Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warning (at least not directly).

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

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