Abusing Science

The government loves science. It should be quite obvious why, as science can very easily be twisted to serve the state’s nefarious purposes while maintaining the illusion of being undeniable and absolute. Science is the smoking gun in many cases, regardless of whether it really is or not. DUI cases in particular are often built on nothing more than government pseudo-science, something without which the state would only be able to prove in many instances that defendants were bad drivers who did a poor job performing parlor tricks for a cop. The results of a supposedly scientific test can instantaneously change a minor civil traffic ticket into a DUI conviction along with all of the accompanying social stigma and various draconian punishments.

Most lawyers and judges are not scientific-minded individuals. They view scientific tests and scientific analysis the way that many religious people view their deity. They don’t understand it, but they have faith in it. When things come up that might challenge their beliefs, they stick their heads in the sand. They are absolutely certain that what they believe is correct no matter how much evidence there may be to the contrary. Obvious flaws in their beliefs are just anomalies. They trust whatever they believe, ignore evidence to the contrary, and don’t think too hard about any of it. As frustrating as it may be dealing with that mindset from prosecutors and judges as a defense lawyer, most DUI cases are tried before juries. I’ve found that DUI juries with scientists and doctors on them tend to acquit even when the state’s case seems strong. I’m never surprised when that happens.

A serious problem arises when the court prevents the jury from hearing important information that might call into question the reliability of the scientific testing in a case. It isn’t like that physician or scientist juror is going to just assume there’s a problem without any evidence of one, and judges are frequently all too willing to preclude important information about the testing equipment and methods. They claim there’s no evidence there had been an error in this case. Judges demand an offer of proof from the defense before they’re willing to admit evidence of the countless other errors the machine has made. Instead of making the state bear the burden of proving the test was accurate and admitting all of the information that might cast doubt on its accuracy, judges regularly presume the results are accurate and preclude any information to the contrary.

Take the software some jurisdictions use to view and print gas chromatography–mass spectrometry results in DUI cases, for instance. Interviewing different state experts, they’ve all admitted to me that there are numerous issues with the software. They describe different instances in which the software has mixed up samples. They claim they’re “clerical” errors and not “analytical” ones, but the errors caused incorrect results nonetheless. Moreover, the state never corrected the cause of those errors. Instead, the people performing the tests just tested the samples in a slightly different manner that seemed to fix the problem. Not a single person working for the crime lab can say why the software made the mistake, as none of them know the first thing about computer programming. The state can’t produce a single witness who can testify the issues the state never bothered fixing might be causing problems in other areas as well. Good luck finding a judge who will let you ask the state’s expert about software problems. Without an offer of proof about a known software problem in your exact case, the jury never gets to hear about the fact the software screws up constantly in a variety of different areas.

Expect the government to push the boundaries of the leeway it has been given. I envision the state qualifying certain government employees to operate a Magic 8-Ball of guilt or innocence. Specially trained officers, let’s call them “culpabilitists,” learn the highly scientific principles behind the device, and they call it something cool, like the “M8B.” They claim cops have tested it all over, that the theories behind it have been subjected to peer review and publication by cops worldwide, that there is no known or potential error of the technique or theory of the M8B, and that cops the world over generally accept it as the ultimate arbiter of guilt or innocence. Courts will let it in, though the defense attorneys will protest like we always do. We’ll argue it’s just a toy that officers shake. We’ll point out that its results are random and that, with most M8B devices, every single side of the die floating inside says “guilty.” The court will shoot us down while explaining how the science is well-settled. The culpabilitist said so, after all. The judge will look down from his podium and say to the defense, “do you have an offer of proof that the device in this particular case did not produce an accurate result?”

I kid, of course, but the government’s abuse of science and the courts’ complicity in it are no laughing matter. Although the tests the state uses to convict people of DUI are for the most part more reliable than a fortune-telling children’s toy, courts rely so blindly on flawed science and strive so hard to avoid anything that might give rise to reasonable doubts about the state’s test results that even the most deeply flawed equipment, methods, and software can achieve a criminal conviction with remarkable ease. When a person’s life hinges on science in the hands of a government that’s happy to abuse it, it’s easy to slide down a very slippery slope. That’s exactly what we’re doing. If we continue, maybe the M8B isn’t too far away.

UPDATE: The Maricopa County Superior Court finally ruled that blood test results from Scottsdale’s malfunctioning chromatograph were inadmissible, but the Court of Appeals quickly vacated the order. Read more about it here and here. M8B here we come!