"Almost seven years ago, on February 18, 2009, in what was thought to
be a watershed development for the use of forensic science in the
courtroom, the National Academy of Sciences issued a groundbreaking
report called
Strengthening Forensic Science in the United States: A Path Forward (2009); the legal community calls it the "NAS report.".........In 2012, longtime federal district judge turned Harvard Law professor, Nancy Gertner, described the NAS report in an
article for the American Bar Association as "an extraordinary document": It questioned whether the underlying research justified the claims
forensic scientists were regularly making in courts throughout this
country, claims that they had been making for decades. It concluded
that for many long-used types of forensic science, including fingerprint
identification, firearms identification, handwriting and toolmark
identification, experts' conclusions were simply not supported by their
methodology or training. There was not an adequate basis for
individualization, for linking crime scene evidence to a particular
defendant, much less for conclusions that were announced to an
exceptional degree of certainty: This bullet matches the gun associated
with the defendant 'to the exclusion of anyone else in the world,' as
one ballistics expert testified, to my astonishment. Fast-forward almost 7 years after the NAS report was issued to an
article
by Spencer S. Hsu on January 22, 2016, called "D.C. Court of Appeals
judge faults overstated forensic gun-match claims"; it was buried in the
Public Safety section of the
Washington Post. Here is some of it: Claims that forensic experts can match a bullet or shell casing found at
a crime scene to a specific weapon lack a scientific basis and should
be barred from criminal trials as misleading, a D.C. Court of Appeals
judge wrote this week. The opinion, by Associate Judge Catherine
Easterly, is not binding on criminal prosecutions in D.C. Superior
Court, where firearms and ballistics evidence have been introduced in
scores of violent felony cases in recent years. Easterly's opinion came in response to an appeal
brought by Marlon Williams, 36 of Southeast Washington. He argued that
his murder conviction in the 2010 fatal shooting of Min Soo Kang, 37, of
Fairfax County should be overturned because, among other things, a D.C.
police forensics expert improperly declared a "unique" match between
bullet slugs recovered from the victim's car and a handgun found in
Williams's bedroom. "Those markings are unique to that gun and that gun
only," Luciano Morales testified, according to court filings. "Item
Number 58 fired these three bullets," he told the jury . . . .Hsu's article goes on to note that "the U.S. attorney's office for
the District called the error 'regrettable,'" agreeing "that forensic
practitioners should not state conclusions to an 'absolute' or '100%
[degree of] scientific certainty.'" Judge Easterly was having none of
it, according to Hsu, telling the government (and all of us) in her
opinion that the erroneous expert testimony in Marlon Williams' murder
trial was "more than regrettable. It [was] alarming," akin to "the
vision of a psychic" with "foundationless faith in what he believes to
be true." Despite Judge Easterly's belief that "[t]o uphold the
public's trust," errors like those in Williams' case should not be
permitted, Williams did not get a new trial, because his lawyer did not
object to the faulty expert testimony.........Optimistically, Hsu tells us that Judge Easterly's opinion "continues a
nationwide push for heightened scrutiny of forensic techniques and
testimony." "But, in fact," as the Honorable Nancy Gertner observed in
2012, "little [had] changed" since the 2009 NAS report's issuance. And
now, four years later, despite Judge Easterly's bold stance, it seems
the more people talk about improving the use of forensic evidence in the
courtroom, the more things stay the same."
About the Author: Stephen Cooper is a former federal and D.C.
public defender. He writes full-time and lives in Woodland Hills,
California.