Giving Voice to the Voiceless

By William Fisher
Have you noticed? Aside from the dangerous mythology we’re fed on the various CSI television programs, we’re reading more and more real stories about innocent people being sent off to death row or serving long jail sentences for crimes they didn’t commit. And then being freed – usually years later – by new evidence or old evidence intentionally buried.

Here’s another:

Michael Keenan, now 62, spent close to a quarter century on death row. He is now free. He walked out of an Ohio courtroom after a judge determined that evidence that could have exonerated him in the 1988 stabbing death of a man found dead in a brook in a Cleveland park was withheld from his trial attorneys.

The judge dismissed the murder charge.

This is clearly a case of prosecutorial misconduct. There are many such cases, and we’re beginning to read about these as well. There is a panoply of groups working to clean up our criminal justice system.

But dishonest or overzealous prosecutors, while able to wield their enormous power to inflict lifetimes of pain on innocent people, are not in fact the major causes of wrongful imprisonment.

Incorrect eyewitness identification is still the Number One cause.

But ranking a very close second is a faut discipline that sometimes appears to be less science and more Kabuki.

This was the case back in the 1980s when the Federal Bureau of Investigation (FBI) laboratory – until that point considered to be the gold standard for forensics – got caught in a fraud – possibly a massive fraud.

A senior forensic agent falsified the result of a test performed on a single strand of human hair, testifying incorrectly that forensic science could identify the hair precisely, thus frequently placing the accused at the scene of the crime.

But this was not a one-trial mishap. It was the standard analysis for most crime labs. So this junk science statement was being introduced as evidence in courts across the country in as many as 10,000 trials simultaneously.

In the 1980s, a DOJ/FBI task force admitted the “error” and one of the agents responsible was fired. But now a different DOJ /FBI Task Force is re-investigating the incident. Sad to say, they have already corrupted the inquiry by advising only the attorneys for the convicted – not the actual prisoners themselves – of the lapse.
In Philadelphia, Frederic W. Whitehurst, a Ph.D. chemist and former supervisory special agent at the FBI, discussed a colleague’s false or misleading forensic testimony in multiple cases. He also described how scientists would “run dead flat into a sledgehammer” when their results didn’t agree with their supervisors’ thinking. Whitehurst’s whistle-blowing led to the 1995 Justice Department investigation of the FBI Lab.

DNA is the star who hit the ball out of the park. Since the late 1980s, DNA analysis has helped identify the guilty and exonerate the innocent nationwide. The Innocence Project (IP) affirms that while DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques -- including hair microscopy, bite mark comparisons, firearm tool mark analysis, and shoe print comparisons -- have never been subjected to rigorous scientific evaluation.

And the organization added, “forensic techniques that have been properly validated -- including serology, or blood typing -- are sometimes improperly conducted or inaccurately conveyed in trial testimony. In some cases, forensic analysts have fabricated results or engaged in other misconduct.”

Forensics go back a long way in the US. In the 19th century, forensic medicine was a recognized branch of medicine. By 1910, a French criminologist, formulated the basic forensic principle, "Every contact leaves a trace,” and established the world's first crime laboratory.

IP reveals that hair has become one of the most common types of trace evidence. It says hair can help rule out certain populations or help identify an unknown victim. The transfer of hair from a victim to a suspect can raise the probability that the victim and perpetrator came in contact. Like other forensic evidence, information from hair is expressed in terms of probabilities of a match.

But IP points out that hair is never used as definitive proof to indicate guilt because visual comparison is subjective. But when hair is used with DNA, it adds, it becomes a powerful tool for an investigator. Today, hair analysis is only done when DNA tests can also be done.

Still, IP cautions that results from hair analysis can be controversial. The factors that affect these results include where on the body the hair was removed, the person's age and race, and even the color. Because standards vary, a single lab can report different results from the same hair sample and false-positives for illegal drugs are not uncommon.

Because forensic science results can mean the difference between life and death in many cases, fraud and other types of misconduct in the field are particularly troubling. False testimony, exaggerated statistics and laboratory fraud have led to wrongful convictions in several states.

IP declares that, since forensic evidence is offered by "experts," jurors routinely give it much more weight than other evidence. But when misconduct occurs, the weight is misplaced. IP finds that, in some instances, labs or their personnel have allied themselves with police and prosecutors, rather than prioritizing the search for truth. Other times, IP says, criminalists lacking the requisite knowledge have embellished findings and eluded detection because judges and juries lacked background in the relevant sciences, themselves.

In some cases, critical evidence has been consumed or destroyed, so that re-testing to uncover misconduct has proven impossible. Evidence in these cases can never be tested again, preventing the truth from being revealed.

The identification, collection, testing, storage, handling and reporting of any piece of forensic evidence involves a number of people. Evidence can be deliberately or accidentally mishandled at any stage of this process.

The Innocence Project has seen forensic misconduct by scientists, experts and prosecutors lead to wrongful conviction in many states. Here is one of the more notorious:

Of the first 289 convictions overturned by DNA testing, 45% involved faulty forensics. One of those exonerations was Ray Krone. An honorably discharged veteran, Krone served 10 years “in a cell the size of most of y’all’s bathroom,” he said in Philadelphia, for a murder in Phoenix he did not commit.

An expert for the prosecution had testified that bite marks on the victim matched an impression Krone made for police on a Styrofoam cup. With help from the Innocence Project, DNA evidence cleared him in 2002. “I can’t tell you what it was like to be called a monster,” he said. “Thank God for DNA.”

But there were many faults revealed.

• A former director of the West Virginia state crime lab, Fred Zain, testified for the prosecution in 12 states over his career, including dozens of cases in West Virginia and Texas. DNA exonerations and new evidence in other cases have shown that Zain fabricated results, lied on the stand about results and willfully omitted evidence from his reports.

• Pamela Fish, a Chicago lab technician, testified for the prosecution about false matches and suspicious results in the trials of at least eight defendants who were convicted, then proven innocent years later by DNA testing.

• A two-year investigation of the Houston crime lab, completed in 2007, showed that evidence in that lab was mishandled and results were misreported.

Other forensic tests lag behind DNA in several ways, IP says. These tests include the bite-mark analysis from Krone’s trial. They cannot point to an individual, and little to no research has been conducted toward standardizing them or defining their error rates.

In an excellent article in the journal of the American Chemical Society, writer Carmen Drahl quotes attorney Josh D. Lee, co-chair of the Forensic Science section of ACS’s Division of Chemistry & the Law, as saying, “problems arise when attorneys, judges, or juries attach the same aura of reliability to all forensic sciences regardless of their scientific merit.”

IP has uncovered these kinds of abuses since 1992 and has developed recommendations for forensic labs, law enforcement agencies and courts to ensure that forensic science misconduct is prevented whenever possible. It is currently acting as a consultant to the DOJ and FBI in the second iteration of the task force investigating the errors made by the lab during the 1980s.

IP is calling on states to impose standards on the preservation and handling of evidence. When exonerations suggest that an analyst engaged in misconduct or that a facility lacked proper procedures or oversight, the Innocence Project advocates for independent audits of their work in other cases that may have also resulted in wrongful convictions.

And bills have been introduced in both the House and the Senate for Congress to play a far more active role in providing oversight, beginning with studies and hearings that, it is hoped, will establish credible standards for the forensics industry.

It’s unlikely that erroneous convictions or even many more exonerations are ever going to become a campaign issue in the presidential election. The U.S. has about 2.5 million people locked up in federal, state prisons and county and town jails. And another 5,000 are under some form of supervision by the prison system.

These people are invisible. They don’t vote. That’s why they’ll never rise to anywhere near the top of politicians’ priorities. That’s why we need groups like The Innocence Project.

To give voice to the voiceless.