Junk Science – Undoing the Damage

Episode Notes

Transcript

Michael Semanchik:

So what happens when we come across someone who was incarcerated because of outdated science? When science turns to junk, what are the next steps? How do we reverse years or decades of damage caused by wrongful conviction and incarceration? So far, we’ve talked at length about the junk science aspects of bite mark evidence and shaken baby syndrome. Those scientific theories have been largely debunked, but that does not mean everyone convicted under them automatically gets out to the contrary. Getting people exonerated is an extremely steep uphill battle, one that we don’t always win. Courts are reluctant to overturn decisions and it can be very difficult to retest evidence with modern DNA testing. But why is that? Why wouldn’t the government want to verify that a case was done right the first time? And that’s what we are going to talk about in this episode. I’m Michael Semanchik and you are listening to junk science, undoing the damage

Singer:

Spend most of my life in prison, chasing our dream call justice, chasing our dream, chasing a dream. Want somebody, please hear my want, somebody please set me free.

Michael Semanchik:

There is probably no amount of money you could pay someone to serve 20 or 30 years in prison. Imagine all of the things that person would miss. All those wonderful life experiences that we take for granted, birthdays, road trips, dinner with friends, vacations, hobbies, all of it. Freedom is an essential part of who we are. Our society was forged from deeply held beliefs about freedom and liberty, and yet it is so difficult to reverse wrongful convictions even when evidence is later proven unreliable. So what should we do? How do we get all of the innocent people out? The unfortunate reality is that we can’t, there is simply no way to do that despite the best of intentions. That’s what I talked about with one of our sister organizations, the Arizona Justice Project. Here’s my friend, executive director, Lindsay Herf, discussing Ray Crohn’s case and getting evidence retested. You might remember Ray’s story from our first episode about junk science. He was convicted under bite mark evidence, but DNA evidence would eventually set him free.

Lindsay Herf:

I mean, one of the challenges in a situation like Ray’s, the way that he was able to get exonerated was getting that evidence retested. The evidence is in the hands of the government, and so we can’t just call up and say, Hey, get those bloody fingerprints tested. We’ve got a guy who might be innocent. We have to file a motion. We have to make a showing to the court that the evidence is relevant, that it would change the outcome. And so even just getting access to that evidence for more updated testing and potential database searches, which is a big thing to proving someone’s innocence, is trying to connect that evidence that doesn’t connect to the defendant to somebody else.

Michael Semanchik:

This last point is very important. Sometimes in the eyes of the court, it’s not enough to show that your client’s DNA is absent from the crime scene evidence. In theory, a guilty party’s DNA evidence could have been cleaned off when a victim showered or it could have deteriorated when the victim’s body decayed over time. And so the lack of your client’s, DNA evidence may not be enough to overturn a conviction, especially if there is other, albeit wrong evidence pointing to your client. But if you find someone else’s DNA in the crime scene evidence, and better yet if that profile matches a known offender, your case for innocence suddenly gets a lot stronger. As Lindsay will discuss shortly, it’s important to your innocent client to have a good working relationship with prosecutors and courts. And if possible, a BLOODSWORTH grant provided by the National Institute of Justice for post-conviction, DNA testing, that program is named for Kirk Bloodsworth and it helps defray DNA testing costs for innocence cases.

Lindsay Herf:

The databases are at the hands of the government and we can’t access them. That is one of the biggest roadblocks is if we don’t have a cooperating prosecuting agency or we have a court that says, I don’t know. I think the evidence that I’m seeing from trial looks pretty strong. I’m not going to allow you to have access to this evidence to test that is a big roadblock.

Michael Semanchik:

So earlier you talked a little bit about the BLOODSWORTH grant work that you guys had undertaken, and during your work on that grant, you guys were partnered with the attorney general’s office. Did that help get you access to the evidence? Is that the model for the future where we all can then collaborate with the prosecution or the government and then see what exists and get it tested? Or did that not work out?

Lindsay Herf:

I think it helped to a very good extent. Partnering with the ags office helped us get into the prisons to communicate with individuals about the opportunity, about what DNA testing is about. The work of the Justice project. Cooperating with the government also helped us work quickly with crime labs and police departments to find out what evidence still exists. Attorney General’s offices are over the entire state, and most convictions in each state are out of a county or some states call ’em the district attorneys. Some states call ’em the county attorneys. But those offices usually have power over most of the cases because the ones who prosecuted those cases. And so what we’ve seen in Arizona is differences in each county. Some counties, for example here, Pima County, which is Tucson, Arizona, has been very agreeable to work with us to release evidence for DNA testing. But not every county is like that. And in Arizona we have two large counties and a lot of smaller counties where judges are elected and it’s very political and it’s a totally different kind of dealing of justice. So it was great to have the attorney general’s office as a partner because it did help expedite many aspects of the work. But sometimes when it came down to it, it was the decisions of county attorney offices and not the ag to get relief or to even get testing sometimes.

Michael Semanchik:

Do you think it’s political that some courts are reluctant to look at old cases or do you think it’s that they just feel confident in the conviction? Or is it this finality in the judgment? What is it that holds the court from Why are they reluctant to look at these old cases, do you think?

Lindsay Herf:

I think it’s all those things. I think it’s all those things.

Michael Semanchik:

And I wonder if you said elected judges and in California we have both. We have appointed and elected. And I wonder if there’s some research to be done where there’s elected. If we look at elected judges versus appointed, are there elected judges that are less likely to look at old cases because they’re worried about their reelection, they might look soft on crime, for example? Right.

Lindsay Herf:

Definitely. I think that’s definitely a possibility. I also think judicial education is important. I mean, judges aren’t necessarily experts on all of the cutting edge for forensic science and how DNA testing has changed and why. Maybe there was DNA testing at trial, but now we could do YSTR testing, which just focuses in on the male chromosome that’s present. And even though there was previously DNA testing and it was inconclusive, there’s a better technology or perhaps there was a profile that didn’t match the defendant and that could now be uploaded into the database. Because every week in Arizona, additional profiles are uploaded into a database. And so just kind of understanding how the testing works, what the advancements have been, how things like the database works. Not every judge is up to date on that because they may not have many DNA cases, for example. So I think judicial education is a big part of it too because I think sometimes when judges do understand all of that, they see this isn’t a big ask. If we have an innocent person in prison, we’re going to know it once we do this DNA testing, but if they’re guilty, we’re also going to know it. So I might as well allow this testing to happen.

Michael Semanchik:

As you heard, it can be really difficult to work inside the system to get a case reviewed. Every district or county operates a little differently. And so navigating the political wonker can take time standards for reviewing certain innocence cases versus others might be different between counties or districts too. In addition, funding plays a role if a county or district is budget strapped, they might be less likely to engage in costly testing unless there is funding assistance from a Bloodsworth grant or some other similar program. And finally, judges are not scientists, but some of their cases require a nuanced understanding of complex scientific methods. Unless a judge has the background knowledge, a lot is going to be missed during a criminal trial. All that being said, what happens when a science gets discredited after it sends countless innocent people to prison? What do we do then? What if the evidence in question no longer exists or has been lost? Here’s more from my conversation with Lindsay. Is there any movement to have a mandatory case review when we learn that good science turns into bad? Is that something that we’re starting to see or No?

Lindsay Herf:

I think on smaller scales there have been some efforts to review certain groups of cases. The FBI hair microscopy review was limited to the FBI and its work, but it was kind of like a closed universe of cases. They could go through and pull reports and identify cases that had come into them that they had reviewed and done hair microscopy on for 40 years.

Michael Semanchik:

For those less familiar microscopy is the use of microscopes to view objects that cannot be seen with the naked eye. In terms of criminal forensics, microscopes are often used to compare trace evidence like fibers, hairs, and fingerprints to either find a match or eliminate one.

Lindsay Herf:

If we are going to do a review of SBS prosecutions, that’s a little harder to do. It’s not just one lab. It’s a statewide type of issue. There’s different medical examiner’s offices in different counties. Often we see in Maricopa and probably other places in Arizona that sometimes the medical examiner doesn’t say this child was shaken, but for whatever reasons, the prosecution believes the child was, and they bring in an expert from out of state to testify. So kind of having that closed universe of cases to do a review, to do a systematic review gets a little harder depending on what discipline we’re looking at and what discipline has sort of, there’s a lot of questions raised and there’s been a lot of exonerations and we want to take a deeper look. We have a feeling that there’s more people in prison for crimes they didn’t commit, but kind of doing that review gets a little more complicated when we don’t have this kind of closed universe of cases.

Michael Semanchik:

Yeah, I mean, I think once the FBI’s review had concluded that there were a number of California cases that we were told, oh, maybe a person testified in this particular case, but getting any of the records and trying to track down the transcripts and then trying to figure out whether or not the hair was the main piece of evidence,

Lindsay Herf:

And if the hair’s even still around, right? And

Michael Semanchik:

If it’s around, so we go through this whole thing and we find out, oh, well, the hair was just part of a bigger thing, but the hair no longer exists, and so now what do you do?

Lindsay Herf:

I do think the idea of systematic reviews of disciplines that have been found to have been found to be wrong and have been found to be overstated or embellished, and maybe that was used incorrectly. I think doing reviews of those types of cases is important because it definitely can lead to exonerations for people who may never otherwise have had a chance.

Michael Semanchik:

As a practical matter, it is much more difficult to challenge a young science that has not been completely debunked. Even a small amount of validity makes a huge difference. It might not matter even if the jury trusted junk science way more than they should have at this time. There is no way to know what percentage of belief a given jury placed on each piece of evidence used to convict someone. So even if one piece of evidence turns out to be less reliable, there’s no way to know if the prosecution’s case would’ve collapsed. For a multitude of reasons like this, courts are very reluctant to overturn a jury decision unless there are extraordinary circumstances. And unfortunately, it can be extremely difficult to demonstrate those circumstances because many a judge may not fully grasp the implications when a junk science is deemed less reliable.

It’s not just the innocent serving life sentences that suffer from junk science convictions. There are people out there who have served their sentences or were convicted of lesser offenses and might be under house arrest or out on parole. The junk science conviction on their record will continue to hinder their career and future prospects for decades to come. Unfortunately, due to extremely limited resources, these innocent people are far less likely to be helped by an innocence project or receive review from the courts. It’s just not possible to help everyone. And so the priority is invested in getting as many innocent people out of prison as possible. And so getting people back on track following incarceration often gets a backseat. But as we will soon hear, these lesser offenses might be a great place for a systemic review because of the widespread impact. And if in the process of reviewing that system, a deep seated flaws discovered, it could also help those innocent people with much more serious convictions.

Lindsay Herf:

And even if they’ve already served their time and they’re lower level offenses, we see these mass exonerations that have happened in drug cases out of Texas and other places where groups of often undocumented citizens are swept up and then charged with possession of cocaine or whatnot only for that to be totally false and they didn’t have cocaine, and then they have these criminal records and they lose their jobs, and it’s this horrible series of collateral consequences that ruin their lives, and maybe they only spend a month in jail, but it’s still a huge thing that they have a criminal conviction and now their lives have been completely uprooted. So it doesn’t have to necessarily be a homicide case where a person has a natural life sentence. It can be a much lower level type of offense that is still wrong. And still, I think drug cases are a good place to start with even doing kind of a systematic review because then we can target in on a crime lab. There’s a lot of different things I think that could be done. I know the crime labs, if we’re putting this on the crime labs, I know that they’re also overburdened with the evidence that just came in this morning from the homicide that happened down the street last night, and so it does require more participants in the criminal justice system to do these retrospective look backs and try to correct these wrongs.

Michael Semanchik:

I think you’re right. I think so many of our cases are the ones that we actually get the wins in are the lucky ones. I think there’s no doubt both of our offices and probably every innocence organization in the network has experience with this in that we all know that there’s hundreds of people that we’re probably not going to get out of prison, but we think are innocent.

Scientific advancements are a wondrous thing. They’ve given civilization so much and made life a lot easier. For the vast majority of us, there’s been nothing but upside from these improvements. It is worth remembering that innovations do have their costs. As long-term impact studies routinely remind us some things that seemed great at the time actually end up doing more harm than good, whether it’s side effects for medications or discovering that smoking is not good for us. After all, we have to remember that not every step forward is a trouble free one. The same can be said for our criminal justice system. We have learned a lot from the history of discredited junk science. We have seen the latest and greatest suddenly get uprooted or de-emphasized over and over again with every innovation. It behooves us to remember that not all new science will pan out. We should audit our results and continue to check for accuracy. Although there are good intentions with our advancements in forensic science, many people have been permanently harmed. It’s probably not possible to prosecute crime without some impact on innocent parties, but we need to minimize those instances and do our best so that lives are not destroyed in the process.

Thank you for listening. We hope you enjoyed this episode. Brought to you by the generous support of Clio, the legal operating system for client-centered law firms. Produced and written by Laurence Colletti Audio Engineering by Adam Lockwood. Special contribution of music and sound elements by real life exoneree, William Michael Dillon. You can find his catalog of [email protected]. That’s framed DILL com. Until next time, I’m your host, Michael Semanchik, and you’ve been listening to For The Innocent here on Legal Talk Network.