Panelists at Latham & Watkins Forum discuss “bite mark analysis” and other junk science in the criminal justice system

On crime procedural shows, detectives solve crimes using analysis of hair, fiber, bite marks, and bullet ballistics. In real life, however, these methods have all been proven to be junk science, according to Washington Post reporter Radley Balko, who spoke at a Latham & Watkins Forum on September 12.  

Erin Murphy speaking at panel discussion
Erin Murphy

Balko joined Professor Erin Murphy; Bennett Capers, a professor at Brooklyn Law School; and Tucker Carrington, a professor at University of Mississippi School of Law, for a discussion of the consequences of false forensics, as well as the institutional racism and structural failures that have enabled its continued use in the criminal justice system. Balko and Carrington are co-authors of The Cadaver King and the Country Dentist: A True Story of Injustice in the American South.

Balko Radley speaking at panel discussion
Balko Radley

In their book, Balko and Carrington, the founding director of the George C. Cochran Innocence Project at the University of Mississippi School of Law, detail how Mississippi medical examiner Steven Hayne repeatedly discovered so-called bite marks on the bodies of victims. Hayne regularly teamed up with Michael West, a forensic dentist who gave expert testimony that prosecutors could then use to obtain convictions; West often assisted Hayne with autopsies, and the two authored articles together.

Yet their professional conduct raised questions. Hayne conducted 1,700 autopsies a year, far above the threshold of 325 that the National Association of Medical Examiners set for malpractice. West was caught on video faking a bite mark with a mold of a suspect’s teeth. Led by Carrington, the Cochran Innocence Project exonerated two of the men who were convicted on the basis of junk forensics by Haynes and West. (Mississippi’s public safety commissioner removed Hayne from a list of approved forensic pathologists in 2008, although both Haynes and West have served as expert witnesses in the years since.).

The Cochran Innocence Project also uncovered the forces underlying the use of junk science in Mississippi’s criminal justice system.  In the 20th century, Mississippi coroners helped to falsify records and cover up racial violence by reporting a lynching as “death at the hands of persons unknown,” according to Balko. Now the system of death investigations confirms the hunches of prosecutors and police chiefs, he added.

Bennett Capers speaking at panel discussion
Bennett Capers

Uncovering junk science in the courtroom can be difficult. Defense lawyers are always struggling with a lack of resources, said Capers, who spent 10 years as an assistant US Attorney in the Southern District of New York. Meanwhile, judges often fail as gatekeepers when it comes to evaluating the validity of scientific evidence. “We ask judges to do scientific analyses. They look to see what other judges have done. Whereas science looks forward, the criminal justice system tends to look backward,” said Balko.

Jurors have been conditioned to expect certainty from expert witnesses—yet the more certain expert witnesses are, the less scientific they are, Balko pointed out. “Not only is it wrong to let jurors sort out who the better expert is, but the set of skills it takes to be persuasive to a jury is in conflict with the set of skills it takes to be a good expert witness,” he said.

Tucker Carrington speaking at panel discussion
Tucker Carrington

Asked about DNA evidence, Carrington noted that all of the forensic disciplines involve complications that introduce error, such as the individuals who are collecting the evidence or testing the samples. Even though DNA analysis involves probabilistic data and was developed outside law enforcement, it is not immune from the vagaries that have affected the junk science in the criminal justice system.

Posted on October 17, 2018

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