Criminal jury trials, like football games, many times are decided on momentum. When one side or the other gets enough traction against the other side, the dynamics of the game shifts and the other side is at a distinct disadvantage. Sometimes that momentum can shift because one side does something unfair and the referee or judge fails to make the right ruling on the play. Unlike football games which are staged for amusement, a change in momentum based on an unfair ruling in a criminal trial can result in the destruction of person’s life.
So it was in the trial of Steven Avery whose case is popularized right now on Netflix’s “Making a Murderer.” Dean Strang, and co-counsel Jerry Buting, worked tirelessly to fight charges that Avery murdered photographer Teresa Halbach in 2005. Mr. Strang has explained that momentum shift in favor of the prosecution occurred when an FBI test that helped to discredit the defense’s argument that evidence had been planted to frame their client.
The key to the theory of the defense was that Manitowoc County police officers had planted Avery’s blood found in Halbach’s car. The defense cited a vial of Avery’s blood from his previous trial that appeared to be tampered with in an evidence locker. In response, the prosecution brought in an FBI analyst who had tested the blood smears for EDTA, a chemical used to keep blood samples in liquid form (rather than coagulating) inside test tubes for use in future testing. Any presence of EDTA in the blood smears in Halbach’s car would prove that it came from a test tube and not from Avery himself bleeding. The FBI analyst, Mark Lebow testified that the test did not detect EDTA, and so he believed the blood smears came directly from Avery’s body.
So what was unfair about that procedure? Before that question is answered, we should pause to consider why certain procedures are used during a criminal case. Justice Brennan’s observation years ago continues to ring true today: “many in our society, laymen and lawyers alike, show impatience with any and all procedures which appear to hamper the task of law enforcement agencies to bring an accused to conviction. More people than not resent the privilege against self incrimination. Confessions extracted by prolonged interrogation of an accused may concern judges and criminologists, but trouble little the consciences of others. Police without a search or arrest warrant have broken down a suspect’s door and provoked little public outcry, if perchance they stumbled on evidence which eventually proved his guilt.” William J. Brennan Jr., The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L. Q. 279, 280 (1963).
Those who show impatience with criminal procedures forget that in the criminal justice system the government has a monopoly in which participation is compelled.” Maher v. Roe, 432 U.S. 464, 471 n. 6 (1977). This means that “[w]hen society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. United States, 369 U.S. 438, 449 (1962). Clearly, the history of American freedom is, in no small measure, the history of procedure. Malinski v. New York, 324 U.S. 401, 414 (1945) (Justice Frankfurter, concurring). See also, In re Gault, 387 U.S. 1, 18 (1967) (“unbridled discretion . . . is frequently a poor substitute for principle and procedure.”).
But what of the cry that a departure from a sober criminal law procedure is necessary; that we need to “get tough on crime.” By enshrining criminal procedures in the Constitution were the Founding Fathers “soft on crime?” Of course not. Our Founding Fathers had just fought a war against a long train of governmental abuses and usurpations, resulting in their being ruled by absolute despotism. They feared it happening again in America. So they gave us the Constitution to protect us when we were compelled to participate in the criminal justice system.
Constitutional rights are “checks upon government-to guarantee that government shall remain the servant and not the master of us all . . . what distinguishes our criminal law from that of totalitarian regimes is really only this: that however desirable the ends, long and bloody history taught us that there are some police tactics that are not safely tolerated in a free society; in addition to the question whether our free society can morally tolerate them, such toleration could only end up in making government the oppressor of each and every one of us.” The Criminal Prosecution: Sporting Event or Quest for Truth?, at 280.
So what was wrong with the FBI analyst who testified about EDTA? The defense was handed the report during trial and the analyst was then allowed to immediately testify at trial with no notice to the defense. It was impossible for the defense to do independent testing, or even present an intelligent response. The law required the prosecution to disclose this evidence in advance to the defense before trial, not at trial. Pretrial disclosure promotes cost effective resolution of cases by defendant’s knowing the evidence against them and pretrial disclosure enhances the reliability of any jury trial if one is held. The defense in Avery did have a lab auditor testify about problems with the EDTA testing procedures but this is no substitute for an analyst to do independent testing. The problem with the EDTA testing at the Avery trial can be found at “Some Clarity to Some of the Evidence in “Making a Murderer” http://chadsteele.blogspot.com/2016/01/some-clarity-to-some-of-evidence-in.html#comment-form. This does not even take into account how the FBI lab itself has your years produced unreliable forensic work leading to convictions of innocent people. See, e.g., Spencer S. Hsu, “Convicted defendants left uninformed of forensic flaws found by Justice Dept.” https://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html..
Moreover, the public at large seems unaware that The National Research Council of the National Academies of Science, Engineering and Medicine has released its report on the state of forensic science in the United States. Finding an inconsistent system rife with “serious deficiencies,” lacking practitioner and laboratory independence, standards, oversight, and certification, the NRC called for major reforms, including the establishment of a wholly independent federal agency, the National Institute of Forensic Science (NIFS), to address the manifold problems with the current science and system. Critically, with the exception of nuclear DNA analysis, “no forensic method has been rigorously shown to be able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” ‘BADLY FRAGMENTED’ FORENSIC SCIENCE SYSTEM NEEDS OVERHAUL; EVIDENCE TO SUPPORT RELIABILITY OF MANY TECHNIQUES IS LACKING,”http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589