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.
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.
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.
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.”
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
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.
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
The New York Times
——————————————————————————–
May 11, 2013
Review of 50 Brooklyn Murder Cases Ordered
By FRANCES ROBLES and N. R. KLEINFIELD
The Brooklyn district attorney’s office has ordered a review of some 50 murder cases assigned to an acclaimed homicide detective, an acknowledgment of mounting questions about the officer’s tactics and the legitimacy of the convictions.
The office’s Conviction Integrity Unit will reopen every murder case that resulted in a guilty verdict after being investigated by Detective Louis Scarcella, a flashy officer who handled some of Brooklyn’s most notorious crimes during the crack epidemic of the 1980s and 1990s.
The development comes after The New York Times examined a dozen cases involving Mr. Scarcella and found disturbing patterns, including the detective’s reliance on the same eyewitness, a crack-addicted prostitute, for multiple murder prosecutions and his delivery of confessions from suspects who later said they had told him nothing. At the same time, defense lawyers, inmates and prisoner advocacy organizations have contacted the district attorney’s office to share their own suspicions about Mr. Scarcella.
The review by the office of District Attorney Charles J. Hynes will give special scrutiny to those cases that appear weakest — because they rely on either a single eyewitness or confession, officials said. The staff will re-interview available witnesses, and study any new evidence. If they feel a conviction was unjust, prosecutors could seek for it to be dismissed.
“People will look for blame,” said John O’Mara, who leads the Conviction Integrity Unit. “Our goal isn’t to look for blame. Our goal is to correct injustice.”
Mr. Scarcella’s name surfaced in March after a judge freed David Ranta, who had spent 23 years in prison after being convicted of murdering a rabbi. Prosecutors determined that Mr. Ranta’s conviction resulted in large part from flawed police work by Mr. Scarcella and a partner, including failing to pursue a more logical suspect. An investigation found they removed violent criminals from jail to let them smoke crack cocaine and visit prostitutes in exchange for incriminating Mr. Ranta. A witness also said Mr. Scarcella told him who to choose in a lineup.
Mr. Scarcella, 61, who retired from the police force in 1999, said he was surprised to learn of the review.
“Are you kidding me?,” he said Saturday in an interview.“Wow. This is quite a bit of a shock. Let them look at my convictions. I will help them if they need me. I don’t know what else to say. I expect he will find nothing,” he said.
He has maintained that he did nothing wrong.
“I couldn’t sit with my family the past 30, 40 years if I had hurt an individual,” he said in a previous interview. “I never fudged a lineup in my life. I never, ever took a false confession.”
He suggested that, following the Ranta news, those he put away believe that “Scarcella is the get-out-of-jail-free key.”
Pressed about specific cases, he said he could not recall many details and that he was being unfairly singled out.
“I have to be a pretty smart guy to lock someone up, get it through the D.A.’s office, get it through a trial and jury, and convict a guy,” he said. “I’m not that smart. It’s not a Louie Scarcella show.”
The questions about Mr. Scarcella stem from the sordid decades when the city saw as many as six homicides a day, and the police and the district attorney struggled to keep up.
Interviews with dozens of lawyers, prosecutors, witnesses and suspects, as well as a review of legal documents, suggest a detective who followed his own rules.
The new developments have proved embarrassing for Mr. Hynes, who is seeking re-election to his seventh term this fall. Although many of Mr. Scarcella’s cases date back to Mr. Hynes’s predecessor, Elizabeth Holtzman, his office has for years aggressively fended off appeals and denied public records requests from inmates who believe they were wrongly targeted by Mr. Scarcella.
Ms. Holtzman said Saturday, “I support a review of these cases.”
A Common Eyewitness
Teresa Gomez, a drug addict born in Trinidad who spent her nights on the streets of Crown Heights, seemed to have a knack for witnessing homicides Mr. Scarcella was assigned to, prompting lawyers to call her “Louie’s go-to witness.”
In the late 1980s, Ms. Gomez testified that she saw a drug dealer, Robert Hill, commit two separate murders. Both times, she was the only eyewitness.
In the first trial, she said she was hiding in a closet in a crack den, watching through a keyhole in the door, and saw Mr. Hill put a pillow over a man’s head and shoot him. Mr. Hill’s cousin said the family later hired an investigator and found no keyhole in the closet door.
Mr. Hill was acquitted.
In the second trial, Mr. Hill was accused of shooting a man on a Crown Heights street corner and then, curiously, putting the dying man inside a livery cab and ordering the driver to take him to the hospital.
Ms. Gomez’s testimony was so belligerent that the judge threatened to strike it in its entirety. She contradicted the evidence in several ways, including the direction the shot was fired and the color of the cab. She even admitted she lied during the first trial.
Yet Mr. Hill was convicted.
“I was kind of no good, but I wasn’t a killer,” Mr. Hill, now 52, said in an interview at the Fishkill Correctional Facility.
Mr. Hill and his family say they are convinced he had been railroaded by Mr. Scarcella, and believe the detective coached Ms. Gomez on her testimony.
They said in interviews that they were startled when Ms. Gomez surfaced again, this time at the trial of Mr. Hill’s stepbrothers, Darryl Austin and Alvena Jennette, who were accused of killing a man for his money.
Transcripts show Ms. Gomez, who claimed to see the killing from a nearby street corner and decided to follow the killers home because she was “nosy,” gave muddled answers that contradicted the other eyewitness.
Jurors were deadlocked and leaning toward acquittal, according to court records. They complained of moldy sandwiches, and the judge pressed them to try harder. Three hours later, they returned with a conviction. Mr. Austin died in prison of lung disease, while Mr. Jennette, 49, was released in 2007 after serving 21 years. “The whole neighborhood knows we didn’t kill that guy,” he said.
As for Ms. Gomez, he said, “I don’t know anyone who ever witnessed three, four or five homicides, unless you were doing them.”
The Legal Aid Society said recently that Ms. Gomez’s repeated role is so troubling that it plans to review homicide appeals of that era to see how many mention her.
Mr. Scarcella said she testified in at least six cases and had nothing but praise for her.
“God bless her,” he said. Though he said he did not recall many specifics of the cases that involved her, he “stood by her 100 percent.” She died years ago, in what acquaintances said was a hit-and-run accident.
Witnesses back then were elusive. Yet Mr. Scarcella could not explain Ms. Gomez’s verbosity and ubiquity. He said he would give her cigarettes and some food money, but that was it.
George Duke, a former supervisor of Mr. Scarcella’s who speaks highly of him, said he thinks Ms. Gomez was among several prostitutes whom the police paid $100 per murder for information. But when they were obviously lying, Mr. Duke said, he would not use them in that case.
A prosecutor’s view of Ms. Gomez is available in an Internet posting on a cigar-smokers forum. Neil Ross, a former assistant district attorney who is now a Manhattan criminal court judge, prosecuted the two Hill cases. In a 2000 posting, he reminisced about a cigar he received from the “legendary detective” Louis Scarcella as they celebrated in a bar after the Hill conviction.
In the post, Mr. Ross said that the evidence backed up Ms. Gomez but acknowledged, “It was near folly to even think that anyone would believe Gomez about anything, let alone the fact that she witnessed the same guy kill two different people.”
Mr. Ross declined to comment, citing judicial ethics rules. “That is horrible,” Mr. Scarcella said about the post. “I don’t know what else to say.”
His Own Way
Mr. Scarcella grew up in Bensonhurst and his father, Domenick, was a police officer. The young Scarcella served six years in the Navy, and joined the police force in 1973. He became a detective in 1981, and in 1987 transferred to the Brooklyn North homicide squad. During off hours, he moonlighted as a Coney Island carnival barker.
His day job was nonstop. All told, Mr. Scarcella estimates he was the lead investigator on around 175 homicides and had a role in at least another 175. After he left the police force, he served as a schools investigator and a dock builder.
Some lawyers who crossed paths with Mr. Scarcella said they thought he imagined himself a crusader who created his own rules.
“He had a gregarious, funny, wonderful personality,” said Martin Marshak, a defense lawyer who represented clients in several cases in which, he said, Mr. Scarcella threatened witnesses. “N.Y.P.D. and prosecutors thought he was one of the best homicide detectives. The only problem was he never followed the rules.”
He added, “I don’t want to say he manufactured witnesses, but he got people to say what he wanted them to say.”
The Police Department would not comment on Mr. Scarcella or make his personnel record available.
Jay Saltpeter, a former detective who worked with Mr. Scarcella and is now a private investigator, says Mr. Scarcella is being unfairly scapegoated. He said detectives back then often assembled sloppy cases that prosecutors accepted. But he also said people did harbor doubts about Mr. Scarcella. “All the questions and rumors we heard then are coming out now,” he said.
In the 1987 murder trial of James Jenkins, who was convicted, Judge Francis X. Egitto said that the witness identification procedures used by Mr. Scarcella were “a classic illustration of what not to do.” Witnesses were shown one photo rather than a gallery, the court records show. They were allowed to mingle together while making an identification of Mr. Jenkins, and Mr. Scarcella told them, “We have the guy who committed the murder.”
“That was wrong if I did that,” Mr. Scarcella said. “But I don’t remember.”
Questionable Tactics
When Shabaka Shakur was interrogated by Mr. Scarcella back in 1989, he said he told the detective nothing of consequence.
But when Mr. Shakur showed up in court for his double murder trial, he was confronted by an incriminating statement that Mr. Scarcella swore he had taken from him. Mr. Scarcella’s underlying interrogation notes were missing, a lapse that shows up in other Scarcella cases.
Mr. Shakur was convicted in what was characterized by prosecutors as a squabble over car payments. The key evidence was an eyewitness and the incriminating statement.
Mr. Shakur, 48, is at Auburn Correctional Facility, in his 26th year of a 40-year-to-life sentence. In a telephone interview, he said Mr. Scarcella fabricated the statement and “they ignored the evidence that shows I wasn’t the guy.”
Ronald Kuby, his current lawyer, said he believes further investigation will show that a vicious drug gang was responsible.
Mr. Scarcella said he did not recall the case.
He does readily acknowledge that he obtained confessions and witnesses that fellow detectives could not. But he ascribes it to his beguiling manner.
“You’re right,” Mr. Scarcella said, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”
At times, he would bang tables and belittle suspects, but he said he favored more delicate approaches.
“Sometimes I would cry with them. Sometimes I would pray with them. Sometimes I would sit with them for hours and hours and hours,” he said, adding, “One young man, after advising him of his rights, said I was the father he never had. He felt so good. Unfortunately, he killed his roommate.”
In 2007, Mr. Scarcella appeared on the Dr. Phil show as an interrogation expert to discuss false confessions. At one point, he said: “Are there rules when it comes to homicide? No. No, there are none. I lie to them. I will use deception. The bad guys don’t play by the rules when they kill Ma and Pop, shoot them in the head, ruin the lives of their family. I don’t play by the rules.”
He went on: “I would use a lie. I had a case, and I said: ‘I have your prints. You were there, and that’s it.’ He said: ‘No. No way. I wasn’t there.’ It’s like 4 in the morning. I take him into the bathroom, and he says to me, ‘Louis, you were right. I was there, but he kicked me, and I shot him by accident.’ I said, ‘Don’t you feel better now?’ And he’s now doing 37 ½ years to life.”
Few individuals feel as wronged by Mr. Scarcella as Derrick Hamilton. He spent nearly 21 years in prison for a 1991 murder, before being paroled in 2011. Now a paralegal, he continues to try to prove he was set up by Mr. Scarcella.
Prosecutors defend the conviction, but Mr. Hamilton has affidavits from four witnesses, including a former police officer, who put him in New Haven, Conn., when the murder occurred. None had originally testified. The sole eyewitness who testified said Mr. Scarcella coached her on what to say, and has since recanted.
Mr. Hamilton, 47, had earlier served seven years for manslaughter. When Mr. Scarcella came to arrest him at a beauty parlor, Mr. Hamilton said, the detective gave him a smart-alecky kiss, and then at the precinct “looked me straight in the eye and said he knew for a fact I didn’t do it, but said I didn’t do enough time on a prior case.”
Asked about that, Mr. Scarcella said: “He can drop dead. The man is an out-and-out liar.”
Accusations of Intimidation
Witnesses as well as suspects accused Mr. Scarcella of coercing false testimony from them.
In 1992, Ronald Pondexter was accused of murdering a man during a middle-of-the-night robbery in the vestibule of an apartment building. The victim was with another man, who survived. After first offering a description that did not match Mr. Pondexter, the survivor said Mr. Pondexter was the killer, though his consumption of 12 drinks undercut his reliability as a witness.
Mr. Scarcella, the arresting officer, produced one other witness, a 19-year-old girl.
Her testimony of what she saw outside her window implicated Mr. Pondexter. Her mother, however, swore her daughter was asleep. In court papers, it was suggested that the mother might have been intimidated by associates of Mr. Pondexter.
During the trial, Michael Baum, Mr. Pondexter’s defense lawyer, said the daughter told him that she had lied because Mr. Scarcella had threatened her.
The judge did not allow her to take the stand again or strike her testimony. Mr. Pondexter was convicted. In 1996, the Court of Appeals ordered a new trial. The girl did not appear, and Mr. Pondexter was acquitted.
Mr. Scarcella called it “ridiculous” that he would intimidate a person to testify.
“I have no recollection of that whatsoever,” he said.
Alain Delaquérière contributed research.
The New York Times
——————————————————————————–
5-19-2013
The Innocence March continues through Santa Barbara County towards Sacramento where they hope to present to Governor Jerry Brown petitions for clemency for 12 clients they consider factually innocent of serious crime. www.innocencemarch.com.
The California Innocence Project (CIP) also highlights cases where prosecutors failed to ascertain the medical conditions of children who died from either accidents or disease and instead chose to bring criminal charges against innocent persons.
Go to http://www.takepart.com/article/2013/05/07/california-innocence-project-three-horror-stories
