April 19, 2015

FBI Admits Decades of Flawed Evidence

According to the Washington Post, the government has admitted that, for years and years on end, every FBI examiner who testified in criminal trials over a twenty-years period prior to 2000 gave flawed testimony that favored the prosecution. It is a staggering admission.

The gist of the testimony concerned the use of hair follicle examinations to link suspects to forensic evidence, CSI-style. Apparently, despite the courts' universal acceptance that the offered testimony was sufficiently grounded in science as to be admissible, with the understanding that jurors would reflexively accept such testimony as true given its source, said evidence should not have been allowed into evidence. Meaning: large numbers of criminal convictions were obtained, at least in part, through the use of scientific evidence that was not, in actuality, as reliable as the testifying technician claimed it to be in order to persuade the courts to allow it into evidence.

Specifically, the Post states,

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far . .  . .The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison . . . 

To say this is perhaps the single largest forensic scandal in criminal prosecutions is probably an understatement. What this means is that for decades, the federal government affirmatively propagated junk science in order to obtain convictions, and that the courts, the supposed gatekeepers entrusted to ensure that scientific-based evidence is sufficiently reliable to be put before a jury, failed miserably at their task.

A few quick thoughts: first, by no means is this proof that everybody convicted in a case marked by dubious or outright fraudulent scientific "evidence" linking a defendant to a crime was innocent, or necessarily wrongly convicted. (Yes, there is a difference between being innocent and being wrongly convicted, but that's another discussion). It's entirely possible that all, many, some, or a few of the convictions marred by this flawed testimony were well supported by independent, compelling evidence of guilt such that the junk science proffered by the FBI did no meaningful damage.

However, that "justice" might still have been done in the sense in some of these cases misses the larger point. That is to say, we convict and imprison people on a daily basis, often for years or decades. Courts talk about finality, the need for us to rely on the outcomes of trials, when they deny post-convictions challenges. But for finality to mean anything beyond, "shut up, you had your day," the outcomes we are seeking to uphold must be reliable. Not kinda reliable, but really reliable; reliable enough that we are confident that not only was the convicted person actually guilty, but that he was justly convicted.

Unfortunately, such certainty, while quite often present, is far too often missing. It should surprise no one that the courts dropped the ball here. Judicial deference to government witnesses is one of those things that is glaringly obvious to all involved, yet everyone pretends doesn't exist. The government's FBI experts would explain the science underlying the testimony, judges would nod approvingly, and in comes the damning evidence, linking the defendant to the crime by a hair.

Peter Neufeld, one of the heads of New York's Innocence Project, is quoted saying,

“The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster. We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner.”

True enough, but still, where do we go from here? As case after case emerges where it appears that evidence was fabricated or suppressed by police, or where prosecutors knowingly plunged forward knowing that they were likely securing the conviction of an innocent person, a healthy mistrust is of our criminal justice system is understandable, if not critically necessary. The sausage factory that is our legal system is deeply flawed.

The FBI and DOJ revelations are welcome, but do nothing to assuage the lack of confidence that we ought to feel in the convictions that are churned out of our overburdened assembly line system of justice.


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