Bench Notes: CSI Episode Reviews

This is a follow-up story to “Bullet Lead Analysis Case Convictions Under Fire”

The following article was originally posted here.

As technology changes, new techniques will give more reliable results than old one. It’s the way of technology, and forensic science is no different.

What forensic scientists need to be careful of misrepresenting the meaning of test results. When it’s done either deliberately, or unintentionally, the results can be catastrophic for a trial.

“Bullet lead analysis” viewed as discredited evidence

Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.

Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.

While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation’s criminal justice system. The “bullet lead analysis” that was the prosecution’s primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.

Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.

We’ve seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist — or how often they have resulted in innocent people being convicted.

But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system — and democracy itself — this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.

In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate’s request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.

A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.

A former Oregon State University researcher in the university’s Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon’s garage. He told jurors there was only a 1 in 64 million chance of getting that match.

Now Cannon and his legal team are finalizing his claim of “actual innocence” for next month’s hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited “junk science” called bullet lead analysis — evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and “60 Minutes.”

Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. “All that we track is how many of the nation’s 239 wrongful convictions overturned with DNA testing involved forensic problems,” Ferrero said. “On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science.”

In Cannon’s case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon’s attorney. The rest was circumstantial. “If you’re telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant’s garage, well, what else do you need? That’s it. It’s over,” Geiger says. “The problem is, it just wasn’t true.”

Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis — often seen as the “magic bullet” of the criminal justice system — has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.

In February, the National Academy of Sciences released a comprehensive report citing “serious problems” in the scientific evidence being presented every day in courtrooms around the country. The academy found “no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

Where does that leave Cannon and others serving life or living on death row?

Oregon Department of Justice officials declined to comment on Cannon’s upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. “The post-conviction relief process is exactly the appropriate place to sort out these things,” said Tony Green, a department spokesman. “The FBI is no longer doing these tests because they don’t consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We’re interested in getting to the truth. We have a higher obligation to the truth.”

In addition to attacking the bullet evidence, Cannon’s legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution’s key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.

After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon’s attorney, says his client is “incredibly intelligent” and has worked tirelessly on his own behalf.

Cannon’s legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon’s case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.

At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason’s investigative work on Cannon’s case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison — either on death row or as a lifer, like Cannon.

A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.

This may be the greatest crime of all.

The following article can be viewed in full here.

The article opens up with this statement:

Get ready to trade your lab coat for a suit coat. A U.S. Supreme Court ruling last Thursday will require crime lab analysts to appear in court and submit to cross-examination if their reports are entered into evidence. This ruling could have tremendous impacts on how crime labs operate and exacerbate the backlog problems that plague crime labs nationwide.

It’s interesting to see the point of view from people who apparently don’t already have state laws that enforce this rule. Please note the individual states will put some kind of rules in place, but one would expect the expert to not have to show up, if both side stipulate to the results of the analysis.

If they don’t stipulate the only change here is the burden is being put on the state to have their witness present, instead of the defense having to hunt down the witnesses for the state.

The recent Supreme Court of the United States (SCOTUS) decision in Melendez-Diaz v. Massachusetts has sent a shockwave through the forensic science community in the United States.

In a community comment forum for forensic scientists, there was a comment from an analyst from another country, that stated they didn’t see what the big deal was with the ruling, because in their country, they are rarely called, because the judges usually already know about the science, and make their rulings on guilt or innocence using just the written report. I replied with the following:

The difference is that in the USA, it isn’t a judge determining the outcome of the case. Instead it is a jury of citizens who might never again sit on the same type of case to become “experts” themselves.

Concerns are a bit overblown though. First of all it is the duty of a forensic scientist to not only analyse evidence accurately, but to also be able to professionally, accurately, and impartially explain what tests they performed, what the results were, and what that means in relation to the case.

Some jurisdictions have “sheltered” the scientists from having to stand up to cross examination regarding their work. The court ruling will cause those who can’t testify well to either quit, get fired, or be promoted to positions where they won’t have testify [off the bench supervisory positions].

As time goes by, the local defense community will no longer want the scientist to actually testify, and will stipulate to their results – as long as that particular scientist does a good job testifying. Then it will be the prosecutors insisting the scientist testify in order to put on a “dog and pony show” for the jury.

High volume disciplines will be the most effected. When I did drug analysis (200 cases a month) and blood alcohol analysis (1500 samples a year) I would testify roughly once a month in drug cases and two to three times in DUI trials.

The volume of testimony isn’t that bad.

Unless of course you either don’t testify well and the defense feels they can make you look like an idiot on the stand, or if you are responsibly for breath alcohol devices – then you will likely testify more often.

Now here in Arizona this ruling has little to no effect. In other areas this could have profound impact as scientists will start to have to support and defend their work against cross-examination, and they will have to answer before a jury if they are caught performing shoddy work, or using unaccepted techniques.

After the recent NAS Report, this SCOTUS ruling will help strengthen the reliability and accuracy of forensic work as pointed out by another scientist on the same community board, because analysts will have in mind to do their best work, as they will potentially have to testify in court now.

Forensics Guy, Inc. is giving a presentation at the 2009 APDA (Arizona Public Defenders Association) meeting June 18th, 2009 at 1:45 in Tempe Arizona.

Topics covered include forensic firearms analysis (ballistics) and gunshot residue analysis (GSR).

For more information, visit the APDA website.

Forensics Guy, Inc. though an affiliate company is proud to announce it will soon be the ONLY laboratory in the state of Arizona capable of performing primer GSR testing for agencies other than Phoenix Police Department.

No longer will police departments, prosecutors, or defense attorneys have to send samples out of state for analysis. Now stubs can be analyzed in state, at highly competitive introductory pricing.

Please click on the contact me link to the right for pricing and more information.

I was recently required to come testify on an old case I worked for a local police department a number of years ago. The actual work I performed was hardly a “case breaker”.

I simply looked at casings and projectiles recovered by police and inter-compared them, so see if they were fired from the same gun. No firearm was actually recovered in the case.

What I was actually wanted for was the state wanted me to perform an “on the stand shooting reconstruction”. That is with little to no warning, an attorney is going to ask you to determine which person in a vehicle based on if the casings were recovered outside, or inside the vehicle.

Something that pretty much can’t be done without a lot of experimentation. Even then the results would probably not be conclusive, but rather more strongly suggest one person over the other.

Considering in this case the actual firearm/ammunition combination used in the shooting was never recovered, it just simply isn’t something that could be done with any certainty.

Then the defense attorney took to cross-examining me. They used that most brilliant of cross-examination styles – to completely go back over everything the prosecution did, almost word for word, point by point.

There is nothing like reinforcing the prosecutions case, by getting the exact same answers to the exact same questions back to back to drive the points home to the jury.

The best part about the case was being contacted by the defense after trial to find out about a database of general rifling characteristics I used to base my opinion as to what possible guns could have fired the bullets/casings. Apparently their expert said he didn’t have access to such database.

I was recently contacted by a defense attorney to perform some firearms examination.

The case hadn’t been investigated by the state yet, so I was the first scientist to examine the evidence. During the course of the examination, I made some observations that were not easy to explain. Luckily, I was able to contact other forensic scientists who are firearms examiners, and was pointed in the right direction to start researching the odd observations.

What I discovered was that I had encountered a rarely seen event in the field, that required a series of out of the ordinary evidence handling techniques in order for it to manifest itself.

Unfortunately I can’t get into specifics, as the case is still pending. But it was exciting to come across something new after over 10 years in the field. On top of all that, it was the first time I’d encountered this type of gun in a case before!


Manufacturer Recalls Hollow Point Bullets That Fail To Explode Inside Targets

Ever since the NAS report was published, the popular media has taken an about face in what news stories they report. No longer are police crime labs portrayed as hallowed halls containing crusaders protecting the public from criminals. Now crime labs are described as lairs containing bumbling lackeys for tyrannical police and puppets for prosecutors.

The truth of course lies somewhere in between.

This article blasts the Santa Clara County Prosecutor’s Office for their own internal investigation of crime lab errors, but shouldn’t a lab with perceived problems be investigated externally? Certainly a lab should investigate itself internally, but for public confidence it needs to be investigated externally. It should also not be investigated by other crime labs, such as an ASCLD/LAB audit, but rather a completely independent group.

This article and this article go into how the Michigan State Police will have to reanalyze cases originally done by the Detroit Police Department. The problems with the Detroit Police crime lab were previously covered in this blog here, here, and here.

This article goes into false convictions stemming from the Houston Police Crime Lab, from the point of view of the District Attorney. The most incredible part of the story is the prosecutor, the agency who demonized this innocent man, and convinced a jury of his peers, that he was a child molester, somehow manages to blame the defense in the case for not PROVING the man’s innocence. Make no mistakes people, this IS the common trend in today’s prosecuting attorneys’ offices – the belief that a man isn’t innocent until proven guilty, but rather the defense needs to prove themselves innocent.

Originally posted here.

Throw around the words “crime scene” and “evidence” these days and you’ll very likely get an image of someone carrying a case full of fingerprint powders and high tech ultraviolet lights into a dark house surrounded by crime scene tape. Then, moments later, an image of the same person, now hunched over a microscope in a state-of-the-art crime lab lit with greens and purples and blues, solving an unsolvable murder simply by playing with chemicals for a few minutes.

In the real world, images like that are few and far between. Melinda Strange knows firsthand that the real world of crime scene investigation and evidence processing is far less glamorous, but no less difficult.

Since 1993, Strange has been the Huntsville Police Department’s sole evidence and property technician, documenting crime scenes and managing more than 1,500 pieces of physical evidence stored in the HPD property room.

A native of Houston, Strange came to Huntsville with her husband in the 1980s, initially taking a job as an office manager at a local department store. When the store ceased operation, Strange began job-hunting, and eventually applied for a dispatch job at both the Huntsville Police Department and the Walker County Sheriff’s Office.

After interviewing for both positions, Strange chose HPD.

“The main perk of working for the police department was that if you worked for the sheriff’s department, you were probably the only female on night shift and you got to double as a female jailer,” Strange said. “So, I chose the police department.”

In April 1986, Strange began working for police dispatch, a position she held until 1993. In the early 90s, her workload swelled as she began attending the Montgomery County Sheriff’s Academy to earn her police certification.

For two years, Strange took classes for five hours every night, worked the night shift at the police department, and still managed to find time to raise her three daughters.

“I didn’t do it because I wanted to be a gun toter,” she said. “I did it because if I wanted to go anywhere other than communications, I felt I needed it.”

In 1993, Strange applied for the newly vacant position of evidence technician at the police department. After getting the job, she went through a battery of new training programs, including crime scene documentation and fingerprinting training.

From the beginning, she found that her new responsibilities were more than a little challenging.

“It was overwhelming,” she said. “Learning which orders to file in what court, how to decide whether or not to keep the property room set up or to change it around, it was just a lot to handle.”

Today, Strange has settled into her job, but still finds new challenges in the massive workload she faces every day.

“Not counting drugs, we have about 1,860 pieces of evidence here,” she said. “That’s not counting checks and film and video. That’s the evidence itself.”

With the rise and success of “CSI” several years ago, Strange found herself with a new challenge, dispelling misconceptions about the work she does.

“People just need to know that those shows are there for entertainment,” she said. “I leave the forensics to the forensic scientists. All I do is try to help find pieces of the puzzle and then take care of all the pieces when they get back here.”

Huntsville is not equipped with the kind of high tech crime labs you see on television. Strange’s “lab” is merely a small room in the HPD basement, where the most sophisticated procedure she can perform is fingerprinting. Everything else, including blood, DNA and narcotics, must be sent to a crime lab in Austin or Houston for further processing.

“I’m not a chemist. I’m an evidence technician,” she said. “I’m trained to collect the evidence.”

Though her job is not as glamorous or as high profile as the television version, Strange still takes pleasure in finding that one pieces of evidence that will either put someone away or exonerate them.

“As much as I would like to say that I helped put a bad guy, it would kill me to think that I helped convict someone for something they didn’t do,” she said. “We’re not Houston. We’re not New York. We’re not Las Vegas, never will be. We just have to make sure the evidence is preserved.”