President’s Message — February 2018

Source:  Betty Layne DesPortes, JD, MS, 2017-18 President

For this month’s President’s Message, I would like to run the President’s Editorial article that was published in the January 2018 issue of the Journal of Forensic Sciences, Vol. 63, No. 1

There are No Sides in Forensic Science

When I became President of the Academy, the first question a reporter asked was: “What does the selection of a criminal defense attorney as President of AAFS say about AAFS and forensic science in general?” After a quip about my apparent likeability, I responded that it had no significance as forensic science is important to everyone involved in the justice system. The interview moved to substantive questions about the end of the National Commission on Forensic Science and the leadership of the Department of Justice. The reporter did not include in the article the initial question and response, and I forgot about it. But subsequent reporters asked variations of the same question, sometimes with an incredulous “but you are not a prosecutor” thrown into the question’s preamble, and I became concerned. Why were they asking this? As clear as it was to me that forensic science and the Academy were not the provinces of law enforcement, it was equally clear that this was not the perception of the media or of the public. How could this be? Many crime shows depict law enforcement and the defense using scientific evidence. News articles frequently describe the role of scientific evidence in the conviction of the guilty and in the acquittal or exoneration of the innocent. The prevalence of science in both civil and criminal litigation is undeniable. Yet, forensic science was still being considered the exclusive tool of the prosecution. Forensic science, it seemed, was only used “to convict people.”

The reporters’ surprise that a criminal defense attorney could lead a professional forensic science organization, and would be an advocate for the use of science in the justice system, evidenced this misperception. The importance of forensic science in civil cases was being overlooked entirely, and more troubling, forensic science was being cast in the role of advocacy. Advocacy is inconsistent with science. The foundation of advocacy is a cause; the foundation of science is fact. Advocacy has a predetermined goal and seeks the most persuasive path to achieve that goal, selectively presenting facts to support an argument. Science has no predetermined goal. It follows the path determined by the facts. Science is a method, a way of gaining knowledge and explaining events or conditions through testing and factual observation. By casting forensic science in an advocacy role, the reporters’ perception misconstrues the true foundation of forensic science and limits its efficacy. The reporters’ question made it clear that forensic science is well known, but not well understood. Forensic science has a communication problem.

So instead of minimizing the significance of my background as a criminal defense attorney, I embraced it and used it to correct the misperception that forensic science has an advocacy role. My standard response became: “There are no sides in forensic science. We all believe in the power of science to assist in the pursuit of justice by seeking the truth.”

This response built on a statement from AAFS Past President Thomas L. Bohan, Ph.D., J.D. Many years ago, Tom had taken offense at a laboratory director’s reference to me as “the other side” during a Consortium of Forensic Science Organizations meeting,1 and had declared “There are no sides in forensic science!” Delivered in Tom’s booming voice, the declaration made quite an impression on the laboratory director and on me. Those seven words succinctly characterized not only the objectivity of forensic science, but also the nature of the Academy’s membership. At Academy meetings, there were no references to “us” and “them,” it was always “we.” We may disagree on policies or the particular capabilities or limitations of certain scientific methods, but we all fervently believe in the importance of science to the justice system. I began to look forward to the inevitable question on the improbability of a criminal defense attorney serving as AAFS President. The question was an opportunity to repeat Tom’s memorable line in describing the importance of science to everyone in the justice system and the shared mission of the Academy members to advance the application of science to the law. To reinforce that message, I frequently told reporters about my first presentation to the Academy.

At the 1999 Annual Meeting in Orlando, I gave a presentation to the Academy entitled “Forensic Science and the Criminal Lawyer: A View from the Front Lines.” I had been working as a lawyer for almost five years and frequently represented indigent criminal defendants as part of the Commonwealth of Virginia’s court-appointed defender system. I was not a public defender, but a private attorney who represented indigent criminal defendants at rates established by the state. During those five years, my law partner, Steve Benjamin, and I were waging a fierce legislative, legal, and media battle over the inadequacy of the indigent defense system in Virginia. Three years earlier, we had obtained the decision in Husske v. Commonwealth,2 in which the Virginia Supreme Court first recognized that the constitutional requirement that the state provide an indigent criminal defendant with the “basic tools of an adequate defense” included the appointment of forensic science experts. That this was a “landmark decision”3 reflected the sorry and neglected state of indigent criminal defense in Virginia in the 1990s.

At the time of the Academy presentation, I was feeling beleaguered from the fight to reform Virginia’s indigent defense system and had found little solace in the legal community. We were in the midst of a challenge to Virginia’s statutory scheme for providing representation to indigent defendants. Unique to Virginia, the statutory system for court-appointed criminal defense imposed a nonwaivable limit on the amount an attorney could be paid for the defense of a criminal case, and often required attorneys to fund the defense with their own resources and for no compensation. Although lawyers had noted for decades that the grossly inadequate compensation system resulted in the denial of the right to effective assistance of counsel, the issue had gained little traction until we began to challenge the system as a financial conflict of interest denying due process to the indigent criminal defendants in our court-appointed cases. In response to asserting our clients’ constitutional rights, a trial judge removed my law partner from three court-appointed cases and decreed that any attorneys raising the issue would be removed from all court-appointed cases. The judicial decree had the intended effect and no other attorneys raised the constitutional challenge to the court-appointed system. We were the only attorneys to litigate the constitutional issue in the appellate courts in Virginia.4

During the presentation, I mentioned a case that we had handled the year before, our last court-appointed case.5 The defendant was accused of first-degree murder and use of a firearm in the commission of a felony. He was also innocent. The case took six months from charge to acquittal. It involved numerous meetings with an incarcerated defendant, scene visits, DNA testing, four hearings, and a three-day jury trial. All total, we spent 68.1 hours on the case. For the two charges, we were paid at less than the rate I charged for babysitting in high school. Factoring in the overhead costs we had to pay to work as lawyers (rent, professional dues, telephone services, etc.), representing our client cost us several thousand dollars.6

My intent in discussing the case, and the other challenges that indigent defendants faced, was to emphasize the importance of forensic science evidence and the defense bar’s need for this evidence to protect the innocent and the accused. Forensic science evidence is a resource with the power to illuminate the truth, balance the scales of justice, and give meaning to the promise “The truth shall set you free.” But, even that resource can be out of reach for a criminal defendant if the defense attorney fails to understand the potential of the scientific evidence. My presentation was a plea to the forensic science community to teach the legal profession how to use science to better represent indigent defendants.

The most memorable part of the presentation was nothing that I said. It was what happened at the end of the presentation. Dozens of forensic scientists lined up to offer their assistance to Virginia’s indigent defendants. The line of people stretched from the stage to the end of the ballroom. Person after person handed me their cards or wrote their contact information on my notes. They offered to provide affidavits to secure expert funds, to review results, to suggest probative testing, and to provide laboratory services. It took me over thirty minutes to collect their offers. They were from all sections of our Academy and from all across the globe: a questioned documents examiner from the Royal Canadian Mounted Police offered to review documentary evidence, a DNA examiner from Maryland offered to teach court-appointed attorneys about DNA analysis, a forensic toxicologist from Massachusetts offered to do blood alcohol testing; the list goes on. And, they offered their assistance even if the court would not approve the funds. After years of fighting with other attorneys, judges, and legislators to get even basic constitutional rights guaranteed for indigent criminal defendants, I had forensic scientists volunteering to help after a 15-minute presentation of sixteen incredibly bland slides.7 The forensic scientists had no concern about pay or that they would be working with defense attorneys. They recognized and understood that scientific evidence was important to justice. For forensic scientists, whether it was the defense or the prosecution that needed their help did not matter. The only thing that mattered was whether science could assist in the search for the truth.

I came away from that presentation with a stack of business cards and the knowledge that the Academy is a vital resource for the legal community as well as the forensic science community. Throughout the years, I have enlisted the assistance of those forensic scientists and many others in the Academy in working to improve the criminal justice system by increasing the availability of forensic expertise to the criminal defense bar and illustrating the importance of science education for all parties in the justice system. Academy members have worked with me in more cases than I can count and helped with training indigent defendant counsel through the annual Indigent Defense Training Seminar in Virginia. For every wrongfully accused or wrongfully convicted defendant that my law partner and I have set free, we had the assistance of DNA analysts, digital forensic technicians, forensic pathologists, bloodstain pattern analysts, and many other forensic scientists.

I never did have a case for which I could call upon the gentleman from the Royal Canadian Mounted Police, but I drew strength from the knowledge that he was there.

1.  The laboratory director was trying to emphasize the transparency of the CFSO activities and the inclusiveness of the group’s representation. Unfortunately, his word choice undercut his efforts.
2.  252 Va. 203, 211, 476 S.E.2d 920, 925 (1996).
3.  In O’Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499 (1988), the Virginia Supreme Court had held that an indigent criminal defendant, even in a capital case, had no constitutional right to state-funded nonpsychiatric forensic science experts.
4.  See Webb v. Commonwealth, 32 Va. App. 337, 345–350, 528 S.E.2d 138, 142–144 (2000) (“Virginia is ranked fifty-first among the states and the District of Columbia for allowable compensation for court-appointed attorneys and that disparity between Virginia and the other states is overwhelming.”)
5.  Shortly before trial, the judge announced he was removing us from the case because we had raised a systemic due process challenge to the court-appointed system. The defendant begged the judge not to remove us and the judge relented. On the third day of trial, the Commonwealth conceded that our client was
innocent and dropped all charges against him. The true murderer was arrested in the courthouse hallway. Based on the forensic science evidence and witness testimony that we discovered, she was later convicted. After the case, to avoid enabling an unconstitutional and dysfunctional system, we removed our names from the roll of court-appointed attorneys in Virginia. Ultimately, in response to a drafted class action lawsuit on behalf of indigent criminal defendants, media pressure, and the support of key legislators, the state lifted the mandatory caps on court-appointed compensation.
6.  While all attorneys commit to working the hours necessary to defend their clients, indigent defendants should not have to worry that their freedom relies on an attorney who has an inherent financial conflict of interest.
7.  This was before PowerPoint. I still have those slides.