By Brody Burns
San Diego County Office of the Alternate Public Defender
“Forensic science” has been defined as the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues. Developments over the past two decades—including the exoneration of defendants who had been wrongfully convicted based in part on forensic-science evidence, a variety of studies of the scientific underpinnings of the forensic disciplines, reviews of expert testimony based on forensic findings, and scandals in state crime laboratories—have called increasing attention to the question of the validity and reliability of some important forms of forensic evidence and of testimony based upon them…
…Independent reviews of these cases have revealed that many relied in part on faulty expert testimony from forensic scientists who had told juries incorrectly that similar features in a pair of samples taken from a suspect and from a crime scene (hair, bullets, bitemarks, tire or shoe treads, or other items) implicated defendants in a crime with a high degree of certainty.
– Report to the President (Obama), Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods
Manuel Anthony Lopez nearly lost his life to the “gospel” of a forensic expert. Luckily, his defense team would not tacitly accept the government’s experts or their “forensic conclusions.” Lopez was acquitted during the guilt phase of a death-penalty case in Santa Clara County on June 19, 2020. His defense team walked a death-penalty homicide. Incredible.
The trial was the first in the state to resume proceedings after being forced to shutdown due to the Covid-19 Pandemic. Trial resumed on May 18 and on June 19, after five-days of deliberations, the jury returned a verdict of not guilty. The case would not even move to the penalty phase.
His defense team was comprised of Santa Clara Deputy Public Defenders Kelley Kulick and Michael Ogul, along with paralegal Christina Reynoso and investigator David Lucio. An unbelievable team of public servants and true warriors. Kulick delivered the powerful 7-hour closing for the defense. In doing so, she and her team saved a man’s life.
Lopez was accused of first-degree murder with a special allegation that the murder involved the performance of a lewd or lascivious act upon a child under the age of 14. In this case, that child was 2-year-old Apollo Torres. His torture and killing was abhorrent. His tragic passing should not be forgotten.
Lopez is another person who should not be forgotten. The wrongfully accused man fought his case from behind bars for more than four years. There can be few challenges more difficult than standing up to the Government in a death-penalty case. Maintaining your innocence in the face of such crippling adversity.
Overcoming the bias of the charges alone is a miracle. The defense team also overcame numerous obstacles including battling the “forensic science” and expert-conclusions of the State’s case.
Bias is a persistent problem in the criminal justice system. It can create a lens through which we filter information. It can lead us to an erroneous conclusion, before analyzing the evidence. Bias can create great harm.
Ogul told the Mercury News about how a biased forensic conclusion by the medical examiner impacted this case. “There is no question Apollo suffered from extreme abuse. Every human should be aghast and repulsed at what happened to him. But as soon as they found abuse to certain parts of his body, (authorities) jumped to a conclusion, and it was wrong.”
This erroneous conclusion was that the crime was sexually motivated, and thus, investigators set their sights on the boyfriend and not the mother. To battle this flawed conclusion, the defense team utilized numerous forensic experts of their own. The process required in-depth education on various areas of forensic science. It also required challenging the very experts they were consulting. This case was more than merely challenging the opposing sides experts.
It is often stated that an attorney must learn the science of their case. One cannot outsource this responsibility to someone to take the stand and educate the jury. If the defense team had not taken on that responsibility, Lopez may be headed to San Quentin.
One of the most salient examples was the defense use of probabilistic genotyping. The defense team sought to introduce the use of this method in their case. Kulick herself was very knowledgeable in the field of DNA transfer. She had acquitted a 2012 homicide based on “touch DNA.” On the Lopez case, Kulick told the Mercury News that “literally every single sample that was obtained in this case was a low-level complex mixture. You can’t really conclude anything from it. After using probabilistic genotyping, it pointed away from guilt in this case.”
In an addendum to the above-referenced Report to the President (Obama), the President’s Council of Advisors on Science and Technology (PCAST) described probabilistic genotyping as a field “which uses mathematical models (involving a likelihood-ratio approach) and simulations to attempt to infer the likelihood that a given individual’s DNA is present in the sample.”
This Report to the President and subsequent addendum have the potential for significant impact on criminal courts. The origin was a 2009 Congressionally mandated study by the National Research Council (Strengthening Forensic Science in the United States: A Path Forward.) That study was very critical of several forensic evidence fields.
“The report [2009 NRC] made clear that some types of problems, irregularities, and miscarriages of justice cannot simply be attributed to a handful of rogue analysts or underperforming laboratories, but are systemic and pervasive—the result of factors including a high degree of fragmentation (including disparate and often inadequate training and educational requirements, resources, and capacities of laboratories), a lack of standardization of the disciplines, insufficient high-quality research and education, and a dearth of peer-reviewed studies establishing the scientific basis and validity of many routinely used forensic methods.” – Report to the President (Obama), Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, September 2016.
In the aftermath of the NRC report, President Obama tasked the PCAST with addressing many of those shortcomings. The outcome was the 2016 report. It’s a step in the right direction and discusses many of the shortcomings of “forensic science” disciplines. Many of these areas were traditionally coated in Teflon.
The report recognized exonerations 342 wrongfully-convicted persons based on DNA re-examinations, often the original convictions were a result of “faulty expert testimony from forensic scientists.” According to the National Registry of Exonerations, false or misleading forensic evidence, which would include that of testimony of expert witnesses, played a role in more than 20 percent of exonerations to date.
An entire lifetime of lessons could be learned from the Lopez case. On the topic of forensic experts, we must remember that experts are human and fallible. Science is changing, and some methods which were once the gold-standard, have since been debunked. Other methods are seeing rapid increases in scientific study. Attorneys must learn the science and consult extensively with professionals in the field. Do not simply accept the Government’s experts. They have been wrong in the past, and people have lost years behind bars. We must fight back. A life could be on the line.
Brody Burns is a Deputy Public Defender in the San Diego County Office of the Alternate Public Defender.