Kate Judson knows too well that science and criminal justice can often be at odds.
After working as a public defender in New Mexico, the attorney spent seven years with the Innocence Network consulting on child abuse cases involving shaken baby syndrome. For years, the diagnosis had been used to support allegations of abuse, but Judson debunked those allegations with research indicating those diagnoses are often incorrect.
Now, Judson is the executive director of the Center for Integrity in Forensic Sciences, a new nonprofit co-founded by former Wisconsin Innocence Project director Keith Findley and the lawyers Dean Strang and Jerome Buting, well-known for their defense of Steven Avery in the Netflix docuseries “Making a Murderer.” Judson now educates lawyers, courts and the public on the ways forensic science can be less than scientific — from the flimsy foundations of bite-mark science, to the inconsistencies and error rates of fingerprint analysis and hair comparisons.
Could you tell me more about the problems with forensic science that the center wants to tackle? It seems they run quite deep.
So just recently, I think it's just been this past couple of weeks, the U.S. had its 2,500th exoneration since 1989 … and out of those exonerees, about a quarter of them have faulty forensic science that played some role in their trial. So we know it's a serious problem.
There are other ways that the issue has been examined. In 2009, the National Academies of Sciences did this fairly comprehensive report, where they heard lots of testimony from lots of people about forensic science, about its foundational validity — how valid are its foundations — and also its validity as applied. So, how are analysts and forensic scientists using it, and does it have a solid scientific foundation?
What they found was it doesn't really have a solid scientific foundation. What that means is that these disciplines have arisen in police department and other law enforcement agencies as a way to solve crime. They're subject to all the biases and error that you'd expect to go along with that.
Good people make mistakes. We're not really looking for good guys or bad guys in our work. What we're looking for is for people to better understand the kinds of biases, brain processes, cognitive errors that we all have, that we just have by virtue of our being human.
You’ve mentioned that there are some proposals for change within the forensic science community. How common is that call for reform?
I don't know how common it is. It's a really broad question -- you could talk to 100 analysts, and some would think certain reforms were necessary but not others. Within the community at large, there is this knowledge now that there have been historical errors, and things do need to be reformed.
I don't know how you just walk away from that 2009 report. I mean, people have criticized it, but they are concerted conclusions made by learned people who didn't have a point of view.
Certainly there are people who double down on a belief, even when there’s evidence debunking it. Has there been pushback to reform at all?
Yeah, absolutely. We see that a lot in all different kinds of cases. Sometimes you see the argument that if we make forensic science more fair and more accurate, and we acknowledge the errors that we made in the past, that in some way we'd be doing a disservice to victims of crime going forward. Somehow, we'd be letting criminals go free and really hurting communities, and hurting victims, because we're asking for more accountability and more accuracy.
What I wish more people would acknowledge is, victims of crimes are harmed when there is a wrongful conviction. No one is helped by putting someone in prison for a crime they didn't commit. It's not helping anyone. And in fact, when you talk with people who have become criminal justice advocates after being crime victims ... what you hear from folks like that is, they feel ignored by the criminal legal system. They feel not counted, and they feel cast aside, and they also live with tremendous guilt. And there's no one to help them through that.
I don't mean to suggest in any way that victims shouldn't be put first, but this idea that there's tension between preventing wrongful convictions and protecting victims, that's wrong.
So, what specifically does the center do?
We consult on cases. We work with both prosecution and defense offices on where the scientific literature is at, what the state of the science is. That's a big part of the work that we do — trying to educate folks about what science can bear. We also write amicus briefs when requested by a party to educate courts about these thorny issues.
We might work closely with attorneys to try to support a post-conviction claim of innocence — trying to help the lawyers show the court that their client is innocent through discovered innocence or scientific advancement.
Sounds like a lot of case-by-case work, quite literally.
Yes, but I think you can view some of the amicus work as being broader. We can file a brief in a particular case, but what we're trying to teach the court about is the broader range of cases that are like this particular one.
I think that the gap that the center can fill in all kinds of forensic science cases is trying to help in a broader, more systemic way, instead of an ad hoc way, (and) apply real science to criminal cases so that we have a fairer system.
How optimistic are you that systemic change is possible with the forensic sciences?
I'm optimistic. I think that if you'd asked me this a long time ago, even at the beginning of my career as a lawyer, I would have said that's an impossible ask. People are never going to go along with you. But I think a lot of things have changed.
There's been a lot more understanding that wrongful convictions happen. I think that some of the attention that's come to these issues from true crime, things like documentaries and podcasts and news stories, have helped educate people that our system has flaws.
Certainly Jerome Buting and Dean Strang became minor celebrities thanks to “Making a Murderer.”
Absolutely. And it's been really helpful. People have just started to understand more and more that these errors happen. When this kind of work started, it was really hard for people to understand that a fingerprint analysis would be wrong. Or that a shoeprint analysis would be wrong. Or that someone would confess to a crime they didn’t commit. Or that a victim who'd gotten a good look at their attacker might accidentally identify the wrong person.
That was so difficult for folks to believe. And I think to the extent that anybody believed them, they thought they were just freakishly rare. And now, I think many people do not think that way anymore.
Also, what (DNA analysis) has been really useful for is showing all these other places where we failed. When someone is exonerated, with new DNA analysis … you can look back and you can say, “Well, why is this like this, if this person confessed?” Or, “Why is the DNA wrong when the analyst said the bite mark matched?” By reasoning back from the known error, we can start to identify the factors that led to it. And I think that’s incredibly powerful.