Is bite-mark evidence reliable enough to help convict a defendant? What about hair analysis? As the Texas Forensic Science Commission painstakingly studies these and other issues, the once troubled organization is putting the state at the forefront of criminal justice reform—and serving as a model for the rest of the country.
On September 16, 2015, Steven Chaney awoke in his cell at the Dallas County jail. He had been transferred there earlier that month from the Wynne Unit, in Huntsville, where he had spent most of the previous 28 years after having been convicted of the murder of John Sweek. Sweek was stabbed to death in his Dallas home in 1987, and investigators found a mark on his arm that they thought was made by human teeth. Though Chaney proclaimed his innocence and had nine alibi witnesses, he was found guilty, mostly because of the testimony of two forensic odontologists, one of whom said that the odds that the bite mark belonged to someone besides Chaney were “one to a million.”
Later that afternoon, in a windowless room in the Frank Crowley Courts Building next to the jail, a group of scientists, lawyers, and dentists met to talk about Chaney’s case and the bite-mark evidence that had helped convict him. Sitting around a conference table were four members of the Texas Forensic Science Commission, plus two of its staff. To the left side of the room sat four members of the American Board of Forensic Odontology. On the other side sat a lawyer from the Innocence Project, a New York–based nonprofit that has used DNA testing to help exonerate 333 people over the past 26 years.
The FSC had received a complaint about Chaney’s case from the Innocence Project. Statements like “one to a million,” the Innocence Project said, were “little more than subjective speculation masquerading as science”; it had asked the FSC to use its power to investigate bite-mark analysis and recommend a moratorium on its use. The commission had invited the four forensic dentists, who looked uneasy, as if they felt that they were under attack. Bite-mark evidence has been allowed in the U.S. courts since 1975, but it has had a troublesome record: studies have found error rates as high as 64 percent. In 2014 Jo Handelsman, the associate director for science at the White House Office of Science and Technology Policy, said bite-mark analysis should be “eradicated from forensic science.”
Wearing a tailored suit, Chris Fabricant, the attorney with the Innocence Project, stood at a lectern in front of the commissioners. In a slight New York accent, he laid out one side of the case. He said that bite-mark evidence had led to 24 wrongful convictions or indictments nationwide, that skin is too malleable to accurately record any marks, that forensic odontologists can’t always agree on whether a mark was even made by human teeth, and that there are no reliable statistics behind bite-mark analysis. “Individualization is impossible,” he said. “It’s an entirely subjective technique.” As Fabricant spoke, the forensic dentists intently took notes.
Then one of the ABFO members, David Senn, a dentist and professor at the University of Texas Health Science Center in San Antonio, walked to the front of the room to present the other side. Looking dignified in a gray suit, with glasses and a silver beard, he said that Fabricant’s presentation contained “many truths, many half-truths, and some glaring untruths.” Senn noted that a New York state judge overseeing a trial involving bite-mark evidence had recently held a hearing to gauge its reliability—and then allowed it into the trial. He added that even studies critical of the discipline concluded that it could sometimes be reliably used to exclude suspects. He had studies that proved that bite-mark analysis is reliable if done properly. “Bite-mark analysis is based on science,” said Senn, whose voice rose as he defended his life’s work. “It is based on gross anatomy, dental anatomy, and physiology.”
Ashraf Mozayani, the director of forensic sciences at Texas Southern University and one of the FSC commissioners, asked if any dentist could be a forensic odontologist. Yes, Senn replied, adding that it was up to a judge to decide who could testify in court. Senn and other experts believe that forensic odontologists should be allowed to testify and present their professional opinions—and it’s up to the judges to decide what to permit the jury to hear. The Innocence Project fundamentally disagrees: bite-mark analysis should never have been allowed in courts in the first place.
Based on their comments, the members of the FSC seemed to be in line with the Innocence Project. “There’s been too much reliance on precedents,” said Harvey Kessler, a commissioner and a professor at Texas A&M’s Baylor College of Dentistry, referring to how judges have continued to admit bite-mark evidence. Lynn Robitaille Garcia, the FSC’s general counsel, echoed his remarks. “The problem is whether or not the science works,” she said. “It can’t be just because the judge says it’s okay.” In other words, show us the science.
Senn acknowledged that sometimes bite-mark examiners had gone too far, that in the eighties and nineties there were some who “made outrageous claims in court that resulted in people being wrongly convicted.” But education and training were better now, he insisted.
The meeting was emotional; the dentists’ voices sometimes trembled with agitation when they spoke. Many of the bite-mark cases they have worked on involved terrible crimes against children. “The ABFO wants to get it right,” said Senn.
“We’ve taken these things to heart,” added fellow odontologist Roger Metcalf. “We’ve listened.” Metcalf and his colleagues promised to get documents and studies to the FSC before its next meeting, in November. “We’re not nailing anybody to the wall,” said commissioner Vincent Di Maio, the former chief medical examiner of Bexar County. That didn’t seem to mollify the dentists, who sat still, with stern looks on their faces.
Forensic dentists are not alone in feeling persecuted. The truth is, many forensic science methods, from the way fires are investigated to how hair is analyzed, were created not by scientists but by individuals looking to aid law enforcement, and they are outdated in the world of DNA. And for the past five years, the FSC has been dragging these methods into the modern era, initiating a dozen investigations and leading the review of hundreds of old cases. It’s also brought together people who are usually sworn enemies in the courtroom to talk about how the criminal justice system makes forensic mistakes in the first place. “The commission doesn’t take sides,” said state senator Juan “Chuy” Hinojosa, a Democrat from McAllen who is one of its champions in the Legislature. “The stakeholders in the system have confidence in the commission, that its findings will improve a system that needs improving.”
The FSC has emerged as one of the most important forensic science policy groups in the country, one trying to fix serious problems—in particular, how to stop convicting innocent people based on outmoded science. Other states, including New York and Delaware, have similar commissions, but Texas has had the most success at bringing about reform. “The New York innocence people greatly admire the Texas commission,” said Di Maio, who is originally from Brooklyn. “For a New Yorker to say that is amazing. Texas is pioneering. We’re so far ahead—everyone else is eating our dust.”
The Forensic Science Commission began in obscurity, and it was nearly destroyed by its first case. The Legislature created the commission in 2005 in the wake of a scandal at the Houston Police Department crime lab, where standards were lax, training was terrible, and lab techs made mistakes that led to the convictions of innocent men. The FSC’s initial mission reflected the lab crisis: to investigate “professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited lab, facility, or entity.” Perhaps it’s not surprising that an organization created by politicians would soon find itself under political attack.
The commission was to be administered through Sam Houston State University, in Huntsville, which had created the state’s first forensic science program, in 2001. It would have nine unpaid members from around the state, seven of them scientists and two of them attorneys—a prosecutor and a defense lawyer—appointed variously by the governor, lieutenant governor, and attorney general. But it had no office, no phones, and no funds. The commissioners held their first meeting that fall, but they had to travel to Huntsville on their own dime. “None of us had ever served on a brand-new commission,” said Debbie Benningfield, the first chairman, so she and the other members spent their time establishing basic in-house procedures.
The commission was finally granted funding in late 2007 and began to meet at the Austin office of defense attorney Sam Bassett, who had just been appointed chairman. Commissioners set up a procedure for reviewing the complaints that had already begun piling up from lawyers and inmates, a process helped along the next year when the commission hired its first paid employee, Leigh Tomlin, a young paralegal, as coordinator. She set up an office in the basement of the criminal justice building at Sam Houston State and sent letters to accredited labs throughout Texas explaining the commission’s purpose. “I don’t think they understood what the FSC was,” said Tomlin.
Finally, in August 2008, the commission got down to business: examining a complaint from the Innocence Project, which had been filed immediately after the commission was founded and alleged “serious scientific negligence or misconduct” in the cases of Ernest Willis and Cameron Todd Willingham, two men sentenced to death based on similar evidence in arson cases in 1987 and 1992, respectively. Willis had been fortunate to have his appellate work done pro bono by a New York firm and was released and exonerated in 2004. Willingham wasn’t so lucky—and would be executed that same year. The Innocence Project argued that one couldn’t be innocent and the other guilty. There was something wrong with the evidence.
The commissioners knew they had a case that would put their group on the map. They were also excited about an upcoming report from the National Academy of Sciences; it was to be a call to action for professionals like them. The landmark document, Strengthening Forensic Science, was published in February 2009 and essentially said that with the exception of DNA testing, most forensic sciences had very little hard science backing them up and the findings often came down to the judgment of the analyst. Until Strengthening Forensic Science, most observers thought the system was fine—labs didn’t need to be accredited, analysts didn’t need to be licensed by an independent agency. But the report called for a massive overhaul of how the justice system dealt with forensic science. Commissioner Sarah Kerrigan, the chair of the department of forensic science at Sam Houston State, prepared a summary of the report and began planning a series of roundtables later that year to discuss how the state should deal with the recommendations.
Commissioners soon found that they were quietly making waves on the Willingham case, especially after hiring an independent scientist and arson expert named Craig Beyler to look into it. Representatives from Governor Rick Perry’s office began to come to meetings, and a couple of his staffers questioned Bassett, the chairman, about whether the commission had jurisdiction over old cases like Willingham’s, which had played out before the FSC was formed. Then a filmmaker came to a commission meeting and said he wanted to make a documentary about the case. It wasn’t long before Bassett heard rumors that Perry was seeking replacements for several commissioners, including him. In August 2009 Beyler sent the commission his report, with a stunning conclusion: a finding of arson “could not be sustained.” In other words, the scientific evidence used to send Willingham to death row had been baseless.
The commission was scheduled to hold its quarterly meeting on October 2, 2009, with Beyler set to give a presentation. But days before the meeting, Perry shocked the Texas political world by appointing three new members, essentially firing Bassett and two others. Perry brought in Nizam Peerwani, the medical examiner for Tarrant County; Lance Evans, a defense attorney from Fort Worth; and, as the new chairman, John Bradley, a law-and-order district attorney from Williamson County, who promptly canceled the meeting. Barry Scheck, the co-director of the Innocence Project, cried foul, likening Perry’s move to Richard Nixon’s “Saturday Night Massacre,” when the president fired the special prosecutor in the Watergate investigation. Critics speculated that Perry had removed Bassett to delay the publication of the report—which questioned the guilt of a man whose execution he had overseen—until after his March 2010 primary battle with Senator Kay Bailey Hutchison. Both Perry and Bradley denied the accusations; the appointments were “pretty normal protocol,” said the governor.
Suddenly, the entire nation knew about the FSC, but for all the wrong reasons. “We were a laughingstock,” Peerwani says today. “The New York Times, the Washington Post, the New Yorker were all making fun of Texas.” At the first meeting with Bradley in charge—held four months later in Harlingen—he spent the bulk of the time talking about establishing written official policies and procedures. The Willingham case was barely mentioned, which infuriated other commissioners. In April, at the FSC’s next meeting, in Irving, media from all over the state trained their cameras on protesters carrying signs with Willingham’s picture and the words “Innocent and Executed.” Bradley set up panels to vet complaints and initiate investigations, and he put himself in charge of the Willingham investigation, which he announced would take place behind closed doors. When reporters asked about that decision, Bradley icily replied, “The ability to discuss and resolve these issues requires us to hold them in private.” The secrecy did nothing but add to suspicions about his motivations.
The meetings only got more intense. In July, after Bradley had written a memo to his fellow commissioners questioning whether it had jurisdiction to hear the case in the first place, he got into a shouting match with Scheck when he told the lawyer that his three minutes of public comment were over. Scheck exploded. “You keep on calling me this New York lawyer that’s coming and saying all these things.” Bradley said he wouldn’t be allowed to talk in the future if he didn’t sit down. But Scheck continued, leading Bradley to say, “You are misstating the record.” Scheck yelled back, angrily pointing his finger at Bradley, “No, you are misstating the record.”
Tempers flared again at the next meeting, in October 2010, though this time between the commissioners and Bradley, who attempted to get them to sign off on a draft report he had written about the Willingham case. In it, he declared that there was no misconduct because the arson experts were following the science of the day; the commissioners refused to go along with him, saying they wanted to do more research. The commissioners chastised Bradley for comments he made to a reporter about Willingham being a “guilty monster.” Commissioner Garry Adams explained, “It’s important to maintain credibility,” while Kerrigan was more to the point. “I am greatly concerned about commission members making statements about guilt or innocence,” she said. “It makes me very uncomfortable.” Bradley said that he was only responding to the Innocence Project, which he felt was manipulating the commission and turning the investigation into a “circus sideshow.” The whole thing had become a political mess—a clash of egos, ideologies, and death-penalty sturm und drang. The commission had gotten caught up in innocence, when its mission was science.
Bradley may have weakened the commission by his actions and combative personality, but he also strengthened it: the written procedures and standards gave members a uniform way of discussing cases. Bradley also pushed for the hiring of a general counsel, which the commission did in late 2010, bringing on Lynn Robitaille Garcia, a young lawyer who had spent several years at a large Washington, D.C., firm.
On January 7, 2011, with Garcia at the table, the commission finally had its long-delayed Willingham meeting; Beyler testified and so did other experts, including two who backed up the original investigators. Garcia consulted with the commissioners and then got to work writing the report, and Bradley asked the attorney general’s office for an opinion on whether the FSC had jurisdiction. The commissioners agreed they wouldn’t address negligence or misconduct until the attorney general gave his response.
The 893-page report, released in April 2011, was anticlimactic for people looking for proof that Texas had executed an innocent man. “The FSC was not established as a commission for establishing innocence or guilt,” it read, “nor was it established as a forum for debating the merits of capital punishment. It was established to advance the reliability and integrity of forensic science in Texas courts.” The document went through each of the arson indicators that investigators had used in the Willingham and Willis cases, finding them all unsound, but said the experts were simply using the accepted science of the day. The report also gave seventeen recommendations for modernizing arson science, including reviewing old cases to determine how the science had changed. A month later, in May, Bradley’s term wasn’t renewed (the polarizing DA had also made enemies in the Legislature), and in July the attorney general’s opinion came out. As expected, it limited the commission’s jurisdiction to cases that had been tried since the creation of the FSC and cases in which evidence was tested at DPS-accredited labs. There would be no further discussion of negligence or misconduct—or Willingham’s guilt or innocence. The FSC, which two years before had seemed ready to set the world on fire, now seemed like just another government agency, mired in politics and inaction.
But then strange things began happening. For one thing, with Bradley gone, the meetings got much quieter: no more protests and shouting matches. The interim chairman, the calm, diplomatic Peerwani, led gatherings in a respectful manner, and the commissioners got back to business, discussing various complaints, such as one about controlled substances at the El Paso Police Department crime lab. The commission found that labs liked having a sounding board and were increasingly willing to disclose problems they’d found in their operations. And commissioners decided to embrace their own recommendations for reviewing old cases as well as improving training and education for arson investigators. It was essential, said Peerwani. “As scientists, we have a duty to correct and inform. If we make a mistake, we should tell everyone we made it and correct and go forward.”
Even though the FSC couldn’t go back to examine old cases, other agencies could. The commission reached out to Paul Maldonado, the state fire marshal, for help in reviewing old arson cases; it was an awkward fit, since investigators from his office had testified against both Willis and Willingham. Jeff Blackburn, the chief counsel of the Innocence Project of Texas and previously an antagonist of the fire marshal’s, offered to help with the review. The commission brought the two entities together to conduct the retroactive case review. Maldonado quietly quit as fire marshal less than two months later, but his replacement, Chris Connealy, was eager to move forward, even in the face of resistance from local fire investigators. “They were a little nervous,” he said. “ ‘You’re going to review my cases?’ Human beings don’t want to look bad.” Connealy said that putting the FSC’s recommendations into practice was his number one priority.
The general counsel and the commissioners encouraged collaboration—and not just with the fire marshal. Now based out of an office in Austin, where commissioners would be better connected to lawmakers, the FSC finally got around to hosting the series of forensic science roundtables that had been postponed during the Willingham crisis. The first event was held at the Capitol, an all-day series of discussions on subjects like “junk science and unaccredited disciplines” and “ethical dilemmas in forensic science.” The commission invited prosecutors, legislators, scientists, lab techs, judges, and defense lawyers and then scheduled traditional courtroom adversaries to co-lead discussion groups. “You don’t find solutions until you bring people together,” said Kerrigan. “They developed an understanding with people they’d previously had adversarial relationships with.”
Defense lawyers saw that lab analysts weren’t purposefully sending innocent people to prison; they were skilled but overworked scientists. Prosecutors saw that defense lawyers weren’t crazed conspiracy nuts; they were spirited advocates for their clients. The next roundtable was co-hosted with the Court of Criminal Appeals’ Criminal Justice Integrity Unit, a similarly collaborative commission put together by Judge Barbara Hervey, in 2008. The groups made two strong recommendations: first, develop a plan for certifying, or licensing, all state forensic examiners by an independent body. Second, come up with a process for notifying everyone affected by forensic errors—prosecutors, defense attorneys, defendants, and the courts themselves. They also began co-hosting seminars on forensic science, where they talked about everything from arson developments to new designer drugs.
The commissioners were doing what they had been appointed to do. “They bonded,” said Scheck. “They found their identity.” In 2012 Di Maio was appointed chair; Kerrigan was elected vice chair. The FSC had plenty of complaints and lab self-disclosures, one of which took it back to Houston, to the DPS regional crime lab, where a drug examiner had been found “dry labbing,” or transferring data from one test to another test to get a positive result. The FSC conducted an investigation, which found that the analyst had committed professional misconduct, and wrote a report suggesting improvements that labs could make to prevent dry labbing in the future.
In 2013 Senator Hinojosa, who had been instrumental in creating the FSC in 2005, passed a bill expanding the commission’s jurisdiction so that it could look at any forensic crime lab, not just accredited ones, as well as any forensic discipline that any citizen or commission member had a valid complaint about. The commission’s budget was also doubled, to $500,000. “After we eliminated the politics,” said Hinojosa, “it was easier to convince the Legislature and stakeholders to back the commission.” At the same time, the Legislature was passing other reforms, such as the so-called junk science writ bill, which gave inmates a cause of action for a writ of habeas corpus when the science that convicted them had changed, and the Michael Morton Act, which forced prosecutors to open their files to defense attorneys. Texas, the law-and-order state, was, in fact, leading the country in fixing the criminal justice system.
During the 2015 session, the Legislature gave the commission even more responsibility: to accredit crime labs and to license all analysts, a process the FSC must have in place by 2019. The FSC was also charged with setting up a system for collecting DNA from unidentified bodies found within 120 miles of the Rio Grande; almost four hundred bodies had been found over the past five years, and there are undoubtedly many more in shallow graves. “We have an ethical duty to identify them and repatriate them,” said Peerwani.
Over the past couple of years, as the FSC has picked up these new responsibilities, it has grown even more confident, taking an active role in reforming the criminal justice system. In July 2013 the commission helped mount an unprecedented investigation into hair-comparison analysis. The Federal Bureau of Investigation had known for years about potential problems with the discipline and had been talking with the Innocence Project about looking into it. The issue: FBI analysts, in their reports and testimony, were overstating hair evidence and not explaining its limitations more than 90 percent of the time. The Department of Justice got involved too, and it began to come up with a plan to look at thousands of past cases.
Texas became the first state to do a review of hair cases that same month when it sent out surveys to more than 36 crime labs to find out how many did hair-comparison analysis; 20 did. The Texas Association of Crime Lab Directors encouraged labs to send the FSC cases involving hair analysis. In January 2014 the FSC created a panel to look into the matter further. These reviews of problematic forensic evidence are the most impressive thing the FSC has been involved with, said Scott Henson, the head of the Innocence Project. “It’s one thing to evaluate bad evidence, but it’s another to go back and look at cases where bad evidence was used.”
The review panel, which consists of four lab analysts, two district attorneys, a defense attorney, and a staff attorney, spends a lot of time talking about language, because, in truth, a lot of what the commission does concerns words, not science—specifically, the words used by forensic analysts on the stand. Much of forensic science involves comparing patterns between two things—strands of hair, for example—and since there have been no scientific studies done on how different hairs really are, an analyst can’t testify or imply that an unknown hair came from a certain person. Analysts can say two hairs have “consistent” characteristics, but they can’t give any kind of statistics or even an opinion of probabilities. And as general counsel Garcia noted during a panel discussion, sometimes after experts in the highly charged atmosphere of a criminal trial say “consistent,” they add troubling phrases like “absolutely indistinguishable.”
The FSC made another proactive move last summer, when it acted quickly to get a handle on a serious problem with DNA—supposedly the gold standard of forensic science. In May the FBI had notified labs that it had found errors in the data used to create the population statistics that crime labs had been using for years to analyze DNA cases. Most observers, including the FBI, thought the numbers wouldn’t drastically change the probabilities of whether a certain person’s profile was part of a sample—and at first they didn’t. But when prosecutors asked for revised reports in cases involving DNA mixtures—for example, a sample taken from a door knob that had been handled by many people—some of the numbers changed dramatically.
Jack Roady, the Galveston County district attorney, asked the DPS to retest a DNA sample for a pending murder case using the new standard. The original test had said there was a one in a 1.4 billion chance that someone other than the defendant had contributed to the DNA mix; the new results showed that the figure was 1 in 38, a frightening change. It turns out that statistical calculations that were straightforward in years past—because they were done on rape kit samples that contained two profiles, one of which was known—are much harder and subject to much more interpretation when several people contribute to the mixture.
In August the FSC met about the issue, and, after consulting with Hervey, sent a memo to labs as well as representatives from the Texas District and County Attorneys Association and the Texas Criminal Defense Lawyers Association, letting them know about the changes. The memo also suggested lawyers confirm that DNA reports for cases currently going to trial were done using current protocols.
The problem isn’t the science, it’s the interpretation of the science, and with DNA mixtures, there’s a lot of interpretation. “This is a mistake that’s been made all over the country,” said Scheck. “The forensic community was content to just prevent mixture errors in the future—reluctant to open Pandora’s box and revisit past mistakes. But these commissioners had the courage to do something about it.” Garcia said that because of the volume of DNA cases, it’s a potentially huge problem. She gave a presentation to the Criminal Justice Integrity Unit on September 2 and later the panel met with the Southwestern Institute of Forensic Sciences. On October 1 the commission held a meeting in Austin. Garcia welcomed the roomful of analysts, crime lab chiefs, prosecutors, and defense lawyers. Some in the room were nervous about being blamed for making mistakes using the old numbers.
Garcia calmed the scientists and lawyers. All they were trying to do was narrow the cases down to those in which a specific measure wasn’t done properly. “Whether people should’ve known is a separate issue,” she insisted. “The recipe for this is ‘We got it wrong.’ It almost doesn’t matter why.” This provoked sighs of relief from the experts and prosecutors in the room. It wasn’t about blame. It was about fixing the problem.
Garcia suggested some steps to wade through the disaster, and the panel came up with a plan: get each lab to submit ten cases per decade to show their protocols, then have experts study them to look for problems. Garcia said they would need another panel to figure out how to notify affected parties. And they’d need more funds, so she’d be calling the governor to get his support.
It’s remarkable how far the FSC has come in ten years. For one thing, the governor is a lot more likely to pick up the phone when the commission calls. And its mission has expanded drastically, from merely overseeing DPS-accredited crime labs to strengthening forensic science throughout the entire criminal justice system. But the commission’s work is still driven by complaints from prisoners, their families, lab employees, concerned citizens, and advocacy groups like the Innocence Project. At last fall’s quarterly meeting, commissioner Arthur Eisenberg, who heads the complaint screening committee and is the chairman of forensic and investigative genetics at the University of North Texas Health Science Center, went through five complaints and two lab disclosures, including an investigator not filing reports at the Austin Police Department, a missing bullet fragment at the Corpus Christi Police Department, and problems with a sexual assault exam conducted by a nurse. If the full commission votes to take up a complaint, a panel is created to look into it.
The meeting was again held in Austin, and the proceedings were streamed live on the commission’s website. All nine commission members were there, sitting around a conference table. In addition to Eisenberg, there was Peerwani; Mozayani; Kessler; Di Maio, who led the meeting; Jeffrey Barnard, the chief medical examiner at the Southwestern Institute of Forensic Sciences; Richard Alpert, an assistant district attorney with Tarrant County; Robert Lerma, a defense attorney from Brownsville; and newest member Sheree Hughes-Stamm, a professor at Sam Houston State. They all work for free.
Sitting in chairs alongside the walls were the stakeholders who consult with the commission and work on some of its panels: Inger Chandler, the head of the Harris County district attorney’s Conviction Integrity Unit; Jack Roady, the Galveston County district attorney; Brady Mills, the head of the DPS crime lab; and Skip Reaves, of the Innocence Project of Texas. They sit patiently, waiting for questions from commission members, and sometimes offer up comments on their own. The commission has no subpoena power or enforcement authority; it can’t fine people or even force them to come speak before it. But everyone comes anyway.
The commission considered a complaint about a blood-alcohol case from Garland: an inmate claimed that an IV drug he was given after an accident contaminated his blood. Mills stood and explained that this compound wouldn’t have affected his blood-alcohol level. Complaint dismissed. They took up another complaint about blood alcohol, though this one involved poor testimony from an analyst. “The questions were sloppy and the answers were sloppy,” said Di Maio.
“The issue is systemic,” offered Chandler. “Bad questions being asked by prosecutors, analysts who are on the stand and on the spot having to deliver answers based on bad questions.” There was, she said, a lack of communication and a lack of understanding.
“The commission has the resources to help educate the parties involved,” said Alpert. “I really think it would be good for us to create either a group or a panel.”
Garcia responded. “So, best practices is definitely within the commission’s jurisdiction, and toxicology is definitely within the commission’s jurisdiction. So,” she paused, “I was looking for more stuff to do.” Everyone in the room laughed.
Garcia is the straw that stirs the drink—the nonscientist who has been guiding the commission for six years now, the collaborator in chief who talks to many of these stakeholders every day while also fielding calls from legislative aides and prosecutors in other states trying to set up their own versions of the FSC.
The complaints were all found wanting (as of November, the FSC had received 126 complaints and 17 lab disclosures and has looked into 12 of them, with another 10 pending). Leigh Tomlin talked about the accreditation program, which she is in charge of, along with the licensing of analysts. Hughes-Stamm gave a report on the Rio Grande DNA project, whose panel had its first meeting in Edinburg a couple of weeks before. “I think we’re just scratching the surface,” said Peerwani. Most of the bodies are from immigrants crossing the border, but some could be from murders. The commissioners talked about who would collect the DNA from the bodies and how to do it if a body was badly decomposed. Next step: a telephone conference, maybe bring in some local judges and justices of the peace.
The commissioners discussed the hair-analysis panel and how much of its focus dealt with procedures to find problem cases. The only way to do that is to read trial transcripts, and Garcia said that several innocence clinics and a firm in Houston, Latham & Watkins, had offered to help vet the cases. Commissioners also discussed the bite-mark meeting involving Steven Chaney’s case from September. They eventually got around to the issue that was on everyone’s mind: DNA. Commissioners worry about the DNA problem more than bite marks, hair, or even arson, because there are potentially 50,000 cases involving DNA mixtures that have been handled by the state’s labs, and the commission has to figure out which ones might have problems. Garcia, giving a summary of the DNA mixture panel, which had met the day before, and the protocols that lab technicians had been erroneously using, explained, “Honestly, from where I sit, the only reason any of that matters at all is to try and figure out how to better train going forward,” she said. “It’s not about—”
“Blaming people,” Di Maio interjected, finishing her sentence.
“It’s about providing a safe harbor,” she continued, “a place for labs to come and work through these issues in a way no one else around the country is doing.”
This attitude—the reluctance to condemn people for past mistakes and the determination to find what went wrong and make changes—is a main reason the commission has been so successful, bringing people to the table who might otherwise stay away, making them a part of the solution. As Garcia said at September’s bite-mark panel meeting, “If the science was unsupported at the time and could lead to erroneous results and a scientist followed in good faith, that’s fine. The question is, What is the right answer?”
On October 12, less than a month after the bite-mark panel meeting, Steven Chaney was set free by a judge who threw out his conviction. He had been in prison for nearly three decades. The expert who testified that there was a “one to a million” chance someone besides Chaney was the biter now said in an affidavit that “under today’s scientific standards” he wouldn’t be able to say such a thing; declaring a match with bite marks was “scientifically unsound.” Chaney, 59 years old, his hair gone gray, hugged his mother, wife, and four brothers. After going home and sleeping in his own bed, he went out and bought new blue jeans and a crisp white dress shirt, which he wore to the next bite-mark panel meeting, on November 16, this one at the Tarrant County district attorney’s office, in Fort Worth. Chaney sat against a wall, between his attorney Julie Lesser and the Innocence Project’s Chris Fabricant, and looked out on the scene, as a roomful of lawyers, prosecutors, scientists, and dentists began to debate what to do about the type of forensic analysis that had stolen so many years from him.
As the meeting started, Garcia acknowledged Chaney’s presence and he stood briefly, put his hands in his pockets, and sat back down. David Senn was there to speak again, and he began his presentation by saying, “Let me say to Mr. Chaney, congratulations for being out of prison and please accept my apology for whatever part forensic odontology played in your troubles.” Then Senn spoke for more than an hour, defending bite-mark analysis. He showed slides of the ABFO’s decision tree, a flow chart that ABFO odontologists use to arrive at “the biter” or “the probable biter,” and attacked the Innocence Project’s research. He said that the group’s complaint didn’t show the “true scope” of bite-mark cases, and he displayed photos of battered and bitten babies and toddlers. Though he acknowledged that bite-mark analysis couldn’t be used to specifically identify a biter, he said it could be used to exclude people, especially in child abuse cases, when investigators already have a good idea of the identity of other children and caretakers who were with the child when the attack occurred. “If this committee decides to declare a moratorium on bite-mark analysis,” he said, “children will suffer.”
Harvey Kessler, the panel chair, turned to Richard Alpert and asked how valuable exclusion is to a prosecutor. “It’s a starting point. It’s important, but I need better evidence than ‘cannot exclude,’ ” Alpert replied. “In most other disciplines, there’s at least a series of definite guidelines about the limitations of this. . . . It seems like this science has not been vetted even by the scientific group sufficiently yet.”
Others gave presentations too, including Frank Wright, a dentist from Ohio, who showed more photos of savagely bitten children, some of whom had died. Garcia, the mother of a two-year-old son, was clearly moved by the photos—yet skeptical of their use by the dentists. “I completely believe child abuse is real,” she said, “but how do people in the current system—without organized proficiency testing—how do we know they’re going to be able to distinguish between bite marks of high forensic value and low forensic value, especially when they’re under the pressure to testify in these brutal cases?”
The most alarming presentation came from Adam Freeman, the president-elect of the ABFO, and Iain Pretty, a professor of dentistry at the University of Manchester. A couple of years ago the two, along with Senn, had come up with an idea to test the decision tree. They asked 39 forensic dentists to use the flow chart to navigate their way through one hundred photos of actual forensic bite marks. The results were not what the ABFO was looking for: time and again the dentists couldn’t agree on whether a mark came from human teeth. In fact, they all did so only four times out of a hundred. The study, Freeman and Pretty said, caused considerable anxiety within the ABFO, which opted not to publish it.
Commissioners voiced their astonishment that the ABFO hadn’t let the outside world know about the study (it was revealed in the Washington Post earlier in 2015), and Garcia seemed genuinely peeved that the ABFO was still using this decision tree as its guiding methodology. “We work with a lot of different forensic disciplines,” she said. “In other forensic disciplines, when there is a problem in the way the science is expressed or a problem in the way a forensic analysis is carried out, there’s a real sense of urgency to fix it.” Not so with the ABFO and the dentists. Senn explained that the guidelines had to be voted on by the ABFO membership, which wouldn’t meet again until February.
The whole time, Chaney sat and listened, his arms often crossed, occasionally whispering to Lesser or half-smiling at something one of the dentists said. The meeting took him back 28 years, when he had sat and listened to experts use the certitude of bite-mark analysis to match him to a murder. Now he was hearing other experts say how unreliable it is. He had been particularly upset by the photos of dead children. “I almost started crying,” he said later. “It’s sick, waving those child abuse cases around. Lost in the mix is that this is about a moral responsibility to do the right thing.”
When the presentations were completed, Garcia told the panel that its next job was to write a report assessing the reliability and integrity of bite-mark analysis and make recommendations to the full commission. The Innocence Project had asked for a moratorium on the use of bite marks; though the FSC has no authority to institute one, it can make a recommendation to the criminal justice community. Commissioners scheduled another meeting to put the report together. Meanwhile, Nick Vilbas, the staff attorney, had assembled a list of 33 cases for further investigation, and panel members asked the ABFO members for help getting more. “I think there should be some obligation on the part of anyone who knows they’ve given testimony in the past to help identify those cases,” said Garcia. “That’s what we do in other areas of forensic science too.”
Afterward, commissioners and staff scattered to their homes all over the state, except for Garcia, who stayed in Fort Worth to help oversee classroom training in DNA mixtures for lab scientists. Training sessions for lawyers would begin a few weeks later. She and the commissioners had plenty of other things to consider, from an upcoming meeting in Austin about DNA mixtures and licensing analysts to the hair-analysis panel, which would meet again in January. The hair panel had so far made its way through fifteen transcripts and found that five had overstatements from examiners; the prosecutors, defense attorneys, and courts in the cases had all been notified and any further action was up to them. (The same is true for the cases that the fire marshal reviewed, five of which should have been labeled “undetermined” and not arson.) The FSC has done its job, now it’s up to those in the judicial system to do theirs. The next meeting of the full commission is on February 12—the agenda will be as packed as the last one.
Sometimes Garcia worries that they’re trying to do too much. “But it makes sense for us to do this work,” she says. She worries even more about not being able to bring people into the discussion. “I gave a talk at the International Symposium on Forensic Science Error and said that the biggest enemy of progress is fear. When we act out of fear, we don’t get anywhere. We need to find ways to work together, no matter our viewpoints. When you get down to it, we’re just trying to get to the scientific truth. We have an obligation to get the science right. We’re talking about people’s freedom. It’s an awesome responsibility.”