Thursday, October 6, 2016

Wonder why we keep getting errors based on bogus forensic evidence

In this past month the Executive Office of the President President’s Council of Advisors on Science and Technology (PCAST) issued a report to President Obama entitled "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." That report had a series of recommendations and findings.

 According to Recommendation 1:
It is important that scientific evaluations of the foundational validity be conducted, on an ongoing basis, to assess the foundational validity of current and newly developed forensic feature-comparison technologies. To ensure the scientific judgments are unbiased and independent, such evaluations must be conducted by a science agency which has no stake in the outcome.
(A) The National Institute of Standards and Technology (NIST) should perform such evaluations and should issue an annual public report evaluating the foundational validity of key forensic feature-comparison methods.

 Finding 4 was that
PCAST finds that bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards. To the contrary, available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bitemark and cannot identify the source of bitemark with reasonable accuracy.
And Finding 5 was that
PCAST finds there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called “randomly acquired characteristics). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.
PCAST has not evaluated the foundational validity of footwear analysis to identify class characteristics (for example, shoe size or make).
So, what was the response by the Attorney General, the FBI, and the National District Attorneys Association (NDAA) to this report?

The answer can be found in an article by Kira Lerner for ThinkProgress. First,
Attorney General Loretta Lynch released a statement indicating she would ignore the recommendations.
“We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning,” Lynch said in a statement. “While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”
Second, "[t]he FBI also said it disagrees with many of the findings of the report, which the agency said 'makes broad, unsupported assertions.'" 

Third,
the National District Attorneys Association (NDAA) released a statement saying its attorneys would continue using the forensic methods critiqued in the report because "adopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar, to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial."
The attitude of law enforcement in response to this report is in a word, unbelievable.  God forbid if science got in the way of getting a conviction.

Wednesday, July 27, 2016

Surprise, Bitcoin is not money

A Miami judge has found that bitcoin isn’t the same as money and tossed criminal charges against a man accused of selling $1,500 worth of the virtual currency to undercover agents.
Judge Teresa Mary Pooler ruled on Monday that bitcoin isn’t money, the Miami Herald reports.
As a result, Pooler said, defendant Michell Abner Espinoza wasn’t operating an unlicensed money-services business. “The court is not an expert in economics, however, it is very clear, even to someone with limited knowledge in the area, the bitcoin has a long way to go before it the equivalent of money,” Pooler wrote.
Pooler also ruled there was insufficient evidence that Espinoza committed the crime of money laundering. He was accused of selling bitcoin to federal agents who said they were going to use the currency to buy stolen credit-card numbers.
The state statute requires those charged to intend to promote illegal activity, but the word promote “is troublingly vague,” Pooler wrote. “There is unquestionably no evidence that the defendant did anything wrong, other than sell his bitcoin to an investigator who wanted to make a case,” Pooler wrote.
The case is believed to be the first money-laundering prosecution involving bitcoin and was “closely watched in tech, financial and legal circles,” according to the Miami Herald.

Saturday, April 30, 2016

House of Representatives Votes to Provide Increased Privacy Protection to Emails

Last week, the U.S. House of Representatives unanimously passed the Email Privacy Act (H.R. 699), which would require the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox.

The bill provides a long overdue update to the Electronic Communications Privacy Act (ECPA), first passed in 1986. The bill also codifies the ruling in U.S. v. Warshak, where the Sixth Circuit Court of Appeals  ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers.

Contact your Senators to pass this bill!

Sunday, April 17, 2016

SEVENTH CIRCUIT REVERSES WD WISCONSIN ON TWO SEPARATE CASES

Rare enough to happen once a year, this past week saw the Seventh Circuit Court of Appeals reverse the WD of Wisconsin on two separate cases. One involved a reversal of a denial of a Rule 29 motion in a wire fraud case and the other dealt with an illegal search of an apartment building facilitated by the use of drug dogs. The first case was handled by yours truly in which a three-judge panel of the 7th Circuit Court of Appeals in Chicago overturned the conviction of Madison banker Dave Weimert last week Friday, saying no crime was committed and ordered his immediate release from a federal prison facility.
 

“We rarely reverse a conviction for mail or wire fraud due to insufficient evidence,’’ the judges said in a 2-1 opinion released late Friday.  In this case, however, “there is no evidence that Weimert misled anyone about the material facts or about promises of future action.’’

Weimert was convicted by a jury last year on charges of federal wire fraud for using email and other communications as part of his successful 2009 sale of property in Texas on behalf of Anchor Bank for a price that was $2 million more than Anchor’s target price.  

The three-judge majority decision acknowledged that Weimert showed a “lack of candor’’ during the sale negotiations.  But if “omissions of a buyer’s or seller’s negotiating position’’ is a federal crime, it warned, many negotiations could be considered federal crimes -- an enormous expansion federal prosecutors’ power.

“Federal mail and wire fraud statues encompass a broad range of behavior. Their limits can be difficult to draw with certainty,’’ the majority opinion concluded. “But there are limits.’’

In reality, Dave’s successful negotiation generated badly needed cash for Anchor and removed a huge liability from its books -- and he did it right in the teeth of the nation’s real estate market collapse. As all terms were fully disclosed to Anchor and the buyers, including Dave’s role, it took me a long time just to figure out what Dave was even being charged with.  A full copy of the opinion can be found at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-08/C:15-2453:J:Flaum:dis:T:fnOp:N:1734645:S:0 

The second case reversed a district court denial of a motion to suppress.  Taking "Hunter" a drug dog into the second floor of an apartment building was a search violating the holding of Florida v. Jardines, 133 S. Ct. 1409 (2013).  A full text of the opinion in U.S. v. Whitaker can be found at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-12/C:14-3290:J:Darrah:aut:T:fnOp:N:1736023:S:0



Monday, February 8, 2016

Wisconsin Legislation Takes Steps to Combat Crime..they are hard at it again

USING A DRONE TO COMMIT A CRIME
ASSEMBLY BILL 671 (JANUARY 11, 2016)
HTTPS://DOCS.LEGIS.WISCONSIN.GOV/2015/PROPOSALS/REG/ASM/BILL/AB671
SENATE BILL 497 (JANAURY 5, 2016) HTTPS://DOCS.LEGIS.WISCONSIN.GOV/2015/PROPOSALS/SB497
This bill creates a penalty enhancer for a crime if the offender uses a drone to commit the crime. Under the bill, if a person uses a drone to commit a violation of the criminal code or commits a criminal offense related to a controlled substance, the person is subject to an increased penalty for the underlying crime. Under the bill, if the underlying offense is a misdemeanor but not a Class A misdemeanor, the person is subject to a maximum fine of $10,000, and a maximum term of imprisonment of one year in the county jail.
If the underlying crime is a Class A misdemeanor, the person who uses a drone to commit that crime is guilty of a felony and subject to a $10,000 fine and up to two years in prison. If the underlying crime is a felony, the maximum fine for the crime is increased by up to $5,000 and the maximum term of imprisonment for the crime is increased by up to five years.

Friday, October 9, 2015

DNA Statistics Under Review

We really really have to pay attention to forensic sciences in criminal cases.  While I have focused on arson, handwriting and presently abusive head trauma; I can sense that the protocol for matching in DNA cases along with the underlying statistics will make that arena a future battleground.  The recent issue of Atlantic magazine has brought the future to the present.  See: http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-dna-databases/408709/

The article starts by noting:

In 2001, an analyst in the DNA unit of Arizona’s state crime laboratory noticed something interesting. Two seemingly unrelated individuals—one white and one black—shared the same two markers at nine of the 13 places in the standard DNA profile. Yet that particular genetic profile should have been exceedingly rare.
According to the standard method of computing how often one might expect to encounter a particular DNA profile in the population at large—what is known as the “random match probability”—if you plucked a non-Hispanic white person at random from the population, there would be only a 1 in 754 million chance of finding that profile. For African Americans, the number was 1 in 561 billion. And yet here, in a database of less than 100,000 people, it was appearing twice—and in people of different races.

Here we go.  The future is now!

Sunday, August 9, 2015

U.S. Supreme Court Spring Term

While criminal cases did not dominate the Court's attention this past term, there were cases of note.  Johnson v. United States deals with the residual clause of the ACCA and is of interest solely to federal practitioners.  On the other hand, a progeny of Crawford will be front and center for everyone.  Professor Chemerinsky notes as follows:

In Ohio v. Clark (PDF), issued June 18, the court unanimously ruled that it did not violate the Confrontation Clause of the Sixth Amendment when statements of a 3-year-old boy were introduced against a criminal defendant without the boy testifying in court. In response to questions from his teacher, the boy had said that he had been beaten by his mother’s boyfriend, Darius Clark.
In Crawford v. Washington, decided in 2004, the court held that prosecutors cannot use testimonial statements from unavailable witnesses even if they are reliable. But the court did not attempt to define what is testimonial, and courts have struggled with the issue for more than a decade.
Ohio v. Clark offers important clarification of the meaning of “testimonial.” The court ruled that the boy’s statements to his teacher were not testimonial because they were not made with the primary purpose of creating evidence for prosecution. Justice Samuel A. Alito, writing for the court, declared: “Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’”