Fakes At The Gate: Challenging Phony Science

My guess is that someone made a clerical mistake.  They meant to call some renown biophysicist named Schechter and dialed the wrong number.  As it happens, they reached my old friend Marvin Schechter instead and invited him to be on the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.” 

Remember the report?  It blew open the doors on most forensic disciplines used regularly, and for generations, to conclusively prove defendant’s guilty of a wide variety of crimes.  And after the party, was largely forgotten. 

No tweedy Ph.D.,  Marvin Schechter is a criminal defense lawyer, and peculiarly suited to the task of presented by Congress to the National Academy of Sciences, and similarly suited to being an evangelist for the past-due demise of bad evidence masquerading as forensic science.  He’s enough of a geek to stay awake and pay attention through the voluminous testimony presented to the NAS, and more than enough of a criminal defense lawyer to dedicate himself to making us remember that he suffered that testimony for our benefit. 

Speaking yesterday at the Nassau Criminal Bar Association, I had the opportunity to hear Marvin’s pitch.  Despite his geekiness, Marvin can be a very entertaining and enthusiastic speaker, but it belies the substance of his message: defendants are still being convicted on the basis of phony forensic science every day.

For anyone unfamiliar with the report, it attacks a wide swathe of what has long been taken for granted as true, that fingerprints, toolmarks, bitemarks, blood splatter, trace evidence, arson analysis, have developed as disciplines by law enforcement without any of the standards, protocols or methods demanded of any other scientific proof. These captive disciplines, run from top to bottom by law enforcement, with the manufacture of their own accreditation agencies, professional associations and journals to bolster their existence and validity, are little more than convenient guesses and wildly baseless assertions of accuracy.

The problem, as Marvin pointed out, is that this evidence has been held admissible forever.  The commission went back to the beginning and found that on the scanty, unproven claims, carefully packaged to sound authentic but shockingly vapid to real scientists, judges adopted forensics disciplines. 

The best explanation for how this fiasco was allowed to happen is that lawyers and judges are particularly clueless when it comes to science, which largely explains how they ended up in law school.  Putative experts talked scientific jargon, everyone got bored and the next thing you know, fingerprints were conclusive proof. 

The problem now, and the strongest argument available to those who defend the admissibility of forensic evidence, is that it’s become embedded in the public mythology of science and they dare any judge to be the posterboy for tossing out proof that’s put defendants in prison for 100 years. 

Nonetheless, Marvin contends that it’s happening.  Just slowly.  And with judges like Nancy Gertner (ripping the failure of defense counsel to challenge Billy, the magical arson dog, in United States v. Hebshie), who unfortunately won’t be around on the federal bench much longer as she’s going to Harvard come September.  The problem, of course, is that while there may be a case here and there where a judge is bold enough to call out the prosecution’s proof, conduct a Daubert/Kumho Tire hearing and proclaim a forensic discipline the nonsense it is, it’s hardly the tidal wave one would have expected following the NAS report.

This report should have sounded the death knoll for phony forensic evidence, and judges across the country should have been outraged at having been played for fools by law enforcement all these years.  It hasn’t happened.  Not even scandals of the magnitude of  North Carolina’s crime lab have woken up sleeping judges.  The prosecution was right, judges don’t want to be the one to toss out 100 years of facile evidence and great CSI television.

The criminal defense bar, on the other hand, has yet to do its part in bringing this sordid chapter in phony science to a close, failing to educate itself on the myriad failings, lack of scientific methods, application flaws, inherent bias and internal self-dealing of the experts.  While judges are charged with being the gatekeepers, and have let in any piece of garbage that tends to incriminate a defendant, the defense has been less than vigorous in its challenge to forensic evidence, presenting motions that provide strong, perhaps incontrovertible, reasons why this beloved, long-standing evidence is phony now and always has been.

It’s hard work.  It’s daunting.  It takes time to learn, prepare, and pursue arguments against the use of evidence that we can fairly presume judges to ignore as they continue to do as they’ve always done, turn a blind eye to the fact that defendants are being convicted based on the mythology that’s grown around such sacred cows as fingerprints.  But if we don’t do it, do it continually and pursue it even though it may well be futile in any particular case, then we are complicit in the conviction of defendants based upon phony evidence.  Let’s face it, judges have not, and will not, seize upon the inadequacy of time-honored evidence of guilt on their own.  We need to push, and persist in pushing, if there is any hope of change.

For those who haven’t read the NAS report, which is a great educational tool for any lawyer who must argue a motion to preclude or cross-examine some phony prosecution expert, it can be purchased from the NAS.  And should Marvin be speaking in your neck of the woods, take the time to go.  It would be a shame for the NAS’s mistake of putting a criminal defense lawyer on the commission to go to waste. 

4 thoughts on “Fakes At The Gate: Challenging Phony Science

  1. Jonathan Edelstein

    At least in a Daubert jurisdiction, reliability is always at issue. The situation can be even worse in a Frye jurisdiction like New York, where once an appellate court has found that a “scientific” technique is generally accepted, lower courts must accept that technique forevermore. I once asked for a “reverse-Frye” hearing on microscopic hair analysis — had to cite a Maryland case to show that such a thing existed — and the court’s response was, in essence, “the Court of Appeals signed off on hair analysis in Allweiss, so there’s nothing I can do.”

  2. SHG

    Great point, since New York is a Frye jurisdiction.  Marvin’s position was that even under Frye was that the burden was still general aceptance within the relevant community, but that the relevant community was not comprised of those who are by definition adherents of the evidence.  In other words, if a bunch of polygraphers form the American Society of Polygraphers, start the Journal of Polygraphy and create the American Polygraphy Accreditation Society, it doesn’t make polygraphy any more or less accepted as they do not comprise the totality of the relevant community.

    The argument is that recognition, scientific knowledge and acceptance changes over time, using the flat earth as an example, and that general acceptance at one point doesn’t preclude subsequent change and correction.  If we can show that scientific knowledge has changed, then we should be entitled to challenge despite prior appellate approval.

  3. David

    For those who, like me, prefer to read the US v. Hebshie judgment without ads (albeit also without internal links), here is a link to the version from the court’s website.

    (I hope this is an acceptable use of a link in a comment – feel free to reject if not)

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