DNA Testing and Privacy: the Maryland v. King Argument in the Supreme Court

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.

Failed Evidence Reviewed by the American Criminal Law Review

The current issue of the American Criminal Law Review has a review essay of Failed Evidence: Why Law Enforcement Resists Science (2012).   According to the review, the book “engages…broadly with forensics” to explore “why law enforcement and prosecutors have shown such marked reluctance to incorporate a modern understanding of the scientific method.”  The review concludes that Failed Evidence “provides a thoughtful analysis of the scientific bases underlying forensics, current evidentiary and investigatory problems, and possible solutions. [The] suggestions are particularly well thought-out because they consider the problems faced by law enforcement when implementing ideal solutions in the real world.”

You can read the full review here.

U.S. Depts. of Justice, Commerce Will Create National Commission on Forensic Science

Four years after the National Academy of Science’s 2009 report Strengthening Forensic Science in the United States: A Path Forward called for basic changes in the forensic sciences, U.S. Department of Justice and U.S. Department of Commerce’s National Institute of Standards and Technology have announced they will create a national commission on forensic science.  The commission will have 30 members — forensic science practitioners, researchers, prosecutors, defense attorneys, and judges — who will develop policy recommendations for the Attorney General.  According to the Department of Justice announcement:

The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.  The new initiative provides a framework for coordination across forensic disciplines under federal leadership, with state and local participation. The Department of Justice, through its involvement in the commission, will take an active role in developing policy recommendations and coordinating implementation.

For many who looked for action in the wake of the National Academy of Science’s 2009 report and saw very little, the creation of the commission will comes as a welcome step forward.   The National District Attorneys Association (NDAA), which took a fairly negative view of the 2009 report and its recommendations, is now reacting with a wait and see attitude.  The NDAA has not yet put out a formal statement in reaction to the announcement of the commission; according to Scott Burns, the Executive Director of the NDAA, the organization will do that once it gets the details on the commission, especially its composition.  So far, Burns told me, the NDAA is  “encouraged” by the fact that prosecutors will be part of the commission, though he stresses that he hopes to see more state and local prosecutors than federal ones.  Burns said that if the commission begins with the attitude that “the system is broken” and that its basics — fingerprints, tool marks, and the like — must be fixed, the NDAA will not look on it favorably.  On the other hand, if the commission starts with the attitude that “we can improve”  the system but that it basically functions well, that would be welcome.

I will write further on this as the story develops.

 

“Failed Evidence” Selected By delanceyplace.com, the Non-fiction Book Source

Good news: Failed Evidence: Why Law Enforcement Resists Science is the Feb. 4 selection by delanceyplace.com, a service that highlights and quotes new works for a large community of readers.  Delancyplace.com provides daily subscribers with “an excerpt or quote we view as interesting or noteworthy, offered with commentary to provide context. There is no theme, except that most excerpts will come from a non-fiction work, primarily historical in focus, and will occasionally be controversial. Finally, we hope that the selections will resonate beyond the subject of the book from which they were excerpted.”  Other recent selections have included Jared Diamond, The World Until Yesterday: What Can We Learn from Traditional Societies; Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789-1815; and Ray Kurzweil and Terry Grossman, Transcend: Nine Steps to Living Well Forever.

 

Failed Evidence: Public Talk Today at the University of Houston Law Center

Today I’ll be giving a talk on Failed Evidence at the University of Houston Law Center, 4800 Calhoun Road, Houston, 77004, at noon in room BLB 240.  The talk is free and open to the public.  I’ll be discussing the book and my thoughts about how we can move toward a future in which the existing scientific work on eyewitness identification, interrogation of suspects, and basic (i.e., non-DNA) forensics will make for better, more accurate investigation and prosecution of crime.  I’ll be speaking to law students, faculty, members of the university community, attorneys, and interested members of the public.

Details on the event are here.

Houston is a particularly interesting place to have this discussion.  Over the past ten years, the crime lab in Houston has had repeated problems.  After all of this, the authorities decided to try something they had not done before: they are removing the crime lab from the jurisdiction of law enforcement and putting it under the control of an independent body, the Houston Forensic Science Local Government Corporation.  I wrote about this in an op-ed for the Houston Chronicle on Saturday, which you can see here.  This move puts Houston’s efforts to deal with forensic reform ahead of the  curve, and implements one of the main recommendations of the National Academy of Sciences 2009 report, Strengthening Forensic Science in the U.S.: A Path Forward.

 

 

 

Forensic Reform: On the Agenda in the New Congress

I’ve written a number of times (here and here an here, for example) about the problems with forensic science laboratories in this country.  Just in the last few months, we’ve seen scandals hit labs in Massachusetts, St. Paul, Minnesota, and in Mississippi.  It seems that the parade might never end.

But today, news emerged that indicates that, just maybe, forensic reform might be on the national agenda.

The new Congress will, of course, be preoccupied with budget and fiscal matters, and also with the President’s efforts on gun control and an expected push for immigration reform.  But Senator Patrick Leahy of Vermont, chair of the Senate Judiciary Committee, has announced that he intends to put forensic reform onto the long list of issues he will examine.  According to The BLT (the Blog of the Legal Times, which covers law and government in Washington), Leahy’s committee will be working on an ambitious agenda: immigration, national security and civil liberties issues (including the use of drones in both foreign and domestic contexts), and gun control policy, but that isn’t all.  “The committee will also focus on promoting national standards and oversight for forensic labs and practitioners,” BLT says.

This is a welcome development.  People can disagree about whether we should have national standards (I think yes) or a “national institute of forensic science,” (again, I say yes) as proposed in the National Academy of Sciences’ 2009 report Strengthening Forensic Science in the United States: A Path Forward.  But it’s hard to argue that we should not hold the current situation up to the light for some long-overdue scrutiny and discussion of  higher standards and better oversight.  With the never-ending parade of state and local scandals in crime labs, a little federal look-see could actually help.

So Many Autopsies, So Little Time: Lessons From Mississippi’s Former Medical Examiner

In a story titled “Questions Left for Mississippi Over Doctor’s Autopsies,” we learn about Dr. Steven Hayne, who did most of the autopsies in the state of Mississippi for approximately two decades .  From “the late 1980s through the late 2000s,” Dr. Hayne did autopsies for the state, but rather than receiving a regular salary as a state employee, Dr. Hayne was paid by the autopsy.  This gave him a strong incentive to do as many autopsies as he could.    He did about 1,700 autopsies in most of those years, a caseload that is about seven times the maximum recommended by the National Association of Medical Examiners.

There are now four lawsuits pending concerning Dr. Hayne’s work, with about ten more on the way.  Brought on behalf of inmates who claim they were wrongly convicted, the suits charge that Dr. Hayne misrepresented his qualifications as a forensic pathologist.  Perhaps more importantly, the lawsuits contend that Dr. Hayne drew conclusions based on ideas “that lie far outside standard forensic science.”  For example, in one infamous case, Dr. Hayne testified that a child had died of suffocation when a large male hand had covering his face.  Hayne based this opinion on a cast of the child’s face and his autopsy notes describing wounds on the child’s face, but the “large male hand” idea came weeks after the initial autopsy and only after the child’s three-year-old brother had implicated the mother’s boyfriend.   According to the article, there is no scientific support for what  Hayne did in the case or for the conclusions he drew.

“I saw a very similar case like that on ‘Law & Order: SVU,’ ” said Dr. Andrew M. Baker, the president of the medical examiners’ association and chief medical examiner for Hennepin County, Minn. “I’ve never heard of it in real life.” Dr. Baker said not only was the technique unheard of but so was the ability to speculate from those sorts of wounds about hand size or gender.

It’s tempting to regard this as another in a lengthening list of forensic scandals featuring faulty work.  But Dr. Hayne’s situation is worth noting, because it illustrates the power of forensic science, and why those who perform these tasks must be under reasonable professional scrutiny and be subject to  challenge.   In Mississippi, with no one to challenge him, Dr. Hayne’s autopsy results decided countless cases, and there was no one to push back.  In arrangements like that, disaster awaits.  The article quotes Dr. Lloyd White, the Mississippi state medical examiner from 1989 to 1992, who explains why things like this happen: poor science is “able to persist because scientific testimony is too often viewed with uncritical reverence and because the people affected by its misuse usually have little support or sympathy.”  No one was in a position to challenge Hayne, since he did almost all the autopsy work in the state, and the state and the prosecutors liked it that way.  Years later, individual convicts, their families and perhaps the taxpayers are left to clean up the damage and pay for the mistakes.

Why Does Law Enforcement Have the Power to Control DNA Databases and Exclude Defense Testing?

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.

Stateline Article on Forensics: Yes, But CSI Isn’t the Problem

An article posted on Stateline (published by the Pew Center on the States) on November 26, “Forensic Science Falls Short of Public Image,” nails many of the problems with forensic science in the U.S.  But readers will have to go beyond the references to “the CSI effect” and how this troubles police and prosecutors.  For those who read further, the real problems surface: the inherent weaknesses in traditional (non-DNA, non-chemistry based) forensic methods, along with lack of supervision and protocols, occasional outright fraud, lack of judicial knowledge about these issues, and prosecutorial unwillingness to recognize these problems.

“In fact,” says the article “the whole field of forensic science is currently in flux, following a top-to-bottom review in 2009 by the National Academy of Sciences. The report cast major doubt on many common forensic techniques, calling them unscientific and error-prone.”  According to Judge Donald Shelton, a trial court judge in Michigan’s Washtenaw County who has written about forensic evidence, it is particularly troubling that judges don’t seem to understand just how serious the problems with forensics are, even though the National Academy of Sciences report could hardly have been clearer.  “One of my concerns, “he says, “is that these forms of evidence that we know from the National Academy of Sciences report aren’t valid, are still routinely offered and routinely admitted by judges.”

I do have to take issue with the writer’s comment that Annie Dookhan, the lab analyst who seems to be responsible for most or all of the huge numbers of fraudulent lab tests in Massachusetts was “led” to do this by overwork, underfunding, and case backlogs.   I bet that her fellow analysts who did not falsify lab results in the same lab under the same conditions would beg to differ.  But the article (part one of a two-part series) is still well worth a read.  In addition to the on-target points about the science of forensic science, it also discusses a number of the recent crime lab scandals in Massachusetts, St. Paul, Minn., Texas, and Detroit.

 

 

The Parade of Crime Lab Scandals Continues, Three Years After the NAS Report on Forensics

On the November 20 edition of NPR’s All Things Considered, “Scandals Call Into Question Crime Labs’ Oversight” pointed out that it has been more than three years since the National Academy of Sciences issued its landmark report, Strengthening Forensic Science in the United States, demanding changes in how crime labs in the U.S. were run: everything from labs’ independence from law enforcement, to the lack of proper protocols and procedures, to poor quality of the science that makes up forensic science.  Regrettably, little has changed.

Three years ago, a report from the National Academy of Sciences exposed serious problems in the nation’s forensic science community. It found not only a lack of peer-reviewed science in the field, but also insufficient oversight in crime laboratories.  Little has changed since that report came out, but concerns are growing as scandals keep surfacing at crime labs across the country.

In just the last six months, we’ve seen the still-unfolding scandal at the Jamaica Plains crime lab in Massachusetts and the crime lab problems in St. Paul, Minnesota.  I’ve blogged about both here and here.  But we never seem to stop hearing about these things.  The story mentions scandals in Nassau County, New York, and in North Carolina, but there have been many others.  Why do we keep hearing about  this happening over and over, like a forensic-focused version of the movie Ground Hog Day?

Readers, please comment — and mention other crime lab scandals of the last ten or fifteen years.  One reader mentioned the lab in San Francisco.  Let’s try to collect them, and look for the common threads.