Georgia on my mind

Most of you have likely never heard of the Daubert Decision, the 1993 Supreme Court case that instructed federal trial judges to examine scientific evidence for relevance and reliability before allowing it in court. Sounds pretty good, especially as it replaced what was clearly an unscientific criterion, the Frye Rule, requiring evidence to be "generally accepted by the scientific community." Science is not a "majority rules game" and the Frye Rule was out of step with scientific practice. Unfortunately, the way Daubert has been applied has worked out very badly for those who wish to get their Day in Court against powerful and moneyed interests. It has decimated the toxic tort landscape and is now threatening to worm its way into the regulatory arena as well. We have previously discussed this so I won't go into it further.

Instead I want to call attention to a recent Georgia law, billed as "tort reform," that makes Daubert the governing principle in the state's civil cases as well (hat tip to Daubert on the Web, an invaluable source of information on a matter that should be of concern to all scientists).

Among other measures, the legislation now places Georgia squarely in the ranks of the Daubert states, for civil cases. In civil cases, the bill emphasizes Georgia's insistence that its courts "not be viewed as open to expert evidence that would not be admissible in other states."

Criminal cases, however, are another matter. The bill provides: "In criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." (The emphasis is ours.)

There has long been a de facto dichotomy in federal court between Daubert's application in criminal cases (fairly licentious) and civil ones (more strict). Perhaps Georgia is to be applauded for its candor in making the difference in standards explicit and official, though some might feel that the distinction should operate in the opposite direction.

What is really unbelievable about this is it that it raises the bar for getting scientific evidence into court to force a defendant to pay money to a victim while at the same time preventing those stricter standards of scientific evidence from being used on behalf of a criminal defendant whose life and liberty are at stake. One would imagine that the burdens would be just the reverse, but not in Georgia. In Georgia a "scientist" can opine on how psychology shows that a person will commit a future violent act and should therefore face the death penalty, or how "fiber analysis" or "footprint" analysis "proves" that someone is guilty (despoite the fact that neither practice has been subjected to scientific scrutiny or test), but not be able to use epidemiology in a courtroom when a well-heeled civil defendant like a chemical company hires some hack to say it isn't good science.

In a related story, the Justice Department has finally decided to find some answers to the Big Cahuna of forensic science, fingerprinting (which of course could not be subject to challenge under Daubert in Georgia, no matter what DOJ research finds about its validity).

The research solicitation [by the National Institute of Justice, DOJ's research arm] seeks to "provide juries with increased information about the significance and weight of fingerprint evidence" and also to create tools "to improve the fingerprint examination process," said Catherine Sanders, spokeswoman for the Office of Justice Programs, which includes the institute.

The agency's decision is the latest example of an unmistakable shift in the previously defiant world of fingerprint experts. Until recently, they had pointed to nearly a century of convictions in U.S. courts to dismiss calls for a closer examination of their discipline.

[snip]

The broader reassessment of fingerprint comparison is largely being driven by a series of high-profile errors committed by examiners, including their role in the wrongful conviction of Stephan Cowans, a Boston man imprisoned for six years after a false match linked him to the shooting of a police sergeant.

A few months after Cowans' release last year, an even more embarrassing mistake occurred when the fingerprint world's elite--examiners at the FBI lab--falsely connected Brandon Mayfield, an Oregon lawyer, to the 2004 train bombings in Madrid through a print found near the scene. (superb reporting by Flynn McRoberts and Steve Mills in The Chicago Tribune)

The use of Daubert in a criminal proceeding in federal court burst on the scene several years ago when it was used to challenge fingerprint testimony in a Philadelphia court. The judge initially granted the Daubert motion. The FBI countered by sending the controverted prints to examiners across the country.

While most examiners agreed with the FBI's conclusion that the defendant's prints matched those found on the getaway car, 17 examiners in nine states were unable to make an identification, underscoring that the discipline is much more subjective than many fingerprint experts have acknowledged.

After receiving the conflicting responses, one of the FBI's top fingerprint experts asked the dissenting examiners to take another look, with the help of some FBI enlargements of the prints in question.

`Test your prior conclusions'

"These enlargements are contained within a clear plastic sleeve that is marked with red dots depicting specific fingerprint characteristics," wrote Stephen Meagher, chief of the FBI lab's latent print unit, in a June 1999 letter. "Please test your prior conclusions against these enlarged photographs with the marked characteristics."

Three months after Meagher's letter, the National Institute of Justice approved a call for research into fingerprinting, only to eventually let it die amid uproar from police and prosecutors.

Meanwhile, in Boston the police are rebuilding their fingerprint unit.

Six years after authorities used a fingerprint match to implicate him in the shooting of a Boston police sergeant, DNA tests excluding Cowans forced them to recheck the print. The re-examination last year revealed that his print wasn't even close to a match of the one found at the crime scene.

Six years into a 35- to 50-year prison sentence, Cowans was released from prison last winter.

Don't worry. This couldn't happen in Georgia.