Not scientific? Them’s fightin’ words.

It’s not everyone who can make merry with the Columbia Science and Technology Law Review, but Professor William Thompson, a leading troublemaker with the radical idea that forensic science should be scientific, managed to pull its editorial leg.

The magazine published a bombshell by Adina Schwartz called “A Systemic Challenge to the Reliability and Admissibility of Firearm and Toolmark Identification,” exposing the cop-in-a-labcoat expert – who assures the jury that, based on his training and experience, the bullet fragment in Big Dog’s skull could only have come from Pegleg Pete’s gun – as no more objective than a judge in a Miss America contest. All that talk about lands and grooves assumes that the marks on a bullet are absolutely unique to that gun, that the gun makes the same marks every time it’s fired, and that the examiner has set standards for declaring a match. Three cherished beliefs that should fall off the edge of the Earth.

The bullet-comparison crowd, in the form of the Association of Firearms and Toolmarks Examiners, fired back with an indignant piece saying we are so scientific, and how dare Professor Schwartz not even mention the AFTE Theory of Identification? This theory, in a shell casing, is that two things match if the marks are of “sufficient agreement,” where “sufficient” is defined as “significant” and “significant” is defined as “sufficient.”

This moved Professor Thompson to launch his own scientific Theory of Identification called ASKUS. As in, you want to know if the bullets match? Ask Us. The following is the actual we-didn’t-make-this-up e-mail crossfire with the eminent zine:

Dear Columbia Science and Technology Law Review,

As President of the only professional organization that truly represents the intellectual spirit of professional toolmark examiners, I request, nay, demand that you publish the following reply to that idiotic piece by Professor Schwartz that so unfairly demeaned our esteemed profession.

I understand that you are planning to publish a reply letter by Ronald Nichols, who is associated with a rival professional organization. I think you will find my reply gets to the heart of the matter much more clearly, and certainly more succinctly, than that of Mr. Nichols. So if you publish his, certainly you should publish mine. Indeed, I believe my reply puts the entire matter in its proper light.
William C. Thompson,
President, Honored Diplomate and Distinquished, Elite and Exalted Member, ASKUS (Society for Professional Toolmark Examiners)
by William C. Thompson, HDDEEM, ASKUS

Everything Professor Schwartz said about us toolmark examiners is either misleading or wrong. Her most important failure is her ignorance of the scientific basis for toolmark examination, which is found solely in our controlling scientific standard, known as the ASKUS standard. (You want to know whether toolmarks have a common source? Ask Us!”). Moreover, she failed to cite the ASKUS SCIENTIFIC THEORY OF IDENTIFICATION, which I quote below at length for the edification of numbskull academics who “just don’t get it” when in comes to science:

[a] The theory of identification as it pertains to the comparison of tool marks enables opinions of common origin to be made when the surface contours of two tool marks are in “sufficient agreement”. By “sufficient” we mean good enough, which is to say we are satisfied and let me assure you we’re pretty darn picky. And though we cannot explain to you or anyone else what it takes to be sufficient, and we have never tested the reliability of judgments of sufficiency across examiners, and we can’t even show that a given examiner would make the same judgment from day to day, and certainly have never tested the validity of these judgments, there is no doubt that they are indeed sufficient, which is to say good enough for us.

[b] This “sufficient agreement” is related to the significant duplication of random tool marks as evidenced by the correspondence of a pattern or combination of patterns of surface contours. Significance is determined by looking very closely at the fine details of all those little tiny markings with which, due to our knowledge training and experience, we are so intimately familiar that they can speak to us in a language that only we forensic scientists understand. Agreement is significant when it is sufficient (according to our usual exacting scientific standards of sufficiency–See Section [a] above) to exceed the best agreement demonstrated between tool marks known to have been produced by different tools (at least the best ones we can remember) and is consistent with the agreement demonstrated by tool marks that we think were produced by the same tool, and we’ve known a lot of tools believe you me. The statement that “sufficient agreement” exists between two tool marks means that the agreement is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility, or at least sufficiently practically impossible to meet our exacting scientific standards of sufficiency, as explained in section [a].

[c] Currently the interpretation of individualization/identification is subjective in nature and based on the examiner’s training and experience, which means we can claim identification whenever the hell we want and you can never challenge us because you are not a toolmark examiner. But it’s still scientific because, after all, we’re doing it and we’re scientists. Many of us even wear white lab coats. And courts have accepted what we say as scientific testimony, so it must be true. (ASKUS Criteria for Identification Committee. “Theory of Identification, We Know It When We See It.” ASKUS Journal, Vol. 24, No. 2, April 1992, 336-340).

While an uncritical reader might have found Schwartz’ position persuasive, an in-depth examination of her arguments shows the fundamental problem: her misunderstanding of epistemology. She has some very odd ideas about the source of scientific knowledge–ideas that revolve around concepts like validation, falsification, verification and testing that are utterly alien to the forensic sciences. Sophisticated readers, and particularly those with the depth to understand the epistemology of the forensic sciences, will see that she has missed the key philosophical principle: science is as science does. To put matters at a level lawyers can understand–if you want to know what is scientific, ask a scientist. This is the fundamental epistemological principle on which ASKUS was formed, and serves as the basis for our organizational motto: “Want to know whether toolmarks have a common origin: Ask us!”

From: []On Behalf Of Columbia Science and Technology Law Review
To: William C. Thompson
Subject: Re: Reply to Adina Schwartz Article

Mr. Thompson –
Columbia STLR appreciates your interest in publishing a response with our journal. However, our editorial board feels that STLR is the improper forum for your response. Additionally, we feel that the scholarly debate between Professor Schwartz and Mr. Nichols adequately explores the issues involved.

Again, thank you for your interest.

Laura Linn Noggle
Columbia Science and Technology Law Review
William C. Thompson wrote:

Dear Ms. Noggle,

Very well, I’ll try one of the other leading journals, such as Science, Nature, or the Journal of Irreproducible Results. If that doesn’t work, I’m certain my letter will be published by the Journal of Subjective Science, which is the official scientific journal of ASKUS, or by our official newsletter, Ipse Dixit.

Although I am disappointed by your decision, I am nevertheless pleased by the apparent seriousness with which your editorial board took my letter. If I may make a personal comment, allow me to say that the sober, no-nonsense tone of your response bodes well for your future success as a lawyer.

William Thompson
From: []On Behalf Of Laura Linn Noggle
Sent: Wednesday, September 14, 2005 5:30 PM
To: William C. Thompson
Subject: Re: Reply to Adina Schwartz Article

A left-handed compliment if I ever heard one! Thank you and best of luck with your article.
William C. Thompson wrote:

You do realize that my “article” was satirical, don’t you? I am worried that my position was so similar to Nichols’ that you and your editorial board couldn’t tell the difference.

From: []On Behalf Of Laura Linn Noggle
To: William C. Thompson
Subject: Re: Reply to Adina Schwartz Article

Yes. While we initially didn’t get the joke, Adina Schwartz clued me in yesterday.

William C. Thompson wrote:

Ah, now I see. I apologize for not making it clearer that my letter was a parody of Mr. Nichol’s letter. I know it is disorienting to realize, suddenly, that something you have taken seriously is really just a put on.

But let me now raise an important question. Having so badly misjudged my letter, are you certain you have correctly judged Nichol’s letter? In other words, how do you know Nichol’s letter isn’t also a joke? If you carefully consider the putatively serious arguments he is making, you will see that they are strikingly similar to the thoroughly absurd arguments I made in my parody. Indeed, my central points are identical to Nichols’–I just stated them more clearly. Whether he intended his letter as a joke is not really the issue. The key question is whether his position is, in fact, absurd and, more to the point, whether you and your editorial board (and your readers) could tell if it was.

As you contemplate this question, I urge you to look once again at my letter. Compare the “ASKUS Theory of Identification” with the “AFTE Theory of Identification.” Can you see the difference? After reading my parody, isn’t the intellectual weakness of Nichol’s position much more apparent? Sometimes satire is the best was to expose absurdity–and I believe this is one of those times. With that in mind, I respectfully request that you reconsider publishing my letter.
Epilogue: Here’s Professor Thompson’s answer when we asked if we could include his name when posting the above:

Yes, I insist that you use my name as I’m planning to list your blog posting as a “publication” on my CV. And if I am ever cross-examined about it, I’ll be delighted to explain the ASKUS Theory of Identification in great detail.

William C. Thompson

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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