Something Wicked This Way Comes

I recently watched the documentary, Making A Murderer, and if you haven’t yet, you should. No, it’s not an indictment of all law enforcement. It’s an object lesson in why we should be deeply skeptical of power and the people who lord it over our lives. And how easy it can be for them to get you, too, especially once they’ve called you a murderer.

So go ahead and watch it if you haven’t already, and watch it again if you have. Then form your own opinion. Mine is that something stinks to high heaven, and there’s probable cause to believe that the real criminals are getting away with it. Here’s a little bit of the why.

It was 2005, and Steven Avery had filed a lawsuit.

His lawsuit had named the former county sheriff and district attorney as defendants, and those men had reason to be worried.

Some of their lead deputies had royally stepped in it by the way they had handled Avery’s 1985 rape case, which is why Avery had sued them in the first place.

The deputies had purposely withheld material evidence in the rape case when they knew or should’ve known that another suspect, Gregory Allen, was the real rapist. They suppressed that evidence even after new DNA testing pointed to an unknown third party. They hid that evidence even as they watched Avery desperately plead his case on appeal.

Then, in 2003, Avery was exonerated when advancements in DNA testing were able to conclusively identify Allen as the rapist. So Avery was cleared, and he filed a $36 million lawsuit for the eighteen years he spent in prison at the hands of their misconduct. That was $1 million for each year in prison plus $18 million in deterrent, punitive damages.

His lawsuit was getting traction in the second half of 2005, and the defendants had reason to be worried. Some of their deputies had already been deposed on September 22, October 11, October 13, and October 26, and those depositions had not gone well. The evidence was embarrassing to all involved, and it was leading upstream.

The sheriff’s and district attorney’s own depositions were scheduled for November 10 and November 15, respectively, and the county’s insurance company had taken the position that it would deny any coverage because the case involved intentional misconduct.

That meant the defendants faced the prospect of a massive personal judgment if they were found liable, along with other civil and criminal consequences.

Then, on November 3, a woman went missing.

And the rest you can judge for yourself.

May the chickens come home to roost.

The Age of Innocents

Ten times a month.

That’s how often an innocent person is freed from prison in our country, according to this 60 Minutes segment that aired Sunday night. And those are just the ones we know about.

I suspect the number comes from the National Registry of Exonerations, which recorded 125 exonerations in the year 2014. That year set a new record for known exonerations since the National Registry started keeping track of them. It exceeded the previous record, from 2013, by 37 percent. They don’t have last year’s tally yet, but you can browse the Registry’s website here, and you can read more stories about known exonerations here and here.

The 60 Minutes segment featured interviews with the following three people who lost large chunks of their lives to wrongful convictions.

The first is a black man from Alabama who spent thirty years on death row before he was exonerated last April. He was convicted based on a witness’s misidentification, and after thirty years in prison, he’s still learning that he’s free to shower every day if he wants to and that he doesn’t have to get up for breakfast at 3am. He’s never received a nickel of compensation or an apology from the state.

The second is a white man from Connecticut who spent 21 years in prison for rape and murder before DNA evidence cleared him. His conviction was based on misidentifications by witnesses who collected a $20,000 reward. He’s doing better now, but after his release, he would sometimes barricade himself in his closet and sleep there because he was afraid someone would kick his door down and drag him back.

The third is a white woman from Michigan who spent over five years in prison for child abuse before new medical evidence freed her. She was convicted because emergency-room doctors suspected her of shaking her sister’s baby, whom she was raising, to the point of brain damage. As it turned out, the baby had suffered a natural stroke. After her release, the woman found herself homeless for a time because she couldn’t find a job; she had a five-year gap on her resume to explain, and when she’d tell potential employers the truth, she never heard back. She’s never received any support or compensation from the state.

As a defense lawyer who pays attention to these stories, I come across one or more of them each week. Here’s another one from last October about a man in California who was cleared of child molestation after fifteen years in prison. And here’s another about a man from New York who was released after 25 years for arson and murder charges that were based on junk science. They are products of a human system that makes mistakes as often as we do.

And these are just the ones we know about.

The Surprisingly Imperfect Science of DNA Testing

That’s the title of this in-depth look at DNA testing through the lens of one cold murder case.

Although DNA evidence is widely regarded as the gold standard of forensic science, we should be careful about checking our brains at the courtroom door just because the government exclaims, DNA!

The science works well when we can test an ample, well-preserved sample of a person’s DNA, and when it’s obvious how the sample got to the alleged crime scene, and when investigators and crime labs don’t make mistakes in collecting and testing it.

But that’s not the norm, of course.

The reality is we’re not always able to collect enough DNA to test well. The sample may be too small, or it may have degraded over time, or it may be mixed up with other people’s DNA. In one case, police had collected a partial sample from blood that was found at the scene of a burglary, and it seemed to match the profile of one man definitively. The only problem was that the man suffered from advanced Parkinson’s disease and could barely walk, which made him an unusual burglary suspect. The police arrested him anyway, though, because the odds were supposedly only one in 37 million that it was someone else. Those odds were wrong, however, and later, more advanced testing revealed that the man shared a partial profile with the true culprit.

Nor is it always clear how our DNA ends up where it does. The reality is our cells often find their way into our environment, and sometimes, our DNA winds up in places we’ve never been. In one case, police had discovered the DNA of a homeless man on the fingernails of a murder victim, so they arrested the man even though he seemed to have an airtight alibi: he was unconscious in a hospital bed at the time of the murder. The man ended up spending five months in jail until the authorities realized why his DNA was on the victim’s fingernails. The same paramedics who’d transported him to the hospital had responded to the murder afterward, and they’d clipped the same oxygen-monitoring probe to both persons’ fingers.

Finally, human error can affect the collection, preservation, and testing of DNA evidence at each link in the chain of custody as well as afterward, when analysts may need to interpret test results. While some crime labs are better than others, interpretation begets subjectivity, and subjectivity breeds error. A recent government survey, for example, asked 108 labs to look at a three-person mixture and determine whether a suspect’s DNA was present in the sample. Fully 70 percent of the analysts determined that it could be in the mix, while 24 percent said the data was inconclusive. Just six percent determined correctly that it was not.

FBI Acknowledges Rampant Errors in Microscopic Hair Analysis

On Monday, the FBI and the Justice Department announced the first results of a large-scale project called the Microscopic Hair Comparison Analysis Review, and they weren’t good.

Here’s how the Washington Post broke the story:

“The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

It’s unfortunate, but it’s true. Here’s a copy of the press release from the FBI’s website. It’s a story that’s traveled across the country and around the world.

The three-year-old project to review these cases was spurred by three high-profile exonerations, beginning in 2009, of men who were convicted at least in part by testimony from the FBI’s unit for microscopic hair analysis. That same year, the National Academy of Sciences released a landmark report on the state of forensic science in America, and it referred to the practice of using only microscopic hair comparison to connect a defendant to a crime, without DNA testing, as “highly unreliable.”

Since then, the government has partnered with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) to review the FBI’s cases and determine whether its examiners made erroneous statements that favored the prosecution—by, for example, implying a definitive match or otherwise overstating their findings. The project focuses on cases from before the year 2000, when the Bureau fully deployed mitochondrial DNA testing of hair samples.

So far, the FBI has searched more than 21,000 cases in which the unit was asked to perform microscopic hair analysis, and of those, it has identified nearly 3,000 cases in which examiners submitted a written report or testified at trial.

Of these 3,000 cases, the Bureau has reviewed about 500 so far, including 268 trials.

The results? Of the 268 trial transcripts reviewed so far, examiners made erroneous statements in 257 of them, or 96%. Every one but two of the unit’s 28 examiners made erroneous statements in their reports or testimony. Of the 35 cases that resulted in the death penalty, they made errors in 33 of them (94%). Nine of these defendants have been executed already, and five more have died of other causes while on death row.

According to Peter Neufeld, a co-founder of the Innocence Project, “These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution’s case.”

Adds Norman Reimer, executive director of the NACDL, “It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed.”

The FBI has agreed to provide free DNA testing in response to a court order or a request by the prosecution, and in federal cases, the Justice Department will not oppose new-trial petitions for procedural reasons like the statute of limitations.

The majority of the FBI unit’s testimony, however, was provided in state cases, and it’s unclear whether individual states will follow suit.

Nor does the project pertain at all to the many thousands of cases in which microscopic hair analysis was performed by state or local crime labs.

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