“At present, forensic science is virtually unregulated – with the paradoxical result that clinical laboratories must meet higher standards to be allowed to diagnose strep throat than forensic labs must meet to put a defendant on death row.” – Eric Lander, molecular biologist

Eric Lander, an MIT professor who pioneered in genome research, wrote those words in 1989, the same year that DNA testing was first used to prove the innocence of an American convicted of rape. Since then, DNA evidence has helped to exonerate 244 men who spent more than 3,000 cumulative years in prison for crimes they did not commit. About 60 percent of them were convicted on the basis of flawed forensic evidence. It would be comforting to think that DNA testing utterly transformed the landscape, but such is not the case. Lander’s observation is still true. DNA testing is possible only for a minority of violent crimes, and even DNA analysis has been shown to be flawed or fraudulent in some laboratories. The problem has reached crisis proportions that has attracted the attention of Congress, with Senate Judiciary Committee hearings held in September 2009. There is no equivalent to the National Institute of Health to sponsor research on forensic methods. There is no forensic FDA to monitor products. Why? The answer is simple. We care about our health, but few are concerned about prisoners or those accused of crimes – that is, until it happens to someone we know, or to us. Millions of people watch the scientific legal/medical thriller television show, CSI: Crime Scene Investigation, and its spin-offs, in which intrepid forensic specialists solve crimes again and again through logic and modern technology. These shows convey a comforting message – that these crime scene investigators are nailing the right people, capturing criminals and preventing them from harming others. But television is not real life, and all too often forensic specialists have come to wrong conclusions based on bad science involving hair, bite marks, supposed arson, shoe prints, blood, gun ballistics, fingerprints, handwriting analysis, and other methods. Even worse, they sometimes intentionally suppress or misrepresent evidence that would clear an innocent suspect. Most crime labs are run out of police departments and consider themselves part of the prosecution team. Especially in high-profile, emotionally laden crimes such as rape, murder, and child molestation, there is a great deal of pressure to capture and convict the perpetrator, and once such a suspect is identified, prosecutors rarely admit having made a mistake. Many such defendants are poor and uneducated, and their attorneys are underpaid, overworked, and sometimes incompetent public defenders. Rarely is there funding for a forensic expert to testify for the defense. False convictions cross every socio-cultural line, and even affluent innocents who can afford private lawyers have suffered the same fate because of misleading forensic scientific evidence. When defense attorneys object to misrepresentations of prosecutor’s expert witnesses, judges routinely overrule the objections. Appellate courts uphold most convictions, even when the forensic science was clearly faulty, calling it “harmless error.” Our adversarial legal system is broken. The playing field is anything but level. And juries are particularly trusting of “experts” who testify that they know that the accused man in the dock did it, because his teeth made that bite mark, his fingers left that print, his gun shot the fatal bullet, or he lit the gas that torched the house. DNA evidence has now proved that many of those convicted because of faulty forensic science were innocent. Yet the same flawed methods continue to be used in the vast majority of cases in which there is no available DNA evidence. And even DNA can be improperly analyzed and presented. Few people are aware that our legal system is so imperfect. Most of us trust that only “bad guys” are caught, prosecuted, and convicted. Sure, there are a few tragic exceptions, we think, but in general, we have the best legal system on earth. And forensic scientists are particularly trusted because of their specialized expertise, and because science can supposedly prove things beyond any doubt. Such is indeed the case with good DNA evidence, but it is not true of most other forensic methodologies. Yet there is a human tendency for “experts” (some of whom have only high school educations) to overreach, to jump to conclusions, to misrepresent statistical information, and to offer themselves as infallible scientists explaining their arcane knowledge to jurors. Many studies have shown that “confirmatory bias” – in which expectation affects interpretation – contributes to skewed results, and such bias is inevitable when forensic laboratories are housed in police departments rather than serving independently. In 2005, Congress recognized this sad state of affairs and commissioned the National Academy of Sciences (NAS) to create a committee to investigate the lamentable state of forensic science in the United States. In February 2009, the committee published its report, Strengthening Forensic Science in the United States: A Path Forward. Introducing the findings to Congress, co-chair Harry Edwards, a judge for the U. S. Court of Appeals in the District of Columbia Circuit, offered a remarkably candid summary: Unfortunately, the adversary system, and its highly partisan approach to the submission of evidence in court, is not well suited to the task of finding “scientific truth.” The judicial system is encumbered by, among other things, judges and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner, defense attorneys who often do not have the resources to challenge prosecutors’ forensic experts, trial judges (sitting alone) who must decide evidentiary issues without the benefit of judicial colleagues and often with little time for extensive research and reflection, and very limited appellate review of trial court rulings admitting disputed forensic evidence. Then his co-chair, Constantine Gatsonis, a biostatistics professor at Brown University, focused on scientific methodology. “An unfortunate corollary of the low level of research and evaluation in many of the forensic disciplines is a tendency to consider and present the results of analyses as free from error. Such a disposition would be unthinkable in the context of scientific research and practice.” The NAS report, after noting the disorganized nature of the forensic discipline, its chronic underfunding and case backlogs, its lack of research and scientific training, and its reliance on flawed methodologies, called for the creation of a National Institute of Forensic Science (NIFS) to establish standards, promote scholarly peer-reviewed research and technical development, to fund state and local forensic agencies, to oversee education standards and accreditation, and to improve the understanding of forensics within the legal system. The otherwise fragmented forensic science community has united in opposition to the creation of the NIFS. The Department of Justice is opposed to it. Senator Patrick Leahy, chair of the Senate Judiciary Committee, made it clear in his introductory remarks during hearings that he would skirt the NIFS issue. Thus, it appears unlikely (especially in the climate of a recession) that any major reforms will change the current system. Thousands of innocent people are almost certainly incarcerated, and their cases will probably not be reviewed. Others will continue to be accused and convicted based on flawed forensic science. And CSI will continue to attract viewers who are misled into believing that the show presents a realistic portrait of criminal laboratories.

–Mark Pendergrast

The Shape of Crime Scene Injustice

Crime Scene Injustice will be a relatively short book, no more than 100,000 words. After an introduction (based on the overview above), each chapter will focus on a particular type of flawed evidence, using one case and its innocent subject as a way to highlight the issues. Other cases will also be discussed and experts quoted, but the focus will be on one particular case. An article in The New Yorker on flawed arson evidence, “Trial by Fire,” by David Grann (September 7, 2009), offers a compelling example of how I intend to approach such subjects by using a particular case to make a general point (i.e., arson investigations often rely on misinformed folklore rather than science, using “crazed glass” and “pour patterns” to prove non-existent arson). I may use this same arson case because the suspect was executed, but there are plenty of others.

Thus I might use the case of Jimmy Ray Bromgard as an exemplar of the problems with hair comparison evidence. On March 20, 1987, someone broke through a bedroom window in Billings, Montana, and raped an eight-year-old girl anally, vaginally, and orally. He fled with a purse and jacket. Based on a composite drawing made from the victim’s description, Bromgard, 18, was added to the police line-up. The girl identified him, though she wasn’t sure, as she testified during the trial.

The semen on the underwear could not be typed, so the primary evidence against Bromgard involved head and pubic hair found on the bed sheets. The forensic expert, Arnold Melnikoff, testified that the hair was similar to Bromgard’s. Then he went further: “The odds were one in one hundred that two people would have head hair or pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of both head and pubic hair from two people being indistinguishable would be about one in ten thousand.”

Melnikoff’s testimony led to Bromgard’s conviction. In 2002, he was exonerated after the Innocence Project took on his case, leading to DNA testing of the semen on the underwear, which excluded Jimmy Ray Bromgard. After spending fourteen and a half years in prison, he was finally a free man at the age of 32.

I have not yet interviewed Bromgard or others exonerated by DNA evidence, but their stories will be riveting, as anyone who has seen the documentary After Innocence (2005) knows. I will also make the point that, although Melnikoff then became notorious for having made outrageous findings in other cases, he was not just an unusual “bad apple.” Hair evidence has been widely used in courtrooms all over the country, despite a complete lack of research or scientific validation.

False hair comparisons have continued to put innocent people in prison, long after DNA should have rendered it obsolete. Thus in 1993 Timothy Durham, whose family owned a chain of Oklahoma radio stations and hardware stores, was convicted of the rape of an eleven-year-old girl based on inconclusive hair evidence.

I will do the same with chapters on other methodologies such as fingerprints, arson, shoe prints, serology, and ballistics. Although I will rely on several cases in which innocence was proved by subsequent DNA testing, I may also choose other cases. For fingerprints, for instance, I may use the case of Brandon Mayfield, a lawyer in Portland, Oregon, who was identified by the FBI as a prime suspect in the Madrid train bombing of March 11, 2004, which killed 191 people. Mayfield had converted to Islam after marrying the Egyptian daughter of a college professor. Spanish authorities found fingerprints on a bag containing detonating devices, and the FBI identified them as Mayfield’s prints, “100% verified.” They were wrong. On May 19 Spanish authorities announced that the fingerprints actually belonged to Ouhnane Daoud, an Algerian. Mayfield was released from prison only after the story broke in the press.

For ballistics, I may select the case of James Earhart, a Texas man convicted in 1991 of murdering nine-year-old Kandy Kirtland on the basis of comparative bullet lead analysis that made the jury believe that the fatal bullet came from Earhart’s box of ammunition. Forensic expert John Riley testified: “We can – from my 21 years experience of doing bullet lead analysis and doing research on boxes of ammunition down through the years — I can determine if bullets came from the same box of ammunition.” But such claims are untrue. After exhausting his appeals, Earhart was executed, quite possibly an innocent man.

The Research Process

Peter Neufeld of the Innocence Project has already expressed an interest in helping with this project. There have been many articles written in academic journals covering these issues and cases, and I have begun to read them. I will also read the primary books in the field. The most comprehensive articles have been authored by Neufeld as well as Case Western Reserve legal scholar Paul Giannelli and Virginia School of Law professor Brandon Garrett. I will also burrow into the history of how these methodologies developed and will interview those who espouse and practice them, as well as those who were falsely accused.

Other Books on Forensic Science

Given the accumulating evidence of malfeasance and faulty forensic science, it is surprising that there is no trade book on the subject. The best general book on false convictions remains Actual Innocence (Doubleday, 2000), by Barry Scheck, Peter Neufeld, and Jim Dwyer, which contains some material on forensics. Strengthening Forensic Science in the United States (National Academies Press, 2009), by the Committee on Identifying the Needs of the Forensic Science Community, has already been cited and is hardly a popular text. Neither is Forensic Science Under Siege (Academic Press, 2008), by Kelly Pyrek, who edits a forensic nursing journal. Pyrek’s book, which costs $62, is primarily a defense of the forensics establishment rather than a critique. It will be useful for quotes and sources of information, however.

Forensics Under Fire, by Jim Fisher (Rutgers University Press, 2008) is at least a critical work on forensics, but it spends several chapters on the JonBenet Ramsey case and others of that sensational ilk, and it is written in a pedestrian, redundant style. Scientific Evidence (Lexis/Nexis, 2007) is an expensive, two-volume text by Paul Giannelli and Edward Imwinkelried. It will be a useful reference book, as will be National Academy of Science reports on ballistics (2004, 2008) and the medico-legal death investigation system (2003, medical examiners and elected coroners). Other useful references include the FBI Handbook of Crime Scene Forensics (Skyhorse, 2008); and The Encyclopedia of Crime Scene Investigation, by Michael Newton. (Checkmark Books, 2007).

Unfortunately, many such books give credence to bad science. For instance, in Crime Scene: The Ultimate Guide to Forensic Science (DK Adult, 2006) author Richard Platt writes that forensic science generally offers proof “with a level of objectivity and plausibility often lacking in other forms of evidence.”

Market for Crime Scene Injustice

Crime Scene Injustice (CSI) will appeal to readers who enjoy works of popular science and real-life mysteries, as well as social activists and those who care about injustice. It should also appeal to millions of viewers of the CSI-related television shows. Finally, it will appeal to the growing number of readers who seek out books written by Mark Pendergrast.

About the Author

Mark Pendergrast has written many books that have been recognized as the comprehensive works in their respective fields. Noted for tackling challenging subject areas, Pendergrast says (only half-joking) that he might have earned an honorary Ph.D. in epidemiology, public health, astronomy, physics, business, economics, psychology, and international relations for his disparate works. With Crime Scene Injustice, he plans to add criminology and forensic science to that list. See www.markpendergrast.com for detailed information on his books. Victims of Memory is the book most closely related to Crime Scene Injustice. Pendergrast also served for a decade on the board of the National Center for Reason and Justice (www.ncrj.org), an innocence project for those falsely accused of child abuse.

Table of Contents

Introduction

Chapter 1: Bad Hair Days. Faulty hair evidence.

Chapter 2: Fingering the Wrong Man. Flawed fingerprint evidence.

Chapter 3: Fire! Arson cases.

Chapter 4: Gumshoes and Footprints. Shoe prints and tire tracks.

Chapter 5: Blood Will Tell. Serology.

Chapter 6: Bang, You’re Dead. Ballistics evidence.

Chapter 7: When the Gold Standard Is Fool’s Gold. Fraudulent or poorly produced DNA evidence.

Chapter 8: CSI, the Reality. Concluding chapter, suggested solutions.