What the National Registry of Exonerations Report Says About Law Enforcement Resistance to Science

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.

“Failed Evidence” Discussions in Cincinnati, April 4 and 5

On Thursday April 4, and Friday April 5, I’ll be in Cincinnati for two discussions of Failed Evidence: Why Law Enforcement Resists Science (2012).  Both are free and open to the public.

On April 4, I’ll be discussing the book at 7:00 p.m. at the Clifton Cultural Arts Center, 3711 Clifton Avenue, Cincinnati OH 43220.  The event is sponsored by the ACLU of Ohio.

On April 5, I’ll present at talk at the University of Cincinnati College of Law at noon.  The address is  2540 Clifton Ave, Cincinnati, OH 45221.  The event is in Room 114.  The event is sponsored by the Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project.  The event has been approved for CLE credit for attorneys.

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.

“Failed Evidence” Reviewed in Chemical & Engineering News

Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012) has been reviewed in Chemical and Engineering News, the publication of the prestigious American Chemical Society.  The review, entitled “Why Criminal Law Ignores Science,” is both enthusiastic and nuanced.  Here’s a slice or two:

The [criminal justice] system desperately needs changes, and it needs them fast. In his book, “Failed Evidence: Why Law Enforcement Resists Science,” David A. Harris, a law professor at the University of Pittsburgh, discusses the three most common causes of wrongful convictions, makes recommendations to help right the ship immediately as well as long term, and takes on law enforcement and prosecution that refuse to implement any meaningful changes—even in the face of scientific proof that doing so would decrease the number of wrongful convictions.

This “resistance to sound, science-based police investigative methods” is the theme of “Failed Evidence.” The book is an easy and informative read best suited for policymakers, scientists, advocates, judges, prosecutors, law enforcement, defense attorneys, and anyone with a general interest in the American criminal justice system. Truth be told, anyone who might find themselves sitting in the chair of a juror should read Harris’ book before sitting in judgment of a fellow human.

….

Harris paints a picture suggesting that together we can make a difference. We will never be perfect, but we can do things much better. “Ignoring science, when doing so increases the risk of wrongful convictions, simply does not square with justice or fairness,” he writes. Positive change must happen and as Harris concludes, “Justice demands no less.”

You can read the full review here.

Is the Lake Co., Ill. Prosecutor’s Office Turning the Page on Resistance to Science?

Michael Mermel, formerly a lawyer in the State’s Attorney’s office in Lake County, Illinois, became famous as a the prototypical prosecutor resisting science — even DNA.  Readers will remember Mr. Mermel from my post “Resistance, Thy Name is Mermel” back in June of 2012.  When DNA results in four of the office’s cases did not support the guilty verdicts, Mermel made clear that the DNA results meant nothing to him.  Mermel eventually resigned from the office  after telling The Chicago Tribune: “The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”  Mermel’s boss,  State’s Attorney Michael Waller, was replaced after the last election by Mike Nerheim, who made restoring the damaged integrity of the office one of his top priorities.

Now Nerheim has acted.  He has appointed a special “case review board” to examine possible cases of wrongful convictions.   In a video clip posted on YouTube, Nerheim explained that since “Lake County, Illinois, unfortunately,  has been identified as having an issue  with wrongful convictions,” he had appointed a panel of ”independent” lawyers  All of the six appointees “have no ties to these cases or to the office.”   According to Nerheim, an independent “fresh set of eyes” was critical in order to  “restore the public’s trust and confidence in the State’s Attorney’s Office.”

For making integrity of convictions a high priority for his office, Mr. Nerheim deserves credit and applause.  The only thing that seems off is the make up of the case review board.  According to The Chicago Tribune, four of the six members are former prosecutors; one of these four was a prosecutor in the Lake County office.  Without in any way impugning the integrity of the board members, their backgrounds may cause members of the community to perceive the board as less than fair — that the deck is stacked deck in favor of the prosecution.  I take no position on whether this is true or not; the concern is that if the function of this  very worthy panel is to restore trust and integrity, some citizens of Lake County may be less than fully impressed with the independence of the group.  One possible remedy would be to do what DA Craig Watkins has done with his Conviction Integrity Unit in Dallas: he has made the Texas Innocence Project an integral part of the Unit’s work.

Still, it’s important to congratulate Mr. Nerheim and everyone he serves in Lake County, Illinois.  Now things can start to get better, even if they aren’t perfect.

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.

Discussion of Failed Evidence Thursday, Jan. 31, at University of Toledo College of Law

I will be presenting a talk on my book Failed Evidence: Why Law Enforcement Resists Science on Thursday, Jan. 31 at noon at the University of Toledo College of Law.  The College of Law is located at 2801 W. Bancroft, Toledo, 43606.  The talk, in the McQuade Auditorium, is free and open to the public.  Copies of Failed Evidence will be available for purchase and signing.  Further details on the event are here and here.

The talk will be recorded by WGTE, Toledo’s public television station, for its “Knowledge Stream” programs.

One thing that makes this presentation different from all the others I’ve done on Failed Evidence: I taught at the College of Law for almost 18 years, so for me this will be a kind of homecoming.  I’m hoping for the chance to see many friends.

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.

 

 

 

Science Magazine’s Review of Failed Evidence

The current issue of Science magazine contains a review of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).  Here is a brief excerpt from the review:

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

Science is published by the American Association for the Advancement of Science.

Oregon Supreme Court: On Eyewitness IDs, Law Enforcement Must Follow the Science

A decision by Oregon’s Supreme Court on eyewitness identification procedures has re-set the way that juries and courts in that state will think about eyewitness identification.

According to the New York Times editorial on the case, the ruling shifts the burden of proof to prosecutors to prove that eyewitness identifications are reliable before they can be admitted in court.  Before last week’s decision, the rule had been that identifications were generally admitted; it was up to the defense in individual cases to prove that an identification was not reliable.

But at least as important as the new rule itself was the reason that the Oregon court abandoned its old precedent:  the court had concluded that the old rule was based on assumptions about eyewitness testimony no longer supported by the science.  Thus the new case represents a textbook case of a court forcing law enforcement away from the failed evidence of discredited methods, and toward methods that accord with what science teaches us now.

Under the old rule, Oregon judges looked at five factors when evaluating an eyewitness identification: opportunity to view the alleged perpetrator, attention to identifying features, timing and completeness of description given after the event, certainty of description and identification by witness, and lapse of time between original observation and the subsequent identification.  Looking at these factors from the vantage point of the present day, the Oregon court found them “incomplete and, at times, inconsistent with modern scientific findings.”  Given the science on eyewitness identification that is by now well established, the court prescribed a new approach, including the change in the burden of proof.

That’s what the Oregon Supreme Court did, but here is why they did it:

…[W]e believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness.

It’s hard to imagine a better summing up of the ideas behind Failed Evidence, and why the fight to overcome law enforcement’s general resistance to science is so important.