Federal judge blasts Robert's Court for 'undermining American democracy'

Judge Lynn Adelman, of the Eastern District of Wisconsin District Court, latest piece in the Harvard Law Review is powerful, reports the blog Above the Law.

The article goes hard after the Roberts Court and the conservative majority who has made it their mission to move American jurisprudence to the far right. A move Adelman calls out as “undermining American democracy.” He begins by pulling the mask off the veneer of impartiality that John Roberts, in particular, loves to drape himself in:

By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

And that’s the opening paragraph, y’all.

Adelman then traces the jurisprudential influences to show how the long arc of history has been bent not just to the right, but the far right under the Roberts Court:

[I]n the last third of the twentieth century in response to a number of economic and political developments, including the egalitarian movements of the 1960s, corporations and wealthy conservative donors began to invest large sums of money in promoting conservative ideas. At the same time, a conservative legal movement emerged, and it provided the context in which all of the members of the Roberts Court’s conservative majority came of age. I note that in conjunction with several other developments, the conservatives’ aggressiveness has contributed to causing economic and political power to became increasingly concentrated at the top. As a result of this concentration, government policies have become less and less responsive to the needs of ordinary Americans. I point out that under these circumstances, it would be highly desirable to have a Supreme Court that could at least play some role in righting the ship as the Warren Court did in the 1950s and 1960s when it addressed such long standing deficiencies of American democracy as segregation, malapportioned legislative districts, and a brutally unfair criminal justice system. Rather than counteracting the anti-democratic trends in the country, however, the Roberts Court reinforces them.

Adelman keeps hitting at the Roberts Court throughout the article, resulting in this dire warning:

We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.

But of course, since it is a federal judge taking a political stand, there’s a fair amount of handwringing going on about whether it is okay that Adelman said what he said. But as Dahlia Lithwick and Mark Joseph Stern write for Slate, turnabout is fair play. Conservative jurists make it a habit to “own the libs” — a trend that has only gotten worse since Trump appointees have flooded the federal bench — and Adelman’s writing is no different:

Is it somehow over the ethical line when a progressive judge puts these observations into writing?

Five years ago, we’d have said yes, it goes too far. Under any set of ordinary circumstances, it is always better for life-tenured jurists to stay in their lane, avoid partisan political criticism, and work to preserve the vitally important norms of judicial independence and nonpartisan, oracular judicial temperament. But there remains the question—possibly the abiding question of our time—about whether only one side can remain beholden to norms when the other has eviscerated them.

Evisceration is not an exaggeration. Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He disparages women who get abortions, as well as judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.

There’s something glorious about the clear way Adelman lays out his argument against the Roberts Court, especially for liberals who’ve taken so many Ls over the course of the Trump administration. But the real judge of the validity of Adelman’s arguments will be history.

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SCOTUS to take up another nuance of JLWOP

The Supreme Court agreed to decide whether judges must determine that juvenile offenders are incorrigible before sentencing them to die in prison, reported The New York Times. The case, involving a teenager who killed his grandfather, is the latest in a series of cases on the constitutionality of harsh punishments for youths who commit crimes before they turn 18.

The case, Jones v. Mississippi, No. 18-1259, concerns Brett Jones, who had recently turned 15 in 2004 when his grandfather discovered his girlfriend in his room. The two men argued and fought, and the youth, who had been making a sandwich, stabbed his grandfather eight times, killing him.

In 2005, Mr. Jones was convicted of murder and sentenced to life without the possibility of parole, the mandatory penalty under state law.

In 2012, in Miller v. Alabama, the Supreme Court ruled that automatic life sentences for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment. The decision repeatedly criticized mandatory sentences, suggesting that only ones in which judges could take account of the defendant’s age were permissible.

In Montgomery v. Louisiana in 2016, the court made the Miller decision retroactive. In the process, it seemed to read the Miller decision to bar life without parole not only for defendants who received mandatory sentences but also “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.

After the U.S. Supreme Court’s decision in Miller, the Mississippi Supreme Court granted Mr. Jones a new sentencing hearing.

After the hearing, the trial judge resentenced Mr. Jones to life without parole. “The court did not find that Brett was permanently incorrigible, nor did it acknowledge that only permanently incorrigible juvenile homicide offenders may be sentenced to life without parole,” Mr. Jones’s lawyers told the U.S. Supreme Court in their petition seeking review. “In fact, it did not address Brett’s capacity for rehabilitation at all.”

The question of whether judges must find that juvenile offenders are incorrigible before sentencing them to die in prison has divided state supreme courts.

In his response to Mr. Jones’s petition, Jim Hood, Alabama’s attorney general, wrote that Mr. Jones had received an adequate hearing and that no specific finding of incorrigibility was required.

The Supreme Court had been set to decide the issue presented in Mr. Jones’s case in the case of Lee Malvo, the younger of the two men who terrorized the Washington region with sniper shootings in the fall of 2002.

When that case, Mathena v. Malvo, No. 18-217, was argued in October, several justices said consideration of whether juvenile offenders were incorrigible was important.

Justice Elena Kagan, who wrote the majority opinion in the Miller decision, said it and the Montgomery decision could be boiled down to two words: “Youth matters.”

“You have to consider youth,” she said, “in making these sorts of sentencing determinations.”

Justice Brett M. Kavanaugh said the two rulings required judges to distinguish between “someone who’s merely immature as opposed to incorrigible.”

The court dismissed Mr. Malvo’s appeal last month after a new Virginia law largely made the case moot.

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Voters support Alabama policy that permits sheriff's to keep savings from prisoner food allotment

Voters in two Alabama counties passed local constitutional amendments that allow sheriffs to use money allocated for feeding people incarcerated at their jails for purposes other than food, reported The Appeal. The change comes nearly a year after Alabama lawmakers tightened restrictions on the use of these funds to ensure that jail food fund money was not misappropriated. 

Under the amendment, Etowah County Sheriff Jonathon Horton and Marshall County Sheriff Phil Sims will be able to use all money leftover from a designated food fund on law enforcement purposes such as new equipment or staff positions. Legislation passed in May 2019 limited that figure to 25 percent, and required that the rest of the money be transferred to the next year. 

Critics of the plan say they are concerned that the new rules will lead to sheriffs misusing the funds and cutting back on prisoner meals to pay for other needs. “It does certainly seem to run counter to the intent of the legislation, which is money to feed people should be spent on feeding people with only a small fraction going elsewhere,” said Carla Crowder, executive director of advocacy group Alabama Appleseed, which filed a lawsuit on the issue in 2018 along with the Southern Center for Human Rights. 

“This incentivizes them once again to underfeed people in their custody if they know the extras can be used on bells and whistles or guns,” she added.

Horton told The Appeal: Political Report that he hopes to use any surplus money to pay for more school resource officers, law enforcement officers from the sheriff’s office who work in schools. Studies have found that putting more police officers in schools increases arrests for nonviolent behavior, and make public school students more exposed to criminal charges. The county expanded the program last year, but he said there are still not enough officers for each school.

Horton took over the Etowah County sheriff’s office last year after ousting Todd Entrekin, who became known as the “beach house sheriff.” During his tenure, Entrekin pocketed roughly $750,000 from jail food funds and bought a $740,000 beach house while prisoners said they were served rotten lettuce, beans, and noodles, an AL.com investigation found. Another sheriff kept $212,000 from the food fund while serving prisoners corn dogs for each meal for weeks. 

As part of the legislation passed last year, the state increased its payment to $2.25 from $1.75 per inmate per day and required that sheriffs put the money in a separate public fund. Previously, sheriffs could keep the money in a private fund to use at their discretion. 

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Pennsylvania Must End Suspicionless Traffic Stops

Matthew T. Mangino

The Legal Intelligencer

March 5, 2020

Thirty years ago, the U.S. Supreme Court determined that a suspicionless investigatory intrusion on a motorist was justified based on the public’s interest in reducing driving under the influence (DUI). The high court was considering the constitutionality of sobriety check points when it decided Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).

In a 6-3 decision, the court held that sobriety check points did not violate the Fourth Amendment. The court noted that “no one can seriously dispute the magnitude of the drunken driving problem or the states’ interest in eradicating it.” The court then found that “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight.”

In Pennsylvania, a sobriety check point is “a well-marked, stationary roadblock conducted by the police for several hours at a time.” In Commonwealth v. Beaman, 880 A.2d 578 (2005) the Pennsylvania Supreme Court found, “DUI roadblocks constitute a reasonable means of advancing the vital public interest in reducing drunk driving deaths and injuries, and that they only involve a modest intrusion on the privacy and liberty of motorists. Accordingly, the court has found that suspicionless stops at such roadblocks are constitutionally reasonable.”

The legislature provided statutory authority for sobriety check points at 75 Pa.C.S.A. 6308 (b). The statute provides, “Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”

The determination of the constitutionality of a checkpoint in Pennsylvania involves balancing the extent of intrusion against the promotion of the legitimate government interest in public safety.

Sobriety check points permit a police officer to evaluate the operator of a motor vehicle for intoxication without having reasonable suspicion or probable cause to make a traffic stop. The police can make a lawful arrest without having any other reason for briefly detaining the operator but some statistics, a public disclosure and a prominent road block.

What the law does not permit are random suspicionless motor vehicle stops to enforce safety on Pennsylvania roadways. Conducting a motor vehicle stop without reasonable suspicion or probable cause is violation under Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the U.S. Constitution.

Section 6308 (b) cited above was amended in 2004. The change involved the replacement of the phrase “articulable and reasonable ground to suspect” with “reasonable suspicion,” thereby lowering the statutory level of suspicion necessary for a police officer to execute a lawful traffic stop.

Although the Fourth Amendment has been interpreted as requiring probable cause to effectuate a lawful arrest, the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), created a new level of suspicion somewhere between a hunch and probable cause. In Terry, the court concluded that police may briefly detain an individual for purposes of investigation in circumstances where specific and articulable grounds exist to reasonably suspect that criminal activity is in progress.

Terry’s reasonable suspicion standard, as well as probable cause, requires a police officer to articulate the reason she conducted a motor vehicle stop.

Whether it’s a brief investigatory stop or a stop to effectuate the issuance of a citation for a motor vehicle violation—no one questions that the law requires an articulable reason for the stop.

With that in mind, it does in fact appear that Pennsylvania law permits a police officer to pull over a vehicle for any reason, or no reason at all, investigate the driver for intoxication, conduct sobriety tests and ask that driver to submit to a blood test or breathalyzer. If that driver refuses, her license is suspended.

A license suspension is a civil matter—but was it ever contemplated that a police officer could randomly pull over drivers, conclude they may be intoxicated and have imposed a “penalty” for failing to cooperate.

In  Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599, (Pa.Cmwlth.2003), the Commonwealth Court established what the Department of Transportation must prove at a statutory appeal hearing. First, that the licensee was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance; two, the driver was asked to submit to a chemical test; three, he refused; and four, he was warned that a refusal would result in a license suspension.

In a driver’s license appeal hearing an unlawful arrest in a criminal proceeding is not admissible. The Pennsylvania Supreme Court held in Department of Transportation v. Wysocki, 535 A.2d 77 (Pa. 1987), “although the fact that the initial stop may have been improper would not necessarily prevent a suspension of license where there was a subsequent refusal to submit to a breathalyzer test, such a suspension will not be allowed if the officer’s request was not supported by reasonable grounds for the officer to have believed that the person was under the influence of alcohol.”

The standard of reasonable grounds under the Implied Consent Law is not very demanding, and does not rise to the level of probable cause required for a criminal prosecution. Rather, the test for reasonable grounds is whether a person in the position of a police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that a motorist was operating a vehicle while under the influence of alcohol.

To determine whether the officer had reasonable grounds to conclude that the licensee was operating a vehicle under the influence, a court must consider the totality of the circumstances.

In Sisinni v. Department of Transportation Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), the Commonwealth Court determined there was no set list of behaviors or conditions that a person must exhibit for an officer to have reasonable grounds for making an arrest. However, the court provides a series of examples that relate to outward manifestations of intoxication such as staggering, swaying, falling down, belligerent, slurred speech, uncooperative behavior and the odor of alcohol. None of the examples relate to the operation of a vehicle or reasonable grounds for stopping a motor vehicle.

In Kachurak v. Department of Transportation Bureau of Driver Licensing, 913 A.2d 982 (Pa. Cmwlth. 2006), the Commonwealth Court determined, “It is well settled that “’ an officer may acquire reasonable grounds to believe that a licensee was driving under the influence of alcohol at any time during the course of interaction between the officer and the licensee.”’

Wysocki does not hold that reasonable grounds must be formed prior to the traffic stop as a prerequisite to a valid license suspension. The case law consistently supports that reasonable grounds are determined by interacting with the vehicle operator. As a result, there are no restrictions or limitations on the basis for stopping a vehicle.

The question is, how was the interaction brought about? Did the police officer have a basis to bring about the interaction? Obviously the officer cannot engage the individual while both the individual and the officer’s vehicle are moving. The officer must bring the vehicle to a stop to engage the driver or occupants.

What is the basis for stopping the vehicle? Should a police officer be required to articulate reasonable grounds for stopping the vehicle? It doesn’t have to be probable cause or reasonable suspicion—both criminal degrees of suspicion—but the reason for the stop should be part of the equation.

The reason for the stop must be more than arbitrary or random. Otherwise, as Justice Nicholas P. Papadakos noted in a dissent in Wysocki, “a police officer can stop anyone, anyplace, anytime of the day or night for no articulable reason at all, and then form a reasonable” ground that the vehicle operator was driving while intoxicated.

That is not justice, and the Pennsylvania Supreme Court needs to address the matter posthaste.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of “The Executioner’s Toll,” 2010. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino). Contact him via email at matthewmangino@aol.com.

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My appearance on WFMJ-TV Weekend Today discussing isolation 

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Federal judge sharply criticized AG Barr on handling 0f Mueller Report

A federal judge sharply criticized Attorney General William P. Barr’s handling of the report by the special counsel, Robert S. Mueller III, saying that Mr. Barr put forward a “distorted” and “misleading” account of its findings and lacked credibility on the topic, reported the New York Times.

Mr. Barr could not be trusted, Judge Reggie B. Walton said, citing “inconsistencies” between the attorney general’s statements about the report when it was secret and its actual contents that turned out to be more damaging to President Trump. Mr. Barr’s “lack of candor” called into question his “credibility and, in turn, the department’s” assurances to the court, Judge Walton said.

The judge ordered the Justice Department to privately show him the portions of the report that were censored in the publicly released version so he could independently verify the justifications for those redactions. The ruling came in a Freedom of Information Act lawsuit seeking a full-text version of the report.

The differences between the report and Mr. Barr’s description of it “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary,” wrote Judge Walton, an appointee of President George W. Bush.

Mr. Barr’s public rollout of the Mueller report has been widely criticized. Still, it was striking to see a Republican-appointed federal judge scathingly dissect Mr. Barr’s conduct in a formal judicial ruling and declare that the sitting attorney general had so deceived the American people that he could not trust assertions made by a Justice Department under Mr. Barr’s control.

A department spokeswoman had no immediate comment. The lawsuit centers on Freedom of Information requests by the Electronic Privacy Information Center and by Jason Leopold, a BuzzFeed News reporter.

Judge Walton’s decision focuses on the period last spring between the delivery of the Mueller report to the attorney general, his publicly issued summary of it two days later that drew widespread condemnation and the release of the report itself a month later that revealed several discrepancies between the documents.

Among those Judge Walton cited: Mr. Barr’s obfuscation about the scope of the links that investigators found between the Trump campaign and Russia, and how the report documented numerous episodes that appear to meet the criteria for obstruction of justice, echoing the complaints of many critics of Mr. Barr’s summary of the report.

The attorney general issued an initial four-page letter in March 2019 — two days after receiving the 381-page Mueller report — that purported to summarize its principal conclusions. But within days, Mr. Mueller sent letters to Mr. Barr protesting that he had distorted its findings and asking him to swiftly release the report’s own summaries. Instead, Mr. Barr made the report public only weeks later, after a fuller review to black out sensitive material.

Among the issues Judge Walton flagged: Mr. Barr declared that the special counsel had not found that the Trump campaign had conspired or coordinated with Russia in its efforts to influence the 2016 presidential election, and left it at that.

But while Mr. Mueller did conclude that he found insufficient evidence to charge any Trump associates with conspiring with the Russians, Mr. Barr omitted that the special counsel had identified multiple contacts between Trump campaign officials and people with ties to the Russian government and that the campaign expected to benefit from Moscow’s interference.

Judge Walton also wrote that the special counsel “only concluded” that the investigation did not establish that the contacts rose to “coordination” because Mr. Mueller interpreted that term narrowly, requiring, in the report’s words, agreement that is “more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”

In addition, Mr. Barr told the public in March that Mr. Mueller had made no decision about whether the president obstructed justice, then pronounced Mr. Trump cleared of those suspicions.

But Mr. Barr “failed to disclose to the American public,” Judge Walton wrote, that Mr. Mueller had explained that it would be inappropriate to make a judgment while the president was still in office about whether he committed obstruction crimes. The report also said that if the evidence had cleared Mr. Trump, Mr. Mueller would have said so, but he was unable to exonerate him.

“The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller report, causes the court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller report,” Judge Walton wrote. 

The judge also blasted similar “inconsistencies” in public comments made by Mr. Barr hours before he released the redacted version of the report in April.

Because of that pattern, Judge Walton wrote, he could not look away from the fact that the portions of the Mueller report that the Justice Department was withholding in the Freedom of Information Act case mirrored the deletions made under Mr. Barr’s guidance in the version of the report released in April.

That echoing, he wrote, causes “the court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.”

Appointed to the Federal District Court bench in Washington in 2001, Judge Walton has presided over a variety of high-profile cases, including the perjury trial of the former baseball pitcher Roger Clemens and the trial of I. Lewis Libby Jr., the onetime chief of staff to Vice President Dick Cheney who was convicted of lying in connection with the leak of the identity of a C.I.A. operative. Mr. Trump pardoned Mr. Libby in 2018.

A former prosecutor who handled drug and street crime cases, Judge Walton is known for handing down tough sentences and for being careful and methodical. He also once broke up a street brawl near the courthouse.

The Mueller ruling was not the first time that Judge Walton had criticized the actions of the Barr Justice Department. Last month, he unsealed the transcript of a September closed-door meeting with prosecutors about whether and when the department was going to charge Andrew G. McCabe, the former acting F.B.I. director whom Mr. Trump has vilified for his role in the Russia case, in connection with a leak investigation.

Noting in that September hearing that prosecutors had said to him weeks earlier that a decision about charging Mr. McCabe could come “literally within days,” Judge Walton chastised them for stringing along Mr. McCabe and noted the president’s comments about Mr. McCabe with disapproval, saying they created the appearance of a “banana republic.”

 “I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted,” the judge said, adding that even if Mr. Trump’s moves were “not influencing the ultimate decision, I think there are a lot of people on the outside who perceive that there is undue, inappropriate pressure being brought to bear.”

Nevertheless, the Justice Department continued to keep Mr. McCabe hanging for another five months, announcing only last month that he would not be charged. Hours later, Judge Walton unsealed the transcript of the closed September hearing, which was part of a Freedom of Information lawsuit filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington.

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GateHouse: Someone is checking out your jeans and it’s not what you think

Matthew T. Mangino

GateHouse Media

March 6, 2020

The FBI has apprehended and convicted suspects in criminal cases by analyzing light and dark patches - wear marks - along the seams of the suspects’ blue jeans.

and convicted suspects in criminal cases by analyzing light and dark patches - wear marks - along the seams of the suspects’ blue jeans.

A leading proponent of blue jean analysis is Richard W. Vorder Bruegge of the FBI’s Forensic Audio, Video and Image Analysis Unit in Quantico, Virginia.

According to ProPublica, an independent group of investigative journalists, Vorder Bruegge wrote an article in the 1999 Journal of Forensic Sciences on the photographic analysis of denim “trousers” arguing that wear marks create, effectively, a barcode that is unique on every pair.

“Every piece of clothing that you own is going to undergo abuse during your lifetime,” Vorder Bruegge said. “If you’re a kid, maybe you’re sliding down hills and getting a lot of scrapes on the jeans. Or maybe your jeans get washed and ironed. But you’re rubbing them back and forth, and the blue dye is abraded.”

Apparently, Vorder Bruegge believes that those markings can be identified to the exclusion of nearly every other pair of jeans on earth.

Last year, ProPublica conducted an investigation that revealed FBI examiners have tied defendants to crimes in thousands of cases by using crime scene photographs in unproven ways and, at times, have given jurors baseless statistics to say the risk of error in their analyses was extremely low.

As a result, Hany Farid, a University of California, Berkeley, computer science professor and leading forensic image analyst, and Sophie Nightingale, a postdoctoral researcher in image science, tested the FBI’s method and found several serious flaws.

In 1998, the FBI’s Vorder Bruegge explained continued washing of jeans causes the dye to rub off and exposes the white cotton underneath. Jeans fade in a unique pattern, he said, because in their manufacture, the motion of pulling the jeans through a machine causes inconsistent bumps along the seams.

Nightingale and Farid sought to test photographic pattern analysis, involving matching crime scene photographs with wear on blue jeans. The researchers bought 100 pairs of used blue jeans from thrift stores and second-hand shops. They photographed the jeans and had images supplied of more than 100 additional pairs of jeans.

The researchers took photographs of the jeans under various conditions and found a substantial error rate. According to Ars Technica, “this means the technique of matching up jeans is likely to be pretty hit and miss - not catching actual similarities a lot of the time and possibly throwing up a high rate of false alarms. And that’s under controlled experimental conditions using high-quality images and jeans laid out nice and flat, not grainy security footage showing jeans being worn.”

Farid told ProPublic, “If you’re willing to tolerate that only one in four times this will be useful, OK, fine, use the analysis.”

Last fall, Washington Post Columnist Radley Balko, cited a 1999 Chicago Tribune article to explain the dubious process of blue jean matching. He also suggested that part of the blame lies with his colleague’s lack of skepticism - taking the claims of forensic analysts at face value.

Brandon Garrett, a Duke University law professor who studies the reliability of forensic science, told ProPublica, “This is one of many studies uncovering non-trivial error rates for forensic techniques,” he continued, “Any lawyer or any judge in a case involving this discipline should, at minimum, hear about the error rates. Many people assume that these techniques are perfect.”

Judges, lawyers and jurors cannot blindly accept that a new investigative technique lives up to the hype. Just as with journalists, a heavy dose of skepticism is the best practice.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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