Monday, November 6, 2017


An interesting development in the area of algorithms being used to generate statistics on DNA:

A federal judge unsealed the source code for a software program that was used to compare DNA samples in New York City’s crime lab. In July 2016, Judge Valerie Caproni of the Southern District of New York determined in U.S. v. Johnson that the source code of the Forensic Statistical Tool, a genotyping software, “is ‘relevant … [and] admissible’” at least during a Daubert hearing—a pretrial hearing where the admissibility of expert testimony is challenged. Caproni provided a protective order at that time.

This week, Caproni lifted that order after the investigative journalism organization ProPublica filed a motion arguing that there was a public interest in the code. ProPublica has since posted the code to the website GitHub.

Probabilistic genotyping is used when comparing complex DNA samples, like mixtures. It does not define a DNA sample itself; rather, it is an interpretive software that runs multiple scenarios, like risk analysis tools used in finance, to analyze the sample. This contrasts with traditional DNA analysis, which analyzes whether a DNA type is present or absent.

While there are numerous public and proprietary genotyping software programs, ProPublica reports that the “FST was used to analyze crime-scene evidence in about 1,350 cases over about 5½ years.” The FST was phased out at the beginning of this year with the adoption of different software.

Saturday, September 30, 2017

Upcoming Supreme Court Argument--Stored Communications Act

Attorneys interested in electronic communications privacy issues should take note of a case currently under consideration by the Supreme Court that implicates the Stored Communications Act (SCA).
The court will hear oral argument this term in Carpenter v. United States. Carpenter concerns whether Fourth Amendment protections apply to cell phone “transactional records,” which reveal the location and movements of a cell phone. The case is important because it will reconcile a conflict between the long-standing “third party” doctrine and recent cases recognizing privacy interests in electronic data.

In Carpenter, federal law enforcement obtained the transactional records of defendant Carpenter’s cell phones. Federal agents used the data to determine that Carpenter’s cell phones connected with towers near robberies they were investigating.
Law enforcement obtained those records through a court order under Section 2703 of the SCA. That provision allows the government to compel disclosure of communication “transactional records” based on “reasonable grounds to believe” that the information is relevant to an investigation. This standard is less stringent than the Fourth Amendment’s requirement of a warrant supported by “probable cause.”
In the trial court, the defendant moved to suppress the service records, arguing that the more stringent Fourth Amendment standard should apply to the records. That motion was denied, and Carpenter was convicted.
On appeal, the Sixth Circuit also rejected the defendant’s Fourth Amendment argument, finding that the defendant had no reasonable expectation of privacy in his cell phone records under the “third party” doctrine.

Wednesday, September 27, 2017


When Judge Hamilton originally dissented from the June 2017 panel decision affirming the grant of the writ of habeas corpus, I foresaw that the 7th Circuit would grant a rehearing en banc.  Frankly, Judge Hamilton is now the major force on the Court.  Knowing that the senior judges are not allowed to sit on a rehearing en banc unless they were on the original panel (Judge Ann Williams), my count of the who would be expected to sit en banc was bad for Dassey.

I figured that he would need Judge Posner to have a chance to prevail.  Then Posner unexpectedly resigned two weeks ago.  I was not optimistic.

Yesterday for some reason, Judge Flaum did not participate (I  had counted him as a law enforcement vote).  That left 7 judges to consider the case.  The majority of the question was done by five of the judges: Wood, Williams, Rovner, Hamilton and Sykes. Kanne did make some inquires, and strangely enough, Judge Easterbrook was fundamentally silent (Sometimes it is hard to tell who is asking questions as the oral argument is limited to sound and not video). 

It seemed to me, that both sides were trying to persuade Easterbrook.  My prediction is that he will be the swing vote.  Wood, Williams and Rovner will vote to uphold the district court, granting Dassey his writ  It was clear that Judge Sykes is going to vote to reverse and Judges Hamilton and Kanne will as well.  The vote will be 4-3 one way or the other.

A final note.  Most media reports have not mentioned that portion of the argument addressing the complete failure of Dassey's original counsel to be his lawyer and not an extension of the prosecution. Pretty clear, it was in street parlance, a V-6.  A walking violation of the 6th Amendment.

Sunday, August 6, 2017

Dane County Criminal Prosecutions

After successfully trying a too drunk to consent case in January and teaching Evidence this summer at the law school, I'm back. In short, things have completely gotten out of hand in Dane County. While this dysfunction has been apparent to the defense bar for the last two years ( it begin to rear its ugly head after the departures of Deputy District Attorneys Viste and Fallon ---both of whom went to work for the State Department of Justice ), it has finally hit the public media.

Isthmus has honed in on part of the story.  For the recent articles, here is the link   If you are a resident of Dane County, shake your head. 

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.'" 

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!