Saturday, September 24, 2016

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.


Anonymous said...

Materials Science is a real, productive, and disciplined science. Just sayin'.

Gritsforbreakfast said...

I'll give you that one, to the extent that most of it's not a subset of chemistry and other disciplines. But that's also a rare example.

He's Innocent said...

Holy crap Grits. I follow you religiously, but this post blew me out of the water. It is genuinely frightening to guess how many lives, and generations of families will, and have already, been devastated by 'forensic science'. It could take more than 100 years to heal those devastated. Or more.

On the other hand, this is not surprising.

Which is scarier? I'm unsure.

And no matter what the lege and science may come to in terms of reform and better quality laws to afford the questioning of forensic evidence, it will take seemingly an eon to get the judiciary to back the rights that we all should be entitled to when defending ourselves in a court of law.

Which leaves me to this.... let Texas secede. Just let me get the hell out of here first because I am tired of living in a 3rd world country with no damn sense and is a laughing stock in the world of human decency.

Anonymous said...

"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..."

Sorta, kinda, not really...

No TFSC investigation, no report.
No DPS Investigation.
ASCLD/LAB performed its investigation from a La-Z-Boy in Idaho -- by telephone. Didn't speak to any of the lab analysts. Didn't validate a single statement from the Crime Lab. Didn't invalidate a single allegation from the complainant.

False positive results reported, false negative results reported.
Evidence was lost inside the lab.
False lab documentation was created.
Expert Witness suborned perjury.
The list goes on...and on...and on...and on...

Anonymous said...

Only until people such as Avecedo and Gay find themselves in the unemployment line will theses things begin to change. Slander is still a crime, no?

Play stupid games, win stupid prizes.

Anonymous said...

Anon 5:04, you are critical of the TFSC for things which happen in Dallas. However, that group does more with less than most government agencies do with all that they're given. The TFSC only has a staff of 3 people -- 2 lawyers and an admin asst -- yet their hands are in so many scientific fields and investigations, not to mention the certification of labs. 5:40, you might not like that TFSC is not investigating some issue or lab that you care about, but if one is honest, one has to admit that TFSC gives Texas more bang for its buck than any similar agency in the country.

Unknown said...

Grits, your facile dismissal of the “social sciences” is disappointing. You do such a tremendous amount of good, I hate to see you level such an ill-considered broadside against all empirical work that is not a true experiment (random assignment to control or experimental group). By this criterion, you would also ignore most of “astronomy science” and “archaeology science,” among other fields. If you think that only true experiments are scientific, then you ignore the richness and detail provided by qualitative data. I understand the importance of reliability and accuracy in forensic work, but please don’t dismiss the social sciences wholesale. Lumping the social sciences in with “creation science” is beneath you.

Anonymous said...

The TFSC conducts capricious, arbitrary, and discriminatory review of cases with no intention of helping to fix things. I guess we need another agency focused on helping labs to fix things. Given the state of child poverty and abuse in Texas you have to wonder if either is really affordable or proactive.

Gritsforbreakfast said...

@Steve Boehm, if that's all that bothers you about this post, you've got your own internal reflection to undertake.

If fields like political or military science - both of which are essentially oxymorons - make important contributions, they can and should do so without pretending to be sciences, which they are not. Same goes for economics, computer science, and pick-a-social science. By contrast, nobody says "astronomy science," because astronomy is a REAL science, it doesn't need the phony suffix to justify itself.

Yes, qualitative data provide richness and detail. Same is true in the actual sciences. And I'd never say that all work outside the hard sciences are useless - I'm a big consumer of such products. Even so, I don't have to dismiss probative results to simultaneously understand that there's a difference between what they do and the application of the scientific method. In fact, it's nearly the same distinction between the non-science forensics and the ones based on actual sciences - whether or not the result is a function of the subjective judgment of an individual or an independently verifiable outcome that can be reliably replicated by other scientists using the same methods.

And @TFSC critics, I get that they're not perfect and haven't always been as aggressive as you'd like. But do you think we'd be better off if they hadn't been doing this work? We're SO far ahead of other states on this stuff - the feds are the only ones close to us in terms of identifying and addressing problems - that I confess I don't understand the 'throw the baby out with the bathwater' sentiment.

Unknown said...

Well, at least you didn’t call me “snotty.”

Clearly we have a fundamental difference as to what constitutes science. You limit it to the natural sciences and their offspring, which is your privilege. Your blog, your rules.

However, it could be that roots of the whole forensics debacle lie in a fundamental misunderstanding, by those who supported the flawed forensic evidence, of the scientific method and its inherent messiness.

Here’s more, if you’re interested, from a “real” scientist.

Anonymous said...

@ 8:09-
First, there are NINE appointed members, a general council, and admin staff. And this group has access to all kinds of scientists across the State.

Second, this was the "investigation" after the Willingham case, pre-accreditation, pre-hair investigation, pre-DNA investigation, etc. Not much else was going on

And then they lied about the existence of the the State Senators.

Much like the Cecily Hamilton complaint. Much like the Debra Stephens complaint. Because an analyst submitted the complaint, it was ignored.

And there were a number of other agencies that should have done something to justify their existence.

Did you know there was another complaint submitted by the other lab analysts in December 2010?

Probably not...because it too was hidden. No meaningful discussion. Not listed in any TFSC Annual Report.

Hence, you get statements such as "in 2016 TFSC Counsel Lynn Garcia stated that the APD 'analysts themselves were aware the [method] was ineffective because they observed...[problems] in their own casework and did nothing.'

The TFSC will be responsible for the next wrongful conviction discovered in Dallas.

Anonymous said...

Anon 8:57 -
In 2009, the staff for TFSC was even smaller -- 1 lawyer and 1 admin. As you pointed out, the Commision members are appointed so most members (except maybe Di Maio) have full-time jobs on top of their commission duties. And also saying that TFSC had access to scientists and labs around the state reflects how misinformed you are because TFSC often was required to develop goodwill with labs/scientists in order to get assistance since labs/scientists were previously not required to deal with TFSC (until it recently got stuck with the legislatively imposed duty to oversee accreditation of labs).

You're clearly someone that just throws blame around to anyone standing near a problem regardless of culpability or involvement. And to blame TFSC "for the next wrongful conviction in Dallas" County is just plain ignorant.

I often don't agree with GFB, but he's right when he says that life is better with TFSC than without.


Managed it services dallas said...

Qualitative data provide richness and detail.Same is true in the actual's nearly the same distinction between the non-science forensics and the ones based on actual sciences...

Anonymous said...


According to the TFSC's Annual Report 2011 (their first)...
"In fiscal year 2009, the Commission used approximately $92,500 of its allotted $250,000..."
"In fiscal year 2010, the Commission used approximately $70,000 of its allotted $250,000..."

So they had the money. Plenty to spare. They could have hired more staff if they needed more staff. They didn't do that.

If they felt their regular jobs compromised their duties on the Commission, then they should have resigned from the Commission. They didn't do that either.

And for their first investigation (i.e. Willingham's arson investigation), they received assistance from scientists Craig Beyler, John Lentini, Gerald Hurst, and a slew of others. There are always willing scientists that will assist.

There were other complaints submitted to the TFSC in 2009-2011 that fell within their jurisdiction. They just didn't acknowledge them, swept under the rug.

Anonymous said...

If the TFSC had ten times the money it has, it should still not waste it on crackpots.

Anonymous said...


Did you want to contribute to the conversation, or just name call? Do you have any facts that contradict the above comments?