February 18, 2009 by Crime Lab Report

On January 9, Steven Barnes walked out of the Oneida County Courthouse in Utica, New York a free man after spending nearly twenty years in prison.  

Barnes was convicted in 1989 for the rape and murder of Kimberly Simon, whose body was found four years earlier near the Mohawk River in upstate New York. Barnes is now the twenty-fourth person in the state of New York whose conviction has been overturned largely due to the efforts of the Innocence Project, the post conviction litigation group founded by Barry Scheck and Peter Neufeld in Manhattan.  

Forensic evidence in the Barnes case included testimony that the soil on Barnes’ truck tires was similar to soil at the crime scene.  Expert testimony was also given that an imprint on the outside of the same truck was similar to the fabric pattern of a particular brand of jeans worn by the victim when she was killed.  

Journalists were quick to report the Innocence Project’s claims that the comparison of soil samples and the analysis of denim patterns have not been tested to determine their scientific reliability or validity.   

Barry Scheck, for example, was quoted as saying that “this is the latest in a long line of wrongful convictions based on improper or invalid forensic science that were ultimately overturned through DNA testing. Until there are clear national standards about what kind of forensic science can be allowed in court, more people like Steven Barnes will be wrongfully convicted while the actual perpetrators of violent crime remain at large.” 

Crime Lab Report contacted the forensic examiner who testified in the Steven Barnes trial.  We were told emphatically that the soil and fabric-pattern evidence were non-specific and could not be used to identify the perpetrator.   

But more importantly, the subsequent scientific testimony was not embellished to make the evidence seem stronger than it actually was.  In fact, the evidence was reviewed by one of the nation’s most well-known forensic scientists prior to trial. 

In other words, the forensic science was not faulty.  

By the time this editorial is published in the February issue of Crime Lab Report, the National Academy of Sciences will likely have released its long-awaited report detailing what resources and changes are needed in the forensic sciences.  Leaders in the forensic science community are hoping that the report calls attention to the gross insufficiency of available resources in relationship to the skyrocketing demand for forensic science services.

Innocence activists, on the other hand, have publicly voiced their excitement that the NAS report will finally expose the apparent fraud hidden within so many common forensic practices and subject the profession to much needed bureaucratic, government control.  This way, innocent defendants like Steven Barnes can be protected from wrongful conviction. 

What these activists refuse to admit is that forensic science may very well be the leading preventer of wrongful convictions, not a leading cause.  Yet for two decades, the Innocence Project has fueled an entire public policy campaign by mischaracterizing non-specific forensic evidence, including benign statements of similarity, because they couldn’t disprove the prosecution’s charges. 

If the forensic evidence couldn’t prove our client’s innocence, then it must have been faulty.   

This kind of logic is indefensible in light of the facts and we are convinced that both Scheck and Neufeld know it.  Unfortunately, they are too entrenched in their agenda to stop now.  

In our criminal justice system, when a defendant is on trial prosecutors must prove guilt beyond a reasonable doubt, which is the highest standard of proof applied in courts of law. Proof beyond a reasonable doubt, according to federal jury instructions, is "proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs."  

Based on all the evidence in the case, reasonable doubt means that the juror or judge would be uncomfortable with a criminal conviction. 

Unfortunately, doubt is a personal feeling, not a scientific finding. 

Circumstantial cases are often built around what seem like a mountain of incriminating facts which, when looked at individually, seem insignificant. But when they are combined, they tend to point a finger of guilt at the accused.

Neither the lay witness nor the forensic scientist can control how their testimony is spun in the courtroom, particularly during closing statements. 

Testimony from forensic scientists concerning the similarity of known and questioned items of evidence is far different from the identification of fingerprints, bullets, cocaine and DNA.  From a logical standpoint, the specificity of a forensic scientist who reports similarities between soil samples or fabric impressions is really no different than that of a lay person testifying that he saw the victim get into a red Chevrolet when, it just so happens,  the defendant drove a red Chevrolet.   

It is therefore the job of the criminal defense attorney to rigorously cross-examine witnesses and try to create reasonable doubt in the mind of at least one juror.  In the presence of incriminating forensic evidence, this means demonstrating why the forensic results are, in fact, not necessarily evidence of guilt. 

No one wants to see innocent persons spend the best years of their lives in prison for a crime they did not commit, nor have the real perpetrators roaming the streets. We also know that forensic science needs to continue its aggressive metamorphosis into a scientific profession worthy of the standards and expectations of the 21^st century.   

But it must be understood that this evolution began long before most of today’s critics decided that it was a convenient time, and possibly a lucrative one, to jump on the bandwagon.  

On the eve of the long-awaited National Academies report, forensic science doesn’t need critics.  It needs collaborative partnerships and advocates that can help secure the resources needed to keep pace with demand and rising expectations. 

Steve Saloom is the Policy Director for the Innocence Project.  He chided the New York State legislature for failing to act on reforms designed to help prevent miscarriages of justice, such as laws that mandate the preservation of biological evidence for post-conviction DNA testing and laws requiring the electronic recording of police interrogations.  

Many states have either passed or are currently considering such reforms.  Saloom pointed out that in nearly half of the wrongful convictions in New York State alone, the correct suspects were later identified and found to have committed a total of five murders, seven rapes, two aggravated assaults, and one robbery.   

Crime Lab Report shares Director Saloom’s concerns about public safety, as do most forensic science professionals.  But reforms calling for more forensic testing will simply tax existing resources even more.   

We agree that many of the recommendations proposed by the Innocence Project, if funded appropriately, would go a long way to curb miscarriages of justice.  But we are frankly astounded that they continue to make careless claims that faulty forensic science is a leading cause of wrongful convictions.  In our opinion, the very best research that money can buy will eventually confirm this to be overwhelmingly false.   

In this regard, we would like to see an objective and sweeping study conducted on the actual causes of erroneous convictions and acquittals in the United States and what role forensic science, and other types of evidence, play in this problem – good or bad.  

In the Steven Barnes case, Innocence Project staff attorney, Alba Morales, claimed that the lack of other strong evidence caused the jury to give too much consideration to the forensic testimony. “Steven Barnes should never have been convicted in this case, and without the forensic testimony he probably wouldn’t have been,” Morales said.   

Curiously, in a statement released after the recent exoneration of the “Beatrice Six” by the Nebraska Parole Board, Peter Neufeld was quoted as admitting that "In a lot of the cases, the serology testimony was scientifically valid and was accurate. The problem was that it wasn't sufficiently discriminating. In other words, you can't exclude most of the population."  

Crime Lab Report contends that the Steven Barnes case falls into the same category. 

We are no longer surprised by the Innocence Project’s refusal to redirect its attack on forensic science towards our legal system’s procedures and the competency of lawyers who represent citizens like Steven Barnes.   

We can only assume that attorneys criticizing other attorneys just doesn’t make for eye-catching headlines.  

Whether this speaks to the integrity of the Innocence Project or the health of journalism in America is a question for someone else to answer.  * * * * *

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

Subscribe to our free monthly report!
If you've received this report from a friend or colleague, you can subscribe now.  Information about our subscribers is kept private.

Headlines

Washington, D.C.
CFSO calls for roundtable to develop national strategy
As a result of the report, the consortium will convene a meeting to craft its strategy for addressing the needs of the Forensic Sciences in the United States. The meeting will include all major stakeholders and is tentatively scheduled for March 10th in Washington D.C.

National
New forensic policy & management journal launched
Taylor & Francis, an international academic publisher, is proud to announce the release of a new journal in the field of forensic studies: Forensic Science Policy and Management: An International Journal. The journal’s editors-in-chief are Max M. Houck of West Virginia University and Jay A. Siegel of Indiana University – Purdue University. Each issue of Volume 1 will be available online FREE for 60 days after publication.

Los Angeles
Report questions science, reliability of crime lab evidence
For decades, forensic scientists have made sweeping claims in court about fingerprints, ballistics, handwriting, bite marks, shoe prints and blood splatters that lack empirical grounding and have never been verified by science.

This is just one conclusion of a two-year study by the National Academy of Sciences, which today called for a wholesale overhaul of the crime lab system that has become increasingly critical to American jurisprudence.

National
Science Found Wanting in Nation’s Crime Labs
Forensic evidence that has helped convict thousands of defendants for nearly a century is often the product of shoddy scientific practices that should be upgraded and standardized, according to accounts of a draft report by the nation’s pre-eminent scientific research group. 

France
Fingerprints enhance the sense of touch
French scientists have found that fingerprints can actually help detect fine texture of surfaces and amplified vibrations identified by nerves deep under the skin. 

Baltimore
Crime lab deficiencies noted by audit
Baltimore's crime lab suffers from inadequate funding, spotty recordkeeping and broken equipment, according to an independent audit of the embattled facility released by the Police Department yesterday.

Houston
Crime Labs: They all have a problem
The whole nation is about to learn what Houston already knows through painful experience. Crime labs far too often produce not science but science fiction.

National
FBI lab in serious trouble
In a few days, the National Academy of Sciences will release a report regarding forensic science in the US in general. The report takes a special look at the FBI forensic laboratories. Scientists who worked on the report allege that the National Institute of Justice, a research arm of the Justice Department, tried repeatedly to block its release. Senator Shelby accuses the National Institute of Justice of having attempted to influence the panel.

Michigan
Law enforcement worries about crime labs
Law enforcement officials used words like "Armageddon" to warn lawmakers of a crisis brewing at state crime labs, where caseloads are up 25 percent since Detroit's police lab was shut down more than four months ago.

Pennsylvania State University
DNA may be enough to build image of your face
Forensic science is about to take a startling new turn – reconstructing facial features and skin tone simply by reading your DNA. This goes far beyond doing an identity-proving genetic fingerprint, it means the person’s actual face will emerge after analysing a collection of genes, according to a scientist from Pennsylvania State University. 

California
LAPD to expedite DNA testing of backlogged rape kits
DNA evidence in more than 400 rapes and sexual assaults has gone untested even though detectives trying to solve the crimes have not identified any suspects, Los Angeles Police Department officials acknowledged Monday.

After a sweeping inventory of the department's backlog of untested DNA evidence, the samples of semen, blood and other genetic material collected from victims' bodies in these unsolved cases will be prioritized for analysis in hopes that it will identify some of the attackers, Deputy Chief Charles L. Beck said. 

National
Junk science or not?
Bias is among the concerns raised about the integrity of forensic science and its role in criminal prosecutions. Of more consequence is the lack of a scientific basis for the work popularized in such television shows as CSI: Miami and Law & Order. Critics say analyses of hair, fingerprints and gunshot residue - unlike DNA analysis - lack sufficient scientific methods and standards. Forensic science experts, including those at the FBI, have challenged these claims. 

Chicago
FBI told to search database for slain girl's DNA
A federal judge in Chicago today ordered the FBI crime lab to conduct a search of its massive DNA database as part of an effort by an imprisoned Waukegan man to prove he is innocent of the rape and murder of an 11-year-old girl and perhaps find the real murderer.

The FBI had refused to search its database because the DNA testing had been done by a lab that wasn't accredited.