Eye on the Courts: Did We Get Sucked in on the Forensic Evidence in Ferguson?

Forensic

Back in December, citing the work of Professor Ronald Rotunda at Chapman University, Fowler School of Law, we noted that the Ferguson confrontation between Michael Brown and Officer Darren Wilson, among other factors, “also illustrates the problems with eyewitness identification.”

Professor Rotunda writes, “Next to a DNA match, many people probably think that eyewitness identification is most persuasive. Yet, this persuasive evidence is often wrong. It is not wrong because witnesses lie, although some of them may. It is wrong because our memories play tricks with us.”

Professor Rotunda writes that in releasing the grand jury testimony, Mr. McCulloch unwittingly “warned us of the dangers of eyewitness identification.”  Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence.

Defender of Officer Darren Wilson are quick to cite the physical evidence as backing up his side of the story.  However, William Lynch recently argued, “There are also major shortcomings to almost all forms of “scientific” evidence used in court cases, namely forensic evidence and expert witnesses. Yet the public has been conditioned, thanks in no small part to CSI and other crime shows, to think that forensic science is perfect.”

Mr. Lynch isn’t necessarily taking sides in the Ferguson debate other than to cast doubt on the perceived certainty of forensic evidence.  He notes that it is “important for criminal investigations and subsequent convictions.”  At the same time, “the depiction on television of forensic experts doing 100% accurate science is about as realistic as their delivering snappy one-liners. Scientific methods have the potential for error, both flawed science and human error (or humans just plain lying). Nevertheless, as in the case of eyewitness testimony, juries are not informed of the shortcomings.”

He argues, “Most folks would be quite surprised to learn just how misguided our trust in forensic evidence is. A 2009 report from the National Research Council went into exhaustive detail on the substantial unreliability of forensic science.”

He argues of the commonly used methods, only DNA analysis has “rigorous proof that it can reliably link individuals to evidence.”  Worse yet, the accuracy rates for most forensics science practices are unknown because many have not been tested in scientifically proven double-blind methods.  He writes, “There is not even sufficient evidence that each person’s fingerprints really are unique. Nevertheless, we continue to put faith in forensic evidence as irreproachable. And the lack of standard protocols across so many different police jurisdictions make it even harder to determine accuracy.”

Mr. Lynch notes the case of Cameron Todd Willingham – one that we have written on extensively, where “the science leading to a conviction is later debunked, but that still may not be enough to sway the criminal justice system.”

He writes, “The accepted science at the time of his conviction concluded that it was arson and Willingham was sentenced to death. By the time of his execution date 12 years later, advances in science soundly discredited the earlier “proof” that it was arson, which was even acknowledged by one of the experts in the original investigation. However, Rick Perry was unmoved and granted no stay of execution, resulting in Willingham being executed by lethal injection. A postmortem analysis of the investigation concluded that its methodology was “hardly consistent with a scientific mindset” and “more characteristic of mystics or psychics.””

Mr. Lynch also notes that sometimes the problem is that the forensic science is not even tested.  He writes, “There are cases like Annie Dookhan, a Massachusetts drug analyst who lied about her credentials and fabricated test results in order to “boost her work performance”; or NYPD lab technician Mariem Megalla, who faked test results because it was less work for her, including not having to walk to another part of the building to do more paperwork.”

He added, “so-called “expert” witnesses and their testimony are not always accurate. The reality is that one can become a certified “forensic consultant” by paying $500 for a 90-minute online course. For an extra $50, they will send you a white lab coat to help cultivate the illusion that you have expertise. Or a court may allow expert testimony based on nothing at all, as happened to Lloyd Ingram, whose conviction for cocaine possession was bumped up to intention to sell because a detective said that was the case based on his “professional opinion,” without a shred of explanation. On the other extreme, a court may discredit an expert witness based on subjectivities, as was the case in a New York City civil suit where a judge lambasted an expert witness and barred her from testifying further because she sighed.”

William Lynch having established the questionable foundation of forensic science then takes us back to Ferguson and the case of Michael Brown.  He argues that there “needs to be healthy skepticism for forensic evidence” and that skepticism is lacking.  For example, “Take for example the faith shown by a Darren Wilson defender in this Washington Post op-ed that boasts how the physical evidence corroborates Darren Wilson’s account. (The same writer came up in my last column for his doctrinaire faith in eyewitness testimony.)”

So here are some examples.  Evidence is sited from gunshot residue found on Mr. Brown.  “The medical examiner concluded soot in one of Brown’s gunshot wounds is consistent with that caused by gunshots from a close range, confirming that Brown was not shot while running away,” he writes.

But he points out, “analyzing gunshot residue is now considered highly suspect as evidence, in large part because of how much contamination can occur from contact with other things during the investigative process.”

The suspect, for example, “in a shooting might have residue on his hands not from firing a gun, but from residue on handcuffs or an officer’s hands when taking him in.”

Mr. Lynch adds, “there’s also the fact that the medical examiner found no soot in six other entry wounds.”

Another defense of Officer Wilson lies in the trajectories that would appear to support Officer Wilson’s account.  However, Mr. Lynch argues, “analyses of gunshot wounds are also highly subjective. There are some things that can pretty much be conclusively determined, such as exit and entrance wounds, but the National Research Council report concluded “some experts extrapolate far beyond what can be supported.””

“This includes extrapolating the directions in which bullets hit, which is not conclusive because damage made by a bullet will not be perfectly linear,” he writes. “However, the autopsy report for Brown includes matter-of-fact determinations of the directions in which bullets entered his body, with no mention of any shortcomings to this science.”

But the “fuzzy forensic science” goes both ways.  For example, the Brown family hired “self-proclaimed forensic expert, namely Shawn Parcells, who was an assistant for the Brown family’s autopsy and made many television appearances, but whose credentials did not hold up to media scrutiny.”

However, he noted, “despite the media hyping his involvement, there is scant evidence that Parcells was making determinations in the autopsy: The actual autopsist for the Brown family was the highly regarded pathologist Michael Baden, who in his grand jury testimony described the role of assistant as being “to help move the body and things like that,” often done by a funeral director.”

Mr. Lynch wants to be clear.  “None of this is to say that we need to toss all the evidence out and start at square one.”  Moreover, “Nor am I saying that the evidence supporting Wilson’s account is totally false.”

Instead he wants to argue for skepticism that people understand that forensic science “is not absolute like on television.”  He also argues that “we must take steps to improve our use of forensic evidence.”

This includes “informing jurors of shortcomings; developing standardized protocols for analyses and accreditation; further research into the reliability and margin of error for different practices, and how to improve accuracy; proper oversight of technicians, including holding lying technicians accountable; and stopping the news media from reporting as fact what the evidence merely suggests.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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38 Comments

  1. zaqzaq

    The value of gunshot residue along with many other forms of physical evidence depends on how well law enforcement preserve the crime scene and collect the evidence in order to prevent contamination.  The opinion that the gunshot residue from the area around the wound on Brown’s thumb indicated that it was fired at close range is corroborated by the location of Brown’s blood (DNA tested) located inside the police vehicle and the round located inside the drivers door of the police vehicle.  Thu culmination of this evidence indicates that Brown’s injured hand was inside the patrol car when the injury occurred.  Two individuals testified concerning the struggle at the patrol car.  Wilson described a struggle with Brown inside the patrol car and Dorian Johnson testified that Brown’s hands did not enter the patrol car.  Only one can be correct.  The grand jury hearing this evidence decided that question.

    Bullet entry wounds on the torso of a body indicate the direction the body was facing when the injury occurred.  Arms and legs are more problematic.  The wounds to Brown’s torso were not in the back but in the chest.  Those wounds indicate that Brown was facing Wilson when those wounds occurred.  Again Wilson’s and Johnson’s testimony conflicted in this area.  Johnson claimed Wilson shot Brown in the back and Wilson denied this.  Again, the grand jury decided this conflict in the testimony.

    There were many forms of physical evidence recovered (shell casings, blood spatter, audio tape of gunshot pattern, … .) that were used to determine what happened that day.  Law enforcement and defense experts both testified in front of the grand jury.   When all the physical evidence is looked at it paints a picture that supports Wilson’s testimony.

     

    1. Davis Progressive

      “The value of gunshot residue along with many other forms of physical evidence depends on how well law enforcement preserve the crime scene and collect the evidence in order to prevent contamination. ”

      so let’s pause your comment here.  this is the real problem of trial by grand jury because we don’t know what scrutiny on the forensic tactics would have brought in terms of information.  look at how poorly the evidence was handled in the oj case – that probably more than anything else allowed simpson to go free.  i’ve seen time and time again where evidence has been poorly handled and crime scenes are compromised.

      finally, the most important piece of this is really unknown – we do not know how far away wilson was from brown when the fatal shot was fired.

      1. zaqzaq

        I agree that the physical evidence does not pin down the distance Brown was from Wilson when he was approaching Wilson.  How far was he when the first shot and last shot were fired?  We will never know.  Individuals ability to estimate distance varies and the stress of the situation cannot help here.  Wilson may have perceived that Brown was closer to Wilson than he really was.  Witnesses that observed all or parts of the incident also have bias and prejudices that impact their ability to be accurate.  We will never know for sure.  We do know from the blood trail that Brown was moving towards Wilson when he was shot though.  Statements by witnesses that are clearly inconsistent with the physical evidence may impact their credibility when describing other things that are not pinned down by the physical evidence.

    1. South of Davis

      David wrote:

      > Did We Get Sucked in on the Forensic Evidence in Ferguson?

      I was wondering how long it would take for Frankly to get “sucked in” to this debate…

      1. Frankly

        Yes – I did get sucked in.

        I think it would be good for those complaining about this to research what other countries are doing that we can consider best-practice.   As I understand, the US leads the world in the practice of collecting evidence.  Especially forensic evidence.  Complaining about the lack of perfection when perfection is unattainable is a waste of time.

        What gets my goat is the inference that the entire system/process is broken.  I think the entire system functions pretty well in a country of 310 million people afflicted with a broken moral compass and protected by a pervasive victim mentality.

        The US is a country designed to reward freedom and prosperity to those that make the right choices in life… and those that don’t and fall below the line of crime and punishment lose their freedom and have their opportunities for prosperity severely diminished.   And they become “customers” of government social and judicial service which is “not a loving institution”.

        Very few that have the potential of for getting harsher punishment because of flawed evidence are above the line people.  They are people that through their own poor choices in life have fallen below the line and become a “customer” of government social and judicial services.

        If you don’t want to be impacted by imperfect evidence, then don’t make bad choices in life that result in you falling below the line and being made a customer of government social and judicial services.

        1. Davis Progressive

          the better question is not what countries are doing what we consider best-practice, but rather what states and locales.  in recent years, for example, new jersey moved light years ahead in terms of eyewitness identification safeguards, but we don’t have those in california – why not?  why did governor brown veto ammiano’s bill that would have held prosecutors more accountable for negligent and preventable errors.  the whole system is not broken, it is has a lot of key broken parts.  you don’t even seem willing to acknowledge it.

        2. Frankly

          New Jersey is one of the most crime-ridden states in the nation.   Camden is routinely listed as one of the most dangerous cities in the nation.   I don’t think New Jersey is a good candidate for “best practice” unless you are talking about more crime.

          I would be more apt to acknowledge broken parts and support efforts for improvement if it were not for the accusatory tone and absolutism in criticism.

          Frankly, (because I am) this continued attacking of law enforcement and judicial over the Michael Brown incident appears to be very ideologically-driven.

        3. Biddlin

          ” in a country of 310 million people afflicted with a broken moral compass and protected by a pervasive victim mentality.”

          You really hate America and Americans.

          ;>)/

    2. Barack Palin

      Forensic evidence is unreliable.

      I wonder if David would consider forensic evidence as unreliable when it is used to get a black inmates off of death row?

      1. David Greenwald

        Most of the time, the unreliability of forensic evidence has been used to get black inmates off death row where they were wrongly convicted. But in general, I’m in favor of making sure that evidence says what it is purported.

  2. Barack Palin

    Most of the time, the unreliability of forensic evidence has been used to get black inmates off death row where they were wrongly convicted.

    If it is unreliable and was used to get the inmates off how do you know they were wrongly convicted?

    1. David Greenwald

      Often the way it works is there emerges evidence of innocence such as DNA testing that eliminates the convicted individual and possibly identifies a new culprit. Then you work backwards and figure out where things went wrong.

      There was also a 2009 investigative report that testing the reliability of some of the forensic techniques, and it was quite poor. There’s a link to that above you might want to check out.

  3. TrueBlueDevil

    But we do have some irrefutable evidence.

    We know that the officer in this case worked for years in the community, and never before had his gun fired off in his police car in mid day. We know that he interacted with tens of thousands of community members, and tens of thousands of young black males, and never was his gun dischared in his police car.

    We do know irrefutably that Michael Brown tossed around a non-white store clerk half his size like a rag doll (assault and battery, a felony) minutes before his encounter with the officer, and we know that he had marijuana in his system. Recent studies have proven that marijuana retards the development of the teenage brain, can cause psychotic episodes, and impairs high-level brain development.

    Is it a coincidence that this young man and Daniel Marsh were heavy marijuana users?

    1. Davis Progressive

      “We know that the officer in this case worked for years in the community, and never before had his gun”

      he was only 28 years old, perhaps he had never encountered a situation like that before.

      “Is it a coincidence that this young man and Daniel Marsh were heavy marijuana users?”

      what about the millions of marijuana users who sit around their house and eat lots of chocolate bars?

      1. TrueBlueDevil

        DP, I recently read an article that stated that driving while stoned deaths was up 300%, and authorities expect the numbers to continue to rise as police departments distinguish between pot and DUI, and as pot use spreads. I’ve also rumblings that Colorado is a mess.

      2. TrueBlueDevil

        DP, from The New York Times:

        DENVER — “Five months after Colorado became the first state to allow recreational marijuana sales, the battle over legalization is still raging.

        “Law enforcement officers in Colorado and neighboring states, emergency room doctors and legalization opponents increasingly are highlighting a series of recent problems as cautionary lessons for other states flirting with loosening marijuana laws.

        “There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say. Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana. Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.”

        http://www.nytimes.com/2014/06/01/us/after-5-months-of-sales-colorado-sees-the-downside-of-a-legal-high.html?_r=0

        And from CNN: “…As a result, calls to poison centers have skyrocketed, incidents involving kids going to school with marijuana candy and vaporizers seem more common, and explosions involving butane hash oil extraction have risen. Employers are reporting more workplace incidents involving marijuana use, and deaths have been attributed to ingesting marijuana cookies and food items.”

        http://www.cnn.com/2014/07/10/opinion/sabet-colorado-marijuana/

        1. Alan Miller

          “There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say. Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana. Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.”

          . . . because these things never happened when the drug was illegal.

        2. Rich RifkinWDE 73

          BLUE DEVIL, It is always wrong to judge a policy on the basis of an anecdote, even if your story in fact was a consequence of legalization, a “fact” which seems very dubious.

          Instead, if you care to really understand the impact of a policy change like legalizing marijuana, you should look at things like the rates of serious crimes and deaths on freeways and teen usage of drugs, and so on.

          Here are the relevant statistics which should impress you one way or another:

          Roadway deaths in Colorado dropped by 25 percent in 2014 compared to 2013, the Washington Post reported; total ‘Part 1′ crimes in Denver (Homicide, sexual assualt, robbery, aggravated assault, burglary, larceny, auto theft, and arson) decreased 7.9 percent through November 30, 2014, compared to the same period in 2013; and Colorado teens reported a two percent decrease in pot smoking according to the last reporting period.

        3. TrueBlueDevil

          Rich, the articles I read said that there will be a time lag as they compile statistics, and look at the whole overall situation.

          However, there has been a big problem with edible marijuana products which they didn’t anticipate, and neighboring states are complaining about problems. As the above links note, there has also been an uptick in things like the exposure of younger teenagers or children to marijuana.

          There is also the whole fact that teens who smoke pot have 6x the chance of having a psychotic episode, and that teens who use pot frequently can lose up to 8-10% of their brain cells, not inconsequential numbers. So I guess some might consider it murdering brain cells.

          1. Don Shor

            Marijuana use by teens is illegal. Everywhere. And it has not increased among teens in Colorado.

        4. South of Davis

          Alan wrote:

          > because these things never happened when the drug was illegal.

          I wonder if even a single person in CO who didn’t smoke pot said “wow now that pot is legal I’m going to get stoned every day”?

          As Alan points out plenty of people have been smoking pot for decades in CA despite the fact that it is still illegal (There were quite a few pot smokers at the Led Zeppelin Day on the Green and when Dillon played with the Dead about 10 years later on the same outdoor stage)…

           

    2. South of Davis

      TBD wrote:

      > We do know irrefutably that Michael Brown…

      Your story sounds a lot different from the story my left of center friends tell me about a “Gentle Giant” “College Bound” “Teenager” named Michael who was “Executed” by a “Racist Cop” who didn’t care that he had his “Hands Up” and was yelling “Don’t Shoot”…

      1. TrueBlueDevil

        You’re correct, but their story isn’t irrefutable. Multiple black witnesses testified to seeing the exact opposite, and the evidence also points in the same direction.

  4. Davis Progressive

    A new investigation found that New York City’s police officers are quick to resort to chokeholds in confrontations, even though department policy prohibits them.

    The newly minted inspector general’s office for the New York Police Department released a 45-page report on Monday detailing 10 instances of police officers using the banned maneuver.

    this probably explains why a sgt would be overseeing the garner case and allow a chokehold…  it’s standard operating procedure.

    1. tj

      Forensic Labs are usually part of the D.A.’s dept. or the County Sheriff’s office, so there’s built in bias and plenty of room for fabrication.

      The forensic lab in Wilson’s case is part of the state sheriff’s office.  There’s no way their results can be trusted.

      1. zaqzaq

        “There’s no way the results can be trusted”?  With Eric Holder’s FBI looking over their shoulders and participating in the investigation.  When the physical evidence does not support the racist cop murdered the lovable giant narrative that can only be because the employees in the forensic lab covered up for Wilson and fooled the FBI along the way.  Or were the white FBI agents part of the conspiracy.  Really??  You must be spending way to much time in Colorado smoking dope.

        We will still be waiting for for Holder’s DOJ to finish their investigation of Zimmerman and Wilson when Obama leaves office.  This is the biggest sham.  Holder does not want to say the shootings were justified and that no federal charges will be made so he will not conclude the investigation.

        1. Dave Hart

          It is just as likely using your scenario logic that Holder and the DOJ would uphold the Ferguson Grand Jury findings consistent with Obama administration’s desire to “work across the aisle”, etc.   There are so many political layers to high profile cases like this one that I don’t expect an accurate view of the truth to be known for a long time or short of multiple accounts from different perspectives.   One thing for sure is that the Michael Brown case would have been like hundreds others except for civil engagement by citizens who decided they have had enough mistreatment and abuse.  Widespread civil disobedience and demonstrations aren’t fueled and sustained by boredom or selfish and self-absorbed narcissism.

           

  5. tribeUSA

    Yes, I think it is widely understood that there are uncertainties (large, medium, or small) associated with any one piece of forensic evidence. However, in the case of the Brown shooting, there was an overwhelming number of items of physical forensic evidence, i.e. many individual small pieces of physical evidence, that, taken together, were entirely consistent with the cops version of the events. There was almost enough physical forensic evidence to show beyond a reasonable doubt that the cop was innocent in this particular case. Conversely, there was no forensic evidence that supported an allegation of unjustified execution style murder by this police officer, as the media and many racial agitators, including politicos, were marketing to the general public.

    I understand that this was a grand jury proceeding; but in jury trials isn’t it true that expert witnesses are typically brought forward from both the prosecution and defense side to point out the strengths and weaknesses of each key piece of forensic evidence?

    1. zaqzaq

      Either side can call an expert witness to testify to aspects of the physical evidence.  There would also probably be use of force experts to explain the officer’s options.  In the Zimmerman trial the prosecution team changed their position and adopted the defense theory that Martin was on top of Zimmerman when he was shot in their closing argument.  This is an example of a defense expert witness debunking the prosecution theory of the case.  If this case had proceeded to trial Wilson’s attorneys would have been able to present expert testimony in a number of areas and aggressively cross examine the witnesses which they did not have the opportunity to do in the grand jury.   After reading Dorian Johnson’s testimony there was significant fertile ground to attack him.   Brown’s family’s attorneys would have no role in the criminal trial.

  6. Tia Will

    Frankly

    I would be more apt to acknowledge broken parts and support efforts for improvement if it were not for the accusatory tone and absolutism in criticism.

    I doubt that Frankly. Even when reporting has been even handed, even when the call is to wait and see what the evidence shows you have stated over and over again which “side ” it is that you take regardless of what may subsequently be revealed. Some examples

    I try and put myself in the shoes of a cop”.

    I have much more empathy for the cops in this situation than I do the protesters. Mistakes were made on both sides, but the protesters brought it on”– 12/20/2011 in regard to the pepper spraying incident prior to the determination that the use of the pepper spray was not warranted with inappropriate use of equipment for which the officers were not trained. 

    It is more than obvious that the core responsibility of this unfortunate event rests with the Moreno brothers.”  9/17/2014

    Written in defense of the activities of Mr. Godden who had been drinking and was noted to “be belligerent” to many at the scene, not just the Moreno brothers. From the accounts that I read, it would seem that Mr. Godden’s actions were equally egregious to those of the  Moreno brothers, and the basis of their initial misconduct was solely on the testimony of Mr. Godden’s good friend. Your statements in defense of Mr. Godden seemed to me to be solely on the basis of him being a police officer, even though he was off on disability, even though he was clearly one of the participants in the brawl when he had no legal right to be participating ( was not exercising his options as a police officer) and yet he is the only one you defended.

    I think that your frequent defenses of police decision making regardless of circumstance belie your statement that any means of presentation ( even the most even handed and objective) would make you likely to acknowledge any “broken parts” or “support efforts for improvement”. And that is a pity. Because you are bright and articulate and passionate and would have so much potential to contribute if you would be willing to drop the “police first and foremost” view through which you seem to see the world which is not one bit more objective than those who ,as you say “play the racist card” every time there an allegation of excessive use of police force.

     

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