Don't gloat that Texas is ahead on forensic-science reform

Meagan Flynn at the Houston Press is right that Texas is ahead of the feds and the rest of the country right now on forensic science reform, but that fact provides cold comfort. As Grits noted in an earlier roundup, this week the president's Council of Advisors on Science and Technology issued a harsh critique of a variety of common "forensic science" techniques as being, in fact, highly unscientific. (It's been rightly said that when one finds the need to append the word 'science' on a field - like forensic science, political science, military science, computer science, creation science, etc. - that the endeavor is thereby virtually guaranteed not to be science.) She writes:

Of the several methods reviewed, the only one the experts deemed trustworthy was your basic DNA testing, or analysis of simple mixtures of DNA when only two people's DNA is present. The other methods the council examined included bitemark analysis, complex DNA mixture analysis, footprint analysis like the kind you might see in some detective b-movie, microscopic hair analysis, firearms analysis and latent fingerprint analysis. And all of them were either in need of substantial improvement to be considered admissible in court or were considered basically useless.

Flynn offered a note of cautious optimism that, in large part because of the work of the Forensic Science Commission, Texas is in a better position than other states to weather the storm:

At least, however, there's some good news. Texas's own forensic science commission — which is not a common agency among all states — has already been studying these very issues in the past couple of years, and the White House findings mirror exactly what Texas experts have been saying.

"Texas has been really ahead of the curve in understanding that much of the pattern forensic evidence may be flawed," said William Press, vice chair of the council and a computer science and integrative biology professor at the University of Texas. "Texas is in a better position than most states to take the necessary steps to bring science into forensic science, and to make sure that we convict the right people."

The science and technology council's findings particularly line up with those of the forensic science commission on bitemark analysis, hair analysis and complex DNA mixture analysis.

It's true that Texas is ahead of the curve in understanding, if not stopping, the use of junk science in the crime lab and the courtroom. But we're all at the front end of an achingly long curve. This is not cause for optimism but instead means we're a little bit closer to the series of Class A Clusterf$@ks which are about to deluge the justice system over flawed forensics.

A prime case study in that regard may be found at the Austin crime lab, where the DNA section has been closed entirely and an FSC audit found the lab neck-deep in dysfunction. Police administrators quickly found themselves answering for past prevarications on the state of the lab, Chase Hoffberger at the Austin Chronicle reported:

The findings also bring into question why, when APD announced its shutdown in June, [Austin Police Chief Art] Acevedo led by saying the "voluntary" decision was the result of the death of an employee – only conceding ongoing conversations with FSC as a secondary reason. At the time, Acevedo said he'd been told "preliminarily" that the probability is low that an innocent person has been convicted as a result of APD's testing challenges. Asst. Chief Troy Gay doubled down on that assessment on Sept. 6 when he told members of the Public Safety Commission that the department and District Attorney's Office "have not located or identified any cases that have been impacted at this point."

The latter by now can be classified as an untrue statement: The contamination case specifically mentioned in the audit – flagged for contamination by the District Attorney's Office as early as 2009 – has still not gone to trial because of challenges at the lab. Any case that's been tried on DNA evidence processed through APD since April 2010, when APD adopted its stochastic threshold practice, could also be subject to retesting. As Ace­ve­do noted when he first announced the shutdown, "only time will tell" how many other cases have been affected.

Acevedo and Gay provide a good example of how NOT to handle these situations. Don't lie and pretend no cases are affected when they are; don't scapegoat your employees; don't downplay the concerns of rape victims who think their rape kits should be tested; don't conceal or whitewash a serious mess that will require community involvement and extra resources to fix. Own up to problems because they're not of your making: The whole field of "forensic science" is screwed up, from the FBI's labs preaching junk science at their national training center to the lowliest breathalyzer analyst interpreting black-box results from proprietary commercial software.

There is an ongoing existential challenge to whole fields of forensics which never emerged from the sciences. Instead, a scientific pretense served to gloss over questionable policing practices with a phony veneer, hoping a white lab coat could give them added credibility to gatekeeper judges when the actual scientific pedigree of the evidence could not justify it.

So look at what Austin PD is enduring at its DNA lab, assume most DNA labs face essentially similar challenges, then consider that nearly every other field of forensics crime labs undertake, according to this report and the earlier 2009 analysis from the National Academy of Sciences, essentially are based on subjective supposition rather than the scientific method. We're at the front end of a period of utter chaos in this nation's forensic labs.

Then there's the fact that, even where Texas law is ahead of the game, the Court of Criminal Appeals has abdicated its responsibility to interpret it as written to give it force: The Legislature created a "junk science writ" for wrongly convicted defendants to get habeas corpus relief when their conviction was primarily based on junk science. But four members of the CCA - Keller, Hervey, Keasler, and Yeary - have used every trick in the book to keep the court from interpreting the new law, causing Judge Elsa Alcala to lambaste them for disingenuity. With incoming members of the court likely to bolster those four's position on legislatively mandated habeas relief, and no guidance from the CCA at all on how to reform judicial gatekeeper functions in light of known flaws with commonly used forensic evidence, one realizes that Texas is not ahead of the curve at all when it comes to fixing these problems. We were just among the first to recognize them.

It's less like Texas is winning a race and more like we're the first dog to catch a car, or perhaps Patient Zero in a just-discovered pandemic.