Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Last September, Massachusetts Governor Mitt Romney declared with great fanfare that he was convening a panel of scientific and legal experts to craft a proposal to reinstate the death penalty for situations where, he asserted, “because of the tremendous advances in forensic science,” the defendant’s guilt could be “incontrovertibly” established.
As any true legal or scientific expert knows, an “incontrovertible” guilty verdict through our justice system is impossible to promise — regardless of “the tremendous advances in forensic science.” To reinstate the Massachusetts death penalty, however, the governor was forced to proclaim that possibility because it had been precisely that issue — advances in forensic science — that had blunted efforts to reinstate the death penalty in the late 1990s.
What I’m referring to is the pioneering use of DNA evidence by Peter Neufeld and NACDL’s President-Elect Barry Scheck (who together later formed the Innocence Project), which was instrumental in proving the innocence of certain death row inmates. The public was so horrified to learn of the system’s fallibility that a moratorium was imposed on the death penalty in both Illinois and Maryland. As evidence of the system’s fallibility solidified, the momentum that had been building for the death penalty in Massachusetts came to a rapid halt.
In a clever twist, Governor Romney is now using that same science to assert the perfectibility of a guilty verdict. While that may serve his political goals, it disserves the public safety. This is because it leads people to believe that advances in forensic science alone have improved the certainty of court convictions. Under that mistaken belief, America will ignore the myriad of forensic evidentiary problems that plague our system, continue to convict the innocent, and thus threaten the public safety by allowing the guilty to go free.
The cover story for this issue of The Champion is an in-depth look at crime labs today by none other than Frederic Whitehurst of FBI Crime Lab fame. It comes not a moment too soon, either. Because with public recognition of the evidentiary value of DNA, the popularity of crime investigation television shows such as CSI: Crime Scene Investigation, and people’s limited understanding of the use and rules of evidence, more and more people assume that if we could only process more evidence through crime labs, the problem of convicting the innocent would be solved. While this couldn’t be further from the truth, opportunistic politicians would have the public believe exactly that.
As you’ll read in the cover article, crime lab problems are legion. Frederic Whitehurst (founder of the Forensic Justice Project) describes untrained staff, a lack of written procedures and performance standards, poorly maintained instrumentation, insufficient documentation of test results, improper preparation of lab reports, scientifically flawed reports, inadequate record management and retention systems, failures by management to resolve serious and credible allegations of incompetence, and a leaky roof as only a few of the crime lab inadequacies that threaten the integrity of evidence used against defendants at trial.
Add to this the additional, more nefarious actions that occur at crime scenes and the myriad of corrupting influences begins to fully emerge. These include planting evidence at a crime scene, collecting evidence without a warrant by claiming exigent circumstances, intentionally falsifying laboratory examinations, ignoring evidence that might exonerate a suspect or be a mitigating factor, reporting on forensic tests not actually done, fabricating scientific opinions, extending expertise beyond one’s knowledge, using unproved methodologies, and overstating an expert opinion.
Need for Review
Even long-established scientific methods need to be reviewed. A February 2004 report by the National Research Council found that the FBI’s comparative analysis of bullet lead (CABL), an analysis admitted for use in courts throughout the country, actually lacked the “unique specificity of techniques such as DNA typing to be used as stand-alone evidence.” This casts serious doubt on a scientific test that, according to the FBI’s own estimate, played a role in at least 2500 cases and 500 trials over the past three decades. Because only the FBI knows in which cases CABL testimony was relied upon, NACDL and the Innocence Project now plan to work with the FBI and the courts to identify and rectify the wrongful convictions which were based upon this evidence.
It is alarming to consider that this is just another example of the fallibility of science that the courts have relied upon simply because it was promulgated by official sources. This just supports the call for peer-reviewed, open science when assessing forensic evidentiary processes.
Misuse of Forensic Science
The Innocence Project recently informed NACDL State Legislative Network members of their concerns in this regard, and their plans to work with state legislatures throughout the country to prevent the misuse of forensic science. Our quest to ensure valid evidence begins with strengthening the integrity of crime labs, but must also include a review of crime lab methodology to ensure its validity, as well as the establishment of mechanisms to investigate individual acts of misconduct.
NACDL members need to be at the cutting edge of forensic science. I hope you will find this issue of The Champion useful in your quest to learn more and be able to incorporate this knowledge into your practice. For as again we find ourselves ahead of popular understanding of important criminal justice issues, again it will be our duty to lead society to an understanding of how our work serves society as a whole.
Convictions Not Erroneous
Policymaking is driven by public perception. The public perceives DNA as a panacea, and crime lab determinations as gospel. Led by officials such as Governor Romney, the public is being lulled into a false sense of security, thinking that science alone will save us from wrongful convictions. Led by NACDL lawyers, the public will understand the need to improve our forensic practices. Only then can the public have more faith that convictions are not erroneous, and that the court system is properly protecting them.
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