In Criminal Cases, Should Science Only Serve the State?

Forensic scientists who testify for criminal defendants are under fire. They ought to be praised.

Last month, the National Academy of Sciences (NAS) released a wide-ranging report expressing alarm at the way forensic science is used in the courtroom. Among the many problems the report addressed was the tendency of many states to see state-employed forensic experts not as independent scientists, but as part of the prosecution's "team."

The problem with that sort of arrangement is obvious: It introduces pressure—subtle or overt—on scientists to produce results that please police and prosecutors. The NAS report recommends that state-employed forensic experts be neutral. Today, far too many crime labs and medical examiners report to the attorney general of their states. Others report directly to the prosecutors in their jurisdictions. Ideally, government medical examiners would not only be independent of the state's law enforcement agencies, they would be free to testify against any state claims unsupported by scientific evidence.

But that isn't the case in most of the country. In fact, it's almost universally accepted—among both prosecutors and medical examiners—that a government medical examiner should never testify against the district attorney who serves in the same jurisdiction, even if the medical examiner strongly disagrees with the prosecutor's conclusions. Lately, that already dubious notion seems to be expanding. Many law enforcement officials believe that government forensic experts should be barred from testifying for the defense in any case, even in other jurisdictions.

Earlier this month, the Minneapolis Star-Tribune reported that Minnesota District Attorney James Backstrom rebuked his county's medical examiner, Dr. Lindsey Thomas, because members of her staff had testified for defense attorneys in other counties, calling into question the conclusions of those counties' medical examiners. In one email to Thomas (you can read all of the emails here), Backstrom called the practice "a conflict of interest," and complained that the "added credibility attached to someone who is currently a coroner/medical examiner in another community who testifies as a defense expert makes any prosecution more difficult." In Backstrom's view, the actions of Thomas' staff were no different than if he were to testify that he disagreed with another prosecutor's strategy or conclusions. Backstrom ended one email by threatening to block Thomas's reappointment as the county's medical examiner if the practice continued.

Backstrom not only exhibited a fundamental ignorance of the purpose of forensic science in the courtroom, he also tellingly revealed a striking philosophical difference between the fields of science and law enforcement. Law enforcement officers—be they police officers or prosecutors—assume a sort of fraternity that precludes them from criticizing one another. Cops almost never testify against other cops—even when a fellow officer has broken the law—and prosecutors rarely criticize other prosecutors. Scientists, on the other hand, are not only willing to criticizing other scientists, but the process of peer review—a fundamental component of the scientific method—actually depends on such criticism. Backstrom's efforts to undermine peer review are alarming, particularly given that his efforts are aimed at the courtroom, where so much is frequently at stake.

Sadly, Backstrom's view is all too common. Last week, the local Fox affiliate in Atlanta ran two investigative pieces critical of Georgia's chief state medical examiner, Dr. Kris Sperry. The station's big scoop was that Sperry—who has an impeccable reputation among his peers—was regularly testifying for criminal defendants in other jurisdictions. The report quoted a sheriff and former county coroner in Harrison County, Mississippi, both still angry at Sperry for contradicting the state medical examiner's testimony in a murder case. The piece included quotes from both Mississippi officials stating that a medical examiner who gets a government paycheck should never contradict another government medical examiner in court. One Tennessee official said the practice was akin to a police officer testifying against another police officer.

Again, this is nonsense. We need more doctors willing to hold their rogue colleagues accountable, not less. For the last three years, I've been reporting on the severe inadequacies of Mississippi's criminal autopsy system. In particular, I've reported on Dr. Steven Hayne, who over the last 20 years has done 80 to 90 percent of the state's autopsies, carrying an impossible workload of some 1,500 to 1,800 autopsies per year (by his own account), despite the fact that he isn't board-certified in forensic pathology. Hayne's colleagues have known for years that he's little more than a rubber stamp for prosecutors. He has inflicted incalculable damage on the state's criminal justice system.

Kris Sperry, along with several current and former state medical examiners in Alabama, is one of the few doctors who has been trying to hold Hayne accountable. Over the years, Sperry has written letters to professional organizations asking for Hayne to be investigated. Yes, he has also testified against Hayne and other disreputable Mississippi medical examiners in court. He ought to be lauded for that, not condemned.

The other problem here, as the NAS study points out, is that there is currently a critical shortage of board-certified medical examiners. If every forensic pathologist with a government job or contract were barred from ever testifying for criminal defendants, there wouldn't be many doctors left to testify. The few who were left couldn't possibly testify in every case where they're needed—and in those cases they do take, they could easily be impeached by prosecutors as guns-for-hire.

But then, maybe that's the point.

You'd think that a forensic expert who tells the jury that he testifies for both defense attorneys and prosecutors would carry more weight on those occasions when he testifies for the state. That would show a doctor who testimony follows the science. But for prosecutors like Backstrom, the primary concern is not embarrassing his fellow district attorneys, and ensuring that credible doctors with state credentials don't screw up another prosecutor's case—even if that case is based on faulty science.

It takes an odd definition of justice to believe that state-paid scientists should only use their expertise to help win prosecutions. Unfortunately, that view seems to be the prevailing one.

Radley Balko is a senior editor at Reason magazine.

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  • TofuSushi||

    John should be arriving any moment.

  • Jeff P||

    "It's MOIDER I tell you!"

  • ||

    Quincy! If they were only all like him.

    Or like Sam, if we just can't have any Quincy.

  • EJM||

    "Sam! You're a genius!"

  • ||

    Solution: A dollar for dollar match between the prosecutor and public defender's offices on every case. Whatever the DA spends to convict, the PD gets to acquit.

  • Hormonal Redhead||

    FTA: " 'added credibility attached to someone who is currently a coroner/medical examiner in another community who testifies as a defense expert makes any prosecution more difficult.' "

    Well, duh. If prosecution was any easier, everyone would be in prison.

  • Hormonal Redhead||

    @SugarFree: I like that idea. But it's probably not "tough on crime" enough to get enacted. :-/

  • EJM||

    Or like Sam, if we just can't have any Quincy.

    And, if we can't have Sam, there's always Chief Paul Lanigan and Rabbi David Small.

    (reference explained here)

  • Jeff P||

    Does anyone mind if I post some of my Jack Klugman-in-cling-wrap slash fiction?

  • @||

    Quincy is dead; long live Ducky

  • SpongePaul||

    Quincy is dead; long live Ducky
    ________________________________________
    Don't forget about the Abbey. SHe is hot and not boring like ducky.

  • ||

    Does anyone mind if I post some of my Jack Klugman-in-cling-wrap slash fiction?

    Mind?!? I demand that you do so.

  • Warren||

    Does anyone mind if I post some of my Jack Klugman-in-cling-wrap slash fiction?

    Mind?!? I demand that you do so.


    Better yet, post the audio of it being read by a speech synthesizer.

  • TofuSushi||

    This is that gallows humour that Obama was talking about on 60 min. last Sunday, yes?

    The Hope and Change revolution is upon us.

  • ||

    """It takes an odd definition of justice to believe that state-paid scientists should only use their expertise to help win prosecutions."""

    What definition of justice does the government use that isn't odd these days?

  • ||

    Better yet, post the audio of it being read by a speech synthesizer.

    Did Jeff P win the Kindle 2?

  • ||

    Even though I like them and the liberty implication are gross, I think a 10 year moratorium on cop shows would do our judicial system a world of good.

  • @||

    Don't forget about the Abbey.

    Priapism Alert!!!!!!!!

  • TofuSushi||

    It takes an odd definition of justice to believe that state-paid scientists should only use their expertise to help win prosecutions.

    That settles it. Until this changes, Gaza will never be free.

  • Jeff P||

    Part one:
    "This is the pool cue I used in that Twilight Zone episode," Jack Klugman said to me through his vocoder as we passed the display case, "I whacked Jonathan Winters in the nuts with it when I found him trying to talk Brett into a threeway with Liz Montegomery."

  • ||

    Look, if you were arrested then you're obviously guilty of something. If you didn't take the plea deal then you're wasting everyone's time and deserve everything you get.

    And stop whining about "justice", that's just childish.

  • Untermensch||

    Is it Kris Sperry or Kris Perry? Both versions appear in the article. It's a simple oversight, but Balko should correct it to have the proper name in all locations.

  • ||

    Good article. There's not much to disagree with though. I strongly support seperating the forensics experts from the DA/LEO tag team as much as possible.

  • EJM||

    Since Jeff P brings up the one-time Mrs. Klugman, here's one of the very, very few surviving episodes from the 1970s ABC version of "Password" (where Jack and Brett play against each other).

    (Darn you, ABC, for wiping over four years' worth of "Password"!)

  • EJM||

    (Darn you, ABC, for wiping over four years' worth of "Password"!)

    Ugh. I messed up the tags for "wiping" above.

  • ||

    Password was a damned decent game show. As a child we had the home version with the little red windowed faux leather sleeves that you slid the the cards into so you could read them. One of those in mint condition would probably bring in a tidy sum.

  • Jeff P||

    Would anyone mind if I posted a lengthy exerpt from my self-published Bill-Cullen-killed-Alan-Ludden conspiracy theory book?

  • EJM||

    Would anyone mind if I posted a lengthy [excerpt] from my self-published Bill-Cullen-killed-[Allen]-Ludden conspiracy theory book?

    Would the conspiracy involve the weeks when Bill served as the temporary substitute host of "Password Plus" (and, consequently, Geoff Edwards subbed for Bill on "Chain Reaction")?

  • d||

    Nice article. Go IU!!!

  • Jeff P||

    EJM: Tom Kennedy was also involved, but it goes much deeper. Look, $25,000 Pyramid was a thinny-veilled Freemason front. Cullen's lengthy tenure on I've Got a Secret was an obvious guilty cry for help. Don Pardo had Art Fleming killed so Merv Griffin could seize control of Jeopardy. And slowly Bob Barker's plan to spay and neuter each of us began to take effect...

  • ||

    Great article.

  • EJM||

    Look, $25,000 Pyramid was a [thinly veiled] Freemason front.

    Would that explain Shatner's unusual behavior on "Pyramid"? (See here and here.)

    Don Pardo had Art Fleming killed so Merv Griffin could seize control of Jeopardy.

    How do you then explain the major rule changes that were implemented for the '78-79 version--which Art hosted, but John Harlan did the announcing?

    (And, what about Alex Trebek: How does your conspiracy explain his actions during the final NBC "High Rollers"?)

  • ||

    In Houston, if you subpeona a HPD officer to testify for the defense, they are not allowed to wear their police uniform. Of course, when a HDP officer testifes for the prosecution, you bet your ass they've got their uniform on - it's required.

    Not only do I have a problem with the forensic scientists working for (as in under) the prosecution, I don't think it's fair that the prosecution gets to submit all the evidence it wants for taxpayer-funded forensic testing. The FBI crime lab provides FREE (as in taxpayer-funded) forensic science for state prosecutorial/law enforcement agencies.... but if I, as a defense attorney (also a licensed officer of the court) send in a piece of evidence for DNA testing, they will reject it. They certainly won't do the testing for free. DNA testing is expensive. But why should the taxpayers only pay for it when it helps the prosecution? And what happens when it doesn't end up helping the prosecution? They should turn that fact over as Brady evidence, but do they? Maybe.... sometimes.

    In Texas, the Tex. Dept. of Public Safety acts like the FBI as a state crime lab, free for all prosecutors and police to submit evidence for testing. Why should the accused not have the same right to free taxpayer funded testing? Could it be that taxpayers want their money used to CONVICT criminals, not to EXONERATE criminals? Bingo.

    Yes, the logical flaw is that someone exonerated is not a criminal. But Joe Q Idiot doesn't understand that. At least, not until he's been charged with a crime and put in handcuffs.

  • ||

    Backstrom is no lawman. His duty as an officer of the court is to do his best to serve justice, not rack up convictions at all costs.

    -jcr

  • Michael Ejercito||

    Solution: A dollar for dollar match between the prosecutor and public defender's offices on every case. Whatever the DA spends to convict, the PD gets to acquit.


    That makes too much sense.

  • ||

    You assume every state/county even HAS a public defender's office. There is no public defender here in Harris County, TX, the death penalty capital of the world. Most texas counties have no PD office. There is certainly no state-wide texas public defender's office.

    Some really crappy attorneys hang around the criminal courts, get to know the judges, and when someone needs an attorney they can get appointed... the county pays them a few bucks for this and that. Just so they can meet the constitutional requirement of providing counsel for those who cannot afford it. But the prosecutor has the power, money, and prestige of the state behind it. The defense attorney is lucky to if they are able to get ANY independent forensic tests.

    Unlike TV shows, however, most cases (drug possession) do not involve forensic evidence. But the most serious cases (murder, rape) usually do.

    Anyone who knows or has googled the "HPD Crime Lab" knows about the fraud used to convict so many people in Houston.... they'd just make up stuff... 'dry labbing' they call it.

    There is no justice, just the illusion of justice... and to provide actual justice would mean less people incarcerated and letting people go... which would piss of "victims" and victims rights groups and cops and no politician is going to touch that with a ten foot pole. It will never happen.

  • ||

    [Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.] Theodore Roosevelt (1858 - 1919)

  • Barry||

    Cause of death? PUNK ROCK MUSIC.

  • ||

    The problem lies within the true meaning of the word "forensic."

    The word does not mean what people are led to believe it means.

    It means: "For the court."

    Prosecutors rework the meaning as being "for the prosecution."

    Science has nothing to do with "forensics" whatsoever. Obtaining convictions by whatever fraudulent testimony necessary, means everything.

    Corrupt and incompetent judges sit arrogantly on the bench knowing this and allowing it to "business as usual, routine court procedure."

    Intimidated, corrupt, incompetent, and obsequious defense lawyers remain silent knowing precisely how it works.

    The first and most dangerous thing that can happen to a citizen is to be charged with a crime, by a psychotic cop, then be dragged into an American court to be railroaded into prison by a corrupt prosecutor using the false and fraudulent testimony of someone calling themselves a "forensic scientist."

    Since the defense lawyer and the judge never object or set the "forensic" charlatan on fire, he/she must be telling the truth. "GUILTY AS CHARGED!"

  • ||

  • dda||

    Backstrom is criminally liable for perverting the course of justice.

    Backstrom is criminally liable for perverting the course of justice. His actions are not merely relevant to a discourse on technicalities. The medical examiner has historically and by Minnesota statute had a role separate but equal to the county attorney. The medical examiner states the medical facts on cause of death, exclusively. With the approval of James Bacstrom,*Dakota County Coroner Plunkett demands a retainer fee, to act as Medical Examiner, 1988, http://www.angelfire.com/mn3/ceramikstile/PDF/coronernoninvest.pdf in response to murder report from Dr. Murphy. http://www.angelfire.com/mn3/deadbydiabetes/C15.html Backstrom was not outraged by this, and supported this travesty. Backstrom made up his own medical opinion instead, stating the doctor didn't know that taking away insulin would kill the patient. Eventually this common knowledge regarding a insulin dependent diabetics need for insulin was acknowledged: 1993 Judge Martin Mansur: "I'm not a medical man, Ms. Duchene, but I think even a layman would know that you can't deprive anyone from insulin, you know, from--and who has been previously determined to be dependent on that." SEE: http://www.murderbydiabetes.org/ In 1986, an insulin dependent, diabetic, 68 year old woman, Mrs. Jane D. Duchene, was murdered in a nursing home. Her insulin was taken away from her, by doctor's orders, with the entire nursing home, her doctor, and her brother and sister in law watching the gruesome and preventable premature death. This was a terrible death and medical murder. It took 30 days for Jane to die from ketoacidosis because the doctor took 2/3 of her insulin away, not all of it. Worse, the local Dakota County (MN) Government covered this murder up for more than 20 years, ongoing. This site contains objective proof of the statements above, in medical records, court transcripts and more. The story is complex and reviewing the evidence requires patience. A portrait of Jane is shown to the left, as she was just before she was murdered. Mrs. Duchene was a ordinary Minnesotan, and had been clerk for the police department of West. St. Paul, for many years. She should have been safe with this middle class social standing, Thank you for coming to this site and for caring, about Mrs. Duchene and the potential danger this precedent is to your own medical care. Who will protect you? Videos available at: http://www.youtube.com/user/MurderbyDiabetes Sorry for poor sound quality on videos. We are working to upgrade this. Diabetics/Disabled Anonymous, Non Profit Support Group and Alliance. 1144 Ottawa Avenue West St. Paul, MN USA 55118-2008 Fax and Phone: 651 457 4376 DDAweb@comcast.net

  • ||

    The poor cannot afford a good defense, let alone excellent expert witnesses. The best expert witnesses and defense teams can probably get most guilty persons acquitted. Most public defenders are not very good, and often hired for the jurisdiction by prosecutors who want them to lose. Today, the disparity in justice, between the rich who are rarely convicted and the poor who are almost always convicted, is probably the widest it has been in over a century. Frankly, the judicial system has become disconnected from ideals of truth and justice. Evil must be dealt with, but possibly needs to be exposed and punished using some less arbitrary process, something fairer and more accurate. It is right to use technology and experts to determine the truth, but too often that is not their actual job.

  • Scarpe Nike||

    is good

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