Pay Attention to the Monkey

When Shrub was elected was appointed anointed became President, lots of people said he was stupid. Not so, I argued.  Dumb as post in some ways, perhaps, but you don't accomplish what he did (and yeah, I know, but still) without some smarts.  Thing is, he was by many admired for a kind of thoughtlessness.   

Introspection?  Serious investigation to learn stuff?  Actual and careful consideration of opposing views?  Nah.

Is that a good thing in a President?  Shrub claimed to be The Decider.  Replaced by Kenyan Muslim America-hating former constitutional-law professor (whatever you think of how he understands the document or adheres to its strictures).

Enter the Trumpster who simply disdains the truth claiming whatever and refusing to back down when he is demonstrably wrong on the facts.  (No comment on Hillary, this is a set up, not a political diatribe, and yes, I know all politicians dissemble lie.)

Anyhow, back in 2009, the National Academy of Sciences issued a major report, Strengthening Forensic Science in the United States: A Path Forward.  The short of it is that pretty much all of forensics, the whole CSI thing, was hocus pocus.  

• Fingerprints?  Nah.  
• Ballistics?  Nope.  
• Bite mark comparisons?  You gotta be kidding.  

And so on.
  
Cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) had been buying into this bullshit for years, decades.  And it had all the scientific validity of phlogiston.

It's not that every so-called match was wrong, of course.  Hell a stopped clock is right twice a day (once in military time).  But which two times?  Aye, there's the rub (which is from Hamlet, which given enough time and enough monkeys and typewriters would get written out).  But you know, random chance isn't - or at least shouldn't - be proof beyond a reasonable doubt.

So now we know it's junk and worthless and nobody relies on it anymore cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) still buy into this bullshit. Because, well, what's the point of actually knowing shit?  

I mean, scientists with their little experiments and fancy laboratories and they think they know better than the rest of us.  Nobody cares about that.  Or believes in it.  Hell, we had a snowstorm in January, so you know global warming is bullshit.

Much of the forensic analysis used in criminal trials isn’t scientifically valid, according to a draft report by the President’s Council of Advisors on Science and Technology.

That's the opening of an article in the Wall Street Journal (which, unfortunately, is hidden behind a paywall).  

And the report ?

"It has become increasingly clear in recent years that lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system,” said the draft review by the advisory council of scientists and engineers.

Which means?

“What they’ve done is turn the accepted reliability of expert witnesses and their evidence on their heads,” said Jim Pasco, executive director of the Fraternal Order of Police. “As a result there will be people who are not going to go to jail who should be incarcerated and some who are currently incarcerated will be released. The effect will be a threat to the public safety of American citizens.”

Because of course, all that worthless stuff is really really accurate.  On those random and unidentifiable occasions.  Don't believe Pasco?  How about "Jim Bueermann, president of the Police Foundation, which does law enforcement-related research"?

“Just because there is a lack of science does not mean the analysis is inaccurate or done wrong or is not worthwhile,” he said.

Sure.  I mean, nobody actually knows if it's meaningful.  But it snowed one day in January.

And the cops and prosecutors and judges and juries (and god help us far too many criminal defense lawyers) . . . .

Aye, there's the rub. 

95% Error Rate

They call themselves criminalists or forensic scientists or something with a fancy name.  They come into court explaining that they've done these tests hundreds of times.  There are, they say, a whole bunch of points of comparison.  And when they find a match, they can point to those points.  

You probably can't see those things certainly not without the forensic scientist pointing them out.  That's because you haven't been properly trained.  Had you been, just like those forensic scientists, you could see them.  And like those forensic scientists, you'd know.  Because, as they like to say on the witness stand, they're never wrong.

Except, of course, they are.  

Nearly 20 years ago, Fred Whitehurst blew the whistle on FBI's flawed, and sometimes dishonest, forensic work.  The Inspector General issued a scathing report.  The Department of Justice promised to review everything, opening case after case.  And then to right the wrongs.

In 2004, no wrongs having been righted, they stopped.  No flies on them.  Until they investigated again.  And concluded that just maybe.

I've written before about the FBI's "stunning" admission that hair comparison, the very hair comparison its forensic guys testified to thousands of times, is bullshit.  And while they claim they're getting the word out to the boatloads of folks who were convicted based on that testimony, well, we'll see how that goes.

While we wait, turn to Al Jazeera America Monday night for Fault Lines.*  Monday's show is "Under the Microscope: The FBI Hair Cases," and it tells that story.  

More, it tells of Joseph Sledge who spent 37 years in prison for a pair of rape murders he didn't commit.  It was an horrific crime scene.  Blood everywhere.  Everywhere except on Joe Sledge.  There were palmprints in the blood.  They weren't Joe's.  But there were also a handful of hairs.  Those, the FBI's crack hair analysts said, those were just like Joe's.  There are 16 points of comparison.  They matched up at all 16.

It tells the story of Kirk Odom, arrested at 18 for a rape he didn't commit.  But the hair, the hair.  And Santae Tribble.  He was 17 when the cops got him for murder.  There were 13 hairs.  It was a murder case.  The FBI had two of their forensic scientists look at them.  Match his hair, they both said.  

You know what happened next.  DNA testing on the hairs.  On the hairs that convicted Joe and Kirk and Stantae.  On the hairs that weren't theirs.  In Santae's case, one of the hairs that sent him down for murder, one of the 13 hairs hairs that the crack guys from the FBI told the jury was just like his, so, you know, . . . . That hair came from a dog.

A fucking dog.  Who he says probably committed the crime.

The bureau's released some preliminary reports on its latest round of reviews.  26 out of 28 of the forensic scientists made false claims at trials.  David Colapinto, General Counsel of the National Whistleblowers Association explains, 

We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time.

They concede that their experts said things that weren't so in helping convict Odom and Tribble. They didn't find a problem in what their folks testified to in sending Joe Sledge to prison for murder.  It just happens that when DNA from the hairs in his case was analyzed, well, they were wrong.  Wasn't him. Just like he'd been saying since he was arrested.  

Because hair comparison, even when done right and testified to accurately, is bullshit.  The comparison microscope is a lovely thing.  But the FBI forensic folks who use it, they aren't scientists. And what they're doing isn't science.  

If you read this blog, you know all that.  You should watch the show anyhow.  It brings home the human dimension and slams home the real science.  And how else will you learn Joe Sledge's answer to the question:

What can they do make this right for you?

--------------------
*Lest there be any confusion, Al Jazeera America's Fault Lines is not affiliated (so far as I can tell) with Lee Pacchia and Scott Greenfield's group blog Fault Lines at which I've been writing lately. 


NB: Thanks to Al Jazeera America for making the show available to me for review.

Convicting Them Anyway

Failed Evidence: Why Law Enforcement Resists Science is the latest book by David A. Harris.

David is (full disclosure here) a friend.  He's also the Distinguished Faculty Scholar and Associate Dean for Research and Professor of Law, blah, blah, blah at the University of Pittsburgh (which is where I went to college several decades before I met him but not where I went to law school which is also not where I met him - this digression is going on too long and to little point).  David also wrote Profiles in Injustice: Why Racial Profiling Cannot Work (a really terrific and important book that remains timely well over a decade after it was first published) and the good but less satisfying (sorry, David) Good Cops: The Case for Preventive Policing.

Failed Evidence is another in a series of books about the too-common failures of cops and lab techs and prosecutors, on how they screw up and go after the wrong people.  Others include Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent (reviewed here), Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent (reviewed here), and Brandon Garrett's Convicting the Innocent: Where Criminal Prosecutions Go Wrong (which for some reason I never got around to reviewing).

I said that these books are about how those folks "screw up." Although there's a nod to it here and there, none of the books is concerned with actual misconduct.  They don't talk about framing innocent people, about the rush to judgment, about hiding (or fabricating) evidence, about the forensic pathologists who don't even bother to do autopsies but claim they did and testify that they revealed whatever the prosecutors want them to say.  They aren't concerned with testilying or violations of Miranda rights or the Fourth Amendment protections against searches and seizures- or with the evisceration of those rights by the courts.

They are, instead, about how with the best intentions in the world, things just go wrong.  Cops believe they can tell who's lying because they have this special spidey sense that lets them know; everyone believes that fingerprints are infallible because gosh they are; and DNA is great for convicting the guilty but close to worthless for exonerating anyone already convicted 'cause that would mean we fucked up - which we don't do.

The authors know better (as does anyone with even a slightly open mind who pays any attention). Each book has its strengths and weaknesses.  The particular strength of Failed Evidence comes from its combination of lucidity and focus.  

David takes on false confessions, troubling eyewitness identification, and the forensic vagaries of trained lookers (fingerprints, tool marks, bite marks, and the like).  He explains how it is that innocent people are led by police to confess to crimes they didn't commit.  He explores how study after study demonstrates that traditional photo array and lineup procedures lead to faulty identifications.  He talks about how there's simply no actual evidence that fingerprint or toolmark identifications are accurate and how bite mark evidence is notoriously unreliable.  And then he explains how it is that police and prosecutors don't believe any of that stuff and don't want to do anything to reduce the error rates.

It's not that they don't care about convicting the innocent.  It's just that . . . .  Hell read the book.  David does a better job of explaining how the most honest and well-intentioned oppose use of best-practices better than any other book I know of.

The weakness?  He's too trusting.  They care, they really care.  But they just can't.  Except it ain't so. He points to a few places where advances have been made and says, 

See, you can make it happen in your city/state too.

But the examples show just the opposite.  The examples he discusses: Dallas and Houston prosecutors, and New Jersey identification procedures, aren't the results of people working the system for significant change.  They're the actions of, in each case, one official who happened to be committed to something. That's not why they got in office.  It's just that they did.  And they acted.

But you can't expect widespread reform based on the assumption that a benevolent despot will be coming to every neighborhood.  And there's no realistic way to insure that any despots you happen to get will be benevolent.  The counter-example is Ohio where the legislature actually enacted some significant reforms in eyewitness identification and interrogation procedures.  The downside is that they have no teeth.  The law says that they must be followed except when they aren't.  Time will tell, I suppose, whether they truly prove to be more than cosmetic.

Beyond that, too little.  The particular list of incremental reforms he says must be enacted - good idea, but again, no real program for how to do it.  Consider the insistence that the courts and the defense bar must "Make Daubert meaningful in criminal cases."  Daubert is the case that sets out the rule that courts should exclude junk science and faux expertise from the courtroom.  He's right that they don't in criminal cases.  And he's right that defense counsel don't insist on it often enough.  But beyond urging, how to make it happen?  How to get judges actually to exclude fingerprint or toolmark or bitemark evidence even though none of those things have any validation studies behind them? (Harris actually and apparently just on faith believes in fingerprints and toolmarks, it seems, though he thinks they need more study and the so-called experts shouldn't overstate their findings.)  They must, he says.  But that's not a program.

And there's so much more.  Snitch testimony?  He doesn't take it on.  Lab techs who don't bother to actually do the testing but write up and testify to the results anyway?  He doesn't take it on.  Cops who routinely violate the Fourth Amendment? Testilying?  Courts that let them get away with it?  He doesn't take it on.  And god help us, overcriminalization?  Not touched.

OK, that's not an altogether fair complaint.  Failed Evidence is about what it is.  Hard to complain that it isn't also about something else.  Yet, what it addresses is the tip of an iceberg.  

The innocent are convicted of all sorts of crimes not based on any flawed evidence at all but based on threats of decades in prison if they don't just enter pleas.  They're convicted because they can't afford bond and have spent more time in custody waiting for trial than their possible sentence.  They're convicted because they're pigmentation is wrong and their wallets insufficient.  They're convicted because prosecutors and cops lie and cheat.  They're convicted because defense counsel are overworked underpaid, and too often incompetent.  They're convicted because judges run for election or hope for better appointments and besides, they're prosecutors themselves only they wear robes. They're convicted because jurors believe what they want and because "beyond a reasonable doubt" too often translates into "where there's smoke there's fire."

They're convicted, that is, because the system is fucked.

The remarkable thing is that it isn't worse.

But I digress from the main point.  Which is that Failed Evidence is really good and David Harris makes a significant contribution to the literature of how the innocent get convicted of crimes and how it is that cops and prosecutors don't do more to prevent that.

You Thought NSA and DEA and the Rest of the Alphabet Agencies Were Invasive? You Ain't Seen Nothing Yet!

How different is that from Big Brother?

So wonders Alan Alda as yet another academic neuroscientist runs yet another subject through the functional MRI machine and gets a hint of what they may someday be able to tell.

Used to be if they wanted to figure out if someone was a witch, they'd tie the person up and toss her in the water.  If she sank, she was innocent.  Ah, but if she floated up to the surface and escaped . . . . Only a witch could do that.  How much better we are now, what with lie detectors and the collective guesses of 12 good men (and women) and true.  And we have all that nifty forensic bullshit of fingerprints and bite marks and ballistics that trained lookers just know provides proof positive because dammit those things look alike and they can't ever be mistaken about that sort of thing.  Just ask Brandon Mayfield, who was positively and repeatedly identified by the best fingerprint examiners at the FBI as the guy who bombed the train in Madrid because his

Ooops.  Son of a bitch.  They fucked up.  Not him.  Innocent guy.  Shit.  That can't happen.

But just suppose. Suppose that the next wave of forensic scientists can look inside your brain.  Imagine that they can roll you into the magnetic resonance imaging machine, do what's called a functional MRI (fMRI to the cognoscenti), and tell from the parts of your brain that light up when you answer questions whether you're lying.  Or whether that person you identified is someone you've actually never seen before.  Or whether the guy who says I was never in that 7-11 actually has a picture of it etched into his brain in a way that the fMRI can develop.

That's the sort of thing that explored in a frankly fascinating - and if you believe in autonomy and civil liberties and due process and our adversary system of justice fairly terrifying - two-part series on PBS to be shown September 11 and 18.  (And thanks to PBS and WNET for providing me with an opportunity to screen the series in advance.)  It's called Brains on Trial, and it's well-worth watching.

Start with a fake crime.  Three guys burst into a carry out to rob the joint.  One's pointing a gun at the guy behind the register.  It's loud and messy and naturally the guy's wife comes out from a room at the back and the one with the gun is startled and frightened and turns and pulls the trigger.  She lives, but with massive brain damage.

From fake crime to fake trial.  But in a real courtroom with real lawyers, an AUSA and a criminal defense guy.  And a real judge, the Honorable Jed Rakoff.   And there's a jury (we don't learn who they are).  Of course, the trial is truncated and scripted and shown in fragments and lasts all of maybe 6 or 7 minutes if that (I didn't time it).

But the faux trial, like the faux crime, is just window dressing.  The real show is what the various neuroscientists and researchers show Alda about where their research seems to be heading.  And Alda's chats with Duke Law Prof Nita Farahany about what it all means and how it can be used in a courtroom.  (Gee, if they can read the defendant's brain from a distance does the Fifth Amendment's protection against self-incrimination apply?  Tough call, Nita says while ignoring completely the 4th Amendment implications.)

Some of this stuff isn't quite so cutting-edge as they'd like you to believe.  We've known for a while now that the brain does not fully develop, it's wiring doesn't get properly wrapped, until a person is around 25. The loosely wired brain suffers from weak judgment and poor impulse control.  That's why kids are, well, kids.  And it's why the legal system treats them differently.  And, frankly, it's why it should treat young adults differently, too.  A point Alda and Farahany discuss and agree on.

And some of it - well, the idea of running scans of psycopaths so that (at least this is the suggestion) similar scans can be done of the convicted to determine whether they're psychopaths and should therefore be locked up forever.  Except, of course, the whole idea of psychopathy is something of a parlor trick and psychological charlatanism.  And the test - we'll look at the brains of psychopaths to tell whether they're different so we can figure out who's a psychopath - is self-referential and circular and built on a foundation of bullshit.

Some of what we learn about, on the other hand, is quite stunning.  It turns out, at least according to one study, that when adolescents are with their friends, just the fact of the friends' presence makes a serious difference in their behavior.  Alone, they're just like adults.  But while adults are the same with friends as they are alone, adolescents become more reckless, more impulsive, inclined to show off. It's not that the friends distract or egg them on.  It's just their presence.

It's when you put adolescents with their friends that their behavior and their brain pattern changes.

Maybe.  As I said, it's one scientist's study.  And of course it's preliminary.  And maybe there are a dozen other neuroscientists who get contradicting results.  I don't know.  That's the problem across the board.  Where the studies are truly at the forefront, breaking new ground, figuring out how they can use fMRI to measure and predict and reveal details about behavior, they're not trustworthy - at least, not yet.

This not-science-but-we're-working-on-it isn't ready for prime time (except on TV where it's in fact being shown in prime time).  When it is, if it is someday, if the scientists can simply look inside the brain and see just what happened and why, if they'll be able to determine actual remorse, if they can show that to the jury.

Which brings us back, of course, to the adversary system and those 12 good people and true.  And again to Nita Farahany who observes, rightly, that

every time they bring new science into the courtroom, there's an overreliance by the jurors.

They believe.  They want to believe.  Because the men in lab coats who speak with such certainty.

Of course, this is television even if it's PBS.  That means sexy wins out over careful.  It means more focus on the hocus pocus and the sci-fi and less on the hang-on-this-may-just-be-bullshit.  See, here's a clip that didn't make it into the finished product.  But it's an essential caveat.

Take a Deep Breath and Lie Through Your Nose, Pinocchio

A few days ago, I stumbled across Matt Zapotosky's story in the Washington Post about the unlikely prosecution (well, really, no prosecution is unlikely these days) of Chad Dixon for teaching people how to beat the Magic 8 Ball polygraph. It seems that back in December, Dixon pleaded guilty to federal charges of wire fraud and obstruction of an agency proceeding.

In the eyes of federal prosecutors in Virginia, Chad Dixon is a brazen criminal whose misdeeds threatened border security, state secrets and young children across America. They say he taught convicted sex offenders and aspiring federal law enforcement officers how to cheat their court- or job-imposed lie detector tests — even when he knew that they planned to use his advice for nefarious purposes.
. . . 
He is accused of teaching what prosecutors term “polygraph countermeasures” to as many as 100 people across the country — among them convicted sex offenders in the Washington area and undercover agents who told Dixon that they would use his techniques to cheat their tests for Customs and Border Protection jobs.

As a friend once put it, "Oh my stars and garters!"

Friday, Dixon was sentenced, and Zapotosky has a follow-up story.  Prosecutors asked Judge Liam O'Grady to lock Dixon up for at least 21 months.  O'Grady declined as he declined simply to give him probation.

O’Grady, though, rejected Dixon’s request for no prison time, saying that Dixon “went into this business for greed” and his teachings “potentially caused a great deal of damage.” He noted that Dixon — who pleaded guilty in December to wire fraud and obstruction of an agency proceeding — went too far when he helped undercover agents learn to cheat the polygraph after they told him specifically that they intended to lie as they applied for federal jobs.

See, Dixon's motives weren't pure.  And who knows what evil might have ensued if . . . . Well, if the undercover agents who said they wanted to cheat to get government jobs were real applicants for the jobs and if they were actually successful in cheating the machines because of what Dixon taught them and they actually got the jobs and actually turned out to be sleeper agents of Al Qaeda or something.

Still, 21 months was too much.  O'Grady gave him 8 months in the slammer. He explained.

There’s nothing unlawful about maybe 95 percent of the business he conducted.

But what of that business?

[H]is instruction was sometimes as simple as “relax and breathe normally.”

For this, Dixon charged as much as $1,000.  As P.T. Barnum is regularly (though perhaps improperly) credited with saying

There's a sucker born every minute.

OK, a couple of points need to be made here.

First, it's not at all clear that Dixon actually committed any crime.  His plea makes him legally guilty, but did he actually, factually, violate any law?  And if so, is it a law we want to enforce against someone as evil as Dixon?  Convincing the gullible to overpay for something of little value may be immoral (or may be the essence of Americanism - which depending on your perspective could be the same thing), but it's hardly criminal.  Still, he did claim he was teaching people to cheat, and some of the would-be cheaters said that they wanted help scamming the feds, so he might be factually guilty (or a jury might have found him to be) of a conspiracy offense from which he pled down.

Second, and far more important, polygraph results generally aren't admissible in court.  Why?  Because 

1. They're bullshit.
2. Juries believe them.

And if you don't believe Number 1, then think about how it is that Dixon so scared the federal government.  They knew that it was possible to fool the machine by parlor game tricks (like breathing).  And if the machine can be intentionally fooled that easily, it's close to worthless.

Except for the fear thing.  Which is why Judge O'Grady was absolutely right about the machines.

“They’re very useful tools,” O’Grady said, “until you turn the machine on.”

From AntiPolygraph.org