Some thought that poor Merrick Garland, former judge from whom a Supreme Court seat was stolen by the Republicans, would be the hero attorney general of their dreams. After all, he was Obama’s nominee and the maligned soul who launched a thousand SCOTUS tears.
But when it came time to decide whether prosecutors under his auspices were any more ethical, more reliable, more honest, Radley Balko discovered that the more things change, the more they stay the same.
Late last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for the FBI Crime Lab.
Forensic firearms analysis? Strike a bell?
For years, forensic firearms analysts have claimed the ability to examine the marks on a bullet found at a crime scene and match it to the gun that fired it—to the exclusion of all other guns. It can be powerfully persuasive to juries. But over the last decade or so, some scientists have cast doubt on the claim.
The most damning criticism of the field came in a 2016 report by the President’s Council of Advisers on Science and Technology, or PCAST, which found that “firearms analysis currently falls short of the criteria for foundational validity,” and that the studies the field’s practitioners often cite to support their work are poorly designed and “seriously underestimate the false positive rate.”
It was a damning report, which magically changed nothing after its issuance. There was some creep into the courtroom by a few judges who cared about science, but what little resistance to junk appeared was fought hard by its proponents, law enforcement and the industry feeding on junk science.
After decades of deferring to these forensic analysts, a handful of judges started to heed the warnings from scientists, and have put limits on what some forensic witnesses can say in court. Those decisions have sparked a defensive backlash in the forensics community, along with rebukes from law enforcement officials and prosecutors.
But wouldn’t Garland do better, be better, and end the blight of junk science in the courtroom?
Agar’s document is part of that backlash. In the two-page handout, Agar instructs firearms analysts on how to circumvent judges’ restrictions on unscientific testimony. He even suggests dialogue for prosecutors and analysts to recite if challenged. Most controversially, Agar advises analysts to tell judges that any effort to restrict their testimony to claims backed by scientific research is tantamount to asking them to commit perjury.
To put it more bluntly, Agar was teaching firearms analysts how to lie to get judges to admit their lies.
Agar’s document was so volatile, it was upbraided by the Texas Forensic Science Commission (TFSC). That agency—the only one of its kind—was formed in the wake of revelations that bogus expert testimony likely caused the state to convict and execute an innocent man, and is tasked with ensuring that expert testimony given in Texas courtrooms is scientifically valid. The TFSC called Agar’s advice to firearm analysts “irredeemably faulty,” and stated that it “runs counter to core principles in science.”
When your scam is called out by the Texas Forensic Science Commission, there is a good chance you’ve crossed the ethical Rubicon.
“This is just really unbelievable,” Ellen Yaroshefsky, a professor of legal ethics at Hofstra University, told The Daily Beast after reviewing Agar’s memo. “He’s encouraging false testimony and he’s undermining respect for the judiciary. I mean, he’s saying that if a judge says you can’t give unscientific testimony, you’re being forced to commit perjury? It’s just absurd.”
It’s not just that the “science” of firearms analysis hasn’t been shredded by PCAST for being unscientific, but that this has been known for years and neither prosecutors nor the pseudo-experts they put on the stand to lie care. Sure, judges could stop it, and some do, but that would require them to both know the science and have the fortitude to reject testimony that most other courts admit with a nod and wink. How many judges are quite as smart and bold as now-retired Justice Mark Dwyer?
But this doesn’t come from Loretta Lynch, despite her having the characteristics we’re told these days would change everything, and certainly not from any of the Trump attorneys general, even if Bill Barr’s taking the job still makes no sense. This is Merrick Garland’s DoJ, and he was supposed to be the good guy, the reformer, the progressive attorney general who would never allow his minions to teach forensic analysts how to lie to get their junk science into evidence to falsely convict the innocent.
Wipe away those tears. As Ellen says, “it’s just absurd,” but it’s Garland’s absurd.
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You bastard, raising my hopes that somewhere inside that social justice warrior the old Agitator still lives, the man who cared more about facts and reality than crying tears for oppressed. How dare you toy with my feelings this way!
If I may, a personally anecdotal and somewhat (mostly?) tangential-to-the-posts comment…(Boss,if it’s too far out, you know what to do.)
I got in an argument with someone who watched too many old crime movies and those sick, morbid forensic TV shows, and believed the ‘every bullet is a snowflake’ bullshit…or as they say now, “The Science”.
The following was my argument.
A few of the many jobs I’ve had (can you say ‘musicians resume’?) were in machine shops. Two were high precision parts, bearings and automotive brake systems. (we’re talking tolerances like +.0000/-.0003) Between the demands of the inspection process (microscopes and comparitors), and the fact that a properly set up Swiss screw machine could spit out a part every 30 seconds, you could run good parts for up to 16+ hours.
Good parts from one machines run were literally indistinguishable from each other.
That was 35 years ago.
Now I know gun barrels and bullets aren’t quite as precision, but with modern CNC’s you can hold tight tolerances very consistently and produce thousands+ of identical parts.
OK. Got that?
Now take those two precision parts and launch the one (made out of a softer material) out of the other (made of hardened material) at 1500 to 3500+ feet per second, and smash the living fuck out of it into practically anything….AND THEN, tell me a PAID “expert”, hired by a highly motivated, highly biased fool with a passion for ‘getting their man’, can tell me with 100% certainty, which gun the bullet came from.
That, folks, is truly absurd.
I saw that some comments were posted earlier that were so bizarre that I couldn’t understand why you allowed them. I see now they’re gone.
This place is getting a little out of hand without your gentle nudge to calm down the crazies. I just didn’t want you to think no one noticed. I also note that there are now a lot more non-lawyer comments than lawyer, and I suggest there might be a reason for that. And it’s not a good reason.
You can tell who is a lawyer and who isn’t just by what they say? That’s a cool trick.
It’s always been a “little out of hand”. I’d just like a little more guidance on which moles to whack and how hard so that Sarge’s panties don’t bunch up. Other than that, we’ve been abandoned to this. Best try to make lemonade instead of begging him to come back.
I appreciate that this is your shtick, but do you really think it’s helping? When SHG decided to see whether we could police ourselves so he wouldn’t have to be the bad guy and smack the nutjobs upside the head, some like Sarge did what they could to make this place better and Scott’s job easier.
Sometimes you seem to want to help. Other times, you write something asinine like this. And here we are, having nothing to do with the post and arguing about whether you’re part of the problem or solution. Which is it, PK? Maybe come out of character once in a while and try to contribute something useful here.
Hmm…guess I should just stick with songs.
I know I’m one who needs a slap once in a while. Thanks Miles.
In the scheme of people contributing to the joy of SJ, you still do far more than most so you get cut the slack you earned. Others, not so much.
Next you’re going to tell us phrenology isn’t real science either…
“It was the myth of fingerprints . . . I have seen them all and they are all the same”
(More or less) Paul Simon
It has been known since the 80s that rifling on Glocks and any weapon that uses polygonal rifling aren’t capable of being matched by the grooves on spent bullet. And pattern match comparisons, whether they’re ballistic, tool mark, or fingerprints are as only reliable as the examiner. Even AFIS fingerprint matches have to be confirmed by a person. 2 party authentication would probably be a good step toward preventing false positives.
And as we’ve seen in other areas, the FBI’s reputation has suffered the last several years.
I was trying to make a felon in possession case once and had the thumbprint on the ATF form 4473, along with his drivers license information. Neither of my agencies examiners would call the thumbprint a match to his prints on fine. I was pissed in a way; but I admired that even though they knew it was the bad guy’s print, they wouldn’t call it without enough points of comparison.
In the conclusion to a chapter on this subject, Sarah L. Cooper wrote in part, “First, research shows allegedly diluted testimony is meaningless, ineffective for deterring jurors from “matching” defendants with suspect evidence and confusing. Second, the courts’ marginalization of criticism aimed at firearms identification evidence serves to illustrate how the legal process can fail to account of the nature of scientific inquiry by demanding impossible conclusions, injecting certainty into uncertain observations, and ignoring the testing and retesting nature of the scientific process and the provisional nature of its products.”