Mimesis Law
30 April 2017

Daring To Audit a Good Public Servant (Who Happened to Have Sent Innocent Men to Prison)

Oct. 29, 2015 (Mimesis Law) — So what if the same analyst wrongfully sent two innocent men to jail? In Oklahoma, when it comes to their crime lab employees, they really care about fairness.

Attorneys for a wrongly convicted Tulsa man have called for an audit of all cases worked by a crime lab analyst who retired 18 years ago, saying she provided testimony in two cases of men who were convicted and later exonerated.

City officials are balking at the request, citing truthful testimony by the analyst and unfair criticism of science standards in old cases based on modern technology.

In the officials’ minds, it seems self-explanatory that modern technology is totally different, that the analyst totally thought she was telling the truth back then, and that we should all be fine letting it go at that. Sure, maybe now we know that she was in fact dead wrong, but the newfangled machines we use these days actually work. The people who use them these days (mostly) don’t just pull results out of their asses. To officials, that makes everything different. How dare we apply accurate modern technology to the cases of people who may still be suffering the consequences of inaccurate old technology? Think about the poor lab analysts, right?

The article goes on to detail exactly what role that analyst played in the wrongful conviction of the more recent exonoree, Cedrick Courtney:

Emma Freudenberger of the New York law firm Neufeld Scheck & Brustin said Tulsa police crime lab analyst Carol Cox testified at Courtney’s trial that a bleached red hair was found on a mask recovered at the crime scene and on Courtney. Defense attorneys say the hair from Courtney was neither red nor bleached and that it should have been obvious that it didn’t belong to him.

It seems to me that, if you have Cox testifying that there was a bleached red hair on a mask at the crime scene and that they found a bleached red hair on Courtney too, but that the hair on Courtney was neither bleached nor red, you have a big problem. Did they not have the technology to determine whether something was in fact red back in 1996? Was testing for the presence of bleach way too complicated for the scientists of the era?

The defense doesn’t pull any punches when it comes to Cox:

“It’s not that the testimony was made up or misleading. What she did was more devious than that,” Freudenberger said. “We’re not talking about evolving standards in science. We’re talking about a very basic standard: Don’t lie. She lied about finding the red hair on Sedrick’s head. The prosecutor said in closing it was key evidence.”

With the field of science still in its infancy back in 1996, perhaps the applicable ethical standards hadn’t evolved to include telling the truth? Regardless, Cox’s actual scientific-sounding testimony provides some cause for concern too. She testified that she was not able to conduct a hair analysis because Courtney’s hair was too short, but she could describe characteristics of the hair samples individually. The hairs in evidence included bleached red hairs and several appearing to be from an African-American person.

“I cannot include or exclude him,” Cox testified.

The power of statements like that last one never ceases to amaze me. Had Cox just said “I don’t know,” it wouldn’t have screwed Courtney nearly as much. Instead, she described the obvious, saying the hair came from a black guy. Courtney, being a black guy, obviously had hair that might match or not match that. In Oklahoma, it apparently takes an expert to say that, though the real reason for the expert is not for the content of the last statement, but for its effect. The lay person just hears a scientist say she can’t rule him out. It’s really meaningless, yet it comes off as damning.

Part of the authorities’ continued defense of their former expert almost made me laugh out loud:

“She testified straight-forward. She testified to the truth, and she testified to the evidence within the scientific standards of the day,” Bender said. “What these attorneys from New York do is take the standards of 1995 in hair analysis and look at in the microscope of 2015. That is totally unfair to all the individuals involved.”

Darn attorneys from New York. Don’t they know the folks in power in Oklahoma don’t take kindly to their scientific gobbledygook? Their local scientific experts worked hard to put innocent people in prison using the limited tools they had back in the day, and now these city slickers swoop in with their 2015 microscope and try to undo all of that good work. Like that government employee said, it just isn’t fair to the individuals allowed. Individuals, of course, means the government employees who helped to wrongfully convict people rather than the people they wrongfully convicted:

“These attorneys are trying to trash the names and careers of professionals who have given to our community for years,” Bender said.

Freudenberger said Cox also provided similar testimony in the conviction of Timothy Durham Jr. He was convicted in 1993 of the rape of an 11-year-old two years before, despite having several alibi witnesses who placed him in Texas at the time of the crime.

Victim identification played a key role in his conviction and led to a prison sentence of 3,220 years. DNA testing exonerated him in 1996 after the Innocence Project intervened.

Government officials’ senses of fairness always do seem to be hypersensitive when it comes to their own. Their sense of fairness when it comes to innocent guys serving 3,220 years, not so much. Normally, exonerations like these two put the spotlight on things like the unreliability of eyewitness identification. Although it’s a big part of the puzzle here too, this situation also highlights a different part of the dynamics of wrongful convictions.

For those in charge, sending people away for years based on nonsense testimony disguised as science may not be a blip on their radar, but question their own and you’re going too far. If two wrongful convictions due to one analyst aren’t enough to make them look twice at that analyst, it tells you just how sure people in the system are of their collective righteousness irrespective of the truth. That’s every bit as much a factor in wrongful convictions as anything else.

2 Comments on this post.

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  • Scott Jacobs
    30 October 2015 at 1:39 pm - Reply

    I’ve long thought that we’d see far fewer “experts” lying on the stand and far fewer prosecutors actively withholding evidence if we made those people serve the entire sentence of the people they wrongfully convicted.

  • John
    1 November 2015 at 12:52 am - Reply

    John Preston and his magic dog, redux: it is up to each defense attorney, not the state, to fix the state’s muck ups. Someone who has been sitting in prison 10 years surely will hear about Carol Cox’s lies and garner the resources to act on it. At least he will if he is rich, and aren’t those the only people the justice system really cares about?