by Mark Wilson

Less than three months into the Trump administration, the President’s assault on science, truth, and all things Obama reached the criminal justice system. Under Trump’s watch, a commission working to improve the reliability of forensic evidence has been abolished.

In 2013, the Obama Administration created the National Commission on Forensic Science, an independent advisory panel of approximately 30 scientists, crime lab leaders, judges, prosecutors, and criminal defense lawyers. The commission was charged with reviewing forensic science standards and making recommendations to ensure the reliability of forensic science used in criminal trials.

The commission was created in the wake of numerous scandals and reports about unreliable evidence being used to convict and even execute criminal defendants.

In 2005, for example, the FBI abandoned its 40-year practice of tracing bullets to a specific manufacturer’s batch through chemical analyses, after its methods were scientifically debunked. Also in 2015, the Justice Department and FBI admitted that nearly every examiner in a hair-analysis unit gave scientifically flawed or overstated testimony in 90 percent of cases from 1980 to 2000. Those cases included 32 criminal defendants who were sentenced to death, and 14 of the condemned men were executed or died in prison.

The National Academy of Sciences (“NAS”) also issued reports criticizing inadequate standards and funding for crime labs, examiners, and researchers. The NAS found that forensic examiners had falsely claimed for many years that they could match pattern evidence, like firearm and bite-mark evidence, to a source with “absolute” or “scientific” certainty. The NAS found that law enforcement control over crime labs is partly to blame for the problem.

The President’s Council of Advisors on Science report found that review of common forensic methods including hair, bite-mark, and shoe-print analysis “have revealed a dismaying frequency of instances of use of forensic evidence that do not pass an objective test of scientific validity.” With respect to bite-mark analysis, the report found that “available scientific evidence strongly suggests that examiners not only cannot identify the source of bite mark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bite mark.” Nevertheless, no court in the United States has barred bite-mark evidence, despite 21 known wrongful convictions.

On April 6, 2017, six leading research scientists on the commission, led by Thomas Albright, an internationally recognized neuroscientist specializing in vision and the brain at the Salk Institute for Biological Studies, warned against ending its work. “For too long, decisions regarding forensic science have been made without the input of the research science community,” the group wrote in a letter urging United States Attorney General Jeff Sessions to continue the commission’s work for another two years.

Sessions was not moved. As the commission began its last, two-day meeting before its term ended, Sessions announced on April 10, 2017, that the Justice Department would not renew the commission when its term expired on April 23, 2017. He claimed that decisions about how to meet the needs of overburdened crime labs will be made by a yet-to-be-named senior adviser and a subcommittee of a Justice Department task force on violent crime that is part of President Trump’s “law and order” efforts (which includes encouraging the revival of 1990s “tough-on-crime” strategies).

“It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science...can be arrived at by entities centered solely within the Department of Justice,” said U.S. District Judge Jed Rakoff, of New York, who was the only federal judge on the commission. Other members who work within the criminal justice system agree, arguing that even well-intentioned prosecutors lack a scientist’s objectivity and training and that the Justice Department’s retreat into insularity creates a risk of repeating past mistakes.

Naturally, the National District Attorneys Association applauded Sessions for abolishing the commission. Disagreements among members of the commission had reduced it to “a think tank,” yielding few accomplishments and wasted tax dollars, the association claimed.

Nothing could have been further from the truth. Throughout the Obama presidency, the commission prompted several important reforms. For example, Attorney General Loretta Lynch accepted commission recommendations for the adoption of new accreditation and ethical standards for forensic labs and practitioners. She did, however, reject an important recommendation that would have required expert witnesses to disclose error rates in their testimony and refrain from using methods that have not been scientifically verified.

Another recommendation resulted in a $20 million research project to study crime lab techniques used more than 100,000 times a year, including questions about how frequently claimed matches of pattern-based evidence such as complex DNA profile mixtures, firearms, and bite-mark tracing may be erroneous. The Trump Administration has ignored other recommendations, including a proposal for new, department-wide standards for examining and reporting forensic evidence in criminal courts across the nation.

Other reforms are likely an extension of the commission’s work. In 2016, for example, FBI Director James Comey, who has since been fired by President Trump, asked state and local crime labs to review FBI hair-comparison cases. Criminal convictions in at least a dozen states are currently under review, according to the National Association of Criminal Defense Lawyers (“NACDL”). “We want to make sure there aren’t other innocent people in jail based on our work,” Comey wrote in a June 2016 letter. “Unfortunately, in a large number of cases, our examiners made statements that went too far in explaining the significance of a hair comparison and could have misled a jury or judge.”

After the Justice Department and FBI admitted in 2015 that two dozen examiners in one of its forensic labs had given flawed testimony in hundreds of cases, the Obama Justice Department also initiated a 2016 review of expert testimony across several disciplines. The review was based on findings that for years nearly all FBI experts overstated and gave scientifically misleading testimony concerning FBI laboratory techniques related to the tracing of crime scene hairs based on microscopic examinations and of bullets based on chemical composition.

“The authority afforded to scientific experts is second to none, and we must make sure that our statements are clearly supported by sound science,” wrote then-Deputy Attorney General Sally Yates, who was also terminated by President Trump. Yates said in February 2016 that the goal of the expanded Justice Department review was to determine whether “the same kind of ‘testimonial overstatement’...could have crept into other disciplines.”

Sessions announced that he is also suspending this wider review of expert testimony, according to Office of Legal Policy Senior Counsel Kira Antell.

“The reliance of law enforcement on questionable science and the overstatement of the reliability of that science has been a leading cause of the wrongful conviction of innocent people,” said NACDL President Barry Pollack. “The reason the National Commission on Forensic Science has been so important is that it includes leading independent scientists, allowing an unbiased expert evaluation of which techniques are scientifically valid and which are not.”

Since 1989, DNA testing has resulted in 349 post-conviction exonerations, according to the National Registry of Exonerations. There have been more than 2,000 exonerations overall since then.

“The department has literally decided to suspend the search for the truth,” said Peter Neufeld, co-founder of the Innocence Project, which has reported that nearly half of the 349 DNA exonerations involved forensic science errors. “As a consequence, innocent people will languish in prison or, God forbid, could be executed.” 

Sources: www.pbs.org, www.reason.com, www.washingtonpost.com

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