“Alcohol breath tests, a linchpin of the criminal justice system, are often unreliable, a Times investigation found…. Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight…. A county judge in Pennsylvania called it ‘extremely questionable’ whether any of his state’s breath tests could withstand serious scrutiny.” A wide-ranging and disturbing look at what happens when a familiar and seemingly uncontroversial technology gets put to practical forensic field use. [Stacy Cowley and Jessica Silver-Greenberg, New York Times]
Institute for Justice’s “Short Circuit“: “A member of the American Board of Forensic Document Examiners writes an article for an American Bar Association journal, in which he opines that judges should trust handwriting experts certified by the ABFDE and ‘be wary of other certifying bodies.’ Board of Forensic Document Examiners: Say what! We’re an ‘other certifying body,’ and that spurious article has defamed our esteemed members. Seventh Circuit: ‘[T]he appropriate avenue for expressing a contrary point of view was through a rebuttal article, not a defamation lawsuit.'” [Board of Forensic Document Examiners v. American Bar Association]
- Bloodstain analysis convinced a jury Julie Rea killed her 10-year-old son. It took four years for her to be acquitted on retrial, and another four to be exonerated. Has anything been learned? [Pamela Colloff, ProPublica] Forensics’ alternative-facts problem [Radley Balko] The chemists and the coverup: inside the Massachusetts drug lab scandal [Shawn Musgrave, Reason, earlier here, here, here, etc.]
- “I would say, you know, as a parting gift, if you’d like to throw in some iPhones every year, we would be super jazzed about that…. So, you know, a hundred, 200 a year.” A window on the unusual business of prison-phone service [Ben Conarck, Florida Times-Union, state Department of Corrections]
- Should juries be forbidden to hear any evidence or argument about their power of conscientious acquittal? [Jay Schweikert on Cato amicus in case of U.S. v. Manzano, Second Circuit; related, David Boaz on 1960s-era jury nullification of sodomy charges]
- This hardly ever happens: prosecutor disbarred for misconduct [Matt Sledge, Baton Rouge Advocate; Louisiana high court revokes license of Sal Perricone following anonymous-commenting scandal]
- “Cultural impact assessments”: Canadian courts weighing whether race should play role in sentencing minority offenders [Dakshana Bascaramurty, Globe and Mail]
- “The Threat of Creeping Overcriminalization” [Cato Daily Podcast with Shon Hopwood and Caleb Brown] “Tammie Hedges and the Overcriminalization of America” [James Copland and Rafael Mangual, National Review]
British neuropathologist Waney Squier spent many years as an expert witness in court assisting in the prosecution of defendants accused of causing Shaken Baby Syndrome. Then a closer engagement with the evidence caused her to change her mind — and the story that follows, which she tells in this TEDx Wandsworth talk, must be heard to be believed. Sue Luttner has more for the USC Annenberg Center for Health Journalism. More on the story: Jon Robins, The Justice Gap; Theodore Dalrymple, Spectator.
More: “Judge orders release of woman who served 11 years behind bars in grandson’s death” [Marisa Gerber, L.A. Times; earlier on shaken baby syndrome] More about Deborah Tuerkheimer’s 2014 book Flawed Convictions, which I haven’t seen, is here.
- “It should not be ‘customary’ for police investigators to attend autopsies, hover over a medical examiner as he works, and point out things they believe fit their theory of the crime. It shouldn’t happen at all.” [Radley Balko on Fifth Circuit ruling in Dean v. Phatak]
- Dubious forensics were central to the federal government’s litigation onslaught seeking to pin blame on forestry company for Moonlight Fire damage in California [Robert Nelson, Law and Liberty, earlier]
- “Memory experts … were significantly more skeptical about repressed memory compared to practitioners, students and the public.” [Lawrence Patihis et al., Memory]
- Child abuse panic 20 years later: “San Antonio Four” women finally exonerated after wrongful conviction [Elizabeth Zavala, San Antonio Express-News] More: panel finds actual innocence in case of Steven Chaney, imprisoned for 31 years after being convicted of murder on unreliable bite-mark evidence [Michael Hall, Texas Monthly]
- Yes, police body cams can make a difference in exonerating the officer [Ashley May, USA Today, Scott Greenfield] Or not [Joe Setyon, Reason on Detroit home invasion]
- Re-examining the Tennessee conviction of Claude Garrett for arson murder [Liliana Segura, The Intercept, earlier on arson forensics]
John Plunkett, who just died at age 70, was a Minnesota medical examiner who grew skeptical of the forensic theory behind Shaken Baby Syndrome.
He started investigating cases in which children had died in a manner similar to the way accused caregivers had described the deaths of the children they were watching — by short-distance falls. What he found alarmed him. In 2001, Plunkett published a study detailing how he had found symptoms similar to those in the SBS diagnosis in children who had fallen off playground equipment. It was a landmark study. If a short-distance fall could produce symptoms similar to those in SBS cases, the SBS diagnosis that said symptoms could only come from shaking was wrong. By that point, hundreds of people had been convicted based on SBS testimony from medical experts. Some of them were undoubtedly guilty. But if Plunkett was right, some of them almost certainly weren’t.
After he gave expert testimony that led to an acquittal in Oregon and thus became “a threat to SBS cases all over the country,” the county district attorney indicted Plunkett over supposed inconsistencies in his testimony. Those proceedings eventuated in the dropping of some charges and Plunkett’s acquittal on the rest; in the mean time, however, they chilled the willingness of defense attorneys elsewhere to rely on his testimony. [Radley Balko]
- Prosecutors too often dodge mens rea (knowing wrongfulness) as precondition for crime. SCOTUS can help by better defining “willfully” [Ilya Shapiro and Reilly Stephens on Cato certiorari brief in Ellison v. U.S.]
- False abuse accusations, a dozen years later: “The Girl Who Told The Truth” [Michael Hall, Texas Monthly]
- Retired federal judge Kevin Sharp: mandatory minimum sentences forced me to do injustice [Cato Policy Report]
- Kansas is unique in extent to which it adds large classes of drug offenders to sex offender list, new bill would change course [Maurice Chammah, Marshall Project]
- Like a contingency fee: “Tennessee state forensic scientists have a financial incentive to secure DUI convictions, says a Tennessee appeals court, as the $250 fee imposed on guilty motorists pays their salaries (and some of their positions were nearly cut in a recent budget crunch). Which violates due process.” [John K. Ross, “Short Circuit”, on Tennessee v. Decosimo]
- Amicus brief from Cato Institute and other groups in Ross Ulbricht/Silk Road case argues that Internet deserves robust Fourth Amendment protection [Ilya Shapiro and Aaron Barnes]
On Thursday I attended a Cato forum with Radley Balko and Tucker Carrington on their new book on the extraordinary Mississippi forensics scandal, “The Cadaver King and the Country Dentist: A True Story of Injustice in the American South.” Excerpt of blurb from event:
Over the past 25 years, more than 2,000 individuals have been exonerated in the United States after being wrongfully convicted of crimes they did not commit. There is good reason to believe that tens or even hundreds of thousands more languish in American prisons today.
How this can happen unfolds in the riveting new book from Radley Balko and Tucker Carrington. The Cadaver King and the Country Dentist recounts the story of two Mississippi doctors—Dr. Steven Hayne, a medical examiner, and Dr. Michael West, a dentist—who built successful careers as the go-to experts for prosecutors and whose actions led many innocent defendants to land in prison. Some of the convictions then began to fall apart, including those of two innocent men who spent a combined 30 years in prison before being exonerated in 2008.
Balko and Carrington reveal how Mississippi officials propelled West and Hayne to the top of the state’s criminal justice apparatus and then, through institutional failures and structural racism, empowered these two “experts” to produce countless flawed convictions on bad evidence and bogus science….
The book recounts in detail the unlikely claims that can be put across for supposed autopsy and bite-mark evidence, especially when no well-informed lawyer appears on the other side to push back. In addition to an exceedingly high volume of autopsy reports for police, Hayne was also available for medical expert witness testimony in civil litigation. We’ve been on the story for ten years: see links here, here, here, here, and here.
“Motherisk, a once-respected lab inside [Canada’s premier] Hospital for Sick Children, performed tests for more than 100 child welfare providers in five provinces, an investigation reveals.” The lab performed hair-strand drug and alcohol tests “on at least 25,000 people across Canada. The tests were discredited, but not before they were used in at least eight criminal cases and thousands of child protection cases. Now, many of those cases are under review.” While many of the cases drew on evidence other than the hair tests, false positives for drug or alcohol abuse could be a factor in temporary or permanent removal of children from parents [Toronto Star]
In British Columbia, a mother is desperate to convince the children she lost years ago that she didn’t choose drugs over them.
In Nova Scotia, a 7-year-old girl prays for her brother, who was adopted into another family.
And in Ontario, a mother whose daughters were taken shortly after they were born is waiting for a reunion that may never come.
Part II of Emily Yoffe’s investigation for The Atlantic is if anything more explosive than the first: the campus assault survivor movement promotes concepts of the effect of trauma on memory (contradictory, fragmentary, belatedly-retrieved and even suggestion-induced memories ought not be discounted as forensically probative) that replicate key elements of the repressed childhood memory/dissociation scandal of a generation past (“believe the victims”). And Part III and last: What role does race play?
Debra Saunders quotes me in her new column on Secretary of Education Betsy DeVos’s new decision to reconsider the Dear Colleague and Blueprint policies of the Obama years: [Las Vegas Review-Journal/syndicated]:
Their decision [four Harvard law professors’] to release this memo, said Walter Olson, a senior fellow at the Libertarian-leaning Cato Institute, sends the message that if you want to defend the policy, “you’re not going to have to argue with Libertarians and conservatives” only, you are going to have to argue with left-leaning legal scholars who also care about fairness and due process….
“So much momentum has built up for federally driven changes in campus discipline and rules, so much momentum for unreasonableness,” Olson said, but the unfairness was so striking that it brought together feminists, Libertarians and Trump supporters.
Still, he added, “It took a great deal of courage for [Education Secretary Betsy DeVos] to do this. It would have been easy for her to find some way to dodge it, or postpone it.”