Science Fiction and Science Fact
Kirsten Mayer takes on junk science one wrongful conviction at a time
Published in 2020 Massachusetts Super Lawyers magazine
By Trevor Kupfer on October 6, 2020
“Science and scientific testimony, in my experience, have an outsized impact in a courtroom,” says Kirsten Mayer. She’s seen it in her 20-plus years defending health care and life science companies from False Claims Act violations, and she’s seen it in two cases she tried with The Innocence Project and New England Innocence Project.
“In certain criminal cases, scientists came into court and testified about things like hair microscopy, bite mark comparison, or bullet mark striation, and testified that, based on a process and a methodology that sounded very scientific and objective, the defendant in the case was the person who perpetrated the crime,” Mayer says. “It’s one thing if you’ve got a case where you’ve got corroborating evidence that conclusively ties a person to the crime, but when all you have is the scientific testimony, unless that science and the conclusions that the expert is drawing are really rock-solid, you’re going to have innocent people put in prison for crimes they didn’t commit.
“That’s what happened to George Perrot, and that’s what happened to Gary Cifizzari.”
Perrot was convicted of sexual assault in 1985, and served nearly 30 years in prison before his release in February 2016.
“Massachusetts had recently passed a law that gave access to defendants in post-conviction proceedings to DNA testing, so we made one of the first motions to be made under that statute, asking for permission to test the physical evidence,” says Mayer, who joined the case in 2015. “As it turned out, none of the evidence that still existed had enough biological material of good enough quality, so there was no ability to get a full DNA profile. So we litigated and won his exoneration just based on the change in understanding of hair microscopy that had occurred in the ensuing 30 years.”
In these cases, Mayer doesn’t blame juries; she blames the science.
“Independent scientific expert testimony sways juries. The victim herself consistently maintained it wasn’t him, but the DA said, ‘Well, the scientific expert said his hair was on her nightgown. If it wasn’t him, how on Earth did his hair get there?’ That’s all it took for the jury to convict him.”
In 2017, NEIP executive director Radha Natarajan asked Mayer to serve as co-lead on another junk science case. Gary Cifizzari was convicted of murdering his great aunt in 1984, a year after his brother Michael was convicted for the same crime. Michael died in prison in 2000, but Gary got another shot. And even more: it gave Mayer a chance to change precedent.
“The case established bite-mark evidence as admissible in Massachusetts,” she says. “It was an interesting challenge to litigate because of a Supreme Judicial Court decision affirming the admissibility of this evidence, and just like the Perrot case, what we’ve seen in the ensuing 30 years has changed significantly.”
Back then, she says, odontologists were certified to examine bite-mark comparisons. “A lot of well-meaning experts really believed they were engaged in science when they were doing these comparisons,” Mayer adds. But years later, when research was done to test the accuracy, “forensic odontologists not only couldn’t reliably agree with each other, they couldn’t even reliably identify whether a mark on a body was a human bite mark. It was really eye-opening.”
It made Mayer and Natarajan believe they had strong grounds for a new trial. They filed for discovery in December 2017, and the following August the court authorized testing 12 pieces of evidence.
“We not only were able to exclude Gary and his brother, but when it was run against CODIS, it actually came back with a guy named Michael Giroux as the person who deposited that evidence. And he, it turns out, was one of the very first people the police had questioned in connection with the murder,” Mayer says.
On Dec. 10, 2019, prosecutors dismissed the case. “The best Christmas present ever for Mr. Cifizzari,” she says. “[But] it doesn’t change the fact that someone has spent the better part of their adult life in prison for a crime they didn’t commit. You can’t give them those years back. … You have a victim who was murdered; the person who killed her was never brought to justice; and two young men were wrongfully convicted, one of whom died in prison.
“Part of what set the police off on the wrong path,” she adds, “is that they solicited a confession from Michael under completely unreliable circumstances, and the police knew Michael had severe mental health issues and was an unreliable witness who was prone to agreeing with what the police would say. And yet, they led him into a confession, and from that fundamental mistake, they took it and ran with it.”
Mayer plans to tackle more cases with The Innocence Project in the future, and while junk science is still at the forefront of her mind, these issues are, too.
“False confessions and unreliable eyewitness testimony are both areas where I think the science and the psychology behind them are going to be the new frontiers of policing and a better, more reliable approach to criminal justice,” she says.
“It is very gratifying to be able to vindicate these individuals who were wrongfully convicted, but the bigger issue is: We need to stop wrongful convictions based on inadequate science from happening in the first place, and that requires more scrutiny of scientific testimony.”
Down to a Science
Mayer’s other pro bono passions include civil liberties work such as access to voting and expanding health care—“fundamental issues that are necessary to a functioning, humane democracy,” she says. Before she became president of its Massachusetts affiliate this year, Mayer litigated cases alongside the ACLU.
In one case from a few years ago, “We got a decision in the state trial court overturning the state voter registration deadline,” she says, “which unfortunately the Supreme Judicial Court reversed on appeal. But we took a really good run at trying to get the 20-day advance voter registration deadline declared unconstitutional under state law because it serves as a bar to thousands of people voting. We don’t want to make it harder for people to vote; we want to make it easy.”
Mayer has also worked alongside Lambda Legal. “They’re just an amazing organization—fighting for LGBTQ rights across a whole spectrum of issues,” she says. “I’ve participated in two briefs for Lambda Legal in the Supreme Court, both challenges to the Affordable Care Act. ACA’s been in the Supreme Court three times now. The third one is in process. Ropes has filed with Lambda Legal in all three of them, and I’ve worked on the two most recent ones.”
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