The focus of many defense attorneys and advocacy groups has shifted in recent years from DNA analysis to debunking decades-old investigative tactics, such as bite mark analysis and forced confessions.
BY MEGAN HENNEY
AND CHRISTOPER HUFFAKER
TRIBUNE NEWS SERVICE
WASHINGTON – The rate of criminal exonerations in America is at a record high.
But experts say that, in many instances, these cases are getting harder and harder to litigate because so many of them now stem from cases that lack concrete DNA evidence.
According to the nation’s largest database on wrongful convictions, while DNA evidence accounted for nearly 40 percent of all exonerations a decade ago, much has changed. In 2015, DNA evidence played a role in less than one-fifth of cases where sentences were overturned.
As a result, the focus of many defense attorneys and advocacy groups has shifted in recent years from DNA analysis to debunking decades-old investigative tactics, such as bite mark analysis and forced confessions.
Professor Richard Leo at the University of San Francisco School of Law said this decline in the prevalence of DNA-based exonerations comes as no surprise.
“Now, if there is biological evidence to be tested, it’s used in the pretrial stage,” he said.
‘The second wave’
The focus on overturning old-school forensics is part of what Justin Brooks, director of the California Innocence Project, calls the “second wave” in the fight to overturn wrongful convictions.
“First was the slam-dunk DNA cases; those opened the door to all this other stuff,” Brooks said. “Courts are now open to the conversation and are more willing to grant cases. That just wasn’t true 20 years ago.”
Brooks said that while this massive shift toward non-DNA exonerations has provided his advocacy group and others like it new opportunities to prove clients’ innocence, a lack of “slam-dunk” DNA evidence makes overcoming the burden of proof a very difficult task.
“The biggest challenge is … you can show that the evidence is faulty, but it doesn’t necessarily knock the case out completely,” he said. “We don’t know definitively that the person is innocent.”
Researchers on DNA
Indeed, according to a 2009 report released by the National Academy of Sciences, researchers have found that DNA is the only type of evidence that can consistently and confidently connect specific individuals to crimes or prove innocence.
More generally, they found that laboratory-based methods like DNA and fingerprint analysis are more reliable than on-scene techniques such as fire analysis.
DNA remains the gold standard of forensic techniques. However, here are a just a few of the most flawed tactics and types of evidence that have contributed to the latest spike in exonerations as science has proved these techniques far from reliable.
The evidence: Until about two decades ago, bite mark evidence was regularly used in courtrooms across the country and thought to be near infallible.
The problem: Forensic scientists have since discovered bite marks to be far less reliable in linking specific individuals to crimes.
Brooks said this is because bite marks can be mistaken for other injuries, they deform over time, and their analysis is extremely subjective to the person who examines them. It is still used today, but its reliability is much more disputed.
“There’s a real problem here,” Rowe said. “Someone really needs to direct the research to test it.”
The evidence: Until fairly recently, Brooks said fire investigators based their beliefs on whether or not a fire was started intentionally on intuition and personal experience rather than scientific evidence.
The problem: Often times, these “fire experts,” which Brooks said in many cases were simply glorified firefighters, erroneously believed that signs like the occurrence of multiple points of ignition directly pointed to arson.
“They are probably the most poorly trained of all the people who investigate criminal activity,” said Rowe. “Most of what they do is basically folklore or guesswork, especially point-of-origin investigation.” This means people might have spent decades in prison in cases that involved no crime at all because a natural fire was mistaken for arson.
Richard Meier, director of the National Association of Fire Investigators and a fire investigator in Sarasota, said there were no standards or certifications at all until the 1980s, and even today many fire investigators do not follow those standards.
As an example, he said, “fire patterns” that some believe indicate the use of accelerants often mean nothing at all or might even be evidence against arson.
The evidence: It wasn’t long ago that a confession was considered the absolute gold standard for criminal prosecutions. Few judges or jurors could possibly fathom why a person would confess to a crime he or she didn’t commit.
The problem: A record number of exonerations recorded by the National Registry of exonerations last year resulted from false confessions.
In 2015, 13 out of 22 victims of false convictions in homicide cases were both under 18 and mentally handicapped to some degree. But it was a case that occurred over 40 years ago that set a major precedent for overturning these kinds of convictions.