Contrary to the impression given by TV crime dramas like CSI and Law and Order, many people will probably be surprised to learn that most of the so-called forensic sciences have not been scientifically validated – no scientific research has been done to prove these frequently used forensic tools are actually reliable in determining the guilt or innocence of defendants accused of crimes. In fact, in nearly half of the convictions that have been overturned in recent years through DNA evidence, unvalidated and improper forensic science was a contributing factor in the original conviction.
Yet for decades, courts have allowed into evidence unreliable forensic practices such as bite mark comparison and microscopic hair analysis, which in many cases was the only physical evidence linking a defendant to a crime.
At the Innocence Project, of which I am proud to be a founding board member, our mission is to exonerate wrongfully convicted individuals through DNA testing and criminal justice system reform. Since its founding in 1992, 337 wrongful convictions have been overturned through DNA testing, and more than half were helped by the Innocence Project. These cases have helped to identify both the flaws in the system and how to fix it.
One of the Innocence Project’s principal priorities has been to rid the system of unreliable forensic evidence – which is often extremely persuasive to jurors precisely because it is cloaked in science. In 2009, the National Academy of Sciences issued a seminal report, Strengthening Forensic Science in the United States: A Path Forward, documenting the lack of scientific validation in forensic practices and calling on research and national standards to improve public safety and reduce wrongful convictions.
The Innocence Project has been an instrumental force in pushing lawmakers in Washington to act on the recommendations in the report, but we also realized that this is a problem that could be addressed through the courts. If courts did their job of properly weighing the evidentiary value of this evidence and excluded it from our courtrooms when it isn’t based on actual science, we could make a huge impact in preventing wrongful convictions.
Toward that end, the Innocence Project launched its Strategic Litigation Unit, which I helped to inaugurate. For four years, I funded a position created in the name of my father, Joseph Flom, the distinguished senior partner at Skadden, Arps, Slate, Meagher & Flom who passed away in 2011. I saw this initiative as an opportunity to honor my father’s legacy and the values of justice and fairness that he instilled in me.
Since its founding in 1992, the Innocence Project has helped more than half of the 337 individuals whose wrongful convictions have been overturned through DNA testing.
This initial investment has turned out to be extremely successful. We hired a seasoned litigator, Chris Fabricant, to lead the unit’s initial efforts. Since then, the Innocence Project’s Strategic Litigation Unit has expanded to include three lawyers and a paralegal. In just a few years, this small specialized team of lawyers has had a tremendous impact. It has made great strides in exposing the dubious value of bite mark analysis, a forensic technique where a forensic odontologist claims to “match” a defendant’s teeth to bite marks on a victim’s skin. At least 24 people have been wrongly indicted or convicted (and in many cases sentenced to serve decades in prison) based on erroneous bite mark evidence. After the Strategic Litigation Unit persuaded the Dallas District Attorney’s Office to move to reverse the conviction of Steven Mark Chaney, who wrongly served 28 years for a murder he didn’t commit because of erroneous bite mark evidence, the unit brought the case to the attention of the Texas Forensic Science Commission, which recently recommended a moratorium on the use of bite mark evidence in the state and called for a review of past cases where it was used. Once the Texas ban goes into effect, other states will undoubtedly follow suit, hopefully ridding our courtrooms of this highly unreliable practice forever.
The unit also recently scored a huge victory in helping to overturn wrongful convictions based on erroneous microscopic hair analysis. Because hairs can be submitted to DNA testing, law enforcement doesn’t rely on the discipline as often as it once did, but its use continues in some jurisdictions. The discipline is so unreliable (having contributed to more than 20 percent of the wrongful convictions later overturned by DNA testing) that the Innocence Project, working with the National Association of Criminal Defense Lawyers, persuaded the FBI and the Department of Justice to conduct an unprecedented review of thousands of cases over several decades where FBI agents submitted reports or testimony linking defendants to hairs found at crime scenes. Initial findings from the FBI review are staggering. In 268 cases where FBI examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 – or 96 percent – of the cases.
George Perrot was exonerated after 30 years in prison for a wrongful conviction.
The Strategic Litigation Unit got involved in the case of George Perrot, who was one of the people to challenge his conviction based on errors identified in the review. A Massachusetts court recently released a landmark decision finding that Perrot – who served 30 years in prison – is entitled to a new trial “because of the introduction of hair evidence that in numerous and material respects exceeded the foundation of science.” This decision, which upset a century of precedent admitting hair comparison evidence as valid, “scientific” evidence will no doubt be of critical importance to many others whose convictions are based at least in part on erroneous hair comparison testimony and will help spur courts to do a better job excluding unreliable evidence in the first instance.
Using a similar science-based approach, the unit has also had some important court victories in tackling the leading contributor to wrongful convictions: eyewitness misidentification, a factor in nearly 75 percent of wrongful convictions overturned by DNA. The unit has helped to persuade high courts in New Jersey, Oregon and Massachusetts to issue decisions in those states to adopt new frameworks for how courts treat identification evidence. Jurors in those states are now warned about the problems of misidentification and urged to evaluate this evidence more critically. Thanks to the advocacy of the Strategic Litigation Unit, states that once prohibited defense lawyers from presenting experts on identification and memory now allow these experts. There are now only two states with absolute bans on identification experts.
I am deeply committed to the work of the Innocence Project because I can think of nothing worse than to be wrongly convicted and imprisoned. Meeting and getting to know many of the good men and women who have suffered this horrible fate has profoundly impacted my life, making me want to do everything in my power to prevent and correct these horrible injustices. Being able to honor my father’s great legacy by providing the initial funding for the strategic litigation unit has given me great joy and comfort knowing that we are restoring the lives of those who have been wrongly convicted and preventing others from having to experience such great injustice.
Jason Flom is President of LAVA Records and a founding member of the Innocence Project’s Board of Directors.
The Innocence Project
Strategic Litigation Unit