Thursday, June 12, 2014

Flawed Journalism on Flawed Forensics in Slate Magazine

Yesterday, Slate magazine published an article by Mark Joseph Stern announcing that “Forensic Science Isn’t Science.” 1/ The writer’s objective—to urge that forensic science be conducted rigorously and fairly—is laudable. But just as shabby science should not be tolerated in the courtroom or the police station, journalism that pays little heed to the facts should not be acceptable in serious publications.

I’ll give one example, chosen because it pervades the publication. The article begins with the claim that “[f]orensic analysis of semen introduced at trial had convinced the jury that [Earl] Washington [Jr.] ... had brutally raped and murdered a young woman in 1982.” It asks, “[h]ow could forensic evidence, widely seen as factual and unbiased, nearly send [this] innocent person to his death?” It ends with the plaintive thought that “[o]ur national experiment in untested forensics may soon be coming to a close. But it hasn’t ended in time to prevent a few more people like Earl Washington from being sacrificed on the altar of pseudoscience.”

The conviction and exoneration of Earl Washington have much to teach us about criminal justice. But it would be hard to find a worse example of “an innocent man being sacrificed on the altar of pseudoscience.”  There was no forensic evidence—scientific or pseudoscientific—introduced in the trial. Had there been, the outcome might have been different. This is the conclusion that follows from the description of the case in an important book, Convicting the Innocent, by Professor Brandon Garrett.

Garrett's research reveals that the police made every effort to keep science away when they built their case around a classic false confession from a “borderline mentally retarded farmhand” 2/ with convincing detail fed to him by police. One officer was found in a later civil rights action to have “fabricated the confession.” 3/ The alleged confession included the revelation (known to the police) of the killer’s blood-stained shirt with a torn-off patch left in the victim’s dresser drawer. Although forensic analysts had excluded five other suspects as possible sources of hairs found in the shirt pocket, “police instructed the state crime laboratory not to compare [Washington’s] hairs.” 4/

Even more telling—but untold—was the serological evidence in the case. According to Mr. Stern, it was “semen introduced at trial” that “convinced the jury.” But no semen was introduced at trial. No “semen analysis,” as Mr. Stern calls it, was offered into evidence. If only it had been!

“The semen-stained blanket from the victim’s bed was blood-typed, and that rudimentary technique had ruled out Washington.” 5/ The prosecutor would hardly want to introduce this evidence. (Indeed, it is hard to see how he ethically could go to trial without having proof that the blood-typing was incorrect.) As for the inexperienced defense counsel, 6/ “[t]he lawyer later said that while he saw the forensic reports, he ‘was not familiar with the significance of the analysis.’” 7/ Worse still, “the state concealed crucial evidence of innocence, including forensic evidence, from the defense.” 8/

In short, presenting the conviction and near-execution of Earl Washington, Jr., as the example of “a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches” disguises the real lessons of the case. The Washington case is an awful illustration of (1) evidence of a false confession that could have been prevented by proper interviewing techniques (including recording the confession); (2) willful blindness on the part of the police and the prosecution to the warnings signs in the confession; (3) suppression of and failure to pursue contradictory scientific evidence; and (4) ignorance of the scientific evidence that gave the lie to the alleged confession.

Are there real examples of “flawed forensics” contributing mightily to false convictions? Of course. Do we know how many? Not really, but whatever the precise number may be, there are too many such cases. An article making this now well known point easily could have started with a more a propos example.

Were this the only defect in the article, one might chalk it up to a combination of the expectancy effect and poor research. Perhaps the writer picked the Washington case without worrying too much about the actual facts because he already knew what to expect. (Dare I say that Mr. Stern was not writing on a blank Slate?) Unfortunately, however, there are other inaccuracies in the article. I comment on them in the next posting.

  1. Mark Joseph Stern, Forensic Science Isn’t Science: Why juries hear—and trust—so much biased, unreliable, inaccurate evidence, Slate, June 11, 2014.
  2. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutitions Go Wrong 145 (2011).
  3. Id. at 30.
  4. Id. at 35.
  5. Id. at 147.
  6. Id. at 147-48.
  7. Rather than present a vigorous defense—“[t]he entire defense case lasted only 40 minutes,” id. at 146, Washington’s lawyer—who had never tried a capital case before— “simply asked for the mercy of the jury.” Id. at 154. He did not even point out “the glaring inconsistencies” between the compliant confession and some of the facts in the case—including the race of the white woman who was murdered in front of her two children. Id. at 147. When asked whether she was white or black, Washington chose “black.” Id.
  8. Id. at 148 (note omitted). The “forensic evidence” in question seems to be the following:
    An analyst working for the Virginia Bureau of Forensic Science had tested stains on a central piece of evidence, a blue blanket found on the murdered victim’s bed, and found Transferrin CD, a fairly uncommon plasma protein that is most found in African-Americans. The analyst even ran a second test to double-check the result. The next year, when Earl Washington, Jr., was arrested, they tested his blood and found he did not possess the unusual Transferrin CD. The state did not give the defense the report indicating Washington was excluded by that characteristic. Instead, the state gave the defense an “amended” report. Without having done any new tests, the altered report stated that the results of the Transferrin CD testing “were inconclusive.” The original lab report came to light decades later when Washington filed a civil rights lawsuit after his exoneration.
    Id. at 108 (notes omitted). Inasmuch as the “inconclusive” serum protein test would not have much significance for the defense, I assume that the “rudimentary” blood-typing results that excluded Washington, which the defense saw but overlooked, would have been even more damaging to the prosecution than this amended test for Transferrin CD.

1 comment:

  1. I also found the following portion of Mr. Stern's article rather ironic:

    "Unlike medical diagnostic tools—which undergo rigorous testing by government agencies—forensic analyses are developed exclusively for law enforcement. Almost everybody will need a cancer screening some day, but you won’t need a semen analysis until you’re convicted of rape."

    Many forensic laboratories use testing procedures which were originally developed for medical purposes. For example, devices similar to home pregnancy tests are used to test for p30 (also known as Prostate Specific Antigen). In the medical field p30 or PSA testing is used to screen for cancer while in forensics the presence of p30 indicates a stain contains seminal fluid.