- Tennessee legislature takes on the dangerous threat posed by raunchy bumper stickers.
LAPDL.A. Sheriff’s Department to stop suspending cops who “have used excessive force, driven while intoxicated, falsely imprisoned people or committed other serious misconduct.” Instead, they’ll now get a stern warning.
- Speaking of L.A., the city will settle with the family of a teen shot and killed by an LAPD cop after video evidence shows the cop lied about the incident. It’s the second time video has contradicted his testimony. Yes, the cop is still on active duty.
- Really fantastic ProPublica investigation into how the criminal justice system handles the deaths of children. Answer: Not very well.
It’s really pretty remarkable. After all that has come out about Hayne, not only does the court once again refuse to entertain doubts about his credibility as an expert witness, it actually takes a concurring opinion to point out that he at least isn’t above the same expert witness guidelines that govern everyone else.
For a quarter century Greenberg testified as an expert in forensic psychology, an inscrutable field with immense power. Purporting to offer insight into the human condition, he evaluated more than 2,000 children, teenagers and adults. His word could determine which parent received custody of a child, or whether a jury believed a claim of sexual assault, or what damages might be awarded for emotional distress.
At conferences and in classrooms, in Washington and beyond, he taught others to do what he did. He became his profession’s gatekeeper, quizzing aspirants, judging others’ work, writing the national-certification exam. His peers elected him their national president.
But his formidable career was built upon a foundation of hypocrisy and lies. In the years since Greenberg’s death, while court officials wrestled over his estate, The Seattle Times worked to unearth Greenberg’s secrets, getting court records unsealed and disciplinary records opened.
Those records are a testament to Greenberg’s cunning. They show how he played the courts for a fool. He played state regulators for a fool. He played his fellow psychologists for a fool. And were it not for a hidden camera, he might have gotten away with it.
It’s another lesson in fraudulent self-proclaimed forensics experts, but also in the perils of the larger problem of “the cult of expertise.”
Nearly one of every three cocaine tests conducted for criminal cases by the Indiana Department of Toxicology from 2007-2009 were bad, according to audit results released today by Indiana University.
The findings follow the release in April of audit results that revealed a 10 percent error rate in marijuana tests during the same period.
The lab has been operated by Indiana University since 1957, but will become a standalone state agency later this year. The move comes as a result of legislation passed this year by the General Assembly in the wake of growing concerns about problems at the lab, including long waits for results and questions about the accuracy of results . . .
MacIntyre said the bulk of the bad tests results were from 2007 and 2008, with “most of the problems resolved in 2009.” That would coincide with the arrival of a new lab director, Michael Wagner, who was the first forensic toxicologist to head the lab in more than a decade. Wagner resigned — under pressure, he contends, from IU officials — as concerns about the lab mounted.
The audit will now move to alcohol tests results from 2007-2009, which MacIntyre said will include the largest number of tests to be reviewed.
But the Indianapolis Star reported last month that the problems go back even further:
The Indianapolis Star reported Tuesday that about 2,000 emails it obtained from the lab show the agency was beset by incorrect test results from 2004 to 2006. A current audit of the lab’s work is covering only 2007 to 2009.
The lab tests blood and urine samples for evidence in criminal cases. The emails obtained by The Star show inadequate staffing and funding produced an environment in the lab ripe for errors, including the kind that could lead to people being denied justice, or escaping it.
The emails are correspondence to and from Peter Method, who served as the acting director of the department from 2003 to 2008. They suggest benign neglect on the part of the Indiana University School of Medicine, which did not authorize an audit of test results until 2008, at least four years after the first testing errors were reported by email.
One of the most telling notes was written by the lab’s supervisor in November 2006 to Method and Method’s supervisor, Michael Vasko, chair of the medical school’s Department of Pharmacology & Toxicology.
“I never had this (happen), error after error. … I guess if this is acceptable to you and the department, then I don’t have to worry. If an error occurs again in the future, I won’t bother you anymore,” the supervisor wrote.
The audit has already shown the lab sent out, on average, a flawed marijuana result every 3.28 days and a false positive marijuana result once every 18 days.
Among the more important revelations from the email correspondence are IU allowed the lab to languish under Method from 2003 to 2008, even though he acknowledged he was underqualified for the job.
They also show that while Method reported to Vasko, IU said Vasko’s job was merely broad “administrative oversight” — leaving the lab to Method as problems mounted.
Based on the emails alone, The Star found documentation of 26 bad test results from 2004 to 2006 that were reported to law enforcement.
Of those, 12 were false positives — findings that might have compromised the rights of Indiana residents. The other 14 were false negatives that might have prevented law enforcement from charging guilty people.
The error rates were seeing in these stories are jaw-dropping, especially when you consider the potential consequences of those errors. These stories ought to be a huge national scandal.
Note that this particular lab was affiliated with a university; it didn’t fall under the auspices of a law enforcement agency. The latter is especially problematic, but you don’t correct these problems simply by giving a lab more independence. The underlying problem is that we’re producing evidence that’s presented in court as “science” under conditions that fall well short of that definition.
This is also another data point in the case for a system of rivalrous redundancy. I think it’s safe to say that you’re considerably less likely to fall into a rut of “benign neglect” if you know your results will be regularly double-checked by another lab.
Very interested to see the reader reaction to this one.
- Mayor says Detroit police chief won’t be disciplined for crime lab fiasco, which may have tainted evidence in thousands of cases.
- Italian seismologists charged with manslaughter for not predicting earthquake.
- Long but important post from Julian Sanchez on location tracking and the PATRIOT Act renewal.
- Public health fanatics take aim at hookah bars. The last quote in the article is especially rich.
- Miami police confiscate, destroy cell phones of people who recorded officer-involved shootings.
- Tennessee’s troubled history with medical examiners. At least they do care enough to investigate the bad ones, here.
- Thank God this monster is off the streets.
Thousands of rounds of live ammunition, sealed evidence kits and case files — some containing Social Security numbers of rape and assault victims — lay amid rubble in a crime lab abandoned by Detroit police two years ago.
The Free Press discovered the ruins this week. Judicial experts expressed shock that evidence would be handled so recklessly.
“It’s incomprehensible that any law enforcement agency would not be mindful to preserve evidence,” Wayne County Circuit Judge Timothy Kenny said.
Detroit Police Chief Ralph Godbee Jr., told about the crime lab Thursday, launched an immediate investigation. “I will make sure that this never happens again,” he said.
The lab, housed in a former elementary school in Brush Park, was ordered closed in 2008 because of sloppy investigations. It’s now littered with tools, computers, TVs, cameras and microscopes, in addition to the other items.
The lab was open to trespassers for at least the past week. Parts of a fence around the perimeter have collapsed, and a window was broken. As recently as Monday, the front door was ajar . . .
The Free Press asked a downtown real estate professional with more than 25 years of experience in corporate real estate and building management to look at the former crime lab for an opinion on whether it was secure.
The professional, who asked not to be named because his company does not permit him to be quoted in the news media, visited the building Thursday afternoon and easily walked through the broken fence.
“You could back up a truck and empty the building,” he said.
So they had to close the place for sloppy work. Then they just left it open, to weather, trespassers, and raccoons, evidence and all. But rest assured. Chief says, “I will make sure that this never happens again.” So there’s that.
Sad thing is, any innocent people rotting away in a Detroit prison are the ones who will pay for this colossal fuck-up. If there’s evidence that could prove your innocence that was once testable but due to state screw-ups goes missing or contaminated, you’re generally out of luck.
In April 2009 I blogged about the case of John Kunco, a Pennsylvania man convicted of a rape in 1992 based mostly on the testimony of a bite mark expert. The Innocence Project asked the Pennsylvania Supreme Court to grant Kunco a new trial, based mostly on the 2009 National Academy of Sciences report on forensic evidence that found no scientific evidence to support the proposition that it’s possible to trace bite marks in human skin to one person to the exclusion of all others.
A quick summary from my post last year:
Two forensic odonotologists, or bite mark experts, named Michael N. Sobel and Thomas J. David testified that they were able to use ultraviolet light to isolate and photograph the woman’s wounds. Based on that photograph they were able to match the wounds to Kunco’s teeth, to the exclusion of anyone else. Their testimony grows more absurd when you consider that the photograph was taken five months after the rape, after the wounds had mostly healed.
Sobel and David wrote an article about their analysis in the Kunco case for a 1994 edition of the Journal of Forensic Sciences. In that article, they explain that “the technique used followed the recommendations developed by other odontologists.” One of the two footnotes to that sentence points to an article written by none other than . . . now-disgraced Mississippi bite mark expert, Dr. Michael West.
There’s no question that bite mark testimony was critical to securing Kunco’s conviction. The excellent new Bite Mark Evidence blog notes this passage from the prosecutor’s closing argument:
[T]here’s no way, no way on this earth, for Mr. Kunco to explain how his tooth marks got on Donna Seaman’s shoulder unless you accept the fact that he’s the one who attacked and brutalized Mrs. Seaman. That’s the only explanation, ladies and gentlemen. That’s why the evidence is better than fingerprints or hair samples … [T]he bite mark on Danna Seaman’s shoulder was as good as a fingerprint. And I submit to you it was that, ladies and gentlemen, for all intents and purposes. Ladies and gentlemen, I’d submit to you that John Kunco should have just signed his name on Donna Seaman’s back, because the bite mark on Donna Seaman’s shoulder belongs to John Kunco.
There was no other physical evidence linking Kunco to the crime scene.
I missed the decision when it came out, but last October Pennsylvania Jude Rita Donovan Hathaway refused Kunco’s request for a new trial. Hathaway acknowledged the limitations of bite mark testimony, and that the reliability of said testimony has been called into question (to put it mildly). So why did she deny Kunco relief?
To get a new trial post-conviction, you have to show that you’ve discovered new evidence that could not have been discovered at the time of trial, and that given the new evidence, no reasonable juror would convict you. But in Pennsylvania, you also need to file your petition within one year of discovering the new evidence.
Kunco did file his petition within one year of the release of the NAS report. But Hathaway ruled that the research upon which the NAS report was based was published in other sources much earlier. Kunco, she ruled, should have filed within a year of the publication of that research. In other words, the expert testimony used to convict Kunco may well have been fraudulent, but Hathaway is going to keep him in prison anyway, basically on a technicality (this is similar to what’s happening in the Eddie Lee Howard case).
The NAS report was a synthesis of research across nearly every forensic discipline. It was a landmark report, commissioned by Congress in response to the rash of DNA exonerations. The cruel conundrum here is that when other people convicted on bite mark testimony have filed for relief and cited the publication of an article in a narrowly-read scientific journal (also like Eddie Lee Howard in Mississippi), they’ve been denied on the argument that a peer-reviewed article here and there isn’t enough of a scientific consensus to overturn a jury verdict, especially if you already challenged the state’s bite mark expert at trial. If Kunco had filed shortly after that first journal article disputing bite mark evidence was published, and had he lost, in most states he would then be barred from making additional post-conviction claims on the same topic, even if more articles then came out showing a consensus that he was right.
Hathaway then goes on to misstate the findings of the NAS report. She writes:
The [NAS] Report does not, however, conclude that the use of bitemark analysis and comparison has lost general acceptance in the scientific community of forensic odontology. Rather, it specifically acknowledges that “the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification.”
Two problems here. First, Hathaway is only quoting the first part of that sentence. Second, she has also taken the entire sentence out of context. Here’s the complete sentence, in proper context:
Although the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge widely in their evaluations of the same bite mark evidence, which has led to questioning of the value and scientific objectivity of such evidence.
Bite mark testimony has been criticized basically on the same grounds as testimony by questioned document examiners and microscopic hair examiners. The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.
Leaves quite a different impression, doesn’t it? The disconnect here is that the NAS report is criticizing the entire field of forensic odontology. It isn’t surprising that a majority of forensic odontologists, many of whom have given bite mark-matching testimony themselves, would think that bite mark matching is legitimate science. It’s only slightly less absurd than saying that palm reading is a legitimate science because a majority of clairvoyants, some of whom are palm readers, say so. (I use the word slightly here because there are legitimate areas of forensic odontology, such as using dental records to identify human remains.)
Hathaway is also misleading here:
Even the defendants’ experts, in their remarkably uniform affidavits, state: “the NAS Report did not invalidate bite mark identification entirely,” nor did it report that bite mark identification fell into the realm of junk science” . . .
I guess that’s true. The NAS report did not specifically use the phrase junk science. It’s also true that the report didn’t “invalidate bite mark identification entirely.” Instead, the report concluded that with more research, bite mark identification might someday be useful as an investigative tool, and, in limited circumstances, might have some value in excluding suspects. (Such as if there’s a fresh, easily identified human bite mark on the body, and the chief suspect has no teeth.) But as noted above, the report was decisive in its conclusion about the use of bite mark analysis to identify one suspect to the exclusion of all others: It simply isn’t backed by any serious science. And this is exactly how bite mark evidence was used in Kunco’s case.
One other thing. As noted, the expert witnesses in Kunco’s case used a method of analysis used by disgraced Mississippi bite mark specialist Michael West. West has been cast out from the forensic odontology community. So even within the already-questionable field of bite mark matching, West and his methods are considered quackery.
Hathaway’s ruling here is appalling, as is the state’s willingness to keep a man in prison based on testimony we now know to be utterly unsupported by science. Judges and prosecutors with any sense of justice or shame ought to be tripping over themselves to give all of these bite mark cases a thorough review. Instead, they’re throwing up procedural and technical roadblocks to prevent the convicted from getting a fair trial untainted by crappy science.
- Never leave your kid in the car, even for 30 seconds. Not because it’s dangerous, but because someone may call the cops on you.
- I blame gay marriage.
- “Patrol officers in some police agencies and the state highway patrol were evaluated and given pay increases, in part, according to how many traffic violations they issued to motorists. That can no longer be a basis for performance evaluation under the new law.” Rather unfortunate that this needs to be codified into law in the first place.
- The “bite-mark experts” fight back.
- The column itself is just inane. The police responses to it in the comments section are horrifying.
- Sheriff’s deputy resigns after shooting, killing a vicious chihuahua.
- Don Haase sex scandal in 4 . . . 3 . . . 2 . . .
- Guy makes portrait collages out of porn (NSFW).
- Prosecutor: “You bet your ass I ain’t gonna be mean to Willie Nelson.”
- How could anyone possibly think this is a good idea?
- Here’s a writeup of my talk at Georgetown last week.
- Chuck Schumer bill would bar people convicted of drug crimes from owning a gun.It would bar people who haven’t been convicted of a drug crime from owning a gun.
For nearly three years, the military held the key to Roger House’s exoneration and didn’t tell him: A forensics examiner had botched a crucial lab test used in the Navy lieutenant’s court-martial.
In fact, the military had begun second-guessing a decade’s worth of tests conducted by its one-time star lab analyst, Phillip Mills.
Investigators discovered that Mills had cut corners and even falsified reports in one case. He found DNA where it didn’t exist, and failed to find it where it did. His mistakes may have let the guilty go free while the innocent, such as House, were convicted…
But the problem was bigger than just a lone analyst.
While a McClatchy investigation revealed that Mills’ mistakes undermined hundreds of criminal cases brought against military personnel, it also found that the U.S. Army Criminal Investigation Laboratory, near Atlanta, was lax in supervising Mills, slow to re-examine his work and slipshod about informing defendants. Officials appeared intent on containing the scandal that threatened to discredit the military’s most important forensics facility, which handles more than 3,000 criminal cases a year.
The military has never publicly acknowledged the extent of Mills’ mistakes nor the lab’s culpability. McClatchy pieced together the untold story by conducting dozens of interviews and reviewing internal investigations, transcripts and other documents.
That sounds about right. When the FBI was informed by the National Academy of Sciences a few years ago that the lead-composition tests it has used for decades was based on flawed science, the agency stopped using the tests, but also declined to inform the thousands of defendants who had been convicted based on the evidence.
My column last week discussed ways to reform the forensics system.
I’m flying back to D.C. this afternoon, so there will likely be no more blogging today. Please, do chat amongst yourselves.
- The Zoopreme Court.
- Medical marijuana shop inadvertently violates zoning ordinance. So naturally the city sent the SWAT team.
- More skepticism of Shaken Baby Syndrome convictions.
- Interesting post on a wrinkle and possible double standard with the onerous Illinois wiretapping law. I don’t have the law in front of me at the moment (I’m at the airport, WiFi is spotty), but I believe there’s an exception for people who reasonably believe they’re recording criminal activity. The problem of course is that if that you can’t use video to show you weren’t doing anything criminal. And if you record on-duty cops engaging in activity you think is criminal, you do so at risk of getting hit with a felony charge.
- Feds tell local school officials they should be monitoring their students on Facebook.
- DOJ investigation finds lots of problems with the New Orleans Police Department.
- Headline of the day.
- Nassau County, New York to pay for retesting in 3,000 drug cases possibly corrupted by faulty crime lab.
- Just a Friendly Reminder: Please Shut the Hell Up.
- Great piece by my colleague Jesse Walker on lessons from Japan. The bit about how people generally react after disasters (that is, markedly better than the media would have you believe) can’t be repeated enough.
- For the first time in 16 years, Mississippi has a state medical examiner.
- Reason.tv interviews Rand Paul.
- Life expectancy in the U.S. again hits an all-time high.
- Headline of the day.
- New York City spends $75 million per year arresting people for pot possession, even though pot for personal use has been decriminalized in the city.
. . . looks at recent efforts to reform the forensics system. My argument: They’re welcome, but they fail to address the underlying problems of cognitive bias and perverse incentives.
- Another isolated incident. And this time, a particularly inept one.
- Long and stabby things.
- I’ll be writing about this in my column on Monday, but here’s another study showing problems with the use of police dogs. My favorite bit is how the tests designed to fool the handlers were twice as likely to produce false alerts as the tests designed to fool the dogs.
- Father gets a $275 ticket for not wearing a helmet at a skateboard park. It apparently doesn’t matter that he wasn’t skateboarding.
- Man convicted of murder despite no body, no physical evidence of a crime, and no proof the alleged victim is actually dead.
- An invitation to this event arrived in my email. I think I’ll pass. A colonoscopy sounds like a more pleasant way to spend an evening.
- National Research Council study says the FBI overstated the science in its case against accused anthrax killer Bruce Ivins.
- Rick Santorum talks about his “Google problem”. I like that his defenders are appealing to civility. The guy thinks there should be laws preventing gay people from having sex in their own homes, and likens homosexuality to pedophilia and bestiality.
- I don’t know much about this case, but the summary has all the red flags of yet another bogus sex abuse prosecution. It also comes with natural suspicion of any case handled by Maricopa County DA Andrew Peyton Thomas.
- Scottish Deerhound wins Best in Show at Westminster. I like these dogs. They look like Muppets.
- In Baltimore, a police officer is supposed to review red light camera citations to match the license plate with the person who is issued the ticket. Somehow, 2,000 red light tickets were recently verified with the signature of a police officer who is dead.
- Slate looks at the new Frank Gehry building in Miami.
Emily Bazelon has a long, well-reported feature in the New York Times Magazine on new doubts about the diagnosis of shaken baby syndrome.
I wrote about this issue in 2009, and my column then inspired some spirited email responses. There is a small but growing part of the medical community that is skeptical of the diagnosis, and a very adamant larger group that says there’s no legitimate debate, here—the diagnosis is sound, and the skeptics are either nuts or are guns for hire.
I’m obviously not a doctor, but it strikes me that there’s something tantalizingly easy about the shaken baby diagnosis. It is based on just three symptoms, all internal, and can be made even when there are no external signs of abuse. Some experts and prosecutors claim that the diagnosis is enough by itself to prove (a) a crime has been committed, (b) who committed it (conventionally, the diagnosis implicates the last person who was alone with the child before the death or injury), and (c) the suspect had the requisite intent (the diagnosis includes the conclusion that the injury could only be caused by intense, vigorous shaking, which prosecutors usually argue in court shows anger and intent to harm).
If doctors find the triad of symptoms, there’s really no defense, unless the suspect attempts to show that someone else was also alone with the child shortly before the symptoms began to appear. (The symptoms are bleeding at the back of the eye, bleeding in the protective area of the brain, and brain swelling.)
The emerging group of skeptics attack both the diagnosis itself and how it’s used in court. They argue the triad of symptoms can be caused by incidents or medical conditions other than shaking, and that the injury itself could occur days before the symptoms begin to appear, instead of the hours or minutes often claimed in court. If true, both of those claims would destroy the half to two-thirds of shaken baby diagnoses in which the child showed no other signs of abuse.
One other note: It’s interesting how quickly the skeptics are dismissed as defense experts for hire. I’m sure there are no shortage of quacks offering their services to criminal defense attorneys. But regular readers of this site have seen enough horror stories by now to know that there’s nothing about testifying for the state that cleanses an expert of bias, either. If they’re outside consultants, they too are paid for their services. And if they actually work for the state as a medical examiner or in a state crime lab, the biases are built into the system.
The video embed doesn’t seem to be working. But you can watch here.
- After The Wire.
- Electronic Frontier Foundation report finds systematic lawbreaking in FBI intelligence operations.
- Fascinating interview with Pamela Geller.
- Headline of the day (Obvious Division)
- Headline of the day. (“How Generous of Them” Division)
- A good lesson from Egypt for the people who criticize Oath Keepers. I’ll have an interview with OK founder Stewart Rhodes that will go online next week.
- Pretty stunning frankness from the paternalist Governors Highway Safety Association: Laws are more important than deaths.
- Apple amends its policy on water-damaged iPhones.
- ProPublica and Frontline have put together a massive new report on the country’s autopsy and death investigation systems. I’ll have more on this after I wade through it all.
Documentarian Joe York’s movie about the cases of Kennedy Brewer and Levon Brooks premieres next month at the Oxford Film Festival. Here’s a trailer. Pay close attention and you’ll see a quick shot of a younger, slightly plumper Radley Balko.
Looks like it’s going to be a great film.
- One of the victims of the Tucson shootings issues death threat to a Tea Party leader. I don’t really know what to make of this. Other than that it’s sad.
- Sorry your infant daughter lived only an hour after birth. But you owe the government a $50 “death tax”.
- Mississippi’s autopsy system: still a mess.
- Fox responsible for another shooting.
- Bring back the woolly mammoth!
- Maryland man says he was pepper sprayed, arrested after trying to videotape a police officer on public property.
- Egyptian Muslims offer themselves as human shields to protect Coptic Christians from extremists during a Christmas Eve mass.
- Nashville DUI arrests are down by about 35 percent in 2010 due to funding cutbacks. Effect on drunk driving fatalities: None.
- Here’s another fun Steven Hayne case. Hayne determined a woman died of stab wounds to the face and neck even though the body he examined had no head. Note his explanation, which refers to witness testimony. It’s a good example showing why a medical examiner shouldn’t be given that kind of information before he conducts an autopsy.
- Another state legislature wants to let local cops monitor what prescription drugs you’re taking.
- Harvey Silverglate on the folly of anti-bullying laws. Naming a proposed law after a dead person is a pretty reliable indicator that it’s going to be a crappy law.
Last month, I wrote a column about the latest developments in Mississippi’s continuing medical examiner saga. In it, I noted that Steven Hayne had set out a letter (PDF) to defense attorneys announcing his availability to testify for them. I don’t know for sure how many times he has testified for the defense in the past, but the people I’ve talked to in Mississippi say it’s less than 10, and likely less than five. (He has testified for the state thousands of times.) But the new law barring him from doing official autopsies for prosecutors doesn’t bar him from testifying for defense attorneys or in civil cases.
[O]n Dec. 9, Hinds County Circuit Judge Swan Yerger granted Assistant Public Defender Alison Kelly’s request for an independent autopsy review by Hayne. Kelly represents Darion Givens, 18, who faces murder charges in connection with the June 13 shooting death of his girlfriend, Falisha Miller, a Jim Hill High School student.
In court filings, Kelly argued that a second opinion of Miller’s autopsy is necessary to examine inconsistencies in the first autopsy, conducted by Dr. Thomas Deering. Witnesses reported hearing a gunshot, while Deering’s autopsy suggested that Miller’s shooter had used a silencer. Kelly maintains that Jasper Bell, who is charged as an accessory after the fact, was the shooter.
Kelly said this week that for Givens’ case, Hayne was the “best choice for defending [her] client in the most zealous manner.” While aware of controversy surrounding Hayne, Kelly said that she had not thoroughly investigated criticism of his work. Kelly did not seek out a forensic pathologist from the state medical examiner’s office because she wanted a second opinion on work performed by that office.
“In the state of Mississippi, Dr. Hayne is the only (forensic pathologist) that I know of, other than these people that the state is bringing into Mississippi to do their pathology work,” Kelly said. “I’m limited. I can’t use their pathologists to do my cross-examination of their reports.”
Hayne also recently testified for the defense in a case in Louisiana.
As I noted in the column, perversely, it would actually be good strategy for a defense attorney to hire Hayne. The sheer number of times he has already testified for prosecutors likely make him seem credible to a jury unfamiliar with his history. And in Mississippi in particular, there’s a good chance the prosecutor a defense attorney is opposing has used Hayne in prior cases, meaning he isn’t likely to delve into Hayne’s lack of certification, his impossible workload, or the dubious testimony he has given over the years.
I know that a lot of defense attorneys read this site. I’d be interested in hearing your opinions on the ethical issues in play here. Defense attorneys in Mississippi and Louisiana by now know, or at least should know, about his credibility problems. But using him may well also benefit their clients.
My column this week is a round-up of the latest developments in the ever-strange saga of Steven Hayne and the Mississippi death investigations system.
A Texas appeals court has ordered a halt to a district court’s inquiry into whether Cameron Todd Willingham, executed in 2004 for setting a 1992 fire that killed his three daughters, was innocent. The stay was sought by Navarro County District Attorney R. Lowell Thompson. It’s merely the latest attempt by Texas officials (Thompson’s office prosecuted Willingham), including Texas Gov. Rick Perry, to stave off any formal inquiry into Willingham’s execution. Arson specialists now say Willingham was convicted based on flawed and outdated science, and there’s little forensic evidence to support the theory that the fire was set intentionally.
Meanwhile, Texas District Attorney Lynn Switzer told the U.S. Supreme Court this week that the state should be able to execute Hank Skinner without first turning over crime scene evidence for DNA testing that Skinner says will prove his innocence. The Court has already ruled that there’s no constitutional right to DNA testing in such cases. Skinner is arguing that the state is obligated to turn over the evidence under federal civil rights law. (I previously wrote about Skinner’s case here and here.)
The striking thing about both cases is that Texas government officials are staking out a position of ignorance. That is, they don’t want to know if either man is innocent. That’s not how they’d phrase it, of course. But in the Willingham case they’re thwarting efforts merely to investigate the possibility that the Wilingham might have been innocent. In the Skinner case they’re fighting a DNA test—which Skinner’s attorneys have offered to pay for themselves—that if prosecutors are correct would undeniably establish Skinner’s guilt. But there’s a chance it could implicate someone else, or complicate their case against Skinner. So they’d rather not test.
Of course in both cases they know that a finding of innocence would further undermine support for the death penalty (which is now under fire even from establishment conservatives). So it’s better just not to know.
Perry, Thompson, Switzer, and their cohorts should consider the possibility that their callous indifference in the face of considerable doubt about both men’s convictions—and that even after the Willingham fiasco they’re still fighting to execute Skinner without being absolutely sure of his guilt—only confirms suspicions that we have a flawed system stacked with perverse incentives, all of which not only encourages the pursuit of convictions at the expense of justice, but then pressures state actors to double down rather than admit to the possibility that they made mistakes.
Put another way, in fighting to keep us all in the dark about Skinner and Willingham’s actual guilt, these staunch capital punishment supporters are providing data points for the strongest arguments against the death penalty.