Justice Mark Dwyer Won’t Quit On Science

New  York Supreme Court Justice Mark Dwyer tried. His decision in People v. Collins wasn’t merely one of the most thorough, not to mention metacognitive, efforts one will ever find coming from a judge trying desperately to honor the rigors of the Frye test for admission of expert testimony, but an effort to elevate a group of the least qualified arbiters of science, judges, above being patsies to the black box industry of forensic evidence.

So they put up a bronze statue of Justice Dwyer out front of the courthouse as a token of esteem? Not quite.

For this case, this court assessed whether developments in the community of forensic scientists since the Collins decision of July 2, 2015, should change that conclusion. For the reasons noted below, this court decided on October 16, 2017 that it should again exclude the challenged FST evidence. The court has continued reviewing developments as best it can in the period since, seeing no basis to re-think the conclusion that nothing has changed.

The decision was announced well over a year and a half ago. Even before that date, OCME discontinued use of the FST. Likelihood ratios for DNA mixtures are now calculated with a commercial product known as STRmix. After this court’s Collins decision, all three defendants pleaded guilty. This judge’s other obligations, and the lack of urgency that has resulted from the retirement of the FST, have long delayed this opinion. In the meantime, the overwhelming majority of New York’s trial judges considering the matter have disagreed with Collins‘ views on the FST, and the opinion is essentially a dead letter. One might ask: what is point of bringing up the FST issue in a 2019 opinion? (Emphasis added.)

The science is complicated, uses a lot of funky letters and requires an appreciation of science far beyond the ken of the average judge, lawyer, juror and cop. It seems very science-y, and all the people on the state side of the courtroom swear that it’s good, it’s real, it’s valid. Historically, that’s all it takes, because the reality remains that judges aren’t scientists and at some point shouldn’t let their curmudgeonly ways or scientific illiteracy stand in the way of progress.

Plus, progress serves to make the legal system feel as if it’s doing the right thing, because science is good, science can give answers where before there were none, science can nail down a conviction. Put a bunch of jargon-spewing guys on the stand to explain its validity and, boom, you’ve got a new sphere of expertise and the right guy in the defendant’s seat. What’s not to like?

Perhaps there is none. But several factors persuade this judge otherwise. First, many defendants convicted after trials in which the People introduced FST evidence may still wish to challenge the FST on appeal. To date, the several appellate decisions deferring to the trial courts’ exercises of discretion will not encourage them. Seee.g.People v. Degracia, 173 AD3d 1199 (2d Dept 2019); People v. Easley, 171 AD3d 785 (2d Dept 2019); People v. Gonzalez, 155 AD3d 507 (1st Dept 2017). But perhaps this opinion, whether or not likely to change a result, should be available to future appellants.

Second, this judge has been distressed by unfair attacks on witnesses who testified for the [*2]defense at the Frye hearing in Collins. The witnesses are very accomplished scientists, and it is unlikely that they spend their weekends worrying about what New York trial judges think of them. Still, a rebuttal for the record is in order.

Third, in 2016 the President’s Council of Advisors on Science and Technology (“PCAST”) published an extremely valuable report on the use of forensic science in court cases. Among the techniques discussed was DNA mixture analysis. The report has since been unfairly and sometimes nonsensically attacked by litigants and judges. Contrary views on those attacks may be of substantial interest to New York courts hearing similar attacks on the report as to DNA analysis, and also other types of forensic evidence, in the future.

Fourth, there is also the prospect, likely or not, that this judge’s views may in the future influence other trial judges considering how to decide Frye issues about forensic science that are unrelated to the FST.

Justice Dwyer’s analysis of the efficacy of the science is, to be frank, not the most fascinating reading for a non-scientist, and no doubt wasn’t nearly as much fun for him to write as, say, an opinion in iambic pentameter referencing the Rolling Stones with emojis in footnotes. But he did the work, because the work needed to be done and no other judge showed the fortitude to do so.

Justice Dwyer’s point here, which isn’t really directed at FST or any other novel approach to scientific testimony, is that the law has historically allowed junk to masquerade as science (think bite marks) because some jargon-talking guys said so and judges weren’t up the to task of deciding, and may not have been particularly inclined to hold that junk forensics which facilitated convictions were, you know, junk.

It wasn’t fun duty. He wasn’t going to win the Learned Hand Prize for spending the time and effort to do it in Collins, for which the “no good deed” adage was invoked with a vengeance. But he did it because he took his duty as judge with the seriousness that he would not get tired, bored, frustrated with all the mumbo-jumbo so as to ultimately let junk slip into the courtroom on his watch. If the state wanted to get its science in, the state had to pass muster under Frye. Serious muster. Real muster. Not the Daubert-type sham of “well, ten of our closest pals swear that it’s true, and that should be good enough for you, you science-dolt judge.”

A million words have been murdered fighting junk science in the courtroom, and its consequences on the lives of the wrongfully convicted because some black box said they were guilty. But the real fight is before junk is embraced with loving arms. Justice Mark Dwyer has persisted in fighting against it. There may be no bronze statue of him in front of 100 Centre Street, but the very least I can do is build a virtual one here to recognize a judge who holds the prosecution’s introduction of science calculated to assure conviction to the test.

Justice Mark Dwyer, without robes.

5 thoughts on “Justice Mark Dwyer Won’t Quit On Science

  1. Chris Halkides

    Dan E. Krane and Simon Ford wrote, “When it is necessary to invoke drop-out (and/or) drop-in for test results to be consistent with a case, it is critically important that both the numerator and the denominator be fully disclosed; yet, some probabilistic approaches currently provide only the ratio of the two likelihoods.”

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