With so many television crime drama shows relying on forensic evidence to capture the guilty party, it is understandable why there is a broad misconception in the general public about the value of forensic evidence.
In actuality, flawed forensic evidence has proven to be the significant factor in anywhere from 50 to 60 percent of wrongful convictions—more than false confessions, mistaken eyewitness identification, unreliable jailhouse informants, and prosecutorial misconduct.
This reality was first warned against in 2009 by the National Academy of Sciences in a study titled “Strengthening Forensic Science in the United States: A Path Forward.” This report, admittedly highly controversial at the time, challenged every forensic science, except DNA, as a basis to convict people in criminal trials.
Most specifically, the report stated that “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
This scientific indictment was borne out by the FBI forensic scandal in 2015 when the agency admitted that its “experts” had overstated the reliability of hair analysis in 96 percent of the cases in which they testified—some 3,000 cases.
A decade before the FBI forensic scandal, the Texas Legislature established the 9-member Texas Forensic Science Commission (TFSC)—hailed then, and to this day, as one of the most reliable, effective checks against flawed forensic evidence in the nation.
In 2014, the TFSC announced it was moving forward with a “first-in-the-nation” review of criminal convictions based on hair analysis “expert” testimony in the wake of the FBI fiasco.
The year before the TFSC undertook its hair analysis review, the Texas Court of Criminal Appeals was forced to reverse hundreds of drug convictions because “experts” in the Texas Department of Public Safety’s crime lab in Houston fabricated thousands of positive drug tests.
Writing in the March 1922 Journal of Forensic Sciences, Dr. John S. Morgan, who operates the Raleigh, N.C.-based Coptech Systems, Inc., wrote that when errors in forensic evidence occur in criminal cases, these errors “are not identification or classification errors by forensic scientists” but rather “are frequently associated with incompetent or fraudulent examiners, disciplines with an inadequate scientific foundation, or organizational deficiencies in training, management, governance, or resources.”
On July 21, 2023, ABC News reported that famed forensic scientist Harry Lee was found civilly liable by a federal judge for fabricating forensic evidence that sent two innocent men to prison in Connecticut for more than 30 years.
No witnesses or physical evidence connected the two men, Ralph “Ricky” Birch and Shawn Henning (who was 17 years old at the time), to the 1985 murder for which they were convicted in 1989. Dozens of fingerprints and hair samples at the scene did not match either man. No blood evidence was found on either man or in their vehicle from the victim, who had his throat cut, stabbed another 27 times, and had another seven blows inflicted to his head.
But prosecutors had one piece of evidence they said linked the two men to the crime—a towel stained in what appeared to be blood and Lee’s testimony that the killers could have committed the crime without getting much blood on them. He also testified that he tested the stains on the towel, which appeared to be blood.
Tests would later prove the stains were not blood.
Lee was not “famous” when he testified at the Birch/Henning trial in 1989. He gained his fame and notoriety, first with his testimony for the defense in the 1995 O.J. Simpson case, followed by his involvement and assistance in the high-profile 1996 JonBenet Ramsey murder case, the 2004 Scott Petersen murder case, and the 2007 Phil Spector murder case.
The 82-year-old Lee is now professor emeritus at the University of New Haven’s Harry C. Lee College of Criminal Justice and is the former head of Connecticut’s forensic laboratory. He has performed forensic evidence work in more than 8,000 cases over a career spanning 57 years.
That career did not impress U.S. District Court Judge Victor Bolden, who said Lee presented no evidence to support his testimony against Birch and Henning.
“Other than stating he performed the test, however, the record contains no evidence that any such test was performed,” the judge wrote in his opinion. “In fact, as plaintiffs noted, Dr. Lee’s own experts concluded that there is no ‘written documentation or photographic’ evidence that Dr. Lee performed the TMB blood test. And there is evidence in this record that the tests actually conducted did not indicate the presence of blood.”
Lee is the second “world-class” forensic scientist to fall into legal and public disrepute. The first was the creator of the infamous “bloodstain-pattern analysis” evidence, Dr. Herbert MacDonell, who fell into the underworld of professional disgrace after being convicted by his own guilty plea of a child-related sex offense in July 2013.
Like Lee, MacDonell gained his first national fame after testifying on the O.J. Simpson case as an “expert” blood testimony.
ProPublica reported in December 2018 that MacDonell, the founder of the Bloodstain Evidence Institute, developed what some would call the “forensic discipline” known as “bloodstain-pattern analysis” in the basement of his Corning home one-hour northwest of New York City.
The discovery came in the early 1950s after MacDonell became a “chemist” at a local glass-making shop. He parlayed those credentials into securing a part-time teaching job in forensics at a local community college and doing forensic “consultant” work in other off hours.
MacDonell began his courtroom testimony career in 1968 in a New York City murder case involving “bloodstain-pattern analysis.” By 1985, he had become a “star” expert witness in blood evidence from Texas to Minnesota. He was so good that his “mesmerizing” testimony even earned him an “expert” seal of approval in the federal court system.
But there never was, nor has there ever been, any proper scientific research to quantify or qualify “bloodstain-pattern analysis” as an accurate, reliable forensic discipline.
In a blistering 1991 dissenting opinion, Idaho Supreme Court Judge Stephen Bistline wrote: “The danger presented by expert testimony interpreting blood-spatter evidence is that the prosecution is provided with an expert who appears to be able to reconstruct precisely what happened by looking at the blood left at the scene of a crime. However, a quick review of the ‘science’ relied upon by the expert suggests that we would be better off proving guilt beyond a reasonable doubt without the help of such experts.”
The 2009 NAS report found that “bloodstain-pattern analysis” reveals that “the uncertainties associated with bloodstain-pattern analysis are enormous” and that opinions like those given by MacDonell and his legion of students are nothing more than “subjective [rather than] scientific” opinions.
The bottom line is this: a glass-making chemist working from his basement inflicted on the nation’s entire court system an unfounded, unverified forensic discipline that has sent thousands of innocent people to prison and probably some to death chambers.
That is what self-proclaimed “experts” like Herbert MacDonell and Harry Lee, and the junk science they have testified to in court, have done to the American justice system over the last six decades.