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Description

Host Jay Ellis is a fan of crime scene investigation TV shows – he’s even acted in them! But in this episode, he learns that all the fancy forensic science the heroes of those shows use to solve crimes are not as good as they seem on TV. Jay speaks to experts about how forensic practices were developed and why they aren’t the reliable science they seem to be. He takes listeners on a field trip to the one forensic lab in the country that’s getting it right and speaks with a woman who spent 13 years in prison for a crime she didn’t commit because of bad forensic evidence used against her at trial.

Transcript

SPEAKERS

Jay Ellis, Anna Vasquez, DeRay Mckesson, Jeff Kukucka, Peter

Jay Ellis  00:11

So I want to play you a clip from a show I was in a way early in my career. You can’t hear me yet. And in fact, you won’t hear me. That’s because my entire role here was to walk into this room where people are welcoming me home. Clutch a bloody wound in the side of my body. And then before I could even get a single word in, just keel over and die. I deserved an Emmy for that. No, really, I was super psyched for this role. Because NCIS was huge. It was literally one of my favorite shows. I love Mark Harmon, who didn’t love Gibbs, like he’s tough. He’s got values, and he always solves the crime. So all of the action was over for my poor character before the opening credits, but our main characters were on the case, using science to solve my murder. And when I watched it, it all makes sense to me, right? Like, I don’t know anything about DNA or fingerprints or bitemarks. So I’m like, okay, pigtail goth lady who somehow knows, like every forensic practice ever, you go girl, thanks. There’s something comforting about the idea of the latest forensic tech being used in the service of justice. But we live in the real world. And when it comes to science and justice, well, let’s just say we haven’t looked at all the evidence.

Jay Ellis  03:34

This is the Untold Story, Criminal Injustice. I’m Jay Ellis. Thanks to COVID-19 and climate change, you’ve probably heard things like, trust the science, science is real, right? Well, yes, science is real. But there’s more to it than a political slogan. Science is a practice, a process. And that means it’s only as strong as the people practicing it, the people running that process. American forensic systems are no different. For example, are you aware that according to the National Registry of exonerations, in 2020 alone, 129 people were released from prison for crimes they did not commit? Yeah, no, I wasn’t either. And I’m no expert, although we are going to hear from some of those. But would innocent people be sitting in jail if forensics were the ironclad foolproof practice they hold it out to be on TV. I don’t think so. Mistakes are being made y’all. But what are those mistakes look like? And how exactly are they happening? Well, we saw how it is on TV, but let’s take a field trip to a real live working forensic lab. You got to see both all right, let’s go? That deep voice you hear. He’s our main man today.

Peter 

Pete, Peter, Dr. Stout, Dr. Peter, just don’t call me late for dinner.

Jay Ellis 

Peter quickly takes us down to the basement where he can show off this huge metal fish tank looking thing.

Peter 

It’s about six feet tall. It’s filled with probably 1000 gallons of water. And then what that water does is it stops the bullet.

Jay Ellis 

And then he is an investigator. Get ready to do something that’s pretty typical in a workday, shooting rounds in the name of solving crimes. Well, I have a nine-millimeter Luger Beretta 92FS, and I will see five shots, fire. Got them. If you need a lab partner cambrie hit me up. Welcome to the Houston Forensic Science Center where Peter stout has been the chief operating officer since 2015. And let me tell ya, it’s the forensic geeks dream. I mean, we’re talking about a whole floor of the building just for medias.

Peter  06:05

They pull data off cell phones, videos, recovering videos, from surveillance cameras, and everything else. This is a space for crime scene to process evidence that they’re bringing back from scenes dry it. Often we come back with evidence that’s wet or bloody.

Jay Ellis 

Desk with more monitors in a Jason Bourne movie.

Peter 

It’s like a competition about who can have, you know, the bigger desktop full screen.

Jay Ellis 

And like 18 floors are devoted to just this. This is not normal, okay, they have a bit of a rep as a unicorn amongst crime labs.

Peter 

In the forensic world. Houston is internationally renowned pretty much in forensics, everybody knows Houston.

Jay Ellis 

The thing is though, they’re known not so much because of what they are now, but because of what they used to be

Peter 

The worst crime lab in the country.

Jay Ellis 

So that’s a bit of an exaggeration. It’s not like there was a pageant for the worst crime lab title. But that was the headline of the New York Times article written about them in 2003. It was clear back ten, Houston, had problems.

Peter 

So in 2003, the laboratory had lost accreditation. And the laboratory at that point was HPDs Crime Lab, which is really how the vast majority of crime laboratories in this country are configured, which is part of a law enforcement agency, the problems, banned the spectrum, everything really probably related, ultimately to a lack of resources. There were certainly challenges before that point. But in 2003, it kind of came to a head of the coincidence of some very high-profile exonerations. There were poor methods and poorly trained personnel and no accountability for personnel that had done really unfortunate choices up to and including dry labbing results.

Jay Ellis  08:21

Dry labbing basically means faking lab results. We’re talking fraud here. And these practices hurt a lot of people.

Peter 

They still spent probably about the next decade, in and out of the media with continued challenges points at which they still had to redo accreditation, all of those kinds of things until about 2012, it became evident that something really different had to be done, to actually try and get out from behind this continuous never ending problem story.

Jay Ellis 

Peter joined the center and help them figure out what it takes to change how they gather, handle and analyze evidence. But before we talk about that, just take a moment to absorb this first. There are more than 400 forensic labs in the US and no governing body regulating them all. Houston was just a really bad example of a much bigger problem. Truth is, there’s a lot to unpack across the board when it comes to forensics. So let’s just get some basics down really quick.

Speaker 3 

Forensics is the application of science or scientific methods to legal questions.

Jay Ellis 

[…] is a professor at Maryland Law School where she specializes in just that.

Speaker 3 

Mostly we think about it in the criminal context, because mostly it’s used in criminal cases, just like you described from your epic performance on NCIS LA. So sort of we just think of it essentially as applications of science in court.

Jay Ellis 

Forensic Science runs the gamut. I mean, you’ve got your A listers, right? DNA analysis and fingerprinting, of course, but then there’s toxicology, forensic pathology, firearm analysis, blood spatter, even ear prints, that’s right, ear prints.

Speaker 3  10:10

There’s tons and tons and tons of forensic methods. We as lay people tend to think of forensics as super accurate and super reliable and this type of evidence that we just can’t get around.

Jay Ellis 

There’s just one problem with that attitude. A lot of forensic science isn’t actually scientific.

Speaker 3 

Most forensic methods were developed by and for policing. So they’re developed as crime solving tools. In other words for policing and prosecution.

Jay Ellis 

Can we just dig into that last thing really quick, because it’s called forensic science. So it’s clearly in the name, right? The word science, we all grew up with it, we all went to school and science, there was a method to it right? You had to prove something worked before people accepted it? Why is forensic science any different?

Speaker 3 

It shouldn’t be any different. We have a hypothesis, we test it, we observe the results, we test it over and over and over and over and over again, not only to see that it works, but to see what the limits of it are, right? Most forensic disciplines, DNA is the primary exception, we’re not developed in scientific labs, even today, many of them are still not scientifically vetted in the ways that they should be in the ways that we expect of actual science. We call it science, we gave it that name, we gave it that label. And that label holds weight, even in cases where that label maybe shouldn’t be applied.

Jay Ellis 

So we’re throwing quotes around the word expert then right? Because to your point, if we’re talking about these as crime solving tools, if you will, that means that there wasn’t a scientist doing them, right?

Speaker 3 

In some cases, yes. And in some cases, no.

Jay Ellis 

Real quick, could you also explain I guess the difference between someone we consider an expert and someone we consider a scientist? Not consider a scientist but someone who actually is a scientist rather?

Speaker 3  12:04

Absolutely right. So science requires training. So science requires going to school, learning scientific method, learning how to conduct research, perhaps learning how to test your problem. And some analysts and examiner’s absolutely have that training. But other analysts and examiners are police officers who have been sort of moved into a forensic division, and learned not through scientific education, but learned through sort of technician style training of how to conduct a type of analysis in that world, you really see everything across the spectrum in terms of training.

Jay Ellis 

And are any of them reliable? Like, can we count on any of those? Like, how reliable is any of this stuff?

Speaker 3 

So the answer varies. So some of these disciplines are more reliable than others. So let me give you an example. If I prick my finger with like a pin or a safety pin right now and I send a drop of blood to the lab, there’s almost no question that they will be able to determine that I am the source of that DNA profile, we think of what that is, which is called single source DNA analysis as quite reliable. But it’s when you sort of take a discipline, maybe beyond its validated uses. So now you combine that one drop of blood with 10 other people’s drops of blood, that becomes a much more complicated profile to interpret. Maybe like if you left a footprint somewhere, wearing your size 12 shoe, somebody might compare it, compare your shoe, make a cast of it, and then compare that print to the print that you left on the street somewhere. That’s really unreliable.

Jay Ellis

And it’s unreliable because it falls under a particular type of forensics called pattern matching analysis. That’s basically what it sounds like, someone looks at a pattern over here. And then they go over there, and they look at another pattern and bing bang boom, they decide if those two patterns match. But that’s not the cold hard science we want it to be. Really, it’s a technical experts opinion. And the distinction is really important. Because yes, they both wear white coats and work in a lab. And it’s easy to think that they’re kind of the same thing. But scientists form their conclusions after rigorous testing. And there’s a control group involved, so they can tell if they’re right or wrong, and then they hand their work over to a bunch of other scientists who put it to the test. Again. A forensic expert doing this type of analysis is more like a car mechanic. And no disrespect to mechanics. They’re definitely experts under the car hood. But they aren’t running experiments. They are using control groups or their mechanic peers to check themselves. They’re using their past experience and their knowledge base to make a judgment call. And when the stakes are as high as they are when someone is facing years of incarceration. Are we really comfortable putting someone behind bars based on that kind of judgment call? I mean, personally, I’m getting a second opinion before I even spring for brake pads.

Speaker 3  15:12

So it’s almost unanimously agreed that fingerprints firearms analysis, bitemark analysis, hair comparison analysis, shoe print analysis, those are notoriously unreliable. Bitemark analysis, for example, is not valid in any meaningful way. Fingerprint analysis is more reliable than bite mark analysis. But none of these disciplines are perfect. And a major source of their flaws stems from the fact that there’s a subjective analysis involved.

Jay Ellis 

And that leads us to the arguably even bigger problem in forensics.

Jeff Kukucka 

It’s not done by computers, it’s not automated, it’s not objective. The final decision is always made by a human.

Jay Ellis 

Jeff Kakuka is a psychologist and researcher at Towson University in Maryland. And his work is centered around making sure we don’t make the mistake of thinking that people don’t make mistakes.

Jeff Kukucka  16:07

It’s become abundantly clear over the past few years that forensic science is not perfect. There’s a lot of subjectivity involved, there’s a lot of judgment calls to be made. Much of that community has insisted for the longest time that they’re impervious to bias by virtue of their training, which unfortunately, is not the case.

Jay Ellis 

I mean, of course it’s not, right? In fact, Jeff is really quick to point out that we’re talking about human nature here.

Jeff Kukucka 

When psychologists talk about cognitive bias. We’re not talking about deliberate prejudice. We’re not talking about misconduct; we’re not talking about incompetence. What we’re talking about are mental shortcuts that we all use, that sometimes can backfire on us. The analogy I like to use is it’s kind of like sneezing, right? We all do it, we can’t really control it. We can control it to a degree but we’re never going to be able to completely eliminate it. So you know, no amount of willpower, no amount of goodwill is enough to overcome bias.

Jay Ellis 

And Jeff’s done research, the scientific kind that demonstrates important ways in which bias has influenced forensic judgments, including the work of and this might surprise you. Medical examiners or forensic pathologists. In the shows, they’re the insufferable, brainy, vaguely British person down in the morgue feeding investigators clues while actors like me, lay on a cold table next to them pretending to be dead. Back in the real world, Jeff gave a whole mess of actual medical examiner’s a test. He created two case files about a young child who had died. They were identical in every way. But this one was a white child found unconscious by her grandmother. The other was a black child found unconscious by her mother’s boyfriend.

Jeff Kukucka  18:04

When the girl was white, and was found by her grandmother, participants were twice as likely to believe that the death was accidental, as opposed to a homicide. Whereas in the other group of participants, they were three times as likely to believe that the child was murdered if the child was Black, and was found by her mother’s boyfriend. So it’s very clear that that demographics social information, despite being non-medical in nature, and irrelevant to the task of determining how she died, was having a pretty strong biasing effect on their opinions.

Jay Ellis 

Yow, this is heavy stuff. I mean, this is a person who determines whether a death is an accident, or a homicide, not a crime or a big whopping crime. What’s more, Jeff’s research found that while the vast majority of forensic specialists admit that bias is a problem in the field, only a teeny tiny fraction of them acknowledge that they themselves are susceptible to bias. In other words..

Jeff Kukucka 

Bias is a problem. But it’s a problem for them, not for us, or it’s a problem for him, not for me.

Jay Ellis 

That is literally bias bias. Now look, okay, we can mitigate these biases. And we’ll talk more about that. But we can only really do it if we admit that these biases are there in the first place. Like Jeff said, it’s like sneezing. you sneeze, we all do it bless you. But, we can stretch that analogy just a little bit further.

Jeff Kukucka 

We can take our allergy medicine, right and that kind of helps us limit the amount of sneezing that we do. We cannot, you know, inhale chili powder that would be really helpful in terms of avoiding sneezing, right? So that’s sort of the parallel here is we’re never going to completely eradicate bias. But there are things that we can do or better yet things that we can avoid doing. that decrease the risk of it having an influence on us.

Jay Ellis  20:05

But it’s not just shady practices and lack of regulation. After the break, we’ll tell you about all the forces in play that incentivize all of this. And we’ll meet a woman who experienced it firsthand and pay the price. So we all know a good expert when we hear one, right? But as I talked about my girl […]. There’s more going on here than how it’s presented in the courtroom.

Speaker 3  22:43

There are cases all up and down the news of forensic examiners and analysts exaggerating their testimony in ways that are not supported by the science. So for example, testifying things are a match to 100% degree of certainty or absolute certainty, which is not scientifically supportable.

Jay Ellis 

I mean, I get a plus plus plus plus two, if all the answers on the test were based on my opinion. So why does this persist? Well, as you may know, systems that seem broken but never get fixed, are actually working as intended. Just not in the way you or I want them to. Forensic science is a prosecuting attorneys ace in the hole.

Speaker 3 

And I think it’s really important for your listeners to sort of recognize that most of this evidence is produced by the prosecution and used against criminal defendant. And so overwhelmingly, it’s used in service of obtaining a conviction. It’s really powerful, damning evidence that people who come into court to hear these cases and evaluate that testimony, don’t know has the potential to be very flawed. Jurors and lay people in general, in part because of shows like CSI and NCIS really, really believe in the reliability of forensics, even when that belief is scientifically unsupported and unfounded. And that’s for a lot of reasons. I’m sort of poking fun at the NCIS and CSI. But that’s a real thing. Like in the forensic world. It’s called the CSI effect that people tend to believe that these disciplines are really reliable, because in shows like CSI, you have you know, blink, blink, blink, match, match match, you know, you have this idea that this thing is really scientific, really quick, really easy, really automated and that’s not true.

Jay Ellis  24:47

Ha, so you see, it all comes back to NCIS. No, not really, but I mean, it is kind of morbidly fascinating, our portrayal of forensics in the media usually just so we can make sure a story ends neatly in about 40 minutes has led to real forensics having outsized influence in matters of life and death. And this dynamic in the courts while it might remind you of what we talked about last episode with felony theft, just like how prosecutors use harsh sentencing as a tool to get defendants to think that they’d be better off pleading guilty, the CSI effect that authoritative sheen helps prosecutors to either scare defendants into pleading guilty or convince a jury that the science just can’t be wrong. Either way to a prosecutor, that’s a conviction. And in our justice system, too often that counts more than anything else.

Speaker 3 

Forensics isn’t this like bubble that’s separate from the rest of the criminal legal system. It’s part and parcel of the criminal legal system and the carceral system as a whole. We got here in the same way we got to mass incarceration. When we started to see an influx of cash into local police departments during the war on crime and the war on drugs. We saw development of police labs.

Jay Ellis  26:30

Now suddenly, you have a crime lab rolling the dough. Well, what do you do? You use it to devise forensic techniques. Those techniques put people sometimes the wrong people behind bars, but convictions make for a happy department and you just justified your lab’s existence. So they give you even more money and more resources, more forensic, more convictions, more resources, more forensics, more convictions, more resources, spend that merry go round a few 100 times and you wind up where we are today. Lots of people actual living breathing people whose lives have been destroyed because of the faulty forensics practices used against them in court. People like Anna Vasquez.

Anna Vasquez 

Over the years, it was, it was hard to deal with it was hard to accept that I’m in prison for something that never even occurred.

Jay Ellis 

Before Anna was even accused of anything. She was a kid, a high school graduate ready to start her life.

Anna Vasquez 

My goal was to become a registered nurse. So I was starting to go to school for that I had been accepted to a program. Unfortunately, you know, that didn’t pan out the way that I expected it to.

Jay Ellis 

That summer in 1994, Anna’s friend Liz, was in a bad car accident. So Anna and two of their friends Cass and Chris all spent time with her making sure she was okay. When Liz’s two nieces came to visit for a couple of weeks so they could pitch in too, Anna, Cass and Chris babysat them. The whole visit was entirely unremarkable. But after the niece’s went back home, and I got a call from a detective.

Anna Vasquez  28:13

He told me that I was being accused of sexual assault.

Jay Ellis 

All four women were facing these accusations from the nieces. For Anna and her friends. It was like they were coming out of nowhere.

Anna Vasquez 

So the accusations were that there was sexual assaults going on. There was drugs involved, there was drinking involved. And it was just horrific. I mean, basically they made it out to be it was a rape. And it was all four of us participating in this horrific crime. I always thought from the get go that there was some kind of mistake. So yeah, I was willing and ready to do whatever I had to do to help in this investigation.

Jay Ellis 

The case against the four women didn’t seem strong on the face of it. There wasn’t much in the way of physical evidence to back up what the nieces were saying. And all four women had pretty thorough records of where they had been during those two weeks, working their shifts, taking care of their kids, a scenario where all four women were assaulting them at once. It just wasn’t possible.

Anna Vasquez

I thought we were doing good and trial. But you know, my attorney, his way of thinking was, it’s the state’s job to prove your guilt, not my job to prove your innocence, which is […]. This guy was so far from doing anything. And he was a paid attorney. You know, he was the former district attorney of San Antonio, you would think that this guy would have some knowledge and know how to go about it. But I will tell you that he did say that I would lose. He says anytime that you go against the child. A lot of times they’re going to ride with the child. You know we can go to court and I will fight for you. But he also did say that to me, you know, of course, I wanted my day in court, I just was convinced that it would prove my innocence, you know?

Jay Ellis

But then, the prosecution called some expert testimony to the stand.

Anna Vasquez

What really sealed the deal, I think in my mind was when the pediatrician Dr. Nancy Kellogg testified that there was signs of sexual trauma. That was the science back then. But it was just a myth, right? I mean, there was never a study done to say that these are signs of sexual trauma. It was just a myth that everybody thought that somebody that was non-sexual female had this perfection, you know, there was no blemishes, no anything, it was just perfection, which is kind of unreal, when you think about it to really believe because all of us are different. You know, when an expert comes and speaks in a courtroom, everybody listens. And you know, she’s an expert, you expect her to know what she’s talking about. You can say whatever. And it doesn’t matter if you had things to prove that you weren’t even there at the time. It didn’t matter. The main thing was, is that their children, they claim sexual assault, and you have an expert witness, you know, really cooperating to it, cooperating to it. It was Valentine’s Day, it was Saturday, I was still hopeful. I still thought God, you know, they’re taking a long time to come back with a verdict. So, you know, we’re standing there, and they read the verdicts and say that we’re guilty. And mom was, you know, behind me, and she laid out this gasp like scream, I don’t know, can’t describe it. But that’s what place in my head. And I know I was found guilty, but I was more concerned about my mom, you know, so I right away, turned around. And they, you know, told her where to leave and we stayed there, took off all our jewelry and you know, any belongings and gave it to our attorney so that they could give to our families because we’re then going back to jail. We were sentenced to 15 years for the aggravated sexual assault, to run concurrently with the indecency with a child.

Jay Ellis  32:47

All four women were incarcerated for more than a decade, and it had 13 years of her life taken from her. It wasn’t until years after the trial that a scientific consensus really came together debunking the forensic evidence about the physical signs of sexual abuse in girls. Anna was released on parole in 2012. All four women were finally exonerated in 2016.

Anna Vasquez 

I was deemed actually innocent by the Court of Criminal Appeals. And in 2017, I was compensated by the state of Texas. And it wasn’t until December of 2018, that I really had my record expunged. It’s not as clean cut as people think when somebody is exonerated. They think, you know, they were proven innocent, they’re exonerated, they’re paid by the state of Texas for their wrongful conviction. And everything’s great, you know, but no, that’s so far from being accurate. There’s 13 years that I just know that knowing me, knowing myself and my vision, my goals that I know, I could have been something you know, and it bothers me because, you know, some of my high school friends, married children, you know, they have this big beautiful home, they are business owners, I just, you know, I’m just like, wow, like, impressed and jealous at the same time. And just like, I wonder what I could have done

Jay Ellis  34:32

it’s not only Anna. all right, there have been 2879 exonerations documented by the National exoneration registry since 1989. In almost a full quarter of those cases, people were convicted based on false or misleading forensic evidence. People like Vicente Benavides, who in 1993, was convicted based on the testimony of a medical examiner that was anatomically impossible. 25 years in prison. People like […], who was convicted on unscientific ballistics and blood spatter analysis. Six years in prison, people like Emerson Stevens, convicted in part due to shoddy hair fiber analysis 31 years. People like Aisha Bostic, Gilbert Alejandro, Sonia Casey, Clarence Richard Dexter, Jr. Randy Briggs, Herman Atkins, Christopher Boots, Olin Coons, Donald Eugene Gates, Cleveland, Wright. Santee Tribble. What can we do to make this stop? We’ll talk about that. After this.

Anna Vasquez  38:39

I still believe that when the pediatrician went on the stand and made her testimony, it held weight. Nancy Kellogg is a highly respected professional in this field and has been used numerous times as a state’s witness. So she had clout, you know, was somebody that they use all the time and is still respected and testifying today.

Jay Ellis 

Science isn’t supposed to have anything to do with clout, if anything, it’s supposed to challenge it. And we’ve seen how bias cloud expediency all of this has created a huge problem. But don’t take my word for it. I mean, all kinds of agencies and organizations have come out saying the same thing. The National Academy of Science weighed in back in 2009, with a report that said and I do, quote, the Forensic Science system has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. The Obama administration’s Council of Advisors on Science and Technology released a similar report in 2016. Even the FBI has caused major problems in their own forensic units. The writing’s on the wall here, okay, but there’s no federal action so far. So right now, any change that’s going to happen to the nation’s 400 or so crime labs, is going to have to happen one by one. So, let’s go back to one of the few places in America actually making those changes. We left our tour of the Houston Forensic Science Center, the lab that went from the worst crime lab in the country to the leading example. They’re about to show us the part of the building at the heart of that transformation.

Peter  40:33

This is the 18th floor, where all of the stuff that you actually think of his laboratory is.

Jay Ellis 

And by the way, in case you forgot, that’s Peter Stout director of the HFSC.

Peter 

We usually start groups when we talk on the 18th floor with our quality lab, I think probably the single biggest thing that we have done, that’s easy to point out is our system of blind quality control.

Jay Ellis 

Blind quality control.

Peter 

What they do is they manufacture materials to look like cases that we know the answer to. And then we take those and put them into the workflow so that an analyst doesn’t know whether they’re handling an actual case, or they’re handling one of these constructed things, we target about 5% of our output to be those blind controls. So theirs is the only lab that I let have actual blinds on the windows because they are making blinds.

Jay Ellis 

It sounds so simple. But that’s because we use blind controls and all kinds of scientific experiments, control groups are one of the foundations of good science. And this blind quality control testing, it really makes a difference on all kinds of levels. For one, it keeps the technicians on their toes,

Peter 

they’re now going at something with the assumption, this might be a control, this might be something that somebody knows the answer of there may be an actual right result to whatever it is in front of me. And I don’t necessarily know.

Jay Ellis  42:03

Blind tests like these also help with bias in the laboratory because they can make it visible. And the first step to adjusting bias is being aware of bias.

Peter 

Mixture interpretation involves a lot of judgment by an analyst of how they’re going to go at that interpretation of the data. All of this stuff has a lot of input from the people. It’s not entirely just I measured this and we’re done. So finding mechanisms to control for bias within the system is an essential part of the engineering of the laboratory.

Jay Ellis 

The other really, really big thing about the Houston Forensic Science Center, independence.

Peter 

It has been a significant cultural shift from what the laboratory was to what the laboratory is now.

Jay Ellis 

The HSFC decided along with the Houston Police Department that if they were going to commit to accuracy, they had to break off from each other. The HSFC is not under the purview of law enforcement. Their budget is not lumped in with the police department and their lab techs are lab techs, not cops. This means that their primary goal can shift away from conviction, conviction, convictions, and move towards just getting at the simple truth.

Peter 

My boss isn’t the chief of police. My boss isn’t the mayor. My boss isn’t the DA. My boss is a nine-member citizen board of directors that have actual fiduciary responsibility for the organization. They have actual authority. They’re the ones that can fire my butt if stuff not going right. One of my bosses is a wrongfully convicted person that has lived what it means to have the justice system go wrong and incarcerate them for decades.

Anna Vasquez 

Yeah, Peter has always said that. Yeah, we’re his boss.

Jay Ellis  44:01

That’s right. That boss Peters talking about, none other than Anna Vasquez. She’s been on the Houston Forensic Science Center Board of Directors since 2018.

Anna Vasquez

I would hope you know that we are getting better concerning our science. I know that HFSC is. So I’m proud to be a part of that.

Jay Ellis 

Anna says that she’s not sure if a cleaned up Forensic Science Center would have helped her case specifically back in the 90s. But when you lend the credibility of science and scientific expertise to an opinion that has not been thoroughly tested, there’s got to be some major collateral damage.

Anna Vasquez

How is it that you fight that it’s that much harder? There’s so many sciences, you know, there so many different things to you know, the way somebody is, say shot in the head, that type of science, you know, the trajectory, blood splatter analysis. It’s just there’s so many different sciences, bitemark analysis, when that has proven to be false now, it’s changed. It’s kind of like debunked. Yet somebody probably went to prison for that.

Jay Ellis 

At the Houston Forensic Science Center, there are guardrails in place against that.

Peter 

Bite marks. Yeah, not gonna do that here, hair fiber analysis now not doing that. We don’t do question documents; we don’t do any of the aspects of the trace disciplines. And that one is, in part because of, I’m not sure some of the scientific underpinnings, we don’t do the basically that interpretation of blood spatter. And I kind of draw the line on it because, like, say, with latent prints were certainly there are pattern recognition concerns within latent prints and firearms. But at least with those disciplines, I can construct a positive and a negative blind, put it through the system and see routinely the result that we expect occur with that. For blood spatter, I’m not sure how you do that.

Jay Ellis  46:06

There are guardrails too, about how the forensic evidence is presented in court.

Peter

And we also pull transcripts and have a committee of three people review the transcript to reflect somebody who is a subject matter expert, somebody from our Quality Division and somebody that is representative of a lay perception of that work, look at that testimony, to look for places where something perhaps has been overstated or incorrectly stated or how that testimony works, so that we can work then with that analyst to remediate those issues if they’re there.

Jay Ellis 

But no matter how many systems are in place to prevent mistakes, physical evidence still has the weight to make or break cases, make or break families, entire communities. That’s why one of the biggest changes at the Science Center is a cultural one. It’s okay for experts to own up to their mistakes. No one faces repercussions for admitting they were wrong.

Peter 

The laboratory is designed around an exquisite sensitivity to the false positive, the wrong result.

Anna Vasquez 

Yeah, we made a mistake. But you know what, this is so much bigger. And this could change a person’s life, whether for the good or the bad, you know, to be able to be open and honest about that, that just something that I hold dearly.

Peter 

The labs are what produced that piece of objective information that lets people believe the justice system is going to treat them fairly. Without that, the system is horribly vulnerable. Look, I get it,

Jay Ellis 

Look, I get it, okay. I’m an only child and a Capricorn on top of that. So it is never fun to admit when you’re wrong. But as humans, taking responsibility for your mistakes is essential to build trust and show integrity in our relationship. So how are we supposed to have confidence in a system that allows professionals to deny wrongdoing when the stakes are so freakin high? activist and educator DeRay Mckesson has seen the consequences of faulty forensics. And he got interested in the subject while looking at the case of Keith Davis, Jr.

DeRay Mckesson  48:23

I’m from Baltimore. And somebody had flagged it for me. And I was like, Well, let me just read about it. So Keith was originally charged with a robbery, he was acquitted of the robbery. And then a couple days later, after the acquittal, the police came back and said that the gun that was at the robbery, was involved in a murder earlier that morning. And he has been charged with murder in four separate trials for that murder charge, no standing conviction, and he’s about to be tried for a record fifth time, it’s the most aggressive murder prosecution in America at this time. I took all five trials, transcripts, I personally read them all. And I coded them myself. And it was interesting, because it’s five trial. So every single trial, there’s a forensic person, and every single trial, the fingerprint person comes. So I was able to actually just see the story over time. And I was like, I literally read the fingerprint woman say, I was too busy to take notes. I was too busy to take photos. We were just too busy. So they’re like, well, how did you, how do you know? And she’s like, well, I’ve just done this a lot. And you’re like, what?

DeRay Mckesson 

Same thing with the gunshot examiner or the firearms examiner who is now retired. But there’s a question about how do you know that the bullets came from this gun.. And the defense attorney says Are you saying that you eyeballed it? And he says yes. There are no photos. There’s no sign that you didn’t measure anything, you literally like eyeballed it. And because you’ve just looked at a million of them. That is sufficient and it’s like his life is on the line and your testimony before the court is that you eyeball That’s unacceptable. And that led me down a rabbit hole of questioning whether this was an anomaly. Was this an aberration from the norm? Or is this actually more of the norm? And I realized that this is the norm. That’s what’s actually happening in courtrooms and communities and putting people away for life for decades. It is not what’s happening on Dexter. It’s not what’s happening on CSI. It’s not what’s happening on law and order. Those are fantasy but those fantasies informed juries. They inform the public’s understanding of what forensic science is. And I’m hopeful that we can help people understand what is not science in the realm of what the public calls forensic science.

Jay Ellis  50:44

You can learn more about the case of Keith Davis Jr. at KeithDavisJr.com.

CREDITS

The Untold Story of Criminal Injustice is a Lemonada Original. It’s produced by Matthew Simonson and Ray Solomon with production assistants by Rochelle Green, Carly Huckles and Rachel Lightner. Story editing by Matthew Simonsson. Music by Hannis Brown, sound design and mixing by Matthew Simonson, and the Untold Story is brought to you in part by the Just Trust. Our executive producers are Jessica Cordova Kramer, Stephanie Wittels Wachs, and me. Special thanks to Brandon Garrett […] and everyone else who helped us with this episode. And if you’re looking for more Untold Story, check out Lemonada Premium. It’s full of all kinds of extra stuff that you won’t want to miss. I’m Jay Ellis ya’ll. Thank you for listening.