IMHO this is indicative of a "win at all cost" justice system. By and large prosecutors are allowed to say just about anything they want, solicit any testimony they wish, and those in law enforcement, forensics, and the state, dutifully follow suit. The machine of the state is at fault here, and prosecutors should themselves be thrown in jail for such behavior.
'Justice' implies something other than what the system is. This is a 'win at all cost' punishment system. Justice doesn't come into it. I can tell you from first-hand experience [0] that, if the system has an opportunity to punish you, it will do so to the maximum extent it possibly can, irrespective of the impact on the victim, the accused, society at large or, frankly, sanity. It is not 'corrective', it is not 'restorative', it is not any of the other euphemisms they use. It is purely punitive.
That's partly by design, and partly due to skewed incentives.
As noted below, the skewed incentives are that prosecutors need to close and get convictions in order to progress. They are graded on how well they can get convictions, not if those were "fair."
However, this is also partly be design. The theory of our judicial system is that each side will do everything (legal) in their power to argue opposing sides. And then the judge/jury, after hearing both sides, comes to a logical conclusion. The theory goes that if both sides do their job, each avenue of either guilty or innocent are properly explored and then the decision by the arbiter is the closest to the truth.
In reality, though, the prosecutors often have way more leverage and power to argue more persuasively and offer deals than the average defense lawyer. Especially if the defense is from a public defender. And high-end celebrity defense lawyers that cost millions also have a way of overpowering and bringing more resources to bear in the defense. Combined, this means that rarely are both sides actually being argued in a balanced manner, thus skewing which way the arbiter will decide.
That doesn't even begin to scratch the surface. In order to even get to that point, you have to:
- Come up with the funds to get out of prison in the first place ($10,000 cash in my case, some % of which you typically never see again; 40% in PA)
- Find and still have funds to retain a competent attorney
- Navigate the interminable legal process, part of which means spending half a day sitting around in a courtroom, over and over and over again, either burning vacation days, or losing your job, or both (not to mention childcare, etc.)
- Reject the coercive and unethical plea bargain they try to scare you into
- Waste a day in court at least once a month, just so the judge can satisfy himself that things are moving along
- Research and retain your own experts, obtain mountains of records, go over what happened and everything leading up to it about a million times with a million different people (it's basically a part-time job)
- Try not to worry obsessively about every aspect of what happened and what you might say
- Take more time off to actually go to trial (and jury selection, and other misc. trial prep)
- Leave your fate in the hands of people who may not be competent, may not be educated, and by-and-large skew toward favoring law enforcement
I have about a million things going for me. I own my own (moderately successful) company, and I have a high profile in a relatively affluent community/industry. That buys me an unreasonably high degree of financial and scheduling flexibility that most people don't have. If not for those things, my family and I would be crushed. If this system is designed to do anything, it's designed to crush the people who get caught in it, with no thought to the consequences for society.
Re: navigating the legal process, wasting days in court, researching and retaining experts, obtaining records—these are all things perfectly suited to be done not by you, and not by a full-on attorney, but by a paralegal. But paralegals are not allowed to sell their services directly to the public, so you effectively pay lawyer-rates to acquire a paralegal's services through some lawyer. The everything-other-than-the-defense portion of law could be a lot cheaper if you could hire your own paralegal to do it, and then pass all their work off to a real attorney if-and-when things came to trial.
If my wife doesn't show up to any court date set by a judge, we're on the hook for $100,000 and she goes back to prison until trial.
If you're privy to some magic whereby a paralegal can appear in her place, then by all means, enlighten me. And send me your PayPal address, because that information is worth actual money.
Read the link in his first post where it is explained. His wife had an accident with their new child; CPS assumed it was malicious. DA wants to look hard.
If by "look hard" you mean 'make us prove our innocence at the cost of huge sums of money and time, under the threat of years in prison', then yup, that's about the size of it.
Someone told me in a lot of other countries, there aren't dedicated prosecution and defense attorneys; that in places like the UK a pool can be drawn from to represent both. Is this true?
I feel like the win/closure rate is a huge part of the problem.
Well, there isn't really a single legal system in the UK.
Here in Scotland, which I think is fairly similar to England even though the terminology is completely different, the public prosecutor is the procurator fiscal who directly employs solicitors to prosecute cases in the lower courts (Sheriff Courts). Defendants will typically be defended by solicitors working criminal defence firms - often paid for by the state through Legal Aid.
However, for more serious crimes there is a completely separate court - the High Court of the Justiciary before which normal solicitors can't appear - you need to be a specialised advocate and they can't be employed directly by clients but only by solicitors (you do get Solicitor Advocates but apparently they don't appear nearly as often as you might expect). You might be getting the idea of a shared pool from this idea of an advocate (barrister in England) who in theory will take any side of any case. In practice there are advocates working for the public prosecutor for a stint and others who focus on criminal defence. However I suspect most advocates have no desire to do criminal work unless they want to be Sheriffs or Judges.
Do you have this "jury of peers" thing as well? Cause that's such a scary notion in the US legal system, I'm happy we do without (in the Netherlands). It's such an obvious part of the problem. Yes it's nice they're peers or something, but they're pretty useless considering how easily they get wooed by any expert speaking with a sound of authority and the fact that they're a 100 times more familiar with the CSI:Fairytales on TV than they are with the actual justice system.
The big difference is that a professional working in this system will actually get a notion of how trustworthy tea-leaf readings actually are when determining objective true facts (or something similarly scientific, like polygraphs--they don't seem to get much use outside the US either, weird). Well, unless of course the incentives for the professional are wrong, and again it's this "jury of peers" idea that gets in the way, the incentives become about populism and convincing the jury, about the show. Not what's really real, but who can produce the biggest superstimulus of hyperreality. Thanks a lot, Baudrillard :-(
Yes - we have jury trials - juries picked purely at random with no vetting (I've been selected for jury duty a few times and never actually been picked):
I don't think that's what GP's refering to. In an adversarial system you can either have dedicated prosecutors, or have the state hire an attorney to prosecute the case just as the defendant hires an attorney. Both would draw from the same pool of criminal attorneys. AIUI, this was historically the case in England and Wales.
Someone once told me, "Save all lives at any cost to privacy". I feel that's similar to what you mentioned, "win at all costs" justice system. Perhaps there's more of this kind of mentality when it comes to the Justice System, particularly the FBI and Prosecutors.
I think we're living in an era of systemic failure of risk analysis. I see it in my company too, where the InfoSec team is basically given free reign, and they're not happy unless every machine is airgapped. At other companies, there is no concept of security at all.
Where is the department that makes the cost/benefit analysis of security measures? I don't see it in government, i don't see it in the private sector.
I believe that prosecutors generally want to progress into a political or judicial career. Those careers value high conviction rates, political careers love people "tough on crime"
I think voters fall for that slogan because we hate crime and injustice (unfairness) in general. Even though we need to be critical of both sides of the law ("we the people"), it's far easier to focus on/attack the unfairness we see rather than promote the everyday fairness that we take for granted. And we need closure in a lot of cases, so just pin it on that seedy looking character over there if there's hardly any evidence. A mob mentality is born out of our natural desire for "law & order".
My guess is laziness. The easiest way to get a conviction is to the the shitty things mentioned. It requires less thought and less effort but still appears to be doing your job as a prosecutor.
I see you have made a common mistake, you see we do not have a justice system. We have a legal system to the extent any justice occur is only a coincidence
In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”
The imprecise nature of forensics work should be a sufficient argument for leniency in all criminal justice cases. Instead there seems to be this witch-hunting mentality where someone needs to take the fall.
The fact that the justice system of the mightiest and wealthiest country in the history of the planet uses methods no better than pricking is quite disturbing (https://en.wikipedia.org/wiki/Pricking).
The entire US approach to dealing with crime is tainted by both racism and a religious-fundamentalist approach to sin. People very much want to believe that there are good people and bad people, and that it's feasible to sort everyone into those categories and put the bad people in prison and punish them eternally for their intrinsic badness.
This blinds people to misconduct by the ""good guys"".
The incentives created (enabled?) by absolute prosecutorial immunity are partially to blame for the insanely aggressive conduct of prosecutors in the US.
I believe the problem here is that we (humans) are terrible at dealing with systemic failures. It would seem we find it easy to accept that a small number of cases/people/situations are flawed, and that feels like something we can fix. But usually, when faced with a problem so large it is described as systemic we choose to ignore it and move on rather than face it and fix it. I.e. the problem just seems too big. That is why I think that even when we discover such a horrific problem as listed here there is no proportional public outcry.
For example if someone is imprisoned in another's basement for 10 years we accept their right to sue the person who kept them imprisoned - even many years later. But when faced with systematic slavery we classify the problem as a systemic failure and move on, the idea of reparation seems crazy.
Another example would be the crash of 2009, once the flaw was discovered (high risk debt rolled up into low risk securities) very few people accepted it was a problem to fix even when shown the facts; in part because 'everybody is doing it', what can we do. I.e. the problem was systemic not localised to a small group of people. Interestingly a lot of the same bad practises appear to be continuing and are often reported - but again, what to do, it's a failure in the system!
And finally it's also like the story of the discovery of Yellowstone caldera - the scientists couldn't work out where exactly the volcano was in Yellowstone initially they didn't believe/realise it was in fact all of Yellowstone.
It was written by the National Academies as a guide for federal judges (i.e., for non-scientists), so it's based on deep scientific expertise and yet is pretty readable. Also, the first section on how science really works in practice, relative to theories of scientific method, is unique (AFAIK) and exceptional.
EDIT: If there's not a free version available at that link, I'm pretty sure you can find one from a credible source elsewhere, I think from one of the other organizations involved. However, consider paying and supporting the National Academies' work.
We've long required the state to provide an attorney to those that cannot afford one. It may now be necessary for the state to provide scientists to those that cannot afford them as well.
Sadly prosecutors too often see their job as winning cases rather than serving justice.
>We've long required the state to provide an attorney to those that cannot afford one. It may now be necessary for the state to provide scientists to those that cannot afford them as well.
Well, the state provided poor people bottom of the barrel attorneys, who didn't care much about the defendants (and had not much of a financial motive to), and urged them to plea so that they can move ahead, in a hell of a lot of cases.
So, this "state scientist" process to exist, it should be really to work better than that if it's to do any good.
It's not always that they don't care, it's also that the caseload can be insane - some public defenders being assigned upwards of 1,000 felony cases per year.
You'd think that supply would rise to meet demand.
Being a public defender in a free market would be an attractive career: the stability of a public servant, and the lucrative nature of a skilled job requiring high intelligence.
Of course, we don't have a free market; we have a lawyer's guild with a set yearly intake of applicants.
Don't blame the "lawyer's guild" for this. This is not a matter of supply and demand; there are currently more lawyers looking for work than there are jobs available.
Public defenders are largely government employees. Most governments have resisted increasing the budgets of their respective Public Defenders' offices to allow for the hiring of additional staff. Blame the legislators, and blame the taxpayers for not wanting to pay an extra $1/year.
>Being a public defender in a free market would be an attractive career: the stability of a public servant, and the lucrative nature of a skilled job requiring high intelligence.
It's merely the "stability of a public servant" without anything lucrative about it.
Just a require for high intelligence without the compensation (since the client is poor, and you're assigned by the state).
Free vs non-free market doesn't come into play. If anything a totally "free market" would have the clients either pay themselves or not get representation at all, making their representation even poorer.
I don't see how you can have a free market for public defenders until jurisdictions started suffering consequences due to overloading them. E.g. if convictions started being overturned because of the caseload of public defenders things would turn around really fast.
From what I can tell the maximum recommended felony caseload is 150-200 per year.
Bad evidence having been presented against them does not mean they are necessarily innocent. Their cases did not all hinge entirely upon this one piece of forensic evidence. Although what happened to them was wrong, pardons go too far in the opposite direction. Retrial would be far more appropriate.
Retrials ain't gonna happen, not least because there aren't enough courts to retry all the cases for which retrial is "appropriate", and also work through current cases. (In my county, there is a rapist of children still on pretrial bail after three fucking years because "there aren't enough judges" and the real priorities around here are traffic offences and drug possession. How eager do you think the courts are going to be to clean up ancient FBI fuckups?)
Besides, which cases are you talking about? Juries will convict with no evidence. A single piece of "evidence" is enough for a judge to let the conviction stand. Most of these trials did "hinge entirely upon this one piece of forensic" bullshit. Fake forensics has allowed LEOs to pick suspects out of a hat and get convictions for decades. Do you really want to leave all those innocents in prison because you feel good about their hat-picking percentages? Far better for one innocent prisoner to be released than for hundreds of guilty people to stay in prison.
I'm talking about the 32 capital cases referred to in the article. Which are you talking about? The ones you imagine as a symbol of systemic injustice? Or actual cases?
Ah, OK, I can see how that was confusing, from a certain point of view. From TFA:
“Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.”
That is, these dickheads lied almost every time. We shouldn't suspect only the 250 verdicts their lies about which have been documented. We should suspect every single verdict that they touched. The WaPo article is more informative than TFA in this respect, in that it reveals that 2500 cases over this period had FBI hair testimony, while only 342 had been reviewed when that article was published. It also drops this bomb: "The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines." That is, there are tens of thousands more cases with shitty lying FBI expert testimony.
I tried digging out more precise figures on this last part, but the Innocence Project's site is kind of a mess.
It appears that they entrapped him as an accessory to a crime. By saying things like 'I need help cheating my border patrol test. Can you help me?' Terrible..
That's an interesting read. I think the emphasis there isn't whether it's a pseudoscience or even a useful tool, but whether it should have an absolute veto w.r.t. employment.
I had to take a polygraph for a job myself, and when the technician started he asked me to choose a random card. Then he started going through each card--"was it the Queen of Clubs?" and I would answer "no" to each. At the end he could tell me what card I had selected based on my responses. So it validated that polygraphs work in some sense.
However, your reaction to a question like "have you ever hurt someone?", while verbally will be "yes" or "no", is a lot more loaded with emotion than lying about a card.
"Have you ever lied?"
"Yes."
"Really?" (looks at me with contempt)
"Yes, I recall that I lied to my mother about my college grades when she called me last week."
"Why?"
"Because I wasn't in the place or mood to have that conversation."
"Ok. Other than the times you have disclosed, have you ever lied?"
"No" (in truth almost certainly, but none that I can specifically recall).
At the end he said the tests were "inconclusive" but I got the clearance and the job, so I guess I passed.
Going after polygraphs as an employment test would be a huge misprioritization borne solely out of an ironically irrational hatred of irrationality.
Employers can and do ask candidates far more bullshitty things like "are you passionate about providing good customer service" or "what's your greatest weakness" as a criterion for employment, and check peoples' credit history and facebook timelines.
Yes. The sad thing is I read the title discussing an entire field of forensics has been faked, and I didn't know which of the three it would be that leaped into my mind (polygraph, older less accurate DNA, drug dogs). Then it wasn't any of them. Yow.
As my friend is close to being indited by the FBI and a "Star Witness" just plead guilty for bribery, tax evasion and bribery. The FBI released one recording where my friend was pissed at a company and the "Star Witness" who was wired was the one saying he would do illegal activities. Also FBI "You will find that (my friend) did not have direct contact with other people and kept himself separated from other people who did illegal activities.
So far the "Star Witness" has brought down 6 people after he got caught for tax evasion.
I was a juror in a trial 10 yrs ago where the police fielded their so-called blood splatter expert who testified he could recreate the entire crime just from casual observations about bloodstains at the scene complete with props using red dyed water to further the fraud. As soon as he was done the judge instructed us that the entire testimony be thrown out since it was blatant pseudoscience but later when I looked the police agents name up he had given the same false testimony in other trials and it was admitted as evidence without question.
>instructed us that the entire testimony be thrown out
This is moronic. Human minds aren't able to just discard information and biases like that. The fact that so much is allowed to be said in a courtroom, to untrained people, then simply reasoned away with "well, it's not evidence" is insane. I'm thinking of the lawyer's arguments, too. They get to present things under the guise of non-evidence.
Slightly ot, but this is one of the reasons I have always felt like the law shows and csi shows had a rather obvious tinge of propaganda to them, in a way that is meant to normalize certain viewpoints. For example, how the accused in shows almost never have a lawyer present, or that the science is perfect, etc.
This is definitely true. But even with awareness of the inaccurate representation, I think some of the message seeps into the brain of even the most aware human.
Then realize how unusual it is. Most people do not have the critical thinking skills, or industry expertise, to grok that medicine or forensics or programming is nothing like the movies.
I would have expected that some higher ranking people in the justice system would be horrified by these things and do something.
In fields like medicine or air travel errors happen but it's part of the system to address them and make sure they don't happen again. That doesn't seem to be the case at all in the justice system.
Why do you believe that higher ranking people in the justice system didn't know this before? I would guess that it is an requirement to accept this system if you want to climb higher ranks.
I am pretty sure they knew. I am just surprised that they aren't horrified. If I were the head of an organization that sends innocent people to death (while the real killer is free) I would do my best to avoid this.
The systemic fix is that there needs to be accountability for these mistakes. Knowingly giving false testimony that leads to someone's conviction and incarceration should be a crime, as should knowing utilization of false testimony by a prosecutor.
Just like with torture and other criminal failures of government, nobody goes to jail; there is no incentive to avoid corruption next time someone has a choice like this one.
Well, sure, but in general this is never 'knowingly' -- technicians and people working in the lab are trained on methods, told the methods are sound, and then execute the methods and present them in court as trained. It is the methods people/higher ups at the crime labs who are really at fault here.
Who is going to prosecute, when it is the person who decides who gets prosecuted, doing the perjury? And all the other prosecutors use the same methods to get forward in their jobs?
It does, but it is almost never prosecuted (as I've been told by attorneys and as I've coorobrated by my own anecdotal observations). The exceptions are high-profile scalps, such as Bill Clinton and Barry Bonds.
The real penalty for perjury is that it discredits your testimony and damages your case.
The systemic fix is to get rid of the terribly flawed juror system and replace it with qualified judges. Most people are incredibly irrational, uneducated (with respects to these things), and well, simply untrained.
I understand the jury is supposed to be a final check against government tyranny, but in practise, what happens?
If I were guilty of a crime, I'd prefer a jury trial. If I was innocent I'd much prefer judges.
> jurors who, not unreasonably, believed that scientists in white coats knew what they were talking about
I don't think I agree with the "not unreasonably" part. At what point do we as a society expect more from jurors? Ask yourself: If you or one of your close friends is called to be on a jury, do you think you'll just take some song-and-dance at face value without carefully weighing the ostensible expertise of each witness?
Rather, it seems to me that the process of juror selection has become so obtuse - yet so routine - that critical jurors who might lead the jury away from swallowing this kind of hogwash are filtered out before the case makes it to trial.
> There were no scientifically accepted standards for forensic testing, yet FBI experts routinely and almost unvaryingly testified, according to the Post, “to the near-certainty of ‘matches’ of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work.”
...and nobody questioned this? No defense attorney or jury foreperson over the years brought any serious attention to this? That's the broken part.
That the government will lie is to be expected and is part of the nature of government. That people will unflinchingly proceed as though its lies are actually veracious and sober elements of a criminal trial - this is fixable.
> There is no lack of good ideas for reform. (Journalist Radley Balko and Roger Koppl, a professor of finance at Syracuse University’s Whitman School of Management and a fellow at Syracuse’s Forensic and National Security Sciences Institute, offered up a laundry list of fixes in Slate—almost seven years ago.)* These solutions are not all that expensive or complicated. Among them: giving defendants their own forensic experts, untethering crime labs from the prosecutors and cops to which they now answer, verification and standards.
Radley has been so tireless in his reporting. Glad to see his work mentioned here. He's a true hacker and a great speaker and researcher. The recommendations mentioned here are so obvious and so easy that it's unthinkable that the failure to implement them is attributable to anything but the desire to continue to convict, truth be damned.
I think a solution would be to move to a system of professional jurors.
As it stands, the current jury system seems to be a horrible mess of people who can't get out of going to jury duty, relying not on understanding of the law or legal procedure, but rather the judge's instructions and the arguments of lawyers, and all the crime/courtroom drama shows and movies they've watched. They can't question lawyers during the trial or anything like that; they just watch a show for a while and then make a decision.
Given that a jury decision is, in the most abstract sense, an alternative to a judge's decision, then it would make sense to have jurors who at least as competent as a judge is for the job.
There would still be the issue of them becoming too close to prosecutors, lawyers, or judges, as we have now with judges, prosecutors, and law enforcement. But there are ways to address that. Nonetheless I believe it would be an improvement on the current system
Extending the credentialism that already plagues the "justice" system seems like the wrong move to me.
I think we need a cultural change that makes jurors (and, more generally, participants in various civic activities) feel more empowered to think critically and speak out about their conclusions.
It was pretty obvious that the bitemark stuff was complete junk science to anybody who read about it. The hair analysis may have been a little tougher, but I'm sure it was knowable.
Anecdotally, I've been on two juries. In both cases, I think the jurors did a good job with the facts as presented. One was a not guilty verdict, the other a guilty.
I don't think that it's either appropriate or a reasonable expectation for a juror to judge the legitimacy of an entire field of forensics.
Mentioning the name "Radley Balko" during voir dire would probably be enough to get excluded from a criminal jury. If one somehow got on a jury (because the prosecutor assumed a typically ignorant pool?), one would still have to remain circumspect about one's reasons for doubting guilt. One could probably get away with "I don't believe the expert witness". More specificity, like "I've read lots of stuff that proves all of forensic 'science' to be horseshit", would probably result in dismissal along with contempt. The beast must be fed.
“Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.”
It's like fsloth said earlier in this thread: someone needs to fall.
Personally, twice I had FBI field agents as my neighbor, and I while my n=2 can hardly be generalized, my first impression (and you only get one chance to make a good first impression) is that the FBI doesn't get to hire the cream-of-the-crop.
Maybe it's not the staff fault: the FBI seems to be investing a lot more in their PR department than in its departments actually doing the job in the trenches.
The FBI cannot (or does not) pay as well for technical positions as nearly any private position. The background of agents (and, subsequently, management) is in either accounting or "criminal justice", neither one of which is a field noted for reassessment of theory or appraising scientific evidence.
As a result, they tend to accept promises of accuracy that line up with their biases, and not dig too deeply into methods.
This mindset is common in practitioners. Faith in the process, or the way it's always been done, or the way they were trained. Even in development, it's very common in corporate or government settings to find developers who know the one language and OS that they use, and the one set of patterns they use, and are not very curious about anything else. It's a job.
FBI gets to hire the cream of the crop for special agents but all other jobs are treated like dogshit. One example is that every non-special agent takes turns emptying garbage cans.
You are presuming they were maliciously making up evidence. The story isn't super clear but it seems like the examiners were overstanting certainty and that they were using dubious statistics.
People do that sort of thing all the time, not out of maillice , but out of ignorance or bias.
The article doesn't even talk about what the actual problems were. Was the forensics based on wrong assumptions or research later proven inaccurate.
There is a difference between being wrong in good faith, being wrong because of bias, and straight up lying.
Even the statistics in this article reek of bias. 95% of reports overstated the matches. By how much? Are we talking about 99.9% matches being called 100%. Or are we talking about 30% chance being called 100%. How many times was it substantially overstated?
The biggest problem is that there isn't really an academic field for most of forensics. Which is pretty odd.
The reason you should care about the distinction is because many people think bad things only happen when people purposely act badly. But a lot of bad is done by people acting with good intentions or neutral intentions. This ironically leads people to falsely trusting systems to do the right thing.
A bunch of well meaning FBI examiners can end up jailing innocent people if they are all using the same text book that got some facts wrong.
Plus like I said, it's not even clear that innocent people were sent to jail because of this. At least it's not clear from the article, I haven't looked for the report that is mentioned.
The examiners need some stiff jail time. If their fake work puts a guy behind bars for 5 years then they should risk at least that same amount of time also.
The Making a Murderer series on Netflix provides some specific case insight into possible FBI misconduct with regards to forensic tests they were asked to do when they didn't have the science to do them.
If you bring up the fact that breathalyzers are incredibly inaccurate and calibrated to a specific type of person, you will get contempt of court. It's a miscarriage of justice and has ruined lives.
Is your jurisdiction in the United States? If so, that's not true. You may automatically have your license revoked if you refuse a breathalyzer and a field sobriety test. But that's different than committing a felony. Your penalties may be harsher if you are eventually be found guilty of DUI without the breathalyzer evidence, but that is not being charged with a felony.
You absolutely have the 5th Amendment right to not incriminate yourself in every jurisdiction of the US. There are automatic consequences to refusing a breathalyzer (losing ones license), but they have nothing to do with being charged with a crime, much less a felony.
Kind of? There was the infamous Brandon Mayfield case a decade ago, where the FBI came down on an innocent American lawyer for the 2004 Madrid train bombings, despite the skepticism of Spanish security, because he was one of twenty people with similar-ish fingerprints.
He was also Muslim, worked on a terrorism case, had interest in flying, and his daughter had done a school project about a hypothetical Spanish vacation, which the FBI built into a damning case of misconstrued circumstantial evidence.
The issue with fingerprinting, when last I read about it (several years ago), was that there has been very little controlled study of just how accurate it is. Apparently the (US) professional society of fingerprint analysts forbids its members from taking part in research on accuracy, maintaining that when done correctly it's 100% accurate, full stop.
There is no good side or bad side in American justice or anywhere with similar systems. The defense is expected to lie through their teeth even if they're guilty, and the prosecution is expected to convict at all costs regardless of innocence. There are no ethical or moral grounds for either stretching their practices, especially in the big leagues where every win counts. As with sports, so often we find the winners were actually just the dopers that got away with it, until they get caught, like now.
Fair and balanced? It's pretty disgusting actually, but so is the NFL depending on how offensive you feel it is to taint studies on concussions. The analogy goes further than one might expect, with the justice system struggling with their image just like any other professional sport institution. It's the Justice League. Justice is a brand.
The real question is, are we really that desperate? Or rather, why wouldn't we be? When you're forced to win, you're forced to do a lot of things.
Instead, we should just be forced to get it right.
Forensics should be contracted from the private sector, independent of law enforcement, be equally available to defendants, and QA'ed with test data in double-blind tests.
> Chillingly, as the Post continues, “the cases include those of 32 defendants sentenced to death.” Of these defendants, 14 have already been executed or died in prison.
This is disturbing. This got me thinking, is there any institution or system that can be trusted? I mean these are organizations that enforce laws and the very foundation the rest of the society is built on. If that is flawed to the coare, what can you trust?
It's more that every system that asks for trust should be rigorously tested: Random double blind tests, "red team" tests, etc. Without testing, they are not even at the starting line for building trust.
"Paradoxically, Justice Antonin Scalia has emerged as a vocal early skeptic about the risk of taint in the work of crime labs" -- there is nothing paradoxical about it all. The paradox exists only in the mind and shallow analysis of an intellectually lazy author who has been conditioned to believe that he should categorically disagree with Scalia.
The paradox is that he's skeptical of the crime labs, which have been used in convicting/sentencing people to death, yet in the quote he appears to state that there have never been wrongful death sentence convictions because of tainted/false evidence.
The paradox is between Scalia's statements and is actually pretty clear. But you do have to put the entire paragraph and read the link to understand the context.
“It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”
“Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a "witness" in the ordinary sense of the term.“
Based on Scalia's constitutional views (a very literal interpretation), I'd say it probably isn't really a paradox to him, but an outside observer might see the results as conflicting. (I mean, obviously it wasn't going to be a literal paradox, that's not what paradoxically is taken to mean colloquially).
I'd imagine that Scalia would have argued in response that the legal system provides for enough failsafes, since that individual wasn't actually executed.
I re-read this sentence several times, and I'm still not sure how I should interpret it. What is Scalia skeptical of? Is he skeptical that there is any risk, or is he skeptical of the crime labs?
Maybe my reading comprehension isn't up to snuff, but I think when you're trying to point out a (putative) paradox, you should avoid stacking too many clauses so that it becomes fuzzy which of those is where you see the conflict.
"Lawyers for the government argued that Jones had no reasonable expectation of privacy out on public roads, and therefore affixing a GPS tracking device to someone’s car is not a “search” at all—a search would trigger protections under the Fourth Amendment..."
Scalia, who authored the court’s majority opinion, acted in a way that reflected his own strict interpretation of the constitution: in seeking to preserve the Framers’ supposed intent of the Fourth Amendment when it was created, Scalia wondered if the 18th century colonial equivalent of this case would be a “constable” hiding in a suspect’s vehicle."
Anywho, it is a pretty dumb move to gloss the opinions/interpretations of Supreme Court Justices by a simple "which side of the spectrum are they on?" analysis. They are usually pretty sophisticated in those respects. You can't just say "Oh they are going to side with Law Enforcement/The States/The Federal Government/The NRA" etc.
I think "intellectually lazy author", "in the mind and shallow analysis", "conditioned to believe" etc tells more about your stance towards Scalia than the author's.
Scalia was indeed very conservative, and I'm pretty sure he would tell you that. Often was not a friend of the accused or convicted, though there were some exceptions.
Because death penalty supporters, like Scalia, ultimately have to accept the court's ruling as perfect or the government is just murdering random people. You can't have it both ways. You can't support the DP and also accept that our investigation tools, be them technical or social, are highly flawed and that our court is often wrong.
> Because death penalty supporters, like Scalia, ultimately have to accept the court's ruling as perfect or the government is just murdering random people.
False dichotomy. The court's ruling can be less than perfect and still be very far from random. (Perfection is clearly something they should strive for, of course.) But in fact, we are not (and should not be) willing to accept a 100% false negative rate in order to achieve a 0% false positive rate.
Everyone understands that the government and the criminal justice system is imperfect. We have them anyway, because the alternatives are worse. Sending an innocent man to jail for life is not fundamentally different from executing him. You can't give people back years of their life, and many people die in prison for various reasons.
There is a fundamental difference: the living person could continue to lobby his case via extraordinary means (pardon, etc) or wait until there's some meta-analysis of evidence or other event that frees him. Being killed means this never happens. Once the execution takes place, there's no going back.
We've seen several of these cases of people in prison for years getting their lives back recently. We don't hear about this happening to the executed, because we can't give life back.
I agree that the death penalty is not to be taken lightly, but that is different from arguing that it should not be used at all. There are lots of examples of crime bosses, murderers, and drug kingpins escaping from prison, but no instances of them returning from the dead. Lives may be lost from inaction as well as action, and the philosophy that "we must be 100% certain to do anything in life" is a self-serving and disingenuous argument, which could be applied equally well against any punishment the state might choose to apply.
> the living person could continue to lobby his case via extraordinary means (pardon, etc) or wait until there's some meta-analysis of evidence or other event that frees him.
That's theoretically true, but how often does it happen? My impression is that more people are exonerated on death row than when serving life sentences.
> how should "conservatism" play into faith-in-forensic-evidence? Seems like it's mostly orthogonal.
That would be ideal, but the reality is that many judges make decisions, to significant degree, based on ideology.
Of course there is no way to prove what someone's motive or state of mind is, but a few observations: 1) Many people think this is plainly true, 2) many votes by Supreme Court Justices can be predicted based solely on the politics of the issue, and with no knowledge of the facts or law, and 3) the Republicans in the Senate currently openly claim that Justice is an ideological job and therefore they won't vote for a Democrat's nominee.
Judges are human beings; we shouldn't hold them to unrealistic standards or we will be shutting our eyes to the realities of how and when justice succeeds and fails. Some are more ideological, some less; some inject ideology more intentionally, some more unconciously based on biases and assumptions.
I once attended a speech by a legal scholar who advocated doing away with juries, and all their human unreliability and flaws, and relying instead on the impartial wisdom of judges. An experienced litigator leaned over to me and whispered, 'judges put on their pants one leg at a time, just like everybody else.'
> Scalia was focused on a strict interpretation of the Constitution.
He said he was, but I've yet to see evidence that it was true. IMHO, he was strict about things he didn't like and flexible about those he did (e.g., Citizens United).
Please keep this sort of rage rhetoric off HN. There's no signal in it, just noise. It's also a breach of HN's civility rules to attack an entire population like this, so the comment is uncivil as well as unsubstantive.
