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FBI's 'Clothing Match' Expert Changed Testimony To Better Serve Prosecutors, Co-Chairs Nat'l Forensic Committee

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A little more than a month ago, we covered the ultra-weird offshoot of FBI forensics spearheaded by Richard Vorder Bruegge. Vorder Bruegge claimed mass-produced clothing like jeans were as unique as fingerprints and DNA. According to his forensic "expertise," a match could be made using only low-res CCTV screengrabs and whole lot of arrows.

This peculiar strand of FBI forensics is still in use. Vorder Bruegge, rather than being laughed out of the FBI forensic lab, has risen to a position where he can pass on his dubious expertise to others. ProPublica continues to dig into the FBI's questionable forensic programs and has found that Vorder Bruegge is now sitting near the top of the nation's forensic organizational chart.
Today, Vorder Bruegge is one of the nation’s most influential crime lab scientists. He serves on the Forensic Science Standards Board, which sets rules for every field, from DNA to fingerprints. He’s a co-chair organizing the American Academy of Forensic Sciences meeting this week in Baltimore, a gathering of thousands of crime lab professionals, researchers, lawyers and judges.
This has happened due to Vorder Bruegge's testimonial quantity, not quality. ProPublica quotes a 2013 law review article that refers to him as the "most ubiquitous" expert witness. A quality job it isn't. But given enough opportunities, Vorder Bruegge has managed to turn unproven claims about the uniqueness of clothing into years in prison for people he's testified against. His track record shows he's willing to change his expert opinion if it better serves the prosecution.
In his report, Vorder Bruegge wrote that John Henry Stroman and the robber had similar “overall shape of the face, nose, mouth, chin, and ears.” But Vorder Bruegge stopped short of declaring a match, saying the video and pictures were too low resolution for that.Nevertheless, prosecutors said in court filings that if Vorder Bruegge took the stand, he would testify that “the photograph is of sufficient resolution to definitively state that the robber is John Henry Stroman.”[...]It wasn’t the first time, nor the last, Vorder Bruegge’s lab results said one thing and the courts were told something different. Court records and FBI Lab files show statements by prosecutors or Vorder Bruegge veered from his original conclusions in at least three cases.
This is what happens when you care about convictions but not all that much about science. Vorder Bruegge's background as a geologist certainly didn't prepare him for a future of staring at grainy photos of shirts worn by suspects. But none of that mattered to the FBI which found him to be a useful champion of pseudoscience who could be used to lock people up.The entire report is a fascinating, if disheartening, read. Jurors and judges are easily swayed by FBI experts, even after cross examination exposes mathematically-impossible levels of certainty or, in at least one case, Vorder Brugge's admission he worked backward from the conclusion prosecutors wanted him to reach.Work like Vorder Bruegge's is exactly why a prominent federal judge resigned from a forensic committee in 2015. Judge Jed Rakoff recognized the DOJ did not want to fix its forensic problems. It only wanted to give the appearance it cared for as long as it took to sweep the embarrassment under the rug. The DOJ has too much invested in half-baked science and self-made experts to actually clean house and add more actual science to its forensic methods.

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posted at: 12:00am on 23-Mar-2019
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Sites Warn EU Users Of Just How Bad Article 13 Will Be

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As we mentioned, a bunch of websites started protesting yesterday in the lead up to next week's vote on Article 11 and Article 13 that will fundamentally change the nature of the internet. The main ones were various European Wikipedia editions, which completely blacked out and posted a warning message. Here's the one in Germany (with automatic browser translation -- the original, obviously, is in German):

Different sites are doing different things -- and for some it depends on whether you're visiting from the EU or not, but it's good to see so many sites coming together on this. Reddit, as explained in a blog post on its site, are telling any EU Redditor who tries to post something new that it's blocked:
Lots of others have stepped up as well. The ever popular online streaming site Twitch is warning people in a variety of ways, including creating a video about its concerns:
And has also put the message all over its social media:
Patreon, the very popular website for helping creators get paid has warned its creators that under Article 13, it may need to block their content:
Others who have spoken up include Creative Commons and the Internet Archive:
Another site that joined in -- which we'll refrain from screenshotting -- is the most popular porn site on the internet, Pornhub.Between all of this, the question now remains: will the EU Parliament ignore all of these voices? Ignore all of the over 5 million people who signed a Petition against Article 13? Will it ignore all the companies who have said that Article 13 will put them at a disadvantage compared to Google? Will it ignore of the content creators who rely on platforms like Twitch and Patreon?

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posted at: 12:00am on 23-Mar-2019
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Fifth Circuit Affirms Springboards To Education's Loss Against Houston School In Trademark Case Appeal

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Way back in 2016, we discussed one company's quest to sue a bunch of librararies and schools for infringing on its program to promote reading to young schoolchildren. If that seems positively evil, then, yes, you indeed have a soul, so congratulations. If you're wondering how such a thing could have legal standing, it all centers around Springboards to Education having created the reading program with rewards that included children entering the "Millionaire Reading Club" for getting through a certain amount of books, the handing out of fake reward money, and other prizes. A bunch of libraries and schools independently setup their own reading clubs with similarly named rewards, thus leading to Springboards filing suit.One of those school districts in Houston defended itself by pointing out that it was not engaged in commerce, meaning that its use was plainly Fair Use. The school won its case.

Springboards sued HISD for trademark infringement, counterfeiting, false designation of origin and dilution. After HISD and Springboards filed cross-motions for summary judgment, the district court granted HISD’s motion on the ground that Springboards could not show that HISD had used the mark in commerce. Springboards appealed.
Amazingly, Springboards appealed that decision, sending the case to the Fifth Circuit. Not surprisingly, the Fifth Circuit affirmed the ruling, pointing out that not only did it not have any opinion that would overrule the lower court's contention that the school district was not engaged in commerce, but also adding that there was no likelihood of confusion in the use, thus rendering this not trademark infringement.
Springboards to Education, Inc., sued Houston Independent School District under the Lanham Act for using its marks in the course of operating a summer-reading program. The district court disposed of Springboards’ claims on summary judgment because it concluded that a reasonable jury could not find that the allegedly infringing use of Springboards’ marks was commercial in nature. We AFFIRM, albeit on alternative grounds: as explained herein, a reasonable jury could not find that the allegedly infringing use of the marks created a likelihood of confusion.
The court goes on through a long, detailed explanation to Springboards as to what confusion actually is and who's confusion is actually relevant to a discussion over trademark infringement. Springboards had attempted, for instance, to suggest that parents and children themselves might be confused, thinking they were part of a Springboards program rather than one created by the school. The court points out that, even if that weren't the case, the children and their parents aren't a purchaser in any of this.
Springboards suggests HISD’s students and their parents might have been confused into thinking that HISD was using Springboards’ program instead of its own. Regardless of whether that might have been the case, HISD’s students and their parents are not the appropriate focus of the likelihood-of-confusion analysis. Although the ultimate recipients of HISD’s services and products, the students and their parents were not purchasers in any ordinary sense.3 They are better characterized as the “users” of the allegedly infringing products and services.
And, since HISD wasn't attempting to compete with Springboards' program elsewhere, no relevant confusion could be found.One would hope this would be the end of this stupid saga and everyone could just get back to encouraging children to read books in their own specific ways. Whether Springboards will finally take the hint is the worst kind of cliffhanger.

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posted at: 12:00am on 22-Mar-2019
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Appeals Court Overturns 47-Year-Old Murder Conviction Predicated On Faulty FBI Hair Analysis Evidence

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For years, FBI forensic experts have been overstating their certainty about… well, everything. Every piece of forensic evidence -- the stuff eventually proven to be junk science bolstered by junk stats -- was given the official "Thumbs Up of Absolute Certainty" during testimony.Eventually (very eventually), it was exposed for the courtroom snake oil it actually was. The FBI, duly chastened, promised to keep doing the same damn thing in perpetuity no matter what actual scientists using actual scientific methods had to say.For decades, this was standard operating procedure. A study by The Innocence Project found FBI forensic experts had been overstating their findings in court, resulting in a large number of potentially bogus convictions. The DOJ also admitted this error, but chose only to inform prosecutors of its findings, leaving it up to them to erase their own wins from the board.One of these dubious "hair match" cases has finally made its way to the appellate level. John Ausby, convicted of rape and murder in 1972, is challenging his conviction based on the prosecution's reliance on FBI experts' overstatements. Thanks to the DOJ's admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact.Unfortunately, the lower court claimed the hair match testimony wasn't instrumental to the guilty verdict. It maintained the verdict would have been reached without the FBI forensic expert's assertions of certainty and the prosecution's reliance on this key -- but ultimately bogus -- piece of evidence.The DC Circuit Appeals Court disagrees [PDF]. As it points out, the situation isn't as simple as the lower court makes it appear. There was additional evidence used to convict Ausby, but the record shows the prosecution relied on the expert's statement that the hairs from the murder scene were an "exact match" -- something it reiterated during closing arguments.Given the combination of evidence used to convict Ausby, the court finds this overstatement of certainty was instrumental in his conviction.

Agent Neill’s testimony was neither the sole piece of evidence on which the prosecution hung its case nor redundant or irrelevant. We ultimately conclude, however, that Agent Neill’s testimony falls on the material side of the spectrum. Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.
As the court notes, other evidence somewhat supported Ausby's alibi, but it was seemingly shut down by the prosecution's insistence that the hair recovered from the scene could only have come from Ausby.
That Agent Neill’s testimony played a key role in debunking Ausby’s defense is borne out by the prosecution’s emphasis in its closing rebuttal that Agent Neill’s microscopic hair-comparison analysis “is not a positive means of identification but it amounts to a positive means here.” Thus, without Agent Neill’s hair-comparison testimony, there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory.
Forty-seven years later, Ausby's conviction is being vacated. If it hadn't take the DOJ forty years to realize it had a forensic evidence problem, this injustice could have been undone decades sooner.

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posted at: 12:00am on 22-Mar-2019
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