The Biden administration is taking action to tackle racial inequity in an area not often thought about when addressing racism, the infrastructure package, by proposing to provide living wages and access to broadband. In the criminal justice system, this too, would be the right time to confront racial injustice. We need to do this before the prison gates slam shut on more innocent people.
In particular, the public should be concerned with how often faulty or fabricated forensic science is used to sway judicial rulings and impose often lengthy prison sentences against minorities and cash-poor defendants. When used properly, and with help from true experts, forensic science is a tool that can be used to solve a wide variety of serious crimes, from armed robbery to rape and murder.
There are many innocent people of color and of lower income who are languishing in jail cells and enduring lengthy sentences or sitting on death row as a result of bad forensic science. African Americans make up only 13 percent of the population in the U.S. and yet, according to the 2017 National Registry of Exonerations (NRE) report, almost 50% of all exonerations are African American. NRE data further showed that Black defendants are more likely to be wrongfully convicted of murder when the victim(s) are white.
As a forensic scientist, I have worked on criminal cases ranging from murder of adults and children, elder abuse and animal abuse to serial killings and wrongful conviction. In cases that result in wrongful convictions, racial prejudice or poverty are major factors. In my experience, blame behind these wrongful convictions lies in part with junk forensic science and corrupt or inept forensic scientists. Each can be prominent contributors to the unimaginable suffering of innocent people spending years behind bars. While there are too many categories to offer as evidence as to how the justice system serves as a prison pipeline for suspects who are people of color or with meager legal means, I will focus on unfit forensic experts.
Poorly trained or unfit forensic experts have contributed to wrongful convictions. When an expert in forensic science appears in court, the jury is of the understanding that the expert is interpreting the evidence for them and not making unsupported claims. The problem is that too often poorly trained and self-serving forensic scientists end up testifying in criminal cases. A glaring example is the forensic science team of country dentist Dr. Michael West and medical examiner Dr. Steven Hayne, who boasted of performing 2,000 autopsies in a single year.
Their questionable methodologies in forensic dentistry led to the convictions in separate cases of Kennedy Brewer and Levon Brooks who both spent over a decade on death row for the rapes and murders of two young girls, whose bodies were hidden in stagnant ponds in rural Mississippi. Their convictions were based on the bogus forensic evidence testimony of West and Brooks who claimed that crayfish bites on the bodies of the children were made by their front teeth.
Another bite mark comparison case involved the recently released Eddie Lee Howard who was wrongfully convicted for capital murder of an 84 year old white woman in 1994. He served 30 years on death row because of evidence at his trial that rested almost entirely on the now debunked technique of bite mark comparisons, although Hayne’s initial autopsy report made no mention of bite marks. In addition to this, the Mississippi State arson “expert” wrongly narrowed the timeframe in which the murder could have taken place, which undermined Mr. Howard’s alibi. Mr. Howard’s case marks the 28th case based on bite mark comparisons that has resulted in an appeal and exoneration.
Ledell Lee was executed on April 19, 2017 by lethal injection by the Arkansas Department of Corrections after 22 years spent on Death Row for the murder of a white woman, Debra Reese in Jacksonville, Arkansas. Lee was convicted at his second trial, when the first resulted in a hung jury, on evidence from inconsistent neighborhood witnesses and faulty expert testimony. Lee’s fingerprints did not match any of those found at the crime scene and there was sworn testimony from both acquaintances and family members as to his whereabouts during the time when the murder occurred.
Four years after his execution, lawyers associated with the Innocence Project and the American Civil Liberties Union say that DNA test results indicate that genetic material on the murder weapon belonged to another person. The State’s expert witness claimed that Lee’s shoes exactly matched two partial footprints found at the crime scene, yet his only training in footwear comparison methods was a one-week FBI course. He failed to notice the numerous distinctive markings on the patterned soles of Lee’s shoes which did not appear on the shoeprint impressions found at the crime scene.
The recent trial and sentencing of former police officer Derrick Chauvin also underscores the need to properly evaluate the testimony of forensic experts. During the Chauvin trial, former Maryland medical examiner David Fowler testified for the defense that the death of George Floyd should be considered undetermined rather than ruled a homicide. Rather than accepting the fact that Chauvin’s knee on the neck of George Floyd for over 9 minutes caused his asphyxiation, Fowler cited George Floyd’s heart condition, carbon monoxide from the vehicle exhaust and fentanyl and methamphetamine use as contributing factors.
In Maryland, Fowler is one of several parties being sued by the family of 19 year old Anton Black, who died in police custody in 2018. Video evidence of the incident showed three white police officers and a white civilian, “chasing [Black], tasing him, and pinning him face down after he was handcuffed and at which point he stopped breathing.”
Fowler testified that Black’s death was the result of a sudden cardiac arrest, and that contributing factors included Black’s heart condition and bipolar disorder, and of course, drug use. Fowler’s medical examiner’s report caused the State’s attorney’s office to refuse to convene a grand jury or prosecute the white officers. This finding ignored the fact that Black’s body showed evidence of 43 blunt force trauma wounds and that one officer involved in Black’s killing had 30 use-of-force reports filed against him while with the Dover, Delaware police department.
After his retirement in 2019, Fowler was employed by a New York based review team known as The Forensics Panel who provided attorneys with paid experts in pathology, psychology, neuropsychology, neuroradiology and toxicology. Maryland Attorney General Brian Frosh has promised to review Fowler’s record relating to any in-custody deaths during his 2002 to 2019 tenure as State Medical Examiner.
A major cause for wrongful conviction among people of color and the poor is the testimony of unqualified forensic scientists. Forensic science is just a tool and must only be used by those who respect that it is just that, a tool.
Jodie Warren is a forensic entomologist and Assistant Professor at San José State University and a Public Voices Fellow with the OpEd Project.