Saturday, October 05, 2013


If you thought yesterday's post was lengthy, you ain't seen nothing yet.


Mario Tronti's THE STRATEGY OF REFUSAL was written in 1965 and is sort of a classic of autonomous Marxism.  The writing is long enough, I won't add to it.

Of course, you could just refuse to read it...


The Strategy of Refusal - Mario Tronti

The Strategy of Refusal - Mario Tronti
This article develops a concept that has been fundamentals to autonomous politics in Italy - the concept of the working class refusal - The refusal of work, the refusal of capitalist development, the refusal to act as bargaining partner within the terms of the capital relation.
If we accept his description of the working class as developing within the structures of capitalist production, but outside of, free from, its political initiative, then we have a test-bed for a radical critique of current forms of Marxist orthodoxy regarding organisation.
The argument contained in this piece is developed still further - in the context of a new class composition - in Toni Negri1s concept of working class and proletarian "self-valorisation", contained in the article "Domination and Sabotage".
The Strategy of the Refusal was written in 1965 as part of the "Initial Theses11 in Tronti's Operai e Capitale ("Workers and Capital"), Einaudi, Turin, 1966, pp.234-252.
Note: other Tronti article from Operai e Capitale was published in the CSE pamphlet No.1: The Labour Process and Class Strateries, 1976, ISBN 85035 025 5.
[Original Intro.]
Adam Smith says - and Marx comments on the accuracy of his observation -that the effective development of the productive power of labour begins when labour is transformed into wage labour, that is, when the conditions of labour confront it in the form of capital. One could go further and say that the effective development of the political power of labour really begins from the moment that labourers are transformed into workers, that is, when the whole of the conditions of society confront them as capital. We can see, then, that the political power of workers is intimately connected to the productive power of wage labour. This is in contrast to the power of capital, which is primarily a social power. The power of workers resides in their potential command over production, that is, over a particular aspect of society. Capitalist power, on the other hand, rests on a real domination over society in general. But the nature of capital is such that it requires a society based on production. Consequently production, this particular respect of society, becomes the aim of society in general. Whoever controls and dominates it controls and dominates everything.
Even if factory and society were to become perfectly integrated at the economic level, nevertheless, at a political level, they would forever continue to be in contradiction. One of the highest and most developed points of the class struggle will be precisely the frontal clash between the factory, as working class and society, as capital. When the development of capital's interests in the factory is blocked, then the functioning of society seizes up: the way is then open for overthrowing and destroying the very basis of capital's power. Those, however, who have the contrary perspective, of taking over the running of the "general interests of society", are committing the error of reducing the factory to capital by means of reducing the working class, that is, a part of society, to society as a whole. Now we know that the productive Dower of labour makes a leap forward when it is put to use by the individual capitalist. By the same token, it makes a political leap forward when it is organised by social capital. It is possible that this political leap forward does not express itself in terms of organisation, whereupon an outsider may conclude that it has not happened. Yet it still exists as a material reality, and the fact of its spontaneous existence is sufficient for the workers to refuse to fight for old ideals - though it may not yet be sufficient for them to take upon themselves the task of initiating a new plan of struggle, based on new objectives.
So, can we say that we are still living through the long historical period in which Marx saw the workers as a "class against capital", but not yet as a "class for itself"? Or shouldn't we perhaps say the opposite, even if it means confounding a bit the terms of Hegel's dialectic? Namely, that the workers become, from the first, "a class for itself" - that is, - from the first moments of direct confrontation with the individual employer - and that they are recognised as such by the first capitalists. And only afterwards,after a long-terrible, historical travail which is, perhaps, not yet completed, do the workers arrive at the point of being actively, subjectively, "a class against capital". A prerequisite of this process of transition is political organisation, the party, with its demand for total power. In the intervening period there is the refusal - collective, mass, expressed in passive forms - of the workers to expose themselves as "a class against capital" without that organisation of their own, without that total demand for power. The working class does what it is. But it is, at one and the same time, the articulation of capital, and its dissolution. Capitalist power seeks to use the workers' antagonistic will-to-struggle as a motor of its own development. The workerist party must take this same real mediation by the workers of capital's interests and organise it in an antagonistic form, as the tactical terrain of struggle and as a strategic potential for destruction. Here there is only one reference point - only one orientation - for the opposed world views of the two classes - namely the class of workers. Whether one's aim is to stabilise the development of the system or to destroy it forever, it is the working class that is decisive. Thus the society of capital and the workers' party find themselves existing as two opposite forms with one and the same content. And in the struggle for that content, the one form excludes the 'other. They can only exist together for the brief period of the revolutionary crisis. The working class cannot constitute itself as aparty within capitalist society without preventing capitalist society from functioning. As long as capitalist does continue to function the working class party cannot be said to exist.
Remember: "the existence of a class of capitalists is based on the productive power of labour". Productive labour, then, exists not only in relation to capital, but also in relation to the capitalists as a class. It is in this latter relationship that it exists as the working class. The transition is probably a historical one: it is productive labour which produces capital; it is the fact of industrial workers being organised into a class that provokes the capitalists in general to constitute themselves as a class. Thus we see that - at an average level of development - workers are already a social class of producers: industrial producers of capital. At this same level of development the capitalists, themselves, constitute a social class not of entrepreneurs so much as organisers: the organisers of workers through the medium of industry. A history of industry cannot be conceived as anything other than a history of the capitalist organisation of productive labour, hence as a working class history of capital. The "industrial revolution" necessarily I springs to mind: This must be the starting point of our research if we are to trace the development of The contemporary form of capital's domination over workers, as it increasingly comes to be exercised through the objective mechanisms of industry, and also the development of capital's capacity to prevent these mechanisms being used by workers. This would lead us to see that the development of the relationship between living labour and the constant part of capital is not a neutral process. Rather, it is determined, and often violently so, by the emerging class relationship between the collective worker and the whole of capital, qua social relations of production. We would then see that it is the specific moments of the class struggle which have determined every technological change in the mechanisms of industry. Thus we would achieve two things: one, we would break free of the apparent neutrality of the man-machine relationship; and two, we would locate this relationship in the interaction, through history, of working class struggles and capitalist initiative.
It is wrong to define present day society as "industrial civilisation". The "industry" of that definition is, in fact, merely a means.' The truth of modern society is that it is the civilisation of labour. Furthermore, a capitalist society can never be anything but this. And, in the course of its historical development, it can even take on the form of "socialism". So.... not industrial society (that is, the society of capital) but the society of industrial labour, and thus the society of workers' labour. It is capitalist society seen from this point of view that we must find the courage to fight. What are workers doing when they struggle against their employers? Are they not they, above all else, saying "No" to the transformation of labour power into labour? Are they not, more than anything, refusing to receive work from the capitalist?
Couldn't we say, in fact, that stopping work does not signify a refusal to give capital the use of one's labour power, since it has already been given to capital once the contract for this particular commodity has been signed. Nor is it a refusal to allow capital the product of labour, since this is legally already capital's property, and, in any case, the worker does not know what to do with it. Rather, stopping work - the strike, as the classic form of workers' struggle - implies a refusal of the command of capital as the organiser of production: it is a way of saying "No" at a particular point in the process and a refusal of the concrete labour which is being' offered; it is a momentary.' blockage of the work-process and it appears as a recurring threat which derives its content from the process of value creation. The anarcho-syndicalist "general strike", which was supposed to provoke the collapse of capitalist society, is a romantic naivete from the word go. It already contains within it a demand which it appears to oppose - that is, the Lassallian demand for a "fair share of the fruits of labour" - in other words, a fairer "participation" in the profit of capital. In fact, these two perspectives combine in that incorrect "correction" which was imposed on Marx, and which has subsequently enjoyed such success within the practice of the official working class movement - the idea that it is "working people" who are The true "givers of labour", and that it is the concern of workpeople to defend the dignity of this thing which they provide, against all those who would seek to debase it. Untrue...The truth of the matter is that the person who provides labour is the capitalist. The worker is the provider of capital. In reality, he is the possessor of that unique, particular commodity which is the condition of all the other conditions of production. Because, as we have seen, all These other conditions of production are, from the start, capital in themselves - a dead capital which, in order to come to life and into play in the social relations of production, needs to subsume under itself labour power, as the subject and activity of capital. But, as we have also seen, this transition into social relati9ns of production cannot occur unless the class relation is introduced into it as its content. And the class relationship is imposed from the very 'first moment and by the very fact that the proletariat is constituted as a class in the face of the capitalist.
Thus, the worker provides capital, not only insofar as he sells labour power, but also insofar as he embodies the class relation. This, like the inherent social nature of labour power, is another of those things acquired by the capitalist without payment, or rather, it is paid for, but at the cost (which is never subject to negotiation) of the workers' struggles which periodically shake the process of production. It's no accident that this terrain is the terrain that is chosen tactically by the workers as the ground on which to attack The employers, and is therefore the terrain on which the employer is forced to respond with continual technological "revolutions" in the organisation of work. In this whole process, the only thing which does not come from the workers is, precisely, labour. From the 'outset, the conditions of labour are in the hands of the capitalist. And again, from the outset, the only thing in the hands of the worker are the conditions of capital.
This is the historical paradox which marks the birth of capitalist Society, and the abiding condition which will always be attendant upon the "eternal rebirth" of capitalist development. The worker cannot be labour other than in relation to the capitalist. The capitalist cannot be capital other than in relation to the worker. The question is often asked: "What is a social class?" The answer is: "There are these two classes". The fact that one is dominant does not imply that the other should be subordinate. Rather, it implies struggle, conducted on equal terms, to smash that domination, and to take that domination and turn it, in new forms, against the one that has dominated up till now. As a matter of urgency we must get hold of, and start circulating, a photograph of the worker-proletariat that shows him as he really is - "proud and menacing". It1s tine to set in motion the contestation - the battle, to be fought out in a new period of history -directly between the working class and capital, the confrontation between what Marx referred to in an analogy as "the huge children's shoes of the proletariat and the dwarfish size of the worn-out political shoes of the bourgeoisie".
If the conditions of capital are in the hands of the workers', if there is no active life in capital without the living activity of labour power, if capital is already, at its birth, a Consequence of productive labour, if there is no capitalist society without the workers1 articulation, in other words if there is no social relationship with out a class relationship, and there is no class relationship without the working class., . then one can conclude that the capitalist class, from its birth, is in fact subordinate to the working class. Hence the necessity of exploitation. Working class struggles against the iron laws of capitalist exploitation cannot be reduced to the eternal revolt of the oppressed against their oppressors. Similarly, the concept of exploitation cannot be reduced to the desire of the individual employer to enrich himself by extracting the maximum possible amount of surplus labour from the bodies of his workers. As always, the economistic explanation has no other weapon against capitalism than moral condemnation of the system. But we are not here to invent some alternative way of seeing this problem. The problem is already the other way round, and has been right from the start. Exploitation is born, historically, from the necessity for capital to escape from its de facto subordination to the class of worker-producers. It is in this very specific sense that capitalist exploitation, in turn, provokes workers' insubordination. The increasing organisation of exploitation, its continual reorganisation at the very highest levels of industry and society are, then, again responses by capital to workers' refusal to submit to this process. It is the directly political thrust of the working class that necessitates economic development on the part of capital which, starting from the point of production, reaches out to the whole of social relations. But this political vitality on the part of its adversary which is, on the one hand, indispensable to capital, is, at the same time, the most fearful threat to capital's power. We have already seen the political history of capital as a sequence of attempts by capital to withdraw from the class relationship; at a higher level we can now see it as the history of the successive attempts of the capitalist class to emancipate itself from the working class, through the medium of the various forms of capital's political domination over the working class. This is the reason why capitalist exploitation, a continuous form of the extraction of surplus value within the process of production, has been accompanied, throughout the history of capital, by the development of ever more organic forms of political dictatorship at the level of the State.
In capitalist society the' basis of political power is, in truth, economic necessity: the necessity of using force to make the working class abandon its proper social role as the dominant class. Looked at from this point of view, the present forms of economic planning are nothing more than an attempt to institute this Organic form of political dictatorship within democracy as the modern political form of class dictatorship. The intellectual consensus as to the future State-of-well-being - of which G.Myrdal speaks - that society which J.S.Mill, K.Marx and T.Jefferson alike would probably approve, might even be realisable. We would find ourselves with a synthesis of liberalism, socialism and democracy. Liberalism and democracy would finally be reconciled, finding an ideal mediator in the shape of the social State - a system commonly known as, quote, "socialism". Yet here too we would find the inexorable necessity of working class mediation, even at the level of political theory. As for the workers they would find in this "socialism" the ultimate form of automatic - i.e. objective - control; political control in economic guise; control of their movement of insubordination. The surpassing of State capitalism by a capitalist State is not something that belongs to the future: it has already happened. We no longer have a bourgeois State over a capitalist society, but, rather, the State of capitalist society.
At what point does the political State come to manage at least some part of the economic mechanism? When this economic mechanism can begin to use the political State itself as an instrument of production - the State as we nave come to understand it, that is, as a moment of the political reproduction of the working class. The "end of laissez-faire" means, fundamentally, that working class articulation of capitalist development can no longer function on the basis of spontaneous objective mechanisms: it must be subjectively imposed by political initiatives taken by the capitalists themselves, as a class. Leaving aside all the post- and neo-Keynesian ideologies, only Keynes has provided the capitalist point of view with a formidable subjective leap forward, perhaps comparable in historical importance with the leap whih Lenin made possible from the working class point of view. However, this is not to concede that this was a "revolution" in capital's mode of thinking. If we look closely, we can see that this was already embodied in the preceding development. The capitalists have not yet invented - and in fact will obviously never be able to invent - a non-institutionalised political power. That type of political power is scecifically working class power. The difference between the two classes at the level of political power is precisely this. The capitalist class does not exist independently of the formal political institutions, through which, at different times but in permanent ways, they exercise their political domination: for this very reason, smashing the bourgeois State does mean destroying the power of the capitalists, and by the same token, one could only hope to destroy that power by smashing the State machine. On the other hand, quite the opposite is true of the working class: it exists independently of the institutionalised levels of its organisation This is why destroying the workers: political party does not mean - and has not meant - dissolving, dismembering, or destroying the class organism of the workers.
The very possibility of workers abolishing the State in society is located within the specific nature of this problem. In order to exist, the class of capitalists needs the mediation of a formal political level. Precisely because capital is a social power which, as such, claims for itself domination over everything, it needs to articulate this domination in political "forms" which can bring to life its dead essence as an objective mechanism, and provide it with subjective force. In immediate terms, the nature of capital is merely that of an economic interest, and, at the beginning of its history, it was nothing more than the egotistical interest of the individual capitalist: in order to defend itself from the threat posed by the working class, it is forced to turn itself into a political force, and to subsume under itself The whole of society. It becomes the class of capitalists, or - which amounts to the same thing - it turns itself into a repressive state apparatus. If it is true that the concept of class is a political reality, then no capitalist class exists without a capitalist state. And the so-called bourgeois "revolution" - the conquest of political power by the "bourgeoisie" - amounts to nothing more than the long historical transition through which capital constitutes itself as a class of capitalists in relation to the workers. Once again, the development of The working class displays totally the opposite features: when the working class begins to exist formally at an organised political level, it initiates the revolutionary process directly, and poses nothing but the demand for power: but it has existed as a class from the start, from a long time before, and precisely as such, Threatens bourgeois order. Precisely because the collective worker is that totally particular commodity which counterposes itself to the whole of the conditions of society, including the social conditions of its labour, so it manifests, as already incorporated within itself, that direct political subjectivity, that partiality which constitutes class antagonism. From the very beginning the proletariat is nothing more than an immediate political interest in the abolition of every aspect of the existing order. ) As far as its internal development is concerned, it has no need of "institutions" in order to bring to life what it is, since what it is nothing other than the life-force of that immediate destruction. It doesn't need institutions, but it does need organisation. Why? In order to render the political instance of the antagonism objective in the face of capital; in order to articulate this instance within the present reality of the class relationship, at any given moment; in order to shape it into a rich and aggressive force, in the short term, through the weapon of tactics. This, which is necessary for the seizure of power, is also necessary before the need to seize power has arisen Marx discovered the existence of the working class long before there were forms to express it politically: thus, for Marx, there is a class even in the absence of the party. On the other hand, the Leninist party, by virtue of having taken shape, gave the real illusion that There was already under way a specific process of working class revolution: for Lenin, in fact, when the class constitutes itself as a party, it becomes revolution in action. Here, Then, are two complementary theses, just as the figures of Marx and Lenin are complementary. Basically, what are these two people if not admirable anticipations of the future of the class itself?
If we accept that the class is not identical with the party, nevertheless one can only talk of class on a political level. While it is true that there is class struggle even without & party, nevertheless we also have to point out that every class a political struggle. If, through the party, the class puts into action what it is, if it does so by dissolving in practice everything that it must destroy in theory, by leaping from strategy to tactics, and if only in this way does it seize power from the hands of those who hold it, and organise that power in its own hands, in new forms.... if all this is true, then one must conclude that the relationship Class-Party-Revolution is far tighter, far more determinate and much more historically specific than the way it is currently being presented, even by Marxists. One cannot split the concept of revolution from the class relationship. But a class relationship is posed for the first time by the working class. Thus, the concept of revolution and the reality of the working class are one and the same. Just as there can be no classes before the workers begin to exist as a class, so there can be no revolution before the destructive will that the working class bears within itself, by the very nature of its existence, takes solid form. The working class point of view has no interest in defining the revolts and upheavals of the past as "revolutions"'. Furthermore, to hearken back to a set of "historical precedents" which are supposed to anticipate and prefigure the present movements of the workers - this is always reactionary, always a conservative force acting to block the present movement and control it within the limited horizons of those who control the course of history today, of those who therefore control the development of society. Nothing is more alien to the working class point of view than the opportunistic cult of historical continuity; nothing more repugnant than the concept of "tradition". Workers recognise only one continuity - that of their own, direct political experiences; one sole tradition - that of their struggles.
So why should we concede that the bourgeoisie should ever have been capable of organising a revolution? Why accept passively the intimately contradictory concept of "bourgeois revolution", as if it was a given fact? Has there ever, in fact, been a class that was bourgeois? Because if, following the errors of historical materialism, we choose to confuse the "bourgeolsie'1 with the subsequent class of capitalists, then one has to explain how the organic relation between class and revolution functions; in the light of an historical experience which, so far from seeing the so-called bourgeois class making its revolution, in fact sees the so-called bourgeois revolution laying the foundations from which, after a long process of struggle, only a class of capitalists will emerge.
At this point a mass of concrete research becomes necessary in order to overthrow these false interpretations: for too long the Marxist "tradition" has stifled the debate within schemas that are as theoretically false as they are politically dangerous. We think that this overthrow is possible today even at the simple level of basic historical enquiry. We think that the time has come to start the work of reconstructing the facts, the moments, the transitions, which the inner reality of capitalism only reveals - and can only reveal - to the working class viewpoint. It is now time to set in motion that working class history of capitalist society which alone can provide the movement of practical overthrow with rich, fearful, decisive weapons of theory. Theoretical reconstruction and practical destruction, from this moment, have no choice but to run together, as the two legs of that single body which is the working class.
Proletarian revolutions, said Marx, "criticise themselves constantly, interrupt themselves continually in their own course, come back to the apparently accomplished in order to begin it afresh, deride with unmerciful thoroughness the inadequacies, weaknesses of their first attempts, seem to throw down their adversary only so that he may draw new strength from the earth and rise again, more gigantic, before them, recoil ever and anon from the indefinite prodigiousness of their own aims, until a situation has been created which makes all turning back impossible, and the conditions themselves cry out: Hic Rhodus, hic salta!"(The 18th Brumaire of Louis Bonaparte)
We say, though, that this is not the process of proletarian revolutions. This is the process of revolution tout court. This is revolution as process. Only the working class, because it is what it is, because of the point where it has to act, because of the mode in which it is forced to fight -only the working class can be revolutionary process.
Bourgeois revolutions, says Marx, "storm swiftly from success to success; their dramatic effects outdo each other; men and things seem set in sparkling brilliant; ecstasy is the everyday spirit; but they are short-lived; soon they have reached their highest point and a long crapulent depression lays held of society before it learns soberly to assimilate the results or is? storm-and-stress period." (ibid.)
We must go further, however1 and say that these are not revolutions but something else - and something different each time: coups d'etat; government crises; dramatic changes in the form of power; the passage of government from one fraction of a class to another fraction of the same class; sudden restructurings of that class's domination of the other class. The classic model of the bourgeois "revolution" - invented by historical materialism -conceives of a sudden seizing of political power only after the completion of a long, slow, gradual taking-over of economic power. Thus the class, having already dominated society as a whole, then lays claim to the running of the State. Now, if these infantile schemes had only been used to illustrate a history beck or two, well and good: after one might expect that of a "history book". But in the Marxist camp, errors of theory are paid for in very practical terms: this is a law whose consequences the workers have 'had to suffer all too often. When the attempt; was made to apply the model of the bourgeois revolution to the course of working class revolution, it was at that point (and we have got to understand his), it was at that point that we saw the strategic collapse of the movement. The workers were supposed to copy this model, they were supposed to demonstrate, in practice, that they were capable of managing the economy of the society (far more capable, of course, than the capitalists), and on this basis. They were to demand the running of the State. Hence, worker's management of capital as the prime way, the "classic" road to socialism. For historical materialism, social democracy is theoretically the most orthodox workers movement. Basically, all the communist movement has done has been to break and overturn, in some aspects of its practice, the social democratic logic of what has been its own theory.
And yet, at the beginning the dividing line between social democracy and the communist movement was clearly fixed. And if an internal history of the working class is to be reconstructed - alongside that of capital - it will certainly include both of these organisational experiences - although not under the same heading, and not with the same significance accorded to each. There is in fact a difference of quality between different moments of the working class struggle itself. August 9th 1842, when 10,000 workers marched on Manchester, with the Chartist Richard Pilling at their head, to negotiate with the manufacturers at the Manchester Exchange, and also to see how the market was going, is not the same as Sunday May 28th 1871 in Paris, when Gallifet called out of the ranks of prisoners those with grey hair and ordered them to be shot immediately, because as well as being present at March 1871, they had also lived the experience of June 1848. And we should not summarise the first case as an offensive action by the workers and the second as an act of repression by the capitalists, because perhaps it is quite the opposite.
It is true that here we see the working class articulation of capitalist development: at first as an initiative that is positive for the functioning of the system, an initiative that only needs to be organised via institutions; in the second instance, as a "No", a refusal to manage the mechanism of the society as it stands, merely to improve it - a "No" which is repressed by pure violence. This is the difference of content which can exist - even within one and the same set of working class demands - between trade union demands and political refusal. Social democracy, even when it has conquered State political power, has never gone beyond the limited demands of a trade union facing an employer. The communist movement, in individual, short-lived experiences, has blocked the peaceful development of capitalists initiative with the weapon of the Party-of-non-collaboration. Now, if workers simply had to choose between these two options as part of past history, the choice would be fairly simple. This is not , in fact , the probem. The problem is the price to be paid at the level of theory if we take on board the tradition of struggles of the communist movement. However, This problem cannot be answered without taking into account the short-term practical results that will arise from taking this path. At this point we must guard against the subjective illusion that poses the strategic overthrow proposed here, first as the birth of working class science, and then as the first real possible organisation of the class movement. Instead we must cultivate and recover a specific type of internal development of the working class, a political growth of its struggles, and we must use this as a lever in order to make a leap forwards - without objectivism, without harking back to days gone by, and without having to start from scratch. Once again, the crude proletarian origins of the modern worker need to be grasped and made to function within the present needs of struggle and organisation. We must fight fiercely this current image of a "new working class" which is somehow continually being reborn and renewed by the various technological advances of capital, as if in some scientific production laboratory. At the same time, it is not that we are disowning the rebellious past of the working class - the violence, the insurrections, that succession of "desperate follies". We should not make the same mistakes as the cold-blooded history scholars, by crying "people's revolt" every time the masses put up barricades, and then finding the "true" working class struggle only in more recent forms of bargaining with the collective capitalist. Were 1848, 1871 and 1917 working class struggles? Empirically, historically, we could demonstrate that they were not, according to the objectives actually put forward in those events. But try to reconstruct the concept and the political reality of the working class without the June insurgents, without the Communards, and without the Bolsheviks. You will have a lifeless model, an empty form in your hands.
Of course, the working class is not the people. But the working class comes from the people. And this is the elementary reason why anyone - like ourselves - who take up the working class viewpoint, no longer need to "go towards the people". We ourselves, in fact, come from the people. And just as the working class frees itself politically from the people at the moment when it is no longer posed as a subaltern class, so too working class science breaks with the heritage of bourgeois culture at the moment that it no longer takes the viewpoint of society as a whole, but of that part which wishes to overthrow society. Culture in fact, like the concept of Right, of which Marx speaks, is always bourgeois. In other words, it is always a relation between intellectuals and society, between intellectuals and the people, between intellectuals and class; in this way it is always a mediation of conflicts and Their resolution in something else. If culture is the reconstruction of the totality of man, the search for his humanity in the world, a vocation to keep united that which is divided - then it is something which is by nature reactionary and should be treated as such. The concept of working class culture as revolutionary culture is as contradictory as the concept of bourgeois revolution. Furthermore, the idea implies that wretched Counter-revolutionary thesis whereby the working class is supposed to re-live the whole experience of the history of the bourgeoisie. The myth that the bourgeoisie had a "progressive" culture, which the working class movement is then supposed to pick up out of the dust where capital has thrown it (along with all its old banners), has carried Marxist theoretical research into the realm of fantasy. But at the same time it has imposed a daily task - that We act to safeguard and develop this official inheritance as the heritage of the whole of humanity as it advances down the road of progress. The situation here is so bad that - as in other cases - it will take a violent, destructive blow to unblock it. Here the critique of ideology must consciously pose itself within the workerist perspective, as a critique of culture. It must work towards a dissolution of all that already exists - a refusal to continue to build on the old foundations. Man, Reason, History, these monstrous divinities will need to be fought and destroyed as if they were the power of the bosses. It is not true that capital has abandoned these ancient gods. It has simply turned then into the religion of the official workers movement: in this way they actively continue to govern the world of men. Meanwhile, the negation of these gods (which could hold a mortal danger for capital) is in fact managed directly by capital itself. Thus anti-humanism, irrationalism, anti-historicism, instead of being practical weapons in the hands of the working class struggle, become cultural products in the hands of capitalist ideologies. In this way, culture - not because of the particular contents that it takes on in a particular period, but precisely through its ongoing form, as culture becomes a mediation of the social relation of capitalism, a function of its continued conservation. "Opposition" culture does not escape this fate either; it merely presents the body of labour movement ideologies dressed in the common clothing of bourgeois culture.
We are not concerned with whether or not in past historical periods it has been possible for the historical figure of the intellectual-on-the-side-of-the-working-class to exist. Because what is decisively not possible is that such a political figure can exist today. The organic intellectuals of the working class have in reality become the only thing that they could be: organic intellectuals of the labour movement. It is the Communist Party, it is the old form of organisation outside of the working class, that needs them. For decades they have assured the relationship between the Party and society without passing through the medium of the factory. And now that the factory is imposing itself, now that capital itself is calling them back' into the world of production, they arrive as objective mediators between science and industry: and This is the new form that is being taken by the traditional relationship between intellectuals and the party. Today's most "organic" intellectual is the one who studies the working class - the one who puts into practice the most diabolical bourgeois science that has ever existed - industrial sociology, the study of the movements of workers on behalf of the capitalist. Here too the whole problem needs rejecting en bloc. We are not speaking of a culture that is "on the side of the working class", nor of intellectuals under a working class aspect - but no culture and no intellectuals (apart from those serving capital). This is the counterpart of our solution to the other problem: no working class re-enactment of the bourgeois revolution, no working class retracing of the path taken by the bourgeois revolution - rather no revolution, ever, outside of the working class outside of what the class is, and thus outside of what the class is forced to do. A critique of culture means to refuse to be intellectuals. Theory of revolution means direct practice of the class struggle. It is the same relationship as that between ideology and working class science; and as that between these two combined and the moment of subversive praxis.
We said earlier That the working class point of view cannot be separated from capitalist society. We should add that it cannot be separated from the practical necessities of the class struggle within capitalist society.
What, then, are these necessities? And above all, is a new strategy necessary? If it is necessary, then one of the most urgent tasks in the struggle is to discover it, to assemble it and to elaborate it. At the level -of science there is no other task than this to be carried out. Formidable and new powers of the intellect must be organised around this work. Powerful brains must begin to function collectively within this single, exclusive perspective. A new form of antagonism must instill itself in working class science, bending this science towards new ends, and then transcending it in the totally political act of practice. The form we refer to is the form of the struggle of refusal, the form of organisation of the working class "No": the refusal to collaborate actively in capitalist development, the refusal to put forward positively programme of demands. In the working class history of capital, it is possible to discover the germ of these forms of struggle and organisation right from the very start, right from the time that the first proletarians were constituted as a class. But their full development, their real significance, comes much later, and they still exist as a strategy of the future. Their possibilities of functioning materially increase as the working class grows quantitatively, as it becomes more concentrated and unified, as it increasingly develops in quality and becomes internally homogeneous, and as it increasingly succeeds in organising itself around the movements of its own overall power.
These forms, therefore, presuppose a process of accumulation of labour-power, which - unlike The accumulation of capital - has a directly political meaning. It implies the concentration and growth not of an economic category, but of the class relation which underlies it; an accumulation, therefore, of a political power which is immediately a1terr~tive, even before it comes to be organised as such through the "great collective means" that are proper to it. The refusal is thus a form of struggle which grows simultaneously with the working class - the working class which is, at one and the same time, both political refusal of capital and production of capital as an economic power. This explains why the political struggle by workers and the terrain of capitalist production always form a whole. The first demands made by proletarians in their own right, the moment that they cannot be absorbed by the capitalist, function objectively as forms of refusal which put the system in jeopardy. Whenever the positive demands of workers go beyond the margins that the capitalists is able to grant, once again they repeat this function -the objective, negative function of pure and simple political blockage in the mechanism of the economic laws. Every conjunctural transition, every advance in the structure, in the economic mechanism, must therefore be studied in terms of its specific moments: but only in order to arrive at the point where the workers can demand that which capital, at that particular moment in time, cannot give. In such circumstances, the demand as a refusal sets off a chain of crises in capitalist production, each of which requires the tactical capacity to make a leap forward in the level of working class organisation.
As, together, 'both workers and capital grow, there is a gradual process of simplification of the class struggle. The fundamental strategic importance of this must be grapsed. It is not true that the "elementary" nature of the first clashes between proletarians and individual capitalists later became enormously complicated as the working masses found themselves faced with the modern initiative of big capital. In fact, precisely the opposite is true. In The beginning, the content of the class struggle has two faces - that of the working class & that of the capitalists - which are not yet separated by a radical division. The struggle for the working day is instructive in this respect. Moreover, the platforms of demands which workers have for decades, presented to the capitalists have had - and could only have had -one result: the improvement of exploitation. Better conditions of life for the workers were not separable from greater economic development of capitalism. As far as the official working class movement is concerned), both the trade union strand, and later the reformist strand, have functioned within the spiral of this process, in their attempts at economic organisation of the workers. It is no accident that, in our exposition, we have preferred to stress those moments of working class struggle that challenge, even at a less advanced social level, the political power of capital. The fact remains that this historical terrain of the class struggle, which has by no means disappeared from the present-day world, can be reduced to the simplicity of a direct clash between antagonistic forces only through a work of analysing the high points of successive developments and by criticism of the results they achieve. We find this to be a terrain in which the class struggle has always been complicated and mediated in its outward relations by situations, even political situations, which were not in themselves class struggle. In the process of things these situations increasingly lose importance (ie the residues of the pre-capitalist past are burned away) thus causing the downfall of all the future Utopias which have been built on the working class, and this finally offers the subjective possibility of enclosing the class struggle within the chain of the present in order to smash it. In this process we have to grasp from the working-class point of view not only the quantitative growth and massification of the antagonism, not only its ever-increasingly homogeneous internal unification, but also, through this, the way it progressively regains its primitive, direct elementary nature, as a counter-position between two classes, each of which gives life to the other, but only one of which holds in its grasp the possible death of the other. Leaving aside earlier historical periods, and coming forward to the highest point of development, we can see the evident truth of that simplest of revolutionary truths: capital cannot destroy the working class; the working class can destroy capital. The cook who, according to Lenin, should be able to govern the workers State, must be enabled to function - as from now, and on the basis of these elementary categories - as a theoretician of working class science.
Thus the masses of working class demands simplify and unify into one. There must come a point where all will disappear, except one - the demand for power, all power, to the workers, This demand is the highest form of the refusal. It presupposes already a de facto reversal of the balance of domination between the two classes. In other words, it presupposes that from that moment it will be the capitalist class putting positive demands, making their requests, presenting their Bill of Rights (in the name, naturally, of the general interests of society). And it will be the workers who are rejecting the pleas that are put to them. There must also be a point here, where all the requests and demands will come explicitly from the capitalists, and only the "No" will be openly working class. These are not stories of some far-distant future. The tendency is already under way, and we must grasp it from the start in order to control it.
When capital reaches a high level of development it no longer limits itself to guaranteeing collaboration of the workers - i.e. the active extraction of living labour within the dead mechanism of its stabilisation - some-thing which it so badly needs. At significant points it now makes a transition, to the point of expressing its objective needs through the subjective demands of the workers. It is true - and we have seen - that this has already happened, historically. The spectre of capitalist necessities of production being imposed as working class demands, in the struggle, is a recurrent theme in the history of capital, and it can only be explained as a permanent working class articulation of capitalist society. But whereas in the past this happened as an objective functioning of the system (which was thereby virtually self-regulating), today it happens, on the contrary, by conscious initiative of the capitalist class, via the modern instruments of its power apparatus. And in between there has been that decisive experience of working class struggle, which no longer limited itself to asking for power, but actually conquered it. It was with 1917 and the Russian Revolution that the working class articulation of capital was subjectively imposed on the capitalists. What previously had functioned of itself, controlled by nobody, as a blind economic law, from that moment had to be moved from above, politically promoted by those who held the power: it was the only way to control the objective process, the only way to defeat the subversive threat of its possible consequences. This is the origin of that major development in capital's subjective awareness, which led it to conceive and put into practice a plan of social control over all the moments of its cycle, all conceived within a direct capitalist use of working class articulation. Thus, once again, an experience of working class struggle spurs a major advance in the capitalist point of view - an advance which it would never have made of its own accord. The demands of the working class are henceforth recognised by the capitalist~ themselves as objective needs of the production of capital: and as such they are not only taken on board, but are actively solicited; no longer simply rejected, but now collectively negotiated. The mediation of the institutional level of the working class movement, 'particularly at the trade union level, takes on a decisive and irreplaceable' importance. The platform of demands that the trade union puts forward is already controlled by those on whom it is supposed to be imposed: by the bosses who are supposed to "take it or leave it". Through the trade union struggle, working class demands can be nothing more than the reflection of capital's necessities. And yet capital cannot pose this necessity directly, of itself -not even if it wanted to, not even when it reaches its highest point of class awareness. Rather, at this point it acquires quite the reverse awareness: that it must find ways to have its own needs put forward by its enemies, it must articulate its own movement via the organised movements of the workers.
We might ask a question: what happens when the form of working class organisation takes on a content which is wholly alternative; when it refuses to function as an articulation of capitalist society; when it refuses to carry capital's needs via the demands of the working class? The answer is that, at that moment and from that moment, the systems whole mechanism of development is blocked. This is the new concept of the crisis of capitalism that we must start to circulate: no longer the economic crisis, the catastrophic collapse, a Zusammenbruch, however momentary, arising from the impossibility of the system's continued functioning. Rather, a political crisis imposed by the subjective movements of the organised workers, via the provocation of a chain of critical conjunctures, -within the sole strategy of the working class refusal to resolve the contradictions of capitalism. A tactic of organisation within the structures of capitalist production, but outside of, free from, its political initiative. Of course, it remains necessary to block the economic mechanism and, at the decisive moment, render it incapable of functioning. But the only way to achieve this is via the political refusal of the working class to act as active partner in the whole social process, and furthermore, the refusal of even passive collaboration in capitalist development: in other words, the renunciation of precisely that form of mass struggle which today unifies the movements led by the workers in the advanced capitalist countries. We must say clearly that this form of struggle - for such it is - is no longer enough. Non-collaboration, passivity (even on a mass scale), the refusal (insofar as it is not political, not subjectively organised, not inserted into a strategy, not practiced in tactical terms), the advanced font of spontaneity which has been forced on the class struggle for decades - not only is all this no longer enough to provoke the crisis, but it has become, in fact, an element of stabilisation of capitalist development. It is now one of those same objective mechanisms whereby capitalist initiative now controls and makes use of the class relationship that motivates it. We must break this process before it becomes yet another heavy historical tradition for the working class movement to bear.
A transition to another process is necessary - without, however, losing the basic positive elements of this one. Obviously non-collaboration must be one of our starting points, and mass passivity at the level of production is the material fact from which we must begin. But at a certain point all this must be reversed into its opposite. When it comes to the point of saying '1No", the refusal must become political; therefore active; therefore subjective; therefore organised. It must once again become antagonism -this time at a higher level. Without this it is impossible to think of opening up a revolutionary process. This is not a matter of instilling in the mass of workers the awareness that they must fight against capital that they must fight for something which will transcend capital and lead into a new dimension of human society. What is generally known as '1class consciousness is, for us, nothing other than the moment of organisation, the function of the party, the problem of tactics - the channels which must carry the strategic plan through to a point of practical breakthrough. And at the level of pure strategy there is no doubt that this point is provided by the very advanced moment in which this hypothesis of struggle becomes reality: the working class refusal to present demands to capital, the total rejection of the whole trade union terrain, the refusal to limit the class relationship within a formal, legal, contractual form. And this is the same as forcing capital to present the objective needs of capitalist production directly, as such. It cuts out working class mediation of development. It blocks the working class articulation of the mechanism. In the final event, this means depriving capital of its content, of the class relationship which is its basis. For a period the class relationship must be exercised by the working class, through its party - just as up till now it has been exercised by the capitalist class, through its State.
It is here that the balance of domination between the two classes is set into reverse, no longer just in theory, but also in practice. In fact, the revolutionary process sees the working class becoming ever-increasingly what it actually is: a ruling class on its own terrain (a specifically political terrain), a conquering power which, in destroying the present, takes revenge for a whole past (not merely its own) of subordination and exploitation. This is the sense of the hypothesis which poses, at the highest point of this process, on the one hand capital making demands, and on the other hand the working class refusal. And this presupposes the existence of a political force of the working class, organised per se, and able to constitute an autonomous power of decision in relation to the whole of society, a No Man's Land where capitalist order cannot reach, and from which the new barbarians of the proletariat can embark at any moment. Thus the final act of the revolution requires that there should already be the workers? State within capitalist society - the workers having power in their own right and deciding the end of capital. But this would not be a pre-figuration of the future, because the future, from the working class point of view, does not exist; only a block on the present, the impossibility for the present to continue functioning under its present organisation, and thus an instance of its possible reorganisation under an opposite notion of power. An autonomous working class political power is the only weapon that can block the functioning of capital's economic mechanisms. In this sole sense the workers' State of tomorrow is the party of today.
This brings us back to the concept, which we attributed to Marx, of communism as the party, which instead of constructing a model of the future society, supplies a practical means for the destruction of the present society.

Friday, October 04, 2013


I will apologize in advance for posting an article on Prison Friday that is as long as the one coming up.  However, having said that, I am doing it anyway.  Even if you do not bother to read the whole thing, or if you just skim through it you will be blown away by its importance.  How many people are sitting in jails, or dead, because of the CRIME LAB?  Who can say?  What we can say with a great degree of certainty that the crime lab in real life is not the crime lab of CSI, but partially thanks to CSI and other media crime shows juries have an incredible faith in those forensic experts who walk into court and present the damning results of their "scientific" criminal investigation.  

Turns out it's a bunch of baloney.

I mean, really, few of us thought that CSI was real, but little did we know how totally unreal it was.  Fantasy, science fiction, whatever, but not even close to reality.  I guess that is unless you questioned even those fantastic TV forensic experts who shout out "crime lab" as they bust down some baddies door.  Of course, though, on TV they are always right.

We have read of the scandalous messes real life crime labs have created, but did we know just how pervasive the messes are.  

Save the article below and maybe read it when you have time.  It ought to be passed out to every jury before a trial even begins.

Unreal and unreal.

The following comes from Prison Legal News.


Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions

by Matt Clarke

To millions of people whose knowledge of crime labs comes from television shows such as CSI, Bones, Crossing Jordan and the venerable Quincy M.E., the forensic experts who work at such labs seem to be infallible scientists who use validated scientific techniques to follow the evidence to the truth, regardless of where it leads. Sadly, that is far from accurate.

“The CSI effect has caused jurors to expect crime lab results far beyond the capacity of forensic science,” wrote Jim Fisher, a former FBI agent and retired criminalistics professor who taught forensic science at Edinboro University of Pennsylvania, in his 2008 book titled Forensics Under Fire: Are Bad Science and Dueling Experts Corrupting Criminal Justice?

Fisher notes that problems in forensics “have kept scientific crime detection from living up to its full potential.” His conclusion is that “bad science, misadventures of forensic experts [and] human error” exemplify “the inability of our 21st century judicial system to properly differentiate between valid research and junk science.”

Crime lab workers are not necessarily scientists. In fact, sometimes only a high school diploma is required for employment as a forensic technician or arson investigator. Nor are lab examiners and their supervisors always the unbiased investigators portrayed on TV; in fact, many crime labs are run by or affiliated with police departments, which have a vested interest in clearing unsolved crimes and securing convictions.

Police often share their suspicions regarding suspects with lab workers before forensic examinations are performed. This has been shown to prejudice lab personnel in areas as diverse as fingerprint examination and chemical testing for accelerants in arson investigations. Further, some lab examiners feel they are part of the prosecution team, helping the police and prosecutors convict suspects regardless of the results of forensic testing. In such cases, forensic experts and other lab personnel may lie about test results, be misleading about the reliability of their methods, and/or cover up test outcomes when they are beneficial to the defendant.

Some forensic examiners “dry-lab” their tests, writing down results for tests they never performed. They may be motivated by understaffing and excessive workloads, a belief that tests required by lab protocols are unnecessary, an inability to perform the tests due to a lack of training, education and experience, or even the belief that the police have already arrested the right person, so evidence testing would be superfluous.

Then there are the forensic “experts” who lie about their academic credentials or accreditation, either on their résumés or in perjurious testimony. They initially may have been motivated to pad their résumé to secure employment, but might also seek to discourage defense attorneys from questioning their test results and conclusions by presenting overwhelming evidence of expertise they do not actually possess. This often works. Giving a bite of truth to the old adage that lawyers went to law school because they couldn’t do math, few judges, prosecutors or defense attorneys can keep up with complicated developments in the field of forensic science.

These types of problems have led to scandals at dozens of crime labs across the nation, resulting in full or partial closures, reorganizations, investigations or firings at city or county labs in Baltimore; Boston; Chicago; Colorado Springs, Colorado; Dallas; Detroit; Erie County, New York; Houston; Los Angeles; Monroe County, New York; Oklahoma City; San Antonio, Texas; San Diego; San Francisco; San Joaquin County, California; New York City; Nashville, Tennessee; and Tucson, Arizona, as well as at state-run crime labs in Illinois, Montana, Maryland, New Jersey, New York, Oregon, Pennsylvania, Virginia, Washington, North Carolina, West Virginia and Wisconsin, plus the federally-run FBI and U.S. Army crime labs. Forensic “expert” scandals have also been reported in the United Kingdom.

The origins of such problems include unqualified or incompetent lab workers, personnel using false academic credentials, contamination in labs that cause false test results, employees falsifying test results to “help the prosecution,” and lab examiners committing perjury. Contributing to these problems is a lack of qualification standards and industry-wide training requirements for lab workers.

One might think that such scandals are caused by a few bad apples in the crime lab barrel, which is the spin typically adopted by the labs themselves. That problem could be fixed by hiring qualified personnel, training them properly and providing adequate oversight. But at least the forensic science that underpins crime lab testing is sound and valid, right? In many cases, wrong.

A 2009 report by the National Academy of Sciences, the most prestigious scientific organization in the United States, revealed that much of the “science” used in crime labs lacks any form of peer review or validation – fundamental requirements for sound science. Such questionable forensic methods include long-established and accepted techniques such as fingerprint comparison, hair and fiber analysis, and bullet matching.

National Academy of 
Sciences Report

After a series of crime lab scandals and the FBI’s erroneous identification of an American attorney as a terrorist suspect in the 2004 Madrid train bombings, Congress instructed the National Academy of Sciences (NAS) to review the status of forensic techniques used in criminal prosecutions. Following a two-and-a-half year investigation, the NAS’s National Research Council (NRC) released the report, titled “Strengthening Forensic Science in the United States: A Path Forward,” in February 2009. It exploded among crime labs like a bomb.

The NAS was established by President Abraham Lincoln in 1863 with a mandate to advise the government on issues involving science and technology. The 2009 report identified a number of deficiencies in the forensic sciences and with crime lab personnel who use and testify about such evidentiary methods in court.

“In a nutshell, these people aren’t scientists,” stated NAS member Jay A. Siegel. “They don’t know what validation is. They don’t know what it means to validate a test.”

This criticism applies to virtually all disciplines of forensic testing with the sole exception of DNA analysis, which was first developed in academic biology laboratories and then later adopted for forensic science applications. One example of a commonly-used forensic testing method is bullet matching, in which a lab technician examines two spent bullets under a microscope to compare striations caused by the grooves in the gun’s barrel. If the bullets show similar striations, a “match” is declared. If one bullet came from a known gun, the other bullet is “matched” to that firearm and the technician will testify the bullet must have been fired by that gun.

“It is not possible to state with any scientific certainty that this bullet came from any weapon in the world,” said Siegel, who chairs the Department of Chemistry and Chemical Biology and is the director of the Forensic and Investigative Services Program at Indiana University-Purdue University Indianapolis.

The NAS report noted that the techniques used to connect a person with a crime scene often lack any type of scientific validation. This includes frequently-used forensic methods such as handwriting analysis and comparison of hairs, fibers, tool marks, tire treads, shoe prints and even fingerprints.

To validate these techniques, controlled studies would have to be performed such as blind testing (where the answer is known to the evaluators but not to the persons performing the forensic analysis) and statistical testing (in which a large number of samples are compared to see how often a random “match” occurs). Further, issues of investigator bias, unknown error rates, lack of crime lab independence, underfunding, poor training, lack of lab personnel qualifications, low academic requirements, and lab personnel making exaggerated claims about the accuracy of forensic techniques were noted in the NAS report.

Crime lab officials reacted with predictable outrage, claiming that the report says fingerprint and other identification techniques should be discarded, and blaming the slew of crime lab scandals on a few bad employees.

“If somebody drives and drinks and kills somebody, that’s horrible,” stated Ron Fazio of Integrated Forensic Laboratories in Euless, Texas. “But that doesn’t mean that all driving is bad. The person who made the mistake needs to be dealt with, but that doesn’t mean we should outlaw driving.”

Fazio also argued that some studies have validated bullet comparison methods. Siegel, who reviewed the research referred to by Fazio, said they contained no scientific criteria for the basis of the identification and no validation for the quality of the match. He also noted that such studies were conducted by firearms examiners and published in forensic journals that, unlike scientific journals, are not peer reviewed.

NRC member Karen Kafadar, a professor of statistics and physics with Indiana University at Bloomington, said the committee members who authored the report spent over two years analyzing research and data submitted by forensic professionals and found no studies that met basic scientific criteria. For example, most of the studies were not “blind” in that the participants were aware of the outcome and merely showed how the results were obtained. Other research studies used sample sizes that were too small or had other structural flaws. Kafadar doesn’t believe there are any other relevant studies.

“If experts in Texas believe there was research [that] we failed to acknowledge ... they would have had every opportunity to get it to the committee before our work was done. They had 2½ years to get it in,” she said.

Additionally, the NAS report did not recommend that all forensic methods except DNA testing be abandoned; rather, it said that such methods should be given stringent scientific scrutiny to ensure they are valid.

“One of the confusions that occurred from the report is that since these tests haven’t been validated, they shouldn’t be used. We’re not saying that they are invalid and shouldn’t be used,” said Siegel. “What we said in the report is that the jury is still out there until this scientific testing is done.”

Kafadar believes that forensic evidence presented in court – upon which a defendant’s freedom or even life may depend – should be the result of rigorously-validated, scientifically-proven techniques. The alternative is to allow people to be convicted based on junk or “voodoo” science.

“Voodoo” Science

If the NAS report raises doubts about generally-accepted forensic methods such as fingerprint identification and bullet, hair and fiber comparisons, what does that mean for less-accepted methods? The truth of the matter is that if a prosecutor can convince a judge to allow evidence into court it will be used, no matter how absurd its “scientific” basis might be. And judges are not known for their scientific acumen; according to Seigel, judges “just don’t understand a thing about it. That’s the sad fact.”

In a 2001 national survey of 400 state court judges, the vast majority said they firmly believed in their gatekeeping role – deciding whether scientific evidence should be admitted in court, e.g. under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) – but only 4% had a clear understanding of the scientific concepts of probability and error rate.

Those concepts are key to determining whether scientific evidence is useful or meaningless. As Dave Wymore, former director of the Colorado public defender’s office put it in 1999, when he achieved exclusion of the FBI’s since-discredited comparison bullet lead analysis (CBLA), “Sure, you have this wiz-bang, whipper-dipper machine that looks at all the elements of the universe, but it doesn’t mean anything.”

“The partisan adversarial system used in the courts to determine the admissibility of forensic science evidence is often inadequate to the task,” noted Harry T. Edwards, a judge on the U.S. Court of Appeals for the D.C. Circuit who co-chaired the NRC report committee. “And because the judicial system embodies a case-by-case adjudicatory approach, the courts are not well-suited to address the systemic problems in many of the forensic science disciplines.”

Defense attorneys have no better understanding of science either, said Siegel. One hundred years of unscientific evidence being accepted in the courts proves that point, and faulty forensic methods have been shown to contribute to wrongful convictions.

“Too often lawyers don’t do their homework enough so they can properly cross-examine these people,” observed former president of the American Academy of Forensic Sciences and retired McHenry County, Illinois judge Haskell Pitluck. “They come in and say, ‘I’m an expert.’ And some lawyers simply roll over.”

“If lawyers could do science, they’d be doctors,” said Pitluck, noting that while his forensic acumen exceeds that of most jurists he does not “feel qualified to make many of these calls.”

Now that previously-accepted forensic techniques have been questioned by the NAS, can they be challenged in court? Maybe, but it will be difficult unless defendants can afford to hire a forensic expert to testify on their behalf. For the many defendants who are indigent that is highly unlikely because, whereas the U.S. Supreme Court has recognized a constitutional right to legal counsel in criminal cases, it has made no finding of a right to forensic experts. Additionally, the courts’ deference to precedent works against new challenges even if a defendant can afford an expert.

“The habit of judges to defer to prior decisions disinclines appellate courts to revisit possible or actual errors by trial courts in any given case, and it leads trial judges to submit species of evidence that appellate courts had approved in the past, regardless of how flawed that type of evidence can be shown to be with current knowledge,” wrote Arizona State University law and psychology professor Michael J. Saks and David L. Faigman, a University of California Hastings College of the Law professor, in The Annual Review of Law and Social Science.

This essentially means that once a forensic method has been accepted by one trial court, it has a good chance of becoming an acceptable technique elsewhere. This leads to the acceptance of methods that have no basis in science or fact – junk science.

“The art of junk science is to brush away just enough detail to reach desired conclusions, while preserving enough to maintain an aura of authoritative science,” according to “Criminal Law Forensics: Century of Acceptance May Be Over,” an article in the January 8, 2009 issue of the New York Law Journal. That description certainly applies to the FBI’s infamous CBLA forensic technique.

Comparison Bullet Lead Analysis

A 2004 NAS report led the FBI to abandon comparison (or comparative) bullet lead analysis, known as CBLA. CBLA used a nuclear reactor located in the basement of the FBI’s headquarters in Quantico, Virginia to perform a highly accurate analysis of trace elements found in the lead of a bullet. The report found that the scientific basis of the bullet lead analysis was sound. However, what was not sound was the underlying premise that bullets with similar chemical makeups must have come from the same box of ammunition. The NAS report showed that millions of bullets have the same chemical composition, rendering CBLA useless as a forensic tool.

FBI technicians gave expert testimony about this impressive but ultimately worthless investigative method in more than 2,500 criminal prosecutions nationwide, including capital cases such as that of Kentucky prisoner Ronnie Lee Bowling, who remains on death row.

The CBLA debacle was neither the first nor the latest FBI crime lab scandal. Dr. Frederic Whitehurst, a chemist formerly employed by the FBI, became a whistleblower who revealed shoddy work and lack of validation in the explosives section of the FBI’s crime lab after the 1993 World Trade Center bombing. Since 2005, Whitehurst has directed the nonpartisan Forensic Justice Project (, which has tried to force the FBI to release a list of its CBLA cases.

“The new revelations about bullet-lead analysis are just the latest examples of the Department’s inadequate efforts to ensure that sound forensic testing is utilized to the maximum extent to find the guilty rather than merely obtain a conviction. Punishing the innocent is wrong and allows the guilty to go free,” said U.S. Senator Patrick J. Leahy, chairman of the Senate Judiciary Committee, in 2007.

So what did the FBI do when it discovered the CBLA testing it had used since the 1980s was bogus? It discontinued the use of CBLA in September 2005 and sent letters to prosecutors stating that while the basic science was sound, CBLA was being abandoned due to costs and other considerations. Senator Leahy criticized the letters for giving “the false impression that these discredited tests had continuing reliability.”

“I’m also troubled that many cases affected by such analysis still need review, and that numerous cases involving possibly innocent defendants serving long jail terms have not been examined,” Leahy added.

As of January 2010 the FBI was still reviewing CBLA cases, and had found 187 in which FBI experts testified. It sent another letter to the prosecutors in those cases stating that CBLA “exceeds the limits of science and cannot be supported by the FBI.” No notification was given to defense attorneys, though, and nothing is being done in cases where defendants were coerced into pleading guilty by prosecutors who threatened them with presumably damning CBLA evidence.

Several convictions that involved CBLA have since been overturned. In one published opinion, the New Jersey Court of Appeals, upon reversing the conviction of Michael S. Behn, who was found guilty of murdering a coin dealer, held that CBLA was unproven and unreliable. “The integrity of the criminal justice system is ill-served by allowing a conviction based on evidence of this quality, whether described as false, unproven or unreliable, to stand,” the court wrote. See: State v. Behn, 868 A.2d 329 (N.J.Super.A.D. 2005), appeal denied.

At Behn’s trial, a prosecutor had told the jury there was a 99.9987% likelihood that bullets found at Behn’s home “came from the same lot” as the bullet used to kill the victim. Behn was retried in 2006 and reconvicted based on other evidence.

In 1997, Tom Kennedy was found guilty of a double homicide in Colorado. Citing discredited CBLA evidence, a judge overturned his conviction in April 2009. Prosecutors are appealing the reversal.

Phillip Scott Cannon was freed in December 2009 after serving more than 10 years for a triple homicide in Oregon; CBLA evidence had been introduced during his trial. Prosecutors said he would not be retried because the exhibits used in the original trial have been destroyed.

In Florida, Jimmy Ates served 10 years of a life sentence for the 1991 murder of his wife. He was released in December 2008 with the agreement of the state attorney’s office due to the use of CBLA evidence in his case. Prosecutors are still pursuing the charges, though, with a retrial set for January 2011.

Procedural problems have hampered CBLA challenges in other cases. In February 2010, the Texas Court of Criminal Appeals rejected a challenge to a 2003 murder conviction based on CBLA evidence. The appellate court acknowledged that CBLA had been discredited, but found that claims raising new evidence not contained in the trial court record were not generally considered on direct appeal and should instead be raised in post-conviction proceedings.

“To ensure that only ‘good’ science is admitted and ‘bad’ science is excluded in our criminal trials, the parties must shoulder the responsibility of providing and explaining the appropriate educational materials for judges to make that determination,” one of the appellate judges remarked in a concurring opinion. See: Gonzales v. State, Texas Court of Criminal Appeals, Case No. PD 1661-09 (February 24, 2010).

Dog Scent Evidence

According to a September 2009 report by the Innocence Project of Texas, “The use of ‘junk science’ by police and prosecutors in Texas is an ongoing injustice. Nowhere is this more obvious than in the government’s use of ‘scent lineups’ – a practice that is happening today throughout the state.”

Fort Bend County Deputy Sheriff Keith A. Pikett and his team of dogs, which he named Quincy, Columbo, James Bond and Clue, are well known throughout South Texas. Since the 1990s Pikett has performed thousands of “dog scent lineups,” in which a suspect is rubbed with a swatch of cloth and the cloth is placed with similar swatches containing other people’s scents. The dog then sniffs a cloth swatch containing a scent from a crime scene and tries to “match” it with one of the swatches in the lineup.

The FBI has warned against using results from this method as primary evidence, saying it should only be used to corroborate other evidence. Robert Coote, who formerly led a police canine unit in the United Kingdom, viewed a video of one of Pikett’s scent lineups.

“This is the most primitive evidential police procedure I have ever witnessed,” he said. “If it was not for the fact that this is a serious matter, I could have been watching a comedy.” The problem is that Pikett and his followers are true believers despite the fact that several suspects identified by dog scent lineups have been exonerated.

Jeff Blackburn, chief counsel for the Innocence Project of Texas, referred to scent lineups as “junk science injustice” and said Pikett merely gives police the match they were already looking for to confirm their suspicions.

Lawrence J. Meyers, associate professor of animal behavior at the Alburn University College of Veterinary Medicine, has another explanation. He thinks that Pikett believes in scent lineups because he either inadvertently allows the dogs to pick up on a subtle or unconscious signal from the handler or detectives, or allows the swatch samples to become contaminated. Despite its dubious nature, dog scent lineup evidence has been admitted in courts in Alaska, Florida, New York and Texas, according to Meyers.

In Victoria, Texas, a Pikett dog scent lineup led to the arrests of Curvis Bickham and Cedric Johnson for a triple homicide. Bickham served 8 months in jail and Johnson served 16 months before another man confessed to the killings. While incarcerated, Bickham lost his home and cars and developed psychological problems.

Retired Victoria County Sheriff’s Department Captain Michael Buchanek was publicly named a “person of interest” in a rape-murder after a Pikett hound “led” police along a convoluted 5-1/2-mile trail that ended in his neighborhood. Based on the scent trail, police obtained a search warrant for Buchanek’s home and car and began a harassment campaign against him. Another man later confessed to the crimes and pleaded guilty.

“A gypsy reading tea leaves and chicken bones is probably as reliable as a dog doing a scent lineup,” said Victoria County district attorney Stephen B. Tyler, who noted that because dogs can’t be cross-examined, reliable testimony from their handlers is of utmost importance. “A dog might be great, but if a dog handler is not good or not credible, it’s only as strong as their weakest link,” he observed.

Buchanek and Bickham have filed separate federal civil rights suits against various law enforcement officials, including Pikett. In March 2010 the district court denied Pikett’s motion for summary judgment on qualified immunity grounds in Buchanek’s case. See: Buchanek v. City of Victoria, U.S.D.C. (S.D. Texas), Case No. 6:08-cv-00008. That same month, the court denied the defendants’ motions to dismiss in Bickham’s lawsuit. See: Curtis v. McStravick, U.S.D.C. (S.D. Texas), Case No. 4:09-cv-03569. Both cases remain pending.

Another wrongly accused defendant, Calvin Lee Miller, was arrested in March 2009 and charged with raping a woman and robbing another based on a Pikett dog scent lineup. DNA evidence eventually cleared him after he spent two months in jail. He has filed a civil rights suit against Pikett and Fort Bend County law enforcement officials, too. See: Miller v. City of Yoakum, Texas, U.S.D.C. (S.D. Texas), Case No. 6:09-cv-00035.

In Florida, Bill Dillon was exonerated by DNA evidence and released in November 2008 after spending 26 years in prison. He had been convicted in part due to fraudulent dog scent evidence. John Preston, a retired Pennsylvania state trooper, claimed that his German Shepard, “Harass II,” had found Dillon’s scent despite the fact that the scent trail was eight days old and a hurricane had swept through the area during that time. In hundreds of cases, Preston convinced juries of his canine’s miraculous abilities, even claiming the dog could track a scent underwater and could follow a scent trail that was six months to a year old.

Brevard County, Florida judge Gilbert Goshorn put Preston to the test in 1984 and exposed him as a fraud. Two attorneys jogged down separate paths, and the next morning “Harass II” was provided with a sweat-soaked shirt from one of the lawyers. The dog was unable to follow the trail. Given a chance to try again, Preston instead left town.

“It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent tracking so that Preston could lead the dog to the suspect or evidence in question. I believe that Preston was regularly retained to confirm the state’s preconceived notions about a case,” Goshorn stated.

By 1987, Preston had been completely discredited. He was labeled a “total fraud” by a former prosecutor and a “charlatan” by the Arizona Supreme Court. See: State v. Roscoe, 184 Ariz. 484, 910 P.2d 635 (Ariz. 1996).

Unfortunately, Florida prosecutors never notified the many people who were convicted based on Preston’s dog scent testimony. It was 2006 before Dillon learned that Preston had been exposed as a fraud; he then contacted the Florida Innocence Project, which arranged for the DNA testing that led to his exoneration. Two other defendants convicted in part due to Preston’s testimony have been proven innocent, including Wilton Dedge, who served 22 years before DNA evidence set him free in 2004. He received a $2 million settlement from the state. [See: PLN, March 2006, p.17].

Preston was never prosecuted for his outrageous testimony that sent many defendants to prison; he died in 2008. While now retired, Pikett still has a following of law enforcement officials who praise his work, even though he reportedly lied about his academic credentials, falsely claiming he had BS and MS degrees in chemistry.

“He’s been accused 20 different ways of cheating,” said Fort Bend County assistant county attorney Randall W. Morse, who is defending Pikett in several lawsuits. “Critics are trying to throw up a smoke screen to get defendants off.”

Victoria County Sheriff T. Michael O’Connor referred to dog-scent lineups as a “vital tool in working toward a determination of a case,” and said he would use them again. “I feel they’re credible. I’ve watched those dogs,” he stated. “I looked on in absolute amazement. We believe in this stuff.”

Like many proponents of questionable forensic methods, O’Connor considers an obvious failure to be a success. “We did the right thing, and the wrong person was not convicted,” he said, referring to the Michael Buchanek case. But it was another persons’ confession, not Pikett’s dogs, that got an innocent man off the hook, and it was dog scent evidence that had falsely implicated Buchanek in the first place.

The Innocence Project estimates that between 15 and 20 people “are in prison right now based on virtually nothing but Pikett’s testimony.”

In Florida, Seminole and Brevard Counties have agreed to review 15 to 17 cases from the 1980s in which people remain incarcerated after Preston’s dog scent evidence was used during their prosecutions. Preston also testified in other states and counties and in federal court.

Another form of scent evidence was misused by Michigan dog handler Sandra Marie Anderson, who claimed her cadaver dog, Eagle, could detect human remains. Her expert testimony was used in numerous criminal cases; in one, she said Eagle had “no unsuccessful hits.” However, Anderson was charged in 2003 with planting body parts and other evidence for her dog to “discover,” apparently to boost her credibility. In one case, Eagle found a bloody saw in a murder suspect’s basement; it was later determined the blood was Anderson’s.

Anderson eventually admitted that she had planted evidence in seven criminal investigations, including blood, bones and a toe. She was indicted on ten counts of obstruction, evidence tampering and lying to federal officials, pleaded guilty, and was sentenced in September 2004 to 21 months in prison.

“There are no national standards” for dog scent evidence, admitted Steve Nicely, a professional dog trainer in Austin, Texas who has trained police dogs. “Our standards are so lacking, it’s pathetic. We should be ashamed of ourselves.”

Lie Detection

Almost everyone knows that polygraph examinations, commonly but inaccurately referred to as “lie detectors,” aren’t admissible in court. The reason is because polygraphs and related methods of distinguishing the truth lack reliability – despite what is often portrayed on TV, such as in the Fox series Lie to Me.

Of course this doesn’t stop the government from using lie detectors to screen people applying for certain jobs or to monitor sex offenders on parole. [See: PLN, Dec. 2008, p.1]. It also doesn’t prevent people from trying to come up with new ways of “detecting” lies. One such method, the voice-stress analyzer, is even less reliable than the polygraph, with an accuracy rate about the same as flipping a coin.

John Sullivan, a CIA polygraph examiner for 31 years, screened employees for security purposes. His own security clearance was temporarily revoked due to what he claims was an abusive polygraph exam.

“The irony of my situation certainly did not escape me,” said Sullivan. CIA polygraph operators are not routinely screened. Sullivan got special attention after he published a book titled Gatekeepers: Memoirs of a CIA Polygraph Examiner, which he described as “a window to the often acrimonious and sometimes alarming internal politics of the CIA.”

Despite alleging an abusive polygraph exam in his own case, Sullivan does not believe CIA polygraph examiners should be asked whether they ever misused a test, because “it would open a can of worms.” He filed suit against the CIA in 2007 due to the revocation of his security clearance, which he claimed was retaliatory. The lawsuit was resolved under undisclosed terms in July 2009. See: Sullivan v. CIA, U.S.D.C. (D. DC), Case No. 1:07-cv-00685-JR.

The latest method to be held up as the long-sought-after lie detector is functional magnetic resonance imaging (fMRI), which is being pushed by two private companies, No Lie MRI and Cephos Corp. The technique uses MRI scans and blood oxygen levels to display which parts of the brain are being used and to what degree they are used when people respond to questions.

About 20 peer-reviewed scientific studies have shown that certain parts of the brain become more active when a person is telling a lie. The studies used healthy subjects who lied about simple things, such as which card they were looking at. Whether the technique works for more complicated lies, for people with mental or physical health problems, for people who face serious consequences if they are caught lying, or for those who falsely believe they are telling the truth has not been researched.

Nonetheless, Cephos Corp. claims it has the ability to detect a lie 79 to 97 percent of the time, while No Lie MRI claims at least a 93 percent lie detection rate. No court has allowed fMRI to be admitted as evidence in a criminal case, and the technique has been criticized – including in an article titled “Playing Devil’s Advocate: The case against fMRI lie detection,” published in the February 2008 issue of Legal and Criminological Psychology.

In May 2010, a Tennessee federal court heard testimony as to whether fMRI evidence from Cephos should be introduced in the criminal prosecution of Lorne Semrau, a psychologist accused of Medicare fraud. The court rejected the fMRI evidence, noting that “While it is unclear from the testimony what the error rates are or how valid they may be in the laboratory setting, there are no known error rates for fMRI-based lie detection outside the laboratory setting, i.e. in the ‘real-world’ or ‘real-life’ setting.”

Yet the district court also stated that “should fMRI-based lie detection undergo further testing, development, and peer review, improve upon standards controlling the technique’s operation, and gain acceptance by the scientific community for use in the real world, this methodology may be found to be admissible even if the error rate is not able to be quantified in a real world setting.” See: United States v. Semrau, U.S.D.C. (W.D. Tenn.), Case No. 1:07-cr-10074-JPM-tmp.

That might take awhile. In one amusing 2008 study, neuroscientist Craig Bennett took an Atlantic salmon to a lab at Dartmouth University and used fMRI to study it while it was shown a series of photographs. The fMRI data indicated activity in the area of the fish’s brain, despite the fact that the salmon was “not alive at the time of scanning.” Bennett used the unexpected test results to warn against false positives. “We could set our [test result] threshold so high that we have no false positives, but we have no legitimate results,” he observed.

Such a fishy outcome should make one wonder about the validity of fMIR for lie detection purposes. Indeed, in a 2009 article in Perspectives on Psychological Science, MIT post-graduate student Ed Vul, a statistician, concluded that “a disturbingly large, and quite prominent, segment of fMRI research on emotion, personality, and social cognition is using seriously defective research methods and producing a profusion of numbers that should not be believed.”

Regardless, Cephos Corp. CEO Steven Laken stated, “We’re not going to stop doing what we’re doing.” Referring to the Semrau prosecution in which fMIR evidence was rejected, he said, “The judge in this case is just one person.”

In India, a woman was convicted of murdering her former fiancé based on a Brain Electrical Oscillations Signature (BEOS) profile. Proponents claim BEOS tests can detect lies, but there have been no BEOS studies published in peer-reviewed scientific journals.
With BEOS, supporters claim to be able to tell if a person has a memory or “experiential knowledge” of committing a crime. This is achieved by showing the person a photo of the crime scene while observing the BEOS data. However, neuroimaging studies have found that imagining events triggers similar brain activity to experiencing those events, and there is no scientific evidence that BEOS can differentiate between the two. No U.S. court has addressed the admissibility of BEOS testing.

In the case in India, although Aditi Sharma and her husband, Pravin Khandelwal, were convicted of murder in June 2008 and received life sentences, the Bombay High Court suspended Pravin’s sentence and released him on bail because there was no actual evidence tying him to the crime as a conspirator. Aditi also was released on bail, due to a lack of sufficient evidence. BEOS was not mentioned in the court’s ruling. In September 2008, India’s National Institute of Mental Health and Neuro Sciences declared that brain scans were unreliable in criminal cases.

Hank Greely, a professor at Stanford Law School, has received a $10 million grant to study the legal and ethical implications of neuroscientific practices. “We worry a lot that juries and judges are going to be way too impressed by fancy pictures of brain scans,” he said. “But these are not photographs: they are computer-generated images of radio-wave information taken at a certain time and configured or manipulated in certain ways. Studies already show that people are more likely to give credence to a statement about the brain if it includes a picture of a brain scan, no matter how spurious it is.”

Bite Marks, Ear Prints, Lip Prints

Prosecutors have introduced evidence of bite marks, lip prints and even ear prints to win convictions in a number of jurisdictions. The problem with this type of evidence is that – just as with other kinds of forensic techniques – there have been no systematic, scientific studies to demonstrate the accuracy of such methods.

Lavelle L. Davis was convicted of murder in 1997 and sentenced to 45 years after an Illinois State Police crime lab examiner testified that lip prints found on a roll of duct tape near the murder scene “matched” Davis’ lips. The Illinois Appellate Court upheld the murder conviction, noting that the state’s expert witnesses had testified that lip prints were accepted by the FBI as “a means of positive identification,” and that they “did not know of any dissent inside the forensic community” regarding the validity of lip print comparison. See: People v. Davis, 710 N.E.2d 1251 (Ill.App. 2 Dist. 1999).

Except the experts weren’t telling the truth. According to FBI crime lab spokeswoman Ann Todd, who was quoted in a 2004 news report, the FBI “to this day hasn’t validated lip print comparisons.” In fact, the Davis prosecution is the only known case where such evidence was used.

According to several of the jurors at Davis’ trial, the lip print evidence was the reason they convicted him because the prosecution had otherwise put on a very weak case using an eyewitness who was an admitted liar. Also, Davis’ lawyer had attempted to understand the science behind lip print comparisons and cross-examine the state’s experts without help from an expert of his own.

“You can’t rely on your own cross-examination of the state’s witnesses,” said Kim Campbell, Davis’ appellate attorney. “You have to have your own expert to say why this kind of science is unreliable. And there was nobody saying that at his trial.”

Campbell filed a post-conviction petition and submitted an affidavit by Andre Moenssens, author of the book Scientific Evidence in Civil and Criminal Cases and law professor emeritus at the University of Missouri-Kansas City. The affidavit stated that “making the quantum leap ... to the ultimate notion of identifying an individual by the visible imprint of his or her lips is a journey fueled by two elements: pure speculation and unadulterated conjecture.”

The Circuit Court granted Davis’ post-conviction petition in 2006 and ordered another trial, heeding new expert testimony that lip print comparison evidence is not accepted science. The court also found the eyewitness testimony was “wrought with contradictions and lies and inconsistencies,” and cited prosecutorial misconduct and ineffective assistance of counsel as contributing factors. The trial court was affirmed on appeal and prosecutors dropped the charges against Davis in April 2009. See: People v. Davis, 879 N.E.2d 996 (Ill.App. 2 Dist. 2007).

As odd as it sounds, ear prints have been used in several criminal cases, too. On November 10, 1999, the Washington Court of Appeals reversed the aggravated murder conviction of David Wayne Kunze “because the trial court had improperly admitted ear-print identification evidence” that did not meet the Frye test. [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)]. The ear print evidence had been introduced even though a supervisor at the Washington State Crime Laboratory “thought that earprint identification was ‘out of the expertise of the [crime lab’s] latent unit.’”

During the retrial prosecutors moved to dismiss the charges, saying they could not prove Kunze’s guilt beyond a reasonable doubt. See: State v. Kunze, 97 Wash.App. 832, 988 P.2d 977 (1999), review denied.

In the United Kingdom, Mark Dallagher was convicted of murder in 1998 and sentenced to life after Dutch ear expert Cornelis Van der Lugt testified that a latent ear print on a window at the home of the victim was “a unique match” to Dallagher. The conviction was reversed on appeal, DNA evidence later implicated another suspect, and Dallagher was exonerated and freed in 2004. See: R. v. Mark Anthony Dallagher, In the Supreme Court of Judicature, Court of Appeal (Criminal Division), No. (2002) EWCA Crim. 1903.

Another U.K. conviction, of Mark Kempster, was based on an ear print left at the scene of a burglary and resulted in a 10-year sentence in March 2001. Kempster’s conviction was overturned on appeal in 2008 due to insufficiency of the ear print evidence, though he remained in prison on unrelated charges.

“At this stage in the game, you can put ear prints and lip prints and nose prints and elbow prints all in the same category – unverified and unvalidated,” noted Ronald Singer, president of the American Academy of Forensic Sciences and crime lab director for the Tarrant County medical examiner’s office in Fort Worth, Texas.

Bite mark comparisons suffer from the same problems as ear and lip prints – a lack of scientific validation. Nonetheless, Mississippi state pathologist Dr. Stephen Hayne and odontologist Michael West have testified that individuals can be identified by bite marks.
Such evidence came under scrutiny after two men who were sent to death row on the basis of bite mark testimony were exonerated by DNA evidence.

One of those cases involved Ray Krone, who was convicted in 1991 of murdering a Phoenix, Arizona cocktail waitress and sentenced to death. The evidence against him included a bite mark on the victim’s breast that matched Krone’s teeth, according to an expert for the prosecution, even though another expert had previously determined there was no match. Krone was exonerated by DNA a decade later and released in 2002.

Krone’s attorney, Christopher Plourd, was outraged that dubious bite mark evidence had led to his client’s conviction, twice – Krone had been convicted at a retrial in which bite mark testimony was again introduced. Plourd decided to test the proficiency of bite mark experts. He hired a private investigator who contacted Dr. West and sent him photos from the victim in Krone’s case, telling him they were from an unsolved murder in a different case. The investigator also provided a dental mold of his own teeth, which he told Dr. West were from the prime suspect. Two months later West presented detailed results of his research – that the dental mold was a match to the bite marks in the photos, a clear impossibility.

In addition to his questionable bite mark testimony, Dr. Hayne also has been criticized for performing between 1,500 and 1,800 autopsies a year, over four times the recommended standard. Another medical examiner who reviewed one of Hayne’s autopsies called it “near complete malpractice.” [Note: An article on problems involving medical examiners will appear in an upcoming issue of PLN].

“There is no question in my mind that there are innocent people doing time at Parchman Penitentiary due to the testimony of Dr. Hayne,” said former Columbus, Mississippi Police Chief J.D. Sanders, who tried for years to have Hayne’s work scrutinized. “There may even be some on death row,” he added.

Arson Investigations

For many years arson investigators testified that the presence of glass with spider-web-like cracks at the scene of a fire indicated the presence of an accelerant, proving arson. It is now known that such “crazed glass” can be caused by water – e.g., from fire hoses – quickly cooling heated glass.

In February 2004, Texas prisoner Cameron Todd Willingham was executed for the arson-murder of his three young daughters. Key to Willingham’s conviction was the testimony of Corsicana Fire Department arson investigators who found crazed glass, “puddle” and V-shaped burn patterns, and a melted aluminum door threshold, which, they concluded, indicated the presence of an accelerant and thus arson.

The Willingham case has recently generated a great deal of controversy in Texas after separate investigations indicated the finding of arson was simply wrong. Reports by two highly-regarded fire science experts, Dr. Craig Beyler, chairman of the International Association for Fire Safety, and Dr. Gerald Hurst, a chemist hired by Willingham’s attorney to review the case, faulted the original investigation.

Beyler found that the arson determination “could not be sustained,” and said the fire investigators who testified at Willingham’s trial “had poor understanding of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators.” Hurst said the original investigation contained “major errors” and compared the methodology used by investigators to an “old wives tale.”

Beyond the crazed glass, Dr. Hurst noted that no accelerant was needed to melt aluminum or cause charring under an aluminum threshold, since wood fires alone can reach temperatures of more than one thousand degrees. Further, puddle burn patterns on the floor and V-shaped patterns on walls form naturally after a flashover event, when a fire ignites all combustible material in an enclosed space. Based on witness descriptions, it was likely that a flashover had occurred in the Willingham fire. Hurst found that other presumed indicators of arson were likewise discredited.

The Texas Forensic Science Commission scheduled a hearing on Willingham’s case in October 2009, but two days before the hearing Governor Rick Perry – who had declined to stay Willingham’s execution – replaced the commission’s chairman and two other members. The hearing was postponed, and although an interim report in July 2010 found the original arson investigation had relied on “flawed science,” the commission held the investigators were not negligent or guilty of misconduct. The final results of the commission’s report have not yet been released. [See related article in this issue of PLN, “Texas Controversy: Governor Guts Forensic Science Commission”].

Edward Cheever, a deputy state fire marshal who was involved in the original arson investigation, acknowledged that errors were made but defended the findings. “At the time of the Corsicana fire, we were still testifying to things that aren’t accurate today,” he said. “They were true then, but they aren’t now.”

Of course, an investigator’s findings cannot be true one day and not true the next. Investigatory methods may change, but the truth does not. Further, other arson experts found that the theories used in the original Willingham investigation were included in a 1960s arson textbook that has long since been debunked.

In 1997, the International Association of Arson Investigators filed a brief arguing that the requirements for scientific evidence set forth by the Supreme Court in Daubert should not apply to arson investigators, as their methods are “less scientific.”

Even when the methodology is accurate, the results can still be wrong if arson investigators lie about them. In February 1993, Joe Castorena, Assistant Chief Toxicologist for the Bexar County Forensic Science Center in San Antonio, Texas, testified that a class II accelerant had been used to set a deadly fire. The analysis had actually shown that no accelerant was present. Castorena also testified, falsely, that he had performed the test himself. The defendant was found guilty.

Another arson case under examination involves George Souliotes, who was convicted of setting a 1997 California house fire that killed a woman and two children. He was sentenced to life without parole. Souliotes’ conviction was based on arson investigation techniques that have since been discredited. For example, investigators testified that medium petroleum distillates (MPDs), a class of flammable substances, were found both on Souliotes’ shoes and on a carpet at the burned house. More modern tests revealed that the MPDs on the shoes and carpet were from different substances.

Testimony from a witness who placed Souliotes at the scene of the crime has also been questioned. The Ninth Circuit is presently considering Souliotes’ habeas appeal. See: Souliotes v. Hedgpeth, U.S.D.C. (E.D. Cal.), Case No. 1:06-cv-0667-OWW-WMW.

On May 7, 2010, ABC’s “20/20” aired an investigative report on criminal cases involving fires that may have been incorrectly blamed on arson due to “bad fire science.” In one case, a defendant was convicted of arson because investigators found multiple points of origins for the fire. However, other experts noted that aerosol cans present at the scene could have exploded and spread flames to other areas, creating multiple points of origin that mimicked arson – a theory confirmed by testing by the Bureau of Alcohol, Tobacco and Firearms.

Tarnishing the DNA Gold Standard

The 2009 National Academy of Sciences report held out DNA testing as the gold standard of forensic techniques, but even the gold standard is a little tarnished.

In 2001, Kathryn Troyer, an Arizona crime lab analyst, was running a test on the state’s DNA database when she happened across two entries that matched at 9 of the 13 locations on chromosomes (loci) that are commonly used to identify a person.

Since the odds of a random 9-loci match between two unrelated people were estimated by the FBI as 1 in 113 billion, she assumed it was a duplicate entry. That belief was dispelled when she discovered that one person was black and the other white. Troyer then found dozens of similar 9-loci matches in Arizona’s 65,493-profile DNA database.

While labs in the U.S. try to match 13 loci, DNA recovered from crime scenes may be degraded or damaged; thus, sometimes fewer than 13 loci are used for DNA matches. In the United Kingdom only 10 loci are required for a match. Thus, Troyer’s findings were a matter of significant concern. “It surprised a lot of people,” said William C. Thompson, professor of Criminology, Law, and Society and Psychology and Social Behavior at the University of California-Irvine. “It had been common for experts to testify that a nine-locus match is tantamount to a unique identification.”

When word of Troyer’s discovery got out, questions were raised about the accuracy of DNA match statistics. The FBI moved to prevent her findings from being distributed and attempted to block similar research elsewhere, even when court-ordered. Dismissing the “Arizona searches” as misleading and meaningless, the FBI suggested that states could be expelled from the national DNA database (CODIS) if they “tie up the database” with Arizona-type match searches.

FBI experts persuaded judges to block searches in some states. Regardless, “Arizona searches” were performed in two other states pursuant to court orders. The searches of DNA databases in Illinois and Maryland turned up almost 1,000 additional matches with at least 9 loci. In the 220,000-profile Illinois DNA database, 903 nine-loci matches were found. See: People v. Wright, 2010 WL 1194903 (Ill.App. 1 Dist. 2010) (reversing conviction based on a 9-loci DNA match where the trial judge had refused to allow an Arizona-type search of the state’s DNA database).

Only 32 nine-loci matches were found in Maryland’s 30,000-profile database, but three of those matched at 13 loci. The odds of that occurring randomly are quadrillions to one unless the profiles are duplicates or belong to identical twins or siblings. Maryland officials did not conduct follow-up research to analyze the 13-loci matches.

A subsequent search of Arizona’s DNA database found 122 nine-loci matches, 20 ten-loci matches, 1 eleven-loci match and 1 twelve-loci match. The latter two belonged to people who were related to each other.

At the very least, the results of the “Arizona searches” should spur experts to investigate whether the statistical basis of DNA testing used by crime labs – and often cited by prosecutors – is flawed. Admittedly, searching a database for any matches is quite different from comparing a single sample to the entire database, or comparing two samples to each other. Regardless, the existence of so many potential matches in DNA databases should call into question some of the basic premises of DNA statistics.

More than 40 researchers, forensic scientists, statisticians and academics urged the FBI to provide them with access to the 8.6 million DNA profiles in the nationwide CODIS database, after removing identifying information, so they could test statistical assumptions related to DNA matches. The FBI declined, citing privacy concerns.

PLN previously reported a similar issue regarding DNA comparisons in cold cases. When a DNA sample is run against a database, the statistical odds of an erroneous match increase in accordance with the size of the database. In some cases, the odds of an incorrect match may be as high as 1 in 3. But DNA experts frequently cite much lower odds as if the size of the database was not involved, which greatly exaggerates the ability of DNA databases to identify a single unique individual as a perpetrator in cold cases. [See: PLN, Jan. 2009, p.24].

“Fingerprinting and other forensic disciplines have now accepted that subjectivity and context may affect their judgment and decisions,” said Itiel Dror, a neuroscientist at University College London. “It is now time that DNA analysts accept that under certain conditions, subjectivity and even bias may affect their work.”

Dr. Dror and a colleague at Boise State University in Idaho conducted an experiment in which they independently provided a mixed DNA sample from the victim, the defendant and other suspects in a real criminal case to 17 analysts. The result? One examiner said the defendant “could not be excluded” based on the DNA evidence. Four reported the results were inconclusive, while 12 said the defendant could be excluded. In the actual case, two prosecution experts testified that the defendant, Kerry Robinson, charged in connection with a gang rape in Georgia, could not be excluded based on the DNA evidence. He was convicted.

Additionally, even when the accuracy of DNA testing is not at issue, the correct identification of the person whose DNA is being tested is equally important. In several cases labs have mixed up or improperly labeled DNA samples, then used the test results to implicate the wrong person.

In California, for example, a lab called Cellmark Diagnostics switched the labels on DNA samples from the victim and the suspect in a 1995 sexual assault case, then reported there was a match even though the victim’s sample actually contained no DNA from the suspect. A Cellmark employee caught the error at trial. See: State v. Kocak, Superior Court of San Diego (CA), Case No. SCD110465.

In a similar 1999 case in Philadelphia involving defendant Joseph McNeil, the initial test results found that McNeil was the source of DNA left on the victim’s panties with a 99.99% exclusion rate for other potential suspects. However, McNeil’s sample had been switched with that of the victim. Revised test results excluded him as a suspect – though at the time the error was discovered, McNeil’s attorney had reportedly convinced him to take a plea bargain due to the apparently damning DNA evidence.

Another case that involved transposed DNA samples occurred in Nevada in 2001. Lazaro Sotolusson, a prisoner at the North Las Vegas Detention Center, was accused of raping his cellmate. DNA samples were taken from both men. The samples were swapped when they were entered into a lab computer, and a match was returned after they were compared to evidence in unsolved sex crimes. Because the samples had been switched, Sotolusson rather than the other prisoner was prosecuted for those crimes – which involved the sexual assaults of two juveniles at gunpoint. He spent a year in jail before the mistake was discovered in April 2002 by an expert retained by the public defender’s office, a month before he was scheduled to go to trial.

Prior to the error being found, authorities had said the odds that someone other than Sotolusson had committed the crimes were 1 in 600 billion, based on the presumed DNA match. “Despite the credibility commonly afforded to these [DNA] test results, this demonstrates there is always the possibility of human error,” said Public Defender Marcus Cooper.

Ominously, in August 2009 it was reported that scientists in Israel were able to fabricate DNA evidence, including blood and saliva samples. They claimed that if they could access a particular DNA profile in a database, they could make an artificial sample that would match it. “You can just engineer a crime scene,” said Dr. Dan Frumkin, the lead author of an article on fabricating DNA evidence published in the February 2010 issue of Forensic Science International: Genetics. “Any biology undergraduate could perform this,” he added.

Fingerprints: The Old Gold Standard

Prior to the advent of DNA testing in the mid-1980s, fingerprint comparison was considered the gold standard of forensic techniques. Unfortunately, validation problems aside, fingerprint analysis – which has been used as evidence in criminal cases for over 100 years – suffers from a large error rate that is rarely mentioned in the courtroom.

The problems with fingerprint comparison recently gained international notoriety when three FBI fingerprint experts falsely identified, “with 100% certainty,” an Oregon attorney as a terrorism suspect in the 2004 train bombings in Madrid, Spain. This might not have come as such a surprise had the error rate in fingerprint identification been more widely known.

Since fingerprint lab units are usually run by police departments, the examiners almost always know the outcome desired by police investigators. Furthermore, the standard method of matching fingerprints is for an examiner to be given prints taken from a crime scene and a set of a suspect’s prints, and compare them. Thus, the examiner already knows that the set being reviewed for a match is from a person the police suspect of committing the crime, potentially biasing the results.

Researchers in the U.K., including Dr. Itiel Dror, asked five crime lab fingerprint examiners to compare sets of prints after falsely telling them they were the mistakenly-identified fingerprints from the Madrid train bombing case – “thus creating an extraneous context that the prints were a non-match.” Three analysts agreed that the prints were not a match and one was unsure. Unbeknownst to the examiners, they had reviewed the exact same prints and declared them to be a match five years earlier. The study, published in Forensic Science International in 2005, indicated that an 80% error rate can be induced when examiners are informed in advance of the desired outcome.

A November 2009 audit of the Houston Police Department crime lab’s fingerprint unit revealed “irregularities” in over half of the 548 cases that were reviewed.

It was reported in October 2008 that a Latent Print Unit analyst at the Los Angeles Police Department crime lab was fired, two supervisors replaced and three other employees suspended after revelations surfaced that the lab had misidentified fingerprints in two burglary cases. One of the misidentified suspects was extradited from Alabama before the error was discovered by an independent expert hired by a court-appointed defense attorney.

“As a former prosecutor I know that we rely on fingerprint evidence without question,” said Los Angeles councilman Jack Weiss, chair of the city’s public safety committee. “Given the kind of conduct indicated in this report, it’s reasonable to assume that these problems aren’t isolated.”

The Journal of Forensic Sciences published a study in 1995 that revealed a false positive rate (erroneous match) of 2% for fingerprint comparisons, with 25% of U.S. crime labs reporting false positives.

A 2006 study by the University of Southhampton in the U.K. showed that the false positive rate doubled when examiners were told about the circumstances of a case before making fingerprint comparisons.

Further, a proficiency test administered to 156 fingerprint analysts by the Collaborative Testing Service in 1995 resulted in only 44% of the examiners correctly classifying all of the latent samples. “Errors of this magnitude within a discipline singularly admired and respected for its touted absolute certainty as an identification process have produced chilling and mind-numbing realities,” said David Grieve, editor of the Journal of Forensic Identification.

These studies are well known among fingerprint examiners, yet a top FBI expert has testified that fingerprint comparisons have a “zero error rate.”

“I’ll preach fingerprints till I die. They’re infallible,” said John Massey, one of the FBI fingerprint examiners who falsely matched Oregon attorney Brandon Mayfield to the Madrid train bombings. When asked about that incorrect fingerprint match, he said, “We just did our job and made a mistake. That’s how I like to think of it – an honest mistake. I still consider myself one of the best in the world.”

But even honest mistakes by top-notch examiners mean that fingerprint comparisons are not infallible as Massey claims them to be. And therein lies one of the biggest problems in forensics – the inability or unwillingness of experts, analysts and lab personnel to admit fallibility in their methodology or themselves, even in the face of obvious errors.
Brandon Mayfield filed suit against federal officials for his arrest and two-week detention as a result of the FBI’s faulty fingerprint identification, and received a formal apology and a $2 million settlement in November 2006.

There are also problems with how some fingerprint comparisons are made. In a 1995 case in Massachusetts, a defendant was convicted of murder and armed robbery based on a collective fingerprint match. That is, while none of the individual latent prints at the crime scene were sufficient for a match, investigators used multiple prints, which were presumed to have come from the same person, to obtain a match as a group.

The Supreme Court of Massachusetts held that this technique, based on the examination of “simultaneous impressions” of latent prints, did not meet the necessary reliability standard. “[A] fingerprint examiner’s opinion regarding the individualization of simultaneous impressions is less bounded by objective factors,” the court wrote. See: Commonwealth v. Patterson, 445 Mass. 626, 840 N.E.2d 12 (Mass. 2005).

In another Massachusetts case, Stephan Cowans was accused of shooting a police officer in a May 30, 1997 incident. After the shooting the assailant entered a nearby residence and drank a glass of water; two experts with the Boston Police Department later testified that a fingerprint on the glass matched Cowans. A defense expert agreed, and Cowans was also identified by two eyewitnesses, including the injured officer. He was convicted and sentenced to 30 to 45 years in prison.

DNA testing was performed in May 2003 on saliva from the glass and on a cap and sweatshirt discarded by the assailant. The DNA on the glass, the cap and the sweatshirt all matched, but not to Cowans. The fingerprint evidence was reexamined and Suffolk Assistant District Attorney David E. Meier admitted that the “purported [fingerprint] match was a mistake.” Cowans was exonerated in February 2004.

Crime Lab Scandals Nationwide

Former Douglas County, Nebraska CSI commander Dave Kofoed was sentenced on June 1, 2010 to 20 to 48 months in prison after he was convicted of planting blood evidence in a double homicide investigation. Kofoed reportedly planted the victim’s blood in a car linked to two suspects who were later determined to be innocent. He has professed his own innocence.

In March and April 2010, San Francisco prosecutors dismissed around 700 criminal cases after it became known that Deborah Madden, a 27-year crime lab employee, had been skimming cocaine that was booked as evidence. Public defenders had estimated that up to 40,000 cases may need to be reviewed. Madden admitted she stole cocaine from the lab for her own use, and retired on March 1, 2010. The drug analysis section of the SFPD crime lab was closed following the scandal.

“There is no doubt this lab is a mess. ... I know there are issues in the lab,” said Assistant Police Chief Jeff Godown. Madden was later charged with cocaine possession and an unrelated gun charge. It was subsequently learned that she had been convicted of domestic violence in 2008, a fact known to her supervisor but not disclosed to defense attorneys who could have used it to impeach her in criminal cases.

“It was kind of like a ‘don’t ask, don’t tell’ policy,” said Jeff Adachi, San Francisco’s chief public defender. “The police weren’t telling and the district attorney wasn’t asking.”

In April 2010 another scandal hit a crime lab in Ripon, California that serves San Joaquin and four other counties, which led to the examination of almost 2,000 cases in one county alone. Methamphetamine samples handled by Hermon Brown, an examiner at the lab, ended up weighing less than initially reported. Brown was charged with five felony drug and theft-related offenses on September 9, 2010.

Sacramento County, California criminalist Jeffrey Herbert testified in one case that a defendant’s DNA sample matched just one in 95,000 people, despite the fact that a supervisor had told him the odds were closer to 1 out of 47 people. A subsequent review determined that Herbert had “an insufficient understanding” of how to analyze mixed DNA samples. A technical reviewer at the Sacramento County crime lab, Mark Eastman, resigned after problems with his work were found in May 2006. He had entered a DNA sample into a law enforcement database even though the sample did not meet minimum standards, and failed to recheck his results in other cases.

In December 2009, the New York State Inspector General issued a 119-page report blasting the New York State Police crime lab. A private accrediting organization had discovered a lab worker with 30 years’ experience in trace evidence analysis had so little training that he could not even operate a microscope. Garry Veeder was the lab’s only fiber evidence expert. A check of his work showed that he often dry-labbed results; that is, he didn’t perform the tests he claimed he did.

Veeder admitted in an internal investigation to “bypassing an analysis required by forensic center protocols and then creating data to give the appearance of having conducted an analysis not actually performed.” He committed suicide in May 2008, two days after he was asked to attend another interview regarding his work at the lab.

Another New York State Inspector General’s report on crime labs in Monroe and Erie Counties, also released in December 2009, revealed problems with workers dry-labbing, misreporting weights and failing to perform vital steps in tests.

A chemist at the Erie County lab, Kelly McHugh, was fired after falsifying a report. Although she said she had conducted a certain test on a cocaine sample, the chain of custody record indicated the cocaine was in the evidence room at the time McHugh claimed she performed the test. She pleaded guilty to misdemeanor attempted tampering with public records and received a conditional discharge with no judicial punishment in January 2010.

The crime lab in Colorado Springs, Colorado reported in December 2009 that it had performed hundreds of faulty blood-alcohol tests that showed incorrect higher alcohol levels due to testing errors by a chemist who was later fired. At least nine defendants were wrongly convicted; the lab was unable to explain how the errors occurred.

Dirk Janssen, the chemistry supervisor at Wisconsin’s state crime lab, was reprimanded in August 2009 for failing to obtain peer reviews in 27 toxicology cases involving drug evidence. Following a review by the lab director, only five of the cases were found to meet required standards; of the others, half needed corrections.

In July 2009, a Texas man won a $5 million federal jury award against the Houston police department’s crime lab after the lab fabricated evidence that led to his conviction for a 1987 rape and kidnapping of a child. DNA testing freed George Rodriguez after he served 18 years in prison. The jury found that the city “had an official policy of inadequate supervision or training of its Crime Lab personnel” [See: PLN, Jan. 2010, p.32].

Rodriguez is one of four men who have been exonerated after they were convicted based on false evidence from the Houston crime lab. An auditor who reviewed 850 serology cases processed by the lab between 1980 and 1992 found problems in 599 of those cases.

DNA expert Dr. Elizabeth A. Johnson, a vocal critic of Houston’s crime lab, said there were systemic problems at the lab in regard to forensic testing, including with DNA evidence. “They can’t do a sperm sample separation to save their lives,” Dr. Johnson contended in a 2003 article. “If you put a gun to their heads and said you have to do this or you will die, you’d just have to kill them.”

On January 10, 2008, Vanessa G. Nelson, head of the Houston crime lab’s DNA division, was forced to resign after she was caught helping two DNA technicians cheat on proficiency exams. The DNA division was closed. This was the second time the division had been temporarily shut down. Following a November 2002 scandal revealed by local news media, the lab’s DNA division was suspended from December 2002 until July 2006.

Two months after she resigned, Nelson was hired by the Texas Department of Public Safety (DPS) to supervise the agency’s McAllen Division DNA lab. DPS officials said they were aware of the circumstances of her resignation from the Houston crime lab but her supervisor had described her as an outstanding employee.

In March 2009, Wayne County, Michigan prosecutor Kym Worthy admitted that 147 cases in which people were sent to prison would have to be investigated due to failings at the firearms unit in the Detroit police crime lab, which was closed in late 2008. The lab also conducted testing on fingerprints, DNA and drug evidence.

A preliminary audit of the Detroit lab found there was a 10% error rate in ballistics testing, evidence may have been contaminated, lab workers were not given competency tests, it could not be determined if testing equipment was routinely maintained or calibrated to ensure accuracy, and lab findings were hard to validate because notes, photos and other documentation were “almost nonexistent in the case file records.”

“If we have even one person in prison on evidence that was improperly done, that’s a huge problem,” said Worthy. “As prosecutors, we completely rely on the findings of police crime lab experts every day in court and we present this information to juries. And when there are failures of this magnitude, there is a ... betrayal of trust.”

A defense attorney uncovered the problems in Detroit’s crime lab when he had an independent expert examine evidence in a case involving firearms. Prosecutors intend to retest evidence from all cases less than five years old. A Michigan State Police report blamed an inadequate budget and lack of qualifications, training and equipment for the errors. Sixty-eight lab employees were reassigned. None were fired. There are plans to create a new Detroit crime lab staffed by the State Police.

In April 2008, 30-year veteran Nashville, Tennessee police officer Michael Pyburn resigned after he was accused of falsifying records to cover up a botched ballistics test. He had worked in the Nashville Metro Police crime lab for over a decade. The lab’s ballistics unit was shut down, and two other officers who worked in the unit were found to be unqualified and reassigned.

Arnold Melnikoff, formerly the manager of Montana’s state crime lab, testified in a 1987 trial that hair comparisons indicated there was less than one chance in 10,000 that Jimmy Ray Bromgard was not the man who raped an 8-year-old girl. By the time DNA tests exonerated Bromgard almost 15 years later, Melnikoff had moved on to become a chemist at the Washington State Patrol’s lab.

A peer review committee of forensic scientists referred to Melnikoff’s testimony in the Bromgard case as containing “egregious misstatements not only of the science of forensic hair examinations but also of genetics and statistics. These statements reveal a fundamental lack of understanding of what can be said about human hair comparisons and about the difference between casework and empirical research. His testimony is completely contrary to generally accepted scientific principles.”

Two other Montana men convicted due to Melnikoff’s dubious testimony have been exonerated by DNA testing. Washington officials fired Melnikoff in 2004 after an audit revealed problems with his lab procedures; he was also accused of exaggerating his testimony to assist prosecutors. [See: PLN, March 2006, p.28; Nov. 2004, p.12; Feb. 2003, p.10].

Barry Logan, director of the Washington State Patrol crime lab, resigned in March 2008 amid a scandal in which toxicology lab manager Ann Marie Gordon was accused of falsely claiming she had verified solutions used in breath-alcohol testing. Also, firearms and tool mark examiner Evan Thompson was accused in 2006 of shoddy work resulting in serious errors. Gordon’s fabrications invalidated the results of hundreds of breath tests in DUI cases. The effect of Thompson’s incompetence in the more than 1,000 criminal cases he worked on remains unclear. In an initial review of 13 of Thompson’s most complex cases, mistakes were found in all 13. [See: PLN, Oct. 2008, p.8].

Another Washington State Patrol crime lab examiner, Charles Vaughan, who formerly worked for the Oregon State Police crime lab, provided questionable testimony concerning gunpowder residue that sent two Oregon men to prison for life. They were later exonerated and released. [See: PLN, March 2006, p.28].

Two employees of the New York City Police Department crime lab were discovered lying about drug evidence in 2007. The employees dry-labbed, writing reports on tests they never performed. The head of the lab was transferred to another post.

In 2006, the U.S. Army crime lab at Fort Gillem, Georgia admitted that civilian employee Phillip R. Mills had falsified results in as many as 479 DNA tests. Mills had a history of shoddy work, including allowing contamination during testing. He had been suspended in 2004 and retrained, then suspended again in 2005.

Former FBI analyst Jacqueline Blake pleaded guilty in May 2004 to making false statements about following protocol in around 100 DNA analyses. She reportedly failed to compare DNA evidence with control samples, and resigned from the FBI in 2002. According to a report by the Inspector General’s office, she also “falsified her laboratory documentation” to conceal her misconduct. She was sentenced to two years’ probation and community service.

Oklahoma City Police Department crime lab employee Joyce Gilchrist was terminated in September 2001 after being accused of questionable hair and fiber analysis, destroying or withholding exculpatory evidence, overstating results and contributing to several wrongful convictions, including one that sent an innocent man to death row. [See: PLN, Dec. 2009, p.44]. Gilchrist was nicknamed “Black Magic” for her apparent ability to find DNA matches that other examiners could not. The FBI recommended a review of all of her cases.

From 1967 until her retirement in 1991, Janice Roadcap was a chemist for the Pennsylvania State Police crime lab. She provided bogus testimony such as explaining why semen from a rape-murder victim did not match the blood type of the defendant by claiming that antibiotics taken by the victim may have changed the semen’s blood type. The defendant, Barry Laughman, was convicted and, after spending 16 years in prison, exonerated by DNA evidence.

In a 1970 murder case, Roadcap claimed that a palm print had been made in the victim’s blood when, in fact, there were indications the blood had splattered across an already-present palm print. The accidental discovery of Roadcap’s original notes in 2001 was used by defense attorneys to win a retrial. Prosecutors then dropped the charges. By that time the defendant, Steven Crawford, had spent 28 years in prison.

Nor are such forensic mistakes relegated to the distant past. In the Ohio case of Derris Lewis, who was prosecuted for the murder of his twin brother in 2008, experts testified that Lewis’ palm print had been made in his brother’s blood on a wall at his mother’s home, where the homicide occurred. After a jury deadlocked on the murder charge and a retrial was scheduled, it was discovered the palm print had not, in fact, been made in the blood. Lewis, who spent 18 months in jail, received a $950,000 settlement from the City of Columbus in February 2010. [See: PLN, Sept. 2010, p.23].

Fred Zain, a former state trooper, was a serologist for the West Virginia State Police crime lab for 10 years and later worked as chief serologist for the Bexar County Forensic Science Center in San Antonio, Texas until he was fired in 1993. Zain was popular among prosecutors and police because the evidence he produced led to numerous convictions.
It was later learned that he testified about tests he didn’t do and for which the crime lab did not even have the equipment to perform. He also falsified his credentials. This was one of the earliest major crime lab scandals, which came to light in 1993 after the West Virginia Supreme Court released a damning report on Zain’s misconduct. See: In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 438 S.E.2d 501 (W.Va. 1993) [PLN, March 1998, p.24; Oct. 1994, p.5].

The report, by the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors, found “multiple incidents of misconduct on the part of former State Police serologist Fred Zain” that “may have resulted in serious miscarriages of justice in cases in which he was involved.” The report also found “evidence that Mr. Zain’s supervisors may have ignored or concealed complaints of his misconduct.”

The scandal came to light after DNA evidence exonerated Glendale Woodall, who had been convicted of a West Virginia rape in 1987 based on falsified serological tests. Zain had told the jury that the assailant’s blood types “were identical” to Woodall’s, and that only 6 in 10,000 West Virginia men had similar blood characteristics. Zain presented evidence in over 130 cases in West Virginia, and the state’s Supreme Court held that “[a]ny testimony or documentary evidence offered by Zain, at any time, in any criminal prosecution, should be deemed invalid, unreliable and inadmissible.”

It is interesting to note how the two states handled this incident. West Virginia compiled a list of the cases in which Zain testified, ordered court clerks to preserve the evidence in those cases, and retested blood samples. Texas, however, said defendants would have to challenge each case individually through the post-conviction process – without an appointed attorney in most cases – and those who had pleaded guilty under the threat of the false forensic evidence could not obtain any relief.

Zain was indicted on perjury charges in Texas but the charges were dismissed due to the statute of limitations. A West Virginia jury deadlocked on charges that Zain had obtained money (his salary) under false pretenses, and he died of colon cancer in 2002 before the case was retried.

At least nine defendants in West Virginia were exonerated following an investigation into Zain’s misconduct, and the state has paid $6.5 million in damages for wrongful convictions that resulted due to his fraudulent testimony. Woodall, who was exonerated in 1992, received a $1 million settlement.

Most recently, in March 2010, North Carolina’s State Bureau of Investigation (SBI) was accused of manipulating bloodstain evidence. The Attorney General’s office ordered an audit of the SBI blood analysis unit, including the work of Duane Deaver, a bloodstain expert and forensic trainer for 22 years who was suspected of tailoring test results to please prosecutors. Bloodstain analysis at the SBI lab was suspended in July 2010.

The previous year, a federal court held that Deaver gave “misleading testimony” that “falsely portrayed” he had found blood on a defendant’s boot in a capital murder case. The defendant, George E. Goode, Jr., had his death sentence reduced to life because his attorney had failed to challenge Deaver’s inaccurate testimony. See: Goode v. Branker, U.S.D.C. (E.D. NC), Case No. 5:07-hc-02192-H.

The audit of the SBI blood analysis unit ordered by the Attorney General, conducted by two former FBI officials, was released in August 2010. It found that lab examiners had overstated, excluded or falsely represented blood evidence in dozens of criminal cases, including three that resulted in executions.

The report called for a review of 190 cases, noting that “information that may have been material and even favorable to the defense of an accused defendant was withheld or misrepresented.” The deficiencies were blamed on “poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight.” In at least 40 cases, lab examiners reported there were indications of blood and no additional tests were performed; however, handwritten lab notes indicated that follow-up tests were negative or inconclusive.

“The documented policies and practices of our state lab support the long-held concern that North Carolina’s lab is the prosecution’s lab, not the justice system’s lab,” said Christine Mumma, director of the North Carolina Center on Actual Innocence.

The SBI’s crime lab director is being replaced and additional audits of the lab’s DNA and firearm and tool mark units have been requested. State lawmakers criticized ASCLD-LAB, the organization that accredited the SBI lab during the time the blood analysis unit was withholding or falsifying evidence. ASCLD-LAB, which is managed by three former SBI officials, accredits most forensic crime labs in the U.S. “Accreditation truly is the final check against this stuff, and it didn’t happen here,” said North Carolina state Representative Rick Glazier.

The above are just several examples of crime lab scandals and lab employees who intentionally or through incompetence presented false or misleading evidence in criminal cases under the guise of their scientific expertise. There have been many more such incidents, some of which are discussed in The Elephant in the Crime Lab, an article by Sheila Berry and Larry Ytuarte that appeared in the Spring 2009 issue of The Forensic Examiner.

Based upon the failings of crime labs, there is a strong argument for oversight by independent organizations. On June 3, 2010, though, the California Crime Lab Task Force, which had been formed by the state legislature three years earlier, voted to disband itself. The Task Force issued a report in 2009 that made 41 recommendations for improving forensic techniques, including improved training and increased staffing.
Consider that even if only a small number of forensic examiners are incompetent or corrupt, due to the large caseloads that crime labs handle they may produce faulty test results in hundreds or thousands of cases before their errors are caught.

But at least one organization, Crime Lab Report, which seeks “to properly frame the issues for those who require access to accurate information about forensic science,” believes that crime labs have been given a bad rap. In a July 16, 2008 study titled The Wrongful Conviction of Forensic Science, which critiques a report by the Innocence Project, Crime Lab Report editors John M. Collins and Jay Jarvis argue that “false eyewitness identifications exacerbated by bad lawyering, and in some cases, government misconduct” is responsible for most wrongful convictions, not forensic failures.

They suggest that the “Innocence Project needs attention and money to drive its public policy agenda. ...[and] taking on crime laboratories will turn heads more quickly than esoteric procedural debates among litigators,” and claim 
“[t]he overall statistical weight that can be honestly assigned to faulty forensic science is very small.”

That does not, however, explain the many well-documented examples of crime lab scandals and fraudulent or incompetent forensic experts such as those mentioned above and in the section below. Nor does it take into account the influence of junk science in wrongful conviction cases that do not involve DNA, which is the province of the Innocence Project.

Credentials? What Credentials?

Joseph Kopera, who had a 21-year career as a forensic expert, first as a firearms examiner for the Baltimore police department’s crime lab and then as head of the Maryland State Police fingerprint unit, perjured himself for decades in thousands of criminal cases by claiming he held degrees and certificates he was never awarded. He even tried to present a forged college diploma and falsely claimed that he taught courses at local universities to back up his claims. When defense attorneys confronted Kopera with the truth that he had not received any kind of college degree, he resigned and then committed suicide on March 1, 2007.

Dr. Saami Shaibani, a Wisconsin physicist, frequently testified for the prosecution in high-profile murder cases across the country, from South Dakota to Washington, D.C., on “injury mechanism analysis” – an amalgam of physics, trauma medicine and engineering.
He falsely claimed to be a clinical associate professor at Temple University until a defense attorney discovered that was a lie. “He’s a fraud. Basically, he was trying to create himself as an expert so he could run around the country and testify in these cases,” said Wisconsin defense counsel Stephen Willett.

In one case, Douglas Plude claimed that his wife had tried to commit suicide by taking pills and died with her head in a vomit-filled toilet. Shaibani testified that that scenario was impossible after positioning volunteers about the same size as the victim over a toilet and studying their movements. He said Plude must have forced his wife’s head into the toilet to drown her.

“[Shaibani] had women sticking their heads in toilets,” said Willett. “That’s just not science. How do you peer review that? How do you test his conclusions?”

Plude was found guilty of murder but his conviction was overturned in June 2008 by the Wisconsin Supreme Court, which cited Shaibani’s fraudulent testimony about his credentials and called his conduct “egregious.” Prosecutors are retrying Plude on the murder charges. See: State v. Plude, 310 Wis.2d 28, 750 N.W.2d 42 (Wis. 2008).

In May 2007, James Earl Edmiston pleaded guilty to two counts of perjury in California. He was the state’s expert witness on computers in two cases involving child pornography. Edmiston falsely claimed to have degrees from CalTech, UNLV and UCLA, and had often been used as an expert in both state and federal cases. He received a 2l-month federal sentence.

In the United Kingdom, Gene Morrison of Greater Manchester was revealed as a fraudulent forensic expert in 2007. Police called him a “complete charlatan.” Then four underage girls came forward accusing Morrison of sexual abuse. They said he used his prestigious position as a forensics expert to convince them that no one would believe them if they told anyone. Morrison was convicted of the sex abuse charges and sentenced in December 2009 to an indeterminate prison term with a minimum of 7-1/2 years; he had previously received a 5-year sentence for the forensics fraud. Police officials said they would re-investigate 700 cases in which Morrison participated. He had no academic credentials other than the ones he had purchased through mail-order.

Another U.K. case involved Trevor “Jim” Bates, who was found guilty of four counts of making a false written witness statement for claiming he had a degree in electronic engineering. A former TV repair man, he had been a top prosecution information technology witness in cases involving child pornography; his lack of credentials was unveiled after he appeared as a defense witness in a high-profile case. Bates received a two-year suspended sentence and was ordered to pay court costs of £1,000 (approx. $1,500) in April 2008.

And San Diego prosecutors were faced with the possibility of having thousands of DUI cases overturned in 2006. The reason? Prosecution expert witness Ray Cole, who said he had a degree in premedical studies and was an expert on the effects of alcohol and driving, had lied under oath. His degree was in political science. Nonetheless, he had testified as an expert for more than three decades.

What About Eyewitnesses?

If there are so many problems with crime labs and forensic experts, can we at least trust eyewitness testimony in criminal cases? No, according to eminent memory researcher and University of California-Irvine psychology professor Elizabeth F. Loftus. Memory is not recalled as a whole, but is pieced together anew each time, “more akin to putting puzzle pieces together than retrieving a video recording,” said Dr. Loftus. This allows errors to become incorporated into memories, corrupting them. Yet a person with a corrupted memory believes with total sincerity that the memory is an accurate account.

How can memory become compromised in a criminal investigation? One way is poor or suggestive police procedures. For example, if the police ask “Is this the man who committed the crime?” while showing the witness a man in handcuffs, such questioning is considered suggestive. Likewise, using multiple photographic lineups that share a single common photo – that of the person the police want the witness to identify – corrupts the integrity of the lineup process. Both of these methods are common, though, and witnesses frequently are allowed to testify regarding their identification of a suspect despite the suggestiveness of the identification procedure used by police.

There also have been studies that indicate cross-racial or ethnic identifications, e.g., when the victim and suspect are of different races, are especially prone to error. Additionally, when witnesses are not told that the guilty party might not be in a lineup or photo array, they may feel that they have to pick one of the suspects.

Dr. Loftus has found that stress at the crime scene or during the identification process, the presence of a weapon during the crime, the use of a disguise by the perpetrator, brief viewing times during the identification procedure and a lack of extreme characteristics in the suspect can all reduce the accuracy of eyewitness identification.

Another issue concerning eyewitness testimony is the practice of “recovering” repressed memories of events that may have never occurred, using suggestive and manipulative questioning by examiners. Repressed memories have been used in a number of cases, usually involving sexual abuse, though the accuracy of that method is unknown and likely unknowable. Dr. Loftus has expressed concerns about manufacturing false memories, and wrote that “it might be virtually impossible to tell reliably if a particular memory is true or false without independent corroboration.”

According to a 2009 Innocence Project report, of the first 239 DNA exonerations, 75% involved eyewitness misidentification. In 38% of those cases there were two or more eyewitnesses, such as in the prosecution of Stephan Cowans. Further, studies show that highly confident eyewitnesses are only slightly more accurate than less confident eyewitnesses. Thus, eyewitness testimony cannot be relied upon to correct or contradict errors that result from shoddy forensic work.

Improving Crime Labs

The Innocence Project estimates that about 50% of defendants exonerated by DNA evidence were convicted in part due to “unvalidated or improper forensic science.” Considering that DNA is only an issue in 5 to 10% of criminal cases, it is likely that bad science has resulted in numerous other wrongful convictions that have gone unreported. Also, even when the science may be sound, examiners often obfuscate their testimony by saying forensic results “are consistent with” or “cannot exclude” a suspect, when such language is at best vague and at worst intentionally misleading.

As one example, when Alejandro Dominguez was tried for rape in Illinois in 1990, a forensic serologist testified that blood typing on semen found on the victim could not exclude Dominguez as the rapist. The serologist did not tell the jury that 67% of men in the U.S. also could not be excluded, as the sample was a mixture from both the victim and the rapist and they shared the same blood group markers, which meant the victim’s sample could be masking the perpetrator’s sample. Dominguez served four years of a 9-year sentence and was exonerated by DNA evidence in 2002.

In April 2010, the Scientific Working Group on DNA Analysis Methods released new guidelines for U.S. labs that perform DNA testing, including recommendations to develop stricter criteria for analyzing samples containing mixed DNA. However, the guidelines are not mandatory and “not intended to be applied retroactively.”

The National Academy of Sciences and other experts on forensic science have made a myriad of suggestions for improving the competence of crime labs and the testing techniques they employ. Those suggestions include:

1) Make crime labs independent of law enforcement agencies such as police departments and district attorneys’ offices.

2) Create a strong and independent national crime lab oversight authority that can set standards for certification of labs and employees, employee qualifications, continuing education, training and methodologies.

3) Require crime labs to comply with those standards.

4) Submit forensic methods to rigorous scientific validation that includes determining error rates and realistic probability statistics.

5) Give crime labs as little information as possible when conducting forensic tests, so as not to influence the results. This may require the use of an intermediate office to strip investigatory information from evidence samples and replace that information with coded identification numbers.

6) Mandate that the crime lab employee who actually performs a forensic test be the person who testifies about that test in court. This was recently addressed by the U.S. Supreme Court in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) [PLN, Oct. 2009, p.8], in which the 2009 NAS report was cited by the Court as one reason for making this a requirement. In Melendez-Diaz, the admission of notarized certificates regarding forensic drug testing was held to violate the defendant’s Sixth Amendment right to confront witnesses.

7) End the practice of allowing forensic examiners to make exaggerated claims, and require them to acknowledge any uncertainties in or limits to their findings.

8) Sufficiently fund crime labs to permit the hiring of qualified personnel, continuing training and education, and the elimination of backlogs.

9) Subject lab results to random testing by other forensic labs. Just the knowledge that such testing may occur has been shown to dramatically reduce error rates in crime labs.
10) Provide court-appointed attorneys with forensic experts when the case involves forensic evidence and defense counsel requests an expert.

These reforms would go a long way toward ensuring that crime labs realize their full potential to help identify the guilty while protecting the innocent. However, reaction to the 2009 NAS report appears to indicate that most of the people and organizations involved in the forensic sciences are merely gearing up to protect their own turf rather than helping to reform the field of forensic investigation in general.

If that proves to be the response to the report, then any reforms will be piecemeal at best, crime lab scandals will continue to proliferate, and little will be done to ensure that junk science does not lead to the innocent going to prison or the guilty going free.

“I have no problem with forensic science. I have a problem with the impression that’s being given that those disciplines ... can make an absolute identification of someone, and that’s not the case,” said Terrence Kiely, a law professor at De-
Paul University and author of Forensic Evidence: Science and the Criminal Law.

“It’s the white coat-and-résumé problem,” Kiely continued. “[Forensics experts] are very, very believable people. And sometimes the jurors will take [their testimony] as a ‘yes,’ where the science can only say it’s a ‘maybe.’”

Or, in some cases, when the science in fact says it’s a definite “no.”

Ed. Note: This 15,000-word article merely scratches the surface of questionable forensic techniques and crime lab scandals. Problems with junk science, unreliable evidence and misconduct among lab workers are apparently endemic in the forensics field. Numerous law and academic journal articles have been written on these topics, and this PLN cover story easily could have been more extensive.

For more information, over 100 forensic misconduct cases are archived on the following website: Also, an extensive list of forensic and crime lab scandals are available here: The 2009 NAS report is available at: A list of cases involving forensic evidence that resulted in 116 wrongful convictions can be found here:

Sources: NAS press release, Arizona Daily Star, Associated Press, Baltimore Sun, Brownsville Herald, Chicago Tribune, Detroit Free Press, Detroit News, Durango Herald, Fort Worth Star-Telegram, Virginian-Pilot, Houston Chronicle, Houston Press, Los Angeles Times, Michigan Lawyers Weekly, New York Daily News, New York Law Journal, New York Times, San Francisco Chronicle, Seattle Times, USA Today, Washington Post, Enterprise Security, Forbes, Scientific American,,,,,,,,,,,,,,,,,,,,,,,,,,,, Science Insider,,,,,,,,,, Lexington Herald Leader,,,,,,,,,,,, Las Vegas Review Journal,,, Modesto Bee,,, Texas Monthly, News & Observer,,,