The American Criminal Justice System: “Houston, We have a
Problem.”
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| James Ferguson |
Mark
Fuhrman, convicted of a felony perjury after the O.J. Simpson trial, is now a
national Fox legal analyst, an “expert witness” on police matters. Last week,
the 6th Circuit Court of Appeals in Cincinnati, Ohio, ruled “Dr.” James
Ferguson, a state toxicologist, convicted of perjury, could NOT be sued or
found liable for lying in a murder case where his expert witness testimony was
relied upon by the judge for the conviction. Fred Zain, toxicologist at the
West Virginia Department of Public Safety, falsified lab results which resulted
in as many as 134 wrongful convictions. Once under investigation, he merely
picked up and moved to San Antonio, Texas to work as a toxicologist where an
investigation found at least 180 cases in which fraud may have led to wrongful
convictions. He died in the comforts of
his Florida home in 2002. Picking up the pieces in Boston, Massachusetts, over
34,000 lab results are now in question after state toxicologist Annie Dookhan pled
guilty to crimes related to falsifying results. These cases are just the recent
ones. They are only the tip of the iceberg. If an athlete is caught cheating in
the Olympics, he or she is stripped of their medal and the opportunity to
compete. In the criminal courts of America, if a police officer or expert
witness is lying to obtain a conviction, they get promoted and receive raises. If
their lies are caught, the Courts protect them. The 6th Circuit Court
rationalized, “Dr. Ferguson deserves absolute immunity in the case because all
testimony, even if perjured, is protected to ensure witnesses will be candid
without fearing lawsuit.”
Mind
you, this absolute immunity protection ONLY applies to government witnesses.
It‘s the same type of logic as preventing poisoned customers from suing a chef
because this would stifle the chef’s creativity in the kitchen. How many chefs
would poison patrons? An illegal and unlikely scenario as restaurants would
shut down and there would be health code compliance complaints. These
safeguards do not play out in the criminal justice system. Quite the opposite:
convictions win elections, including in the appellate arena, and look great in
the media while those successful earn job promotions.
As for a forensic regulatory body, NONE with
any regulatory powers over the criminal justice system exist, although the
first National Commission on Forensic Science has just been created. What is
currently in place is a scandal ridden “pay as you go” certifying agency environment
where groups like the American Crime Lab Directors (under major fire and
litigation) can issue board certifications and certificates for a fee despite
not adhering to scientific peer review recommendations; e.g. blind audits, true
proficiency tests.
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| Annie Dookhan |
How
does this happen? It starts with
deception and a lack of qualifications with no one caring enough to check. “Dr.”
James Ferguson, did not have a doctor’s degree, nor a master’s degree and it is
questionable that he even posses an undergraduate biochemistry degree (the
University records showing how he was able to finagle this degree are
“missing.”). According to an Ohio State University Biochemistry professor since
1965, Mr. Ferguson is missing six of the 15 required courses in his major. He
failed chemistry courses seven times. His grades are poor. The same deception
unveils with Fred Zain. Mr. Zain claimed to have graduated from West Virginia
State College (now West Virginia State University) with a major in biology and
a minor in chemistry. Records show he never minored in chemistry. He had only taken
a few courses in chemistry, all of which he either flunked or barely passed. He
also failed an FBI course in forensic science including the basics of serology
(blood testing) and bloodstains. Annie Dookhan also feigned credentials. She
claimed she had a master’s degree in chemistry from the University of
Massachusetts at Boston. School officials have confirmed she has no such
degree, nor has she ever taken any master’s courses there. Amazing how one can’t even qualify to get
into a nice apartment complex without a background check, yet the government
can lock you in prison based on fraudulent toxicology reports by fake experts. The “fact checking”
only seems to work one way. Before even negotiating a plea bargain, a district
attorney always runs the criminal history of a defendant. Most district
attorneys’ offices employ multiple investigators to locate witnesses, verify
witness accounts and check backgrounds.
Wouldn't it be most prudent to spend a mere pittance on ordering
academic transcripts from “expert witnesses” and running background checks
before we set them loose on lab tests ? As far as tax payer dollars are
concerned, it costs roughly $45k a year to house an inmate. The taxpayers don’t
get that money back once it has been spent housing a wrongfully convicted
person. In Fred Zain’s case, West Virginia alone shelled out a combined total
of $6.5 million to the wrongfully convicted- all while the guilty, prevaricating
witness is lucky to even be prosecuted.
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| Fred Zain |
Let’s
face it, nobody wants to hear of a lying government expert witness who has
managed to defy all the common sense odds and get away with convicting innocent
people with the seeming approval of all the cogs in the justice system from the
prosecutor to the judge. So, the only
way to calm the ruckus down is to distract and “whitewash” the problem. In
James Ferguson’s case, the media reported he had merely misreported his
graduation year of 1988 for 1972. Sounds harmless enough, right? Except, this
fails to account for the fundamental problems lurking under the surface. The
fact that it took Mr. Ferguson twenty five years to obtain his degree also
explains why he could not produce the gc-mass spectometry chromatograms (if in
fact he even knows how to run a gas chromatograph) in Benjamin Uselton’s case
alleging intoxicating dosages of alprazolam, where the coroner, a phD, had
already reported the absence of such findings in the original autopsy. Mr.
Ferguson’s unconventional scientific methods were also key in Virginia
LeFever’s murder conviction where he asserted the deceased had lethal dosages
of strychnine in his rectum, despite reports to the contrary by medical
personnel who treated the deceased when he was brought into the hospital for an
antidepressant overdose. While a special panel of lawyers, scientists and West
Virginia Senior Circuit Judge James Holliday were investigating Fred Zain’s
misconduct, he managed to hoodwink Bexar County, Texas into letting him take
over their toxicology. The untimely for Texas, West Virginia report when
finally issued, concluded his misconduct was so egregious, any testimony he
offered “should be presumed as prima facie invalid, unreliable and
inadmissible.” In Annie Dookhan’s case, she was too busy churning out guilty
convictions for her satisfied prosecutors for her supervisors to acknowledge
that her 500 lab analysis per month (five times the national average) was a
glaring red flag. They also conveniently glossed over the fact no one had ever
seen her work a microscope and that she had a bad habit of misidentifying
samples. It seems she subscribed to, “A
little inaccuracy sometimes saves tons of explanations." (Saki)
As
incredulous as these sordid tales are, the aftermath is even uglier. They will
continue to happen unless decisive measures are taken. It took drug testing in
the major league sports to prevent cheating. The “honor” system was just not
working, ask Alex Rodriguez. The Tour de
France can reclaim the seven Tour de France medals Lance Armstrong won while
taking performance enhancement drugs, but a lying “expert witness” cannot
restore the years lost to prison of someone framed by an uncaring and negligent
justice system that turns a blind eye. Bo Bennett said it best, “For every good
reason there is to lie, there is a better reason to tell the truth.” That
reason should be the fear of repercussions. If a person can have their
probation revoked for something as simple as missing a report period or failing
to take required classes, we should require our government “experts” to prove
their worth and work. It’s one thing for
a charlatan preacher or carnival barker to line their pockets disingenuously, a
whole other to allow unqualified and unethical government “experts” to play God
with people’s lives based on shams.
Here
is a simple and common sense roadmap that doesn’t take a college genius to
figure out. We must start off with safeguarding the integrity of our country’s
most precious institution, the justice system.
First, we must separate police work and its prosecution from toxicology.
The only bodies that scientists should be reporting to are other scientific
bodies (legitimate, of the academic and scientific peer review variety).
Currently much police miscegenation occurs, right down to the divvying and
mixing up of funds and paychecks. Forensic results should be reported to the
government, not controlled by the police or prosecution (as the Virginia
LeFever murder conviction demonstrates where the prosecutor told James Ferguson
what they were looking for despite the coroner’s findings). Second, although
ethics is the new corporate “it” word, it seems to be staggering behind in the
world of the police state. We must make
it an essential minimum and reality in the HR of government personnel hiring.
Proper screening of candidates and reference checking should be mandatory and
commonplace. Our government experts
should not only demonstrate the highest academic credentials, but they must
also possess character beyond reproach; for their opinions don’t favor the
highest bidder of a government contract or the buying power of widgets, but
directly affects the value and experience of human life, a far more precious
commodity and one that our Constitution was designed to protect. The type of
character of one to whom so much power is given must be circumscribed with
honesty, meticulousness, and trustworthiness.
Third, we must not “trust” that local governments can ferret out frauds.
There needs to be uniform national and consistent standards, protocols, and
mandatory continued professional education akin to what lawyers,
accountants, doctors, nurses, architects
and engineers are required to take to take to keep up with developments in the
field. All experts should be subjected to national certifications testing their
proficiency before they can practice, akin to passing the FBI forensics courses
to prove they possess the minimal aptitude and skills with which to handle and
report laboratory evidence before doing so.
Hopefully, the time has come where enough shame and disgust can propel
us forward to reclaim what in theory should be the world’s best justice system,
but is currently a far cry.
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