Reflecting on Making A Murderer: Forensic “Science”

So, I have just watched the Netflix Documentary “Making a Murderer.” You should, too. There are plenty of deeply troubling things from that documentary which could fill volumes.  So spoiler alert, I am talking about one of them here. If you think you will watch it, stop reading, and watch it. If you have started watching it, stop reading, and finish watching it.

I felt compelled to share something about it. Because of the spoilers, this piece is mainly for those who do not believe that they will watch it. I write this as one piece of the puzzle to encourage you to do so. It is also for people who have watched it and want to discuss it. While it is a documentary that is most definitely shown from the side of the Defense, it is deeply troubling even knowing that. You can see some things that were left out of the documentary here.* You can also see some interesting facts about the 10 year filming endeavor here.

I could have written a similar piece on manufactured confessions, jury bias, the court reporting industry, court media coverage, or bad lawyering. This one is about how crime labs operate, and how we trust them.

I have chosen to concentrate on one issue that may provoke you to watch the entire show yourself. I cannot show the problem better than the documentary itself.

The Background.

Here is a synopsis of the situation. Steven Avery was falsely convicted of rape, and he spent 18 years behind bars for it. He was categorically proven innocent. He then sued the county and sheriff’s office for 36 million dollars, because they either knew or should have known he was innocent. For one example, the town police called the county sheriff who made the arrest and told them they had the wrong man. That was ignored. While that civil suit was ongoing, Steven Avery was charged with the murder of Teresa Halbach, which later turned into rape and murder by the same sheriff’s department he was suing.

To avoid the appearance of conflict, that sheriff’s office turned over the investigation to the neighboring county. This was a good move, especially since the sheriff, (who was an arresting officer in previously expunged conviction) said on television that he was sure that Steven Avery was guilty, and that he would kill again if he is let go, “because that’s his personality.” Not only that, but this “non-involved” sheriff’s office continued to investigate, finding several key pieces of evidence in the murder trial. The particular piece of evidence I want to talk about is a bullet found in Steven Avery’s garage with Teresa Halbach’s DNA on it.

Now, the short version is this: while bone evidence showed that the victim was shot, this bullet was the only piece of physical evidence which supported the conclusion that Steven Avery shot Teresa Halbach. That’s where we come to the episode of bad science.

Questioning at Trial

You can see this in Episode 6. The scene is at the trial, and the lab technician who tested for DNA on the bullet begins her testimony by explaining her lab process:

“We begin with the extraction, we begin with what we call a manipulation control. And it’s basically a negative blank control. And it helps us monitor if any unintentional DNA is introduced into the sample. During the extraction procedure, I inadvertently introduced my own DNA into the negative control.”

“Did that have any impact on your interpretation of your results?”

“[pause] It did not have any impact as far as the profile of the evidence sample. It’s just the fact that I introduced my own DNA into the manipulation control.”

“And how do you think your DNA profile got into that control?”

“I believe my DNA profile was introduced during the extraction procedure when I was talking. I was training two newer analysts, so I was explaining to them what I was doing as I was setting it up. And apparently, I felt as if I was far enough away from my work bench not to introduce my DNA, but apparently, I was incorrect.”

Full stop. That is not science. The “negative blank control” is what tells you that your testing is correct. There is no scientific test to prove that her DNA profile was introduced when she was talking and only when she was talking. Instead, that IS a scientific test to show that non-evidence DNA was introduced into your test. She does not have a reliable test. Instead, she has a reliable test that tells her she DOESN’T have a reliable test. And she ignored it.

Why couldn’t she simply do another test with a good process? Because she, she explained, she used up all the evidence in her initial test. That is not science.

Not only that: Lab protocol mandates that if the control comes back contaminated (and it did, with her own DNA), the proper response is to label the test “inconclusive.” But she did not follow lab protocol and label the test “inconclusive.” Instead, she gave an opinion in court that the DNA on the bullet was that of the victim. THAT IS NOT SCIENCE.

And for some perspective, this was the only piece of DNA evidence that physically placed the victim within the story of the rape and death. There was no blood on the gun, even though the state’s story is that the victim was a shot from close range. There was no blood or DNA in the house or on the bed, even though the state said that she was raped and stabbed in the neck in the bed and then dragged from the house to the garage. There was no DNA in the messy garage where the victim was supposedly shot (except for the single bullet in the bad test), even though the state even got a jackhammer and swabbed all over a crack in the concrete floor for DNA. The only DNA found was on an already-fired bullet found in the garage, underneath an air-compressor (which also did not have any blood or DNA on it).

While Teresa Halbach’s remains (burned bones) were found on several places on the Avery property (which was literally a junkyard), that single bullet was the only piece of physical forensic evidence that explained her death.

Bias Towards Prosecution in Lab Testing

And if that’s not bad enough, the defense attorney, impeaching (that is, casting doubt) on the lab technician’s testimony points to her notes from an incoming call from the police investigator. The first line of the note says: “couple of items from house and garage. (try to put her in his house or garage.)”

That’s right, the instructions gave the desired result of the test. THAT IS NOT SCIENCE.

Attorney: “So you’re being told before doing any of these tests that Mr. Fassbender [the police investigator] wants you to come up with results that put Teresa Halbach [the victim] in Mr. Avery’s house or garage. Isn’t that right?”

Lab Technician: “I had that information, but that had no bearing on my analysis at all.”

Seriously? Yes. Seriously. The worst part about the claim about that having “no bearing on my analysis at all” is that the state crime lab is a branch of the state Department of Justice. That means the technician IS on the side of the prosecution. If you work for the crime lab, you work FOR the prosecution.

For an example of how egregious this non-blind testing can be, there is another incident of questionable laboratory conduct. The defense of STeven Avery is that the police planted evidence against him. One of the pieces of evidence was his blood in the car of the victim. The defense theory was that his blood, collected in his rape conviction that was vacated, was used by the police to create more evidence against him. His defense attorneys obtained a court order to search his file. Included was the evidence box with his blood.

The red dated evidence seal was broken.

It was resealed with scotch tape.

The top of the vial was punctured with a needle.

The testing agency from the 1980s confirmed that they do not puncture the vials with needles in testing.

The prosecution contacted the FBI to run a test. Blood kept that long would normally dry over such a long time period, but a chemical called EDTA keeps it liquid in test tubes. Despite the fact that the test is controversial, rather unreliable, and no one does the test anymore, the FBI agreed to run the test, and rush it in time for the trial. Of the six places in the car where small streaks of Avery’s blood were found, the FBI only tested swabs from three of them. Why? I don’t know.

And the FBI receives a lab request with samples of the blood in vials from the prosecution, and guess what the text of the request actually said?

“The purpose of this request is to establish the presence of EDTA in the vial of blood, thereby eliminating the allegation that this vial was used to plant evidence.”

That’s right. The FBI now knows that if there is EDTA, the cops have framed someone. If there is no EDTA, the cops did not frame someone. And do you know what the FBI is for the federal government? Cops.

The only way to trust the science is to trust the person telling you about the science, which was conducted in a place you did not see, for a person who works closely with the prosecution and not the defense. That is bias. Bias casts doubt on science. But we still view it purely as “science.”

In addition to bias, there is the problem of incompetence, or human frailty itself which surrounds the scientific process. This frailty of science does not only exist in times where the science is faulty, like above with bad procedures, but even when the science it is rather solid like with DNA testing. As J. Herbie DiFonzo says in his Hofstra University Law Review article,

[DNA analysis] provides no affirmation that the DNA in question has been adequately gathered, examined, and maintained, nor whether testimony regarding DNA will be truthful or accurate. DNA’s reputation for scientific precision is in fact unwarranted. The record is littered with slapdash forensic analyses often performed by untrained, underpaid, overworked forensic technicians operating in crime labs whose workings reflect gross incompetence or rampant corruption.

In short, the reality of science’s usefulness in the pursuit of truth is small. In once sense, forensic science’s actual methods are misunderstood, generally making its reliability overstated. In another sense, when the methods are understood and the reliability is strong, even that is subject to human frailty and bias.

Is This Actually a Thing?

Yes. Quite clearly.

Now, it may be shocking to imagine that this could happen regularly, and that large amounts of information we are getting from our crime labs are faulty. But it is not shocking if you read the news. Here’s an example of thousands of bad alcohol tests conducted in Illinois. Here’s a story about an entire field of science at the FBI being 95% wrong over multiple decades. Here’s a story about a crime lab technician tampering with evidence in possibly 1,000 cases in Oregon.  And that’s just in 2015. Here’s a story about a crime lab chemist who deliberately tainted drug test evidence and gave false data in thousands of cases.  Here’s another story about a lab technician who stole drugs from evidence, and used drugs while she was testing for evidence in drug cases. Here’s a story about a crime lab for Delaware that was incompetent and tampered with evidence. Here’s one in Florida. You can find a full congressional report on admitted inadequacies of crime labs across the US (including a complete absence of national standards and accreditation and standards among the local crime labs that prosecute crimes like rape and murder) here.

This is a big deal.

So…. What now?

Well, first, go watch Making a Murderer.

If you think I’ve shared with you the juiciest part of the documentary, or even the trial, you will be disappointed. o you can see it actually play out in a real-life case. But here are some suggestions posed as questions for the future.

  • Why are crime labs organized as arms of the prosecution when both the prosecution and the defense depend on their results?
  • Why are police requests allowed to communicate desired results in the order?
  • Why can’t an arm of the judiciary create neutral requests, or at least review the requests sent to the lab so that police cannot communicate with lab technicians?
  • Why can’t “dummy” samples with known results be sent to labs posed as real requests to test lab reliability?
  • Why can’t counsel be allowed to view or video the process of conducting the test?
  • Why don’t judges enforce the adherence to lab standards as rules of evidence expert opinions?

But most importantly:

  • Why do we trust lab results so much in criminal trials?
  • Should we?

 

 

 

 

*In this article about left-out facts, some of these “extra details” are irrelevant to the actual case in court, because they would not be allowed in court. A prime example is the history of sexual assault which is mostly substantiated in the news article by hearsay. Even if the hearsay was not a problem, it would still be excluded so long as Wisconsin has a rule of evidence similar to the Federal Rule of Evidence 404 (and although I do not have access to the Wisconsin rules, they probably do). Furthermore, other pieces of evidence that are treated as disproving the case of police planting evidence are not that difficult. For instance, the article seems to state that it is “difficult to imagine” how the police could have gotten a hold of Steven Avery’s sweat to place on the key, when all the police had was a vial of his blood. However, they seem to ignore that Steven Avery was in police custody when the key was found, and you can get someone’s sweat by touching them.

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