Loretta’s Gambit: Put Lipstick on Forensic Science

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.

lynch

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?”

10 comments on “Loretta’s Gambit: Put Lipstick on Forensic Science

  1. Austin Collins

    Consider adding a scientist to Fault Lines? In the same way well intentioned laypeople butcher legal issues, much to your ire/chagrin/consternation, your perspective on science, statistics, or forensics is often passionate but misguided.

    I, too, read the report. As a scientist I, too, was troubled by its findings. However, this post grossly misrepresents the findings.

    I’d be glad to recommend some well-credentialed folks should Fault Lines be interested.

    1. SHG Post author

      First, it’s probably unhelpful for you to start out by coming here as an asshole. Rather than be passive aggressive, saying I have grossly misrepresented something without saying what your qualifications are and what it is I’ve misrepresented, it would be better for you to be informative. You aren’t. I might have very much appreciated a worthwhile explanation here if I’ve made a misrepresentation. Instead, I get you being an asshole. That’s unhelpful.

      Second, FL is a crim law blog, not a science blog. While science is an occasional piece of crim law, it’s not crim law. Science alone has no place on FL.

      Third, why would I seek a recommendation for “well credentialed folks” from a person I don’t know, with unknown qualifications, and whose only known qualities are that he’s a passive aggressive asshole and his prior comments were largely dickish and contributed nothing of value?

      1. Austin Collins

        Some clarification:

        My response to your comment was in response to the comment I was e-mailed after opting to be notified of any follow-up comments-section responses. It appears you edited it substantially in the interim; so my second comment now seems somewhat nonsensical. It was aimed at the draft of your response that included more of you saying things such as “If I’m wrong, then tell me why and how you know. I’m happy to learn,” and less of calling me an asshole.

        As for the asshole bit, there’s little I can do about anyone choosing to read “didn’t want to write a wall of text on his phone” as being assholish. It was an offer to be helpful, because your posts so frequently mention journalists or bloggers not taking the time to avoid “make[ing] people stupider,” that I thought you might actually be happy to discuss the matter in more detail.

        I’m sure had I written the wall of text version, I’d still be an asshole — it’d just be for presuming that you’d spend so much of your time reading my response, with a few comments about people feeling they’re ‘owed’ something simply because you have a blog.

        All in all, easier to be an asshole for making blanket statements in an area of expertise and offering to help. Let me know if your comment flips back to the actually interested in the subject mood.

        1. SHG Post author

          You are a fascinating person and everyone appreciates a long comment from you that says nothing except to express your butthurt. It’s been fun.

    1. Myles

      Ignore that mean old SHG. I want to know all about you. Start with your birth. And start as many threads as you like. It will definitely be worth it.

  2. So Long

    Just turn off the goddamned comments, Scott. They add nothing and present you with ample opportunity to turn off people who would otherwise remain in your audience.

    1. SHG Post author

      About three times a day, I decide to kill the comments. And then someone writes something that’s funny or brilliant and I remember why there are comments in the first place. I’ve explained this many times before, but it seems it bears repeating as new people show up, unaware of what I’ve written before, and want to reinvent the wheel because it’s new to them.

      I have no control over who reads SJ and who comments. They know who they are, but I don’t. They know their background, but I don’t. They know what they’re trying to say, but many lack the capacity to write comprehensibly so that others have a clue what they’re trying to say. Many write in shorthand, as if we’re old friends and can read between the lines, but since we have no clue who this random person on the internet is, where they’re coming from, what they’re “real” perspective is, we are left to figure it out based on their words alone.

      Everyone who comments thinks they are bringing something worthwhile to the mix. If they didn’t, they wouldn’t write it. But they are having their conversation. Maybe they’re a rocket scientist. Maybe they’re a blithering idiot. Who knows? There’s neither an intelligence nor sanity test to get a keyboard. I read all the comments. I deal with them all, whether by responding or not. The commenters reflect less than 1% of readers, but I hear from a great many readers who don’t comment because they have nothing to add. One of the things they most appreciate about SJ is that it doesn’t allow commenters to hijack posts or to spew ignorance. A great many people are intolerant of stupidity, and they expect me to keep my house clean. I do my best.

      The commenters I offend with my failure to appreciate their genius sometimes come to realize why I write what I write and other times walk (or run) away. Some, like you apparently, feel compelled to inform me that you’re leaving, as if that somehow should factor into my decision-making. I don’t make anybody read SJ. I can’t stop anybody from reading SJ. And if it’s not to your liking, then you shouldn’t come here. I’m good with that. Other readers are good with that. If I piss off enough people and nobody reads SJ, then so be it.

      But your only vote is with your feet. If I’ve turned you off, then go. I’ll survive. The other readers and commenters here will survive. And you will survive too. But if you think it’s my job to recreate SJ to meet your sensibilities rather than mine, you’ve misunderstood what I’m doing here. It’s not about you. It never was and never will be. I wish you the best, and SJ will go on without you. Adieu.

  3. Chris Halkides

    Recommendation 7 from PCAST dealt with the language of court testimony from expert witnesses. I read both the guidelines and supporting documents provided by the DOJ dealing with presumptive and confirmatory testing for blood and semen. The guidelines were biased toward the prosecution, in that the expert would be allowed to say that confirmatory tests may fail due to lack of sensitivity. This was true when the Takayama test was the standard confirmatory test for blood, but the supporting document failed to mention that more modern tests, such as HemaTrace, are much more sensitive than previous tests. The supporting document also out of date in its discussion of false positives in presumptive blood tests, citing an article from 1953 suggesting that there were only a few substances which give false positives (data since then suggest otherwise). If the rest of the DOJs recommendations were similarly tilted in favor of the prosecution, then this is an area that deserves additional scrutiny.

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