The once-agitator, Radley Balko, wrote a critically-acclaimed and critical book about junk forensic science called “The Cadaver King and The Country Dentist: A True Story of Injustice in the American South,” dealing with bite mark testimony and its allegorical relationship to who and what gets admitted into expert evidence to lock down convictions when there is little to no actual evidence otherwise.
This issue is huge, both from the significance in the courtroom to its lack of significance as science. Working off this focus, Radley is doing a series of reports, “a six-part online symposium on the use of forensics in the criminal justice system.”
Ten years ago, the National Academy of Sciences (NAS) published a groundbreaking study on the use of forensics in criminal trials. The study found that, in the “pattern matching” fields of forensics in particular, expert witnesses had been vastly overstating the significance and certainty of their analyses. For some fields, such as bite-mark analysis, the study found no scientific research at all to support the central claims of practitioners.
Since then, other panels populated with scientists have come to similar conclusions, including the President’s Council of Advisors on Science and Technology and the Texas Forensic Science Commission. In 2013, Congress and the Obama administration responded to these reports by creating the National Commission on Forensic Science, a panel of lawyers and scientists charged with coming up with standards and protocols in these fields. The Trump administration then allowed the commission’s charter to expire in April 2017.
The final sentence is both huge and trivial. It reflects the affirmative refusal to pursue correction and improvement in forensic science, but as the prior panels and reports made overwhelmingly clear, it’s not as if there were questions still in need of answers. It was already established, beyond serious doubt, that what passed for science in the courtroom was a steaming pile of fabricated junk, sometimes close to legit but grossly overstated in its reliability, and other times manufactured by cottage industries of fake experts whose dual purpose was to get paid and convict defendants, innocent or guilty.
As each of these panel’s reports were studiously ignored, denied or refuted by the overwhelming argument, “but without it, we’ll never be able to convict anyone,” the solution wasn’t to attack junk science in the courtroom but to throw another panel. Just because the last report, overwhelming and scientifically irrefutable though it may be, failed to move the needle, maybe the next one will do better.
And then, the last panel’s time expired under the auspices of the man who knows more than the
generals scientists, and so Radley picked the ball out of the mud and is trying to run with it. He has put together his own panel of “experts” for his symposium.
- Simon A. Cole, Department of Criminology, University of California at Irvine; Law & Society; National Registry of Exonerations
- John Lentini, fire/arson expert
- Frederic Whitehurst, FBI crime-lab whistleblower; Forensic Justice Project
- Sandra Guerra Thompson, University of Houston Law School; Houston Forensic Science Center
- Chris Fabricant, Innocence Project
- Itiel Dror, University College London; Cognitive Consultants International
- Jules Epstein, Temple University Beasley School of Law; National Commission on Forensic Science
- Barbara A. Spellman, University of Virginia Law School
- Roderick Kennedy, retired judge, New Mexico Court of Appeals
- Roger Koppl, Forensic and National Security Sciences Institute, Syracuse University
- Michael Risinger, Seton Hall School of Law; Last Resort Exoneration Project
- Judy Melinek, forensic pathologist; author of “Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner”
- Brandon L. Garrett, Duke University School of Law
- Keith A. Findley, Center for Integrity in Forensic Science; University of Wisconsin Law School
All of these “experts” are accomplished, knowledgeable and well-regarded. But for all their organizational relationships, achievements and academic virtues, there is one thing glaringly missing from this list of “experts.”
See a criminal defense lawyer in the bunch? See a trial lawyer in there? Not someone who once tried a case years ago and has since gone legit by getting a named chair in the academy, but a gunslinger, a gladiator, a trial guy who gets dirty in the trenches trying to convince a judge to not allow some prosecution forensics monkey to spew his nonsense. The guy who has to persuade a jury that the “expert” with 27 articles published in the Journal of Forensic Duct Tape, circulation 12 including his mother, isn’t really an expert after the judge pronounced that he most assuredly is or his testimony wouldn’t be allowed.
Where is that lawyer?
This is the point where every non-lawyer shakes his head in amazement; the solution seems so obvious, duh. The defense should just call its own expert, an even cooler expert than the prosecution’s, to rip the poseur to shreds. But if there were a lawyer amongst these well-credentialed experts, he might explain that there are three problems with this obvious answer.
The first is theoretical, that the judge won’t let the defense call an expert for the purpose of refuting the science at issue or the qualifications of the expert called to testify. It may be material, but it’s not relevant, as it fails to pertain to the specific case on trial and offers merely a generic refutation of the expert evidence. Remember, the prosecution’s expert evidence has been used, and admitted, a few thousand times before, and upheld on appeal. There’s precedent.
The second problem is that experts, real experts, are hard to find and harder still to get. Call a few dozen academics and see how many are willing to chat about the case, write a report, get on a plane, be the person who challenges an industry that puts food on their table. There’s another problem, that their absolute certainty on the phone, assuming they take the call, turns into jello on the stand when they’re put to the test.
The third problem is hard-core realism. Experts want to be paid, and want to be paid a lot. As empathetic as they may be in articles and at faculty meetings, they have no problem adding zeroes behind whatever number they pick. And the defense rarely has the money to make them smile.
It’s wonderful to continue to raise the problem of junk science in the courtroom, and I applaud Radley’s persistence in trying to end wrongful convictions based on phony forensics. But we’ve already established that the science sucks, and yet nothing has changed in the trenches. Too bad there’s no one on his panel of “experts” to say so.