The Problem With “Experts”

The once-agitator, Radley Balko, wrote a critically-acclaimed and critical book about junk forensic science called “The Cadaver King and The Country Dentist: A True Story of Injustice in the American South,” dealing with bite mark testimony and its allegorical relationship to who and what gets admitted into expert evidence to lock down convictions when there is little to no actual evidence otherwise.

This issue is huge, both from the significance in the courtroom to its lack of significance as science. Working off this focus, Radley is doing a series of reports, “a six-part online symposium on the use of forensics in the criminal justice system.” 
Ten years ago, the National Academy of Sciences (NAS) published a groundbreaking study on the use of forensics in criminal trials. The study found that, in the “pattern matching” fields of forensics in particular, expert witnesses had been vastly overstating the significance and certainty of their analyses. For some fields, such as bite-mark analysis, the study found no scientific research at all to support the central claims of practitioners.

Since then, other panels populated with scientists have come to similar conclusions, including the President’s Council of Advisors on Science and Technology and the Texas Forensic Science Commission. In 2013, Congress and the Obama administration responded to these reports by creating the National Commission on Forensic Science, a panel of lawyers and scientists charged with coming up with standards and protocols in these fields. The Trump administration then allowed the commission’s charter to expire in April 2017.

The final sentence is both huge and trivial. It reflects the affirmative refusal to pursue correction and improvement in forensic science, but as the prior panels and reports made overwhelmingly clear, it’s not as if there were questions still in need of answers. It was already established, beyond serious doubt, that what passed for science in the courtroom was a steaming pile of fabricated junk, sometimes close to legit but grossly overstated in its reliability, and other times manufactured by cottage industries of fake experts whose dual purpose was to get paid and convict defendants, innocent or guilty.

As each of these panel’s reports were studiously ignored, denied or refuted by the overwhelming argument, “but without it, we’ll never be able to convict anyone,” the solution wasn’t to attack junk science in the courtroom but to throw another panel. Just because the last report, overwhelming and scientifically irrefutable though it may be, failed to move the needle, maybe the next one will do better.

And then, the last panel’s time expired under the auspices of the man who knows more than the generals scientists, and so Radley picked the ball out of the mud and is trying to run with it. He has put together his own panel of “experts” for his symposium.

  • Simon A. Cole, Department of Criminology, University of California at Irvine; Law & Society; National Registry of Exonerations
  • John Lentini, fire/arson expert
  • Frederic Whitehurst, FBI crime-lab whistleblower; Forensic Justice Project
  • Sandra Guerra Thompson, University of Houston Law School; Houston Forensic Science Center
  • Chris Fabricant, Innocence Project
  • Itiel Dror, University College London; Cognitive Consultants International
  • Jules Epstein, Temple University Beasley School of Law; National Commission on Forensic Science
  • Barbara A. Spellman, University of Virginia Law School
  • Roderick Kennedy, retired judge, New Mexico Court of Appeals
  • Roger Koppl, Forensic and National Security Sciences Institute, Syracuse University
  • Michael Risinger, Seton Hall School of Law; Last Resort Exoneration Project
  • Judy Melinek, forensic pathologist; author of “Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner
  • Brandon L. Garrett, Duke University School of Law
  • Keith A. Findley, Center for Integrity in Forensic Science; University of Wisconsin Law School

All of these “experts” are accomplished, knowledgeable and well-regarded. But for all their organizational relationships, achievements and academic virtues, there is one thing glaringly missing from this list of “experts.”

See a criminal defense lawyer in the bunch? See a trial lawyer in there? Not someone who once tried a case years ago and has since gone legit by getting a named chair in the academy, but a gunslinger, a gladiator, a trial guy who gets dirty in the trenches trying to convince a judge to not allow some prosecution forensics monkey to spew his nonsense. The guy who has to persuade a jury that the “expert” with 27 articles published in the Journal of Forensic Duct Tape, circulation 12 including his mother, isn’t really an expert after the judge pronounced that he most assuredly is or his testimony wouldn’t be allowed.

Where is that lawyer?

This is the point where every non-lawyer shakes his head in amazement; the solution seems so obvious, duh. The defense should just call its own expert, an even cooler expert than the prosecution’s, to rip the poseur to shreds. But if there were a lawyer amongst these well-credentialed experts, he might explain that there are three problems with this obvious answer.

The first is theoretical, that the judge won’t let the defense call an expert for the purpose of refuting the science at issue or the qualifications of the expert called to testify. It may be material, but it’s not relevant, as it fails to pertain to the specific case on trial and offers merely a generic refutation of the expert evidence. Remember, the prosecution’s expert evidence has been used, and admitted, a few thousand times before, and upheld on appeal. There’s precedent.

The second problem is that experts, real experts, are hard to find and harder still to get. Call a few dozen academics and see how many are willing to chat about the case, write a report, get on a plane, be the person who challenges an industry that puts food on their table. There’s another problem, that their absolute certainty on the phone, assuming they take the call, turns into jello on the stand when they’re put to the test.

The third problem is hard-core realism. Experts want to be paid, and want to be paid a lot. As empathetic as they may be in articles and at faculty meetings, they have no problem adding zeroes behind whatever number they pick. And the defense rarely has the money to make them smile.

It’s wonderful to continue to raise the problem of junk science in the courtroom, and I applaud Radley’s persistence in trying to end wrongful convictions based on phony forensics. But we’ve already established that the science sucks, and yet nothing has changed in the trenches. Too bad there’s no one on his panel of “experts” to say so.

32 thoughts on “The Problem With “Experts”

  1. Fyodor

    According to his bio Chris Fabricant spent a decent amount of time as a defense attorney and I assume from his job, is still involved in overseeing the work of others.

    1. SHG Post author

      He’s a wonderful fellow, no doubt, and I’m sure he’s very smart and well-intended. He’s not a trench lawyers. Not even a little bit. What compelled you to make the first comment as ignorant, worthless and counterproductive as humanly possible, however, is a mystery.

      1. Fyodor

        Thank you for your feedback. I look forward to continuing this productive dialogue with you.

        1. SHG Post author

          To have a productive dialogue, you would have to have something minimally useful to contribute. You don’t. See the pink button on the sidebar? It’s there for you. Or there’s always reddit.

        2. David

          The sum total of his actual courtroom experience is 3 years as a PD, during which time it’s relatively likely that he’s never tried a felony case to verdict before a jury. Not one. That’s how a lawyer would see it. You’re not a lawyer, which is why your comment was dumb and unappreciated.

            1. David

              I suspect she either thinks 3 years experience is what you were talking about in this post or just sufficient experience to be even remotely relevant. I don’t think she understands, or at least no better than Fyodor.

            2. SHG Post author

              Ah. If that’s what she’s talking about, I assumed it was too obvious to require explanation.

  2. Chico

    Sometimes the cost can work in your favor, especially if you’re doing indigent defense. The issue of expert testimony always arose in “possession with intent,” “school zone” and “trafficking” cases, in which the prosecution would want to certify your “Drug Control Unit” officer as an expert in the amount of drugs which established the intent to possess. E.g. “these small five rocks of crack show that he was a seller.”

    A Motion for Funds for a defense expert would sometimes result in some judicial arm-twisting of the prosecutor. “How much is he [the defense forensic toxicologist] charging? $400 an HOUR? I don’t need someone getting $400 an hour to tell me that guy smokes a lot of weed. I can see that looking at him. Reduce this to simple possession.”

    Incidentally, it was in these cases where I saw the most dramatic racial discrepancies in charging. Black guys would get charged “with intent” for as little as four rolled joints.

    1. SHG Post author

      Sometimes, though this is about forensic science, not expert testimony in general. That said, indigent defense has some peculiarities, both because it differs in practice from place to place (since no one knows who you are or where you’re from, your comment about local practice does little to inform and much to confuse non-lawyers, who may not realize that your experience isn’t necessarily the norm) and because you don’t have to pay for it or get the client to cough up the dough.

      Then there’s the problem of dealing with petty cases (four rolled joints) versus murders. Judges tend not to be so inclined to tell the prosecution to reduce the charges to manslaughter to save a few bucks when a family of four is slaughtered.

  3. Richard Kopf

    SHG,

    There is a role for judges if they want to get involved. The Court Appointed Scientific Experts (CASE) program of the American Association for the Advancement of Science and Engineering will help get judges their own experts to help the judge deal with other so-called experts. Rule 706 of the Federal Rules of Evidence allows judges to appoint their own experts.

    I have used CASE once in a civil case and was impressed with their willingness to help. Unfortunately, both sides asked that I refrain from appointing my own expert so I caved. Nonetheless, I heartily recommend that judges get more involved when confronted with experts promoting weird science.

    All the best.

    RGK

    1. SHG Post author

      That raises an entirely different problem, since the court’s “neutral” expert ends up being the “real” expert, even if the expert isn’t quite so expert or quite so neutral. But the judge does have a role to play as gatekeeper. Who will be the judge to finally call bullshit on dog hits being sufficient for probable cause, knowing with absolute certainty that they’re bullshit and he will be reversed anyway?

      1. B. McLeod

        Well, if you could get Mr. Peabody to take the stand and testify to that, I think any court would have to give that credence.

      1. losingtrader

        He’s still beating people up?
        No wonder when I was 10 Mom told me I’d better not turn out like my cousin Sol.

  4. Radley Balko

    Chris Fabricant worked for the Bronx Defenders. As you know, that organization does trench-level criminal defense for indigent clients. He also tried cases while running an indigent defense clinic at Pace University Law School. He now does post-conviction work for the Innocence Project, but the issues you mention are just as relevant at that level.

    Keith Findlay is also a former public defender. He has also litigated hundreds of cases while running an Innocence Project and law school legal clinics. Judge Kennedy has worked both as a prosecutor and a criminal defense attorney. Garrett and Epstein have also litigated lots of cases, though mostly at the appellate and post-conviction level. But again, many of the issues you mention come out in post-conviction. You can’t handle hundreds of appeals dealing with bad forensics and not be aware of the problems at the trial level.

    Finally, I’d add that the very issues you mention are discussed by several panelists in the remaining installments of the series.

    1. SHG Post author

      Every lawyer here with 10, 20, 30 years is shaking their head at three year PD experience. We don’t “litigate.” We try cases. We’re the people who fought these battles with judges, who crossed these “experts,” who argued that they were full of shit to juries, hundreds and hundreds of times. We’re the ones who held the defendant’s hand when the jury came in, when their spouse or mother cried on our shoulder when it was one word because they believed the lies. And you know the difference.

      And you know plenty of serious experienced lawyers who you could have asked to participate in your symposium as well. I’m sure they would have been more than happy to contribute their views.

    2. David

      One question: How many felony cases involving a forensics expert have been tried to verdict by the people on the panel?

      That seems like a pretty important question.

      1. SHG Post author

        Had it just been trial lawyers, it would have been missing a huge dimension from the post-conviction perspective. But the absence of experienced trial lawyers from the mix loses a critical dimension as well that neither academics nor post-conviction litigators can offer.

    3. Ron

      You were one of the smartest, most reliable and most respected voices in critical crim law issues, and yet you offer this tepid excuse rather than face the glaring hole in your choices. And you have the gall to do so here, where real lawyers hang out, even if there are a handful of clueless dolts as well.

      The Agitator dealt with the ugliness of reality, and he didn’t hide behind academics and cause organizations and bullshit excuses. The Agitator was tough and real, just like the problems he addressed. The Agitator is gone. I will miss the Agitator.

  5. Thomas

    Frederic Whitehurst is actually a criminal defense lawyer as well. He’s been doing that in North Carolina for quite a few years now. But because that’s obviously not the reason he was selected, your point stands.

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