In 2009, the National Academy of Science put out a report, “Strengthening Forensic Science in the United States: A Path Forward.” The TL;dr was trust nothing. It was all bullshit.
Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization — in other words, to “match” a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, the report says, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.
Following this monumental announcement from this most trusted of sources . . . nothing happened. Why is hard to say, but the upshot is that a few of us got excited, while the bulk of our nation, not to mention the Supreme Court, continued to love the cute doggies.
It wasn’t that there was “the problem” with forensic science, but a laundry list, from untrustworthy labs, dedicated to creating the veneer of looking official as they returned the result prosecutors needed, from grossly misrepresented accuracy (“to a reasonable degree of scientific certainty, the defendant is GUILTY, GUILTY, GUILTY!!!”), to well-intentioned but deeply flawed pseudo-scientific assumptions represented as actual science, to absolute nonsensical snake oil that had no scientific basis whatsoever.
There were phony forensic science disciplines, bolstered by phony in-house “academic journals.” There were studies wrapped up in statistics that were absurdly flawed, not that anyone gave a damn. There were cottage industries of really good expert witnesses who lied through their teeth for the good of society. To be blunt, forensice science was not reliable.
So naturally, judges let it all in, and defendants went to prison if they were lucky enough not to be executed. And now, there’s a new report that says, “well yeah, it’s all still bullshit.” Having put down the FBI lab scandal, the government’s response is that it’s fixed everything. Nothing to see here.
We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning,” Lynch said in a statement. “While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.
The FBI wasn’t quite as sweet about it.
The FBI in a statement said it “disagrees with many of the scientific assertions and conclusions of the report” and said the report “makes broad, unsupported assertions regarding science and forensic science practice.”
This reaction might be considered absurdly brazen given how the FBI couldn’t keep its own lab from serving up steaming piles of shit time after time, but what else could they say? But for the existing regime of faux forensic science, they would never be able to convict anybody. That would make Jim Comey sad.
But what hasn’t been widely broadcast is that AG Lynch has issued a memorandum to the troops in anticipation of the release of the White House report (what? you’re shocked she got a head’s up from the White House that her fiefdom was about to topple?) to give her a chance to manufacture a new, beautiful pink bow to wrap around the forensic science we’ve all come to believe so deeply.
Dated September 6, Loretta Lynch sent out a cautious memorandum to her troops.
It’s followed up by a DoJ “Code of Professional Responsibility For The Practice of Forensic Science.” The code is wonderful. It’s also complete crap on many levels. Foremost, it presumes that there is anything science-y about the very same forensics that have twice now been called bullshit by everyone not invested in convictions. But secondarily, to be remotely significant, there would need to be someone trustworthy to challenge whether a “forensic practitioner” violated the code, and consequences for doing so.
Nope. None of it. Warm and fuzzy words with nothing behind it.
But in fairness to Loretta, it wouldn’t be possible anyway. There’s no such thing as a “forensic science practitioner.” There are phrenology experts, and bite mark experts and duct tape experts, but no forensic science practitioner. Lose your “license” (as if there was a license) to practice “forensic science” and . . . you laugh about it over a beer with your friendly neighborhood fibber. Because it doesn’t exist.
What will exist, however, is this Code, that prosecutors can blow up to huge sizes and put in front of a jury. “See? You can trust our expert, because we have a Code!” Is there a familiar ring to this ploy? That’s right, it’s a variation on the gambit played when the government takes that heinous skel and turns him into the most truthful rat ever. That’s when they pull out the snitch agreement that says “you only get freedom and a kilo of coke if you tell the truth on the witness stand.”
See, ladies and gentlemen of the jury. The rat has to be telling the truth, or we wouldn’t give him his 72 virgins. It says so right here in our official cooperation agreement!
And the government’s forensics expert has to be telling the truth too, because they have a Code to live by, and no one would ever violate that code. And what should we anticipate out of our respected gatekeepers of evidentiary reliability? “Welcome to the courtroom. It’s always good to see you. How’s the puppy?”