Government Science

As a result of popular TV shows, there is a significant misconception concerning the role of science in the criminal justice system – “forensic science.” The public is led to believe that the criminalists and other “scientific experts” who routinely testify for the government in criminal cases are unbiased professionals dedicated to finding the truth. The reality is far different.

In November of 2005, Congress authorized the National Academy of Sciences to undertake a comprehensive review of the state of forensic science in America. The National Academy of Sciences was asked to review every type of forensic/scientific testimony that is routinely offered in criminal prosecutions. The report is, “Strengthening Forensic Science in the United States: A Path Forward.”

The results of the National Academy of Sciences’ study are shocking. In area after area, the National Academy report found that what is offered as “scientific truth” is at best questionable. At worst, juries are asked to convict based upon testimony that is flat wrong. Even worse, the bogus testimony is offered as “science,” and juries are told to accept it uncritically. This bogus forensic science is one of the main reasons innocent people are convicted in America.

One of the main recommendations made by he National Academy of Sciences was that forensic laboratories be independent. They should be funded completely separate from any law enforcement entity. They should not work with or for law enforcement agencies.

In Arizona, as elsewhere, there are no independent forensic laboratories. All of the forensic laboratories in Arizona are part of law enforcement agencies. They exist on the premises of law enforcement agencies. They are funded by law enforcement agencies. They are supervised by law enforcement agencies. The same is true nationally where law enforcement agencies such as the Bureau of Alcohol, Tobacco, and Firearms (ATF), the Drug Enforcement Administration (DEA) and the Federal Bureau of Investigation (FBI) dominate the forensic science field. This means that these “experts” consider themselves part of the “prosecution team.” They work for law enforcement. Their jobs and careers are in the hands of law enforcement. They are frequently biased and accept uncritically the prosecutor line. The potential for miscarriages of justice is obvious.

While you can read the report from the National Academy of Sciences yourself, I have a few examples about “government science” from my own personal experience that I would like to share with you.

A large fire occurred in the Lost Barrio section of Tucson, resulting in over a Million Dollars worth of damage to a business. My client, the owner of that business, was charged with arson. Forensic investigators from local law enforcement agencies and the ATF examined the scene. They concluded that the cause of the fire was arson. They stated that they had examined the property and could find no cause for the fire. They ruled out an electrical fire, an accidental ignition, and other possible causes. Therefore, they argued, it MUST be arson. This is known in the supposed fire science industry as a negative corpus.

Imagine if a person was charged with murder. The pathologist comes and testifies that the deceased victim must have been murdered. Why? “Because I checked the victim out and I could find no reason why he died.” Would anyone in their right mind accept this as evidence of murder? As science? Yet that is exactly what negative corpus testimony in fire science cases is like. This testimony, with no scientific basis, is routinely presented in criminal cases. Fortunately, a courageous judge in Pima County Superior Court rejected that kind of bogus science, the kind specifically condemned by the National Academy of Sciences. He prohibited forensic testimony that the cause of the Lost Barrio fire was arson. The case was ultimately dismissed.

Another example. The largest forensic laboratory in Arizona is run by the Department of Public Safety (DPS). It provides forensic services for all of DPS, as well as the hundreds of law enforcement agencies throughout the state that cannot afford their own labs. It is, by far, the most important forensic laboratory in Arizona.

In 2013, the DPS lab purchased six new gas chromatographs, the devices used to analyze blood to determine blood-alcohol content. Those analyses affect tens of thousands of cases involving everything from DUI (Driving Under the Influence) to vehicular homicide. In early 2014, the DPS lab began a validation study to ensure that the devices were working properly. They struggled for some 18 months. They found that the device was “losing communication.” What that meant was that it would confuse the reading for vials of blood. Person A could end up getting Person B’s blood-alcohol reading.

In June of 2015, the DPS lab wrote to the manufacturer. DPS explained that the devices were unusable because of this problem, and stated that if the manufacturer could not fix them, DPS wanted the purchase price refunded — over $360,000. The manufacturer responded by saying that the machines were fine, but that DPS had set them up wrong. The manufacturer stated that it would send someone to DPS to set the machines up correctly.

After the manufacturer’s representative set up the machines, they were placed in service. On January 4, 2016, a set of tests were run on the first machine. That day, the machine experienced a loss of communication. Obviously, the problem was not fixed. Despite that fact, that particular machine was continued in service. In February of 2016, a second machine from that group was placed in service at the DPS Southern Regional Crime Lab. Again, the first time it tried to run, it suffered a loss of communication.

It has been two and a half years since those failures occurred. Those machines are still in use, and randomly continue to lose communication. DPS criminalists admit that they have no idea why that happens and no idea how to fix it. Yet DPS criminalists continue to testify the readings are “valid,” and thousands of people are prosecuted every year based on these machines’ readings. If the defense attorney does not independently learn of the loss of communication problem, the jury is never informed of these incredible facts.

These are not isolated examples. In the 1990s, the Tucson Police Department purchased breath testing devices known as RBT-IVs. As a result of a challenge I led, the results of these “scientific instruments” were thrown out of court. But that did not occur until over TEN THOUSAND tests had been performed, and hundreds or thousands of people were convicted with RBT-IV results.

The proponents of government science argue that if a defendant questions the testimony of the “government science,” the defendant can call his or her own expert to challenge the government experts. But experts can charge $300 to $500 per hour. Few defendants have the financial resources needed to hire the experts and pay for the research necessary to combat bogus government science.

The problem of combating “government science” in the courtroom is most acute for working defendants and their families. If the defendant is rich, he or she can hire their own experts. If a defendant is indigent, the Court may provide funds for him or her. But a middle class, hard-working defendant is in neither category. Such a defendant cannot afford to hire experts. Except in extraordinary circumstances, the Court will not provide a defendant with funds to hire experts. Such defendants are powerless to fight the bogus scientific evidence.

“Government science” is one of the most serious causes of wrongful convictions, and it victimizes hard-working middle class defendants the most. The problem will continue until the recommendations of the National Academy of Sciences are implemented, and truly independent forensic laboratories are established.

Michael J. Bloom
Attorney
01/22/2019