WEBVTT - Episode 5: The Sanchez Problem 0:00:15.276 --> 0:00:20.356 Pushkin. When I was a little kid, my father used 0:00:20.396 --> 0:00:24.156 to tell this story about when he was a young 0:00:24.276 --> 0:00:28.996 lawyer in New Orleans. It was one of those stories 0:00:28.996 --> 0:00:30.756 that sound a bit different to you as a grown 0:00:30.836 --> 0:00:34.396 up than as a child, but maybe all stories do anyway. 0:00:34.796 --> 0:00:38.676 In my father's telling, he just started at a law firm, 0:00:38.716 --> 0:00:41.876 and that firm had been hired by a big railroad company. 0:00:42.796 --> 0:00:46.276 The railroad was defending itself against one of its own employees. 0:00:47.236 --> 0:00:50.836 This poor worker had lost his arms in an accident 0:00:51.236 --> 0:00:55.236 for which the railroad was clearly responsible. My father's job 0:00:55.356 --> 0:00:57.956 was to minimize the amount of money that the railroad 0:00:58.036 --> 0:01:02.116 had to pay to the employee. My dad went hunting 0:01:02.196 --> 0:01:05.436 for a creative defense. I don't know where I got 0:01:05.516 --> 0:01:10.916 the idea, but the idea was that handicap people I 0:01:11.396 --> 0:01:16.636 can still work. That's my dad, Tom Lewis. His hunt 0:01:16.636 --> 0:01:20.076 for a creative defense led him to Nashville, Tennessee, where 0:01:20.076 --> 0:01:24.076 he found well, he actually found an expert who trained 0:01:24.116 --> 0:01:27.356 people with no arms to do lots of amazing things. 0:01:28.236 --> 0:01:30.916 This expert promised to show any jury that it wasn't 0:01:30.916 --> 0:01:32.956 a big deal at all to lose your arms. You 0:01:32.956 --> 0:01:36.436 could still do so much. My father was so impressed 0:01:36.436 --> 0:01:38.036 that he flew the guide in New Orleans and put 0:01:38.116 --> 0:01:42.076 him on a witness stand as an expert witness. And 0:01:42.116 --> 0:01:44.636 he said, oh, yes, he said, and then he started 0:01:44.676 --> 0:01:47.196 to give me exam that this is on the stand 0:01:47.316 --> 0:01:51.876 for example, says he. I deal with the man who 0:01:51.956 --> 0:01:55.596 had lost the use of his arms or hands, and 0:01:55.636 --> 0:02:02.356 we taught him to type with his toes. When I 0:02:02.436 --> 0:02:04.716 was a kid, my father used to really ham it up. 0:02:05.116 --> 0:02:07.236 He had rolled back in his chair and raised his 0:02:07.356 --> 0:02:11.156 feet high in the air. Because this expert was apparently 0:02:11.196 --> 0:02:15.556 truly enthusiastic about his expertise, my dad would lift his 0:02:15.596 --> 0:02:19.196 feet high over some imagine giant typewriter to show how 0:02:19.276 --> 0:02:22.956 ridiculously easy it was to type with your toes. The 0:02:23.036 --> 0:02:30.116 problem was it didn't really look easy, and it was 0:02:30.956 --> 0:02:36.716 apparent even to me in my naive state at that time, 0:02:37.196 --> 0:02:40.876 that that was not going over well with the jury 0:02:41.476 --> 0:02:49.756 and the railroad got cloverty. To my kid brain, this 0:02:49.796 --> 0:02:52.596 story had a couple of takeaways. Apart from the obvious 0:02:52.596 --> 0:02:54.916 one that my father wasn't cut out to help a 0:02:55.036 --> 0:02:57.716 railroad screw over a man who'd gotten hurt on the job, 0:02:58.756 --> 0:03:02.916 My biggest takeaway was how well our system of justice worked. 0:03:03.756 --> 0:03:06.756 The railroad was forced to fork over a huge pile 0:03:06.796 --> 0:03:09.956 of money, and the expert had helped the jury to 0:03:09.996 --> 0:03:14.036 see the truth, which is what experts are supposed to do. Right. 0:03:17.436 --> 0:03:21.116 I'm Michael Lewis, and this is against the rules My 0:03:21.196 --> 0:03:24.916 show about on fairness in American life. This season is 0:03:24.956 --> 0:03:28.756 all about experts, and today's show is all about a 0:03:28.876 --> 0:03:33.796 special kind of expert, maybe the most official kind, the 0:03:33.916 --> 0:03:52.196 expert witness. A decade ago, some law professors set out 0:03:52.236 --> 0:03:55.916 collecting data on all wrongful convictions in the United States, 0:03:56.796 --> 0:04:01.476 the National Registry of Exonerations they called their project. They 0:04:01.516 --> 0:04:04.356 only collected data going back to nineteen eighty nine, that 0:04:04.436 --> 0:04:07.636 was the first year that DNA analysis could offer definitive 0:04:07.636 --> 0:04:11.516 proof of a wrongful conviction. They've now counted more than 0:04:11.636 --> 0:04:15.796 three thousand wrongful convictions, three thousand people sent to prison 0:04:15.836 --> 0:04:19.796 when they should not have been, almost twenty seven thousand 0:04:19.876 --> 0:04:23.196 years spent behind bars, all by people who should never 0:04:23.236 --> 0:04:25.916 have been there in the first place. And that's obviously 0:04:25.956 --> 0:04:28.396 just the tiniest sliver of the problem. These were the 0:04:28.396 --> 0:04:31.036 people who were able to find people to help them. 0:04:31.196 --> 0:04:34.196 Even with this small sample, the law professors could see 0:04:34.196 --> 0:04:39.956 some patterns. The reasons why justice often miscarries in America, 0:04:40.276 --> 0:04:43.236 there were two big ones. The first reason isn't all 0:04:43.236 --> 0:04:49.876 that surprising the behavior of the police. They are intimidating 0:04:50.076 --> 0:04:58.076 and threatening suspects. They're intimidating and threatening witnesses. Simon Cole, 0:04:58.156 --> 0:05:01.316 a professor of criminology, Law and Society at ucu Arne, 0:05:01.756 --> 0:05:06.356 now runs the Exonerations Project. They're getting people to lie, 0:05:07.156 --> 0:05:11.916 they're hiding evidence, just a whole litany of kind of 0:05:11.916 --> 0:05:16.396 behaviors like that. The second reason for all the wrongful 0:05:16.396 --> 0:05:20.916 convictions was a bit less obvious, the expert witnesses who 0:05:20.956 --> 0:05:24.756 take the stand in trials and help the prosecution. In 0:05:24.836 --> 0:05:28.436 about a quarter of the wrongful convictions, the experts were 0:05:28.436 --> 0:05:34.836 at least partly responsible. The classic one is microscopic hair comparison, 0:05:35.596 --> 0:05:40.476 where it's kind of well understood now that you could 0:05:40.556 --> 0:05:43.516 say a person might be the source of a hair, 0:05:43.996 --> 0:05:49.196 but no one in the microscopic hair comparison discipline would 0:05:49.196 --> 0:05:53.116 ever say, now that a hair must come from one person, 0:05:53.716 --> 0:05:56.316 from you, Michael Lewis, and not from any other person. 0:05:57.396 --> 0:06:01.556 But at the trial they say something like the defendants 0:06:01.556 --> 0:06:07.036 the source of the hair. So they've greatly overstated the 0:06:07.116 --> 0:06:09.876 value of the evidence and what the evidence can do. 0:06:12.476 --> 0:06:15.116 People have been convicted and sentenced to life in prison 0:06:15.396 --> 0:06:19.156 or even death on the word of hair experts, bite 0:06:19.156 --> 0:06:23.716 mark experts, ballistic experts. Experts used to take the stand 0:06:23.756 --> 0:06:27.276 to claim with certainty that a fire was arson. Then 0:06:27.356 --> 0:06:31.156 actual science proved that the fire experts were almost always wrong. 0:06:32.116 --> 0:06:34.516 A bunch of people were convicted for setting fires that 0:06:34.556 --> 0:06:38.156 were not in fact set by anyone. It's not that 0:06:38.156 --> 0:06:41.356 the expert witnesses know nothing, is that they don't know 0:06:41.556 --> 0:06:45.276 nearly as much as they claim. The FBI pulled a 0:06:45.316 --> 0:06:49.116 bunch of its transcripts from its own experts and said, 0:06:49.116 --> 0:06:51.156 we're going to go through these transcripts and see if 0:06:51.196 --> 0:06:55.236 they testified erroneously. Again, it doesn't mean they made an 0:06:55.276 --> 0:06:57.316 error in the hair analysis. It doesn't mean the guy 0:06:57.396 --> 0:06:59.796 was innocent. It doesn't mean the hair wasn't from the guy. 0:06:59.876 --> 0:07:04.156 But did they overstate the testimony right? Yes, they did 0:07:04.356 --> 0:07:08.796 in ninety six percent of cases, right, every all the time. 0:07:09.476 --> 0:07:13.316 And this is the FBI. If they're experts are screwing 0:07:13.396 --> 0:07:15.756 up in this way, it's hard to imagine that most 0:07:15.796 --> 0:07:18.796 other experts aren't as well. It seems to be like 0:07:18.876 --> 0:07:22.476 across the board and these expertises that it's just a 0:07:22.516 --> 0:07:26.316 systematic overstatement of one's level of certainty. And I'll tell 0:07:26.316 --> 0:07:28.276 you why I think that is right. I think the 0:07:28.396 --> 0:07:31.436 lawyers try to make you do it. That's their job 0:07:32.076 --> 0:07:35.436 to get the expert to go as far as they 0:07:35.476 --> 0:07:37.916 can get them to go. I mean, they want the 0:07:37.956 --> 0:07:45.596 expert to say they're certain. Back in nineteen eighty eight, 0:07:45.716 --> 0:07:48.956 the state of California passed a new law. More than 0:07:48.996 --> 0:07:51.476 thirty other states would go on to copy it. The 0:07:51.556 --> 0:07:54.916 new law allowed prosecutors to demand extra prison time for 0:07:55.036 --> 0:07:58.076 anyone convicted of a crime committed on behalf of a gang. 0:07:58.716 --> 0:08:01.076 If you robbed a gas station, you might get seven 0:08:01.156 --> 0:08:03.236 years in jail, unless you did it for a gang, 0:08:03.676 --> 0:08:06.636 in which case you might get twenty years. These so 0:08:06.756 --> 0:08:10.676 called gang enhancements affect roughly twelve thousand inmates just in 0:08:10.756 --> 0:08:15.236 California right now. Ninety two percent of these people serving 0:08:15.236 --> 0:08:21.196 extra time or Black or Latino, an amazing statistic. So 0:08:21.276 --> 0:08:24.876 for the past thirty years, American juries have had to 0:08:24.916 --> 0:08:28.556 decide not just whether a defendant is guilty or not guilty, 0:08:29.356 --> 0:08:33.436 they also have to decide gang member or not gang member? 0:08:34.196 --> 0:08:37.276 Did he rob the gas station for the gang or 0:08:37.316 --> 0:08:40.196 just to pay for his drug habit when he committed 0:08:40.236 --> 0:08:42.996 his crime, what exactly was going on inside his head? 0:08:43.836 --> 0:08:45.956 To figure it all out, courts have relied on a 0:08:45.996 --> 0:08:51.036 new kind of expert, the gang expert. For thirty years. 0:08:51.316 --> 0:08:55.316 That expert has almost always been a police officer, almost 0:08:55.316 --> 0:09:00.236 always a male police officer, and this officer almost always 0:09:00.276 --> 0:09:04.636 testifies that he's sure that whatever crime was committed was 0:09:04.676 --> 0:09:08.396 for the benefit of a gang. I don't know, Maybe 0:09:08.396 --> 0:09:11.036 it's just me, but I'd have thought it's at least 0:09:11.116 --> 0:09:13.716 possible to find someone out there with a clearer sense 0:09:13.716 --> 0:09:16.756 of the motives of the kids who wind up in gangs, 0:09:16.796 --> 0:09:22.436 someone who's actually had the experience. Okay, so we're gonna 0:09:22.476 --> 0:09:24.196 we're gonna get out of the car. Lja's gonna take 0:09:24.236 --> 0:09:30.196 our phone. All right, we're going that way, right, we're 0:09:30.196 --> 0:09:33.596 headed towards the overpath. It's actually not all that hard 0:09:33.636 --> 0:09:37.196 to find someone like that, someone who's actually had the experience. 0:09:37.876 --> 0:09:40.436 My producers did it in less than a day. So 0:09:40.516 --> 0:09:44.076 whose territory are we in now? You're still in Shelltown. 0:09:45.116 --> 0:09:48.276 Adam or Terra is a former gang member of San Diego, Shelltown, 0:09:48.676 --> 0:09:52.676 the thirty eighth Street branch. There are two branches of Shelltown, 0:09:52.796 --> 0:09:55.796 So you have Shelltowen, which is the neighborhood, ye, and 0:09:55.836 --> 0:09:58.076 then you have the two branches this thirty eighth Street 0:09:58.156 --> 0:10:01.556 and Gamma Street. So you're gonna see the Gang refeed, 0:10:01.596 --> 0:10:03.636 you're gonna see a lot of the Three eights, and 0:10:03.676 --> 0:10:06.836 then you're gonna see the GBS, which is Gamma Boys, 0:10:07.436 --> 0:10:09.996 and then Gamma Streets you see on the floor where 0:10:09.996 --> 0:10:13.356 you're walking. Yeah. Yeah, Adam lives in La now, but 0:10:13.396 --> 0:10:16.196 he's giving me a tour of his old neighborhood over FaceTime. 0:10:17.036 --> 0:10:19.516 I'm walking through a part of San Diego that some 0:10:19.676 --> 0:10:22.436 urban planner had once clearly hoped would be a park, 0:10:23.156 --> 0:10:25.476 but instead it's become a place people avoid at night. 0:10:26.156 --> 0:10:29.356 It's nestled beside a freeway overpass, and so there are 0:10:29.436 --> 0:10:33.036 lots of concrete surfaces and just about every inch of 0:10:33.076 --> 0:10:36.036 them is covered in graffiti. To me, it's just an 0:10:36.036 --> 0:10:40.476 incoherent mass of shapes and letters. To Adam, it's a language. 0:10:40.716 --> 0:10:46.116 You see the GBS right there, Uh gbs, Yeah, right there, 0:10:46.676 --> 0:10:50.676 it's GBS. Gamma Boys. That's the Gamma Boys all right, Yes, 0:10:51.556 --> 0:10:54.036 So if you keep walking and I'm probably are you 0:10:54.116 --> 0:10:57.236 going to see Youngster's name right there? Because I'm pretty 0:10:57.236 --> 0:11:00.236 sure I saw it when I was there. Oh yeah, 0:11:00.276 --> 0:11:04.676 there was that youngster. Youngster, that's the name of someone 0:11:04.716 --> 0:11:06.716 with a talent for spray painting, who Adam has taken 0:11:06.716 --> 0:11:10.636 an interest in. Why, I'll explain in a minute. For now, 0:11:10.676 --> 0:11:12.796 I just want you to listen to a guy who 0:11:12.796 --> 0:11:16.236 knows a lot teaching me a guy who knows nothing. 0:11:16.556 --> 0:11:19.356 And what's the ax over the end? Did someone try 0:11:19.356 --> 0:11:22.116 to ax it out? They put an X over the 0:11:22.316 --> 0:11:26.756 end because one of the rivals of Shoutown is National City. 0:11:27.036 --> 0:11:29.516 At an end, they put an X on it as 0:11:29.556 --> 0:11:32.636 a form of disrespect. God, there's so much meaning in 0:11:32.636 --> 0:11:34.676 this thing. And why is there an X on the 0:11:34.716 --> 0:11:38.396 bottom of the y that part? I don't know. I 0:11:38.436 --> 0:11:41.316 was walking down under the freeway into what amounted to 0:11:41.356 --> 0:11:44.836 the museum's main gallery. Adam was taking a trip down 0:11:44.836 --> 0:11:47.636 memory lane to a time when it was his name 0:11:47.716 --> 0:11:52.676 on these paintings, Perico. He signed himself little Parrot because 0:11:52.716 --> 0:11:56.916 his older brother was the big Parrot. So I started 0:11:56.916 --> 0:11:59.476 off with writing gang graffiti on the walls. Get it 0:11:59.476 --> 0:12:03.116 into some fizz fights. Up until about the age of fourteen, 0:12:03.756 --> 0:12:06.716 Adam would have defined the word gang. It's just the 0:12:06.716 --> 0:12:09.516 people he hung out with. He'd adored his ad but 0:12:09.556 --> 0:12:12.956 his dad had vanished when he was five. Shelltown was 0:12:12.996 --> 0:12:16.836 shockingly dangerous To keep safe, Adam stuck close to his 0:12:16.876 --> 0:12:19.876 older brother and his friends. Without them, he was likely 0:12:19.916 --> 0:12:24.796 to be robbed or beaten or worse. I was shot 0:12:24.836 --> 0:12:27.956 at a few times, and then when I got shot at, 0:12:28.036 --> 0:12:31.196 I realized this is very serious and I need a 0:12:31.276 --> 0:12:35.156 weapon that is more in line with what's going on 0:12:35.236 --> 0:12:38.076 in my life. And because of the violence became so intense, 0:12:38.196 --> 0:12:42.196 I started carrying a weapon, which was a pistol a gun. 0:12:43.476 --> 0:12:46.876 But his main activity for years was this graffiti. That 0:12:46.996 --> 0:12:48.996 was how you showed your devotion to the gang when 0:12:48.996 --> 0:12:51.636 you were a little kid, by painting the gang symbols 0:12:51.716 --> 0:12:54.676 all over the place. On days he was feeling reckless, 0:12:54.716 --> 0:12:57.316 Adam would sneak into the territory of rival gangs and 0:12:57.396 --> 0:13:00.956 paint on their walls. So tell me which you did 0:13:01.036 --> 0:13:03.836 that got you in trouble with the law. Okay, initially 0:13:03.836 --> 0:13:08.276 I got arrested for possession of marijuana at fourteen, vandalism, 0:13:08.276 --> 0:13:13.196 writing on the wall, gang graffiti, assault with the firearm 0:13:13.556 --> 0:13:17.916 on three people, and ultimately I committed a gang related 0:13:17.956 --> 0:13:21.276 murder when I was seventeen years old. Was it against 0:13:21.316 --> 0:13:24.436 the rival gang member? Yes, it was against the rival 0:13:24.516 --> 0:13:28.116 gang member. So some gang members included my older brother. 0:13:28.356 --> 0:13:32.636 We're in front of my house one evening, drinking, talking, 0:13:33.076 --> 0:13:38.636 shooting dice, typical hanging out, and a rival gang came 0:13:38.636 --> 0:13:42.396 and shot at them and hit a few people. My 0:13:42.516 --> 0:13:46.516 grandmother was home, my brother's wife, his child, his newborn 0:13:46.596 --> 0:13:52.196 daughter was home. So me and my rage I went 0:13:52.316 --> 0:13:55.836 looking for those rival gang members and I found one 0:13:55.836 --> 0:13:58.956 of them, and I am responsible for taking his life. 0:14:00.836 --> 0:14:03.476 Adam pled guilty to murder back in nineteen ninety one. 0:14:04.516 --> 0:14:07.036 His sentencing was complicated because he was still a miner. 0:14:08.316 --> 0:14:10.516 He remembers the system trying to figure out if there 0:14:10.556 --> 0:14:13.916 was any hope for him, and one of the psychological evaluations, 0:14:14.636 --> 0:14:17.036 the psychologist asked me, if you could do anything, if 0:14:17.036 --> 0:14:19.636 you could have any impact on the world, what would 0:14:19.676 --> 0:14:23.236 it be. And I remember telling them I would help 0:14:23.396 --> 0:14:25.756 address the ozone later because at the time that was 0:14:25.756 --> 0:14:29.796 a big problem in nineteen ninety one, and it really 0:14:29.836 --> 0:14:33.636 really threw him off because he was expecting something completely different, 0:14:33.676 --> 0:14:36.396 and he told me, like, you know what, we're really different. 0:14:36.436 --> 0:14:38.636 You are the average gang member, but at the same 0:14:38.676 --> 0:14:42.636 time you're not. Adam is still only seventeen years old. 0:14:43.636 --> 0:14:45.756 His lawyers argued that he should be released at the 0:14:45.796 --> 0:14:48.796 age of twenty five and given another chance, but he 0:14:48.876 --> 0:14:50.396 was tried as an adult and the fact that he 0:14:50.436 --> 0:14:52.476 had been in the gang probably didn't help his case. 0:14:53.356 --> 0:14:57.356 He wound up being sentenced to life in prison. Behind bars, 0:14:57.396 --> 0:15:00.076 he remained affiliated with his old gang, but more and 0:15:00.156 --> 0:15:03.196 more as an anthropologist of gang life than as a member. 0:15:03.676 --> 0:15:06.916 He learned everything he could about gang culture, gang sociology, 0:15:07.076 --> 0:15:11.396 gang law. He was a model p and in twenty thirteen, 0:15:11.876 --> 0:15:16.476 after twenty two years, Adam was released. He knew exactly 0:15:16.476 --> 0:15:18.396 what he wanted to do with the rest of his life. 0:15:18.916 --> 0:15:21.516 He wanted to work with kids in gangs to help 0:15:21.556 --> 0:15:24.676 them avoid what had happened to him. He founded a 0:15:24.756 --> 0:15:29.156 nonprofit called the Juvenile Justice Advocates of California to work 0:15:29.196 --> 0:15:32.196 with kids who are already in trouble. He became known 0:15:32.236 --> 0:15:34.236 to social workers, and they'd asked him to speak to 0:15:34.316 --> 0:15:40.556 various groups about his experience. After one of these speeches, 0:15:40.596 --> 0:15:42.676 a member of the audience came up to him. She 0:15:42.796 --> 0:15:46.276 said she was a public defender. She wanted to tell 0:15:46.356 --> 0:15:49.556 him about a case she'd just been given. A twenty 0:15:49.596 --> 0:15:53.916 three year old San Diego man had been arrested for vandalism. 0:15:54.036 --> 0:15:56.676 By sheer coincidence, he was in the same gang that 0:15:56.716 --> 0:16:01.556 Adam had been in. Graffiti was usually a misdemeanor, but 0:16:01.596 --> 0:16:04.516 this guy had allegedly painted so many walls and buildings 0:16:05.116 --> 0:16:08.116 that he was being charged with a felony, and that 0:16:08.116 --> 0:16:12.156 meant the possibility the gang enhancement to his sentence. The 0:16:12.236 --> 0:16:17.636 guy's given name was Alejandro Loza, his street name was Youngster. 0:16:18.956 --> 0:16:20.756 They had pictures of him, and she was like, did 0:16:20.796 --> 0:16:23.516 one person do all this gang graffiti? And why would 0:16:23.556 --> 0:16:26.276 you know anything about that? Like that sound like something 0:16:26.316 --> 0:16:30.076 that like I don't know, an art connoisseur would determine, 0:16:30.156 --> 0:16:32.196 like this hand is different from this hand. How would 0:16:32.236 --> 0:16:34.916 you How would you know any more than anyone else? 0:16:34.956 --> 0:16:37.996 How much of the graffiti he did? Me personally, I 0:16:37.996 --> 0:16:42.036 would know because I was I did gang graffiti, so 0:16:42.556 --> 0:16:50.156 I recognize different lettering styles, different artists. Youngster's defense attorney 0:16:50.196 --> 0:16:53.276 wanted Adam to testify at trial as an expert at witness. 0:16:54.196 --> 0:16:56.036 She could see that Adam knew as much about San 0:16:56.076 --> 0:16:59.836 Diego's gang graffiti as a person could know. But Adam 0:16:59.876 --> 0:17:03.636 hadn't the fakest idea of himself as an official expert. 0:17:04.556 --> 0:17:07.196 How to sound like an expert, how to persuade others 0:17:07.236 --> 0:17:10.156 that he's an expert. It's prised him that he'd be 0:17:10.156 --> 0:17:14.836 invited into a courtroom except as a defendant. Like, what 0:17:14.956 --> 0:17:17.356 even were the rules about who got to take the stand? 0:17:20.716 --> 0:17:23.956 Adam would learn all that, and we will too after 0:17:24.036 --> 0:17:37.716 a break. There are kind of two distinct phases in 0:17:37.996 --> 0:17:43.516 kind of modern American legal history. Emily Shulman is an 0:17:43.516 --> 0:17:47.676 expert on expert witnesses. She also lectures at Harvard Law School. 0:17:48.076 --> 0:17:50.556 She's here for a very brief lesson on what qualifies 0:17:50.596 --> 0:17:56.956 as expertise in the court. For a surprisingly long time, 0:17:57.956 --> 0:18:02.396 there was one case, that Supreme Court case that governed 0:18:02.796 --> 0:18:08.436 evidence law, and that was called the Fry case. And 0:18:08.476 --> 0:18:12.156 so it was experts had to satisfy the Fried test. 0:18:12.836 --> 0:18:15.276 What was the Fried test? You know, boiled down to 0:18:15.316 --> 0:18:19.796 its essence, it really just said that expert witnesses could 0:18:19.836 --> 0:18:24.036 testify if what they were testifying to sort of their 0:18:24.156 --> 0:18:30.316 expertise was generally accepted in the scientific community. So it's 0:18:30.396 --> 0:18:33.436 related to science right from the beginning. That was it, 0:18:33.996 --> 0:18:37.556 That was the yardstick. So I can't be an expert 0:18:37.596 --> 0:18:44.556 on horoscopes. Not on horoscopes, No, not on horoscopes, but 0:18:44.636 --> 0:18:47.556 you could claim a scientific basis for all sorts of 0:18:47.596 --> 0:18:51.796 other stuff bite marks Arson. All you needed was a 0:18:51.836 --> 0:18:54.596 cluster of people in your field to agree that what 0:18:54.596 --> 0:19:00.036 you were doing with science. Handwriting analysis, for example, little 0:19:00.156 --> 0:19:07.636 cottage industries develop and you know, one handwriting experts as yeah, 0:19:07.676 --> 0:19:10.916 there is such a thing as handwriting expertise, and the 0:19:10.916 --> 0:19:14.236 others says, yeah, I agree with you, and you know, 0:19:14.636 --> 0:19:17.276 the next thing, you know, you have a little handwriting 0:19:17.276 --> 0:19:21.436 expert kind of community that is doing pretty well for itself. 0:19:21.516 --> 0:19:26.796 And there you have it. Under the cover of science. 0:19:26.836 --> 0:19:30.116 A lot of dubious experts got paid to serve as witnesses, 0:19:30.596 --> 0:19:34.836 and in criminal cases, these experts overwhelmingly serve the prosecution. 0:19:35.956 --> 0:19:38.596 That changed in nineteen ninety three when a mess of 0:19:38.596 --> 0:19:41.516 a case based on pseudoscience got appealed all the way 0:19:41.516 --> 0:19:44.956 to the Supreme Court. Ultimately, the Supreme Court said, yeah, 0:19:45.196 --> 0:19:48.876 we're no longer going to just kind of roll over 0:19:49.076 --> 0:19:52.516 in the face of scientific consensus, like, we have our 0:19:52.556 --> 0:19:57.436 own standards to uphold. And the kind of new view 0:19:57.636 --> 0:20:03.076 was that experts could testify if their testimony was going 0:20:03.076 --> 0:20:09.316 to be helpful to a jury and they were offering 0:20:09.796 --> 0:20:14.236 scientific or technical or some other kind of specialized knowledge 0:20:14.956 --> 0:20:18.996 to the jury. So now the trial judge decides who 0:20:19.036 --> 0:20:21.996 can be an expert. This, of course, just substitutes one 0:20:22.076 --> 0:20:26.796 problem for another. It's still a highly subjective process, but 0:20:26.876 --> 0:20:30.156 a telling process because the courtroom is the one place 0:20:30.156 --> 0:20:33.876 in American life that tries to be super precise about experts. 0:20:34.796 --> 0:20:37.556 An expert who lies on the stand can, in theory, 0:20:37.636 --> 0:20:40.876 go to jail. And yet even now the justice system 0:20:41.076 --> 0:20:47.956 has trouble figuring out some very basic things about experts. Okay, everyone, 0:20:48.316 --> 0:20:54.076 welcome to the first substantive part of the independent Fence 0:20:54.116 --> 0:20:58.836 at Gain Expert College at Loyal Law School. Sean Kennedy 0:20:58.916 --> 0:21:02.156 is a former public defender now an associate professor of 0:21:02.236 --> 0:21:05.996 law at Loyola Law School in Los Angeles. This is 0:21:06.076 --> 0:21:10.276 going to be expert witness, one on one, and I'm 0:21:10.276 --> 0:21:13.636 going to tell you how and why I believe every 0:21:13.636 --> 0:21:17.436 single one of you is ready right now to day 0:21:17.956 --> 0:21:22.476 to qualify as a forensic gang expert in a state 0:21:22.516 --> 0:21:26.756 and federal courts. In California, Sean's in a zoom box, 0:21:27.676 --> 0:21:30.836 and in a dozen other zoom boxes, a dozen former 0:21:30.876 --> 0:21:35.556 gang members watch Sean talk. He starts by explaining the problem, 0:21:36.236 --> 0:21:39.756 which they all more than understand. The cops who serve 0:21:39.796 --> 0:21:42.916 as gang experts often don't know much and never know 0:21:42.996 --> 0:21:46.436 as much as they claim to know. Peak absurdity came 0:21:46.476 --> 0:21:49.676 back in two thousand and sixteen in a case involving 0:21:49.676 --> 0:21:53.636 a man named Sanchez and led to what got called 0:21:54.076 --> 0:21:59.796 the Sanchez problem. And the Sanchez problem is a police 0:21:59.836 --> 0:22:03.796 gang expert case where the cop went up there and 0:22:03.836 --> 0:22:07.876 testified everything in this trial is all about the defendant 0:22:07.876 --> 0:22:10.916 did everything because it was for the benefit of the 0:22:10.956 --> 0:22:15.316 street game. But the cop had no interaction with the case. 0:22:16.196 --> 0:22:22.116 He didn't know the defendant. He didn't do any investigation, 0:22:22.356 --> 0:22:25.676 didn't do any preparation for his testimony. He just got 0:22:25.756 --> 0:22:28.636 up there and repeated what was on the police report 0:22:28.676 --> 0:22:33.276 and said, I'm an expert. After Sanchez, the California Supreme 0:22:33.316 --> 0:22:35.436 Court ruled that anyone who wanted to be a gang 0:22:35.476 --> 0:22:39.716 expert had to know something about the case, about the defendant, 0:22:40.396 --> 0:22:44.156 or at least about gangs. Hence Seawan Kennedy's training class. 0:22:44.556 --> 0:22:49.236 So we need some new experts. You are those experts. 0:22:49.236 --> 0:22:51.996 Shawn's held a bunch of these classes. This one's online 0:22:51.996 --> 0:22:54.996 and the students are all women. Shan lays out the 0:22:55.036 --> 0:22:58.476 stakes and then leads them into the meat of the course, 0:22:59.036 --> 0:23:03.596 a role playing game. So let's try it. Do I 0:23:03.756 --> 0:23:10.356 have anyone of our experts, buddy experts, who wants to 0:23:11.556 --> 0:23:14.436 qualify the way it would be done in court. Just 0:23:14.436 --> 0:23:19.756 just raise your hand, qualify, submit your credentials as an expert. 0:23:20.636 --> 0:23:27.716 There aren't any hands. I'm seeing some smiles, Jessica, you're ready. 0:23:28.476 --> 0:23:31.196 Let's give it a shot. All right, So you're on 0:23:31.236 --> 0:23:36.396 the stand, you have been called, you have stated your name, 0:23:36.836 --> 0:23:40.236 and you've been sworn in, and so I'm going to 0:23:40.356 --> 0:23:44.116 qualify you as an expert. Okay, could you tell us 0:23:44.116 --> 0:23:49.316 about your education? My education was I received a GD 0:23:49.796 --> 0:23:54.316 and I'm currently a college student. And I was I 0:23:54.356 --> 0:24:00.036 grew up in a gang infested neighborhood. Do you have 0:24:00.076 --> 0:24:09.316 any personal experience with gang involvement? Yes, I do. UM 0:24:10.876 --> 0:24:16.596 joined a gang and at seventeen I was arrested. What gang? 0:24:18.556 --> 0:24:25.356 What gang? I'm sorry, Um, do we have to say this. 0:24:26.316 --> 0:24:33.156 I'm sorry, we're in court, that's the question. Sean's just 0:24:33.236 --> 0:24:35.916 being a lawyer. But their response is the opposite of 0:24:35.916 --> 0:24:37.996 the guy who taught people to type with their toes. 0:24:39.116 --> 0:24:42.836 They're not full of conviction or enthusiasm, and that makes sense. 0:24:43.476 --> 0:24:46.596 To testify is to violate the basic codes of the street. 0:24:47.716 --> 0:24:53.836 How did it feel, Jessica, I'm not comfortable with, you know, 0:24:54.036 --> 0:24:59.476 speaking to anybody who's in a position to to ask 0:24:59.516 --> 0:25:04.876 me a question like that's very uncomfortable. UM. I felt 0:25:05.516 --> 0:25:08.796 like I sensed you as as an attorney, and I 0:25:08.796 --> 0:25:12.276 don't I mean no disrespect to you shot, but from 0:25:12.316 --> 0:25:16.716 a white male in a suit, it just feels like 0:25:16.796 --> 0:25:25.636 it's coming led up or or somebody in authority figure. Yes, 0:25:26.236 --> 0:25:29.196 no disrespect taken. But when you were there, you were 0:25:29.236 --> 0:25:32.796 feeling the heat. And I'm your lawyer, I'm your friend, 0:25:33.996 --> 0:25:38.196 and I we're just talking about you know, your qualifications. 0:25:38.276 --> 0:25:40.836 We haven't even got into the substance of the matter, 0:25:41.396 --> 0:25:44.596 and you're feeling the heat. What's it going to feel 0:25:44.636 --> 0:25:46.996 like when the DA stands up and tries to make 0:25:47.036 --> 0:25:53.516 fun of you on cross examination? It's not rhetorical Sean's 0:25:53.556 --> 0:25:56.556 just getting a lot of blank stares here. I want 0:25:56.596 --> 0:25:59.196 you to understand this, Professor Kennedy. It's just that this 0:25:59.276 --> 0:26:02.396 is the first time that we're on this side. A 0:26:02.396 --> 0:26:05.156 lot of times, everything that a person has ever said 0:26:05.196 --> 0:26:09.396 in their life, especially being black or Latino, have allus 0:26:09.476 --> 0:26:12.956 been used as a weapon against us. So I don't 0:26:12.996 --> 0:26:14.876 want you when you hear Dominique or you can hear 0:26:14.956 --> 0:26:17.436 Jessica and they're kind of hesitant. It's not that they 0:26:17.436 --> 0:26:19.476 don't trust you, because they wouldn't even be in this 0:26:19.556 --> 0:26:21.996 process if they didn't trust us in the process. But 0:26:22.116 --> 0:26:25.316 it's just, you know, working through these things, working through 0:26:25.356 --> 0:26:32.716 these things, learning how to articulate these things. The Sanchez 0:26:32.836 --> 0:26:36.516 problem was about cops with no knowledge saying that they knew. 0:26:37.396 --> 0:26:40.716 This class is just the reverse people who actually know 0:26:40.796 --> 0:26:43.356 a lot and can't get it across because it's not 0:26:43.436 --> 0:26:46.396 just who knows, it's who's willing to say that they know. 0:26:47.436 --> 0:26:49.356 And it's not easy to say that you know when 0:26:49.356 --> 0:26:52.276 for your whole life you've been told not to say anything. 0:26:52.836 --> 0:26:55.916 Plus no one in power ever really thought you were 0:26:55.956 --> 0:26:59.956 worth asking. Can you please tell the court now what 0:26:59.996 --> 0:27:05.556