Jeff Sessions: Impact on Federal Prosecutions

On May 10, 2017, AG Sessions issued a memorandum for all federal prosecutors on charging and sentencing policy. It noted in part, "First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense...the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences."  This directive has had a significant impact on cases being handled on the local level. The bottom line is that your local federal court will be incarcerating more people for longer periods of time: as if the U.S. doesn't already have the highest incarceration rates in the world.  This memo was followed by a second memo on January 4, 2018 addressing solely the prosecution of marijuana offenses. Citing the pertinent statutes, Sessions observed that these "statutes reflect Congress's determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."

The very real and depressing impact of these two memos is enough to make one physically ill.  In an attempt to inject some levity into the situation, former House Speaker Boehner's recent ascendancy to the board of advisers of Acreage Holdings (a cannabis corporation operating in eleven states ) provided a great opportunity. Professor Berman did just that in a blog post entitled: " Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions." The blog post is short and a fun read.  However, the more serious question is why do the punitive policies advocated by Sessions primarily apply to those without political power?

"What Kind of Mad Prosecutor" Brought Us This White Collar Case

Prof. Ellen Podgor writing recently in the Vermont Law Review discussed my office's Seventh Circuit win in United States v. Weimert, 819 F.3d 351 (7th Cir 2016). In criticizing government efforts to expand the use of the mail/wire fraud statutes, Podgor posited that the prosecution has used these statues in cases that are more easily subject to a civil action and that prosecutors are seemingly trying to criminalize civil contract breaches.

David Weimert remains as one of the few if any other defendants who took on SIGTARP and prevailed.

Forensic Evidence--John Oliver summarizes some of the problems

It seems like a drumbeat, but my criticism of the present state of the use of forensic evidence is well known.  Note that I never use the term "forensic science."  It is simply because, at their core, none of the so called disciplines have any basis in science.  In a lighter moment, I came across John Oliver's take on underlying problems.  It is well worth the time to take 15 minutes to review his comedic effort.

DNA ANALYTICS (Part II)

With the use of DNA evidence increasing across the United States, DNA labs are using probabilistic genotyping to analyze hard-to-interpret samples. However, some scientists and lawyers worry that the privately held computer code behind these tools is limiting its reliability and hindering due process.
Traditional DNA analysis is challenged when there are multiple contributors to a sample or the quantity of DNA recovered is too small. Without a better analytical tool, these samples are often inconclusive, says Dan E. Krane, a professor of biological science at Wright State University.
Probabilistic genotyping is not a technique that defines the sample itself; rather it is an interpretive software that runs multiple scenarios—like the risk analysis tools used in finance—to examine the sample. This contrasts with traditional DNA analysis, which assesses whether a DNA type is present or absent.

Bjorn Sutherland, forensic development manager at the New Zealand-based Institute of Environmental Science and Research—a probabilistic genotyping company—says that his software, STRMix, “enables users to compare the results against a person or persons of interest and calculate a statistic, or ‘likelihood ratio,’ of the strength of the match.”

By leveraging computer processing, probabilistic genotyping “gives us more information to work with,” says Chris Lindberg, a deputy district attorney in San Diego. Many, like Lindberg, are excited for this technology because it analyzes samples in a way that would have been too labor intensive previously. The cost of these tools varies by company and number of licenses purchased.
Last year, San Diego joined jurisdictions in Indiana, Louisiana and New York, among others, deploying this technology in its investigations. Sutherland says this technology has been around for less than 10 years, but the statistical models the tools use have been around for decades.
This science has created a cottage industry. Besides STRmix, those receiving the most attention in the U.S. are the Forensic Statistical Tool, used by the Office of the Medical Examiner in New York, and TrueAllele, created by the Pittsburgh-based company Cybergenetics.

The September 2016 PCAST report on forensics noted that “probabilistic genotyping software programs clearly represent a major improvement over purely subjective interpretation.” However, the report added, “careful scrutiny” is still needed to determine whether methods are scientifically valid and if the software correctly implements those methods. The report clarifies that analyzing the software “is particularly important because the programs employ different mathematical algorithms and can yield different results for the same mixture profile.”

FORENSIC EVIDENCE BACK IN THE NEWS (DNA ANALYTICS)

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.

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.

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 https://isthmus.com/news/news/ozanne-judge-hanrahan-case-da-office-unprepared/.   If you are a resident of Dane County, shake your head. 

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.

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.

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!

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 7^th 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

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.

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!

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.’”

NACDL Releases Report on Court Failures in Enforcing Brady v. Maryland

Last November, the National Association of Criminal Defense Lawyers in conjunction with the VERITAS Initiative at Santa Clara Law School issued its groundbreaking report:  Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases.

The release of this report coincides with my present reading of the book: NOT GUILTY: The Unlawful Prosecution of Ted Stevens. For those of you unfamiliar with the case, the book is a fascinating read of prosecutorial misconduct in pursuing a conviction at all costs. A follow up report of the case and the behavior of the prosecution released in 2012 was described by ABC News as follows:
A court-appointed special prosecutor has determined that serious misconduct by Justice Department prosecutors tainted the federal investigation and trial of former Sen. Ted Stevens, according to a report released Thursday.
“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” the report noted.

I am convinced that many prosecutors are never trained or supervised in their ongoing obligations to provide the defense with evidence that helps the accused.  This failure leads to wrongful convictions and all the costs that go with it.

While the NACDL Report concludes "that Courts are impeding fair disclosure in criminal cases, and in so doing, encouraging prosecutors to disclose as little favorable information as possible. With Brady, the Supreme Court held that non-disclosure only violates the Constitution when the
information is material. This holding established a post-trial standard of review that
many prosecutors have adopted as the pre-trial standard governing their disclosure
obligations. Despite ethical rules that set forth a disclosure obligation far broader
than Brady, many prosecutor offices, and even some courts, have taken the same
incorrect position — prosecutors need only disclose as much as necessary to ensure
the conviction survives appeal."

The NACDL Report recommends step by step detailed changes to address the problems presented.

Yates v. U.S. to be argued Wednesday morning November 5

Supreme Court will hear oral arguments on November 5, 2014 to determine whether § 1519 which was enacted as part of the Sarbanes-Oxley Act, was only meant to apply to documents and objects used for recording, documentary, or informative purposes.

Petitioner was fined while at sea for catching prohibited undersized fish in the Gulf of Mexico. Petitioner was ordered to bring the undersized fish back to port with him, but he disposed of those fish while at sea. Upon his return to port, he was charged and convicted of violating of 18 USC § 1519 for destroying or concealing any tangible object, and USC § 2232(a) for knowingly disposing of undersize fish. The Eleventh Circuit affirmed Petitioner's conviction, and held that the trial court correctly interpreted § 1519, which made it a criminal offense to knowingly alter, destroy, or conceal any record, document, or tangible object with the intent to impede an investigation or administrative matter. The Supreme Court granted certiorari to answer the question of whether the Eleventh Circuit interpreted § 1519 correctly.

It must be criminal law day as Yates is followed by the Johnson case which addresses whether possession of a shotgun is a violent felony under the Armed Career Criminal Act.

SUPREME COURT REVERSES TREND

In contrast to the cases selected to be heard this term, the Supreme Court accepted cert on a criminal case out of the state of Ohio that directly addresses a lingering Crawford issue.  From the Williamette University College of Law:

Ohio v. Clark

Date Filed: October 2, 2014
Case #: 13-1352
Court Below: 999 N.E.2d 592 (Ohio 2013)
Full Text Opinion:  http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/2012-0215-Ohio.pdf

EVIDENCE: (1) Whether individuals acting under mandatory reporting statutes become law enforcement agents under the Confrontation Clause; and (2) whether non-emergency hearsay statements from minor children to such individuals are testimonial statements under the Confrontation Clause.

Respondent was charged and convicted on child abuse charges. A state appeals court reversed, holding that testimony of teachers’ and other non-police (“teachers”) relaying the child’s non-emergency statements violated the Confrontation Clause; the child’s statements primarily accomplished the purpose of identifying the source of past injuries for possible police investigation and prosecution when the teachers acted in compliance with their statutory mandate to report their suspicion of child abuse to police. The Ohio Supreme Court affirmed. Petitioner sought a writ of certiorari in part because of splits among the states on the issue, which affects mandatory reporting laws in every state.

Petitioners argue that the Confrontation Clause disqualifies testimony based on statements deemed testimonial – in this instance, statements made to law enforcement agents during “police interrogations.” Crawford v. Washington, 541 U.S. 36, 68 (2004). When the primary purpose of police questioning is investigatory and not in response to an emergency or similar situation, such statement are testimonial. Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). Federal law is silent on whether statements made to non-police individuals are testimonial, but Ohio applies the primary purpose test “to a child declarant’s statements made to police or to those the court determines to be police agents.” Ohio v. Clark, 999 N.E.2d 592, 598 (Ohio 2013). Individuals primarily questioning children to identify abuse perpetrators in compliance with mandatory reporting statutes are police agents because their actions serve a law enforcement purpose. Id. at 596-97.

OCTOBER 2014 TERM OF THE SUPREME COURT

The upcoming Fall term of the U.S. Supreme Court has very few criminal cases set for review. Out of 40 cases selected for the term, only four involve criminal cases.  Additionally, the cases do not seem to have any earth shaking issues or issues of national import.  A brief summary follows:

1. Elonis v. United States, the question is whether a prosecution under 18 U.S.C. 875(c) requires proof of the defendant's subjective intent?  Wonder how many times this statute is used in indictments?

2. Johnson v. United States, Does mere possession of a short-barreled shotgun warrant treatment as a violent felony under the ACCA?  Are you sleeping yet?

3. Wakefield v. United States, Under the federal bank robbery statute, 18 U.S.C. 2113, what is factual necessary to establish the forced accompaniment provision, thus invoking the mandatory minimum?

4. Yates v. United States, interesting because of its facts and the application the anti shredding provision of Sarbanes-Oxley, 18 U.S.C. 1519. Commercial fisherman destroys fish after being civilly cited for harvesting undersized fish from the Gulf of Mexico and told to bring them back to port.

Hey Supreme Court there are more serious issues out there percolating out of the Circuits.  On the other hand perhaps I should be careful what I wish for.

Reflection

It has been awhile since I have posted.  Recently, it has been a time for reflection.  Two of my closest mentors past away this last year.  Jack VanMetre and John Hanson were class individuals who were both excellent lawyers in their own right.  They taught me the two most important ethical rules to conduct your practice by.  Rule #1--Never ever put your client in harm's way.  Rule #2--the only thing you have in this profession is your word.

Those two simple rules encompass not onlyWI SCR Chapter 20 but everything that is important in how one handles themselves day to day, hour to hour in the practice of law.  They taught me these rules and they lived these two rules. I judge my cohorts by these two rules.

Although, I did not have a lot of contact with them the last 5 years, they remain with me as I continue my practice.  To both, "Godspeed."  I suspect that there were those long gone who needed a lawyer to advocate for them. 

A Continuing Challenge

The 2009 Report by the National Academy of Science on Forensic Science may finally be having an impact.  While popular TV shows give the impression that forensic crime lab analysts can divine the perpetrator based on almost anything, the reality is much much different. Setting aside the problem of crime lab dysfunction, during the past year I have mounted two full scale assaults on what can charitably be called junk science.   The first assault was against the fire investigation technique known as negative corpus.  The second assault was fought in the fantasy land known as forensic document examination, in particular, handwriting/printing comparisons. Both assaults were successful and the more I looked at these two issues the more offended I became as to their supposed legitimacy.

Now a state largely known for wrongful convictions, Texas, had passed a law which allows defendants to challenge their convictions that were secured by now questioned forensic identification methodologies.  While hair comparisons and bite mark comparisons are  front and center, the law apparently applies to any forensic method that is now being questioned due to scientific advances.  The Wall Street Journal recently reported on the new Texas law and its impact.  See http://on.wsj.com/1adHWs3