Mimesis Law
25 June 2019

Broward County Crime Lab Replaces The Bad With The Secret

October 28, 2016 (Fault Lines) – DNA is the gold standard for evidence in a criminal case. When a prosecutor puts up DNA evidence, 12 people trained in the law by the TV show CSI jurors are putting somebody in the proverbial dirt. Find DNA evidence of your innocence? Watch prosecutors fight like the Russians are in the next county to make sure you don’t get to see it. It has become infallible evidence of what happened, where it happened, and who was there.

*WARNING! SPOILERS AHEAD!*

Of course, none of that is really true. DNA was young and we believed in it with all of our little hearts. But like Santa Claus and the Easter Bunny, it fell victim to time. As you grew up, you realized it was actually your parents that put the toy of your dreams under the tree and those delicious Cadbury eggs in your Easter basket. Sorry.

DNA met the same fate. It turns out it is like all other evidence in a criminal case. Handled by human, presented by humans, and, of course, screwed up by humans. Until death robots start prosecuting crimes, the system will be as imperfect as we humans are. Sorry again.

Broward County, Florida, is a great example of how the gold standard is really nothing more than tin foil.

Tiffany Roy was a former forensics analyst in Massachusetts. One too many snowpocolypses sent her south to sunny Florida, where she opened her own expert shop in Boynton Beach. In 2014, she was hired to review DNA evidence on a knife handle. The evidence was initially reviewed by the Broward County Sheriff’s Office Crime Lab in Fort Lauderdale, Florida.

Roy found the DNA evidence was actually inconclusive when reviewed with real scientific standards, as opposed to “the prosecution said he did it and we got DNA so let’s lock this son of a bitch up with some science stuff” standard employed by Broward County.

Roy complained to the American Society of Crime Lab Directors. Her complaint, relayed in language most of us cannot understand, was actually pretty simple. In regular-people terms, she noticed the DNA sample was not complete enough to reach any conclusion. And, to no one in the criminal defense field’s surprise, Broward County was comparing samples and making conclusions not supported by actual science. In other words, making shit up.

Here is a pretty good description of what was happening.

“DNA is like a genetic description… like hair color, eye color, weight, birth mark, or a tattoo,” [Roy] explains. “You can get a lot of mixable profile data, sort of like saying a perpetrator is a six-foot-tall black male in his twenties.” In her complaint, she accused BSO of using that generic description to charge specific people with crimes. “Broward is taking the ‘six-foot-tall black male’ information and making it seem like it’s got more importance than it really does,” she said.

As the Broward County crime lab fights to keep its accreditation, it looks like thousands of cases have been affected. Which means thousands of cases may be reopened.

Not all cases that involve DNA evidence are included — just those based on complex samples, where the DNA came from multiple individuals. Generally, this is an issue when the DNA is found on something that’s been touched or worn.

In other words, cases where a person was pinned to a crime based on a complex DNA sample that was misread and exaggerated by the prosecution’s analyst. Kind of important to get that right.

The good thing about all of this is that surely the Broward County lab has learned its lesson and corrected the problem. More careful analysis, better science, more cautious testimony, right?

Of course not.

There is a really good way to stop these silly defense lawyers and their experts from catching mistakes. Don’t let them know what is going on. Complex DNA samples can be analyzed using a new type of software called STRmix, specially designed to convict people analyze these complex samples.

If it’s new, it’s good. Except for one little problem. In a move that would make Kafka proud, the technology is secret. Of course.

But as Buzzfeed News reported earlier this year, the main problem with STRmix and other DNA-matching software programs is that hardly anyone knows how they work. That’s by design: The companies claim their methods are trade secrets and have been fighting to keep source codes under wraps. As a result, defense attorneys aren’t able to have experts independently verify the results.

Well. Isn’t that convenient. The lab gets busted making mistakes analyzing DNA. A normal person might think the solution to that problem is to fix the mistake. Not Broward County. They took a different route. Instead of fixing the mistake, they fixed the scrutiny. Just replace the current system with one where the mistakes can’t be found.

Two courts have considered it. One said, “hell yeah you can use this secret technology to put some poor guy away for a quarter-century.” A more cautious New York Court said, “umm, no, this is America, we don’t convict people with secret computer programs.”*

Trade secrets serve an important role in American business. If everybody knew how to make Coca-Cola, we could all make our own homemade delicious sodas. Not fair for the Atlanta geniuses who provide the finest cola in the land.

On the other hand, trade secrets have no place in the criminal justice system. This is not commerce. This is serious business. DNA puts people in jail for staggering amounts of time. Or non-staggering. Whatever. Jail sucks. No one should be there based on secret computer technology that the defense cannot examine.

Even the hardest of hearts has to be concerned with the idea of an innocent man in jail for a crime he did not commit. The defense’s ability to actually defend is a critical part of making sure that doesn’t happen.

Broward County exhibits a troubling trend in criminal justice. There is an absolute failure to admit a mistake and make a real step towards fixing it. If DNA evidence doesn’t convict somebody, so be it. The system is not set up to convict people. It’s set up to seek some semblance of the truth. Hiding the ball is not the solution to using the wrong ball.

* These are not actual quotes from the rulings, but summaries.

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