Forensic Reform, A Critical Criminal Justice Issue
Forensic Reform: On the Agenda in the New Congress « Failed Evidence
I’ve written a number of times (here and here an here, for example) about the problems with forensic science laboratories in this country. Just in the last few months, we’ve seen scandals hit labs in Massachusetts, St. Paul, Minnesota, and in Mississippi. It seems that the parade might never end.
But today, news emerged that indicates that, just maybe, forensic reform might be on the national agenda.
The new Congress will, of course, be preoccupied with budget and fiscal matters, and also with the President’s efforts on gun control and an expected push for immigration reform. But Senator Patrick Leahy of Vermont, chair of the Senate Judiciary Committee, has announced that he intends to put forensic reform onto the long list of issues he will examine. According to The BLT (the Blog of the Legal Times, which covers law and government in Washington), Leahy’s committee will be working on an ambitious agenda: immigration, national security and civil liberties issues (including the use of drones in both foreign and domestic contexts), and gun control policy, but that isn’t all. “The committee will also focus on promoting national standards and oversight for forensic labs and practitioners,” BLT says.
It is time for national standards in the field of forensic science. We have had forensic labs across the country involved in serious scandals and forensic testimony in some jurisdictions more comic than useful.
“David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law.” His blog, Failed Evidence, Why Law Enforcement Resists Science, is a continuing statement for a vital reform.
From around the web –
A front-page article in yesterday’s Washington Post underlines the importance of establishing a substantive defense right to expertise in the US.
The article says, “Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.” The DoJ begin investigating in the 1990s “after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials.” As the Post article chronicles, the investigation was very narrowly drawn in spite of evidence that problems were likely more widespread. When problems were identified, the FBI gave notice to the relevant prosecutors, but not to defendants or their legal representatives. To judge by the sample the Post was able to track down, prosecutors notified defendants in only about half the cases. This is not the first case of slow or inadequate notification.
Oversight is a common prescription from those who recognize problems with the system. I have expressed my preference for a different approach, one that chooses checks and balances over hierarchy. The Post article points to a big problem with oversight. It quotes University of Virginia School of Law professor Brandon L. Garrett saying, “You can have cautious standards, but if no one is supervising their implementation, it’s predictable that analysts may cross the line.” Garrett favors oversight, and he seems to be calling for more of it in the quote.
From the web site, Wobbly Warrior’s Blog:
The FBI announced some time ago that their “bullet lead analysis,” in use for approximately four decades, was of no value. They sent letters informing the @2,500 involved prosecutorial entities. Those prosecutorial entities did nothing. Law enforcement nationwide was aware of the FBI’s admission, and did nothing. The American Bar Association was aware, and did nothing. Aware that no reasonable reaction to their announcement had transpired, despite their color-of-law mandates, the FBI took no further action; a second letter to the actual inmates involved would have cost next to nothing.
There are only carrots and no sticks for law enforcement, prosecutors and agencies responsible for their oversight to ignore forensic advances. Case law and legislated immunities allow all to put their personal career paths ahead of delivering justice, and the vast majority demonstrably choose to appear to have always been right in arrests and prosecutions, regardless of the harm done.
The worst case law immunities were born of Imbler v Pachtman and Van de Kamp v Goldstein. Both clearly establishes unequal justice; fines, suspension and/or disbarment are punishments unbefitting deliberately framing an innocent. And as light as those punishments are, the Bar rarely administers them. Recent USA Today articles addressed the rarity without noting that Congress needs to override civil immunities – they are unconstitutional, and they have killed. I refer to Imber v Pachtman as the Bicentennial Blight. It needs to be eradicated, its damage is bloody and incomprehensibly voluminous.
And finally, from the web site, The Truth About Forensic Science:
Senator Leahy’s forensic science reform bill appears to be short on specifics and long on template. Problems with forensic science are no doubt ‘low-hanging fruit’ for political purposes. Nevertheless, it is encouraging that the 2009 NAS report is in fact on Washington’s radar.
The Bill’s primary concern is with the following NAS report findings: problems with scientific validation of processes, and lack of uniform and unassailable standards regarding accreditation, certification, and testing procedures. Notably missing is perhaps the most discussed recommendation of the NAS report: the call to take forensic science laboratories out of the hands of law enforcement. Bias (intentional and otherwise) is likely at the heart of many if not all of the issues in forensic science. While there is no easy solution, this particular recommendation is no doubt the gorilla in the room that needs attention.
The ‘Criminal Justice and Forensic Science Reform Act of 2011’ seeks to establish an Office of Forensic Science and a Forensic Science Board. By the way, this Office is proposed to be within the Office of the Deputy Attorney General in the Department of Justice. This may be a naïve observation, but placement of the new Office within the AG’s office at least academically again ignores the NAS suggestion of separation from law enforcement. Apparently there needs to be no further discussion of this issue according to Leahy’s Bill.