The FBI faked an entire field of forensic science (2015)
slate.com
slate.com
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 think I'm leaving your company soon. It's definitely too much to be dealing with.
In theory lots of things are possible. We need to balance the risk.
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".
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.
- 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.
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.
I feel like the win/closure rate is a huge part of the problem.
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.
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 :-(
https://en.wikipedia.org/wiki/Inquisitorial_system
and this:
https://en.wikipedia.org/wiki/Cameron_Todd_Willingham
http://www.newyorker.com/magazine/2009/09/07/trial-by-fire
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 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).
This blinds people to misconduct by the ""good guys"".
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.
http://www.nap.edu/catalog.php?record_id=13163
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.
Sadly prosecutors too often see their job as winning cases rather than serving justice.
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.
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.
From what I can tell the maximum recommended felony caseload is 150-200 per year.
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.
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.
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.
“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.
Source: https://www.washingtonpost.com/local/indiana-man-accused-of-...
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.
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.
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.
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.
Shades of operation mockingbird.
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.
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.
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.
Does the USA not have a crime of perjury?
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.
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.
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.
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
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.
“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.”
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.
As a result, they tend to accept promises of accuracy that line up with their biases, and not dig too deeply into methods.
edited for coffeeless grammar
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 justice system isn't a science system and never has been.
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.
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.
https://en.wikipedia.org/wiki/Brandon_Mayfield
http://america.aljazeera.com/opinions/2014/2/the-terrifying-...
- How does this compare to other countries?
- Do other countries make use of similar lines of evidence in similar ways?
- Have other countries made the same mistake of over-interpreting the evidence and subsequently overhauled it?
The World contains a convenient set of correlated pseudo-replicates of western societies. Discourse in the USA often fails to make use of them.
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.
I have no sympathy for them AT ALL, and I think they should be personally prosecuted to the fullest extent of the law.
Which would be all of them.
No FBI agent has ever been found in the wrong for killing anyone, ever.
I suspect that trends of finding against the accused would track the issues well: Scalia was focused on a strict interpretation of the Constitution.
That's the contradiction here.
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.
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.
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.
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).
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.
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).