Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Analysis reveals more flawed forensic evidence being presented

| Jan 18, 2019 | Criminal Defense

“How many cases of innocent people being wrongly convicted have to occur before people realize that there’s a very broad spectrum of forensic science?” asks U.S. District Court Judge Jed Rakoff, a former member of the National Commission on Forensic Science.

For the past five decades, FBI examiners have used image comparison to tie defendants to crime scenes. Image comparison has been used in thousands of cases, yet studies have shown several of its underlying techniques to be scientifically unreliable.

That ought to mean that image comparison evidence does not get used in court. After all, in 1993’s Daubert v. Merrell Dow Pharmaceuticals Inc., the U.S. Supreme Court ruled that courts should never admit expert testimony without first assessing the scientific validity of the underlying reasoning and methodology.

Yet when it comes to image comparison, the main supporting study is at least 22 years old. Over the last decade, both the FBI and other scientists have conducted other studies that have found the technique unreliable.

Nevertheless, image comparison examiners continue to testify that they can match images with great scientific certainty.

The nonpartisan, nonprofit newsroom ProPublica recently published a detailed analysis of the FBI’s claims and the scientific reality of image comparison as a forensic technique. The analysis is too long to cover in a blog post, and we recommend reading the entire piece.

The FBI has a history of flawed and exaggerated forensic testimony

As ProPublica points out, the idea that the FBI would use unscientific methods to gather evidence and then exaggerate their degree of scientific certainty under oath is a familiar one. More than once, the agency has been found to have relied on methods with little or no scientific underpinning, including microscopic hair analysis, bite mark analysis, blood spatter analysis, and shoe and tire tread analysis.

In some cases, the FBI itself discovered the flaws in the techniques. In others, third-party reports revealed the problems. In 2009, the National Academy of Sciences issued a report concluding that “with the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

Yet FBI examiners have repeatedly testified that they could use these techniques to identify defendants “to the exclusion of all others.” Last year, the Justice Department issued new testimony guidelines that prohibit examiners from making unequivocal statements like that.

One reason these flawed and exaggerated methods are brought into court is that prosecutors continue to submit the evidence — and judges continue to accept it. That has to change, or more innocent people will end up behind bars.

Archives

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)