FBI Doesn't Tell Courts About Bogus Evidence

dprovine writes "According to a joint investigation by The Washington Post and 60 Minutes, a forensic test used by the FBI for decades is known to be invalid. The National Academy of Science issued a report in 2004 that FBI investigators had given "problematic" testimony to juries. The FBI later stopped using "bullet lead analysis", but sent a letter to law enforcement officials saying that they still fully supported the science behind it. Hundreds of criminal defendants — some already convicted in part on the testimony of FBI experts — were not informed about the problems with the evidence used against them in court."

Comments

does the article state

[zappepcs]

why the evidence presented was not questioned as to its scientific veracity? From what I read and hear, there is valid reason for questioning every technology that is used against you, whether that is a radar gun, camera, eye witness, anything. Your lawyer should never accept anything as fact, and should attempt to prove in court that it is not valid. For instance, the breathalyzer tests have been shown to read higher than actual in more than 25% of tests. Can't remember the story lead or I'd link it.

It's things like this that ensure that the party with the most money will win...

Re:does the article state

[Derekloffin]

As good as some lawyers are, most are not experts in every scientific technique, and those that aren't frequently don't have the funds to hunt down and procure the testimony of someone who is both familiar with the technique and willing to talk about it's short comings in their client's favor.

Re:does the article state

[99BottlesOfBeerInMyF]

Your lawyer should never accept anything as fact, and should attempt to prove in court that it is not valid.

A lawyer I know once described public defenders as always falling into one of two categories:

• Young, altruistic, energetic, and so inexperienced and incompetent they don't know how to file a motion, let alone properly get evidence examined.
• Older guys, there for a paycheck, who do as little as possible, even choosing unnecessary plea bargains just so they have less paperwork to do.

I'd like to think he's being cynical, but I haven't seen much evidence that contradicts his claim. I saw a true crime special the other day about a woman who spent four years in jail after being convicted of murder. The supposed method was LSD poisoning, even though there has never been a human fatality attributed directly to LSD. The test they used to convict her was a preliminary test that was only supposed to show if there was reason to do the more expensive test. The test was run on tissue from a exhumed cadaver, when the test was only useful applied to fresh urine from a living person. The state did perform the follow up test, but it showed up as negative, so they pretended they had not performed it. Somehow, her defendant did not question any of this evidence, at all despite it being scientifically unsound to pretty much any pathologist you could consult. That lawyer is still a practicing public defender.

Re:does the article state

[Znork]

"the breathalyzer tests have been shown to read higher than actual in more than 25% of tests"

Heck, DNA labs have had 10% error rates. There have been cases where they run first the DNA sample from the suspect, then run the comparison with the crimescene sample in the same batch, insufficiently cleaning equipment between so the suspects sample is actually transferred into the crimescene sample during the testing procedure. And labs that refuse to change such flawed procedures due to cost.

There was a case in the UK where a man with advanced Parkinsons who couldnt drive and who could barely dress himself became a suspect in a burglary 200 miles away, after a DNA database search popped his name out as a match. He put in jail for several months, until his lawyer demanded a test on more loci and they noticed that, ooops, DNA isnt really that accurate, and seeing as human beings do not vary in size and form between flatworm through elephant, they can have quite a lot of matching loci without actually being the same person.

Forensic science isnt questioned anywhere near as much as it should be. Which gives us idiotic ideas like fingerprint and dna databases that will be so diluted by irrelevant false positives they can only either waste resources and slow down police work or provide a whole host of scapegoats to throw in jail even when there's not the slightest chance they could actually be guilty.

Adversarial system

[TheMeuge]

That's what happens when the judicial system is an adversarial system - the prosecutor feels that the defendant is his enemy, because his record is dependent on the percent of cases he closes with a conviction. At the same time there is little to no penalty for convictions that are later overturned, unless they happen to be VERY high profile cases. I am not saying that another system is better, but this problem is certainly inherent in the system.

Other than dramatically increasing the responsibility for false convictions and penalties for malicious persecution, I am not sure that I can come up with any changes that would remedy the problem. People are intrinsically prone to corruption when they are going to benefit from it... and the "blue wall of silence" is just one example of what happens in fraternal orders endowed with power over people's lives.

Re:Adversarial system

[doggod]

I don't think the problem lies so much with the adversarial system as with another dynamic you mention -- the link between the political success of the District Attorney's office and its record of successful prosecutions. "Success" is thus not defined in parallel with "justice" but rather with court victories.

I see a further linkage here that has to do with general function of the whole "public safety" establishment. Most people, I would guess the overwhelming majority, believe that the function of the police is to protect them from criminals. They are thus dismayed, indignant and often irate when they are victims of a crime and the police appear not to meet their expectations. It's at that point that they learn the truth -- that the real job of the police and the prosecuting attorney isn't to protect them individually but to protect "the public".

Put another way, the job of the public safety establishment is to do whatever is necessary to create the public perception that it is being protected -- such that when the next election rolls around this will be translated into the votes necessary to assure the re-election of the incumbents. Is Joe Prosecutor going to get re-elected if the public perceives him as ineffective when his opponent starts trotting out some statistics showing how few convictions he's gotten? Probably not! Joe P. knows this, so he does what he has to do, and if one or a dozen or a hundred innocent people go to the slammer on account of tainted evidence, well, that's just collateral damage in his effort. If the appeals courts fix it later on, that's nice because it doesn't count against the statistics for his next election campaign.

A solution to the problem would be if our whole legal system could be transformed from one that emphasizes laws and law enforcement into one that emphasizes torts and restitution. Of course that's not going to any time happen soon because that would imply throwing out all the laws that pertain to actions for which there are no demonstrable victims. Well, unless you want to count as "victims" those who get offended by the actions others take that they disapprove of. Such as ingesting drugs or paying for or receiving payment for sexual services or presenting themselves in public without covering those parts of their bodies demanded by the current religious majority.

It's thus worthwhile to ponder the price we all pay for allowing the politicians to pander in this way. In taxes to support the wasted effort and the prisons to provide room and board for those incarcerated, in lost privacy and freedom, and certainly not least in the loss of personal protection against the actions of those who truly do try to do us harm from time to time.

A true whistleblower

[InvisblePinkUnicorn]

If this turns out to be true, which it seems to be, then William Tobin is a hero for revealing all of this. If I were in his position, working for so many years under the assumption that the FBI had actually done some tests to back up their original theory, I too would be pissed off that my spurious work had put so many people behind bars for decades (the article mentions someone behind bars for 22 years based solely on this evidence, who has maintained absolute innocence from day one).

Re:A true whistleblower

[morgan_greywolf]

Indeed. This isn't the first time William Tobin has blown the whistle by any stretch of the imagination. Tobin, who was formerly the chief metallurgist at the FBI, also called into question the investigative practices of individuals involved in the FBI's investigation of TWA Flight 800 and has testified as to various fraudulent activities that took place within various FBI investigations. Apparently this test was the same test used to convict Lee Harvey Oswald, and guess who called it into question? Yup. William A. Tobin.

Curiouser and curiouser, no?

Law Science

[Doc Ruby]

One big problem with our justice system is that it's modeled on science, with evidence, hypothesis (of guilt), theory(of how the law was broken), and logical analysis of physical tests (and the weaker, but still analytical, cross examination of witnesses), all relying on the principle of falsifiability (if the hypothesis can be disproven, or alternatives can't be disproven, the hypothesis is rejected). But science really relies on reproducibility. Experiments are repeated several times and competitively criticized by others with experience repeating and reading the results. While criminal justice does a single "experiment", the alleged criminal act, and then analyzes it once. And then sometimes executes people.

Re:Polygraph - inaccurate

[eleuthero]

Lie detectors can be used in investigations but not in trials. There's a real, significant difference there.

Fingerprints?

[whoever57]

I seem to recall reading that there is no scientific study validating the uniqueness of fingerprints. The primary defence for the use of fngerprints on Wikipedia appears to be that "they have been used for a long time", repeated in several forms.

Update from the first link

[bi_boy]

On Friday, the FBI agreed. It acknowledged that it had made mistakes in handling bullet lead testimony and should have done more to alert defendants and the courts. As a result of the 60 Minutes-Washington Post investigation, the bureau said it will identify, review and release all of the pertinent cases, and notify prosecutors about cases in which faulty testimony was given.

The FBI also says it will begin monitoring the testimony of all lab experts to make sure it is based on sound scientific principles. FBI Assistant Director John Miller said, "We are going to the entire distance to see that justice is now served."
Evidence Of Injustice: FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants

Re:Polygraph - inaccurate

[king-manic]

Lie detectors can be used in investigations but not in trials. There's a real, significant difference there. Actually, they aren't considered scientifically sound enough to be entered into most courts. certain US jurisdictions will allow it or a polygraph expert to testify or test to be conducted in front of juries. defense councils occasionally use them in jury cases. So no they aren't strictly forbidden and thats is one of the problems. As well their prominence in Media give them drastically undue weight to a jury of my peers.

Stonewalling by the FBI

[Henry Pate]

The article says the National Academy of Sciences started the study in 2002, and it took 18 months, to give them the benefit of the doubt let's say that they finished the study in 2004 and found that the method was severely flawed. Then they waited an entire year to stop using the technique and the report they issued downplayed the severity of the issue saying that they still stood behind the science, even when they knew it could have been wrong. Nobody in the FBI or the Justice Department tried to identify the hundreds of cases that used their analysis, nor did they notify the defendants, prosecutors or judges involved in these cases.

What kind of twisted lies do you have to tell yourself to justify keeping possibly innocent people behind bars? They weren't just trying to ignore the science, they didn't notify defendants or their lawyers when they knew their time for appeal was almost up. Oh sorry, you appealed too late, no doubt the evidence against you is utter horseshit, but sorry, it's been a few years and everyone else has moved on, get used to jail.

It took 60 Minutes to actually get some progress on this, I hope all the people involved in keeping evidence that could exonerate someone get a fair punishment.

Re:Stonewalling by the FBI

[belmolis]

Some prosecutors consider finality of judgment so important that they oppose freeing or even granting a new trial to people who have been shown by overwhelming evidence to be actually innocent. I've read interviews in which they say this.

Re:WHAT?!?!

[trolltalk.com]

Those BASTARDS!

How could they?

Simple - follow the money. There are two things that corrupt - power and money. You do bogus "bullet lead analysis", and you get more funding, a bigger staff, more power ... rinse, lather, and repeat.

Welcome to faith-based criminology - where nobody bothers to test basic assumptions because in Soviet Amerika, the FBI trolls YOU! And no, its not just a problem for the US.

What's particularly galling is that nobody in government feels a need to review all the cases where the FBI basically LIED. Again, power and money. Is it a coincidence that the first case this was used on was the Kennedy Assassination, and that it supposedly tied the "magic bullet" to a box of bullets Oswald had? Or was this the FBI "inventing junk science" for a political agenda, and then it got out of hand?

How can I ever avoid reasonable doubt now?

[nasor]

As a jurror, how the hell am I supposed to not have "reasonable doubt" about anything that's introduced as evidence in a trial? It's already very well-established that eye-witness identification has horrible reliability. Now apparently I shouldn't even take the reliability of forensic evidence forgranted. What's left? If the prosecution presents damning forensic evidence and the defense lawyer simply says "Yeah, but since it's been proven that even established forensic tests aren't necessarily reliable, why should anyone believe you?" how am I supposed to not have reasonable doubt about the forensic evidence now?

Re:How can I ever avoid reasonable doubt now?

[twifosp]

I was going to mod you up but will reply instead:

Yeah, but since it's been proven that even established forensic tests aren't necessarily reliable, why should anyone believe you?" how am I supposed to not have reasonable doubt about the forensic evidence now?

You have nothing to worry about. That type of thinking (logicical) will exclude you from ever being selected as a juror. Unless you fiegn complete ignorance in the selection process, that is.

That is what I see as the single biggest flaw with the American legal system. We are supposed to be judged by our peers, but I wouldn't consider any modern jury to be made up of my peers. They are selected based on their ignorance of the topic involved. Prosecutors want blank slates to trick with fancy sounding testimony. Defenders want considerate and empathetic people. In any case involving race, both sides will seek to fill a quota of a certain demographic.

Judged by your peers? Not very likely.

Re:How can I ever avoid reasonable doubt now?

[RWarrior(fobw)]

It's obvious you've never been on a jury. You're too smart.

Re:How can I ever avoid reasonable doubt now?

[twifosp]

Maybe universal CCTV is the answer. If your entire life is recorded, then criminal charges will be easier to determine.

Given the context of your post (which I did not quote) I realize this statement was probably tongue in cheek, but I felt the need to respond anyway.

CCTV systems are used to investigate crimes. But they rarely actually catch the criminal act themselves. Instead it's used to connect people, places, and times. Would you like to be linked to criminal activity just because you happened to be in two wrong places at the wrong times? If a linked crime happens in 2 areas, the probability goes up that all the people recorded in that area are suspects. This also increases your probability to be charged with a crime you did not convict. Even if you are acquitted in the end, the mere charge of a crime in today's societies comes with negative consequences. Even if you are proven innocent, you suffer reputation damages, probably wife and kids, and most assuredly your job.

Re:Preemptive trolling: somewhere, somehow...

[99BottlesOfBeerInMyF]

... a troll will tie this issue to the "Bush administration", or even to "BushCo".

If you RTFA you'd know the problem is not that the test is wrong, it is that current FBI and DoJ officials who are the only people in a position to provide a list of all the cases where this evidence may have sent innocent people to jail, have not bothered to do so. They did stop performing the test, but in the letter informing police agencies of this, downplayed the issue and stated that they think the scientific basis is still valid. As a result, there are almost certainly innocent people who will not get an appeal despite all it would take is the FBI admitting the problem and handing over the list. Note the FBI director was one of the first people Bush appointed to office and he also appointed the head of the DoJ, so I think some blame rightly belongs with the Bush administration and their habit of politically expedient coverups, instead of justice.

DNA

[99BottlesOfBeerInMyF]

On a related note, if you ever go to trial and DNA matching is used, question the methodology and get the source to the software used. A friend of mine works at a company that makes DNA comparison devices and says they make some really, really, really questionable choices in their matching algorithms. Like if the DNA strand shows a sequence that is rare in the common populace (rarer than an arbitrarily chosen value) the algorithm assumes it is an error an substitutes the most common sequence for purposes of matching. He says it sometimes keeps him up at night worrying about who is going to jail.

Re:DNA

[BlowHole666]

Sounds like he never took an ETHICS class. That should have whistle blowing all over it.

Re:They were all guilty anyway!

[magarity]

If you can't trust 12 people who were not smart enough to get out of jury duty to evaluate that evidence
 
Such a finely developed sense of civic duty you have there. Jury duty may well be a pain in the arse but it's a hard won right for accused that people in trouble with the law in most other parts of the world would find an amazing gift.

Big surprise!

[Master of Transhuman]

Anybody remember the big deal over the manipulated crime lab results a few years back?

The FBI's function has always been since Day One to put people in jail without regard to guilt or innocence.

Does anybody really believe that J. Edgar Hoover ever gave a damn about "evidence"?

There's a reason that the rule for talking to the FBI is: You say "On advice of attorney I have nothing to say to the FBI." That's it. You never say anything else, because they WILL use it to build a case against you even if you have done nothing.

Ask that guy Jewel from the Atlanta bombing case. Ask the guy suspected in the anthrax case. Ask thousands of people in Federal prison.

The FBI is the equivalent of the Gestapo except they have slicker methods and better PR thanks to the TV shows.

Does the death penalty have Undo?

[EmbeddedJanitor]

This is the kind of reason why most of the real Free World does not have the death penalty.

As with all science, forensics also move on with time and methods used a few years back can be shown to be invalid a short while later.

Re:WHAT?!?!

[Vengance Daemon]

He must be guilty or he wouldn't be here.