The end of junk science in court or just the beginning?

 

On July 13, Maddy deLone sent out an email alert from the Innocence Project about a bi-partisan Congressional initiative to end the use of junk-forensic science in American courtrooms. The legislation is designed to address the problems with the use of scientific data in court, as reported in 2009 by the National Academy of Sciences (an non-government organization).

Unfortunately, after reading the Senate bill, I have concluded that—as well intentioned as it may be—the only thing the law will do is provide massive amounts of research money to forensic scientists who are already conducting ludicrous experiments, like the one who testified in Casey Anthony’s trial that he had sampled the air in the trunk of her car and found proof a dead body had been there at one time.

Sidebar: In my opinion at the time one of the most-compelling bits of testimony in the Anthony trial came from the manager of a lot where abandoned cars were towed. His credentials suggested to me that he was truly familiar with the smell of rotting human flesh. He had been sure that Casey’s car smelled as if a corpse had rotted in it. Since, once in the parking lot at Chicago’s O’Hare Airport I had passed a car trunk in which I felt certain somebody was rotting, I believed him. Then last week my own car began to smell “fishy,” so to speak, although not fishy fishy, but rotten-flesh fishy. First I searched for a plastic grocery bag that might have had chicken blood in it. Then I finally opened the trunk. A sealed, plastic bag of Trader Joe’s salad mix had apparently fallen out of a grocery bag stowed in it days earlier and liquefied. Just goes to prove that Jose Baez was right: trash stinks, flesh or not.

Casey Anthony’s high-profile trial was certainly not the first to bring junk-forensic scientists out of the woodwork.

Think back to the O. J. Simpson murder trial: remember an FBI hair-and-fiber expert who testified that a ski cap had been worn by an African American with chemically treated hair? That same FBI expert was also prevented from testifying that fibers found at the scene were from Simpson’s SUV, because he had, essentially, conspired with the prosecution to withhold the information during the disclosure phase of the case. Of course, it didn’t matter to Simpson in the end, but the National Academy of Science report since pointed out the extremely subjective nature of all hair-and-fiber analysis. Subjectivity is not scientific. And the new law does nothing to eliminate the use of subjectively analyzed evidence in court.

Then there was Scott Peterson, who may soon be getting a new trial: not only has he finally presented his appeal to the California Supreme Court, but that court has also recently overturned a capital murder verdict because of the way jurors were “qualified” for the jury panel. Peterson’s appeal includes complaints about “shaky” forensic-science testimony regarding the movements of dead bodies in water and the ability of cadaver dogs to identify specific people’s scents. What especially bothered me about the forensics in the trial, though, was testimony about such nebulous evidence as a computer search that turned up a click by the victim on an online ad for an umbrella stand (as if anybody could tell who clicked on it) and evidence of a rug scrunched up on the kitchen floor and the impression (that is, dent) in a bedspread shaped like a body.

High-Profile Forensic Science

The problem with the current use of forensic-science evidence in American courts isn’t that sound research is not being conducted—and that’s what the new law seeks to promote. The problem is the way prosecutors and judges rely on government-paid technicians to present evidence in court. In the Casey Anthony trial, for instance, the prosecution stumbled upon a researcher at Oak Ridge National Lab (a government lab), who has a quack theory about what can be gleaned from the misuse of highly sensitive chemical-analysis equipment. Knowing no better, the judge permitted the evidence to be presented in court. Fortunately for the defendant, her attorneys were smarter than the prosecutors and judge, and they made mincemeat out of the so-called forensic “scientist.”

The FBI lab’s “forensic scientists” testified in all three of the above cases, and in each case presented highly questionable evidence. In the Anthony trial, the FBI’s labs admittedly even mishandled a great deal of evidence, destroying it in the process.

If the Congress wants to improve the state of forensic science, they need to promote the use of independent, non-government labs for the collection and analysis of evidence. Unless government labs are forced to adhere to rigorous analytical procedures, the FBI and state labs will just keep on doing what they see as their duty—to prove each defendant is guilty.

 

Thomas Fast Trial: The Art and Science of Memory

Yesterday in the trial of Thomas Fast , a woman testified for the defense about a memory she has of seeing the murder victim speaking to an employee in the Publix Supermarket near where the body was later found.

In a statement to police, the witness at first said she thought the incident occurred about two weeks before the body was found but after Thomas Fast was jailed (I believe this is what she said—TruTV’s spotty coverage of the trial yesterday prevented me from hearing the testimony). If credible, her testimony would have introduced considerable reasonable doubt into the trial. However, on the stand, I think the witness said the incident was two weeks or two days before she saw the first TV reports that Mrs. Fast was missing, which would instead have been before the crime occurred.

Memories in Court

There ought to be a category of forensics for memory experts, and such experts ought to testify both for the prosecution and the defense in trials such as the Fast trial. Science is rapidly learning what memory really is—and it isn’t at all what most of us were taught as children. I suspect that testimony about memories that doesn’t take into account this new knowledge serves only to confuse juries.

The old way of thinking is that memories are imprinted on the brain rather the way images are caught on celluloid film (“photographic memory”). In past trials, hypnotists have sometimes been employed to regress witnesses to the time of a crime in an attempt to retrieve lost memories. In the Scott Peterson case, for example, the police employed an inept hypnotist to retrieve a witness’s memory of a pregnant woman walking a dog in a park. Instead of retrieving an accurate memory, the hypnotist suggested things that altered the witness’s memories. As a result, the witness was not permitted to testify—and the Peterson defense lost a critical source of reasonable doubt.

(This sort of memory-tampering should be explored. Science is showing how easily this is accomplished. In fact, neurologists now believe that every time a person thinks about a memory it changes. The potential for police investigators to plant false memories in witnesses is very substantial.)

In the Trooper Robert Higbee trial, Prof. Geoffrey Loftus of the University of Washington explained many phenomena that create memories and how the mind constructs and reconstructs memories. In that trial, an issue was whether or not the defendant lied about trying to stop at an intersection or simply misremembered what happened.

The July/August issue of Discover Magazine contains a clear explanation of the current state of the art of memory, “Out of the Past,” by Kathleen McGowan. In short, memory is highly subjective and ever-changing. Memory is perhaps a human being’s most important learning tool. Without memory we wouldn’t be able to survive, because we’d be helpless in each disjointed moment. If memory weren’t the product of an individual’s interpretation of events, it wouldn’t help us learn. If memory weren’t ever-changing, it would mean we weren’t learning by reinterpreting the past.

  • Sidebar: One recent discovery is that it is rather easy to alter specific memories by administering drugs and then suggesting alternatives to the subject of the alteration. Again, it raises some frightening possibilities for law enforcement and the justice system.

The implications of this neuroscience for trial testimony are tremendous. It means that jurors must view all eye-witness testimony skeptically and with great wisdom. To understand a witness’s memories, a juror needs to understand who the witness really is and how he or she is likely to interpret events. For example, a white witness is very likely to remember an incident involving an African-American very differently from the way another African-American would. It has nothing to do with racial prejudice—and everything to do with the process of formulating memories.

In the trial in which I served as a juror, the victim was a thirteen-year-old African-American girl and the defendant was a Hispanic in his twenties. All the eye-witnesses were African-American. I hesitate to mention this, but it’s my impression that Chicagoan African-Americans do not take kindly to Hispanics and vice versa. So, in retrospect I wonder if I ought to have taken the witnesses’ testimony with a grain of salt. Instead, I took it as literal truth.

In the Thomas Fast trial, the eye-witness to the victim’s presence in the Publix is actually very important. Yet the defense is going to be hard put (IMHO) to use the testimony in closing arguments, because the defense presented no expert memory witness. On the other hand, had the witness been more definitive about when she saw the victim, the prosecution might have been the side that needed an expert memory witness.

My point is—as I’ve said before—I believe judges ought to take greater care when admitting certain evidence into a trial. I’m not a lawyer, and I imagine what I’m going to suggest is far outside the scope of law. But, what if the Fast trial judge had asked neurologists and memory experts for both prosecution and defense to examine/interview this witness and then explain to the jury how the woman’s memory was constructed and why it changed?

In my debut novel, Verdict Déjà Vu, I explore the idea of an eidetic (photographic) memory. My juror/heroine thinks she has a perfect memory. It comes in handy during deliberations when she can repeat the coroner’s testimony to her fellow jurors verbatim. Of course, they don’t believe her and demand a read-back by the court reporter. Then—to my heroine’s great surprise—she discovers her memory is far, far from perfect. Worse yet, she realizes how many of her values have been shaped by a misunderstanding of her own past.

  • Sidebar: On the issue of Fast’s mortician skills, perhaps it was wise to keep his biography from the jury. Apparently morticians do commit murder from time to time. In Lancaster, PA, right now a funeral director (Michael Roseboro) is being tried for killing his wife. Perhaps a familiarity with death makes killing easier. Even if that’s true, I don’t think funeral directors make good villains for fiction. They are interesting characters, but not entirely unsympathetic. I suppose Fast’s lawyers are less concerned about their client’s homicide potential and more concerned the jury might believe a mortician would be capable of dismembering his victim. Occasionally, people inured to dead bodies give them little respect: witness the fiasco at Alsip, IL, Burr Oak Cemetery where grave diggers dumped buried bodies to make room for new ones, and don’t forget the Tri-State Crematory case in 2000.

 

Thomas Fast Case — Should the jury know his profession?

CNN’s TruTV is currently covering the Brandenton, FL, trial of Thomas Fast, a former mortician. According to commentator Jean Casarez, the judge is pondering whether or not to admit evidence that would reveal to the jury the fact that the defendant is a trained mortician. The reason this is relevant is that the body of the murder victim (his stepmother) was found in pieces. The prosecution would like to let the jury know that the defendant is “anatomically knowledgeable,” so to speak.


As a juror, frankly, the fact that this particular defendant knows something about dead bodies wouldn’t be particularly enlightening, so I don’t think it will make a difference in the ultimate verdict. Other issues are more cogent, such as the fact that the defendant has some mental “issues.”


On the other hand, I can’t see a good reason for hiding any defendant’s profession from a jury. I can’t even remember another trial where the defendant’s profession was kept secret. In the Melanie McGuire trial, the fact that she was a nurse was used against her (her husband’s body was also dismembered). In several other trials of female nurses, their professions were used to subtly imply they knew how to poison people.



  • Sidebar: According the New Jersey Star Ledger (June 9), Ms. McGuire’s appellate attorney, Stephen Turano, has found new evidence about the gun used in the murder (ballistics evidence). As I’ve written before, I found much of the forensics evidence in the McGuire trial questionable. If the bullets found in the body did not come from the gun Ms. McGuire was known to have owned, and which played a huge part in the trial, then this is certainly more junk science for my list; other problems were the analysis of plastic garbage bags and the failure to find any blood evidence in McGuire’s bathroom where she was alleged to have dismembered the body. This would be an interesting retrial to watch. (I wish CNN would consider live coverage of retrials, such as this and Raynella Dossett-Leath. I think they missed an opportunity with the retrial of Phil Spector.)

Incidentally, I wondered how many other morticians have been accused of murder. When I Googled “murder mortician” I pulled up this rather interesting search list.


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