Monday, March 21, 2011

On the defense: Criminal science

This just in from "For decades, prosecutors have relied on crime-solving techniques such as fingerprints, ballistics analysis, and eyewitness accounts to put people behind bars, even on death row. Now, in the aftermath of the stunning impact of DNA testing, many of those time-tested methods are under legal attack.

In Philadelphia, Kenneth Mapp, 35, is fighting a robbery charge filed after police concluded that a partial print lifted from a pizza-restaurant heist came from his right pinkie. His lawyer will dispute the scientific validity of fingerprint analysis at his forthcoming trial.

From Pennsylvania's death row, convicted murderer Daniel Dougherty, 51, is hoping to be freed based on his contention that "junk science" led a jury to convict him of setting a fire that killed his two sons.

And with mounting proof that eyewitness accounts are often wrong, New Jersey is examining how such evidence should be used, while a Pennsylvania committee is expected next month to make recommendations aimed at preventing wrongful convictions.

Fingerprint and firearm analyses, arson investigations, and forensic conclusions about bite marks, footprints, and hair and fiber comparisons have, in varying degrees, all been called into question. There are even growing concerns about what was once considered unassailable evidence of guilt - a confession.

"People in the criminal justice system, including judges, have a lot more skepticism than they once had," said Philadelphia Common Pleas Court Judge Benjamin Lerner, who has presided over criminal cases for more than 20 years.

The legal challenges around the country are an outgrowth of the revolutionary impact of DNA testing, which has freed 267 prisoners nationwide, including 10 in Pennsylvania and five in New Jersey, and caused four states, including New Jersey, to end the death penalty.

Eyewitness testimony was a factor in the convictions of 75 percent of those exonerated through DNA testing, according to the New York-based Innocence Project. Faulty forensic evidence contributed to 50 percent of the convictions. The project said that 25 percent of the defendants later found innocent had confessed or pleaded guilty, and that jailhouse informants were a factor in 15 percent of the overturned cases.

Despite the popularity of TV's CSI shows, many of the forensic methods used in modern crime-solving also took a hit when a National Academy of Sciences report said that all too often, forensic evidence was presented in court "without any meaningful scientific validation."

The need for improvement was "tremendous," said the 2009 report, which called for uniform standards, certification, and peer-reviewed research to ensure greater reliability. It said that in fires, for example, "rules of thumb" pointing to an accelerant being used "have been shown not to be true," and limitations of fingerprint identification may also have led to wrongful convictions.

The idea of bad forensics is nothing new to James McCloskey, the founder of Centurion Ministries in Princeton, which has won the release of 40 prisoners since 1983. "Forensic evidence is like gold" in courtrooms, he said, and it can be extremely difficult, even impossible, to successfully challenge faulty scientific conclusions after a jury's verdict. Pennsylvania, he said, is one of the toughest states for a defendant to challenge a conviction based on new evidence.

David L. Faigman, a professor at the University of California Hastings School of the Law, said one day people would look back with dismay on all the defendants convicted of crimes based on "pseudoscience" and old-fashioned techniques.

"Our children's children . . . will say the legal system was profoundly ignorant about science," said Faigman. "We're turning a corner, but like a luxury liner, it takes a long time to change direction. And there are a lot of hurdles."

He said few states are "forward thinking," though New Jersey's decision to review eyewitness identification makes it a standout.

Law enforcement officials defend the integrity of many long-used investigative techniques. If anything, "the technology has been enhanced by advancements in science," said Upper Darby Police Superintendent Michael Chitwood, a former homicide detective in Philadelphia.

Dauphin County District Attorney Edward Marsico, president of the Pennsylvania District Attorneys Association, said he didn't buy all the National Academy of Science findings and still had faith in evidence like fingerprint and ballistic analyses.

"Are there false confessions? Sure. Are there bad eyewitness IDs? Absolutely. What's the best way to combat that? We're not sure," Marsico said.

That is precisely the dilemma facing courts ..."

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