Fighting "Junk" Sciences Resulting in Wrongful Convictions

You have watched CSI or NCIS, right? Maybe the Forensic Files? You’ve seen how the “bad guy” was found using bite-marks, hair analysis, fingerprints, firearm identification, shoe-prints, or even DNA. Thousands of convictions solely from those forensic sciences. What if I told you these “junk” sciences were essentially debunked by a top government report released last week?

The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” comes from the President’s Council of Advisors on Science and Technology (PCAST), which was tasked by President Obama back in 2015 to consider whether additional steps could be taken to strengthen the forensic-science disciplines and ensure validity of forensic evidence. PCAST compiled and reviewed more than 2,000 papers, submissions and other reports in preparing its report.

This report took to task seven forensic feature-comparison methods, even finding some methods “far from meeting the scientific standards for foundational validity.”

So what does this really mean? Well the report looked at “feature-comparison methods” which are methods that compare two samples to see if there is a match based on identified features. Basically, feature-comparison methods work like this: the Crime Scene Tech shows up at a crime scene and takes some sample of evidence (a photograph, a sample of blood from the ground, a partial fingerprint) and brings it back to the lab in an evidence bag. Then at the crime lab, an examiner analyzes that sample from the scene and attempts to compare it with samples of from known sources, such as an already identified suspect. A “match” means the police have ‘found their man.’

Five years at the Miami-Public Defender’s Office as an assistant public defender, and another three years in private practice as a criminal defense attorney, has shown me that the “match” is not always as it seems. Now the government and scientific community is catching up and providing valuable research and evidence challenging for the first time what has been held as infallible science.

The PCAST report looked at first at foundational validity of the method and then validity as applied. Foundational validity of a method means the method is based on studies and evidence and that it can be repeatable, reproducible, and accurate at levels that have been measured and are appropriate – in essence, the method is reliable.  

Validity as applied focuses more on how the method is applied in practice. For example, did the tech reliably apply the method in the case?

In essence, is the method reliable and did the examiner reliably apply the method in the case.

What the report found should be shocking, at least to those who don’t practice daily in criminal law.

As to DNA, what many consider the infallible forensic science, the PCAST report found that depending on the type of analysis (single-source/simple-mixture sample vs. complex-mixture samples) there were several factors that can and do cause errors, whether based on the foundational validity or, more frequently, as applied when human error comes into play. Errors can come into play where the tech inappropriately collects the sample from the scene, or in sample mix-ups, contamination, incorrect interpretation, and errors in reporting.

The PCAST report also found serious issues with latent fingerprint comparisons (comparing a partial fingerprint from a crime scene with known prints taken in a controlled setting). This field is highly subjective because it requires examiners to analyze that partial print to find certain characteristics and then compare those with other prints. Many of these examiners are also members of law enforcement and the prosecution team, thereby carrying an inherent bias that shouldn’t exist in a scientific setting.

The report noted that some studies have found false positive rates at 1 error in 306, and even 1 in 18! Yet these fingerprint identifications are sometimes the sole evidence used to convict defendants in criminal courts. Remember that the FBI announced a print from the 2004 Madrid train bombing was a perfect match to an American lawyer, but that was quickly debunked by Spanish law enforcement whom identified a different individual as the source of the print.

Bite-mark analysis was another “science” that PCAST reviewed. As the name suggests, the tech compares mark left on a victim or object with the dental impressions taken from a suspect. The PCAST report found bite-mark analysis is “far from meeting the scientific standards for foundational validity.” That examiners couldn’t agree on whether an injury is a human bite-mark surely assisted in that conclusion.

The report also found that firearm, footwear, and hair analysis were not foundationally valid as there were no real studies or empirical evidence backing up the methods as repeatable, reproducible, or accurate. A 2015 Department of Justice (DOJ) and FBI report that reviewed 3,000 criminal cases involving hair analysis discovered that in more than 95% of those cases the FBI examiners provided scientifically invalid testimony that was used to inculpate or implicate he defendant. Convictions based off of “junk” science.

All of this is important because judges and jurors in this country are often presented “scientific” evidence that is “100% certain” or that have “zero,” “essentially zero,” or “negligible,” error rates. The reality is that much of the so-called forensic sciences aren’t based off of any science at all, but are resulting in the convictions of thousands of innocent criminal defendants. And criminal defendants, when presented pre-trial with this “scientific” evidence, often are compelled to plead guilty for a negotiated sentence rather than go to trial because of the misplaced trust so many have in this “scientific” evidence.

That’s why it’s important for not only criminal defense lawyers like myself to be familiar and proficient in attacking this evidence, but also for the community at large to challenge these “scientific” methods that have long been held to be infallible, and for the scientific community to develop scientifically valid methods to ensure the innocent aren’t wrongly convicted.  

It is important that we start now in challenging this evidence, because there is no guarantee that past convictions will get the review they should receive. As Federal Judge Alex Kozinski noted in a recent commentary in the Wall Street Journal, even though a 1997 DOJ report impugned 13 FBI lab examiners involved in more than 7,600 cases (64 capital murder cases), by 2014 only 312 had been reviewed to determine whether convictions were obtained through discredited methods.

I would certainly suggest that criminal defense attorneys review the full report, but I’d recommend everyone take a few minutes to read the 20 page Executive Summary. The PCAST report is not only eye opening, but offers quite a few of important recommendations to fix the problems presented today and to work towards eliminating wrongful convictions. 


George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

A contract...to save the friendship?

We’ve all been there. Someone in our circle comes up with a great idea to head to South Beach and start a night club. Everyone is on board because, well, we all saw the movie Studio 54. So we all throw in some money to buy the space and operate the club. Since we are all friends, who needs a contract? Well, a case out of the Third District Court of Appeal in Miami, Florida, gives us a good reason why you better get it all written down and be detailed about it.

In Demir v.Schollmeier, two personal friends (as you probably guessed, Demir and Schollmeier) decided to form Avrupa, LLC (a limited liability company) for the purpose of managing and operating a night club on Miami Beach called “Club Sin.” Demir’s brother also joined the company, and the three partners wrote up the “Avrupa, LLC Contribution Agreement” which outlined how much each person would contribute to the company and for what percentage. The agreement further laid out how Schollmeier could withdraw from the company and stated that the agreement is a Limited Liability Agreement under the Limited Liability Company Act of Florida.

If you didn’t know, there are different laws that lay out the formation and operation of corporations, limited liability companies, and non-profit corporations. Within those laws are prescribed the rights, responsibilities, and the protections and possible penalties for complying or failing to comply with the provisions.

Needless to say, like all great Miami Beach night club stories go, the partnership ended. Schollmeier wanted his $400,000 back, and Demir refused, so a lawsuit ensued. But Schollmeier sued Demir personally for, among other things, breaching the agreement and demanded the $400,000 in return.

Ultimately, the trial court agreed with Schollmeier at summary judgment (a proceeding when there are no facts in dispute and the judge rules for one side based on the law applied to those undisputed facts) and ordered that Demir was personally liable for the contribution made by Schollmeier.

On the appeal, the Third District disagreed and ruled that Demir wasn’t personally liable to Schollmeier for the money. While on its face the agreement didn’t specifically say it was a Limited Liability Company Operating Agreement and it wasn’t entered into at the time Avrupa was created, it was clear that the agreement was an operating agreement because it dictated the nature of the parties’ relationship and the obligations each owed to the others with regards to the company. And since an operating agreement governs the relations among the members, the managers, and the company itself, the agreement could also state whether the individual members owed any duty to the other members.

With that in mind, the Third District looked at the provisions of the agreement to determine whether or not it dictated that the members of Avrupa are directly liable to each other for breaches of the terms of the agreement. The Third District found that the agreement did not contain any language or provision indicating that any member of Avrupa would be personally liable to any other member for the company’s obligations, and that if they intended that to be so the agreement would need to be explicit as to that point.

As a result, the Third District held that Demir was not personally liable to Schollmeier for his contribution to the company. A big relief for Demir, for sure. Without this written agreement, Demir would be personally liable for almost $400,000 to Schollmeier. Or, in the alternative, even if it was their spoken intention that the parties be personally liable to each other for any breaches of the agreement, because it wasn’t included in the agreement Schollmeier is out of luck.

This case underlines the importance for having a detailed, written agreement in place in any business transaction, even if between friends. Whether in the formation and operation of a limited liability company or corporation, or a contract for the sale goods, anything can happen. Besides friendship, $400,000 could hang in the balance.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

“This is confidential, right?”

Time and time again, my father is always giving me some ‘secret’ information on something and he always prefaces it, in his thick Greek accent, with, “this is attorney client confidentiality.” I gave up years ago trying to explain how it wasn’t, partly because he didn’t care and partly because I wanted to hear this morsel of information. But it comes up often in my daily interactions, either as a result of my practice or in day-to-day life, that questions about confidentiality and privilege regarding attorney-client communications are raised.

Conveniently, the Third District Court of Appeal in Miami recently released an opinion that gives a thorough explanation of confidentiality and privilege in the attorney-client realm. The case is Michelle Coffey-Garcia, et al. v. South Miami Hospital,Inc., et al.

Briefly the facts surrounding the case involve the parents of a young girl, tragically diagnosed with cerebral palsy, who filed a medical malpractice lawsuit against the hospitals, clinics, and doctors that were involved in the birth. The hospitals, clinics, and doctors questioned the mother in a deposition about the lawyers she consulted regarding the case, and she indicated that her current lawyer wasn’t her first. She then refused to answer any other questions about the prior lawyers, and cited the attorney-client privilege as her reason to refuse.

Those hospitals, clinics, and doctors asked, and the trial court ordered, that the mother answer all questions regarding when she first sought counsel, the names of the attorneys she consulted with, and the reasons why she first sought out all of the different lawyers.

On the appeal of the trial court’s order, Third District Court of Appeal gave a thorough explanation regarding confidentiality and privilege related to attorney-client communications.

To break it down, in Florida what you know as the “attorney-client privilege” or “confidentiality” actually originates from two sources: from the Florida Statutes (the laws of Florida) and from the Rules Regulating the Florida Bar (the Florida Bar licenses and regulates attorneys in the state).

Within the Florida Statutes is the Florida Evidence Code, which governs what is and isn’t evidence, and what can and cannot be allowed into a proceeding as evidence. These types of proceedings would be judicial or administrative proceedings, such as depositions, trials, traffic hearings, and the like. Section 90.502 creates what is called the “attorney-client privilege,” and that allows the client of an attorney to refuse to disclose and to prevent anyone else from disclosing the contents of the confidential communications made during the legal services.

What that means is, a client in a judicial or administrative proceeding (like a deposition in a lawsuit) can refuse to answer questions about the contents of the discussion they had with their lawyer. That client can also prevent the lawyer from disclosing those contents of the communication, as well as the lawyer’s staff or anyone the lawyer hires to help him in handling the legal services for the client (like a private investigator).

The Rules Regulating the Florida Bar, in the confidentiality sense, are a little different in that they govern disclosure outside of the judicial or administrative arena. This is termed “the rule of client-lawyer confidentiality” (found at 4-1.6), and is directed more towards the attorney since the Rules regulate lawyers. The Rule lays out when a lawyer can and cannot reveal confidential information related to representation of the client. There are only two instances when a lawyer must reveal confidential information regardless of the client’s consent: 1) when the lawyer reasonably believes it's necessary to prevent the client from committing a crime, and 2) to prevent the death or substantial bodily harm of another.

As a criminal defense attorney, I often get asked by people if my clients ever admit to having broken the law and do I have to tell the judge or police if they admitted it. Whether my clients do or don’t tell me if they’ve broken the law or committed the crime, this Rule prevents me and every other attorney from telling anyone if they admitted to breaking the law. It would be different, however, if perhaps a client told me they were on their way to a bank to rob it, and I reasonably believed the client.

Back to the “rule of client-lawyer confidentiality,” it generally applies outside of judicial or administrative proceedings. This could be during telephone conversations between opposing attorneys or when an attorney is in front of the TV news man giving an interview regarding the case.

Going back to the case before the Third District Court of Appeal, they had to decide whether the questions the hospitals, clinics, and doctors were asking would violate the attorney-client privilege during a deposition in a legal/judicial proceeding.

The Court ruled that the privilege protects the communications between the client and the lawyer, which we now know. But the Court further stated that any independent facts the client learned is not protected under the privilege.

This is quite the nuance to grapple with so let me give you an example to illustrate. Let’s say Client A sees a dog with purple hair running across the street (and let’s further pretend this purple dog has SOMETHING to do with a lawsuit). Client A then goes to her lawyer and tells the lawyer that she saw a dog with purple hair running across the street.

Now in a deposition during the lawsuit, if Client A is asked “what did you tell your attorney,” she can refuse to answer the question and invoke the attorney-client privilege. But if Client A is asked “what color hair did the dog running across the street have,” she cannot refuse to answer and invoke the attorney-client privilege because she told that to her lawyer. She learned that the dog had purple hair independently from talking with her lawyer, so there is no confidentiality to the fact that the dog had purple hair.

Now if her attorney told her that the dog is owned by the owner of the Miami Dolphins, she could refuse to answer the question “do you know who the owner of the dog is” and invoke the attorney-client privilege because she didn’t independently learn the fact outside of the confidential communication. 

Back again to the case before the Third District Court of Appeal, it was decided that questions as to the names of the attorneys and the dates the mother consulted with them was not confidential and could be asked. The reasoning, again, is that there is nothing in that information related to the contents of the communications.

The Court drew the line, however, regarding any questions asking why the mother sought out legal counsel and any subsequent lawyers. The reasoning here is that the reasons for seeking out an attorney and subsequent attorneys will lead to questions as to what was told to you by the first attorney that caused you to go to the second attorney, and third. Was some specific piece of advice given that triggered you to see another attorney? This line of questioning results in the contents of the confidential communications being revealed, and that would violate a client’s “attorney-client privilege.”

As you see, protections have been put in place to protect you, the client, with regards as to your communications with your lawyer. Those secret morsels of information my father would give me (assuming he’s my client and I’m his attorney, which he always does) wouldn’t necessarily invoke the “attorney-client privilege” in some judicial proceeding because he got it from someone or somewhere else. But I would be prevented by the client-attorney confidentiality rule of the Rules Regulating the Florida Bar from revealing those secret morsels of information he gave me to anyone else (like my mom, perhaps?) without his informed consent.  

And so his secrets are safe with me, just as with any of my actual clients, whether in business or in the criminal court setting.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.