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An Innocence Project attorney has a new book out that he hopes will bring more awareness to the kind of “junk science” that leads to wrongful convictions.
M. Chris Fabricant, director of Strategic Litigation for the Innocence Project — a nonprofit legal organization devoted to exonerating those wrongly convicted — is the author of “Junk Science and the American Criminal Justice System,” which came out last month.
Fabricant in currently testifying in Georgia on behalf of James Rogers, whom he claims was convicted based upon bite mark evidence, a once-regarded form analysis that has since been largely discredited. Rogers was sentenced to death in 1985 for the rape and murder of his 75-year-old neighbor Grace Perry. Fabricant says that Rogers is one of the many victims of unregulated forensic science which he says plagues America’s courtrooms.
Fabricant previously told Oxygen.com that the Innocence Project specifically searches for cases where a conviction was based on bite mark evidence, because those cases, in particular, are so flimsy.
“Bite mark evidence represents everything that is wrong with forensic science in this country today,” he said in 2018. “It’s grossly unreliable even under ideal circumstances and it has contributed to more wrongful convictions and indictments than any other technique that is still admissible by criminal trials today.”
But bite mark evidence is just the tip of the iceberg, as Fabricant told Oxygen.com this week, following the April release of his book.
Oxygen: Is there any regulation at all for forensic science?
Fabricant: Unlike toothpaste or aspirin or other consumer products that must be demonstrated safe and reliable to the FDA in this country, there is zero regulation in forensic sciences. The only way to avoid a junk science conviction is a judge excluding the evidence, which, as I discuss in the book, virtually never happens. We care more about the reliability of toothpaste in this country than we do about forensic evidence that can be used to put someone to death.
When an expert testifies at a trial, what kind of background check is done on them?
Outside of Texas, which has a licensing program for forensic experts, there are no governmental background checks. Essentially, our system relies on the attorneys to do background checks, typically amounting to a Google search.
What are some of the junk science tactics that the Innocence Project is currently tackling?
We are concerned, of course, about bite mark evidence, hair microscopy, the failure to mitigate bias in subjective forensic techniques (which is virtually all forensics), ShotSpotter technology, the ethical use of surveillance technology generally.
What do you hope people come away with after reading your book?
I hope to create a new genre of narrative nonfiction: untrue crime. I hope to debunk the mythology built up over a generation of popular culture depictions of forensics as infallible, beginning with Quincy and extending through shows like CSI, and Law & Order. And in all those shows the bad guy is always a really bad guy, always obviously guilty, and the "criminal" gets what's coming to him. That's not the reality of the American criminal justice system.
Do you feel like America is too obsessed with “law and order” and puritan-like ideas of good versus evil?
Why isn’t the 2009 National Academy of Sciences report getting any credibility or exposure? (The National Academy of Forensic Science released a report recommending research to establish the efficacy of analysis such as bite mark and hair analysis, as well as shoe print and handwriting comparisons. It also called for the establishment of an independent oversight body to ensure the sound practice of forensic analysis.)
I would not say it's getting no credibility or exposure. The NAS Report is the most significant publication in the history of forensic sciences, and is at issue in virtually every case I litigate. But it is taking a long, long time to influence judicial decision-making, where it matters most. Steven Chaney's case, one of the backbone stories in my book, is the first case in the country to positively cite the NAS Report and that was nearly a decade after publication.
What shocks even you to this day about junk science?
Every single forensic technique I discuss in "Junk Science" remains admissible in all 50 states, even though nearly half of all wrongful convictions are attributable, at least in part, to the use of unreliable forensics.
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