criminal justice Robert Scheer SI Podcast

Junk Science Is Putting Innocent People in Prison

The Innocence Project’s Chris Fabricant explains the various ways evidence can be manipulated to look scientifically sound, but is usually not.
Chris Fabricant. Photo credit: Akashic Books

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The perception of certain types of trial evidence as cutting-edge, foolproof, and reminiscent of Hollywood can inadvertently sway juries into assuming the guilt of countless individuals. Techniques such as bite marks, blood splatter analysis, ballistics evidence, and others appear to present irrefutable indications of involvement in criminal activities. However, concealed within this seemingly conclusive cache of evidence lies a substantial amount of what is known as junk science. This is why Chris Fabricant, the director of strategic litigation at the Innocence Project, wrote his latest book, “Junk Science and the American Criminal Justice System.”

In this episode of Scheer Intelligence, Fabricant sits down with host Robert Scheer to shed light on junk science techniques used by prosecutors and law enforcement that, all too frequently, lead to the wrongful conviction of innocent individuals. Fabricant explains how the use of these techniques are often subject to individual and cognitive bias, something that is usually mitigated in other scientific fields.

What ends up happening, Fabricant says, is that forensic experts, “conform to the prosecution theory that was included in the case file. And that still goes on today and that’s true with fingerprints, it’s true with bite marks, it’s true with ballistics evidence, with blood spatter, it’s true with shaken baby syndrome, it’s true with arson investigations, it’s true with hair microscopy. All of these are subjective techniques that rely on human judgment.”

As a result, there are hundreds, if not thousands, of cases where the individuals investigating them fall to their egos and careers and, “you have no shields of cognitive bias [and] you have a recipe for gross miscarriages of justice,” Fabricant said.

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Robert Scheer


Joshua Scheer


Diego Ramos


This transcript was produced by an automated transcription service. Please refer to the audio interview to ensure accuracy. 

Robert Scheer Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guest in this case it’s Chris Fabricant. And now, fortunately, there is a paperback of his sensational book that came out in hardcover. I’ll hold it up, because we, of course, will make a video of this called Junk Science and the American Criminal Justice System. And I just found it compelling to read. I read it when it first came out and talked about it and heard a lot about it. But until you get to do these podcasts, it forces you to actually spend a couple of days with the book, which is not a bad thing to do. And so why don’t we just cut right through it? The great hope of justice has been DNA, and it’s an imperfect mechanism because DNA can be messed with and so forth. You know, labs, police labs are notorious for messing around. But nonetheless, it allowed great lawyers like Chris Fabricant to be able to say, no, it’s not just speculation. In the case of this young naval, you know, sailor on a boat where is it Newport? And this guy would have been put away forever and it was put away for a long time. And because all of these professional law people and everybody else in the system said, come on, I could smell it, he’s guilty and so forth. He didn’t have the mustache that the witness said. That was the one that got me reading your book. How do you get around the mustache of somebody who is supposed to attacked a woman and, you know, done terrible things? He either did or didn’t and he didn’t. But I’ll let you go into that. But it was a compelling case of somebody whose life would have been destroyed and was not the person who did it. And then they found the person who did it. And the book goes on to a number of other cases that you pursued.

So you’re actually this tough, brilliant lawyer who’s willing to go for the underdog. And I find most people, when I talk to them, they actually think most people in jail are guilty. And most people I talk to haven’t spent any time in prison and don’t understand how coercive and vicious it is. I’ve only spent a few days here and there in different countries, but it was enough to give me a taste of it. So I’m going to let you take it over in this book. And I should mention that you helped run or run the Innocence Project, you’re a top lawyer there. And it’s probably the one outfit around that everybody respects. I haven’t heard anybody put it down. You guys do your homework. You guys and women do your homework and you get great results. But still, there are a lot of innocent people in jail despite the Innocence Project. So take it from there. Tell us about the book. 

Chris Fabricant Well, you know, one of the things that you say as far as how many innocent people are in prison, you know, I mean, and I think, you know, people are always surprised when I say this and that most people that are tried and convicted of serious crimes are guilty. Right. And the and, you know, at least some of the acts that were charged, they’re often, you know, sentenced, outrageous, you know, time. And there are lots of other injustices. But if you think that right now we have around 2.3 million people incarcerated in this country and you think that maybe 1% of these people are innocent, you’re talking about tens of thousands of people. And the Innocence Project is a relatively small organization. So certainly we’re not getting to everybody. And the Supreme Court makes it more and more difficult to challenge convictions in post-conviction every day, every decision that’s come out over the last ten years has made it more difficult. So the problem that the Innocence Project has exposed, you know, over the 30 years that we’ve been in business, you know, they go back to the nineties and it’s important to think about what we understood about the criminal justice system at that time.

And that was virtually everybody believed that, you know, with notable exceptions, that jury trials in the American criminal justice system was the best in the world, and that wrongful convictions, to the extent that they ever occurred, were vanishingly rare occurrences. And what we believed in were things like eyewitness identification and confessions and certainly forensic sciences that helped assure that these convictions had integrity. And so when forensic DNA evidence became available to use in the criminal legal system, we were able to, for the first time, actually be able to know ground truth. We would know somebody was there or not there in a way that you can never have been certain of in the past. And one of the things that was really important, what was genius about the way that Barry Scheck and Peter Neufeld when they first established the Innocence Project, when they were thinking about how they were going to decide what kind of cases that they took what the intake criteria was. And what they decided was that they were not going to make any subjective judgments about guilt or innocence. Right. They weren’t going to take a look at a case and say, well, you know, there were ten eyewitnesses or that this person confessed or that there was forensic evidence that was pointing to guilt. The only criteria was going to be if we can find and test biological evidence in this case for DNA. And if that came out in a way that was favorable to the client, would that exonerate them? That was the only criteria. So as a result of this, they took cases and overturned convictions where there were six, seven, eight eyewitnesses who had all identified the defendant. There were detailed confessions that apologized to victims that included details that allegedly only the perpetrator could have known. And, of course, there were forensic sciences. And what we learned, overturning all of these convictions through the power of the truth telling power of DNA is that eyewitness identification is grossly unreliable. It’s a leading contributing factor to wrongful convictions. And forensic sciences, which are supposed to be the gold standard of proof in criminal courts. Right. Only sex sells better than science. Right. You know, I mean that we rely on scientists the way advertisers use science, right? Scientifically tested and proven. 50%, more than 50% of convictions that were overturned through DNA evidence is attributable, at least in part, to the use of junk science.

And all the techniques that I write about in my book are still admissible today, even though we know that these techniques have led to gross miscarriages of justice. And I write about four wrongful executions, all based at least in part on the use of unreliable forensic evidence in my book. So this was, you know, the earthquake that really has been rippling through the criminal legal system really since the advent of forensic DNA. And it’s being hardest by the Innocence Project. And you’re right, overwhelmingly, people have positive idea of the Innocence Project. But one of the things that’s really been surprising to me is that as how many adversaries that we actually have, not in the general public, but within the criminal legal system, is that we have prosecutors that will deny the innocence of our clients. Right. And that we have judges that will refuse to hear new evidence of innocence. And we have the Supreme Court that denies the opportunity for our clients to present evidence, compelling evidence of innocence in federal court. So while, yes, it’s true in the general public that, you know, there there is a groundswell of support for freeing the innocent, in the criminal justice system by the people who are making the decisions, that’s not the case. 

Scheer But it’s difficult if you have a DNA test. You make the point actually, early on in your book, the DNA tests can establish the innocence, but it’s not necessarily going to be helpful the other way. I mean, if it comes out right, and they have that test. But let’s go into that. I mean, and but it had a clarity that other science doesn’t have like bites that your book has a lot about bites. 

Fabricant Right. 

Scheer And dentists claiming they’re forensic detectives. And in fact, for much of that activity, they weren’t even really board certified or expert or really didn’t know. 

Fabricant It’s all invented stuff anyway, right, board certifications. 

Scheer We should examine… Okay, so the appeal of DNA is real science. Once they got their act together and yes, it tells you a lot. It doesn’t tell you everything. It doesn’t tell you whether the DNA was tampered with and if the DNA has disappeared because too much time has passed, then you can’t use it. But your book really stresses all the other areas of expertise that are impressive to juries and judges and lawyers. And let’s examine this title, Junk Science, because you really expose it as that: junk science. And so why don’t you go into that? Because you are people appearing in a courtroom and they have advanced degrees and they talk a good game and so forth. And then in your book, you do an autopsy on this and show this is nonsense, that in fact, unless you, what is the way you put it, unless you break deep with a bite, you really can’t forget the physiology. But it doesn’t really tell you a damn thing. 

Fabricant No, I mean, well, the what’s important to keep in mind. One is that, you know, junk science is a pejorative term. And the and forensic experts certainly don’t like it. So I tried to be very careful about the way I defined junk science in the book. And I define it as subjective speculation masquerading as scientific evidence. And to write that down a little right, is that real science is based on basic foundational research and research that’s done in the field. Right. And it’s peer reviewed. It’s subject to scrutiny by the the outside mainstream scientists that are disinterested in the results. And that’s published and it’s challenged. And then it’s not released to the public as valid science until it’s been through the scientific method. Junk science is fundamentally a an expert opinion, typically based on training and experience and the received wisdom from the field. And in junk science, there are two things that are really important to kind of understand this, that there are no measurements taken, and if they are taken, they’re meaningless.

And then of your listeners that have a science background will understand this. And this is true with hard science, so-called hard sciences or social sciences, is that you’re always measuring something, right? And that’s why I give you an idea of, you know, whatever it is that you’re testing is that there’s a measurement taken. Right? And that’s why we have randomized controlled studies, right? And so you have that control group and then you’re going to measure the effect of whatever variable you’re trying to introduce. So in junk science, what you have is somebody that is eyeballing the evidence and coming to an opinion. And what in all other sciences, outside of forensics, the influence of bias, cognitive bias is well known and understood and there are efforts to mitigate this bias. So I’ll give you an example. If you think about, you know, how problematic a biased opinion can be, think about latent fingerprint evidence. And this is kind of the gold standard of traditional forensic techniques. Fingerprint evidence was thought to be essentially infallible until we had the Brandon Mayfield case. And this is a mild mannered lawyer in Oregon. Whose fingerprints were identified as coming as being on the blast caps that were used to blow up the commuter train in Spain in 2004, in which 270 something people died and many thousands were injured. And the only evidence they had against him was fingerprints. He was arrested. He was held incommunicado by the FBI. And Brandon Mayfield saying, hey, these aren’t my fingerprints. I’ve never been out of the country, literally never been out of the country. I don’t even have a passport. But what they found was that Brandon Mayfield was married to an Egyptian national. He had converted to Islam. He had once represented a man that had been convicted of providing material aid to a terrorist organization. So this is the profile that the FBI had in mind as who was, you know, responsible for this type of crime. And so the court brought in an independent expert. The court assigned, very unusual, an independent expert to examine the evidence.

The independent expert concluded that it was Brandon Mayfield’s prints. Brandon Mayfield hired an expert, his own expert concluded that it was his own prints. And it wasn’t until the Spanish authorities identified a better candidate for this crime and who his fingerprints were also matched is that they finally admitted this mistake. So this was a shock that just resonated throughout the forensic community because of, you know, we thought the fingerprints are, you know, infallible. And so a very clever experiment was done by [indistinguishable] our well-known kind of neuroscientists at the University of London. And what he did is that he gathered a group of highly qualified forensic experts, and he asked them to do an analysis of these cases, these fingerprint cases. And what was clever is that he didn’t tell any of these experts that this was, in fact, their own prior casework that they were being asked to review. And so they didn’t know that it already come to conclusions on this evidence. And the only thing that he changed was the irrelevant contextual information that was included in the case files and things like the suspect confessed or that there were lots of eyewitnesses or something, and three fifths of these experts changed their original opinion based on nothing to do with the actual fingerprints, but just they conform to the prosecution theory that was included in the case file. And that still goes on today. And that’s true with fingerprints. It’s true with bite marks, it’s true with ballistics evidence issue with blood spatter, it’s true with shaken baby syndrome, It’s true with arson investigations, it’s true it’s hair microscopy. All of these are subjective techniques that rely on human judgment, that are no effort to shield what the prosecution’s theory is and the theory of guilt. And so when you have no research that’s underlying the opinions, when you have this received wisdom that’s passed down from generation to generation, when you have egos and careers and livelihoods that are built up on the continued acceptance of this technique, and you have no shields of cognitive bias, you have a recipe for gross miscarriages of justice. And that’s why I called it junk science.

And I want to make one more point about junk science, which I tried to make in the book. The reason that we know about this this term, junk science, the reason that it’s part of popular culture before my book came out had nothing to do with the criminal justice system at all. It was the civil justice system that this became an issue. And it was in the nineties where corporations and so seventies and eighties and into the nineties, corporations were getting sued Dalkon Shield litigation of the breast implant litigation, the Ford Pinto litigate all of these cases right all these [indistinguishable] class action cases was developing a whole cottage industry of expert witnesses that didn’t exist prior to World War II. You know that this all sprung up and fueled this massive growth in the civil justice system. And plaintiffs’ attorneys were getting rich suing a lot of these corporations and using a lot of junk science, a lot of bogus expert witnesses. I’m not like, you know, a corporate defender or anything like that. But they had a point. There was a lot of junk science being used. And these some of these experts were no longer even working in the field. The only thing they were only their professional witnesses. 

Scheer So just to put it in historical perspective, these corporations had invented junk science. If you think of the famous case of where the cigarettes are lethal or anything I mean, the tobacco companies owned scientists as they set up the exams they just avoided. This was certainly true of the chemical industry. But what they did when it started to get balanced and then even go further, maybe in the other direction, people raised questions about it. 

Fabricant And what they said and this is a guy there is a book that was written by a fellow from the Manhattan Institute called Galileo’s Revenge Junk Science in Our Courts. And that was the person, that was the book that that coined the term junk science. And that book was cited in the Supreme Court case that changed the standard for the admissibility of so-called scientific evidence to make courts judge the rigor under which that these expert opinions were being proffered. And it radically changed the way that civil litigation and toxic tort product liability done, because they were basically labeling this junk science, they were able to get these opinions excluded.

But that debate, even though we know that that the courts are now they’re hip to the idea that, you know, that not all these expert opinions are valid and 40% increase in the exclusion of expert witnesses after the Supreme Court decision known as Daubert, the criminal justice system, even after the IP, the Innocence Project, exposed how much junk science is being used. Nothing changed in the criminal justice system at all, and that there was no uptick in excluding what we know had been leading to wrongful convictions. And this is why I explore this theme poor people science in my book. Because that’s what we get in the criminal justice system, we get poor people science because we don’t care about the life and liberty of the poor and disproportionately black and brown people that are prosecuted in our criminal justice system. So I’m trying to bring that junk science debate into criminal courts. 

Scheer I understand. But let me ask you a question, because we still have this myth that everybody gets their day in court. And if it’s a serious crime, they get legal. What we say and we have good people like you who work as at times public defenders and so forth, and give it their their best shot. But in almost every case that I’ve examined or written about or read about, usually it’s not true at the beginning. At the beginning, usually somebody is supposed to be plea bargained or they’re assumed to be guilty, or no one really thinks about other ways of approaching it. Right. We don’t get that OJ defense and so forth. So that’s a myth. But I also want to ask, this whole question of can you reexamine things? Is it settled already? And you said, because I have to be true confession. I actually like some of Robert’s stuff on the Supreme Court, particularly around privacy and other things. And you mentioned, though, that this court is not for letting cases be reopened and is not for second chances. So correct me here. 

Fabricant No. I mean, what we understand about, you know, the criminal justice system is that overwhelmingly crimes, particularly violent crimes, are prosecuted in state court. Overwhelmingly, these are elected officials, district attorneys, judges, including appellate judges. And that is where wrongful convictions happen overwhelmingly. And the way that our legal system is set up is that when you have a criminal conviction in state court, once it goes through the appellate process, you’re entitled to have your conviction reviewed in federal court for constitutional violations. Something like your right to counsel was violated or or that you didn’t get the right to confront witnesses against you or juror misconduct or, you know, things that made due process violations. And what happened was when Bill Clinton signed the Antiterrorism and Effective Death Penalty Act in 1997, what it did was begin to saw off avenues of post-conviction relief in federal court. And federal court was really important because all of the political pressures that are associated with the justice system at the state court level are in these, in theory, mitigated in federal court because the judges have lifetime tenure.

They didn’t preside over the case themselves and that you could bring new evidence of innocence into federal court and get your conviction thrown out, if appropriate. And what this statute did and the subsequent interpretation of that statute by the Supreme Court has made it nearly impossible to get federal courts to review state court convictions. And that has in turn made it nearly impossible to overturn a wrongful conviction if you don’t have really, really compelling DNA evidence. And even then, it’s impossible for prosecutors that are agreeing that the conviction is not reliable and joining motions to overturn those convictions. So, you know, for example, this is just, you know, this year in the Supreme Court decided a case called [indistinguishable]. And what they decided and this is a very compelling actual innocence case, that there was new evidence of innocence that they wanted to present at a hearing in federal court. And the Supreme Court interpreted even despite the grave threat to this person’s life and liberty, that the statute, as interpreted by the Supreme Court, precluded the presenting of new evidence of innocence in federal court. So, you know, the hostility towards, you know, the disruptive nature of a wrongful conviction and the threat to the integrity of the criminal justice system is protected by these types of decisions. 

Scheer Okay. But we can blame this, I guess, on the Roberts court, but in the tightening up of standards go back to a more of a bipartisan approach. 

Fabricant Yeah, I say it was Bill Clinton. Right. He he signed this terrible bill. Right. You know, I mean, there has only been you know, and I’ve been doing this type of work for 25 years now. And if you told me 25 years ago that, A, you know, that marijuana would be legal in New York City, right, with the marijuana arrest capital of the world, literally for decades. And that the drug war would be something that people had come to realize was a total failure and racist. You know, I wouldn’t have believed you. You know, I mean, and so it was always politically expedient to get tough on crime for both sides. You know, they’re competing, you know, the Democrats and the Republicans who could be tougher on crime. And it wasn’t until we woke up, you know, maybe ten years ago and looked around and saw that we were leading the world in mass incarceration and wrongful convictions were not just, you know, vanishingly rare, but horrifyingly common that criminal justice reform became an issue that you could actually run on. And that would be something that, you know, is that the general public would be interested in, in electing so-called progressive DA’s to the extent that such a thing exists. So, you know, that’s my small hope of optimism around this, is that, yes, it has been both sides, to the extent that it’s a sides thing, that have ratcheted up our carceral state to the the human rights violations that it is now. 

Scheer This number, 2.3 million that you use. I mean, even if one assumes, as you did earlier, that most of these people committed some kind of crime, you know, the penalties are not exactly the same for the rich and the poor, the highly represented, the poorly represented and so forth. And also what happens is, you know, like I teach at a university where the outside community in downtown central L.A., near USC, there are arrests almost every day of, you know, well, who are these people, what kind of education they get, what you know, and so forth. And one of the things that I do want to get to before we wrap this up is, yes, DNA has been a great way of putting accountability because okay, you got it. And as you say in your book, and we didn’t go through all your cases, but they are compelling, by the way, in the book, Junk Science and the American Criminal Justice System. But it is a joy to read. I hate to use that word, because it’s about depressing things that people get wrongfully convicted. But I mean, in terms of telling a story about human beings, I do want to pay a compliment to you. I think you have very famous people, you know, like John Grisham and others and you got great reviews and so forth. So it’s very accessible and it’s a human story. And I still can’t get over it. I don’t know what it means to be a sailor in the Navy and someone accuses you of having done this heinous crime and people believe it. And your family comes to visit you and they expect you to be there forever. And, you know, fortunately, there is this device of a DNA test that then you can turn it around. I have two questions about that, because very often there isn’t a good DNA sample.

If there is, there’s a real concern about whether it’s been manipulated, you know, and the people doing the testing. I bring up, for instance, the Kevin Cooper case here in California. True confession. My wife started out writing about it. She’s now part of you know, believes and that he is innocent. And then from what I’ve looked at the evidence, I certainly think that. And certainly he didn’t get his day in court. But it’s interesting. It’s the opposite of the stories you tell in your book. In this case, the only witness to this heinous crime, you know, was a young kid who said it was three white guys who did it. Kevin Cooper is a single black man who ends up being accused of the crime. And the thing and so there is no evidence connecting him with being at the crime scene. There’s no eyewitness, nothing. The only thing is a late claim of DNA found on a wall, one little spot and on a T-shirt. So here’s an example. And I happen to think it’s accurate, but one could argue about that. But what is true is the DNA evidence is used to trump everything else. There’s no other corroboration of any kind. There was no early witness identification or anything. And then the argument is, well, who are the people collecting the DNA? And it turns out, well, they got a spotty record. Oh, that person robbed guns from the county when they were, you know, in the sheriff’s office or that they played with evidence. We got a lot of scandals even in these supposedly more enlightened state of California of law enforcement people playing loose with the evidence, the information. Why was there a bottle of Kevin Cooper’s a little of his DNA next to where they were doing the testing and so forth. So I just wanted to ask you about that DNA. Yes, it’s been great, But it also can be misused. 

Fabricant Powerful technology like that is you know, it has to be you know, it’s only as valuable as it’s been collected and tested and the chain of custody is very clear and that there’s no opportunity for contamination either, you know, accidentally or deliberately, you know. So, yeah, you know, I mean, that’s, you know, what else to say about it, you know, I mean, it can be manipulated like anything else, you know? I mean, and if there isn’t a clear chain of custody and there’s opportunities, particularly if there are known bad actors, I don’t know about this case other than a little bit of familiarity with all potential miscarriages of justice that, you know, if there is opportunity and bad actors have that opportunity and there’s compelling evidence of innocence, then the very least, it sounds to me, like there should be a new trial and one that’s done with fairly tested evidence and that you can remove these kind of, you know, doubts, you know, and I think that that, you know, so often in our cases, because we don’t have such, you know, slam dunk DNA, whether it’s been, you know, well-preserved or not, is that there’s certainly plenty to show that the trial is not fair and often I get frustrated, because what we’re asking for is a new trial, one in which junk science wasn’t used.

And if there is a conviction after that, then there’s a conviction. You know, me and them, we’ll have to live with that regardless of what we think the ground truth of the matter was. And so it sounds to me like this there’s enough here and to require a new trial. And it goes back to exactly what we’ve been talking about before. Is, too, is getting a new trial. The procedural barriers that are put up in front of that are overwhelming. Overwhelming. So and I imagine in that case, they’re running up against those as well, even though I know nothing about the you know. 

Scheer And I would like before we end, if you could go through the other cases in your book and your own experience and, you know, to remind people we’re talking about lives. I mean, we’re talking about people sitting there for 20 or 30 years in prison and maybe by accident, guy like who comes along is willing to defend them.

Fabricant The arbitrariness is scary, you know? I mean, is that, you know, and how lucky you have to be to get an Innocence Project lawyer is, you know, you’re one in a million. You know, one of the scenes that I usually read in my readings that I’ve done around the country is when I met my first Innocence Project client, Steven Chaney, who is convicted of murdering two drug dealers. And in Dallas, Texas, you know, based on bite mark evidence, shoe print evidence, polygraph and presumptive blood tests, all junk science, all of which was wrong. And I started writing the book actually in the paperback update talks about, you know, when I started writing the book was in the parking lot of that prison after having met him, because it was such an emotional experience for me, because I realized that he’d been waiting for somebody like me to come along for 25 years and the ordeal that he’d already been through and the amount of power he thought that I had to wave a magic wand and make a prison door open. And so what I did is you’ve been talking a little bit about the Keith Harward case, and Mr. Harward was a Navy sailor who has spent 33 years in prison for a rape and a murder he did not commit. That was based on junk science. And Stephen Chaney, the case I just mentioned. 

Scheer Just to connect to what we were saying before, he’s the guy who. 

Fabricant So he was a sailor. 

Scheer He was clean shaven, what, about 20 something? 

Fabricant Yeah. So what happened in that case is it’s a fascinating case and I open the book with it because it’s so compelling. It’s that there was a young couple, a young married couple that were asleep in their house in Newport News, Virginia, in 1982, and somebody in a sailor’s uniform broke into the back door. They had three kids that were asleep down the hall, went up into the merry couple’s bedroom where they were asleep. He bludgeoned to death the husband with a crowbar, and then he sexually tortured the wife for about 3 hours by the end and told her not to cry out or she would attack her children. So she quietly endured this for 3 hours. He bit her up and down her legs and the thighs, stole money from her purse and left. And he was the only description because he’d been blindfolded through much of the ordeal that the woman the victim could provide was that he was a sailor about five foot ten, about 150 pounds, clean shaven. And the insignia on his uniform suggested a low ranking sailor. So there were about 3000 sailors stationed in Newport at that time, more than 3000, it was 3000 that generally fit that general description. 

Scheer They didn’t mention his race, but… 

Fabricant He was white. Yes. Right. And so they really had nothing to go on. They had no witnesses, no particular motive. They had no forensic evidence was discovered at the scene, no fingerprints, no nothing. Right. And so what they had with these bite marks and this had been just after the Ted Bundy case, which I devote some time to, because it’s what drove bite marks into the mainstream culture and made a lot of these people stars. And so they did the largest dental dragnet in American history, as far as I can tell. And they had checked the texts, the dentition, the biting surface of teeth of all 3000 suspects who potentially could have left these bite marks on Teresa Peron’s thighs. Stephen, I mean, I’m sorry, Keith Harward was identified as a potential biter in that. And then they they retested him and then he was excluded. And then the case was getting cold. Four months went by. Two U.S. senators weighed in. Alfonse D’Amato in New York, for those of you remember him and another senator from Virginia, who had put pressure on the Navy and the local police to make an arrest. And so what happens is that Keith Harward, four months after this incident, is home with his girlfriend, they’re both drunk. They get into a physical altercation. She hits him in the head with a frying pan. He bites her in the shoulder. They both get arrested. So suddenly, though, this arrest comes across the wire. And Keith Howard, apart from the fact that he wore a mustache, generally fit the description. And now he’s a known so-called biter. Right. And so they took Teresa Pirone to his arraignment to see if she could identify him. And to her credit. Amazingly, she doesn’t identify him because he never got a good look at her face.

So the only thing that they had to go on was so-called bite mark evidence. And he had already been excluded as a potential biter. Right. But what they did is they brought in one of the guys in the Ted Bundy case, a guy named Lowell Levine out of New York, who is an ascendant forensic celebrity. And he decided that there was Keith Harward who did this and only Keith Harward who could have done that. One of his colleagues backed him up on that. And that was the linchpin of the case. And it was a death penalty case. And the only reason that his life was spared is because his parents took the witness stand and beg for his life. Only time that Keith Harward had ever seen his father Weep was from the witness stand in Newport News. And that evidence was so compelling that Keith Harward own brother, told me this many, many 35 years later that he never believed that he’d done it. But when he was in court, he started having doubts because the bite mark evidence was so compelling and his parents died before Keith Harward was ever exonerated. He had totally given up hope. And the only reason that we came across this and this is the story that opened the book with you know, me, is that I had my paralegal when I started working at the Innocence Project, and we were looking for these junk science cases. So, like me, find me every bite mark conviction that exists in the country. And we’re going to take a look at all of these.

And I read the appellate opinion that was affirming his life sentence, that if you were skeptical about bite mark evidence, which of course I was, he sounded innocent. I was like, this is all they’ve got? And so we reached out to him and we took his case and just dumb luck. They still had the evidence preserved in and it was in the Virginia Supreme Court. I had a law fellow of mine, found it. And the DA’s great credits didn’t fight the DNA testing on it. And when they tested the DNA, it excluded Mr. Harward. It was redundant DNA all over the house and in various areas that were probative, the same man’s DNA. And then, you know, what I call kind of the checkmate of the criminal legal system as it was uploaded to CODIS and identified the actual perpetrator, a guy named John Crotty, who had died in Ohio prison after committing many, many more crimes after the rape of Theresa Pirone and the murder of her husband. So, you know, that was one of the early cases I had taken at the Innocence Project.

Scheer But you’re leaving out the junk science part because as you establish in your book, these dentists who then claim that other expertise, actually there was no recognized board certifying that. 

Fabricant They invented it. 

Scheer Yeah. And the fact is and I know this until I read your book, that a bite mark will disappear unless it penetrates deeper, that you really can’t tell anything looking at these cases. Sure is. And so when you say junk science, people should understand. We’re talking about total, I don’t want to do a play on your name, but fabrication. 

Fabricant Right. 

Scheer I mean, it’s just bizarre when you think about it, that intelligent, well-educated people all nodded their head and then even in a court would say, yes, I have no doubt that that young man did it. And you know darn well that when you just bite into the surface, it’s going to disappear. It doesn’t make the same indent is not accurate in any way. 

Fabricant I mean, well, this is the true with all junk science is that if you’re not critically thinking about it, it has good curbside appeal. Right. You think about bloodletting. Right. You know, they kind of made some. It lasted thousands of years. Kind of made some sense. Oh, I’m sick. I got some blood. A virus in my blood. I might get some new blood and I’ll feel better. Right. And then finally, they did some research and see, you know, this is bullshit. But what if you think about with bite mark evidence, right? Is that it makes a certain amount of intuitive sense, right? To say, Oh, we have a bite mark. If we could find the teeth that let that bite mark and match it up, we’ve got our perpetrator. But, you know, just even like the threshold issue in diagnosing an injury as a bite mark, which was not at issue in Mr. Harwood’s case because the victim had lived. And she said, the sailor bit me. Right. But even on that, we know now today that there’s no way to reliably diagnosis injuries. But even before that research came out, what I never saw and I looked at hundreds of these cases is a cross examination made the obvious point is that bite marks are made in skin. Skin is an ever changing medium. And when you have a deceased victim, the decomposition happens immediately and it changes hour to hour, day to day, week to week with a healing with a surviving victim that swells and then it heals and it changes constantly. Right. So you would have somebody matching a bite mark one day and not matching it the next. It just depends on when the photographs are taken and when they were compared.

So even this basic thing, right. This is not true with any of these other like fingerprints or these other things. So you’re not going to  have constantly changing the way that this thing works. So, you know, that’s what’s frustrating about it. Right. And this is why we have all these biases about the defendant is guilty, right? They bring him into court. Two strikes are against the defendant immediately, is that virtually everybody believes they’re guilty. And I write about an arson case in my book where the prosecutor admitted this and saved this person’s life because he said, I knew that I could get this conviction, but I was not convinced by the science and so I decided to dismiss it. And that was, you know, one in a million prosecutor. But he absolutely would have gotten that conviction because jurors believed the science, They believe the experts. And this is why I wrote the book was try to get into the mainstream media culture. 

Scheer They don’t believe the science, they believe the junk science. I think this is really important because we live in a culture where science attained a very high level of respect, and these are inherently wise people, and it can be and is consistently misused. That’s why I brought up the case in advertising. The cigarette, fertilizer, everything. Fake science is, you know, can be purchased and made to look compelling. And I do want to say, you know what and what is great about your writing let me give a plug for this book is you make us care about these people. And I suspect that for most people, they don’t put themselves in the shoes of somebody, you know, even though he was white, even though supposedly the system was working for him, young man in the Navy and so forth, his parents die thinking he did maybe did this heinous crime. I just I mean, reading your book, that’s the thing I just couldn’t get past, the idea that somebody’s sitting there and the people who put them there are they’re… And, you know, let me now be critical of the current Supreme Court. Even I just don’t get the argument for saying it’s over, we’re not going to revisit it and so forth.

First of all, it’s not true that these people are over represented, most of the time, they’re inadequately represented, you know, And anyways, so I don’t know, we wrap this up, but the book is called Junk Science. And let me hold it up here on the radio I can’t hold it up, but it’s Junk Science and the American Criminal Justice System. And the reason I wanted to do this, and I want people to read the book it’s the new cop out now. And that’s why I brought up the Cooper case. Oh, if you can nail somebody then there’s no question. No question. Who are these people? What is the other evidence? Could it be stay stacked or so. And, you know, some people will get off thanks to some group like the Innocence Project or a few others. So it’s good that we have this mechanism, but basically we live in a lock them up, throw away the key society where we really and that’s why I’m going to lose sleep tonight for letting you get away with saying, Oh, well, most of them are guilty. Guilty of what? And how did they go? 

Fabricant Yeah, yeah. I don’t want I don’t want that piece to be overstated, you know, I mean, is that, you know, and whether they should have been charged with any particular crime or whether they’re overcharged in the sentences. 

Scheer They can be rehabilitated and all that. 

Fabricant Yeah, I want to be clear about that, you know, I mean and, and they have committed some of the acts, at least some of the acts that have been charged. And, you know, imagine we lived in a society where that wasn’t true, Right. Where most people in prison were innocent. Right. I mean, they had done absolutely none of the acts that were charged. But the rot, you know, of our of that underlies mass incarceration, you know, is the drug war. And it’s the super predator mindset where we’re never going to let anybody out. When you make no efforts to rehabilitate anybody, you know, mean then that we’re going to stop any avenues to get their convictions overturned or that anybody out on parole or give anybody an education why they’re incarcerated to, maybe they can reenter society in a productive way. All of these are massive, massive issues. And I would never want anything that I say, as somebody who’s worked in this industry for my entire career to be misconstrued, to say that they that I was saying it’s fair. It’s not. It’s just like that particular point, you know, is what I. 

Scheer Well one reason we got some bipartisan support for reform of the criminal justice system is that, and it happened really around Nixon with some Republicans going to jail who were in in an administration that was tough on crime. And then suddenly they’re on the other side. 

Fabricant Right. Watch the Trump like folks complaining about the criminal justice system soon. 

Scheer The reality of it and how unfair. But I mean, I want to end on this because, you know, the delusion perhaps is some people would be, okay, we have DNA, we have the Innocence Project, we have good, earnest lawyers. We have a pro-bono system where even some big corporations do it. And then you look at this figure, let’s end on this figure, 2.3 million people in the prison system. Right. And that translates into a much larger percentage of the population that is affected by this. And it also is racially focused. Right. And in terms of minorities and income and so forth. And so I just want to challenge in a few minutes here, we’ll take a few minutes more that all we have to do is have okay, I’ll give a contribution to the Innocence Project, which people should do. I’m not disputing that. Oh, and we have DNA testing. So real science is coming in. And I am overwhelmed with the sense of I mean, because I’ve looked into this particular case, I don’t want to take time here for that now.

But I’ve looked into other cases where cynicism rules, including the political class, you know, and, you know, I remember our former governor, Jerry Brown, and, you know, good fellow in many ways. But, you know, in the particular case I was talking about, in other cases, he said, well, I would have to believe that the district attorney or some people in four or five people all conspired to convict this person. But in your book, you show, whether by accident or political opportunism or whatever, you got people out who other people who are charged with protecting us were perfectly willing to lock up, throw away the key, and maybe even kill them. Why don’t we focus on that a bit because the assumption all here is okay, if we just have some you know, the DNA means that we still have basically good actors. But what if they’re playing with DNA? What if they try to block getting to take what you know? 

Fabricant And you know, what I tried to do, the cases that I, these are my clients cases and their lives, and I thank them for allowing me to share them, is they’re exceptional cases. They’re that’s why they’re in the book right in and I wrote about three of my clients and their decades long struggles. And then in parallel to their stories, what I tried to do is we then the changes that were that the criminal justice system was undergoing, at the same time, efforts at reform, some of the problems that were becoming worse. What became clear to me through this narrative and through my work is that the system is really designed and working exactly as it is intended to work, and that is to have plea bargains rule, which is like 95% of cases, and that there be no review of this process. And DNA is, you know, I get very frustrated when people point to DNA exonerations as some sort of like an error rate for the justice system. Right. You know, which is nonsense given all the obstacles are for overturning it, even when you have great DNA evidence.

But the reality is, is one is that overwhelmingly cases are are pled out. And two, is that DNA is available, maybe 5-10% of criminal cases. You think about, you know, these are the reason that almost all of our cases are rapes and murders at the Innocence Project is because those are intimate, serious crimes where DNA and biological evidence is much more likely to be collected and stored and tested. You think about every burglary, every robbery, every drive by shooting, every trespass, every, you know, all these other crimes, which are the bread and butter of our legal system. There’s no DNA testing. There are no witnesses. You know, these are you know, if there are witnesses, there is, what we know from DNA testing, is that they’re eyewitness identifications are very unreliable. So there are huge problems that DNA is never going to be able to fix. 

Scheer And DNA can be manipulated and can be tampered as well as discovered. Okay. The book is Junk Science and the American Criminal Justice System, as they say. And there are a number of very famous writers and others recommend this book. And I shouldn’t have said it’s a joy to read it. Well, people like to read about murders, stories and detective stories. They do. This is a detective story that really tells you how the whole thing works. So I want to know, you know, let me say, I have a conflict of interest here. I was once published by your publisher, Akashic Press, run by an ex rock and roller, Johnny Temple. I have great respect for him.

Fabricant Same here. 

Scheer I have a connection. Here. Let me. Okay. So the book is available, it’s out the paperback. It’s more affordable and was very well received the first time around. And I want to thank Laura Kondourajian, I’m finally getting this right, Laura Kondourajian has been great at posting these shows and KCRW, the NPR station in Santa Monica, and Christopher Ho over there at the station helping doing this. Joshua Scheer, our executive producer, Diego Ramos, who writes the introduction, and Max Jones, who does the video podcast, which we have up on YouTube. And I want to thank the JKW Foundation in memory of a great journalist, Jean Stein, for giving creating some opportunity for us to do this and actually have a little bit of funding. See you next week with another edition of Scheer Intelligence. 

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