Jeffrey Gamso, in his inimitable way of tying loose ends together, went from 9th Circuit Judge Alex Kozinksi to F.W. Murnau’s missing head to the decision in People v. Collins. And if that doesn’t give you whiplash, reading Brooklyn Supreme Court Justice Mark Dwyer’s opinion will make your head spin.
Justice Dwyer begins with something that ought to be obvious to all, but few judges would openly admit:
This court recognizes that judges are, far and away, not the people best qualified to explain science. That observation is doubly applicable when novel scientific techniques are at issue—and that of course is precisely what Frye analysis involves. But courts are bound to do their best.
I just want to bask in the warm glow of metacognition for a moment. Damn, he’s good. From there, Justice Dwyer launches into a general dissertation about DNA that will give you a headache. At least it did me. He then reaches the issue in the case, whether a new-fangled way of using DNA, called High Sensitivity Analysis, together with a new program to do it, the Forensic Statistical Tool, should be admitted into evidence.
The TL:dr as to these new DNA weapons is that sometimes, there isn’t enough DNA available to use the usual, and approved, means of analysis, so forensics guys came up with a way to take inadequate samples and make them work. Or so they say.
It’s a flawed process, resulting in additions and subtractions to the 15 requisite loci that skews the outcome. But by reducing the statistical certainty from one in a gazillion to a mere one in a bit of gazillion to account for the fact that it’s flawed, the prosecution experts explain that they’ve been sufficiently conservative to cover up the flaws.
Because juries will be far less likely to embrace the idea that the certainty of 1 in 19,000 isn’t nearly as certain as 1 in a trillion.
Justice Dwyer takes an aside into the standard by which scientific evidence is determined to be admissible in New York.
This opinion has cited Frye, yet has not explained it. But in New York legal circles, little explication is required. Novel methods of scientific analysis can produce admissible evidence only if the relevant scientific community generally (though not necessarily unanimously) considers those methods to be reliable. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Put another way, a court assessing the admissibility of evidence under Frye is not charged with deciding the validity of novel scientific procedures. It would hardly be sensible to assign that task to the judiciary, most of which is as patently unqualified to perform the task as is this court. Judges should be “counting scientists’ votes,” and not “verifying the soundness of a scientific conclusion.” Parker v. Mobil Oil Corp., 7 NY3d 434, 446-47 (2006), quoting People v. Wesley, 83 NY2d 417, 439 (1994)( Kaye, C.J., concurring).
For those who may not be aware of what he’s getting at, the alternative standard, Daubert, would require the court to make an independent conclusion that the science is valid, which, as Justice Dwyer notes, isn’t exactly a judge’s strong suit.
Where things really go crazy wild, however, is that the admissibility of these new methods has already been allowed:
One New York trial court has, after a Frye hearing, upheld the use of high sensitivity DNA analysis. People v. Megnath, 27 Misc 3d 405 (Sup. Ct. Queens Co. 2010) ( Hanophy, J.). Another has, after a Frye hearing, held that the FST approach to mixture analysis is generally accepted in the DNA community. People v. William Rodriguez (Sup. Ct. NY Co. October 24, 2013) (Carruthers, J.) (unreported).
This is where the rubber meets the road, and why this decision is important. Most judges, faced with the issue of whether to admit new scientific evidence, would look to whether someone before them held a Frye hearing, made a decision, and then punt. Another judge let it in? Boom. Move along, counselor. It’s a done deal.
Judge Dwyer did not punt.
With all respect to the authors of those decisions, this court has counted the scientists’ votes differently, and disagrees with their conclusions.
The law is saddled with decades of bad forensic science. Everything from the beloved dog sniffs to fingerprints, all of which has come under scrutiny over time only to learn that the certainty of this evidence was anything but. Indeed, some of it, bite mark analysis for example, has proven to be a total crock, while others, fingerprints, have been modified over the years to overcome its original inadequacies, and yet remains subject to huge flaws.
But everybody knows that fingerprints are magic. And doggies are special because they can smell everything.
[Justice Dwyer] did something that almost never happened with expert evidence: he did it properly. That’s worthy of some note. Frye is readily abused. Fingerprints, for instance, pass the Frye test and are admitted in court because the relevant community of experts, fingerprint examiners, pretty much conclusively believes they’re meaningful. (They ought to flunk a fair Daubert challenge since they have no demonstrated reliability, but they’re fingerprints f’rgodssake, so they’re universally admitted because everybody knows fingerprints.)
To the uninitiated, what happened in Collins may seem, well, normal, expected even, since it’s perfectly reasonable to expect judges to do their job. But what Justice Dwyer did was remarkably bold, maybe even exceptional. He said “no” to a new wrinkle in DNA analysis, and he did so after other judges said, “sure, why not?”
With pathetic regularity, the by-product of bad forensic science is revealed when defendants convicted with the utmost certainty are later exonerated. We know what’s wrong. Hell, even Judge Kozinksi says so, and he’s a judge.
But leaping from what we all know to actually refusing to admit something the government swears is all science-y is huge. Now, if we can only get a dog sniff case before Justice Dwyer. Junk science has got to stop, and the fact that Justice Dwyer is willing to take the heat for doing the hard, and unpleasant, work of judging deserves both recognition and appreciation.