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Faulty Forensics: Explained

Illustration by Hisashi Okawa

Faulty Forensics: Explained

In our Explainer series, Fair Punishment Project lawyers help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In 1992, three homemade bombs exploded in seemingly random locations around Colorado. When police later learned that sometime after the bombs went off, Jimmy Genrich had requested a copy of The Anarchist Cookbook from a bookstore, he became their top suspect. In a search of his house, they found no gunpowder or bomb-making materials, just some common household tools — pliers and wire cutters. They then sent those tools to their lab to see if they made markings or toolmarks similar to those found on the bombs.

At trial, forensic examiner John O’Neil matched the tools to all three bombs and, incredibly, to an earlier bomb from 1989 that analysts believed the same person had made — a bomb Genrich could not have made because he had an ironclad alibi. No research existed showing that tools such as wire cutters or pliers could leave unique markings, nor did studies show that examiners such as O’Neil could accurately match markings left by a known tool to those found in crime scene evidence. And yet O’Neil told the jury it was no problem, and that the marks “matched … to the exclusion of any other tool” in the world. Based on little other evidence, the jury convicted Genrich.

Twenty-five years later, the Innocence Project is challenging Genrich’s conviction and the scientific basis of this type of toolmark testimony, calling it “indefensible.” Meehan Crist and Tim Requarth / The Nation

There are literally hundreds of cases like this, where faulty forensic testimony has led to a wrongful conviction. And yet as scientists have questioned the reliability and validity of “pattern-matching” evidence — such as fingerprints, bite marks, and hair — prosecutors are digging in their heels and continuing to rely on it. In this explainer, we explore the state of pattern-matching evidence in criminal trials.

1. What is pattern-matching evidence?

In a pattern-matching, or “feature-comparison,” field of study, an examiner evaluates characteristics visible on evidence found at the crime scene — e.g., a fingerprint, a marking on a fired bullet (“toolmark”), handwriting on a note — and compares those features to a sample collected from a suspect. If the characteristics, or patterns, look the same, the examiner declares a match. Jennifer Friedman & Jessica Brand / Santa Clara Law Review

Typical pattern-matching fields include the analysis of latent fingerprints, microscopic hair, shoe prints and footwear, bite marks, firearms, and handwriting. “A Path Forward” / National Academy of Sciences”] Examiners in almost every pattern-matching field follow a method of analysis called “ACE-V” (Analyze a sample, Compare, Evaluate — Verify). Jamie Walvisch /

Here are two common types of pattern-matching evidence:

Fingerprints: Fingerprint analysts try to match a print found at the crime scene (a “latent” print) to a suspect’s print. They look at features on the latent print — the way ridges start, stop, and flow, for example — and note those they believe are “significant.” Analysts then compare those features to ones identified on the suspect print and determine whether there is sufficient similarity between the two. (Notably, some analysts will deviate from this method and look at the latent print alongside the suspect’s print before deciding which characteristics are important.) President’s Council of Advisors on Science and Technology

Firearms: Firearm examiners try to determine if shell casings or bullets found at a crime scene are fired from a particular gun. They examine the collected bullets through a microscope, mark down characteristics, and compare these to characteristics on bullets test-fired from a known gun. If there is sufficient similarity, they declare a match. “A Path Forward” / National Academy of Sciences”]

2. What’s wrong with pattern-matching evidence?

There are a number of reasons pattern-matching evidence is deeply flawed, experts have found. Here are just a few:

These conclusions are based on widely held, but unproven, assumptions.

The idea that handwriting, fingerprints, shoeprints, hair, or even markings left by a particular gun, are unique is fundamental to forensic science. The finding of a conclusive match, between two fingerprints for example, is known as “individualization.” Kelly Servick / Science Mag

However, despite this common assumption, examiners actually have no credible evidence or proof that hair, bullet markings, or things like partial fingerprints are unique — in any of these pattern matching fields.

In February 2018, The Nation conducted a comprehensive study of forensic pattern-matching analysis (referenced earlier in this explainer, in relation to Jimmy Genrich). The study revealed “a startling lack of scientific support for forensic pattern-matching techniques.” Disturbingly, the authors also described “a legal system that failed to separate nonsense from science in capital cases; and consensus among prosecutors all the way up to the attorney general that scientifically dubious forensic techniques should not only be protected, but expanded.” Meehan Crist and Tim Requarth / The Nation

Similarly, no studies show that one person’s bite mark is unique and therefore different from everyone else’s bite mark in the world.Radley Balko / Washington Post No studies show that all markings left on bullets by guns are unique. Stephen Cooper / HuffPost And no studies show that one person’s fingerprints — unless perhaps a completely perfect, fully rolled print — are completely different than everyone else’s fingerprints. It’s just assumed. Sarah Knapton / The Telegraph

Examiners often don’t actually know whether certain features they rely upon to declare a “match” are unique or even rare.

On any given Air Jordan sneaker, there are a certain number of shared characteristics: a swoosh mark, a tread put into the soles. That may also be true of handwriting. Many of us were taught to write cursive by tracing over letters, after all, so it stands to reason that some of us may write in similar ways. But examiners do not know how rare certain features are, like a high arch in a cursive “r” or crossing one’s sevens. They therefore can’t tell you how important, or discriminating, it is when they see shared characteristics between handwriting samples. The same may be true of characteristics on fingerprints, marks left by teeth, and the like. Jonathan Jones / Frontline

There are no objective standards to guide how examiners reach their conclusions.

How many characteristics must be shared before an examiner can definitively declare “a match”? It is entirely up to the discretion of the individual examiner, based on what the examiner usually chalks up to “training and experience.” Think Goldilocks. Once she determines the number that is “just right,” she can pick. “In some ways, the process is no more complicated than a child’s picture-matching game,” wrote the authors of one recent article. Liliana Segura & Jordan Smith / The Intercept This is true for every pattern-matching field — it’s almost entirely subjective. “A Path Forward” / National Academy of Sciences”]

Unsurprisingly, this can lead to inconsistent and incompatible conclusions.

In Davenport, Iowa, police searching a murder crime scene found a fingerprint on a blood-soaked cigarette box. That print formed the evidence against 29-year-old Chad Enderle. At trial, prosecutors pointed to seven points of similarity between the crime scene print and Enderle’s print to declare a match. But was that enough? Several experts hired by the newspaper to cover the case said they could not draw any conclusions about whether it matched Enderle. But the defense lawyer didn’t call an expert and the jury convicted Enderle. Susan Du, Stephanie Haines, Gideon Resnick & Tori Simkovic / The Quad-City Times

3. Why faulty forensics persist

Despite countless errors like these, experts continue to use these flawed methods and prosecutors still rely on their results. Here’s why:

Experts are often overconfident in their abilities to declare a match.

These fields have not established an “error rate” — an estimate of how often examiners erroneously declare a “match,” or how often they find something inconclusive or a non-match when the items are from the same source. Even if your hair or fingerprints are “unique,” if experts can’t accurately declare a match, that matters. Brandon L. Garrett / The Baffler

Analysts nonetheless give very confident-sounding conclusions — and juries often believe them wholesale. “To a reasonable degree of scientific certainty” — that’s what analysts usually say when they declare a match, and it sounds good. But it actually has no real meaning. As John Oliver explained on his HBO show: “It’s one of those terms like basic or trill that has no commonly understood definition.” John Oliver / Last Week Tonight Yet, in trial after trial, jurors find these questionable conclusions extremely persuasive. Radley Balko / Washington Post

Why did jurors wrongfully convict Santae Tribble of murdering a Washington, D.C., taxi driver, despite his rock-solid alibi supported by witness testimony? “The main evidence was the hair in the stocking cap,” a juror told reporters. “That’s what the jury based everything on.” Henry Gass / Christian Science Monitor

But it was someone else’s hair. Twenty-eight years later, after Tribble had served his entire sentence, DNA evidence excluded him as the source of the hair. Incredibly, DNA analysis established that one of the crime scene hairs, initially identified by an examiner as a human hair, belonged to a dog. Spencer S. Hsu / Washington Post

Labs are not independent — and that can lead to biased decision-making.

Crime labs are often embedded in police departments, with the head of the lab reporting to the head of the police department. “A Path Forward” / National Academy of Sciences In some places, prosecutors write lab workers’ performance reviews. Radley Balko / HuffPost This gives lab workers an incentive to produce results favorable to the government. Research has also shown that lab technicians can be influenced by details of the case and what they expect to find, a phenomenon known as “cognitive bias.” Sue Russell / Pacific Standard

Lab workers may also have a financial motive. According to a 2013 study, many crime labs across the country received money for each conviction they helped obtain. At the time, statutes in Florida and North Carolina provided remuneration only “upon conviction”; Alabama, Arizona, California, Missouri, Wisconsin, Tennessee, New Mexico, Kentucky, New Jersey, and Virginia had similar fee-based systems. Jordan Michael Smith / Business Insider

In North Carolina, a state-run crime lab produced a training manual that instructed analysts to consider defendants and their attorneys as enemies and warned of “defense whores” — experts hired by defense attorneys. Radley Balko / Reason

Courts are complicit

Despite its flaws, judges regularly allow prosecutors to admit forensic evidence. In place of hearings, many take “judicial notice” of the field’s reliability, accepting as fact that the field is accurate without requiring the government to prove it. As Radley Balko from the Washington Postwrites: “Judges continue to allow practitioners of these other fields to testify even after the scientific community has discredited them, and even after DNA testing has exonerated people who were convicted, because practitioners from those fields told jurors that the defendant and only the defendant could have committed the crime.” Radley Balko / Washington Post

In Blair County, Pennsylvania, in 2017, Judge Jolene G. Kopriva ruled that prosecutors could present bite mark testimony in a murder trial. Kopriva didn’t even hold an evidentiary hearing to examine whether it’s a reliable science, notwithstanding the mounting criticism of the field. Why? Because courts have always admitted it. Kay Stephens / Altoona Mirror

4. Getting it wrong

Not surprisingly, flawed evidence leads to flawed outcomes. According to the Innocence Project, faulty forensic testimony has contributed to 46 percent of all wrongful convictions in cases with subsequent DNA exonerations. Innocence Project Similarly, UVA Law Professor Brandon Garrett examined legal documents and trial transcripts for the first 250 DNA exonerees, and discovered that more than half had cases tainted by “invalid, unreliable, concealed, or erroneous forensic evidence.” Beth Schwartzapfel / Newsweek

Hair analysis

In 2015, the FBI admitted that its own examiners presented flawed microscopic hair comparison testimony in over 95 percent of cases over a two-decade span. Thirty-three people had received the death penalty in those cases, and nine were executed. Pema Levy / Mother Jones Kirk Odom, for example, was wrongfully imprisoned for 22 years because of hair evidence. Convicted of a 1981 rape and robbery, he served his entire term in prison before DNA evidence exonerated him in 2012. Spencer S. Hsu / Washington Post

In 1985, in Springfield, Massachusetts, testimony from a hair matching “expert” put George Perrot in prison — where he stayed for 30 years — for a rape he did not commit. The 78-year-old victim said Perrot was not the assailant, because, unlike the rapist, he had a beard. Nonetheless, the prosecution moved forward on the basis of a single hair found at the scene that the examiner claimed could only match Perrot. Three decades later, a court reversed the conviction after finding no scientific basis for a claim that a specific person is the only possible source of a hair. Prosecutors have dropped the charges. Danny McDonald / Boston Globe

In 1982, police in Nampa, Idaho, charged Charles Fain with the rape and murder of a 9-year-old girl. The government claimed Fain’s hair matched hair discovered at the crime scene. A jury convicted him and sentenced him to death. DNA testing later exonerated him, and, in 2001, after he’d spent two decades in prison, a judge overturned his conviction. Raymond Bonner / New York Times

Bite mark analysis

In 1999, 26 members of the American Board of Forensic Odontologyparticipated in an informal proficiency test regarding their work on bite marks. They were given seven sets of dental molds and asked to match them to four bite marks from real cases. They reached erroneous results 63 percent of the time. 60 Minutes One bite mark study has shown that forensic dentists can’t even determine if a bite mark is caused by human teeth. Pema Levy / Mother Jones

That didn’t keep bite mark “expert” Michael West from testifying in trial after trial. In 1994, West testified that the bite mark pattern found on an 84-year-old victim’s body matched Eddie Lee Howard’s teeth. Based largely on West’s testimony, the jury convicted Howard and sentenced him to death. Experts have since called bite mark testimony “scientifically unreliable.” And sure enough, 14 years later, DNA testing on the knife believed to be the murder weapon excluded Howard as a contributor. Yet the state continues to argue that Howard’s conviction should be upheld on the basis of West’s testimony. Radley Balko / Washington Post

West, who in 1994 was suspended from the American Board of Forensic Odontology and basically forced to resign in 2006, is at least partially responsible for several other wrongful convictions as well. Radley Balko / Washington Post

West himself has even discredited his own testimony, now stating that he “no longer believe[s] in bite mark analysis. I don’t think it should be used in court.” Innocence Project

Fingerprint analysis

The FBI has found that fingerprint examiners could have an error rate, or false match call, as high as 1 in 306 cases, with another study indicating examiners get it wrong as often as 1 in every 18 cases. Jordan Smith / The Intercept A third study of 169 fingerprint examiners found a 7.5 percent false negative rate (where examiners erroneously found prints came from two different people), and a 0.1 percent false positive rate. Kelly Servick / Science Mag

In 2004, police accused American attorney Brandon Mayfield of the notorious Madrid train bombing after experts claimed his fingerprint matched one found on a bag of detonators. Eventually, four experts agreed with this finding. Police arrested him and detained him for two weeks until the police realized their mistake and were forced to release him. Steve Pokin / Springfield News-Leader

In Boston, Stephan Cowans was convicted, in part on fingerprint evidence, in the 1997 shooting of a police officer. But seven years later, DNA evidence exonerated him and an examiner stated that the match was faulty. Innocence Project

A 2012 review of the St. Paul, Minnesota, crime lab found that over 40 percent of fingerprint cases had “seriously deficient work.” And “[d]ue to the complete lack of annotation of actions taken during the original examination process, it is difficult to determine the examination processes, including what work was attempted or accomplished.” Madeleine Baran / MPR News

Firearm analysis

According to one study, firearm examiners may have a false positive rate as high as 2.2 percent, meaning analysts may erroneously declare a match as frequently as 1 in 46 times. This is a far cry from the “near perfect” accuracy that examiners often claim. President’s Council of Advisors on Science and Technology

In 1993, a jury convicted Patrick Pursley of murder on the basis of firearms testimony. The experts declared that casings and bullets found on the scene matched a gun linked to Pursley “to the exclusion of all other firearms.” Years later, an expert for the state agreed that the examiner should never have made such a definitive statement. Instead, he should have stated that Pursley’s gun “couldn’t be eliminated.” In addition, the defense’s experts found that Pursley’s gun was not the source of the crime scene evidence. Digital imaging supported the defense. Waiting for Justice / Northwestern Law Bluhm Legal Clinic In 2017, a court granted Pursley a new trial. Georgette Braun / Rockford Register Star

Rethinking faulty forensics

Scientists from across the country are calling for the justice system to rethink its willingness to admit pattern-matching evidence.

In 2009, the National Research Council of the National Academy of Science released a groundbreaking report concluding that forensic science methods “typically lack mandatory and enforceable standards, founded on rigorous research and testing, certification requirements, and accreditation programs.” Peter Neufeld / New York Times

In 2016, the President’s Council of Advisors on Science and Technology (PCAST), a group of pre-eminent scientists, issued a scathing report on pattern-matching evidence. The report concluded that most of the field lacked “scientific validity” — i.e., research showing examiners could accurately and reliably do their jobs. Jordan Smith / The Intercept Until the field conducted better research proving its accuracy, the Council stated that forensic science had no place in the American courtroom. The study found that, regarding bite mark analysis, the error rate was so high that resources shouldn’t be wasted to attempt to show it can be used accurately. Radley Balko / Washington Post

After the PCAST report came out, then-Attorney General Loretta Lynch, citing no studies, stated emphatically that “when used properly, forensic science evidence helps juries identify the guilty and clear the innocent.” Jordan Smith / The Intercept “We appreciate [PCAST’s] contribution to the field of scientific inquiry,” Lynch said, “[but] the department will not be adopting the recommendations related to the admissibility of forensic science evidence.” Radley Balko / Washington Post

The National District Attorneys Association (NDAA) called the PCAST report “scientifically irresponsible.” Jessica Pishko / The Nation “Adopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial,” the association noted. Rebecca McCray / Take Part

The NDAA also wrote that PCAST “clearly and obviously disregard[ed] large bodies of scientific evidence … and rel[ied], at times, on unreliable and discredited research.” But when PCAST sent out a subsequent request for additional studies, neither the NDAA nor the Department of Justice identified any. PCAST Addendum

This problem is getting worse under the current administration. Attorney General Jeff Sessions has disbanded the National Commission on Forensic Science, formed to improve both the study and use of forensic science, and which had issued over 40 consensus recommendation documents to improve forensic science. Suzanne Bell / Slate He then developed a DOJ Task Force on Crime Reduction and Public Safety, tasked with “support[ing] law enforcement” and “restor[ing] public safety.” Pema Levy / Mother Jones

But there are also new attempts to rein in the use of disproven forensic methods. In Texasthe Forensic Science Commission has called for a ban on bite marks. “I think pretty much everybody agrees that there is no scientific basis for a statistical probability associated with a bite mark,” said Dr. Henry Kessler, chair of the subcommittee on bite mark analysis. Meagan Flynn / Houston Press

A bill before the Virginia General Assembly, now carried over until 2019, would provide individuals convicted on now-discredited forensic science a legal avenue to contest their convictions. The bill is modeled after similar legislation enacted in Texas and California. The Virginia Commonwealth’s Attorneys Association opposes the legislation, arguing: “It allows all sorts of opportunities to ‘game’ the system.” Frank Green / Richmond Times-Dispatch

Meanwhile, at least one judge has recognized the danger of forensic expert testimony. In a 2016 concurrence, Judge Catherine Easterly of the D.C. Court of Appeals lambasted expert testimony about toolmark matching: “As matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic: it reflects nothing more than the individual’s foundationless faith in what he believes to be true. This is not evidence on which we can in good conscience rely, particularly in criminal cases … [T]he District of Columbia courts must bar the admission of these certainty statements, whether or not the government has a policy that prohibits their elicitation. We cannot be complicit in their use.” Spencer S. Hsu / Washington Post

Louisiana Held a Man in Jail for Over 8 Years Without Ever Convicting Him of a Crime

Louisiana Held a Man in Jail for Over 8 Years Without Ever Convicting Him of a Crime

In 2010 Democrats controlled the House, Senate, and presidency. Barack Obama was just heading into his second year in office. Social media was basically brand new. Adele had just won the Grammy for Best New Artist the year before. And millions of people in the United States had a naive hopefulness about the future of the country.

That February, over eight years ago, police in the New Orleans neighborhood of Carrollton raided a home where they said a 43-year-old man named Kevin Smith lived. Police claimed that they found small baggies of cocaine in a safe in the home—according to Smith’s attorney, however, Smith did not actually reside at this address. But he was arrested on drug charges nonetheless. Because of a previous conviction, the DA’s office had the ability—even though Smith was just facing a nonviolent drug charge—to prosecute him under a repeat felony statute in the state that would lead to up to 20 years in prison.

That’s ugly and problematic, and it’s normal. Jails and prisons in the United States are full of nonviolent drug offenders who were given harsh sentences, including life in prison, once they were found guilty.

And that’s the rub.

Smith has never been convicted of the crime that he was arrested for.

Smith sat in jail for the rest of 2010 and all of 2011. He was locked up for all of 2012 because his defense requested continuances several times and court was closed due to Hurricane Isaac that fall. He sat in jail for all of 2013, 2014, and 2015. In 2014, after Smith had sat in jail for four years, prosecutors offered him a plea deal. They’d let him go on time served if he would just plead guilty.

But Smith refused. And that matters. He maintained that he did not have any cocaine and was not guilty of the crimes that police and prosecutors were accusing him of. Now, we’re talking about a man who’d just spent four years in jail and could potentially spend about 15 more if convicted.

But the madness continued. Without ever being convicted by a jury of his peers, local authorities kept Kevin Smith in jail anyway. He remained there for the rest of 2015, for all of 2016, then for all of 2017.

Then he finally got a break. On November 13, 2017, the judge in Smith’s case granted a defense motion to quash the indictment against him. Having been held in jail for nearly eight outrageous years without ever being convicted, it looked like Smith was finally going to get justice.

At that point, I forgot about the case. I read stories of his impending release, was disgusted that our justice system even had the power to incarcerate a man for years who had not even been convicted of a crime. I assumed that he had been released in time to get home for Thanksgiving and Christmas.

The case then disappeared from public view, but little did we know that the injustice continued.

Smith was not a free man. I had no idea until several days ago when his family and friends got my attention through comments on my Instagram page telling me that they saw me share his story last November and that he was still in jail. I asked them to email me and immediately got this reply.

Good Morning Mr. King!
Kevin is still incarcerated! He was released from Orleans Parish Prison, however the parole board is holding him until March 04, 2022. The Orleans Parish District Attorney was very sore that he was not convicted so Kevin believes that he has something to do with him being held on the parole end! He had been in jail since Feb 2010. Kevin is currently being held at the River Correctional Facility.

Had his case gone to trial? Had he been found guilty sometime between November and now? I asked his family and friends all of these questions and more, and each time they came back to tell me “no.” Smith had still not been found guilty of a crime.

But he was still being held in jail — this time at a private prison, River Correctional Facility, managed by LaSalle Corrections and a family that has gotten filthy rich off of jailing more people per capita than any state in the country.

How was this even possible? It appears that state officials claimed that Smith violated his parole by not properly changing his mailing address years ago, according to one of his former attorneys. Yes, I’m dead serious.

And his family says that Smith will serve out his parole in a correctional facility until 2022 when, according to the court docket, his parole expires.

“Simply put, the District Attorney was not able to convict him,” Martin Regan, one of Smith’s former attorneys, told me. “They dragged their feet and when they got to the parole board they brought people in who did not know the case. The parole board accepted the testimony of some unsworn witnesses who inaccurately presented the case. It was an injustice.”

Listen to me — I study injustice for a living. I’ve never seen anything so corrupt and outrageous in my life. This man is now going on his ninth year in jail without ever having been convicted for a crime. It appears that his body is being housed and used for profit in jail and for some type of vendetta from local officials.

Whatever the case, it’s an egregious injustice and we must all organize to make sure that Kevin Smith is released and that no such thing happens ever again.

More in Explainers

Meet The San Diego DA Who Seized On The Human Trafficking Panic to Become A Law Enforcement Superstar

San Diego County District Attorney Summer Stephan
Summer Stephan for DA / Facebook

Meet The San Diego DA Who Seized On The Human Trafficking Panic to Become A Law Enforcement Superstar

When veteran San Diego District Attorney Bonnie Dumanis announced her resignation during the spring of 2017 to run for a spot on the county’s Board of Supervisors, she was clear about who she wanted to finish her term and ultimately serve as San Diego’s next DA: her Chief Deputy Summer Stephan. Indeed, another former deputy district attorney said in an email obtained by the San Diego Union-Tribune that Dumanis envisioned a “smooth transition,” where Stephan would be gifted incumbency before having to face potential challengers in this June’s election.

In the years leading up to Dumanis’s resignation, Stephan — who was appointed interim DA in June 2017 — was a rising star at the office. Between 2005 and 2008, she was the chief of the San Diego DA’s Sex Crimes and Human Trafficking Division and in 2012 she was designated chief deputy DA. Since then, she has enjoyed support from local anti-trafficking groups and advocates, boosting her as an expert and leader, and formed alliances with national lobby groups like Demand Abolition. These groups are also united in pushing for tougher law enforcement action against trafficking — but with a focus on campaigning against sex work and cracking down on sex workers’ customers.

Stephan’s elevation as an anti-trafficking voice coincided with anti-trafficking groups’ efforts to put their issue in the spotlight. In October 2015 a headline-grabbing University of San Diego study declared that San Diego was home to up to 11,800 victims of human trafficking “per year” which appeared to vindicate Stephan’s trafficking focus. A joint press conference about the study featuring Stephan and the University of San Diego’s School of Peace Studies painted a devastating portrait of thousands of mostly young women whom gangs trafficked for sex. “I didn’t expect the number to be this high myself,” said Ami Carpenter, a co-author on the study, “But I’m fully confident in our methods.”

The study has since been used by anti-trafficking groups, such as the Alabaster Jar Project and even the Church of Scientology of San Diego, to make broad, authoritative claims about trafficking in San Diego County. But by April 2016, the Department of Justice had pushed the researchers to revise it significantly; the number of trafficking victims was pared down from an estimated range of 8,830 to 11,773 victims to an estimated range of 3,417 to 8,108 victims. But even the revised-down figure presents its own problems, said Dr. Anthony Marcus, chair of the anthropology department at John Jay College of the City University of New York, who has also conducted DOJ-funded research into trafficking. “Any time the range for a number is that wide — 3,417 to 8,108, much more than 100%,” Marcus told The Appeal, “it raises questions about how well the research can actually answer its own questions.” These limitations did not prevent groups that had coalesced around the issue of trafficking in San Diego to run with the study’s findings of a vast, hidden “industry” worth $810 million per year.

Jamie Gates speaking at an event on human trafficking organized by the San Diego Union-Tribune. This is a map of phone calls to a trafficking hotline.

Like many of her peers in law enforcement who have focused on fighting trafficking with arrests and prosecutions meant to disrupt sex work, Stephan believes there’s no meaningful difference between sex work and trafficking. “Just from being on the ground doing this work for a long time, even those people that tell you they are choosing this life, they were recruited at an early age,” Stephan told the Voice of San Diego earlier this month. “So in my head, you know, how do you really become free if this is all you know when you don’t have [an] education or any other line of work to sustain yourself?”

This view, that women who sell sex are incapable of making their own choices, also extends to San Diego law enforcement’s view of women in the sex trade as trafficking victims. “Most victims will not identify as a victim until they encounter law enforcement between 7–10 times,” Matt Blumenthal, a sergeant with the San Diego County Sheriff’s Department and a supervisor at the San Diego Human Trafficking Task Force (HTTF), wrote in a blog post for the anti-trafficking nonprofit Thorn. Until a “victim” accepted law enforcement intervention, Blumenthal continued, they would also be uncooperative with prosecutors.

Summer Stephan Trafficking Deck

Source document contributed to DocumentCloud by Matt Henry (In Justice Today).

Slides from a presentation Stephan delivered in June 2016.

These prosecutors include Summer Stephan’s office, also a member of the HTTF, whose investigations of suspected trafficking often result in crackdowns on sex work. In June 2016, Stephan touted an operation targeting an online message board featuring advertisements for sex work as a major success in combating trafficking. Yet no trafficking charges were filed. Similarly, the HTTF runs annual prostitution stings dubbed Operation Reclaim and Rebuild that Stephan described as a “wake up call for men who buy sex,” after a March 2018 sting resulted in 29 arrests of men allegedly attempting to buy sex. Stephan’s office said this operation targeted “the demand side of sex trafficking.”

Operation Reclaim & Rebuild News Release SD Version 1 30 18

Source document contributed to DocumentCloud by Melissa Gira Grant (In Justice Today).

Press release announcing the arrests of 29 men for allegedly buying sex

This “end demand” approach, supported by Stephan and groups in San Diego funded by Demand Abolition, is based on the belief that preventing men from buying sex in the first place is necessary in order to end human trafficking. This is why Stephan supported a program called the Cyber Patrol, first created by a Portland-area pastor that recruited volunteers — including current and former police officers — to create fake sex work ads, then inform the men who called for their services that sex workers are mostly trafficking victims. “Cyber Patrol, they are disrupting the demand,” Stephan toldthe San Diego Union-Tribune, “but actually at its core it’s providing accurate information about the damage and the harm that buying does.”

As for actual human trafficking, a category that also includes labor trafficking, prosecutions at Stephan’s office are down to 19 in total for the fiscal year ending in September 2017 from a high of 32 in 2013. As Cyber Patrol and Operation Reclaim and Rebuild demonstrate, what Stephan’s office has focused on instead is targeting men who attempt to buy sex, as well as lobbying for increased penalties for these men.

Stephan has touted her office’s support of new state laws that she says will help people who have been trafficked. The San Diego district attorney’s support of these laws is relatively new, however. In 2016, the office opposed SB 1322, which decriminalized prostitution for minors, joining with other prosecutors in the state, as well as SB 823, which would have vacated past criminal charges of those who were prosecuted while they were being trafficked. But since SB 823 went into effect, the San Diego public defender’s office and Free to Thrive, a local nonprofit that provides legal services to trafficking survivors, told The Appeal they have only been able to clear the records of six individuals.

In a recent interview with the San Diego Union-Tribune, Stephan acknowledged that her high-profile work on trafficking launched her into the top prosecutor spot once Dumanis announced her resignation. “Victims’ groups, a lot of the human trafficking work that I do, started to say, are you going to be the next DA,” she said. “We now are the gold standard for how you do sex crimes and human trafficking. I get called by other DA offices all the time to try to recreate it.” Prominent Stephan supporters, too, repeatedly tout her trafficking focus. On April 25, San Diego Convention Center Chair Gil Cabrera tweeted that Stephan “has lead [sic] the field” in trafficking.

But in the June 5 election, Stephan faces insurgent candidate Geneviéve Jones-Wright, a longtime public defender who is challenging Stephan’s record on trafficking, requesting cash bail for low-level offenses, advocating for rollbacks of recent criminal justice reforms, and highlighting Stephan’s failures in sexual assault cases. “My opponent’s failed leadership as head of the Sex Crimes Unit created the backlog of thousands of untested rape kits in San Diego County,” Jones-Wright said in March.

In an interview with The Appeal, Jones-Wright was particularly critical of Stephan’s trafficking prosecutions. “I’ll just be very blunt here,” Jones-Wright said, “she’s able to harp on these things because this has been her brand.” Contrary to Stephan’s assertion that sex workers are victims of trafficking, Jones-Wright explained, “there is absolutely the reality of voluntary sex workers, and, to say anything other than that is to be misinformed. So a person who touts herself as a national expert, who sits on all of these commissions couldn’t be more wrong in the field of her expertise. That is dangerous. It’s dangerous for combating human trafficking, it’s dangerous for protecting victims, it is dangerous for actually helping people who are engaged in sex work help law enforcement get the quote-unquote ‘bad guys’ who are abusing people.”

Jones-Wright also blasted Stephan for supporting a new federal law that would make online platforms liable for prostitution-related content, meant to shut down classified ads site but in reality making any website a target. The law’s proponents said it will combat trafficking — Stephan hailed it as ushering in an era when men will no longer “feel the anonymity of just going online and ordering a person like you’re ordering pizza” — but it has already resultedin the closure of websites sex workers rely on for income and safety. Jones-Wright believes that the legislation will make it more difficult to “to actually investigate and know who these people [traffickers] are … I would prefer for them to be on Backpage and Craigslist because we need to know who they are, if they are selling our children.”

Stephan’s representatives did not respond to repeated requests for comment from The Appeal.

Promising tough action against trafficking has helped Stephan garner an image as a progressive leader, even as the “reforms” she supports perpetuate the carceral status quo of criminalizing sex work, while possibly making it more difficult to help the actual victims of trafficking. Even Stephan seems to acknowledge her office’s limits in combating trafficking. “We know we can’t prosecute ourselves out of it,” she said in a 2017 story on San Diego’s “slow but steady progress” in the trafficking fight. Still, she added, “[i]t has to be a war that everyone engages in.”

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