If we’re going to have a national conversation about criminal justice reform, we need to talk about the uses and abuses of scientific evidence.
As we’re learning in Travis County, Texas — scientific evidence is highly persuasive, technically-inscrutable, and yet, often completely bogus:
Criminal cases in Travis County may be soon be under review. According to the Department of Public Safety, the method used when testing DNA mixtures at the Texas DPS Crime Lab back from 1999 until August of 2015 was basically spitting out the wrong statistics. That means any case that used this testing in the last 16 years could be up for new testing and review.
Chris Perri has been a criminal defense attorney for more than 10 years.
“I have never yet seen anything like this. I think it was kind of huge news when it came out, because in my mind, that’s the hardest thing to combat as a criminal defense attorney is the scientific evidence,” Perri said.
He already has one case approved to be up for review, after the crime laboratory was found to be giving inaccurate probabilities. He said juries rely on scientific evidence.
“When the scientists came on the stand, they’re like ‘oh, this has to be true.’ So if the scientist says, if this defendant cannot be excluded from the DNA mixture we tested and there’s a one in a million chance that somebody else at random could also match that, that’s pretty powerful stuff. So if you later find out the scientific testing was wrong, I think it’s very concerning because juries were hanging their hat on that.”
Meaning 16 years of criminal cases in Travis County that used this testing could be under review.
“I think this DNA revelation is really mind-blowing. I mean you’re going to find hundreds, thousands around this country that are going to have to be retried or we are going to have to let people out if they were wrongly convicted,” Houston State Senator Rodney Ellis, who’s also a chair for the Innocence Project, said, adding we have not been willing to invest enough money into the science of making sure that we get it right. “You want to make absolutely sure that if you’re going to take someone’s liberty, it’s the right person.”
Here, at least, the scandal seems to have been carelessness and lack of scientific rigor. I was practicing law in the Houston metro area though when the Harris County Crime Lab scandal was going on. And so I am not shocked, but saddened, to see that there seems to be a national epidemic of willful wrongdoing by forensic scientists (not just snafus).
Slate’s Dahlia Lithwick makes the case:
Earlier this year, I wrote about a sprawling prosecutorial scandal in Orange County, California, involving a long-standing program of secret jailhouse snitches that had tainted prosecutions in cases almost too numerous to count. This story has only continued to worsen. One of the prosecutors at the heart of the case simply packed up and left California last month, and just this week the news emerged that Orange County District Attorney Tony Rackauckas had been told that his office might have a jailhouse informant problem all the way back in 1999, a full 16 years before the current allegations about the misuse of jailhouse snitches had surfaced.
The problem with a scandal on this order of magnitude isn’t just that it reflects a fundamental flaw in the justice system. The problem is that, as a purely practical matter, there is simply no easy way to correct it. In Orange County, some convictions have been tossed, others have been stalled, and a call for a Justice Department investigation has gone unheeded. Even years after cases like this come to light, undoing or redoing wrongful convictions proves almost impossible to achieve, especially when the state believes someone else should be cleaning up the mess.
Perhaps the most dramatic example of a massive scandal that cannot seem to be reversed involves Annie Dookhan, a chemist who worked at a Massachusetts state lab drug analysis unit. Dookhan was sentenced in 2013 to at least three years in prison, after pleading guilty in 2012 to having falsified thousands of drug tests. Among her extracurricular crime lab activities, Dookhan failed to properly test drug samples before declaring them positive, mixed up samples to create positive tests, forged signatures, and lied about her own credentials. Over her nine-year career, Dookhan tested about 60,000 samples involved in roughly 34,000 criminal cases. Three years later, the state of Massachusetts still can’t figure out how to repair the damage she wrought almost single-handedly.
The growing number of crime-lab scandals seems to me to reflect a serious dysfunction in the character of law enforcement and prosecutors. Forensic evidence isn’t the only front in that battle. We have prosecutors withholding evidence (here, here for two recent high-profile instances in Texas). When Ken Anderson went to jail for that, it was a true man-bites-dog-story.
Furthermore, we have appellate judges who just don’t seem to care what the evidence is. There are good reasons to believe that Texas has executed innocent men – Cameron Todd Willingham’s case being only the most picked-over – and the reaction seems to be — don’t even try to gather potentially-exculpatory evidence.