Forensic Reform, A Critical Criminal Justice Issue


Forensic Reform
Forensic Reform

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.

Forensic Reform: On the Agenda in the New Congress « Failed Evidence

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.

James Pilant

From around the web –

From the web site, Think Markets: (An article by Roger Koppl)

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.



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Cheerleading Used to Defund Women’s Sports

Quinnipiac University

Quinnipiac University (Photo credit: Wikipedia)

Cheerleading is not a sport says the U.S. Court of Appeals, but is it?

Rachael Larimore: The court made the right decision. This was a cynical plan by Quinnipiac to keep the school within Title IX compliance while cutting women’s volleyball (and, incidentally, men’s golf and men’s track and field).

Competitive cheering might be an evolving sport—the Washington Post notes that the “activity” is growing more organized and has various outfits, such as the National Collegiate Acrobatics and Tumbling Association, working to make it a recognized sport. Cheerleading’s raison d’être is to root, root, root for the home team. If you take that element away, what’s all that yelling and cheering for, even during competitions?

Cheerleading is not a sport says the U.S. Court of Appeals, but is it?

This is pretty cynical. Title 9 says that colleges have to spend as much on women’s sports as on men’s. Quinnipiac is evading the rule by declaring Cheerleading a sport. Thus, they can count the money paid for it as money used for women’s sports and have more for the men.

I have no disagreement with the idea that it is tiring and a definite sign of social prestige but whether or not it’s a sport – well it seems it’s only considered a sport when you want to evade title 9 and that is not a good reason.

James Pilant

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Income Inequality Squeezes the Middle Class [via Beat the Press]

Inflation adjusted percentage increase in mean...
Image via Wikipedia

I couldn’t agree more. There is less of the pie for the poor and middle class. No matter what your talents and your willingness to work, how do you compete with a system that distributes income upward toward those who already have the money? Income inequality continues to squeeze the middle class perhaps eventually into its disappearance.

James Pilant

This brief comment is from a posting on Beat the Press entitled –

If Millennials Do Worse Than Their Parents, It Will Be Because Bill Gates‘ Kids Have All the Money

The Washington Post had a column by a millennial columnist complaining about the lack of opportunity. It is striking that the column never once mentioned income inequality.

There is no doubt that millennials will on average be far wealthier than their parents. Output per hour has roughly doubled over the last three decades, meaning that the real wage could be almost twice as high today as it was in 1980. Insofar as the typical millennial is not seeing the benefits of this productivity growth it is due to the fact that so much income has been redistributed upwards, not the result of any generational dynamics.


Here’s some more from Mother Jones, the New York Times, and Slate.

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Foreclosure Speed Made Loan Modifications Impossible

Why would a bank modify a loan rather than foreclosing? Loan modification is usually more profitable.

Let me explain. Take a typical home mortgage that has run into trouble. The purchaser owns a home that he bought at a price of 350,000 dollars in early 2006. He has fallen behind on the mortgage. He can pay each month but not as much as the mortgage is worth. However and it is a big however, the real estate boom has collapsed. The home valued now is worth only 270,000 dollars. His mortgage payments, his salary and the other facts point to him being able to pay a mortgage of that size. So, the bank would accept a loss on the mortgage reducing it to 270,000 in value. The bank now has a workable agreement with the homeowner. He can now pay on the loan regularly.

There is a 80,000 dollar loss for the bank. That would be a big deal if the bank had any way of getting it. If they foreclose on the house, they will be attempting to resell quickly a home now valued at 270k, and at the additional expense of the time and money of the foreclosure process. That 80,000 is not recoverable. Why not renegotiate a lower mortgage with the current owner who is already making payments?

This key questions here are, “How much is this property worth?” and “Can I get as much by foreclosure as I can by modifying the mortgage?”

Everyone watching the process of foreclosures over the last few years has been struck by one fact – there have been very few loan modifications. Almost every homeowner was foreclosed on. It did not seem to matter whether a modification was profitable or not.

As a society, we had never seen that before. People had been foreclosed on before in every kind of economic crisis. But in all these situations if the banks profited more by modifying the mortgage, the mortgage got modified. Now, it doesn’t matter if the bank profits from a loan modification or not. It’s easier and quicker to foreclose.

Also, it was easier to measure success by foreclosure rather than by re-negotiations. You could count the scalps on the wall. Negotiations that resulted in greater profits over longer periods of time didn’t count well.

The system is tilted against homeowners. The speed and number of foreclosures made it impossible for lenders to renegotiate.

From the Washington Post

The financial incentives show that the problems plaguing the foreclosure process extend well beyond a few, low-ranking document processors who forged documents or failed to review foreclosure files even as they signed off on them. In fact, virtually everyone involved – loan servicers, law firms, document processing companies and others – made more money as they evicted more borrowers from their homes, creating a system that was vulnerable to error and difficult for homeowners to challenge.

“This was a systemic problem. It’s not like a few renegade employees made mistakes,” said lawyer Peter Ticktin, who defends Florida homeowners facing foreclosure. “It was industry-wide and pervasive, and everyone knew about it.”

The need for speed neutralized any attempt at judgment. No human intelligence could be allowed to interfere with number and speed, a total victory of the abstract over the concrete and real. Loan modifications are better for long term profits but they are not fast.

Understand this. In any long term profit making analysis, you have to apply human judgment, and from that you can maximise profit. The foreclosure system we have now does only one thing well – foreclose quickly. Everything else is does badly.

James Pilant

Suffer the Little Children to Starve

Business Ethics is a subject deeply concerned with a variety of moral approaches to problems. Often dogmatic simple solutions are not effective all the time. The United States is said to be one of the countries in which the free market is enshrined as a “successful” doctrine. Successful it may well be in some contexts but one size does not fit all and there are problems resistant to the free market.

Last year, nearly 50 million American had trouble getting enough to eat. The Washington Post then says that one in four children in America is part of this group. That’s right, the richest nation on earth, richer beyond the ambition of countless empires of history can’t feed its population. This nation has 269 billionaires. Yet, 1/6 of the population has problems getting enough to eat. More than 35 million Americans get food stamps. More than thirty million children get government subsidized school lunches.

We can do better than this. We have a responsibility to make sure every American gets enough to eat. Yes, that includes the homeless and the “unworthy.” It might be said that if we encourage people to succeed in the free market they will solve their hunger problems through hard work and ambition. It has long been an ambition of mine to see new born babes fight their way into important corporate positions. I want to see eight and nine year olds compete with adults in a difficult job market. That will make them tough.

Well, don’t worry about them, the free market cures all. We just have to give it time.

The record is unmistakable: If you seek economic growth, social justice and human dignity, the free-market system is the way to go. It would be a terrible mistake to allow a few months of crisis to undermine 60 years of success. The Wall Street Journal

If human dignity is not to have enough to eat.

So how should one respond to issues such as severe poverty, hunger, and healthcare? I would suggest that it comes down to education, education, and more education. An individual must educate him or herself first and then educate others. Ayn Rand’s philosophy holds that historical trends are the inescapable product of philosophy. Fighting for the victory of ideas can defeat widely held ideologies that threaten liberty, private property rights, economic and individual freedom. From the BLOG, Free Market Physician
If we educate people, they won’t be hungry. (Damn those children. They just won’t get a college education until they get older. Apparently they lack ambition.)

All of us are the inheritors of this freeing of the market and the resulting technological revolution. The automobiles people drive, the televisions they watch, the movies they see, the cell phones they answer, the planes they fly, and — exemplified by Microsoft — the computers they use, all owe their development and availability to the free market. At a more basic level, we can best see the operation of the free market in the availability of an amazing variety of cheap foods for the poor and lower middle class. An American supermarket is a cornucopia of agricultural wealth, with choices of fruits, vegetables, meats, cereals, breads, wines, and so on from many areas of the United States and countries of the world. Similarly, department and hardware stores shelve, hang, and display a wide variety of goods. To see the results of freedom, you need only shop in any of democracy’s storesOn The Incredible Utopia That is the Free Market, R.J. Rummel

There isn’t any hunger. We live in Utopia. Isn’t it wonderful?

Islam’s Business Teachings

hmlbr09Islam’s Business Teachings

There are many negative stereotypes about Islam in the United States. Many foolishly belief that Islam is the same everywhere. Like Christianity, Islam has many branches.

I want to call your attention, gentle reader, to the ethical teachings of Islam in regard to business practices. Islam has particular teachings about the ethics of business. It provides guidance to its members in the business community.

Quoting from a Washington Post article:

But Islam has its own detailed system of business ethics, including a ban on interest-bearing loans and stocks and aversions to debt, hording and overvaluing. And it is becoming more of an issue as Muslims’ affluence and interest in business grows — something visible in classes such as the Fairfax Institute’s and in the appearance of Islam-friendly mutual funds and establishment of Islamic finance programs at universities such as Rice in Houston and James Madison in Harrisonburg, Va.