Reliable and Accurate Forensic Testing at Risk under Attorney General Sessions

Several of my law firm colleagues and I, as well as others in the criminal defense bar in Wisconsin, regularly deal with DNA and other trace forensic evidence. The need for accurate and reliable forensic testing by law enforcement and state crime labs is critical, as our criminal clients’ lives and freedom is at stake.

Testing methods, procedures, and test results should be subject to independent peer review, common standards and certification. Just as important, forensic evidence testing and expert opinions about the results and what it means should be based on valid scientific and statistical principles, not outmoded theories, junk science or subjective statistics.

Until the Trump Administration, progress was being made towards improving the accuracy and reliability of forensic evidence. In 2009, the National Academy of Sciences evaluated the state of forensic science and, shockingly, concluded that many of the forensic evidence techniques commonly used in court in criminal cases actually have no scientific validity, including hair and fiber comparison analysis, and the resulting expert opinions rendered about such.

An independent commission was established by President Obama in 2013, the National Commission on Forensic Science (NCFS), bringing together scientists, judges, crime lab experts, prosecutors, and defense attorneys to analyze and improve the field of forensic science, which encompasses the many ways science is deployed in criminal justice. The NCFS was established partially in response to the National Academy of Sciences reports that highlighted the lack of standards for crime labs nationwide. The NCFS was in the process of addressing the NAS concerns, attempting to review and improve testing standards and methods, and other forensic science shortcomings.

That is, until President Trump’s new Attorney General Jeff Sessions announced in April 2017, that he would not renew the National Commission on Forensic Science and suspended review of past FBI testimony on several questionable forensic science techniques. Never mind that innocent people wrongfully convicted based on junk science and invalid expert opinions are still in prison. Accurate, science-based forensic analysis, like other science that the Trump Administration disagrees with or chooses to ignore, be damned.

Had AG Sessions’ new policy been in effect over the past several years, the invalid hair and fiber comparison expert opinions rendered by FBI experts in many cases around the country, including Wisconsin, would have remained hidden. Instead, in 2015, letters were issued by the U.S. Department of Justice to the state prosecutor and later copied to me, advising that FBI expert opinions rendered in my client Larry Fandrich’s case” exceeded the limits of science” and were therefore invalid.

I recommend the October 2017 articles by Katherine Proctor of the Wisconsin Center for Investigative Journalism, for an in-depth review of what happened to Larry Fandrich and other persons who were convicted and imprisoned based on erroneous or invalid scientific tests and expert opinions.

The Inquisition persecutors of Galileo are smiling at the new Trump/Sessions policy of ignoring and denying scientific fact and method. Americans should be very, very scared about how these anti-science, anti-truth policies threaten the fairness and reliability of our criminal justice system.

ABOUT THE AUTHOR: Raymond Dall'Osto
Ray Dall'Osto is fondly known as the firm’s “true believer.” He is a tough litigator who has dedicated his career defending and protecting the constitutional and legal rights of his clients. “It is my goal to help people cope with and overcome adversity, while preserving their rights. If you don’t stand up for your rights, you have none.” Ray notes that if he was in the client’s shoes, he “would want a lawyer representing me who cares and treats me the same way as if I was a close family member of the lawyer. That is how I try to represent my clients.”

Copyright Gimbel, Reilly, Guerin & Brown, LLP
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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