IT'S NOT A MATCH: WHY THE LAW CAN'T LET GO OF JUNK SCIENCE.

• Author: Kaplan, Aliza B.

1. INTRODUCTION

   On July 26, 1978, a sixty-three-year-old cab driver named John McCormick was fatally shot on the front porch of his home outside of Washington D.C. (1) McCormick's wife heard her husband's pleas for his life before she heard the gunshot. (2) She looked out a window and saw a man wearing a stocking mask over his head. (3)

   Police arrived to find McCormick's body on the front porch, and ballistics indicated that he had been shot with a .32 caliber pistol. (4) A police dog found a stocking mask on the sidewalk a block away. (5) Inside the stocking mask, police found several strands of hairs The hairs were sent to the FBI for analysis, and one strand was determined suitable for comparison. (7)

   Police began investigating Santae Tribble for the shooting after a woman told police that Tribble and his friend, Cleveland Wright, recently sold her roommate a .32 caliber revolver. (8) Tribble was just seventeen years old at the time. (9) Police did not recover the gun, but found .32 caliber ammunition at Tribble's mother house. (10) After the investigation, on February 14, 1979, Tribble was charged with felony murder and armed robbery. (11)

   At trial, the government presented the testimony of an FBI Special Agent. (12) The FBI Agent "testified that the hairs found in the stocking mask 'matched in all microscopic characteristics'" with Tribble's hair. (13) The hair evidence, according to a court years later, was "critical to the jury's decision." (14)

   Tribble took the stand in his own defense denying any involvement in the crime. (15) Several witnesses also testified that Tribble was asleep at his mother's house in Maryland at the time of the shooting. (16) In closing, the prosecution emphasized the hair evidence, saying that the hair in the stocking mask and Tribble's hair "matched perfectly." (17)

   On January 21, 1980, a jury convicted Tribble of felony murder and armed robbery. (18) Tribble was sentenced to twenty years to life. (19) He served more than twenty-seven years in prison. (20)

   Tribble was paroled in April 2003, but served another three years for parole violations. (21) In 2009--twenty years after he was arrested--Tribble read an article about the exoneration of Donald Gates, who had been convicted of murder after the FBI conducted microscopic hair analysis that identified Gates as the perpetrator. (22) "Mitochondrial DNA testing of the hair evidence in Gates' case showed that the hair used to convict him was not his." (23)

   Tribble reached out to the public defender who had represented Gates. (24) "[O]n August 31, 2011, [the criminal court in Washington D.C.] granted Mr. Tribble's application for post-conviction DNA testing of hair from a stocking mask [that was] worn by the murderer and used to convict Mr. Tribble." (25) The mitochondrial DNA testing excluded Tribble and Wright. (26) In fact, testing revealed that one of the hairs belonged to a dog. (27)

   On May 14, 2012, the court granted "an order vacating [Tribble's] conviction and dismissing the indictment with prejudice," and, on December 14, 2012, the court issued an order declaring that "Mr. Tribble has proved by clear and convincing evidence that he is actually innocent of the charges of armed robbery and felony murder while armed of Mr. McCormick of which he was convicted in this case." (28)

   Tribble was awarded $13.2 million in compensatory damages through a civil suit brought under the District of Columbia Unjust Imprisonment Act. (29) In the court's lengthy order, the judge described the twenty-five year imprisonment that left Tribble a "broken man." (30) After being wrongfully convicted, separated from his family, moved from prison-to-prison, and subjected to assault by inmates and guards, Tribble "turned to heroin to cope with a situation that appeared unbearable and unending." (31) He then contracted life-threatening diseases as a result of the heroin use, "which have ravaged his body and mind." (32) He was tasered, tear-gassed, strapped to a concrete bed, and even "held in solitary confinement, alone in a small cell for twenty-three to twenty-four hours per day, for up to nine months at a time, for a total of between three and one-half to four years." (33) His "father, mother, and sister died while he was incarcerated," and his son grew up without him. (34) A medical expert in the civil case testified that Tribble was more than likely to die from the addiction and diseases by 2019--within the next four years. (35)

   The court wrote at length about the "ordeal [that] did not merely deprive [Mr. Tribble] of his liberty in a constitutional sense--it ruined his life, leaving him broken in body and spirit and, quite literally, dying."36 The court recognized the "journey of injustice [that] subjected Mr. Tribble to all the horror, degradation, and threats to personal security and privacy inherent in prison life, each heightened by his youth, actual innocence, and life sentence." (37)

   We know that our criminal justice system has relied on faulty forensic science to convict individuals in this country for decades. (38) We know that juries place great weight on scientific-sounding evidence, disregarding all other evidence to the contrary. (39) Our mistakes, which have led to hundreds of individuals being wrongfully convicted and imprisoned, have been proved through DNA testing and exonerations. Still, the law (along with many actors in the criminal justice system) turns a blind eye to advances in science, insisting that it must follow precedent. (40)

   In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President's Council of Advisors on Science and Technology ("PCAST"), which analyzed the methodology and validity of many "pattern identification" or "feature-comparison" methods. (41) PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. (42) PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. (43) The PCAST Report followed an earlier report by the National Academy of Sciences ("NAS") in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. (44) In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST's response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.

2. THE LEGAL RULES GOVERNING ADMISSIBILITY OF SCIENTIFIC EVIDENCE

   "Forensic science plays a [crucial] role in [our] criminal justice system by providing scientifically based information through the analysis of physical evidence." (45) In criminal cases, "evidence is collected at a crime scene or from a person, analyzed in a crime laboratory[,] and then... presented in court" by expert testimony. (46)

   Collecting forensic evidence and applying forensic science to a criminal investigation and prosecution have become essential to our system. Forensic evidence is used to: "prove a crime has been committed or establish key elements of a crime;" "place the suspect in contact with the victim or with the crime scene;" "establish the identity of persons associated with [a] crime;" "exonerate the innocent;" "corroborate [a] victim's testimony;" and assist in establishing the facts of what occurred. (47)

   Over the last twenty-five years, there has been an increasing reliance on forensic science to guide criminal investigations and to use it to achieve outcomes in court. (48) In many ways, forensic science has "undergone a sea change in the last 20 years, because what was traditionally an anecdotal profession has matured into a true laboratory science." (49)

   Although there have been some extraordinary successes for the forensic science community over the years, there has also been skepticism about the supposed infallibility of some forensic sciences, its handling in crime laboratories, and the interpretation of physical evidence in the courtroom. (50)

   Admissibility of scientific evidence in the courtroom is governed generally by Federal Rule of Evidence ("FRE") 702, or the state law equivalent. FRE 702 provides that if "scientific, technical, or other specialized knowledge will [assist] the trier of fact to understand the evidence or to determine a fact in issue," "a witness... qualified as an expert by knowledge, skill, experience, training...