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Tuesday, January 10, 2006

Developments in Innocence

Jason Solomon (law, UGA) and Brandon Garrett (law, UVA) have a short and interesting piece they just wrote in the National Law Journal entitled Judging Innocence, which provides some background on a couple pending cases in the Supreme Court.  They write:

This winter, the U.S. Supreme Court will take a legal journey through the foothills of the Blue Ridge Mountains, from eastern Tennessee to northern South Carolina-the sites of two gruesome deaths that led to two questionable death sentences. In each of the two cases-House v. Bell and Holmes v. South Carolina-the defendant claims that he is innocent, forensic evidence was fabricated and the jury never heard evidence that another person committed the crime.  Justice Antonin Scalia called the question of whether the Constitution might permit execution of an innocent person "embarrassing" in a 1993 decision. Now the Supreme Court faces two fresh embarrassments. So far, the appellate courts have all regarded the evidence of guilt as "overwhelming," but only by discounting the evidence of innocence.

The piece builds, in part, upon a shrewd recent piece of Jason's in the Northwestern L. Rev., available here.  (Update: you might also want to check out Brandon's related and recent piece, available here.)  Of course, DNA evidence is powerful stuff and it is has been intoxicatingly effective in convincing people of innocence at times; but it also can create false illusions of culpability when the DNA evidence appears to show a connection to the defendant.  That's why it's crucial to understand that DNA evidence itself can be mishandled, with treacherous consequences. 

Indeed this came to mind just recently, when a lawyer from Fried Frank sent me the press release and report of the team conducting an independent examination of the Houston Police Department crime laboratory.  I've written about the HPD crime lab story before in the context of Ruben Cantu and the death penalty more generally.  Although I haven't made it all the way through the 115-page report yet, there are some highlights that merit mention here, after the jump.

This is from the press release:

The 82-page Fourth Report summarizes the independent investigation’s findings based on 1,100 case reviews performed by Mr. Bromwich’s team since September 2005 across all of the forensic science disciplines historically practiced in the Crime Lab. The investigation has found that competent and high quality work was performed by analysts and examiners in several sections of the Crime Lab, including in particular in the areas of firearms examination, toxicology, and questioned documents examination. Mr. Bromwich’s team, however, has found “severe and pervasive problems” with the serology and DNA profiling work performed in the Crime Lab during the entire period subject to review, from 1987 through December 2002 when the Crime Lab’s DNA section was closed following an outside inspection. To date, the investigation has identified major issues in 27 DNA cases analyzed by the Crime Lab in the 1990s and early 2000s, including significant deficiencies in the DNA analysis performed in the cases of three death row inmates – Franklin Dewayne Alix, Juan Carlos Alvarez, and Gilmar Alex Guevara. Specifically, reviews of the Crime Lab’s DNA cases has revealed that the Lab:

In certain cases, including in a death penalty case, failed to report reliable and potentially exculpatory DNA typing results and instead reported questionable DNA typing results that inculpated the suspect; frequently generated poor quality DNA typing results due to a combination of poor technique and possible contamination; reported misleading statistical information regarding the significance of its DNA profiling results, particularly in cases involving mixtures of bodily fluids from more than one person; failed to use proper controls to guard against, for example, sample mixing and contamination; and failed to perform and document meaningful reviews of the technical work performed by the Lab’s DNA analysts.

Mr. Bromwich’s team also has found very disturbing problems with the Crime Lab’s serology work during the late 1980s and early 1990s. Forensic serology practiced in the Crime Lab involved primarily the use of ABO blood typing techniques to associate or disassociate individuals with evidence. Not surprisingly, almost all of problems the independent investigation found in the Lab’s DNA cases – including inadequate training of analysts, lack of supervisory reviews, failure to report the statistical significance of test results, and failure to use necessary controls – had their roots in the Lab’s serology work.

Posted by Dan Markel on January 10, 2006 at 12:55 AM in Criminal Law | Permalink

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For once we agree. I was defending cases before DNA, when Human Leucocyte Antigen was used. I mistrusted the methodology and the statistical base. But the worst thing was its impact on the finder of fact. As honest as the scientist was in his testimony, his saying that the HLA excluded, e.g., 98% of the population was turned into that there is a 98% chance that the defendant is guilty and not that 5 million other Americans could also have committed the crime. And, if you would like, you may wish to examine the witchcraft which is practiced with forensic ballistics -- the marks of land and grooves on a bullet. A lot of this so-called scientific evidence is in the same realm as Intelligent Design. As for the cases you cite ... De purgamentis non curat praetor. Judges do not waste a lot of thought on lowlifes. They are probably guilty of something else anyway.

Posted by: nk | Jan 9, 2006 9:20:41 PM

facinating article

Posted by: criminal records | Jan 12, 2006 2:31:43 PM

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