Between the  Washington Post and 60 Minutes, the word is now out that bullet lead analysis, used for 40 years to put people away, is garbage.  Well, there’s a shock.  Yet another surprise from the FBI Lab, “the best forensic lab in the world,” that has no science behind it. 

It sounded like it made scientific sense.  There was this official feel to it, that the lead in bullets was metallurgically certain to show that a bullet came from a particular batch or box of bullets.  Whenever somebody with an official scientific title uses words like metallurgy, it’s impossible to believe that they just made the whole thing up.  Hey, it’s not like us lawyers know what happens inside those little black boxes.

But the fact that another domino falls in the forensic science path to conviction isn’t the end of the story.  The story goes on because our friends at the FBI, the ones who are there to protect us from injustice, neglected to let us know that they’ve been using junk science for the last 4 decades.  Oddly,  a letter was sent out to police, prosecutors and criminal defense organizations.   

Put aside the issue of whether sending a letter to an association is the same as sending it to the lawyer who represents the defendant, because it wouldn’t matter anyway.  You see, the letter didn’t tell you that the science was junk and the testimony false.  They left out that part.  Nowhere does the letter let the cat out of the bag.  It didn’t mention that bullet lead analysis was officially debunked, but merely that the FBI “will no longer conduct the examination of bullet lead.”  Not quite the same thing.

Why?  Well, the head of the FBI lab apparently didn’t think it was his place to expose the fraud to the people harmed by it, but he was happy to admit it on 60 Minutes: 

Tobin says the Quantico lab was the only place in the country that did bullet lead analysis, and the assertion that you could actually match a bullet fragment to a specific batch or box of bullets went unchallenged for 40 years — until Tobin retired in 1998 and decided to do his own study, discovering that the basic premise had never actually been scientifically tested.

“FBI lab personnel testified that you could match these fragments to this bullet,” Kroft remarks.

“Yes, that’s correct,” Tobin says.

Asked what he found out, Tobin tells Kroft, “It hadn’t been based on science at all, but rather had been based on subjective belief for over four decades.”

“So what you’re saying is that this is junk science?” Kroft asks.

“That’s correct,” Tobin says. “It’s worthless as a forensic tool.”

Note that it’s not just  inadequate. It is worthless, as in they made the whole thing up.  Oops. Sorry.  Never mind 40 years of testimony.  It was worthless.  Our mistake.  I’m sure they feel just as bad as all the people in jail for that period of time.  Why am I being so sarcastic?  Because I believe this is true of much of the purported science and expert testimony that is proffered at trial to convict people where the evidence of guilt doesn’t exist, and that the players in the system are more than happy to turn a blind eye to garbage testimony rather than demand that this extremely harmful evidence be subject to serious scrutiny before it become ingrained in criminal justice culture.

Personally, I’ve never had a case where bullet lead analysis was used.  But if you did, or do, now would be a good time to reach out and do something about it. 

It is my practice at trial to question the underpinnings of scientific and expert testimony for validity.  Judges find this terribly annoying when it relates to long held beliefs.  If some other court let it in, it must be good science.  And when it’s debunked, nobody seems to feel all that bad about the fact that they were “had”.  I find this disturbing.  No one else in the courtroom seems to be bothered at all.  I’m no scientist, but I refuse to disengage my brain whenever some “expert” takes the stand and says so.

So even if you this lead bullet analysis has no application to you, consider this as yet another warning shot across the bow of the prosecutions adoration of junk science.  Juries love to blame science when they rush to convict.  And all you judges who are so enamored with science, perhaps you will begin to take some of those objections and requests for hearings just a wee bit more seriously.  Please.

Thanks to reader Adam Militello, Buffalo Law School 2007, for the heads up on this story.