This isn’t the sort of thing anybody wants to say, but I hope they were guilty. Because the alternative pushes the boundaries of even the hardest hearted bastard.
The Washington Post published a story so horrifying this weekend that it would stop your breath: “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”
What went wrong? The Post continues:“Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.” The shameful, horrifying errors were uncovered in a massive, three-year review by the National Association of Criminal Defense Lawyers and the Innocence Project.
Chillingly, as the Post continues, “the cases include those of 32 defendants sentenced to death.” Of these defendants, 14 have already been executed or died in prison.
That forensic science has been a monumental disaster isn’t news. It runs the gamut of lies, incompetence and, mostly, a scam on the legal system, that has been well-known for years now. That this meant that decades of convictions were based upon knowingly false junk science was similarly presumed.
But this review of actual cases puts a price tag on the fraud. Of the cases reviewed, 32 defendants were sentenced to death. Death. No doubt the crimes for which these defendants were convicted were horrible, but were they the perpetrators of those crimes? Fourteen of those defendants have been executed, fast or slow. So yeah, I hope they were guilty as sin, because if they weren’t, the fraud perpetrated by the forensic science industry is a crime of enormous magnitude. Want to talk about mass murder? Are 14 enough bodies for you?
Since the report of the National Academies of Science came out in 2009, “Strengthening Forensic Science in the United States: A Path Forward,” there hasn’t been any serious doubt that most of forensics is a scam. We believe, because we don’t really have a clue about science and we’re susceptible to bias and the influence of television magic. We’re so infatuated with the idea that science can solve all the nettlesome problems that we let our eyes fog over and give people with insignificant degrees and articles published in quasi-existent trade journals the authority to destroy lives. It’s so much better to be told by an expert that someone is guilty than to have to figure it out based on evidence.
But that report came out in 2009, and still courts admit the same crap into evidence, and in the same manner as to prevent any effective counter to its falsity.
This problem doesn’t stop with the FBI labs or federal prosecutions. The review focuses on the first few hundred cases, involving FBI examiners, but the same mistakes and faulty testimony were likely presented in any state prosecutions that relied on the between 500 and 1,000 local or state examiners trained by the FBI. Some states will automatically conduct reviews. Others may not. Much of the evidence is now lost.
Systemic change, in other words, is being left to the discretion of the system itself.
If there was a deep concern over the integrity of the process, it should have ground to a halt upon release of the 2009 report, and a big meeting held for all the judges at which somebody in a position of authority screamed at them, “stop admitting shit evidence, you dopes.” But that meeting never happened. And shit evidence continued to flow, as it always did. And judges, to the extent they weren’t blithering idiots or complicit in the critical goal of assuring the conviction of as many defendants as possible, shrugged and went about their business as if junk science had nothing to do with them.
Dahlia Lithwick raises some of the now-historic fixes, noting specific areas of junkiness, such as crime labs that fake results, or “100%” hair analysis that confused dog hair with human. Whether fixes were expensive or easy, complex or simple, may miss the point, however. The point is that we know, with certainty, that almost all forensic science is a scam and yet it continues to be admitted into evidence to convict people.
These solutions are not all that expensive or complicated. Among them: giving defendants their own forensic experts, untethering crime labs from the prosecutors and cops to which they now answer, verification and standards. But no matter how many times we may reiterate that the status quo is intolerable and that simple corrections would yield significantly better data, no real energy for reform exists.
All good solutions, but hardly worth the bother as long as judges continue to allow the fraud to be perpetrated on the witness stand. Want to generate some “real energy for reform”? Just say no, Judge. Refuse to be complicit in the perpetuation of lies and scams in your courtroom. Granted, it means that some guilty people will walk, but the alternative is that you wrap yourself in the warm comfort of precedent while knowing, with absolute certainty, that the “expert” you just qualified is a fraud.
And as long as we’re talking about perpetuating scams, there’s one more that wasn’t part of this study, but likely happens more than any other in the legal system. The beloved drug doggie. Why not let the dogs go to good homes, where they can play with children and romp in the backyard, and just use a coin toss to determine whether police have probable cause to search.
We all know that a coin toss is just as valid as a dog hit. If you adore the doggies that much, free them from their labor and end the lie. But then, if you really loved the doggies that much, you would get upset when cops murdered them for being doggies. Or does it just make it all seem so much more real to pretend that the doggies are magic when they get their doggie treats from the good guys and alert? Science, right? Who are we kidding?