With timing that couldn’t be better, in light of the National Academies of Science release of its report on the subversion of science and law through the use of junk science and junk experts in court to undermine the integrity of the criminal justice system, Radley Balko has posted at Reason one of the most damning investigative reports I’ve ever seen. 

The article chronicles how two Mississippi doctors, Steven Hayne and Michael West, successfully used their degrees to create evidence to convict, to disseminate it and to subvert the system.  Radley’s report is a difficult one to read, and a particularly difficult one to view, containing autopsy video and photographs of a young child, Haley Oliveaux.  But with these images, there can be little doubt that these men manufactured the evidence needed to convict Jimmie Duncan.

While its unclear what motivated Hayne and West, though the suggestion is that Hayne had created a cottage autopsy industry for himself, and sought to increase his business in Louisiana, where he was hired to perform his special brand of magic in the Oliveaux murder case.

Hayne testified that during an initial examination of Oliveaux’s body, he was able to find bite marks that at the time no other medical professional had noticed—just as he’d done in the Brewer and Brooks cases before. And just as it happened in the Brewer and Brooks cases, Hayne’s discovery of potential bite marks gave local authorities probable cause to obtain a plaster dental mold of the defendant’s teeth, in this case Jimmie Duncan. Hayne then called in West to perform his unique brand of “analysis.” West concluded that the marks were made by human teeth belonging to the man police and prosecutors suspected of killing the child.

Balko exposes Hayne’s scam.  The NAS report exposes the scam of forensics in general.  But we’re still left with the overarching problem:  There’s an ongoing system out there, rendering what is perceived to be irrefutable scientific opinion of guilt, that’s a total load of crap. 

In Hayne’s case, bite-mark evidence enjoyed its day as proof of identity.  Today, we recognize it as complete nonsense, exposed as snake-oil.  And yet we continue to accept and believe all manner of scientific “proof” as articles of faith in the law rather than an empirically tested methodology.  And no one says “no, this isn’t going to happen in my courtroom.”

Just as people want to believe that physicians have a pill that will cure anything, pop culture pushes people to believe that science has evolved to the point of absolute certainty.  Those behind the science enjoy the prestige that comes from being the exclusive handlers of their own little piece of truth.  Those charged with preventing the charlatans of science from holding sway have failed.

Police and prosecutors want to convict those who they believe are guilty.  If a scientific method helps them to do that, they embrace it.  That the method is nonsense is not their problem. 

Criminal defense lawyers often lack the wherewithal to dispute the prosecutorial charlatans, and even when they can locate a witness willing to testify, and have the funds necessary to pay for him, they are left with an uncooperative judge who will either not permit, or severely limit, the scope of the defense testimony.  The validity of the underlying science is collateral to the issue in the case, and judges view challenges as a waste of time, since the issue of admissibility is already decided, and they now want to get on with the trial and home for dinner.

Judges are the gatekeepers of evidence, including expert and scientific evidence.  By and large, judges have failed miserably.

What is it that drives courts to fall in love with scientific proof?  It relieves the system of its most basic flaw, that all platitudes aside, it’s a horribly ineffective way to discern truth from falsity.  By holding out something that appears to provide objective empirical truth, judges and juries are not required to engage in the magical determination of deciding who is lying and who is truthful.  It’s wonderful to be able to shift the problem to some expert, who can tell truths through science.  The system is infatuated with any answer that gives the appearance of having greater validity than voodoo. 

The rest of us understand that the system is no better than guesswork, masked to conceal that it’s a game with a million rules that allows everyone to cheat.  But if we have science to rely on, then our system gains the integrity that we cannot offer it.  Or so we would like to believe.  It becomes far more difficult to maintain that faith after Balko’s piece. 

Sorry if this bursts your bubble, and no, I don’t have an alternative solution that will make it clean and easy to secure convictions, but  the fact remains that the system is severely flawed.  But piece by piece, bit by bit, we are confronted with the harsh reality that the criminal justice system’s facile reliance on science to fill the void of proof is a subversion of justice.  We need to admit this and deal with it.  We need to stop hiding our heads in the sand, pretending that science will save us.