Forensic Science Reform. Protecting the Innocent

367 Pages·2017·11.184 MB·English

by  Wendy J. Koen and C. Michael Bowers (Eds.)

Forensic Science Reform
Protecting the Innocent
Edited by
Wendy J. Koen
Child Refuge, Inc.,
Formerly of the California Innocence Project,
Menifee, CA, USA
C. Michael Bowers
Clinical Associate Professor,
Ostrow School of Dentistry,
University of Southern California,
Los Angeles, CA, USA;
Deputy Medical Examiner,
Ventura County, CA, USA
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To my dad, William C. Keith, who taught me to love words
and the stories they weave.
–Wendy J. Koen
To Cynthia, who continues to support me through the challenges of
life with smiles and encouragement.
–C. Michael Bowers
List of Contributors
C. Michael Bowers
University of Southern California, Los Angeles, CA, United States
Kathleen L. Bright-Birnbaum
Desert Forensics, Tucson, AZ, United States
Sarah L. Cooper
Birmingham City University, Birmingham, United Kingdom
Rachel Dioso-Villa
Griffith University, Mt Gravatt, QLD, Australia
Simon Ford
Lexigen Science and Law Consultants, San Francisco, CA, United States
Barie Goetz
Sangre de Cristo Forensic Services, Parker, PA, United States; Pennsylvania
State University, Sharon, PA, United States
Christopher Halkides
The University of North Carolina at Wilmington, Wilmington, NC, United States
Max M. Houck
Forensic & Intelligence Services, LLC, St. Petersburg, FL, United States
Wendy J. Koen
Child Refuge, Inc., Menifee, CA, United States
Dan E. Krane
Wright State University, Dayton, OH, United States
Ray Krone
Co-founder, Witness to Innocence, Philadelphia, PA, United States
John J. Lentini
Scientific Fire Analysis, Islamorada, FL, United States
Kimberly Lott
Lott Law, PLLC, Durham, NC, United States; NCAST (North Carolina Attorneys
for Science and Technology), Durham, NC, United States
Waney Squier
Oxford University John Radcliffe Hospital, Oxford, United Kingdom
xvii
Foreword
Since the late 1980s, DNA analysis has helped identify the guilty and exonerate
the innocent. To date, over 300 innocent prisoners have been freed as a result;
in almost half of those cases, the true perpetrator was identified. When used
properly, validated scientific disciplines are a force for good; when used improp-
erly, or when pseudoscience is admitted into the courtroom, lives are destroyed.
Of the first 300 postconviction DNA exonerations, unsound forensic science, or
improper claims about legitimate disciplines, were a significant contributors in
about half of the cases.
In fact, unvalidated forensic science is the second greatest contributor to wrongful
convictions. But while DNA exonerations provide a window into the effect of unvali-
dated forensic science and its contribution to wrongful convictions, they only offer
a truncated glimpse. Only 5–10% of all criminal cases involve biological evidence
that can be subjected to DNA testing. In the other 90–95% of crimes, DNA doesn’t
exist, or, in older cases, it has been lost or degraded. The result? There are countless
criminal convictions that are based to one degree or another on discredited foren-
sic disciplines. We have no way to test the legitimacy of these convictions, though,
because there is no DNA to test.
In my particular line of business, what makes matters worse is that courts,
both trial and appellate, are irredeemably hidebound, it seems, to believe any-
thing other than that the statistics previously cited either didn’t happen at all, or,
if they did, would never happen in the specific courtroom in question. Simply
put, what that means is this: the likelihood of a court granting an innocently
convicted prisoner relief from a wrongful conviction, or a trial court holding a
robust hearing where it is determined that a spurious forensic discipline is inad-
missible, is distressingly small. How did the exonerees mentioned above gain
their freedom, then? Not by raising a claim of innocence based on faulty forensic
science. Doing so is close to fruitless. In fact, the US Supreme Court has denied
30 petitions for certiorari filed by actually innocent exonerees. In one case, Larry
Youngblood’s, the Court denied relief for Youngblood’s claim that law enforce-
ment had failed to properly preserve biological evidence that could, if tested,
have proven his claim of innocence.
Youngblood had been charged and convicted for the abduction and rape of a
10-year-old boy from a carnival grounds in Pima County, Arizona. The young male
victim was taken to a hospital where semen samples and his clothing were collected
as evidence. Based on the victim’s description of the assailant as a man with one
disfigured eye, Youngblood was charged with the crime. Youngblood maintained his
innocence, but no forensic testing was conducted on the evidence because the police
had improperly stored the evidence and allowed it to degrade. Youngblood was con-
victed and sentenced to a lengthy prison term.
Not only did the decision affect Youngblood, it offered no incentive for law
enforcement to adopt procedures to ensure preservation of critically important
xix
xx Foreword
evidence, to preserve, that is, the very material that is the lifeblood of forensic sci-
ence. Fortunately for Youngblood, in 2000, at the request if his attorneys, new DNA
technology permitted the testing of the damaged evidence. The results exonerated
Youngblood, and he was released. Early the following year, the DNA profile that
had been generated was found to match the DNA profile of another individual, who,
blind in one eye, was then serving time in Texas on unrelated charges. In 2002, he
was convicted of the offense and sentenced to 24 years in prison.
So why the continuing intractability? Among the problems is that trial judges
cannot contemplate that disciplines that they or their colleagues may have been
admitting for years, even decades, are rife with problems. The very idea would shake
the foundations of their professional work. For appellate judges, the problem is even
worse. Many have never actually practiced criminal law, or, if they have, many are
former prosecutors and are no more skeptical as jurists than they were when they
were champions of law and order. They are also hindered by procedural strictures
that, even if they were so inclined, frequently prevent them from getting at the crux
of the problem in the first place.
Were I to prescribe a solution, I might just say “context.” These judges and pros-
ecutors, and for that matter, ill-informed defense counsel, need something more
than another continuing legal education course or even news story, brief and not
terribly substantive, about yet another exoneration. People need to understand how
these cases occur, from start to finish. What happened? How did they get investi-
gated? What was the attraction that led law enforcement to engage a certain foren-
sic discipline? Was it a novel technique that held promise? Or was it a time-tested
technique that was virtually unquestioned? And who were the purported experts: an
independent scientist or someone who came of age professionally in the service of
law enforcement?
This text provides that context. In chapter after chapter, each devoted to a separate
forensic discipline, the authors (all of whom are experts in the particular discipline
that they’re discussing) treat not only the nuances of the forensic practice, but also
the history of the case itself. Take the chapter on Composition Bullet Led Analysis
(CBLA), for example. Readers will discover early in the chapter that CBLA tests
“the minute amount of trace elements in the metal making up the bullet to see if dif-
ferent bullets have the same or different amounts of these trace elements.” After a
National Academy of Sciences review of the CBLA in 2002, the discipline was found
to be without any scientific basis and that, in any event, FBI examiners had overstated
the data and their conclusions from it. But what this chapter and the others do well
is to layer in the cascading series of developments that resulted from the erroneous
reliance on the unsound discipline. The defendant in the case had no criminal record
to suggest that he would have committed the type of offense, a child abduction and
homicide; his unkempt condition was the result of his penchant to “dumpster dive”
for cheap food that he would distribute to the needy; soil on the bottom of his shoes
did not match the soil from the victim’s shoes. But these facts were eclipsed by the
misplaced in CBLA. Nevertheless, the defendant was convicted and later executed
by the state of Texas in 1999.
Foreword xxi
Whether this defendant, James Otto Earhart, was guilty or innocent, we will
likely never know. What we do know for sure is that CBLA is not a basis to secure
that conviction, much less a sentence of death. For readers and practitioners, be they
forensic scientists, lawyers, or anyone interested in criminal justice, that is as much
context as you will need.
Tucker Carrington
Assistant Professor
Director, George C. Cochran Innocence Project
University of Mississippi School of Law, Oxford, MS, United States
Preface
“Forensic,” meaning scientific tests or techniques used in connection with the detec-
tion of crime, is a generic term which has reached its zenith (as in 32 million Google
links) of public interest, social media coverage, literature of both science and law,
and courtroom verdicts. “Science” suggests images of laboratory research and novel
approaches achieved to solve challenges to our human existence. “Reform” may be
more easily understood as “change.”
“Protecting the Innocent” has “wrongful convictions” as a synonym, and turns
our idea of the protection of the innocent on its ear as it has become clear that our
systems of justice actually vilifies, incarcerates, and sometimes kills those who are
actually innocent. Although the punishment of the innocent is done with the best of
intentions, those pure intentions are of little relief to the innocent left wasting for
decades or who have met their end.
We wrote and edited this book to establish a stronger link between public knowl-
edge, forensic science, police science, and the legal systems that use forensic disci-
plines and hire their practitioners. Using the voices of actual practitioners and the
stories of actual victims of justice systems’ flawed or misused science, this book
explores 11 major disciplines of forensic evidence, enlightening the reader about the
history of development, current uses, and trends. We also take a novel approach by
shining the light of legally determined wrongful convictions back onto each of those
disciplines. The results show that there is an inter-relationship between “change”
occurring within certain forensic and police sciences being spurred by the steady
flow of wrongful convictions discovered and made public in the United States and
abroad.
We hope the reader will find this book’s forensic discourse, its separation of mere
forensic opinion from actual scientific fact and the resulting discussion of the inter-
section of forensic evidence and protecting the innocent a meaningful experience.
C. Michael Bowers & Wendy J. Koen
xxiii
Acknowledgments
It was only with the dedication and assistance of the following groups and individu-
als that this volume could be assembled. This book was made possible by a com-
munity of justice seekers who forged a pathway by alerting the world of the plight of
the wrongfully convicted and working tirelessly to see justice done. This community
consists of students and lawyers at innocence projects around the globe, upstanding
forensic specialists who speak the truth, sometimes to their detriment, and families
and laypersons who have supported the movement to reform the forensic sciences
and improve our justice systems.
Thank you, not only for your input, but also for fighting for justice daily. You
have rescued the wrongfully convicted from the hell of incarceration and given hope
to scores of innocent inmates and their families. You have endured the heartache of
lost cases and witnessed the devastation caused by those losses. You have also shared
in the sheer joy caused by your clients’ victories, and these victories have increased
your tenacity and resolve. The world is better for your unfailing dedication.
Arizona Justice Project
Association in Defense of the Wrongfully Convicted
C. Michael Bowers
California Innocence Project
Chris Halkides, University of North Carolina at Wilmington
Equal Justice Initiative
Injustice Anywhere
Ray Krone
Sarah Chu at the Innocence Project, NY
The Marshall Project
Tom Zupancic, Applied Biomolecular Technologies, Inc.
xxv
CHAPTER
1
Compositional Bullet
Lead Analysis
CHAPTER OUTLINE
Case Study: James Otto Earhart By Wendy J. Koen ��������������������������������������������������������2
Compositional Bullet Lead Analysis Challenge ����������������������������������������������������������������5
Sufficiency of the Evidence �������������������������������������������������������������������������������������������6
References �������������������������������������������������������������������������������������������������������������������7
Exquisite Measurements, Erroneous Inferences: Compositional Bullet Lead Analysis
By Max M. Houck ��������������������������������������������������������������������������������������������������������8
Introduction ������������������������������������������������������������������������������������������������������������������8
The FBI’s Original Premises �������������������������������������������������������������������������������������������9
What Is a Supply Chain? ���������������������������������������������������������������������������������������������11
Billets to Bullets ��������������������������������������������������������������������������������������������������������12
Melting and Specifications ...........................................................................12
Extrusion and Wires .....................................................................................14
Sales and Distribution ������������������������������������������������������������������������������������������������14
The Easy Part: Analysis ����������������������������������������������������������������������������������������������15
“Matching” and Chaining �������������������������������������������������������������������������������������������16
Problems With Testimony-Compounded Problems With Interpretation ���������������������������19
Where Does This Leave Bullet Lead Analysis? �������������������������������������������������������������21
Summary �������������������������������������������������������������������������������������������������������������������21
References ����������������������������������������������������������������������������������������������������������������22
Forensic Science Reform. http://dx.doi.org/10.1016/B978-0-12-802719-6.00001-7 1
2017 Published by Elsevier Inc.