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.

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.

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.

“Forensics on Trial” on PBS Gets It Mostly Right

Last night, PBS broadcast “Forensics on Trial” on Nova, the network’s terrific science show.  My take: the show got most of the issues regarding forensic science right, but not all.  And I think it might leave a misleading impression on some viewers.

Here’s a quick list of some of the things the program got right:

* The Brandon Mayfield fingerprint fiasco set in motion deep scrutiny of forensic science, culminating in the National Academy of Science 2009 report, “Strengthening Forensic Science in the United States.”

* According to that report, aside from DNA, most forensic science isn’t science at all but a craft based on human interpretation, subject to all of the cognitive flaws one would expect.

* Most of forensic science operates without standards, accountability, or basic certification.

But I had some reservations:

* The show conveyed a sense that the lack of scientific rigor in forensic methods would be solved by shiny new high-tech gadgetry.  Too little attention was paid to the ways we should address more basic flaws: the lack of real data on which to base our judgments about the sources of the evidence we find; the absence of standard laboratory practices, such as blind testing,  to protect against cognitive biases and flaws.

* The show failed to probe into the weaknesses of some of the lamest forensic disciplines, such as tire and shoe prints, hair and fiber matching, and the like.  Some of this was mentioned, but only in passing.

* The segment on bite mark identification was particularly striking.  It did a good job of exposing how this “discipline” put an innocent man in jail for fifteen years.  But it made it seem as if the problem was shoddy use of a legitimate method, when the issue is more fundamental: bite marks on skin are not consistent, and they change as the body tissue changes, moves, etc.

* I recall nothing about fraudulent forensics — so-called “dry labbing” that is now rocking the Jamaica Plain lab in Massachusetts, and that has shown up again and again in other places.  (Paging Fred Zain…paging Joyce Gilchrist…)

A worthy effort?  Yes, no question.  But I was hoping for better.

Reaction, readers?

“Failed Evidence” Discussed in D.C. (Wed., Oct. 3) and Baltimore (Thur., Oct. 4)

Failed Evidence: Why Law Enforcement Resists Science will be the subject of two public forums this week, one in Washington, D.C., and the other in Baltimore.  Both events are free and open to the public.

On Wednesday, October 3, I’ll discuss the book at noon at American University’s Washington College of Law, 4801 Massachusetts Avenue N.W. (6th floor).  My talk will be followed by a panel discussion featuring former Assistant U.S. Attorney Dan Zachem and Professor Paul Butler of Georgetown University.  Full details are here.

On Thursday, October 4, I’ll lead a discussion of the book at 5:30 p.m. at the University of Baltimore School of Law, 1401 Charles Street.  The panel to follow will include Gregg Bernstein, the elected State’s Attorney for Baltimore.  Full details are here.

DA Sickened by Convicted Criminals Going Free Because of MA Crime Lab Scandal

In the latest result of the Jamaica Plain crime lab scandal in Massachusetts, convicted criminals are leaving jail and a district attorney recoils at the damage done.  An article in today’s Boston Herald says that the cases of at least  twenty inmates have been affected so far, and more releases will soon follow.

The wrongdoing at the lab, in which protocols were not followed and results were possibly falsified, points out the importance of many of the recommendations in Failed Evidence and in the National Academy of Science’s 2009 report on forensic sciences: established protocols that trigger systemic warnings if not followed; laboratory accreditation and analyst certification; and regular proficiency and quality assurance testing, just to name a few.  But it’s actually more instructive to hear the comments of Norfolk District Attorney Michael Morrissey, upon hearing that inmates serving sentences had been freed because of the scandal:

It makes me feel sick that the hard work that had gone into prosecuting these individuals could be thrown out the window…There will be a larger onslaught in the coming weeks of people who have committed very serious crimes who will be let out of jail or face significantly lesser charges.  It leaves me kind of speechless that one individual could cause so much damage.

There’s only one thing you can say to this:  Mr. Morrissey is right.  A lot of hard work by good police officers and dedicated prosecutors has gone for naught, and some number of guilty people will get out of jail or serve less time than they could have — something they do not deserve.  It is a huge waste and a real injustice, which will only be compounded if the individuals freed go out and commit more crimes.

We don’t yet know the full story: was this one rogue lab worker, as Mr. Morrissey’s statement suggests, or was the wrongdoing more widespread?  Whatever the answer to that question is, we know that, going forward, all of the leaders in the criminal justice system who have felt the impact of this scandal must lead the way to comprehensive reform.  Nothing less will do, because nothing less will assure us that the same thing can’t happen again.