Prosecutors trail of theories about defendant’s guilt in this case ranged from guilt to innocence over a 30 year period.

In late 2011, Jackson County prosecutors working through cold cases sought testing for a very different reason: to find Nelson’s accomplice. A few months later, as prosecutors were nearly finished with their testing, a judge approved Nelson’s newest request.
Semen and hair evidence, carefully preserved since the December 1983 home invasion rape and robbery of a 24-year-old Kansas City woman, linked two other men — not Nelson — to the crime.
Full article here:

Posted on June 24, 2013 by csidds | Leave a comment

Innocent and after spending 20 years in Illinois prison, Bennie Starks sues prosecution’s bitemark experts

Posted on June 20, 2013 by csidds

starks-innocent-jail-suing_si

Bennie Starks

In a twist of fate, two Illinois dentists are being sued by Bennie Starks whom they determined, in a 1986 trial, left a bite mark on a rape victim. They claimed the bite mark as “medically certain” to have been made by Starks’ front teeth. The pair of bite mark experts were adamant of Starks guilt as the attacker, even when DNA evidence was obtained by Starks” attorneys Lauren Kaeseberg and Jed Stone. They succeeded in overcoming the now ex-Lake County District Attorney’s outlandish claims that the DNA of another male found on the victim was not determinative of Starks’ innocence. The dentists went so far, in 2012, to file a defamation lawsuit against another dental expert who disagreed with their opinions.

http://rt.com/usa/starks-innocent-jail-suing-711/

Posted in Bite Marks, Bitemarks, CSI, Forensic Dentistry, Forensic Science | 1 Comment

The use of DNA from bite marks takes casework, status and money from ABFO dentists

Posted on June 18, 2013 by csidds

The AP article (use your search engine for “bite marks” and “unreliable”) in June 2013 suggested that the bite mark dentists of the American Board of Forensic Odontology have been “supplanted by the more reliable science of DNA.” More recently, an internal ABFO response states there is a “conspiracy” backed by the news media, the Innocence Projects, the University of Buffalo bite mark research center, and unnamed “bite mark haters” to reject their beliefs in matching human teeth to human skin injuries in order to keep them out of the court system. This is regardless of the 24 people wrongfully associated with crimes that these folks have helped put in prisons and jails. From the AP article, the ABFO president has a sliding scale of acceptable outcomes, when he discounted these 24 people suffering as insignificant due to all the “good cases” the ABFO members have assisted the prosecution.

Uhm, I thought progress was to be expected in our modern world. Apparently not in the rarified air of an ABFO leadership which expects no consequences to their forensic mistakes and tries to shoot the messengers within and without their little 100 member group who stand up to their harping denials of the obvious facts. Franklin wright in the AP article says the bad cases are from “bias.” There must be a lot of bias present in this small group (N=103. They’ve got 22 cases of 24 people being wrongfully conviction or incarcerated.

GO TO THIS ARTICLE to see how scientific progress has brought this group to a standstill. Its about a bitemark identification of the attacker accomplished by DNA from saliva.

http://www.stroudnewsandjournal.co.uk/news/10491857.Attacker_caught_after_DNA_was_found_in_bite_mark/

Posted in Bad Forensic Science, CSI, Forensic Science, William Richards Exoneration Case | Tagged , , , , | 1 Comment

Bite mark experts sound desperate in AP review of bad forensic science

Posted on June 17, 2013 by csidds

Well, the story had to come out eventually. The Associate Press extensive investigation into the US forensic dental organization, the American Board of Forensic Odontology (ABFO), reviews their past mistakes in court cases and current denials of problems in their “new era”of bite mark identifications.

Posted in Bad Forensic Science, CSI, Forensic Dentistry, Forensic Science, William Richards Exoneration Case | Tagged , , , , | 1 Comment

PBS-2012 Nova Production On Doubtful Forensic Science

Posted on June 13, 2013 by csidds

With major contributors from the forensic science community, this in-depth PBS presentation discusses the strengths and weaknesses of forensic examiners and their effects on the US judicial system. Erroneous convictions involving bite mark identification and other “impression evidence” are the points of focus.

Here is an excerpt from the opening page:

“Program Description
There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In “Forensics on Trial,” NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

http://www.pbs.org/wgbh/nova/tech/forensics-on-trial.html

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An academic’s views on problems existing in forensic science testimony and methods

Posted on June 12, 2013 by csidds

mnookin

This is a repost of a 2009 article published by UCLA Today. The author is well established as an external evaluator of forensic methods. Shortly after this article appeared she was given a $700,000 research grant by the NIJ to investigate aspects of validation of fingerprint analysts.

The comments she makes are current to 2013 as certain forensic science communities remain recalcitrant. The Congressional determination of examiner biases, commingling of forensic expertise with law enforcement, and poor to non-existent validation studies floats in the ether.

Readers should closing follow the voice print arguments occurring in the trial of George Zimmerman in FLA to see the collision of experts and believers and non-believers of biometric analysis of a person’s screams for determining identity.

==================================================

How scientific is forensic science?

Jennifer L. Mnookin is a professor and vice dean at the School of Law. This op-ed was recently published in the Los Angeles Times.

On television shows such as the “CSI” series, forensic science is high-tech, heroic and always right. The National Academy of Sciences released a long-anticipated report on Feb. 18 on the real real world of forensic science — and the news is disturbing and downright ugly.

Laboratories are woefully underfunded, and much of what passes for forensic “science” does not meet even minimal scientific standards. Yet when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.

The academy’s report, commissioned by Congress and the result of years of investigation by a distinguished panel of independent experts, does not mince words in its indictment of the scanty research foundation upon which much forensic science now stands.

The report asserts that “the current situation” is “seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community.” It also calls for the urgent creation of a federal agency devoted to encouraging research and to providing much-needed regulation and oversight.

Put simply, although many kinds of forensic testimony — involving handwriting identification, fingerprint evidence and ballistics, for example — are enormously persuasive to a typical jury, they do not meet the basic requirements of good science.

But we don’t need to wait for a new agency to make the necessary changes. Judges, who preside over the presentation of this evidence, need to exercise their role as gatekeepers to protect the integrity of our criminal justice system by requiring higher standards for forensic science when it’s used as legal evidence.

What did the study’s authors identify as some of the most significant problems?

Bias: Doctors testing a new medicine are — appropriately — not told which patients receive placebos and which get the test medication, because that knowledge might unconsciously bias their behavior and observations. But forensic scientists are frequently exposed to information that can potentially foster bias. Crime laboratories have failed to create adequate procedures for making testing “blind.”

Error rates: Most of the forensic disciplines lack good information about how often practitioners make mistakes, a basic requirement of any science. Not knowing the error rate is bad enough, but some experts consistently testify under oath that their technique has an error rate of zero, an inherently preposterous claim.

No one really knows just how often document examiners incorrectly analyze handwriting samples, how frequently arson investigators get the cause of a fire wrong or how often forensic odontologists misidentify bite marks. Yet anecdotal information and research suggest that errors are disturbingly frequent. University of Virginia law professor Brandon Garrett’s 2008 study of the first 200 convicted defendants exonerated by DNA evidence, for example, found that faulty forensic science testimony was second only to erroneous eyewitness identification as a cause of miscarriages of justice.

Over-claiming: Science deals in probabilities, not certainty. The only forensic science that makes regular use of formal probabilities is DNA profiling, in which experts testify to the probability of a match. None of the rest of the traditional pattern-identification sciences — such as fingerprinting, ballistics, fiber and handwriting analysis — currently has the necessary statistical foundation to establish accurate probabilities. Yet, instead of acknowledging their imperfect knowledge, fingerprint experts, for example, routinely testify that they can identify a specific person’s prints to the exclusion of all other people in the world with 100% certainty.

In 2004, the FBI, often said to have the nation’s best crime lab, wrongly identified Oregon attorney Brandon Mayfield as a terrorist based on an erroneous fingerprint match. It eventually admitted its error, and the government had to pay him $2 million. There are hundreds of less adequate labs across the country. How much confidence can we have in them?

Structural independence: Here in Los Angeles, the city crime laboratory is part of the Police Department, and the county’s lab reports to the sheriff. These kinds of arrangements are typical. But when the police and prosecutors pay and supervise the scientists, it stands to reason that the scientists may have difficulty establishing their independence.

The courts have almost entirely turned a deaf ear to these arguments, essentially giving forensic science and its practices a free pass, simply because they’ve been part of the judicial system for so long. Meanwhile, scandals continue to come to light across the nation involving error and even fraud in labs.

The findings in the National Academy of Sciences report should spur judges to require higher standards. At a bare minimum, judges should immediately prohibit experts from testifying to impossibilities such as “an error rate of zero” or asserting that they are capable of making 100% certain identifications.

In other cases, judges would be well advised to throw out forensic science altogether — not forever, but until adequate research establishes, for example, that the conventional wisdom about evidence of arson is empirically valid, or until fingerprint and ballistics experts provide adequate proof that their real-world error rate is reasonably low. Courts should require forensic experts to back up their testimony with empirical evidence that they can do what they claim to be able to do.

We want and need forensic science in our legal system, but we have to be able to trust it. The forensic science community has been, at best, wary of, and often downright hostile to, serious inquiry into its strengths and limitations, especially by objective external researchers.

But if judges raised their standards and limited or excluded forensic evidence that didn’t meet them, that fortress mentality would inevitably change. This much-needed research would probably reveal that forensic science is not as perfect as its practitioners have often claimed. But when forensic science rests on an appropriate scientific foundation, it will be far more deserving of our confidence. Our system of justice demands no less.

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FORENSIC TESTIMONY: Science Biases and Subjectivity

Posted on June 5, 2013 by csidds

This is a repost of my June 5, 2013 blog on the important subject of bias in forensic science   Added comment: The expanding revelations of extraneous influences that can plague forensic experts in court has added to the existing literature on the subject.  Crime lab educators use terms like bias control, double blind precautions, multiple “independent” examiner precautions, and ethical concepts in their curricula. This preparation is admirable but practice application is subject to significant variations dependent on employment relationships throughout their students’ careers. The following journal article covers the general issues very well. In addition, today’s Radley Balko post on the AGITATOR goes further to underscore the cultural and financial climate in some police managed crime labs that sway results in an interesting manner.

A REVIEW OF

The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions

Saul M. Kassina, Itiel E. Drorb, and Jeff Kukuckaa have published the above-titled article in the Journal of Applied Research in Memory and Cognition and published by Elsevier Ltd. in the Journal of Applied Research in Memory and Cognition.

The paper establishes the FBI fingerprint fiasco involving misidentification of fingerprints in the notorious Brandon Mayfield case as its linchpin to argue that previously staid forensic disciplines considered by most to be infallible possesses are in reality a confabulation of unreliability.  The hard hitting FBI experts on the Mayfield case certainly cannot be considered “bad apples” of forensic expertise. The factors the authors discuss in the realm of mistake making expands from the FBI to other forensic comparison disciplines noted by the National Academies of Science 2009 report as fraught with examiner subjectivity and inconsistency. Clearly reviewed as under this aegis of professed infallibility were the “I think the evidence is similar to the evidence found at the crime scene (or on the victim) stalwarts of……”toolmarks and firearms; hair and fiber analysis; impression evidence (i.e. bite marks);blood spatter; handwriting; and even fingerprints, until recently considered infallible.”

The work is a concise review of the appropriate scientific literature and the few cognition studies that examined the forensic examiners. The authors add to the lexicon of interpretative influences by coining “forensic confirmation bias” as the class of influences examiners bring to the CSI scene and their labs via previous experiences and cognitive mindsets.

 The abstract states:
As illustrated by the mistaken, high-profile fingerprint identification of Brandon Mayfield in the Madrid  Bomber case, and consistent with a recent critique by the National Academy of Sciences (2009), it is clear that the forensic sciences are subject to contextual bias and fraught with error. In this article, we describe classic psychological research on primacy, expectancy effects, and observer effects, all of which indicate that context can taint people’s perceptions, judgments, and behaviors. Then we describe recent studies indicating that confessions and other types of information can set into motion forensic confirmation biases that corrupt lay witness perceptions and memories as well as the judgments of experts in various domains of forensic science. Finally, we propose best practices that would reduce bias in the forensic laboratory as well as its influence in the courts.

Excerpt:

“In many forensic disciplines, the human examiner is the main instrument of analysis. It is the forensic expert who compares visual patterns and determines if they are “sufficiently similar” to conclude that they originate from the same source (e.g., whether two fingerprints were made by the same finger, whether two bullets were fired from the same gun, or whether two signatures were made by the same person). However, determinations of “sufficiently similar” have no criteria and quantification instruments; these judgments are subjective. Indeed, a recent study has shown that when the same fingerprint evidence is given to the same examiners, they reach different conclusions approximately 10% of the time (Ulery, Hicklin, Buscaglia, & Roberts, 2012). Dror
et al. (2011) have shown not only that the decisions are inconsistent but that even the initial perception of the stimulus, prior to
comparison, lack inter- and intra-expert consistency.”

Link to full article

Posted in Bad Forensic Science, criminal justice, CSI, Forensic Dentistry, wrongful convictions | Tagged , , , , , , , , , , | Leave a comment

50 Years of Judicially Determined BRADY Violations Against Prosecutors are Worthless

Posted on May 30, 2013 by csidds

This op-ed from the HuffPost’s Radley Balko makes the case that prosecutorial misconduct is a factor in a majority of exoneration cases and exists in other criminal convictions.  The judicial and legal organizational responses to violations of Brady are nil. Legal research at the University of Santa Clara in California indicates over 700 cases of prosecutorial misconduct in California courts have gone un-reviewed and unpunished by the law profession and the criminal courts.

5/13/2013

Radley Balko

One of the Supreme Court’s most celebrated criminal procedure decisions turns 50 years old Monday. By a 7-2 vote, the Court ruled in the 1963 case Brady v. Maryland that under the 14th Amendment’s due process clause, prosecutors are obligated to disclose all exculpatory evidence to criminal defendants. “A prosecution that withholds evidence … which, if made available would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant,” wrote Justice William O. Douglas in the decision. “That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.”

Like many of the controversial criminal-justice decisions issued during the tenure of Chief Justice Earl Warren, the popular perception of Brady over the years has been that a prosecutor’s failure to disclose the most minor and insignificant of details to defense attorneys has often resulted in violent criminals “getting off on a technicality.” But a number of studies conducted since the onset of DNA testing in the early 1990s have shown that not only is that not true, but the Brady decision itself — renowned as it is — may have been mostly symbolic and had little practical effect on the day-to-day justice system.

“It simply hasn’t worked,” says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases.”

“In order to work, Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant’s guilt,” Benjamin explains. “The problem is that those are the people with the least motivation and least ability to do so. If they’re trying someone, they believe he is guilty. So they’re viewing all the evidence the prism of confirmation bias.”

That bias, Benjamin says, can be powerful. “You can have a piece of evidence that is pivotal to establishing someone’s innocence, and police and prosecutors could interpret that same piece of evidence as further proof of the same person’s guilt.”

In theory, there are a few ways that Brady could be enforced. The first is by granting new trials to defendants who are convicted in cases in which the prosecution withheld evidence. But in subsequent rulings, the Supreme Court has made it difficult to get that sort of relief. Under the doctrine of “harmless error,” it isn’t enough to merely show that a prosecutor withheld exculpatory evidence. A defendant must also show that had the evidence been introduced at trial, the jury would likely have acquitted.

“It requires appellate court judges to sit as jurors,” Benjamin says. “It takes a really extreme cases to overturn a conviction.”

Other ways to enforce Brady include professional sanctioning for prosecutors who violate the rule, subjecting them to civil liability and making such violations a criminal offense. The Supreme Court has basically taken civil liability off the table by shielding prosecutors with “absolute immunity.” In the 2009 case Pottawattamie v. McGhee, the Supreme Court was set to decide if even prosecutors who knowingly manufacture evidence in cases that resulte in the conviction of innocent people should be protected from lawsuits. The case was settled before the Court could rule, so it’s still an open question. In the 2011 case Connick v. Thompson, the Court also barred a wrongly convicted man from suing the municipality that employed the prosecutors who convicted him, even though those prosecutors willfully withheld the evidence that would have proven his innocence.

Then there is professional sanction. In the Connick case, Justice Clarence Thomas suggested that discipline from bar associations could be sufficient to keep prosecutors in line. But study after study has shown that this simply isn’t true. For example, one study by the Center for Public Integrity looked at more than 2,000 cases between 1970 and 2003 in which appellate courts overturned a conviction due to prosecutorial misconduct. Only 37 of those cases resulted in disciplinary action against the prosecutor. Another 2010 study by the California Innocence Project looked at 700 cases in which California courts found misconduct; just six prosecutors faced any disciplinary action from the state bar. And last month, a ProPublica investigation found that prosecutors in New York City were rarely if ever sanctioned for misconduct.

While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn’t difficult to see how Brady violations could become routine.

Just how routine is difficult to say, as many such violations may go unnoticed. One study found Brady violations in one of every six death penalty convictions between 1973 and 1995. If it’s that common even in such notorious cases, it’s likely more common day to day, Benjamin says.

“The proof is the arrogance you see on display in high-profile cases,” he says. “Look at the Duke lacrosse case. I had a theory then that if a prosecutor can become so complacent and commit blatant violations in a case where everyone is watching and the defendant can afford top-notch legal representation, we know that this is rampant. I think my theory was confirmed in the Ted Stevens case, where again we saw these violations in the trial of a U.S. senator. And these were federal prosecutors.”

A few years ago, Dallas County, Texas, District Attorney Craig Watkins — himself a former defense attorney — suggested that prosecutors should face criminal charges for willful Brady violations.  Benjamin says he’d support such a law, so long as the state could show that the offending prosecutor knowingly withheld exculpatory evidence, and that the offense wasn’t due to mere negligence or oversight.

Former Texas prosecutor Ken Anderson is currently facing criminal charges for tampering with and withholding evidence in the wrongful conviction of Michael Morton, although the withholding charges allege he violated a specific court order, not his general Brady requirements. But the prosecution of Anderson, like that of Mike Nifong, the DA in the Duke lacrosse case, are exceptions that prove the rule. Criminal sanction of prosecutors who commit misconduct is as good as nonexistent.

Benjamin’s main recommendation to reinforce Brady is mandatory disclosure of every piece of evidence and information related to a criminal case. “Every fact known about the case should be made available,” he says. Currently, that usually only happens post-conviction, when the bar to get a new trial is set high. Full disclosure from the start would allow defense attorneys to look for exculpatory evidence themselves, instead of relying on the judgment of prosecutors about what is and isn’t exculpatory.

The Brady decision was really about establishing fundamental fairness in the criminal justice system and making trials a search for truth, rather than lawyering competitions. But the decision lacked an enforcement mechanism with any real bite. Without it, that sense of justice has been overwhelmed by a generation of tough-on-crime rhetoric from politicians and poorly-structured incentives that reward convictions, while overlooking or even punishing prosecutors who value fairness over filling prisons.


http://www.huffingtonpost.com/mobileweb/2013/05/13/brady-v-maryland-50_n_3268000.html?utm_source=Alert-blogger&utm_medium=email&utm_campaign=Email%2BNotifications
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The “equitable balance” of constitutional rights faces off with legal procedural technicalities

Posted on May 29, 2013 by csidds

This op-ed politely discusses the dis-connect between what the Supreme Court considers their “view” of constitutional rights (really a procedural statute of limitations argument) without touching on the personal rights and privileges of the inmate seeking a review of eyewitness witness testimony a lower court considered to have been “available” at time of trial.

After reading the op-ed go to the ABA Journal to hear some choice comments from the dissenting minority of SCOTUS.

http://www.abajournal.com/news/article/scotus_actual_innocence_may_excuse_blown_habeas_deadline_scalia_blasts_shin
Opinion analysis: Innocence exception survives, innocence claim does not

By Jordan Steiker on May 29, 2013 at 11:06 am

Jordan Steiker is the Judge Robert M. Parker Chair in Law and Co-Director, Capital Punishment Center at the University of Texas School of Law.

Yesterday a closely divided Court concluded that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. Justice Ginsburg, writing for the five Justices in the majority, affirmed that “a credible showing of actual innocence” remains a global gateway around procedural obstacles on federal habeas permitting “merits” review of an inmate’s federal constitutional claims. In so doing, the Court rejected the state’s assertion that the innocence exception should be unavailable to petitioners who fail to act with due diligence in filing for federal habeas relief. At the same time, the Court indicated that “unjustifiable delay” on the part of a habeas petitioner might bear on the strength of his showing of actual innocence. Accordingly, instead of simply affirming the court below – the U.S. Court of Appeals for the Sixth Circuit had rightly concluded that a showing of actual innocence stands as an exception to AEDPA’s statute of limitations – the Court vacated and remanded the case with its added gloss on the equitable doctrine. Moreover, the Court’s remand makes clear that it sees no reason to disturb the district court’s conclusion that Perkins’s showing of innocence was in any event insufficient to justify overcoming the limitations bar. Ultimately, the decision reflects the Court’s continued commitment to its own role in setting the equitable parameters of the federal habeas forum. Given the Court’s special solicitude for inmates who can make a compelling case of actual innocence, such inmates will continue to receive a “get-out-of-habeas-procedure-free” card; to receive actual relief, however, those inmates must also demonstrate a separate constitutional violation (apart from their innocence), at least until the Court revisits Herrera v. Collins.

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Research on eyewitness, victim and expert recantations after convictions

Posted on May 27, 2013 by csidds

The University of Michigan continues its investigation into the causes of wrongful convictions via their archive of over 1000 cases where an innocent person was sent to prison. The varied judicial responses to recanting witnesses contained in this 10 page initial report is particularly telling.

In September 2012, the National Registry of Exonerations began a research study of all the cases in our database that involve post-conviction recantations by witnesses or victims. This is the first systematic study of recantations ever conducted. Its purpose is to identify patterns and trends among these cases, with a particular focus on the circumstances that first elicit the false testimony, and on the official reactions to the recantations by judges and other authorities.

www.law.umich.edu/special/exoneration/Documents/RecantationUpdate_5_2013.pdf

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