Forensic Frauds and Criminal Justice (with M. Chris Fabricant)

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0:00:08.1 Trevor Burrus: Welcome to Free Thoughts I’m Trevor Burrus. Joining me today is Chris Fabricant, the Innocence Project’s Director of Strategic litigation, and author of the new book, Junk Science and the American Criminal Justice System. Welcome to Free Thoughts, Chris.

0:00:21.4 Chris Fabricant: Thanks so much for having me, Trevor.

0:00:24.2 Trevor Burrus: I’d like to start with a story you told in the middle of the book, which you described as the first significant meeting you attended… After joining the Innocence project in 2012, what was this meeting and why was it going on at that time.

0:00:39.0 Chris Fabricant: It was an astonishing meeting that was long, long overdue, and as what I learned at that moment was that hair microscopy or microscopic hair comparison evidence, which is a form of forensic sciences that had been used for at least a century in criminal courts had been a contributing factor to at, least on that day in 2012, at least 70 known wrongful convictions, 70, 7-0, and it was still in use in criminal trials and to some extent, still is today, but at that time, the Department of Justice, the FBI, and the FBI had come to the Innocence Project and seeking our help for an audit of all cases that involved the use of hair microscopy in a criminal trial, in which FBI agents had testified. And the reason that that meeting had occurred was because there had been three wrongful convictions that I write about in the book of three black men, all falsely convicted of assault of white women, and hair microscopy had played a central role in all three cases that all three cases involved different experts from the FBI crime lab, so they couldn’t make a bad apples argument, it was bad science, not a bad examiner, and hair microscopy was central to each conviction, and a Washington Post reporter named Spencer Hsu had begun to relentlessly chronicle the Odysseys of these three men who in the aggregate had spent more than a century of wrongful imprisonment based on this junk science.

0:02:30.3 Chris Fabricant: So when I came to the Innocence project, I was tasked with beginning the strategic litigation department and addressing the use of junk science in American Criminal Courts, and as I say in the book, it was really the timing was unbelievable, because I was sitting there suddenly and there was a general counsel of the FBI, and there was a former Inspector General from the Department of Justice, and there was Peter Neufeld and there was Andrew Wiseman and Norman Reimer the head of the NACDL. And suddenly we had an admission from the most important forensic science laboratory in the world that this evidence that they had been touting for 100 years was junk, and that was an incredible eye-​opener for me, and really the beginning of my work in forensics…

0:03:21.7 Trevor Burrus: So Let’s lay it out just the general lay it out on the table in terms of the kind of forensics we’re talking about, and when you say junk, it’s not that… As you pointed out, it’s not just that someone can be particularly bad at hair matching or matching tire prints or something like this, is that it is not even science in any meaningful sense of the word, but what is that category of these… Just generally, Junk. Forensic Sciences.

0:03:49.3 Chris Fabricant: Yeah, I wanted to be really careful about the way that I define junk science because it’s a pejorative term, certainly forensic experts pocket the use of that language, and certainly when you’re talking about a technique that they use, and the way that I define it in the book is subjective speculation masquerading as scientific evidence, and that there’s no empirical basis for the opinion that’s being proffered to a jury as expert witness testimony or so-​called scientific evidence. And most of what these techniques are, are largely based on training and experience, and that these techniques are really controlled by what amount to guilds, like old-​fashioned labor guilds, and that they’re really based on the received wisdom from sometimes many generations of forensic practitioners and those that are the most highly respected in their fields, and that kind of wisdom is passed down from mentor, to mentee for generations. Medicine used to be like this. And some parallels that I draw in the book between the pivot from evidence-​based decision making in medicine, and how hard that was when you had doctors who were really resistant to the notion that this esteemed teacher that they had that they learned…

0:05:01.4 Chris Fabricant: Some of it was valid science and some of it was nonsense, until we really had mainstream scientists taking a look at medicine and medical decision making and realizing that some of this was nonsense, because it hadn’t really been researched in randomized controlled studies, it just wasn’t being done and we still have that today in forensics, so when I call something junk science, I’m not talking about evidence that… Evidentiary techniques that have been developed in laboratories and been subjected to the rigors of the scientific method. Talking about stuff that’s invented at crime scenes and leaks into Criminal Courts, and then it’s nearly impossible to get out of criminal courts. Because I spend a lot of time trying to do just that.

0:05:40.1 Trevor Burrus: So CSI lied to us. Is what you’re saying.

0:05:42.6 Chris Fabricant: Oh Yeah, no, people gotta recognize that CSI is fiction… And Not only that, but the non-​fiction shows will lie to you too, like Forensic Files… I have two clients that were on Forensic Files, both of whom depicted as obviously guilty, both of whom, innocent. Right, Alfred Swinton Connecticut, is a bite mark case I took that case after seeing him on forensic files and he was being depicted as a serial killer and trying to put five, six bodies on him, and they were touting oh thank God, for the bite Mark evidence. We wouldn’t have gotten this killer off the streets, and he looked innocent just from the show, from watching the show, and so 18 months later, he was exonerated, so… Yeah. Don’t believe what you see on television. Absolutely. Retain your skepticism.

0:06:24.0 Trevor Burrus: It’s interesting because I watched those shows a little bit when I was a teenager, and then once I became more libertarian, they were just way too pro-​cop and they were too pro-​prosecution, but it did even strike me then that I was… For a bite mark, for example, which of course features a lot in a lot of these fictional and non-​fictional shows. I don’t think that I could… Let’s take a piece of really firm Cheesecake and I bite into it very cleanly, and I give it to one of these experts, and then we try and give them… Give them 10 different molds of our teeth and see if they can match up who took a bite out, and this is assuming the cheesecake hold its form. I doubt that that just seems exceptionally strange, that could work one people’s teeth are probably not that unique. Two, there’s probably not that much information in the cheesecake or to say a piece of fried chicken. So it always struck me as odd, but there was just a lot of credulity about just saying, Oh, this is… This is definitely science and the human body is like a piece of cheesecake or something, and it’s like Every criminal’s biting…

0:07:29.6 Trevor Burrus: That’s the one that gets me, they’re just how many criminals are biting their victims a lot, apparently, according to some people.

0:07:37.8 Chris Fabricant: Right. I hope that my body is not like cheesecake. The problem… A few things that you raised there which are of interest, is that… One is that almost none of them are in substrates like cheesecake, they are in human skin and human skin is constantly changing. You know what I mean? So you could have somebody that so calls matches a bite Mark one hour and not the next hour because of the decomposition of a body or the healing of a live victim, which right there, full stop. You should never use this technique because it’s always documented some time after the injury was inflicted, we don’t know what the position the body was in when it was inflicted, We don’t know how much it’s changed. So there are no other forensic techniques that the substrate is constantly changing, like that if you were to put it in some more of a stable substrate and did it the way that you did, you wouldn’t really need an expert, so you could say, Well, maybe this person could be included as a potential biter, you know what I mean they are like… Dentists are always telling me that, Oh, what about somebody who has no teeth and somebody that does…

0:08:36.1 Chris Fabricant: Couldn’t we just say something? I’m just like, You don’t need an expert witness for that anybody could eyeball that and say, Yeah, that mark… It doesn’t look like this person had any teeth, but the reality is though, and what we see and what’s really dangerous about this and many of these other speculative techniques is that it can be interpreted as anything you want it to be interpreted. That’s the beauty of junk science is that whatever theory you have can be advanced to the use of this evidence, and so when you see an injury on a human body, it’s always these diffused bruises that it’s kind of like interpreting a cloud formation, you know what I say, I say, Trevor hey Look up at this guy there, you see that cloud. Doesn’t it look like a bunny rabbit, you could maybe not be thinking about a bunny rabbit at all, but you look at it… And you can see what I see and you’re like. Oh yeah, that does look like a bunny rabbit and then you can’t unsee it, that’s exactly the way that bite marks. But I’m telling you that I’m a cloud expert and I’m an expert in bunny rabbits, and say That is a bunny rabbit and I’m the expert, and the judge has called me an expert and given me that imprimatur in front of the jury, and I’ve laid out my curriculum vitae, which is 20-​plus pages long, and these junk scientists have CVs that are longer than any of your average expert’s… You’re gonna believe that, right?

0:09:46.7 Trevor Burrus: Interestingly what you pointed out that with my cheesecake example, where an individual person can look at it and say This matches or doesn’t match, or a jury could do it that way, that’s kind of how the original bite-​mark case was, so how we got into this lineage, starting in the ’70s, and… Well, you mentioned Ted Bundy, of course too, but it was about saying, Well, the jurors can look at this… Not so much the experts. Correct.

0:10:10.3 Chris Fabricant: Yeah, the so many shaky or just plain old junk science techniques get into criminal trials with that rationale and that they’ll point to the statutory scheme that they’re supposed to consider before they use scientific evidence and say, Well, this is supposed to be liberally… Allow expert witness testimony, and we’ll rely on jurors to determine the facts, and then we will rely on jurors to use their common sense, and that’s the basis of our jury trial system in the United States. And that sounds great until you’re talking about so-​called scientific evidence, because there is widespread scientific illiteracy in this country, and that includes lawyers, maybe even… Especially lawyers, right? You know, I mean… And so defense attorneys prosecutors, judges, lay jurors, yeah everybody in the courtroom is essentially scientifically illiterate, you have one expert on the stand who’s been called an expert by the court and saying that this defendant is probably guilty, and most of the jurors already believe that as does the judge, and certainly the prosecutor, you have two strikes against them, and that is going to be a magic bullet for a conviction under those circumstances, and so…

0:11:26.3 Chris Fabricant: Yeah, the bite mark, the original bite mark case, and the reason that I tracked bite mark evidence, apart from the three clients stories that I focused on in the case to tell this story is that you could really pinpoint its actual origin. The first case, and you could demonstrate through the use of bite mark evidence, really the story of junk science in this country, how it was invented, how it’s been used, and how the efforts to reform the system had failed, and the reasoning that they used in the first…

0:11:58.6 Chris Fabricant: Bite mark case, is exactly what we’re talking about is that they said that… Well, and it was also on a different substrate it was on cartilage of the nose, which is a little bit different than skin, it’s much more stable and that they had this… A lot of these junk science cases, there’s only circumstantial evidence, there’s no hard evidence connecting the suspect to the crime, and so usually there’s good reason to believe that this suspect is potentially guilty, but they don’t have any evidence and they need something sciencey to put in front of a jury. And so like a broken clock that’s right twice a day, sometimes junk science will get it right, sometimes it would get it wrong, in the bite mark case, this guy, Walter Marx, was leasing his bedroom from a landlady named Lovey Benovsky, and he was in the house when she was alive and then she turned up really brutally murdered the next day, and he decided not to spend the night in the house that he was renting, so it was a reason to believe that he was certainly a good suspect for it. And so the judge decided that… But the bite mark, evidence had never been used before and this enterprising prosecutor decided that he was gonna see if he could get.

0:13:18.4 Chris Fabricant: Some dentists to match the suspect’s teeth to this injury, in the woman’s nose, and the judge in the published decision said that they admitted out loud that there had never been any scientific research, no orderly experimentation, that it didn’t meet any of the kind of basic thresholds for the use of scientific evidence in criminal trials, but it didn’t matter because this was so elemental and such easy stuff that he could see with his own eyes, whether or not this matched and jurors would be the same, they weren’t gonna be hoodwinked by some whiz-​bang technology or black box technology that they just had to take an expert’s word for it. They could be able to suss out sense from nonsense on their own and that reasoning was adopted for bite marks led to over 35 wrongful convictions at the time, it’s only the ones that we’re aware of, but not just that that same reasoning was used for the use and the introduction of all kinds of pattern matching techniques that are based on a lot of speculation here, microscopy, firearms and tool mark, evidence to footwear impression evidence, all these other techniques where this idea is just that you rely on jurors, not on scientists, to separate real science from fake science, and what that has led to is thousands of years of wrongful incarceration.

0:14:39.8 Trevor Burrus: And you keep pointing out that we know about… Because if you really see how rotten this is, in addition to every other rotten part of the criminal justice system, like lack of defense attorneys, for example… And the Lord’s work that you guys do at, the Innocence Project, you can only do so much. In trying to figure out when you have destroyed records and you have inmates who maybe have passed away, and some that are writing you letters, you can assume that there are many, many, many, many wrongful convictions out there.

0:15:08.8 Chris Fabricant: Oh my god, we have 2.3 million people in various forms of incarceration in this country, and if you say even 1% have been wrongly convicted, you know, you’re talking about tens of thousands of people, and if you’re talking about… If you include all of the victims of the drug war, then you’re talking about millions and millions of people, and then you’re talking about a system that’s really been turned on its head, and there’s plenty of junk science used in the drug war too all the presented drug tests that are out there that are subjective interpretations of color bars on the side of the road by some police officer who already believes this defendant is guilty, then people get arrested and they go to jail and they have to plead guilty to crimes they didn’t commit based on junk science. So I focus on many techniques in the book, you know what I mean, but there are many others that you could write a whole another book just to pick out another technique.

0:15:57.3 Trevor Burrus: Let’s get into some of the stories. Steven Chaney. How did he get convicted? Originally.

0:16:05.5 Chris Fabricant: So what Steven Chaney, was my first client at the Innocence project, I write about meeting him for the first time, what an emotional experience that was as somebody that had been a public defender for my entire career before then, and I include the time that I was a clinical law professor, because my clinic was a Defense Clinic, the Steven Chaney in the mid-​80s was like a lot of people in Texas and elsewhere at that time was a cocaine user, he was a construction worker. And he spent time with John and Sally Sweek, both of whom were drug dealers? A young married couple in their early 20s that were dealing cocaine out of their apartment in suburban Dallas, they were pretty casual about their drug sales, they just kept an IOU list, they fronted a lot of people, a lot of drugs, and they weren’t very… Running a very tight ship, they were partying a lot themselves and that it was just it wasn’t the operation that you would think of when you think about big time drug dealers. But it’s still a very dangerous profession, because you had to buy from wholesalers and… What happened was that John and Sally Sweek were murdered and brutally butchered on the floor of their kitchen, they were each stabbed over 18 times, they had their throats cut to the bone and left dead in their own kitchen.

0:17:41.3 Chris Fabricant: There were no eye witnesses. There were fingerprints everywhere, but whose to associate these with… We don’t know. Some of them were bloody, some of them were not, there was bloody footprints leading away from the bodies in the kitchen, extending across the carpet, this shade Brown carpet into the living room where you could see the trail leading to where the killer has probably looked out the window to see if there were any witnesses, there was no photographs, of the bathroom where they probably cleaned up, there were no drugs or money found in the house, probably because they were riffed off. And they were not discovered until some other friends of theirs who would also have been customers of the Sweeks found their bodies late one Saturday night, and they had been dead for anywhere… The window was about six, seven hours, but some time during that day they had been murdered. So there was a good suspect, good in terms of somebody that seems like potentially could have been involved in this because this guy named Juan Gonzalez had been an alleged member of the so-​called Mexican Mafia and had had two prior convictions to drug trafficking, and had previously threatened the Sweeks because the Sweeks owed him money, and there was a previous threat against their lives a couple of years before, when they had fallen behind from their dealers before.

0:19:07.0 Chris Fabricant: So he became initially the chief suspect and he was on parole, and the Dallas Police Department, the homicide division started focusing on him until they got a call from one of Steven Chaney’s friends, from the so-​called friend at a construction site with a tip. And what he claimed was that Steven Chaney owed the Sweeks $500, or he was back and forth on the amount, but at one point he said $500 and that, he decided that that was Mr. Chaney’s motive to murder these two people to clear a drug debt. And suddenly the police investigation pivots away from Juan Gonzalez, he gets Steven Chaney’s fingerprints, he runs them against some of the prints that were found in the apartment, he finds Steven Chaney’s thumbprint not too far from the body, not bloody, which is an important fact, because he’d spent lots of time at the Sweeks’ apartment. So finding his fingerprints was not particularly surprising, and he gets arrested, he gets interrogated.

0:20:13.9 Chris Fabricant: He denies it all, they seize his shoes, and they let him go and then he gets re-​arrested when they do a presumptive blood test on his sneakers and they claimed that there was a positive test, and then there was this U-​shaped injury on John Sweek’s forearm, and there’s a picture in my book of this injury in the photo insert.

0:20:35.9 Chris Fabricant: And initially, before they had Steven Chaney as a suspect, and you see this in a lot of wrongful conviction cases, they decided one the forensic dentist, had decided that this is a bite mark, if you look at the injury, it doesn’t look like a bite mark to me, and I’ve seen a whole hell of a lot of them, as you can imagine, the good and bad. And that it was inflicted a couple of days before the murder, which was important, and then they found Steven Chaney as a suspect, and what they had was this bite mark, and this fingerprint and this alleged motive, and they had a forensic dentist, and what we’ve talked about before, is that junk science can tell any story you needed to tell, and so this story started to change, and what the first was, is that they took a mold of Steven Chaney’s teeth, they compared it to this alleged bite mark and said it was consistent with it, by the time we get to trial, when they started painting the bull’s eye around Steven Chaney, the target that injury wasn’t consistent with, it was 1 million to one chance that anybody other than Steven Chaney had made that bite mark, and it wasn’t a couple of days before the murder when it wouldn’t have been that relevant, but it was at the time it was inflicted at the time of the murder.

0:21:53.7 Chris Fabricant: And that piece of junk science was enough to overcome nine alibi witnesses that Steven Chaney had put on the witness stand. Steven Chaney had never had, apart from two misdemeanor marijuana convictions, and he was 28 years old at the time had never been in trouble like that no evidence of a violent behavior or anything like that. He was just a small time cocaine user and had been fully employed as a construction worker his entire adult life. So he was convicted, he was sentenced to life in prison and went away and was in prison in outside in Huntsville, Texas for the next 27 years. And when we started the strategic litigation department at the Innocence Project, we have been known for, of course, DNA exonerations for the first 30 years of our well, first 20, I should say really, but This is our 30th anniversary, but the first 20 years of our work, it had always been DNA exoneration. So that was the only intake criteria, so if you couldn’t find and test biological evidence, and if that proved innocence, it didn’t matter if there were ten eye witnesses or a confession or whatever, we would take those cases, and that’s why we know people falsely confess, that’s why we know eye witness identification is not reliable, and that’s why we know bite marks and many other forensic techniques are junk science.

0:23:16.2 Chris Fabricant: So we decided that we were going to look for people that were convicted on junk science, and in particular, we were going to look for bite mark cases, amongst others, I did, a bunch of hair microscopy and arson and shaken baby and other forms. But bite marks was certainly our focus. And I put a call out to the defense bar, and a woman in Texas named, a public defender there named Julie Giusset, had contacted me and said, I have a case here in Texas. Where The testimony at trial was there was a million to one, anybody else had made this mark, so I said, that’s a case that we need to take. And a few years later, and you’ve read to the end of the book, so I don’t wanna get the way the end ends, but Steven Chaney’s odyssey was far from over at that point, but we took on his case and eventually he was released. But more troubles ensued after that, but it was a really important case, it was the first time that any court in the United States had favorably cited the 2009 National Academy of Sciences report on the state of Forensic Sciences, and it was…

0:24:24.5 Chris Fabricant: It just demonstrated that evidence that’s been accepted by criminal trials since the Walter Marx case that we talked about earlier, and really then Ted Bundy after that, that really shoved it into the mainstream, it was the first time that a court had in this area. Looked back and said, You know what, maybe we were wrong about, this this is a big deal.

0:24:43.5 Trevor Burrus: And it’s when you took it over when you got his case, that there was a shake-​up starting in the bite mark world, and you kinda mentioned the guilds aspect of this because there’s a lot of interested players in the criminal justice system of… Course you have police and police unions in prisons and prison guard unions and prosecutors, but we created amongst all these different forensic matching organizations, these kind of guilds that got pretty good at circling their own wagons to try and defend themselves against what was a National Academy of Sciences report that pretty definitively said, this stuff is not science. But that of course, prosecutors don’t like that, cops don’t like that, and wagons start circling and you’d probably get hate mail from these people I assume…

0:25:32.2 Chris Fabricant: Yeah, I’m certain that, I’m not popular with certain of these guilds, and I had a much longer section on this in the book and it got cut a little bit, but the scientific dissent is really not tolerated in forensics, this is not mainstream science where you have transparency and scientists are used to being criticized by their colleagues, they’re used to having their theories tested, they’re used to having other scientists attempting to falsify their hypotheses… That’s science. That’s the way it goes they have thick skin, they should… Because that’s how mankind has developed our knowledge base in the world through the scientific method, it’s not by a defendant helping a guild and protecting your enterprise. So there’s financial aspects of it, there are ego aspects of it, it’s very hard to…

0:26:30.1 Chris Fabricant: Somebody that’s been declared an expert witness from coast to coast, that’s testified as an expert, that’s put people in prison and on death row to come around and admit, they were wrong. And when you have colleagues that are suddenly questioning the basis of the enterprise, that’s really not tolerated, and we’ve seen it in field after field, I write about the attacks on Mike Bowers he’s one of the original American Board of Forensic odontology well not the original…

0:26:55.7 Chris Fabricant: But an early member of the so called or It’s not so called, it is called the American Board of Forensic odontology, and he was the first dissenting expert in that field, and really when we at the Innocence Project really started focusing on bite mark evidence, he was viewed more and more as a problem for them, and so they ginned up this bogus ethics complaint, and we here helped to organize his defense, and we’ve estimated that the amount of pro bono representation from two big law firms and me was around three quarters of a million dollars that was spent on… And that was just because Mike Bowers was able to generate pro bono representation, how many other people have been drummed out for voicing dissenting views? It’s hard to know, but just recently, [0:27:47.1] ____ was the nation’s or world’s leading expert in cognate biases as it relates to forensics, wrote an article on forensic pathology that was co-​authored by three members of the National Association of Medical Examiners that suggested that they were humans and that their brains were like everybody else’s, and that they were influenced by contextual information that was irrelevant to their case work kind of a bias, right and they were all…

0:28:21.0 Chris Fabricant: They tried to go after Dr. [0:28:21.5] ____ and his academic institution, ethics complaints were filed by other NAME members against them because they signed on to this paper that they didn’t like, that was critical of their field, so it’s very, very frustrating because the stakes are incredibly high. We’re talking about life and liberty and the circling of the wagons that you pointed out it can cost people their lives…

0:28:48.8 Trevor Burrus: Well, this seems like a good time to bring up Michael West in terms of a certain interesting way of circling the wagons or throwing someone under the bus, I guess, eventually throwing them under the bus, and we’ll put a link in the show notes to the episode, we did with Radley Balko and Tucker Carrington on specifically Steven Hayne and Michael West. But you… One of your cases you write about dealt with this character, I was very excited to read that very long transcript between and the deposition is just he seems a character to say the least, but who is Michael West and how does he fit into one of your stories.

0:29:27.3 Chris Fabricant: So Michael West was, and is probably the most notorious of the forensic odontologists as they like to call themselves when they are in court well it’s just a fancy word for a forensic dentist. He was a dentist from Mississippi whose partner in junk science was a pathologist named Steven Hayne. When I had got to the Innocence Project, I had never had a bite mark case, despite 15 years of working in criminal courts, I had plenty of hair microscopy and firearms and all kinds of other stuff, but I had never had a bite mark case. And when I got in here, he had already been basically discredited, there were Levon Brooks and Kennedy Brewer cases that are included in Radley Balko and Tucker Carrington’s book. And when we started focusing on bite marks, and that was primarily my role was I was gonna be litigating a lot of these cases, it felt inevitable that I was going to have a confrontation with Michael West it felt like Luke confronting Vader, eventually that was kinda have to happen. And so Tucker Carrington and Vanessa Potkin and Peter Neufeld, had already been litigating the Eddie Lee Howard case when I joined the Innocence project, but the DNA was not sufficient to exonerate Eddie Lee Howard and we were going to have to litigate it like a straight up junk science case.

0:31:02.7 Chris Fabricant: And so we decided that in advance of this evidentiary hearing that we were going to have around the scientific validity or lack thereof of bite mark evidence that had been used to convict Eddie Lee Howard and sent him to death row in Mississippi.

0:31:19.9 Trevor Burrus: Which is particularly crazy bite Mark evidence, even as bite mark evidence goes, it just doesn’t even pass the presumptive possibility test, it seems like…

0:31:30.6 Chris Fabricant: Yeah, so what happened with Eddie Lee Howard’s case was that this woman this elderly woman named Georgia Kemp would have been murdered and been possibly raped in her house, and then the perpetrator apparently attempted to burn down the house to hide his or her tracks, and the phone was cut… There were no fingerprints, there was no evidence of any kind to speak of, there were no eye witnesses, there were no motives, there was nothing missing from the house, it was just this terrible crime, that happened and so they took Ms. Kemp’s body away from the scene. Dr. Steven Hayne, autopsied that first, he documents the entire body, takes photographs of the front, the back, and also does a pencil diagram of every injury that he observes, so there’s nothing that’s indicated to be a bite mark, there’s nothing that looks like a bite mark, there’s no suggesting little bite mark, nothing. It’s She’s been stabbed twice, that’s the manner of death, there are details about it, then the autopsy goes forward.

0:32:34.4 Chris Fabricant: All of her internal organs are removed, including her brain, there is… The remains are not put back together, they’re not embalmed, they are simply put in a box and buried in the ground, and that was the end of it, but what happens is they don’t have any suspects, they don’t have any evidence, and so they just do a dragnet, familiar story particularly in the deep south of picking up black men with criminal records and Eddie lived in the neighborhood and Eddie Lee Howard fit that bill, and they decided he was good for it they had almost no evidence…

0:33:07.5 Chris Fabricant: You know what I mean? When I say almost there was this vaguely incriminating statement, but they were also statements saying that it was six people had done this and that they should continue this investigation it was clear they had no information about it. And so what they decided in that moment, two things at the same time, which should tell you all you need to know about the case is that they decided to take Eddie Lee Howard to the dentist to get a mold of his teeth taken… And They decided that they were going to disinter Georgia Kemp’s remains and look for a bite mark because Steven Hayne decided that there was some indication that there may have been a pattern of injury that he never noticed, they never documented whatever. So they decided to call the deadly Dr. West the notorious Dr. West, who has this UV light technique and is what he calls the West phenomenon.

0:33:54.7 Trevor Burrus: Yeah He’s like a rain man for finding bite marks…

0:33:56.9 Chris Fabricant: Right.

0:33:57.8 Trevor Burrus: No one else seemed to be able to do it before.

0:34:00.3 Chris Fabricant: Right, and this is a… West is the purest manifestation of this junk, but these bite mark cases appear where the dentists are like cancer clusters they’re just like, Oh, suddenly we’re having a bunch of bite marks in Virginia, Oh, well, there’s a new forensics dentist there that’s identifying them. And so what they did is West gets his equipment, allegedly the body is disinterred and brought to the Pearl, Mississippi into the morgue there where they did all of their dark arts. And Hayne disappears from the record, Michael West comes in, he decides that after five hours of examining these remains, and I say allegedly because there are no pictures, no documentation of any of this alleged examination at all, he claims that he found a bite mark on the victim’s breast. May I remind you that the rib cage should have been entirely removed, all the organs underneath that breast and on the neck, and the neck had been dissected at autopsy and went on R and so that was the evidence that put Eddie Lee Howard on death row. That was all of the evidence that they had that put him on death row, and so we’re heading towards this evidentiary hearing and it’s decided that I’m gonna do the deposition and I’m gonna cross-​examine Michael West and…

0:35:21.6 Chris Fabricant: Tucker actually came with me to this. He had had previous experience with him, but I was gonna do the questioning and I was terrified, I was really terrified because this guy had, I knew that he was capable of saying anything, I had read tens of thousands, it felt like pages of transcripts of his and what was… And he’s not stupid either. He’s quick and he knows what he’s talking about, he’s just willing to… He’s a nihilist and willing to say whatever, and we’re talking about a death penalty case, and so the experience that I had, which I write about, and which was in the Washington Post at one point, in the transcript you apparently read, it was the singular experience of my legal career really, in many ways, is that it was such a surreal experience, that’s an overused word, but that’s the right word for here, and I had never been called an ass wipe under oath… Mr. Ass wipe. And then he had the court reporter was putting in almost like stage directions, she was so offended by him, like noting that he had belched at one point it was just… And I had to treat it like a regular case initially, so we were gonna lay initial…

0:36:35.3 Chris Fabricant: And I tried to lay out the strategy that I was trying to deploy when I went into this for the readers, so they have an understanding of what lawyers are trying to accomplish in something like this, so I was trying to initially… So I didn’t have to confront him with fraud, to just talk about bite mark evidence being junk science that, Hey, we all used to believe this now we don’t… You’ve had your own wrongful convictions. You know what I mean? Like let’s just call this junk science, let’s get Eddie Lee Howard off death row and call it a day. We don’t have to get into your incredible record, but he wouldn’t confirm what he had said before, so we had to go down this path with him, and now we’re just getting into the dark underbelly of that lifetime of work that he’s applied in primarily in Mississippi. And elsewhere in the south west, and when I finally get down to accusing him of fraud to the brass tacks, where we had this insane deposition he’s like… I’m not the one named Fabricant, you are. I was just Like… Where does he come up with that.

0:37:40.0 Trevor Burrus: Right, it’s like I’ve been teased about that as a last name before, but it was a… That really felt like the only prep that he had done and said he was gonna get that zinger in, and he was very pleased with himself after that, and then… But it was… The whole time in my mind, I was like, this is a death penalty case, we’re not arguing over a slip and fall and that…

0:38:01.7 Trevor Burrus: When he called you a sociopath, which is interesting, because I’m pretty sure Tucker told me that… I asked him, I was like, Well, what do you think is… This guy’s issue, I think he said that he might be a sociopath or something, I don’t wanna put words into Tucker’s mouth, but the actual… And this is also like the question of how the motivations here are they earnest. Maybe Michael West is different and he is a character and worse seemingly, but for these forensic odontologists, they really do believe it that they’re performing a public… For the most part, I don’t know about Michael West but. You have to tell yourself a story that you didn’t convict a… Wrongfully convicted person, I think to maintain your sense of sanity if you aren’t a sociopath, but it’s interesting, he’s calling you a sociopath, we’re trying to revisit a conviction based on this insane way of finding a bite mark, but I mean, there’s more earnestness going on here in general, I think in the professions… Correct.

0:39:02.9 Chris Fabricant: Yeah. With notable exceptions, Michael West being one of them is the, is that I think that most forensic experts believe their own testimony and believe in what their mentors taught them and believe that I have an agenda that somehow is contrary to real science or… I’m just trying to be subversive and just to be clear, there is no organization in the criminal legal system that relies on valid and reliable science more than the Innocence Project, it’s the basis of everything that we do, and I don’t advance any arguments that are contrary to the science, because I’m not a public defender anymore, I don’t take every client that comes in the front door, we have a goal, and that’s to bring scientific integrity to the criminal legal system, that’s the goal, so I’m not advancing junk science arguments. So the practitioners are civic-​minded primarily, and are not trying to frame innocent people for crimes they didn’t commit, and it’s very, very hard to really get your mind around this notion of that thick textbooks, and years and years of acceptance in criminal courts, and years and years of lectures and so-​called peer review publications that are published in the Journal of Forensic Sciences that, all that is wrong.

0:40:21.3 Chris Fabricant: It is that just because you’ve stacked up enough papers and it’s been around long enough that somehow that’s going to translate to scientific validity, and as my father always likes to say is that nobody wants to live an ignoble life, and then I remember somebody talking to him about that that the emphasis is probably on the wrong word is, so nobody wants to… Live an ignoble life… And it’s kind of what you’re talking about, is that people tell themselves a story or they’re told that story and they adopt that and given the stakes that we’ve talked about, very, very hard to back up. Backtrack from all of that, and that’s why I have such great respect for forensic experts that have accepted the data, that have taken a hard look in the mirror and taken a hard look at our clients cases and renounced the field and have been willing to come into court and speak truth and say that I used to believe this, I was wrong.

0:41:24.3 Chris Fabricant: Here’s what the data say, is that we have to have at the very least a new trial because these are really, really tough convictions, convictions like that I’ve written about, particularly Steven Chaney’s and Eddie Lee Howard’s, is that We don’t have DNA evidence, we don’t have this truth serum and we have to be willing to go back and correct the record, and we have to be willing to offer and Grant new trials, so we can have a trial that’s not tainted by subjective speculation, masquerading as scientific evidence. That’s never a fair trial and no conviction resting on junk, science is reliable. Every conviction is inherently unreliable.

0:42:00.5 Trevor Burrus: Why is there such resistance that you encounter from prosecutors although There are some good ones in your book, but Mark Godsey, who was on the show a few months ago for his book, blind injustice, talks a lot about the prosecutor mentality and also by judges too, because they don’t seem to… There’s a really big faith in this sort of amazingness of the American criminal justice system that is a little bit shocking for anyone who’s ever been in one of these court rooms like a county courtroom in Mississippi, that the Justice had been done, but other than that, why is there such resistance on so many people to try and figure out who is wrongfully convicted.

0:42:40.3 Chris Fabricant: You know, the status quo is very, very difficult to disrupt, and what you have in a typical case is that judges prosecutors, few people are in… Stakeholders within the legal system are thinking systemically, they’re thinking about the individual case in front of them. And we were talking a little bit earlier about how any criminal defendant has two strikes against them the minute they walk into court, and to be clear, is that most people that are indicted for crimes and go to trial are guilty, at least guilty of some of the factual allegations, often they’re overcharged that have been leveled against them, imagine that we lived in a society where that wasn’t the case, right? So which.

0:43:25.1 Trevor Burrus: Also, many murders are kind of easy to solve because it’s like, find the ex-​boyfriend or they’re rarely anonymous except if connected with a drug war, but yeah, you go find the ex-​boyfriend and there you go.

0:43:36.6 Chris Fabricant: Right, and that… Because those narratives are so common is why a lot of ex-​boyfriends are wrongly convicted ’cause people… That’s the right guy. And that’s why we have to be so careful about the type of evidence that we use against the boyfriend because… Yeah, often that’s the case. But sometimes it’s not. Right, and so what you have in individual criminal cases like the original bite mark case, is that what you have is a defendant that is viewed by the court and the prosecutor as guilty, and the judge is very, very reluctant to take a tool away from the prosecutor that will be useful in convicting a guilty defendant, and they aren’t relying on scientific literature when they’re making these decisions, what they’re relying on is case law, and case law doesn’t change. Not really, unless you’re in the Supreme Court where stare decisis doesn’t matter anymore, but that you have this settled law and you can never have settled science, that’s the antithesis of Science, and so you have this inherent tension and the use of scientific evidence in criminal trials and what it leads to is that once you get a particular technique in the court and the courts aren’t going to be relying on anything other than precedent, then you have an infatuation with junk science, it becomes almost impossible to take out.

0:44:55.3 Chris Fabricant: And you look at the case of Charles McGrory in Alabama. He was a client of mine and the Southern Center for Human Rights, my colleague, Mark Loudon-​Brown and I are working on this case, and he is in my view, and I think any if there… Look at the facts of that case, is that he’s innocent and Entirely convicted on bite mark evidence, and we lost the evidentiary hearing after he was offered a plea to go home that day after 37 years in prison, and The bite mark evidence had been recanted, and what the judge said in that case was going back all the way to the reasoning of Walter Marx’s case that we talked about at the beginning was that the recantation essentially didn’t matter because jurors could see with their own eyes, you know whether or not this is a match So Charles McGrory is still in prison in Alabama, serving a life sentence for a crime he didn’t commit.

0:45:49.8 Trevor Burrus: You do a good job of connecting in the book, the mass incarceration problem that this country suffers through, which of course has many, many components to it, but this is an interesting aspect of it, of course, the race aspect to it can’t be ignored in terms of what color these people quite often are, and what part of the country they are often being persecuted in, but it is one of the bigger rot of the criminal justice system, and for listeners who listen to old episodes.

0:46:20.0 Trevor Burrus: Too, or episodes with my colleague, Clark Neily. The rot is profoundly huge, and this is just one example of a thing that we thought worked and really doesn’t work, but how does it all connect to just the general issues of mass incarceration?

0:46:34.6 Chris Fabricant: Yeah, and thank you for bringing that up, Trevor. Because I don’t think anybody that has studied the criminal legal system and has an understanding of it would point to wrongful convictions or junk science as the primary problem, what we have is structural racism and mass incarceration, that is… What is going on, and that’s why our criminal legal system exists is to for social control, black and brown people primarily, and certainly all poor people, and so what we have with junk science is a symptom of the larger disease, and it’s one of the tools that is useful in maintaining the status quo. And that’s true, and we talk about some of the more volume stuff that we’ve talked about with the drug war as it relates to… And some of the presumptive drug tests and all the rest, so you can see how important it is in propping up the status quo, and then some of the worst forms of junk science that I encounter in my working life is in death cases, paradoxically. Before, I was only working in New York, and we don’t have the death penalty here, and I would have assumed the opposite that we would be particularly careful with the evidence that we’re using in capital prosecutions, but it’s exactly the opposite.

0:48:02.6 Chris Fabricant: The worst stuff that I’ve seen, and I have a couple of theories as to why that is, and one of them is that and this kind of underlies so much of our culture and certainly the criminal legal system, is our desire to punish… And we see this in… We see it in wrongful conviction cases too, is because so many of our cases involve vulnerable victims, high profile cases, vulnerable victims… So like an elderly a white woman and Eddie Lee Howard it’s a black man, that’s accused of violating a white woman, which is a Trope that’s wrongfully convicted and killed black men for 400 years in this country, so it’s one of the tools that facilitates that same old trope, and it’s getting at the root of it and disrupting the status quo would be us to take a real hard look at the quality of evidence that we’re using to prosecute and incarcerate poor people primarily in this country.

0:48:57.7 Chris Fabricant: This is why I make this point in the book about poor people science, is that when I was kind of Unraveling what happened for… And how is it that the criminal justice system ended up with all of the speculative techniques being used the way that they are, and why aren’t we really getting the same kind of problem in civil litigation? And so the term Junk Science itself was popularized in a book in the ’90s by a guy named Peter Huber, who was a fellow at the Manhattan Institute, and what was happening in the ’90s is that the last two decades, corporations have been getting the pant suit off of them, and a lot of junk science being used in product liability cases and mass tort litigation and toxic tort litigation, and corporations were getting tired of it, so they had advocates like Peter Huber were starting to use the term Junk Science.

0:49:57.0 Chris Fabricant: And that was being used in criminal courts, and they teed up the case of Daubert versus Merrell Pharmaceuticals in the United States Supreme Court. And just as an aside, I know people who know the Dauberts, and that’s apparently how they pronounce their name, it looks like it should be Daubert so that’s the high court, and what they asked that court to do was that we can’t defer to the so-​called relevant scientific community anymore that hasn’t worked, we’re getting all this junk science in our cases, and in Peter Huber’s book Aeolus revenge was cited in many briefs that were winding that case up to the court, and so they won, they flipped this evidentiary standard back to the judges and saying, You… Judges are now going to have to eat your broccoli, and that you’re going to have to apply basic scientific principles to your consideration as to whether or not you’re going to admit this evidence.

0:50:50.5 Chris Fabricant: And a study that was done about 10 years after this decision came out, demonstrated that my boss Peter Neufeld co-​founder of the Innocence project did it, and what it showed was that on the civil side, the decision worked, they were starting to exclude junk science in ways that they had never done before, and that you’re getting more scientific integrity in solo cases, and to be clear, some of those cases were righteous litigation, I’m not saying it was all junk science, I’m glad Ford Pinto’s not with us anymore.

0:51:18.2 Chris Fabricant: But we go forward. Then you look at the criminal side. Nothing had changed. Zero. And that prosecutors were successful in getting everything that they proffered, and that defense attorneys were almost never… Not Almost never successful. Literally never. And fast forward to 2018, I did a study with Professor Brandon Garrett Duke Law School. A follow-​up study showed that nothing had changed despite the fact that we know today that nearly half of all DNA exonerations, those cases, the misapplication of Forensic Sciences was a contributing factor, nearly half and still none of this has changed, so we get poor people science because we don’t care about the science that we use to incarcerate and kill poor people in this country.

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0:52:13.2 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about Libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.