Category: Justice

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Junk Science in Court: Bite Me

If you were charged with a crime in the U.S. and put on trial, would you assume that the forensic evidence introduced in court against you would at least be based on some kind of sound, factual, scientific research? Think again.

Frontline recently ran a documentary on the “science” of fingerprinting, bite mark analysis, and other forensic “sciences” and demonstrated rather convincingly that many courts will allow testimony by self-styled experts that has no basis in any substantive research whatsoever.

The most dramatic examples were related to two men who had been in prison for ten years or more for assaulting and murdering three-year-old girls. In both cases, the men were the former boyfriends of the girls’ mother. In both cases, an orthodontist who claimed to be versed in the science of bite mark analysis testified that scratches on the little girls’ bodies were actually bite marks that could only have come from the suspects, to the exclusion of everyone else. In each case, this testimony was the bulwark of the prosecution’s argument. In each case, the judge allowed the testimony. In each case, the man was convicted. In each case, DNA analysis– which is founded in real science– eventually exonerated the men, and the real killer confessed to the crimes.

Do I have to be polite when expressing myself about how I feel about these judges for allowing this testimony into their courts? This is not a matter upon which reasonable, educated people might respectfully beg to differ. These are witch trials that have no place in a civil society.

How far does it go? At the Casey Anthony trial a self-styled expert in smells testified that a container of smell– I’m not making this up– from the trunk of Casey Anthony’s car contained the smell of a dead body. Casey Anthony was found not guilty largely because she was able to raise $200,000 for decent lawyers by selling pictures of her with Caylee to People Magazine. Those lawyers successfully challenged a host of junk science evidence.

Now, there are rules about “expert” testimony. Prosecutors interviewed by Frontline didn’t seem aware of them. One of them declared that it was up to the jury to determine whether the smell evidence was truthful, relevant, or accurate. It is not. The Supreme Court has ruled that the judge is the “gatekeeper” for expert testimony and determines whether any specific evidence should be presented or not.

Furthermore, evidence will be deemed qualified if it has been gathered according to a scientific methodology which makes use of valid scientific procedures. One key element is falsifiability.

That said, some judges will permit both sides to present evidence on the scientific validity of certain procedures and expect the jury to sort it out. This gives an enormous advantage to the heavily resourced prosecution in most cases.

My own take on the Caylee Anthony case? I doubt we’ll ever know the truth. Casey Anthony is clearly a disturbed, unstable, delusional young woman, but that doesn’t necessarily mean she is also a murderess. She could be. But we’ve seen enough wrongful convictions to know that people tend to fit the facts to the preferred narrative, not the other way around, and whacky, unstable people are particularly vulnerable.

Here’s the most compelling point in her favor: if the police and prosecutors really believed she was guilty, why on earth did they introduce so much whacky junk forensic science into the proceedings? If you were a prosecutor, wouldn’t you have dumped the “smell” science immediately as something that looked specious and stupid, and would ultimately weaken your case? If you really believed in your own case, with any kind of integrity or intelligence, why would you introduce so many dubious elements into your presentation?

The answer is that prosecutors and police believe that the court system is a bit of a game, and you do what it takes to win, and getting at the truth is merely a secondary objective. I think they see a kind of organic logic to the system, justice theatre, in which their goal is to lock up bad people when something bad happens. If a few innocent people get snagged along the way, so be it.

And if a particular suspect didn’t commit a particular crime but was busted for it anyway– it’s a small price to pay for a system which, they believe, ultimately “works”.

When I was very young, my brother came into our house one day and told me he needed help. He led me to the back of the garage where he had started a fire which was now beginning to lick up the exterior wall. He wanted me to help him put it out. We began filling small plastic buckets with sand from the sand box and throwing it on the wall. In spite of our efforts, the flames grew bigger and bigger, and I believe I was about to tell him we should get real help when I noticed he had disappeared. He had gone back into the house to tell our mom that I had started a fire behind the garage.

I denied it, of course. My mom stared at me and ask me if I was telling the truth. Everybody knows that if you are telling the truth, you won’t get nervous and giggle. I giggled. Busted.

Or maybe I wasn’t. I had a feeling that Mom wasn’t totally convinced. I don’t remember any big punishment other than having to stay in my room for a while.

We now know, I hope, that people giggle when they are nervous, whether they are lying or not. It was the bite mark of my childhood, a wrongful conviction based on spurious evidence. You might think it trivial, but I have never forgotten. I few years ago, I brought it up at a family party and my brother acknowledged that he, in fact, had started the fire. Within a year, the entire family seemed to forget that revelation and went right back to blaming me for it.

, and even to this day my siblings tend to remember that I started that fire rather than the fact that Ed finally admitted the truth years ago.

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Locard’s Exchange Principle and Dr. Sam Sheppard

Wherever he steps, whatever he touches, whatever he leaves, even unconsciously, will serve as a silent witness against him. Not only his fingerprints or his footprints, but his hair, the fibers from his clothes, the glass he breaks, the tool mark he leaves, the paint he scratches, the blood or semen he deposits or collects. All of these and more, bear mute witness against him. This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong, it cannot perjure itself, it cannot be wholly absent. Only human failure to find it, study and understand it, can diminish its value. Paul Leland Kirk, describing Locard’s Exchange Principle, 1953.

Dr. Edmond Locard, one of the pioneer’s of “forensic science”.  He allegedly solved several high-profile cases through the rigorous application of his Exchange Principle, particularly applied to clothing fibres.

That does not sound unfamiliar. It sounds like something you might hear a Crown Attorney tell a jury after having provided for them an entertaining “analysis” by an expert “microscopist” proving beyond a shadow of a doubt that a fibre from a sweater owned by the accused was found near the body of the victim. Or that a tiny, invisible pin-head-sized dot on a car door is actually, possibly, almost certainly, human blood, maybe. Or that the baby could only have died as a result of incredibly forceful shaking by the only person with the baby at the time of death, with a 99% degree of certainty.

I have a feeling this is prevailing mythology around police investigators and prosecutors in North America. As such, it is extravagantly misleading. It answers a question that does not need to be asked– the real question is, does a “matching” fibre really provide an exclusive match to the material in question? Does it prove that the suspect and only the suspect could have committed the crime?

What exactly is a “match” anyway? You might be surprised to know that the answer is somewhat religious: I know because I know. There is no objective criteria for what constitutes a match because there is no “science” of microscopy– check it out: there isn’t. There is no research or systematic investigation that shows how and where and why fibres travel or are found. There is no statistical proof that any particular fibre is unlikely to match any other fibre from any other article of clothing of similar characteristics…

Locard is right in one sense: at any given crime scene there will be multitudes of “evidence”, of fibres, of blood, hairs, saliva, skin flakes, whatever. The question is, what does any particular sample prove?

About the silliest comment in the entire quote is “physical evidence cannot be wrong”. No one said it could. Indeed, no one ever accused a fibre of lying. But when a “microscopist” tells a jury that he has some kind of rational calculation to tell them about the odds of that particular fibre coming from someone else’s sweater– he is lying.

If you are intrigued by this, you might want to read the blood spatter testimony of Dr. Paul Leland Kirk, who claims to be an expert in “criminalistics”.   Yes, that’s a made-up word, for a made-up science.

Yeah, I used to eat this stuff up too, but when I read it now it almost sounds farcical. Well, all right– it’s not entirely farcical. At least he did some experiments and testing which, even if it was ridiculously specious and capricious, at least gave some empirical heft to his testimony. I’m not hard to please: I would have loved to see a well-funded defense team record on film some of their own experiments and then try to persuade Dr. Kirk to analyze the results and compare his conclusions to the actual record.

I’m not ridiculing science here. In fact, it is precisely because I value real science highly that I think our criminal justice system has to start filtering out the junk science that tries to pass for the real thing. Kirk’s testimony at the Sam Sheppard trial is a classic case: he mixes in real scientific facts and research with rather startling conclusions that don’t really have a tight connection to the evidence. His statements about the arc of the swing of the attacker’s arms, the angle from which she was struck, and the source of various blood spatters strike me as dubious at best. It provides a patina of “science” to a lot of conjecture, the signal conjecture being that Marilyn Sheppard was murdered by someone who was left-handed (Dr. Sheppard was right-handed).

The truth is there may have been an element to the crime that no one has thought of yet. If you think Dr. Sheppard’s explanation of what happened is a little difficult to believe, that is precisely because we are not likely to imagine, before hand, the sequence of events he describes. And we all know how often the police create suspects out of people who do not behave the way they expect after a traumatic event, including Lindy Chamberlain.

Sheppard’s account:

According to Sheppard, he was sleeping soundly on a daybed when he heard the cries from his wife. He ran upstairs where he saw a “white biped form” in the bedroom and then he was knocked unconscious. When he awoke, he saw the person downstairs, chased the intruder out of the house down to the beach where they tussled and Sheppard was knocked unconscious again.  From Wiki.

There are good sciences, like DNA analysis, that do inspire confidence. So far, it is most famous for exonerating people who were convicted based on evidence like that given by Paul Kirk.

Weird Detail: Sam Sheppard later married a German woman named “Ariane Tebbenjohanns” who was half-sister to Magda Goebbels, who helped murder her five children in Hitler’s bunker in the waning days of the 3rd Reich, rather than leave them alive in world without her beloved Fuehrer.

Even Weirder Detail: Sam Sheppard later established himself as a professional wrestler (I am not making this up).  Later yet, he returned to surgery where his incompetence caused the deaths of two patients.  He died of alcoholism April 6, 1970.

 

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My Rights Your Wrongs

My rights are NOT infringed if I lose the ability to tell you what to do. My rights are infringed when you deprive me of the right to make the choices I want to make. Does that make sense? Not to Republicans. They would have you believe that when two men or two women marry each other, they are somehow deprived of a “right”. That “right”, it turns out, is their “right” to boss you around.

When the Catholic bishops whine about the state intruding on their liberties and freedoms it turns out that the state hasn’t intruded on any liberty or freedom at all.

Can they still worship? Yes. Can they still gather to carry out their beliefs? Yes. Can they choose to not use birth control and have 13 babies in twelve years? Absolutely. Nobody is making them use birth control or have abortions or marry a gay partner. Nobody at all.

So what’s this “liberty” they are whining about? It’s the liberty to prevent you from using birth control, if you happen to work at one of their hospitals or universities.

What is “freedom of speech”?

Once again, the hysterical right-wing flag-waving shrieking patriots have let us all down. They should be out there right carrying posters and waving flags and shouting something like “Stop Oppressing Ozzie Guillen”. But, like all raging hypocrites, they only want this liberty for themselves. Guillen had the audacity to actually have an honest opinion. His sin is that it was different from the opinions held by Rush Limbaugh or Sean Hannity or Michelle Bachmann.

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The Supreme Strippers

The Supreme Court, featuring the immortal Clarence Thomas, has just ruled– 5-4, of course, (Republican Appointees vs. Democratic Appointees), that the police may strip search an individual even if he has only been charged with the most trivial crime. And that is not an exaggeration: the justices were explicit. Overdue speeding ticket? Walking a dog without a leash? Litter? Literally, even the slightest offense.

I am amazed that five adults could conclude that the a strip search is a rather trivial price to pay for a procedure of dubious efficacy applied to people who just don’t seem likely to be much of a threat to law and order. Again, the justices were explicit: the police don’t have have to have any particular reason for believing that a suspect might be in possession of a weapon or other contraband. They can just do it. For fun, if you will.

The internet is a creative conduit for civil discourse: there really ought to be a group created to monitor the Supreme Court justices at all times. It should be coordinated on Facebook or a private website. People can volunteer and take turns following the five justices around, taking pictures and video (which can then be posted to the internet) to make sure they aren’t doing anything illegal. These volunteers should absolutely observe the letter of the law. Hoo haw! Make way for the new “reasonable”!

At what point do you think a Justice might complain that he doesn’t like being followed or observed or recorded or spied on? What right would they have to complain? It is perfectly reasonable to infringe a little on someone’s privacy in order to accomplish a greater good. It is clearly in the interests of the citizens of the United States to make sure that their Supreme Court Justices are not doing anything to besmirch the reputation of the courts.

One of the rationales for this ruling is that the court should not interfere in the practice of law enforcement unless absolutely necessary because that would be “judicial activism”. Like repealing legislation enacted by a duly elected congress. Like Obamacare.

Another reason given– this one is a real gem– is that any of these people arrested and strip searched might turn out to be Timothy McVeigh or one of the 9/11 hijackers. And…. so, a strip search might have revealed that McVeigh was packing 2 tons of explosive fertilizer? He might have been planning to blow up the prison? A strip search would have stopped him?

Or Mohammed Atta might have had a box-cutter hidden under his scrotum?

And he might have littered or jay-walked just prior to boarding the aircraft?

That would surely have tipped authorities off to the plot…

It should surprise no-one that Chief Justice John Roberts ruled the way he did: this is the man who ruled that it is not unreasonable for a large policeman to take down a child and handcuff her for eating a French Fry on a subway platform.

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America’s Secret Police

Do not mention to the public or the media the use of cell phone technology or equipment used to locate the targeted subject,” the Iowa City Police Department warned officers in one training manual. It should also be kept out of police reports, it advised. NY Times, April 1, 2012

For all the screeching and wailing about government oppression in the form of an insurance mandate for health insurance, why are those freedom-loving, liberty-cherishing, gun-hugging Americans so utterly placid and spineless about the massive government intrusion into their personal lives through the routine abuse of police powers as described in the New York Times on April 1?

Apparently the police, even in small, rural towns, routinely go to cell phone companies and demand the locations of particular phones, or the content of text messages. Some of these police departments have even acquired their own equipment to do it without having to pay– or possibly arouse the antipathy of– private cell phone companies.

Where’s all the outrage? Where’s the placards, the effigies, the righteous indignation, the groveling, tearful references to the Constitution, the swelling, yelling, enraged marches?

The most sacred rights are being systematically disemboweled and we hear not a whimper from the so-called patriots.

It’s all a lie and America is a giant fraud. It’s time to hold a grand public ceremony and officially burn the Constitution in a steel barrel and then roll it off the docks somewhere near Wall Street and the “Freedom Tower”, and time for all the flag-draped Patriots to just get over it: you are liars.

Retroactive Immunity: John Ashcroft’s wet kiss to the Telecoms

I will note that I was completely wrong about consequences of Ashcroft’s actions, primarily because Obama has completely and totally capitulated to the forces of darkness in the American intelligence community and has, indeed, joined in the Constitution-defying American Jihad against suspected American enemies everywhere with his own program of assassinations and mayhem.

I would like to say that I predict that it will be the thing Obama will be sorriest about in ten or twenty years. But he won’t be, because the American public will adore him for killing people on their behalf. The more, the better. The bigger and more spectacular, the better. The bloodier, the lovelier. In foreign lands or, hell, why not, here on American soil. Arrest them, torture them, kill them remotely: our religion is an angel, a drone, with a gift of shredding.

If there were no enemies out there to kill, I strongly suspect we would make them up. No military or intelligence community would ever willingly acknowledge that they are not really needed, or that they do more damage, in the long term, than good.

And if you think that is preposterous, you should ask yourself how we got here: Obama, the “yes we can” guy, in the embrace of a Hellfire missile.

[added July 17, 2012]

Did you know that about 98%– no exaggeration — of criminal court proceedings in the U.S. end with a plea bargain? Is this good? Bad? Terrible?

What we have is district attorneys with enormous power bullying defendants into giving up their constitutional rights by threatening to lay more serious charges than are called for (which could result in a far more severe sentence) if the defendant doesn’t please guilty to “lesser” charges.

Now, did you know that District Attorney’s are allowed to demand a “waiver” as part of these agreements, wherein the defendant gives up his right to appeal his sentence later, if he happened to, say, discover exculpatory evidence somewhere, or that his own lawyer was a dunce? Furthermore, his own lawyer is likely to push him to agree to these terms because part of the waiver excludes his own attorney from any culpability for incompetence or negligence resulting in a more severe sentence than might be reasonably expected?

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96%

96% of federal criminal cases are resolved by plea bargain.

That means that 96% of the time no judge or jury hears the evidence and makes a decision about whether or not a person deserves to be punished and how severe the punishment should be.

That means that 96% of the time a suspect is confronted with this choice: take a sure conviction of a lesser offense and less prison time, or take a chance on a trial for a more serious crime and, possibly, a much longer prison sentence.

As you are thinking it over, consider this: juries in the U.S. absolutely love to convict. They just love, love, love it. They will convict you in the morning, convict you in the night; they will convict you based on nothing, except the word of a law enforcement officer or prosecutor who just feels very, very sure that you are guilty, and the identification of a distant blind witness who saw you from 300 meters away on a dark night in the rain and picked you out of a police lineup because you were the only one complaining about being in a police lineup.

We know the system often fails because of the all the convictions that have been reversed based on DNA evidence. But as long as most of those convictions are of black men, our society doesn’t care.

We have the opportunity to go back and re-examine those cases to try to figure out why these men were convicted in the first place. The answer– aside from the obvious– is: it’s hard to tell.

You might believe that prosecutors and police are honorable, ethical professionals who never let personal ambition sway their decisions about how to handle a criminal case. I think you would be wrong. There are too many examples of prosecutors or police who were more interested in a conviction than in the reputation of the criminal justice system. Exculpatory evidence is often hidden from the defense. Dubious “expert” witnesses testify about fibers or chemicals or traces of substances found on the victim that could “only” have come from the suspect’s car or closet, to the exclusion of all other possible suspects or cars or closets even though no other suspects or cars or closets were examined.

There is no justice system;  There is a system for processing black men into prisons at the lowest cost possible.

It only took only took 9 years for the U.S. to badger Majiid Khan into confessing to numerous terrorist activities, including conspiracies with the mad Sheik Khalid Mohammed and Osama Bin Laden, whom he has never met.  And he must also confess to the bombing in Jakarta in 2003, though he was in custody five months before it happened. When Mr. Khan mentioned something about the agreement meaning he couldn’t sue the CIA for mistreatment, the live video feed was cut off.

Is this some kind of joke? Why do people take these plea bargains seriously? If the U.S. had evidence against Khan, why would they accept an 18 year sentence? If he was really co-responsible for the deaths of 50 people in Jakarta– would they not have sought the death penalty?

There is only one reason why they would not: they have no evidence.

And if you have no evidence, it may take 9 years, but you will get a plea bargain, if that’s what you want.

Because the alternative, for Majiid Khan, is forever.

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Penitence and the Brinks Robbery

Judith Clark: on October 20th, 1981, a group of radicals tried to rob a Brinks truck of about $1.8 million in cash. Things went wrong and two Brinks’ guards were shot and two police officers were killed trying to apprehend them.

Poor Judith Clark, the driver, was not smart enough to cop a deal. She was a true believer, and true believers do not compromise with the system. She went to trial. Her defense was that the system itself– of justice, of government– had no legitimacy, and therefore, did not have the authority to judge her.

She received 75 years as an accessory to murder.

The odd thing is that Judith Clark was just the driver. Almost everyone else who was involved, who carried and discharged firearms, is now out of jail. They cut deals. Not the driver. That is what passes for justice in our system. We don’t weigh all the evidence, analyze the facts, acquire knowledge and information– no, we cut deals.

But Judith Clark was not game. She refused to cut a deal and got 75 years. She had a 9 month old daughter on the day of the crime.

In an article in the New York Times on January 16, 2012, Tom Robbins interviewed some of the family members of the dead police officers. They feel that 75 years is not enough. They wish she could have been killed. Which is exactly the kind of feelings they accuse her of having, and which they believe make her a very, very bad person. To wish someone dead.

I don’t know how they feel about her accomplices, who escaped with lighter sentences and are now free to do whatever they please. I would guess they would want them dead too.

The illusion we all cling to– or don’t– is that she deserves it and they do not. I believe that what the families of the victims believe has more to do with language and culture and habit and the feedback loop of victimization and the culture of violent retribution, and has nothing to do with any kind of “justice”, of deserving, in any form whatsoever. I believe that wishing someone dead because they murdered your loved one means that you are not that far apart. Why did they kill? Because they wanted something and they thought killing another human being would get it for them. Why do you want them dead? Because it will bring your loved one back to life? Will it bring your loved one back to life? Will it give life to the dead? Will it keep someone else from dying? What do you really want when you want someone dead?

You can lock someone up for 75 years if all you want is to prevent someone else from suffering what you have suffered. But if you want someone else to suffer what you have suffered, then you want them to lose a loved one. You want them to feel what you felt.

You want them dead, then, Because then you think you will feel better. We have an array of euphemisms: closure. Justice. Whatever. All it cost for you to feel better is to kill someone. Failing that, yes, let’s just lock them up forever.

Who was killed? Brink’s Guard Peter Paige. Joe Trombino was severely wounded.

Police officers: Waverly Brown, Edward O’Grady.

Have you ever heard a victim’s family in the U.S. declare that they don’t know if a prisoner up for parole is genuinely sorry for what happened? “Honest– we don’t know. Let’s hope he is being honest when he says he is.”

I can’t remember ever hearing or reading anything like that. They all seem to think they do know, and they seem very sure of it. They are invariably convinced that the repentance is faked, to get out of prison. They seem to know this because they refuse to believe that they desire the harshest imaginable treatment of a person who might seem undeserving of their heartlessness.

They get really angry if the criminal does not apology and say that he should not be paroled because he didn’t apologize.  When he does apologize, they announce that they find the apology inadequate.  They should say,  in advance of all apologies, we say that we want an apology but if we get one we will find it unsatisfactory.

Do these same people believe that Newt Gingrich is genuinely sorry for cheating on his wife? Maybe not. Or that Michael Vick was really sorry he participated in a dog fight? Or that Billy Graham was really sorry about supportively sharing Richard Nixon’s anti-Semitism? Or that Eliot Spitzer was sorry for any reason other than he got caught. Or that Anthony Wiener was sorry he lived in a nation dominated by frigid hysterics?

We all fake respect for civilization and social and moral law every day of our lives. It’s a hoax we agree upon in order to have something called “civilization” and “society” and “culture”.

The important thing, really– the realistic thing to expect — is that convicted felons realize they benefit more by not robbing banks and killing police than they do by robbing banks and killing police.

So what is “sorry”? Too often what the families of the victims, and the police and the judges, expect from “sorry” goes beyond remorse for the actual crime: the penitent must express something that seems to reflect kindly on the families of the victims, the police, and the judge.

That’s the why, sometimes, the wrongfully convicted are treated more harshly than the rightfully convicted but astute criminal. The wrongfully convicted sometimes stubbornly insist on not confessing to crimes they have not committed.

More perversely– in the eyes of the justice system– they obstinately refuse to recognize their abusers as wise, kind, thought, devout, resolute warriors of justice and mercy.

The pricks.

 

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More Wrongful Convictions

I cannot understand why there is no movement in the United States to do a massive overhaul of the criminal justice system in the face of widespread, pervasive evidence of incompetence, dishonesty, and deception. In Canada, there would be a Royal Commission of Inquiry, ending with steps to be taken to remedy the serious defects in the system. The U.S. just blithely ambles along locking people up for ridiculous lengths of time after trials that engage in ritualistic presentations of “expert” testimony by people with titles of imaginary professions, witnesses who swear that the wrong picture of someone they never clearly saw is exactly like the face of the suspect they now see, and jailhouse snitches who miraculously extracted confessions from people they never met before.

And then there are confessions– the last hope in criminal cases with no evidence, no real suspect, no weapon, no matching blood samples. Ah, but we have a confession…

Here’s the latest: in 1992, on August 17, an eleven-year-old girl named Holly Staker was found raped and stabbed to death in a home in Lake County, Illinois. She had been babysitting two young children. The police were frantic to find the killer. The real killer. The person who actually murdered Holly Staker.

At least, that’s what they want the public to believe. And probably, at first, they were sincere about finding the actual killer. But as the pressure on the police increased, it appears they were willing to settle for a stand-in. They found him in Juan Rivera, a 19-year-old high school drop out, who had suggested to the police that he noticed someone at a party on August 17 “acting funny”, and later admitted he had made that up– a girl at the party had told him the story, but she didn’t want to go to the police. I would guess that he thought this would make him important.

That made him the suspect, and they questioned him incessantly and relentlessly for 24 hours straight, until he confessed. He confessed in great detail. He provided details that “only the killer” could have known, and which the police would never, ever surreptitiously provide to him during the course of the interrogation. Never. Honest. In the study quoted in the left sidebar, it was also shown that in 38 out of 40 cases of wrongful conviction, the suspect provided details that, the police claimed, only the actual murderer could have known.

But why would a man confess to a horrible crime unless he had actually done it? It’s hard to imagine. It’s hard for juries to imagine. So Rivera was convicted, once, twice, three times. I don’t know why but each time he was retried, and three times he was convicted. His lawyers are currently appealing the results. Most people would be quite glad to see him executed– perhaps nobody more so than the police, who finally have that monkey off their backs.

There is only one problem– there is no physical evidence linking Juan Rivera to the crime scene or the crime. No blood stains, no weapon, no finger-prints. I guess that ever since the “science” of fibre evidence has been discredited, they decided not to the try that route — why not– it used to be a sure winner.

And there was another problem: Rivera was wearing a electronic leg bracelet on account of having stolen a car stereo, and the leg bracelet showed he was home at the time of the murder.

And, there is an even bigger problem: Holly was raped. DNA analysis was conducted in 2005 and the defense used it at his fourth trial: the semen found inside her body could not have come from Juan Rivera.

That is a problem. The police and prosecution had a lot invested in Juan Rivera. It’s hard to give up investments like that. They decided that the confession must be true and the DNA evidence must be wrong.

And here’s where we get to why I believe the U.S. should conduct a large inquiry into how police collect evidence and conduct investigations: the police continue to insist that Juan Rivera committed the murder! They actually claim that 11-year-old Holly must have had sex with someone else before Rivera attacked her.

But wait– Rivera, in his confession, acknowledged that he had raped Holly. He confessed to that because at the time the police needed that as part of the confession. How to explain the wrong DNA in the semen? Rivera must have raped her without ever ejaculating.

But wait– there’s more! Mike Mermel, the prosecutor– a fan of Anne Coulter and Rush Limbaugh and Charlton Heston– defends the idea that 11-year-old Holly was sexually active by arguing that if you were having sex with an 11-year-old, you wouldn’t be bragging about it, would you? So the fact that there is no evidence that she was sexually active becomes proof that she was.

Shades of Stockwell Day’s “unreported crimes”.

But let’s go back to that confession. Did you even have to ask?– the initial confession contained numerous other “errors” that would have made it look ridiculous in court. No problem– we just call in ex-marine Lou Tessemann and have him take the confession all over again and straighten out those problems. And– of course, of course, of course– these sessions were not recorded.

And– of course, of course, of course– Tessemann denied knowing anything about the crime before he took the confession while some police officers admitted giving him details of the crime scene before he met with Rivera. According to Tessemann, Rivera was relaxed, comfortable, and rational during this interrogation. According to other witnesses, including a nurse who treated him, he was banging his head against the wall, shackled and bruised, and mumbling incoherently.

Why has a the judge not thrown this case out in disgust. Not merely with sadness or regret or reluctance– he should have tossed the case out with demonstrated disgust at the prosecution. You are a bunch of clowns.

And there’s more: take the case of Jerry Hobbs, for whom the death penalty was being pursued. Hobbs’ daughter Laura and a friend, Krystal, disappeared one night. The bodies were found the next day by Jerry Hobbs, stabbed to death. Hobbs was arrested and interrogated until he confessed.

There was nothing in his confession or in the police reports that suggested that either of the girls had been raped. The story, according to the confession, was that his daughter Laura and her friend Krystal had defied him and refused to come home and Krystal had pulled a knife on him, which he took away from her during a fight, and which he then used to stab them both to death in a blind rage.

Come on — doesn’t that just sound like a coerced confession, twisted and turned and designed to explain all the circumstances that Dobbs could only have known about if he had been the killer? With all that stabbing, there would of course be some physical evidence, right?

Two years later, analysis paid for by the defense team showed that Laura had been sexually assaulted, and, yes, there was sperm, and the sperm did not belong to Jerry Hobbs. Will the prosecution now finally admit that their theory about the crime is wrong? Hell no! According to Mermel, that area of the woods was often used by couples for having sex, and the girls probably came into contact with sperm from rolling around in the dirt!

Enough is enough! The fact that the police are willing to go this far to attempt to cover up their own incompetence and poor judgment tells us that there is something fundamentally wrong with the way they go about their business.

There was a time when I could not imagine how a rational person could confess to a horrible crime he had not committed. It made no sense on any level whatsoever. And Holly’s twin sister, Heather, believes devoutly in the confession. Why, oh why, oh why would an innocent man make a confession like that?

Over the years, thanks to close analysis and excellent documentaries by programs like PBS’s Frontline, it is not longer hard to imagine. We now know with a good deal of certainty that some confessions are absolutely false. We now know it’s possible. We even know how it’s done, how hour after hour of continuous, relentless psychological assault by clever and determined police detectives can eventually drive even a rational person to agree to almost anything. When the suspect is all primed and primped, that is when they start the recording.

There have been instances where the police are recorded questioning a suspect who continues to deny his guilt, and then the recording equipment is turned off, and then it starts again, and we have a rather diminished-looking suspect now in confession mode.

Do Miranda rights even mean anything anymore? Why would the police be allowed to suggest to a suspect that having his attorney present for questioning would imply guilt? Instead of insisting on a suspect’s right to have an attorney present while being questioned, perhaps it’s time we required a suspect to have an attorney present, to protect the administration of justice.

There are definitely a few things that could easily be done to prevent false confessions and false convictions:

  • relentless continuous questioning of a suspect for longer than three or four hours at a time should be absolutely banned. It is simply not possible to elicit more, accurate information from someone after three hours. But it is possible to begin to psychologically break a person.
  • evidence obtained from jailhouse snitches or informants or undercover cops posing as inmates should be automatically disqualified
  • no confession should be taken seriously unless it can be clearly demonstrated to provide new information which leads to the discovery of real physical evidence
  • no confession should be accepted unless the police have recorded every interrogation of the suspect from beginning to end and provided the defense legal team with accurate, complete copies
  • eyewitness identification should always be only conducted by police officers who do not know who the suspect is
  • police and prosecutors who ever violate any of these rules are suspended without pay for six months or more for a first offense, and fired for a second offense; if their actions result in a false conviction, there should be jail time.
  • Wait — why am I being so soft on crime here? Any police officers caught trying to manufacture a case through any of the techniques described should go to prison.  Because we want to be tough on crime.

In his 2011 book, “Convicting the Innocent,” Brandon Garrett, a law professor at the University of Virginia, examined most of the case files for the first 250 DNA exonerations. Garrett found that 76 percent of wrongly convicted prisoners were misidentified by a witness and half the cases involved flawed forensic evidence. NY Times, November 26, 2011

This story, about a professional jailhouse informant named Paul Skalnik, and the stunning fact that any judge might accept the testimony from this miscreant.

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The Sentinelese: Leave us Alone

The Sentinelese live on an island at the west-ward tip of the Great Andaman Archipelago, which is in the Bay of Bengal, due east from India. You do not want to visit this place.

They don’t want us and they won’t have us. It is rather shocking to read, in this day and age, that there is yet an aboriginal culture that resists homogenization. Homogenization? They don’t even want to get to know us. When a pair of fisherman inadvertently drifted into their waters, the Sentinelese killed them. A helicopter was sent to retrieve their bodies: the Sentinelese drove it off with bows and arrows. Go away. The bodies remain unrecovered.

I find the existence of the Sentinelese reassuring. I don’t like the thought of travelling to the most obscure, distant corner of the earth, slashing my way through dense jungle, climbing through volcanic rock and vale, only to come upon a native child wearing a Nike swoosh and listening to music on his headphones, watching survivor on his portable satellite TV. The Sentinelese, surprisingly, don’t want any contact with our culture. Even more surprising is the fact that India, which has nominal control over the islands, has chosen not to press the point. This is in utter defiance of the sad, long history of encounters between different cultures, one of which is powerful and rich. Usually, we want to kill and enslave them.

They tried. They left gifts of cocoanuts. The Sentinelse accepted the gifts and refused to act grateful.

It was when they killed the fishermen and drove off the helicopter that the Indian government decided it was best to leave them alone. I think they should get some kind of big international prize for this decision.

They don’t want our medicine, our appliances, our toys, not even our agriculture (they fish and harvest native fruits from trees). They don’t want us to enlighten or frighten or amuse or confuse them.

They want to be left in peace.

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The Lindy Chamberlain Case: the Australian Court gets High

In the Lindy Chamberlain case (famous as “A Cry in the Dark”), one of the scientists who testified that she found “foetal blood” in 22 areas of the Chamberlain’s car, destroyed all the original tests and photographs before the trial.

Should we say, someone who “claimed” to be scientist? Or remark on the fact that it was the policy of the lab to destroy original tests and photographs immediately after analysis had taken place? Is there any reason to do this, other than to ensure that no one can contradict your testimony?

On February 22, 1984, the Australian High Court confirmed the conviction.

Someone ought to place a monument in front of the court building to this event: and every Justice should look at it and think about it as he or she enters the building to hear cases.  We were wrong.

The Chamberlain case is a sharp tear at the fabric of self-deceit we practice in so-called civilized countries: when it comes right down to it, we don’t much care for facts and science when there is a witch to be burned.

Similar cases, that might give you pause: The McGann case in Portugal, and the infamous Jon-Benet Ramsey case in Boulder, Colorado.