Watery Graves: The Mystery of Foss Lake

     There’s no telling how many murder victims lay on the bottom of America’s lakes, rivers, and ponds. Most people don’t realize that these boating, swimming, and fishing sites are also the unmarked graves of people who have gone missi…

     There's no telling how many murder victims lay on the bottom of America's lakes, rivers, and ponds. Most people don't realize that these boating, swimming, and fishing sites are also the unmarked graves of people who have gone missing and might never be found. It's a sobering thought.

     Whenever a lake goes dry or is drained, law enforcement officers often gather to recover guns, knives, cars, safes, cellphones, computers, wallets, and other potential indicia of foul play. Occasionally, the remains of missing persons are exposed as well. When that happens, one mystery is solved and another is created.

     On September 10, 2013, Oklahoma Highway Patrol officer George Hoyle, while testing a sonar detection device from a boat on Foss Lake 110 miles west of Oklahoma City, discovered a pair of vehicles sitting under twelve feet of murky water.

     A week after the vehicles were detected, Darrell Splawn, a member of the state's underwater search and rescue team, dove into the lake for a closer look. At this point, officers believed they had found a pair of stolen cars.

     When officer Splawn opened the door to one of the vehicles and probed its interior, his hand came in contact with a shoe. He also discovered, near the car, a human skull. The diver surfaced to report his finds. When the diver slipped back into the muddy water to check on the other vehicle, he saw skeletal remains inside the second car.

     Once the heavily corroded cars--a 1952 Chevrolet and a 1969 Chevy Camero--were pulled out of the reservoir, they revealed their gruesome secrets. Each vehicle contained the skeletal remains of three people. Officers also recovered, among other items, a muddy wallet and a purse.

     On April 8, 1969, 69-year-old John Alva Porter, the owner of a 1952 green Chevy, went missing. In the car with him that night were his brother Arlie and 58-year-old Nora Marie Duncan. These three residents of nearby Elk City, along with the Chevy, disappeared without a trace. No one had any idea what had happened to them.

     Jimmy Williams, a 16-year-old from Sayre, Oklahoma, a town of 4,000 a few miles from the lake, owned a 1969 Chevrolet Camero. On the night of November 20, 1970, he and two friends--Thomas Michael Rios and Leah Gail Johnson--both 18, were riding in Williams' car. Instead of going to the high school football game in Elk City, the trio had gone hunting on Turkey Creek Road. The teenagers and the Camero were never seen again.

     While the six skeletal remains are presumed to match the two sets of missing persons, it would take months to scientifically confirm their identities. Forensic scientists in the Oklahoma Medical Examiner's Office compared DNA from the bones with DNA samples from surviving family members. Dr. Angela Berg, the state forensic anthropologist, determined the gender, general stature, and approximate ages of the people pulled out of the lake. She did this by analyzing leg and pelvic bones along with the skulls. This data was compared with information contained in the missing person reports.

     What the 44-year-old remains did not reveal was the manner and cause of these deaths. While the six people presumably drowned, they could have been murdered by gun, knife, or blunt instrument then dumped into the lake. To rule out foul play, the forensic pathologist and the anthropologist looked for signs of trauma such as bullet holes, knife wounds; and smashed or broken bones. The forensic scientists also attempted to determine if the fates of the people inside the two cars were somehow connected.

     Custer County Sheriff Bruce Peoples told an Associated Press reporter that it was possible these underwater victims had been driven accidentally into the lake where they had drowned. "We know that to happen even if you know your way around," he said. "It can happen that quick." While that is certainly possible, until murder is ruled out, it should be presumed.

     In October 2014, the forensic pathologist officially confirmed the identities of the six sets of remains. Two months later, the medical examiner's office ruled out foul play. Some of the victims' family members, however, remained skeptical and suspected foul play in the deaths.

     

from http://jimfishertruecrime.blogspot.com/

The Future of Forgeries

This article argues that AI technologies will make image, audio, and video forgeries much easier in the future. Combined, the trajectory of cheap, high-quality media forgeries is worrying. At the current pace of progress, it may be as little as two or three years before realistic audio forgeries are good enough to fool the untrained ear, and only five or…

This article argues that AI technologies will make image, audio, and video forgeries much easier in the future.

Combined, the trajectory of cheap, high-quality media forgeries is worrying. At the current pace of progress, it may be as little as two or three years before realistic audio forgeries are good enough to fool the untrained ear, and only five or 10 years before forgeries can fool at least some types of forensic analysis. When tools for producing fake video perform at higher quality than today's CGI and are simultaneously available to untrained amateurs, these forgeries might comprise a large part of the information ecosystem. The growth in this technology will transform the meaning of evidence and truth in domains across journalism, government communications, testimony in criminal justice, and, of course, national security.

I am not worried about fooling the "untrained ear," and more worried about fooling forensic analysis. But there's an arms race here. Recording technologies will get more sophisticated, too, making their outputs harder to forge. Still, I agree that the advantage will go to the forgers and not the forgery detectors.

from https://www.schneier.com/blog/

Decades Later, TX Couple Exonerated in Daycare Sex Case

Fran and Dan Keller served 21 years in prison for one of Austin’s most notorious and lurid cases — the alleged sexual abuse of children in their daycare center in 1991. They were freed in 2013 based upon errors in physical evidence used against them but had awaited the official declaration of innocence that came this week.

The district attorney in Austin, Tex., filed court documents Tuesday declaring that Fran and Dan Keller were innocent of one of Austin’s most notorious and lurid cases — the alleged sexual abuse of children in their South Austin day care center in 1991, reports the Austin American-Statesman. “It seems like we can breathe again,” Fran Keller said. “We can sleep again without nightmares. We can go out without having to worry about people recognizing us in the grocery store.”

The accusations against the couple made national news after three children accused them of participating in satanic rituals that included videotaped orgies, dismembered babies and tortured pets. No evidence of such activities was ever discovered. Two decades after the Kellers were convicted, the case against them collapsed when the only physical evidence of abuse was acknowledged as a mistake by the examining physician. They were freed in 2013 after serving more than 21 years in prison. A state appeals court overturned their convictions in 2015 but stopped short of declaring the couple innocent. On Tuesday, DA Margaret Moore filed a motion to dismiss their criminal case.

from https://thecrimereport.org

Flawed Forensics: Wrong by a Hair

The FBI has acknowledged that at least 13 individuals in Wisconsin were convicted as a result of flawed evidence involving hair and fiber, according to Wisconsin Watch. Such errors –a factor in one-fifth of all DNA exonerations— add fuel to the burgeoning national debate over the validity of forensic evidence.

The 28-year-old mother of two was raped by a stranger in her home in the rural Wisconsin community of Stoughton. Before the attack, the woman was followed around town and received menacing, sexually charged phone calls from an unknown man, whom she suspected lived nearby.

Nearly two years after the 1987 rape, Richard Beranek — who was living 130 miles away and had no known ties to the community — surfaced as a possible suspect. Local law enforcement officials thought Beranek, facing sexual assault charges there, resembled a composite sketch of the suspect in the Stoughton rape.

The woman picked Beranek out of a group of photos, telling police that she was almost certain he was the attacker. She then picked Beranek out of a live lineup.

Sealing Beranek’s fate, FBI analyst Wayne Oakes concluded that a hair found in underwear left by the rapist in the woman’s bed was a “match” to Beranek’s hair “to a high degree of probability.”

At the time, however, the FBI knew microscopic hair comparison had limitations. Hair that looks identical, even under a high-powered microscope, could come from a number of individuals. That did not stop Oakes.

Even though multiple witnesses testified Beranek was hundreds of miles away at the time of the crime, the jury found him guilty on nine felony counts. Dane County Circuit Judge Daniel Moeser sentenced him as a repeat offender to 243 years in prison.

While Beranek remains imprisoned, the way the FBI used microscopic hair comparison has been discredited in hundreds of cases nationwide, including Beranek’s.

DNA testing has now excluded Beranek, 58, as the source of the hairs found in the perpetrator’s underwear and of sperm from the victim’s underwear, according to a motion for a new trial filed in 2016 by attorneys with the New York-based Innocence Project and the Wisconsin Innocence Project.

The Beranek case is among an estimated 3,000 slated for re-examination in which FBI hair or fiber analysis was used before 2000, when DNA testing became widely available. So far, 1,600 have been reviewed, according to Vanessa Antoun, an attorney with the National Association of Criminal Defense Lawyers, who is participating in the effort.

The ongoing review has found problems in more than 90 percent of the cases, including 13 in Wisconsin.

The agency’s misuse of hair evidence to convict people is “a national tragedy” and a violation of human rights, said Frederic Whitehurst, the whistleblower who revealed scientific misconduct including flawed hair analysis at the FBI laboratory in the 1990s.

“We go into court with unvalidated science,” Whitehurst said. “We know it’s unvalidated science. The world of science is saying this is not valid, and we actually use this pseudo science against citizens of this nation.”

Testimony Powerful — and Wrong

Oakes had told jurors that “rarely, extremely rarely” was he unable to tell two hairs apart and that the suspect’s hair and Beranek’s were “microscopically the same.” He claimed he had examined “billions” of hairs. (To reach even 1 billion, Oakes would have needed to analyze 322,321 hairs a day, 365 days a year during his eight and a half years in the FBI hairs and fibers unit.)

Further bolstering his case, Oakes said a more experienced analyst at the FBI, Michael Malone — whom he described as having near flawless ability to compare hair samples — had confirmed the match.

Six witnesses, however, placed Beranek 600 miles away at the time of the rape, at the home of his sister and her husband in Devils Lake, North Dakota. Four Beranek family members and two non-family members confirmed he was in North Dakota.

A food stamp application introduced at trial showed his sister had listed Beranek as a member of her household around the time the rape occurred.

Dane County Assistant District Attorney Robert Kaiser had the powerful FBI testimony on his side, however. He drove home its importance during closing arguments in the 1990 trial.

“What an incredible coincidence,” Kaiser told the jurors. “Somehow (the victim) managed to pick out of a photo array someone in 10,000 people who had a hair that matched a hair that happened to be in her house from some unknown place.”

In 2015, the FBI acknowledged that the Oakes testimony in Beranek’s case included “erroneous statements” in which he said or implied that the hair found at the scene “could be associated with a specific individual to the exclusion of all others.” Those statements “exceeded the limits of science,” the FBI now says.

Even though multiple witnesses testified Beranek was hundreds of miles away at the time of the crime, the jury found him guilty on nine felony counts. Dane County Circuit Judge Daniel Moeser sentenced him as a repeat offender to 243 years in prison.

Skip Palenik, founder of Microtrace LLC of Elgin, Illinois, testified at a recent evidentiary hearing that Oakes’ statements in the Beranek case violated professional standards in place even back then. Palenik has more than 40 years’ experience in the field of finding, analyzing and comparing materials, including those found in minute amounts.

Absent DNA testing, hair is not unique enough to be tied to one person, he said. Two strands of hair that appear identical could be from the same person, Palenik said. Or just as likely, they could be from two people “with the same type of hair,” he said.

“You can’t individualize to a certain person by microscopy,” Palenik said. “We thought you could, but we can’t.”

Hair Cases Under Review

The Wisconsin Center for Investigative Journalism has learned that among the 19 reviewed cases are the 1995 prosecution of Patrick W. Greer in La Crosse County in which numerous errors were identified; and the 1985 case brought against Glenn Lale in Walworth County, in which no errors were identified.

Records provided by the Wisconsin Department of Justice under the public records law also mention a third unnamed case from McHenry County, Illinois, which has a tie to Vilas County.

In addition to the FBI cases, there are 15 cases in which Wisconsin State Crime Laboratory analysts trained by the now-discredited FBI hairs and fibers unit performed microscopic hair comparisons, the DOJ says. Those cases are not part of the FBI review.

….

Not all defendants whose cases included flawed hair analysis are innocent. But it is a significant factor in wrongful convictions nationwide. Defendants in about one-fifth of exonerations by DNA evidence were convicted at least in part on hair analysis that turned out to be wrong, according to the NACDL.

In some instances, hair testimony and analysis by the FBI, although faulty, may be immaterial to the conviction.

…..

Notification Lags Nationwide

Last year, FBI Director James Comey implored governors to prod reluctant prosecutors in their states to notify defendants of the bad FBI hair analysis, warning it “could have misled a jury or judge.”

The FBI itself was criticized in 2014 for failing to ensure that prosecutors notified defendants of the problematic forensic work. The U.S. Office of the Inspector General said that among 402 reviewed cases, it found verification that the defense was notified in just 15 of them.

The only Wisconsin case examined by the OIG found that three defendants in a 1979 kidnapping and sexual assault prosecuted in U.S. District Court in Milwaukee had not been notified of Malone’s faulty hair analysis in their case. One of the defendants, Dennis Wieneke, said the U.S. Department of Justice notified him in 2014; the analysis was done in 2003.

Wieneke, who served 23 years in prison after pleading guilty, said he is deeply sorry for his part in the crime but that Malone victimized people too.

“I think there’s a lot of innocent people out there he hurt,” Wieneke said. “When you go to court, testimony from the FBI — courts look at it as 100 percent correct.”

The OIG also criticized the slow pace of the review, noting that the FBI’s hair and fiber analysis was known to be prone to error or manipulation since the 1990s when Whitehurst — who retired in 1998 from the agency with a $1.45 million settlement for retaliation — blew the whistle.

Three death row inmates were executed before the FBI testimony in their cases could be examined, the OIG found. (Wisconsin does not have the death penalty.)

State Also Got Hair Evidence Wrong

In addition to FBI cases, director Comey has urged state and local authorities to expand upon his agency’s review by examining the work of their own crime lab analysts, some of whom were trained by the FBI’s now-discredited hairs and fibers unit.

Antoun said those cases are “a whole different group of cases that need to be reviewed for scientifically unsupported statements in testimony and lab reports.”

The Wisconsin Innocence Project has sought to team up with the DOJ to examine those cases, but the agency has not responded to messages seeking a meeting, attorney Cristina Bordé said.

The DOJ recently told the Innocence Project that there had been four FBI-trained analysts and 15 cases involving microscopic hair comparison by the state crime lab. The DOJ declined to identify the cases, citing a state law that allows it to block access to forensic reports to anyone outside of law enforcement.

States including IowaMassachusetts and Texas are conducting reviews of their own analysts’ cases.

DOJ spokesman Koremenos said the state crime lab stopped using microscopic hair comparison about 20 years ago because of the “subjective problems of hair analysis and the advent of DNA.”

Decision Pending in Beranek Case

Kaiser, who represented the state in the Armstrong appeal, now works for the state Department of Justice as an assistant attorney general. He is leading the prosecution’s effort to block a new trial for Beranek. Moeser, the judge sentenced Beranek 27 years ago, is retired and is hearing the appeal as a reserve judge.

At the start of a two and a half day evidentiary hearing in February, Wisconsin Innocence Project co-director Keith Findley said the defense was “a little puzzled” by the state’s opposition to a new trial, given the strength of the new DNA evidence. Moeser will hear final arguments about whether Beranek’s conviction should be overturned on May 9.

Co-counsel Bryce Benjet of the New York-based Innocence Project told Moeser that the “DNA evidence clearly contradicts the opinion testimony that was provided by the FBI at trial.”

During the hearing, Kaiser questioned DNA analysts in minute detail about their handling of the hairs, zeroing in on the fact that one lab had placed them on Post-it notes before mailing them.

Kaiser and Dane County Assistant District Attorney Erin Hanson argued in their objection to a new trial filed in April  that the defense cannot prove the strand of hair Oakes linked to Beranek is among the hairs that now exclude him. The objection noted that labs handling the hairs reported either five or six strands of hair.

“What hairs got tested for DNA and where they came from simply has not been proved to a degree that would allow this issue to overcome this jury’s verdict,” prosecutors argued.

The prosecution also contradicted the FBI’s characterization of its own agent’s testimony, arguing that Oakes’ statements at trial were not “vague, misleading, improper or erroneous,” and that “Oakes admitted that he cannot say with absolute scientific certainty that the questioned hair came from the defendant.”

In a closing statement during the February hearing, Findley rejected the notion that a hair had been lost or that an errant hair had made its way into the evidence. The issue, he said, had been “poked and prodded and examined … in painstaking detail” at the hearing.

“We now know that the FBI hair analysis — whether in good faith or not — was simply wrong,” Findley said. “The state was misled by it. The court was misled by it. And most importantly, the jury was misled by it. We now know that the hair that so powerfully tied Mr. Beranek to this crime actually wasn’t his.”

Beranek’s daughter, Desiree Burke, 36, attended the February hearing. She said the flawed FBI analysis ripped her family apart.

“It’s not his hair. He didn’t do it,” Burke said. “I missed my whole childhood with him, my whole adult life. He’s lost so many people (while) inside, all because of this evidence.”

The above is an abridged version of an article published last week by Wisconsin Watch, of the Wisconsin Center for Investigative Journalism. Dee J. Hall is a former John Jay Criminal Justice Reporting Fellow. For the full story, please read here.

from https://thecrimereport.org

Double Blind: Preventing Eyewitness Error

About 70 percent of the roughly 350 inmates exonerated by DNA evidence were convicted based in part, or in whole, on eyewitness testimony. A Philadelphia conference explores why witnesses get it wrong so often—and how to fix it.

 On the evening of November 20, 1998, two teenaged girls left a Rite Aid in East Baltimore and were accosted by a knife-wielding man demanding money. During the confrontation, 16-year-old named Toni Bullock was dragged into a vacant lot, where she was stabbed multiple times. Bullock died on the scene.

Police had little to go on. The only witness to Bullock’s murder—her 17-year-old friend, Tyeisha Powell—described their assailant as black, about 5-feet-10 or 5-feet-11, with dark brown eyes and a slight beard, according to press reports at the time.

Investigators used that bare-bones description to create a composite of the killer, and within weeks they had a tip. The sketch matched a 23-year old homeless drug user who had recently been released from county jail. His name was Malcolm Jabbar Bryant.

Detectives presented Bryant’s mugshot to Powell, together with images of five other men, in a photo array commonly known as a “six pack” lineup. She identified the suspect as the man who attacked them. Powell would positively identify Bryant once more—this time in court, during his trial for first-degree murder.

In spite of five alibi witnesses who insisted that he was with them at the time of the attack, Bryant was convicted and sentenced to life in prison based solely on Powell’s testimony. For the next 17 years Bryant maintained his innocence; and in 2016, DNA evidence would prove he had been telling the truth all along.

Powell had picked the wrong man.

Bryant was freed from confinement last May, and received a formal apology from Baltimore’s State’s Attorney. But the apology came too late. On March 8, less than a year after being released from prison, Bryant died of a stroke. He was 42 years old.

Last week, the Quattrone Center for the Fair Administration of Justice, at the University of Pennsylvania Law School, hosted a panel of leading experts in witness misidentification to discuss how procedural could help prevent sending men like Malcolm Bryant to prison for crimes they didn’t commit.

The discussion was part of the Quattrone Center’s 2017 Spring Symposium, “Common Ground: Preventing Errors In Criminal Justice”—which brought together a variety of stakeholders to seek consensus on ways of improving the criminal justice system.

The panel dedicated to improving eyewitness identification was moderated by Amanda Bergold, a professor at Penn who studies the intersection of social psychology and the legal system.

Participants included Sgt. Paul Carroll—who spent three decades in the Chicago Police Department and now trains law enforcement on investigatory techniques; Karen Newirth, an attorney with the Innocence Project; Mark Larson, chief deputy in the Seattle District Attorney’s Office; and Gary Wells, a professor of Psychology at Iowa State University who has written extensively on the subject of witness misidentification.

Gary Wells, a professor of Psychology at Iowa State University. Photo by Sameer A. Khan/Courtesy of Penn Law .

Short of a confession, eyewitness testimony is recognized as one of the most powerful pieces of evidence that can be presented against a defendant accused of a crime. But as the panelists testified, witnesses often get it wrong.

Mistaken eyewitness identification is believed to be the largest single factor contributing to the conviction of innocent people. More than 70 percent of roughly 350 inmates exonerated by DNA evidence were convicted based in part, or in whole, on the testimony of an witness.

But Wells says that’s barely scratching the surface.

“If you look, the vast majority of DNA exonerations involve sexual assault, but this is actually a very small number of eyewitness ID cases,” he said. “Most eyewitness ID cases are robberies. So the fact that these mistaken ID cases coming from DNA are in the hundreds, we’re missing every robbery case that pretty much ever existed. This is the tip of a very large iceberg.”

Thanks to advances in brain science we now know more about the mechanics of mistaken identification than ever before. Human perception is highly malleable, particularly during times of anxiety and stress. What people remember about a particular situation or event is easily influenced by the language others use to describe it, and scientists now say that the mere process of recalling an event can change one’s recollection of it.

Criminal investigators can turn these tendencies to their favor, knowingly or not, with something as simple as a strategically placed a photograph or a disapproving facial gesture. But few detectives have received even rudimentary training in the science of witness memory recall.

Sgt. Paul Carroll, who spent three decades in the Chicago Police Department and now trains law enforcement on investigatory techniques. Photo by Sameer A. Khan/Courtesy of Penn Law.

“I’ve given over 400 lectures to police on investigation procedure, and when you go into a room and ask officers how many of them have had any training on eyewitness identification, you’re lucky if you get one hand go up,” said Carroll, who favors laws that require police to follow certain procedures.

In 1999, the year Malcolm Bryant went to prison, Carroll, Larson and Wells were part of a working group convened by the National Institute of Justice to explore eyewitness identification reforms.

They presented five recommendations for police when dealing with eyewitnesses to prevent misidentification. These included requiring law enforcement to be trained on the psychology of memory; providing standardized instructions to witnesses; employing “double blind” techniques in which both the witness and the administrator at a lineup are unaware who the suspect is; capturing identifications on video; and questioning witnesses on their confidence level immediately after an identification is made.

Research shows that jurors tend to equate confidence with credibility. And while there seems to be no direct relationship between confidence and accuracy, in one study a juror’s perception of eyewitness confidence accounted for 50 percent of the variance in a juror’s decision to believe a witness.

“When a confidence statement is asked, and we have that one record, we really know a lot more, we are preserving something that is forensically significant,” said Larson.

According to a 2013 survey of eyewitness identification procedures in police agencies across the U.S., a large number of agencies obtain confidence statements from witnesses. But the study—conducted by the Police Executive Research Forum (PERF)—found that most departments had not fully implemented the recommendations.

For instance, the vast majority lacked written policies for eyewitness identification procedures, and fewer than a quarter employed audio or video recording. Only a handful of departments used double-blind lineups.

“This is a staple idea in science,” said Wells. “You would reject manuscripts in scientific journals if they didn’t use double-blind procedures, but we’ve sentenced people to life in prison and worse without them.”

New Jersey became the first state to require double-blind administration of lineups since 2002. Since then more states have been taking it on themselves to pass laws reform lineup and photo array procedures. Many are based on a set of five best practices published by the Innocence Project.

Last year Nebraska became the 18th state to pass a law establishing eyewitness identification standards. Legislatures in another seven states, including Pennsylvania, are currently considering eyewitness reform bills. And cities including Boston, Dallas, Philadelphia, and San Diego have adopted eyewitness identification best practices.

Karen Newirth, a Senior Staff Attorney with the Innocence Project. Photo by Sameer A. Khan/Courtesy of Penn Law.

“We need to address police practices on the front end but then we also need to ensure that judicial gate-keeping of challenged identification evidence is robust, and that fact finders are given appropriate context for weighing these factors,” said Newirth.

A big part of this involves courts delivering clear and concise jury instructions on the potential fallibility of memory.

“It’s highly important that jurors who weigh identification evidence do so with some context in how to weigh that evidence and how to evaluate it,” she said.

Newirth says courts also need to think more about what witnesses should be allowed to testify about, and how they are permitted to testify. The Innocence Project has been trying to get courts to take a more critical look at in-court identifications, which are most detrimental to a defendant. .

 

“For decades jurists have acknowledged both the power of the in-court identification and also the theater of it,” she said. “They lack any probative value and can be extremely prejudicial.”

Courts in Massachusetts and Connecticut have begun to take steps to limit in-court witness identification.

Meanwhile, nearly 20 years after the first NIJ study on the issue, the federal government is once again taking an interest in eyewitness reform. In January, the Justice Department issued a first- of-its-kind set of procedures on eyewitness identification.

The new protocols, which will apply to agents at FBI, Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the U.S. Marshals Service, address the use of “photo arrays,” and are designed to ensure that law enforcement personnel do not consciously or unconsciously lead a witness.

Christopher Moraff is a regular contributor to The Crime Report. He welcomes readers’ comments.

 

 

 

 

 

from https://thecrimereport.org

Problems in Forensic Science

     Practitioners of forensic science fall generally into three groups: police officers who arrive at the scene of a crime whose job it is to secure the physical evidence; crime-scene technicians responsible for finding, photographing, …

     Practitioners of forensic science fall generally into three groups: police officers who arrive at the scene of a crime whose job it is to secure the physical evidence; crime-scene technicians responsible for finding, photographing, and packaging that physical evidence for crime lab submission; and forensic scientists working in public and private crime laboratories who analyze the evidence and, if the occasion arises, testify in court as expert witnesses. While uniformed police officers and detectives may be trained in the recognition and handling of physical evidence, they are not scientists, and do not work under laboratory conditions. As a result, a lot can, and does, go wrong between the crime scene investigation and the courtroom.

     Television series like "CSI" have generated public knowledge and interest in forensic science, even ramping up scientific expectations for those involved in real-life criminal investigation and prosecution. Prosecutors call this the "CSI effect," the expectation among jurors that the prosecution will feature physical evidence and expert witnesses. The CSI effect has also caused jurors to expect crime lab results far beyond the capacity of forensic science. Some prosecutors either eliminate potential jurors who are fans of "CSI," or downplay the necessity and importance of physical evidence as a method of proving a defendant's guilt. Prosecutors who have lost cases have been known to blame their defeats on the CSI effect. Criminal justice scholars who have investigated the CSI effect disagree over whether it has had much impact on trial results.

    While public expectations of forensic science are high, persistent problems within the various forensic fields have kept scientific crime detection from living up to its full potential. Because a shortage of qualified personnel has caused DNA testing logjams, rapists, pedophiles, and serial killers have been given extra time to commit more crimes. The shortage of DNA analysts has also placed a heavy burden on crime lab personnel, creating problems of quality control. In the past few years, dozens of crime lab DNA units have been temporarily closed when audits revealed sloppy work, scientific errors, unqualified analysts, weak supervision, poor training, and evidence contamination. Even the highly regarded FBI Laboratory has experienced problems with DNA analysis and other forms of forensic identification. Recently, crime labs in Detroit, Boston, Raleigh, Houston, New Haven, and Los Angeles have had serious problems.

     Ironically, advances in DNA technology have exposed problems in other fields of forensic science. For example, DNA analysis has revealed that over the years, experts have been overstating the identification value of human hair follicles and bite-mark impressions. Hundreds of criminal defendants, if not thousands, have been sent to prison on what many experts now consider unreliable forensic evidence.

     A critical shortage of board-certified forensic pathologists has also adversely affected the overall quality of homicide investigation. Overworked forensic pathologists are prone to take shortcuts and make mistakes. The shortage has meant that in many cases of suspicious death, autopsies are not performed.

     The field of latent fingerprint identification, while still considered the gold standard of forensic science, has recently come under attack as a result of a handful of high-profile misidentifications. These cases have revealed that not all fingerprint examiners have been properly trained, and that many have either failed or never taken proficiency tests. Questions have also been raised regarding the scientific objectivity of many fingerprint experts. This is particularly true of examiners who, as police officers, see themselves as part of a law enforcement team. Forensic scientists have to be loyal to their science, even when it displeases the people who employ them, a stance that takes courage and independence.

     There are fakes, incompetents, and charlatans in every profession, but over the years a series of high-profile cases have featured the so-called experts from hell, forensic scientists whose false testimony has helped convict innocent people. Many of these experts from hell are hired guns willing to testify for whatever side is willing  to pay. The alarming aspect of these expert-from-hell stories is how long these forensic scientists practice before they are exposed and defrocked. Just below the expert from hell on the damage scale are the well-meaning but incompetent forensic scientists as well as the experts who are either blinded by media attention, or bow to prosecutorial pressure. Maintaining a firewall between science and criminal prosecution is a constant challenge, one that is not always met.

     Jurors are often called upon to make judgments in trials in which experts representing each side offer opinions that contradict. When jurors are faced with opposing experts, they tend to disregard the physical evidence entirely. The dueling expert problem is destroying the credibility of forensic science itself. Judges reluctant to exclude the testimony of witnesses who are not real experts, dump the problem on the laps of jurors who are not qualified to distinguish the true scientists from the phonies.

     Most of the problems in forensic science are caused by personnel shortages, poor quality control, the inherent difficulties of crime scene investigation, the pressures imposed by the adversarial nature of our trial process, the lure of pseudoscience, and the evolving character and complexity of science itself. Over the past twenty years, the emphasis in American law enforcement has been the escalating war on drugs, anti-terrorism, and controlling inner city street gangs. Criminal investigation has taken a back seat to these priorities. As long as this is the case, the many problems facing forensic science will not be solved, and will probably get worse.

     The history of forensic science has been one of false hope, missed opportunities, and failed expectations. 

from http://jimfishertruecrime.blogspot.com/

Why Sessions’ Decision to Close Forensic Commission Hurts Victims of Crime

The decision to shelve the 40-member commission and abandon DOJ’s Forensic Science Discipline Reviews is a “troubling” step backwards in efforts to apply scientific knowledge to trial evidence, warns a former commission member.

“You guys are the scientists and legal experts.  How can you let this keep happening?”

That was the question asked by Keith Harward, who spent more than 32 years in prison for a rape he did not commit, due to inaccurate bite-mark testimony.

His audience, the 40 members of the National Commission on Forensic Science, had no reply. That morning earlier this month, Attorney General Jeff Sessions had announced his decision not to renew the group’s charter—effectively eliminating the group and leaving prosecutors, police, defense attorneys, judges, and juries without unified national guidance on how to improve the use of scientific information in criminal justice.

Improving forensic science should be an oasis of nonpartisan agreement in today’s hyperpolitical world.

Ensuring the accuracy of the criminal justice system is not a prosecution, police or defense issue. It’s a justice issue, and scientific techniques can be very helpful in supporting all parts of the criminal justice system in its most important goal: finding the truth.

Despite the best efforts of our crime lab professionals, however, forensic errors are widespread, with substantial consequences.

A Boston crime lab recently reversed 23,000 drug convictions because a single analyst simply made up results without conducting drug tests.  [Ed. Note: Prosecutors in Massachussetts, as a result, this week agreed to drop the cases.] Houston, Portland, and Las Vegas are wrestling with hundreds of flawed convictions based on unreliable field drug tests.  Crime labs in Detroit, Austin, San Francisco, Washington DC, and elsewhere have been shut down or restructured due to repeated violations of scientific best practices.

Experts from the FBI crime lab, long the gold standard in the field, gave inaccurate testimony on the reliability of microscopic hair comparisons in thousands of cases starting in the 1980s.  Other errors abound, like the junk science testimony on bite marks that wrongfully convicted Keith Harward, or the arson testimony that wrongfully convicted Han Tak Lee.

In fact, forensic errors played a role in 480 (24%) of the 2,013 confirmed exonerations in the US to date.

The National Commission on Forensic Science (NCFS) was formed by the Department of Justice in 2013 to advise the Attorney General on how to improve forensic science.  Its members include federal, state and local forensic science service providers, research scientists and academics, law enforcement officials, prosecutors, defense attorneys, judges, and other stakeholders from across the country.

They were tasked with developing recommendations to “enhance the practice and improve the reliability of forensic science,” and its members were engaged across a very broad range of topics designed to improve the application of science in our courts.

The complex challenges involved require precisely the sort of interdisciplinary assessment provided by the NCFS, and the Commission made remarkable progress in its short lifespan.  Lab accreditation standards have improved and expanded, and the NCFS promoted a national code of professional responsibility for forensic scientists, supported and described systems of continuous quality management for labs, and promoted improved analytical structures and improved competency and proficiency testing.

These initiatives will improve the quality of our crime labs so that they operate at the highest possible levels of scientific excellence. But much more remains to be done.

That includes establishing standards for accurate testimony about error rates and levels of certainty in fingerprints, ballistics, handwriting, and other comparative disciplines; setting criteria for assessments of digital forensics, cognitive biases; and improved standards for expert trial testimony.

These were among the important topics still on the NCFS agenda.

Addressing these issues has been challenging, and involved healthy amounts of conflict and debate.  The members of the NCFS have not always been in agreement, but they have learned to respect each other as honest brokers dedicated to improving the criminal justice system.  That respect provides a foundation for progress and improvement.

New presidential administrations are not bound to the decisions of their predecessors, but ending the NCFS, and the troubling decision to abandon DOJ’s Forensic Science Discipline Reviews, can only slow the implementation of improvements.  No other group has the skills and the mutual trust necessary to tackle combined issues of law and science openly and honestly.

Any new approach will take months or years to gel, if it ever does.  In the meantime, errors will continue at their current unacceptable rate.

Allowing the NCFS to expire does nothing to help Keith Harward, convicted due to debunked expert testimony in a field that has been summarily disproved by reputable scientists.  It does nothing to help victims of crime like the woman whose rape was pinned on Harward.  And it does nothing to help the next rape victim, the next wrongfully accused man, or the next lawyers, judges, or juries presented unwittingly with inaccurate or poorly conducted forensic comparisons.

The National Commission on Forensic Science has been an instrument of truth and excellence bringing together the best minds of our country for the greater good.

It should be renewed and allowed to continue its work.

Without the NCFS, or something like it to move forensic science forward, errors will continue to happen.  We owe it to Keith Harward and the thousands of people like him to do better.

John F. Hollway is Associate Dean, University of Pennsylvania Law School and Executive Director of the Quattrone Center for the Fair Administration of Justice. He also served as a member of the subcommittees on Interim Solutions and on Human Factors at the National Commission on Forensic Science. He welcomes readers’ comments.

 

from https://thecrimereport.org

Defense Attorneys Plot Against ‘Garbage Science’ Evidence

Attorney General Jeff Sessions has canned a a commission of scientists and legal scholars charged with scrutinizing questionable forensic practices, including hair, handwriting and bite-mark analysis. The onus is now on defense attorneys to challenge such evidence on a case-by-case basis.

Defense attorneys say they will step up their challenges to certain forensic practices now that the Justice Department has disbanded an independent commission that was studying how to improve their reliability, says the Associated Press. But the absence of research or guidance from the National Commission on Forensic Science could make the task of challenging questionable scientific evidence in court even harder, and experts worry that “garbage science” will continue to cloud court cases. “Even if defense attorneys jump up and down and complain about it, they won’t have the power of a national commission to back them up,” said Erin Murphy, a New York University law professor. “The status quo right now is to admit it all.”

Attorney General Jeff Sessions announced the Justice Department would not renew the commission, a panel of researchers, scientists, judges and attorneys that had been working more than three years to raise forensic science standards. Research had increasingly shown that techniques such as comparisons of hair found at crime scenes, handwriting analyses, bite-mark evidence and certain ballistics tests are scientifically flawed. The announcement drew alarm from those who saw the commission as the best chance for an independent look at questionable techniques that have long been used in American courtrooms. They fear its end marks a rollback of recent reform efforts.

from https://thecrimereport.org

Forensic Hair and Fiber Identification: An Inexact Science

     Forensic analysts who microscopically compare crime scene hair follicles with samples from a suspect’s head or other part of the body note similarieties or differences in hair length, thickness, texture, curl, color, and appear…

     Forensic analysts who microscopically compare crime scene hair follicles with samples from a suspect's head or other part of the body note similarieties or differences in hair length, thickness, texture, curl, color, and appearance of the medulla, the stip of cells that runs up the center of the hair shaft. A follicle, however, cannot be individualized like a fingrprint. A hair identification expert can declare, for example, that the defendant's hair looks like a crime scene follicle, or is consistent in appearance with the questioned evidence, but they are not supposed to testify that a follicle at the scene of a crime could have come from the defendant and no one else. What nobody knows about forensic hair identification is this: if two follicles look alike in all respects, what are the chances they have come from the same person? Just how strong an identification is this, and how incriminating?

     Hair identification experts also analyze crime scene strands of fiber and compare them with samples of clothing, carpets, blankets, and other fabrics associated with the defendant. Fibers can be distinguished by material, shape and color--there are 7,000 dyes used in the United States. A fiber expert can testify, for example, that a fiber on a murder victim's body is consistent in appearance with carpet fibers from the trunk of the defendant's vehicle. To go further than that is crossing the line, scientifically.

     Up until the mid-1990s, hair and fiber experts were routinely pushing the scientific envelope by identifying crime scene follicles and fibers the way an expert would identify a latent fingerprint. In hundreds, if not thousands of cases, defendants went to prison on the strength of this form of expert testimony. When DNA came on the scene, abuses in hair and fiber identification were exposed, and the scientific unreliability of these matches was dramatically revealed.

     In Texas alone, between 1995 and 2002, DNA analysis exonerated 30 men who had been convicted solely on crime scene hair identification. Dr. Edward Blake, the Berkeley, California DNA pioneer, put forensic hair identification in perspective: "They did it because they could get away with it. A defendant in Idaho and another in Florida were sent to death row in cases where the only evidence against them were jailhouse informants and crime scene hair identifications."

from http://jimfishertruecrime.blogspot.com/

Sessions Welcomes Return of Dubious ‘Magic’ Forensics

The U.S. Attorney General is turning back the clock on the use of questionable forensic practices, such as bite-mark testimony and comparisons of hair, handwriting, tire treads and footprints. New York Times columnist Jim Dwyer, who has written extensively about these practices, says they resemble magic more than science.

In recent years, the rigorous science involved in DNA testing has cast a harsh light on such questionable forensic practices as bite-mark testimony, comparisons of hair, handwriting, tire treads and footprints, and certain kinds of ballistic analysis, writes New York Times columnist Jim Dwyer. The investigative practices had become embedded in the American criminal justice system since the early 20th century. Many of them resembled science but turned out to be more like magic, and untrustworthy evidence. Those reform efforts appear to have lost their momentum.

This week the U.S. Justice Department announced it was shutting down a National Commission on Forensic Science set up four years ago. Separately, studies of the “foundational validity” of bite marks and ballistic evidence that had been announced in September are ending. Attorney General Jeff Sessions said his department would take unspecified actions to “increase the capacity of forensic science providers” and improve the reliability of analysis. Yet there are many unresolved questions about which forensic practices even qualify as science. “If you want to put in a nutshell what’s wrong with some of these forensic sciences, it’s that they’re not really science at all,” said Jed S. Rakoff, a federal judge in New York who served on the commission.

from https://thecrimereport.org