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The Supreme Court’s Forensic Follies

by Michael Dean Thompson

The framers of the Constitution attempted to guarantee defendants a fundamentally fair trial. They did so, however, at a time when modern science and the scientific method was in its infancy. For that reason, scientific forensic evaluations and standards were not mentioned, leaving the Supreme Court free to create its own interpretations of the role actual science has to play in a trial. This lack of guidance has exposed defendants to being wrongfully incarcerated due to junk science. And, to be fair, science and law are profoundly distinct practices. A court officer can author stunning briefs and decisions without understanding the first thing about statistical methods and logical positivism, the cornerstones of the scientific method that generates repeatable results. There have been some state courts and legislatures endeavoring to fix how the system deals with scientific evidence, but the Supreme Court’s few forays into the arena seem to have only worsened the problem in recent decades.

DNA has risen to become the “gold standard” in forensic science. Single source DNA analysis stands alone in its ability to identify suspects and exonerate the innocent. Since 1989, the National Registry of Exonerations has listed nearly 800 of its 3,300 exonerations involved junk science. Of the Innocence Project’s first 241 DNA-based exonerations, more than half of the convictions were due to “misapplied forensic science.” Those people were fortunate to have DNA samples in their cases and to have found postconviction attorneys willing and competent enough to take them on. Without doubt, many of the same “misapplied forensic science” techniques have been applied to people who did not have DNA evidence or who had court-appointed attorneys with little time or motivation to do more than the minimum effort required by law.

When thinking about the misapplication of science, it may help to break the cases down into three categories. The first category contains efforts by deceitful forensic scientists or “experts” who see their jobs as supporting the prosecution rather than searching for the truth. The second category of cases are those involving analysts who use the wrong or unreliable tools, even in good faith. The third category contains those that have had more reliable science become available post-conviction, but the state does not allow additional testing. In all three of these categories, the Supreme Court has lately been unwilling to interpret due process as requiring defendants have access to the best scientific evidence.

It is unfortunate that a significant number of people present themselves as experts but are all too willing to use scientific gravitas to put their finger on the scales of justice for the state. They may not even be aware of their bias. It just turns out that every time there is room for subjectivity or error, it’s always in favor of the prosecution. But there are also cases where the supposed scientists engage in intentional deceit. In Miller v. Pate, 386 U.S. 1 (1967), the Supreme Court heard a case in which a chemist represented a pair of underwear covered with paint as instead being covered with blood. When confronted with the alternative finding, the chemist argued the blood evaporated. Miller, the accused, was one of the few fortunate ones who had his conviction overturned by the Supreme Court 12 years after his conviction.

The idea of so-called forensic “scientists” laboring away in state-of-the art sterile laboratories in the dispassionate and impartial quest for truth and justice wherever it may lead is a heroic myth created by Hollywood. The Director of Serology for the West Virginia Department of Public Safety during the 1980s is thought to have tainted as many as 180 cases to support the prosecution, resulting in wrongful convictions. Had DNA analysis not come about, it is likely none of those convictions would have been uncovered. A chemist in Massachusetts was caught falsifying as many as 40,000 drug cases. A Houston chemist tainted some 5,000 cases as well. The Supreme Court has meanwhile made it exceedingly difficult for defendants to access their own court ordered experts who would be qualified to challenge any misleading or outright false claims by the prosecution’s experts.

DNA is remarkably accurate. A high-quality single source test can have an accuracy of about 1 in 10 billion. Not all tests are created equal, however, and many have not been put through the rigors of peer-reviewed examination. In addition, each added source mixed into the sample increases the complexity of identification exponentially due to the manner in which DNA is multiplied in order to create a legible result. An analyst may therefore present data as reported by a given tool not knowing that the tool is inaccurate, sometimes woefully so.

Still today, ballistics reports are used to help convict despite a 2016 National Academy of Sciences report that chided “the current state of forensic firearms identification lacks a rigorous scientific foundation.” The Academy likewise found in 2014 that ballistics experts often disagreed with each other. Bitemark exams, like those used to convict Ted Bundy, have also been shown to lack even a semblance of scientific rigor. Ballistics and forensic odontology (bitemark examinations) are just a couple examples of forensic identification that appear in court but are highly subjective and unreliable. The travesty of justice occurs when these so-called experts submit their findings in a courtroom where no other person in the room is able to detect potential tool misapplication. As ample research has shown, both judges and jurors alike are dazzled by forensic “experts,” so when one of these experts is testifying in court unchallenged by another expert, that testimony is especially persuasive—even if it’s entire inaccurate and false.

Those cases of bad or junk science, or even the absence of science altogether, can at times be refuted by higher quality science that comes years later. That is what happened with DNA. But the Supreme Court has been reluctant to force states to take advantage of the new techniques. A man in Alaska was convicted on the results of a DNA test called DQ Alpha, which was known not to be particularly accurate. When he requested to have the DNA analyzed by a better test at his own expense, the Supreme Court turned him down. District Attorney’s Office v. Osborne, 557 U.S. 52 (2009). The first LexisNexis headnote in the case points out the remarkable claim that “science alone cannot prove a prisoner innocent.” Unfortunately, the 5 to 4 majority in the Court felt that Osborne had a fair trial that disentitled him to postconviction access to the evidence used against him, even though it could in fact be exculpatory.

Forensic science continues to evolve. When properly used, improving techniques in crime scene analysis have helped to ensure that new convictions are of the correct person and are more reliable. They have likewise shown us just how unreliable previous convictions have been. It is unfathomable that the Supreme Court has been resisting the opportunities they have been given to properly apply the best available science to what may be wrongful convictions. For the people wrongfully convicted, it is fundamentally unfair and undermines the credibility of the criminal justice system for everyone.



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