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MSNBC misses real story in forensic-failure series

January 16, 2008 by Crime Lab Report

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A two-part documentary titled "When Forensics Fail" aired on MSNBC at 11PM ET on October 18 and October 25. Each one-hour installment was narrated by Lester Holt, the respected anchor for the NBC Nightly News weekend broadcast.

This special investigative series was billed as a look at how errors in forensic science contribute to miscarriages of justice. MSNBC's promotion of "When Forensics Fail" included warnings that "forensic errors are a leading cause of wrongful convictions. Recent discoveries have undermined forensic procedures once considered foolproof and force those in law enforcement to wonder what happens when forensics fail?"

The argument that forensic science is a significant cause of wrongful convictions emanates primarily from within a relatively small fraternity of public policy advocates and lawyers whose momentum has become more impressive than their accuracy.

Crime Lab Report recently visited the website for the Northwestern University Law School Center on Wrongful Convictions. Forensic errors were not even mentioned on its list of factors attributed to the conviction of innocent persons. Instead, eyewitness errors, bad jailhouse informants, and false confessions were cited as the most serious problems threatening the integrity of our criminal justice system.

So when the announcement for MSNBC's documentary first came across Crime Lab Report's news wire, we expected to tune-in to an unfair public excoriation of forensic scientists. Instead, we were pleasantly surprised. The documentary was well-produced, interesting, and fair. Other than its gratuitous promotional teasers, it's only significant flaw was its name.

Observant and knowledgeable viewers should have noticed that most of the flawed forensic tests that plagued the cases summarized by Lester Holt were not even remotely typical. The examination of a bite-mark, the identification of anti-freeze in a blood sample, and the hunch-based interpretation of a fire-pattern are highly unusual and rarely performed in most forensic testing laboratories. With a bit more legwork and research, MSNBC would have recognized that these kinds of tests deserve additional scientific scrutiny and technical review - especially when they are likely to carry significant weight in a criminal trial.

Additionally, in most of the cases presented by MSNBC, suspicions about the accuracy of scientific tests were made clear prior to trial - even by other forensic experts called by defense attorneys to assist in evaluating the evidence. In other words, the system was trying desperately to employ its own safeguards to prevent grave injustices. But in spite of these warnings, stubborn prosecutors went forward without checking to make sure that the scientific results upon which they were depending weren't bogus.

Crime Lab Report was particularly disturbed by the conviction of Ricky Jackson in a case investigated by the Upper Darby Police Department in Pennsylvania. Jackson, whose ordeal caught the attention of 60 Minutes correspondent Leslie Stahl in 2004, was incriminated during the investigation of a brutal murder when his fingerprints were matched to evidence prints collected at the crime scene.

The match to Jackson's fingerprint was executed by a sergeant with the Upper Darby Police Department, which does not operate an accredited crime laboratory - another critical point that MSNBC failed to mention. The concerns of Ricky Jackson's defense attorney regarding the sergeant's competence were validated before trial when two experienced and credentialed examiners conclusively disagreed with the identification. To Ricky Jackson's amazement, the trial went forward anyway.

MSNBC should have named its documentary "Blind Science / Failed Justice" to underscore the danger of disrespecting the complexities of scientific evidence. Unfortunately for viewers, MSNBC opted to seduce its audience with a more scandalous title that openly contrasts with TV viewers' ongoing love-affair with forensic science.

What is so disappointing, however, is that America's journalists repeatedly miss one golden opportunity after another to expose the more dangerous and pervasive problem that exists in our criminal justice system.

The desire and pressure to win often corrupts the efforts of trial attorneys to seek the truth. Both prosecutors and defense attorneys succumb to this temptation. And when they do, the system is prevented from exposing bad evidence and bad experts.

In the days before forensic science, these kinds of adversarial checks and balances were critical to ensuring that the truth would ultimately emerge from even the most conflicting circumstances. Judges and juries could quietly observe the proceedings before them to see if adequate evidence of incrimination was presented. Eventually, the facts would reveal themselves from within this fog of debate.

But now, we are learning with increasing clarity that science is more likely to be misused or abused in a system where those embroiled in combat are not entirely committed to seeking the truth. The vast majority of forensic scientists routinely demonstrate uncanny professionalism when caught in this legal crossfire. And as the judicial and legal systems have grown more and more dependent upon science, they have also failed to create and nurture an environment that maximizes the impact and reliability of scientific evidence. This has to change.

Crime Lab Report believes that if our adversarial system of justice had a more effective pre-trial mechanism for more fairly and competently evaluating the reliability of scientific evidence, the mistreatment of our fellow citizens as portrayed by MSNBC would happen very infrequently.

Professor Roger Koppl is the director of the Institute for Forensic Science Administration at Fairleigh Dickinson University in Madison, New Jersey. He has openly argued that laboratory test results must be validated with institutionalized redundancies. "Redundancy is common in life," he wrote in December 2007. "But forensic science—a lynchpin of the justice system—has a curious lack of the type of redundancies that would reduce catastrophic error."

The viability and necessity of Professor Koppl's recommendations for across-the-board replication of forensic laboratory tests is debatable. But in the meantime, it could provide a solution that helps mitigate the risks imposed by more unusual or exotic forensic tests.

Ballistics, fingerprint identification, DNA analysis, and drug testing, to name a few, are stable disciplines for which professional standards have been established and refined. Experts in these areas are held reasonably accountable by their peers through accreditation, certification, codes of ethics, and other peer-driven mechanisms. Just an importantly, the natural competition for professional credit and distinction among scientists in such communities provides a compelling disincentive for scientists to employ flawed methods or draw inappropriate conclusions. This self-correcting mechanism was eloquently explained by political economist Brian Loasby in 1989 and revisited by Professor Thomas Leonard at Princeton University in 2002. As Dr. Loasby wrote:

"Just as the market rewards knowledge which enables someone to offer goods and services which customers wish to acquire, so the reputational system rewards those who produce new ideas which others can put to use: and if the goods or ideas are unwanted or defective, they will be ignored or criticized."

Conversely, strange or uncommon practices such as bite-mark and lip-print comparisons are orphan disciplines that have little or no community oversight of their own. Although scientists who occasionally work in these disciplines are capable of producing reliable results, their work must be subjected to the most rigorous scrutiny before being presented to a jury in a criminal trial. To not do so in a case with heavy consequences for the defendant is dangerous. To not do so in a death-penalty case is unforgivable.

One thing is certain. Our justice system's respect for science has not caught up with its reliance on it. Like a sharp knife, forensic science is almost always a valuable and reliable tool. But if it is not treated with an appropriate degree of respect, it can cut to the bone.

The real story was right under its nose, but MSNBC missed it entirely.

Please click here if you would like to respond to this commentary. We welcome opposing viewpoints.

Letters to the Editors

The following responses were received after publication of our 12/20/07 editorial pertaining to crime laboratory accreditation. We welcome opposing viewpoints and make every effort to publish comments sent to us by our readers.

Chester W. Ubowski, Quality Assurance Manager
Colorado Bureau of Investigation, Denver Forensic Laboratory

"Thank you for the editorial on accreditation. This is an issue that has bothered me for some time and you succinctly identified for the community the issues that I had - even though I was not personally aware of the background materials that you present. Thank you for all the work you do. It is truly a great resource."

William J. Tilstone, PhD
Retired President, Forensic Quality Services

Editorial Note: In its December 2007 newsletter, Forensic Quality Services (FQS) published comments from its former president in response to Crime Lab Report's editorial addressing crime laboratory accreditation. As a courtesy to FQS and our readers, we are including a hyperlink to this newsletter. Click here.

Andy Wist
Consultant / Retired Illinois State Police Training Coordinator

"Your article was well thought out and made some good points. I am concerned as to how FQS can underbid ASCLD/LAB. My understanding is that ASCLD/LAB uses volunteer inspectors where FQS pays their inspectors. Something doesn't seem to add up since ASCLD/LAB should be able to provide a more cost effective solution. There has got to be something more to this story. The unanswered question in my mind is how can FQS be competitive when their inspection process appears to have more overhead costs?"

Forensic Science in the News

Maryland
January 13, 2008
A county police detective credited the National Institute of Justice's DNA backlog grant program with helping to solve five cold cases, one of which was the abduction and rape of a 26 year-old woman outside of a night club seventeen years ago. According to the Capital Gazette, the grant allowed "county police to send 551 pieces of evidence from 227 sexual assault cases and three homicide investigations" to a private laboratory for analysis.

Virginia
January 12, 2008
The state's Forensic Science Board voted not to require that defendants convicted before the advent of DNA analysis be notified when biological samples are found in old case files. The board decided that it would be up to authorities to decide if DNA testing was necessary. Dissenters on the board, along with advocates of post-conviction DNA testing, were outraged.

West Virginia
January 11, 2008
The state Supreme Court of Appeals will hear a case in which defense attorneys have requested a stop to the testing of fingernail scrapings collected from a deceased child allegedly killed by her father, Ronald Holcomb. The trial court argued that its refusal to presume corruption on the part of the state's crime lab does not amount to a flagrant abuse of judicial discretion.

Arizona
January 8, 2008
The Tucson Police Department is hoping to purchase six acres of land that would accommodate a new crime laboratory. The cost of the new forensic science facility is estimated to be over $20 million.

Tennessee
January 1, 2008
Nashville Mayor Bill Purcell approved a budget that would direct $512,300 to renovate the Metro Nashville Police Department's crime laboratory. If approved, the project would also include a new DNA laboratory.

Illinois
December 31, 2007
A new law taking effect in June will require that DNA samples be collected from all homicide victims and entered into the state's DNA database. Since a similar law took effect in Louisiana in 2003, several unsolved cases have been closed - particularly in areas with high gang activity.

Florida
December 26, 2007
Florida Gulf Coast University will receive $352,500 for its forensic science program. The earmark was one of 9,000 tagged in the Omnibus Appropriations Act passed by the House of Representatives December 18, 2007.

Florida
December 23, 2007
The Palm Beach Post reported that "legislators recently passed a law requiring that all criminal defendants taking plea deals be asked beforehand if there exists any biological evidence that may exonerate them. It's the state's way of heading off a defendant's post-conviction claim before he even utters "guilty."

Washington, D.C.
December 18, 2007
President George W. Bush signed into law a consolidated appropriates bill with heavy funding for forensic science. $147 million was approved for DNA capacity and backlog programs, and $19 million for the Paul Coverdell Forensic Sciences Improvement Program.

Texas
December 15, 2007
Thirteen crime laboratories operated by the Texas Department of Public Safety have earned ISO accreditation by ASCLD/LAB. The Austin bureau of Globe-News reports that the accreditation makes the Texas laboratory system the largest internationally accredited system in the United States.

Michigan
December 14, 2007
Criminal justice officials throughout Michigan are breathing a sigh of relief after Governor Jennifer Granholm announced that the Sterling Heights and Marquette crime laboratories will not be shut down. The labs' appeared to be numbered when legislators failed to fund them in order to save $2 million. It is not yet clear how the budget gap will be resolved.

Texas
December 12, 2007
The Houston Chronicle has reported that a former drug chemist from the embattled Houston PD crime laboratory has been indicted on "two counts of tampering with evidence and one count of aggregate theft by a public servant." Lab director Irma Rios assured that the incidents were isolated.

United Kingdom
December 11, 2007
A parliamentary candidate from West Worcestershire is outraged that the DNA profiles of 2,805 children are being held in a police database. The database is controlled by the Forensic Science Service in Birmingham. According to Worcester News, "DNA details can be taken from anyone arrested for a recordable offence and detained in a police station."