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.

Ever wonder what’s in your DNA? What secrets lie embedded in the strands of nucleotides coiled up to resemble gummy worms? Are you at risk for diabetes or cancer? Are you prone to sunburns or allergies? What ailments and benefits might you pass on to your children? For the low price of only $400 you too can decode your genome – the key to your entire genetic profile.  The Company 23andMe markets such tests and is considering offering a wholesale version to medical providers in hopes that they too will see the profit incentive in commercializing genetic information.

While mail-order genetics may seem like a harmless waste of $400 – there are consequences to consider.  Until recently, such tests were aimed at satisfying a curiosity about ancestry and family trees.  The bulk of these DNA kits now, however, are aimed at more serious subjects – disease vulnerabilities and health forecasting.  

Skepticism is prevalent in the science and medical communities, but 23andMe’s continues to earn average customers seeking out its genotyping service.  That service examines 550,000 of the 6 billion letters in the human genome for variants and mutations known to affect the chances of developing 116 diseases and traits. Want to know if you might be bald one day – this is the company to talk to.

While the results may be accurate, they represent a small snapshot of a person’s genetic makeup.  Environmental factors can influence the onset or prevention of various conditions and the limited information offered by these tests exists in a vacuum, with little consideration paid to external and internal influences.

Moreover, if this service becomes yet another test that doctors can offer, those who do not perform it may see an increase in malpractice insurance premiums while those who do offer such services may reap the consequences if the information is incorrect or incomplete. It’s a double-edged sword.

As the New York Times points out, this is a situation of Buyer Beware – for both patient and doctor alike.

That’s right folks.  Dershowitz is challenging Scalia to a Catholic throwdown – and Dershowitz isn’t even Catholic.  My money is on Dershowitz.

The brouhaha started on Monday, when the Supreme Court issued its opinion suspending the execution of Troy Davis, on Georgia’s death row for allegedly killing a police offer.  Since Davis’ conviction, numerous witness have recanted their statements and Davis himself has always asserted his innocence.  On Monday, the U.S. Supreme Court decided that those claims of innocence deserved to be heard in substance rather than just existence.

In a scathing dissent, joined by Justice Clarence Thomas, Scalia essentially proclaimed that innocent or not a fair trial demands that verdict be carried out.  In Troy Davis’ case, that verdict is a death sentence.  To quote from the righteous man himself: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

I appreciate “Justice” Scalia’s mock air quotes around the word “actually,” it adds drama to his rhetoric. While the notion of executing an innocent person is appalling, what’s worse is that this sentiment comes from a Supreme Court justice, and a Catholic one at that.  The Catholic church flatly rejects the death penalty as a means of punishment unless it the most exceptional of cases. Apparently for Scalia, every case merits an exceptional rating such that death would be a Pope-approved sanction.  So, leave it to a non-Catholic academic to call Scalia to the mat and challenge him to saintly showdown. 

Above the Law details the challenge that Dershowitz  issued to Scalia: 

I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings….

Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

 

While I have serious doubts that Scalia would make himself available, I, for one, would buy ringside seats to this one.