April 21, 2015

"The [Justice Department] review found that F.B.I. testimony was fundamentally flawed in 257 of those cases — a stunning 96 percent of the total."

"Of those defendants, 33 received the death penalty and nine have been executed so far. Although the errors don’t necessarily mean the defendants are innocent — other evidence might have supported conviction — the F.B.I. plans to notify prosecutors and prisoners of the findings. The problem is not limited to hair analysis...."

From an op-ed in the NYT by Eric S. Lander, director of the Broad Institute of M.I.T. and Harvard and co-chairman of the President’s Council of Advisors on Science and Technology.
It is now abundantly clear that an expert’s opinion is not a reliable basis for drawing connections between evidence samples and a particular person. No expert should be permitted to testify without showing three things: a public database of patterns from many representative samples; precise and objective criteria for declaring matches; and peer-reviewed published studies that validate the methods.
Obviously, this is also an argument against the death penalty. Once a person has been put to death, it is impossible to bring him back, no matter how clear once-imperceptible errors have become. Years spent in prison are also irretrievable, but as long as the convict is alive, we can take action at the point when we are able to see that action is morally required.

Related: Here's an excellent New Yorker article, "The Price of a Life/What’s the right way to compensate someone for decades of lost freedom?"
The prosecution’s case rested heavily on Volpe’s report to the district attorney, which noted a significant piece of evidence recovered from Restivo’s van: two strands of hair found on the floor which appeared to have come from Fusco’s head....

43 comments:

lgv said...

And so hair analysis goes the way of arson analysis.

I've long since abandoned any confidence in prosecutors, police, and evidence experts being dispassionate about their work. It's all about winning, not justice.

I have no issue with the death penalty in theory, but I no longer want it used as a practical matter.

FleetUSA said...

Big surprise: Government lies.

NotquiteunBuckley said...

Science's sacrificial lambs need no apologies, you see it was all for the greater good. Unlike religious nuts, science believers recognize their mistakes and improve, hence science is better than a boring, stale God.

I just hope everyone involved doesn't break their arm patting themselves on the back for being so sciency and correcting the problems as dispassionate, almost unhuman scientists. These heros are recognizing mistakes and correcting them, the hallmark of science lovers, and ought be sung about and celebrated as Lightbringers ushering in a new way of knowledge unencumbered by bias or human foibles.

The real problem is the selfish chunks of poop who question science without credentials and refuse to help advance science's cause through faux martyrdom.



Fernandinande said...

"Mishandling of DNA evidence found in over 50 cases at NYC crime lab"

"F.B.I. Audit of Database That Indexes DNA Finds Errors in Profiles"

When they say something like "the DNA evidence shows a one in N-billion chance of being someone else", they're incorrect.

Bob Ellison said...

Does it mean OJ is innocent?

Phil 3:14 said...

Expert opinion

Its still "opinion"

Fritz said...

All of this could have been avoided by proper controls; submitting hair from multiple similar individuals for identification. It would have quickly revealed that the hair examiners were fooling themselves.

Why didn't they? Because they didn't want to know.

Unknown said...

Project Innocence uses DNA to find wrongful convictions, does this mean their methods are also flawed and have therefore overturned convictions of guilty people?

Skipper said...

But, the science was settled!

Tank said...


Phil 3:14 said...

Expert opinion

Its still "opinion"


Yes, but when the "expert" sits on the stand, gives twenty minutes of stating his credentials, indicates he's qualified to testify 200 times, tells the jury that he has been involved in 1,000 of these cases, then gives his opinion, the jury often takes it as gospel.

Confirming for me again my position that I don't have any philosophical objection to capital punishment, but I've seen to much of the justice system to trust it killing people.

sykes.1 said...

The regime in Washington is illegitimate, lawless, violent and corrupt--every single individual, elected or appointed or civil service, Executive, Legislative, Judiciary, military--every single individual.

It cannot be cured; it must be removed. A return to the Articles of Confederation is in order.

How is that Constitution Convention project doing?

sparrow said...

Lander's criteria are not very reasonable BTW, not overly burdensome.

sparrow said...

I meant the exactly opposite they are reasonable - my error typing again (need more coffee)

PB said...

If it was flawed in these kinds of situations, how may other situations was it similarly flawed? Being successful in one kind of fraud usually encourages other related kinds of fraud. The FBI needs a thorough review.

Paul said...

Flawed?

Why I thought the 'science' was settled?

Paul said...
This comment has been removed by the author.
Laslo Spatula said...

You mean that I had shaved my body for nothing?

I am Laslo.

AReasonableMan said...

Stunning to who?

Not anyone who has been paying attention for the last forty years.

Laslo Spatula said...

Next thing they'll tell me is that they couldn't identify my sperm, after all.

I am Laslo.

Laslo Spatula said...

And we already know that eyewitnesses are unreliable.

Just have to remember the gloves.

Unless they do away with fingerprints, too.

I am Laslo.

MadisonMan said...

I'm unsurprised that there's immunity for people who wrongly and knowingly put people away.

When their deeds come to light, they can just sit back and enjoy their pension as the newly freed always-innocents try to piece their lives back together.

Taking away their immunity would be a good first step, in my opinion.

m stone said...

Project Innocence uses DNA to find wrongful convictions, does this mean their methods are also flawed and have therefore overturned convictions of guilty people?

Interesting premise. It has become clear--and fashionable--to open cases and get results. Advocacy. Some consider reversals as part of the impugning of law enforcement that is creeping into our culture these days.

The Innocence Project reports that their work has led to 329 exonerations. Of those 42% of real perpetrators have found (not convicted).

A lot of criminals still on the loose for these crimes.

Laslo Spatula said...

Wear your shoes on the opposing feet. Two different sizes. It mixes it up a little when they try to figure out the footprints.

I am Laslo.

EDH said...

And all those released because of DNA evidence?

As far as the death penalty, I don't view "no reasonable doubt" the same as "moral certainty", two standards that many often conflate.

Even the NYT is comfortable with life in prison under the "no reasonable doubt standard".

The latter "moral certainty" should be the criteria for the death penalty.

traditionalguy said...

The hair strand analysis is only that they are of similar types. Only a hair follicles with DNA matches can id hair.

I blame the Torquemada Prosecutors every time. They will do whatever it takes to win a conviction. And then then John Doe Indictments were invented in the depth of DA hell.

Coupe said...

The real tragedy, is that jurors would believe that a person murdered someone based merely on a hair found at the crime scene. That a partial fingerprint means anything.

I've never made it to a jury yet, because the prosecutors instantly don't like me during the voir dire phase. French licking bastards.

If I did make it to a jury, you can bet your a** that shoddy evidence would be high on my list for being thrown out for consideration.

traditionalguy said...

The under story is that most of these innocent men were convicted for being black men roaming around free.

LibertarianSafetyGuy said...

Couple this with a desire to win (in every OSHA case I've ever worked, OSHA has lied or hid evidence to win - I can't imagine what happens in a capital murder case). The death penalty must end - not because there aren't instances where it's deserved but because we can't trust our judicial system to get it right. We are a democracy. If we put an innocent man to death, we, collectively, have committed murder.

Mike said...

Coupe said...

I've never made it to a jury yet, because the prosecutors instantly don't like me during the voir dire phase.

Well if we open this thread to discussion of jury duty etc., my two cents is I've sat on a couple and made it to trial as foreman in one. The scum gang-banger kid had done exactly what the DA alleged, we all agreed. Unfortunately, the prosecutions main witness was a cop who had obviously lied to us in one matter, maybe two, and we subsequently disregarded his entire testimony. The verdict was a unanimous not guilty. Justice.

Megaera said...

Just curious: this is the most politicized, agenda-ridden Justice Department we have ever known, obsessed with breaking down or damaging our trust in Big-G government -- how better to do that than to issue a report announcing that entities we trusted have been lying to us all this time? Win-win... get rid of the death penalty and shatter any belief in the system. If government scientists with Agendas are so bloody unreliable, well, the government scientists who came up with this systemic indictment clearly have the mother of all Agendas and their word is being taken without question...WHY?

hombre said...

Althouse: "Obviously, this is also an argument against the death penalty."

I think you meant to say: "Obviously, this is also an argument against the death penalty when the conviction is based in whole or in part on testimony by FBI experts in those areas now being questioned."

hombre said...

traditional guy: "The under story is that most of these innocent men were convicted for being black men roaming around free."

Oh, it's you. For a minute there I thought this preposterous comment was from ARM, Crack or Feder.

Bryan C said...

Compensation is only half of the issue. Prosecutors and cops and experts who are found to have falsified testimony should go to jail.

"Years spent in prison are also irretrievable, but as long as the convict is alive, we can take action at the point when we are able to see that action is morally required."

I think that's a cop-out: "You're probably guilty of something, so we'll lock you up for a few decades until we know for sure." This is allowing prosecutors to place the burden of exoneration on the person they've decided to put into prison.

If the evidence is good enough to convict of a capital crime, it's good enough for the death penalty. If the evidence isn't good enough for the death penalty, then it is morally wrong to convict. Don't plea-bargain. Don't even bring charges. An honest and self-policing justice system could be trusted not to abuse plea-bargaining; ours can't.

Bryan C said...

" how better to do that than to issue a report announcing that entities we trusted have been lying to us all this time?"

That's why basic institutional integrity is so important. Law-and-order types allowed the legal system to be compromised by shoddy procedures because it suited their goals. A badly compromised institution is unable to function, much less resist actual hostile action.

n.n said...

It follows that a [wholly innocent] human life cannot be aborted on the testimony of a known prejudiced individual: its mother.

Tom McGlynn said...

Personally my sense is that taking this as a powerful argument against the death penalty proves too much or too little. I would doubt that the rate of executions of people innocent of their crimes is more than a few percent of the rate of deaths in prison (and due to imprisonment) of people wrongly convicted and given non-capital sentences. The state is just a culpable in the deaths of these innocents and they are just as insusceptible to compensation.

Similarly I'd expect that the rate of wrongful executions is a tiny fraction perhaps less than 1 in 10,000 of the number of innocents who are raped in prison.
They are not innocents when they leave regardless of their lack of guilt for their crimes on entry.

If we are going to have a penal system anything like what we have had for the past century or more, then wrongful capital punishment is only a tiny fraction of the irredeemable damage that we will do innocents. It would certainly be of interest if there is any way to estimate these numbers but that seems unlikely and I am unaware of one. Regardless any rational discussion of the moral cost of our justice system cannot ignore these cases.

If we are willing to suffer this -- and I suspect we are -- then I think the issues of wrongful capital punishment is a sadly small augmentation of a much larger moral burden.

jr565 said...

CBS is going to put out a new show called CSI: NA.
No longer available.

jr565 said...

It would also be an argument against imprisonment. You can get murdered or raped in prison.
Also, if we are now discounting forensics, what will people use to contest your wrongful imprisonment?

damikesc said...

I have no issue with the death penalty in theory, but I no longer want it used as a practical matter.

I'm the same. I don't trust the government to do ANYTHING competently. Including kill the guilty.

Darrell said...

Yet any Probate judge could put Terri Schiavo to death--denting water and food-- without a mandatory appeal or a second bite at the apple. Let's pray there is a Hell and that we aren't living in it right now.

Rhythm and Balls said...

"Obviously, this is also an argument against the death penalty when the conviction is based in whole or in part on testimony by FBI experts in those areas now being questioned."

Yes, because we should just presume that all other forensics procedures and experts and witnesses and parties are just impeccable and can never give way to the rendering of a judgment of something other than perfect justice. Especially when it comes to the state depriving someone of their life.

Totally Texas.

tds said...

Obviously, this is also an argument against the death penalty. Once a person has been put to death, it is impossible to bring him back, no matter how clear once-imperceptible errors have become. Years spent in prison are also irretrievable,

Completely opposite. Lack of death penalty will just make justice more lax in sending people to prison for life-long sentences. Life-long anal sex in a heavy-security prison does not strike me as particularly humane.

The fix would be heavy penalties administered to judges, prosecutors, experts, witnesses who sentence without proper evidence. Even to the level of a death penalty.

PS Worth checking what will happen to FBI experts in this case, and FBI officials responsible for labs oversight.

Brent said...

"Obviously, this is also an argument against the death penalty. Once a person has been put to death, it is impossible to bring him back, no matter how clear once-imperceptible errors have become. Years spent in prison are also irretrievable, but as long as the convict is alive, we can take action at the point when we are able to see that action is morally required."

I am not sure it is so obvious. It is more humane to lock someone up for decades than to kill him? I think most people's initial reaction is of course. But, I know if I were given the choice, I would prefer death. I doubt I am alone in this regard.