1 Unit 1: Introduction to Forensic Science 1 Unit 1: Introduction to Forensic Science

1.1 Class 1: Overview -Junk Science 1.1 Class 1: Overview -Junk Science

Training Officers to Shoot First, and He Will Answer Questions Later Training Officers to Shoot First, and He Will Answer Questions Later

Matt Apuzzo, The New York Times (Aug. 1, 2015) (Kitty Bennett contributed research)

This article uses a painful and perpetually timely topic (police shootings of civilians and the failure of the legal system to impose consequences) to illustrate the broader problem of admitting expert testimony that may lack a sufficient scientific basis.

William J. Lewinski, a psychologist who has studied police shootings, held a training session at the Association for Los Angeles Deputy Sheriffs in Monterey Park, Calif., last month. Credit Michal Czerwonka for The New York Times

 

WASHINGTON — The shooting looked bad. But that is when the professor is at his best. A black motorist, pulled to the side of the road for a turn-signal violation, had stuffed his hand into his pocket. The white officer yelled for him to take it out. When the driver started to comply, the officer shot him dead.

The driver was unarmed.

Taking the stand at a public inquest, William J. Lewinski, the psychology professor, explained that the officer had no choice but to act.

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

When police officers shoot people under questionable circumstances, Dr. Lewinski is often there to defend their actions. Among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country.

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

He has appeared as an expert witness in criminal trials, civil cases and disciplinary hearings, and before grand juries, where such testimony is given in secret and goes unchallenged. In addition, his company, the Force Science Institute, has trained tens of thousands of police officers on how to think differently about police shootings that might appear excessive.

A string of deadly police encounters in Ferguson, Mo.; North Charleston, S.C.; and most recently in Cincinnati, has prompted a national reconsideration of how officers use force and provoked calls for them to slow down and defuse conflicts. But the debate has also left many police officers feeling unfairly maligned and suspicious of new policies that they say could put them at risk. Dr. Lewinski says his research clearly shows that officers often cannot wait to act.

“We’re telling officers, ‘Look for cover and then read the threat,’ ” he told a class of Los Angeles County deputy sheriffs recently. “Sorry, too damn late.”

A former Minnesota State professor, he says his testimony and training are based on hard science, but his research has been roundly criticized by experts. An editor for The American Journal of Psychology called his work “pseudoscience.” The Justice Department denounced his findings as “lacking in both foundation and reliability.” Civil rights lawyers say he is selling dangerous ideas.

An Expert on the Stand

While his testimony at times has proved insufficient to persuade a jury, his record includes many high-profile wins.

“He won’t give an inch on cross-examination,” said Elden Rosenthal, a lawyer who represented the family of James Jahar Perez, the man killed in the 2004 Portland shooting. In that case, Dr. Lewinski also testified before the grand jury, which brought no charges. Defense lawyers like Dr. Lewinski, Mr. Rosenthal said. “They know that he’s battle-hardened in the courtroom, so you know exactly what you’re getting.”

Dr. Lewinski, 70, is affable and confident in his research, but not so polished as to sound like a salesman. In testimony on the stand, for which he charges nearly $1,000 an hour, he offers winding answers to questions and seldom appears flustered. He sprinkles scientific explanations with sports analogies.

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Of course, it follows that batters will sometimes swing at bad pitches, and that officers will sometimes shoot unarmed people.

Much of the criticism of his work, Dr. Lewinski said, amounts to politics. In 2012, for example, just seven months after the Justice Department excoriated him and his methods, department officials paid him $55,000 to help defend a federal drug agent who shot and killed an unarmed 18-year-old in California. Then last year, as part of a settlement over excessive force in the Seattle Police Department, the Justice Department endorsed sending officers to Mr. Lewinski for training. And in January, he was paid $15,000 to train federal marshals.

If the science is there, Dr. Lewinski said, he does not shy away from offering opinions in controversial cases. He said he was working on behalf of one of two Albuquerque officers who face murder charges in last year’s shooting death of a mentally ill homeless man. He has testified in many racially charged cases involving white officers who shot black suspects, such as the 2009 case in which a Bay Area transit officer shot and killed Oscar Grant, an unarmed black man, at close range.

Dr. Lewinski said he was not trying to explain away every shooting. But when he testifies, it is almost always in defense of police shootings. Officers are his target audience — he publishes a newsletter on police use of force that he says has nearly one million subscribers — and his research was devised for them. “The science is based on trying to keep officers safe,” he said.

Dr. Lewinski, who grew up in Canada, got his doctorate in 1988 from the Union for Experimenting Colleges and Universities, an accredited but alternative Cincinnati school offering accelerated programs and flexible schedules. He designed his curriculum and named his program police psychology, a specialty not available elsewhere.

‘Invalid and Unreliable’

In 1990, a police shooting in Minneapolis changed the course of his career. Dan May, a white police officer, shot and killed Tycel Nelson, a black 17-year-old. Officer May said he fired after the teenager turned toward him and raised a handgun. But an autopsy showed he was shot in the back.

Dr. Lewinski was intrigued by the apparent contradiction. “We really need to get into the dynamics of how this unfolds,” he remembers thinking. “We need a lot better research.”

He began by videotaping students as they raised handguns and then quickly turned their backs. On average, that move took about half a second. By the time an officer returned fire, Dr. Lewinski concluded, a suspect could have turned his back.

He summarized his findings in 1999 in The Police Marksman, a popular magazine for officers. The next year, it published an expanded study, in which Dr. Lewinski timed students as they fired while turning, running or sitting with a gun at their side, as if stashed in a car’s console.

Suspects, he concluded, could reach, fire and move remarkably fast. But faster than an officer could react? In 2002, a third study concluded that it takes the average officer about a second and a half to draw from a holster, aim and fire.

Together, the studies appeared to support the idea that officers were at a serious disadvantage. The studies are the foundation for much of his work over the past decade.

Because he published in a police magazine and not a scientific journal, Dr. Lewinski was not subjected to the peer-review process. But in separate cases in 2011 and 2012, the Justice Department and a private lawyer asked Lisa Fournier, a Washington State University professor and an American Journal of Psychology editor, to review Dr. Lewinski’s studies. She said they lacked basic elements of legitimate research, such as control groups, and drew conclusions that were unsupported by the data.

“In summary, this study is invalid and unreliable,” she wrote in court documents in 2012. “In my opinion, this study questions the ability of Mr. Lewinski to apply relevant and reliable data to answer a question or support an argument.”

Dr. Lewinski said he chose to publish his findings in the magazine because it reached so many officers who would never read a scientific journal. If he were doing it over, he said in an interview, he would have published his early studies in academic journals and summarized them elsewhere for officers. But he said it was unfair for Dr. Fournier to criticize his research based on summaries written for a general audience.While opposing lawyers and experts found his research controversial, they were particularly frustrated by Dr. Lewinski’s tendency to get inside people’s heads. Time and again, his reports to defense lawyers seem to make conclusive statements about what officers saw, what they did not, and what they cannot remember.

Often, these details are hotly disputed. For example, in a 2009 case that revolved around whether a Texas sheriff’s deputy felt threatened by a car coming at him, Dr. Lewinski said that the officer was so focused on firing to stop the threat, he did not immediately recognize that the car had passed him.

Inattentional Blindness

Such gaps in observation and memory, he says, can be explained by a phenomenon called inattentional blindness, in which the brain is so focused on one task that it blocks out everything else. When an officer’s version of events is disproved by video or forensic evidence, Dr. Lewinski says, inattentional blindness may be to blame. It is human nature, he says, to try to fill in the blanks.

“Whenever the cop says something that’s helpful, it’s as good as gold,” said Mr. Burton, the California lawyer. “But when a cop says something that’s inconvenient, it’s a result of this memory loss.”

Experts say Dr. Lewinski is too sure of himself on the subject. “I hate the fact that it’s being used in this way,” said Arien Mack, one of two psychologists who coined the term inattentional blindness. “When we work in a lab, we ask them if they saw something. They have no motivation to lie. A police officer involved in a shooting certainly has a reason to lie.”

Dr. Lewinski acknowledged that there was no clear way to distinguish inattentional blindness from lying. He said he had tried to present it as a possibility, not a conclusion.

Almost as soon as his research was published, lawyers took notice and asked him to explain his work to juries.

In Los Angeles, he helped authorities explain the still-controversial fatal shooting of Anthony Dwain Lee, a Hollywood actor who was shot through a window by a police officer at a Halloween party in 2000. The actor carried a fake gun as part of his costume. Mr. Lee was shot several times in the back. The officer was not charged.

The city settled a lawsuit over the shooting for $225,000, but Mr. Lewinski still teaches the case as an example of a justified shooting that unfairly tarnished a good officer who “was shooting to save his own life.”

In September 2001, a Cincinnati judge acquitted a police officer, Stephen Roach, in the shooting death of an unarmed black man after a chase. The officer said he believed the man, Timothy Thomas, 19, was reaching for a gun. Dr. Lewinski testified, and the judge said he found his analysis credible. The prosecutor, Stephen McIntosh, however, told The Columbus Dispatch that Dr. Lewinski’s “radical” views could be used to justify nearly any police shooting.

“If that’s the sort of direction we, as a society, are going,” the prosecutor said, “I have a lot of disappointment.” Since then, Dr. Lewinski has testified in many dozens of cases in state and federal court, becoming a hero to many officers who feel that politics, not science or safety, drives police policy. For example, departments often require officers to consider less-lethal options such as pepper spray, stun guns and beanbag guns before drawing their firearms.

“These have come about because of political pressure,” said Les Robbins, the executive director of the Association for Los Angeles Deputy Sheriffs. In an interview, Mr. Robbins recalled how he used to keep his gun drawn and hidden behind his leg during most traffic stops. “We used to be able to use the baton and hit people where we felt necessary to get them to comply. Those days are gone.”

Positions of Authority

Dr. Lewinski and his company have provided training for dozens of departments, including in Cincinnati, Las Vegas, Milwaukee and Seattle. His messages often conflict, in both substance and tone, with the training now recommended by the Justice Department and police organizations.

The Police Executive Research Forum, a group that counts most major city police chiefs as members, has called for greater restraint from officers and slower, better decision making. Chuck Wexler, its director, said he is troubled by Dr. Lewinski’s teachings. He added that even as chiefs changed their use-of-force policies, many did not know what their officers were taught in academies and private sessions.

“It’s not that chiefs don’t care,” he said. “It’s rare that a chief has time to sit at the academy and see what’s being taught.”

Regardless of what, if any, policy changes emerge from the current national debate, civil right lawyers say one thing will not change: Jurors want to believe police officers, and Dr. Lewinski’s research tells them that they can.

On a cold night in early 2003, for instance, Robert Murtha, an officer in Hartford, Conn., shot three times at the driver of a car. He said the vehicle had sped directly at him, knocking him to the ground as he fired. Video from a nearby police cruiser told another story. The officer had not been struck. He had fired through the driver’s-side window as the car passed him.

Officer Murtha’s story was so obviously incorrect that he was arrested on charges of assault and fabricating evidence. If officers can get away with shooting people and lying about it, the prosecutor declared, “the system is doomed.”

“There was no way around it — Murtha was dead wrong,” his lawyer, Hugh F. Keefe, recalled recently. But the officer was “bright, articulate and truthful,” Mr. Keefe said. Jurors needed an explanation for how the officer could be so wrong and still be innocent.

Dr. Lewinski testified at trial. The jury deliberated less than one full day. The officer was acquitted of all charges.

 

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1.2 Class 2: Context - Racism 1.2 Class 2: Context - Racism

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Excerpt from Radically Reimagining Forensic Evidence Excerpt from Radically Reimagining Forensic Evidence

Maneka Sinha, Radically Reimagining Forensic Evidence, 73 Alabama Law Review 879 (2022)

This excerpt provides some important information on the roots and purpose of forensic analysis in criminal cases. Professor Sinha is a Professor at the University of Maryland School of Law and was previously the head of the Forensic Practice Group at the Public Defender Service of D.C.

 

Forensic methods enable surveillance, prosecution, conviction, and punishment, the core inputs and outputs of the criminal legal system.[1] Black, Brown, and other marginalized groups, overrepresented in the criminal legal system, are especially impacted by these methods. Forensic techniques allow law enforcement to surveil and monitor: DNA and fingerprint databases, in which Black and Brown people are overrepresented, house identifying information of millions of individuals and allow police to monitor and supervise communities;[2] police use, often in secret, sophisticated location tracking devices to surveil; and emerging technologies, like facial recognition systems, allow even greater mass monitoring and surveillance.[3] Databases like the FBI’s Combined DNA Index System (CODIS), the Automated Fingerprint Identification System (AFIS), and even consumer DNA databases amass biometric data in seeming perpetuity, widening law enforcement’s net of possible suspects.[4] Unsurprisingly, people of color, and Black people especially, are most affected by these tactics, as law enforcement monitors their communities more than those of other, non-marginalized populations.[5] Not only do forensic methods enable carceral harm, they also launder and legitimize it by cloaking carceral functions with the allegedly neutral and objective aura of “science.”[6]

. . .

1.      The Carceral Origins of Forensic Methods

“[M]any forensic fields (e.g., firearms analysis, latent fingerprint identification) are but handmaidens of the legal system, and they have no significant uses beyond law enforcement.”[7]

* * *

. . .

Most forensic methods were first developed in police departments as investigative aids meant to produce evidence that would connect suspects to crimes and secure convictions.[8] Despite the nomenclature, other than DNA analysis, the forensic sciences did not arise out of academia, research institutions or scientific laboratories—they do not have their origins in the sciences at all.[9] Their development was financed by the “War on Crime,” launched by President Lyndon Johnson in 1965, and the better-known “War on Drugs,” which brought federal funding to local police departments to effectuate national crime policy.

In the mid-1960s, partially in response to unrest in urban cities related to discriminatory policing, mass fear around rising crime took hold across America and in national politics.[10] As part of a federal response to the perceived threat of crime and disorder, in 1965, President Lyndon Johnson launched the “War on Crime”—the less famous precursor to President Nixon and Reagan’s “War on Drugs”—and sent Congress the Law Enforcement Assistance Act.[11] The passage of the Law Enforcement Assistance Act was a watershed moment in American law enforcement; it marked the beginning of the modern era of criminal justice in which the federal government  plays a direct role in local law enforcement.[12]

The Law Enforcement Assistance Act paved the way not only for mass criminalization, but also for the widespread use of forensic methods in law enforcement seen today.[13] In the leadup to the passage of the Law Enforcement Act, President Johnson established a national commission to study the perceived crime problem and develop a national law enforcement program.[14] The commission focused its efforts on urban Black communities, which it believed to be at the center of the crime problem, without consultation with members of those communities.[15]

The commission’s sweeping final report, issued in 1967, made hundreds of wide-ranging recommendations.[16] Among these were recommendations to improve police ability to utilize technological advancements like fingerprint and voiceprint analysis and other forensic techniques by establishing additional crime labs and conducting research to facilitate the use of such techniques to aid in law enforcement efforts.[17] The commission also suggested that future crime solving would require collection and forensic analysis of physical crime scene evidence, including fingerprints, weapons, shoeprints, and trace evidence, and encouraged investment in lab services and the establishment of a central fingerprint database.[18]

These recommendations were a significant factor in paving the way for increased attention to the development and utilization of forensic methods.[19] The commission’s recommendations became the basis for legislation that provided unprecedented funding to local law enforcement agencies to facilitate these new initiatives.[20] Billions of dollars were ultimately sent to local law enforcement, which allowed the development of methods to collect and analyze physical crime scene evidence and resulted in the proliferation of police crime labs.[21] Notably, War on Crime dollars also went to funding of surveillance technologies focusing on Black communities that included helicopter systems, crime prediction programs, and mobile surveillance units.[22]

. . .

As a result of its law enforcement origins, forensic disciplines have a natural alignment with one side of the adversarial process: the prosecution.[23] That alignment runs deep.[24] Forensic practitioners both work for and communicate heavily with prosecutors and rarely work collaboratively with defense lawyers without prosecutors listening in.[25] As a result, forensic practitioners often see themselves as part of the prosecution team, exhibiting pro-prosecution bias and willingness to provide testimony that supports the prosecution’s case, even when unwarranted.[26] Even those who do not view themselves as an arm of law enforcement may be pressured to return the result sought by the prosecution.[27]

Though most forensic methods were developed outside the scientific process without integrating fundamentals of the scientific method, law enforcement coopted the term “science” as part of a strategy to professionalize police departments by connecting them to science and to lend weight and credibility to forensic techniques.[28] Practitioners described themselves as forensic “scientists,” when they are often more aptly characterized as technicians, who focus on the application of methods rather than research or theory.[29] Police departments created crime laboratories not for testing theories and hypotheses, but at least in part for public relations.[30]

Because forensics inherited law enforcement’s concern for securing convictions, the scientific method and process were often left by the wayside in the development of forensic methods.[31] Given that those targeted for prosecution and conviction are disproportionately Black, Brown, or otherwise of color,[32] it comes as no surprise that those convicted by unreliable forensic evidence are also members of marginalized communities. The overlap between the increased use of forensic techniques and the mass expansion of the criminal legal system makes clear that those who have been hit hardest by nearly five decades of expanded criminalization, Black and Brown communities,[33] are also the most likely to bear the brunt of flawed forensics in their cases. It is difficult to quantify the effects of flawed forensics, but the available data bear this out. The National Registry of Exonerations reports that problematic forensic evidence has contributed to twenty-four percent of wrongful convictions.[34] Of that group, fifty-four percent of those convicted are Black or Latinx.[35]

. . . 

Footnotes:

[1] See Mnookin et al., supra note 116, at 726.

[2] See Ava Kofman, The FBI Wants to Exempt Massive Biometric Database from the Privacy Act, The Intercept (June 1, 2016), https://theintercept.com/2016/06/01/the-fbi-wants-to-exempt-massive-biometric-database-from-the-privacy-act/; Natalie Ram, The U.S. May Soon Have a De Facto National DNA Database, Slate (Mar. 19, 2019), https://slate.com/technology/2019/03/national-dna-database-law-enforcement-genetic-genealogy.html; Privacy Impact Assessment Integrated Automated Fingerprint Identification System National Security Enhancements, FBI (last visited Mar. 5, 2021), https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/iafis; Erin Murphy & Jun H. Tong, The Racial Composition of Forensic DNA Databases, 108 Calif. L. Rev. 1847, 1851 (2020); Denise Syndercombe Court, Protecting against racial bias in DNA databasing, 1 Nature Computational Sci. 249, 249 (2021).

[3] Lindsey Barret, Ban Facial Recognition Technologies for Children and for Anyone Else, 26 B.U. J. Sci. & Tech. 223, 240 (2020); Andrew Guthrie Ferguson, Facial Recognition and the Fourth Amendment, 105 Minn. L. Rev. 1105, 1112 (2021).

[4] Natalie Ram, Erin Murphy & Sonia Suter, Regulating forensic genetic genealogy, 373 Science 1444, 1444 (2021).

[5] See Murphy & Tong, supra note 82, at 1851.

[6] See Cino, supra note 126, at 540 (“[E]veryone can sleep better at night because ‘science’ solidified the conviction.”).

[7] NAS Report, supra note 2, at 52.

[8] See NAS Report, supra note 2, at 42, 187; Meehan Crist & Tim Requarth, Forensic Science Put Jimmy Genrich in Prison for 24 Years. What if It Wasn’t Science?: A Special Investigation Reveals a Disastrous Flaw Affecting Thousands of Criminal Convictions, The Nation (Feb. 1, 2018), https://www.thenation.com/article/archive/the-crisis-of-american-forensics/; Terrence F. Kiely, The Houses of Deceits: Science, Forensic Science, and Evidence and Introduction to Forensic Evidence, 35 Land & Water L. Rev. 397, 415 (2000).

[9] Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in the Criminal Courts, 86 Fordham L. Rev. 1661, 1668 (2018); Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 Utah L. Rev. 247, 250; NAS Report, supra note 2, at 42; Sandra Guerra Thompson, Cops in Lab Coats: Curbing Wrongful Convictions through Independent Forensic Laboratories 195 (2015); Radley Balko, Opinion, Jeff Sessions Wants to Keep Forensics in the Dark Ages, Wash. Post (Apr. 11, 2017), https://www.washingtonpost.com/news/the-watch/wp/2017/04/11/jeff-sessions-wants-to-keep-forensics-in-the-dark-ages/.

[10] See Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America 6, 55-56 (2016). In reality, and contrary to popular belief, reported rising crime rates corresponded to newly-implemented crime statistics measures and reporting policies that coincided with new federal crime control funding tied to reported crime rates. Id.

[11] Id. at 6, 56

[12] Id. at 1-2.

[13] Id. at 5; Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 Stetson L. Rev. 621, 623-25 (2007).

[14] President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, U.S. Gov’t Printing Off., Foreword (1967) [hereinafter Crime Commission Report], https://www.ojp.gov/sites/g/files/xyckuh241/files/archives/ncjrs/42.pdf; Hinton, supra note 91, at 80-81.

[15] Id. at 83-83.

[16] Crime Commission Report, supra note 95, at 293-301.

[17] Id. at 245-46, 255.

[18] President’s Commission on Law Enforcement and Administration of Justice, Task Force On the Police, Task Force Report: The Police, U.S. Gov’t Printing Off., 51, 57, 92 (1967), https://www.ojp.gov/pdffiles1/Digitization/147374NCJRS.pdf.

[19] Id. at 92.

[20] Hinton, supra note 91, at 2, 104; Peterson & Leggett, supra note 94, at 623.

[21] Peterson & Leggett, supra note 94, at 625.

[22] Hinton, supra note 91, at 87, 90-92.

[23] Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1092 (1998).

[24] Id.

[25] See Nicole Bremner Cásarez & Sandra Guerra Thompson, Three Transformative Ideals to Build a Better Crime Lab, 34 Ga. St. U. L. Rev. 1007, 1008 (2018). Of course, the accused use forensic evidence too, but with far less frequency and typically in response to prosecution evidence. Id.

[26] See, e.g., Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439, 441 (1997).

[27] See NAS Report, supra note 2, at 23–24.

[28] See Crist & Requarth, supra note 89; Radley Balko, A Brief History of Forensics, Wash. Post (Apr. 21, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/04/21/a-brief-history-of-forensics/; Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 766 (2011).

[29] Michael J. Saks & David L. Faigman, Failed Forensics: How Forensic Science Lost Its Way and How It Might Yet Find It, 4 Ann. Rev. L. & Soc. Sci. 149, 153 (2008); Mnookin et al., supra note 116, at 766. See also Paul C. Giannelli, Forensic Science: Why No Research?, 38 Fordham Urb. L.J. 503, 508-09 (2010).

[30] Saks, supra note 111, at 1092. See also Crist & Requarth, supra note 89.

[31] See Saks and Faigman, supra note 117 at 157–58.

[32] See Race and Ethnicity, Prison Policy Initiative, https://www.prisonpolicy.org/research/race_and_ethnicity/ (consolidating data on, inter alia, overrepresentation of people of color in the criminal legal system).

[33] Criminal Justice Facts, Sentencing Project, https://www.sentencingproject.org/criminal-justice-facts (last visited Mar. 4, 2021); Levin, supra note 88, at 260–61.

[34] See % Exonerations by Contributing Factors, Nat’l Registry Of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last visited Mar. 4, 2021).

[35] The National Registry of Exonerations lists 665 wrongful convictions as involving faulty forensic evidence as a contributing factor. Id. Of those, it lists 301 as Black and 54 as “Hispanic.” Search Results, Nat’l Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={FAF6EDDB-5A68-4F8F-8A52-2C61F5BF9EA7}&FilterField1=F%5Fx002f%5FMFE&FilterValue1=8%5FF%2FMFE (last visited Mar. 4, 2021).

With George Floyd, a Raging Debate Over Bias in the Science of Death With George Floyd, a Raging Debate Over Bias in the Science of Death

By Shaila Dewan, The New York Times, (April 14, 2021 Updated April 16, 2021)

With George Floyd, a Raging Debate Over Bias in the Science of Death

Critics say the profession of forensic pathology has been slow to acknowledge how big a role bias may play in decisions such as whether to classify a death in police custody as a homicide.

The memorial to George Floyd outside Cup Foods. The question of how Mr. Floyd died is central to the case against Derek Chauvin.Credit...Joshua Rashaad McFadden for The New York Times

By Shaila Dewan

Published April 14, 2021 Updated April 16, 2021

MINNEAPOLIS — From the beginning, the death of George Floyd disrupted the field of forensic pathology in much of the way it challenged policing.

Days after Mr. Floyd’s death on May 25, prosecutors said it was caused not just by the police officer kneeling on his neck for nine minutes and 29 seconds, but also by his underlying health conditions and drug use.

Critics protested that the finding reflected racial bias — and served as a prime example of how forensic pathology has failed to do enough to counter its own subjectivity in decisions such as whether to classify a death in police custody as a homicide.

The public criticism helped expose long-simmering tensions within the small but influential world of medical examiners, drawing in some of the experts who consulted on the case or may be called to testify for the defense.

Some of them have vigorously objected to a study, published just before the trial began, that measured bias among forensic pathologists, taking the unusual step of asking that it be retracted.

The timing of the paper was “particularly alarming in the era of Black Lives Matter, critical race theory, riots and so forth,” wrote Dr. Brian L. Peterson, the Milwaukee County medical examiner, in one of several emails to a private forensic pathology email list obtained by The New York Times. “What is woke today is fodder tomorrow.”

Medical examiners say that of course they, like everyone else, have biases — but that they already have ample systems in place, including courtroom scrutiny of their decisions, to curb them. In fact, Dr. Peterson wrote, the notion that cause-of-death determinations are objective and science-based is “basically nonsense.”

“Is there anyone in our profession that has not, at one point or another, quipped about ‘spinning the wheel of death’ and picking one?”

After the Journal of Forensic Sciences published the study, which showed that medically irrelevant information like the victim’s race can sway the decisions of forensic pathologists, Dr. Peterson, along with Dr. David Fowler and Dr. William Oliver, signed a letter asking that it be retracted, calling it “fatally flawed.”

The Journal of Forensic Sciences, which published the paper, declined to retract it.

Dr. Brian L. Peterson has said that the idea that cause-of-death decisions are objective and science-based is “basically nonsense.” He is set be called as a witness by the defense for Mr. Chauvin.Credit...Sara Stathas

Dr. Fowler, who testified on Wednesday for Mr. Chauvin’s defense, is the former chief medical examiner of Maryland, and Dr. Oliver, who was also listed as a potential defense witness, is a professor at the Brody School of Medicine in North Carolina.

Dr. Fowler testified that there were so many factors contributing to Mr. Floyd’s death, including heart disease and high blood pressure, that he would have classified the manner of death as “undetermined” rather than as “homicide.”

Dr. Fowler is named in a civil rights lawsuit filed by the family of Anton Black, an unarmed Black teenager who died in Baltimore in 2018 after officers held him down in the prone position for about six minutes. The family has compared his death to the death of Mr. Floyd. Dr. Fowler’s office classified it as an accident.

Complaints of bias have long hung over the Floyd case. Four days after Mr. Floyd’s death, the county prosecutors listed what they said were preliminary autopsy findings in a criminal complaint that many said undermined their own case against the officers involved.

An opinion piece written by 12 doctors and published in Scientific American called the complaint “a weaponization of medical language” that “reinforced white supremacy at the torment of Black Americans.”

“They took standard components of a preliminary autopsy report to cast doubt, to sow uncertainty; to gaslight America into thinking we didn’t see what we know we saw,” they wrote.

The state attorney general, Keith Ellison, soon took over the case.

By then the Floyd family had hired two forensic pathologists, a white man and a Black woman, to conduct their own autopsies. Both of them, Dr. Michael Baden and Dr. Allecia Wilson, said that asphyxia, or deprivation of oxygen, was the cause of death and placed the blame squarely on the police officers involved.

Second autopsies have long been a common practice, in part because medical examiners have longstanding relationships with prosecutors and the police, raising concerns about their objectivity in deaths involving officers.

But in Mr. Floyd’s case the main professional organization for forensic pathologists, the National Association of Medical Examiners, took the unusual step of issuing a statement that many perceived as critical of the practice.

The association’s primary goal seemed to be to defend Dr. Andrew Baker, the Hennepin County medical examiner and a past president of the association, who performed the Floyd autopsy.

Dr. Andrew Baker, the Hennepin County medical examiner who performed George Floyd’s official autopsy, testified in court on Friday.Credit...Still image, via Court TV

After his report, which classified the death as a homicide and listed heart disease, fentanyl and methamphetamine as contributing factors to Mr. Floyd’s death, was released last June, an emergency fence and concrete barricades were erected around his office.

The statement from the association took issue with news reports that described the private autopsies by Drs. Baden and Wilson as “independent,” implying that Dr. Baker’s was compromised.

“The independent autopsy is the one done by the medical examiner who, unlike private pathologists, do not have an incentive to come up with a certain view,” it said.

But private autopsies are a routine stream of income for many forensic pathologists, and the association began to receive complaints, including one from one of the country’s most renowned forensic pathologists, Cyril Wecht. Another came from Dr. Wilson, one of the pathologists hired by the Floyd family.

“Our fight should not be between each other but working together to understand why Black men are dying so quickly when taken into police custody,” Dr. Wilson wrote, saying the Floyd family’s consulting with her was akin to a patient’s getting a second opinion. She noted that the practice had never before earned a rebuke from the association.

“I am particularly offended as I have watched Dr. Baden make controversial opinions my entire career, but when another, a Black woman, has a controversial opinion, it is handled quite differently,” she wrote.

The medical examiners association retracted the statement.

An image taken from a video of Dr. Allecia Wilson delivering her autopsy findings in Mr. Floyd’s death. Dr. Wilson and Dr. Michael Baden, both forensic pathologists, were hired by the Floyd family to conduct their own autopsies.

Its leaders also invited Dr. Joye Carter to help develop a protocol for second autopsies. Dr. Carter says she is the first Black woman to be board certified in forensic pathology in the United States and the first Black person appointed to be a chief medical examiner, a position she held in Washington, D.C., and Houston. She consulted on the Floyd case for the prosecution.

Dr. Carter had discontinued her membership in the national association five years before. “I never felt welcome. I never felt included,” she said. “You know, there’s a difference between feeling welcomed and feeling tolerated.”

She agreed to come back and was hopeful that things had changed, especially after she was asked to chair a new diversity committee.

Because of that, she said, she did not anticipate any controversy when she signed on to the study on bias among forensic pathologists, led by Itiel Dror, a cognitive neuroscientist who specializes in expert error and bias. The authors examined 10 years of children’s death certificates in Nevada and found that the deaths of Black children were a little more likely to be classified as homicides, rather than accidents, compared with deaths of white children.

They also sent a death scenario to forensic pathologists, and found that those who responded were more likely to rule it a homicide when the child in the scenario was Black and cared for by the mother’s boyfriend than when the child was white and cared for by a grandmother.

The authors said the study was merely a starting point for research and suggested that forensic pathologists further explore how and when contextual information should be used, and be transparent when using it.

Four of the study’s authors were forensic pathologists, including Dr. Carter.

In February, Dr. Peterson, the potential defense witness in Mr. Floyd’s case, filed an ethics complaint against all four, accusing them of “conduct averse to the best interests and purposes” of the profession.

“By basically accusing every member of ‘unconscious’ racism, a charge impossible to either prove or refute, members will henceforth need to confront this bogus issue whenever testifying in court,” he wrote in the complaint, a copy of which was obtained by The Times.

Dr. Peterson did not respond to a message left with his office, where a spokeswoman said he was on vacation. Ethics complaints are supposed to be confidential, and the accused doctors declined to discuss it or did not respond to a request for comment.

The vitriolic response to the study surprised Dr. Carter.

“I was kind of blown away by what appears to be very irate reaction,” she said. “And I’m not sure if everyone has truly read the article for what it is. It’s an article that suggests, let’s be aware of this, let’s be proactive in this. I don’t think anybody, any physician of color, would say, ‘Gee, this is earthshaking news.’”

 

Opinion: I was wrongfully arrested because of facial recognition. Why are police allowed to use it? Opinion: I was wrongfully arrested because of facial recognition. Why are police allowed to use it?

By Robert Williams, The New York Times (June 24, 2020)

By Robert Williams

June 24, 2020

Robert Williams is a resident of Farmington Hills, Mich., and client of the American Civil Liberties Union.

I never thought I’d have to explain to my daughters why Daddy got arrested. How does one explain to two little girls that a computer got it wrong, but the police listened to it anyway?

While I was leaving work in January, my wife called and said a police officer had called and said I needed to turn myself in. I told her it was probably a prank. But as I pulled up to my house, a Detroit squad car was waiting in front. When I pulled into the driveway, the squad car swooped in from behind to block my SUV — as if I would make a run for it. One officer jumped out and asked if I was Robert Williams. I said I was. He told me I was under arrest. When I asked for a reason, he showed me a piece of paper with my name on it. The words “arrest warrant” and “felony larceny” were all I could make out.

By then, my wife, Melissa, was outside with our youngest in her arms, and my older daughter was peeking around my wife trying to see what was happening. I told my older daughter to go back inside, that the cops were making a mistake and that Daddy would be back in a minute.

But I wasn’t back in a minute. I was handcuffed and taken to the Detroit Detention Center.

As any other person would be, I was angry that this was happening to me. As any other black man would be, I had to consider what could happen if I asked too many questions or displayed my anger openly — even though I knew I had done nothing wrong.

When we arrived at the detention center, I was patted down probably seven times, asked to remove the strings from my shoes and hoodie and fingerprinted. They also took my mugshot. No one would tell me what crime they thought I’d committed. A full 18 hours went by. I spent the night on the floor of a filthy, overcrowded cell next to an overflowing trash can.

The next morning, two officers asked if I’d ever been to a Shinola watch store in Detroit. I said once, many years ago. They showed me a blurry surveillance camera photo of a black man and asked if it was me. I chuckled a bit. “No, that is not me.” He showed me another photo and said, “So I guess this isn’t you either?” I picked up the piece of paper, put it next to my face and said, “I hope you guys don’t think that all black men look alike.”

The cops looked at each other. I heard one say that “the computer must have gotten it wrong.” I asked if I was free to go now, and they said no. I was released from detention later that evening, after nearly 30 hours in holding.

I eventually got more information from an attorney referred to me by the American Civil Liberties Union of Michigan. Someone had stolen watches, and the store owner provided surveillance footage to the Detroit Police Department. They sent that footage to the Michigan State Police, who then ran it through their facial-recognition system. That system incorrectly spit out a photograph of me pulled from an old driver’s license picture.

Federal studies have shown that facial-recognition systems misidentify Asian and black people up to 100 times more often than white people. Why is law enforcement even allowed to use such technology when it obviously doesn’t work? I get angry when I hear companies, politicians and police talk about how this technology isn’t dangerous or flawed. What’s worse is that, before this happened to me, I actually believed them. I thought, what’s so terrible if they’re not invading our privacy and all they’re doing is using this technology to narrow in on a group of suspects?

I wouldn’t be surprised if others like me became suspects but didn’t know that a flawed technology made them guilty in the eyes of the law. I wouldn’t have known that facial recognition was used to arrest me had it not been for the cops who let it slip while interrogating me.

The ACLU is lodging a complaint against the police department on my behalf, but that likely won’t change much. My daughters can’t unsee me being handcuffed and put into a police car. But they can see me use this experience to bring some good into the world. That means helping make sure my daughters don’t grow up in a world where their driver’s license or Facebook photos could be used to target, track or harm them.

Even if this technology does become accurate (at the expense of people like me), I don’t want my daughters’ faces to be part of some government database. I don’t want cops showing up at their door because they were recorded at a protest the government didn’t like. I don’t want this technology automating and worsening the racist policies we’re protesting. I don’t want them to have a police record for something they didn’t do — like I now do.

I keep thinking about how lucky I was to have spent only one night in jail — as traumatizing as it was. Many black people won’t be so lucky. My family and I don’t want to live with that fear. I don’t want anyone to live with that fear.

Editor’s note: In response to request for comment from The Post, Nicole Kirkwood of the Detroit Police Department submitted this response: “The Detroit Police Department (DPD) does not make arrests based solely on Facial Recognition. Facial Recognition software is an investigative tool that is used to generate leads only. ... In reference to this case, an investigation was conducted. The investigator reviewed video, interviewed witnesses, conducted a photo line-up, and submitted a warrant package containing facts and circumstances, to the Wayne County Prosecutors Office (WCPO) for review and approval. The WCPO in return recommended charges that was endorsed by the magistrate/judge for Retail Fraud – First Degree." She also noted: “[T]his case predates our current policy, which only allows the use of the Facial Recognition software after a violent crime has been committed.”

Writing Reflection #2 Writing Reflection #2

On our Moodle homepage under "Class 2" you will see the instructions for completing and submitting Writing Reflection #2. This assignment is due at 9:00 a.m. on Thursday, January 19.

1.2.1 OPTIONAL Class 2 1.2.1 OPTIONAL Class 2