Tag Archives: Evidence

Defendant Tries to Exclude Expert Who Used Electric Knife to Carve Up Human Cadaver

The legal defense team of a woman accused of murder is attempting to exclude a forensic anthropologist from testifying, stating that prosecutors did not disclose an expert report which examined whether or not a human body could be dismembered by an electric carving knife.

The Crime

Kimberly Kessler is accused of the May 2018 murder of her former coworker, Joleen Cummings. Forty-three-year-old Cummings, a Yulee, Florida hairstylist and mother of three, was initially reported missing by her mother after no contact or response from her daughter for over 48 hours. Since that time, various agencies including the Nassau County Sheriff’s Office and the FBI have been conducting an ongoing search for her body.

Nausea County Walmart surveillance footage has shown Kessler purchasing an electric carving knife, along with black trash bags and ammonia, around the time of Cumming’s disappearance. At the time of her arrest, Kessler was found with a variety of scratches on both her face and hands. Cummings, last seen on May 12, 2018, is presumed to be dead, although her body has still not been found. Kessler has pleaded not guilty to first-degree murder with a trial date scheduled for December 6, 2021.

Pre-Trial Proceedings

During the recent pre-trial hearing, Kessler became agitated and was quickly removed from the courtroom after a verbal outburst. She has demonstrated a pattern of verbal outbursts and subsequent removals from the courtroom. Kessler’s mental competence has been an ongoing question and concern during the case. Kessler reportedly does not communicate or work with her public defenders.

Kessler’s defense attorneys want the expert testimony in question, which was submitted by forensics anthropologist and Florida Gulf Coast University professor Dr. Heather Walsh-Haney, to be excluded. Kessler’s defense attorneys say that the prosecution failed to appropriately disclose the testimony.

According to the defense motion, prosecutors hired the expert witness to explore the hypothesis that a “Black + Decker 9-inch electric carving knife would not cut through human bone at the neck and extremities due to the weakness of the knife motor and the fragility of the blade.” Walsh-Haney “perform[ed] an experiment on a human cadaver,” and created a report, “Postmortem Dismemberment Experiment Using a Human Cadaver.” The video-recorded experiment confirmed that the electric knife could dismember a corpse.

Walsh-Haney completed the report in May 2019. However, the state did not disclose Haney as a witness or provide a copy of the report until recently. The defense team motion states that this was “less than 5 weeks before this case is set to begin a jury trial” and that this left the defense lawyers without appropriate time to “properly review and challenge” the expert report nor to employ “an expert of its own to review her methodology and conclusions.” The defense’s motion requests that the court punish the State Attorney’s Office for these failures and argues that Walsh-Haney’s expert testimony should be disallowed.

Kessler’s case is before Judge James H. Daniel in Nassau County Circuit Court in Florida.

Investigation Highlights the Need for Independent Forensic Experts

Most state and local crime lab employees are honest and hard-working, but as federal appellate Judge Alex Kozinski recently noted, some see their job as helping prosecutors obtain convictions, not as finding the truth based on an objective analysis of evidence. Whether from laziness, poor training, misguided loyalty, or pressure applied by law enforcement agencies, government crime lab employees too often produce inaccurate results, and sometimes falsify evidence.

A new investigation suggests that prosecutors have been slow to correct those problems. Until crime labs are able to assure that forensic test results used as criminal evidence are accurate, it will continue to be vital for criminal defense attorneys to retain their own forensic experts to review crime lab results.

Problematic Crime Lab Results

Last year, the Washington Post reported that “nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” The examiners overstated forensic matches of hair comparisons “in ways that favored prosecutors.”

Perhaps the FBI lab employees relied on flawed science, although they should have known that they were basing their conclusions on “incomplete or misleading statistics.” According to the Post, the experts testified as they did because they were trained to give testimony that favored prosecutors.

An article in The Atlantic (“CSI Is a Lie”) reports that many state and local crime lab employees have testified about incorrect or unreliable lab results, usually because of poor training or sloppy work. Cited examples include:

In St. Paul, “faulty techniques and ignorance of basic scientific procedures” contributed to “major errors.”
In Colorado, inadequate training contributed to errors in the measurement of alcohol in blood samples.
An audit in Detroit “uncovered serious errors in numerous cases” due to “sloppy work” that “probably resulted in wrongful convictions.” The police crime lab was shut down as a result of the audit.
Three trace-evidence technicians in Philadelphia, charged with examining evidence for traces of blood and semen, flunked their accreditation exams after working for a year, casting doubt on the accuracy of their test results.

Last year, crime lab technicians were found to be tampering with evidence in Oregon and Delaware. A complete list of reported crime lab scandals establishes that the problem has a nationwide scope.

Deliberately False Crime Lab Results

Even more serious are the cases in which crime lab analysts were pressured to lie or to withhold test results that did not support the prosecution’s theory of guilt. The Houston Crime Lab stands as the most notorious example of crime lab analysts who deliberately slanted or fabricated testimony to favor the prosecution. That scandal spurred reform, although the reform efforts did not prevent a toxicologist who testifies for the prosecution in Houston DWI trials from giving false testimony about her credentials.

A more recent example comes from North Carolina, where an independent investigation determined that North Carolina’s State Bureau of Investigation “withheld exculpatory evidence or distorted evidence in more than 230 cases over a 16-year period.”

Three of those cases resulted in executions. There was widespread lying , corruption, and pressure from prosecutors and other law enforcement officials on crime lab analysts to produce results that would help secure convictions. And the pressure worked.

The state’s training manual made clear that the job of North Carolina’s forensic experts was to help secure convictions, not to present objective evidence so that a jury could find the truth.

Prosecutors Resist Remedies

Perhaps the most shocking example of dishonesty occurred in Massachusetts, where drug lab analyst Annie Dookhan made it her mission to get drug users “off the streets.” The easiest way to accomplish that mission was to falsify “tens of thousands of reports, often marking results as ‘positive’ without testing a substance.” Dookhan served a short prison sentence for committing perjury, but tens of thousands of defendants who were convicted and sentenced on the basis of falsified lab test results have never received a remedy.

The ACLU and other organizations have asked the court system to vacate 24,000 Massachusetts convictions that were tainted by Dookhan’s fraudulent reports. Prosecutors, however, have resisted that request, arguing that each defendant should file his or her own motion to challenge the conviction, a process that would take years while overwhelming the state’s public defender system.

An investigation by ProPublico found that prosecutors initially denied that they had any obligation to inform potentially innocent defendants that fraudulent evidence may have contributed to their convictions. After resisting that obligation for four years, prosecutors finally mailed a notice that failed to identify the sender and lacked essential information. Thousands of those notices were returned as undeliverable.

ProPublica notes that the reluctance of prosecutors to disturb convictions based on tainted evidence is not limited to Massachusetts. For example, many convictions have been based on unreliable field tests for drugs that are never confirmed by crime lab testing, but prosecutors in Las Vegas and Houston have been slow to track down individuals who were wrongly convicted.

It is understandable that prosecutors want convictions of guilty defendants to stand, but those convictions should not be based on unreliable or fraudulent forensic evidence. As Matthew Segal, the legal director of the ACLU of Massachusetts, said: “If you think that the person is guilty, then your obligation is to go out and get a clean conviction, not to protect the dirty conviction, the tainted conviction.”

Solving the Problem

When crime labs are dedicated to serving the police, and particularly when they are part of a police agency, experts are more likely to see themselves as advocates for the police rather than advocates for the truth. That problem prompted the National Academy of Sciences to recommend making the government’s forensic experts administratively or financially independent of law enforcement agencies.

Until that happens, the important role played by private forensic experts in a criminal case cannot be overstated. Defense attorneys can no longer assume that a report prepared by a crime lab analyst is accurate or unassailable. Retaining a private expert to conduct an independent analysis of forensic evidence is often a critical means of fulfilling a defense attorney’s duty to provide effective representation to the accused.

Expert Scientific Report Issues Scathing Review of Common Forensic Techniques

Recently, the President’s Council of Advisors on Science and Technology (PCAST) released an expert witness report which sharply criticized a number of widely accepted forensic methods used in criminal trials. As expert witnesses become ubiquitously integrated into the American criminal justice culture, many forensic science techniques have become commonplace in trials, and the PCAST report represents an effort to trim so-called junk science from the courtroom.

Increased Scrutiny Raises Questions about Forensic Science Techniques

After experiencing a heyday of expansion in the 1990s, expert forensic science testimony used during criminal trials has seen a rise in scrutiny from the scientific community from the early-2000s through the present. Commonly used forensic analysis procedures such as bite-mark analysis, footwear examination, and microscopic hair comparisons have been widely criticized by scientific experts, and even widely accepted techniques such as DNA analysis and latent fingerprint identification have undergone rigorous scientific study in order to determine when and how such procedures are effective and valid. Among the number of studies conducted which analyze the validity of forensic evidence, a handful stand out:

In 2002, the FBI found that 11{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of its microscopic hair comparisons incorrectly matched hair samples, and in 2015 a report by the FBI and the Innocence Project found that hair matching analysis was incorrect a staggering 90{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time;
In 2004, a report commissioned by the FBI found that there was insufficient research and data to match bullets based on lead composition;
In 2005, a review of latent fingerprint testing used in the investigation of an alleged terrorist in Spain found that police bias allowed for the fingerprint evidence to be misinterpreted, and several studies throughout the mid to late 2000s have identified causes of error in fingerprinting which have refined the process;
Several studies since 2009 have found bite mark evidence to be unreliable in identifying defendants; and
Multiple studies and reports by the FBI and the National Institute of Justice have found that DNA testing has invalidated jail sentences for several defendants who were convicted on the strength of faulty bite mark, hair comparison, shoe tread comparison, and other common forensic methods.

Since the turn of the century, a cottage industry has arisen for scientists and legal organizations dedicated to re-evaluating convictions based on shaky forensic expert witness testimony, leading to several hundred exonerations across the United States. With widely accepted forensic methods facing questions from the scientific community, President Obama commissioned PCAST in 2015 to write a report which critically examined the state of forensic methods used in criminal trials.

PCAST Report Sharply Criticizes Common Forensic Methods

Last week’s PCAST report , which was written by high profile scientists who conducted thorough reviews of forensic techniques and methodology, issued a critical review of several types of evidence which have become common in criminal trials. Building on prior work and conducting further empirical research, the PCAST report critically examined 7 forensic methods: single source DNA testing, complex multi-source DNA testing, latent fingerprinting, bite mark, firearm analysis (which connects a bullet to a gun based on unique features of the weapon), footwear analysis, and hair matching analysis.

The report found that single source DNA testing is a highly valid forensic method and both multi-source DNA and latent fingerprint analysis have made strides in refining the process and there are reliable experts available to testify to each method in criminal trials. The scientific experts who generated the PCAST report concluded that bite mark identification, firearm analysis, footwear tread identification, and hair matching analysis are currently unreliable given the lack of empirical research supporting each field. The PCAST suggested opportunities for improvement, particularly in firearm analysis, but suggested that each of these forensic techniques must undergo more rigorous testing before being universally relied on in criminal trials.

Implications of the PCAST Forensic Expert Report

Since 1993’s Daubert v Merrell Dow decision, judges throughout the American legal system have been tasked with rigorous evaluation of expert witness testimony and are only allowed to admit experts who provide reliable testimony that is the product of sound theory and scientific methodology. Judges can consider many factors, but in reality asking the judiciary to critically evaluate scientific work imposes a duty beyond a judge’s qualifications. As a result, forensic methods based on junk science can gain widespread popularity if a collection of scientists convince a judge that the theory and methodology are sound enough to pass legal muster.

The PCAST report, which is written with an eye towards the legal standard for admitting forensic expert witness evidence, provides judges with the tools necessary to more closely evaluate many widely used forensic techniques. While the future use of these common forensic techniques in courtrooms is unlikely to change overnight, the long term effect of the PCAST work will likely see a decrease in reliance on unreliable forensic expert testimony. Regardless of its immediate effect, the PCAST report represents a change in how the scientific and legal community will interact in criminal investigation and prosecution as more rigorous scientific analysis influences when and how expert witnesses can testify.

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