Oregon case puts reliability of science itself on trial

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.