Opinion: No one should be in prison based on debunked science

The following editorial by Joshua Tepfer was published by the Chicago Sun-Times on October 14, 2015.

In 2009, the National Academy of Sciences questioned the reliability of many “scientific” tests routinely used in criminal investigations and prosecutions. In its 300-page report, the academy said many of the tests, such as hair microscopy or bite mark analysis, had not “been exposed to stringent scientific scrutiny” and that “faulty forensic science” has “contributed to the wrongful conviction of innocent persons.”

Illinois needs to re-examine all cases in which possibly innocent individuals remain incarcerated on the basis of debunked science.

The academy’s report, which followed four years of study by a blue-ribbon committee, spurred some jurisdictions and law enforcement agencies elsewhere across the country into action.

The U.S. Justice Department and Federal Bureau of Investigation, for example, have admitted that examiners gave flawed testimony regarding hair comparison analysis in almost all trials over a two-decade period before 2000, and a review of thousands of long-ago closed criminal trials was launched.In some cases, the review has led to exonerations, such as that of Santae Tribble, from DNA testing of the hairs previously “matched” to the convicted defendant. Evidentiary hearings are starting to be held in other cases, including for George Perrot in Massachusetts, where the hairs or DNA testing are not available. In some instances, as in the Charlotte, N.C., case of Timothy Scott Bridges, prosecutors are foregoing evidentiary hearings altogether and agreeing to new trials where the flawed hair testimony was introduced.

Here in Illinois, however, very little has happened. At least publicly, there has been no widespread examination, audit, or response to the federal government’s groundbreaking report that exposed systemic flaws in the “science” used in our courtrooms.

There is, however, absolutely no question that faulty science has been used in Illinois cases. Take, for example, Bennie Starks, who was wrongfully convicted in Lake County on the basis of bite mark testimony that a federal judge recently called nothing more than “‘experts’ peddling junk science to credulous judges and jurors.” And individual Illinois State Police forensic analysts have, in the past, been criticized for providing misleading testimony that has led to wrongful convictions. Indeed, the National Registry of Exonerations identifies 30 Illinois cases where “false or misleading forensic evidence” contributed to the wrongful conviction.

Instead of dealing with these problems on a case-by-case basis, criminal justice leaders in Illinois need to put a system in place that will allow a wholesale re-examination of cases where individuals remain incarcerated on the basis of debunked science. One option is to establish a commission, similar to what Texas has done, that investigates individual complaints, issues reports, and makes legislative recommendations. Illinois has established these types of commissions in response to other criminal justice errors or scandals, including  the Torture Inquiry and Relief Commission, which was tasked with examining the claims of systemic physical abuse and torture by Chicago police. A similar model might be effective in investigating past forensic errors.

Illinois has on its books a dormant commission — the Illinois Laboratory Advisory Committee —  that could be used to address this very problem. The commission has not met in over six years, but it could be revived.

This is a problem in the criminal justice system that was identified many years ago yet never addressed. Those of us working in the Illinois criminal justice system need to come together to begin to address it.

Joshua Tepfer is an attorney with the Exoneration Project and a Lecturer-in-Law at the University of Chicago Law School.