It's Something, But I'm Not As Excited As They'd Like Me To Be

CSI.  Crime scene investigators.  Criminalists.  Forensic scientists.

The ones with the gold-standard techniques and unquestioned integrity to identify and convict the bad guys.  Except, too often the gold is pyrite.

And the bad guys, or and sadly, too often the unfortunate good guys?  Well, who's to say.

It's really a congeries of problems:

• Incompetence
• Dishonesty
• Confirmation bias
• Prosecutorial bias
• Junk science
• Ignorance

I've written about this stuff before (see, for instance, here and here).

Nobody knows the size of the consequential enormity.  What we have to acknowledge, if we look with clear eyes and allow ourselves to accept the evidence, is that it's huge. 

Spencer S. Hsu in the Washington Post.

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

Which could be, and really is, quite something.  Though not so much as it sounds like.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

There are four really important things to say about this besides, "Good idea."

First, it's about damned time.  See, there's nothing new here.  The FBI has known for years, for a couple of decades, in fact, that at least some of their hair and fiber analysis is conducted incompetently and reported dishonestly.  And they haven't much cared.  People convicted who, even if guilty, otherwise wouldn't have been? People convicted who are factually innocent?  They knew.  They just didn't know exactly who.  And they didn't care to find out.  Nor did they bother to get word out that some enterprising defense counsel might want to investigate.

Second, it's not just the FBI lab guys.  The folks who examine hair and fiber at the state labs? At other federal labs?  Guess who showed them how to do it.  The FBI can review away, but there are tens of thousands of cases they won't be able to review because they weren't done by them.  But they were done by folks they taught badly.

Third, this is junk science under the best of circumstances.  You want to match hair?  Do DNA testing.  For all its flaws, DNA is actually science.  This hair looks like that one?  It's bullshit.  I'm not saying the results are always wrong.  I'm saying they're wholly unreliable.  If there's a determinable error rate, and I suppose there might be, nobody knows what it is. 5%? 95%? Your guess is as good as theirs.  Fiber matching is even worse.

Fourth, hair and fiber are a start, but the truth is that much of what passes for forensics is worthless.  The National Research Council report in 2009 made this abundantly clear to anyone who paid attention and cared.  There's no talk about reviewing all the bullshit forensic fantasy they've unleased.

Here's Hsu again.

The review comes as the National Academy of Sciences is urging the White House and Congress to remove crime labs from police and prosecutors’ control, or at least to strengthen the science and standards underpinning the nation’s forensic science system.

But, and again, we've known all this for years.

And to those who say,

Fuck it.  They're guilty anyhow.

The simple answer is that they're not.  At least some of them aren't.

The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled. 

Let me highlight three words from that paragraph.

Known for years.

Oh, and there's this.

In its April report, The Post identified two District men convicted largely on the testimony of FBI hair analysts who wrongly placed them at crime scenes. Santae A. Tribble, now 51, was convicted of killing a taxi driver in 1978, and Kirk L. Odom, now 49, was convicted of a sexual assault in 1981. Since the Post report, Tribble’s conviction was vacated, and on Tuesday, prosecutors moved to overturn Odom’s conviction and declare him innocent. The Justice Department had not previously reviewed their cases.

Hsu wrote the Post's April article, too.  Here's a bit of it.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.
The case of a Maryland man serving a life sentence for a 1981 double killing is another in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for the man, John Norman Huffington, say they learned of potentially exculpatory Justice Department findings from The Washington Post. They are seeking a new trial.
Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly. 

Forget the stories of the late Ben Boyle and Mr. Huffington.  Focus, instead, on that last sentence.

They didn't bother to inform defendants because they weren't required to.

Hey, what more could you ask then that they'd tell the prosecutors who, of course, promptly dropped everything and undid the convictions, offered apologies, and . . . . Oh, wait, they didn't.

See, they had other things to do.  The defendants? 

Hell what did they care?

So good for the FBI.  But let's not get carried away with the praise.