The USDA will begin enforcing these standards in October in hopes of differentiating low quality “impostors” from the best oil. The standards will also conform to international and trade group definitions so that buyers know whether they have a true high-end bottle of EVOO or just the “Two-Buck Chuck” variety.

Patricia Darragh, executive director of the California Olive Oil Council, a trade association of producers responsible for most US-grown olive oil explained that “[t]here has been a concern for some time about the quality and truthfulness of oil brought into the United States.  In the absence of a federal standards, some unscrupulous importers have flooded the market.”

The new regulations provide specific chemical parameters of purity and freshness that provide a basis for enforcement. They include indicators for fatty acid composition, which helps separate olive oils from seed oils, and the ultraviolet light absorption, which indicates the oil’s state of preservation, as well as a taste test by experts.

Glad to know that we have such rigorous criteria for olive oil. It’s certainly more important than applying strict standards to the forensic science promulgated in court and used to lock people away for the rest of their lives.

Here’s a preview:

Hustler law will damage access

Restricting or enlarging current law is not the way to remedy the release of disturbing crime scene photos, yet the state Legislature seems poised to do just that. Last month, a true-crime reporter working for Hustler magazine requested photos depicting Meredith Emerson’s nude and decapitated body under Georgia’s public disclosure records laws. In 2008, Emerson was brutally killed while hiking with her dog in North Georgia. The atrocities were horrid and disturbing.

Hustler is now revisiting Emerson’s death for a possible feature in its pages. More widely known for its photos of nude (but living) women, Hustler is no ordinary media outlet. Understandably, last month’s request dismayed the slain woman’s family. But it’s disappointing that it created such pandemonium at the state Capitol that legislators scrambled to pass a law preventing the release of such photos.

Quietly and quickly approved in December 2009, a state rule provides that DNA found at a crime scene that fails to exactly match the DNA of a person already contained New York’s DNA database can nonetheless be used to search for suspects if the DNA closely resembles that of someone on file.

The premise of this strategy is uncomplicated. Family members share genetic traits, and it would be reasonable to conclude that a partial DNA match indicates that a relative of a person in the database is the unknown suspect. Thus, the search can be narrowed to family members of the person who clearly didn’t commit the crime in question (since that person’s DNA does not precisely match the crime scene sample).

I’ve written about the inherent pitfalls of this approach.  While no one wants to rally against legitimate crime fighting tools, there are also issues with literally bringing the investigation into the family room. By any other name, an investigation of this source is based on guilt-by-relation, and since families can be expansive, the investigation would affect more innocent people than guilty.

California has the most aggressive approach to using familial DNA searches as an investigation technique, and other jurisdictions have followed suit. Notably, there is no national standard for how close a DNA profile has to be to qualify as possibly related to the database offender.

Law enforcement officials say the policy frees forensic scientists from sitting on potentially valuable evidence that they had not been able to turn over to local police departments.

As I said in my article, we’re well past debating whether these policies should be implemented at all, however, there needs to be informed discussions about repercussions, regulations, and limitations in connection with these policies.

In effect, Melendez held that that confrontation clause requires that the lab analyst who performed forensic tests be present and subject to cross-examination (i.e., bring the body). In many states, prior practice was to simply submit the lab report as evidence.  Justice Scalia, in what is perhaps the only issue I agree with him on, wrote the majority for Melendez.

While the result in Briscoe is not unexpected – it presents a bit of a mystery as to why the Court took it so soon after deciding Melendez.  Predictions abound over whether Sotomayor might tilt the 5-4 Melendez split in a different direction. The issue in Briscoe is slightly different from Melendez. Under Virginia law, the burden of subpoening the lab analyst shifted to the defense. As a result, if the defense failed to call the individual who is arguably the State’switness, then the the report was put into evidence and the defendant was out of luck. Other states have this same scheme, but Virgnia has since changed the practice. No doubt that this latter development factored in to the Court’s decision to remand the issue to the Virgnia  Supreme Court.

While the issue is dormant for the time being, I predict we’ll see a challenge to Melendez in the near future.

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Back in June of 2009, the Supreme Court issued its latest Confrontation Clause pronouncement: in Melendez-Diaz v. Massachusetts, the court prohibited the admission of crime lab reports as evidence in a criminal case unless the scientist who prepared that report is available for questioning by the defense. 

In my opinion, it was the right decision. I’ve seen good lab analysts and I’ve seen bad ones, and the defendant has a right to fully question that person’s scientific capabilities. I analogize it to an airplane: while we generally accept that air travel is safe (unless you were recently on NW Flight 253 on December 25), that planes are properly maintained, and that we will get from point A to point B, who among us is going to board a plane with a drunk pilot at the controls?

Same with a lab analyst. The method may well be reliable, the science may be solid, but if that analyst lacks the skill to perform the job, then Houston (literally) we have a problem. Put another way, would you want an unqualified or incompetent lab analyst  to confuse or comingle your blood sample that results in perhaps the misdiagnosis of a disease, or, worse yet, no diagnosis of a life-threatening illness? I think not.

We demand comptency, and the same should hold true in a criminal trial where freedom is at stake. Competency does not exist by virtue of a white coat and lab report. It is, in a sense, a personal question that requires bringing the person to court to answer it. The ability to complete what is often times a boilerplate or computer-generated report does not give rise to automatic credibility.  There is a reason why the government has the burden to prove guilt beyond all reasonable doubt. The Supreme Court this past June affirmed the obvious: to meet that burden, the lab rat must come to court (having done some time as a lab rat myself, I mean no offense to rodent populations).

In a bit of a surprise move, the Supreme Court will revisit this issue in  Briscoe, et al., v. Virginia on Monday. Suprising since the prior decision is still fresh, but yet the Court  is already considering whether to limit the scope ofMelendez-Diaz. The issue in Briscoeis whether the prosecution or defense must take the initiative to summon the scientist for questioning.  While it sounds like a redux of Melendez-Diaz, Briscoe is a narrow focus on certain state laws (such as Virginia’s) that shift the burden of demanding the appearance of the lab analyst (or other appropriate witness associated with the lab report) in court. 

More specifically, prosecutors must give pre-trial notice of plans to offer evidence related to the lab report and/or its results. Virginia law further provides that the prosecution can offer that report without presenting a witness (i.e., putting in the paper without the person).  The law then puts the onus on the defense to call that witness – as a defense witness! The state does at least pick up the tab of calling that witness.

It will be interesting to see what comes out of the oral argument. It’s also an interesting question why the Court decided to take this case so soon after Melendez-Diaz.I’m sure that the shrieks of prosecutorial horror when the Court dropped the decision in June had something to do with it.  Two things for sure: there will be lively debate and Scalia will be an active participant since the Confrontation Clause is a “pet project” of his. Sotomayor can be the wild card here. 

One last word: Virginia changed its law on this subject subsequent to the Supreme Court granting cert. The Supremes could punt the issue back to Virginia Supreme Court to see how it shakes out under the new law.

The expert, an assistant professor of neurosurgery at Thomas Jefferson University Medical College in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. I’m an assistant professor and thought that lawyers charged exorbitant hourly rates, but, my comment here is, Really?? Doesn’t quite pass the smell test. 

The magistrate was just as appalled and cut the expert’s hourly to $600, which the defendant in the case will cover. If the expert doesn’t agree to reduced rate, the plaintiff will be on the hook for the difference.  The expert was the treating physician in the case, which claims that the plaintiff was rear-ended by an ambulance and resulted in myelopathy and loss of spinal function.

The injuries are serious and tragic, but so is that fee. Those fees hurt everyone involved. It adds credence to the “hired gun” accusations against medical expert. The disabled plaintiff may have to pay the price if the doctor doesn’t agree to the capped rate. If doctors insist on fees above capped rates then it will surely have a chilling effect on contingency fee cases that depend on expert medical evidence.

While U.S. Magistrate Judge Karen Williams noted that neurosurgery may well command a higher fee due to the nature of the work, but she wasn’t about to cave to highway robbery. Hopefully the ruling will serve as a caution in this area. There is a difference between expert medical testimony and extravagant medical testimony.

A judge determined that an FBI forensic analyst’s (Michael Malone) testimony during the trial largely exaggerated otherwise meaningless results. Malone testified that hairs found at the scene were “microscopically indistinguishable” from Gates’ hairs.  That one statement sealed Gates’ fate, but went far beyond the bounds of possible conclusions that could be drawn from a hair comparison.

As I intimated in yesterday’s post, microscopic hair evidence is notoriously unreliable.  It involves a simple game of match. In other words, the analyst “eyeballs” the evidence and declares two hairs to be alike. While it sounds simple enough, human hair is not nearly as discriminating as someone’s DNA. There is no evidence that one person’s hair is unique to that one person. To the contrary, hair analysis can only reveal potential similarities between specimens – but there is no empirical evidence to demonstrate the statistical likelihood that two specimens might share common characteristics.

Now, Malone’s forensic conclusions have been challenged in other cases, but it’s troubling that this is happened last week given that a 1997 Justice Department review discredited his work, no formal review of his convictions has ever been conducted. The Judge who presided over the Gates case recently ordered the U.S. Attorney’s Office to conduct such a review.

When will the “artful” work of forensic technicians be recognized for what it is – art and not science. Too many cases have been reversed for this to be a “one bad apple” problem.

The report (most likely released in the middle of the usual holiday scramble to avoid a larger outrage) found that State Police forensic scientist Garry L. Veeder performed defective tests from 1993 to 2008. Even more troubling is that Veeder’s supervisors either failed or were not qualified to review his work. As a result, the errors went undetected. Veeder committed suicide in 2008 after he learned he was under investigation.

This is not the case a bumbling scientists, but rather the root of a systemic problem that plagues crime labs – the blind leading the corrupt. This type of environment fosters forensic mistakes, omissions, and outright fraud.

While New York officials insist that Veeder’s mistakes had not resulted in any wrongful convictions, little information is available. Even if wrongful convictions cannot be linked to Veeder, the problems revealed in the report leave a wake of questions and distrust in New York crime labs. Moreover, since Veeder primarily handled trace evidence - a notoriously weak “science by any means – one can only guess what magic conclusions Veeder came to over the course of his 15 years with the New York state police.

Indeed, Veeder performed analysis in homicide, assault and robbery cases. Veeder examined fibers, glass, hair, footprints, arson residue and other trace substances discovered at crime scenes.  To add insult to injury, the report also criticized Veeder’s those who trained, supervised, and reviewed Veeder.  At the end of the day, however, one can bet that those individuals will still have jobs and that little – if anything - will change at New York state crime labs. After all, the bad seed (Veeder) is gone, and everyone can give a big sigh of relief that they emerged no worse for the wear.

While certain crimes – murder – have no statute of limitations, there are legal limits placed on the amount of time that can pass between the commission of a crime and the resulting prosecution. This is especially true in rape cases, where convictions often carry sentences similar to homicide crimes, but unlike homicide cases, the legal clock looms on rape cases.  For instance, here in Georgia, the statute of limitations (the time from the crime occurred to when charges are brought) for forcile rape is 15 years.  Thus, if the identify of the perpetrator surfaces in 16 years, that person cannot be prosecuted for the crime.

To combat this problem, the Manhattan District Attorney’s Office in New York has implemented the creative strategy of indicting the rapist’s DNA.  Not a person, but a genetic profile. Thus, as long as the profile is indicted by the time the clock runs on the statute of limitations, then conceivably a case can be brought at any time once the perpetrator’s identity has been established. The New York Times details the story of a rape committed in 1993.  When the statute of limitations was set to expire in 2003, authorities brought charges against the profile since the assailant’s identity was unknown. In 2007, the indicted profile was linked to Victor Rondon, who was subsequently convicted and sentenced to 44 to 107 years in prison. If prosecutors had not indicted the DNA profile in 2003, they would have been barred from bringing charges against the identified perpetrator – Victor Rondon – in 2007.

This creative manipulation of statute of limitation laws is connected to the added focus that law enforcement agencies are devoting to cold cases. In New York City, prosecutors have secured 117 indictments of DNA samples in rape cases, linked 18 of those profiles to specific people, and obtained 13 convictions, either through trials or negotiated pleas. Five cases are pending. 

New York spearheaded the practice of profile indictments in 2003 under the John Doe Indictment Project, which sought (much like a genetic profile) to preserve the ability to prosecute sexual assault cases indefinitely – statutes of limitation be damned.

This practice, now being applied in other jurisdictions to rape and other crimes such as burglary, seems to chip away at the foundation of the criminal justice system. While I don’t purport to know why certain crimes were given their respective statutes of limitation, it seems that there was reason and intent to do so. Is science enough of a reason to extinguish those limits? Should science effectively toll the statute of limiations in perpetuity? What about a fair trial – the ability to confront witnesses and put forth a zealous defense?  It seems that yet again the bling of new shiny science has suppressed the need for considered debate.