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‘We Can Make Him Disappear’: The Power of County Sheriffs

Mecklenburg County Sheriff Irwin Carmichael and deputies pose in front of an armored vehicle.
MCSO / Facebook

‘We Can Make Him Disappear’: The Power of County Sheriffs

These days, former Sheriff Jim Pendergraph calls himself an “Old School Conservative,” but not so long ago he identified as a Democrat. This is back in early 2006, when Pendergraph was like most sheriffs — an enormously powerful guy who managed to get around unnoticed. He was 35 years into his law enforcement career and 12 years into his tenure as sheriff of Mecklenburg County, North Carolina when he made the decision to enter his agency into an agreement with the Department of Homeland Security (DHS).

Mecklenburg was the first law enforcement official east of Phoenix to enlist in 287(g), a DHS program which allows Immigration and Customs Enforcement (ICE) to delegate federal immigration enforcement to local and state authorities. Essentially, 287(g) deputizes local law enforcement, giving police and correctional officers the power of ICE agents. As so-called 287(g) officers, they“have access to federal immigration databases, may interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge ‘detainers’ against alleged non-citizens held in state or local custody.”

This may sound boring or bureaucratic, but the end result is neither — programs like 287(g) make it infinitely easier for undocumented immigrants to be deported. One need only be charged, not convicted, to get referred to ICE and possibly taken away from loved ones. Proponents of 287(g) would have you believe that the only immigrants affected by the program are dangerous criminals. But studies show that, in the past, around 80 percent of people were picked up on misdemeanors.

As a Democratic official, Pendergrass appeared an unlikely participant in the 287(g) program, which had historically been championed by anti-immigration, tough-on-crime conservatives. But Pendergraph was maniacal about his dislike of immigrants, intent on ridding America of them. “We’ve got millions of illegal immigrants that have no business being here … These people are coming to our country without documents, and they won’t even assimilate,” he said in 2006. “Every person we remove from the county is one person you and your family won’t meet on the highway,” he stated that same year. Eventually, Pendergraph dropped the pretense of safety altogether, simply setting up checkpoints in neighborhoods with large immigrant populations and arresting people for violating civil immigration law.

Pendergraph became such an evangelist for 287(g) that, in 2007, the Department of Homeland Security hired him. During his time there, he boasted about how easy it was for local police to ensure deportation of an undocumented resident. “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.”

Pendergraph hasn’t been sheriff for over a decade, but his successors have been determined to keep their partnership with ICE alive. This includes current Sheriff Irwin Carmichael, who identifies as a Democrat, and yet has refused to end 287(g), a program President Trump supports wholeheartedly.

In Charlotte, the repercussions of this program have been massive. Last year, the sheriff’s department said it had “processed nearly 29,000 foreign-born people in the Mecklenburg jail since the program began. Of those, 15,018 were either deported or “placed in removal proceedings.”

Charlotte’s 287(g) program is just one example of the enormous power sheriffs have over the lives of local residents. The scope of their dominion varies slightly by county, but is almost always wide-reaching. Like other police officers, sheriffs can arrest you, serve you a warrant, write you a traffic ticket. But, depending on the county, they also perform countless other duties, including overseeing discretionary funds, patrolling highways, investigating crimes, and evicting tenants. And, as Charlotte illustrates, it is sheriffs who often decide who gets to call America home.

Perhaps most notably, in most places, sheriffs are also responsible for managing the local jails. This is particularly important because jails have functionally replaced mental health facilities in America and have become “the largest provider of mental health services in the county,” as Alan Greenblatt stated in Governing magazine. Ultimately, the sheriff has a major impact on the lives of those involved in the criminal justice system.

The extent of a sheriff’s power can border on dangerous. In some California counties, the sheriff even moonlights as the county coroner, an example of how sheriffs’ power obliterates any hope of accountability by the public. This is particularly concerning in situations including victims of police misconduct, where “having law enforcement oversee, say, the autopsies of police abuse victims invites abuse and creates an inherent conflict of interest.”

Across most of America, the only thing that could really limit the power of the sheriff is the voter. But that’s not really how it plays out on the ground. “In theory, sheriffs should be highly accountable, since they have to answer directly to voters,” writes Greenblatt in Governing. “But in practice, while a police chief may be lucky to serve three years, it’s not unusual for a sheriff to be around for 20.” As Professor Casey LaFrance told the New Yorker’s Rachel Aviv, “Once you become the sheriff, you’re likely to remain the sheriff until you retire or die.”

This is the main difference between sheriffs and police chiefs. Ultimately, police chiefs are accountable to the body that empowered them, and are subject to shifting political whims. Sheriffs, on the other hand, have no boss outside of the ballot box. They derive their power directly from the state constitution, making it hard to limit the extent of their powers, and they can be removed only by vote or the governor.

That power and independence is concentrated in a startling homogeneous population. According to one study, 95 percent of elected sheriffs are male and 99 percent are white. Nationwide, there are just three Black female sheriffs. Given the narrow demographic, it is perhaps unsurprising, then, that sheriffs tend to be more conservative than the general population, particularly on immigration.

Carmichael fits this mold. In Mecklenberg County, there has long been a tradition of anointed sheriffs who pass the position down to their chosen successor. Pendergraph was succeeded by his chief deputy, Chipp Bailey, also a white man and a Charlotte native who had spent his entire career in law enforcement. Bailey stayed just six years before retiring. Both Bailey and Pendergraph endorsed Carmichael.

Like his predecessors, Carmichael is extremely supportive of 287(g), and relies on limp excuses and nonsensical hypotheticals to justify it. He doesn’t even deny — or seem to care — that most of the people he refers to immigration authorities have committed a low-level crime.

“We’ve got to know who they are, what about if they commit murder in another country?” he said. (Carmichael did not provide any examples of this fear being founded.)

The 287(g) program isn’t the only terrible policy Carmichael has defended. In his first term as Mecklenburg’s sheriff, his record has been essentially barbaric.

In the past, this may not have mattered. But things are shifting now. Sheriff’s races are garnering slightly more attention in a couple places, and dramatically more in a fraction of those. Mecklenburg is part of that fraction.

Carmichael is fighting to win a tough primary on Tuesday, May 8. His opponents, Garry McFadden and Antoine Ensley, are also former law enforcement officers. But on many of the most important key issues, they differ dramatically from Carmichael.

Carmichael has repeatedly defended his decision to put juveniles in solitary confinement. He’s permitted the jail to force children to live in small, windowless jail cells completely alone for 23 hours a day. These kids aren’t permitted visits, library books, or phone access. Many of them haven’t even been convicted of crimes.

In 2016, both President Obama and North Carolina’s state prison system banned solitary confinement for juveniles. But Carmichael wouldn’t budge. That year, more than 110 juveniles in Mecklenburg County’s Jail North were subject to stays in solitary.

“It’s torture,” said retired Mecklenburg County jail official Karen Simon. “It’s abuse. And it’s done at the hands of the government.” Both Ensley and McFadden seem to agree — they have stated clearlythat they are against putting juveniles in solitary.

Carmichael also stopped allowing people to visit their loved ones in jail, instead requiring them to rely on video calls for communication. He called it a safety issue and claimed it was more convenient for inmates.

But critics say that video visits do not compare to the value of in-person visitation. It’s also a significant financial burden. If an inmate wants to make more than two video calls a week, it costs $12.50 — money that goes straight into the hands of GTL, the private corporation that owns the video visitation system.

Ensley and McFadden both say that, if elected, they would allow in-person visits again.

According to the ACLU of North Carolina, Carmichael also refuses to hold law enforcement accountable for wrongdoing, and won’t support“external, independent investigations of misconduct or criminal behavior in the sheriff’s office, such as if a person is killed by law enforcement.” Once again, Ensley and McFadden have both rejected Carimichael’s position and agreed to support such external investigations.

Mecklenburg County Sheriff's Office, Charlotte NC

Mecklenburg County Sheriff's Office, Charlotte NC added a cover video.

A promotional video on the Mecklenburg County Sheriff’s Office Facebook page shows deputies training with high-powered weapons and armored vehicles.

If either challenger is elected tomorrow, it’ll be a major shift — not only in Charlotte, but nationwide. As people become more aware of the power of local elected officials in the criminal justice system, it is increasingly possible that the people in charge may be more aligned with local residents.

Charlotte isn’t the only place with potential. Durham is, overall, even more progressive than Charlotte. But many of the decisions made by Durham County Sheriff Mike Andrews have not reflected local political standards. Like Carmichael, he has also refused to stop detaining people for the immigration authorities. The conditions of the local jailhave also been routinely criticized: during Andrews’s tenure, six people have died in the jail he oversees.

Andrews also made the controversial decision last year to prosecute the protesters who toppled a local confederate statue. (No one was injured during the statue’s removal.) Despite the fact that Andrews’s department knew that the protest was planned, they did nothing to stop the protesters. Afterwards, though, Andrews decided to bring serious charges against twelve defendants, “including felony charges for participating in and inciting a riot.” According to The Atlantic, sheriff’s deputies even searched some of their homes.

These are decisions that Andrews has had to answer for in the primary. His opponent, Clarence Birkhead, ran for the position last election and lost to Andrews. But this time, Birkhead has been endorsed by many of the same groups that endorsed Andrews last time. Birkhead has been clear that he wants to reduce incarceration and law enforcement interaction. “Decriminalizing poverty is a priority. Decriminalizing street-level drug dealing is a priority,” he stated at a candidate forum last month.

It’s not just North Carolina. In other counties across the country, regressive sheriffs are being challenged by forward-thinking candidates.

Republican Sacramento County Sheriff Scott Jones is one of the sheriffs facing opposition. His jurisdiction is decidedly more liberal than he is — almost 59 percent of Sacramento County voted for Hillary Clinton, while less than 34 percent supported Trump. Jones is noticeably out of step with his constituency, and he seems to know it. He’s been smart enough to stay relatively quiet about the intensity of his personal convictions, and until now it seems to have worked — he has largely managed to escape scrutiny and is currently running for a third term.

He often plays the centrist on issues, including immigration. During his failed bid for United States Congress in 2016, he presented a decidedly tempered perspective, declaring that undocumented immigrants “by and large” are “productive members of our community.” “They deserve more than what we are giving them despite the fact that they are here illegally,” he told the Sacramento Bee. “I would advocate for a pathway to legal status for each and every one of them.”

But since Trump’s election, Jones has become increasingly vocal about his real views on immigration. In March, he flew to D.C. to visit the White House, for a roundtable discussion with Attorney General Jeff Sessions, President Donald Trump, and local law enforcement officials. “There are spectacular failures every single day around California, and I’m sure beyond, of folks that ICE wants as part of their priority, criminals, that are going to go out and at a known recidivism rate and victimize other folks that we’re unable to capture, apprehend and keep detained for deportation,” Jones told Trump.

It’s not just immigration. During his tenure, Jones has been criticized for his department’s regular use of excessive force. The county has paid out millions of dollars because of bad behavior in his department, including $6.5 million last year to relatives of a schizophrenic man who was shot by a deputy in his home in front of his parents, and over $500,000 in a case where “an inmate in the downtown jail vomited blood for hours and died while deputies apparently stood around and did nothing.”

Jones has also been accused of sexual harassment and gender discrimination. In 2016, a former employee accused him of “making unwanted sexual advances.” The accusations were made public in the wake of a $3.5 million settlement granted to four of Jones’s female deputies “for harassment and retaliation” by their superiors.

And, if that weren’t enough, Jones has routinely ignored the concerns of the Black community, and has degraded groups that call for increased accountability for law enforcement. Last year, the local Black Lives Matter chapter wrote the sheriff a letter, expressing their concern regarding a “pattern of violence when engaging Black community members.” The letter provided detailed examples of excessive force and noted Jones’s refusal to provide additional information or explanation for those incidents. It also listed demands, including body camera footage and the disciplinary history of the officers who committed the acts.

Jones’s response was obstinate. “In my opinion, there are far more responsible voices for the African American community here in Sacramento than you; in fact, there is nothing local law enforcement can ever do that will earn your approval,” he wrote to Tanya Faison, the BLM chapter’s leader. “I suspect you will continue to try and subvert [my job] with continued mendacious versions of reality.”

In March, Sacramento city police shot and killed Stephon Clark, a 22-year-old unarmed Black man who was trying to visit his grandmother. They supposedly believed he had a weapon. It turned out to be a cell phone. Ten days later, during a protest in downtown Sacramento, one of Jones’s deputies instructed a woman to move. When she didn’t, he struck her with his car, and then drove away without confirming that she was okay.

Jones refused to apologize for the event, and did not express any sympathy for the injured woman. “There’s a high likelihood that he did not even know that he collided with that protestor,” Jones said,despite evidence to the contrary. He also implied the protests weren’t even real. “In many protests that have developed to this scope, there are professional protesters and professional instigators that infiltrate the protests for their own purposes,” he stated.

Despite his repeated failures, Jones has a confidence bordering on hubris. When he announced his intention to run for a third term, Jones seemed to think the election was a mere formality. “Listening to him expound on his succession plan for that office,” wrote the Sacramento Bee Editorial Board, “we wonder whether the lawman-turned-politician remembers that he was elected, not crowned.”

Jones, a burly man in his early 50s, has long fancied himself untouchable, an arrogance that isn’t entirely misplaced. The Sacramento Bee said the race was “shaping up to be little more than a preamble to a coronation.”

But recently, Jones has started to look much more vulnerable. In March, former Chief Deputy Milo Fitch announced that he would challenge Jones in November. “I felt an obligation to run for office because the current leadership of the Sacramento County Sheriff’s Department cannot deliver what our community needs,” he said.

Fitch proudly describes himself as a criminal justice reformer, and has stated that he would not collaborate with ICE if elected. He also wantsto approach public safety in a way that doesn’t simply focus on punishment, by “assisting inmates with education, job training, and life skills.” He’s spoken out against money bail, and has repeatedly emphasized the importance of eradicating bias and discrimination from the sheriff’s department.

Fitch is gaining significant support, and has garnered some critical endorsements, including from the mayor. He could present a serious problem for Jones, who, until recently, seemed to believe he’d cruise straight to re-election. That he is facing real competition is yet another sign that accountability for sheriffs may be increasing.

Traditionally tough-on-crime sheriffs have been a major contributor to mass incarceration, and policies like the ones Carmichael, Andrews, and Jones have implemented are disturbingly commonplace nationwide. Traditionally, they’ve managed to keep their jobs while pursuing policies that many of their constituents would likely find troublesome.

But now, as people begin to understand the extent of their power, things may be changing. In Charlotte, Carmichael is facing serious community opposition for his continuation of the 287(g) program, among other things. “The current sheriff has said that he believes the program is helping the community, keeping it safe, and he’s not willing to end it,” said Oliver Merino, a local organizer about Charlotte’s participation in 287(g). “We feel like the best way to get rid of the program is to get a new sheriff.”

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

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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.

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