Factually! with Adam Conover - Junk Science and the Criminal Justice System with Chris Fabricant

Episode Date: May 25, 2022

Our criminal justice system gives the impression of being impartial and fact-based, but in reality, it’s anything but. Innocence Project lawyer and author of Junk Science Chris Fabricant joins Adam to break down why pseudoscience is allowed into the court room, the influence of the Ted Bundy trial on mainstream forensics and the impact of the criminal justice system on marginalized people. You can purchase Chris’ book here: https://factuallypod.com/books Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code factually for $15 off your first order at Bokksu.com. That's code factually for $15 off your first order on Bokksu.com. I don't know the way. I don't know what to think. I don't know what to say. Yeah, but that's okay. Yeah, that's okay. I don't know anything. Hello, welcome to Factually. I'm Adam Conover. Thank you so much for joining me once again as I talk to an amazing expert about all the incredible things they know that I don't know, that you probably don't know. Both of our minds are I'm so happy that so many people are watching and enjoying the show. We truly put so much love and work into it. So I thank you so much for checking it out. And of course, thank you to everyone who supports this show on Patreon. If you want to join our Patreon community and get bonus podcast episodes,

join our live nonfiction book club and see exclusive standup I don't post anywhere else. Head to patreon.com slash Adam Conover. Head to patreon.com slash adamconover. That's patreon.com slash adamconover. But let's talk about today's episode. You know, we have this thing called the criminal justice system that is supposed to be fair and impartial in this country. You know, when someone's accused of a crime, we have a trial to figure out if they really committed it. You know, the evidence is weighed, the jury deliberates, and then the defendant is found guilty or innocent based on the conclusions that they come to. Now, we take this to be a factual

process. And when we say that someone is guilty, when we find them guilty, society makes a judgment about what happened. We say collectively, okay, we went through the process and therefore we think that this is true. This person either did it or did not. That makes the process sound like it's scientific, rigorous, and fair, right? But our criminal justice system in reality is anything but take the adversarial system.

That's a system where we have two different teams. We have the prosecution and the defense, and they go at it against each other to make their case to the judgearial system. That's a system where we have two different teams. We have the prosecution and the defense, and they go at it against each other to make their case to the judge and jury. But those two teams have vastly different resources. The prosecutors are massively better funded than the defenders are. Staffing for public defenders is so inadequate, they can only handle a fraction of their total caseload. In Rhode Island, there are only enough public defenders to handle about a third of the cases. In Louisiana, it's one-fifth. Doesn't sound like

such a fair system to me. Then there's the evidence itself. Unscientific evidence is admitted to trials all the time. And I know that sounds hard to believe, but it is absolutely true. Techniques that have been proven to be pseudoscience, like bite marks, blood splatter analysis, or polygraph tests, are routinely admitted to trial, even though we know as a matter of fact that they are not scientific at all. The result of these biases is that the criminal justice system makes a lot of mistakes, and those mistakes are almost always tilted towards sending people to prison who are actually not guilty. Now, that leads us to the most unscientific thing about the criminal justice system.

Because, you see, in science, the scientific community corrects its own mistakes, right? New evidence comes to light that changes how people think. In fact, scientists literally try to disprove each other's conclusions in order to make sure that a mistake hasn't slipped through. And for that reason, old theories like the idea that the sun is in the center of the universe or that the shape of our skull explains our personality die out and get replaced. But the criminal justice system doesn't correct itself. It doesn't go back and revise its own ideas or check to see where it got wrong. Prosecutors simply do not go through the cases they won to see if something unfair happened. They just leave the victims of those cases to rot in prison. The closest thing we have to anything like the scientific method, to anything like peer review for our legal system, is the Innocence Project. The Innocence Project is an incredible

organization that works to free the wrongfully convicted. Using DNA evidence, the most scientific form of evidence, their work has led to the exoneration of 375 people. Now, that's incredible work. They have literally reclaimed people's lives. But it's just a drop in the bucket for a country with the largest prison population on earth. How many other people, how many other Americans, how many other non-Americans are currently languishing within our prison system because of a conviction for a crime that they did not commit? You know, the whole idea of a justice system is that it's supposed to protect us from things that hurt us. So the fact that instead it is literally imprisoning the innocent is beyond fucked up.

It is one of the worst sins that a government can commit against its own people. So what can be done about it? Well, our guest today is Chris Fabricant. He's devoted his life to righting this wrong. He's the director of strategic litigation at the Innocence Project, where he works to free the innocent and establish precedent so that more innocent people aren't locked up. You might remember him from one of the very first episodes of Adam Ruins Everything that we did all way back when in 2015. But on that episode, he was just on with us for five minutes. We barely had a chance to scratch the surface. So today it is my pleasure and honor to welcome him back for a deeper conversation.

He has a new book out on all the unscientific methods that are used to wrongfully imprison people called Junk Science and the American Criminal Justice System. You can find it at our special bookshop at factuallypod.com slash books. And I'm sure you're going to want to pick up a copy after you hear this interview. Please welcome Chris Fabricant. Chris Fabricant, welcome, man. Thanks so much for having me on, Adam. It's a pleasure to hear all these years. I'm so excited to be back in the studio. This is our first recording we've done in two years live in the studio. I'm looking at you face to face. We are on Meet space together. And I think it's going to make a difference. I think the interview is

going to be really special as a result. Being face to face and being able to kind of read each other's expressions and being in getting the pheromones in the room, right? You know what I mean? That's like what it's all about, isn't it? Absolutely. I'm like, wait, there's no tiny imperceptible delay between me speaking and Chris responding. Like there is. And I'm not sitting in my underwear in my living room talking into my computer. Well, I'm so excited to have you here

to talk about your new book, Junk Science. But we've known each other for a number of years. You were on the very first season of Adam Ruins Everything for our episode, Adam Ruins Forensic Science. And I remember being just awestruck by you because I was just a comedian. You know, I was like working on, I went straight from, you know, being a sketch writer at a website to like making a TV show going, I hope this TV show goes well. And okay, we're doing this episode about forensic science. Oh, let's, let's try to get this guy, Chris Fabricant on. And you come on and I'm like,

this guy fucking flies around the country arguing to get people off death row to free the wrongfully accused. And I'm just some comedian, but here he is on my show. How cool is this? It was like such a wonderful experience for me. It was like a really clarifying moment. I think for me, I was more nervous being on your show than I am in capital litigation. I suddenly, you handed me lines and I had to like, you know, deliver lines. You know what I mean? It was like, I was very intimidated the entire thing.

You know, I'm not an actor. Well, but you, no, hold on a second. But lawyering, that's public speaking. That's like comporting yourself. And you look, your look in that episode and in general, I mean, right out of, I don't know, The Good Wife or some other lawyer drama. You know what I mean? You've got such a great, whatever.

Let's talk about the actual subject. So we had you on that episode to talk about forensic science and about how much of it is pure pseudoscience. And speaking of lawyer shows on TV, so much of the pseudoscience is promoted by these cop and lawyer dramas. Yes, sir. I mean, how big is that problem? It's a huge problem. You know, what's tragically ironic, I guess, is that we watch, the lawyers in my department watch, you know, Forensic Files and CSI and those shows like everybody else.

The lawyers in my department watch Forensic Files and CSI and those shows like everybody else. But what we're watching them for is for different reasons, particularly the docudramas, because we're looking for casework. We have looked at the shows like Forensic Files, watched these kind of wrapped up as perfectly solved crimes, and we're sitting there thinking, that person sounds innocent, right? You know what I mean? I'm just looking at this, and they're just touting how this whiz-bang technology solved this crime. And I'm like, I'm skeptical. So we actually, Alfred Swinton in Connecticut, he is a client of ours that served 17 years in prison for a murder that he did not commit that was based on junk science. And we ultimately, I watched his show on Forensic Files and he was depicted as a serial killer and that they had only got him on this one murder, but thank God he's off the streets, you know, and

thank God for the junk science that was used to convict him. We took on his case and exonerated him within a year. Wow. And five years subsequently, it was still on TV, still being promoted as though he was a serial killer. Wait, hold on a second, because I forgot. I was thinking Forensic Files for a second was a CSI type show. But no, this is a documentary. This is like a true crime documentary show. And you literally watched the show on TV and said,

this looks like bad forensic science. They were like, and then the cops discovered whatever the... The bite mark, right? on TV and said, this looks like bad forensic science. They were like, and then the cops discovered whatever the- The bite mark, right? Yes. And you were like, hold on a second. This sounds like bullshit. And you went and represented the guy from the TV show and got him off within a year.

Yeah. And that's not the only one. I talk about one of the, the Jimmy Genrick case in, I talk about in Junk the jimmy genrick case in um i talk about in junk science is another show that another case of ours that's been depicted on one of these crimes i think it was also on forensic files we just did the evidentiary hearing on that case in grand junction colorado about a month ago but that too that case too you know although that's still being litigated and and really in that it talks about in the book we talk about the junk science that was used to convict him, where they were claiming that a one one-hundredth of an inch mark on a two millimeter wire was cut by only one tool in the history of time and all tools manufactured could have made this one one hundredth of an inch mark and no other tool could have done that to the exclusion of every other tool.

So that's the only evidence keeping Jimmy Gendrick in prison today. Wow. So tell me about like junk science as a problem. Where does it come from and what are the most prevalent forms of it in forensic science? Well, one of the things that I tried to do in the book was to really answer your question, as to go back to the beginning, is where did forensic science really come from? When did forensic scientists become a profession that you could aspire to in an entire field? It was really in the post-World War II era that crime labs, beginning with the FBI crime lab, era that crime labs, beginning with the FBI crime lab, became prominent internationally,

and that they were touting things like hair microscopy and voice spectrometry and comparative bullet lead analysis, these new whiz-bang techniques that were being done. And forensic pathology was being organized also into a separate profession at the same time. And so what I found was that there was groups of professional practice, medical professionals, people like dentists and people like, you know, arson investigators that were starting to work more and more in actual criminal trials and becoming expert witnesses and being paid for their time. And what we see is that there would be ideas that, like, let's take bite marks, for example. There was just an idea that you might be able to match a human being, their teeth, to a bite mark that was on the body of a victim or, you know, either living or dead, you know, meaning that you could discover who the perpetrator was. And so this was just an idea.

And then what happens is that a crime will be committed, a murder of some sort, and there'll be little evidence to connect the suspect, although there'll be a lot of circumstantial evidence pointing to somebody, but no hard evidence. So we look at this as the first bite mark case in the book that I talk about. Walter Marks was here in LA. And what happened in that case is that there had been a group of dentists that had been talking about this and they'd been looking for a test case, the right case to go into court and see if they could get bite mark evidence admitted for the first time. And so this Lovie Buzansky was murdered by apparently by her tenant and was renting a room in her house.

There was no way to connect him to this crime. It was pre-DNA. There was no fingerprints. And the fingerprints that existed would have been, you know, from his time having been spent there. And there was nothing. There was no eyewitness. There was no confession. But this woman, this poor victim's woman's nose had been bitten almost completely off.

Wow. And leaving this mark in cartilage, you know, very distinct teeth marks in cartilage, which is not the same as skin. And so this enterprising prosecutor decided that he was going to try to get bite mark evidence admitted into court. And he did. All without a single scientific study that would demonstrate that dentists or anybody else were capable, one, of even identifying a bite mark or certainly not matching it to anybody. Wow. And then the next thing that happens, he gets in a court, precedent is established, and then Ted Bundy happens. And the Ted Bundy case was, you know, and I went back and I read every article on Ted Bundy.

And you can't believe this research project, right? Go on and on, right? Because, like, how much ink has been spilled every article on Ted Bundy. And you can't believe this research project, right? Go on and on, right? Because like how much ink has been spilled still today around Ted Bundy. Just to try to trace like his crime spree and the first conviction and how he first got caught. Because I've been hearing in the forensic community about the case for a long time, but I hadn't really dug into it. And what I learned was kind of astonishing is that there was so little evidence against him. You know, it was really just, you know, very, very well-founded suspicion that these, the so-called Kyle murders have been committed by him. The only eyewitness had

previously identified an employee of the sorority as the person she saw leaving the house that night. There was no fingerprints or no confession. There were no eyewitnesses, there was no other forensic evidence at all. And then they'd had just this recently introduced evidence of bite marks here in LA. And then one of the original dentists was living in Coral Gables, Florida. The sheriff who was in charge of the investigation knew about it, knew about this new technique, called up this dentist. He decided that there was a bite mark on one of the victims, matched it to Ted Bundy. And that was the first nationally televised trial in our nation's history. And the dentist became celebrities. And suddenly this junk science was introduced

into mainstream. And it was really never seriously questioned until 2009, when the National Academy of Sciences finally took a look at mainstream forensics. And to answer the original question, of the 13 different forensic techniques that the National Academy of Sciences looked at and really scrutinized the scientific foundations of only one nuclear DNA analysis that they find was capable of identifying

the source of crime scene evidence exclusion of all others so the tool mark stuff that we just talked about there's no scientific

basis to claim that bite marks no scientific what about fingerprints fingerprints now there's more of a there there in fingerprints

so the and fingerprints have been successfully used to identify people for 100 years. But in forensics, that's not really the issue around uniqueness. You know what I mean? Because what we don't know, well, one, I should say is that fingerprints being unique, I think that they probably are unique, but that's not a scientifically validated fact. That's just a thing people say. Oh, fingerprints are unique. Just like they say snowflakes are unique, but snowfl's not a scientifically validated fact. That's just a thing people say, oh, fingerprints are unique. Just like they say snowflakes are unique, but snowflakes are not unique.

Yes. So we don't know that, but they probably are, but they haven't found two identical yet, but who knows? They're pretty different from each other, but it's not a scientific fact that they're unique. But what we don't know and what matters in forensics is how similar two fingerprints might be. And when you're talking about forensic science and forensic evidence, you're talking about smudges at crime scenes. And you're talking about a very little amount of information.

So one of the stories that I tell in Junk Science is the story of Brandon Mayfield. is the story of Brandon Mayfield. And Brandon Mayfield was this mild-mannered lawyer from Portland who happened to have converted to Islam after he had married an Egyptian national. And he had once represented a group called the Portland Seven that were convicted of aiding terrorists in some regard. But otherwise, just a low-profile attorney in Portland. So in 2004, a commuter train was bombed in Spain.

237 people died, I believe. Wow. So it was a huge international terrorism incident. They found a latent fingerprint on the plastic bag containing the blast caps from the bombing. And they matched those fingerprints to Brandon Mayfield, this lawyer in Portland. the vaunted FBI lab. Right.

And so this sounds like they did the thing you see on CSI where they're like, we got to print. And then they do the and it goes through all the faces really fast in the database. We got to match. And it matched just a dude in Portland. Exactly right. Right. dude in Portland. Exactly right. Right. And then a dude in Portland who had these other kind of the confirmation bias of looking at, oh, he seems to be sympathetic to, you know, Islam ideals or, and he's married to an Egyptian national and he represented these guys who were convicted. So

this is probably the guy. Wait, he's a lawyer and he represented, he represented a bad guy. Right. That's the lawyer's job. And that's like enough for it. But so the FBI was insisting that this was Brandon Mayfield's fingerprints. The Spanish authorities didn't think it was. So the court hired an independent expert to evaluate these fingerprints. And the court also matched, I mean, the independent expert also matched them to Brandon Mayfield. But he knew what the FBI experts had already concluded, right? And so we know the bias that goes into that, right? Because fingerprints are a subjective technique

and you don't have that much information in a latent print like that. And so he agreed. Then Brandon Mayfield's own expert agreed that it was his fingerprint, right? So it wasn't until the Spanish authorities matched it to a better suspect that Brandon Mayfield was released and the FBI admitted that they were wrong. So he was jailed over this. Yeah, for weeks. Had he been to Spain?

No. These guys are halfway around the world. Or fully around the world, frankly. Well, that's just one of the themes of the book is the power of scientific evidence to overcome common sense, great facts. Like the Stephen Cheney story that I tell in the book, a client of mine, you know, he had nine alibi witnesses at trial. But the junk science was powerful enough to overcome it all. So let's go back to the bite marks because I think that's a really good example. So a bunch of dentists just say, hey, let's see if we can get bite marks in a trial.

But there's been no study of bite marks. It's not like, I assume fingerprints, there have been like studies by people on, by scientists on like how unique are fingerprints, dah, dah, dah, dah. But at the time there were no studies on bite marks at all. It was just literally a couple of dentists going like, hey, I could tell, I could tell who it is.

Show me a bite mark and I can pick the guy out. Show me a bite mark and show me the teeth. And I'm a dentist, so dentists, we sure know. We know teeth, right? It's just somehow this proximity to teeth would suddenly make you an expert in bite marks, which is absurd. And one of these things,

and I write about this since it's going on as late as last year. But what we see, it was a deliberate conflation from two different sub-disciplines within the field of forensic dentistry. And so when you hear about somebody being identified by their dental records, right, that a body was burned beyond recognition and they only could be identified through their dental records. That's a forensic dentist or a forensic odontologist, as they like to call themselves, that's working in the medical examiner's office. And there's one in most major cities.

And they're doing a public service. That's good, valid work to do. Bringing closure to victims' families, you know, that's solid work. But that work was not that exciting, right? It wasn't that interesting, and it wasn't leading to a role in the investigation and prosecution of criminal cases, which is a motivating factor for a lot of people that are involved in forensic sciences. And it shouldn't be, right? It should just be about the science, not catching bad guys.

But the idea was that we are comfortable and experienced with dealing with cadavers and that we're seeing these types of injuries that we think are bite marks. And we think that because we know teeth, that we're going to be able to match these teeth to these bite marks. The idea, you know, is to quote myself, is that it's like a geologist being able to, you know, claiming that because they can identify a particular type of rock, that they can identify the rock that was used to bash in somebody's skull, right? Totally unrelated, right? You know what I mean? It's just like, but they can be made to sound like they do, right? So it's like dentists identify people by their teeth and they identify people by the bite marks the teeth create, right? teeth and they identify people by the bite marks the teeth create, right? And that worked in court because people turn off their critical thinking skills when they're listening to an expert witness, which is a theme of a lot of your work. Yeah. And they've seen it on TV. They saw it on

TV in the Ted Bundy case. They also see it on TV, on cop shows, on lawyer shows. But so why does it not work for, and by the way, so this went on for decades, right? You said in 2000 – It's going on today. In 2009, we started to have more scrutiny of it, but that's decades after Ted Bundy. Oh, yeah. So this is decades, tons of people being put away on this flimsy evidence. So why doesn't it work for a defense attorney to say, hold on a second, there's no cross-examination. Is there a single scientific study that confirms that dentists can identify people based on bite marks? Why does that not work?

By the time you get into trial, it's too late. You can't cross-examine your way out of a junk science conviction. You just really can't. There's, you know, the jurors, for some of the same reasons that we were talking about shows like CSI, jurors trust scientific evidence. Because like everybody, they're trying to figure out what happened, right? They want to have a narrative that makes sense. And they want to do the right thing. a scientist, right? That somebody has been given the imprimatur of an expert by the court and is allowed to give opinions, which no other expert or no other witnesses are allowed to just give an opinion. That that is extremely powerful evidence because those it's supposed to be from a witness that has no stake in the outcome of the proceedings.

And that is powerful enough. And as we're talking about, you know, the jurors are in no position and lawyers are in no position to separate sense from nonsense. Because most lawyers, most lay people are scientifically illiterate. Right. And they don't really understand. So what we have been advocating for at the Innocence Project for a long time. And, you know, it gets more urgent every day with the emerging technology coming into criminal trials, new stuff every day.

It's something like the FDA that would do scientific validation research and demonstrate that these techniques are reliable before they're introduced in criminal trials, right? I mean, we do this with toothpaste, with aspirin. You know, we don't unleash it on the general public because for public health reasons, right? I mean, we do this with toothpaste, with aspirin, you know, we don't unleash it on the general public before, because for public health reasons, right? But in forensic sciences, you can be executed on junk science and there's no agency and there's no testing done that would say, no, hold on, right? Well, now look, I think it's fair for jurors to be, as you put it, scientifically

illiterate because they're just average people. That's the whole point of a jury. And, you know, this is abstruse stuff. You can't expect them to know everything about everything. And if I had never spoken to you, if I had never researched this topic and I was in a jury trial and yeah, I saw a dentist in a lab coat up there on the stand saying, I've done this in 10,000 trials and I can identify that, you know, these bite marks, mesh these teeth. And then a cross-examining lawyer was like, hold on a second. There's no evidence for this. You know, I still always defer to the expert because that is the only heuristic that we have as people to make decisions like, you know, and generally I tend to side with the

person who's the expert rather than the person who's arguing with the expert, despite the fact that I'm a debunker. Right. Because the stuff that I debunk, the experts are the ones debunking it, right? The experts such as you, right, or other people who are more credible, you know, come to me and say,

hold on a second, this isn't true. But if I'm a lay person, I'm gonna defer to that. But hold on a second. How about like judges, right? Like judges in criminal trials, you would expect to have expertise and to have seen a lot of these cases. And why don't they hold it to a higher standard? You know, one of the themes that I explore in the book is, you know, poor people science. What I've talked about is poor people science. And judges were,

in 1993, the Supreme Court decided this decision called Daubert. And even though it looks like it should be pronounced Daubert, I have no people who know the Dauberts, and that's how they pronounce it. I wasn't going to call you on it. You don't need to defend yourself to me. there had been this explosion in personal entry and mass torts litigation and product liability litigation that was based on a lot of it had been unsubjective, you know, speculation masquerading as scientific evidence in civil litigation, where zillions of dollars were at stake. And this was, of course, also happening in criminal trials. But the case was teed up by the corporate civil defense bar, that they wanted to get better science in litigation, in civil litigation in

particular. And so they teed up this case that went to the Supreme Court. And for the first time in our nation's history, the Supreme Court decided that judges, to answer your question, are required to act as gatekeepers, right? And they're required to go through a list of foundational elements of what scientific evidence is. Has it been peer reviewed? Is it a testable hypothesis? Is it generally accepted by the scientific community and a couple of other of these factors? And the result of that was in civil litigation, this is something that I document in the book, is that judges began to exclude unreliable evidence in much, much greater numbers. And it was the corporate civil

defendants that were bringing these Daubert challenges to unreliable evidence. On the criminal side, nothing changed. Nothing changed. And so it's not that judges are not capable of identifying and excluding what I contend is unreliable evidence and what the mainstream scientific community has contended is unreliable evidence. It's really a product of the bias against criminal defendants in our legal system, right? Right. I mean, there's really no other explanation for it. our legal system, right? I mean, there's really no other explanation for it. I mean, then you have a century of the unanimous acceptance of all these forensic techniques that have led to tens of thousands of convictions and disrupting the status quo by pointing out the lack of foundational validity in so many of these techniques disrupts the status quo in a way

that we're not comfortable with. And there was a great line that I read in the Times the other day that said that, you know, when you mix politics and science, what you get is politics. That's a good line. But politics is always mixed with science, you know? Like, it's impossible to separate politics from science entirely because politics is just the way the fucking world runs, you know? Yeah, that's no joke. But this is also why, you know, like if we had the National Institute of Standards and Technology, for example, which is the most scientific entity in the federal government. I mean, it's not a regulatory body, but they do real scientific research.

Yeah. And if you took that research away from the politics of criminal court litigation, right, and you just said, you know, we don't have Ted Bundy on trial that we need to convict and put him in the electric chair. You know, we don't have, you know, some monster on this, you know, that we need to put away. But we're really just seeing if we have a forensic technique that's a viable technique to use in criminal trials. Right. Then I think you remove a lot of the politics from it. Let's take these techniques, let's put them through rigorous study, and then let's only use the techniques that stand up to that rigor. And you could imagine, hey, let's do that for a whole lot of things with the criminal justice system. Let's do that, not just for forensic science, but also the criminal justice system at large.

Let's find out if people are being wrongfully convicted and find out why and try to avoid those things. But we don't do that. to avoid those things, but we don't do that. And stop me if I'm going too far, but it sounds like the reason we don't do that is the criminal justice system is getting what it wants out of junk science, which is convictions. The criminal justice system is designed that we have built, and most of the individuals who are involved in it are incentivized to produce convictions on a mass scale. And so since this junk science is a tool that they've been able to use, hey, it's doing what we're paying it to do. So it's working, right?

Even though the cost of that is people are being sent to prison falsely on a huge scale. Am I too far off? No, you know, I mean, I mean, what we're, you know, almost, you know, every advocate in my industry would tell you that the criminal legal system is working exactly as it's designed to work. Right? You know what I mean? Otherwise, we would be fixing it. Right? Otherwise, we wouldn't have the highest incarceration rate in the world.

You know, and let's just be clear. Junk science is the symptom of a much larger disease of racial injustice and mass incarceration. You know what I mean? And there's a straight line from slavery through Jim Crow to mass incarceration. You know, that's been very well documented by a lot of people that are researching and like the history of the use of our legal system in this country. So if we wanted to fix these things, we could, if the political will was there, we could, you know what I mean? And could. Sometimes I feel hopeful about it. And when we have mainstream scientists that are interested, not just in forensics,

but in the study of eyewitness misidentification cases and in false confession cases and some other topics that I touch on in the book, is, you know, we have mainstream scientists that are interested in advancing justice. And so much of the work that I do at the Innocence Project is working with those scientists to get their research into court in ways that, you know, that isn't research that's done by the proponents of a particular technique, right? By the people whose self-interest requires that this evidence be introduced in criminal trials, right?

You know what I mean? If you find one of the most frustrating things about litigating in forensic sciences, because there's another test that's not Daubert, it's Frye. And it's like California is a Frye state, New York is a Frye state, and so large populations. And the test there is whether this particular forensic evidence is generally accepted by the relevant scientific community. Now you can see, you know, where the rubber would meet the road on that, right? How are you going to define that community? What's the relevant community that should have an opinion about this? And so courts have for 50 years defined the community

as the proponents of a particular technique, right? And so if you ask people who's living- The forensic dentists. Right. The answer is going to be obvious, right? Is this generally accepted or not? The guys who are getting paid to do the thing. Yeah. Right. So it's astonishing to me. And then we've had, and I talk about one of these fry hearings in my book, where we've had arguments advanced and accepted by courts that out loud that, yes, people like Dr. Karen Cafedar, who is on the National Academy of Sciences Committee and also testified in this Fry hearing that I wrote about, are not part of that community. Stein descend on 100 Center Street in New York and tell the judge that bite marks are junk science and his opinion would be irrelevant, right? We've got to listen to the dentist.

Wow. That's a wild, because that's a completely wild test to use. Yeah. I mean, well, it should work if you had, you know, scientifically defensible definitions of the relevant community. It would include cognitive neuroscientists. It would include statisticians. It would include experts in research design. But no, instead, this is like just asking the climate denialists if climate change is real. No, but we have to listen to them, though. No one else can be a part of the conversation.

Only the denialists can weigh in. So tell me about the work that you do to fight this. I mean, I've now been talking to you for five or six years about this. Your entire life is, again, like fighting this. But also, it almost seems like this evidence is so bad that you're able to use it as a tool to like free the wrongfully imprisoned in a way. Yeah. Well, you know, one of the things that I talk about in the book and two of the cases that I – my clients' cases that I focus on a lot don't have DNA evidence to prove they're innocent. They both were innocent, Stephen Cheney, Eddie Lee Howard.

Eddie Lee Howard is on death row in Mississippi for 26 years. Stephen Chaney, Eddie Lee Howard. Eddie Lee Howard is on death row in Mississippi for 26 years. And when we began at the Innocence Project to focus on attempting to eliminate the use of bite mark evidence in trial, and more research was being done in the field for the first time, foundational research was being done in bite mark evidence. And we were putting that evidence into court and getting those experts to testify about their research that was demonstrating that really skin is totally incapable of accurately recording a bite mark to say nothing about all the rest of the other problems associated with it. So we started to gain some traction in criminal trials, really because of the work my colleagues at the Innocence Project have been doing for years, which had been exonerating people using

DNA evidence that had been convicted originally on bite mark evidence, right? And so when we started trying to look for those cases, the, you know, I had my paralegals were out searching the country for every bite mark case that we could find. People on death row, people about to go to trial, people on direct appeal, people in post-conviction, every stage of litigation. We just started taking all these cases that we could. So it took me to places like Alabama and Mississippi and Texas and Virginia and Ohio and California and all over the country. And that was like, the reason that I wrote the book was I knew that I was having and we're litigating just extraordinary cases, right? Few lawyers, you know, have experience going into, you know, the middle of nowhere in the Mississippi Delta and litigating a bite mark case

with a madman as a forensic dentist, you know, who's like, you know, calling me an ass wipe, you know, under oath. Right. Really? You were literally called an ass wipe under oath? Oh yeah. Like, like wipe, not hole. And then he, then he clarified himself and he said, I meant Mr. Asswipe. Wow, you make friends in your line of work. Right, right.

Yeah. So the idea is like that we are, you know, we don't think that, you know, we all know to be true is that the search for the truth is never advanced through the use of junk science. And that's what criminal trials are supposed to be, is a search for the truth. And if we have convictions that rest on fundamentally unreliable evidence, we have an ethical, moral, legal obligation to go back and correct the record and to make sure that this unreliable evidence hasn't imprisoned or condemned an innocent person. And that's a lot of what we talk about and how hard it is to overturn a conviction without slam dunk DNA. It should not be because it should be a fundamental due process right to be convicted

only on reliable evidence. And so that's a theory and which we advance all over the country. And it's so plainly appropriate and applicable to these sets of facts where you just can't say that somebody was fairly convicted. And we can't be so committed, have such fidelity to this principle of finality, that we're willing to let an execution go forward, even though we have doubts, that we're willing to throw somebody's life away, even though we have doubts, that we're not willing to have a new trial that's fair, that isn't premised on unreliable evidence to see whether or not a jury that isn't being misled by, you know, allegedly scientific evidence would still come up with a conviction. It's amazing that what you call legal theory that you're trying to advance, that you shouldn't be able to be put in prison with finality for the rest of your life on evidence that has no scientific basis to it. That doesn't sound like a theory that you're advancing.

That just sounds like that should be the way that it works. And again, when you watch lawyer shows, it's like, you know, the main thing that they advance beyond any of the forensics is the idea that like the system works, right? That it has principles behind it that, you know, make sense, right? You know, you grow up here, mistrials and, you know, all this kind of thing. And the judge says, you're out of order and all that. And so these sound like things that the government, that the criminal justice system should be doing itself.

But you as a third party nonprofit just have to go hit these cases one by one in order to correct this. And I mean, there's, God, how many people are imprisoned on this versus how many resources do you have in order to get people free? It must be staggering. Yeah, you know, I talk in the book, like, my first, you know, week at the Innocence Project in 2012 was the largest forensic science scandal in our nation's history was unfolding right at that time. And what it was was microscopic hair comparison,

which had been used for literally over a century in criminal trials. And even as we were sitting there that day, when we were negotiating with the FBI and the Department of Justice and with the National Association of Criminal Defense Lawyers to take a look at all these convictions. So we sat there that day in 2012, There had already been over 70 wrongful convictions attributable, at least in part, to the use of microscopic hair comparison evidence. It was still admissible. Nobody had gone back and corrected the record.

And so what they finally, the DOJ, agreed to do, which they had never done in its history, was go back and admit error in thousands of cases and to waive all the procedural barriers to going back into court to do exactly what we've just been talking about, which is have fair trials, right? If this evidence was used in this trial inappropriately,

that they're not going to fight to go back into court, that we're going to go back into court, we're going to have a fair trial without the use of that technology. They should be like, oops, our bad. Like this has been exposed as fraudulent or as invalid. And so, all right, if you want to go open the case files for anything decided this way, have at it because sorry, everybody. That should be the response. Well, they should help, not just have at it.

Right. I was just like, and that's what they did to their credit. I mean, it was a collaborative effort. I mean, it was really just astonishing how many cases that were out there though. I mean, it was just literally thousands of cases. I mean, and records disappear. I mean, we had an exoneration at the Innocence Project this year, somebody was in 42 years, right? Wow. 42 years. Wow. You know what? I want to hear like some of those specific personal stories, but we have to take a really quick break.

We'll be right back with more Chris Fabricant. I don't know anything. I don't know anything. Okay, we're back with Chris Fabricant. I don't know anything. for a second and talk about like to the individuals who are imprisoned for these false reasons, like those are people's lives. Like these are 17 years. I mean, one year to a person is irreplaceable because time is the only resource that is completely irreplaceable in life. It's the only thing in your life that is totally finite. But I mean, the human toll of that, like I would love to just zoom in on one story and for like one person. Yeah, if you have one.

You know, one of the cases that I focus on a lot because he was my first Innocence Project client and because his case is so extraordinary is Stephen Chaney. and because his case is so extraordinary, is Stephen Cheney. And what I think is extraordinary about the near 30 years that Mr. Cheney spent in prison was the struggle, because he didn't have DNA evidence and he didn't have a lawyer for a long time to help get him out, was that endless struggle to, for freedom.

And the idea that you never spent a day in prison without knowing that you were innocent, without knowing that this great injustice has been visited upon you every day, you know, for your entire life. And during that time, because I got to know his family and I got to know his kids a little, that, you know, they're struggling as well. And what you don't often hear in these cases is the impact on the family. Because he was a breadwinner. He was a union metal worker, you know, I mean, and his wife was slipping into poverty as he was trying to fight to get his freedom. fight to get his freedom. And one of his kids was struggling with addiction and he's stuck there in prison and can't really help and can't do anything. He has to watch this kind of falling apart as, you know, he's trying to fight for his freedom and they know he's innocent. There were two of them where they're alibi witnesses, right? You know, at trial, right? So they, not, it wasn't

just them trusting that he was innocent. They were there, knew where he was when this murder had been committed, and that wasn't by him. And so the stages, like, you know, and one of the scenes that I write about was when I first met him. And that, you know, and because I had been a public defender for a long time before that, you don't really recognize the difference between how your initial client meetings and what it's like to be an innocence project lawyer as compared to a regular public defender is that there's a lot of skepticism around public defenders

with your clients, right? Because of the reputation of them not really caring or being overworked or, you know, underqualified or, which is largely not true, but there's certainly that stereotype is there. And, you know, when I met Mr. Cheney for the first time, you know, he treated me like I was going to be able to wave a wand and open the prison doors for him. And I was totally terrified, you know what I mean? And because he understood that like he had won the lottery, you know what I mean? Because the Innocence Project is a small nonprofit, right? You know what I mean? It's like, and we have 2.3 million people in prison in this country today, right? So if you think maybe 1% are innocent, which I believe, you know, we're talking tens

of thousands of people. So Stephen Cheney, it's just like, did, you know, it's hard to call him lucky, but won the lottery, you know, but so many things had to happen for him to ultimately be released. You know, the Texas Forensic Science Commission investigated bite marks, plus the use of them in his case, the National Academy of Sciences. We worked with the Conviction Integrity Unit and the Dallas District Attorney's Office. The Court of Criminal Appeals, it's the high court in Texas, had to sign off on it. It's just all these stages. And then he finally gets out. This extraordinary day in court that I spent some time talking about, you know, and, and then his life is really unchanged, except for,

you know, 30 years have gone by, his body is broken, his wife can't work anymore. And he has to go back to work because there's no compensation because he hadn't been declared actually innocent. And so he's working in the Texas sun, banging nails in his 60s. You know what I mean? It's a totally broken body. And just that, you know, a lot of these stories, they're told in these, you know, glorious endings, you know what I mean? And, and the struggle for freedom, which, and they are, and we have such admiration for our clients, you know what I mean? Because most of them like emerge with such grace and a lack of bitterness. But then, you know, we don't follow those stories always after the, the, you know, the photo op, you know, after like

you're bursting from court and you see the struggle that goes on afterwards, because a lot of our clients are treated by society the same way that anybody that is, you know, has served time in prison is, and nobody should be treated that way. Not the, you know, factually or so-called factually guilty people or, you know, instance project clients, right? You've served your time, you've paid your debt and we should, you know, do everything we can to incorporate folks back into mainstream society. Right. Cause that doesn't happen. And it doesn't happen for instance project clients either. You know what I mean? We have lots of people that will help and support our clients, but not in the way that you can just like pay somebody's rent indefinitely or,

or those types of things. Yeah. So, you know, that to me, and, you know, because I was, you know, we were waiting for the Texas high court to rule on his case, why he was out, you know what I mean? And for me, that was really a more emotional than I typically get, you know, with the, these, these types of cases. And, you know, and I, I'm not going to give away the end of the book, you know, with these types of cases. And, you know, and I'm not going to give away the end of the book, you know, I mean, because it ends with his case. But, you know, it was really a, you know, the aspect of my book that is most personal is his story

and some of the other clients that we talk about. And that's why what, you know, because most people are not interested in reading a scientific textbook, you know, so I wrote this kind of like a true crime book, or maybe we should call it an untrue crime, right? I love that, untrue crime. Hold on a second. Right, that's a new genre. Hold on a second.

No, that's really good. That's a pitch, man. We could sell that. Let's do that. Untrue crime documentary? I love that. Sorry, go for it. I cut you off when you had your great TV show idea. No, I mean, and so I just wanted, you know,

people to have an understanding, a full understanding, both of like what's, you know, the interesting and compelling about any criminal procedural, right? You know what I mean? Because like the human drama of it, but not the bullshit of, you know, then everything, you know, lived happily ever after, right? And it's like, and that now it's all fixed or that there isn't still a problem or that people who have been exonerated, you know, then everything, you know, lived happily ever after. Right. And it's like, and that now it's all fixed or that there isn't still a problem or that people who have been

exonerated, you know, are, you know, healed somehow. Right. Everybody has experienced this incredible trauma and are the, and everybody has PTSD because you could not emerge. And that's true for everybody emerging from prison, but our clients in particular. And so the amount of support that's still necessary, you know what I mean, and to rebuild that life. And then you think about the scale of our justice system in this country. And, you know, it gets me out of bed every day. Yeah. When you tell stories like this, whenever I contemplate it, like the enormity of what is done to someone like Stephen Cheney, like just bowls me over that someone would spend 30 years

in prison, you know, falsely for a crime they didn't commit. And then, you know, you prove it without a shadow of a doubt in his case and in so many other cases, right? There's nobody going, no, actually he really did it. Like, you know, like it is, some of these cases are so flagrant. And I look at that and I say, you know, for the government of a country to do that to its own citizens, to me is, and by the way, governments of countries also shouldn't do bad things to other people's citizens, but to do it to your own citizen, right, is like the greatest sin that a country can commit. I mean, the purpose of a government is to serve its citizens and sort of imprison them falsely is the worst case scenario for everybody.

And I feel like if you stop anybody on the street and you ask them if that's the case, they'd say yes. If you talk to any judge, they would say yes, right? It'd be like, oh my God, that would be like, you know, if I was if I accidentally shot somebody, you know, if I worked at a firing range and I'm trying to teach gun safety and I accidentally shoot someone in the chest. Right. That's like you were Alec Baldwin. Fair example. And I'm sorry, I said, oh God, because, you know, I work in the film industry and like that was a really traumatizing case. Oh, I'm sure. Because, you know, the amount of safety on sets is so important, right? And so I imagine the number of people working on that set saying, oh my God, someone lost their lives and this is supposed to be a safe place, right? And so, you know, you would think that anybody, thousands of thousands

of people across the film industry rededicated themselves to safety as a result of that incident. And, you know, a lot of people didn't. There's a lot of people who still should take more responsibility for it. But, you know, just, it was a wake-up call to everyone. And so to me, I'm like, just one of these cases should be enough to make every prosecutor, right?

Like if you're working at the prosecutor's office, right? The county, whatever prosecutor's office, and one of these cases happens, oh my God, 10 years ago, we put someone away. Why isn't, why doesn't everybody drop everything and say, we got to change the way we do things. This is so deeply wrong. And yet that change doesn't happen. Do you have any view on why that is? You know, there are a number of reasons why, you know, I mean, is that, you know,

most prosecutors believe, you know, overwhelmingly, prosecutors are not doing this deliberately. They're not framing innocent people, you know, and trying to get false convictions. Prosecutors are required to subjectively believe in the guilt of the person that they're prosecuting, you know, of course, right? You know, their paycheck tells them to do it. Right. And so that's their job. They prosecute, right? And they use the tools that are available to them to prosecute. And one of the phenomena that I write about in the book is with this so called unindicted co-ejaculator theories that we get in post-conviction cases, right? And so what I mean by that, and I didn't invent that

term, is that what we have is the ability to go back and critically look at your own decision making and what you may or may not have gotten right and what you may have gotten wrong when the stakes are so high, when you're talking about capital litigation or life sentence type litigation, that when you're confronted with a DNA that disproves your case theory, people have a lot of trouble accepting it.

People have new theories. They'll concoct new theories to explain away exculpatory evidence. So there's a lot of trouble accepting it. People have new theories. They'll concoct new theories to explain away exculpatory evidence. So there's a lot of denialism that goes into this. You know what I mean? And careers are at stake. Huge amounts of money are at stake. The principle of finality is at stake. And there's all this politics that we get

that will prevent real change from happening, right? And because what you'll get is, you know, particularly in the forensic community is a lot of explaining away of, you know, the bad forensics being really the result of bad individual scientists, right? Bad Apple theories rather than bad science theories. And that perpetuates a lot of the mythology that surrounds some of the techniques that are still admissible today. You know, I've sat in these American Academy of Forensic Sciences meetings, you know, I go to them every year and the, the forensic let you into those meetings reluctantly, grudgingly.

I feel like you must show up for your badge and they're like, do we got to give it to him? Right. No, here's your bullseye. So you go to these meetings and what do you see? Well, you know, I've sat in more than once I've seen this lecture in the forensic odontology section and they'll list the known bite mark, wrongful conviction cases, and they'll go through them in kind of an orderly way to explain them all the way. Right. And so they say that, oh, well,

these were Michael West. Right. And that's a character in the book. He's one of the villains that we were talking about who called me an asshole. Bad apple. Right. Yeah. So we're not going to count those. Right. And then they look at the ones that were non-DNA exoneration. So, well, we can't be sure about those because they weren't DNA exoneration. So exclude all of those, right? And then they say, well, in this one, you know, there was bad lawyering in it. And there was also an ID that was wrong. You know what I mean?

So we weren't really responsible for that one. That was a lot of other stuff that went into it. And so then they get down, there's like, of like the 35 known wrongful convictions and indictments, they'll have like one or two kind of mistakes, right? And so what we're doing is we're overblowing this problem, right? You know what I mean? And there's really no real problem. And what they don't talk about is how many times we get it right, right? You know, because the way broken clocks are right, you know, twice a day, right?

And, you know, and I ran into this with hair in my crossbow seat, right? I was, you know, cross-examining an FBI examiner in a case in Massachusetts after the FBI and the DOJ had conceded error in thousands of cases that this evidence had been overstated and in virtually every case, that this FBI expert was still claiming that there was nothing wrong with the science and

that it was really politics that was driving this effort to eliminate hair microscopy. And he said the same thing about comparative bullet lead analysis, which had been debunked 10 years earlier. And that was really media pressure and that there was nothing wrong with the science. So you get, you know, it's nothing, it's similar to climate denialism, climate change denialism or, you know, anything else. You know, I mean, as we talked about earlier, it's the politics of science. Yeah. Even when they concede the point, then they frame it so they can make the minimal possible change. Particularly in individual cases, right? Because you say, we're now let that guy

out, right? He's a bad guy, right? And they'll convince themselves that this unreliable evidence was, it may have been unreliable, but the verdict is reliable that we got this person put away. And so who cares? Something I've really witnessed over the last two years that I found really troubling is, because, you know, I've spent the last close to a decade of my career, like one of my real focuses has been the criminal justice system and how deeply racist, unequal, and harmful it is. Like even setting the racism aside, right? Like that's, and that's a whole thing, I mean, that we can get into. But, you know, the number of people that we imprison,

the amount of misery it creates, and the very, you know, the fact that it seems to have no effect on crime rates whatsoever. Like it's just the, it's going to be this and climate change when people look back in a hundred years. You know, our mass incarceration system now

is going to look like slavery did to us today in terms of how fucked up it is. And I've been, you know, make doing, making my own media, trying to, you know, spread these ideas. The more I learned about them and really hoping, okay, maybe we're going to have a change here. People are starting to wake up, you know, we're going to, we're going to see these stories told and we're going to start to see change. And then, you know, 2020, George Floyd happens and we see a mass movement around criminal justice. And we start to see actually politicians make a little bit of movement, you know, here in LA. Oh, they cut like a little bit of money from the LAPD. But more importantly, we started to get progressive prosecutors in around the country.

And, you know, Larry Krasner in Philadelphia, George Gascon here in L.A. and San Francisco, Chesa Boudin, however you pronounce it. And like, all right. Oh, my God. We're starting to see like a little bit of progress. Great. But then the amount of self-protection that the system has really bowled me over because it wasn't just from like one place or another. It's like almost the entire society mobilized to end that progress. I mean, all of those progressive prosecutors I listed are like, none of them have been thrown out of office yet, but every newspaper article about them, every that's written is like, are they going to be thrown out of office by the voters who hate them? These people were just elected, you know, by massive. Larry Krasner was massively reelected.

But if you read every single article about him in every single paper, it looked like he was hanging by a thread. And the same thing is happening everywhere. Immediately we flipped from, you know, the, you know, Joe Biden speeches in the span of a year went from we need to, you know, make we need to protect Americans from police brutality or, you know, all of these problems in the system that have been identified to no mention of that. And we need to refund the police, which is I'm not talking about refund or defund the police specifically, I'm talking about our criminal justice reform overall, right, as an issue, seems to have gone from, hey, we're making a little bit of progress to political poison. No one wants to talk about it. And again, it wasn't just one source.

You know, obviously there's police unions, there's prosecutors unions, all these forces pushing, but it seemed to come from everywhere simultaneously that like, as soon as we have a little bit of reform, uh-oh, like the other 99% of society is gonna mobilize to try to shut it down. but it seemed to come from everywhere simultaneously that like, as soon as we have a little bit of reform, Oh, Oh, like the other 99% of society is going to mobilize to try to shut it down. That's been very astonishing for me to witness.

I wonder what it's been like for you. And if you have any thoughts about it, You know, what I think is, you know, one is I completely agree with you. You know, you look at New York city's bail reform,

you know, that was passed at the height of, you know, the social unrest of 2020, you know what I mean? And then it's just been rolled back two weeks ago with a new budget, right? And what we have is, you know, when you have uptakes in crime and uptakes in violent crime, or you have a sensational crime that isn't even necessarily representative of larger numbers of sheer volume in terms of crimes being committed is that we try the same responses to the same problems every single time, right? And it's been demonstrated again and again

and again and again that locking up people in mass incarceration isn't the way to solve the problem of violent crime in this country. It just isn't, right? It's the definition of insanity is to keep trying the same thing and expecting different results. What you get is mass incarceration of black and brown people and crime rates are not affected. And there's no empirical evidence to demonstrate that locking people up is effective at reducing crime rates, right? Otherwise, the United States would have the lowest crime rate in the world, right? We don't.

We have massively the highest percentage of our population in prison, but we do not have anywhere close to the lowest crime rate. And we have more violent crime than virtually every other country, right? Yeah. So it's obviously not working, right? So, but, you know, that's like, you know, we have to have real systemic change. You have to have real momentum about it, you know what I mean? And that's like, we have to have real systemic change.

You have to have real momentum about it. But one sensational crime can really retard all progress that we're making. It's like we talked about the Ted Bundy case earlier. That just became this thing for forensics that washed away everything else, like this idea. And it's this problem that, you know, we are less interested as human brains in empiricism than we are in stories, right? Storytelling is how humans, you know, learn and understand the world around them, right? You know, last night I was going to dinner with a friend who's terrified of New York

City subways because he doesn't want to get pushed in front of a train. Yeah. And it was like, that never happens, right? You know, it happened. Yeah. I mean, one person, like, so, you know what I mean? It's just like, you never happens, right? You know, it happened. Yeah. I mean, one person, like, so, you know what I mean? It's just like, you know,

I tried to be aware, you know what I mean? But she was like, didn't want to go to New York City because didn't want to be on the subway because had this idea that that was like a major thing. Because there was one case,

maybe one or two cases that were extremely highly publicized of that happening. Right. And it's everybody's worst nightmare. Right. You know what I mean? But so, you know,

when this is, you know, part of, you know, media hype around, you know, it's been true since, you know, back in the, you know, the earliest iteration of the tabloids with it bleeds, it leads everybody. And that's why we have all these criminal procedurals. We're fascinated by crime.

We're horrified by crime. It leads the news. It leads fiction. It leads nonfiction, right? You know what I mean? And, but it doesn't lead to good policy. you know, police procedurals are perennially popular. I mean, I really enjoy watching them myself, but I would like, where's the shows about people doing what you do, right? About people correcting the miscarriages of justice.

At the very least, I mentioned The Good Wife earlier. I like that show because at least it's about defense attorneys. Like it's just a nicer show. They're like, every time they get someone off in, they get them off from a crime. Well, actually sometimes they do get people off. There is a lot show. They're like, every time they get someone off in, they get them off from a crime. They don't, well, actually sometimes they do get people off. There is a lot of sex on the show, but, but like it's, you know,

and that's, that's like so rare, right? Just in, and that's about like a white shoe firm where they're all, you know, they're all rich and, and they're defending millionaires and shit like that. But still, you know, where's the, where's, where's the TV shows about the public defenders, right? Better Call Saul is about a public defender, but then he leaves to become a con man. So, you know. Yeah.

Where are the untrue crime stories that we've been talking about? No, it should be. I, you know, personally, I feel like, you know, and this is what I've tried to do with the book, you know what I mean, is tell these stories in a compelling way. I mean, that doesn't perpetuate mythology that's unhelpful, you know what I mean, as far as our criminal legal system, you know what I mean? Is tell these stories in a compelling way. Yeah. I mean, that doesn't perpetuate mythology that's unhelpful. You know what I mean? As far as our criminal legal system, you know what I mean? Because there is no greater instrument of social control in our country than our justice system.

Right. It's the number one. I mean, putting aside mass incarceration, look at its influence on popular culture. Right. Look at its influence on policy, on who we elect and why we elect them, right? Joe Biden, you know, doesn't, you know, what Joe Biden says and doesn't say, it's important for rhetoric, you know what I mean?

But he can't, doesn't have the levers on, you know, mass incarceration in a real way, you know what I mean? Because all that local politics is where it rules, right? And these are like the individual judges that are getting elected in small counties that are running on still largely, despite, you know, notable exceptions of progressives, you know, here and there on law and order platforms, right? And they're relying on legal precedent to make all their decisions. And that legal precedent is a century old, right? It doesn't

advance the way science does, right? It doesn't advance the way our understanding of the carceral system does, right? It doesn't advance the way our understanding of the carceral system does, right? It doesn't advance with our understanding of what a reasonable sentence is, right? You know what I mean? We have, you know what I mean, everywhere that I've traveled around the world to talk about our legal system in this country,

with notable exceptions, you know, like China, is like the sentences, put aside the junk science, putting aside the racism, putting aside everything, just the sheer number of years you get for almost everything in this country, you get inured to just how much time that actually really is. Yeah. Right?

And these are all people who have never spent a day in jail, which is a life-changing experience. One day, you know, it's really nothing in decades. Yeah, it's wild. Well, talking about what we can do about this or what you're working to do about this, you said that you would love for this form of evidence to be rigorously tested, for there to be standards of what is admissible in terms of types of evidence. How could you have a 10 year, 15 year plan for how we could actually go about putting those in place? I mean, could you, is this a thing you can bring a case eventually to the Supreme Court to, you know, get, get such a, such a duty put in place

or? Well, there, you know, there are one is the, the Biden administration could task, you know, the, a federal entity like the National Institute of Science and Technology with this role if they funded it, you know, and, you know, there were and what would really be important about that, and this is something else that the National Academy of Sciences has discussed, is separating the crime lab from law enforcement, is that, you know, when you have a crime lab that their budgets are attached to the law enforcement apparatus, their colleagues are from the law enforcement, they view their customers as prosecutors and police detectives, and you're dealing in subjective forensic techniques, you're getting all of the implicit and explicit bias that's just creating a feedback loop that these are the tools that we're going to use, these are our customers, and it's all part of the prosecutorial machine. Science should not be. Science should be separate from that, separate from the adversary system entirely.

The budgets, the people, the educational requirements, all that should be entirely separate. There's no good argument that they should be together. And there's a really great argument that it should be removed from that process entirely and demonstrated that we can do this before it's used in criminal trials. And then there's also, you know, and I write, you know, some scenes about the Texas Forensic Science Commission in the book, you know, and how important state commissions that look at forensic sciences are so that when mistakes are made, when new techniques are introduced, that the local government has a stake in that, right? You know what I mean? And it's citizens of like not being wrongfully executed. When I write about four wrongful

executions in my book and that's not, it's happened. It's certainly happened in this country, you know, many times. And Texas had happened in this country many times. And Texas had to confront this, really, as a result of the Cameron Todd Willingham case. And say what you will about the criminal justice policies in Texas, they are committed to getting the science right. And that matters, right? And there are so few of these forensic science commissions around the country. Michigan just opened one. You know, Texas has one.

But there are so few. And given the ever-increasing numbers of techniques that are being used, the more and more technology that's being used, and the fact that we're not ramping down mass incarceration, that we should care about the type of evidence we're used, you know, to fuel this fire. Yeah. I agree with you. It's just, you know, there's still the issue of it being the symptom, as you say, or, you know, this is a tool that the system uses to perpetuate mass incarceration. If you take the tool away, they do have others. Right. You know, I mean, in one of the, you know, these, the stories I tell in the book are the extraordinary, you know, um, you know, kind of almost Hollywood, you know, in the, the scope of the, the drama, you know, that are associated with it, but this is happening every day. And this is something else that I like talk

a little bit about in my book was my time as a public defender in the South Bronx. And what, you know, because before that I was an appellate attorney and when I was doing criminal appeals you know I mean my view this justice system was pretty narrow and most of my clients appeared to have been factually guilty you know of whatever it is that they had gone to trial for and that was kind of my view you know on kind of guilt or innocence issues that wasn't what I thought was really the most important thing you know I thought mass incarceration and still think that mass incarceration is the most important thing. You know, I thought mass incarceration and still think that mass incarceration is the most important thing, you know, the most pressing problem of our legal system.

Then I went and worked in a high volume urban courthouse. And in my first arraignment shift, I represented at least 30 people and at least six, seven of them were entirely innocent, factually innocent, and had spent two, three days in jail where they didn't know where their kids were, what kind of, if they were going to lose housing or their benefits as a result of this false arrest for things like trespassing or drug possession that was based on many of those drug possession cases on junk

science. These presumptive drug tests where they say, oh, you've got crack, totally unreliable, totally subjective, known to be such, and relied on every day in our legal system. And then people will plead guilty to these crimes because they have to get out of jail. They can't make bail and they have to get home and they can't go back to court. And so it really is a symptom of the disease that we're talking about, right? Because, you know, the volume, you know, which is not really the focus of my book, but the volume, you know what I mean? That's, you know, there was sort of five, six cases that each one of those could be a book, you know what I mean? You know, as I remember, you know, a woman that had jumped a turnstile when I was working in the South Bronx at a place called the Bronx Defenders, like a fabulous public

defender shop there, is that she had jumped a turnstile because her MetroCard had an insufficient amount of money, but she couldn't refill it because the machine wasn't working and the train was there and she had to go pick up her kids from an unlicensed daycare. So you're telling me she jumped a turnstile like a criminal. She committed a crime. She stole from the New York city transit Metro system. Exactly.

So, so she gets caught jumping this turnstile. When I met her in arraignments, you know, she had been in jail for two days. Yeah. And which is a day longer than you were constitutionally allowed to be there, but it happened all the time.

And the, and she didn't know where her kids were, right? Because he was at somebody's in-home, unlicensed daycare that a lot of people living in poverty have to resort to. Wow. And was just a hysterical mess because she didn't know if these people would be willing to hold on to her kids for two days

or they're wandering the streets. Those are the stories you don't really hear about. And some of them are predicated on junk science. Some of them are just like the cold steel of our justice system. Yeah. But those, I mean, those stories are really powerful. Like, I mean, what, you know, what made the George Floyd moment? It was the story. It was the footage. The visual, right. But it was also, you know, the footage told the story

and it made it really compelling to people. There was a moment where, you know, the majority of people in the country were like, wait, what's happening out there? This is happening? Holy shit, we got to do something. And for a moment they felt that way. And then the story shifted and new stories popped up. Stories like people are robbing the Macy's or whatever, like that kind of, you know, kind of weird, weird stories. But, you know, time passed and the old stories reasserted themselves. And now it feels like a dream that that was something that people, everybody cared about simultaneously. But, you know, I do feel that when you tell that story, whether it is, you know, Stephen Cheney's story or the story of the woman you just told, I don't think there's a person on the planet who would not say, oh, my God, that's terrible. Like, we got to do something, right?

At least have that human response. And so that's why I don't know. I feel the work that you do is very important, but also the communicative work that you do is extremely important. Yeah, I mean, we have a robust communications department at the Innocence Project for that reason. in some tiny court in Alabama, like we last month in Andalusia, Alabama, and lost an incredible, outrageous decision in the Charles McCrory case in Andalusia. It was an innocent man that's in prison still today and probably will be for the rest of his life as a result of bite mark evidence, who turned down an offer right before we began the evidentiary hearing to plead guilty to this crime of murdering his wife 37 years ago. And he wouldn't do it, right?

And he could have walked home that day, could have left court and been a free man, but he wouldn't. And we did the evidentiary hearing and we lost. And I'm totally convinced that he's innocent. He demonstrated that just by turning down the plea. There's, you know, I'm totally convinced that he's innocent. He demonstrated that just by turning down the plea. And, you know, they relied on case law that goes back to the original L.A.

bite mark case to uphold this conviction, saying it's still admissible evidence. And even though the expert recanted in that opinion. Wow. And he's in prison today. And really, you know, it's important that people in the media understand it, right. And that people that, you know, who had no otherwise would never have heard about Charles McCrory's case, have an understanding that, you know, this is happening today. This is going on today. You know what I mean? And that we're throwing people away, you know what I mean? And we're still relying on evidence that has been debunked a thousand times by every mainstream scientist who's ever looked at it.

Yeah. Has come to the same conclusion. It's like, this is not possible. Stop doing what you're doing. Yeah. It's so frustrating. I mean, I remember when we had you on the show and we did Adam Ruins Forensic Science and we talked about bite marks and we talked about fingerprints. We talked about the polygraph, right?

Right. And the polygraph is like one of the most flagrant, you know, like we, look, this is basic stuff, right? Like I did, this is not even controversial. Like this is rinky dink. This has been proved for decades. The polygraph is total bullshit. It might as well be,

you might as well be getting a personality test from a Scientologist, right? That's about how real it is. It's astrology. It's tarot readings. I actually don't even want to besmirch tarot readings because they're quite nice, you know? Like that's just, that just makes you feel good

and maybe you'll learn something about yourself. But this is people being put in prison. And we did, oh oh that segment fucking ruled and it was so incontrovertible and we got millions of hits on youtube and i felt like we did it we showed everybody we solved it and no one could ever use a polygraph again and after see after we put this segment out and like they're still doing it like i realized a year later oh they're still doing polygraphs polygraphs are you know there are two cases, including Stephen Cheney's, where polygraphs were used. You know, I talk about the wrongful execution of Tommy Lee Walker in Dallas in the 1950s, you know, which was, you know, one of the real racist, flagrantly racist prosecutions and wrongful executions that I explore in the book.

They use polygraph evidence in that case. And in Stephen Cheney's case, they use polygraph evidence that showed he'd been deceptive when he denied the double homicide, participating in the double homicide that he was convicted of. And then the reality was that we had to get him polygraphed again to help persuade the conviction integrity unit that he was innocent you know and i was very i didn't want to do it you know i mean i was just like and and didn't actually participate in it our local council just got it done and i was like

all right you know i guess he passed this time you know what does that matter to me no i mean it's like it didn't advance the search for the truth at all but you're kind of in this position where you have to you know use every bullet you know that you've got you're like this is bullshit and they're like yeah but do it again and if it passes this time you're like fine that moment's like all right you know i mean i was like what you know it's like i was worried that he was going to fail right because like that you know if we're going to be taking this seriously then you know you know, who knows? You know, I mean, it's like I can't imagine sitting strapped up to a machine and knowing that your freedom depends on you passing this test. You know, I mean, and it's also used in course of interrogations a lot.

Right. So they strap you up to a polygraph and say you're failing. You know, you fail this polygraph. You know, I mean, it's like what we've been calling essentially a false evidence ploy, which has been very effective to induce false confessions and say, oh, we got DNA evidence. Oh, you flunked a polygraph. Oh, 10 witnesses saw you do this. We don't really understand how much pressure that puts on somebody to confess.

So I got to find a good question to bring us in for a landing. And I think, I think, I think I do have one because whenever I look at this stuff and I start, you know, again, looking, looking clear eyed at how much just fraudulent shit is used by the criminal justice system to lock people up. We've touched on bite mark analysis, forensics. We haven't even talked about arson investigations, fire, fingerprints, not being reliable. And then you just mentioned, you know, eyewitness testimony being unreliable, forced confessions is a, we could do a whole episode on that, all these things together. And then we've talked about the adversarial system where you've got massive resources

for the prosecutor, very few resources for public defenders. We got all this shit. How do you, as someone who's participating in this, how do you wake up every day and participate in a system like that? That is so tilted to produce convictions. That is, I mean, I feel like to get up and do it, you must have some faith in the justice or efficacy of the system that it works in some way. But I don't know. Like, how do you deal with that emotionally? Well, you know, I'm fortunate that I work at the Innocence Project, which is a very powerful voice in the criminal legal system. And I do believe that our clients' stories and our focus on valid and reliable science

and empiricism and objectivity in the way that we make decisions in our justice system is a powerful tool. I also, and this is true with all of my colleagues when I was a public defender and at the Innocence Project is that we're all fueled by a sense of justice and outrage at injustice. And, you know, whenever, you know, we look around and I look around at the world around me, you know, I mean, whatever the, you know, current political crisis is, I often feel lucky that my job is inherently political, you know, that I get to go to work every day to at least put up a fight, you know what I mean? And that feels good, you know what I mean? And that's like why I do it, you know what I mean, is that I'm not making widgets every day. And, you know, and I'm not sure if I have faith that in my lifetime that we're going to see a legal system that we can at least not

be ashamed of, but we're going to fight like hell. Yeah. Well, I feel lucky to know you and to be able to talk to you on the show. So thank you so much for coming on. Thank you, Adam. The book is called Junk Science. You can pick up, we don't have cameras on, but you've just held it up very perfectly. Like, like you're on a late night show, which I love. The book is called Junk Science. You can get it at factuallypod.com slash books or wherever you get your books. Thank you so much, Chris Fabricant, for being here.

Thanks again, Adam. Well, thank you once again to Chris Fabricant for coming on the show. His book, once again, is called Junk Science, and you can pick it up at factuallypod.com slash books. And just a reminder, when you buy a book there, you'll be supporting not just this show, but your local bookshop as well. Thank you again to our Patreon supporters, especially those of you who support us at the $15 a month level. Those of you who support us at the $15 a month level, that's Adam Simon, Adrian, Allison Lipparato, Alan Liska, Ann Slagle, Antonio LB, Aurelio Jimenez, Brandon Sisko, Charles Anderson, Chris Staley, Courtney Henderson, David Conover, Drill Bill, M, Hillary Wolkin,

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Oh my gosh, a hummingbird just flew by outside my window. Oh, it's so cute. Oh my God. I believe it's an Alan's hummingbird. Really adorable. You can find me online at adamconover.net. You can find my tour dates there, by the way. You can also me online at adamconover.net. You can find my tour dates there, by the way. You can also find me at Adam Conover wherever you get your social media. Thank you so much for listening, and we'll see you next time on Factually. That was a Hate Gum podcast.