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Brandon L. Garrett

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Science, Standards and Forensics: Part III

Posted: 09/10/2012 1:01 pm

After his 28 years in prison, freed by DNA tests, Donald Eugene Gates reflected on the difficulty of adjusting to his new life, telling the Washington Post: "Things are very different now, and I have to get used to it. It's strange. But it feels so good. Man, it feels very good." Twenty-eight years later, the world had changed in so many ways (the Internet, smart phones, social media and, of course, DNA testing). Three more years have passed since he was exonerated in Washington D.C., though, and the same problems with forensics remain.

His case should haunt us. Like I discussed in my last post, not only were scores of innocent people like Gates convicted based on unsound forensic techniques like hair comparisons, as I describe in my Convicting the Innocent book, but other types of forensics lack sound scientific standards. Crime lab after crime lab continues to be shuttered or audited due to lack of standards and oversight. We have no idea how many other innocent men like Gates may have languished in prisons; most old criminal cases do not have evidence that can be DNA tested, and if they once did, the evidence is often lost.

Our entire system of forensics needs to be shored up -- and Congress may finally be responding to the crisis. This summer, Senator Jay Rockefeller introduced important legislation in the Senate, introduced in the House by Reps. Eddie Bernice Johnson, Donna Edwards and Daniel Lipinski, called the Forensic Science and Standards Act of 2012 (S. 3378 and H.R. 6106). This bill asks that the National Science Foundation (NSF) fund research and the National Institute for Standards and Technology (NIST) set out scientific standards for forensics based on the research.

The bill would allocate tens of millions of dollars in grant money for forensics research, setting out a "unified" federal research strategy and new Forensic Science Research Centers. We need research to find out what is the frequency of microscopic characteristics that forensic analysts rely on. We may find out that some techniques like fingerprint comparisons can be improved, and we may find out that some techniques, like hair comparisons, simply do not hold water. The Attorney General would have the responsibility to put these new scientific standards into practice, including by requiring federal labs to adopt them and encouraging their adoption by state and local crime labs. (Another bill, by Senator Patrick Leahy, the Criminal Justice and Forensic Science Reform Act of 2011, S. 132, has been kicking around even longer. It also calls for new grants for forensics, but it would center oversight in the Department of Justice.)

All of this help is desperately needed -- though it is not as effective or direct as what the National Academy of Sciences Committee proposed: creating a new, independent and scientific agency for forensics. Still, the Rockefeller bill will go a long way. It is remarkable that there still is no nationally standard terminology for forensic analysis, no scientific standards and a lack of basic research asking whether a host of forensic techniques are valid and accurate. There is also no standard process to conduct an inquiry when something terribly wrong comes to light, like in the FBI hair cases.

More work is being done just down the street from the hallowed halls of Congress. Washington D.C. is building a new city crime lab, and passed legislation to implement the National Academy of Science Report's suggestions at the local level, to make sure that its lab has scientific oversight and clear scientific standards for its work. Maybe that local lab can provide a model for the Feds.

Gates can never really be made whole for losing so much of his life based on false charges and faulty FBI forensics. His life has certainly improved now that he is free for the first time since the 1980s. The same is not true for forensics. Things are still not very different from the 1980s in the world of forensics. Despite the remarkable feats that DNA tests can sometimes make possible, and contrary to what you see on C.S.I.-type shows, the vast bulk of forensics work still usually hinges on the conclusions of largely unregulated lab analysts, often peering into old-fashioned microscopes, and often not required to carefully document their conclusions. Maybe that is good enough for government work. But if we are going to use forensics to put people in prison for years, Congress should pass legislation to make forensics far more of a science. Forensics may not be anything close to a big election year issue, but maybe that is a good thing. It is not a partisan issue, but an issue of science and of justice: forensics change is long overdue.

 
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