In my talk on America’s criminal injustice system, I note that because of decades of shows like Law and Order and CSI, the American public thinks they know how the system works. But the difference between how it actually works and how they think it works is astonishingly stark. This is especially true of forensic science. Because of CSI, lots of Americans think forensic science is a foolproof way of making sure the police always get the right person. My friend Radley Balko points to a long list of scandals and problems at crime labs all over the country and writes:
As I noted in a piece for HuffPost last year, crime lab scandals have erupted in recent years. Scandals have plagued state crime labs “in North Carolina, California, Virginia, Illinois, Maryland, West Virginia and Mississippi; the city crime labs in Houston, Cleveland, Chicago, Omaha, Oklahoma City, Washington and San Francisco; the county lab in Nassau County, New York; and… the Army crime lab.”
And that doesn’t even include Detroit, where the city crime lab was so incompetent and corrupt that they shut down the whole thing — and then found thousands of rape kits that had never been tested (and after several years, most of them still aren’t tested).
Public officials tend to be reluctant to admit to the scope of the problem because doing so would call thousands of convictions into question. Of course, that’s exactly what should happen, but I think it’s about more than that. When you’re talking about thousands and thousands of possibly corrupted cases spread out over several decades; when you’re talking about implicating not only crime labs and crime lab technicians, but prosecutors, judges, appeals courts that failed to pick up on the problem, and, frankly, the entire field of forensics — well, now you’re talking about implicating the criminal justice system itself. It all raises some profound, far-reaching questions that start to scratch at the notion of what justice means in America.
How is it that our courts have for decades now allowed the use of bad science to put citizens in prison — or even to send them to their deaths? Why is it that junk science can so easily slip into the courtroom during a criminal trial, but when said science is later called into question — or even shown to be complete nonsense — it can be so difficult, sometimes impossible, for the people convicted by that science to get a new trial? Should the objective of a prosecutor be to seek justice, or to win convictions? Do crime labs exist to objectively test and analyze forensic evidence, or are they part of the prosecution’s “team?”
Heck, we now have judges running for office by touting their conviction rate, which should immediately disqualify them from the ballot. The job of a judge is not to secure convictions, it is to secure justice. But every single incentive in the system is focused on convictions, not accurate outcomes. And with prosecutors, the Supreme Court has granted them absolute immunity from civil suit. Even if you can prove beyond a reasonable doubt that the prosecutor deliberately faked evidence and put an innocent person in prison for decades, or even put them to death, that prosecutor cannot be sued.
If a crime lab analyst comes up with results that could undermine a high-profile prosecution, is the analyst typically rewarded, potentially thwarting a pending injustice, or possibly punished for derailing a conviction? I’ve reported on cases in which crime lab technicians and medical examiners have been punished for testifying for the defense. And some in the forensics community tell me its still considered unethical for a forensic expert to take the initiative of calling a defense attorney if the analyst believes he has found exculpatory evidence that the prosecution is ignoring, or hasn’t turned over to defense counsel. Crazier still, there are parts of the country where crime lab technicians report to prosecutors. Prosecutors conduct their performance reviews, determine who gets promoted and who gets a raise. Who thought this was a good idea?
There have been enough scandals now that we need to start talking about these issues as systemic failures, and no longer as individual incidents to be addressed and fixed on a case-by-case basis. And it’s time to start considering more fundamental changes to how we test, analyze, and use forensic evidence in the courtroom, changes that may seem radical, but that would restructure the incentives of the key players here so that we reward people for moving cases toward just outcomes, not outcomes that serve political interests.
Our criminal justice system is deeply flawed at every single level. No one has done more than Balko to reveal those flaws.