10/14/16 – Jordan Smith – The Scott Horton Show

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Introducing the American hero, Jordan Smith.
For a great many years, she was investigative reporter at the Austin Chronicle, and she's now at the Intercept over there with Greenwald and them, and specializes mostly in innocent people falsely convicted of death penalty crimes and these kinds of incredibly important stories.
This one is along those lines, anyway.
Welcome back to the show, Jordan.
How are you?
I'm good.
Thanks for having me.
Good.
Good.
Very happy to have you back on the show here.
This is just huge.
FBI and DOJ vow to continue using junk science rejected by White House report.
Go ahead and hit me.
What White House report?
Yeah.
That's pretty ridiculous.
The president has a group of advisors that are sort of experts, sort of top-notch people in science and technology, and he asked them last year if they could look at the issues that are going on with forensics right now and see if there's anything that they might be able to add to the conversation.
As you know, since about 2009, there's been a great upheaval in the world of forensics because there was a report that came out that essentially said that a lot of the forensic practices that have been in place for years, in some cases centuries, are really not backed by any science at all.
And so these are particularly these so-called pattern-matching practices.
These are things like fingerprints, where you're basically taking a known item and trying to match it to something that you find at a crime scene.
Okay.
So anyway, last year, the president asked his group if they would kind of look and see if there's anything that they might be able to add to the conversation.
And they put out a report that basically said, look, if you want to use these practices in court to try to convict people, you've got to make sure they're scientifically valid, and they're not scientifically valid right now.
And so you need to do research to shore these things up, so that you can have things like error rates, so that we can know, for example, when you're making a comparison between a known fingerprint and maybe a smudged fingerprint that was collected from a crime scene, how often are you likely to make a mistake?
Or how likely is it that this would match more than one person?
And so a lot of these practices actually just don't have any solidity or reliability.
And so all of the PCAST, which is the President's Council of Advisors on Science and Technology, are saying is, hey, you've got to do some more work here.
You've got to do these studies to shore this stuff up.
Or in the meantime, what you need to do is either not use this stuff in court at all, or where you do have some preliminary error rates, at least, where you do have some for, say, fingerprints, you need to make sure that your experts are required to testify about those error rates.
Those are the two basic recommendations that came out of this White House Council.
And the DOJ and the FBI basically have said, nah, we're not going to do that, which I think is pretty astounding.
You know, I mean, it's really, to me, I just don't see how it's such a tough poll.
If you say, for example, this fingerprint, you know, we know from two studies that error rates can be as high as one in 18, we'd have to do more work, but, you know, here's what we know.
I don't see how that's such a difficult thing for them to do, but they have categorically rejected it.
They're not going to do it.
Oh, ma'am, I have to totally disagree with you about that.
I could see them absolutely being thrown into a panic, because this undermines their entire credibility going back decades.
Well, it's that, well, yeah, I mean, I guess there's no big deal to you, because you think defendants ought to get fair trials and stuff like that, but that's not the point of view they're looking at it from.
They're saying, what?
All of our hair sample testimony, all of our bite mark testimony, some huge percentage of our fingerprint testimony is all now being called unscientific and into question.
I mean, red alert, DEFCON 1 at DOJ, right?
Yeah, well, I mean, you're probably right.
However, you know, it is notable, though, that in the wake of the 2009 report that really, had the wheels come off the forensic bus, the FBI actually and DOJ have been pretty proactive.
I mean, they have, and have been actually over time.
I mean, it was the FBI, and I think 2004, before all this kind of stuff really was in the forefront, you know, went back to this old, you know, notion of bullet lead analysis, which is the notion that you can decide that, well, you can pin down to one specific batch of ammunition where, like, a crime bullet came from.
And they debunked their own work there and said, no, this is garbage, and we're not going to do this anymore.
And then, you know, more recently, they have undertaken, you know, they've gone back and look at their examiners that testified with hair and have said that, you know, they've been up front about how wrong their examiners were in hundreds and hundreds of cases, and they're not using that anymore and have changed their language.
And that was really them that caught themselves in those cases?
Yeah.
I mean, they actually, yes.
You know, the FBI works with the Innocence Project in the case of the hair microscopy stuff, and I don't remember exactly who initiated the bullet lead analysis, but I really think it was the FBI, or at least in tandem with someone else.
I mean, it's not as though, you know, it's not like there's some giant outside push for them to do this.
I mean, forensics have long enjoyed a great reputation thanks to shows like CSI, and the general public, you know, doesn't necessarily know that there's problems.
So they have had to basically work with a few stakeholders and really take in a, you know, sort of proactive approach to this.
And to me, that's one of the reasons that this is problematic, that they're saying just categorically they're not going to accept these recommendations.
You know, to the extent that it might call into question past convictions, that's the case with any of this stuff.
And just because someone might challenge a conviction, we all well know that doesn't mean they'll be successful.
So really, in order to shore up things going forward, they need to embrace the notion of science, and they need to also, because, look, a lot of these forensic practices will survive this scrutiny.
Fingerprints will survive the scrutiny.
They're not going to go away.
The problem areas are things like bite mark evidence, which we know is just absolute, complete garbage.
And you know, even the state of Texas has said there should be a moratorium on the use of this evidence.
Really?
So why this is so controversial, it's really because a small number of people are absolutely wedded to using this, chief among them the dentists for whom, you know, this is part of their livelihood and reputation.
And by the way, I just have to add in parentheses here, Jordan, that Radley Balco wrote a three or four or five part series or something for the Washington Post about this bite mark stuff that should, he absolutely should have won the Pulitzer or whatever, you know, corresponding prize for his journalism on that issue.
Everybody wants to learn about this bite mark voodoo is basically what it is.
And this kind of goes to an important question I want to get to here about, you know, what they call forensic science here and what have you, is we are talking about experts and maybe they wear white lab coats and this and that.
But this is somehow something different from science.
But so, you know, I don't know, what is science other than a conspiracy against my religion, Jordan?
What exactly do you mean to say that this is unscientific when the people doing the testimony, they call themselves scientists.
Sometimes their profession is a scientist of some kind or another, but you're saying that the their testimony doesn't really comport to scientific standards.
Can you clarify what you mean by that?
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That's exactly right.
First of all, I have to agree with you on Radley's, I think it was a four part series on the history and practice of bite mark evidence is pretty fascinating, mind blowing stuff.
Incredible stuff.
It's really great.
Yeah.
I mean, but you're right.
If they don't meet scientific, they're not rigorous scientific standards.
In other words, we cannot show that they're valid.
We cannot show that they're reliable.
And without those two things, you can't have science.
Right.
Okay.
So we and the other thing is, too, they have to have some kind of objective way of doing things.
Right.
Because what we have now is basically somebody who is trained in a subjective way, generally through a mentorship sort of situation.
And so you have lots of different biases that come in.
You know, there are so many instances where no two examiners will come to the same conclusion.
That is not science.
You cannot have, you know, five people and five conclusions about one thing.
They have to be able to be replicated.
And these things are not able to be replicated.
And that's all they're saying is, look, let's make them so that we can replicate the result.
And for a lot of these, it won't be hard.
Now, there is also, of course, one of the recommendations that they have where it comes to fingerprints and where it comes to firearms examination.
The recommendation is that they go to computerized programs, machine work, basically machine learning.
And there's already stuff out there that's starting to be able to do this because that will take all that subjectivity out of it.
We'll just have a whole sort of algorithm going on and the machine will be able to make comparisons.
And the perfect siren song anyway, down the line at this point.
But it's on the horizon.
And it's one of the things that they recommend is transitioning where it's possible to transition a lot of this work from subjective examiners to an objective examiner, which would be a machine essentially.
Right.
But of course, that's a lie, too, right?
Because the software is written by men and women.
The whole thing is.
And that's the point they make, actually, is that that the software, as the software is being developed, it has to be subjected to peer review by other scientists.
It's like a multilayered process, obviously, try to get to where we need to be.
But regardless, we have to get past where we are right now.
We do not have enough confidence in so many practices that are used every single day to help convict people.
If they are not valid, then it's scary, to be frank.
You know, it's just we really have to get past this point in time and move forward.
And the problem, partially with the DOJ rejecting the conclusion, is that unless we can get everybody on the same page, we're not going to be able to move forward.
I mean, the the bite mark people are just, you know, rabid about this.
They're furious.
The District Attorneys Association, the National District Attorneys Association, wrote this kind of ludicrous response where they're essentially saying, we don't need this.
We've been doing this for years and years.
Just fine.
I mean, that's literally their response.
It's like, oh, my God.
What are you talking about?
Right.
So just because you've been doing something for years doesn't mean that you're doing a good job of it.
It doesn't make it actually valid.
So I learned palm reading from my great grandma, you know, exactly, exactly.
So until these, you know, these stakeholders can get on the same page, we're kind of just stuck in this quagmire.
And that's not helpful to anyone, particularly a person who's being accused of a crime is facing, you know, prison time, which, by the way, I want to mention here today, I don't know if you've seen this, but your colleague at the Intercept here, Ava Kaufman, has a brand new one from yesterday called Losing Face.
How facial recognition mismatch can ruin your life about this guy who was falsely accused and severely persecuted over two bank robberies that he didn't commit because the computer says it's a match.
And of course, when the computer says not like there's accountability or responsibility in police forces anyway, but when it's the computer, there's not even a person to get away with it.
It's everybody's fault.
And yet you can still have just as bad of victims as you have in this case.
And so, you know, that's where I wonder whether you can trust a cop or a computer at any point, even far into the future, with being, quote unquote, better than one or another at matching a fingerprint or matching a face, because, you know, at the end of the day, what they're talking about is little data points and math problems and not real reality.
You know, it's their simulation of a print to see if it's close enough to another and this kind of thing at best.
Yeah, the story about the facial recognition stuff is great.
And in that case, what happened was, first of all, it's a get go situation, right?
Garbage in, garbage out.
So they had these, you know, closed circuit images from the bank, which were horrible.
They're taken from a really, like, wide, high angle.
The guy's got a hat on.
Also, those images distort greatly.
They have terrible resolution.
And so, they put that garbage in next to this picture of this man.
And then they have the FBI examiner looking at it and making conclusions, like, look, this guy's ear looks like this guy's ear.
I mean, literally, that's what they're arresting him based on subjective determinations like that.
I mean, there obviously are, you know, computer programs.
But again, these are, they're being, what you put in, it's the get go thing, right?
Garbage in, garbage out.
So they're putting crap in.
They're going to get it, you know, and then they have somebody eyeballing it and saying, you know, that was right.
And that's how this guy ends up fingered for these two robberies in Denver, neither of which he committed.
Right.
This is where we get to what you were saying about how scary it is, because you can't count on any of this stuff.
You can't count on what the cops are introducing as evidence, whether it's computerized and therefore more, quote unquote, objective and scientific looking, or whether it's just a guy who's really good at this man staring at some teeth marks and saying, you know, he's sure or whatever it is.
I mean, guys, sounds like innocent people are going to prison and guilty people are getting away with murder out there.
Jordan.
Yeah, that's what happens.
That's what happens every time an innocent person is convicted, a guilty person goes free.
Speaking of which, how's Rodney Reed doing lately?
They haven't murdered him yet.
No, he's still waiting to there's still a battle going on over DNA testing and whether he's going to get the DNA testing that he's been requesting.
It's been going on for feels like forever now, but well, eventually when his life eventually when his life is saved, it'll be in no small part due to your work there.
So congratulations in advance for that.
I just have to believe that at the end of the day, he's going to get a reprieve here.
There's no way they're going to be able.
Well, no way.
I don't think that with the work you've done and others, of course, as well, that they're going to be getting they're going to be able to get away with killing Rodney Reed.
I mean, well, I just can't believe that I guess, you know, if if, you know, he was just another guy on death row and they got away with it that or, you know, they did it.
That's one thing, but not with Jordan Smith on the case and not with all the developments in his case since you took it on and all that.
I just if that's if that's true, then forget Hillary this or Trump that we all need to flee America if they can get away with executing this guy right now with all of the proof of his innocence that's already out there.
And just like the last guy, I mean, the last guy came on the show to talk about he was innocent.
They went ahead and executed him.
The guy who his lawyer did such a crappy job trying to pretend that he was never even in the same county as the victims, when, of course, he was put on a really lame defense and they killed that guy.
Right.
What's his name again?
Lester Bauer.
You're right.
Right.
Lester Bauer.
Yeah.
Yeah.
Lester Bauer.
Yeah.
And he was on he was on death row for 30 some years.
I mean, just ridiculous.
The whole thing was a circus.
Yeah.
But yeah, they went ahead and executed him.
Well, you know, I don't have time to ask you about this.
I'll let you go and everything.
But I want to mention this article that I haven't even had a chance to read yet.
But I found in your archive here that I had missed when it came out last June.
The death penalty is largely driven by a small group of people.
It's a small group of people.
It's a small group of people.
Yeah.
And this is, you know, just real important.
I'll just I guess mention, as you put it in the beginning here, where the Supreme Court, when they outlawed the death penalty, they said because of how arbitrary and capriciously it is applied arbitrarily and capriciously is applied.
That's why it's unconstitutional.
And then that was overturned.
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These judges, these DAs, these juries for that matter, these expert testimony, you know, people who get paid to testify for the prosecution for a living.
A little Freudian thing there.
Yeah, man, it's really horrible.
It's shocking, but it's not surprising, but it's the kind of thing that we wouldn't have known if it wasn't for you.
So great work as always.
Thank you, Jordan.
Hey, thanks so much.
Have a great day.
Appreciate it.
And y'all, this interview did not do justice to her great article here whatsoever.
I mean, this thing is, you know, three or four thousand words and worth every bit of your time to look at.
FBI and DOJ vow to continue using junk science rejected by White House report.
I mean, if it wasn't for every other thing going on in the world right now, this would be the scandal of the century.
This is just, these are your friends and family members and neighbors being locked up over nonsense.
So learn about it.
The Intercept.
Intercept.com.
The heroic Jordan Smith.
Hey, y'all.
Scott Horton here.
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