many good ideas it has gone terribly to astray. The best thing the legislature can do now is scuttle the current commission and go back to the drawing board

I doubt they will do that. Instead we will all watch what happens next week with the same morbid curiosity that draws people to slow down when they pass an accident. I admit, I’ll probably be one of those.

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There's no shortage of criticism over the impending execution of Hank Skinner in Texas. The Medellin Innocence project has been pushing for new DNA testing. A number of people have come down on Skinner's side. For more information you can go to Stand Down Texas for links to resources and coverage.

The controversy exists mainly because Skinner's previous lawyers didn't request testing of all the evidence. The State did allow testing of some evidence in 2000, apparently believing that it would confirm Skinner's guilt - it didn't.  Instead the test results raised questions about Skinner's guilt.

What bothers me about me most about this case is the complete failure to learn from history. I'm certainly not the first to point out the similarities with Cameron Todd Willingham's case. Officials and courts refused to acknowledge questions of innocence, and the debate still continues. Does the state seriously believe that the thing is not going to happen with Skinner? The case will provide even more evidence to those who believe Texas is more interested in vengeance and  procedure than justice.

Governor Perry has a chance to step in and prove everyone wrong in this case; he can grant a stay, and allow the courts another opportunity to look at - and test - the evidence. If he doesn't, it is damning evidence of his true character.

Any person with a conscience would want to avoid at all costs what happened with Willingham. I realize he has stated how convinced he is of Willingham's guilt, but no rational person can seriously believe that. Even if you believe he is guilty, no one could seriously argue that he would be convicted today without scientific evidence that the fire was intentionally set. I can't imagine anyone living with that on their conscience; if it doesn't bother you, you have to wonder if there is a conscience.

I've talked before about my religious beliefs and convictions - specifically that we are all going to answer for the decisions we make on earth. I truly believe what we do now has eternal consequences. The sad thing is that most of those who support Governor Perry - and probably the governor himself - claim to believe the same thing. I don't think you get a  pass just because you are in politics - or "following the law" and accepting the judgment of the courts. In fact, I think the power you wield makes those arguments even less successful. They sound good, but the fact is he does have the power to question those decisions.

It's clear that the decision he made on Willingham hasn't effected his political future. If anything its enhance it; he was able to survive a primary without a runoff, and is now being talked about for national office. for his sake, I hope he has thought about his future beyond politics. I don't know how things work, and if you can redeem yourself for bad decisions. personally, I believe you can. The governor has a chance to prove he learned something from Willingham - let's hope he takes advantage of it.

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I really wanted to attend the annual meeting of the American Academy of Forensic Sciences last week. It wasn't just the presentations - I wanted to see the reaction to the "takedown" by the NAS report. By now everyone knows that report pointed out problems - some severe - with everything except DNA evidence. I expected an attack on the NAS report itself. Instead, it appears most agree with the substance of the report, and agree their are problems.

The them of the conference  was "Putting our house in order", which is telling. According the president-elect a nationwide critique is "long overdue". I was pleased to see that DOJ has already started funding research on fingerprint reliability and fire-debris analysis. Let's hope that  goes more quickly than the NAS report - which took almost 4 years to get out

One thing they don't agree with is the recommendation that forensic labs be independent of the police. I don't ever expect that to happen, but that was one of the more important recommendations. Too many problems arise out of close relationship between the police and the labs. That includes context bias - which is interpreting evidence in light of what you expect to find. The only remedy for that is for the scientist to have no information on the case - in other words, they won't know whether they helping or hurting the prosecution.

The jury is still out on what impact all this is going to have on criminal defendants. So far, things don't seem to have changed much. Questionable evidence is still being admitted, many times for no reason other than it has been admitted before.  It remains our obligation to challenge the evidence and educate judges on the issues. Who knows what we will accomplish if we keeping pushing.

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On Friday the Texas Forensic Commission held their first meeting under new chairman John Bradley. The fact that it was held in Harlingen should have told you everything you need to know. He wanted to make it as inconvenient as possible for people to attend - and it didn't take long to find out why.

Thanks to the Innocence Project the meeting was streamed live over the internet. For those able to stay awake they were able to witness a primer on how to abuse power and hijack a government commission for your own purposes. As usual, we could rely on Scott Benson and Grits for Breakfast for coverage. He has posts here and here.

As you remember, last year the commission was set to hear from Dr. Craig Beyler who had been hired to produce a report on the Cameron Todd Willingham Case. The day before the hearing Gov. Perry removed the chairman, and put Mr. Bradley in his place. His first action as the new chairman was to cancel the hearing. He then started talking about developing rules for procedures for conducting business - in other words, he didn't want to do anything substantive. So after several months we finally have the first meeting under chairman Bradley. He had rules all right - of course he didn't share those with the other members of the commission; no doubt because he didn't want them to have a chance to read them.

Before the meeting there had been a discussion over whether the commission even has the authority to enact rules. Most thought they didn't. The Innocence Project hired a prominent New York Law firm to furnish to an opinion. Their conclusion was that they had no such authority.

As it turns out, Mr. Bradley knew this all along. After forcing the new rules down everyone's throat - and demanding a vote even though they were looking at them for the first time - he acknowledged they weren't really binding. As Capt. Jack Sparrow said about the Code, they are really "more like like guidelines". That's not the only thing he backtracked on. He assured the members that the new rules wouldn't apply to pending cases. After they voted to approve them, he said they would apply to the pending cases. Of course I guess it really doesn't mean much since they are really only guidelines.

Mr. Bradley definitely showed his prosecutorial bent, and pulled out all the tricks. Prosecutors are used to getting want they want. They also control the information, and are prone to demanding decisions without allowing adequate time to consider the options. He certainly got what he wanted here - or did he really get what Gov. Perry wanted?

I have serious doubts that Mr. Bradley came up with those rules on his own. After all, he does have a full time job. The commission so far doesn't have a general counsel, and only has one staff person. So where did they come from? My guess is they came straight from the governor's office - although that is something we will probably never know.

So where does that leave the commission? The idea behind the commission was to create a forum to address problems with forensic science. It started with Williingham - which pointed out the problems with arson investigations. There have also been problems with labs, and individuals. The commission should be a forum to address those issues; to decide if there was a problem, and  how to fix it. That has to include what to do in those cases where mistakes have been made.

The Courts are not designed to referee disputes over forensic science. A commission - made up of scientists and lawyers - and without the political pressure judges face, is an ideal forum. A commission can hear from all sides, and consider more than one individual case. Unfortunately, it doesn't look the commission is going to do anything here other than waste a lot of taxpayer money.

I'm not sure what Mr. Bradley has in mind - once they actually get down to business. I have serious doubts that he wants to correct mistakes that have already been made. He has already indicated a desire to be prospective. What's more troubling is the rules he wanted to impose focused only on intentional acts. Most of the problems in forensic science aren't intentional. They are made because people don't know any better. If you address only intentional mistakes you might as well not even look at cases like Willingham - the investigators there were arguably applying the tactics that had been used for years.  We now know it was wrong.

The legislature is concerned about this, and there have already been two hearings held. I don't know what the answer is, but I do know It's not the current commission. We would be better off scrapping the whole thing and start over - and save a lot of money in the meantime.

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A Texas house committee met last week to discuss changes for handling forensic evidence in court. In typical law professor fashion, a UT professor suggested that Texas adopt the Fry standard, instead of the Daubert standard which is currently used. To his credit, he admitted that the change may not make any practical difference. I concur. BTW - thanks to Scott Benson and Grits for Breakfast for reporting this.

I practice appellate law, and I have a special interest in this. Although I've read the cases numerous times I'm not all that sure what the difference between Fry and Daubert is, and I don't really care. No matter what the standard, the bottom line is that courts are going to admit scienfic evidence in criminal cases. The problem is not the test, but what the courts consider scientific evidence.

My friend - and head of the Innocence Project of Texas - Jeff Blackburn suggested that we reject the test adopted for "soft sciences" - which has been labeled the Nenno test. I agree that has some merit, and maybe thats the best we can hope for. However, I wish we address the question of whether the so called soft sciences should even be allowed in court. In my opinion the term "soft science" should raise a red flag.

I've written before about what science really is. We could solve a lot of problems by limiting scientific evidence to that which is based on scientific principals, and administered by persons with scientific backgrounds - i.e. not police officers. Maybe we could use a test - if two legitimate experts don't agree, its not science.

I know no court is ever going to go this far - and the result is we are going to continue admitting evidence without serious scrutiny. We would much better if instead of worrying about tests, we step back and decide what types of evidence we should admit in cases where a person's life and liberty are on the line.

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I was recently alerted to a situation that so far has been under the radar. David Fisher is somone who appears to be on a one man crusade against ME's offices. You might think he is a little off - but results speak for themselves. So far he has gone after Lubbock County and Travis County, and basically caused the reorganization of both offices. Now he has turned his sites toward Tarrant County.

The Tarrant County ME's office is headed by Nizam Peerwani - who is somewhat of an icon. I doubt there are many criminal defense lawyers who aren't familiar with Peerwani. He vaulted to national prominence when  the handled the Branch Davidian autopsies. As far as I knew, his reputation has never been seriously challenged.

The issue Fisher is going after involves the relationship between Peerwani and the County. ME's offices are unusual creatures - created by Texas statutes. The contract with Tarrant County and Peerwani is actually with Peerwani and his professional association. He is paid a fixed amount, and in turns has hired four medical examiners who work for him. Peerwani also  has a private firm - that firm does work for other counties, as well as private parties - including defense attorneys.

It appears on paper that there are problems with the agreement between Peerwani and Tarrant County.  Is it a problem that  defense lawyers and defendants need to be concerned with? - I don't know. Clearly, any times you have financial issues in play, there is the potential for problems. There is always the potential for choosing money over the truth; or at least the potential for cutting corners.

I don't think we have seen the end of this. How much of an impact it will have is something only time will tell.

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The Star Telegram had an article addressing the debate over the use of forensic testimony in criminal cases. They had the audacity to point out the conclusion of the National Academy of Sciences report that ballistics is not science - it's an opinion. Of course, that drew responses from crime labs, and those who regularly testify on such matters. The point of the article was not to answer the question of whether it's science or not, but point out the issues are currently being debated. In Texas, these type of issues were supposed to be addressed by the Texas forensic Science Commission.

Lawyers are known (despised) for arguing over words - yet we don't challenge the use of the term "science". So what is the definition? Here's one:

The word science comes from the Latin "scientia," meaning knowledge.

How do we define science? According to Webster's New Collegiate Dictionary, the definition of science is "knowledge attained through study or practice," or "knowledge covering general truths of the operation of general laws, esp. as obtained and tested through scientific method [and] concerned with the physical world."

 As far as I'm concerned, a crticical part of science is utilization of the scientific method. What does that mean? While its been a long time since I was in school, it basically means formulating a hypothesis, and then testing to see if its true. Rigorous testing means attempting to disprove the hypothesis. If you can't disprove it, then it's probably scientific.

So how does this apply to fields such as ballistics, fingerprints and blood spatter? I don't think it does. The underlying assumptions for those disciplines  has never been established: i.e. there are no studies establishing that no two fingerprints are the same, or guns put the same marks on bullets to the exclusion of all other guns. Ultimately, all those fields are based on one thing - observation.

The problem with observation is that no matter what procedures you follow, the ultimate decision is subjective.That is the problem with those fields; if something is true, everyone that looks at it should reach the same conclusions. If you have two equally qualified experts reaching different conclusions, that's not scientific.

Another problem is determing who is an expert. Is it someone who looks at a lot of fingerprints or ballistics. Does that mean they are able to accurately look at something at make comparisons. Why don't we use artists - who have a discerning eye for detail? Also, if it's nothing more than making comparisons, why do you need an expert?

We need to start addressing this type of testimony for what it is - opinion. What's the answer? I don't know. Perhaps its the use of court experts, or perhaps its in limiting the use of such testimony, or providing limiting instructions. Something needs to be done, because there is no doubt that as long as you have competing opinions one of them is likely to be wrong - and it is justly likely to be the state's expert as the defense expert.

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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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The Wednesday afternoon massacre is now history, and the question is what's next for the Texas Forensic Commission. I'm referring to Gov. Perry's decision on Wednesday to replace 3 members of the commission -which included the chairman - two days before they were scheduled to meet and discuss the findings of Dr. Craig Beyler. If you've been on a deserted island for awhile, Dr. Beyler was hired by the commission to review the cases of Cameron Willingham and Ernest Willis. He reached the same conclusion all the other experts had, which was that fire was not inentionally set. Of course if there was no arson, there was no crime. The problem of course is that Cameron Todd Willingham has already been executed. To make things worse, he was executed even though Gov. Perry was furnished with a report from another expert which suggested the fire was not intentionally set.

I've said before that I never had much faith that the forensic commission was going to accomplish anything useful. After all, its a political body, which Gov. Perry so emphatically emphasized by his recent actions. The question now is how the commission is going to deal with the case.

No matter what his public remarks may be (i.e. the "air quotes" around experts), I don't think Gov. Perry is stupid enough to believe that the facts are going to miraculously change. The case has already been reviewed by all the leading experts, and they all reached the same conclusion. For anyone to contradict that now would be suspect to say the least. So I think you have to conclude that at a minimum the testimony that sent to Todd Willingham to his death was completely false.

Grits recently wrote about the question I have always had about this whole process; what can they really do. They aren't going to admit they killed an innocent person, and that is probably beyond the scope of their charge anyway. They could come up with guidelines for using expert testimony, and there certainly is room for improvement there. They could also make a statement about arson science, which I doubt that they will do because of the impact it could have on other cases. Grits suggests they will just take the case off the agenda, and I think he probably has a point.

Realistically, I don't think anyone expects the Governor's hand picked chairman to do anything that puts him in a bad light - especially in the middle of a contested election. There is no way to do anything on this case without doing that.  By keeping the case on the agenda it also keeps it before the general  public. And the more Gov. Perry tries to defend what he did the more he looks like an idiot. The best thing that could happen for him would be for the case to go away. While that might never happen, the next best thing for them would be to stop doing things to draw attention to it.

So my prediction is that the new chairman will take his time, and after the passage of sufficient amount ot time - to convince everyone they fully reviewed the matter - they will vote to remove the case from the commission's agenda. No doubt it will be accompanied by some statement that there are other more important matters for the commission to address that will have more of an impact on future cases. As for the latter statement, there is a lot of truth in it. The way courts handle forensic evidence does need to be overhauled.

I guess time will tell - I'm  not holding my breath for anything to happen soon though.

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My office got a call yesterday afternoon telling me the forensic commission meeting scheduled for Friday had been cancelled. Like most I was surprised. The meeting had been scheduled for months, an agenda had been set, and people had made travel arrangements. Later I found out why it was cancelled - Governor Perry decided to replace 3 of the members, including the chairman. The new chair was none other than the prosecution's "go to" guy - John Bradley.

I'm not sure whether Governor Perry thinks everyone is stupid, or he just doesn't care. You would think someone would have pointed out the ramifications of what he was doing. Last week he expressed his belief in Cameron Todd Willingham's guilt, and became the first person to question the expert's conclusions. Now, when Dr. Beyler is scheduled to come discuss the case with them he replaces the chairman, and has them cancel the meeting. Does he truly think anyone does not see this for what it is - an attempt to manipulate the outcome.

Surely he doesn't think this is going to fly under the radar. I can't remember a story that has generated as much coverage as Todd Willingham's. Every day there are several new stories or editorials across the country (and the world) talking about this. Everyone is following it - and now everyone knows what happened, because the cancellation of the meeting is sure to gain just as much press.

I said when they first started looking at this case that I didn't think anything was going to happen. It was a political commission, and I expected politics to influence the ultimate decision. I was as surprised as anyone when Dr. Beyler's report came out. The only person who may have been more surprised was Governor Perry. It obviously didn't turn out the way he wanted, and now he wants to change things. If you don't believe they have already discussed this case you have to believe that Governor Perry believes his new appointee is going to be an advocate of Todd Willingham's guilt.

One thing he did accomplish is to effectively negate the impact of the forensic commission. I don't see how anyone will take seriously anything they do from here on.

When I read the reports last night it reminded of the 6 year old who gets mad and takes his ball so they have to stop the game; if you aren't going to play the way I want we aren't going to play at all. I'm far from politically savvy, but you have to wonder if this may not turn out to be the signature on the Governor's death warrant for his campaign. After all, who wants a Governor who thows tantrums like a 6-year-old?

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The Judiciary committee held a hearing today on forensics in the criminal justice system. The focus was mainly on what to with the recommendations made by the National Academy of Sciences in their recent report.

One of the witnesses was the city of Houston's chief of police. In answering a question he suggested moving toward an increased use of DNA evidence. Specifically, he noted how much more reliable DNA evidence would be than fingerprints in prosecuting property crimes. He has a point - the question is whether state's will ever devote the resources necessary to processing all crimes for DNA evidence. As it stands now, "touch" DNA is almost never processed or utilized; the use of DNA is limited to serious crimes, which generally means rapes and murders. There's a backlog now - just imagine what it would be if you started routinely collecting DNA evidence.

I've written before about the increasing acceptance of the fact that fingerprints are not as reliable as people have been led to believe. There is no doubt that fingerprint identification is extremely reliable when you are comparing complete prints. The problem is with the type of prints usually left at crime scenes. If DNA was used more often we might find out just how unreliable (or reliable) they really are.

I'm sure its a long way off, but I think the police chief may be on to something; some day

there may no longer be a need to rely on fingerpints.

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I've been at the Annual Conference on Actual Innocence at Plano - I lost count of how many I've been to. Generally, the focus of the conference is the same each year; we have a problem, and need to address it. So far, it doesn't look like we've come up with a good solution.

One of the biggest problems I see is the use of experts to obtain convictions. I'm not saying experts shouldn't be used in criminal cases; however, there use should be limited to corroborating other evidence. All too often prosecutors use experts to establish thier case.

There was a presentation on a bite mark case, where the defendant ended up spending 10 years in jail before DNA was able to exonerate him. As with many of these cases, the bite mark was the only evidence the State had that tied to defendant to the case. The situation was a familiar one; the so called expert went out of his way to identify the defendant, ignoring contrary evidence, and manipulating evidence where necessary.

There is no doubt that bite mark comparisons are essentially subjective. As a result, different people can look at the same evidence, and reach different conclusions. Too often it comes down to which expert makes a better presentation. In other words, a defendant's fate hinges on who is the better communicator. The possibilites for disaster are enormous, and all too often realized.

Assuming such evidence is admissible - which I am not ready to concede - it should not be used as the only evidence of guilt. Soo called experts are wrong far too often to leave such important decisions to them. They get to leave at the end of the day and go home, while the defendant's life may be destroyed.

Maybe we  need a corroboration rule, like we have for accomplice witnesses. Or maybe it's something that can be addressed through instructions. Whatever the approach, something needs to be done. Until we do, innocent people are going to continue to be convicted.

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The use of fingerprints has been around for a number of years. If you have ever been in a court room, you've heard the statement that no two people have the same fingerprint. While that sounds convincing, there is no evidence or research to back it up. For the most part, fingerprint evidence has avoided scientific scrutiny. Instead, it has been accepted by all those involved, including defense lawyers, as accurate.

The reliability of fingerprints is questioned in the recent report by the national research Council, on strengthening scientific evidence. In their report, the Council examines friction Ridge analysis, which covers fingerprints, palm prints, and soul prints. The report contains several startling statements.

Before going further, the terminology used must be understood. The technique used to examine prints is described by the acronym a ECE -- the, which stands for analysis, comparison, evaluation, and verification. The Council notes that this mess did does not specify particular measurements or standard test protocol, and the examiners must make subjective assessments there out. The Council notes that the standards are deliberately kept subjective. We'll they also note that the outcome of friction Ridge analysis is not necessarily repeatable from examiner to the examiner, and cited research which shows that experienced examiners do not even agree with their own past conclusions when presented in a different context.

Over the last several years, some of the problems with fingerprint comparison have been discussed. The problem is not with comparing a set of ink fingerprints. Instead, the problem is in comparing prints left on a surface. As the Council notes, a small stretching of distance between two fingerprint features, or a twisting of angles, can result from either a difference between the fingers that left the prints are from distortions from the impression process, which means analysis must rely on subjective judgments. In other words, an examiner must not only determine what he is looking at, but how relevant the impression is.

In its summary, the Council concludes that the current methods do not guard against bias, are too broad to ensure repeatability and transparency, and do not guarantee that two analysts following it will obtain the same results. For that reason, merely following the steps of the excepted method does not mean an examiner is proceeding in a scientific manner, or producing reliable results. The Council also notes that it has reviewed the available scientific evidence on the validity of the process, and has found none. And a minimum, the Council notes that absolute opinions are not appropriate in this area.

The report is must reading for anyone who has a fingerprint case. We cannot accept the opinion or conclusion that a print belongs to our client. As with many disciplines, the problem will be finding someone who can explain the process. I suggest that will not be another fingerprint examiner, who will operate under the same old assumptions. This is not an exact science, and never should have been considered as such. Hopefully, courts will become more sensitive to the problems. It's our job to make sure that happens.
 

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Last week Bridget Lee was released from prison after spending 9 months for murder. According to the pathologist, Corinne Stern, the infant was suffocated. It turns out the infant was stillborn - having died from complications caused by pneumonia.

Lee's attorney apparently did what all attorneys should do - he obtained his own expert to review the autopsy. He then presented his findings to the District Attorney, who to his credit took them seriously. He had other experts review the case; by the time it was over, six independent experts determined there was no murder.

There are couple of things that trouble me about this case. One is that Dr. Stern is still at work - she is now conducting autopsies in Webb County. The other is the apparent complete lack of review of such findings. The autopsy in this case was signed off by the other pathologists in the medical examiner's office. You would think that if they looked at the findings at all, they would have questions; one of her findings was bruising on the face and mouth, which turned out to be decomposition. Apparently the other signatures don't mean what you think. I guess they are signing off on the form of the report, and not the results.

This is simply one more instance of a scientist getting it wrong. No matter what their credentials, we cannot blindly accept the conclusions of someone who claims to be an expert, especially when their conclusion determines whether someone is guilty or innocent. Alabama authorities are reviewing the other autopsies she performed while there; let's hope there was an isolated incident, and there aren't others in prison who shouldn't be there.

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People love CSI - if you have any doubt, look how many different CSI shows there are - Las Vegas, Miami and New York. I  admit, I'm one of those people. Everyone who watches CSI knows how quickly they solve crimes, analyzing every piece of available evidence. Most shows include DNA evidence, where they quickly determine who has handled a piece of evidence.

It is possible to get DNA from an item even if there isn't blood. It's called "touch DNA", and tests epithelial cells that are discarded from our skin. As you can imagine, examining and testing every piece of evidence takes a lot of time, and money. While you can do it on TV, real life is different.

Criminal defendants and jurors also watch CSI. I can't tell you how many times I have had clients ask if an item was tested to see if there DNA was on it. Most of the time the answer is no, because DNA tests are generally only done in sexual assaults. Evidence in violent crimes may also be tested - generally it's blood that is left at the scene, or on an item of evidence. However, rarely will there be more than a few items tested.

The advent of touch DNA has caused concern not only over the lack of resources to test all the evidence, but also the lack of storage of space. The Integrity unit created by Texas Court of Criminal Appeals has expressed concern that storage capacity could be overwhelmed, both because of the amount of evidence, but also the longer wait times caused by the additional testing, which means evidence will have to be stored for longer periods of time.

On TV, every item of evidence is analyzed and tested. Crimes are often solved based on the minute or innocuous piece of evidence.. Don't expect the same in real life.

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How many times have you heard the statement that no two fingerprints are the same. Experts testify to that in courtrooms throughout the country on probably a daily basis. The validity of that assertion has been questioned in the last several years; as with other areas, it is a statement made without any scientific support.

No matter what your opinion of the validity of fingerprint analysis is, like anything else reliability is based on the person doing the examination. A report today issued by the Los Angeles police department details two cases involving faulty fingerprint analysis. In one case a person was charged with breaking into a store. In another case, a person was extradited from Alabama to face burglary charges after his prints were matched to those found at the scene. In both cases the analysis was reviewed and verified by another examiner.

According to the LAPD report, the fingerprint section was poorly run, and individuals were reviewing work and merely rubbers tamping it.Fortunately for the two individuals, the mistakes were caught. They must now try to determine whether other mistakes were made - common sense tells you there are probably other such errors.

This is one more incident which shows science is not infallible. Fingerprint examination is an entirely subjective discipline. As such, it hinges on the competence of the examiner. You would like to think all examiners are competent and take their jobs seriously, but we all knoow that is not the case in any profession.

The lesson from this story is that fingerprints, like anything else, should not be blindly accepted, even when they have been reviewed and verified by a nether examiner. If there is any doubt, an independent expert should be consulted. If we are going to send someone to prison based on the opinion of an expert, then we need to make sure it’s accurate

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In 2005 the Texas legislature created a Forensic Commission. Their job was to investigate complaints of forensic misconduct. Frankly, I didn't expect them to do anything, and I still don't have high hopes. However,  they at least got off to a good start - even if did take almost 3 years.

The commission voted on Friday to review two arson cases - Cameron Willingham and Ernest Willis. One was executed, and the other released, on almost identical evidence. The Innocence Project has already commissioned a report that was prepared by the leading experts in the country, so I don't know how much work is going to be required. Maybe that's why they took these two cases.

I'm not sure what they can accomplish, but hopefully this will raise awareness of the issue of flawed arson investigations. There are other cases out there, and people still serving  time for something that was not a crime.

I represented Cameron Willingham in the final stages of his appeals, and presented the evidence to the courts and the governor.  The response from the governor's office was that he "didn't see anything that would convince him he should postpone the execution". I'll never forget that statement - but I guess its too much to expect something like innocence to get in the way of an execution.  It's too late for Mr. Willingham, but maybe the commission can do something to prevent the same thing from happening to someone else.

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Thankfully, we don't see bite mark testimony much anymore. Not so long ago, before the advent of DNA technology, this was the latest scientific fad. A so called expert would come in and say that bite marks on the victim were a match to the defendants teeth. Often, it was not even clear whether the marks were bite marks or something else. That didn't stop these so called experts from raking in thousands of dollars though.  One of those was a small town dentist in Mississippi. Dr. Michael West testified in two separate trials in 1992 and 1993. Fortunately for them, another person was recently addressed and ended up confessing to both cases. A panel of experts had been asked to review the evidence, and determined that the marks were caused by crawfish nibbling on the corpse and decomposition in one case, and scrapes in another case. In the interim, Dr. West resigned from the American Board of Forensic Odontology after several ethics complaints.

Forensic odontology is only one of the areas of junk science has recently been challenged. Unfortunately, similar types of testimony are consistently used to obtain convictions. The bigger issue is the use of science that is dependent on individual interpretation. Any time two people can look at the same thing and come up with different conclusions, that testimony does not belong in a criminal court. Unfortunately, jurors still believe the State experts. Our job as defense lawyers is to continue challenge the science, and not accept their opinions without scrutiny.

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