On Wednesday, I wrote about how President Obama had missed a huge opportunity by not forcing the Justice Department and federal law enforcement agencies to implement the forensics reform recommendations put forth by the President’s Council of Advisors on Science and Technology.
Coincidentally, just this morning the Harvard Law Review published an article on criminal-justice reform authored by Obama himself. Forensics gets only five paragraphs of a very long piece. But it’s still worth examining. Obama touts what he claims to be a number of success within his administration toward advancing better and more science-driven forensics.
My Administration has supported a wide range of research and policy initiatives to strengthen the forensic sciences, spanning disciplines from DNA analysis and fingerprints, to tire and tread marks, ballistics, handwriting, trace-evidence and toxicological analyses, and digital evidence. In 2013, DOJ and the Commerce Department’s National Institute of Standards and Technology (NIST) established the first-ever National Commission on Forensic Science, a federal advisory committee to provide recommendations on how to strengthen the validity and reliability of the forensic sciences. In response to recommendations from the Commission, DOJ announced several actions it will take to improve its policies, including requiring the Department’s forensic labs to obtain and maintain accreditation and requiring all Department prosecutors to use accredited labs to process forensic evidence when practicable within the next five years.
As I noted here at The Watch at the time, that phrase “when practicable” is significant. It gives federal prosecutors an out to use a non-accredited lab when an accredited one would be too much trouble. The loophole was criticized by several members of the NIST commission. And there were other problems with the requirement. Here’s an article published at Frontline shortly after the new policy was announced:
To prevent lab scandals from happening, accreditation has to do more than simply become universal — it must also become rigorous, said commission member Paul Giannelli, a law professor and evidence and procedure expert at Case Western Reserve University.
Crime labs are accredited by private entities, often a nonprofit associated with a professional forensics association. Each group varies in its standards, but most require labs to maintain tested and calibrated equipment; put in place standard operating procedures, including for the reporting of errors; and establish quality controls. But many of these agencies have been criticized for lacking rigorous standards and showing little muscle when problems occur. For instance, Giannelli said, some labs are able to choose for themselves the cases their reviewers see, rather than having those cases selected at random. …
Indeed, the majority of crime lab scandals we’ve seen in recent years occurred at labs that already had some sort of accreditation.
More from Obama:
In 2015, NIST established a $20 million Forensic Science Center of Excellence at Iowa State University to solidify the statistical foundation for disciplines including fingerprint, firearm, tool mark, and other pattern-based evidence analyses. NIST also administers, in collaboration with DOJ, the Organization of Scientific Area Committees for Forensic Science, a collaborative body of more than 500 forensic practitioners and other experts working to develop consensus-based forensic science standards and guidelines. In the last year, the President’s Council of Advisors on Science and Technology has also focused on these important issues.
All of these things are well and good. But as I pointed out Wednesday, Obama could create a dozen more blue ribbon commissions to study forensics and come up with another 10 dozen best practices recommendations. All of that means nothing if Obama won’t require the federal law enforcement agencies he oversees to actually implement those recommendations. And he hasn’t. Attorney General Loretta Lynch flatly dismissed the PCAST recommendations Obama takes credit for commissioning in the first place. And Obama did nothing to refute her. The reports from PCAST, NIST and the National Academy of Sciences all gave us a clearer, well-documented view of the crisis in forensics. That was important. But it’s all useless if none of it results in any substantive policy changes.
Which brings me to Obama’s next paragraph:
The FBI not only supports forward-looking forensic-science research and technology development, but has also undertaken an unprecedented examination of previous casework and testimony. In 2012 the FBI, assisted by the Innocence Project and the National Association of Criminal Defense Lawyers, launched a review of testimony about microscopic hair evidence. This review was the result of a series of high-profile exonerations of wrongfully convicted individuals that indicated that testimony exceeded the scientific capabilities of the technique. The FBI reviewed more than 21,000 cases in which the FBI provided testimony on microscopic hair analysis between 1972 and 1999. This review helped lead to at least two exonerations, with several cases still pending. Earlier this year, DOJ also established a Forensic Science Discipline Review to institutionalize quality assurance in the practice of other forensic science disciplines across the Department.
It’s true that after 20 years, the FBI finally admitted that its hair fiber analysts had gotten it wrong — in virtually every case in which they testified. That admission came well before Obama took office. But here’s what Obama omitted, as reported by The Post’s Spencer S. Hsu in 2012:
Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.
Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.
In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.
As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects. …
The Justice Department struggled to balance its roles as a law enforcer defending convictions, a minister of justice protecting the innocent, and a patron and practitioner of forensic science.
By excluding defense lawyers from the process and leaving it to prosecutors to decide case by case what to disclose, authorities waded into a legal and ethical morass that left some prisoners locked away for years longer than necessary. By adopting a secret process that limited accountability, documents show, the task force left the scope and nature of scientific problems unreported, obscuring issues from further study and permitting similar breakdowns.
“The government has hidden behind the veil of secrecy to shield these abuses despite official assurances that justice would be done,” said David Colapinto, general counsel of the National Whistleblowers Center.
Moreover, as Hsu also reported, the FBI review did not extend to local crime lab analysts whom the FBI trained in its own flawed methods.
Thousands of criminal cases at the state and local level may have relied on exaggerated testimony or false forensic evidence to convict defendants of murder, rape and other felonies.
The forensic experts in these cases were trained by the same elite FBI team whose members gave misleading court testimony about hair matches and later taught the local examiners to follow the same suspect practices, according to interviews and documents.
In July, the Justice Department announced a nationwide review of all cases handled by the FBI Laboratory’s hair and fibers unit before 2000 — at least 21,000 cases — to determine whether improper lab reports or testimony might have contributed to wrongful convictions.
But about three dozen FBI agents trained 600 to 1,000 state and local examiners to apply the same standards that have proved problematic.
None of the local cases is included in the federal review. As a result, legal experts say, although the federal inquiry is laudable, the number of flawed cases at the state and local levels could be even higher, and those are going uncorrected.
It’s swell that the FBI finally conceded that its hair analysts have been tainting thousands of criminal cases for two decades. It’s swell that the FBI finally conceded the same thing about Compositional Bullet Lead Analysis. And “voiceprint” analysis. And that the Bureau of Alcohol, Tobacco, Firearms and Explosives finally admitted that after who knows how many convictions, much of the arson “science” touted by its agents and taught to local fire investigators across the country was based largely on superstition and folklore. But so long as the DOJ continues to defer to the needs of prosecutors and law enforcement officials over the recommendations of scientists, there will be a parade of new junk science disciplines to replace the old ones. As a former president of the nation’s largest forensics organization once put it, “There is literally no end to the number of disciplines that become ‘forensic’ by definition. Nor is there an end in sight to the number of present or future specialties that may become forensic. The examples are many.”
The difference is, these new disciplines won’t be utilized by prosecutors in cases where DNA is dispositive of guilt. With the DNA evidence, they won’t need to be. But that also means that we won’t have DNA testing to expose those disciplines as fraudulent.
I’ll concede that I’m not familiar with the apparently new DOJ “Forensic Science Discipline Review” that Obama touts in his article. But given that Lynch flat-out rejected the recommendations in the PCAST report — a report authored by a team of well-regarded researchers from across the sciences, published by Obama’s own council of science and technology advisers — it’s hard to have much confidence that this new entity, whatever it is, will insist that DOJ only utilize forensic disciplines backed by scientific research. Or, if it does, that it will have the will or the authority to implement those policies across the Justice Department, even if federal prosecutors or U.S. attorneys object.
Obama can tout the committees he formed and the reports he commissioned all he likes. When it came to using those reports to actually improve the criminal-justice system, his own attorney general rejected the notion out of hand. Obama then failed to correct her. As I wrote Wednesday, the window for reform here is small. Obama had the evidence to demand it. He’s a lame-duck president in an era where the public is as skeptical of the criminal-justice system as it’s been in generations. It was a golden opportunity. We just happened to have someone in the White House who, at least in his rhetoric, seemed to understand these issues as well as anyone we could really ever hope for — and at a time when the conditions for reform are as favorable as they’re ever likely to be. And yet Obama too eschewed the scientists and deferred to law enforcement. When it mattered, he dropped the ball. And that will be as much of his criminal-justice legacy as his commutations, his panels, his talk of justice and equality, or his law review articles.