By Mark Esposito, Weekend Contributor

A 2009 report by the National Research Council (NRC) passed quietly into the night (except in legal and forensic circles) while barely garnering more than a ripple in the public’s psyche. It should have been a tidal wave given news last December  that a  48-year-old New Jersey man, Gerard Henderson, who spent 19 years in prison for a murder he didn’t commit, was done in by faulty crime lab work. Henderson was convicted largely on “bite mark” evidence. Bite mark evidence is a process used to exam indentations and anomalies on a victim’s body and  ostensibly made by human teeth which are then matched to a defendant’s dentures in an effort to prove that he/she was the perpetrator of the crime. Convicted in 1995, Henderson proved that state testing of the bite marks on the back of 19-year-old victim, Monica Reyes, was deeply flawed and conducted without sufficient safeguards to insure its reliability.

Independent forensic scientists working for Project Innocence could not reproduce findings by the state crime lab which is the gold standard for scientific verifiability. Henderson became one of the more than two dozen people wrongfully convicted of rape or murder  since 2000 as a direct result of flawed bite mark evidence analysis all duly attested to as accurate by the local crime lab.

It should have been obvious to the government  that something had to be done after the 2009 NRC report which excoriated state crime labs. ” According to the report, nearly every analytical technique, from hair-sampling methods to those used in arson investigation, is unreliable, with too much variability in test results. Only DNA evidence escaped condemnation.”  The report documented scores of problems from funding to lab protocols to evidence gathering which insured scientifically unreliable results. In its summary, the council found that:

With the exception of nuclear DNA analysis, however,  no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

What that little bit of scientific obfuscation means is that no evidence outside of properly controlled DNA analysis can match a person to the crime scene that passes the same scientific muster that we apply to introducing new drugs to the market or even to safety testing of new  automobiles. No analysis for hair samples nor bite marks nor even arson investigations are reliable enough to be deemed “scientific.”  And the fault lies not  just in the  hands of the lab technicians crippled by a lack of standardized methodology  but in the prevailing methodology itself and the utter lack of peer reviewed studies establishing a link between the evidence and the ability of the testing to individualize the depositor of the evidence. This flawed methodology leads to inconsistent results and a fragmented system where justice is merely a hope.

And the problem has real human costs. On February 17, 2004, Texas resident Cameron Todd Willingham was executed by lethal injection for the arson death of his three daughters at their home in Iraan, Texas. The main evidence against him was the expert opinion by law enforcement officials that the fire had spread by means of a liquid accelerant. Proof of the accelerant, the arson investigators said, were “char patterns” in the floor in the shape of “puddles”,  and a finding of multiple starting points of the fire, that had burned “fast and hot.”  Willingham denied the charge to his dying day and no motive was ever established. But Deputy State Fire Marshal Manny Vasquez and others concluded that burn patterns clearly established the use of an accelerant and testified that human agency started  the fire.

But how reliable was Vasquez’ opinion?  Not very much said Craig Beyler, who holds a Ph.D.  in Engineering Science from Harvard, and who prepared a written report at the request of the Texas Forensic Science Commission. Writing five years after the execution and in the same year as the release of the NRC study, Dr. Beyler  concluded that investigators ignored the scientific method for analyzing fires described in NFPA 921, Guide for Fire and Explosion Investigations and relied on “folklore” and “myths”.  Citing many of the same problems that the NRC would cite a month later, Beyler made this chilling assessment about the “methodology” employed to convict a man of a capital crime:

NFPA 921 provides a core methodology, methods for planning and conducting the investigation, and methods for collecting, interpreting, and documenting evidence. Most modern fire investigations texts mirror or amplify upon NFPA 921 (e.g., Icove and DeHaan (2004), DeHaan (2002), Lentini (2006)). The core of the 921 methodology is the application of the scientific method to fire investigation. In the context of fire investigation this involves the collection of data, the formulation of hypotheses from the data, and testing of the hypotheses. Conclusions can only be drawn when only a single hypothesis survives the testing process. None of the investigators employed this methodology. Indeed, in no case was any methodology identified. The testifying investigators admitted on the stand that there were possible alternate hypotheses that were consistent with the facts of the case. In no instance did this cause the testifying investigator to alter his opinions in the least. The overall standard that seems to be in use by the investigator is that his professional opinion with regard to cause was simply the explanation of the case facts that the investigator was personally most comfortable with.

Dr. Beyler found that “a finding of arson could not be sustained” and that key testimony from the fire marshal at Willingham’s trial was “hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”.

Did Texas execute an innocent man on flawed evidence? In 2010, Judge Charlie Baird thought so but a crafted motion for recusal by the prosecutor prevailed and stopped entry of an order which found, “overwhelming, credible, and reliable evidence” that Willingham was wrongfully convicted of murdering his daughters. Citing a report by fire investigator Gerald Hurst and the Arson Review Committee impaneled by Texas Innocence Project , Baird concluded that “every indicator relied upon since [by the prosecution’s experts] has been scientifically proven to be invalid.”

Against this backdrop and the outcry over the execution of a likely innocent man on flawed scientific evidence, the US Department of Justice and the National Institute of Standards and Technology (NIST) has now created the first US National Commission on Forensic Science. “The panel of 37 scientists, lawyers, forensics practitioners and law-enforcement officials met for the first time this week in Washington DC, and aim to advise on government policies such as training and certification standards. In March, NIST will begin to set up a parallel panel, a forensic-science standards board that will set specific standards for the methods used in crime labs.”

The goal is to put some scientific method into forensic science which for too long has enjoyed the undeserved status of infallibility in assessing guilt and innocence. “The fundamental issues with forensic science can be solved by fixing the science,” says Suzanne Bell, a forensic chemist at West Virginia University in Morgantown.

The question is now should courts have swallowed the forensic Kool-ade so completely and admitted into evidence what  can only be characterized as “junk science” at the behest of prosecutors? Maybe defense attorneys were right to have complained that modern forensic techniques displaced the deliberative role of the jury in determining guilty or innocence since the reliability of the testing was clearly oversold. And lest you think it’s only the new-fangled techniques in question, even fingerprint analysis, the hoariest and most famous technique we have,  has shown some flaws despite the most rigorous protocols.  “A 2011 study found that professional examiners matched two finger­prints incorrectly once in every 1,000 times, and missed a correct match 7.5% of the time .”

The truth now evident, judges must carefully screen all forensic evidence in light of the requirements of  Daubert to insure both materiality and reliability. What was once the worry of creative criminal defense lawyers  seeking to pioneer new scientific theories seems to have now shifted to the prosecutor to establish reliability for things we took for granted for so long.

Did we buy the forensic scientist’s snake oil to the detriment of innocent men? Gerard Richardson and Cameron Todd Willingham seem to suggest that we did. Now what can we do about it?

Source: Journal Nature

~Mark Esposito, Weekend Contributor