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There are many unanswered questions in the fiasco over the wrongful arrest and incarceration of Brandon Mayfield, a Muslim lawyer in Oregon, following the U.S. Department of Justice’s (DOJ) and FBI’s botched analysis of fingerprint evidence. How is it possible that the FBI’s scientific experts could have been so mistaken in claiming that fingerprints found on a plastic bag full of detonators in the Madrid train bombings “matched 100%” the fingerprints of Mayfield? How many similar mistakes have been made by so-called scientific experts and with what consequences? And how can such mistakes be prevented? There are several reasons why flawed scientific evidence finds its way into the criminal fact-finding process. First, many crime laboratories, particularly the FBI’s, have been found guilty in recent years of seriously deficient performance by their forensic investigators. An investigation last year resulted in the indictment of an FBI scientist for giving false testimony about ballistics analysis. Another technician resigned following allegations of improper testing of more than 100 DNA samples. The FBI’s crime lab was the subject a few years ago of a scathing report by the U.S. inspector general for “extremely serious and significant problems,” including erroneous, exaggerated and sloppy analysis in connection with several high-profile investigations: the 1993 World Trade Center bombing, the Oklahoma City bombing, the Avianca Airlines explosion and the assassination of U.S. Circuit Judge Robert Vance. In addition, crime labs in Texas, West Virginia, Oklahoma and Montana also have been publicly discredited by disclosures of gross incompetence, fraudulent practices and dishonesty. To the extent that crime labs are part of police agencies, the labs typically operate with a police officer’s mentality of solving crimes rather than a scientist’s mindset of finding the truth. This conviction-oriented mentality was underscored in the inspector general’s report, which stated that an FBI explosives examiner in the 1993 World Trade Center case “gave inaccurate and incomplete testimony and testified to invalid opinions that appeared tailored to the most incriminating result.” This tilting toward the incrimination of suspects may be part of the reason for the rush to judgment by the DOJ and the FBI in the Mayfield case, in which investigators surmised, without hard evidence, that Mayfield was suspected of having ties to Islamic terrorists-and then interpreted the fingerprint samples to support this baseless hypothesis. This conviction mentality by scientific investigators has been responsible for several fraudulent prosecutions involving faked fingerprints planted at crime scenes, faked autopsies in death penalty cases, fabricated breathalyzer readings in intoxicated-driving cases, and false testimony by experts making hair, blood and firearms comparisons. And, regrettably, the records of contemporary criminal trials are replete with instances of “junk science” finding its way into the courtroom-championed by prosecutors and their experts to win convictions. Impact at jury trials Juries are particularly susceptible to scientific testimony given by government witnesses. It is commonly known that more than any other witness, the expert, and especially the government expert, is viewed by the jury with an aura of special reliability, sometimes even infallibility. And some prosecutors routinely seek out biased experts who will support the prosecution’s theory, while rejecting independent experts who refuse to provide the prosecutor with the opinion he or she wants. Finally, there is widespread agreement that the use of erroneous and fraudulent scientific evidence is the leading cause of wrongful convictions of innocent people. One notorious instance of the misuse of scientific evidence resulting in a wrongful conviction occurred in the Central Park jogger case. There, although it is commonly known that hair comparisons are among the most unreliable forms of scientific evidence, and without any basis in the evidence, the trial prosecutor argued to the jury that strands of hair found on the victim “matched” those of two of the defendants. Indeed, the prosecutor’s own expert rejected such an argument. Years later, on a motion to vacate the convictions, DNA testing of the hairs showed that they belonged to another person who confessed to having committed the crime. Given the recent disclosures of incompetence and dishonesty by the FBI and other crime labs, safeguards need to be established to ensure that such mistakes do not recur. Forensic laboratories should be separated from police agencies and police supervision, accredited and operated by civilian personnel. Laboratories should establish protocols for training of examiners and quality-control procedures to ensure the integrity of the forensic analysis. For example, the use of digital imaging to analyze fingerprints and other forensic samples needs to be re-evaluated in light of the Mayfield case. Scientific laboratories engaged in criminal investigations should systematically employ blind proficiency testing and random external scientific audits to ensure against the kinds of errors that can compromise the integrity of investigations and result in the prosecution of innocent people. Bennett L. Gershman is a professor at the Pace University School of Law. He writes often on prosecutorial misconduct.

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