Wednesday, May 1, 2013

Forensic Fraud: Now Available on Daytime TV - A frank discussion about the admissibility of photo and video enhancement testimony

For years, Hollywood has perpetuated the myth of photo and video enhancement.  According to Hollywood and its all-too-convenient plot points, a mere click of a computer’s “enhance button” transforms any grainy image into a clear, focused picture with perfect resolution (there also has to be a serious woman in glasses looking over the person operating the computer’s shoulder shouting “enhance. . . enhance . . . enhance” in order for this to work).  In reality, this is fundamentally impossible.  Hollywood ignores the fact that every photographic image is composed of pixels, and once a photo is enhanced to where it is fully pixelated… all that the viewer can see are the pixels.  You can see nothing but blocks of color, and one certainly cannot see something that was completely undetectable to the naked eye. The majority of the scientific community has been in on the joke, even generating Internet memes ridiculing Hollywood’s scientifically-inaccurate portrayal of video and photo enhancement.  Unfortunately, American courts seem to be the only ones left out of the joke, frequently admitting video and photo enhancement evidence that is nary more than forensic fraud.

If movies were scientifically accurate...

I recently came across this type of evidence in an unexpected place: the Jodi Arias trial; and my trip to the most widely-publicized trial in the country led me to reflect upon video enhancement testimony, slippery slopes, and forensic fraud.

For those of you who have jobs, families, or hobbies, Jodi Arias’s murder trial is the trial du jour for bored housewives and retirees.  Broadcast every weekday on Court TV for almost four months, the facts of the case are more tawdry than any romance novel lying at the bottom of the K-Mart bargain bin.  Essentially, Jodi Arias dated Travis Alexander on-and-off for a few years.  She was a good looking woman with a proclivity for stalking; he was an equally good looking man with a fatal attraction to crazy women. Sordid details about the couple’s sex life have become the thrust of the evidence at trial.  Their relationship ended unamicably when Arias stabbed Alexander twenty-nine times, slit his throat from ear to ear, and shot him in the chest three times.  Naturally, she claims the killing was self defense.

The trial is being held close to my hometown, and a friend invited me to ride with him to see it.  Not one to miss government-funded panem et circenses and never having attended a high-profile trial, I agreed.   Before I went to the trial, I had very little knowledge about the facts of the case.  Anything I did know about it, I had gleaned from reports on my local news channel.  But, after I arrived, the other attendees seemed more than excited to discuss the  “complex legal issues” of the trial with me.  In this situation, “complex legal issues” was a euphemism for Jodi Arias’s sex life, the great significance of a planned trip to Cancun in establishing a motive for the killing, and the prosecutor’s dashing good looks (personally, I do not see it).   I did not have high hopes for my day at the trial, and my fellow spectators seemed more interested in fist fighting, criticizing the public defender’s tie, and getting the prosecutor to autograph their walking canes than an intellectual discussion about the current state of our justice system.

In any event, my fellow attendees informed me that I had picked a bad day to come to the trial.  We would only get to see one naked picture of the victim that day, and we would not likely learn any new, salacious details about the couple’s sex life. The judge had scheduled a Rule 702 hearing for most of the morning.  My interest was peaked. At issue was an expert’s enhancement of this photo:

Before the killing, Arias and Alexander took numerous pictures of each other in compromising positions. This photograph had been the last one Arias snapped of Alexander alive, the killing occurred mere seconds after she took the picture.  The defense sought to admit the testimony of a photographic enhancement expert, who, by his own account, was able to enhance the photograph in order to see a clear reflection of Arias in the victim’s eye.  According to the expert, Arias was standing a few feet away from Alexander, holding the camera with both hands at the time the picture was taken; and he further asserted that he could state with scientific certainty that she was not holding either a gun or a knife.  There was no evidence corroborating the reliability of the expert’s testimony or establishing a statistical rate of error.   In other words, defense counsel failed to show that this evidence conformed to the strictures of Rule 702.  Thus, for the purposes of a 702 analysis, it is fact that this testimony was non-admissible pseudo-science.

The defense counsel thought this testimony was relevant to corroborate Arias’s theory of the case: that she had killed Alexander after she dropped his camera on the tile bathroom floor and he aggressively charged at her.

The “enhanced” eye reflection
The resulting image of Arias holding a camera.  Looks like the Stay Puft Marshmallow from Ghostbusters to me.

The prosecutor balked at the admission of this evidence.  According to him, the enhancement evidence was “voodoo” and “fantastical.”  It is quite clear that, given a strict application of Rule 702, this evidence should not be admitted.  Without the expert’s drawing, do you clearly see a figure holding a camera?  Can you eliminate as a matter of scientific certainty that the figure is not also holding a gun or a knife?

In the end, the expert’s testimony was not admitted.  After an hours-long, closed door hearing, the parties agreed to stipulate that Arias was not holding a gun or a knife when the picture was taken.  Evidentiary crisis averted.

Yes, this is where the CSI Effect has left the state of evidence in America’s courtrooms.  Based upon Hollywood plot-driven fiction, the American public, and thus the jury pool, has been convinced that any crime can be solved by a computer nerd and his trusty MacBook.  It seems that the imagination, and not Rule 702, is the only limit upon what is admitted into courts.  Experts are now “enhancing” the photographed reflection in people’s eyes.

Even if the evidence had been admitted at the Arias trial, the impact would be minimal.   Arias admits to killing Alexander, and most of the evidence presented by defense counsel is aimed at mitigating the crime so that Arias escapes the electric chair.  But, just because it would not cause a serious miscarriage of justice in this particular trial does not mean that it is a good omen. Unfortunately, the Arias trial may only be a harbinger of things to come.  Whereas the evidence in Arias’s case was introduced to corroborate her self defense claim, there is a very dangerous flip-side to the CSI Effect: prosecutors armed with false or dubious “forensic” evidence using it to obtain slam dunk convictions.  It is a story as old as time, or, at least, the CSI franchise.  It is only a matter of time before prosecutors start hiring the Arias photo enhancement “expert” as well as other with even more dubious scientific chops.  For example, it is an eventuality that prosecutors will seek to admit this expert to testify in child pornography cases, in order to identify the person who produced the contraband.  The slippery slope of this type of evidence is scary, and the end result is not a good one.  It will almost certainly result in innocent people serving jail time, as all non-scientific forensic testimony eventually does.

Mississippi dentist enhances video for body language with inaccuracy "less than ... Jesus"

Take, for example, the case of Leigh Stubbs and Tammi Vance in Lincoln County, Mississippi.  After successfully completing a drug rehabilitation program, Stubbs and Vance decided to travel to Louisiana with their friend, Kim Williams.  With Stubbs staying sober at the wheel, the women made pit stops at Williams’s boyfriend’s house for Oxycontin and various gas stations for beer.  Unsurprisingly, the women did not make it to Louisiana  according to schedule and  got waylayed in Lincoln County, Mississippi.   They decided to stay the night at the local Comfort Inn.   The next day, Williams was completely unresponsive as a result of a drug overdose.  Stubbs and Vance called the hotel front desk and performed CPR on Williams until paramedics arrived.  When she arrived at the hospital, Williams was comatose and was suffering from various, odd injuries.

The district attorney decided to indict the women on four counts: (a ) conspiracy to possess morphine; (b) grand larceny; (c) unlawful possession of morphine; and (d) aggravated assault.  The only problem?  He had no evidence supporting the charges; the alleged victim could not remember a thing.   Undeterred, the district attorney called Michael West, a Mississippi dentist who moonlit as a forensic witness for the prosecution.   Really, there were no limits to the types of forensic testimony that Michael West was willing to supply to Mississippi prosecutors; he was the Wal-Mart of witnesses: he would testify a little bit about everything, but the quality of the testimony was not particularly good.  He routinely testified as a wound pattern expert, a trace metals expert, a gun shot residue expert, a gunshot reconstruction expert (he once performed a ballistics analysis by shooting dogs from the pound), a crime scene investigator, a blood spatter expert, a "tool mark" expert, a fingernail scratch expert, and an expert in "liquid splash patterns."  Most famously, he testified as a bite-mark expert, where he would match bite-marks on skin to plaster dentitions.  As for his error rate when engaging in this “forensic science?”  He testified that it was “something less than my Lord Jesus Christ.”  How about that for meeting your burden under Rule 702?

The testimony West presented at Stubbs’s and Vance’s criminal trial was nothing short of unbelievable.  Of course, being Michael West, he claimed to have found a bitemark on the alleged victim’s hip.  To the surprise of absolutely no one, he was able to “match” it to one of the defendants.  But, he did not stop at bitemark testimony.  He also claimed to “enhance” a surveillance video of the hotel’s parking lot, using his home computer and Photoshop.  He testified that his abilities to “enhance” the video allowed him to view Stubbs and Vance as they engaged in inculpatory acts, namely, lifting the Williams’s body from the in-bed toolbox of Stubbs’s truck and carrying it into the hotel room where she was discovered comatose and injured the following day.  West then testified that using his enhancement software, he was able to determine that the figures entering and leaving the frame in the video were wearing different clothing (one wearing shorts, the other wearing blue jeans) and were two different women, thus incriminating both Stubbs and Vance.

West further claimed he could actually read the body language of one figure in the footage, that she appeared "anxious," and was exhibiting the sort of adrenaline-fueled "fight or flight" response one shows after committing a crime.

According to West, anyone with spare time and a home computer was qualified to be an expert witness in photo and video enhancement. “[Before,] I would have to send photographs off to the FBI . . . [and it would] cost us $20,000 to get them back and enhanced. Now you can sit at home, with your own computer, with $1000 software and do enhancements that used to only NASA could do . . . And that’s what we did in this case.”

Based entirely upon West’s testimony, Stubbs and Vance were convicted on all four counts and sentenced to forty-four years in the State penitentiary, the statutory maximum.

If you are thinking to yourself that West’s testimony smells fishier than a Long John Silver’s during Lent, that is because it is.  Almost a decade after Stubbs’s and Vance’s convictions, Stubbs’s father filed a Freedom of Information Act request with the FBI, inquiring as to whether the Agency processed any of the evidence in his daughter’s case. The FBI returned a report it prepared after analyzing the surveillance footage, a report that was prepared before Michael West was hired to “enhance” the surveillance video. The Agency's report found nothing incriminating in the footage. It repeatedly points out that the quality of the recording is insufficient to tell for certain how many people are depicted in the video, much less determine their identities or what sort of clothing they're wearing. The report also makes no mention of anyone moving a "body."

The District Attorney did not turn over the FBI report to the defense pursuant to his constitutional obligations under Brady.   After over ten years of incarceration, Stubbs’s and Vance’s convictions were overturned by the trial court of Lincoln County.  The Circuit Court of Lincoln County has scolded the State for knowingly soliciting and introducing false evidence.  When confronted with the fact that the FBI crime lab contradicted his video enhancement testimony, West attributed it to the fact that the FBI could not afford computers or Photoshop in order to reach his results. In a shameless move to save face, the Mississippi Attorney General’s Office has indicated that it intends to reprosecute the women based upon the original indictment, an indictment that was procured by presenting Dr. West’s bite mark and video enhancement testimony to the grand jury.

In the end, there are people like Michael West, who think that their 1999 Compaq Presario and copy of Photoshop makes them qualified experts, carving out a niche forensic analysis practices all over the country.  Many trial judges are caught unawares about the limitations of video and photo enhancement.  This evidence, which essentially amounts to forensic fraud, is admitted much more often than it is rejected.  It seems, in the end, our societal fascination with CSI and like franchises has come at an extreme cost.  We have compromised the integrity of our courts and sent innocent people to prison.  And, it made last Monday a really boring day for housewives to attend the Arias trial.

[Editor's Note: The author is currently serving as a consultant for the Mississippi Innocence Project which is representing Leigh Stubbs.]


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