Posts Tagged ‘failed evidence’

On February 4, the National Registry of Exonerations published its yearly report for 2013.  The Registry, a joint project of the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University Law School, collects information on exonerations that have occurred since 1989.  The headlines on the new report (from the New York Times to NBC News to the Huffington Post) nearly all focused on one fact: 2013 saw 87 exonerations, the highest yearly total yet in any year since 1989.

This is a significant fact.  But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.”  This is how the world looks, whether on television (think of CSI and its many clones) or in any news source.  But this view doesn’t reflect the real world.  As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6).  Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA.  And that difference seems to be increasing.  In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically.  In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent.  The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations.  (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development.  While some exonerations have always come about with law enforcement cooperation, this was not the trend.  Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past.  According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not.  That idea appears to be sinking on a much wider basis.  And that is all to the good.

 

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

For those in the Chicago area, I’ll be speaking about my book “Failed Evidence: Why Law Enforcement Resists Science” on Wednesday, October 16, at 5 p.m. at Gage Gallery, 18 S. Michigan Avenue.  The event is free and open to the public.  The event is sponsored by Roosevelt University’s Joseph Loundy Human Rights Project, and is part of their annual speaker series.  The link to the event is here.

The next public event for “Failed Evidence” will be in Pittsburgh on November 6, at noon at the Harvard Yale Princeton Club, 619 William Penn Place, The talk will be sponsored by the Allegheny County Bar Association and the Pitt Law Alumni Association.  More details to follow.

With the trial of George Zimmerman for the killing of Travon Martin now underway, we can see that most of what is happening in the trial is not that different from most other murder trials one could see on an average day in any Florida courthouse.

But this week, we have seen that there is one big difference.  In this case, the jury has the opportunity to know what Zimmerman said, from an actual recording of the actual police interrogation.  They can see the questions police asked, the answers Zimmerman gave, and his tone and demeanor when he gave the answers .  The jurors will know Zimmerman’s exact words, and whether he hesitated or seemed confident he gave an answer.  They will know all of this for themselves, without it being filtered through a police officer’s memory or note taking.  (In fact, we can all experience this first-hand evidence; use the link above to pull the interrogation up on YouTube.  You can also find a recording of Zimmerman’s re-enactment of the shooting for police. )

That’s the difference: in Florida, the usual case wouldn’t necessarily include a recording  of the interrogation, because Florida  does not require recording of interrogations.  Even in murder cases, state law does not mandate electronic recording of the interrogation process.   Twenty states require recording of interrogations in at least some cases under their laws, but Florida is not one of them.

I’m not taking a position here on what’s in the recordings, or whether the jury should believe Zimmerman or not.  What I am saying is that the jury can make up its own mind about what was said, under what conditions, and whether it represents the truth.  That’s what recording of interrogations does for the trial process: it improves the quality of evidence that the jury sees, and it means that bogus claims — whether they come from the defendant or from the police — have much less traction.

In  Zimmerman’s case, there are other recordings too, and the jury can see those as well.  But in most serious cases in Florida, the jury will have to rely on the imperfect recollections and notes of a detective who was involved in the interrogation.  And that’s just not good enough, with the stakes so high.

 

 

When a former high-ranking Justice Department official speaks of a “revolution” in criminal justice, with the whole field turning toward science, could it mean less failed evidence in the future?  What does it mean for those concerned with faulty forensic science?

Laurie Robinson served as Assistant Attorney General in both the Clinton and Obama Justice Departments, where she oversaw the Office of Justice Programs (OJP), the research, statistics and criminal justice assistance arm Justice.  That made her remarks to the Delaware Center for Justice the other day worth noticing.  According to the Wilmington News Journal, “[w]e’re seeing something akin to a revolution in criminal justice in this country,” said Robinson, now on the faculty of George Mason University. “We’re at an important crossroads, one where ideology has taken a back seat, and science and pragmatism have come to the fore.”

Robinson’s web page at George Mason says her tenure at OJP  “was marked by a focus on science and evidence-based programming.”  She was in Delaware to discuss the state’s re-entry programs  and other initiatives to reduce recidivism, and few would disagree that those important programs need scientific and statistical support.   But I wonder whether Robinson would be as optimistic about science’s role in forensic methods, which have played a role in about half of all wrongful convictions across the U.S.  Surely, forensic science needs “science and evidence-based” support and examination — badly.

 It has now been more than four years since the release of the landmark 2009 National Academy of Sciences report Strengthening Forensic Sciences in the United States: A Path Forward, which found that except for DNA and chemical analysis, most of what we think of as forensic science isn’t science at all.  In that time, little seems to have changed; scandals in crime labs continue to pile up in jurisdictions across the country (see my posts about lab scandals just this past year in Massachusetts  and Minnesota,  for example).  In a particularly compelling piece of writing in the Huffington Post, Radley Balko discusses the long-running crime lab scandal in Mississippi, and puts it in context: Mississippi’s scandal “is just the latest in a long, sad line of such stories” that Balko has already chronicled.

What’s to be done?  As a start, I argued in chapter 7 of  Failed Evidence, all federal money that goes to law enforcement should carry with it a requirement for compliance with best practices in police investigation and forensic science.  Not all law enforcement agencies run their own forensic labs (and as the NAS report said in Chapter 6, “Improving Methods, Practice, and Performance in Forensic Science,” labs should be independent of law enforcement.).  But for those that do, compliance with standards that would avoid systematic error, human biases, fraud, and improper scientific testing and testimony should be mandatory.

That would start a revolution right there.  Because what law enforcement agency could afford to just turn down federal funding, in budgetary times like these?

 

It has been almost fifteen years since the National Institute of Justice (NIJ) recommended comprehensive changes to the ways that police conduct identification procedures for witnesses.  Yet USA Today reports that a new NIJ report reveals that 84 percent of U.S. police departments still have no policy to govern how live lineups are conducted.

Readers of Failed Evidence know that almost three quarters of wrongful convictions  overturned through DNA feature incorrect eyewitness identifications; it’s the single largest source of error in these cases.  Readers also know that a growing number of jurisdictions (for example here and here,) have adopted changes to eyewitness identification procedures to eliminate these errors, through blind administration of lineups, use of sequential lineups, and other procedures that decades of research has proven to reduce these errors greatly.

But the NIJ study concludes that most of agencies have no policies for how officers conduct these crucial procedures.  Eighty-four percent of the responding police departments said that they had no policy for live lineups, and sixty-four percent said they had no policy for conducting photo lineups.

The study was conducted for NIJ by the Police Executives Research Forum, “a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies.”   PERF surveyed hundreds of U.S. police agencies, large and small, to determine how many had at least taken the step of creating a policy to require officers to use at least some of the recognized best practices for eyewitness identification.  PERF researchers found larger police agencies more likely than smaller ones to have a policy in place, but even among the large agencies, fully twenty-five percent did not have a policy.

For those who follow these issues, as I do, the fact that so much of the law enforcement establishment has failed to make changes in basic investigative procedures is not entirely shocking; the resistance to science and the changes it points to is the central theme of my book Failed Evidence.  But the results of the study are nonetheless disappointing, if only because eyewitness identification reform is one of the areas in which there is the greatest consensus that basic changes are needed; there is also broad consensus one what those changes needed most are: blind lineups, sequential lineups, valid ways of dealing with witness confidence statements, instructions to witnesses, and the like.

I’ve written before about Conviction Integrity Units (CIUs) in prosecutors’ offices (take a look here and here).  CIUs are groups of lawyers within prosecutors’ offices — just like a major crimes unit or a narcotics unit, though probably much smaller than either of these — with the job of investigating questionable past convictions from that same office.  CIUs do this when presented with evidence that raises real doubts about the guilt of a convicted defendant in one of the office’s past cases.

The first CIU was established by Dallas DA Craig Watkins, who had then just been elected against a backdrop of more than 20 exonerations of people wrongfully convicted under the past leadership of his agency.  (The latest story about Watkins and the exoneration of wrongfully convicted people in Dallas — examining a fascinating twist on exonerations — is here.)  Just a couple of years later, Patricia Lykos, then the newly elected DA in Houston, established a CIU in her office.  From Texas, the idea has begun to spread.

Both the Dallas and Houston CIUs have one thing in common: they were launched by new DAs to investigate cases that originated under former administrations.  No doubt this is easier than investigating mistakes that have happened under one’s own watch.

That’s what makes this story out of the Brooklyn DA’s office so interesting.  Charles Hynes, the elected DA of Brooklyn, established a CIU that will be looking at cases in which prosecutors obtained convictions during his own six terms in office.  For example, at the end of March, David Ranta, 58, was released after spending 23 years in prison for the killing of a rabbi in Williamsburg, Brooklyn.  The original conviction came under Hynes’ leadership; when Ranta was released, Hynes gave credit for the release to his CIU.

CIUs accomplish something very fundamental: they make the task of uncovering mistakes in the justice system into a routine operation.  On the other hand, as readers of this blog have correctly pointed out, CIUs are a lot like internal affairs divisions in police departments: the DAs are investigating themselves.  This is easier to credit when the head of the office is not the same person who was at the helm when the mistakes were made.  It is also why CIUs  are still rare when the head of the office has been serving a long time — long enough to be the one responsible for the mistakes under investigation.

The National Registry of Exonerations, a joint project of the law schools at University of Michigan and Northwestern, reported last week that in 2012, law enforcement cooperated in some way in a higher percentage of cases than in the past.  Does this mean less resistance of science by law enforcement?

The answer is that we can’t tell from this data.  But the report is worth looking at nonetheless.

Here is what the report says about law enforcement cooperation (I have removed the bullets, spacing, etc.):

In  2012 there was a dramatic increase in the number and the proportion of exonerations that prosecutors or police participated in obtaining.  Of the 63 exonerations in 2012, prosecutors or police initiated or cooperated in 34, or 54%. Over the past 24 years, prosecutors and police have cooperated in 30% of the exonerations we know about (317/1050). Last year for the first time they cooperated in a majority of exonerations, and the number of such cases is a large increase from the previous high (22 of 57 in 2008, or 39%).

This is all to the good.  But there are some aspects of the findings that counsel caution.  First, the author(s) of the report freely admit they don’t know why  this is happening.  It could have many causes.

This increase [in cooperation] may be due to a confluence of related factors: changes in state laws that facilitate post-conviction DNA testing, the emergence of Conviction Integrity Units in several large prosecutorial offices, and, perhaps, a change in how law enforcement officers view the possibility of false convictions at trial.

And just to be clear, it’s good that they admit that it’s not clear what the cause or causes could be.  Too often, those working with statistics take an opposite tack.

As far as resistance to science, however, the report may indicate that the cases where science and forensics matter most still do not get cooperation for law enforcement.  The first clue is that 57% of the exonerations in 2012 were homicide cases, and another 24% were sexual assaults — 81% in all.  These are the types of cases in which resistance science on eyewitness identification, interrogation, and  forensics can matter the most.  These cases also have the highest public profile.  And there, perhaps, is the rub: “Official cooperation is least common among exonerations for highly aggravated and publicized crimes – murders with death sentences and mass child sex abuse prosecutions – and most common among exonerations for robberies and drug crimes.”

The best way to answer whether this increased cooperation represents any lessening of the resistance to science would be to look at the individual exoneration cases for 2012: do they feature law enforcement cooperation over these science-based issues, or is it something else — for example, information on a witness interviews illegally withheld from the defendant in a previous trial?

Perhaps we will see that in the next report from the Registry.

When I’m in Cincinnati for talks on Failed Evidence tonight, April 4, at 7:00 pm at the Clifton Cultural Arts Center and tomorrow, April 5, at noon at the University of Cincinnati School of Law, one topic sure to come up is an article from the April 3 New York Times, “Advances in Science of Fire Free a Convict After 42 Years. ”   Louis Taylor was serving 28 life sentences for the deaths caused by a fire in a Tucson, Arizona hotel in December of 1970.  Taylor, then just 16 years old, was convicted of arson based on faulty forensic science.

Mr. Taylor has been release from prison.  He is now 58 years old.

The story highlights the state of arson investigation, past and present.

A few years ago, the National Academy of Sciences turned its attention to the misuse of science in courtrooms, saying that pseudoscientific theories had been used to convict people of crimes they may not have committed. By then, a small group of fire engineers had already begun to discredit many of the assumptions employed in fire investigations, like the practice of using the amount of heat radiated by a fire to assess if an accelerant had been used.

Unlike DNA evidence, which can exonerate one person and sometimes incriminate another, the evidence collected in some arson investigations does not yield precise results. Often much of the evidence has been lost or destroyed. In the case of the hotel fire here, all that is left are photographs, reports and chemical analysis, all of them assembled to prove arson.

As a result, “we can’t definitely say what really caused the fire,” said John J. Lentini, a veteran fire investigator who wrote a report on Mr. Taylor’s case. “But what we can do is discredit the evidence” used to support the charge.

The case recalls the story of the trial and execution of Cameron Todd Willingham in Texas, executed in 2004 for the deaths of his children in a fire.  Experts call the arson in that case terribly flawed — just as in Mr. Taylor’s case.

The science surrounding investigation is light years ahead of where it used to be, even a decade ago.  It’s time that all of the old cases in which verdicts depended on outmoded and discredited methods of arson investigation be re-examined, and if necessary overturned.