[Transcript of Episode #39 of The Crime Lab COACH Cast]…
Junk Science or Junk Activism? A Decision for the Courts
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The recent decision to order a new trial for James Genrich who was convicted of a series of bombings in Colorado in the early 1990s has extended a fiery debate about the legitimacy of certain forensic methods commonly applied in the investigation of criminal matters.
Central to the Genrich decision is the credibility of tool mark identification as a valid form of scientific evidence. Tool mark identification is a forensic laboratory discipline in which properly trained and equipped experts are able to conclusively determine that markings left on a substrate such as a cut wire, for example, were made by a particular tool. The person in possession of that tool will then have some difficult questions to answer.
A key piece of evidence used to convict Genrich was expert testimony by Agent John O’Neil that reported tool marks made in the construction of the bomb(s) could only have been made by tools owned by Genrich.
The Innocence Project, a non-profit advocacy organization, has been at the forefront of such challenges for decades. They are adept at leveraging their legal prowess, celebrity, and impressive donor funding to overturn convictions and question the legitimacy of evidence that often leads to such convictions.
In my 2019 textbook, Crime Lab Report – An Anthology on Forensic Science in the Era of Criminal Justice Reform, I provide a history and perspective on “innocence activism” and its goal to reform our criminal justice system, and I was critical of the Innocence Project for their often wild and overly-generalized claims that forensic evidence is flawed or unreliable.
Crime Lab Report, however, is also critical of some forensic experts who, though highly competent in the execution of their technical and scientific responsibilities, struggle to answer difficult questions or explain the scientific bases of their expertise. This renders their testimony less useful to our courts.
Since the release of Crime Lab Report, a new activist at the Innocence Project has taken the reigns as the organization’s more prominent and vocal representative. His name is Chris Fabricant, the author of Junk Science and the American Criminal Justice System, and he is part of the legal team representing James Genrich.
In a recent interview, Fabricant commented on what he perceives to be the primary limitations of many forensic methods:
“Forensics generally, and this is true with many other fields of forensic sciences, do not take measurements. Almost all mainstream science, including social science, take measurements of some sort. But the evidence in [the Genrich case] — and this is true with footprints and it’s true with other forms of ballistic evidence, and it’s true with tire treads and it’s true with fingerprints — there are no measurements taken. These are just eyeballed.”
While Fabricant and his colleagues at the Innocence Project are to be commended for their exposure and remediation of erroneous convictions, critical public and judicial examinations of their methods, motivations, and claims are long overdue.
Within such examinations, at least as they relate to the James Genrich case and others like it, three avenues of contention arise that require the utmost caution in their consideration:
- the overarching debate on “junk science”
- the motivations of activists in the scrutiny of forensic evidence
- the validity of tool mark identification (and other types of “pattern” evidence)
science vs. junk science
Science is a very broad and variable endeavor that is highly diverse in the problems it seeks to solve, the questions it seeks to answer, and the methods that are employed to do so.
Scientific methods can be used to enrich uranium, survey employees for an HR study, or determine why a motorcycle is making a strange noise while it accelerates.
But despite how science might be used or applied, it always has one fundamental attribute that distinguishes it from other kinds of endeavors.
This is to say that science, without exception, always delivers utility to stakeholders in a two-part package, where one part contains the information, answers, or solutions that the stakeholders are expecting, and the second part includes the warnings, protections, and qualifications that prevent harm or damage as the result of any weaknesses or limitations inherent to the methods used.
In our criminal justice system, the act of calling an expert to court and asking difficult questions about the potential for error is one of the ways in which harm or damage is mitigated, even after the expert has exhausted other strategies and quality checks to ensure accurate and truthful results.
The scientific enterprise doesn’t much care for exclusive elitism. And contrary to what Mr. Fabricant seems to believe, science is far more inclusive and accommodating than simply the taking of measurements. Science can be qualitative, quantitative, or often a combination of the two.
Moreover, there is NO such thing as junk science. Science is science, and if one wishes to argue that a forensic method, for example, is not of value in a particular legal situation, then this argument can be made. If it is believed that the expert was incompetent, then the expert can be questioned during cross examination.
Once a method or field of endeavor achieves the standing of a science, describing it as “junk” will be material to its relevance or the manner in which it was applied, not its foundational validity.
Again, there is no such thing as junk science. If it’s junk, it’s not science.
Activism and its motivations
For years, there has been a growing network of activists who’ve sought to bring discredit to many well-tested and commonly used forensic methods. The Innocence Project has arguably been the most powerful and active of them all.
As a non-profit entity, the Innocence Project and other activism groups operating in the criminal justice system, regardless of how honorable and necessary their work may be, rely heavily on donor and/or public funding to sustain both their relevance and the momentum of their missions.
To receive funding, an innocence activist or host organization must be perceived as relevant. And to be relevant, miscarriages of justice must be identified and remediated. If they aren’t, there will be no desire to fund it.
After the OJ Simpson trial in 1995, when the Innocence Project’s two founders, Barry Scheck and Peter Neufeld, served as part of Simpson’s “Dream Team,” there were a plethora of cases that innocence activists could evaluate, most of which occurred during the 1970s and 1980s while violent crime was rising but before the advent of DNA.
Eventually – and after hundreds of exonerations – these cases began to dry up and threaten the relevance of the innocence network. But there was an opportunity waiting for them: forensic science, resting comfortably like a teed up golfball ready to be struck.
Developed over a century, these forensic methods didn’t have the usual scientific origins that modern researchers regard as the basis for valid science. Instead, they arose from actual criminal cases where talented researchers and academics of their day perfected these techniques for the purpose of proving guilt or innocence, many times tapping into their personal funds to do their work. Some of these forensic methods were highly specific such as fingerprints, firearm identification, footwear comparisons, and tool mark comparisons.
Moreover, they didn’t align neatly with established scientific fields like chemistry, biology, or physics. Instead, they were emergent applications of visualization and microscopy to evaluate randomly occurring physical features resulting from two objects coming into contact with each other.
Among the challenges these applications faced was the fact that they were of no use to anyone else. As such, there was no motivation for a university or government agency to fund them on a grand scale, at least not until the St. Valentine’s Day Massacre in 1929 and the 1932 murder of the baby son of famed aviator Charles Lindbergh. It was in these cases, along with some others, that forensic science finally had people’s attention. But by then, the scientific underpinnings were largely established.
Innocence activists have extremely narrow notions about what a science is and what it should look like, and they’ve come to notice that some forensic methods seem quite different from what they prefer to regard as “true science.” And with television shows like CSI, Forensic Files, and The New Detectives showcasing the power of forensic science before an awestruck audience of admirers, innocence activists had a new opportunity to fight a new kind of war: shock these audiences by ridding our criminal justice system of “unreliable” science, then seek the release of prisoners whose convictions were based on such methods.
Why wage war against forensic science? Two reasons.
First, forensic science gives people confidence in our criminal justice system. That’s not tolerable to an innocence activist. Second, when there is a war to be waged, there will usually be dollars thrown in by benefactors who have opinions about who should win that war. It is a business model that works very well.
The validity of the classical forensic methods
Imagine a crime scene in which half of a broken ceramic pot is found near the body of a murder victim. Two days later, another half of a broken pot is found in the trunk of the primary suspect’s vehicle. The two items are brought to a forensic science laboratory where a forensic examiner is able to put the two halves back together to form one complete pot. Using some alternative lighting, the follow photograph is taken:
When the case goes to trial and the two halves of the pot are brought before the court, imagine Chris Fabricant of the Innocence Project calling for a motion to exclude the pot as evidence, claiming that “this work was based on unreliable, invalid methods that involved no measurement. It should not be admissible.”
During a press conference, we might observe Mr. Fabricant claiming that “this is JUNK SCIENCE!” He would point out that there are no college degree programs on putting broken pots back together. He would scour the literature and complain that no credible research exists to either confirm or reject the notion that broken pots can be put back together by aligning the fractures.
And for good measure, he might invite the prominent forensic science critic, Dr. Itiel Dror, to point out that forensic scientists are biased, and that the very effort to put the pot back together was evidence of a preconceived notion or prejudice in favor of the prosecution.
In fairness to Mr. Fabricant, Dr. Dror, and others of their apparent mindset, they would not engage in such behaviors because they are intelligent and reasonable people. They know it would make them look like buffoons to advance such claims. They would know that the fracture line allowing the two halves of the pot to be placed back together into its original whole would be clearly evident for all to see, and their call to exclude the pot would appear far more like “junk activism” than the pot would appear as “junk science.”
In other words, in his current war against what he perceives as junk forensic science, Mr. Fabricant takes advantage of the fact that average people, with their own eyes, cannot see the tool marks in the James Genrich case and others like it. This means they must rely on the testimony of the expert witness who did the work. This makes the average forensic scientist much more vulnerable to attack.
stochastic marks
Forensic science, among its many subdivisions, includes specific “disciplines” that delve into a natural phenomenon that is quite common in its manifestation but complex in its analysis. This phenomenon is the occurrence of randomly created marks when certain objects come into contact with each other or are subjected to certain forces.
A simple experiment can be conducted to understand what we’re talking about.
Tear a piece of paper in half with your hands and then put the paper back together by realigning the two halves along the tear. The contours of the tear, including its macroscopic and microscopic features, are randomly occurring and cannot be replicated. You could tear a trillion pieces of paper in half and you would not be able to produce two tears that are the same.
Junk science watchdogs would argue that I have no scientific basis to make such a claim. They would correctly point out that there has never been a major university study that examined the tearing of paper and the comparison of its two halves. This is in keeping with the claim that Agent John O’Neil had no underlying basis to identify one specific tool as cutting wires found in the Grand Junction bombings. But this claim is simply and patently wrong.
The scientific basis for randomly occurring features is called stochastics, which is sometimes described as “the science of randomness.” It is a complex application of mathematics to make sense of random phenomena and processes in our universe.
Traditionally, the classical forensic disciplines have not used the word “stochastics” to describe their expertise, but it’s been tested and analyzed for over a century, regardless of what it’s called. And as often happens in the study of stochastic phenomena, countless studies have attempted to invalidate the enterprise of identifying the sources of these marks, but these attempts have repeatedly failed, even under the most creative and confounding conditions.
Anyone who understands science knows that validity can be achieved through direct proof and/or the failure to falsify a foundational hypothesis. During the era when the classical forensic disciplines were being developed, there were no research entities interested in funding forensic research. So, as an alternative, the research was done in the field, through trial and error, experimentation, direct observation in millions of cases, ongoing communication and debate among practitioners, the teaching of these principles at the collegiate level, and countless creative studies designed to intentionally produce erroneous results. All have failed to demonstrate any invalidity in the underlying scientific bases of these disciplines.
Even a forensic discipline as controversial as bite mark comparison has validity assuming it is used responsibly. If a man with only 18 teeth is accused of the murder of a victim who has a bite mark on his body having a full set of 28 teeth, it may be entirely valid for an appropriately trained expert to conclude that the defendant could not have bit the victim and is, therefore, likely innocent.
Each application of a scientific method should be evaluated individually, and the courtroom is a great place to do so due to its adversarial nature. But this assumes that the trial attorneys are willing to prepare and do the work that needs to be done. Too often, this ends up being the real problem with the presentation and scrutiny of scientific evidence.
EYEBALLING
Forensic DNA experts, toxicologists, and chemists use expensive instruments to conduct their analyses. They must do so because they cannot observe the DNA strand or cocaine molecule with their own eyes. But I promise you that if they could, they would.
Many of what are called the pattern identification sciences involve the direct observation of evidence using a microscope and sometimes the naked eye. Computers, high-resolution cameras, and other instruments may be used as well. As mentioned before, these disciplines include:
- Tool mark comparisons
- Firearm identification (ballistics)
- Latent print (fingerprint) comparison
- Footwear comparison
“Eyeballing” is not even remotely an appropriate way to describe these forensic disciplines, and doing so is clear evidence of a slanted, biased dismissal of legitimate and valuable evidence that helps to give grieving families closure and to protect society from predators.
No reasonable person would ever tolerate the intentional use of bad evidence in a criminal trial, and no person should tolerate the infusion of irresponsible, unaccountable activism that seeks to deprive courts of vital information about the commission of crimes.
Criminal justice is a serious business for serious people. Describing modern-day forensic methods as “eyeballing” is nothing more than rhetorical grandstanding and should be repudiated.
junk activism vs. junk science
Experts of any kind, of course, are fair game for tough scrutiny, even criticism – especially when we are talking about experts whose testimony can result in the loss of life or the depriving of a defendant’s freedom.
And there is reason to be frustrated by the inability of many forensic experts to hold their own on the witness stand. This, of course, is not an indictment of the scientific community they serve, but rather their own inability to speak on behalf of the evidence they analyzed – and perhaps the laboratories that trained them. This lack of preparation leaves room for “junk activism” to potentially misrepresent legitimate scientific endeavors as “junk science.” No one benefits from that.
The courts decide what is junk and what is not, in keeping with the relevant rules of evidence. Activists will do what they do, and so will scientists. But in considering the claims of activists committed to discarding long-standing, well-tested forensic methods, it is important to recognize that these activists are often not scientists, and when they are, rarely have any experience or training in forensic science.
Lots of time, effort, and persistence have been the validating forces of the classical forensic disciplines. Contemporary research methods are now being applied as a way to subject forensic science, across the board, to modern-day standards. But as we might expect, the reliability of these methods continues to impress.
Our courts sit in the unenviable position of having to evaluate external or foreign areas of expertise. But evaluating the activism that seeks to discredit probative evidence in criminal cases deserves just as much attention, and probably a lot more.
John M. Collins is an Authoritative Leadership and Expertise Coach at Critical Victories in Southfield, Michigan. He specializes in supporting clients in authoritative, high-stakes occupations requiring high levels of expertise to earn and retain the trust of the public or other consequential stakeholders. John shares some of his unique philosophies and insights on high-stakes leadership in his 2022 book, THE NEW SUPERIOR – A BETTER WAY TO BE THE ONE IN CHARGE (www.thenewsuperior.com), available in hardcover and audio.
John works with people, teams, and organizations across the United States and oversees. If you are serious about expanding your leadership effectiveness, click below to request a free client strategy call:
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