[music]

Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning again, everyone. You've heard of forensic crime labs, of course, on television. You've seen the meticulous analysis of trace evidence left behind by perpetrators of heinous crimes. Maybe you're familiar with news stories going about 50 years now about breakthroughs and infamous criminal cases made possible by forensic pathology. These supposedly objective methods don't always hold up to scientific scrutiny. This, says my next guest, has had troubling consequences, very troubling consequences, in the criminal courts that have accepted them as too legitimate.

Take the case for example, of Keith Allen Harward, a man who served more than 30 years in prison for heinous crimes he did not commit. The prosecution's case against Harward relied on the expert testimony of six different forensic dentists who claim that his teeth matched a bite mark on one of the victims. There were others in addition to Harvard, whose culpability depended on expert witnesses, who championed methods that have later come under scrutiny. Some were even executing.

With me now, Chris Fabricant, director of strategic litigation for the Innocence Project. You know the Innocence Project probably, they work to get people wrongly convicted, exonerated, and he is now the author of a book called Junk Science and the American Criminal Justice System. Chris, thanks for coming on with us. Welcome to WNYC today.

Chris Fabricant: Thanks so much for having me on, Brian.

Brian Lehrer: Can you start by telling us in more detail the story of Keith Allen Harward which does open your book?

Chris Fabricant: Sure. Mr. Harward was, in the early 80s, a sailor in the United States Navy and he was stationed in Newport News, Virginia. During the time that he was stationed there, there was a brutal rape and murder committed in Newport News. A young married couple was asleep in their bed and the sailor apparently broke into their apartment, murdered the husband, his name was Mr. Perrone, in his bed, while Theresa Perrone, his wife, was sleeping next to him. Then he sexually tortured Ms. Perrone for about three hours while their children were asleep upstairs.

They really had no evidence. They had no witnesses, they had no forensic signs, they had no confession. They had really nothing to go on except for a description of a white male, about 5'10, a sailor, and that he wore a mustache. That was really the only description that they had. As the pressure to solve this crime grew and grew throughout Newport News during the investigative phase, the United States Senator, including Alfonse D'Amato, former United States Senator from New York, had pressured the local police to make an arrest in the case.

They really had thousands and thousands of suspects because there are so many thousands of Navy folks stationed in Newport News at the time. What happened was that they did a dental dragnet and looked at all these sailors' teeth. Over 2000 sailors were examined to see whether or not they could match their teeth to this bite mark on Theresa Perrone's thighs. Interestingly, during that time, Mr. Harward was actually excluded as a potential fighter during this initial examination. About a month later, he was arrested during a domestic dispute with his girlfriend at the time and a drunken dispute where she had hit him with a frying pan and he bit her on the arm and they were both arrested.

Mr. Harward was suddenly on the police radar. Not only was he a Navy sailor, he was a white male around the same height except for he didn't wear a mustache. Now he was a known biter. That really set the wheels in motion to his wrongful conviction. Many, many experts who initially had said that he was excluded, changed their minds as a result of, really, the bias that goes into a lot of these subjective forensic techniques. He became the only suspect and was twice convicted of capital murder.

The original conviction was reversed on a really illegal technicality because, at that time in Virginia, you were not eligible for the death penalty for a rape and a murder unless you raped and murdered the same human being. The technicality in the law led to another trial and he was convicted again on the same junk science by mark comparison evidence. The only reason that Keith Harward is alive today is because his parents got on the witness stand at a sentencing phase and begged for his life and so he wasn't executed.

34 years went by after that conviction without any litigation, without any investigation into the case at all, nothing really had happened. Mr. Harward had completely given up hope and it was really just happenstance. It was that the strategic litigation department at the Innocence Project, the department I run there, had decided to focus on bite mark evidence. My paralegal just came across his appeal and we decided to take on his case. He was exonerated within six months after that.

Brian Lehrer: Did they figure out that it was someone else's bite marks?

Chris Fabricant: Yes. The reason that I included Mr. Harward's case in Junk Science was because it's really a textbook DNA exoneration. In that, there was DNA deposited all over the crime scene. It was redundant DNA. In other words, it was the same person whose DNA was located. It was not Keith Harward. It was not Theresa Perrone. It was not Jesse Perrone, her late husband. It was a stranger. Once we discovered the DNA evidence, we were able to upload it into a national database called CODIS and identified another sailor from the USS Carl Vinson, which was dry-docked there, who was the actual perpetrator and went on to commit many other crimes and died in prison in 2010.

Brian Lehrer: That's really a shocking story. That one by itself is a shocking story but then you have these others. Do you believe that anyone was actually executed based on a wrongful conviction that was based on what you call junk science?

Chris Fabricant: Yes. In my book, I explore for executions, all in Texas, that I argue were wrongful executions of innocent people based on unreliable forensic sciences. I tell a story from the 1950s involving Tommy Lee Walker in which polygraph evidence was used to induce what I argue was a false confession. David Wayne Spence in Texas was the only physical evidence that connected him to a horrific triple homicide in Lake Waco, Texas. The only physical evidence in that and David Wayne Spencer's case was bite mark comparison evidence, which I've seen it. I've seen a lot of these cases. It was outrageous that such a life and Liberty and decision could be made on that.

Cameron Todd Willingham was executed in Texas on junk arson investigation science, and Claude Jones in Texas as well was executed based on microscopic hair comparison evidence that turned out not to be his and was actually the hair evidence that was used to connect him to that crime was actually the victim's own hair. The threat to life and liberty posed by junk science really cannot be overstated. It's one of the reasons that I wrote my book

Brian Lehrer: Listeners, I wonder if we have any prosecutors or defense attorneys or judges listening right now who can give some first-person example of using forensic evidence, scientific pathology, which may be real, or maybe the juries and the judges are too credulous when it comes to some science that our guest Chris Fabricant from the Innocent Project calls junk science in his new book of that title. Anyone have a story to tell us or a question to ask, 212-433 WNYC 212-433-96-92, or tweet at Brian Lehrer. You talked about one area that you consider too often junk science, forensic dentition, these bite marks. Give us another one.

Chris Fabricant: No, I talk about right around the middle of the book is in 2012, when I first started at the Innocence Project was really the beginning of the largest forensic science scandal that this country has ever had. That was the FBI's admission after a century of using microscopic hair comparison evidence that its agents had been grossly exaggerating the probative value of microscopic hair comparison evidence for the entire time. When we had that meeting at the Innocence Project where the FBI and the department of justice had decided to do the right thing and correct the record and go back and review thousands of cases that involved microscopic hair comparison evidence.

What was really astonishing to me, I was just learning about forensic sciences and some of the unreliable techniques that had led to wrongful conviction, is that as we were sitting there in that room negotiating with the FBI and the department of justice, at that time, there had already been over 70 wrongful convictions attributable to the use, at least in part, of microscopic hair comparison evidence. I was astonished even as somebody whose job it was to litigate against unreliable evidence that so many wrongful convictions had already been predicated on this testimony and that was still admissible, and it's still admissible today.

We went back and looked at thousands of these cases. The first 500 of those cases where the testimony of FBI agents who were declared expert witnesses and talked about their scientific evidence at trial had proffered false, misleading testimony, suggesting that matching two hairs together was highly probative evidence as to the source of that hair. We know that such testimony was invalid and misleading and has led to so many wrongful convictions.

One of the points that I try to make in Junk Science a lot was some of the other stories in the case in particular, that don't involve DNA is how hard it is to get to the truth when we don't have DNA evidence. When convictions rest on unreliable evidence, overturning those convictions is a one in a million shot.

Brian Lehrer: Let me ask you about the role of the media in popularizing some of these analysis methods, some of these types of evidence that you say are too often junk science. I think the media's role comes from the fact that some very big cases were involved with this thing, like the Ted Bundy case. Some of it comes from the Law and Order, CSI kinds of shows on TV, where they make for good storylines, but there's even a WNYC example in your book that I was unfamiliar with previously, the story of one Milton Halburn who became a household name back in the 1970s. Tell us about the story of Milton Halburn and the role of the New York media.

Chris Fabricant: Well, the media has been responsible for exaggerating the capabilities of forensic sciences for decades, really going back to Quincy, for those of your listeners who remember that show, and often it's presented as infallible. In fact, we know that's a perception that many jurors come into court with already, so it perpetuates this idea of the infallible forensic scientist. One of the shows that-- A great irony is that we have, you know, the lawyers in my department watched those shows Forensic Files and CSI.

We have actually taken cases that we saw featured in Forensic Files as a crime solved as a result of forensic sciences, taking those cases, litigated those cases, and the clients have been innocent. Alfred Swinton in Connecticut is a great example. He was on Forensic Files and his show was on Forensic Files and one of the lawyers in my department looked at it and said, "Wow, that's incredible. That sounds really like an unreliable conviction because any conviction resting on junk science is inherently unreliable." We took up Alfred Swinton's case and he was exonerated years later and after having been depicted in Forensic Files as entirely guilty and a potential serial killer.

When I was trying to unpack, how forensic sciences first got into court and how some of these unreliable techniques have been used, I really wanted to discover the source story of bite mark comparison evidence, which is probably the paradigmatic example that I used in the book of the worst offender. That's when I ran into Milton Hepburn who was New York's chief medical examiner for many years, he's a huge household name for a while predating Quincy, and learned that the forensic pathologists really were the mentors to the forensic odontologist. That's what the bite mark experts call themselves.

That they had helped shepherd this evidence into court by acting as mentors and giving casework to these dentists who were trying to get their technique into court. Some of the parallels that I drew raw around forensic sciences are with medicine in that it was really around that same era in the seventies and in the eighties where medicine started to turn toward evidence-based decision making. Before, it had really been based on training and experience of the top practitioners in the field. That similar parallel with forensic sciences has not really made that change yet. In other words, we have not had evidence-based forensics and many of these pattern matching techniques in particular for a long time.

The doctors who were involved in that trade at the time were mentoring based on, really, their training and experience and received wisdom, rather than actual scientific research. I pointed to Dr. Hepburn as an example of this, because he was a huge figure in the field of forensics for a long time and helped shepherd in, perhaps unwittingly, I assume unwittingly, really terribly unreliable forensic evidence and provided credentials and casework to people who went on to convict innocent people.

Brian Lehrer: Let's take a phone call. Charles and Roslyn, you're on WNYC. Hi, Charles.

Charles: Oh, hello. Thank you very much. I've worked in area related to image use in forensics based on imagery and I was wondering what your guest's opinion is. Years ago, the National Academy of Sciences had Judge Harry Edwards lead a study very broadly on forensic science. It called out things like bite marks and hair matching and that sort of thing. I'm wondering, does he have an opinion on, and a lot of those have been dealt with in some respects, but does he have an opinion on the state of the work more broadly, particularly as it relates to things like face recognition, fingerprint matching, where we had a horrific case back in the early 2000s, and other image-based, or other forensic sciences.

Brian Lehrer: Yes, that's a great question because there are all these things, and even you've been talking about DNA as the gold standard for evidence that's exonerated people in a number of cases. We did a segment just last week about how people in New York activists in New York are objecting to how many people who have contact with the criminal justice system, have their DNA taken even without their knowledge, which makes them permanent suspects when they run any crime against the city's DNA database.

There's a question of, well, if they didn't do it, then whatever the crime is in the future, why do they care about the DNA, which has worked to exonerate so many people, but I'm just adding that onto Charles' questions about more contemporary forensic science techniques, like facial recognition that are so controversial.

Chris Fabricant: Well, there's a lot to impact there. One of the things that your caller first mentioned, Judge Harry Edwards, who was the co-chair of the National Academy of Sciences committee that looked into forensic sciences and published a report in 2009, which I devoted chapter two in my book, the National Academy of Science hearings on forensics because it was the first time that mainstream scientists had actually examined forensic techniques that had been used in criminal trials for a hundred years.

It came to the conclusion that only nuclear DNA analysis had been scientifically valid and demonstrated to be reliable, which was a shocking event and a shocking report that still reverberates today in the forensic science community. As we move forward with forensic sciences and digital evidence becoming more and more the norm, there are many different variables that we have to consider before we introduce scientific evidence in criminal trials. One, of course, is reliability issues.

What we at the Innocence Project have advocated for a long time is to have a separate scientific entity perhaps with the National Institute of Standards and Technologies to do validation research before forensic sciences are introduced at trials where life and liberty are at issue. We test aspirin and toothpaste and other consumer products before they're introduced to the public for safety reasons, but we do nothing like that in forensic sciences. The only thing standing between a junk science conviction and the proffer of that evidence is one single judge to make that decision. That really has led to gross injustices.

As we go forward and where nothing has really changed about the criminal legal system, except for we have new forensic techniques and we're still, and I want to emphasize this, still, every single forensic technique that I discussed in Junk Science is still admissible evidence today. Nothing would prevent the prosecution right down there on 100 Center Street from introducing bite mark evidence today.

With digital technology facial recognition has been shown to be unreliable at identifying Black and brown people in particular. We also have to think about the ethics the morality of using some surveillance technology because most of that surveillance technology is like the surreptitious collection of DNA aimed and trained at marginalized communities to further surveil and exploit and wrongly arrest and wrongly stop those same people.

The power of technology in the hands of law enforcement has been shown time and time again to further subjugate the same communities that have been subjugated by the criminal legal system for the last hundreds of years. It's been shown time and time again to be introduced prematurely in court before adequate validation research can be done.

Brian Lehrer: We have just a minute left. Would it be fair to say you don't want to delegitimize science too broadly? We have enough of that from the climate deniers and the anti-vaxxers that think any science that results in progressive policies they don't like is fake and just to cover for wanting to control people. Would a way to say what you're after just be that uncertainties in science need to be acknowledged when being considered as evidence in a crime not to delegitimize the practice of science to an excessive degree.

Chris Fabricant: There is no organization that relies on valid scientific evidence more than the Innocence Project. It's the foundation of all of our litigation. We never advance arguments that are contrary to the established science at the time. No. Of course not, we don't want to delegitimize science. We need to bring appropriate skepticism to the use of scientific evidence. We also need to have thresholds established to, how reliable is this?

As we sit here today, for example, like in firearms and tool marks, sometimes called ballistics,

we don't really know. We don't have adequate information as to how often they get it right and how often they get it wrong when they match a bullet to a gun. The accepted testimony today is that only that gun to the exclusion of every other gun manufactured in the history of time could have shot that bullet. There's no statistical database that could support that type of conclusion, and it's accepted every day, but nor is there an adequate exploration of the error rate, how often these experts get it right and get it wrong. That's true in almost all fields that are still admissible today.

Jurors don't really have appropriate tools to weigh the probative value of that evidence, which is why we really need to establish and promote and to let jurors know that just because scientific evidence has been used in the case does not mean that it's infallible, does not mean that the expert witness might be wrong. We've seen it and I've documented it in my book over and over again that science is how mankind understands the world around us but it's not infallible. We have to have real science used in criminal trials.

Brian Lehrer: As you point out in the book, lawyers often need to be better educated in how to understand scientific uncertainties so they can push back when appropriate. We have to leave it there with Chris Fabricant, director of strategic litigation for the Innocence Project. His new book is called Junk Science and the American Criminal Justice System. Thank you so much for talking about it with us.

Chris Fabricant: Thank you for having me.

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.