By Bob Needham
Michigan Law
Although the US Supreme Court denied the appeal of an Alabama man convicted of murder on discredited scientific evidence, the case can still serve as a catalyst for positive change, according to Clinical Assistant Professor of Law Imran Syed, who co-directs the Michigan Innocence Clinic and teaches a class on forensic science at Michigan Law.
The Court recently declined to hear McCrory v. Alabama, in which a man was convicted of murder largely on bite mark evidence now considered “junk science.” Yet Associate Justice Sonia Sotomayor — while concurring in the decision not to hear the case — took the opportunity to highlight the issue of wrongful convictions based on forensic science later found to be faulty.
In her statement, Sotomayor cited a 2016 article by Syed and Caitlin Plummer, a former fellow in the Michigan Innocence Clinic, highlighting the difficulties of such cases. “Hundreds if not thousands of innocent people may currently be incarcerated despite a modern consensus that the central piece of evidence at their trials lacked any scientific basis,” Sotomayor wrote.
Syed recently answered five questions about the issue:
—————
1. What is the core issue that your 2016 article highlighted and that Justice Sotomayor cited?
Justice Sotomayor’s opinion, from top to bottom, captures the exact issue that we set out to try to resolve in that article: It’s a very difficult situation, where someone is convicted based on scientific evidence, but then later on, the science undergirding their conviction is repudiated. What can be done in that situation is a question with surprisingly few answers.
There are safeguards today for preventing bad science from getting into the courtroom. However, there’s much less out there about what to do when someone is convicted based on evidence that might have been good science at the time, but today it would be considered junk science. The law has not really tackled this issue until fairly recently because of the fundamental difference in how “truth” is perceived in science versus in the law. In science, research continues, and what is the best or correct conclusion today might change in a few years. But in the law, there has long been a big emphasis on the finality of judgments. This creates somewhat unique problems with immense consequences in terms of miscarriages of justice. That’s been the focus of my forensic science writing, and it’s a large part of what I teach in the Forensic Science and the Law seminar at the Law School. While it’s a tough problem, the lesson I try to convey is that if we’re competent and creative enough as advocates, we can find pathways in just about every case.
—————
2. What progress has been made on this issue since your article was published?
As Justice Sotomayor said, while federal courts may be limited in what they’re able to do, all sorts of reform can arise at the state level. The opinion noted that six states now have court rules or laws that allow a path back into court if the science underlying their conviction changes. One of those is Michigan, and I’m very proud to say that my Michigan Innocence Clinic colleagues and I were the ones who drafted the language of that rule. We presented it to the state Supreme Court, which put the amendment through its usual process of public comment and hearings before implementing it in late 2018. Also, in 2021, a forensic science task force was created through an executive order by Governor Whitmer. That task force operated for a couple of years and produced some important recommendations, which are now in the process of being implemented.
And while some places are ahead of others, there has been similar progress in states across the country. People are doing exactly what Justice Sotomayor’s opinion talks about, which is not waiting for the US Supreme Court to make some monumental decision before they start to address this important problem. If we’ve got people who are convicted on questionable science, we have to come together to rectify those errors through litigation in state court or through task forces, conviction integrity units, or executive clemency. In many instances, we will find that state standards aren’t good enough, and we have to work to improve those.
—————
3. Is this state-by-state approach the most effective way to address the problem?
Maybe not, but it’s what we have for now. The federal government was once at the forefront of this issue. A 2009 report from the National Academies of Science commented on how problematic forensic science across the country was, and that led to the creation of a National Forensic Science Commission in 2013. That commission brought together leading scientists, academics, lawyers, and judges and it put out some important recommended reforms. Toward the end of the Obama administration in 2016, the President’s Council of Advisors for Science and Technology put out another report, which again said that while some progress had been made, there was a lot more to do to make forensic science credible enough to be relied upon in court. But with the federal administration changing at the time, there wasn’t a lot of hope that the federal government would take the lead on any further reforms. The states had to pick up the charge from there, and many did.
Those of us who litigate post-conviction criminal cases have had to accept over the past 20 to 30 years that the pathway to getting relief in federal courts is incredibly narrow and has gotten progressively narrower. That means that in the majority of cases, if there’s going to be any action, it is going to be on the state level.
I think that will work for many states, but as we’ve seen with other civil rights reforms, some states will not come along. That probably becomes the time when the federal courts can step in. They would have to decide if the rights involved in such convictions based on shifted science are fundamental enough to implicate constitutional due process. The core issue of how due process applies to the wrongful conviction and continued incarceration of an innocent person is one that the US Supreme Court has repeatedly sidestepped so far.
—————
4. Other than more states taking up the issue, are there other actions that can be taken?
A lot of this is about preventing these mistakes from continuing. When it comes to scientific evidence, lawyers tend to set aside their inquisitiveness and their adversarialness. Lawyers are happy to fight about things that are in their wheelhouse, but I think they are very afraid of having a conversation about things that they don’t understand. The vast majority of lawyers are not scientists, and I’ve seen an unfortunate tendency to just ignore the forensic science aspect of their cases.
So the biggest change I would want to see is for lawyers to take the inquisitiveness and advocacy they bring to the table on familiar legal concepts, and use that in forensic science cases as well. Don’t assume the supposed science that is being offered by the other side is right; our system depends on each side double-checking the evidence. Lawyers don’t have to become experts to make a difference: they have to consult experts and then put the knowledge they gain in context with what they know about the relevant laws and legal standards to decide what is best for their client in any given case.
—————
5. What happens to Mr. McCrory now, and others like him? Is there any other recourse?
I don’t know that specific case or Alabama law well enough to say what he could do, but in similar cases there are often many possibilities. There could be more litigation at the state court level, especially if there is new evidence, but this depends on specific state rules. There can be reviews by conviction integrity units or forensic science commissions. And of course, there can always be clemency from the governor.
The bottom line is that we simply shouldn’t stand for someone being convicted based on junk science. I’m hoping that Justice Sotomayor’s opinion brings broader attention to this issue. Federal courts have essentially said their hands are tied when they encounter this really important situation of someone who has been convicted on junk science and might be innocent. The extent to which courts sometimes find their hands tied should be troubling to us all. There are lawyers and policy people in every state working on these reforms, and I hope this opinion will make their jobs a little bit easier going forward.
Michigan Law
Although the US Supreme Court denied the appeal of an Alabama man convicted of murder on discredited scientific evidence, the case can still serve as a catalyst for positive change, according to Clinical Assistant Professor of Law Imran Syed, who co-directs the Michigan Innocence Clinic and teaches a class on forensic science at Michigan Law.
The Court recently declined to hear McCrory v. Alabama, in which a man was convicted of murder largely on bite mark evidence now considered “junk science.” Yet Associate Justice Sonia Sotomayor — while concurring in the decision not to hear the case — took the opportunity to highlight the issue of wrongful convictions based on forensic science later found to be faulty.
In her statement, Sotomayor cited a 2016 article by Syed and Caitlin Plummer, a former fellow in the Michigan Innocence Clinic, highlighting the difficulties of such cases. “Hundreds if not thousands of innocent people may currently be incarcerated despite a modern consensus that the central piece of evidence at their trials lacked any scientific basis,” Sotomayor wrote.
Syed recently answered five questions about the issue:
—————
1. What is the core issue that your 2016 article highlighted and that Justice Sotomayor cited?
Justice Sotomayor’s opinion, from top to bottom, captures the exact issue that we set out to try to resolve in that article: It’s a very difficult situation, where someone is convicted based on scientific evidence, but then later on, the science undergirding their conviction is repudiated. What can be done in that situation is a question with surprisingly few answers.
There are safeguards today for preventing bad science from getting into the courtroom. However, there’s much less out there about what to do when someone is convicted based on evidence that might have been good science at the time, but today it would be considered junk science. The law has not really tackled this issue until fairly recently because of the fundamental difference in how “truth” is perceived in science versus in the law. In science, research continues, and what is the best or correct conclusion today might change in a few years. But in the law, there has long been a big emphasis on the finality of judgments. This creates somewhat unique problems with immense consequences in terms of miscarriages of justice. That’s been the focus of my forensic science writing, and it’s a large part of what I teach in the Forensic Science and the Law seminar at the Law School. While it’s a tough problem, the lesson I try to convey is that if we’re competent and creative enough as advocates, we can find pathways in just about every case.
—————
2. What progress has been made on this issue since your article was published?
As Justice Sotomayor said, while federal courts may be limited in what they’re able to do, all sorts of reform can arise at the state level. The opinion noted that six states now have court rules or laws that allow a path back into court if the science underlying their conviction changes. One of those is Michigan, and I’m very proud to say that my Michigan Innocence Clinic colleagues and I were the ones who drafted the language of that rule. We presented it to the state Supreme Court, which put the amendment through its usual process of public comment and hearings before implementing it in late 2018. Also, in 2021, a forensic science task force was created through an executive order by Governor Whitmer. That task force operated for a couple of years and produced some important recommendations, which are now in the process of being implemented.
And while some places are ahead of others, there has been similar progress in states across the country. People are doing exactly what Justice Sotomayor’s opinion talks about, which is not waiting for the US Supreme Court to make some monumental decision before they start to address this important problem. If we’ve got people who are convicted on questionable science, we have to come together to rectify those errors through litigation in state court or through task forces, conviction integrity units, or executive clemency. In many instances, we will find that state standards aren’t good enough, and we have to work to improve those.
—————
3. Is this state-by-state approach the most effective way to address the problem?
Maybe not, but it’s what we have for now. The federal government was once at the forefront of this issue. A 2009 report from the National Academies of Science commented on how problematic forensic science across the country was, and that led to the creation of a National Forensic Science Commission in 2013. That commission brought together leading scientists, academics, lawyers, and judges and it put out some important recommended reforms. Toward the end of the Obama administration in 2016, the President’s Council of Advisors for Science and Technology put out another report, which again said that while some progress had been made, there was a lot more to do to make forensic science credible enough to be relied upon in court. But with the federal administration changing at the time, there wasn’t a lot of hope that the federal government would take the lead on any further reforms. The states had to pick up the charge from there, and many did.
Those of us who litigate post-conviction criminal cases have had to accept over the past 20 to 30 years that the pathway to getting relief in federal courts is incredibly narrow and has gotten progressively narrower. That means that in the majority of cases, if there’s going to be any action, it is going to be on the state level.
I think that will work for many states, but as we’ve seen with other civil rights reforms, some states will not come along. That probably becomes the time when the federal courts can step in. They would have to decide if the rights involved in such convictions based on shifted science are fundamental enough to implicate constitutional due process. The core issue of how due process applies to the wrongful conviction and continued incarceration of an innocent person is one that the US Supreme Court has repeatedly sidestepped so far.
—————
4. Other than more states taking up the issue, are there other actions that can be taken?
A lot of this is about preventing these mistakes from continuing. When it comes to scientific evidence, lawyers tend to set aside their inquisitiveness and their adversarialness. Lawyers are happy to fight about things that are in their wheelhouse, but I think they are very afraid of having a conversation about things that they don’t understand. The vast majority of lawyers are not scientists, and I’ve seen an unfortunate tendency to just ignore the forensic science aspect of their cases.
So the biggest change I would want to see is for lawyers to take the inquisitiveness and advocacy they bring to the table on familiar legal concepts, and use that in forensic science cases as well. Don’t assume the supposed science that is being offered by the other side is right; our system depends on each side double-checking the evidence. Lawyers don’t have to become experts to make a difference: they have to consult experts and then put the knowledge they gain in context with what they know about the relevant laws and legal standards to decide what is best for their client in any given case.
—————
5. What happens to Mr. McCrory now, and others like him? Is there any other recourse?
I don’t know that specific case or Alabama law well enough to say what he could do, but in similar cases there are often many possibilities. There could be more litigation at the state court level, especially if there is new evidence, but this depends on specific state rules. There can be reviews by conviction integrity units or forensic science commissions. And of course, there can always be clemency from the governor.
The bottom line is that we simply shouldn’t stand for someone being convicted based on junk science. I’m hoping that Justice Sotomayor’s opinion brings broader attention to this issue. Federal courts have essentially said their hands are tied when they encounter this really important situation of someone who has been convicted on junk science and might be innocent. The extent to which courts sometimes find their hands tied should be troubling to us all. There are lawyers and policy people in every state working on these reforms, and I hope this opinion will make their jobs a little bit easier going forward.
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