The Failed Evidence of Arson: Science Begins to Catch Up, and a Man is Freed After 42 Years

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.

NPR Story on Faulty Forensics and Criminal Justice: Failed Evidence Again

A story on National Public Radio highlights one of the central themes of”Failed Evidence: how does the criminal justice system react to advances in science that throw past convictions into doubt?  The answer will not surprise readers of this blog or Failed Evidence: they resist.

The story concerns the case of William Richards, convicted in 1997 of murdering his wife.  The conviction came in a fourth trial, after two hung juries and a mistrial failed to result in a verdict.  In the fourth trial, the prosecution introduced new evidence: testimony by a forensic dentist, who said that marks seen in a photograph of the victim’s body were human bite marks .  The marks, he said, were unusual enough that they were likely to have been made by the defendant’s distinctive teeth.   Ten years later, another forensic dentist corrected a distortion in the photo of the marks, using photo editing software.  Now, the first forensic dentist says the marks weren’t from human teeth at all, and he says that he should not have testified as he did.  Yet the defendant remains in prison, serving 25 years to life.

There’s a lot that is familiar here — too much.

First, the idea that bite mark identification should ever play a role — let alone the key role — in convicting someone and sending them to prison is just intolerable.  I have posted about the weakness of bite mark analysis before (here), and Richards’ case demonstrates the point all over again.  The forensic dentist who put Richards in prison testified that the bite mark (that turned out not to be a bite mark) was so distinctive that he estimated that only one or two out of a hundred people could have made it.  The idea that such an estimate — not at data-based study, but his personal estimate — of such a low probability could ever be considered for admission in a court should make everyone shiver.

Second, the story gives us the reaction of Jan Scully, past president of the National District Attorneys Association and the elected District Attorney of Sacramento County, California.  Scully says there is something more important than the fact that the central evidence in the case has been fatally undermined.  According to the NPR story:

“We need to have finality of verdicts,” she says. “There is always a new opinion or there might be a refinement in our forensic science areas. So, just because something new occurs doesn’t mean that the original conviction somehow was not valid.”

In other words, it’s the same old story from the NDAA: there is no significance to the demonstrated falsity of the “science” that was used to put a man in prison.  It is more important for the verdict to remain undisturbed.

It’s hard to imagine a story that captures the ideas in Failed Evidence more strongly.  Go to the story, and check it out.

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.

Put Privacy Aside: Is Collecting DNA From Every Arrested Person a Good Idea?

Today the U.S.  Supreme Court hears arguments in Maryland v. King, the Court’s latest foray into  DNA testing.  Most reports have focused on the clash between law enforcement’s desire to test every arrested person in order to try to solve old cases, and those who advocate for a strict interpretation of the Fourth Amendment’s protection of privacy.  For example, a report by the excellent Nina Totenberg of National Public Radio discussed the positions of police, who believe taking a sample from every person arrested is a minimal intrusion that can have a big payoff, and the arguments of defense attorneys and civil libertarians, who feel that allowing testing of all arrestees would surrender the basic principles of the Fourth Amendment’s protection against unlawful searches and seizures.

But there’s a question that may be far more important: from a crime fighting point of view,   is it a good idea for police to take and process a DNA sample for everyone who gets arrested?   Of course there will be some cases — such as the King case itself — in which the time-of-arrest sample leads to an arrest for a different, serious crime.  But taking samples from every arrestee may actually hurt our efforts to use DNA most effectively to make ourselves safe.  According to an article in Slate by Brandon Garrett and Erin Murphy, real public safety gains from DNA lie not with taking samples from every jaywalker and burglar and hoping for a hit in a cold case, but instead in taking many more samples from crime scenes.  In other words, we get more hits when we process samples from active crime scenes and match them against our already-large DNA database, instead of fishing for leads among the whole population of more than 12 million people arrested every year.  And all of those additional samples from arrestees crowd out and slow down the processing of samples from real crime scenes and victims, creating backlogs.  In other words, bigger DNA databases is not the answer to crime.

[B]igger is only better if DNA databases grow in the right way: by entering more samples from crime scenes, not samples from arrestees. DNA databases already include 10 million-plus known offender profiles. But a database with every offender in the nation cannot solve a crime if no physical evidence was collected or tested.  And police collect far too few such samples….The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.  Even worse, taking DNA from a lot of arrestees slows the testing in active criminal investigations….Backlogs created by arrestee DNA sampling means that rape kits and samples from convicted offenders sit in storage or go untested.

The bottom line: even if the Supreme Court says we can take a sample from every person arrested, doesn’t mean we should.

 

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: 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.