Attorney general to ignore new report finding that commonly-used forensics are bogus

Top prosecutors say they’ll continue relying on bite marks, shoe prints, and other flawed evidence.

**Forensic analyst India Henry removes a pair of underwear from an evidence bag for testing in a sexual assault case in the biology lab at the Houston Forensic Science Center Thursday, April 2, 2015, in Houston. CREDIT: AP Photo/Pat Sullivan
**Forensic analyst India Henry removes a pair of underwear from an evidence bag for testing in a sexual assault case in the biology lab at the Houston Forensic Science Center Thursday, April 2, 2015, in Houston. CREDIT: AP Photo/Pat Sullivan

According to a new White House report, many of the forensics commonly used in criminal trials aren’t based on legitimate science. But the attorney general and top U.S. prosecutors have decided they will continue relying on them anyway.

In the report released Tuesday, the President’s Council of Advisors on Science and Technology questioned the scientific validity of numerous types of forensics frequently used by U.S. prosecutors — including the analysis of bite marks, shoe prints, hair samples, tool marks, and firearms — which have sent hundreds of innocent people to prison.

Specifically, the report found that bite-mark analysis does not meet the scientific standards for “foundational validity,” that “there are no appropriate empirical studies” to support the validity of footwear analysis, and that “microscopic hair examination” is not valid or reliable, among other findings.

The report didn’t go as far as advising reexamination of past cases that relied on these forensics, but it did recommend that the attorney general direct attorneys to stop using the discredited science that has led to false convictions.

“Expert testimony in court about forensic feature-comparison methods in criminal cases — which can be highly influential and has led to many wrongful convictions — must meet a higher standard.”

“While pretrial investigations may draw on a wider range of methods, expert testimony in court about forensic feature-comparison methods in criminal cases — which can be highly influential and has led to many wrongful convictions — must meet a higher standard,” the report said.

Immediately, Attorney General Loretta Lynch released a statement indicating she would ignore the recommendations.

“We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning,” Lynch said in a statement. “While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

The FBI also said it disagrees with many of the findings of the report, which the agency said “makes broad, unsupported assertions.” And the National District Attorneys Association (NDAA) released a statement saying its attorneys would continue using the forensic methods critiqued in the report because “adopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar, to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial.”

The response from the country’s top prosecutors immediately drew criticism from criminal defense lawyers and other legal experts, who blasted the NDAA’s “reckless attitude” toward forensic evidence.

“The NDAA response reveals that prosecutorial culture is saturated with a deep contempt for science,” said criminal defense layer David Menshel.

“The NDAA response reveals that prosecutorial culture is saturated with a deep contempt for science.”

“The NDAA is fighting to turn America’s prosecutors into the anti-vaxxers, the phrenologists, the earth-is-flat evangelists of the criminal justice world,” added Robert Smith, the director of the Fair Punishment Project at Harvard Law School.

According to the Fair Punishment Project, there have been a total of 1,873 exonerations of wrongfully convicted Americans, and many of the convictions were secured through the use of faulty forensics. The Innocence Project has noted that bite mark analysis, which Tuesday’s report finds deeply flawed, has led to several false convictions.

For example, Ray Krone was convicted of murdering a bartender in Arizona in 1992 when an impression of his teeth in a Styrofoam cup was said to match the bite marks found on the murder victim. A decade later, Krone was released from prison when DNA testing matched the saliva and blood found on the victim with a convicted rapist.

But the NDAA is not eager to recognize the prevalence of wrongful convictions because doing so would mean admitting failure by prosecutors. The Fair Punishment Project noted that several of the group’s board members are elected prosecutors from cities where there have been numerous wrongful convictions.

Michael Ramos, the head of the NDAA and San Bernardino’s district attorney, wrote on Twitter earlier this month that he opposed any efforts to discredit the flawed forensic science.

Ramos did not mention how bite mark evidence has played out in courts in his own district. Earlier this year, San Bernardino County resident Bill Richard had his murder conviction overturned when the California Supreme Court called bite mark forensics “false evidence.” Richards was convicted of murdering his wife in 1997 when an expert testified that a mark on her hand matched his teeth.