Who doesn’t love forensic science, making every case easy-peasy because, well, science says so. No burden of having to think hard (and get the accompanying headache), understand what’s being alleged and critically parsing it for efficacy and accuracy. No way, baby. When an agent takes the stand and says the defendant is GUILTY, GUILTY, GUILTY, because science says so, everybody can pat themselves on the back for a job well done and walk away without the slightest hint of doubt.
Science. Cool, right?
Except when it’s not. Except when some judge somewhere wasn’t in the mood to play gatekeeper and let some garbage that masquerades as “science” into evidence as if it held any real validity, and then all the other judges would shrug and do the same. After all, once somebody else has admitted, can’t they just assume they did their job ascertaining that it’s actually for real, it actually works, it’s not just a total wad of crap wrapped up in pseudo-scientific mumbo jumbo (or argle bargle, as is now in vogue)?
The Washington Post writes about 27 death penalty convictions under review by the Department of Justice:
An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.
The review led to an 11th-hour stay of execution in Mississippi in May.
It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.
But, but, but…it’s science? Science can’t be wrong. Just ask any judge, juror or prosecutor, and they’ll tell you that if a witness testifies as an expert because he learned something scienc-y in cop school, it must be true. It’s science, for crying out loud.
At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.
Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.
The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.
Oh well, the old hair analysis thing again, right? Except the old hair analysis thing was good enough science to identify people as murderers and put them on death row. So while we may now take it for granted that it was just another instance of pseudo-science combined with false testimony (and no, there is no information to suggest that any agent has been convicted of perjury for having deceived a jury to convict an innocent person), it remains enormously important for those whose freedom was deprived and whose lives were lost because of it.
The current investigation is into death row inmates.
Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.
No doubt they will feel pretty darned bad about the ones they wrongly executed. Who wouldn’t? Not that it’s going to do them much good, though their families may get some money for it and will feel some sort of cathartic release when their loved one’s name is cleared.
But what of the prisoners who got life? Or 50 years. Or 20 years? Is there anybody looking into that? Are 20 years of a person’s life so trivial as to be unworthy of concern?
Sadly, the answer is often that the government, and the outside entities, in this case the Innocence Project and the National Association of Criminal Defense Lawyers, are doing “the best they can” in trying to undo the damage. First, let’s stop innocent people from being executed. Maybe we can deal with the lifers later. If not, well, at least we did something.
It’s certainly far harder to undo the damage wrought by a sloppy system that lets garbage pass as science because some agent says so. It’s not like judges know anything about science, which is why they went to law school instead of medical school like their mothers wanted them to. But the only real “solution” to the infusion of junk science in the courtroom is to not let it happen in the first place, and to not go “along for the ride” after other judges let it in.
When it comes to junk science, slavish reliance on precedent has been the most alarming culprit. As we’ve learned time after time, what passes for conclusive science at one point in time is subsequently proven to be utter nonsense, totally unworthy of belief or reliance. And yet, we continue to have testimony claiming that some forensic science is 99% accurate, even though ten years later it’s revealed as being complete malarkey.
For jurors, this seals a defendant’s fate. They aren’t going to dispute the science. They can’t. They know nothing about it, and rely on the “expert,” the guy the judge tells them is so fabulously knowledgeable that he gets to offer opinions that conclusively determine facts that the jury would otherwise be constrained to find. And jurors love it, as it removes the harsh burden of condemning another human being from their shoulders.
It’s not that science isn’t great. It’s that what’s used in a courtroom to remove the most important issues from the jury’s plate isn’t science. If only it didn’t take us decades, and thousands of lives, to figure that out.