Monday, June 23, 2014

Lying Expert Witnesses: The Shabby State of Criminal Justice in Our Country

The American Criminal Justice System: “Houston, We have a Problem.”

James Ferguson
Mark Fuhrman, convicted of a felony perjury after the O.J. Simpson trial, is now a national Fox legal analyst, an “expert witness” on police matters. Last week, the 6th Circuit Court of Appeals in Cincinnati, Ohio, ruled “Dr.” James Ferguson, a state toxicologist, convicted of perjury, could NOT be sued or found liable for lying in a murder case where his expert witness testimony was relied upon by the judge for the conviction. Fred Zain, toxicologist at the West Virginia Department of Public Safety, falsified lab results which resulted in as many as 134 wrongful convictions. Once under investigation, he merely picked up and moved to San Antonio, Texas to work as a toxicologist where an investigation found at least 180 cases in which fraud may have led to wrongful convictions. He died in the comforts of his Florida home in 2002. Picking up the pieces in Boston, Massachusetts, over 34,000 lab results are now in question after state toxicologist Annie Dookhan pled guilty to crimes related to falsifying results. These cases are just the recent ones. They are only the tip of the iceberg. If an athlete is caught cheating in the Olympics, he or she is stripped of their medal and the opportunity to compete. In the criminal courts of America, if a police officer or expert witness is lying to obtain a conviction, they get promoted and receive raises. If their lies are caught, the Courts protect them. The 6th Circuit Court rationalized, “Dr. Ferguson deserves absolute immunity in the case because all testimony, even if perjured, is protected to ensure witnesses will be candid without fearing lawsuit.”

Mind you, this absolute immunity protection ONLY applies to government witnesses. It‘s the same type of logic as preventing poisoned customers from suing a chef because this would stifle the chef’s creativity in the kitchen. How many chefs would poison patrons? An illegal and unlikely scenario as restaurants would shut down and there would be health code compliance complaints. These safeguards do not play out in the criminal justice system. Quite the opposite: convictions win elections, including in the appellate arena, and look great in the media while those successful earn job promotions. 
As for a forensic regulatory body, NONE with any regulatory powers over the criminal justice system exist, although the first National Commission on Forensic Science has just been created. What is currently in place is a scandal ridden “pay as you go” certifying agency environment where groups like the American Crime Lab Directors (under major fire and litigation) can issue board certifications and certificates for a fee despite not adhering to scientific peer review recommendations; e.g. blind audits, true proficiency tests.

Annie Dookhan
How does this happen? It starts with deception and a lack of qualifications with no one caring enough to check. “Dr.” James Ferguson, did not have a doctor’s degree, nor a master’s degree and it is questionable that he even posses an undergraduate biochemistry degree (the University records showing how he was able to finagle this degree are “missing.”). According to an Ohio State University Biochemistry professor since 1965, Mr. Ferguson is missing six of the 15 required courses in his major. He failed chemistry courses seven times. His grades are poor. The same deception unveils with Fred Zain. Mr. Zain claimed to have graduated from West Virginia State College (now West Virginia State University) with a major in biology and a minor in chemistry. Records show he never minored in chemistry. He had only taken a few courses in chemistry, all of which he either flunked or barely passed. He also failed an FBI course in forensic science including the basics of serology (blood testing) and bloodstains. Annie Dookhan also feigned credentials. She claimed she had a master’s degree in chemistry from the University of Massachusetts at Boston. School officials have confirmed she has no such degree, nor has she ever taken any master’s courses there.  Amazing how one can’t even qualify to get into a nice apartment complex without a background check, yet the government can lock you in prison based on fraudulent toxicology reports by fake experts. The “fact checking” only seems to work one way. Before even negotiating a plea bargain, a district attorney always runs the criminal history of a defendant. Most district attorneys’ offices employ multiple investigators to locate witnesses, verify witness accounts and check backgrounds.  Wouldn't it be most prudent to spend a mere pittance on ordering academic transcripts from “expert witnesses” and running background checks before we set them loose on lab tests ? As far as tax payer dollars are concerned, it costs roughly $45k a year to house an inmate. The taxpayers don’t get that money back once it has been spent housing a wrongfully convicted person. In Fred Zain’s case, West Virginia alone shelled out a combined total of $6.5 million to the wrongfully convicted- all while the guilty, prevaricating witness is lucky to even be prosecuted.

Fred Zain
Let’s face it, nobody wants to hear of a lying government expert witness who has managed to defy all the common sense odds and get away with convicting innocent people with the seeming approval of all the cogs in the justice system from the prosecutor to the judge.  So, the only way to calm the ruckus down is to distract and “whitewash” the problem. In James Ferguson’s case, the media reported he had merely misreported his graduation year of 1988 for 1972. Sounds harmless enough, right? Except, this fails to account for the fundamental problems lurking under the surface. The fact that it took Mr. Ferguson twenty five years to obtain his degree also explains why he could not produce the gc-mass spectometry chromatograms (if in fact he even knows how to run a gas chromatograph) in Benjamin Uselton’s case alleging intoxicating dosages of alprazolam, where the coroner, a phD, had already reported the absence of such findings in the original autopsy. Mr. Ferguson’s unconventional scientific methods were also key in Virginia LeFever’s murder conviction where he asserted the deceased had lethal dosages of strychnine in his rectum, despite reports to the contrary by medical personnel who treated the deceased when he was brought into the hospital for an antidepressant overdose. While a special panel of lawyers, scientists and West Virginia Senior Circuit Judge James Holliday were investigating Fred Zain’s misconduct, he managed to hoodwink Bexar County, Texas into letting him take over their toxicology. The untimely for Texas, West Virginia report when finally issued, concluded his misconduct was so egregious, any testimony he offered “should be presumed as prima facie invalid, unreliable and inadmissible.” In Annie Dookhan’s case, she was too busy churning out guilty convictions for her satisfied prosecutors for her supervisors to acknowledge that her 500 lab analysis per month (five times the national average) was a glaring red flag. They also conveniently glossed over the fact no one had ever seen her work a microscope and that she had a bad habit of misidentifying samples.  It seems she subscribed to, “A little inaccuracy sometimes saves tons of explanations." (Saki)
As incredulous as these sordid tales are, the aftermath is even uglier. They will continue to happen unless decisive measures are taken. It took drug testing in the major league sports to prevent cheating. The “honor” system was just not working, ask Alex Rodriguez. The Tour de France can reclaim the seven Tour de France medals Lance Armstrong won while taking performance enhancement drugs, but a lying “expert witness” cannot restore the years lost to prison of someone framed by an uncaring and negligent justice system that turns a blind eye. Bo Bennett said it best, “For every good reason there is to lie, there is a better reason to tell the truth.” That reason should be the fear of repercussions. If a person can have their probation revoked for something as simple as missing a report period or failing to take required classes, we should require our government “experts” to prove their worth and work.  It’s one thing for a charlatan preacher or carnival barker to line their pockets disingenuously, a whole other to allow unqualified and unethical government “experts” to play God with people’s lives based on shams.
Here is a simple and common sense roadmap that doesn’t take a college genius to figure out. We must start off with safeguarding the integrity of our country’s most precious institution, the justice system.  First, we must separate police work and its prosecution from toxicology. The only bodies that scientists should be reporting to are other scientific bodies (legitimate, of the academic and scientific peer review variety). Currently much police miscegenation occurs, right down to the divvying and mixing up of funds and paychecks. Forensic results should be reported to the government, not controlled by the police or prosecution (as the Virginia LeFever murder conviction demonstrates where the prosecutor told James Ferguson what they were looking for despite the coroner’s findings). Second, although ethics is the new corporate “it” word, it seems to be staggering behind in the world of the police state.  We must make it an essential minimum and reality in the HR of government personnel hiring. Proper screening of candidates and reference checking should be mandatory and commonplace. Our government experts should not only demonstrate the highest academic credentials, but they must also possess character beyond reproach; for their opinions don’t favor the highest bidder of a government contract or the buying power of widgets, but directly affects the value and experience of human life, a far more precious commodity and one that our Constitution was designed to protect. The type of character of one to whom so much power is given must be circumscribed with honesty, meticulousness, and trustworthiness.  Third, we must not “trust” that local governments can ferret out frauds. There needs to be uniform national and consistent standards, protocols, and mandatory  continued  professional education akin to what lawyers, accountants, doctors, nurses,  architects and engineers are required to take to take to keep up with developments in the field. All experts should be subjected to national certifications testing their proficiency before they can practice, akin to passing the FBI forensics courses to prove they possess the minimal aptitude and skills with which to handle and report laboratory evidence before doing so.  Hopefully, the time has come where enough shame and disgust can propel us forward to reclaim what in theory should be the world’s best justice system, but is currently a far cry.



Concerned Senior Citizen said...

Thank you for shedding light into this dark corner of our criminal justice system. I would like to see investigative reporters turn that light onto more fraudulent "experts." People who operate without a moral compass need to be revealed.

Unknown said...

Well done. The criminal justice system needs to start a dialogue about this. We, the criminal defense bar, need to see that this gets more media attention.

Ed Blum

Unknown said...

I just had a government "expert" on the stand whom I was grilling about FSTs and the fact there is no peer-reviewed causal connection between performance on them and impairment by alcohol, and the DA kept barking "Objection, she's not an expert." This was after she testified to attending and employing correlation studies of people performing FSTs in the alcohol-free state and then after a measured amount of consumed alcohol, on which she based some of her conclusions about the effects of alcohol. But she picked up on the DA's message and suddenly didn't know anything about them! I barked "Ms [ ], do you recall testifying in several other trials with me on this subject matter - you didn't answer then that you knew nothing about this subject - has the DA told you what you should say now?" She gave an embarrassed smile and agreed that she had answered those questions for me before, confessing thereby witness-tampering and corruption. But I got yelled at by the court for suggesting the obvious!!!! The witness and DA didn't get attacked at all. And that is the problem: these dishonest cretins are protected by the courts, and we must shout to the very Heavens about what is going on.