In apparent recognition of the CSI Effect, the American Judicature Society has finally convened a Commission on Forensic Science and Public Policy, co-chaired by former Attorney General Janet Reno, former FBI Director William Webster, and Carnegie Mellon University Statistician Stephen Feinberg. The Commission includes 38 high profile scientists, law professors, defense attorneys, prosecutors, cops and academics, and is charged with planning a course of action that will lead to improvements in 5 highlighted areas:

1. Ensuring the preservation, scientific testing, and access to evidence;
2. Improving the quality of eyewitness testimony;
3. Promulgating standards for, and the systematic evaluation of the nation’s forensic labs;
4. Encouraging research and evaluation of pattern recognition techniques associated with forensice evidence to help solve crimes; and
5. Developing mechanisms to improve science education for the legal profession.

There are lots of good reasons for each of these initiatives, but I’m particularly excited about this last point. Most criminal defense lawyers seem to almost pride themselves on being technologically illiterate and having an aversion to science. This has to change, and the Commission’s first meeting in April is a good place to start.

RP

Justice Alito has been pro-prosecution most of his professional life, serving as a Federal Prosecutor in New Jersey before taking the bench. But in a move no doubt designed to balance his image in the public eye, his first Opinion assignment was to write for a unanimous Court reversing a South Carolina conviction in a capital case. It’s hard to imagine any other result in this case, even though the State courts of South Carolina affirmed the conviction of Bobby Lee Holmes all the way down the line, holding that his right to present evidence of a 3rd party’s guilt could be limited in the face of “overwhelming forensic evidence” of his guilt. There’s that CSI effect again, putting a high premium on the value of forensic evidence. Not so fast, said Alito.

“The true strength of the prosecution’s proof cannot be assessed without considering challenges to the reliability of the prosecution’s evidence,”

Alito went on to characterize South Carolina’s rule as “arbitrary” and strongly reaffirmed the right of a defendant to present a complete defense, no matter how strong the state’s case.

The interesting thing about this case was the Court’s unanimous stance rejecting South Carolina’s attempt to give so much weight to forensic evidence that it would allow the trial court to limit the ability of the defendant to put on a defense. The crime scene included a palm print, fibers, and DNA of the defendant, and even with that tri-fecta lineup, the Supreme Court made clear that limiting the right of a defendant to put on a defense is still a no-no.

Read more about the Opinion here.

RP

I wrote about this case earlier and called the evidence against Father Robinson “flimsy”. It was enough, however, for the jury to find him Guilty, so I stand rebuked. Still, when you consider that they found male DNA not only on the nun’s underwear, but under her fingernails (strongly indicating a struggle with her killer) and that it was NOT a match with Father Robinson, you have to wonder … why? The rest of the case was circumstantial, and the hard scientific evidence pointed to someone else. Guilty? (shakes head).

An update on an earlier post about the sad case of Todd Cameron Willingham, executed by Texas in 2004 for a crime experts now say he did not commit. Four of the nation’s top arson investigators were asked to independently review the evidence used to convict Willingham of the alleged arson that resulted in the deaths of his three daughters. He went to his death proclaiming his innocence. In their report released Tuesday, the investigators concluded that evidence relied on by prosecutors to convict Willingham was the type of evidence “routinely associated with accidental fires”.

One of the key “technologies” criticized in the report is commonly referred to as “crazed glass”, a web-like pattern of cracks in glass allegedly linked with the use of accelerants. Arson experts at Willingham’s trial relied on this “crazed glass” phenomenon to convict him. The Report released Tuesday describes “crazed glass” as “mythology” and one of the authors of the Report criticized the trial experts, saying “these guys didn’t know what they were talking about”. This particular “indicator” has been debunked in recent years once it was shown that these same web-like patterns can arise when cool water is poured on hot glass. Kind of like what happens when a firetruck arrives, you know?

The Report goes on to criticize all of the other indicators used at trial. “Each and every one of the indicators” relied on by the chief arson investigator at the trial “means absolutely nothing”.

Probably meant something to the late Mr. Willingham. As he was strapped to the gurney awaiting the lethal injection that ended his life, Willingham’s last words were: “I am an innocent man, convicted of a crime I did not commit.”

Read more about this disturbing story here.

RP

I’ve been in jury trial these last few days but I’ve got some free time now. This morning my jury came back with their verdict. There were many issues in the case, but one point I drove home in cross examination and final argument was that, of the five police cars that pulled up to the scene of the crime, every one was equipped with a state-of-the-art video camera capable of recording everything that happened during the arrest, and mysteriously not one of them was turned on. The case rested squarely on the facts surrounding the arrest and it turned into a “he-said”, “she-said” contest between the defendant and his friends on the one hand, and police officers on the other. And you know who usually wins that contest.

Question: Officer, your police car is equipped with a video recorder that was capable of recording the events you’ve testified to, was it not?”
Answer: Yes it was.
Question: It’s easy to turn on isn’t it?
Answer: Yes, it is.
Question: You failed to turn it on that evening, though, didn’t you?
Answer: Well, I didn’t turn it on.
Question: And as a result, no one recorded Tony’s arrest, did they?
Answer: That’s correct.

After only 28 minutes of deliberation, the jury came back with their verdict: Not Guilty.

There were many good reasons for the verdict (e.g., my client was innocent), but any time your case rests on pitting the word of the defendant and his cohorts against the sworn testimony of multiple police officers, you’re on very thin ice. I can’t help thinking that this case illustrates a variant of the CSI Effect I’ve written about in the past. There’s really no excuse to see prosecutions failing to utilize available technology to make their case. When they fail to produce such evidence, they do so at their peril.

RP

Are Polygraphs junk science or underutilized forensic technology? They occupy the most unusual position in the hierarchy of forensic instruments, universally rejected in courts as not even meeting the Frye test of acceptability in the scientific community, yet enjoying huge mindshare within law enforcement and an astonishing growth rate within the federal government.

With the CIA’s recent firing of Mary O. McCarthy after she failed an internal polygraph, the issue is moving front and center and the question will have to be addressed. What exactly is the role of the polygraph in law enforcement? If the machine is insufficiently reliable to be used in court to evaluate credibility, how can it be used to justify a life-changing decision like job termination?

I regularly see posts in my local defense listserve from members asking for polygraph referrals, and the requests are growing. I always wonder what’s driving these requests. And in many of the major criminal cases I’ve handled recently, police have asked if my client would be willing to take a polygraph. The fact that these cops are even *asking* me this is pretty astonishing. What exactly are they going to do with this information? If my client passes the test, will they drop their investigation? I don’t think so. And if he fails, the results can’t be used in court. So, what’s the point again?

I’m concerned that this renewed interest in shortcuts to the truth is going to push law enforcement in the direction of heavier reliance on polygraphs, and eventually pressure the courts to relent. After all, if courts are willing to allow the results of Breathalyzers in court, it’s not that big a step to start admitting polygraph results. And that’s just bad science.

Read this Washington Post article for their take.

RP

The pressure to close an unsolved murder case is great, and it’s even greater when police have a 26 year-old case and a suspect they *want* desperately to convict but are held back by a disappointing lack of evidence. That didn’t stop prosecutors in Toledo, Ohio from charging a 68 year old priest with the crime. In the light of all the recent sex abuse scandals facing the Roman Catholic church, it’s not surprising the prosecutors are feeling emboldened to go after them, even with flimsy cases.

And this one looks flimsy. Father Gerald Robinson is charged with the murder of Sister Margaret Ann Pahl even though the crime took place 26 years ago and recent DNA taken from her body and from the bloody altar cloth in which she was wrapped show NO match with the priest. In fact, the DNA found on the nun’s underwear probably belonged to some other unknown male, according to the DNA expert.

Undaunted, prosecutors are now arguing that the male DNA sample found on Sister Pahl’s underwear was small, and could have come from one of the investigators or someone else on the scene. Never mind Edmond Locard’s Transference Theory (when two objects meet, there is always a transference from one object to the other), or the small detail that if they could find small samples of an investigator’s DNA on the nun 26 years later, why are they not able to find ANY belonging to the man they claim brutally stabbed her repeatedly?

This case illustrates how creative prosecutors can use DNA evidence both offensively and defensively in their trials. It doesn’t matter what DNA tests show, all findings support guilt. If you can show some of the defendant’s DNA at the scene, you argue he’s guilty and the DNA proves it. If you find no DNA match, you argue that he’s guilty but that he didn’t leave any DNA behind. And if you find someone *else*’s DNA, you simply argue that it could have been the result of contamination during the investigation, but he’s still guilty.

Read the story here.

RP

Just a follow-up on the last post regarding the challenges facing Chris Herion in his “Donations” (read “Bribery”) case below. After Herion filed a motion to recuse the entire Benton County bench from presiding over any hearings in the case, he got into a nasty on-the-record argument with the judge. The judge threatened Herion with contempt and at one point apparently pointed to Herion’s record of having accepted such donation deals himself while acting as a judge pro tem. Whereupon both parties denied knowing that such deals were taking place. The argument seems to be that judges are too busy to ask questions or to know everything that is going on in their courtrooms. Sad commentary if true.

It’s hard to believe that this story, getting attention across the nation, is happening in my backyard. I first heard about it when Attorney Chris Herion (pictured above) posted a rather lengthy message on a local listserve describing the whole ordeal he encountered in the course of representing clients charged with DUIs. What he discovered was that prosecutors were making deals with clients to treat their cases more favorably if they paid a “donation” to certain “charities” designated by the prosecutors. This practice was apparently carried out in open court, with allegations that envelopes of cash were passed to prosecutors right under the judge’s nose. The local judge who oversaw several of the cases claims to have been unaware of the practice and has made a statement deploring the practice.

To no one’s surprise, some of the money that was intended to go to “charity” has turned up missing. Two attorneys are now under investigation by the FBI. But wait, the case gets even more bizarre. Local prosecutors around the state seem to be divided on the propriety of the practice. Yes, you read that right: some prosecutors are actually defending this “Pay to Play” form of justice. While most respected prosecutors have categorically rejected the practice, check out what Richland City Prosecutor Ray Hui — who has taken in $178,000 for his City in the last 26 months — has to say about it:

There’s no statute that says you can offer a donation for a crime. There’s no statute that says you can’t.

How’s that for moral clarity? And just to be clear about his motivation, he continues:

If there are jurisdictions out there not doing it, they’re losing money.

I wonder if the residents of Richland would be pleased to know that criminal defendants in their city are able to avoid responsibility by paying cash into the city coffers?

Kennewick City attorney John Ziobro, one of the leading proponents of the practice, is quoted as saying “donations are a way to give deserving people a break”. I’d like to know exactly how these people are “more deserving”. Because they have money? Is there any way to interpret that statement in a favorable light?

Now that the whole stinking mess has come to light, you can bet that anyone near this system is going to run and hide while issuing statements dripping with righteous indignation. Reminds me of the scene in Casablanca when Captain Renault states “I’m shocked, shocked to find that there is gambling going on here!”, while his winnings are brought to him.

Read the whole sordid story here.

RP

I’ve talked about it here and seen it in action in my own practice. The “CSI Effect” is entrenching itself into mainstream public perceptions of the criminal process. With DNA exonerations becoming as newsworthy as tomorrow’s weather, and the utter saturation of crimeshow television, public expectations have set the technology bar high: if you don’t have DNA evidence, something must be wrong.

Witness the Duke University Lacrosse case. When DNA tests performed against the alleged rape victim failed to match a single one of the 49 players tested, it wasn’t only lawyers who questioned the veracity of the charges. There was loud public outcry from many for an end to the prosecution. But Durham County District Attorney Mike Nifong remained undaunted, claiming “We prosecute our cases the old-fashioned way”. Meaning what, exactly? In this case, I think he means “without evidence”.

Whatever in particular is motivating this dogged prosecutor, the case raises troubling questions about the clash between prosecutors who need to solve crimes, and the science they employ. In 1930, Dr. Edmond Locard proposed what he termed “Transference Theory”. Simply stated, the theory holds that for any two points of contact there is always a cross-transference of material from one to the other. Always. This principle of Transference is a core principle of modern forensic science and is responsible for the government’s heavy reliance on Hair, Fiber, and DNA evidence analyzed in virtually all criminalistics labs across the country. Any time a criminal comes into contact with some object, place, or person, he leaves behind trace evidence. Always.

But in this case the chief prosecutor is arguing that some of the 49 men on the team came into intimate sexual contact with one woman, who was brought promptly before sexual assault medical experts for examination, yet nothing, not a single hair or DNA sample, was found linking any of the players with the alleged victim. No transference of any kind. Nada. Zip. Butkus. All those sweaty, hormone busting bodies, and not a single bit of transference. Never mind the science, the local black community is putting pressure on the DA in an election year and, well, Edmond Locard died a long time ago …

Read a news account here and check out the FBI’s take on Transference Theory.

RP