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FBI and DOJ Vow to Continue Using Junk Science Rejected by White House Report

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Apparently the FBI and DOJ operate independently of the White House, which may in fact be true: it’s not a good idea for the President to be deciding what the DoJ and FBI should do, since they should follow the law. (It’s probably also not a good idea for the President to decide on his own authority to have American citizens killed with no due process and certainly no trial.)

Jordan Smith reports in The Intercept:

Although a report released this week by the President’s Council of Advisors on Science and Technology concludes that there is scant scientific underpinning to a number of forensic practices that have been used, for years, to convict thousands of individuals in criminal cases, the U.S. Department of Justice has indicated that it will ignore the report’s recommendations while the FBI has blasted the report as “erroneous” and “overbroad.”

The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” concludes that a number of common, pattern-matching forensic disciplines – bite mark analysis, fingerprint and firearm comparison, shoe tread analysis, and complex DNA mixture analysis – need additional support to be deemed scientifically valid and reliable – a conclusion in line with that reached in the groundbreaking 2009 report on forensics issued by the National Academy of Sciences National Research Council.

In a statement reported by the Wall Street Journal, Attorney General Loretta Lynch said that the agency remains “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” As such, she said, while “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

The DOJ did not respond to The Intercept’s request for additional information, but based on her statement, it appears Lynch is saying there’s simply nothing to see here and that the criminal justice system is working just fine.

The Intercept first reported on the report’s conclusions earlier this month, after obtaining a draft copy. The text of the final report, released Sept. 20, appears to be nearly identical to the leaked draft.

Foundational validity and reliability are essential to shore up forensic practices, the report concludes – attributes that are largely absent in the disciplines it reviewed, which rely heavily on the subjective determinations of practitioners. Pattern-matching forensics involve an examiner determining whether a piece of crime scene evidence can be visually matched to a suspect – whether an alleged bite mark on a victim’s hand matches a suspect’s dentition, for example, or whether a partial, or smudged, fingerprint found at the scene of a crime matches a clean print obtained from a suspect – determinations currently based primarily on a subjective eyeballing of the objects at issue.

“Foundational validity requires that a method has been subjected to empiricaltesting by multiple groups under conditions appropriate to its intended use,” reads the report. Such studies must demonstrate that a practice is “repeatable and reproducible” and must provide “valid estimates of the method’s accuracy” – in other words, a meaningful error rate. “The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of ‘judgment.’ It is an empirical matter for which only empirical evidence is relevant,” the report continues. “For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.”

For years forensic practitioners in many of the disciplines included in the White House report (as well as in the National Academy of Sciences report) have overstated in court the validity and reliability of their results. Consider the case of Bill Richards, for example, who spent nearly 23 years in prison for murdering his wife Pamela before the California Supreme Court last May overturned his conviction, concluding that Richards had been a victim of junk science and false testimony. In his case, a renowned forensic dentist testified that a mark found on Pamela’s hand was a clear match to Richards’s supposedly unique dentition. Notable, the dentist testified, was that Richards had an under-erupted canine tooth that would account for a void in the alleged bite-mark injury to Pamela’s hand; only “one or two or less” people out of 100 would have such a feature, he testified. The dentist, Dr. Norman “Skip” Sperber, ultimately recanted that testimony, saying that it had no scientific basis. The new White House report notes that it is unlikely that bite-mark evidence will ever be scientifically supported.

In all, the report makes eight overarching recommendations for improvement— to the National Institute of Standards and Technology, to the FBI, to the attorney general, and to the judiciary — and called for “a vigorous research program” to improve forensic sciences building off “recent important” research conducted into fingerprint analysis, that the judiciary take into account actual scientific criteria when assessing whether forensic evidence and testimony should be allowed into court, and that the attorney general should “direct attorneys appearing [in court] on behalf of the [DOJ] to ensure expert testimony in court about forensic feature-comparison methods meets the scientific standards for scientific validity.”

“Where there are not adequate empirical studies and/or statistical models to provide meaningful information about the accuracy of a forensic feature-comparison method,” the report concludes, “DOJ attorneys and examiners should not offer testimony based on the method.” And in the event that testimony is necessary, the report says, the expert should “clearly acknowledge to courts” the lack of scientific evidence to support the underlying forensic practice.

Under “current legal standards,” and under the U.S. Supreme Court ruling in the 1993 case Daubert v. Merrell Dow Pharmaceuticals, federal judges are tasked with acting as gatekeepers over what expert testimony will be allowed into evidence. Where scientific – or supposedly scientific – evidence is concerned, the Supreme Court concluded that before allowing expert testimony in a case the trial judge must ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable” which necessitates, in part, an assessment of “whether the reasoning or methodology underlying the [expert’s] testimony is scientifically valid.”

This, the new report correctly notes, is where science and the law intersect. But in practice, legal scholars note, the Daubert standard has not kept pseudoscience out of the courtroom. And when courts rely on precedent to allow certain questionable forensic practices into evidence the result is something like a feedback loop. “Bite-mark analysis has passed every Daubertchallenge that it has ever faced and [yet] there isn’t a scientist on the planet that would argue that bite-mark analysis is a valid and reliable science, aside from the few practitioners who still cling to that belief,” said Chris Fabricant, director of strategic litigation for the Innocence Project and a vocal critic of the use of junk science.

Fabricant said the DOJ’s rejection out-of-hand of the White House report is disheartening. “You would think that they would want to get it right. The idea is not that we’re going to spring open the jailhouse doors and let everybody free. The idea is that scientific evidence ought to be scientific,” he said. “To simply reject the call for more research and to say that Daubert is sufficient is ludicrous, because Daubert is obviously not sufficient,” he continued. “So, the idea that you would point to the courts and to precedent for the idea that forensic evidence is good enough for government work is a joke.”

Attorney General Lynch was not alone in her rejection of the science council’s report. The FBI also . . .

Continue reading.

It’s important and it shows clearly how out of whack a good part of the government is.

Written by LeisureGuy

23 September 2016 at 8:56 pm

What the US banking industry is and what has happened as a result.

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This column in Wall Street on Parade by Pam Martens and Russ Martens is worth reading. From the column:

. . . Let’s recap what the public has learned over the past eight years about the Wall Street banking model from hell. (1) The greatest housing collapse since the Great Depression resulted from Wall Street banks muzzling their internal whistleblowers who wrote memos to management and shouted from the rafters that the banks’ mortgage loan departments were ignoring their own compliance rules and buying up tens of thousands of mortgages with wildly overstated incomes by the mortgage holder. (2) The banks then knowingly bundled these toxic mortgages into pools and paid the ratings agencies, Standard & Poor’s and Moody’s, to assign triple-A ratings to the offerings (called securitizations). (3) The banks knew these toxic mortgages would fail but they sold them to their customers as sound investments. (4) The banks also used their insider knowledge that the mortgages were going to fail to place bets (short sales) and reap billions of dollars in profits as the U.S. housing market collapsed and families were thrown into the streets.

Last December, “The Big Short” movie began to play in theatres across America, allowing millions of people to see how the unchecked, insidious greed of Wall Street had destroyed the nation’s economy along with the reputation of Wall Street, the ratings agencies and the revolving door regulators. (See video below.) The movie was based on real-life people on Wall Street and adapted from the book by the same title by author Michael Lewis, an authoritative source through his previous career on Wall Street.

Years before the movie made it to the big screen, thousands of activists around the country created the Occupy Wall Street movement to advocate for a realignment of their democracy and a radical overhaul of what Wall Street had become: a thinly disguised wealth transfer system for the one percent, being propped up by a corrupt political campaign finance system. After commanding news headlines for months and being carefully monitored by government surveillance, a brutal police eviction was orchestrated against Occupy Wall Street, journalists covering the protests and even New York City Council Members attempting to monitor what was happening. Congressman Jerrold Nadler sent a letter on December 6, 2011 to Attorney General Eric Holder at the  U.S. Department of Justice requesting that an investigation be undertaken. Nadler’s description of the events were reminiscent of a police state protecting the criminals: . . .

The column explains what this toxic culture has done to IPOs. And do read the whole thing: it’s good to be reminded of the sort of society in which we actually live.

Written by LeisureGuy

23 September 2016 at 5:44 pm

More on the contemptible response of the FBI, Department of Justice, and prosecutors to unwelcome facts

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Those who dedicate their lives and careers to winning convictions are not interested in anything, valid or not, that makes winning a conviction the least bit more difficult. It seems that the majority of the FBI, prosecutors, and DoJ do not really care whether the evidence they use is accurate or not: their sole focus is on winning convictions, and to hell with evidence.

Our criminal justice system has just put on public display the degree of its corruption, and it’s an ugly sight. Daniel Denvir writes in Salon:

Under fire yet again, law enforcement is fighting back. Facing heavy criticism for misconduct and abuse, prosecutors are protesting a new report from President Obama’s top scientific advisors that documents what has long been clear: much of the forensic evidence used to win convictions, including complex DNA samples and bite mark analysis, is not backed up by credible scientific research.

Although the evidence of this is clear, many in law enforcement seem terrified that keeping pseudoscience out of prosecutions will make them unwinnable. Attorney General Loretta Lynch declined to accept the report’s recommendations on the admissibility of evidence and the FBI accused the advisors of making “broad, unsupported assertions.” But the National District Attorneys Association, which represents roughly 2,5000 top prosecutors nationwide, went the furthest, taking it upon itself to, in its own words, “slam” the report.

Prosecutors’ actual problem with the report, produced by some of the nation’s leading scientists on the President’s Council of Advisors on Science and Technology, seems to be unrelated to science. Reached by phone NDAA president-elect Michael O. Freeman could not point to any specific problem with the research and accused the scientists of having an agenda against law enforcement.

“I’m a prosecutor and not a scientist,” Freeman, the County Attorney in Hennepin County, Minnesota, which encompasses Minneapolis, told Salon. “We think that there’s particular bias that exists in the folks who worked on this, and they were being highly critical of the forensic disciplines that we use in investigating and prosecuting cases.”

That response, devoid of any reference to hard science, has prompted some mockery, including from Robert Smith, Senior Research Fellow and Director of the Fair Punishment Project at Harvard Law School, who accused the NDAA of “fighting to turn America’s prosecutors into the Anti-Vaxxers, the Phrenologists, the Earth-Is-Flat Evangelists of the criminal justice world.”

It has also, however, also lent credence to a longstanding criticism that American prosecutors are more concerned with winning than in establishing a defendant’s guilt beyond a reasonable doubt.

“Prosecutors should not be concerned principally with convictions; they should be concerned with justice,” said Daniel S. Medwed, author of “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent” and a professor at Northern University School of Law, told Salon. “Using dodgy science to obtain convictions does not advance justice.”

In its press release, the NDAA charged that the scientists, led by Human Genome Project leader Eric Lander, lack necessary “qualifications” and relied “on unreliable and discredited research.” Freeman, asked whether it the NDAA was attempting to discredit scientific research without having scientists evaluate that research, demurred.

“I appreciate your question and I can’t respond to that,” he said.

Similarly, Freedman was unable to specify any particular reason that a member of the council might be biased against prosecutors.

“We think that this group of so-called experts had an agenda,” he said, “which was to discredit a lot of the science…used by prosecutors.”

The report, “Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” was the result of a comprehensive review or more than 2,000 papers and produced in consultation with a bevvy of boldfaced names from the legal community. It found that there is no solid scientific basis to support the analyses of bite marks, firearms, biological samples containing the DNA of multiple individuals and footwear. The report also found that the certainty of latent fingerprint analysis is often overstated, and it criticized proposed Justice Department guidelines defending the validity of hair analysis as being grounded in “studies that do not establish [its] foundational validity and reliability.”

The new report is comprehensive but hardly the first time that scientific research has cast doubt on the reliability of evidence used in trials — everything from eyewitness identification to arson investigations. The report cites a 2002 FBI reexamination of their own scientists’ microscopic hair comparisons and found that DNA testing showed 11 percent of the samples that had been found to match in reality came from different people. A 2004 National Research Council report cited found there was an insufficient basis upon which to draw “a definitive connection between two bullets based on compositional similarity of the lead they contain.”

One of the most important developments in recent decades has been DNA science, which has not only proven that defendants have been wrongfully convicted but also raised questions about the forensic evidence used to win those convictions.

In the Washington Post, University of Virginia law professor Brandon L. Garrettdescribes the case of Keith Harward, who was exonerated on April 8 for a Newport News, Virginia rape and murder that DNA evidence later showed someone else committed. His conviction, for which he spent 33 years behind bars, hinged on the false testimony of two purported experts who stated that his teeth matched bite marks on the victim’s body.

“Of the first 330 people exonerated by DNA testing, 71 percent, or 235 cases, involved forensic analysis or testimony,” Garrett writes. “DNA set these people free, but at the time of their convictions, the bulk of the forensics was flawed.”

In an interview, Garrett called the NDAA response “juvenile.”

“The response seems to be you say that certain forensic sciences are unscientific, well you’re unscientific,” said Garrett. “To call a group of the leading scientists in the world unscientific, it’s just embarrassing….I really doubt that they speak for most prosecutors.”

Many cases, the report found, have “relied in part on faulty expert testimony from forensic scientists who had told juries incorrectly that similar features in a pair of samples taken from a suspect and from a crime scene (hair, bullets, bitemarks, tire or shoe treads, or other items) implicated defendants in a crime with a high degree of certainty.”

Expert witnesses have often overstated the certainty of their findings, declaring that they were 100-percent certain when in fact 100-percent certainty is scientifically impossible.

Forensic science has largely been developed within law enforcement and not by independent scientists, said Medwed. In the case of bite mark analysis, the report concludes that the method is basically worthless. But by and large, the report calls not for the science to be thrown out forever but to be improved so that it is in fact reliable.

“The NDAA response strikes me as a bit defensive to say the least and puzzling because my hope is that in looking at this report the reaction of prosecutors would be, how do we improve the system,” said Medwed. “Even if they believe that some of these disciplines are legitimate, how do we further test them, and refine them so they can be better?”

The NDAA, however, not only dismisses the scientific research in question but asserts that scientific expertise has no role to play in determining what kind of evidence judges decide to admit into court. . .

Continue reading.

Ignorance is bad, stupidity is worse, and combination is deadly. It’s a bad sign that so many in law enforcement and among prosecutors seem to embrace ignorance with enthusiasm.

Written by LeisureGuy

23 September 2016 at 1:57 pm

DEA Is Banning a Little Known Medicinal Plant Called Kratom. Why? Because they can.

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They don’t have to provide a reason, which is handy when you don’t have a reason. The reason is probably the same reason the DEA keeps marijuana as a Schedule I drug: they can, so they do. Let’s face it: the more things the DEA makes illegal, the more work there is for them to do. Having the DEA in charge of deciding whether medical plants should be made illegal is like having a paving contractor deciding whether or not citizens should replace their driveway.

Madison Margolin reports in MOtherboard:

The US government is set to ban kratom, a medicinal plant and painkiller, even though researchers say it might not be dangerous.

Native to Southeast Asia, kratom has traditionally been brewed in tea, or ground up and encapsulated as powder. Historically, Thai laborers would use it to help them work longer hours without pain. But the drug has gone from subtle roots to becoming a Schedule I drug, akin to heroin in the eyes of the Drug Enforcement Administration. The DEA’s temporary ban will go into effect on September 30.

Kratom is most commonly used to treat chronic pain. The chemicals in kratom bond to the brain’s opiate receptors, making it the drug of choice for some patients with conditions like fibromyalgia or multiple sclerosis. Sometimes, it’s also a treatment for opiate addicts undergoing withdrawal—the medical journal Addiction featured one such pain patient who switched from Dilaudid pills to kratom tea.

In low doses, it acts as a slight stimulant, and in higher doses it acts like more of a sedative, one reason kratom has also been hailed as an anti-anxiety drug. But lately, as Motherboard reported earlier, kratom pills sold online have become a sort oflovechild between adderall and oxycontin.

The relatively unknown drug has received some sporadic media attention the past few years, as it eventually made its way into the awareness of the Drug Enforcement Administration. In an emergency action this past August, the DEA placed kratom temporarily into the Schedule I category, which states it has “no accepted medical use.” The move was reminiscent of our marijuana legislation.

As kratom has no history of being particularly popular, or problematic, surprised vendors have rushed to remove it from their shelves before the DEA moves toward a permanent ban. And they aren’t happy about it.

“If kratom becomes a Schedule I drug, America will see what a true epidemic looks like, all the while denying American citizens of the only substance that eases their pain, depression, anxiety, PTSD, etc.,” said Robert McMahan, head of the online kratom vendor Blue River Wellness, in an email. He said kratom has been a much safer alternative to other opiates and drugs like meth and heroin. . .

Continue reading.

Written by LeisureGuy

22 September 2016 at 4:27 pm

Wells Fargo: It wasn’t just bogus accounts, the bank also screwed customers with foreclosures

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Unfortunately, the agencies responsible for regulating the banking industry are, with the cooperation of the President, controlled by the banking industry, so I doubt that anything will be done long term. Still, it’s interesting to see that banks can pretty much do what they want with the sure knowledge that no bank official will be punished in any way. (The person who ran the bogus-accounts scam was given $125 million bonus when she retired: that’s the sort of “accountability” banks practice.

Gretchen Morgenson reports in the NY Times:

John Stumpf, the chairman and chief executive of Wells Fargo, won a dubious achievement award from one of his interrogators during Tuesday’s scorching hearings on Capitol Hill. The bank’s yearslong practice of opening bogus accounts for customers and charging fees to do so, said Senator Jon Tester, Democrat of Montana, had united the Senate Banking Committee on a major topic for the first time in a decade. “And not in a good way,” headded.

But this was not the first time problematic and pervasive activities at Wells Fargo succeeded in uniting a disparate group. After observing years of abusive mortgage loan servicing practices at the bank, an increasing number of judges hearing foreclosure cases after the financial crisis grew to understand that banks could not always be trusted in their pleadings.

This was a major shift: For decades, the nation’s courts had been largely pro-bank when hearing foreclosure cases, accepting what big financial institutions produced in documentation and amounts owed by borrowers.

“Wells didn’t intentionally educate judges. They didn’t raise their hand and say, ‘Judge, we’re sorry,’” said O. Max Gardner III, a prominent foreclosure defense lawyer who teaches consumer counsel how to represent troubled borrowers. “It was people really digging in and having the resources and the time to ask the right questions about what they were doing with the money.” Those practices included levying improper fees and incorrectly foreclosing on homes.

Tom Goyda, a Wells Fargo spokesman, said: “The housing downturn was a challenging time for our nation, and Wells Fargo has acknowledged that we made mistakes in the handling of mortgage foreclosures along the way. Lenders, investors, along with policy makers and regulators — all sides — learned foreclosure processes had to be addressed, and Wells Fargo made significant improvements to the way we work with customers when they fall behind in their payments and during the foreclosure process.”

During the financial crisis, Wells Fargo was at a remove from Wall Street and was not a big player in creating toxic and complex mortgage securities that were engineered to fail. But the bank’s ability to emerge from the crisis with a relatively good reputation is something of a mystery to anyone who paid attention to its aggressive foreclosure activities.

The only difference: Mr. Stumpf, who was named Wells’s chief executive in 2007, has apologized to the customers his bank harmed with its account opening charade. Lawyers who represented troubled borrowers say no such apology came from Mr. Stumpf during the foreclosure mess.

“I sure as heck haven’t seen it,” said Linda Tirelli, a longtime foreclosure defense lawyer at Garvey Tirelli & Cushner in White Plains, who has often battled Wells Fargo. “I don’t remember ever hearing him apologize, because that would admit wrongdoing, and that’s not part of Wells Fargo’s corporate culture. Their culture is about not holding anybody at the top accountable.”

Some judges tried to hold Wells Fargo to account for its foreclosure practices. One was . . .

Continue reading.

Written by LeisureGuy

22 September 2016 at 10:41 am

Good news but need more: 27 U.S. Senators Rebel Against Arming Saudi Arabia

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An important step in the right direction, reported by Alex Emmons in The Intercept.

Written by LeisureGuy

21 September 2016 at 2:39 pm

Banking Has Become a Criminal Enterprise in the U.S.

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Pam Martens and Russ Martens report in Wall Street on Parade:

Tomorrow the U.S. Senate Banking Committee will hold a hearing to take testimony from Wells Fargo CEO John Stumpf and Federal regulators to understand how this mega bank was able to get away with opening more than two million fake customer accounts over a span of years. The accounts and/or credit cards were never authorized by the customer and were opened solely by employees to meet sales quotas, get bonuses or to avoid getting fired for failing to meet sales targets.

The only reason the Republican-controlled Senate is holding this hearing is because the Wells Fargo fake-account story got a lot of coverage in the media when the Consumer Financial Protection Bureau (CFPB)announced a $185 million settlement over the charges on September 8. The reason the story got a lot of media coverage is because it’s a simple story to tell: widely respected bank opens two million accounts for its customers without their knowledge or permission, sometimes illegally funneling money to the new account from the old account to generate fees.

In July of last year, when Citibank, the deposit-taking retail bank settled charges with the CFPB for $700 million for deceptively selling add-on products to credit card customers, the Senate Banking Committee yawned and did nothing.  The story didn’t get major press attention because it was a complicated story to tell. Among a long list of fraudulent practices, the CFPB found that Citibank led 2.2 million customers to believe they were paying to have their credit card monitored for fraud and identity theft, “when, in fact, these services were either not being performed at all, or were only partially performed,” according to the CFPB.

The CFPB charges against Citibank came exactly two months after Citbank’s parent, Citicorp, pleaded guilty to a felony with the Justice Department in connection with the rigging of foreign currency. On the same day, another U.S. mega bank, JPMorgan Chase, also pleaded guilty to a felony related to the same crime. Both banks are more than a century old and both banks, on May 20 of last year, pleaded guilty to a felony for the first time in their history.

The public first got its peek into the corrupt culture at Citigroup, the bank holding company of Citibank, on December 4, 2011 when Richard Bowen, a former Citigroup Vice President and whistleblower, appeared on 60 Minutes. Bowen explained how he had found that Citigroup was buying fraudulent mortgages and selling them to investors as sound investments. When his superiors ignored his warnings, in November 2007 he wrote to top management, including the CFO, chief risk officer and Robert Rubin, the Chairman of Citigroup’s executive committee who, as a former Treasury Secretary under Bill Clinton, had pushed to deregulate Wall Street banks – allowing them to hold FDIC insured products and cross-sell their carnival barker wares to the public.

Bowen explained on 60 Minutes what happens when an honest employee speaks out in one of the Wall Street banking behemoths: “I was relieved of most of my responsibility and I no longer was physically with the organization.” He was told not to show up at the bank.

Bowen’s treatment at Citigroup was replicated against a different whistleblower at JPMorgan Chase, now the largest U.S. bank by assets, according to a report by Matt Taibbi in Rolling Stone. . .

Continue reading.

Written by LeisureGuy

20 September 2016 at 11:23 am

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