Arson Myths, Goudge Inquiry, Brandon Mayfield

Goudge

We need to rely on opinions of forensic pathologists looking into the deaths of children

The human consequences of flawed science are far reaching

E.g. Williams Mullins Johnson – 12 years in prison – Dr. Charles Smith – “child raped then strangled”

Dr. Charles Smith

No formal training or certification in forensic pathology; no training in injury identification or appropriate role of pathologist in criminal system

Ruled forensic pathology in Ontario for more than decade

External review by actual experts – showed 20/45 cases significant disagreement with his findings/evidence and in 12 of those 20, there were convictions.

Forensic Pathology

Is an evolving science in which controversies exist, and where finding and observations often require interpretation

New science changes old opinions; what opinions are allowed?; at least expressions of confidence change

Goudge on Smith

An expert must realize his own limitations, stay within them, and not exaggerate them to the Court

He never attended the scene of the crimeHe accepted histories of people without

questionHe did not consider alternative

explanations or modifying his opinion with new information

He relied on the non-scientific over the scientific

A pathologist does “not have a side”He skewed police investigationsA pathologist’s opinion should be balanced,

reasonable, understandable and substantiated by the pathological evidence.

His information was anecdotal; his opinions well beyond their expertise; he speculated

Opinions offered such as “if I were a betting man I would say the injury was non-accidental”

He frustrated the oversight over him by others

Considered leading pediatric forensic pathologist by 1994

Never asked for advice or assistance or peer review

He approached “child abuse” cases with a “think dirty approach”

Best Practices

Think truth, evidence based approachAvoid confirmation biasPeer reviewLevel of confidence in opinion must be

properly expressedAlternative explanations need to be

exploredOpinion should disclose if this is an area of

controversy in the literature

To what extent is opinion based on non-pathological information?

Arson Opinion Evidence: Justice Denied?

For generation, arson investigators have used outmoded science to implicate accused

Author: convictions based on scant research and outmoded beliefs

No fire safety science until early 1970’sNow we set fires; measure and record

their results; replicate the fire with new variables

Using science: changing long held beliefs

Arson investigators long believed that the deepest charring meant it was the origin of the fire

It is now believed that the deepest charring is related to the points of greatest ventilation

It used to be that certain burn patterns were thought to be evidence of the use of accelerants – proving arson/murder

Now, we understand that these burn patterns are caused by “flashover”, this occurs as the fire and smoke (the heat) rush upwards, with nowhere else to go, they move back down to the ground and ignite when air rushes into the room, producing distinct patterns

Investigator Latini used to testify that “concrete spalling” was evidence of high heat, and therefore use of accelerant

Latini

Why did he so testify? That was what was taught to him.

He now knows this to be false.It was formerly thought that “crazing” on

windows was the result of an accelerantHe later found it in known natural firesExplanation: actually created by the

fireman’s hose: cool water on hot glass

Latini

Points out that not all of his contemporaries are “science converts” and continue to give this type of evidence

The Studies Continue

Representing the total opposite of what was thought, new studies suggest that presence of accelerant can shield that affected area from charring as it seems to “protect that area of floor”

We live in a petroleum rich environment – making it difficult to determine what chemicals should be present in a home, and which are indicative of an accelerant

Conclusion

Pseudo science still entrenched in fire investigation

Note: Innocence Project does not take on arson trials as they cannot be solved by DNA

Better science = better justice

Fingerprints: Brandon Mayfield; U.S. v. Crisp

Over confidenceKnowledge of the case tainting analysisPressure of high profile caseConfirmatory bias: experts knowing of

what the previous expert found; knowledge of details of the case; knowledge of Muslim religion of suspect

Crisp: USCA (2003)

Majority: admission based on strong historical basis of admission?

Acceptance of subjective assertion of “zero error rate”

There are no studies proving individuality of friction ridges between persons, but none that say otherwise? Significance?

Based on jurisprudence of non challenge and route acceptance?

Crisp: Dissent

Fingerprinting cannot get a pass from the standards of scientific scrutiny simply because of its 100 year tradition

The government offered no evidence of its reliability

It appears there has not been sufficient testing of the underlying assumptions of fingerprint analysis

Crisp: dissent

There is no peer review: there are publications, but none focus on critical analysis of identifications

No known error rate, the studies that are available indicate a 40 – to 50% error rate

There are no universal standards for fingerprint examination

No general acceptance in scientific community

Crisp: dissent

Even DNA has rate of error but fingerprinting does not?

Mnookin et al

The forensic sciences need a research culture.

They need to focus on science, not law.Fundamentals: empirical evidence,

transparency, critical and reflective perspectives on claims of knowledge

Traditional forensic sciences lack the empirical data required for the claims they make (e.g. asserting a zero error rate for fingerprint identification)

It is fundamental that claims of knowledge must be expressly subject to revision as new information comes forward

Research is an ongoing incremental process, it is never complete

Too many forensic scientists and judges are willing to infer reliability from longstanding use

Convictions do not establish the accuracy of the underlying forensic evidence

Longstanding use leads some judges to view the issue of scientific and systemic validation as less important

In casework, the accuracy of groundwork is unknown

All persons are open to suggestion, including experts: confirmatory bias